Delhi District Court
State vs Raju Khan Etc. on 2 January, 2009
1
IN THE COURT OF DR. ARCHANA SINHA
METROPOLITAN MAGISTRATE, TIS HAZARI COURTS, DELHI.
FIR No. 89/95
P.S Tilak Nagar
State V/s Raju Khan Etc.
1. S.No. of the case : 200/2/95
2. Date of Institution : 22.05.1995
3. Date of Commission of offence : 06.02.1995
4. Name & Add. of Complainant : Km. Mindra D/o
Sh. Dulichand, R/o Wz-
186, Khyala Village, Delhi.
5. Name & Address of Accused : 1). Raju Khan S/o Yaasin
Khan R/o Wz-151,
Khyala Village, Delhi.
(aged around 42 yrs)
2). Munshi Khan S/o Md.
Yaasin Khan, R/o Wz-
151, Khyala Village,
Delhi.
(aged around 32 yrs)
6. Offence complained of : U/s 509/325/34 IPC
7. Plea of the Accused : Pleaded not guilty
8. Date on which Judgment : 02.01.09
has been reserved
9. Date of Delivery of the Order : 02.01.09
10. Final Order : Acquitted.
JUDGMENT
1. The brief resume of the prosecution case is that one Km.
Mindra lodged a complaint on 07.02.95 regarding an incident of State V/s Raju Khan Etc. FIR No. 89/95 JK 2 06.02.95, reporting that at about 6.30 p.m, at street near H.No. Wz- 186, Khyala Village, Delhi, within the jurisdiction of P.S Tilak Nagar, both the accused persons Raju Khan and Munshi Khan in furtherance of their common intentions made obscene gestures and blew whistles and accused Munshi Khan asked her to sit on his cycle and also caught her by hand, with the common intentions to insult her modesty and also caused grievous injuries with danda to her father Duli Chand, thereby alleging that they committed the offences punishable U/s 509/325/34 IPC, within the cognizance of this court.
2. On the above stated allegations of the prosecution, on completion of investigation by the investigating agency, a charge sheet was filed against both the accused for the offences punishable U/s 509/325/34 IPC vide order dated 22.05.95 and on finding prima-facie case against the accused vide order dated 04.03.96, Ld. Predecessor court of Sh. Manoj Jain, the then Ld. M.M, framed charges against both the accused persons for the offences punishable U/s 509/325/34 IPC to which they had pleaded not guilty and claimed trial and thus, the trial had commenced.
3. For proving its case, the prosecution has relied on the ocular evidence of 6 prosecution witnesses, mentioned in the list of witnesses, as per the charge-sheet but during the trial of around 11 years of evidence between 1996-2007, the prosecution could produce only 4 prosecution witnesses in all.
Out of these four prosecution witnesses, PW-1 H.Ct. Bengali Babu was the formal witness being the duty officer (D.O) who came to the witness box to authenticate the registration of the case State V/s Raju Khan Etc. FIR No. 89/95 JK 3 and proved the copy of the same as Ex.PW-1/A and deposed that on 07.02.95, while being posted at P.S Tilak Nagar, on receipt of a complaint by H.Ct. Vijender Singh, he recorded the FIR bearing No. 89/95 U/s 509/325/34 IPC with P.S Tilak Nagar. Thus, this witness is being treated as a formal witness who had come to the witness box only to authenticate the registration of the case.
Whereas, PW-2 Duli Chand was the father of the complainant and the alleged injured, and was the material star witness of the prosecution on whom the prosecution has relied heavily to prove the offences alleged against the accused persons. Thus, this witness is treated as the material star witness of the prosecution who could prove the facts and circumstances, for proving the allegations against the accused persons.
PW-3 Dr. Anurag Jain, CMO, from DDU hospital was the medical expert to prove the medical examination report of the injured Duli Chand and exhibited the same in the court as Ex.PW-3/A. Thus, this witness was the formal witness to prove the medical report of the injured/victim Duli Chand. This witness was formal in nature as this witness was nothing to say regarding the occurrence or allegations levied against the accused persons.
Whereas, PW-4 H.Ct. Vijender Singh was the investigating officer (herein after referred as IO) of the case who had come to the witness box to prove the circumstances in which the medical examination of the injured Duli Chand was got conducted, the MLC of the injured was collected, the statements of the witnesses including the complainant were recorded, the site plan was prepared, the accused persons were arrested, and the other documents prepared or collected by him during the course of the investigation. Thus, he was the necessary and material witness to prove the circumstances and State V/s Raju Khan Etc. FIR No. 89/95 JK 4 the documents prepared or collected by him during the course of investigation but as he had nothing to say about the allegations against the accused persons, to that extent, he is also treated as formal witness.
That is all for the ocular evidence of the prosecution.
4. After recording of evidence of four prosecution witnesses, the prosecution had also produced the documentary evidence in support of its case, same includes the MLC of the injured Duli Chand Ex.PW-3/A, the statement of the complainant Mindra Ex.PW-4/A and rukka Ex.PW-4/B was prepared, on which the FIR Ex.PW-1/A was registered, the site plan Ex.PW-4/C was prepared and the arrest and personal search of the accused persons were conduced vide memo Ex.PW-4/D, and the statement of the injured Duli Chand was recorded vide document Ex.PW-4/F. That is all for the prosecution evidence.
5. Statements of both the accused persons were recorded under section 313 Cr.P.C wherein when all the incriminating evidence and documents were put to the accused persons, they denied all the allegations and incriminating evidence and documents put to them as incorrect, taking the plea that they are innocent and have been falsely implicated by the complainant as on the date of incident, they had gone to fetch a shirt of their father which was given for press, however, the complainant had burnt the said shirt and when they asked for the reason, she started quarreling with them and a false case was registered against both of them, being brothers.
In support of their defence, though the accused persons wanted to lead defence evidence (D.E), however, despite several State V/s Raju Khan Etc. FIR No. 89/95 JK 5 opportunity, no defence witness was produced and defence evidence was closed.
6. I have heard the final arguments of both the parties and have also perused the record consisting of ocular as well as documentary evidence.
Ld. APP has submitted that the complainant could not be produced due to her non-traceability at the given address and no other address was known to the records and that the injured Duli Chand examined as PW-2 though was declared hostile but he admitted the attack on him on his head through a 'lathi' used by the accused persons, during his cross-examination by the State that the medical witness and the IO had an un-rebutted testimony admitting the versions stated in the court, thereby, proving the allegations against the accused persons, through circumstantial evidence.
Ld. Defence counsel has vehemently countered the prosecution case submitting that the prosecution could not prove the occurrence, as the complainant was not examined in the court and the father of the complainant Duli Chand was examined as PW-2 but he was turned hostile, that creates a doubt on the prosecution story as the other witnesses who had an un-rebutted testimony were formal in nature and could not prove the allegations, without the evidence of the complainant and that the complainant and her father had compromised the matter with the accused persons during trial and this fact has been admitted by the father of the complainant in the court. Thus, it was requested that a benefit of doubt may be given to the accused persons.
7. Before appreciation of evidence on record, it is worth to State V/s Raju Khan Etc. FIR No. 89/95 JK 6 reproduce the provisions for the offence punishable U/s 509 IPC that reads as below:
Section 509 IPC - Word, gesture or act intended to insult the modesty of a woman '"Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending, that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine or with both".
8. To prove the offence punishable U/s 509 IPC, the prosecution was under an abundant duty to prove :
i). that the accused persons uttered the word, or made the sound or gesture, etc., in question;
ii). that such word, sound or gesture was intended by the accused persons to be heard or seen by some woman;
iii). That they thereby intended to insult the modesty of that woman.
9. On appreciation of evidence on record consisting of ocular as well as documentary evidence on record, it is observed that the prosecution could examine only four prosecution witnesses, out of the list of six prosecution witnesses, during a long trial of 12 years of the prosecution evidence, taken since March 1996, when the charges were framed against both the accused persons, till final arguments of the matter in 2008.
10. It is further observed that during trial, the complainant could not be produced by the prosecution on the pretext of her un- State V/s Raju Khan Etc. FIR No. 89/95 JK 7 traceability though her father Duli Chand was produced in the court and was examined as PW-2.
It is further observed that even the material star witness Duli Chand who was produced as an alleged eye-witness of the occurrence, did not support the prosecution case on the point of insulting the modesty of his daughter Mindra, as alleged or regarding any obscene gestures or blewing whistles towards her or the words allegedly spoken to her by the accused persons at the time of occurrence, rather he has produced an absolutely different version making the occurrence, 'a quarrel', clearly denying the suggestion of the State that he had seen the incident with his own eyes, thereby, proving the fact that the witness Duli Chand i.e the father of the complainant had not seen the occurrence and thus, was not an eye- witness of the occurrence.
11. On appreciation of depositions of witness Duli Chand examined as PW-2, it is observed that this witness was declared hostile by the State on the pretext that the witness was suppressing the truth and hostility of this witness has lost its credence outrightly, when the State has preferred to cross-examine this witness as hostile witness, on the pretext that he was suppressing the truth.
Moreover, in his examination in chief, this witness has not informed the date and time of occurrence, rather vaguely testified the year of incident as 3 years back, and as per calculation, as the witness was examined on 13.02.98, it was related to a year 1995.
He further testified in the court that her daughter Mindra, told him that the accused persons had quarreled with her and he lodged a report in this regard and then, after lodging of such report, he went to his house and the accused persons have gone to their house, State V/s Raju Khan Etc. FIR No. 89/95 JK 8 meaning thereby that on such date of incident, no other proceedings except of reporting of the matter to the police were conducted, if this witness is believed to be correct for his version.
Further, it is observed that the testimony of this witness is based on the communication made to him by the complainant i.e his daughter, who was not produced in the court, despite the fact that she was closely related to her being daughter and father, who used to reside at the same address on the date of incident.
Thus, the depositions of this witness are well covered within the ambit of 'hear-say' evidence as the version of this witness was based on the communication made to him by the complainant, particularly, when he has categorically denied the suggestion of the State during his cross-examination that he was an eye-witness to the incident, meaning thereby, a description of occurrence was given by this witness in the court, absolutely on the communication made to him by his daughter i.e the complainant, who was not produced in the court to support such version.
Thus, the testimony of this witness is inadmissible in law, being an evidence well covered within the ambit of hear-say evidence, as the person on whose communication his evidence rests, was not produced in the court, for the purposes of corroboration of such version.
For these observations, the reliance is placed on a case titled as Sanganna Narasimulu V/s State of Andhra Pradesh cited as 2005 Cr.L.J 4168, wherein it was observed that :
'the evidence of relatives ... of the complainant are not direct witnesses of the alleged cruelty (occurrence), their evidence based on their communication with the complainant (deceased) who complained of.....and thus, their statement State V/s Raju Khan Etc. FIR No. 89/95 JK 9 is a weak piece of evidence as the deponent cannot be subjected to cross examination for such version.....such statement becomes hear-say, hence, inadmissible in evidence'.
12. Further, it is observed that this witness though had admitted the suggestion of the State that the complainant told him that the accused persons had misbehaved and made obscene gestures towards his daughter, but during accepting this suggestion, nor the State has disclosed specific form of mis-behaviour or manner of obscene gestures made to his daughter to prove as to how the daughter of this witness was misbehaved and what were the gestures, that were to be treated as obscene gestures, to be covered within the provisions U/s 509 IPC.
Further, it is observed that this witness has denied the suggestion that he was an eye-witness to the incident, thus, the prosecution story has been belied by this witness that the witness was an eye-witness of the occurrence.
Further, it is observed that this witness has also denied the suggestion categorically about the words spoken by the accused persons to his daughter regarding asking of his daughter to accompany him on their cycle, making the testimony of this witness absolutely contradictory to the version given to the police and that was recorded U/s 161 Cr.P.C and due to these infirmities and material contradictions, the credence of this witness has further been shakened and this witness cannot be treated as truthful witness.
For these observations, the reliance is placed on a case titled as Jandel Singh Vs. State of Madhya Pradesh 2003 (4) JT 558, wherein it was observed that :
"if vital improvements and contradictions are found in the testimony of the witnesses without any State V/s Raju Khan Etc. FIR No. 89/95 JK 10 satisfactory explanation, thereby, the testimony of PWs- do not inspire confidence and cannot be relied upon."
13. It is further observed that the complainant who was the material star witness of the prosecution and was the only person who could prove the occurrence and the allegations regarding making of obscene gestures or regarding activities of the accused persons towards her, or pertains to the words spoken by the accused persons towards her, thus, due to non-production of such material star witness of the prosecution, the prosecution has miserably failed to prove the allegations pertains to the offence punishable U/s 509 IPC and the non-production of the complainant during trial is absolutely fatal to the prosecution case as for the absence of the complainant, the occurrence could not be proved, beyond reasonable doubt and such non-production of the material witness of the prosecution, also leads to an adverse inference that on the production of the complainant, she may not support the prosecution case, particularly, when the father of the complainant had admitted in his testimony, that he had compromised the matter with the accused persons and he wanted to pardon them.
Thus, the non-production of the complainant in the circumstances, when her father has been produced as a witness, who was resident of the same address on which the complainant was residing, an adverse inference leads in this case, that on production of the complainant, she may not support the prosecution case.
For these observations, the reliance is placed on a case titled as Karnesh Kumar Singh & Ors. Vs. State of U.P cited as AIR 1968 Supreme Court 1402, wherein it was observed that :
State V/s Raju Khan Etc. FIR No. 89/95 JK 11 "it is the duty of the prosecution to examine the material witnesses and non-examination of some of the witnesses leads to the adverse inference to their non- support of the prosecution case."
Also, the prosecution produced one material witness Duli Chand, the father of the complainant who turned hostile and did not support the prosecution case.
14. As the prosecution could not prove the material ingredients of the offence punishable U/s 509 IPC, for proving the allegations against the accused persons, the prosecution story becomes doubtful and as the case has not been proved beyond reasonable doubts U/s 509 IPC, it is observed that the prosecution has failed to prove an offence punishable U/s 509 IPC, against any of the accused persons, beyond reasonable doubts.
15. Now, for proving an offence punishable U/s 325 IPC, it is worth to reproduce the provisions, that read as below :
Section 325 IPC - Punishment for voluntarily causing grievous hurt 'Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine'.
16. For proving an offence punishable U/s 325 IPC, the prosecution was under an abundant duty to prove :
i). that the occurrence had taken place at the relevant date, time and place;
ii). during the occurrence, the injuries were of the grievous State V/s Raju Khan Etc. FIR No. 89/95 JK 12 nature and not self inflicted.
17. Now, for proving this offence, the evidence produced by the prosecution was of four prosecution witnesses for ocular evidence
- PW-1 H.Ct. Bengali Babu who was the formal witness who came to the witness box only to prove the registration of FIR on the complaint of the complainant, at the relevant date time and place and was nothing to prove against the accused persons, regarding the allegations alleged against them.
Further, on appreciation of evidence of PW-2 Duli Chand who was the alleged injured, it is observed that this witness was declared hostile by the State and in his examination in-chief, he did not utter a single word regarding any kind of assault on him by the accused persons, as alleged, nor any kind of injuries were mentioned in his testimony, ever received by him, during his examination in-chief and on such testimony, the State through Ld. APP has expressed its doubt on the truthfulness of the witness, when the witness was declared hostile on the pretext that witness was suppressing truth in the court.
18. During lengthy cross-examination of this witness by the State, after declaring him hostile, when the suggestion was given to the witness, regarding attack on him, he only admitted such suggestion testifying that it was correct that after narrations of his daughter regarding the occurrence, the accused persons brought a 'lathi' and they attacked him on his head and he sustained injuries on his head.
To this extent, Ld. APP has placed her contentions that during suggestions, the witness had admitted an attack by the accused persons on his head by a 'lathi' but, to this contention, it is State V/s Raju Khan Etc. FIR No. 89/95 JK 13 observed that the statement of the witness is vague and general in nature, when he admitted the suggestion that 'accused persons' brought a 'lathi' and then they attacked on him on his head. The witness has not specifically mentioned as to who out of the two accused persons brought a 'lathi' and who attacked him on his head, no specific attribution has been made towards a specific accused, either pertains to bringing of a 'lathi' or for attacking the witness on his head, as there was a single weapon i.e 'lathi'. Presumingly, on the test of reasonable prudence, a 'lathi' must have been carried out by one person and must have been attacked by one person, thus, the specific role of specific accused was to be proved by the prosecution and for proving such allegations, the prosecution had to stand on its own leg, through substantive evidence of the witness, not by way of suggestion thrown on him, that the witness was attacked by specific accused in a particular manner of attacking him by a weapon i.e lathi.
Moreover, when these versions were counterly checked with the medical report placed with the file Ex.PW-3/A, then, the nature of injuries were reported as grievous on the basis of fracture on the left arm, not on the head and supporting X-ray report of the skull (not exhibited in the court for the want of non-production of the concerned doctor), it is observed that no fracture was seen on the skull.
Thus, the nature of injuries were not proved by the prosecution during trial and even if, for the sake of arguments, the contention of the State is taken into account that there was an attack on the head of the accused person by Dulichand, then, another suggestion admitted by this witness, that he received injuries on his hand also, but here, also this witness has not clearly and specifically mentioned that on which hand, he received injuries and injuries proved State V/s Raju Khan Etc. FIR No. 89/95 JK 14 on medical record are shown on the left arm but the nature of injuries recorded as 'grievous' on the basis of X-ray report placed on record, but the same was not proved by producing the concerned Dr. Yashpal, who examined the injured for the bony injuries, on the left arm.
The non-production of such doctor and even not citing such doctor in the list of witnesses, is another lacuna in the prosecution case that creates a doubt and leads to an adverse inference that on his production, he may not support the prosecution case.
The prosecution has not explained clearly as to why the secondary evidence of Dr. Anurag Jain was produced for placing the X-ray plates/reports prepared by Dr. Yashpal, as there is nothing on record, that Dr. Yashpal was not traceable at the given address or was not able to be produced during trial.
Even this witness was not produced though he was the material witness to prove the nature of injuries, that the injuries were grievous in nature, that could not be produced to prove that there was a bony injury on the person of the injured.
For these observations, the reliance is placed on a case titled as AIR 1975 SC 1453, wherein it was observed that :
"It is the duty of the prosecution to examine all the material witnesses and if all the material witnesses are not examined then an adverse inference can be drawn that he was kept aback and presumption can be drawn that on his examination he may not support the prosecution case."
19. Moreover, it is observed that PW-2 Duli Chand, in his examination in-chief, has not mentioned anywhere in his testimony State V/s Raju Khan Etc. FIR No. 89/95 JK 15 that he received injuries on his left arm, during occurrence and his admission of a suggestion during his cross-examination on his hostility, he could only admit that he received injuries on his hand, but even at that time, this witness could not explain as to how he received injuries on his hand, as he has only disclosed one fact that the accused person attacked him on his head. He has nowhere mentioned that he was attacked on his hand and if so, by which weapon and by whom.
Thus, the head injuries are not being proved, with the medical record placed with the observation that there is no fracture seen on the skull and injuries pertains to hand are not attributed to any of the accused persons, nor to the occurrence, as to whether this witness had received injuries on his hand, at the hands of accused persons and the admission on the part of this witness, that he compromised the matter with the accused persons, leads to an inference that pertains to injuries, the matter was compromised and compounded by the injured.
20. Further, the un-rebutted testimony of PW-1, 3 and PW-4, do not support the prosecution case to prove the allegations, as formal witnesses whose testimony was un-rebutted could not prove all the allegations and the necessary ingredients to be proved by the prosecution beyond reasonable doubts.
21. Thus, on the basis of above observations on law and facts and on appreciation of evidence on record, it is observed that on the basis of evidence on record, the prosecution has miserably failed to prove the case U/s 325 IPC, against any of the accused, particularly, when the prosecution could not produce the material State V/s Raju Khan Etc. FIR No. 89/95 JK 16 witness/complainant during trial for proving the occurrence, as such.
22. Ld. APP has further submitted that during the statements of the accused persons recorded U/s 313 Cr.P.C, the accused persons have admitted that the complainant Mindra was having a 'danda' and she was about to beat one of the accused, who rescued himself and 'danda' hit on the head of Duli Chand.
It was further argued on behalf of Ld. APP that this admission on part of the accused suggests that 'danda' was used by the complainant, but, was hit on the head of Dulichand i.e the father of the complainant.
To this contention, it is observed that the answer to the question put to the accused persons, is clear and un-ambiguous in nature, when it was answered by the accused that during occurrence, the complainant Mindra used a 'danda' and when she was about to beat one of the accused, and then, 'danda' hit Dulichand, meaning thereby, that muscular force was used and intended by the complainant against the accused but unfortunately, it hit upon the head of her father Duli Chand.
Thus, the contention of the State that 'danda' attack was made by the accused persons to Dulichand, is 'off of the view' and in no manner the 'danda' was used by the accused persons against head of Duli Chand and this fact is also absolutely contradictory to the stand of the State when it was argued on behalf of the State on the basis of evidence of witness Duli Chand, that a 'lathi' was brought by the accused persons and the accused persons attacked Duli Chand, on his head with such 'lathi' and hit him on his head.
Thus, even the answers given by the accused persons during their S/A recorded U/s 313 Cr.P.C, are not leading to any State V/s Raju Khan Etc. FIR No. 89/95 JK 17 suggestions favoring the prosecution case, regarding allegations made against the accused persons, for an offence punishable U/s 325 IPC.
23. Further, another contention of the State that stand of the accused persons taken during S/A, was not proved through independent defence evidence by them, does not make the accused persons liable for the offences, not otherwise proved by the prosecution beyond reasonable doubts, as it is a well settled principle of law that the prosecution has to stand on its own leg for proving the offences alleged against the accused persons, and not to wait for proving the offences by the accused persons, otherwise through defence evidence (D.E).
24. Thus, on the basis of above observations on law and facts, the court is of the considered view that through the ocular evidence with the supporting documentary evidence on record, the prosecution could not successfully prove its case beyond reasonable doubts, against any of the accused persons, for any of the offences punishable U/s 509/325/34 IPC.
25. Therefore, on the basis of principles of criminal justice system, as the prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubts, a benefit of doubt is given to both the accused persons Raju Khan and Munshi Khan, and both of them are accordingly acquitted from the charges levied against them from the offences punishable U/s 509/325/34 IPC.
File be consigned to R/Room.
State V/s Raju Khan Etc. FIR No. 89/95 JK 18 Announced in the open court On 02nd day of January, 2009 (Dr. ARCHANA SINHA) Metropolitan Magistrate, Tis Hazari Courts, Delhi State V/s Raju Khan Etc. FIR No. 89/95 JK