Delhi District Court
Fir No. 593/2016; Ps Amar Colony State vs . Sanjay Valecha 1 Of 34 on 23 April, 2019
In the Court of Ms. Sheetal Chaudhary Pradhan, Metropolitan
Magistrate (Mahila court (SouthEast), Saket Courts, New Delhi.
FIR No. 593/2016
PS: Amar Colony
U/s : 323/354B/506/509 IPC
State v. Sanjay Valecha
JUDGMENT
Date of institution : 31.08.2017
Cr.C No. : 4055/2017
Name of the complainant : As per chargesheet.
Name & address of the accused : Sanjay Valecha
persons S/o Sh. N.L. Valecha
R/o A89, Ground Floor,
Dayanand Colony,
Lajpat NagarIV, New Delhi.
Offence Complained of : U/s 323/354B/509 IPC
Offence Charged of : U/s 323/354B/506/509 IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted
Date of arguments : 18.04.2019
Date of announcing of order : 23.04.2019
BRIEF FACTS:
1. Brief facts of the case are that the complainant has stated in her complaint dated 24.09.2016 that the complainant was residing FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 1 of 34 alongwith her family and was running a meat shop with the name Hero Meat Shop having its address at 178/4B which she had purchased several years ago. Further that the complainant had installed a water tank above the aforesaid shop after taking water connection. Accused Sanjay Valecha had broken the aforesaid water tank of the complainant on several previous occasions. On 24.09.2016 at around 12.30 to 1.00 PM in day time, when the complainant reached her shop, she found that there was no water in the tap and therefore, she sent her helper namely Akshay to check the water tank on the terrace of the shop and at that time, accused Sanjay started abusing Akshay and gave beatings to him and at that time was threatening to kill by shouting at Akshay. Upon hearing the cries and aforesaid commotion, complainant also went to the terrace near the water tank and at that time accused held the complainant by her hand and when she tried to rescue her, accused caught hold of her from behind because of which complainant fell down and accused tried to tear off the clothes of the complainant and she raised alarm. Upon hearing the same, accused left the complainant and while leaving threatened the complainant and warned her to not call the police and if she would call, accused would kill the family of complainant. Further, the complainant had filed several complaints against the accused and the same was also filed on 26.07.2016. Further, at the time of the aforesaid incident the worker of the complainant namely FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 2 of 34 Premwati who was resident of 6/106, Trilokpuri, New Delhi also witnessed the incident and infact, the complainant was rescued from the accused even by Premwati.
2. Pursuant to this complaint dated 24.09.2016 against the accused, FIR was registered on the same day and the matter was investigated. Charge sheet was filed on 31.08.2017. The Court took cognizance of offence and summoned the accused Sanjay Valecha. Charge was framed against accused vide order dated 25.10.2017 for the offence punishable U/s 323/354B/506/509 IPC. Accused pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
3. In order to prove its case, prosecution has examined nine (09) witnesses during trial.
PW1 complainant/Victim deposed that on 24.09.2016, she was present in her shop and at around 12.30 PM, she found that the water supply was not continued in water tank due to which she send her employee (servant) namely, Akshay to see the water tank kept on the terrace of the shop. Her shop was situated at ground floor and accused Sanjay Valecha was residing at first floor of the building. After sometime, she heard commotion from the terrace of the building on which, she went there and saw that accused Sanjay Valecha was pushing her servant Akshay. When FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 3 of 34 she objected the same, accused started abusing her saying that "randi tu upar kyun aai hai". Accused caught hold her hand and pushed her down on terrace. He also torn her wore saree and blouse. She raised alarm after which her maid namely, Premwati also came there and rescued her from the accused. When she was trying to call at 100 number, accused threatened her not to call at 100 number and if she called at 100 number, then he would not leave her and her family. Upon making a call at 100 number, police reached there and recorded her statement as complaint which was Ex.PW1/A. Accused Sanjay Valecha was apprehended at the spot and arrested by the police in her presence vide arrest memo Ex.PW1/B. She and accused were taken to PS Amar Colony. Thereafter, she was taken to AIIMS hospital. She had not produced the aforesaid clothes to the police as the same was not asked to her. She could not produce the same before the court due to lapse of time as the said clothes were misplaced. She had given her statement u/s 164 CrPC Ex.PW1/C. During crossexamination PW1 deposed that she was 10th passed. Akshay was working with her for the past seven years. She did not know the age of Akshay. It was wrong to suggest that at the time of joining her shop, person namely Akshay was minor. The maid servant Premwati was working as her domestic servant for last 15 years in her house. Her beauty parlour was opened in the year 2017. Her meat shop was situated FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 4 of 34 at A178/4, Dayanand Colony, Lajpat Nagar, New Delhi and her beauty parlour was situated at A178/4B, Dayanand Colony, Lajpat Nagar, New Delhi. It was wrong to suggest that shop No. A178/4B had not allotted to her by MCD. She did not have personal knowledge regarding the financial irregularity against the Shradharam Trust Committee which was committed by D.R. Kapila, Coordinator Trustee. It was correct that the aforesaid shop number was provided to her by D.R. Kapila, coordinator Trustee. It was correct that accused Sanjay Valecha was already in possession of first floor of the abovesaid shops prior to purchase of ground floor of the same by her. She did not have personal knowledge regarding the shop number of accused Sanjay Valecha and she could not say whether it was bearing No.A 178/14, First floor, Dayanand Colony, Lajpat Nagar, New Delhi. It was wrong to suggest that she had made another construction on the vacant land in front of her shop. It was wrong to suggest that when accused raised objection for the aforesaid construction carried out by her on the said open space, she had threatened the accused that he will be implicated in false rape and teasing cases. She did not have personal knowledge whether accused had made complaint against her to MCD Commissioner/DCP/ SHO of concerned area regarding aforesaid construction. When she reached the terrace, she saw that accused was abusing and beating Akshay, Witness was confronted with examination in chief FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 5 of 34 wherein the aforesaid fact was not narrated. It was correct that she had not stated the words "randi, tu uppar kyun aai hai" in her complaint Ex.PW1/A however, she stated the same during her examination in chief. It was correct that she had not stated in complaint Ex.PW1/A that her clothes were torn by the accused as stated by her in her examination in chief. Witness was confronted with the statement Ex.PW1/A wherein the fact that clothes were torn had not been mentioned. It was correct that she had not stated in complaint Ex.PW1/A that on the date of incident, she was rescued by her maid namely Premwati from the accused as stated by her in her examination in chief. Witness was confronted with the statement Ex.PW1/A wherein the aforesaid fact had not been mentioned. She did not know if CCTV cameras were installed in the lane where her shop was situated. She had given a call at 100 number. She had informed the 100 number police that accused has misbehaved with her. Two police officials visited the spot upon her 100 number call and both were male officials. She had given her complaint to the police which was written on her dictation at PS. From the spot, she was firstly taken to the police station alongwith her maid Premwati. Her statement Ex.PW1/A was recorded at PS. Thereafter, photocopy of a photo was shown to the witness and upon seeing the same, PW1 deposed admits that the same was the photo of the shop owned by her. The photocopy of the same was Ex.PW1/D1. The washroom FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 6 of 34 was constructed inside her shop and she could not explain the exact geographical direction of her shop. She could not say, if her shop was facing east direction. It was correct that on the right side of her shop, a printing press was situated and on the left side, a gas agency was situated. She had only one entrance and exit to her shop. It was correct that a gate was installed in the entrance of the gali however, the same always remains open due to the parking of vehicles. It was correct that the site plan was prepared at her instance by the IO. Accused was asked to join investigation at police station where he reached and was probably arrested from there. Police remained at the spot for about 1520 minutes. At the spot, the police officials had not prepared any documents in her presence. She could not define the exact distance between her meat shop and her parlour. She had installed the water tank only once on the terrace of her shop. No public persons had gathered at the time of incident. She was not aware if accused has filed a civil suit against her in respect to the aforesaid shop at Saket court. She was not aware if MCD officials have directed them to break the illegal construction done by her at her shop. She had not suffered any injury on the date of incident. Person namely Akshay has taken a rented accommodation near her shop. Witness denied all the suggestions put to her.
PW2 Premwati (eye witness) deposed that in the year 2016, she was working as maid servant in different houses. On FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 7 of 34 24.09.2016, at around 12.30 PM, she was cleaning the bathroom of the complainant. Suddenly, water supply was stopped by the accused from the water tank kept on the terrace, on which complainant went to the terrace. After sometime, she heard commotion from the terrace and she also went there and saw that accused manhandled the complainant and he pushed down the complainant and wearing clothes that is saree and blouse were already removed from its place. At that time, accused was also twisting the hand of complainant. She raised alarm and called other public person and complainant was rescued from the accused. After sometime, police reached there and took the complainant and accused at PS. She also went to PS. She was also inquired about the incident by the police officials.
During crossexamination PW2 deposed that she did not know whether there was any property dispute between complainant and accused. She had been working as a maid servant in the house of complainant for last 30 years. Police did not ask her regarding the fact of removal of wearing saree and blouse of the complainant due to which, she did not tell the same to the police however, she narrated whole incident to the police. It was wrong to suggest that no such incident occurred due to which she did not disclose the fact of removal of saree and blouse to the police. She remained at the PS for about 23 hours. At the time of incident, no other family member of complainant was present FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 8 of 34 there. She told the police official that upon raising alarm by her, public persons also gathered there. Witness was confronted with statement u/s 161 CrPC wherein the aforesaid fact was not so recorded. She did not know as to how long time the water tank was installed on the terrace. She did not remember as to how long time the aforesaid shop was running by the complainant. However, it was several years back. Husband of complainant was running a meat shop which was far away from the present shop of the complainant. She did not remember the exact distance however, it took five minutes on foot. She did not know the name of public person who gathered at the spot at the time of incident. On the day of incident, she was cleaning bathroom at first time as the same was newly constructed. She did not know the exact distance between the present shop and her residence however, it took one hour through public conveyance. She left PS for her house. Police official did not visit again at the aforesaid shop of complainant. Witness denied the suggestions put to her.
PW3 Akshay Pukrej (eye witness) deposed that he had been working as an employee in mutton shop situated at 178/4B Dayanand Colony, Lajpat NagarIV, New Delhi for last nine years. On 24.09.2016, he was present in the shop and at around 12.30 pm he was directed by her owner (complainant) to see the water tank situated on the terrace as water supply was not coming in the water tap. Thereafter, he went to the terrace. Meanwhile, FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 9 of 34 accused came there and started to abuse him and beat him with fist and leg blow. He raised alarm, after which complainant also reached there. Thereafter, accused caught hold hand of the complainant and twisted her hand. Accused started to misbehave with the complainant by trying to tearing her clothes. Upon shouting by him and complainant, one lady who was cleaning the bathroom of the complainant reached there and she intervened and rescued the complainant from him. Thereafter, accused threatened the complainant to kill her if she would call the police. Thereafter, he alongwith complainant and that lady come down to the house of the complainant. Accused was also running his office in the same building in which at ground floor the aforesaid shop was situated. Complainant called at 100 number. After which police officials reached there and took the complainant and accused to the police station. After one hour, he was called at PS by the police officials from where he and complainant were taken to the hospital. He was also inquired about the incident by the police officers.
During crossexamination PW3 deposed that it was correct that he had stated in his statement before the police that they had called the police. The number of aforesaid meat shop was 178/4, Dayanand Colony, New Delhi. He was residing at that time at aforesaid shop. Police remained at the spot for about 2030 minutes. They were 34 police officials including one lady FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 10 of 34 constable. He did not remember whether complainant had given her statement in his presence or not. At the time of incident, he was 31 years old. It was wrong to suggest that he had given his false statement to the police on behest of complainant. He did not remember where he went after coming from the hospital. No other public persons except complainant, aforesaid lady, accused and himself were gathered at the spot at the time of incident but after sometime some public persons gathered there. He did not know their names. He did not know whether any CCTV cameras were installed near the street. He could not tell the name of adjacent shop of the parlor shop. The face of parlor shop was towards east side. He could not say about the location of the husband of complainant at the time of incident. He was still working with the complainant. Witness denied the suggestions put to him.
PW4 W/Const. Sangeeta deposed that on 24.09.2016, she was posted at PS Amar Colony. On that day, at around 02.00 PM02.30 PM, she was called at the spot that is 178/4B Dayanand Colony, Lajpat Nagar by the IO SI Kamal Singh. After reaching there, complainant was sent to hospital through her and another injured Akshay was sent to hospital through Ct. Pramod. After medical examination, she came back with the complainant at PS and handed over the MLC of complainant to IO. IO recorded her statement U/s. 161 of Cr.PC.
FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 11 of 34 During crossexamination PW4 deposed that she had told the IO that after returning from the hospital, she went to the PS and MLC of the complainant was handed over to him. Witness was confronted with statement U/s. 161 of Cr.PC wherein it was not so recorded. Her statement was recorded at PS. When she reached at the PS from the hospital, IO was also present in the PS at that time.
PW5 HC Suresh Chand deposed that on 24.09.2016, he was posted at PS Amar Colony as Duty Officer. His duty hours were from 4.00 pm to 12.00 midnight. At about 05:45 p.m. he received rukka from Ct. Parmod Ex.PW5/B and on the basis of said rukka, present FIR was registered Ex.PW5/A(OSR).
During crossexamination PW5 deposed that it was correct that he had mentioned the contents of FIR in the general diary. He did not obtain signature of complainant on copy of FIR as the same was handed over to IO at the spot where complainant was present with IO. He could not tell the time and date when copy of FIR was sent to the concerned MM. It was wrong to suggest that false FIR was registered against the accused.
PW6 Const. Pramod deposed that on 24.09.2016, he was posted at PS Amar Colony. On that day upon receipt of information of DD No.22A regarding quarrel at A178/14, FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 12 of 34 Dayanand Colony, Lajpat Nagar. He alongwith IO/SI Kamal Singh reached at the spot at around 01:20 pm where complainant met them and she handed over a written complaint to IO. IO called lady Constable Sangeeta from PS at the spot and complainant and Akshay (both were in injured condition) were sent to AIIMS Hospital through him and W/Ct. Sangeeta. After their medical examination, they alongwith injured persons came back at the spot. IO prepared rukka and handed over to him for registration of FIR. After registration of FIR, he received original rukka and FIR from the concerned duty officer and came back at the spot and handed over the same to the IO. Accused Sanjay Valecha was arrested at the instance of the complainant from the spot vide memo Ex.PW1/B and his personal search was conducted Ex.PW6/A. IO recorded his statement u/s 161 Cr.PC.
During crossexamination PW6 deposed that he did not remember whether the complainant had already written his complaint or written upon their presence at the spot. Upon reaching at the spot from hospital, IO was found present at the spot. He did not know by whom the complaint was written. The alleged shop was situated at the main road in Dayanand Colony. He remained 3040 minutes at the spot before leaving the spot for medical examination of the accused persons. No document was prepared during that period by the IO. The distance between PS and the place of occurrence was around one kilometre. There was FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 13 of 34 no transport problem in the area. He did not have idea regarding the facing of the shop of complainant. Even he did not have idea regarding the direction of the location in that area. Accused was arrested around 7:50 pm. PW7 SI Kamal Singh (IO) deposed that on 24.09.2016, he was posted at PS Amar Colony. On that day upon receipt of information of DD No.22A regarding quarrel at House No.178/14, Dayanand Colony, Lajpat NagarIV, copy of which was MarkA, he alongwith Ct. Pramod reached at the spot at round 01:20 pm where complainant met them and she handed over a written complaint to him. Complainant alongwith one Akshay were found in injured condition. Thereafter, he called Lady constable Sangeeta from PS at the spot and both injured persons were sent to AIIMS Hospital through Ct. Pramod and W/Ct. Sangeeta. After their medical examination, Ct. Pramod and W/Ct. Sangeeta alongwith injured persons came back at the spot and MLC of both injured persons were handed over to him by Ct. Pramod and W.Ct. Sangeeta. He prepared rukka Ex.PW7/A and got it registered to Ct. Pramod. After registration of FIR Ct. Pramod came back with original rukka and copy of FIR and handed over the same to him. He prepared site plan at the instance of complainant Ex.PW7/B. Accused Sanjay Valecha was arrested at the instance of complainant and personal search was conducted vide memo Ex.PW1/B and Ex.PW6/A. He recorded statement of FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 14 of 34 witnesses u/s 161 Cr.PC. On the next day, accused was produced before the concerned court, from where he was sent to JC. During the course of investigation, statement u/s 164 CrPC of complainant was got recorded and copy of the same was collected and attached with the file. After completion of the investigation challan was prepared and filed before the court.
During crossexamination PW7 deposed that he did not remember the exact time when he left the spot. He remained at the spot for about 67 hours. Apart from him, other police officials and one lady constable were also present with him for the investigation on the spot and during that time in between they had also gone for getting the medical examination of the injured conducted. After getting the medical examination conducted, complainant had first come to the spot alongwith lady constable directly from the hospital and then went to police station. The site plan was prepared at the instance of the complainant in her presence. It was wrong to suggest that the site plan was not prepared at the instance of the complainant and it was prepared at the police station. Complainant was asked to visit hospital from the spot by him. He had not recorded any statement of the accused on spot. It was wrong to suggest that he had not conducted the investigation in a fair and proper manner. It was wrong to suggest that the investigation was conducted at the behest of the complainant to favour her. When he reached the FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 15 of 34 spot, he did not find any visible injury on the complainant. When he reached the spot, complainant herself told him that she had sustained injury and therefore, he sent her for medical examination. He had not conducted any preliminary inquiry to verify the veracity of the complainant. He did not know if any relative of the complainant was present when he reached the spot. There were about 5 to 7 public persons present on the spot. He had not taken any photographs of the spot. He did not find any personal belongings of the complainant lying on the spot. He had already mentioned regarding preparation of site plan during his investigation. The statement of the witnesses u/s 161 Cr. P.C was recorded by him in his own hand writing at the spot. He had not interrogated the duty officer. The place of incident was well populated area having shops as well as private houses. He had inquired about the incident from nearby shop owners however, they refused to get the statement recorded. He did not know if there were any dispute between the complainant and accused pertaining to the constructions of the same. He had been posted at the present police station since June 2016. He was not aware about any call made by accused on 100 number on 11.06.2016 in the police station against the complainant. He was not aware if on the aforesaid call police officials had reached and what illegal constructions done on behalf of the complainant, to be stopped. He was not aware if several other neighbours of the complainant FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 16 of 34 have filed complaints against her. The entire property in which the dispute had occurred has number 178/14 which has several shops in it. The shop no. 178/4B was the shop situated in the aforesaid property. He did not know if the aforesaid demarcation of shop number has been done by MCD. He did not know if there are other litigation pending between accused and complainant in the court. He was not aware if accused had filed complaints against the complainant on 13.06.2016, 03.07.2016 and 09.07.2016 in the concerned police station. Complainant had written her complaint in his presence at the spot. Complaint was written by other person who was accompanying the complainant. Accused was arrested from the spot at around 8.00pm. He did not remember if the hand writing of the complaint was different. The site plan was prepared after the complainant reached back from medical examination. The place of incident did not have any CCTV camera. It was correct that the gali in which the incident occurred, the end of the same was the dead end. The property(shop) or the place of incident was facing towards South. The statement of Ct. Sangeeta was recorded at the police station. When complainant and Ct. Sangeeta reached back after the medical examination, he was present at the spot. He had not apprehended the accused earlier before his arrest. He alongwith Ct. Sangeeta, other constables, accused had left for the police station from the spot. He had not seized the clothes of the FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 17 of 34 complainant. He had sent the Constable with the rukka at around 05.30pm and the same was received by him at around 07.30pm. He did not remember the injuries which were suffered by witness Akshay. Witness denied the suggestions put to him.
PW8 ASI Hari Singh deposed that on 24.09.2016, he was posted at PS Amar Colony and was on emergency duty from 08.00 AM to 08.00 PM. At around 01.05 PM, he received information of DD No.21A regarding quarrel at A187/4B, Dayanand Colony from the caller mobile No.9891052786. After receipt of aforesaid DD number, he reached at the spot around 01.15 PM, as the said call was marked to him. At the spot, he met the complainant namely Sonu Raj. He verified the mobile number of the caller through Truecaller and name of the caller was revealed as Sonu Raj. Meanwhile, IO SI Kamal reached at the spot regarding the another call of the same incident vide DD No.22A. After reaching, IO SI Kamal who was investigating the present matter, he left the spot. He had brought original Roznamcha register having DD No.21A dated 24.09.2016, PS Amar Colony, copy of the same was compared with the original record and the same was Ex.PW8/A (OSR).
During crossexamination PW8 deposed that he had handed over the DD No.21A at the spot to the IO SI Kamal. It was correct that the address of the caller in DD No.22A was FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 18 of 34 mentioned as A178/14, Dayanand Colony. He had verified the mobile number of the caller of DD No.21A through true caller from his own phone but he had not brought any documentary proof of the same. He had not visited house no. A187/4B, Dayanand Colony after receiving the call but had visited A 178/14, Dayanand Colony as informed by the caller since the caller was present at that address. Witness denied all suggestions put to him.
PW9 Rajbir Singh (Medical Record Technician) deposed that he had brought summons record of MLC No.11717 & 11718 of injured Akshay and Sonuraj dated 24.09.2016. It was prepared by Dr. Rajit Ram Yadav and he identified the signature of the doctor Rajit Ram Yadav which was obtained at point A which were ExPW9/A & ExPW9/B. Dr. Rajit Ram Yadav had left the hospital and his whereabout were not known.
During crossexamination PW9 deposed that the MLC was not prepared in his presence.
4. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 19 of 34
5. Accused examined six witnesses in his defence.
DW1 accused Sanjay Valecha deposed (u/s 315 CrPC) that on 24.09.2016, there was Golden Jubilee Anniversary of his parents and for that purpose, he was arranging a party and went to his office situated at A178/14, Dayanand Colony, Lajpat NagarIV, New Delhi at around 12.001.00 PM. When he opened main staircase gate of his office, complainant and her husband Shankar Raj started abusing him but he did not pay any heed and ignored the same and went to his office. But both of them continued abusing him, thereafter, he called at 100 number after which, police official reached there and took him to Amar Colony police station and sent him to lock up. Police official did not pay any heed upon his complaint. However, he had already made previous complaint against complainant to the police officials. Complainant and her husband had falsely implicated him in the present matter. Complainant used to threaten him as he had made a complaint against her for illegal construction on the ground floor where she was running a beauty parlour. The copy of complaints made against complainant to Deputy Commissioner of Police dated 13.06.2016, to SHO PS Amar Colony dated 03.07.2016 and to Deputy Commissioner of Police dated 17.10.2016, copies of the same were Ex.DW1/A, Ex.DW1/B and Ex.DW1/C. The certified copy of proceeding of FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 20 of 34 civil suit pending between him and complainant vide CS No.52792/2016 titled as Sanjay Valecha Vs. Sonu Raj as Ex.DW1/D (colly) including written statement and vakalatnama of complainant.
During cross examination DW1 deposed that he did not bring any card or other document which suggest that there was golden jubilee anniversary of his parents on 24.09.2016. It was wrong to suggest that there was no golden jubilee anniversary of his parents on 24.09.2016. He did not make any written complaint to the police regarding the incident stated in his examination in chief. Police official did not give him chance to make a complaint despite his request. It was correct that he did not mention the incident as stated in his examination in chief as complainant and her husband started abusing him while he opened the main staircase gate of his office and they continued abusing him till the time he made 100 number call and police official reached there, in his complaint to Deputy Commissioner of Police dated 17.10.2016.
DW1A Mukesh Sharma deposed that on 24.09.2016, at about 12.30 PM to 01.00 PM, at that time he was present at a printing press, he saw Shankar Raj and complainant came along with two police officials. After 5 to 10 minutes, the said police officials apprehended Sanjay Valecha and took him to the FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 21 of 34 police station. He asked police officials why they had apprehended Sanjay Valecha but they directed him to come at police station. He reached police station along with Rakesh, printing press owner. He told police officials that he had already installed three CCTV cameras, one was installed on the wall in front of gali of office of Sanjay Valecha. Police refused to take CCTV camera record in their custody. On that day there was not quarrel occurred between accused and complainant. His gym was situated at A178/ 12, Dayanand Colony, Lajpat Nagar, Delhi24. Police never enquired about the incident from him. There was a dispute between complainant and accused over a saloon shop covering direction of his CCTV cameras. There was only one way of accused as well as complainant's shop and the gali was closed at the end and there was no exit gate except entrance gate in the gali.
During cross examination DW1A deposed that he had not brought any copy of the case pending between complainant and accused. He had not brought the record of FIR NO. 1373/06, PS Lajpat Nagar. He denied all suggestions put to him.
DW2 ASI Yogesh Kumar deposed that he had brought attested copy of PCR Call Details pertaining to the incident occurred on 24.09.2016 at 13:01:13 made by a caller Sanjay Valucha through mobile number 9810075387 and incident FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 22 of 34 occurred on 11.06.2016 at 13:02:03 made by a caller Sanjay Valucha through mobile number 9910075387. Attested copies of PCR Call Details were Ex. DW2/A and Ex. DW2/B. During cross examination DW2 deposed that it was correct that the name of neighbour was not mentioned in the information given by caller in both PCR Call Details Ex. DW2/A and Ex. DW2/B. As per record, the mobile number of caller mentioned in document Ex. DW2/A and Ex. DW2/B were not verified and the mobile number were simply mentioned in the aforesaid PCR Call Detail Report. As per his knowledge, no complaint was reported regarding the aforesaid PCR Call.
DW3 Divya Prakash Gautam deposed that he was registered draftsman vide MCD License No. 2116. On 04.10.2018, he prepared site plan of property bearing no. A 178/14, Daya Nand Colony, Lajpat NagarIV, New Delhi on the request of accused Sanjay Valecha Ex. DW3/A. During cross examination DW3 deposed that he had visited the property bearing no. A178/14, Daya Nand Colony, Lajpat NagarIV, New Delhi. The aforesaid property consists of ground floor and first floor. Accused Sanjay Valecha had requested him to prepare site location plan of aforesaid FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 23 of 34 property. He did not have knowledge regarding the ownership and possessory right of the ground floor and first floor of the aforesaid property.
DW4 Ajay Kumar (Nodal officer, Bharti Airtel) deposed that he had brought certified copy of customer application form pertaining of mobile no. 9810075387, which was in the name of Sanjay Valecha and the same was Ex.DW 4/A and certified copy of customer application form pertaining of mobile no. 9910075387 which was in the name of Sanjay Valecha and the same was Ex. DW 4/B and CDR of mobile no. 9810075387 for the period from 10.06.2016 to 12.06.2016 and CDR of mobile no. 9910075387 for a period from 10.06.2016 to 12.06.2016 and same were Ex. DW 4/C and Ex. DW 4/D respectively along with certificate u/s 65 of Indian Evidence Act which was Ex.DW4/E. He had no record of call details pertaining to mobile no. 9810075387 for the month of September 2016 as the same was automatically deleted from their system as per DOT Guideline, the record of CDR was available only for one year in their CDR Module Fronter System.
During crossexamination DW4 deposed that he had the only record pertaining to aforesaid mobile phone numbers from 12.06.2016 and thereafter, he could not say whether the aforesaid mobile number was in operation or continued with FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 24 of 34 accused Sanjay Valecha or further alloted to some other customer.
DW5 Const. Pramod Kumar deposed that he had brought the record pertaining to DD No. 22A dated 24.09.2016 (PS Amar Colony). The aforesaid document was the true version of DD No. 22A and the same was Ex.DW5/A(OSR).
During crossexamination DW5 deposed that DD No. 22A ExDW5/A was marked to SI Kamal Singh, who was the IO of the present case. It was correct that name of the caller was not mentioned in the DD entry however mobile number of the caller was 9810075387 which was mentioned therein. He could not say the name of the caller of the aforesaid mobile number and as per record, he could not say whether the said mobile number was verified or not. It was correct that as per record, DD No. 21A, dated 24.09.2016 at around 01.05 PM, was recorded in which caller mobile number was mentioned as 9891052786 and DD No. 22A was received at around 01.10 PM. He could not say whether mobile number of DD No. 21 A was also verified or not however, the DD No. 21A was marked to HC Hari Singh.
6. Ld. APP for the state has argued that in the present matter all the witnesses have corroborated the story of the prosecution and there is no contradiction in the testimony of the witnesses and FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 25 of 34 therefore accused is liable to be convicted for the offences charged.
7. However, on the other hand Ld. Counsel for accused has argued that the accused have been falsely implicated by the complainant and it is an admitted fact that the complainant and the accused are residing in a same locality for several years and the complainant always objected to the entry of the accused to his premises which was adjacent to the premises of the complainant. Further, the allegations against the accused for tresspass into the property of the complainant are also not made out since the complainant has failed to mention any specific details of the incidents on which accused had conducted himself in the aforesaid manner. The allegations of the complainant pertaining to beatings and abuses and any such incident are also not substantiated since she has failed to place on record any previous complaints made to the police officials, as stated by her in her complaint. It is further argued that there is no corroboration in the testimony of the witnesses and the statement of the complainant. It is also argued that the complaint is vague and the allegations are fanciful and do not inspire confidence.
8. It is further argued on behalf of accused that the present complaint has been filed by the complainant with the intention to falsely implicate the accused since the accused had filed a civil FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 26 of 34 suit against the complainant regarding illegal construction of the complainant prior to the present complaint filed by the complainant because of which complainant implicated the accused in the present matter. Ld. Counsel for the accused has further argued that there are several contradictions in the testimony of the complainant herself and upon reading the complaint, the statement of the complainant recorded u/s 164 CrPC and her testimony before the court, it is amply clear that the complainant is inconsistent in her stands which is due to the fact that no such incident had ever taken place. The complainant has deposed in her testimony before the court that accused had caught hold of her hand, pushed her down and had torn her wearing saree and blouse upon which she raised alarm. However, in her complaint Ex.PW1/A, the complainant does not disclose regarding the fact that the accused had tried to tear off her clothes upon which she raised alarm. It is further argued that the complainant has stated in her statement recorded u/s 164 CrPC regarding the aforesaid incident in a completely different manner by only stating that the accused had only pulled her vail and pulled up her blouse which are not corroborated with any of the public witnesses who were allegedly present at the spot that is PW Premwati or PW3 Akshay. It is also argued that despite the fact that CCTV cameras were installed in the locality, the CCTV footage was never collected by the IO during investigation. It is FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 27 of 34 also argued that the complainant has been confronted during her crossexamination on several aspects as she improved her statement during her deposition before the court as compared to her complaint or her statement recorded u/s 164 CrPC. It is also argued that the complainant has stated contradictory in respect to the fact whether the accused had run away from the spot or was apprehended from the spot. Since in her complaint Ex.PW1/A the complainant has stated that accused ran away from the spot, however, in her testimony, the complainant had stated that accused was apprehended from the spot in her presence. It is also argued that the alleged call made by the complainant on 100 number was never placed on record though, it was the accused who had made a call at 100 number prior to the complainant. Further the aforesaid fact is also not stated by PW2 or PW3 that a 100 number call was made by the complainant. It is also argued that there are discrepancies in the contents of DD entry No.22A Ex.PW8/A and DD No.22A Ex.DW5/A. It is also argued that the investigation has not been conducted in a fair and impartial manner and the accused has been implicated at the behest of the complainant and there is no corroboration in the testimony of witnesses which casts a shadow on the veracity of the witnesses and the allegations upon the accused being false and fabricated. It is also argued that the site plan is not prepared as per the location of the place where the alleged incident took place and the same is FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 28 of 34 contradictory in terms of the statement of the IO. It is further argued that PW2 and PW3 were the workers of the complainant and interested witnesses and more so, have not supported the story of complainant and are not reliable witnesses.
Court Observation:
9. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the following conclusion:
In the present matter, prosecution examined as many as nine witnesses among which PW1 was the complainant and the victim in the present matter, PW2 and PW3 are the eye witnesses and remaining witnesses examined by the prosecution were formal in nature. In the present matter, the star witness of the prosecution is the complainant, who is also the victim in the present matter. However, if we carefully peruse her complaint Ex.PW1/A, her statement recorded u/s 164 CrPC and her testimony before the court, there are glaring contradictions and no corroboration. Further, there is vast improvement in the testimony of the complainant and the complainant has failed to even narrate the manner in which the incident occurred and has not stated whether the accused was apprehended from the spot or had actually left the spot since the complainant has contradicted the same. Further, during her crossexamination, complainant has FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 29 of 34 contradicted by saying that accused had joined the investigation at police station when he reached there and was probably arrested at PS which is again contradictory to her previous statement. PW1/complainant has admitted during her examination on behalf of accused that accused Sanjay Valecha was already in possession of first floor of the aforesaid shop prior to purchasing of the ground floor of the same by her. She did not know the shop number of the accused. She did not have any knowledge if accused had made a complaint against her to MCD regarding the construction carried on by her. She further admitted that she had not stated the words "randi, tu uppar kyun aai hai" in her complaint Ex.PW1/A and had also not stated the fact that her clothes were torn by the accused, though stated by her during her testimony recorded before the court. Further, PW1, PW2 and PW3 have contradicted in respect to the fact as to who made a call at 100 number. Complainant further admitted during her crossexamination that she had not suffered any injury during the incident and PW Akshay had taken a rented accommodation near her shop and had been working with her for past several years. Further, PW2 had deposed that when she reached the spot upon hearing the commotion, accused had manhandled the complainant, pushed her down and her wearable clothes like her saree and blouse were already removed. Further accused was twisting the arm of the complainant and she raised alarm that is FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 30 of 34 when public persons gathered on the spot and rescued the complainant. However, PW1 during her crossexamination has stated that no public persons were present when the incident occurred which is again contradictory to the testimony of PW2. Further, the factum of removing of clothes of the complainant by the accused as stated by PW2 is not corroborated by PW1 being the complainant herself or by PW3 who was the sole eye witness present at the time of entire incident. PW3 has stated that accused had misbehaved with the complainant and was trying to tear off her clothes and that is when the complainant shouted for help and PW2 reached and intervene to rescue the complainant, however, the aforesaid fact is not stated by PW2 in her testimony. If we carefully peruse the document (photograph) Ex.PW1/D1 which is admitted by the complainant to be the photograph of the place where the incident occurred, the place of incident seems to be crowded place however, when the accused misbehaved with her, she raised alarm but despite the same being around 12.30 PM, none of the public persons reached at the spot as stated by the complainant, though contradicted by PW2 and PW3, is difficult to believe. She further stated that the accused had misbehaved with her on previous one more occasion and she had filed a complaint upon which an FIR was registered, however, no such complaint or copy of FIR was placed on record. She did not remember the dates of any of incidents upon which accused had misbehaved FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 31 of 34 with her on earlier occasion. Further, the IO in the present matter did not examine any public person and did not even prepare the site plan of the spot where the alleged incident had occurred with precision. It is also admitted by PW1 that she did not know the place of arrest of the accused. Further, medical examination of the complainant conducted vide Ex.PW9/B and of PW3 Akshay conducted vide Ex.PW9/A also mentions that there were no external injury on the aforesaid persons and therefore, there was no evidence on record available so as to ascertain if there was any incident of criminal force or assault upon the complainant which was with the intention to outrage her modesty.
10. In the present matter, accused has been charged for the offence u/s 323/506/509/354B IPC, however, none of the ingredients of the aforesaid offences have been proved by the prosecution against the accused.
11. In the present fact and circumstances, accused cannot be held liable for causing any injury to the complainant as neither the complainant has stated in her examination in chief that a criminal force was used against her.
12. The improvement in the version of PW1 is crucial as Ex.
PW1/A is a hand written complaint admittedly prepared by her, soon after the incident and there is no justification or plausible FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 32 of 34 ground as to why the complainant was unable to narrate the incident explicitly or elaborate upon the details particularly when the same has been written on the same day. The very fact that the complainant did not mention about the aforesaid fact and the medical examination also does not substantiate the allegations of criminal assault and even the alleged torn saree and blouse were never seized by the IO during investigation itself shows that the complainant had not suffered any injury upon the alleged assault upon her by the accused and that the accused had with the intention to disrobe the complainant removed her clothes. Further, the allegations of touching the complainant with the intention to outrage her modesty are also not sustainable as the same are completely vague and do not inspire confidence. The complainant has levelled general allegations against the accused and the same are devoid of merit as the complainant has not explained the same even during her statement recorded u/s 164 CrPC. Further, the story of the complainant cannot be believed as she herself has admitted that she had not stated the exact abusive language used by the accused against her in her complaint, or in her statement recorded u/s 164 CrPC. Therefore, there was nothing to lend support to the testimony of PW1 apart from bald averments made in the complaint and her testimony before the court. Therefore, it can be safely concluded that the guilt of the accused has not been proved beyond reasonable doubt.
FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 33 of 34
13. In view of the above discussion and considering the material, available on record, the guilt of the accused is not proved beyond reasonable doubts. Therefore, accused Sanjay Valecha is acquitted for the offences U/s 323/354B/506/509 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 23.04.2019 Metropolitan Magistrate02
(Mahila Court), SouthEast,
Saket, New Delhi.
Digitally signed
by SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2019.04.24
16:51:40 +0530
FIR No. 593/2016; PS Amar Colony State Vs. Sanjay Valecha 34 of 34