Delhi District Court
State vs . Dheeraj Sharma on 30 November, 2011
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IN THE COURT OF MS. PRIYA MAHENDRA
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
STATE Vs. Dheeraj Sharma
FIR No.494/07
P.S. : Mehrauli
U/S 354/506/34 IPC
THE JUDGMENT
1. DATE OF INSTITUTION OF CASE : 22.07.2008
2. SERIAL NUMBER OF THE CASE : 288/2
3. DATE OF COMMISSION OF OFFENCE : 03.07.2007
4. NAME OF THE COMPLAINANT :Ms. Sapna
5. NAME OF THE ACCUSED & ADDRESS : Dheeraj Sharma s/o
Nand Lal Sharma
R/o House no. 305,
Dera More, Fatehpur
Beri, New Delhi.
6. OFFENCE COMPLAINED OF :U/S 354/506/34 IPC
7. THE PLEA OF THE ACCUSED : Pleaded not guilty.
St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli
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8. DATE OF RESERVE OF JUDGMENT : 30.11.2011
9. THE FINAL JUDGMENT : Acquitted.
10.THE DATE OF FINAL JUDGMENT :30.11.2011
BRIEF REASONS FOR DECISION OF CASE:
1. The case of the prosecution is that the on 03.07.2007 at about 10.00 p.m. near CSKM School, near Satbari in the area of PS Mehrauli, accused Dheeraj Sharma (along with one coaccused) in furtherance of their common intention outraged the modesty of the complainant Sapna and her friend Priya, and threatened them to kill them. The FIR was registered on the complaint of the complainant and investigation was carried out.
2. Charge sheet under Section 354/506/34 IPC was filed in the court for accused Dheeraj Sharma as other accused could not be traced. Accused Dheeraj Sharma was supplied the documents in compliance of section 207 Cr.P.C and vide order dated 23.04.2009 notice for offence under Section 354/506/34 IPC was served on accused Dheeraj Sharma by my Ld. Predecessor, to which he pleaded not guilty and claimed trial.
St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 3
3. In order to prove its case, the prosecution has examined four witness and the prosecution evidence was closed vide order dated 18.11.2011.
4. PW1 HC Laxmi Chand deposed that on 03.07.2007 he was posted as HC in PCR I/C E 61. His duty hours were 08.00 p.m. to 08. a.m. On that he received a call through wireless set that in Rajpur Jungle (forest) some body is trying to do wrong things with girls. On receiving this call they reached to the spot i.e. in front of CSKM School. There two girls Sapna and Priya met them. The said girls told him that two persons had brought them in a car. He along with said girls went in search of said persons. After 50100 yards he saw that car was overturned and two persons were standing there. The said girls told and indicated towards them by saying that these were the said persons who had brought them and misbehaved with them. Out of these two boys, one boy ran away. He apprehended the 2 boy whose name was Dheeraj. After some time nd local police reached there. He handed over the accused Dheeraj, both girls and car to ASI Durgesh Kumar. IO recorded his statement and they left the spot. In his crossexamination, he deposed that when they received the call his PCR van was near Chattarpur and it was approximately 09.00 p.m. Caller told her name, whose name was Sapna. She called from a mobile phone but he does not remember. Caller also told him about the spot. They reached at the spot about St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 4 3045 minutes. The spot was 810 Kms from the spot where they were standing. When they reached at the spot said girls were coming from the said of chatterpur Mandir from the left side of the road. When the said girls saw their van they stopped, they came ouy from van and enquired from them. Ct. Rajesh was the driver of Van. On the girl was wearing jeans and T shirt and other was wearing tight lady dress. Probably one girl was wearing jacket. He could not tell the name of girls who were wearing which dress. He did not see any injury on their person or any mark on their dress. He voluntarily added that as it was dark. He did not call the IO. He only informed the police control room at about 09.4510 p.m. The distance between the CSKM School and the girls met them was 200300 yards. No public persons gathered there. IO reached at the spot where the car was overturned after 20 minutes. The distance of the spot from the school was 100 meter. There was light on the road. There was no turn between PCR Van and car which was overturned. They were enable to see the car from their PCR Van. The car was overturned in the middle of the road. The car was not overturned due to accident it was overturned due to over speed. Passenger of said car might have injured. They reached within 5 minutes from the spot where they stopped the PCR van to the spot where the car was lying overturned. There no security guard in the nearby farmhouse. The distance of PS Mehrauli from the spot was 810 Kms. He does not remember by which St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 5 vehicle IO reached at the spot. It is correct that there are 24 breaker and red lights between PS Mehrauli and spot. He denied the suggestion that he has deposed falsely or that accused has been falsely implicated in the present case when he was coming from the house of his relative and he stopped to see the accidental car or that he has falsely without any reason apprehended him or that he is deposing falsely at the instance of IO.
5. PW2 HC Man Singh, deposed that On 342007 he was posted as Ct. PS Mehrauli and on that day he along with IO ASI Durgesh reached at spot of occurrence at Jungle Satpari where HC laxmi Chand along with PCR staff were present and they produced Sapna, Priya and accused Dheeraj and a vehicle. Co accused has escaped from the spot. Statement of complainant Sapna was reduced in writing and made endorsement on her statement and prepared rukka and handed over the same to him for registration of FIR at PS. He went to PS, got registered the present case FIR, reached back at the spot along with copy of FIR and rukka and handed over the same to IO. The accused Dheeraj was arrested vide arrest memo Ex. PW2/A and PSM Ex. PW2/B and Maruti Esteem Car was also seized vide Ex. PW2/C. The accused Dheeraj was medically examined at AIIMS. He identified the accused Dheeraj in the court. He further stated that he can also identify the car if shown to him. During his cross St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 6 examination, he deposed that at the time of receiving of call they were at PS. Call was received by DO. DO informed the IO and IO made acquainted him with the facts of call. Spot of occurrence is situated near Satbari CSKM School. School is surrounded by farm houses and jungle and open places. North side is open. They were on motorcycle. He can not tell its number but was driven by IO. They stopped their motorcycle near PCR Van. They had met I/C PCR HC Laxmi Narain and he can not tell the number of PCR and number of persons present in it. He can not tell as to which direction the PCR Van was standing while they reached at the spot. They took about half an hour to reach spot of occurrence from PS. It was a rainy night. At that time of their visit rain was not falling. He can not tell description of co accused who escaped from spot. No public person was present at that time. He can not say as to whether any farm house was opened or not. He denied the suggestion that nothing had happened in the manner what he stated above or that he is deposing falsely at the instance of senior officers.
6. PW3 SI Liyaqat Ali, was the Duty Officer. He deposed that on the day of incident he received a rukka through Const. Man Singh sent by ASI Durgesh. He further deposed that on the basis of rukka he registered the present FIR. He produced the original copy of FIR in the court which has been exhibited as PW3/A and his St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 7 endorsement on rukka is Ex. PW3/B. In his crossexamination he deposed that the copy of FIR which is attached in the judicial file does not contain his signatures. He denied the suggestion that he is deposing falsely.
7. PW4 ASI Durgesh Kumar deposed that on 03.07.07 he was posted as ASI at PS Mehrauli. On that day at about 07.00 p.m. on receipt of DD no. 24A he along with Const. Maan Singh reached at CKSM School Satbari. There I/C PCR Van, complainant Sapna, Priya and accused Dheeraj Sharma, who is present in the court along with car bearing no. DL9C M 6174 met them. Statement of Kumari Sapna was recorded which is Ex. PW4/A, bearing his signature at point X. Rukka was prepared which is Ex. PW4/B, bearing his signature at point X. Thereafter present case FIR which is Ex. PW3/A was got registered through Const. Maan Singh. Site plan was prepared at the instance of complainant which is Ex. PW4/C, bearing his signature at point X. The said maruti esteem car was seized vide seizure memo Ex. PW4/D, bearing his signature at point X. Statement of witnesses was recorded. The accused Dheeraj, who was already apprehended was arrested and his personal search was conducted vide memos Ex. PW4/E and Ex. PW4/F, bearing his signature at point X. The said car was deposited in malkhana. Information regarding arrest of the accused was given to the father of accused telephonically. Other accused namely Sachin could not St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 8 traced due to incomplete address. After completion of investigation, charge sheet was prepared and filed in the hon. Court. He further stated that he can identify the said car, if shown to him (identity of the car is not disputed by accused). In his crossexamination, he deposed that he had asked for identity proof of the complainant but she did not produce the same. On the first day mother of the complainant met him but thereafter she does not meet him. The mother of complainant did not tell him her permanent address. He denied the suggestion that he had not properly conducted the investigation in the present and falsely implicated the accused in the present case or that he is deposing falsely.
8. The statement of accused was recorded u/s 281 Cr.P.C. and all the incriminating evidence was put to the accused. The accused denied all the allegations leveled against him and stated that he has been falsely implicated in the case. The accused stated that he was crossing from the spot and he saw a car, in turtle condition and he stopped there. Some police officials reached there and falsely implicated him in the present cae. The accused opted not to lead any evidence in his defence.
St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 9
9. I have heard the Ld. APP for State and Ld. counsel for accused and carefully perused the material on record. It is argued by Ld. APP for State that sufficient material is on record to convict the accused. On the other hand it is argued by counsel for accused that prosecution has failed to prove its case against the accused beyond reasonable doubt. Therefore, it is contended by the counsel for the accused that the accused is entitled to be acquitted.
10.The material witnesses in this case is the complainant Ms. Sapna and her friend Priya. The summons sent to complainant and to her friend repeatedly received back with the report that no person is residing at the given address by the name of complainant Sapna or her friend Priya. Thereafter summons were sent to complainant and her friend Priya through IO for 30.08.2011. However the summons sent to complainant were received with the report of IO that at the given address one landlady Brahma Devi was met and she stated that complainant Sapna was earlier residing there and has left the said address. IO also tried to contact the complainant on mobile but all in vain. Report of IO was also supported by statement of landlady Brahma Devi. The IO affirmed his report on Oath in the court and his detailed report is Ex. CW1/A. Summons sent to PW Priya received back with the report of IO that at the premises one landlady namely Pushpa Malik was met and she stated that there is no person St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 10 by name of Priya at the said address and she was earlier residing there as a tenant and has left the address. Report of IO was also supported by statement of landlady Pushpa Devi. The IO affirmed his report on Oath in the court and his detailed report is Ex. CW1/B. IO also stated that he has made all best efforts to trace out the complainant and PW Priya but they are not traceable. Thereafter, last and final opportunity was given to the prosecution to examine the complainant and PW Priya and summons were sent to them through DCP. However, summons issued to complainant Sapna received back with the report that at the premises one person namely Sushil Kumar was met and stated that the said house is owned by Rajesh Sakla and they are residing their for last 45 years and there is no person by name of complainant at the premises. Summons sent to PW Priya through DCP received back with the report that at the premises one person namely Yogesh Malik was met and he stated that said property is owned by him and he has been residing there from past 5 years and there is no person by name of Priya at the said address. Thus, the complainant and other PW Priya were not found to be traceable and prosecution failed to examine them despite sufficient opportunities.
11. The deposition of the complainant Sapna and her friend Priya was sine qua non for establishing the charges against the accused as they could have proved, as St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 11 to whether any such incident on 03.07.2007 as alleged by prosecution in fact occurred or not and if occurred who was the accused. The complainant and PW Priya was the star/material witness of the case and their absence has proved fatal for the prosecution story as neither the incident nor the identity of the accused person can be established.
12.Record further reveals that the remaining witnesses examined by the prosecution are only formal witnesses who came into the picture only after the alleged incident had occurred and information in this regard was received by them. None amongst them is the eye witness of the incident.
13. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true" and "must be true".
14. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli 12 provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB) , 1997(1) R.C.R. (Criminal) 662). The prosecution has failed to discharge the said onus. Therefore the accused persons Dheeraj Sharma is acquitted of offence under Section 354/506/34 IPC Bail bonds & Surety bond discharged. Endorsement, if any stands cancelled. File be consigned to record room. Announced in the open court on this day of 30 November 2011 th (PRIYA MAHENDRA) Metropolitan Magistrate:
Mahila Court South Delhi, Saket Court Complex, New Delhi St. Vs. Dheeraj Sharma FIR no. 494/04, P.S. Mehrauli