Delhi District Court
Fir No. 332/2014 State vs . Jailer Singh; Ps Oia 1 Of 17 on 27 October, 2018
In the court of Ms. Sheetal Chaudhary Pradhan, Metropolitan
Magistrate (Mahila court (SouthEast), Saket Courts, New Delhi.
FIR No. 332/2014
PS: OIA
U/s : 354/457 IPC
State v. Jailer Singh
JUDGMENT
Date of institution : 06.06.2016
Cr.C No. : 87264/2016
Name of the complainant : As per chargesheet.
Name & address of the accused : Jailer Singh
persons S/o Sh. Vijay Bahadur
R/o Village Darivaya,
PS Bauksa, Dist. Jaunpur, U.P.
Offence Complained of : U/s 452/354 IPC
Offence Charged of : U/s 354/457 IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted
Date of arguments : 26.10.2018
Date of announcing of order : 27.10.2018
BRIEF FACTS:
1. Brief facts of the case which are stated by the complainant in her complaint are that on 10.05.2014 her sisterinlaw namely Aarti FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 1 of 17 had invited her alongwith her husband at her jhuggi no. C10, Mazdoor Camp, Okhla PhaseI, New Delhi, since she had to leave for her village and wanted the complainant to lookafter her shop in the absence of her sisterinlaw. On 10.05.2014, when the complainant was looking after the house and shop of her sisterinlaw. On 11.05.2014 in the evening her husband was away for his work and complainant was alone in the aforesaid jhuggi alongwith her two children and was sleeping after bolting her door on that day, at around 03:30 a.m. while she was sleeping she found that somebody was touching her feet upon which she got up. She found that accused was trying to lift the saree of the complainant. Accused was known to the complainant since he used to often come to the shop. Thereafter, complainant raised alarm and accused ran away from the spot in his truck bearing no. HR38R4001. Due to the aforesaid act of the accused the latch of the jhuggi was broken and the same was found lying on the ground.
2. Pursuant to this complaint dated 12.05.2014 against the accused, FIR was registered on 12.05.2014 and the matter was investigated. Charge sheet was filed on 06.06.2016. The Court took cognizance of offence and summoned the accused. Charge was framed against accused Jailer Singh vide order dated 30.03.2017 for the offence punishable U/s 354/457 IPC. Accused pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 2 of 17
3. In order to prove its case, prosecution has examined Six (06) witnesses during trial.
PW1 Complainant as per list of witnesses deposed that on 10.05.2014, she came at Delhi to the jhuggi of her sisterinlaw on her calling her because she alongwith her husband was going to her native place at Etah, UP. On 11.05.2014 her husband had to attend night duty and he left the jhuggi leaving her with my two minor children. In the intervening night of 11/12.05.2014 she alongwith her children was sleeping inside the jhuggi and at about 3.30am, accused entered the jhuggi after breaking the kundi of the door and he caught hold of her legs while she was sleeping. After touching her legs, she woke up and saw that accused Jailer Singh was holding her legs and at that time, she had worn Sari. Suddenly, she sat on the bed and raised alarm, due to which, accused Jailer Singh, ran away in his vehicle. The registration number of that vehicle was ....4001. She did not remember its complete number. The broken kundi was found lying on the floor, which was later on taken by police. On the next morning, she went to PS where her statement was recorded as complaint and was Ex.PW1/A. Thereafter, police came at the place of incident alongwith her and she had shown him place of incident and he prepared site plan at her instance Ex.PW1/B. The abovesaid broken kundi was taken by police vide memo Ex.PW1/C. Thereafter, her statement under section 164 Cr.P.C. was recorded vide Ex.PW1/D. FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 3 of 17 Accused was arrested later in her presence vide memo Ex.PW1/E. His personal search was conducted vide memo Ex.PW1/F. During crossexamination PW1 deposed that she did not know accused Jailer Singh. However, he used to visit the shop of her relative. She did not remember the date of the of incident since she was illiterate. She did not call on number 100 after the incident. At the time of incident, she was sleeping and it was only when the accused touch her she got up. The tea shop of her sister in law(relative) was opened only till 10:30 to 11:00 P.M. The name of her sister in law was Aarti Devi and she was residing in Delhi since their childhood. She lived in Noida for past 12 years. It was incorrect to suggest that she used to sit on the tea shop during most part of the day. She visited the house of her sister in law 02 days prior to the date of incident. She could not tell the dimensions of the tea shop however, the same was small as it is inside a Jhuggi and comprises of only one room. It was correct that the place of tea shop is populated however she did not know if there were people in the locality till late night. It was wrong to suggest that she knew the accused for past many years. It was wrong to suggest that he often visited the tea shop for taking tea. Apart from tea her sister in law also sold biscuits in the shop. It was wrong to suggest that Ganja was also sold on the shop. It was wrong to suggest that accused had consumed liquor when he entered the Jhuggi. It was wrong to suggest that she had taken Rs 1000/ from Jailer Singh. It was wrong to suggest that she had called the accused on the date of FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 4 of 17 incident in the Jhuggi to return the aforesaid amount. It was wrong to suggest that accused had asked her to return the aforesaid money. It was wrong to suggest that she had called the accused to return the amount but instead locked the Jhuggi and left. Accused has touched her near her ankle. She did not raise alarm since it was night time however she had given a call to her Devar since she only had his mobile number. On the next day of the incident, she informed regarding the same to Mahila Cell.
PW2 Gulab Chand (husband of the complainant) deposed that on 10.05.2014, his wife i.e. the complainant came to the jhuggi of his sister Arti, situated at C10, Majdoor Camp, Okhla PhaseI, New Delhi, on her calling for taking care of her jhuggi and shop as his sister alongwith her husband was going to her native place at Etah. On 11.05.2014, he had to attend his night duty and therefore, he went to his work place at Noida leaving his wife and two minor children aged about 3 years and 56 months old respectively. On 12.05.2014 at about 7.00am he came back to jhuggi and saw that his wife was weeping and she was scared and the kundi of the door of jhuggi was found broken and lying at the floor. On inquiry, his wife told him that at about 3.30am of the intervening night of 11/12.05.2014, while she was sleeping inside the jhuggi, accused Jailer Singh came inside jhuggi and caught hold her legs, due to which she woke up and sat up on the bed and raised alarm and accused ran away from there in his vehicle, which was parked outside the jhuggi. Thereafter, he FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 5 of 17 alongwith his wife went to PS and statement of his wife was recorded as complaint. Some other ladies of the locality also accompanied them to the PS. Police came at his jhuggi alongwith them and prepared site plan at the instance of his wife and took possession of the broken kundi in his presence. Police inquired from him and recorded his statement. Accused Jailer was known to him as he used to come to the shop of his sister which was situated adjacent to the jhuggi of his sister. Accused was correctly identified by witness. During crossexamination PW2 deposed that he came to know about the incident from his wife on 12th that is after two days of the incident. He was informed by her when he returned home after performing his office duties. They had complaint regarding the same to the Mahila Cell. He did not know Jailer Singh and he was never his friend. He only knew that accused used to visit the tea shop.
PW3 HC Narender deposed that on 30.05.2014, he was posted at PS OIA and he joined the investigation of present matter with SI Bhoj Raj. On that day, he alongwith IO went to ATW (Aggarwal Take away) and met the complainant and inquired from her about the present incident. Thereafter, he alongwith IO and complainant went to TATA Steel, OIA, New Delhi. Thereafter, complainant pointed out towards one man wearing one white shirt and also said that he was the said person who had misbehaved with her in the morning of 12.05.2014. Thereafter, they inquired about the name from that man who informed them that his name was Jailer Singh.
FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 6 of 17 Thereafter, they interrogated the accused and his disclosure statement was recorded vide Ex.PW3/A and also informed regarding the same to the relatives of the accused. IO prepared the arrest memo and accused was arrested vide memo already Ex.PW1/E and his personal search was conducted vide memo already Ex.PW1/F. Thereafter, they informed regarding the arrest of the accused to his brother. Supplementary statement of the complainant u/s 161 CrPC was also recorded. Thereafter, complainant was discharged and accused was taken to AIIMS hospital for medical examination and produced before the court. IO recorded his statement.
During crossexamination PW3 deposed that they met the complainant around 10.15 AM at ATW shop. At that time, complainant was alone. The accused was arrested from the place where it was a road. He did not remember the colour of the pant of accused worn by him at the time of arrest however, it was around 12.00 Noon. IO had obtained the signatures of the complainant as well as his on the arrest memo. No public person was examined by the IO at that time. The supplementary statement of the complainant was recorded at the spot. The accused was produced before the court on 30.05.2014.
PW4 SI Prempal (Duty officer) deposed that on 12.05.2014, he was posted at PS OIA. On that day, while he was in the police station when the complainant alongwith her husband came at the police station and got her statement recorded at the police station FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 7 of 17 regarding the factum of the accused Jailer Singh having misbehave with her. Upon the dictation of the complainant, he recorded her statement and prepared the rukka vide Ex.PW4/A. On the basis of rukka, FIR was registered on the same day and the investigation of the present matter was marked to SI Bhoj Raj. He had handed over the aforesaid rukka to the Duty Officer for registration of FIR. During crossexamination PW4 deposed that his duty hours on the date of incident were from 8.00 AM to 8.00 PM. The complainant had visited the police station around 3.004.00 PM. Th complaint was written by him in Hindi.
PW5 SI Bhojraj (IO) deposed that on 12.05.2014, he was posted as SI in PS OIA. On that day, the investigation of present case was marked to him and concerned Duty Officer had handed over original rukka and copy of FIR to him. Husband of complainant namely Gulab Chand was also present at the PS at that time. Thereafter, he alongwith Gulab Chand and Ct. Ajay went to the residence of complainant i.e. Jhuggi No. C10, Majdoor Camp, Okhla PhaseI, New Delhi. He prepared site plan at the instance of complainant which was Ex. PW1/B. Complainant had handed over one bolt / chitkani of main door of her jhuggi to him which was put into white cloth pullanda sealed with the seal of "BS" and seized the same vide memo Ex.PW1/C. Seal after use was handed over to Ct. Ajay. Thereafter, he recorded supplementary statement of the complainant. Case property was deposited in the malkhana. On FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 8 of 17 30.05.2014, he alongwith Ct. Narender and complainant were searching the accused in the locality of OIA, PhaseI and accused Jailer Singh was arrested opposite to Tata Steel, Okhla, phaseI, at the instance of complainant and his personal search was conducted vide memo Ex.PW1/E and PW1/F. He interrogated accused Jailer Singh and recorded his disclosure statement vide memo Ex.PW3/A. Accused was sent to lockup after his medical examination. He recorded statement of the witnesses u/s 161 Cr.P.C. During the course of investigation, statement u/s 164 Cr.P.C. of the witness was got recorded and the copy of the same was attached in the file. After completion of investigation challan was prepared and filed before the Court. The case property was produced before the court and was correctly identified by the witness and was Ex.P1. During crossexamination PW5 deposed that the site plan was prepared at the spot bear his signature and the signature of complainant. At the time of recovery of case property no other independent public person was present and the same was handed over to him by complainant. He reached at the spot in uniform. He requested public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. He did not give any notice to the person who refused to join the investigation. Complainant was not sent for her medical examination as she had not sustained any external injury. It was wrong to suggest that no bolt/chitkani was recovered from the spot and the said bolt was FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 9 of 17 planted against the accused with connivance of complainant. The aforesaid bolt was found to remove from the middle side portion of the main door of complainant's jhuggi. It was wrong to suggest that accused was falsely implicated by the complainant as she did not want to pay Rs.1,000/ to accused which was due over her.
PW6 HC Padam Singh deposed that on 12.05.2014, he was posted at PS OIA as Duty Officer and on the basis of rukka, he registered the present FIR Ex.PW6/A and rukka was Ex.PW6/B. During crossexamination PW6 deposed that his duty hours were from 04:00 p.m to 12:00 midnight and he received original rukka at around 05:30 p.m.
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.
5. Accused examined two (02) witnesses in his defence.
DW1 Rakesh Kumar (friend of the accused) deposed that he was working with the accused as a helper on his crane for past 10 12 years. Accused was known to him as he was a driver of the crane for past 1012 years. In the year 2014 however, he did not remember the date, it was around 3.004.00 AM in the morning, when he alongwith the accused were having tea on the tea shop of the sister in FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 10 of 17 law of the complainant. At that time the sister in law of the complainant was away to Noida and the complainant was looking after the tea shop. Thereafter, accused knocked the door of the aforesaid lady/complainant since she was having some amount of Rs.1000/ due on her which was given by the accused. At that time, the husband of complainant was also present inside the jhuggi. However, upon asking of the accused from the complainant for his money, they started having a quarrel with the accused. Thereafter, he did not know what conspired between the accused and the complainant.
During cross examination DW1 deposed that owner of the aforesaid crane was Netrapal. He did not have any documentary proof by which it could say that he was working as a helper on the aforesaid crane with accused. Accused has given an amount of Rs.1000/ in denomination of 1000X1 to the complainant in his presence as complainant lends the same from accused one week before the day of incident. He did not accompany the accused while he was entering into the jhuggi. No receipt was made by accused at the time of giving aforesaid amount to complainant. On the very next day of incident, he came to know that complainant had filed a complaint against accused. He did not visit the police station to state that aforesaid incident as stated in his examination in chief.
DW2 Kishan (friend of the accused) deposed that he was having a shop No. C62, Okhla, PhaseI, New Delhi which was FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 11 of 17 adjacent to the shop of the complainant for past 1012 years. He was known to the accused for past 1012 years. Accused had been falsely implicated in the present matter and the incident narrated by the complainant in her complaint did not take place. Accused did not misbehave with the complainant. It was the complainant who had taken Rs.1200/ from the accused and when he demanded, she got offended and implicated the accused in a false matter. On the previous day from the date of incident, in the morning complainant had told the accused to collect the money from her on the next day morning while he would be taking his truck. On the next day morning, at around 5.00 AM when the accused went to the shop of the complainant to demand his money, she again refused to give and asked him to come next day and had shut her door. When the accused again knocked the door, the same was closed with a brick and the said brick fell down because of which the door got opened and the complainant started quarreling with the accused and implicated him in the false matter. Accused did not commit any offence and did not touch or misbehave with the complainant and he was present when the said incident occurred since he had gone to take tea.
During crossexamination DW2 deposed that his shop is for loading and unloading of the goods from the truck. His shop used to be open 24 hours. The shop of the complainant was situated on the opposite side of the road. Complainant demanded money for an amount of Rs. 1,000/ from the accused for playing gambling on the FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 12 of 17 previous date of incident. On the date of incident, accused had gone to shop of the complainant to ask for Rs. 1,000/ and at that time, DW2 was also present in the shop of the complainant. After the incident, police officials reached the spot within 15 minutes. Complainant had made a call to the police and DW2 had told the police that accused was demanding his Rs.1,000/ given to the complainant and the complainant had falsely implicated him. He was 5th pass and had not given any written complaint to the police. Accused was apprehended in his presence and was taken to police station. He did not visit the police station and did not make any complaint against the complainant regarding false implication of the accused. Witness denied all suggestions put to him.
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 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 were known to each other and it was the complainant who had falsely implicated the accused since he demanded his money from the complainant which she had borrowed from the accused. It is further argued that there is no corroboration in the testimony of the FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 13 of 17 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 and therefore, accused is liable to be acquitted. Further despite the fact that the alleged place on incident was a thickly populated residential area, none of the public persons were examined the prosecution. It is also argued that admittedly on the alleged date of incident, the complainant gave a call to her brother in law but the same brother in law was never examined as a witness. Further, despite having made allegations of misbehaviour upon accused, complainant did not even made a call at 100 number and there was delay in lodging of FIR as the same was only an after thought. Therefore, it is prayed on behalf of accused that he is liable to be acquitted.
Court Observation:
8. 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 six witnesses among which PW1 was the complainant and PW2 was the husband of the complainant and all 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 FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 14 of 17 Ex.PW1/A, her statement recorded u/s 164 Cr.PC and her testimony before the court, there are glaring contradictions. Though the complainant has stated during her examination in chief that when incident occurred, she raised alarm but during her crossexamination she has stated that when accused touched her she did not raise alarm as it was night time but she made a call to her brother in law. Further, apart from the aforesaid contradiction, the complainant has also narrated that the place of incident is thickly populated however, none of the public persons have been examined by the prosecution. PW2 being the husband of the complainant is only a hearsay witness since he was not present at the time of incident and the complainant narrated the incident to him after two days. Further, PW2 has admitted during crossexamination that accused was not known to him but at the same time admits that accused used to visit the shop of his sister which again are contradictory. PW2 has deposed that after the incident, several ladies from the locality had accompanied the complainant to the police station but none of the aforesaid ladies were examined as a witness by the prosecution. Further, the accused was apprehended after twenty days of the registration of FIR and there was no endeavour on behalf of the prosecution to arrest the accused and there is no justification as to why no test identification parade of the accused was got conducted when the FIR was registered without the name of the accused. Further, there is vast improvement in the testimony of the complainant and the complainant has failed to even FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 15 of 17 narrate the manner in which the incident occurred and has not even stated the phone number from which the alleged 100 number call was made. PW1/complainant has admitted during her examination that the place of incident was a crowded place however, when the accused misbehaved with her, she raised alarm but none of the public persons reached the spot. Further, the complainant did not disclose regarding the fact of picking up the brick to hit the accused at the time of incident in her testimony recorded before the court or in her complaint Ex.PW1/A however, she has stated so in her statement recorded u/s 164 CrPC.
9. In the present matter, accused has been charged for the offence u/s 354/457 IPC, however, none of the ingredients of the aforesaid offences have been proved by the prosecution against the accused.
10. In the present fact and circumstances, accused cannot be held liable for causing the offence of outraging the modesty of the complainant or that he trespassed into the house of complainant with the intention to commit any offence.
11. The improvement in the version of PW1 is crucial as Ex. PW1/A is a hand written complaint admittedly prepared by her on the next day of incident and there is no justification or plausible 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 FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 16 of 17 when the complainant was not under immediate shock. 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 during her crossexamination that at the place of incident, there were several public persons but none was examined by prosecution. 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.
12. 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 Jailer Singh is acquitted for the offences U/s 354/457 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 27.10.2018 Metropolitan Magistrate02
(Mahila Court), SouthEast,
Saket, New Delhi.
Digitally signed
by SHEETAL
CHAUDHARY
SHEETAL PRADHAN
CHAUDHARY
Date:
PRADHAN 2018.10.27
16:51:09
+0530
FIR No. 332/2014 State Vs. Jailer Singh; PS OIA 17 of 17