Delhi District Court
State vs Meena & Ors. on 9 May, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 372/01
PS Mangol Puri
State Vs Meena & Ors.
Date of Institution: 08.04.2002
Date of Judgment: 09.05.2018
JUDGMENT
(a) Serial Number of the case : 534329/2016
(b) Date of commission of offence : 06.05.2001
(c) Name of the complainant : Savitri Devi
(d) Name of Accused, his : 1.Meena,
parentage & residence W/o Sh. Allaudin,
2. Israr Ahmed
S/o Sh. Allaudin
Both R/o J-313, Mangol Puri, Delhi.
3. Kunal (Juvenile)
S/o Sh. Allaudin
(e) Offence complained of : Under Section 448/427/34 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final arguments heard on : 24.04.2018
(h) Final Order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The accused Meena, Kunal (declared Juvenile vide order dated 31.01.2014) and Israr Ahmad have been sent to face trial for the FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 1 of 12 commission of offences punishable under Section 448/427/34 of the Indian Penal Code upon the allegations that on 06.05.2001, at about 8:50 AM, at J-228, Mangol Puri, Delhi, in furtherance of their common intention, they had trespassed into the tenanted shop of Smt. Savitri Devi and threw away her belongings causing mischief.
2) After completion of investigation, chargesheet was filed, cognizance of offences was taken, the accused were admitted to bail and copy of the chargesheet alongwith the documents were supplied to them in compliance of the provisions of Section 207 of the Code of Criminal Procedure.
3) Charge was framed against the accused Meena, Israr Ahmad and Kunal (since declared Juvenile) for offences under section 448/427/34 IPC vide order dated 22.03.2004 to which they pleaded not guilty and claimed trial.
4) To prove its case and discharge the initial burden of proof cast upon it, the prosecution examined 5 witnesses.
5) PW-1 ASI Satish Chander, being the Duty Officer proved the factum of recording of the present FIR vide Ex. PW-1/A upon a rukka sent by SI Ram Niwas through Kishan Kumar. He was not cross-examined on behalf of the accused.
6) PW-2 Savitri Devi, being the Complainant testified as to the incident occuring three and half years prior to 11.10.2004 on a Sunday when FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 2 of 12 she had opened the shop at about 8:30 AM when the accused Meena, Kunal (since declared juvenile) and Israr came in the shop, threw out the goods and articles which were lying in her shop, got her out of the shop, locked the aforesaid shop and ran away. She further testified that some one informed the PCR which came, local police also came and recorded her statement Ex. PW-2/A. She also identified her signatures on the memos Ex. PW-2/B, Ex. PW-2/C, Ex. PW-2/D, Ex. PW-2/E, Ex.PW-2/F and Ex. PW-2/G. She was cross- examined at length by the Ld. Defence Counsel.
7) PW3 Ct. Krishan testified as to having accompanied SI Ram Niwas on 06.05.2001 upon receipt of DD No. 28 B to J-228, Mangol Puri where they met complainant Savitri Devi who gave her statement upon which IO prepared rukka and handed it over to PW3 who got the FIR registered from the PS and handed over the copy of FIR and original rukka to the IO after returning to the spot. He further testified as to the IO having prepared the site plan and having arrested the accused Meena, Israr and Kunal vide memos Ex. PW-2/B, Ex,. PW- 2/C and Ex. PW-2/D upon the instance of the complainant. He further testified that the personal search of the accused was conducted vide memos Ex. PW-2/E, Ex. PW-3/A and Ex. PW-3/B. He correctly identified the accused in the Court and also identified his signatures on the documents He was not cross examined on behalf of the accused despite opportunity.
8) PW4 Jitender ie the son of the complainant was initially not cited as a witness but was examined upon an application under Section 311 FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 3 of 12 Cr.P.C filed by the State. PW4 Jitender testified that in 2001 he was running a shop by the name of Rahul Rangeela, Gift and Stationary shop at J-228, Ground floor, Mangol Puri, Delhi and was also dealing in grocery items which shop had been taken on rent from Allaudin on a monthly rent of Rs.1000/-. He further testified that in the fifth month of 2001 at about 6:00 AM, his mother Savitri Devi had opened the shop and he was at his house when he was informed by his neighbours that the goods of his shop had been thrown away outside the shop by Meena, her sons Kunal and Israr upon which he went to the shop and found the goods of his shop lying on the road, the shop was found locked and his mother Savitri Devi was sitting outside the shop. He further testified that the accused persons had put their own lock. He correctly identified the accused in the Court. He was duly cross-examined on behalf of the accused. However, PW4 Jitender was not present at the place of occurrence at the time of occurrence and hence his testimony being heresay cannot be looked into.
9) PW5 SI Ram Niwas being the Investigating Officer testified as to having received a call on 06.05.01, at around 9:35 am, regarding articles being thrown out of the shop upon which he reached at J-228, Mangol Puri alongwith Ct. Krishan where they met the complainant Savitri Devi and recorded her statement. He testified as to having inspected the spot and found the shop locked from outside with grocery and stationay articles lying outside the shop. He testified as to having the spot photographed vide Ex. P1 to P3, as to having written the tehrir Ex. PW-5/A on the statement of complainant Savitri Devi and getting the FIR registered through Ct. Krishan and as to having FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 4 of 12 prepared site plan Ex. PW-5/B upon return of Ct Krishan. He further testified as to having arrested the accused Meena, Kunal and Israr at the instance and in the presence of the complainant vide memos Ex. PW-2/B, Ex. PW-2/C and Ex. PW-2/D with accused Meena being arrested in the presence of W/Ct Meena who has been called from the PS and the accused were also personally searched vide memos Ex. PW-2/E, Ex. PW-3/A and Ex. PW-3/B. This witness was also duly cross-examined at length by the Ld. Defence Counsel.
10)After prosecution evidence was closed, the statement of the accused were recorded separately under Section 313 of the Code of Criminal Procedure wherein the entire incriminating evidence was put to them but they maintained their innocence. Accused Meena/Israr claimed that they had been falsely implicated by the complainant and her husband to exert pressure to withdraw the civil cases against the complainant by the husband/father of accused Meena/Israr.
11)The accused chose to lead evidence in their defence and examined three summoned witnesses in their defence.
12)DW-1 Jai Kumar, being Mauza Clerk, Record Room, Civil, Tis Hazari Courts, Delhi brought the judicial record of M No. 138/02, Goswara No. 2074 (unclaimed) and proved the certified copy of the said record Ex. DW-1/A (colly) in respect of evidence of Jitender in Contempt petition under Order 39 Rule 2A CPC filed by Jitender against the accused Meena and her husband which was later dismissed for non- prosecution. He was duly cross-examined by Ld. APP for the State.
FIR No. 372/01PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 5 of 12
13)DW-2 Suresh Kumar, Judicial Assistant, Record Room, Civil, Tis Hazari Courts, Delhi brought the original case file No. CS No. 725/06 titled Meena Vs. Balwant decided on 08.03.2006 with Goshwara No. 204 RA and proved the certified copies of evidence of Ms. Meena dated 10.01.2005, order-sheet dated 08.03.2006, Judgment dated 08.03.2006 and decree sheet Ex. DW-2/1 (colly 19 pages) in respect of the recovery suit filed by the accused Meena against the husband of the complainant for the recovery of the rent in respect of the shop in question which was later decreed in favour of the accused Meena vide judgment dated 08.03.2006. He was also cross-examined by Ld.APP for the State.
14)DW-3 Sunil Kumar, Judicial Assistant, Record Room, Rohini Courts, Delhi proved the summoned record i.e. original case file of case titled as Meena Vs. Balwant bearing no. E-448/06 date of decision 07.09.2006 Goshwara No. 6/RC and proved the certified copy of the Judgment dated 07.09.2006 of case titled Meena Vs. Balwant Ex. DW-3/A instituted on 23.04.2001 by the accused Meena against the husband of the complainant seeking eviction order which was decreed vide order dated 07.09.2006, Certified copy of order-sheet dated 07.09.2006 Ex.DW-3/B and copy of rent agreement dated 16.03.2000 Mark Z. He was also duly cross-examined by Ld.APP for the State.
15)Final arguments as advanced by the Ld defence counsel as also by the Ld APP for the State have been carefully considered along with FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 6 of 12 the evidence on record.
16)It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, co- gent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reason- able doubt in the prosecution version.
17) In the present case, it was for the State to prove that in furtherance of their common intention, the accused had entered into the shop of the complainant with the intent to commit an offence or to intimidate, insult or annoy the complainant and thereby committed an offence under Section 448 of Indian Penal Code, 1860 as defined in Section 441 and 442 thereof.
18) It was also for the State to prove that in furtherance of their common intention, the accused had also committed mischief thereby causing loss or damage to the amount of fifty rupees or upwards to prove the offence punishable under Section 427 of the Indian Penal Code.
19)The prosecution has examined only one eye-witness ie the complainant PW2 Savitri Devi herself who has testified that when she had opened her shop, the accused Meena, Israr and Kunal (Since declared juvenile) had entered into her shop and threw out the goods and articles which were lying in the shop, got her out of the shop, FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 7 of 12 locked the shop and fled from the spot. She also correctly identified the accused in the Court.
20)However, the prosecution has failed to examine any public witness even though it has come on record, in the testimony of PW5 SI Ram Niwas that when he had reached at the spot, he had found 7-8 public persons. While PW5 SI Ram Niwas has furnished an explanation for the same testifying that he was informed by them about litigation pending between the parties and expressed their inability to become party to any other court proceedings, he went on to testify that he had not given any notice to any eye-witness to the incident. It cannot be ignored that it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer investigating a crime is entitled to ask anybody to join the investigation and he is also fully empowered to initiate action against public persons refusing under the law. The failure on the part of the investigating officer to initiate such action against any public person is suggestive of the fact that the explanation for non-joining the witnesses from the public is merely after thought and is not worthy of credence. (Reference made to Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, decided by Hon'ble High Court of Punjab & Haryana).
21)The neighbour who purportedly informed PW4 Jitender about the incident has also not been examined by the prosecution and even the name of such neighbour has not been disclosed by PW4 Jitender himself which creates a doubt in the version being put forth by the prosecution even more so when it is noted that while PW2 Savitri has FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 8 of 12 testified that on the day of the incident, all her family members except her son Jitender were present at home, PW4 Jitender ie the son of the complainant who has categorically testified that he was present at his residence on the day of the incident and was informed about the incident at his residence by some neighbour.
22)Be that as it may, the prosecution has also not led any evidence to prove the identity of the goods which were allegedly thrown out as no bills/ invoice or other documentary evidence have been proved by it to prove the very existence of such goods/articles in the shop. Even PW2 Savitri has testified during her cross-examination that she could not specify the quantity of goods and articles which were in her shop. Even in the testimony of the investigating officer PW5 SI Ram Niwas, it has only come on record that he found grocery and stationary items lying outside the shop when he reached at the spot and that he had only observed the goods lying outside the shop and had not prepared any inventory of the goods lying outside. He admitted that the lock of the shop was never opened in his presence and that he had assessed that same kind of goods might be lying inside the shop on the basis of the statement of the complainant. That being so, there is no cogent and credit-worthy evidence on record to prove that the goods/articles if any which were found outside were infact thrown out from the shop of the complainant.
23)The prosecution has also not led any evidence to prove whether any damage was caused to the goods/articles as alleged. There is also no evidence to show that if any damage was so caused, what was the FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 9 of 12 nature or extent of such damage, that is to say, whether there was any destruction of any goods/articles which led to destruction or diminishing of its value or utility, or affected it injuriously, thereby causing loss or damage to the amount of fifty rupees or upwards.
24)The prosecution has also relied upon certain photographs Ex P1 to P3 which are purported to be photographs of the spot. However, the photographer who took the said photographs was neither cited nor examined as a witness in this case by the prosecution for reasons best known to it. It has also not come on record as to whether the photographs were taken by a camera or digital camera as neither the negatives of such photographs nor any certificate under Section 65B Evidence Act has been filed with the photographs and hence the photographs Ex P1 to P3 remain unproved and cannot be looked into.
25)The prosecution has also miserably failed to prove the DD entry no 28 B dated 06.05.2001 on the basis of which the IO is purported to have proceeded to the spot. There is also inconsistent testimony as to the manner in which the accused were arrested as PW2 Savitri has clearly testified that the accused had run away after putting a lock at her shop and though she identified her signatures on the arrest memo and personal search memo of the accused, her testimony is conspicuously silent as to her having identified the accused or as to them having been arrested at her instance or pointing out nor it has come on record as to when and where she signed the same. The same assumes significance as PW5 SI Ram Niwas has categorically testified that it was in the presence and at her pointing out that the FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 10 of 12 accused had been arrested. However, in his cross-examination PW5 testified that the accused had returned to the spot by themselves at around 10.30 am when the complainant identified them. However the perusal of the arrest memo Ex PW2/B and Ex PW2/C reveals that the accused Meena as well as Israr were arrested from their residence ie J-313, Mangolpuri and not from the spot. There is no oral evidence either of the complainant or the IO as to the complainant having been taken to the house of the accused for the purpose of identification or arrest of the accused. No explanation has come on record as to if the accused had indeed come to the spot on their own, then what was the occasion for them to have been arrested from their house and not at the spot. In the absence of any explanation, the possibility of the documents having been manipulated cannot be ruled out.
26)Keeping in view that from the evidence as led, it has come on record that there were some litigation were pending between the family of the complainant as well as the accused in respect of the shop in question at the time the alleged incident took place and hence the possibility of false implication cannot be ruled, it was imperative for the prosecution to lead evidence to corroborate the testimony of the complainant which it failed to do by examining either any public/independent witnesses nor it led any other corroborative evidence to inspire the confidence of the Court.
Decision
27) In view of the aforesaid discussion, with the prosecution failing to prove its case through cogent, consistent credit-worthy evidence FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 11 of 12 against the accused beyond reasonable doubts, accused Meena Devi W/o Sh. Allaudin as well as Mohd Israr Ahmad S/o. Allaudin are given the benefit of the doubt and are hereby acquitted of the offence under Section 448/427/34 IPC in FIR no. 372/01 PS Mangolpuri.
28) Accused Meena and Israr Ahmad are directed to furnish bail bond and surety bond in the sum of Rs.10,000/- each under section 437(A) of the Code of Criminal Procedure and are directed to be present before the Ld. Appellate Court as and when notice is served upon them.
29) File be consigned to Record Room after due compliance.
Announced in the open court on 09.05.2018 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 372/01 PS Mangol Puri U/s 448/427/34 IPC State Vs Meena & Ors. Page No. 12 of 12