Delhi District Court
State vs . Balbir on 17 March, 2017
IN THE COURT OF MS. CHETNA SINGH:MM/MAHILA COURT-01
(SOUTH EAST DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. BALBIR
FIR No. 336/2011
New Case No. 94119/2016
U/s : 452/354/323 IPC
P.S. : K.M PUR
Date of Institution : 25.06.2012
Date on which case reserved for Judgment : 17.03.2017
Date of judgment : 17.03.2017
JUDGMENT
1.FIR No. of the case : 336/2011
2.Date of the Commission : 02.11.2011
of the offence
3.Name of the accused : (1) Balbir
S/o Late Sh. Ramji Lal
R/o H. No. 1881 1st 60 Ft.
E Gali No. 54H, M.B, Ext. New Delhi
(2) JCL herein after referred to as "X"
4.Offence complained of : 452/323/354/34 IPC.
5.Plea of accused : Pleaded not guilty
6.Final order : Acquitted.
BRIEF FACTS
1. The story of the prosecution is that on 02.11.2011 at about 09:30 PM, accused Balbir alongwith JCL herein after referred to as "X" had entered into the house of complainant and gave beatings to her, thereby tearing her FIR No. 336/2011 State Vs Balbir 1/9 clothes with an intention to outrage her modesty and also caused simple hurt to her and hence an FIR was registered U/s 452/354/323/34 IPC at Badarpur. The matter was investigated and challan was filed in the Court on 25.06.2012.
2. On the basis of the chargesheet, charge of offence U/s 452/323/354/34 IPC was framed against accused Balbir and the charge was duly explained to him in vernacular to which he pleaded not guilty and claimed trial on 21.12.2013. Thus, the matter was put to trial.
APPRECIATION OF EVIDENCE
3. In Order to prove the above said allegations against the accused person, the prosecution has cited 7 witnesses, however 8 witnesses were examined.
4. PW-1 Sonia Singh being the complainant was examined on 13.08.2014 wherein she deposed that she has been residing at H. No. 1882, E- Block, Molarband Extension, New Delhi and is engaged in the work of Garments. She further deposed that the house of the accused Balbir is situated in front of her house and the pipe line of water is installed near the house and usually heated conversation took place between her and accused Balbir on the issue of water.
On 02.11.2011 at about 8.00 PM, a quarrel took place between her and accused Balbir but the matter was settled. However, at about 9.30 PM, accused Balbir alongwith 4-5 persons including JCL "X" entered into her house and started abusing her and gave beatings. During the said manhandling her cloth were torn and her golden chain was snatched by one of them. Balbir slapped on her breast and her clothes were torn by him. Balbir, JCL "X" and other persons gave beatings to her by fists and slapped her and thereafter she called on number 100 and police reached at the spot after 10 minutes of the incident and she was taken to police station from where police officials got her medical FIR No. 336/2011 State Vs Balbir 2/9 examination done and recorded her statement at Trauma Centre which is Ex- PW1/A bearing her signatures at point A. She handed over her clothes to the police. (Accused Balbir Singh was correctly identified by witness).
5. This witness was cross examined by Ld. Defence Counsel at length. However, the cross-examination is not being repeated here for the sake of brevity.
6. PW-2 Head Constable Daya Krishan was examined on 26.10.2015 wherein he deposed that on 02.11.2011 he was posted at police station Badarpur as Duty Officer from 4.00 pm to 12.00 midnight and on that day he made a DD entry in the Rojnamcha bearing DD No. 30 A. He further deposed that he had brought the original registeredc where DD no. 30A was recorded and the said entry in the register is Ex.PW2/A (OSR).
7. This witness was not cross examined by Ld. Defence Counsel despite opportunity given.
8. PW-3 Retired Sub Inspector Kailash Chandra examined on 26.10.2015 wherein he deposed that on the intervening night of 02-03.11.2011 he was posted at police station Badarpur as Duty Officer from 12.00 midnight to 8 am and on that day at about 02.45 AM he received rukka from Sub Inspector Munish Kumar for registration of FIR. After receiving rukka, he registered the present FIR under section 452/356/354/323/34 IPC and handed over copy of FIR and original rukka to Sub Inspector Munish Kumar. He made endorsement on the rukka which is Ex.PW3/A bearing his signatures at point A and also signed the copy of FIR which is Ex.PW3/B, bearing his signature at point A. He produced the original register of the said FIR (OSR).
9. This witness was not cross examined by Ld. Defence Counsel despite opportunity given.
10. PW-4 Constable Jagdev Singh was examined on 26.10.2015 wherein he deposed that on 02.11.2011 he was posted at PS Badarpur as constable and on receiving a call about a quarrel at H. No. 1882, Gali No. 54, FIR No. 336/2011 State Vs Balbir 3/9 Molarband Extn., Badarpur, he alongwith SI/IO Munish Kumar went to the spot i.e. at H.No. 1882, Gali No. 54, Molarband Extn., Badarpur where he met complainant Sonia, however she stated that settlement has taken place between her and accused Balbir. Thereafter, he came back at the Police Station and after about 2 hours complainant alongwith her husband came at the Police Station and IO recorded the her statement. He was sent alongwith the complainant for her medical at AIIMS Trauma Centre and after coming back from AIIMS, Trauma Centre, the MLC of the complainant was handed over to the IO. Thereafter, he alongwith IO went to the spot for searching the accused. IO prepared the site plan at the instance of complainant Ex. PW4/B bearing his signatures at point A and IO recorded his statement u/s 161 CrPC.
Thereafter, on 16.11.2011 again he alongwith IO went to the house of accused and after interrogation arrested him vide Ex.PW4/A bearing his signatures at point A.
11. This witness was not cross examined by Ld. Defence Counsel despite opportunity given.
12. PW-5 SI Muneesh was examined on 22.12.2015 wherein he deposed that on 02.11.2011, he was posted at PS Badarpur as SI and was on emergency duty from 8:00 pm to 8: 00 a.m and on that day at around 9:30 p.m complainant Sonia Singh came to police station alongwith her husband and made a complaint against her neighbor i.e accused Balbir, JCL-X and two other boys in regard to outraging her modesty, trespass and hurt. Thereafter he recorded the statement of complainant and sent complainant Sonia along with lady constable Lakhan for her medical examination. He made local inquiries and when complainant returned from her medical examination then he prepared Rukka on the complaint of the complainant which is already Ex.PW3/A bearing his signature at point B. Thereafter he got the FIR registered and the prepared site plan at the instance of complainant which is already Ex.PW4/B bearing his signature at Point B. On 05.11.2011, during search of the accused persons, he FIR No. 336/2011 State Vs Balbir 4/9 went to the house of the accused Balbir and JCL-X who was later apprehended and on 16.11.2011, accused Balbir was interrogated and arrested vide arrest memo already Ex.PW4/A bearing his signatures at point B. Thereafter he recorded disclosure statement of the accused Balbir vide Ex.PW5/A bearing his signature at point A. Statement of witnesses u/s 161 Cr.PC were recorded (accused was identified by this witness).
13. This witness was cross examined by Ld. Defence Counsel. However, the cross examination is not being repeated herein for the sake of brevity.
14. PW-6 Inspector Mahender Singh Dahiya was examined on 24.05.2016 wherein he deposed that on 05.11.2011 he was posted as Sub Inspector in police station Badarpur. On that day, he received a call from SI Manish. After receiving the call, he went to H. No. 1881, Gali No. 54, Molarband Extension where SI Manish apprehended the JCL. He signed the apprehension memo and other documents (JCL version). Thereafter IO recorded his statement U/s 161 Cr.PC.
15. This witness was cross examined by Ld. Defence Counsel wherein he stated that he did not conduct any inquiry or investigation in respect of accused Balbir.
16. PW-7 Dr. Akansha Sharma was examined on 25.07.2016 wherein she deposed that a summon has been sent for Dr. Rohit Raj as he has left the hospital so she alongwith Sh. Rampatt, MRT, Trauma Centre, AIIMS has been sent by the Medical Superintendent for verifying the signature of the Dr. Rohit Raj. The said MLC no. 83378 of Sonia Singh was conducted by Dr. Rohit Raj on 03.11.2011 as per the record. She further deposed that she has not worked with Dr. Rohit Raj so she did not know the signature of the Dr. Rohit Raj as signed by him in the MLC.
17. This witness was not cross examined by Ld. Defence Counsel despite opportunity given.
FIR No. 336/2011 State Vs Balbir 5/9
18. PW-8 Sh. Rampatt, MRT, Trauma Centre, AIIMS was examined on 25.07.2016 wherein he deposed that that a summon has been sent for Dr. Rohit Raj as he has left the hospital so he alongwith Dr. Akansha Gautam, SR Medicine, Trauma Centre, AIIMS has been sent by the Medical Superintendent for verifying the signature of the Dr. Rohit Raj. The said MLC no. 83378 of Sonia Singh was conducted by Dr. Rohit Raj on 03.11.2011 as per the record and he verified the signature of Dr. Rohit Raj from the record as he had worked with him.
19. This witness was not cross examined by Ld. Defence Counsel despite opportunity given.
20. As all witnesses were examined by the Prosecution, PE was ordered to be closed on 25.07.2017. Statement of the accused U/s 313 CrPC was recorded on 16.08.2016 in which he stated that he wants to lead defence evidence, but accused failed to produced any independence witness in his defence. Hence, DE stands closed vide order dated 07.02.2017.
21. Final arguments were advanced by Ld. APP for the State and by Counsel for accused. Heard. Considered.
REASONS FOR DECISION
22. Before appreciating the evidence as stated above in brief, it is necessary to state the law/ essential ingredients of Section 354 IPC which are as follows :
1. There must have been assault or use of criminal force on a woman;
2. Such assault or use of criminal force must have been made-
(a) With intention to outrage her modesty; or
(b) With knowledge that her modesty was likely to be outraged.
23. The essential ingredients for Section 452 IPC are as follows:
1. Commission of house trespass.
2. After preparation of causing hurt, assaulting or wrongful restrained FIR No. 336/2011 State Vs Balbir 6/9 of any person is made.
3. Or after putting any persons in fear of hurt, assault, wrongful restraint.
24. The essential ingredients of Section 319 IPC which is punishable U/s 323 IPC are as follows:
1. Whoever causes bodily pain, disease or infirmity.
2. When such act is done with the intention or knowledge that he is likely to cause hurt to any person.
In light of the above mentioned ingredients, it is necessary to examine whether from the material on record, the offence U/s 354/323/452/34 IPC against the accused Balbir is made out or not.
25. The main witness in the present matter is the complainant Sonia Sharma who stated that on the day of the incident i.e on 02.11.2011 at about 8.00 PM, a quarrel took place between her and accused Balbir but the matter was settled. However, at about 9.30 PM, accused Balbir alongwith 4-5 persons including JCL "X" entered into her house and started abusing her and gave beatings. During the said manhandling her cloth were torn and her golden chain was snatched by one of them. Balbir slapped on her breast and her clothes were torn by him. Balbir, JCL "X" and other persons gave beatings to her by fists and slapped her and thereafter she called on number 100 and police reached at the spot after 10 minutes of the incident and she was taken to police station from where police officials got her medical examination done and recorded her statement at Trauma Centre which is Ex-PW1/A bearing her signatures at point A. She handed over her clothes to the police.
26. During her cross-examination, various contradictions could not noted with regard to the number of persons who allegedly entered her house. She stated that her clothes were torn however, no such clothes were seized by FIR No. 336/2011 State Vs Balbir 7/9 the IO. She stated that she handed over the clothes to the IO. However, there is no explanation on record by the IO as regards the non seizure of the torn clothes, if at all the same were handed over by the complainant to the IO.
27. The complainant stated that there are four floors in her house and she was residing in the ground floor. Tenants are residing in the remaining floor. No public persons have been cited in the list of witnesses by the IO despite the house of the complainant being occupied by tenants. It is unlikely, considering the nature of allegations made by the complainant that she did not raise an alarm so as to ask for help after the accused alongwith his accomplices trespassed into her house. Strangely, she stated in her cross-examination that at the time of the incident her son was studying in a room on the first floor of the building and she could not have called him as he was not having a mobile phone. During subsequent cross-examination, she stated that her son was sleeping in the house. Again she said that her son was present at the spot. Thus, it is clear that her testimony is contradictory.
28. During her examination in chief, she stated that she had called the Police on number 100. However, during her cross-examination, she stated that her husband might have called the Police on number 100. She again stated that she told her husband about the incident and then he called the Police.
29. She further stated that on the intervention of the neighbors, the quarrel was settled and she informed her husband about the quarrel through her neighbor. However, she did not remember the name or address of that neighbor. None of the neighborers or even the husband or the son of the complainant has been cited as a witness by the IO. The testimony of the complainant is ridden with contradictions and there is no other public witness to corroborate her testimony.
30. Even the Police Officials have not been able to narrate the sequence of events in corroboration of the complainant. PW-4 Constable Jagdev Singh deposed that on reaching the spot, he met the complainant who FIR No. 336/2011 State Vs Balbir 8/9 stated that the matter has been settled between her and the accused. PW-5 IO/SI Munish Kumar stated that he went to the spot and made inquiries. However, he was told that the matter was amicably settled between the parties. He stated that nothing was recovered from the accused during investigation. He further stated that the whereabouts of the other accused persons apart from accused Balbir and JCL "X" were not found during investigation. IO has not conducted any investigation qua the other accused persons.
31. Thus, it is clear that the essential ingredients of Section 452/354/323/34 IPC have not been proved by the Prosecution beyond a reasonable doubt. The main witness is the complainant in the present case who is the star witness and her testimony is ridden with contradictions. It is not corroborated by independent public witnesses and it is not truthful enough to stand on its own feet. Thus, the benefit of doubt is required to be granted to the accused namely Balbir and is acquitted for offence U/s 452/354/323/34 IPC.
Ordered accordingly.
Announced in the open Court on 17.03.2017 (Chetna Singh) Metropolitan Magistrate Mahila Court-01/SED/Saket New Delhi/ 17.03.2017 FIR No. 336/2011 State Vs Balbir 9/9