Delhi District Court
State vs . Rohit & Ors. on 20 December, 2014
IN THE COURT OF MS. MANU VEDWAN,
METROPOLITAN MAGISTRATE, MAHILA COURT,
CENTRAL DISTRICT, DELHI
State Vs. Rohit & Ors.
FIR NO. 18/10
P.S : ODRS
Case ID No. 02401R0249462010
Date of institution of case : 22.05.2010
Date on which case reserved for judgment : 16.12.2014
Date of judgment : 20.12.2014
Advocates appearing in the case:-
Sh. P.K Ranga, Ld. APP for the state.
Sh. Om Dutt Sharma, Ld. Counsel for accused.
JUDGEMENT U/S 355 Cr. P.C:
a) Date of offence : 06.07.2010
b) Offence complained of : 149/323/504/509/354 IPC
c) Name of complainant : Sh. Deepak
d) Name of accused, his parentage, 1. Rohit
local & permanent residence : S/o Daulat Ram,
R/o Gali No.5, Haldawari,
Rampur Road, Distt.
Haldwari (UA)
2. Monu Gautam
S/o Sh. Lala Ram Gautam
R/o Village Sujjanpur,
PS Dibiapur, Distt. Orraiaa
FIR No. 18/10 Page 1 of 17
3. Raju Balmiki
S/o Late Sh. Shree Chand
R/o Village Mirzapur,
PS Vijay Nagar, Distt. GZB,
U.P (Ishwar Ka Makan)
4. Suresh
S/o Late Sh. Kallu Jatav
R/o Village Bam Notti,
PS Bella, Distt Orriya, U.P.
5. Hemant
S/o Sh. Sant Ram Kohli
R/o H.No. 363, Madhopura,
PS Vijay Nagar, Distt. GZB,
U.P.
e) Plea of accused : Pleaded not guilty
f) Final order : Acquitted.
BRIEF FACTS AND REASONS FOR THE DECISION:-
1 Case of the prosecution is that complainant during the intervening night of 06.07.2010 was going to Rampur from Old Delhi Railway Station alongwith his wife Babita. They were travelling by Rani Khet Express in coach number 98481. When train started moving from New Delhi Railway Station, five boys started wandering in the coach. They abused wife of the complainant and pulled her saree in order to outrage her modesty. Complainant alongwith other passengers namely Amir Ahmad S/o Rahis Ahmad, Nafees S/o FIR No. 18/10 Page 2 of 17 Rahis Ahmad, Rihan Babu S/o Rahis Ahmad, R/o Ganmoja Rasoolpur Kasba, PS Swar, Distt. Rampur raised objections regarding the abuse of accused. All the accused persons started beating them in which Amir Ahmad and Nafees sustained injuries. Accused persons also manhandled the complainant and other co- passengers. In consequence therof, accused persons were also got injured. Accused persons were caught hold by the passengers with the help of some police officials who boarded the coach. Accused persons disclosed their names as Rohit, Monu Gautam, Raju Balmiki, Suresh and Hemant. All the accused persons were then taken to Police Station Ghaziabad.
2 Charges under Section 149/323/504/509/354 IPC were framed against the accused persons on 07.06.2012 to which all the accused persons pleaded not guilty and claimed trial.
3 Prosecution, with a view to establish its case, has examined thirteen witnesses. PW-1 is ASI Ved Prakash who received the Rukka Mark X from SHO. PW-1 thereafter on the basis of rukka registered the FIR, computerised copy of which is Ex.PW1/A. Endorsement on the rukka is Ex.PW1/B. Complainant has been examined as PW2 and he has relied upon his statement recorded by the police Ex.PW2/A. PW3 is Smt. Babita wife of complainant and is the victim in the present case. Ct. Ram Niwas from Railway Protection Force has been examined as PW4. PW-4 FIR No. 18/10 Page 3 of 17 was on Escort Duty alongwith other Railway Protection Fare Staff apprehended the accused. Ameer Ahmad has been examined as PW4, Rehan Babu has been examined as PW5, Nafees has been examined as PW6. All these three witnesses were the co- passengers of complainant PW2 and victim PW3.
Dr. A.K Dua, Emergency medical officer, Distt. Hospital Ghaziabad has been examined as PW7. PW7 in his examination in chief explained the nature of injuries on Amir Ahmad, Nafeez, Rohit, Suresh, Raju, Monu Gautam and Hemant. PW7 prepared the Medico Legal Cases of Amir Ahmed, Rohit, Suresh, Raju, Monu Gautam and Hemant which are Ex.PW7/A, Ex.PW7/B, Ex.PW7/C, Ex.PW7/D, Ex.PW7/E & Ex.PW7/F respectively. PW 7 opined that all the injuries were caused by hard blunt objects.
Ct. Chander Pal Singh has been examined as PW8.
PW8 was on duty on the day of incident at platform no.1 & 2. PW8 on receiving the information memo alongwith SI Neeraj entered into the general coach of the concerned train when the same reached at Ghaziabad station. PW8 deposed that inside the coach he found RPF Staff, complainant and five accused persons who were apprehended by the passengers. They were taken to Police Station Ghaziabad. PW8 in his cross examination submitted that many persons were present, in the police station alongwith the complainant.
Ct. Nagender Kumar has also been examined. Ct.
FIR No. 18/10 Page 4 of 17Nagender Kumar had been handed over copy of FIR No. 18/10 and copy of FIR Nil/10 (0 number) alongwith other documents which had come through post from GRP Ghaziabad with the direction to hand over the same to SI Suresh. Ct. Satish Kumar has been examined as PW9. PW9 Ct. Chander Pal and SI Neeraj after receiving the necessary information rushed towards the general coach of the train and took the accused persons as well as the witnesses to GRP police station, Ghaziabad.
Ct. Sita Ram has been examined as PW10. PW10 recorded the zero number FIR Nil/10 as stated by complainant Deepak verbally to him which was signed by complainant Deepak in his presence. PW10 also made the entry in Rojnamcha regarding the lodging of the Zero number FIR on 07.02.2010. PW-10 was writer and has proved DD No. 4 as Ex.PW-10/A. Inspector Bharat Singh has been examined as PW11. PW11 deposed that on 10.02.2010, 0 number FIR of the year 2010 under Section 147/323/504/506/324/354 IPC and related documents i.e. medical papers and statements etc. were received through dak at police station. ODRS from ACP railway office. He went through the papers and FIR and came to know that the incident in the present matter was of ODRS railway station as the train in which the incident occurred started from ODRS railway station. Accused misbehaved with the complainant, his wife and co-passengers during the course of journey. PW-11 made the endorsement, gave the direction to the FIR No. 18/10 Page 5 of 17 duty officer to register the case and handed over further investigation to SI Suresh Kumar. Document Mark B is exhibited Ex.PW11/A bearing his signatures at point A. SI Neeraj Singh has been examined as PW12. PW12 was the first investigation officer of the case. SI Suresh Kumar has been examined as PW13. PW-13 is the second investigation officer.
4. PE was closed on 11.08.2014 and thereafter, statements of accused Raju Balmiki, Monu Gautam and Rohit u/s 313 Cr.P.C were recorded on 17.11.2014. Statements of accused Suresh and Hemant u/s 313 Cr.P.C were recorded on 26.11.2014. All the incriminating evidence were put to the accused persons to which, they pleaded that they are innocent and have been falsely implicated in the case. They also pleaded in their statement that they were travelling in the train and the real culprits run away from the train. They were implicated only on the basis of suspicion.
5 I have heard Ld. APP for the state, Ld. Defence Counsel and perused the complete record file.
6. To understand the case completely let us first discuss the evidence of material witnesses in detail. PW2 in his examination in chief deposed that on the date of incident, he alongwth his wife Babita, sister in law Pushpa and 2-3 months old baby were going to Rampur (U.P) by train. They boarded the abovesaid train from Old Delhi Railway Station. At around 11.30 pm in the night, train was FIR No. 18/10 Page 6 of 17 moving and he was sitting at his seat alongwith his family members and other co-passengers. Accused persons who were 15-20 in number and were under the influence of liquor started abusing and were talking in filthy language. Accused persons were wandering in that coach for no reason. Accused persons started abusing his wife in filthy language.
PW2 further deposed that accused Monu Gautam misbehaved with his wife, abused her in filthy language and pulled her Saree. Due to fear of accused Monu Gautam and that of his other associates complainant alongwith his family shifted their seat. Accused Monu Gautam again came to that seat and abused his wife in filthy language and misbehaved with her. All the other accused persons were harassing him, his wife and other co-passengers. All accused persons were threatening that they would upside down the train "train palat denge". PW2 could not tell the exact name of the accused persons as he was not acquainted with them as they were 10-15 people. Some of the co-passengers thereafter intervened, and asked the accused persons, as to why they were misbehaving with him and his wife. Accused persons started beating them and continued to misbehave with him and his wife. Eventually, someone pulled the chain of the train. Police came on the spot and five persons were arrested. Other persons ran away from the spot.
PW2 during his cross examination submitted that he had not made any call on 100 number at or after the alleged incident.
FIR No. 18/10 Page 7 of 17PW2 submitted that police did not record the statement of his sister in law. PW2 also submitted that after boarding the train, he went to the toilet and when he returned he saw that accused persons were abusing his wife in very filthy language. PW2 answered in affirmative to question posed by counsel for accused that accused persons started abusing his wife when train started moving from Delhi and kept on abusing till Sahibabad. PW2 submitted that accused persons were present in the coach/train when he boarded the train alongwith his family. PW2 has answered in affirmative to the suggestion put to him by counsel for the accused that he started fighting with the accused persons for the seat in the said coach. PW2 submitted that no injury was sustained by him in scuffling with accused persons. PW2 further submitted that when he boarded the train some accused persons were in the train and some were standing on the platform. PW2 failed to recall that whether the accused persons were sitting on the seats or not when he entered in the coach.
7. PW3 Babita who is also the victim and wife of PW2 submitted in her examination in chief that on the date of incident, she alongwith her husband and children were going to her native place via aforementioned train. She alongwith her husband and children boarded the train from Old Delhi Railway Station. When her husband went to the toilet attached with the coach, one boy came near her and started abusing her in filthy language. Co-passengers FIR No. 18/10 Page 8 of 17 objected and also requested him not to abuse in such filthy language but the accused did not give any attention to that request and continued to abuse. Accused Monu Gautam called someone on phone and thereafter 20-25 persons came in that coach. All the accused persons started misbehaving and quarreling with her husband and when she resisted one of the accused person pulled her Saree. PW3 was not able to specify as to which of accused had pulled her Saree. On question put by Ld. APP, complainant had explained what was said to her by accused Monu Gautam. Complainant submitted that as she was feeling shy, she could not tell the same to the police. When the accused did not stop abusing and misbehaving, a quarrel started and accused had beaten her husband and other co-passengers.
PW3 during the course of her cross examination submitted that primarily she was sitting on her seat alone as her husband went to toilet. PW3 also submitted that she was traveling with her husband and two children. No other person from the family was traveling with them according to PW-3. PW3 also submitted that coach in which they were travelling was crowded. PW3 further submitted that accused persons started misbehaving with her from Old Delhi Railway Station itself. Accused Monu Gautam abused her at Sahibabad Station. PW3 has expressed her ignorance regarding the name of station from where 20-25 persons at the instance of other accused came inside their coach. PW3 has also submitted FIR No. 18/10 Page 9 of 17 that accused Monu Gautam was sitting on a seat near her when her husband came from toilet. She and her husband changed their seat after her husband came from toilet and did not say anything to accused. PW3 submitted that her husband suffered injury on his head. PW3 later on submitted that she and her husband did not suffer any kind of injury therefore they were not medically examined. Those co-passengers who received injuries alongwith accused were taken to hospital.
8. PW4 in his examination in chief deposed that he was on escort duty on the date of incident from Purani Delhi Railway Station to the Kath Godam. Chain of the train was pulled near Sahibabad station. He alongwith other Railway Protection Force staff after entering in the general coach came to know the fact that five accused persons had misbehaved with a lady and her husband. Accused had also beaten the husband of that lady and other co- passengers. Accused persons were apprehended with the help of other co-passengers. Then, accused persons alongwith other co- passengers were taken to GRP Police Station. PW4 was unable to identify the accused present in the court due to lapse of time. PW4 in his cross examination has admitted the fact that 5-7 persons ran from the compartment when accused present in the court were apprehended. The DD No.4 of around 1.35 am written by SI Neeraj regarding the incident at Ghaziabad Railway Station is Ex.PW10/A. FIR No. 18/10 Page 10 of 17
9. PW12 on receiving the information that five to six persons were misbehaving with the girl in train no. 5013, Ranikhet Express, went to platform no. 1-2 at Ghaziabad Railway Station. In the coach no. 98481, five accused persons were already apprehended by the staff of RPF and the passengers. Victim Babita and her husband Deepak alongwith RPF staff narrated him the incident. Accused persons had misbehaved with victim Babita with the intention to outrage her modesty. When accused persons were intervened by other passengers, they started beating and abusing those passengers. Victim, her husband, three passengers and RPF staff were taken to PS GRP Ghaziabad where Sh. Deepak narrated the incident which was reduced into writing by CC 290, Sita Ram. Investigation was assigned to PW12. PW12 prepared his case diary Ex.PW12/A and recorded the statement of complainant Sh. Deepak and victim Babita. The relevant forms through which the information was to be sent to the respective houses of accused persons were got filled up through Munshi Sita Ram vide Ex.PW12/C1 to Ex.PW12/C5 bearing his signatures at point A. PW12 in his cross examination submitted that the passengers whose statements were recorded by him were present in the compartment/coach in which the incident took place.
10. PW13 in his examination in chief deposed that on 10.02.2010 one FIR was transferred to PP Shahdara by SHO PS ODRS. The said FIR was sent to PS ODRS from GRP Ghaziabad FIR No. 18/10 Page 11 of 17 as the offence was committed within the jurisdiction of PS ODRS and the FIR was marked to him for investigation. He further deposed that during investigation, he recorded statements of the concerned witnesses. Accused persons who were wanted in the case were called by him through notice. Accused persons were formally arrested by him vide memos Ex.PW13/A1 to Ex.PW13/A5. PW13 further deposed that during investigation, offence u/s 149/509 was also attracted in the present case.
11. The defence of all the accused is that no such incident of use of abusive, filthy language ever took place. It is argued by Ld. Defence counsel that quarrel was ensued among all the co- passengers on the issue of seat. It is further argued that despite the fact that coach was over crowded which is an admitted fact, except witnesses PW2 & PW3 who are interested witnesses, one being complainant/husband, other being wife/victim no other public witness could able to identify the accused persons.
12. In the present matter, apart from the Complainant and victim there are three more public witnesses which are PW4 Amir Ahmed, PW5 Rehan Babu and PW6 Nafees. PW1, PW2, PW4, PW5 and PW6 were all co-passengers travelling in the same coach. also. PW4 submitted in his examination in chief that there were 20-25 persons who were abusing and talking in a filthy language on the date of incident. When they were asked to stop the same a FIR No. 18/10 Page 12 of 17 quarrel ensued between the passengers and those persons. PW-4 denied of witnessing any incidence of misbehaviour with Babita i.e. victim. He was not able to identify any of the accused persons present in the court due to lapse of time. During his cross examination, it was submitted by PW4 that quarrel started on the question of seat.
PW5 has submitted in his examination in chief that the quarrel started between the 4-5 persons and the couple on the question of seat in the coach. PW5 submitted that those persons with whom quarrel started were not present in the court. PW5 was cross examined by Ld. APP for the state after given permission by the court to do so. During his cross examination, PW5 denied the suggestion that accused person had pulled saree of wife of complainant and also put his hand on her breast. Witness also denied of making any statement in that regard to the police.
PW-6 during his examination in chief submitted that he was not aware why quarrel started in the coach. Though, he further submitted that when he tried to intervene in the quarrel, he was pushed and in consequence thereof he sustained injuries. PW6 was also not able to identify accused persons due to the lapse of time. During his cross examination conducted by Ld. APP for the state after obtaining the permission from court, he denied the suggestion put by Ld. APP that accused persons pulled the saree of wife of the complainant and also put hand on her breast. PW6 also expressed FIR No. 18/10 Page 13 of 17 his ignorance with respect to his statement recorded by the police.
13. Now the question which is for consideration is whether the testimony of the complainant and victim are of such a credible nature that conviction can be based on their testimonies. PW4, PW5 and PW6 in their separate testimonies before the court has denied the allegations levelled against the accused persons. No other public witness was examined by the prosecution despite the admitted fact that the concerned coach was full at the time of the alleged incident. No incident as that of putting the hand on breast of victim Babita was ever disclosed in the initial complaint by the complainant. In the initial complaint the incident as of pulling of saree was only disclosed. PW2 has categorically stated in his examination in chief that he was traveling alongwith his wife, baby and sister in law PW2 has submitted in his cross examination that statement of his sister-in-law was not recorded by the police. While, PW3 has stated that she was not travelling with any of her relative. There is a clear lack of coherence in the statements of both the witnesses.
PW2 deposed that 15-16 persons were wandering in the coach and they started abusing his wife in filthy language. Specifically, accused Monu Gautam misbehaved with his wife and abused her in filthy language and when he shifted the seat accused Monu Gautam again came to that seat and started abusing them in filthy language. During his cross examination, PW2 submitted that FIR No. 18/10 Page 14 of 17 as soon as he boarded the train he went to the toilet and after returning from toilet he saw that accused persons were abusing his wife in filthy language. This fact that he had seen the accused misbehaving with his wife only after returning of toilet has never been earlier disclosed by PW2 either in his complaint or in his examination in chief. PW2 kept on reiterating that when the train started moving accused persons started wandering in the train, pulled his wife's saree and abused his wife.
At one place he said that all the accused persons were present in the coach and on other place he submitted that only some of accused were present in the coach while others were standing on the platform. It is worthwhile here to relate the statements of PW2 and PW3 for complete understanding of sequence of events. PW-3 submits that accused persons were misbehaving with her and when her husband intervened one of the accused persons pulled her Saree. While, PW-2 submits that accused Monu Gautam alongwith other accused persons were wandering in the train, started abusing his wife and even pulled her Saree. How is it possible that two persons who are husband and wife speak in contradiction with each other as well as in contradiction with other co-passengers? It is also questionable and not explained by prosecution that when as submitted by husband her sister-in-law was travelling with him, why was she not examined by the prosecution? PW2 in his cross examination submitted that all FIR No. 18/10 Page 15 of 17 the accused persons were already present in the train when he boarded the train with his family members. While, PW3 submitted in her examination in chief that accused Monu Gautam called only then 20-25 persons came inside the train and started quarreling with his husband. PW2 deposed that accused pulled the saree of the victim and after that whole incident of quarrel took place between other co-passengers and accused persons. While, PW3 deposed that during the course of quarrel one of the accused person's pulled her saree. Prosecution here again miserably fails to explain that whether pulling of saree triggered the whole situation or it is other way round that is quarrel has trigged the incident of pulling of saree. It is submitted by PW3 in his cross examination that she was sitting alone as her husband was in toilet for 10-15 minutes. It is not comprehensible from testimonies of PW2 and PW3 that whether the accused kept on pulling her saree for 10-15 minutes till the time PW2 came from the toilet.
14. At one stage of evidence, PW3 submitted that her husband suffered head injury and while on the later stage of her cross examination, she submitted that she and her husband has not suffered any kind of injury and therefore, they were not medically examined. There is no specific imputation regarding the manner of misbehaviour by the accused persons. Statement made before the police were improved on by PW2 and PW3 during their deposition before the court. Testimonies of PW2 and PW3 itself suffer from FIR No. 18/10 Page 16 of 17 various inconsistencies as has already been discussed in detail. There are clear improvements in their depositions before the court and as such does not inspire much confidence. It is categorically deposed by PW4, PW5 and PW6 that there was a quarrel between all the co-passengers on the issue of seat. With regard to offence u/s 323 the testimonies of PW2 and PW3 cannot be relied upon due to inbuilt inconsistencies while PW4, PW5 & PW6 in their deposition failed to identify any of the accused persons as according to them there was a group fight. It is settled law that prosecution has to prove its case against the accused beyond pales of reasonable doubts and there should not be any iota of doubts in favour of the accused.
15. Hence, on the basis of above discussions and in light of testimonies of witnesses, benefit of doubt goes in favour of all the accused. Thus, all the accused are acquitted for the offence u/s 149/323/504/509/354 IPC. Previous bail bond of accused persons are further extended for a period of six months as per Section 437A Cr.P.C.
File be consigned to record room.
Announced in the open court today on this 20th day of December, 2014.
(MANU VEDWAN) Metropolitan Magistrate, Mahila Court, Central-01, Delhi FIR No. 18/10 Page 17 of 17 FIR No. 18/10 PS ODRS u/s 149/323/504/509/354 IPC State Vs Rohit & Ors.
20.12.2014
Present: Ld. APP for the state.
All accused in person alongwith Ld. Counsel.
Final arguments heard.
Now to come up for orders at 4.00 pm.
(MANU VEDWAN)
Metropolitan Magistrate,
Mahila Court, Central-01, Delhi
At 4.00 pm
Present: Ld. APP for the state.
Vide separate judgment of even date, all the accused are acquitted for the offence u/s 149/323/504/509/354 IPC. Previous bail bond of accused persons are further extended for a period of six months as per Section 437A Cr.P.C.
File be consigned to record room.
(MANU VEDWAN) Metropolitan Magistrate, Mahila Court, Central-01, Delhi FIR No. 18/10 Page 18 of 17