Delhi District Court
State vs . Subhash Chand on 31 August, 2016
IN THE COURT OF MS POOJA AGGARWAL:
METROPOLITAN MAGISTRATE02 (MAHILA COURTS) :
SOUTH DISTRICT: SAKET COURTS: NEW DELHI
State Vs. Subhash Chand
FIR No. : 658/14
U/S : 354D/506/509 IPC
PS : Hauz Khas
CNR NO. : DLST020025642014
DETAILS OF THE CASE
a) Serial number of the case : 471/2/14 (03.12.2014/( 2036566/2016)
b) Date of commission of offence : Since 11/2 month prior to 12.6.2014
till 12.06.2014
c) Date of institution of the case : 05.12.2014
d) Name of the complainant : Smt. XYZ
e) Name, Parentage & Address : Subhash Chand
of the accused S/o Late Sh. Ram Lal
R/o 172, Masjid Mode,
New Delhi
f) Offence complained of : 354D/506/509/354A (1) (iv) IPC
g) Plea of accused : Pleaded not guilty.
h) Arguments heard on : 27.08.2016
i) Date of judgment : 31.08.2016
j) Final Order : Acquittal
BRIEF STATEMENT OF REASONS FOR THE DECISION
1.As per the case of the prosecution, on 12.06.2014 SI Ravi Babu received DD no.21A upon which he went with Ct. Vinod to House no. 225, Rampat Wali Gali, Majid Mode where he met the complainant who stated that for the last about 111/2 months, the accused Subhash who also resides at Masjid Mode at Church Wali Gali would follow her till the Police Colony, A V Nagar bus stop in FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 1 of 12 every 57 days and would tell her that either she should elope with him or else he would harass her and her children. Sometimes he would also say that if she would not elope with him, he would kill her. Once or twice she scolded him but he was saved by the local persons saying that he was a drug addict. He often threatened her and abused her due to which she called at 100 number requesting action.
2. After registration of FIR, investigation was carried out upon completion of which charge sheet was filed in the Court. Accused was supplied with the complete set of challan and documents in compliance of Section 207 of Code of Criminal Procedure, 1973 after he entered appearance upon being summoned.
3. Vide order dated 23.06.2015, charge was framed against the accused Subhash Chand under section 354D/506/509 IPC and in the alternative under section 354A (1) (iv) IPC to which he pleaded not guilty and claimed trial.
Prosecution Evidence
4. To prove its case and discharge the initial burden of proof cast upon it, the prosecution examined only four witnesses out of the eight cited witnesses dropping the remaining witnesses.
5. As per the testimony of the complainant ie PW1, since one and a half month prior to 12.06.2014, the accused was threatening her to elope with him else he would kill her, her family and her children. He would also abuse her saying "50 50 rupaye me to dhandha karti hai, tere dono bachche mere hai, randi aur bahut kuch". He also used to follow her from her house to the bus stand behind her house 5 to 6 FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 2 of 12 times when she would go to the office for which she scolded him 34 times. On the date of the complaint, the accused had come to her house when her mother was sitting outside and started abusing her and her mother. He threatened her mother by showing her a stick. He also hit her two wheeler parked in front of her house upon which she called the police and made the complaint Ex. PW 1/A identifying her signatures at point A. The accused was arrested vide Ex PW1/B and his personal search was conducted vide Ex PW1/C. Her statement was also got recorded under section 164 CrPC vide Ex.PW1/D. She identified her signatures on all the documents and also identified the accused in the court.
6. In her cross examination, she testified that at the time of the incident, she was working in Karol Bagh and that she had not made any complaint to any authority prior to 12.06.2014. On the day when the complaint was made, the accused had come to her house and committed the offences and that when on 12.06.2014 the accused came to her house for the first time, he was not having any danda or stick in his hand but he had initially abused her, hit her two wheeler (scooty) with Karni (plumbing tool) and left thereafter returning after 5 to 10 minutes with a danda /stick in his hand and he had tried to hit her mother. She went on to testify that the accused had come to her house only once on 12.06.2014 and had not come to her house on any other date. She denied having any altercation with the accused on 11.6.2014 and also denied as to having made a false complaint. She further testified that on 12.06.2014 the accused had not threatened her or any of her family members and that she had not accompanied FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 3 of 12 the police on 12.06.2014 when the police went to arrest the accused.
7. PW2 Smt. Geeta ie neighbor of the complainant turned hostile denying having any knowledge of the present case and during her cross examination Ld. APP for the State was unable to elicit any material facts. During her cross examination by the accused, however, she admitted that as per her knowledge her father in law Mam Chand had called the accused at their house on 11.6.2014.
8. PW3 SI Ravi Babu ie the Investigating Officer testified as to the investigation carried out including as to him receiving DD no.21A ie Ex.PW4/A on 12.06.2014, him going at Masjid Mode near the house of complainant with PW4 Ct. Vinod Kumar, recording the statement of complainant Ex.PW1/A, preparing a rukka on the basis of the same, handing it over to PW4 Ct. Vinod for registration of FIR, interrogating the accused who had met them on the way when they went searching for him, receiving copy of complaint/rukka and computerized copy of FIR from PW4 Ct Vinod, arresting the accused vide arrest memo Ex.PW1/B and conducting his personal search vide memo Ex.PW1/C, getting the statement of complainant recorded u/s. 164 CrPC, completing the investigation and filing the chargesheet in the court.
9. During his cross examination, the accused was able to elicit that PW3 had not prepared any site plan and that the accused had been arrested on the identification of the complainant. PW3 further testified that there was no scooty at the place of occurrence nor he had verified where the complainant worked at that time.
10. PW4 Ct. Vinod Kumar who accompanied the Investigating Officer FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 4 of 12 on 12.06.2014, testified on similar lines as PW4 testifying as to him getting the FIR registered and IO arresting the accused at the instance of the complainant and getting the personal search of the accused conducted. During his cross examination PW4 has testified as to reaching the spot after registration of FIR, Investigating Officer calling him and telling him to reach Church Wali Gali where he saw that the Investigating Officer had already arrested the accused and the complainant was also present alongwith the Investigating Officer. He further testified that no site plan was prepared by the Investigating Officer and no Danda/stick and plumbing tool was found at the spot by the Investigating Officer and that he did not remember if any scooty was there in front of house no. 225, Masjid Mor, New Delhi.
11. Vide separate statement recorded under Section 294, accused did not dispute the factum of registration of FIR Ex.P1 (colly.) and factum of recording of the statement of the complainant u/s 164 CrPC Ex. P2 (colly) and also did not dispute its genuineness and did not call for formal proof of the same.
12. Prosecution Evidence was thereafter closed and the statement of accused was recorded under Section 313 CrPC in which the entire incriminating evidence was put to the accused who maintained his innocence and also chose to lead defence evidence.
13. As DW1, the accused Subhash Chand testified that on 11.06.2014 he had gone to the house of father in law of Geeta alongwith a helper Laxman for plumbing work and had dug the road adjacent to house of complainant and father in law of Geeta to check the main line of water supply and some Malwa was lying there. The mother of the FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 5 of 12 complainant who used to sit outside started abusing him and the complainant also abused him. He then called his mother who came and they also started abusing his mother upon which his mother called at the police and PCR officials got the matter compromised between them. The mother of complainant had threatened that "wo raat me humko uthwa lenge". On the next day PCR came at his house and the Investigating Officer took him and the complainant to PS Hauz Khas in his personal car. In the meantime his mother also came to the police station in an auto. Nothing material was elicited during his cross examination.
14. As per the testimony of DW2 Ms. Ashrafi ie the mother of the accused, accused Subhash being a plumber working near the house of the complainant and on 11th June he called her and informed her about a quarrel with the mother of complainant after which she called the police, police came and the mother of the complainant asked the police official in a very rude tone to go away from there upon which they returned. The complainant said that "mai raat ko uthwa dungi". On next day the police came when the accused was sleeping and upon being asked the reason for their visit, police informed that the accused has abused the complainant and they took the accused to Police Station where even she went afterwards. No complaint was written by police on her information given by PCR call and a complaint case was then filed in Saket court as no action was taken by police on her complaint. Nothing material was elicited during the cross examination of this witness.
15. As per testimony of DW3 Sh. Laxman, he was working at house FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 6 of 12 no. 225, Masjid Mod, New Delhi ie house of Mam Chand on 11.04.2014 with accused Subhash Chand and some "malwa" was lying there due to which the complainant started abusing and he left while the complainant and the accused continued with their quarrel. Nothing material was elicited during the crossexamination of this witness.
16. DW4 ASI Ravindra Kumar ie a summoned witness, proved the copy of complaint dt. 22.6.2014 made by Asharfi Devi having DD no. 32B, Ex.DW4/1 alongwith reply dt. 23.6.2014 of HC Dalib Singh Ex.DW4/2. The witness was not crossexamined despite opportunity.
17. DW5 HC Birchand also a summoned witness proved DD entry No. 32B, dt. 11.06.2014 PS, Hauz Khas (Ex. PW5/A); DD entry No. 33B dt. 11.06.2014 PS Hauz Khas (Ex.PW5/B); DD entry no. 83B dt. 11.06.2014, PS Hauz Khas (Ex. PW5/C); FIR No. 1092/14 dt. 28.09.2014 PS, Hauz Khas registered on the complaint of Ms. Rina having house no. 225, Masjid Mod, New Delhi (Ex. PW5/D).
18. Final arguments addressed by Sh. Lakshay Dhamija, Ld counsel for the accused and by Sh. Ritendra Singh, Ld. APP for State have been considered alongwith the evidence on record.
19. 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. As the accused has been charged with an offence under Section 354D IPC, it was for the State to prove that since around May 2014 around Police Colony (AV Nagar) bus stop and such other time and place as mentioned in the complaint, the accused had contacted/attempted to contact the complainant to foster personal interaction with her repeatedly despite FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 7 of 12 clear indication of disinterest by her. It was further for the State to prove that on the said dates, time and places, the accused had threatened the complainant with injury to her person, reputation and to the person of her children with intent to cause alarm to her or to cause her to do an act which she is not legally bound to do as means of avoiding the execution of such threat to prove the offence under Section 503 IPC punishable under Section 506 IPC. It was also for the State to prove that on 09.06.2014 and such other dates, time and places as mentioned in the complaint, with an intention to insult the modesty of the complainant, the accused had uttered words and made gestures intending that such words shall be heard and gestures be seen by the complainant and intrudes upon her privacy to prove the offence punishable under Section 509 IPC. In the alternative, it was for the State to prove that on 09.06.2014, the accused had made sexually colored remarks towards the complainant to prove the offence under Section 354A (1) (i) IPC.
Appreciation of evidence Threats
20. In her examination in chief, the complainant as PW1 has testified that the accused had been threatening her to elope with him since 1 ½ months prior to 12.6.2014 threatening to kill her, her family and her children if she did not do so. The said testimony is however at variance with the statement of complainant recorded under Section 164 CrPC ie Ex.PW1/D/Ex.P2 wherein she had stated that the accused would threaten her that if she did not agree to elope with him, he would get her children kidnapped and it was upon her refusal FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 8 of 12 that he would threaten to kill her. It is pertinent to note that there is no mention of any threat to kill her family members in Ex. PW1/D/Ex.P2.
21. In Ex.PW1/A ie the initial complaint however, there is yet another version as therein the complainant has stated that accused would threaten her that if she would not elope with him he would harass her and her children and he would also threaten to kill her. There is again no mention of any threat to the family members of the complainant and even the threat to the children has been of harassment and not for killing them. Hence as 3 different versions have come forth as to threat by the accused without any corroborative evidence and thus the sole uncorroborated testimony of the complainant does not inspire confidence.
Following the complainant
22. As per the testimony of PW1 the accused would also follow her from her house to the bus stand 5 to 6 times when she would go for her office and that she had scolded him 34 times for the same. However, in her statement recorded u/s. 164 CrPC while she had stated that accused used to follow her when she would go to her office, she had also stated therein that once he had caught her at the bus stop which allegation is conspicuous by absence in the examination in chief and is also not mentioned in the initial complaint Ex. PW1/A and hence being a material omission adversely affects the case of the prosecution.
FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 9 of 12Incident dated 12.06.2014
23. The credibility of the testimony of the complainant is further destroyed with her making a material improvement while testifying that on the date of making of the complaint, the accused had come to her house when her mother was sitting outside, started abusing them and also threatened her mother with a stick and hit her two wheeler parked in front of the house. However, in her initial complaint Ex.PW1/A as also her statement recorded u/s. 164 CrPC there is no mention of any incident having taken place on the day when the complaint was made.
24. Even the presence of the scooty at the house of the complainant remained unproved as PW3 SI Ravi Babu has testified during his crossexamination that there was no scooty at the place of occurrence with PW4 Ct. Vinod Kumar testifying that he did not remember if any scooty was there in front of the House no. 225, Rampat Wali Gali, Majid Mode. Hence no corroborative evidence has come on record in respect of the incident dated 12.06.2014 as testified to by the complainant.
25. The credibility of the witness is further impeached in as much as during her crossexamination the accused was able to elicit material contradiction in respect of alleged incident dt. 12.6.2014 as initially she testified during her crossexamination that the accused had come to her house 2 times and that when he had come for the first time he had abused her, hit her two wheeler (scooty) with Karni (plumbing tool) and left thereafter returning after 5 to 10 minutes with a danda /stick in his hand and tried to hit her mother yet during her FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 10 of 12 further crossexamination she went on to testify that on 12.06.2014 the accused had not threatened her or any of her family members. Thus, there is this contradiction with her testimony in her examination in chief wherein she had testified that her mother was threatened by the accused on the date when the complaint was made. Incident dated 09.06.2014
26. While the initial complaint Ex.PW1/A is silent as to any incident having taking place on 9.6.2014, in her statement recorded under Section 164 CrPC (Ex.PW1/D / Ex.P2) the complainant has stated that on 09.06.2014 when she was on her way to her sister's house, in her absence, her scooty was broken by the accused and her mother was also hit by the accused which assertions do not find any mention even in her testimony in the court and is thus a material omission which has remained unexplained as during her crossexamination the complainant merely stated that she did not remember telling the magistrate about incident dated 09.06.2014.
27. There are further inconsistencies in the testimony of the prosecution witnesses with the complainant admitting during her cross examination that she had not accompanied the police on 12.06.2014 when they went to arrest the accused but PW3 SI Ravi Babu and PW4 Ct. Vinod Kumar have both testified as to arresting the accused on the identification of the complainant and the complainant has also identified her signatures on the arrest memo Ex.PW1/B thereby creating suspicion in respect of the arrest memo also. Decision
28. In view of the aforesaid discussion, in the facts and circumstances of FIR No. 658/14 PS Hauz Khas State V. Subhash Chand Page 11 of 12 this case, as the prosecution has failed to prove its case by leading cogent and creditworthy evidence, the prosecution has failed to prove its case beyond reasonable doubt, thereby entitling the accused to be given the benefit of the doubt. Consequently, the accused Subhash is acquitted for the offences under section 354D/506/509/354A(1) (iv) IPC in the FIR no. 658/14 PS Hauz Khas.
29. The accused is directed to furnish fresh bail bonds in compliance of Section 437A CrPC for the sum of Rs.20,000/ with one surety of like amount which shall remain in force for a period of six months from today.
30. File be consigned to the record room after necessary compliance.
Announced in open court (POOJA AGGARWAL)
on 31.08.2016 Metropolitan Magistrate02 (Mahila Court)
South District/ Saket/New Delhi
FIR No. 658/14
PS Hauz Khas State V. Subhash Chand Page 12 of 12