Delhi District Court
State vs . Nimai Chand & Anr. on 23 April, 2022
Page No. 1 Of 20
IN THE COURT OF MS. CHHAVI KAPOOR
CHIEF METROPOLITAN MAGISTRATE (WEST)
TIS HAZARI COURTS, DELHI
In the matter of :
State Vs. Nimai Chand & Anr.
FIR No. 69/11
P.S Kirti Nagar
JUDGMENT
1. ID No. of case 62492/2016
2. Date of institution 17.11.2011
3. Name of the complainant Ms. Bhawani Bulli
4. Date of commission of 11.03.2011
offence
5. Name of accused 1.) Nimai Chand @ Ras
Bihari, S/o late Sh. Nava
Krishan.
2.) Beena Jena, W/o Nimai
Chand.
Both R/o 2/41, Second Floor,
Ramesh Nagar, Kirti Nagar,
FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors
Page No. 2 Of 20
Delhi110015
6. Offence complained of 374 Indian Penal Code ,
Section 14 of Child Labour
Act and Section 23/26 of
Juvenile Justice Act
7. Plea of accused Pleaded not gulity
8. Date of reserving the 23.04.2022
judgment
9. Final order Acquitted.
10 Date of such judgment 23.04.2022
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. On 11.03.2011, the present FIR was registered on the complaint of victim Bhawani Bulli, D/o Sukumar wherein she alleged that the accused Nimai Chand @ Raj Bihari and his wife Beena had compelled her to work as a maid servant in their house against her will. The victim further alleged in her complaint that she was assaulted and kept hungry on many occasions by the accused and she was made to do excess house FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 3 Of 20 work against her wish. She also alleged that she was not allowed to go to her native place to meet her parents. She complained that both the accused had misbehaved with her. On the basis of this complaint, investigation was carried out against the accused and after completion of the investigation, a charge sheet was filed against both the accused for committing the offences under Section 374 IPC, Sec. 14 of Child Labour Act and Sec. 23/26 of Juvenile Justice Act.
2. It is pertinent to mention that on 28.08.2012, the Ld. Predecessor Trial Court Judge discharged both the accused u/s. 14 of the Child Labour Act and Sec. 26 of the Juvenile Justice Act and proceeded to frame charge against the accused u/s. 374 IPC and Sec. 23 of Juvenile Justice Act only. Both the accused pleaded not guilty to the charges framed on 28.08.2011 and claimed for a trial.
3. During prosecution evidence, the following witnesses were examined by the prosecution in its case:
4. PW1 is HC Jagbir. This police official was posted as Duty Officer at PS Kirti Nagar from 08:00 pm till 08:00 am on the intervening night of 1011 March 2011. He deposed that at around 12:05 am, on 11.03.2011, he received a rukka from Ct. Naresh sent by SI Surta Nand on the basis of which, the FIR was registered against the accused persons.
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5. PW2 and PW3 are public witnesses Mrs. Sunita Behl and Sh. Vineet Behl. Both these public persons are the neighbours of the accused and have deposed that the accused had brought the minor girl Bhawani @ Bulli from their native place in Orissa in the year 20082009 and projected that she was their relative . Both the witnesses deposed that the accused used to beat the minor girl .They further deposed that in the month of March 2011, the said minor girl came to their house crying and complained to them that the accused were beating her continuously and were not letting her to go to her native place. The witnesses deposed that the victim was seriously injured and she had alleged to them that the accused had beaten her with fist blows. Witnesses deposed that in the meantime, the accused came to their house and as they were being make to them understand the plight of the victim, the matter got flared up and thus, PCR was called at the spot by the witness Vinit Behl. They also deposed that since the environment was not conducive for the child victim ,they sent her to their friends house for sometime .
6. PW4 is public witness Sh. Lalit Dogra. This person has deposed that in the year 2011, he was working with the public witness Sh. Vinit Bhel who is an advocate by profession. He deposed that in the evening of 10.03.2011, he FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 5 Of 20 was present at the house of Sh. Vinit Bhel when the minor girl Bhawani came to their house and started crying by saying that both the accused used to beat her up. Witness further deposed that in some time, both the accused came there and tried to take the victim back due to which the atmosphere became tense and there was verbal altercation between the accused, Vinit Bhel and his wife.
7. PW5 is public person Sh. Sumit Arora. He is stated to be the client of public witness Vinit Bhel. Witness deposed that in the evening of 10.03.2011, he was present at the house cum residence of advocate Vinit Bhel when one minor girl came running inside the house. Witness deposed that the minor girl was crying and complaining that her employer used to beat her up. Witness deposed that on the saying of Vinit Bhel, he took the minor girl to his house for some time to pacify her and after some time, he took her back to the house of Vinit Bhel, where police met with them.
8. PW6 is Women HC Asha. She had joined the investigation along with IO SI Surta Nand on 11.03.2011 wherein she had witnessed the arrest of the accused Veena in the present FIR from her house at Ramesh Nagar.
9. PW6 (incorrectly noted) is Dr. Sajjad Hassan, Senior Resident, Department of Medicine at Acharya Bhikshu FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 6 Of 20 Hospital, Moti Nagar. He deposed that on 11.03.2011, he was posted at DDU Hospital as Senior Resident Casualty on which date, one patient namely Bhawani @ Bully , who was stated to be 13 years of age was brought in the hospital by her neighbour Sunita with the history of assault whereafter, he had medically examined her vide MLC No. 4335. The MLC was exhibited as EX. PW6/A in his evidence.
10. PW7 is women HC Mamta. This police official had joined the investigation alongwith SI Surta Nand on 18.03.2011 on which date, the victim was brought to Tis Hazari Courts from Nirmal Chhaya, Tihar and her statement u/s. 164 Cr.P.C was recorded. The witness further deposed that on the next day i.e. on 19.03.2011, the victim was taken from Nirmal Chahhaya to the Office of SDM, Ram Pura where her statement was recorded by the SDM .It was deposed that the statement of the father of the victim was also recorded by the SDM on the same date.
11. PW8 is Dr. Rakesh Kumar, CMO of DDU Hospital, Delhi. He deposed that on 13.04.2011, he had handed over the age determination report of victim Bhawani, D/o Sukumar to the police containing the XRay report , opinion of the board, laboratory slip, OPD Tickets and Xray plates. The witness deposed that he had not examined the victim personally.
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12. Investigating officer of the case SI Surta Nand was examined as PW9. He deposed that on 10.03.2011, he received DD No. 33A while he was on emergency duty and thereafter, he proceeded to reach the spot i.e. House NO. 3/115, Ramesh Nagar along with Ct. Naresh. Witness deposed that on reaching the spot he found the PCR Caller Vinit Bhel who disclosed to him that a minor girl child namely Bhawani @ Bulli was being made to work as a house maid in the house of the accused Nimai Chand against her will. Witness deposed that he was informed by the PCR Caller Vinit Bhel that the victim came to his house at 04:30 pm and started crying and complaining that she was being beaten up by the accused and was being made to work as a house maid. Witness deposed that he was further told by PCR Caller Vinit Bhel that the minor girl was sent by him to his friend's house at Paschim Vihar and on arrival of the police, she was called back for making a statement against the accused. Witness deposed that he recorded the statement of the victim and thereafter, sent Ct. Naresh with the tehrir for getting the FIR registered. Witness deposed that in the meanwhile, he got the victim medically examined from DDU Hospital and the FIR was got registered .Witness stated that he proceeded to carry out further investigation in this case and went to the house of the FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 8 Of 20 accused and interrogated him and arrested him for committing the offences against the victim. Witness deposed that due to absence of lady constable, he did not arrest the accused Beena on the same day. He deposed that on 18.03.2011,he got the statement of the victim recorded u/s. 164 Cr.P.C and got the age assessment of the victim by way of medical examination dt. 02.04.2011 and 22.06.2011.
13. PW10 is SI Ram Phool. This police official has carried out further investigation after SI Surta Nand and has filed the chargesheet before this court. He deposed that on 19.07.2011, the victim and her father were produced before the SDM for recording of their statements .Witness deposed that after completion of investigation, he filed the chargesheet against the accused.
14. PW11 is Dr. Sunil Kakkar, HOD, Radiology, MV Hospital, Delhi. This witness deposed that on 22.06.2011, the victim Bhawani @ Bulli D/o Sukumar was examined by medical board under his chairmanship. He deposed that as per the opinion of the medical board, the estimated age of the victim was above 15 and below 17 years.
15. PW12 Bhawani Singh is the victim in this case. On her appearance before the court on 29.11.2018, it was observed that the victim was not able to understand Hindi Languague FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 9 Of 20 and could only speak in Odiya language, thus, a translator was called by the prosecution from Orissa Bhawan, Delhi for assisting the State in recording of her evidence. Thereafter, the evidence of the victim was recorded on 30.10.2018, wherein she deposed that her uncle Nimai Chand used to beat her up as she did not study. Thereafter, the witness denied the suggestions put to her by Ld. APP that she was brought to Delhi by the accused to work as a house maid or that she was made to do house hold chores liking swiping, washing the utensils, cooking food on gas etc., at the saying of the accused and without her will. The witness further denied that she was beaten up by the accused or that she was beaten up and slapped on the date of incident. The victim failed to identify her thumb impression on her statements recorded by the police and claimed that the complaint, on the basis of which, the present FIR was registered was never read out to her. The statement of the victim recorded u/s. 164 Cr.P.C was read out to her during her testimony, but, she stated that she had not made any such statement during investigation.
16. PW13 is HC Naresh Kumar. This police official had accompanied the IO during the investigation of this case on 10.03.2011. He deposed that the statement of the witnesses was recorded by the IO in his presence whereafter, he took the FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 10 Of 20 tehrir to PS Kirti Nagar and got the FIR registered. Witness further deposed that after registration of the FIR and inquiry in to the facts of the present case, the accused Nimai Chand was arrested by the IO in his presence .
17. PW14 is Sh. M. P. Singh, Ld. ASJ, Electricity Court, Dwarka. This witness was the Metropolitan Magistrate who had recorded the statement of the victim u/s. 164 Cr.P.C on 18.03.2011 during investigation of the present FIR. In his evidence, the witness proved the proceedings vide which the application for recording of statement u/s 164 CrPC was marked to him and the proceedings by which the statement of the victim was recorded by the witness u/s. 164 Cr.P.C.
18. Thereafter, statement of the accused u/s. 313 Cr.P.C was recorded separately for both the accused in which the accused claimed that they had been falsely implicated at the behest of public witness Vinit Bhel who was an advocate and had misused his position . The accused claimed that this was a vindictive litigation and that Vinit Bhel and his wife Sunita Bhel had implicated them in false cases over money matters. In this regard, it was claimed that the children of the accused were taking tuition from Sunita Bhel from April 2009 till August 2010 on charging a fee , but in the month of July 2010, witness Vinit Bhel had taken a sum of Rs. 2 Lacs as Loan from the FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 11 Of 20 accused Nimai Chand , but he did not return the same. Accused claimed that when his children stopped taking tuition from the witness Sunita Bhel and he demanded the loan back from him, disputes arose between them and thus , Vineet Behl became vengeful against him and implicated him in false case in connivance with the police and others. However, the accused did not lead any evidence in their defence.
19. Thereafter , Final arguments were heard in this case.
Findings are as under ;
20. Ld. Defence counsel had vehemently argued that this litigation was arising as an afterthought and offshoot of a monetary dispute between the accused and the prosecution witnesses PW Vineet Behl and his wife PW Sunita Behl .Ld. Counsel for the accused claimed that the public witnesses Vineet Behl and Sunita Behl had cooked up a false story and used the victim in order to pressurize and harass the accused .It was contended by the defence counsel that the victim Bhawani @Bulli was the relative of the accused and she was staying with them in their house willingly .It was further contended that the victim had also met with her family members many a times during her period of stay with the accused and that the said fact was duly recorded by the SDM in the statement of the FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 12 Of 20 victim .It was claimed that the victim was never forced to do any house hold chores and she was brought from her native place to the house of the accused so that she could study with their help. The statement of the victim which was recorded by the SDM was a part of the chargesheet , however prosecution choose not to exhibit it in their evidence , yet since the document was a part of the chargesheet , the defence brought the document to the notice of the court while pleading that they were not guilty of committing the offences .In the said statement recorded by the SDM during investigation , the victim had stated that she had gone to Orissa along with the accused many a times during her period of stay with them .In a similar statement of the father of the victim recorded by the SDM , he had admitted that her child was willingly staying with the accused .Both the victim and her father had admitted in these statements that the victim had met with her family in Orissa on her visit with the accused .There was no allegation by the father of the victim that she was made to stay with the accused without her consent .Hence , the defence argued that it was clear that the present FIR was registered on the basis of a false and cooked up story .On the other hand , prosecution argued that the testimony of public witnesses was consistent with the contents of the chargesheet and conviction could be FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 13 Of 20 based on their sole testimony , even in the absence of support from the victim.
21. The present FIR was registered on the basis of complaint Ex PW9/B wherein the prosecutrix had alleged that she was brought from her native village in Orissa to the house of the accused as a domestic help .She alleged that she was being made to stay and work in the house of the accused without her consent .She further alleged that she was beaten up by the accused on various occasions and was not allowed to meet her family members .She alleged in her complaint that on the date of the incident , she was severely beaten up by the accused by slaps and fist blows.
22. It was observed that in the course of prosecution evidence , the presence of the victim was obtained with much difficulty .When she appeared in the witness box ,it was noted by the Ld. Predecessor trial court judge that the victim was unable to understand Hindi and could only speak in Odiya .No such fact had ever come on record in the FIR .Infact , the complaint Ex PW9/B was recorded in Hindi and the same contains the thumb impression of the victim whereas there was no noting to the effect that the victim was unable to understand Hindi and thus , the services of an interpreter were being used at the time of recording of her complaint .Infact , during the FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 14 Of 20 entire investigation , the IO does not seem to have used the help of an interpreter to elucidate responses from the victim or to make her understand the implications of statements made at her behest .However , an interpreter was called from Orissa Bhawan during prosecution evidence and the deposition of the victim was recorded with his assistance . It is worthwhile to mention that in her testimony , the victim supported the defence as she claimed that she was reprimanded by the accused only when she did not study .She denied that she was made to do household chores by the accused against her will or that she was beaten up and tortured by the accused .The victim denied that she had complained against the accused with witnesses Vineet and Sunita Behl and stated that her thumb impressions had been taken on the complainant without explaining to her the contents of the same .It is trite to record that the victim turned hostile to the prosecution and did not support their case against the accused . It was brought to the notice of the court that in the MLC of the victim ;Ex PW6/A , there were no visible injury marks seen on the body of the victim whereas in the complaint Ex PW9/B , it was alleged that the victim was beaten up by the accused on the date of the offence .Furthermore ,in the testimony of PW Vineet Behl and PW Sunita Behl , it was deposed to by them that on the date of the incident, the victim came to their home with serious FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 15 Of 20 injury .It was deposed to by PWVineet that the victim told him that she had received injury on her legs by a bread roller .However , a perusal of the MLC Ex. PW6/A shows that the victim had received absolutely no visible injuries on her body on the date of the incident .Thus , it becomes clear that the testimony of PW Vineet Behl and PW Sunita Behl was false and could not be trusted .Furthermore , PWLalit Dogra deposed in his testimony that the victim had told them that she was beaten up mercilessly whereas the contents of her MLC made it clear that there were no injury marks on her body .However , this witness admitted that there were hot talks between the accused and the witnesses Vineet and Sunita Behl on the date of the incident .It was claimed by the accused that it was a monetary issue between them and the witnesses Vineet and Sunita had flared up the issue and it was given a different colour by them .A suggestion in this regard was given to PW Lalit , however he failed to deny this suggestion .The witness also stated in his cross examination that the alleged incident was narrated by the victim to PW Vineet Behl and not to him .The witness also stated that the victim had only talked to PW Vineet Behl and not with him .He stated that before the date of the incident , he had always seen the victim happy and normal .Similarly , PW Sumit Arora stated that the victim had directly interacted with PW Vineet Behl and not with him. A FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 16 Of 20 suggestion was given to this witness that PW Vineet Behl had taken a loan of Rs 2 Lakhs from the accused Nimai Chand but he did not deny this suggestion and stated that he did not know anything about this fact .PW Sumit Arora had claimed in his testimony that he was a client of PW Vineet Behl amd had come to his house on the date of the incident and that is when he saw the victim for the first time .Ld. Counsel for the accused had argued that the incriminating testimony of this witness was tainted as he was an interested witness and was deposing at the behest of PWVineet Behl .He argued that the testimony of this witness could not be relied upon to record a finding of guilt against the accused .This argument of the defence was not without sustainable grounds .
23. The FIR was registered against the accused on the allegations that they were compelling the victim to work as a house maid without her consent .The testimony of the victim has made it clear that she was living with the accused with her consent .She had denied that the accused had treated her with cruelty or had made her work without her wishes .It was brought to the notice of the court that during investigation , the victim had stated before an SDM that she had met with her parents in her home town during her stay with the accused .Thus , it was argued that this fact was significant admission FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 17 Of 20 that the victim was staying with the accused out of her own free will .It was also brought to the notice of the court that there was no identification proof or document to prove the age of the victim to show that she was a minor on the date of the incident .The IO had admittedly not seized any document from the victim or her father to ascertain her age .The IO had got an age determination test conducted upon the victim twice . During the first test , report had come that the victim was above 17 years of age but below 19 years of age . Ld. Counsel for the accused argued that in view of the judgment of Hon'ble Delhi High Court titled Shweta Gulati v. State ;Govt. of NCT of Delhi, Cr Rev No. 195/18 (decided on 08.08.2018) the defence was entitled to claim the benefit of 2 years margin on the above noted age to plead that the victim was a major on the date of the alleged offence and thus , the provisions of Juvenile Justice Act were not attracted in this case .
24. In the above noted case ,the Hon'ble High Court dealt with bone ossification test report that had estimated age of the victim as 17 to 19 years. The court observed the following ; "The question that arises for consideration is as to whether, while determining the age of the victim, the benefit of doubt in age estimated by the bone ossification test is to go to the accused or the victim.
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14. The settled principle is that the ossification test is not conclusive of age determination. It is settled that it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. The Supreme Court, in several decisions, has taken judicial notice of the fact that the margin of error in age ascertained by radiological examination is two years on either side.
15. Now the question that arises for consideration is as to whether the lower of the age or the higher of the age is to be taken. If benefit of doubt has to go to the accused then one would have to take the higher limit and if benefit of doubt has to go in favour of the prosecutrix then the lower of the two limits would have to be taken.
16. It is also settled position of law that benefit of doubt, other things being equal, at all stages goes in favour of the accused.
In the present case as no document of age was available, the age has been determined by the Child Welfare Committee as 17 years based on the ossification report. The bone ossification test report has estimated the age as 17 to 19 years. So applying the margin of error principle, of two years on either side, the age could be between 15 to 21 years. In the present case even if the margin of error is not taken on the higher side, the upper limit of the age estimated by the ossification test is 19 years".
25. It was argued by the defence that in the present case , since the result of the first bone ossification test had come out to show the age to be between 1719 years of age, hence by FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors Page No. 19 Of 20 affording the benefit of 2 years , the victim could not be held to be a minor on the date of the incident.
26. At this stage, it is relevant to mention that the prosecution had exhibited the second age determination test report conducted at the behest of the police wherein her age came out to be 1517 years of age .On being questioned , the state could not give plausible grounds for the IO to have preferred for a second opinion for the age determination .Admittedly , there was no court order asking the IO to go for a second opinion on the age of the victim .Thus , the conduct of the IO in choosing to go for a second bone ossification test without any reasonable ground and then , selecting the same to exhibit in their evidence suggests that investigation was not carried out in a fair and just manner.
27. This court is in fact of the view that since the victim had turned hostile and the testimony of remaining prosecution witnesses was merely hearsay , thus , there was no material on record to convict the accused for the offences they have been charged with. It being so , the accused are liable to be acquitted for lack of evidence in this case .
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28. Both accused are accordingly acquitted for the charges u/s 374 IPC and Sec. 23 Juvenile Justice Act . Bail Bonds already on record shall be extended for a period of 6 months u/ s 437 A Cr.P.C.
Announced in the open court (CHHAVI KAPOOR) on 23.04.2022 Chief Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi.
Certified that this Judgment contains twenty (20) pages and each page is signed by me.
(CHHAVI KAPOOR) Chief Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi.
FIR No. 69/11 PS : Kirti Nagar State Vs. Nimai Chand & Ors