Delhi District Court
Govt. Of Nct Of Delhi vs Sh. Saeed on 4 August, 2016
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IN THE COURT OF SH. NARINDER KUM AR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Decided on: 04.08.2016
CA No. : 17/16 of 28.04.16
Govt. of NCT of Delhi
Through
Public Prosecutor, Central District.
..... Appellant
Versus
Sh. Saeed
S/o Sh. Rais Ahmed
R/o H. No. 1701, First floor,
Gali Takth Wali, Sui Walan,
Darya Ganj, Delhi.
Permanent Address:
Mohalla Agavanan, Amrohi District,
Amrohi, U.P.
.....Respondent
State v. Saeed CA No.17/16 DoJ: 04.08.2016
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JUDGMENT
By way of present appeal, Govt. of NCT of Delhi has challenged judgment dated 11.01.2016 passed by Ld. Metropolitan Magistrate in case FIR No. 209/14 of PS Chandni Mahal as the respondent herein, has been acquitted of the charge framed against him.
2. Ld. Additional Public Prosecutor has submitted that statement of complainant PW4 Tuba Khan was supported by PW7 Sh. Umrao Singh, Electoral Roll Officer on material aspects but even then Ld. Metropolitan Magistrate passed judgment of acquittal. The contention is that the impugned judgment of acquittal deserves to be set aside.
3. On the other hand, ld. Counsel for respondent submitted that Ld. Metropolitan Magistrate has rightly acquitted the accusedrespondent of all the offences. Further, it has been submitted that no reliance can be placed even on the statement of PW7 Umrao Singh as neither he nor anyone from his office informed the police from the spot and there is no explanation in State v. Saeed CA No.17/16 DoJ: 04.08.2016 3 of 14 this regard, which creates doubt in the version narrated by PW7, in view of contradictions and inconsistencies in the statement of complainant. The contention is that for the reasons recorded by Ld. Metropolitan Magistrate, the accused respondent herein deserved to be acquitted of the charge framed against him and as such appeal deserves to be dismissed.
4. Accusations levelled against the accusedrespondent, as per charge dated 07.11.2014 read as under:
"That on 04.08.2014 at about 3.00 P.M., at Churiwalan and Shankar Gali, Turkman Gate, Delhi within the jurisdiction of PS Chandni Mahal, you insulted the modesty of the complainant Smt. Tuba Khan by abusing her with filthy language and also used the criminal force against the complainant to outrage her modesty and demanded her to develop illicit relationship with you and thereby you committed an offence punishable u/s 354/354A/509 IPC and within my cognizance.
Secondly, for the last four years since the abovementioned date, you were stalking the complainant and State v. Saeed CA No.17/16 DoJ: 04.08.2016 4 of 14 thereby you committed an offence punishable u/s 354D IPC and within my cognizance.
Thirdly, on the abovementioned date, time and place you also threatened the complainant to deface her by pouring the acid and also threatened her to kill her husband, kidnap her children and thereby you committed an offence punishable u/s 506 IPC and within my cognizance."
5. Since the accused pleaded not guilty and claimed trial, prosecution examined following witnesses:
(1) PW1 ASI Kanwar Sain,
(2) PW2 Ct. Rahul Tyagi,
(3) PW3 Ct. Puneet,
(4) PW4 Tuba Khan,
(5) PW5 SI Balwant Singh,
(6) PW6 Ms. Riya Guha, Ld. MM, Tis Hazari,
(7) PW7 Sh. Umrao Singh, Assistant Director
(Education),
(8) PW8 SI Yashpal Singh.
State v. Saeed CA No.17/16 DoJ: 04.08.2016
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6. In his statement under section 313 Cr.P.C., accused claimed innocence and pleaded false implication by the complainant. Plea of the accused/respondent is that actually there was a dispute over payment of Rs. 2,000/ for the repair work of common toilet, done by plumber.
7. In defence, accused examined DW1 Nasima. As noticed above, vide impugned judgment Ld. Metropolitan Magistrate acquitted the accused of all the offences. Hence, this appeal.
8. Occurrence is alleged to have been taken place on 04.08.2014, at about 3 pm, when the complainant was returning to her house from Camp Dispensary where she was employed as "Asha worker" but the case was registered at about 10 pm on the basis of complaint Ex. PW4/A submitted by the complainant herself to SI Balwant Singh, who happened to reach her house no. 1701, in Gali Takathwali, Suiwalan, Chandni Mahal in the company to Ct. Rahul.
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9. The police so happened to reach her house on the basis of DD no. 61B Ex. Pw3/D. DD no. 61B was recorded on that night at 8.35 pm on the basis of the information received from the operator C53. In this DD entry Ex. PW3/D, the information communicated to the police was "about a quarrel" at house no. 1701,Gali Takhatwali, Suinwalan, Chandni Mahal. It is not the case of prosecution that any quarrel took place between the complainant and the accused at about 8.35 pm. Then, why call given to police was about quarrel at that time? In this situation, it was for the complainant and the prosecution to explain delay in recording of FIR at 10 pm, when the occurrence, as per complaint Ex. PW4/A is said to have taken place at about 3 pm. There is nothing in the statement of PW4 complainant as to how the matter came to be reported to the police at 8.35 pm by making a phone call from mobile phone no. 9990204153 and that too about a quarrel and as to why the matter was not reported by her to the police soon after 3 pm. She admitted in her crossexamination to have not made any phone call dialing no. 100 to apprise the PCR of the occurrence.
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10. In her crossexamination, she stated that complaint Ex. PW4/A is in the handwriting of her husband. She volunteered to have dictated the same to her husband. She further stated to have signed the complaint at police station. This version of the complainant does not find mention in her complaint Ex. PW4/A. On the other hand, case of prosecution , as noticed above is that this complaint was submitted by the complainant to SI Balwant Singh at her house and not at the police station. According to SI Balwant Singh, he appended endorsement to the complaint and sent rukka from the house of the complainant. Prosecution did not cite husband of the complainant as a witness to prove as to when complaint Ex. PW 4/A was reduced into writing and as to when it was actually submitted by his wife to the police. In view of all this , court finds that prosecution has failed to explain delay in reporting the matter to the police at about 8.35 pm when the occurrence is alleged to have taken place at about 3 pm. It is well settled that whether prosecution fails to explain delay in recording of the FIR or in reporting of the State v. Saeed CA No.17/16 DoJ: 04.08.2016 8 of 14 matter by complainant to the police, the unexplained delay adversely affects the case of the prosecution, there being possibility of deliberations and consultations in making out a story.
11. Case of the complainant is that even prior to the present occurrence, the accusedrespondent had an evil eye on her. According to her, earlier also the accused had threatened her to tear her clothes and to make her naked. However, when she was confronted with complaint Ex. PW4/A, it was found that this fact does not find recorded therein. Even otherwise complainant did not produce any material before the police during investigation regarding any such earlier incident. Therefore, the complainant can safely be said to have improved upon her version while making statement in court.
12. As regards present occurrence, according to the complainant, the accused/respondent caught hold of her by her hand and dragged her towards the office of Voter Icard and when she asked him not to do so, he threatened her with rape State v. Saeed CA No.17/16 DoJ: 04.08.2016 9 of 14 and to tear away her clothes. However, in Ex. PW4/A, the complainant nowhere stated that the accused had dragged her to the office of Voter Icard. Therein, she mentioned that after the accused caught hold of her, he took her inside the Icard office.
13. Further, it is case of the complainant as PW4 that after reaching the office of voter Icard, the accused hurled abuses at her in presence of the whole staff of that office and also threatened that he would have sexual relations with her or otherwise he would kidnap her two daughters. He is alleged to have threatened her with death of her husband, a heart patient and to pour acid on her.
However, when we advert to the complainant Ex. PW4/A, it is found recorded therein that the accused hurled abuses at her in presence of entire staff and also in the presence of Sh. Umrao Singh, ARO. In the complaint, she further alleged that the accused then stepped ahead to tear her clothes. Therein, it does not find mention that when the accused took her to the office of Icard, he threatened to commit rape and to tear her clothes. Although in Ex. PW4/A, she stated about presence State v. Saeed CA No.17/16 DoJ: 04.08.2016 10 of 14 of Sh. Umrao Singh, ARO, in her statement made in court she did not name any such officer or about his presence at the time abuses were hurled at her.
It does not find mention in the complaint that even on the day of occurrence, accused asked her to have physical relations with him. There is nothing in the complaint Ex. PW 4/A that the accused threatened the complainant on the day of occurrence that she would abduct her two daughters and kill her husband who is a heart patient or that he would throw acid on her. In the complaint, regarding these acts she alleged that he used to say so for the last four years. It may be mentioned here that in case of any such threat by the accused the complainant must have reported the matter to the police earlier also, but there is nothing on record to suggest that at any point of time the complainant ever reported any such threat at the hands of the accused or that the accused used to harass her to have physical relations with him. All this goes to show that she has improved upon her version given to the police.
14. Prosecution examined Sh. Umrao Singh, Assistant State v. Saeed CA No.17/16 DoJ: 04.08.2016 11 of 14 Director (Education) as PW7. While appearing in court, PW7 stated regarding his presence on 04.08.2014 while he was serving as Electoral Roll Officer in his office at AC21, Matia Mahal. At about 3/3.30 PM, he heard loud noise and came out of his office. At that time, he saw a person, namely, Sahid (whose name he came to know later on) holding Ms. Tuba Khan forcefully by her hand. Said Tuba Khan was B.L.O. worker in his office. He saw the accused dragging her badly and hurling abuses. He also witnessed the accused threatening Tuba Khan that he would tear her clothes. Further, according to the witness, he tried to intervene, and stopped the accused. The accused then went away after extending threat to Tuba Khan.
Further according to PW7, he enquired from Ms. Tuba Khan as to what was the matter and thereupon she told him that the accused, residing in the ground floor portion of the house had been threatening her for the last four years to make physical relations with him, but every time she had ignored.
In his crossexamination, PW7 stated that the complainant was working as Anganwadi worker under Social & Welfare Department and further that she had already been hired State v. Saeed CA No.17/16 DoJ: 04.08.2016 12 of 14 by the Election Department from the Social & Welfare Department. However, he further stated that attendance of the complainant was not being marked at his office. He candidly admitted that there was no documentary proof regarding presence of the complainant at his office on 04.08.2014. He admitted to have not produced before the police any document to show that the complainant had been hired by his office.
Although the record regarding attendance of the complainant at her office on that day was not of much significance, the occurrence allegedly having taken place while the complainant was returning from office to her house, its production was required, especially when PW7 has deposed regarding presence of complainant outside his office.
15. It is significant to note that as per version narrated by the complainant in her complaint submitted to the police and in her statement made in court, she alleged that the accused dragged her towards the Voters' ICard Office while catching hold of her by her hand. But in her statement U/s.164 Cr.P.C. Ex. PW6/A, she clearly stated that it is she who had taken the State v. Saeed CA No.17/16 DoJ: 04.08.2016 13 of 14 accused to her office. The version narrated by her U/s.164 Cr.P.C. is, therefore, in contradiction with the version given by her in her complaint and the version narrated before the court. In view of this contradiction, the version narrated by PW7 Sh. Umrao Singh that the accused was dragging the complainant and hurling abuses at her, becomes doubtful. According to PW7, accused had threatened complainant that he would tear her clothes. But, the complainant, while making statement in court did not state so. Rather, she stated about threat extended by the accused in presence of the office staff that she should make sexual relation with him or otherwise he would kidnap her two daughters. None from staff was joined in investigation. In her statement U/s.164 Cr.P.C., the complainant nowhere stated that the accused had extended to her such and such threat.
It is significant to note that according to PW7 police recorded his statement after a month or two. But statement of PW7 recorded u/s 161 Cr.P.C. is dated 06.08.14. It again creates doubt in the story put forth by prosecution.
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16. In view of the above mentioned improvements made by the complainant, contradictions in the version given by her to the police and the court as well as the statement U/s.164 Cr.P.C. and the factum of unexplained delay in reporting of the matter to the police, court finds that learned Metropolitan Magistrate has rightly passed judgment of acquittal of the accused respondent.
As a result, appeal filed by the Govt. of NCT of Delhi deserves to be dismissed. Accordingly, the same is hereby dismissed. Trial court record be returned. Copy of the judgment be sent to the trial court. Appeal file be consigned to Record Room.
Announced in the open Court on this 4th August, 2016 (NARINDER KUMAR) SPECIAL JUDGE, NDPS02 (CENTRAL) TIS HAZARI COURTS, DELHI State v. Saeed CA No.17/16 DoJ: 04.08.2016