Delhi District Court
State vs . Devender & Ors. on 17 January, 2014
State Vs. Devender & Ors.
IN THE COURT OF MS VANDANA JAIN, M.M., MAHILA COURT
(EAST), KARKARDOOMA COURTS, DELHI.
FIR No. 266/02
PS: FARSH BAZAR
U/Sec. 452/323/342/354/34 IPC
STATE VS. DEVENDER & ORS. PRAVEEN
ID No. RO054032003
JUDGMENT:
1. Date of commission of : 18.11.2002
offence
2. Name of complainant : Smt. Suman
W/o Shri Ravindra
R/o H. No. 352, Old Post
Office Street, Shahdara,
Delhi-32
3. Name of the accused, his : i) Devender,
parentage and address S/o Shri Tekchand
R/o 352, Old Post Office
Street, Shahdara, Delhi-32
ii)Surender Kumar
S/o Shri Tekchand
R/o H. No. 618/F-1 Ravi
Dass Gali, Vishwas Nagar,
Shahdara, Delhi
iii) Bijendri
W/o Shri Surinder Kumar
R/o H. No. 618/F-1 Ravi
Dass Gali, Vishwas Nagar,
Shahdara, Delhi
4.Offence complained of : u/s 452/323/342/354/34 IPC
5. The date of order : 17.01.2014
6. Plea of accused : Pleaded not guilty
7. The final order : Convicted
Reserved for judgment : 09.01.2014
Date of judgment : 17.01.2014
BRIEF REASONS FOR THE DECISION:
1. The brief facts of the present case are that the complainant Smt. Suman had made a complaint against accused Surender 1 State Vs. Devender & Ors.
Kumar, Devender Kumar and Bijendri with regard to the incident dated 18.11.2002. However, the police did not take any action and she moved a complaint before the court and directions for registration of FIR were given u/s 156 (3) Cr. PC. and FIR was registered and charge sheet was filed. In the complaint made before the court, the complainant has alleged that the accused Surender Kumar is her jeth, Bijenderi is her jethani and accused Devember is her devar and were residing at municipal number 352, Old Post Office Street, Shahdara, Delhi and she is a household lady and has two children. She has alleged that accused Surender and Devender were having an evil eye upon her and they were of quarrelsome nature and has also stated previously that the accused Surender Kumar had outraged the modesty of the complainant and the case was registered against him u/s 354 IPC which was compromised in Lok Adalat.
2. It is stated that on 18.11.2002 at about 07:00 pm, the complainant was sitting in her room on the first floor and was watching the television and at that time the accused persons came to her room with lathis and dandas and the accused no. 2 (Bijenderi) and accused no. 3 (Devender) gave beatings to her with fist and blows and accused Surender caught hold of her breast and pressed it and accused Devender also caught hold of her and gave beatings with fist and blows. She has stated that accused Bijenderi also gave beatings with wiper and thapki to her. She has further stated that the accused threatened the complainant that she cannot do any harm to them and previously she could not do any harm to them and thereafter 2 State Vs. Devender & Ors.
accused fled away threatening her that one day they would come and kill her. She was rescued from the clutches of the accused persons by the neighbours namely Smt. Jaggo and Smt. Kamlesh and she sustained injuries on her person due to the beatings given by the accused persons. Thereafter she made a call at 100 number and called her husband from the shop and the local police arrived but did not take any action. She was not medically examined and she herself went to Swami Dayanand Hospital to get her MLC conducted and she was medically examined and the doctor of said hospital asked the police to collect MLC and then ASI Mangey Ram reached the hospital and collected the MLC. She has stated that the X-ray plates of the complainant were also drawn and she was kept under medical observation. She has also stated that she lodged a complaint after waiting two days in the office of the DCP (East) Distt but no action was taken. Then she filed a complaint in the office of ACP. She has stated that the police was in connivance with the accused persons and the accused persons in furtherance of their common intention had committed the offence u/s 452/323/342/506/354 IPC by forcibly entering into the house of the complainant, causing injury on her person, confining her in a room and threatening her with dire consequences of life and outraging her modesty.
3. On the basis of the complaint, the FIR was registered and the charge sheet was filed and all the three accused persons were summoned and the charge under the aforesaid section was framed on 20.10.2003.
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4. Prosecution cited as many as 10 witnesses out of which seven witnesses have been examined.
5. PW1 is Ct. Pawan under whose presence accused Devender was arrested by IO ASI Vijaypal Singh.
6. PW2 Shri Vijay Singh is public witness who stated that on 18.11.2002, he was standing outside his house and saw that accused persons were giving beatings to complainant Suman.
7. PW3 Suman is the complainant.
8. PW4 Smt. Kamlesh is a public witness and has completely turned hostile.
9. PW5 Smt. Jaggo is also a public witness who has turned hostile.
10. PW6 is Dr. Kamal Kumar CMO, Incharge Casualty, SDN Hospital who identified the signatures of Dr. Tulsi Mishra who examined the complainant on 18.11.2002 and proved MLC Ex. PW-6/A.
11. PW7 HC Manoj Kumar from Complaint Branch, DCP Office (East) who stated that he is not in a position to produce the complaints as the complaints have been destroyed.
12. PW8 HC Sanjeev, from the office of ACP, Vivek Vihar who had stated that complaint was moved by the complainant on 22.11.2002 by personally coming to their office and same was sent to SHO PS Farsh Bazar on 25.11.2002. He proved on record the entry of diary register Ex. PW8/A.
13. PW9 SI Vijay Pal Singh who has stated that he is the IO of the present case.
14. Statement of accused was conducted wherein all the three 4 State Vs. Devender & Ors.
accused persons denied the allegations and stated that the complainant wanted to grab house bearing no. 352, Old Post Office Street, Shahdara, Delhi -32 which was in the name of Late Tek Chand and they all four brothers have share in the same and they have been falsely implicated in the present case. It is further stated that they are residing in the very house but was not at home at that time and incident had taken place at that time.
15. Accused persons in order to raise their defence produce Shri Prem Chand as DW1 who was the neighbour of the accused persons. However, he did not depose anything either with regard to incident or with regard to anything else. Shri Gobind Ram was examined as DW2 who only stated that on 18.11.2002 in the evening police had come at about 07:00 pm at the house of Devender Kumar.
16. Thereafter, final arguments were heard and record perused.
17. In the examination in chief of PW3 Smt. Suman who is the complainant herein has stated that on 18.11.2002 her jeth Surender, jethani Bijendri came inside the room with danda and lathies and started beating her and they pulled her with her hair downstairs and in the gali they also gave beatings to her and she was rescued by one Vijay. It is further stated that after few minutes of their coming, her brother in law namely Devender also came into her room armed with stick and also joined her jeth and jethani and he also gave beatings to her. She further stated that the accused persons got her struck against the tap in the gali causing injuries to her and she called at 100 number. 5
Police came but did not lodge the complaint. She herself got her medically examined. It is also stated that the accused persons had outraged her modesty by tearing her blouse one day prior to the incident. She exhibited her complaint as Ex. PW3/A. She has also stated that Jaggo is their neighbour who had also witnessed this incident. It is pertinent to mention here that her examination in chief was deferred on 09.11.2009 for want of original documents and her further examination in chief was recorded on 22.3.2010 wherein she had come with a different version. She had stated that she had taken the private treatment for injuries which she had suffered. She had brought the original medical papers. She had further stated with regard to the fact that the accused Surender caught hold of her breasts and pressed it and Devender caught hold of her neck and gave her fists blows and accused Bijenderi had beaten her by wiper and thapki and accused Surender and Devender had threatened that she would be killed. In this statement, she has given a different version as mentioned in the complaint Ex. PW3/A which was not narrated by her in her examination in chief dated 09.11.2009. In her examination in chief dated 09.11.2009 she had not stated that accused Surender had pressed her breast neither she had alleged that accused Devender caught hold of her neck. She has also specifically not stated that Bijenderi had beaten her with wiper and thapki. In her statement dated 09.11.2009, she had simply stated that she was beaten by accused persons and then she was pulled from her room to the gali. In the complaint Ex. PW3/A she had not stated anything with regard to the same. It 6 State Vs. Devender & Ors.
is not the version of the complainant in the complaint Ex. PW3/A that she was taken downstairs to the gali by the accused persons by dragging her from her room. It is important to mention here that she has stated that she was rescued by one Vijay Kumar PW2 who has simply stated that he was standing outside the house and he had seen that the accused persons were giving beatings to the complainant. He is not the witness to the allegation that the complainant was dragged from her house to the gali. PW5 Smt. Jaggo has completely turned hostile to whom she has claimed to be the witness of the incident. She has also stated in her statement dated 09.11.2009 that her modesty was outraged by the accused persons by tearing her blouse one day prior to the incident i.e. 19.11.2009. But no such averment has been made in the complaint, before the court or before any other higher authority. During her cross-examination by ld. Counsel for accused persons, she had stated that she had received injuries on her head and four stitches were applied. She has also stated that she received injuries in both her hands and both arms were plastered by the doctor. She has also stated that she got her ear drum torn and for which she was operated later on at Hindu Rao Hospital within one year of the said incident.
18. Perusal of record reveals that she had brought medical papers Ex. P-1 to P-7 prepared by SDN hospital pertaining to the complainant Suman. In the medical records, OPD slips of 23.11.2002, 26.11.2002, 28.11.2002, 20.10.2002 and 26.12.2002, 03.01.2003, 17.02.2003, 24.02.2003, 28.03.2003, 7 State Vs. Devender & Ors.
31.03.2003, 07.4.2003, 24.4.2003, 26.5.2003, 06.6.2003, 02.6.2003, 26.6.2003, 04.7.2003, 21.8.2003, 13.08.2003 and 12.9.2003 have been produced. In these documents fracture in arm and problem of dry ears is also shown whereas in the MLC which has been exhibited as Ex. PW6/A only one abrasion over the front of forearm has been shown. It is specifically stated that no external injuries except the abrasion on the forearm is present in the body. Ex. P1 to P7 have not been proved by calling the record from the hospital or the concerned doctor. It is further important to notice here that PW3 Suman had stated in her cross-examination that she received injuries on her head and four stitches were applied but this is not mentioned anywhere in the MLC Ex. PW6/A. Even the factum of striking her head against the tap in gali is not mentioned in the complaint Ex. PW3/A. It is pertinent to mention here that complaint Ex. PW3/A is a complaint made by the complainant through her counsel and it cannot be said that the complainant did not know the actual facts by that time. It is pertinent to mention here that other than the complainant there is no other public witness who had supported the version of the complainant with regard to the fact that she was beaten in her room and accused persons had entered her room with danda and lathis to assault her. It is further not proved that accused Surender and Devender had outraged her modesty by pressing her breasts or pulling her neck by giving beatings to her. PW2 Vijay Kumar had simply stated that he had seen the accused persons giving beatings to PW3 Suman while he was standing outside the house meaning 8 State Vs. Devender & Ors.
thereby he had not seen as to what had happened inside the complainant's house and he had seen the incident in the gali only. Even otherwise, it has come on record that the dispute is with regard to the property which is in the name of the deceased father in law of the complainant, the the husband of the complainant and accused Devender are residing in that property. The averments that the accused Surender Kumar tried to outraged her modesty previously has also not been proved on record.
19. The factum of forcibly entering her room at the first floor by all the three accused persons and further the fact of outraging her modesty by them could not be proved by the complainant who is the only witness in the present case. Since forcibly entering in her house by accused persons has not been proved, the question of wrongfully confining the complainant does not arise and therefore all the accused persons are acquitted for the offence u/s 452/342/354/34 IPC.
20. As regards section 323 IPC, PW2 Shri Vijay Kumar had stated that he had seen that all the accused persons were giving beatings to the complainant. He was not cross-examined by ld. Counsel for the accused persons. His testimony stands proved in absence of cross-examination. His testimony is further supported by Ex. PW6/A which shows that she has received simple and she had clearly stated that there was an alleged history of assault. She had given the complaint wherein the name of the accused persons have been mentioned clearly. From the evidence on record, it is clear that though the story 9 State Vs. Devender & Ors.
putforth by the complainant is not true and did not take place in sequence narrated by her but a quarrel had taken place wherein she was given beatings by the accused persons. Hence, all the accused persons are convicted for the charge framed for the offence u/s 323/34 IPC.
Heard on the point of sentence on 27.01.2014. Announced in the open court (VANDANA JAIN) Dated: 17.01.2014 M.M./Mahila Court (E) 10 State Vs. Devender & Ors.
FIR No. 266/02 PS Farsh Bazar 17.01.2014 Present: Ld. APP for State.
Accused present on bail.
Vide separate judgment dictated and pronounced in the open court, accused persons are acquitted for the offence u/s 452/342/354/34 IPC whereas convicted for convicted for the charge framed u/s 323/34 IPC. Heard on the point of sentence on 27.01.2014.
(VANDANA JAIN) M.M./Mahila Court (E) 17.1.2014 11