Delhi District Court
Fir No.208/2010 State vs . Kapil Vyas Ps: Moti Nagar on 9 January, 2017
FIR No.208/2010 State Vs. Kapil Vyas PS: Moti Nagar
IN THE COURT OF MS. RUCHIKA SINGLA:
METROPOLITAN MAGISTRATE (MAHILA COURT03),WEST,
TIS HAZARI COURTS, DELHI
FIR No : 208/2010
P.S. Moti Nagar
U/s 354/323 IPC
STATE vs. Kapil Vyas
1. Case I.D. No. : 70536/2016
2. Date of complaint : 09.07.2010
3. Name, parentage & address
of the accused : Kapil Vyas
S/o Sh. Lok Chand Vyas,
R/o GH5A & Flat No.754, 1st Floor,
Paschim Vihar, New Delhi.
4. Offence complained of : U/s 354/323 IPC
5. Plea of accused : Pleaded not guilty
6. Final order : Acquitted
7. Date of order : 09.01.2017.
JUDGMENT
BRIEF REASONS FOR SUCH DECISION :
1. Accused has been forwarded to face trial U/s 354/323 Indian Penal Code (hereinafter referred to as IPC). In a nut shell, the prosecution story is that complaint was made by the complainant that on 09.07.2010 at about 03:40 p.m., at Venus Trading Company, WZ50B/1, 1 st Floor, Basai Dara Pur, Delhi, the accused used criminal force upon the complainant with intention to outrage her modesty and also caused hurt to her. On this complaint, FIR was registered and Page 1 of 9 FIR No.208/2010 State Vs. Kapil Vyas PS: Moti Nagar after completion of remaining investigation, charge sheet was filed in the Court.
2. Copy of charge sheet was supplied to the accused free of cost U/s 207 CrPC. Finding a prima facie case, accused was charged U/s 354/323 IPC, to which he pleaded not guilty and claimed trial.
3. Prosecution to prove its case examined six witnesses namely PW1 Ms. X is the victim. PW2 Sh. Anil Kumar is the husband of the complainant. PW3 SI Rameshwar Oraon is the DO. PW4 Ct. Pradeep Kumar aided to the IO in the investigation of the present case. PW5 Dr. Amit Mehtani identified the signature of SR Dr. Awdhesh and proved the MLC of the complainant in the present case. PW6 HC Hari Ram is the IO. Thereafter, P.E. was closed.
4. Statement of the accused U/s 313 Cr.P.C. was recorded separately wherein he denied all the allegations levelled against him. Accused chose to lead defence evidence. He examined one Sh. Rishi Pal as DW1. He was duly cross examined by the Ld. APP and discharged. Thereafter, the D.E. was closed.
5. I have heard the arguments advanced by the Ld. APP for the State as well as Ld. counsel for the accused and gone through the case file carefully and thoroughly.
6. In the present matter, the accused has been charged for the offences U/s 323/354 IPC. Ld. APP has submitted that both the offences are made out against the accused. She has relied upon the statement of PW1 victim who has Page 2 of 9 FIR No.208/2010 State Vs. Kapil Vyas PS: Moti Nagar deposed that on the day of incident i.e. 07.07.2010, she went to the office of the accused for a job interview. During the interview, he asked her what salary she expected to which she replied Rs.5,000/ per month. Then, she states that the accused stated that he shall not pay this much salary but offered her a salary of Rs.3,000/. Then, she states that when she refused to this salary, the accused snatched her mobile phone, asked her to come in his cabin, abused her and touched her body with wrong intentions. She further deposed that he gave her beatings in the presence of the staff, misbehaved with her and did not let her leave his cabin. Finally, he let her go by extending a threat to her that she should not complain regarding the same. Thereafter, she called her husband from a PCO and went to the office of the accused with him where the police was already present. The Ld. APP submits that the victim was duly cross examined by the Ld. counsel for the accused but she remained firm on her testimony. Hence, on the basis of this testimony, the accused should be convicted.
7. Further, the Ld. APP also relied upon the testimony of PW2 Anil Kumar, who is the husband of the complainant. It is stated that he deposed in corroboration with PW1. He also withstood the test of cross examination and his testimony could not be shaken by the defence. Further, she submits that the FIR was registered shortly after the said incident. The MLC of the complainant has been proved by PW5 Dr. Amit Mehtani and hence is proved as Ex. PW5/A. Perusal of same shows that she has suffered various injuries on her body. Hence, it is proved that the accused voluntarily caused hurt to her and used criminal force upon PW1 to outrage her modesty. Hence, the offences are made out against the accused.
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8. Per contra, Ld. Counsel for the accused has submitted that the accused has been falsely implicated. No such incident ever occurred. The complainant lodged the present FIR as the accused had refused to offer her a job in his firm. This FIR is nothing but a revengeful tactic ployed by the complainant. Further, Ld. Counsel submits that it is upon the prosecution to prove its case beyond reasonable doubts but the evidence led by the prosecution is full of contradictions and unworthy of reliance. In this regard, Ld. Counsel has invited the attention of the Court to the testimonies of PW1 complainant and PW2 Anil Kumar. He submits that as per the prosecution case, the date of incident is 09.07.2010 but the complainant in her examinationinchief states the same to be 07.07.2010 and changes the same to 09.07.2010 in her cross examination. PW2 Anil Kumar, on the other hand, states that the incident occurred in the year 2011. Further, as per her complaint Ex.PW1/A, on the day of incident i.e. 09.07.2010, the accused had left the office at about 11.00 am and returned at about 3.00 pm after which the incident occurred. However, as per her testimony as PW1, she had already left the office at 2:00 - 2:30 pm. Hence, at the time of incident, as per her own version, the accused was not present at the spot.
9. Further, it is submitted that as per PW1, she had gone for this alleged interview at the behest of one Ms. Vinita who was allegedly working in the office of the accused but she was neither cited as a witness or produced in the witness box by the prosecution. Further, both PW1 and PW2 gave different versions regarding the sequence of events. Also, PW1 had alleged in her statement that her mobile phone had been snatched by the accused but no steps were taken for the Page 4 of 9 FIR No.208/2010 State Vs. Kapil Vyas PS: Moti Nagar recovery of the same. Thereafter, it is submitted that the complainant, her husband and the police witnesses, all gave different versions as to where and when the complainant wrote her complaint or who wrote the same, till when the complainant remained at the PS, when was her medical examination conducted etc.
10. Per contra, Ld. Counsel has relied upon the testimony of DW1 Rishi Pal who has stated on oath that he used to supply thread in the office of the accused. He stated that on 09.07.2010, at about 3:00 - 3:30 pm, while he was present in the office, a girl aged about 23 years came there and started quarreling with the female staff for allowing her to speak to some sir. She told that somebody had sent her there for job of sweeper. In the meantime, the accused came out of his cabin and told her that there was no job available and asked the staff to send her outside. Thereafter, the accused went back in his cabin but the girl continued the quarrel and threatened that she shall call the police and implicate them in false cases. Then, one of the staff members called at 100 number. It is submitted by Ld. Counsel that from this testimony it is apparent that the prosecution version is false and that the accused has been falsely implicated.
11. I have perused the entire record. Admittedly, there are certain discrepancies in the versions of the witnesses regarding the investigation. However, it is a well settled principle of law that the lapses in investigation should not be allowed to affect the merits of the case. The Court should be more concerned if the incident in question is proved to have occurred by the prosecution or not. This is the more important aspect which shall have a Page 5 of 9 FIR No.208/2010 State Vs. Kapil Vyas PS: Moti Nagar conclusive effect on the outcome of the trial.
12. To prove the commission of the offence, the prosecution has mainly relied upon the statement of PW1 complainant. There is no other eye witness to the incident produced by the prosecution. The prosecution has urged that PW1 has deposed incriminatingly against the accused and could not be shaken from her testimony by the accused in her cross examination. However, the Ld. counsel for the accused has taken the plea that the testimony of the complainant is inconsistent when compared to her previous statement recorded U/s 161 CrPC.
13. In her initial complaint Ex.PW1/A, the complainant states that she had gone to the office of the accused on 07.07.2010 when she was interviewed by the accused and was asked to join duty on 09.07.2010. Then she states that on 09.07.2010, the incident in question occurred. However, in her testimony before the Court, she stated that the entire incident occurred on 07.07.2010. She never stated in her testimony that she had gone to the office of the accused twice. In fact, she states very clearly that on 07.07.2010, she had gone to the office for job interview and during this interview the incident occurred. This is a serious concern as the same is in total contradiction to her original version.
14. Further, in her cross examination, she states that after interview, she had left the office and was called again by telephone. No such statement is made by her in her initial complaint Ex.PW1/A. Further, her husband i.e. PW2 Anil Kumar stated that the incident occurred in 2011. The same may be considered to be an honest mistake in view of the time passed. However, he further states that Page 6 of 9 FIR No.208/2010 State Vs. Kapil Vyas PS: Moti Nagar he had gone to the office of the accused with the complainant and was sitting outside during the whole interview. No such submission is made by the complainant that she was accompanied by her husband at any point of time. This is also a relevant fact.
15. Thereafter, both the witnesses stated that the complainant left the office after being beaten up by the accused. Then, she reached near Ramesh Nagar Metro Station and from a PCO, she called her husband, who then came there and they together returned to the office of the accused. Thereafter, both of them have stated that they found certain police officials already present in the office. However, the IO PW6 HC Hari Ram stated that when he reached the spot i.e. the office of the accused, he found that the complainant was not there but was present at Ramesh Nagar Metro Station. He further stated that he went to the Metro Station, where he found the complainant and her husband. This is again in total contradiction to the versions of both the witnesses. From all these contradictions, the version of the complainant seems to be doubtful. This is so as the contradictions are material in nature and hit on the actual sequence of events, which the complainant is expected to remember in view of the nature of offence.
16. Further, no public witness has been produced by the prosecution. No inquiry seems to have been conducted by the IO from the staff of the accused, even though it is alleged by the complainant that she was beaten up in their presence. In fact, the accused produced one eye witness namely DW1 Rishi Pal who stated on oath that he used to supply thread in the office of the accused. He stated that on 09.07.2010, at about 3:00 - 3:30 pm, while he was present in the Page 7 of 9 FIR No.208/2010 State Vs. Kapil Vyas PS: Moti Nagar office, a girl aged about 23 years came there and started quarreling with the female staff for allowing her to speak to some sir. She told that somebody had sent her there for job of sweeper. In the meantime, the accused came out of his cabin and told her that there was no job available and asked the staff to send her outside. Thereafter, the accused went back in his cabin but the girl continued the quarrel and threatened that she shall call the police and implicate them in false cases. Then, one of the staff members called at 100 number. This witness was duly cross examined by the Ld. APP but he remained firm on his testimony.
17. There is no reason to disbelieve the testimony of this witness. Moreover, his version seems to be more apt considering the police was also called by the staff of the accused, which is confirmed even by the complainant. Further, the complainant had stated that she had gone for the interview at the behest of one Ms. Vinita but she was not produced in the witness box to corroborate this fact. Hence, the version of the accused that the complainant had come to the office on her own seems to be more plausible. Further, the DD entry of the 100 number call is proved on record as Ex.PW3/D as per which it has been informed at the PS that one lady who had come for the job of a maid had threatened them and misbehaved with them. This call is at 4.00 pm. There is another subsequent call of 5.05 pm which is Ex.PW3/B wherein it has been alleged that the office staff was misbehaving. It has been urged on behalf of the prosecution that the complainant was unable to make the first call as her mobile phone had been taken by the accused. However, Ld. counsel for the accused has rightly pointed out that there are no such proceedings for recovery of mobile phone conducted by the IO. In case the mobile phone had actually been snatched, some complaint would have Page 8 of 9 FIR No.208/2010 State Vs. Kapil Vyas PS: Moti Nagar been made by the complainant to the IO in this regard. However, the complaint Ex.PW1/A is completely silent in this regard. The fact regarding the snatching of the mobile phone has come on record for the first time during her testimony in the court.
18. Further, though the complainant states in her examinationinchief that her mobile phone was snatched by the accused, she does not say as to how she recovered the same. It seems that this whole story was concocted by the complainant only to build a defence against the police call made by the staff of the accused. This also seems to be the correct factual position as in her entire statement, the complainant does not describe as to how the accused outraged her modesty. She simply states that he touched her body with wrong intentions. She does not explain as to how and where he touched her. Hence, as there are no specific allegations regarding outraging modesty, the offence is not made out on that ground also. The accused has also been charged for the offence under Section 323, IPC. However, for the reasons mentioned above, the court is not convinced with the complainant's version regarding the whole incident. The defence of the accused seems to be more accurate and true. Hence, the Court is inclined to give a benefit of doubt to the accused as in the Court's opinion, the prosecution has failed to prove its case beyond reasonable doubt. Hence, he is acquitted of all the charges.
ANNOUNCED IN THE OPEN COURT TODAY ON 09.01.2017 (Ruchika Singla) MM (Mahila Court03) West,THC,Delhi.
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