Delhi District Court
Kamal Kishore Mangla vs State Of Nct Of Delhi on 17 January, 2019
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
CRIMINAL APPEAL NO.89/2018
Kamal Kishore Mangla
S/o Shri Suresh Chand
R/o House No.108,
Gali No.7, Shakti Vihar,
New Delhi
. . . . Appellant
Versus
State of NCT of Delhi . . . . Respondent
Date of Institution : 22.02.2018
Date of Arguments : 17.12.2018
Date of Judgment : 17.01.2019
JUDGMENT
1. Vide this judgment, I shall decide the present appeal filed against the impugned judgment dated 15.01.2018 and order on sentence dated 25.01.2018 passed by learned Metropolitan Magistrate (in short "MM"), (Mahila Court), SouthEast District, Saket Courts, Delhi in case titled State Vs. Kamal Kishore Mangla, FIR No.98/17 under sections 341/354/509/506 of the Indian Penal Code, 1860 (in short "IPC") PS Jaitpur whereby learned MM convicted the appellant and CA No.89/18 Page No. 1 of 19 he has been sentenced for a period of one year and fine of Rs.5,000/ to be payable to the complainant for the offence punishable under section 354 IPC and in default of payment of fine, he shall undergo simple imprisonment for three months. He has been further sentenced to pay fine of Rs.500/ for the offence punishable under section 341 IPC and in default of payment of fine, he shall undergo simple imprisonment for a period of three days. Further, appellant has been sentenced to undergo simple imprisonment for six months and also to pay a fine of Rs.500/ for the offence punishable under section 509 IPC and in default of payment of fine, he shall undergo simple imprisonment for a period of three days. Further, he is sentenced to undergo simple imprisonment for a period of one month for the offence punishable under section 506 IPC. All the sentences were directed to run concurrently.
2. The brief facts of the case from the trial court record and from this appeal are that on 11.11.2016 at about 4.00 p.m. at Gali No.14, Block1, Hari Nagar Extension, within the jurisdiction of PS Jaitpur, the appellant / accused used criminal force against the complainant by holding her hand and with intent to outrage her modesty. Further, on the above same date, time and place, he wrongly restrained the complainant, abused her in filthy language and also threatened her with dire consequences. The appellant / accused was charge sheeted for the offence punishable under section 341/354/506/509 IPC.
CA No.89/18 Page No. 2 of 193. The FIR was registered and after completion of investigation, the charge sheet was filed and the court of learned MM took cognizance on 06.04.2017 and vide order dated 13.04.2017, the charges for the offence punishable under section 341/354/506/509 IPC were framed against the appellant and the appellant pleaded not guilty and claimed trial.
4. The prosecution has examined six witnesses in support of its case.
5. The statement of appellant/accused was recorded under section 313 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") wherein the appellant denied all the allegations leveled by the prosecution and has stated that he has not committed any offence and has been implicated falsely in this case due to money dispute.
6. The appellant has examined defence witnesses who is his brother namely Pawan Mangal as DW1 who testified that the accused/appellant used to purchase household articles from the shop of the husband of the complainant due to nonpayment of dues and a false case was filed by the complainant and her daughter. The said witness was duly crossexamined on behalf of State / respondent.
7. Feeling aggrieved, the present appeal has been filed by the appellant on the following grounds: CA No.89/18 Page No. 3 of 19
a) There is no independent evidence in this case against the appellant.
b) The judgment is illegal and bad in law in every respect.
c) The judgment/order is wholly on the basis of surmises and conjunctures.
d) Learned Trial court erred in law in convicting the appellant for the offence punishable under section 354 IPC merely on the Statement of victim/complainant PW1 and there is great contradiction in the statement of PW2/daughter of complainant and PW3/husband of complainant.
e) Learned MM has not considered that the proper investigation of the present case has not been conducted, which has been revealed from the statement of PW1, PW2 and PW3.
f) Learned MM has not appreciated the fact that there is delay of 84 days in lodging the present FIR.
g) Learned MM has not considered that the PW6 has not brought true facts before the court as IO has not explained the delay in lodging the FIR.
h) Learned MM has not considered that the IO/PW6 has not CA No.89/18 Page No. 4 of 19 brought on record the PCR call record during the investigation.
i) Learned MM has erred while convicting the appellant that there was dispute between the PW1, PW2 and PW3 and the appellant, the amount of purchase of goods of shop by the appellant from them and therefore, the present false case has been planted upon the appellant.
j) Learned MM has not considered facts that the appellant was arrested on 25.02.2017 when the daughter of the complainant had lodged another false FIR bearing no.141/17 dated 24.02.2017 PS Jaitpur under section 354/341/509/506 IPC which clearly shows the malafide intentions of the witnesses PW1, PW2 and PW3 to put the appellant behind the bar.
k) There are contradictions in the statement of PW1, PW2 and PW3 under section 161 Cr.P.C.
l) Learned Trial court has failed to apply its judicious mind and passed the aforesaid order in a very mechanical manner.
8. On these grounds, learned counsel for appellant argued that the appellant has been falsely implicated. Learned Counsel for appellant prayed for setting aside the impugned judgment and order on sentence.
CA No.89/18 Page No. 5 of 199. On the other hand, learned Additional Public Prosecutor for State / respondent argued that there is no merit in the present appeal and that learned trial court has taken all these objections into consideration while passing the impugned judgment and order on sentence and hence the appeal deserves to be dismissed.
10. Detailed arguments heard. Record perused carefully.
11. Learned counsel for appellant has submitted that as per the complainant, the quarrel between the complainant, PW1, PW2 and PW3 and the appellant took place on 11.11.16 due to nonpayment of money and the alleged incident took place on 11.11.2016 at about 4 PM and the matter was reported to the police on 12.11.2016 and the FIR was registered on 05.02.2017 and about delay of 84 days occurred in lodging the FIR. He argued that the delay clearly shows that the alleged incident had not taken place and the present case has been implanted upon the appellant with the help of local police.
12. It has also been argued on behalf of the appellant that PW6/IO has not explained the delay in lodging the FIR and he has also not brought on record the PCR call record during the investigation which has been clearly admitted by PW1 in her statement that PCR call had been made by her daughter PW2 in the evening.
13. Learned counsel for appellant argued that there was dispute between PW1, PW2 and PW3 and the appellant over amount of CA No.89/18 Page No. 6 of 19 purchase of goods of shop by the appellant from them and appellant has been wrongly implicated because of the same.
14. He also argued that appellant was arrested on 25.02.2017 when the daughter of the complainant had lodged another FIR bearing no. 141/2017 dated 24.02.17 at PS Jaitpur under section 354/341/509/506 IPC which shows the malafide intention of witnesses PW1, PW2 and PW3 to put him behind the bars.
15. Attention has been drawn to the testimony of the witnesses, statement recorded under section 161 Cr.P.C. and the statement of complainant recorded under section 164 Cr.P.C. and it has been argued that the same are full of inconsistencies, contradictions and improvements.
16. It is noticed that the statement of the complainant, PW1 was recorded in tehrir on 12.11.2016. In the said statement, Ex. PW1/A, she had stated that one auto suddenly stopped in front of her and the appellant came in front of her in a drunken condition and threatened her to sit in his auto else he would destroy her and her family. She also stated that the appellant tried to drag her by holding her hand and abused her by calling her 'Randi'. Complainant further stated that she got her hand freed from the appellant and ran away from there and on reaching her shop, she told about the incident to her husband. Prior to that also, the appellant had tried to misbehave with daughter of the complainant while she was going to or coming CA No.89/18 Page No. 7 of 19 from college as well as to make her sit in his auto forcibly. She stated that while she was narrating the incident to her husband, the appellant had already left.
17. In her examination in chief which was recorded after about five months of the incident, PW1 stated that on 11.11.2016 at about 4 PM, the appellant was following her in his auto from I Block till Tanki Road. He was drunk and stopped his auto at Tanki Road and started saying "auto mein baith". When she did not listen to him, he started abusing her and said "Tu randi hai. Tu meri taangon ke neeche rehi hai". He also pulled her left hand and forcefully started to pull him her in the auto. She with great difficulty saved herself and reached her shop which is near her house. At the shop, she met her husband and told about entire incident. The appellant followed her back to her shop in his auto. Then he left the spot.
18. Learned counsel for appellant has alleged that there are contradictions in the testimony of PW1 when read against her statement, Ex. PW1/A as in Ex. PW1/A, the complainant did not say that the appellant was following her from I Block till Tanki Road but had rather stated that suddenly one auto stopped in front of her and the appellant in drunken condition came in front of her. He also argued that in her statement Ex. PW1/A, PW1 had stated that when she was narrating the incident to her husband, the appellant had already left. However in her evidence recorded in the court, she stated that appellant followed her to her shop in his auto and CA No.89/18 Page No. 8 of 19 thereafter he left the spot. He also argued that the appellant had nowhere stated in her complaint, Ex. PW1/A that appellant started abusing her and said "Tu randi hai. Tu meri taangon ke neeche rehi hai". Learned counsel for appellant argued that no such incident took place and the complainant has falsely implicated the appellant.
19. Learned Additional Public Prosecutor for State / respondent has argued that the submissions made by learned counsel for appellant are unfounded and the variations in the statement of PW1 are minor and are explanatory in nature and cannot be stated to be contradictions.
20. It is noticed that statement of PW1 was recorded on 25.04.2017 and on the same day prior to that, her statement under section 164 Cr.P.C. was recorded. In the said statement, she nowhere stated that appellant followed her after she ran away from the spot of incident although her remaining narration of the incident was same as recorded in Ex. PW1/A.
21. It is further noticed that as per PW1, the alleged incident took place at I Block, Tanki Road and she escaped by reaching her shop and in her crossexamination, she stated that it would take 15 minutes to reach her shop from Tanki Road. PW3, her husband, on the other hand, in his examination in chief as well as in his cross examination stated that on 11.11.2016, at about 4 PM the complainant had gone to the market for buying vegetables and after CA No.89/18 Page No. 9 of 19 about 10 - 15 minutes, she came back to the shop. Learned counsel for appellant has rightly argued that one of the statements cannot be true as the two statements cannot coexist since had the incident taken place at Tanki Road and admittedly, the time taken to reach shop from Tanki Road is 15 minutes, PW1 could not have reached back to the shop in 15 minutes.
22. In Ex. PW1/A, the complainant had stated that the appellant/accused had come back at 7 PM and started drinking liquor outside gali no.14 and stayed there till 8 PM. During the said period, she was returning from the shop to her house and he stopped his auto in front of her. She had also stated that immediately she went back to her shop and the appellant started revolving his auto near the shop and came to the shop. The crowd gathered there and all of them told him to go from there but he did not go and said that he was standing on the road. The road is not owned by anybody's father. When he did not agree, then elder daughter of the complainant made a call to 100 number at 7:59 PM and on seeing this, the appellant fled from there.
23. In her examination in chief, PW1 deposed that at 7 PM on the same day near gali no.14, appellant came with his auto for parking the auto and started drinking liquor. When at about 8 PM, she passed the said spot, he started abusing her by "tu randi hai. Tu meri taangon ke neeche rehi hai" and thereafter public gathered there and accused/appellant told her that "sadak tumhare baap ki CA No.89/18 Page No. 10 of 19 hai". Thereafter her daughter called the police at 100 number upon which the appellant / accused fled from there. PW3 has also deposed on the same lines.
24. It is noticed that in her examination in chief, PW1 did not say anything about the appellant having revolved his auto near the shop and came to the shop. Rather she has nowhere stated that the appellant came to her shop at all. In Ex. PW1/A, PW1 has not mentioned that appellant abused her by saying "tu randi hai. Tu meri taangon ke neeche rehi hai" and thereafter, public gathered there and accused/appellant told her that "sadak tumhare baap ki hai". Thus there is improvement as well as contradiction in the statement of PW1 as recorded in Ex. PW1/A as compared to her statement recorded in her examination in chief. Further it is noticed that in her statement recorded under section 164 Cr.P.C which was recorded on the same day on which her evidence was recorded in the court, PW1 had only stated that in the evening, the appellant had come in drunken condition to their shop and created nuisance (Hungama karne laga). She also stated that she made a call to the police so he fled from there.
25. Thus there is also contradiction in respect of who made the phone call to the police i.e. whether PW1 made the call or her daughter PW2. PW3 has also deposed that the phone call was made at 100 number by PW2, i.e. daughter of PW1 and PW3. However PW2 in her examination in chief has nowhere stated of CA No.89/18 Page No. 11 of 19 any incident having occurred in the evening on 11.11.2016 much less about having made any phone call to the police on that day.
26. Though PW2 and PW3 were not there at 4 PM at the time of alleged incident, their evidence is only hearsay evidence. However as per version of PW1, the incident in the evening between 7 PM to 8 PM took place in their presence but there are contradictions in the testimony of PW1, PW2 and PW3 as well as in the testimony of PW1 read against her examination in chief and statement recorded under section 164 Cr.P.C.
27. It is also noticed that PW1 has deposed that police did not come at the spot after repeated call by her daughter but in the same breath stated that the police person asked about the appellant/accused and her daughter told that the appellant / accused left the spot. However PW2 did not depose anything about having made any phone call to the police in the evening of 11.11.2016 nor has any record of phone call/PCR call been placed on record by the prosecution. On the other hand, PW3 has deposed that the police persons from 100 number had made a call to him to enquire as to what had happened but the did not come on that day and said that on the next day, he should come to the police station.
28. PW1 has deposed that on the next day, they went to the police station and gave written complaint i.e. Ex. PW1/A. PW2 has deposed that on 12.11.2016, he alongwith his wife went to the police CA No.89/18 Page No. 12 of 19 station but police did not take any action. PW2 has not stated anywhere that she went to the police station with her parents or otherwise on 12.11.2016 however PW6 in his crossexamination has stated that PW1 was accompanied by her daughter.
29. PW1 in her examination in chief as well as in her statement recorded under section 164 Cr.P.C has narrated about another incident to have occurred on 04.01.2017 which could not have been and is not mentioned in the Ex. PW1/A as it was recorded on 12.11.2016.
30. PW1 has deposed that on 04.01.2017, she was sitting in her shop alongwith her husband, PW3, and at about 8:15 PM, the appellant came in his auto in a drunken condition and caught hold of her hand and put his hand on her breast and torn her blouse. She also stated that appellant pushed her husband who fell down as he was suffering in his leg and operation was also conducted on his leg. She also stated that the appellant dragged her outside the shop and abused her by saying that "Tu randi hai. Main tujhe barbaad kar dunga". Thereafter her daughter called the police at 100 and two police persons came at the spot and took the accused/appellant alongwith them.
31. About the said incident husband of PW1, i.e. PW3 has deposed that on 04.01.2017, the appellant again came in front of shop and stopped his auto and came to their shop. He caught hold of the hand CA No.89/18 Page No. 13 of 19 of PW1 and touched her by holding her clothes. On seeing this, PW3 stood up and appellant pushed him due to which he fell down. Appellant took his wife out of the shop by dragging her. Public also gathered outside the shop. PW3 also came out of the shop and tried to stop the appellant. Appellant again started abusing his wife. His daughter made a call at 100 number and police took away the appellant to the police station.
32. The narration of PW1 and PW3 is also different in respect of the manner and the extent of appellant touching the person of PW1. Further it is noticed that PW2, the daughter of PW1 and PW3 has stated in her examination in chief that on 04.01.2017 at about 7:30 PM, she had gone to her shop and saw a huge crowd in front of the shop and her mother i.e. PW1 had injuries on her hand and knees and her clothes were torn. Appellant was present at the spot and was shouting and telling that he had made a film and will destroy the reputation of her mother. He was also calling his friends and was shouting 'rehne nahin dunga barbad kar dunga" he also gave threats to her mother that he would kill her and could do anything. She also said that public had gathered at the spot and the appellant was heavily drunk. Public persons tried to make him understand but appellant replied that 'maine abhi to kucchh nahi kiya hai, aage isse bhi jyada karunga". Thereafter she made a call on 100 number and police reached at the spot after 20 - 25 minutes. PCR van took the appellant and asked them to reach at the police station. Thereafter her mother and father went to police station.
CA No.89/18 Page No. 14 of 1933. It is noticed that the statements made by PW2 in respect of conduct of appellant on 04.01.2017 have not been stated by PW1 and PW3. Further PW1 and PW3 had stated that police came there but not about PCR having a role and reached there. PW2 has stated that PW1 and PW2 had gone to the police station whereas PW3 did not say that he had gone to the police station after the police took away the appellant. PW1, on the other hand, has stated that she went to police station alongwith her husband i.e. PW3 and her tenant Karan. None else has named any person by name of Karan. Further PW1 in her examination in chief stated that the police person and appellant did not reach the police station. One of the police persons who took the appellant alongwith them called PW 1 and told them to reach at Lovekush Restaurant. Thereafter, they went to Lovekush Chowk and met the accused/appellant and police person. Police person told them that the appellant would not repeat the same with them.
34. PW1 also deposed that thereafter she appended her signature on compromise deed on the instrument of police person and thereafter, she went back to the house. However in cross examination PW1 stated that at the time of compromise deed, the appellant/accused was not present there.
35. In her statement recorded under section 164 Cr.P.C., PW1 had stated that on 04.01.2017, appellant came to their shop in drunken condition and hit her chest and thigh by his hand. When he dragged CA No.89/18 Page No. 15 of 19 her, her blouse got torn. She also stated that appellant had pulled her by her hand and abused her. She also stated that when her husband tried to intervene, the appellant pushed her husband and when she shouted, appellant said bad things to her. Thereafter they made a phone call at 100 number. Thus she nowhere stated that her husband fell down nor she stated that the appellant had touched her inappropriately. She did not say that the phone call was made by her daughter.
36. What is more important to be noticed is that on the complaint of PW2 i.e. daughter of PW1, an FIR bearing no.141/2017 was registered against the appellant on 24.02.2017 which contained similar allegations against the appellant by PW2 as contained in the FIR no.98/2017 by PW1 in which the impugned judgment and order on sentence have been passed. In her examination in chief as well as her statement recorded under section 164 Cr.P.C., PW1 has not mentioned about the said FIR bearing no.141/2017. It is further noticed that PW5, in his examination in chief, stated that on 24/25.02.2017 i.e. the day on which the appellant was arrested, when he rang the doorbell of appellant, husband of complainant (PW3) identified him and told that appellant is the same person who misbehaved with his wife. The said statement is relevant in view of the fact that on the same day, on the complaint of daughter of PW2 and PW3, FIR bearing no.141/2017 was registered against the appellant and the alleged date of incident was the same date i.e. 24.02.2017. PW3 did not say that appellant is the same person who CA No.89/18 Page No. 16 of 19 misbehaved with his wife earlier and with his daughter. The date of alleged incident of appellant with daughter of PW3 is 24.02.2017 and same is the date of arrest of appellant i.e. 24/25.02.2017.
37. It is noticed that the prosecution has not examined any witness or police official who allegedly reached at the shop of the complainant on 04.01.2017 after the alleged incident of the evening of the said date. Police witnesses, PW5 and PW6 have deposed about the arrest of the appellant on 24/25.02.2017. Besides that PW 6 has also deposed about receiving a written complaint given by the complainant on 12.11.2016. PW4 has deposed about receiving of rukka from PW6 on 05.02.2017 and registering of FIR no.98/2017 in which the impugned judgment and order on sentence have been passed.
38. The appellant had taken a specific defence that the husband of the complainant was running a General Store and he used to buy household articles from him and certain amount of money was due from him. He was unable to pay the said amount and therefore the case was filed falsely against him.
39. PW1 in her statement recorded under section 164 Cr.P.C. has specifically stated that she already knew the appellant as she had a shop of groceries (parchoon) and appellant used to buy things (sauda) from there. Specific suggestion was put to PW1, PW2 and PW3 that there was a dispute of money between the complainant CA No.89/18 Page No. 17 of 19 and the appellant/accused as he had not returned the money to them. Brother of appellant had appeared before the learned trial court as DW1 and also deposed that the appellant used to purchase household articles from the shop of husband of the complainant and due to nonpayment of the dues, the complainant and her daughter made the false cases due to which quarrel between complainant and appellant/accused took place on 12.11.2016 and 25.02.2017. Even during his crossexamination, he stated that the amount of ₹5000/ to Rs.7,000/ was due upon the appellant who had purchased ration etc. from the shop of complainant. It becomes relevant to note that there is no mention about the incident of PW1 being called to Lovekush restaurant or of having executed any compromise deed with the appellant. None else has spoken about execution of any compromise deed. PW1 has not brought on record the said compromise deed or any copy thereof. If any such compromise deed was affected, its contents would have brought the truth before the court. Thus, the best evidence has not been brought before the learned trial court or this court.
40. There is no mention about the said incident of her being called to Lovekush restaurant or of having executed any compromise deed with the appellant. None else has spoken about execution of any compromise deed. PW1 has not brought on record the said compromise deed or any copy thereof which could have revealed the nature of dispute between the parties.
CA No.89/18 Page No. 18 of 1941. Perusal of the order reveals the contradictions between the testimonies of the prosecution witnesses and thus prosecution failed to prove its case. Hence the present appeal is allowed and the appellant is acquitted for the offences punishable under section 354/341/509 and 506 IPC.
42. A true copy of the Judgment be sent alongwith the trial court record.
43. Appeal file be consigned to record room.
Announced in the open (DR.NEERA BHARIHOKE)
court today i.e. 17.01.19 Addl. Sessions Judge06
SouthEast, Saket Courts, New Delhi
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2019.01.18
11:24:09
+0530
CA No.89/18 Page No. 19 of 19