Delhi District Court
State vs . Julfikar Ali & Ors. on 27 July, 2016
IN THE COURT OF MS. NITI PHUTELA: METROPOLITAN
MAGISTRATE03 (MAHILA COURT) SOUTH DISTRICT, SAKET
COURTS:NEW DELHI
State Vs. Julfikar Ali & Ors.
FIR No. : 575/09
U/S : 354/509/506/34 IPC
PS : Mehrauli
CRN No. : DL ST020001982009
DETAILS OF THE CASE
a) SI. No of the case : 130/2
b) Date of commission of the offence : 19.08.2009
b) Date of institution of the case : 11.11.2009
c) Name of the complainant : Ms. Mehbooba
d) Name & Address of the accused : (1) Gulzaar Ali
(2) Ansaar Ali
(3) Shakeel Ahmed
(4) Julfikar
All s/o Late Sh.
Chhote Khan
All R/o D9/364,
near Parewali
Masjid,Andheria
Mod, Kishan Hatt,
Chhaterpur Pahari,
New Delhi
f) Offence complained of : 354/509/506/34
IPC
g) Plea of accused : Pleaded not guilty.
h) Reserved on : 25.07.2016
i) Date of judgment : 27.07.2016
j) Final Order : Acquittal
FIR No: 575/09 State Vs. Julfikar & Ors. 1/9
JUDGMENT
1. It is the case of prosecution as presented by the complainant in her complaint that on 19.08.2009 and even previously all the accused persons were threatening the complainant and her family members to kill them and on the abovesaid particular date all the accused persons used abusive and vulgar language against the complainant namely Ms. Mehbooba. They also caught hold the complainant from her hair and tore her upper clothes. She called the PCR by dialing 100 number. It is the version of the complainant that no police action was taken upon her complaint because already dispute was going on between her and accused persons in relation to a property. She has also alleged that accused persons took sum of Rs.2,00,000/ from her for getting some documents prepared pertaining to that property but the said documents were forged, the report regarding the same was given by her to Prime Minister's office, Lt. Governor, DCP (south), Addl. DCP. Inquiry was initiated against all the accused persons by Vigilance in which accused persons were found guilty and thereafter, they settled the matter in Panchayat but they failed to follow the settlement. In this background, on the basis of complaint of the complainant dated 20.08.2009, FIR was registered at PSMehrauli on 14.10.2009.
2. After completion of investigation the charge sheet was filed in the court.
Copies were supplied to all the accused persons. Thereafter, Ld. Predecessor Judge vide order dated 10.02.2011 gave notice to all the accused persons by explaining the substance of accusation under Section 354/509/34 IPC to which all the accused pleaded not guilty and claimed trial.
3. In support of its case, the prosecution was directed to adduce evidence.
The prosecution got examined 7 witnesses. The gist of deposition of the prosecution witnesses is discussed in the paragraphs that follows:
4. PW1 Ms. Mehbooba (Complainant): She deposed that on 18.08.2009 FIR No: 575/09 State Vs. Julfikar & Ors. 2/9 she was present at her house when all accused persons went there and started misbehaving with her. They pushed her by her breast in the presence of her children and she fell down from the stairs. They caught hold of her by her hair and gave beatings to her. She alleged that thereafter, she dialed 100 number and police reached at the spot. Her statement was recorded but no action was taken and accused persons were released. She alleged that on 19.08.2009 she went to PS and lodged complaint but again no action was taken. On 14.10.2009 FIR was registered on the direction of ACP. The complainant further testified that there was property dispute between the parties.
5. She was crossexamined by Ld.APP for the State as she was resiling from her previous statement. In her crossexamination by ld. APP for the State she admitted that accused Julfikar had threatened her and her family members to kill them by throwing acid upon them and accused Shakeel also accompanied him. As per her, incident took place at 10:00 PM to 11:00 PM. She admitted regarding making complaints to various authorities and also payment of Rs.2,00,000/ to accused and holding of panchayat. She alleged that no site plan was prepared by the police despite her request. The complaint of complainant is Ex.PW1/A. She was cross examined by ld. Counsel for defence and was discharged.
6. PW7 Mofid (Eye Witness): He deposed that the incident was of 19.08.2009 at about 10:30 PM. He testified that he was sleeping in his house which is next to the house of complainant when he heard all the accused persons abusing the complainant. When he came down he saw accused Gullu (in reference to accused Gulzar) dragging the complainant outside her house by holding her ponytail. All of them tore the blouse of the complainant and snatched her dupatta. The accused persons were giving "GandiGandi Galia" to the complainant such as 'Randi'. They also said "Dhanda Karati hai, Randi hai, Khothe par jati hai". As per him the accused persons threatened to not to give statement against them. He also alleged against accused persons that they tortured him for giving FIR No: 575/09 State Vs. Julfikar & Ors. 3/9 statement in the present case and even tried to falsely implicate him. He complained against them but no action was taken. He was crossexamined by ld. Counsel for defence and was discharged.
7. PW2 HC Subhash Chand: He deposed that he received information regarding quarrel at the PS from control room, F54 which he recorded as DD no.50A dated 19.08.2009 at 11:02 PM. He sent the DD to HC Rakesh for necessary action. The DD entry is Ex.PW2/A.
8. PW3 HC Yashwant Singh: He deposed that on 14.10.2009 he was working as Duty officer. He received rukka through SI Gajraj Singh on the basis of which he registered FIR. The copy of which is Ex.PW3/A.
9. PW4 Ct. Ishwari Prasad: He stated that on 28.10.2009 he accompanied IO Gajraj for investigation and went to the house of accused persons where they were arrested and their personal search was conducted vide memos Ex.PW4/A to Ex. PW4/H. He was crossexamined by defence and discharged.
10. PW5 HC Rakesh Kumar: He deposed that on 19.08.2009 he was posted at the PS and he received DD entry no.50A regarding quarrel. He alongwith one Constable reached the spot and met the complainant. The complainant told him that there was a property dispute between her and her neighbours. The witness asked the complainant to give her statement but she was afraid and in perplexed condition, therefore, she said that she will give her complaint only when her husband will reach home. She said that she will come to PS to give her statement.
11. PW6 SI Gajraj Singh: He deposed that on 14.10.2009 investigation of the case was marked to him on the basis of complaint of complainant on which he made his endorsement which is Ex.PW6/A. He got the FIR registered. He testified that he went to the spot next day and prepared the site plan at the instance of complainant which is Ex.PW6/B. He searched for the eye witness and thereafter met PW Mofid. He recorded the statement of witnesses under Section 161 Cr.PC and arrested the accused FIR No: 575/09 State Vs. Julfikar & Ors. 4/9 persons thereafter. He filed the chargesheet after completing investigation. He was crossexamined by ld. Counsel for defence and discharged. The prosecution evidence was closed as the same was complete.
12. The statement of all accused under Section 313 Cr PC was recorded in which they stated that the complainant had property dispute with accused Julfikar and complainant is their cousin. As per them she has filed the present false case against them to take revenge. Accused Julfikar specifically stated that he was not arrested by the IO as alleged by the prosecution and PW Mofid has deposed falsely against him as there was some water dispute between them.
13. All the accused persons stated that there was no requirement of leading any defence evidence. Hence, the matter was listed for addressing final arguments.
14. Final arguments heard by both the parties. Heard. Record perused.
15. Now coming to the appreciation of evidence led by the prosecution because it is on the evidence of prosecution and it is strength that the fate of this case depends. In this regard the testimony of complainant i.e PW1 Mehbooba is of utmost importance because she herself was the victim. Before going into the veracity of her testimony it is pertinent to mention that in her examinationinchief she has wrongly mentioned the date of incident to be 18.08.2009 whereas actually as per her complaint Ex.PW 1/A dated 20.08.2009 the incident is of one day prior to that i.e 19.08.2009. The DD entry Ex.PW2/A is also of 19.08.2009 as deposed by PW2. Be that as it may, the witness in her testimony as PW1 has merely generally stated that accused persons misbehaved with her. She has not specified the manner in which the accused persons misbehaved with her and the specific act of each accused person. She has also not specified that which accused caught hold of her from her hair. It is further pertinent to mention that in her complaint Ex.PW1/A she has stated that accused Julfikar and his two associates (Sathi) came to her house whereas in the FIR No: 575/09 State Vs. Julfikar & Ors. 5/9 present case all the four accused persons have been implicated. In her crossexamination she has admitted that all the accused persons are sons of her mausi and her elder sister is also married to the elder brother of all the accused persons which shows that parties were known to each other (and this fact is not disputed). But still the complainant failed to mention specifically the names of two associates (Sathi) of accused Julfikar in her initial complaint. Therefore, in this regard there is major contradiction in her statement regarding the presence of all the four accused persons at the spot. It is also pertinent to mention that the witness on her own failed to mention the complete facts and she disclosed everything after cross examination by Ld. APP for the State.
16. In her crossexamination by Ld. Counsel for accused, she has admitted that on the day of incident she was having her mobile and her husband was also keeping mobile with him. He was not present as he had gone to attend some function. It is not believable that if such incident took place with her she would not have made a call to her husband who would have immediately rushed there. Admittedly, her husband reached home at about 12:00 AM to 01:00 AM which shows that he had not rushed to the spot immediately. In this regard it is important to mention that in her complaint Ex. PW1/A she has nowhere mentioned that she was perplexed and afraid, rather she has alleged that police had not taken any action on her complaint after reaching the spot. This fact is also reiterated by her in her crossexamination. On the other hand PW5 i.e. HC Rakesh Kumar deposed that he insisted the complainant to give her statement but she refused on the pretext that she was afraid and will gave her statement at the PS, only after when her husband will come back. Thus, there is contradiction between the testimony of abovesaid prosecution witnesses regarding non filing of the complaint on 19.08.2009 and recording of statement of the complainant.
17. The complainant in her crossexamination admitted that she got prepared FIR No: 575/09 State Vs. Julfikar & Ors. 6/9 her complaint Ex.PW1/A by passerby and signed the same. This shows that she had not directly recorded her statement at the PS by visiting the PS alongwith her husband but rather first got the complaint written. Hence, the possibility of concoction cannot be ruled out. She also admitted that there were various cases pending against her husband and there was also dispute between her and accused persons in regard to which accused persons had filed a complaint against her husband. Therefore, the possibility of present case being a counter blast to the complaint of accused persons cannot be ruled out.
18. Further, she also admitted that she had filed no document to show that the accused persons had taken sum of Rs.2,00,000/ from her and some documents were forged by them. It is her own version that matter was settled in Panchayat wherein accused persons agreed to pay sum of Rs.5,55,000/ to her but no such document has been placed by her on record to substantiate the said claim. The documents of alleged Vigilance Enquiry have also not been filed by prosecution.
19. Moreover, she alleged that she had shown the spot to the police but they failed to prepare any site plan whereas PW6 IO SI Gajraj Singh alleged that site plan Ex.PW6/B was made at her instance. The upper clothes of the complainant which were allegedly torn by the accused persons were also not seized as the same are not on record as case property. This raises doubt over the fact that actually investigation was carried out in proper manner or not.
20. Further, as regard PW7 is concerned he specifically alleged against accused Gulzar that he was holding the pony of the complainant and used abusive language against her as mentioned above. But as already mentioned complainant herself failed to specify the abusive words used by accused persons and also the act of misbehavior of each of the accused persons. Therefore, testimony of PW7 in this regard will not be of much help. Further, the veracity of the said witness has been impeached in his crossexamination because on one hand he alleged that the relationship FIR No: 575/09 State Vs. Julfikar & Ors. 7/9 between him and the accused persons were good and normal prior to the incident. But he himself produced complaints filed by him at the PS dated 07.11.2009 which were marked X1 to X3 wherein he has alleged that accused persons were trying to implicate him in false case and they are disturbing the locality due to water scarcity. He also alleged in his cross examination that accused persons used to charge money from the people for supplying water which shows that the relationship between accused persons and the witness were already strained. The witness was also confronted with a document dated 31.3.2010. He admitted his signatures on document which is Ex.PW7/D1. In the said document PW7 has admitted that he had falsely testified in the present case under the pressure of unknown person. In this regard the witness alleged that his signatures were obtained under pressure by accused persons and the police. He stated that he had filed complaint in regard to the fact that he was forced to sign on the abovesaid document but he failed to produce any such complaint on record despite various opportunities. The said witness also admitted that there was property dispute between complainant and the accused persons, the fact which he initially denied having knowledge regarding the same. Hence, the defence has been able to show that much creditability cannot be given to the statement of abovesaid eye witness as he himself admitted that his testimony was false as per document Ex.PW1/D1 and he failed to show that his signatures on the said document were obtained under pressure.
21. Moreover, in the initial complaint filed by the complainant there is no mention regarding the presence of PW7 Mofid. The said witness entered into picture only after two months i.e when FIR was registered. Hence, the fact of presence of PW7 at the time of incidence is not without doubt.
22. Further, PW4 Ct. Ishwari Prasad alleged that he accompanied the IO to arrest the accused persons but admittedly he had not made any DD entry for joining the investigation. On the other hand, PW6 SI Gazraj Singh has FIR No: 575/09 State Vs. Julfikar & Ors. 8/9 not alleged that Ct. Ishwari Prasad accompanied him to arrest the accused persons from their house. In his crossexamination he stated that no police official had accompanied him and he was alone. This shows that the investigation was not carried out in the manner alleged by the prosecution. He admitted that he had not collected any document pertaining to civil dispute between the parties. He also admitted the fact that accused persons had filed complaint on 25.06.2009, which shows that parties had strained relationship and the possibility of present matter being counter blast to the same cannot be ruled out.
23. Hence, from the abovesaid discussion it is apparent that there are various lacunas and loopholes in the investigation and also the prosecution witnesses have not proved to be much credible therefore, the prosecution has failed to prove the case against all the accused persons beyond reasonable doubt. Hence, the benefit of the same is to be given to all the accused persons. They are therefore, acquitted from the offences under Section 354/509/34 IPC. All the accused persons are directed to furnish bail bonds as per the provision of Section 437A Cr PC.
Announced in the open Court (NITI PHUTELA)
dated 27.07.2016. MM, Mahila Court03,
South Distict, Saket Courts,
New Delhi.
FIR No: 575/09 State Vs. Julfikar & Ors. 9/9