Delhi District Court
State vs . Vinod Kumar Arora on 9 August, 2012
1
IN THE COURT OF MS VANDANA JAIN,
METROPOLITAN MAGISTRATE, MAHILA COURT (EAST),
KARKARDOOMA COURTS, DELHI.
FIR NO.:62/2005
P.S.: Farsh Bazar
U/Section 354 IPC
State VS. Vinod Kumar Arora
JUDGMENT:
1. Date of commission of : 24.2.2005.
offence.
2. Name of complainant : Sh. Arvind Sharma,
S/o Late Sh. Hira Lal Sharma,
R/o H.No. 79 Jain Mandir
Street, Chhota Bazar,
Shahadra, Delhi.
3. Name of the accused, his : Vinod Kumar Arora,
parentage and address S/o Late Sh. Ramesh
Chander, R/o 4/2928, Gali
No.4, (Chheda Lal
Commercial College), Bihari
Colony, Delhi.
4. Offence complained of : U/s 354 IPC
5. Plea of accused : Pleaded not guilty
6. The final order : Convicted.
Reserved for judgment : 24.7.2012
Date of judgment : 09.08.2012
THE BRIEF REASONS FOR THE DECISION
1. The brief facts of the prosecution case are that accused was running Chheda Lal Commercial College and the daughter of the complainant namely Ambika Sharma alongwith her friend Pooja FIR No. 62/2005 State VS Vinod Kumar Arora 2 Saini had gone to attend the typing class and accused namely Vinod Kumar Arora handed over cutting of obscene material to Ambika Sharma and told her to read the same and on reading it was found to be obscene. It is also stated that on certain previous occasion he had also touched her hands.
2. FIR was registered on 1.3.2005 and investigation was done and the charge sheet was filed on 1.6.2005 and vide order dated 22.8.2007 charge for the offences punishable U/s 354/509 IPC was framed against the accused. The said charges were read over to the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case prosecution cited as many as six witnesses namely Ambika Sharma, Arvind Kumar, Pooja Saini, ASI Ompal Singh, HC Dharmvir Singh and Ct. Ramesh Chand as PW-1 to PW-6 respectively.
4. PW-1 Ambika Sharma (Victim) stated on oath that in February 2004, again said that she was not sure about the year but it was in February. She further stated that she was doing computer course and part time typing course at Sh. Chheda Lal Commercial College. The accused namely Vinod Kumar Arora was Principal of said college. She further stated that on that day he gave a cutting containing adult and obscene material and told her to read the same. She further stated that accused told her that by reading the same her knowledge would be enhanced. She further stated that after reading the same she got nervous and left the cutting there FIR No. 62/2005 State VS Vinod Kumar Arora 3 only. She further stated that she went to meet her Bhabhi whose house was on the midway. She further stated that she informed her bhabhi about the said incident who went to her college to bring the cutting given by the accused. She further stated that the said cutting was brought and was shown to her father and thereafter her father moved the complaint. The said cutting was identified on record by PW-1 as Ex. PW-1/A. She further stated that even on earlier occasions accused touched her during typing, however she did not inform about the same to her parents. She further stated that after giving the cutting to her accused had left the spot.
5. PW-1 was cross examined by Ld. APP as she was not disclosing the complete facts.
6. She was cross examined by Ld. Defence counsel wherein she stated that she did not remember when her statement was recorded by the police. She admitted that the police had enquired about the matter from her. She further stated that her Bhabhi's name is Smt. Ritu Sharma however she did not remember her exact address however, her house is situated at Geeta Bhawan Shahdra. She further stated that she did not remember whether police had made any enquiry from her bhabhi. She further stated that she had told the police that she had gone to meet her bhabhi while coming to her home. PW-1 was confronted with her statement Ex. PW-1/B, where it was not so recorded. She further stated that she did not remember whether she had told the police that on her information FIR No. 62/2005 State VS Vinod Kumar Arora 4 her bhabhi went to the college to bring the cutting and she brought the cutting and showed the same to her father. She was confronted with her statement Ex. PW-1/B where it is not shown. She further stated that she had told the police that accused on previous occasion had touched her during typing and she had not informed the same to her family members earlier. She was again confronted with her statement Ex. PW-1/B where it is not so recorded. She further stated that she did not inform about the previous advances made by the accused during typing of touching her to police by moving separate complaint earlier. She denied that she did not inform about any such advances to police as no such act was done by the accused.
7. She further stated that the incident had occurred in the morning at about 10.00am-11.00am. She further stated that she had reached home after about half an hour. She further stated that the it takes about 15-20 minutes to reach from her college to her house. She further stated that her bhabhi had disclosed about the incident to her father. She further stated that she had told about the incident to her father in detail. She further stated that her father took her to PS Farsh Bazar. She further stated that she did not remember the time when she had gone to the police. However, it was night time when she alongwith her father and Chachi namely Neelam Sharma and her mother Manju Sharma visited the PS. She further stated that she did not know exactly as to what writing work FIR No. 62/2005 State VS Vinod Kumar Arora 5 was done by the police however some proceedings were done. She further stated that she did not know that police had taken her signatures on 4-5 papers. She further stated that she did not know that police took the signatures of any other person. She further stated that she had stayed in police station for about 30-60 minutes. She further stated that neither she nor her father were taken out to any place outside the police station. She further stated that she did not remember the time when they came back from PS. She admitted that Chheda Lal Institute is recognized by Government. She further admitted that she was admitted in said institute in February. She further stated that she did not know that during the investigation any document pertaining to receipt etc.or admission slip were taken by the police. She further stated that she did not give any document etc. regarding the fee receipts as her bhabhi collected the fees from the institute which was deposited for six months whereas she attended the institute for few days. She further stated that she had done her 12th standard from Open School namely Aggarwal P.T. College. She admitted that Principal of said school is Sh. Vinay Aggarwal. She further admitted that Sh. Vinay Kumar Aggarwal was on frequent visiting terms with her family at home. She further stated that it takes about 5-7 minutes to cover the distance between Aggarwal P.T. College and Chheda Lal Institute. She denied the suggestion that at the instance of Sh. Vinay Aggarwal, she has falsely implicated the accused and FIR No. 62/2005 State VS Vinod Kumar Arora 6 she never took admission in Chheda Lal Institute.
8. She further stated that around 10-15 students used to attend the classes alongwith her in Chheda Lal Institute. She further stated that they were together in computer class, however all students were not pursuing the typing class. She further stated that she and her friend Pooja attended the typing class as her sister was unwell, however at that time she and her friend were made to sit separately. She admitted that her sister's name is Mahima. She denied the suggestion there were always around 10-12 teacher and accused remained present during the typing class. She denied the suggestion that in the institute there were approximately 7-8 teachers and a batch of approximately 25 students is taken. She further stated that police made enquiry from Pooja and she did not know whether any enquiry was made by police from institute. She denied the suggestion that no such incident had taken place and accused has been falsely implicated in the present case.
9. PW-2 is Sh. Arvind Kumar, father of complainant. He stated on oath that he had got his daughter admitted in Chheda Lal Commercial College at Bihari Colony for computer course on 18.2.2005. He further stated that his daughter went to aforesaid college for 4-5 days. He further stated that on 24.2.2005 at abut 10.00am accused handed over one paper to his daughter. He further stated that accused had lightly pressed the hand of his daughter in the mode of carcing the same and uttered that "ISKO FIR No. 62/2005 State VS Vinod Kumar Arora 7 BAAD MEIN DHYAN SE PADH LENA". He further stated that his daughter perturbed on seeing the contents of the paper.
10. PW-2 further stated that at about 1.30pm, he came to know about the incident. He further stated that after coming to know about the incident the matter was reported to SHO. He further stated that thereafter his complaint was written and the accused was arrested. He further stated that he was called in police station and he identified the accused in police station. He proved on record the complaint made by him as Ex. PW-2/A which bears his signature at point A. He further stated that the said cutting was produced at police station and the same was seized by police. The said cutting of newspaper is proved on record as Ex. PW-2/B. He further stated that the personal search of accused was carried out in his presence vide personal search memo Ex. PW-2/C bearing his signature at point A. He further stated that accused was arrested in his presence vide arrest memo Ex. PW-2/D bearing his signature at point A.
11. PW-2 was cross examined by Ld. Defence counsel wherein PW -2 stated that he did not meet any other senior official except SHO in connection with the present case. He admitted that he met DCP, East in connection of the present case. He further stated that he reached the police station at around 2-3pm. He further admitted that Ex. PW-2/A is in his handwriting. He further stated that he had written the complaint at home. He further stated that his daughters FIR No. 62/2005 State VS Vinod Kumar Arora 8 and his younger brother was present at the time when he wrote the complaint Ex. PW-2/A. He further stated that complaint was written after discussion amongst the persons present at the time of writing of the complaint.
12. He further stated that his daughter in law namely Ritu Sharma, his brother in law were also present at the time of writing of complaint. He further stated that his daughter in law Ritu Sharma never accompanied him while going to PS. He further stated that his younger daughter is Mahima. He further stated that he cannot say where his statement was reduced in writing by the police officials at the time as he was mentally disturbed. He voluntarily stated that he was still mentally disturbed due to the said incident. He further stated that his statement was recorded by the police on 24.2.2005. He further stated that he had put his signatures on his statement.
13. PW-2 was asked a question whether he could take out the said statement from the judicial record. The said question was disallowed by the court as roving and fishing enquiry is not to be made during the cross examination. He was further questioned that whether it is correct that IO had torned said statement since it was not containing any allegation as narrated above or in Ex. PW-2/A. The said suggestion was also disallowed by the court as it casts the aspersion on the witness and secondly the said questioned should be put to IO.
FIR No. 62/2005 State VS Vinod Kumar Arora 9
14. He further stated that he had mentioned in Ex. PW-2/A that his daughter had got admission one week prior to the date of incident, however the date of 18th February was not specifically mentioned. He further stated that he had not disclosed to the police that he had come to know about the incident at around 1.30pm. He further stated that his daughter's class used to get over by 12.00-12.30noon. He further admitted that when his daughter came back to home he was present there. He further stated that on 24.2.2005 his younger daughter Mahima had not accompanied his elder daughter Ambika as she did not go to the college on the said day. He further stated that on 24.2.2005 Pooja came with his daughter and stayed there for about 1-1½ half hour and she did not meet him thereafter after leaving his home during noon time.
15. He further admitted that the accused was sent behind bars in another case on his complaint from P.S. Krishna Nagar. He admitted that in connection of said case he made a statement in SEM Court. He further admitted that Ex. PW-2/D1 is the certified copy of the statement made by him at SEM Court, Krishna Nagar. He further stated that he had not disclosed that he took slip Ex. PW-1/A to DCP in his complaint Ex. PW-2/A or in his statement made today. He further stated that he went to DCP subsequent to lodging the complaint Ex. PW-2/A with the police as he was abused by some of the students who abused him and his family members and were FIR No. 62/2005 State VS Vinod Kumar Arora 10 upto something. He further stated that being threatened and intimidated, he went to DCP to inform that he need to be protected as he had moved complaint against the acts of accused. He further stated that he cannot disclose the name and addresses of the students as they came , abused and left. He further stated that he had also verbally told about the incident to ACP also. He further stated that the directions were orally given by DCP. He further stated that he did not give any written complaint against the student either to DCP to ACP. He further stated that he did not give any written complaint to SHO against the students. He denied the suggestion that he did not given any written complaint as no incident as narrated by him had taken place. He further stated that he cannot tell the date when he met to DCP or ACP nor he can tell their names.
16. He admitted that he had given a written complaint against the accused for cancellation of the registration from this college. He further stated that he had sent the complaint by Dak. He further stated that he did not remember the name of the Government Official to whom he made the complaint and the date on which the complaint was sent. He further stated that he cannot say what is the result of his complaint. He admitted the suggestion that his application was found false and therefore no action was taken. He admitted that at the time of incident his daughter was the student of Aggarwal P.T. College at Bhola Nath Nagar. He further stated FIR No. 62/2005 State VS Vinod Kumar Arora 11 that he did not know that computer courses were also run at Aggarwal P.T. College. He denied the suggestion that since he had good relations with Vinay Aggarwal who is business rival of accused, he had lodged a false complaint against accused. He further stated that Aggarwal P.T. College is not a commercial college. He further stated that what ever he was told was written in Ex. PW-2/A. He further stated that he was not enquired by the police after 24.2.2005. He further stated that the police did not took him to the place of occurrence. He further stated that he had given the admission slip of his daughter to the police. It was observed by the court that the said admission slip is not on judicial record. He further denied the suggestion that his daughter was not admitted to Chheda Lal Colleged nor her friend Pooja and younger daughter Mahima were admitted in the same college. He further denied the suggestion that he was deposing falsely.
17. PW-3 is Pooja Saini. PW-3 in her examination in chief stated that due to her compartment result in matriculation in the year 2005, she used to go to one institute to learn computer and typing. She further stated that her friend Ambika and her sister Mahima Sharma also accompanied her to the said institute which was being run under the name and style of Chheda Lal Commercial College. He further stated that she has no idea how far, said institute was from her house. She further stated that she did not remember the date of incident, however, it was last week of February 2005. She FIR No. 62/2005 State VS Vinod Kumar Arora 12 further stated that the accused used to be the instructor of typing at the said institute. She further stated that on on the said day in February 2005 Mahima Sharma (younger sister of victim Ambika Sharma) was ill and therefore she did not accompany her and her elder sister Ambika Sharma. She further stated that when she and Ambika used to learn typing, the accused used to oftenly touch their hands. She further stated that on the aforesaid date accused gave a paper cutting which was containing obscene material to Amika and he said "Dono Pado". She further stated that thereafter they left the institute for their house. She further stated that she informed to her parents and Ambika also informed to her parents. She further stated that accused gave the paper cutting in the hand of Ambika. She correctly identified the said paper cutting which is already exhibited on record as Ex. PW-1/A.
18. During examination of PW-3 Ld. APP sought permission to put leading question to her. Accordingly she was questioned by Ld. APP that after having a look at the paper cutting and finding it obscene Ambika returned the same to the accused and therefore accused Vinod disturbed Ambika and while holding and pressing her hand gave her the paper cutting forcibly to which PW-3 answered that accused did so prior also at the time of giving giving instructions of typing.
19. PW-3 was cross examined by learned counsel for accused. In her cross examination she stated that she had accompanied FIR No. 62/2005 State VS Vinod Kumar Arora 13 Ambika to PS however, she was not sure whether her statement was recorded by the police at that time. She further stated that the police did not make any enquiry from her with regard to the present case. She further stated that she went to SEM Court, Krishna Nagar but her statement was not recorded. She denied the suggestion that her statement was recorded before SEM Court/the investigating Officer.
20. She further stated that she had no idea regarding the area of the institute but the same was being run in the house by the accused. She admitted that the accused used to live at the said house with his family. She further stated that however, she did not see his family members, perhaps they used to reside in the ground floor of said house. She further stated that at that time only three of them used to go to the institute and she did not saw any other student in said institute. She further stated that she did not know as to how many rooms were there in said premises as she used to go straight on the first floor where the accused used to run the classes. She further stated that there was another male staff who also used to teach them computer, however she did not know his name. She further stated that she did not notice any other staff in the institute. She admitted that there were other residential houses near Chheda Lal Institute. She further admitted that the spot is a thickly populated area.
21. PW-3 in her cross examination further stated that their FIR No. 62/2005 State VS Vinod Kumar Arora 14 classes used to begin from 11.00am till 1.00pm. She further stated that after the incident they reached at the house of Ambika where her parents met them. She further stated that she and Ambika narrated the incident to the mother of Ambika who subsequently told the same to her husband. She further stated that she did not know as to what action was taken by the father of Ambika. She further stated that they reached at PS in the evening at about 8.00pm. She further stated that the police did not obtain her signatures on any paper. He further stated that she did not remember if signatures of Ambika were taken by the police or not. She further stated that at the time of admission they were issued receipt regarding admission. She further stated that perhaps the said receipt was not given to the police. She denied the suggestion she was studying in Aggarwal P.T. College prior to taking admission in the institute of accused. She further stated that accused Ambika was studying in Aggarwal P.T. College prior to the present insitute. She further stated that she did not know if computer and typing were also taught at the Aggarwal P.T. College.
22. She further stated that after giving the paper cutting accused left the institute and thereafter they rushed to the house with the paper cutting. She further stated that Ambika gave cutting to the police as she had already left for her house. She further stated that the police visited the house of Ambika and at that time police did FIR No. 62/2005 State VS Vinod Kumar Arora 15 not record her statement. She further stated that she did not know what proceedings were initiated by the police at that time. She denied the suggestion that accused never used to teach or instruct them about typing at his institute. She further stated that the accused used to call them at his office for typing purpose. She admitted that the accused was Principal. She further stated that she cannot say as to whether Deepti Raheja was posted as Instructor. She further stated that she knew Ambika for the last 5-7 years prior to the said incident as she was her classmate.
23. PW-3 further stated that she was having visiting terms with Ambika. She denied the suggestion that she had not stated about the touching out of their hand and holding of their hands by accused while teaching them to the police. She further stated that she cannot say the exact date of the incident in question. She further stated that she had also talked to her parents regarding the incident prior to the incident as she mentioned above as the accused had touched their hands which was abnormal for them. She further stated that initially she was not sure as to if the holding or touching the hand by the accused was deliberate. She denied the suggestion that no such incident had ever happened or that accused never touched or hold hands as alleged by her or that she is deposing falsely or that she had never stated to the police regarding the touching or holding of hands during the investigation.
FIR No. 62/2005 State VS Vinod Kumar Arora
16
24. PW-4 is ASI Ompal Singh. He stated on oath that on
24.2.2005 he was posted at PS Farsh Bazar as HC. He further
stated that on that day he received copy of FIR of the present case alongwith original rukka as the case was marked to him by DO for the purpose of investigation. He further stated that thereafter, he alongwith constable Ramesh and complainant Arvind Sharma and his daughter namely Ambika left the PS for the spot. He further stated that after reaching at the spot i.e. Chheda Lal Commercial College, he prepared the site plan at the pointing out of complainant and proved the same on record as Ex. PW-4/A which bears his signature at point A. He further stated that the daughter of the complainant gave him the paper cutting which is already proved on record as Ex. PW-1/A and he seized the same vide seizure memo already exhibited as Ex. PW-1/B which also bears his signatures at point B. He further stated that accused Vinod met them at the spot and he apprehended him on the pointing of the the complainant and made enquiries from him. He further stated that he arrested the accused and conducted his personal search vide personal search memo already exhibited as Ex. PW-2/D and Ex. PW-2/C. He further stated that the accused was released on police bail. He further stated that he recorded the supplementary statement of complainant and statement of Ambika and thereafter relieved them. He further stated that he has also recorded the statement of Pooja who was the companion of Ambika in said FIR No. 62/2005 State VS Vinod Kumar Arora 17 institute. He further stated that during the course of investigation, he had also recorded the statement of Ct. Ramesh. He further stated that complainant Arvind Sharma which is already proved on record as Ex. PW-2/A. He correctly identified the accused in the court.
25. In his cross examination by Ld. Counsel for accused PW-4 stated that they reached at the spot in the night at about 10.15 - 10.30pm. He further stated that he had not incorporated any DD entry while leaving the police station . He further stated that he was accompanied by Ct. Ramesh, Arvind Sharma (complainant) and his daughter Ambika. He further stated that they met the accused immediately on reaching the spot. He further stated that he cannot tell the exact number of stories of the said institute , however it was more than two. He further stated that he met the accused person on the ground floor.
26. He further stated that he had not collected any documentary proof regarding the admission of Ambika in said institute. He further stated that he had not attempted to collect the newspaper from which th alleged cutting was given to Ambika. He further stated that he had not even collected any documentary proof regarding the admission of Ambika in the said institute. He denied the suggestion that Ambika was not the student of aforesaid institute and that is why no documentary proof was collected in this regard. He further stated that he had never interrogated PW FIR No. 62/2005 State VS Vinod Kumar Arora 18 Ambika , however he had met the complainant Arvind Sharma and made the interrogation regarding the present case. He further stated that complainant had come on its own and he had not summoned him. He further stated that he had not written any statement of Arvind Sharma after 24.2.2005. He further stated that no writing work was done by Arvind Sharma after 24.2.2005.
27. He further stated that he had arrested the accused in the night at around 11.00pm. He further stated that arrest memo was prepared at around 11.00pm. He further stated that he cannot tell whether the time of arrest was mentioned in the arrest memo. His attention was drawn on Ex. PW-2/D wherein time of arrest was not mentioned. He denied the suggestion that the accused Vinod Kumar Arora was lifted from his house in the morning at about 9.00am and was subsequently involved in this false case at the instance of the complainant Arvind Sharma and Vinay Aggarwal. He further stated that he had also met the brother of accused. He further stated that he had not enquired the fact of teasing from the students, teachers, staff or any other person. He further denied the suggestion that he had not enquired the aforesaid fact of teasing from others since no such incident had never happened.
28. He further stated that the site plan was prepared at about 10.30pm at the instance of complainant Arvind Sharma. He further stated that he had not taken any signature of the complainant in FIR No. 62/2005 State VS Vinod Kumar Arora 19 the site plan. He further stated that he has also not mentioned the fact that the site plan was prepared at the instance of complainant in the site plan itself. He denied the suggestion that the site plan was prepared in the police station at the instance of the complainant. He further stated that the recovery memo of cutting of newspaper was prepared inside said institute. He further stated that the site plan was prepared prior to the preparing of recovery memo. He further stated that the accused is the owner of said institute. He further stated that statement of Ambika was written on the spot. He further stated that he had not done any writing work in PS. He further stated that he remained at the spot for about 1.00 hour. He further stated that none of the relatives and friends met him in the PS. He further stated that he had not taken any signed statement of complainant Arvind Sharma nor of PW Ambika. He further stated that the writing work is in his handwriting. He further stated that the complaint was addressed to SHO. He further stated that he had not received any complaint from complainant Arvind Sharma, addressed to DCP. He again stated that he cannot say exactly whether he had received any such complaint which was addressed to DCP.
29. He admitted that the accused was booked U/s 107/151 Cr.P.C. on the very same day. He further admitted that complainant Arvind Sharma stood as a complainant in the above said case. He further stated that he was also witness in the above said case. He FIR No. 62/2005 State VS Vinod Kumar Arora 20 denied the suggestion that accused was falsely implicated in a case U/s 107/151 Cr.P.C. since accused had said that he will make complaint against him and Arvind Sharma, regarding his illegal detention in the PS. He further stated that the accused was released on bail in this case at about 11.15pm. He further stated that accused was again arrested from his house. He again stated that accused was arrested from street.
30. He admitted that case U/s 107/151 Cr.P.C. was made only against the accused person and not against complainant. He further stated that the pointing out memo of complainant for the arrest of accused was not prepared. He denied the suggestion that accused was illegally lifted from the house that is why no pointing out memo was prepared and that is why no time of arrest was mentioned in arrest memo. He denied the suggestion that Ambika had never taken any admission in Chheda Lal Commercial Institute and that's why no proof of admission was collected. He further denied the suggestion that the illegal detention of accused was objected to by his brother Shiv Kumar and he extended threat to implicate Shiv Kumar in a false case. He denied the suggestion that he had not taken the signed statement of Arvind Sharma. He further denied the suggestion that the newspaper cutting dated 23.2.2005 was planted on the accused person at the instance of complainant and one Vinay Aggarwal. He denied the suggestion that he had never visited the spot alongwith complainant Arvind Sharma and his FIR No. 62/2005 State VS Vinod Kumar Arora 21 daughter Ambika. He further denied the suggestion that all the writing work was done in the police station at the instance of complainant Arvind Sharma and Vinay Aggarwal. He further denied the suggestion that he was deposing falsely.
31. PW-5 is HC Dharmvir Singh, who stated on oath that on 24.2.2005, he was posted at PS Farsh Bazar as HC and was working as DO from 4.00pm to 12 midnight. He further stated that on that date about 9.30pm a complaint was received by the then SHO which was reduced into DD No. 27-A and on the basis of DD no. 27- A the present case FIR was registered. He had brought the original FIR. Original FIR was seen and returned and photocopy of which is proved on record by him as PW-5/A. He further stated that after recording of FIR, case was marked to HC Om Pal for further investigation. PW-5 was not cross examined by defence counsel.
32. PW-6 is Ct. Ramesh Chand. PW-6 stated on oath that on 24.2.2005, he was posted at PS Farsh Bazar as Constable. He further stated that on that day he, Ambika Sharma and the complainant Arvind Kumar Sharma alongwith HC Ompal reached at the spot i.e. Chheda Commercial College, Bihari Colony in the area of PS Farsh Bazar where they met accused Vinod Kumar Arora who was correctly identified by him in the court. He further stated that on the pointing out of daughter of complainant Arvind Kumar Sharma, IO prepared site plan. He further stated that IO seized one paper cutting vide seizure memo which was already proved on FIR No. 62/2005 State VS Vinod Kumar Arora 22 record as Ex. PW-2/B and the same bears his signature at point X and accused Vinod Kumar Arora was arrested vide arrest memo already exhibited as Ex. PW-2/D which also bears his signatures at point X. He further stated that the personal search of accused Vinod Kumar Arora was conducted vide personal search memo already exhibited as Ex. PW-2/C which bears his signatures at point X. He further stated that the accused was released on bail and IO had recorded his statement.
33. PW-6 was cross examined by Ld. Defence counsel wherein he stated that he alongwith IO/HC Om Pal, Complainant Arvind and his daughter Ambika reached at the spot on 24.2.2005. He further stated that they went to the spot by foot at about 10.30am and remained there for two hours. He further stated that he cannot tell the total built up area of the Chheda Lal Commercial Institute. He further stated that he cannot tell as to how many storeys were constructed on said plot. He further stated that accused met them on the ground floor. He further stated that the accused is the owner of Chheda Lal Commercial Institute. He further stated that the site plan was prepared in his presence and the same does not bears the signature of any witness except IO. He further stated that IO had written on the site plan as to on whose instance the site plan was prepared. He denied the suggestion that the site plan was prepared in the police station and no such name of the witness at whose instance the site plan was prepared was mentioned. He FIR No. 62/2005 State VS Vinod Kumar Arora 23 further stated that the site plan was prepared outside the house. He admitted that the accused person has his residence in the said institute. He further stated that IO had never enquired about the incident from the students, teachers/staff and the persons living in the nearby area. He further stated that the IO had seized the newspaper of which the alleged cutting was given to Ambika. He further stated that IO got prepared the recovery memo of the newspaper. He further stated that he and Ambika had signed on the said recovery memo which was prepared by HC Om Pal. He denied the suggestion that no such newspaper was recovered and no such recovery memo was prepared.
34. He further stated that the accused was arrested by HC Om Pal at about 11.00am and arrest memo of accused was prepared in his presence and he had also signed the arrest memo. He further stated that he had gone through the contents of the arrest memo. He further sated that IO had depicted the time of arrest in the arrest memo. He further stated that the father of the accused was informed about the arrest however he cannot tell the name of father of the accused. He admitted that in column no.6 of arrest memo the time of arrest of accused is not given. He denied the suggestion that the accused was lifted at around 9.00am on 24.2.2005 at the instance of the complainant Arvind Kumar and Vijay Aggarwal and was subsequently falsely involved in this case. He further stated that cannot tell whether any family members of FIR No. 62/2005 State VS Vinod Kumar Arora 24 the accused met during the time he remained at the spot. He further stated that IO had written the statement of Ambika and Complainant at the spot. He further stated that he cannot tell whether statement was written in case diary or plain paper. He further stated that the statement was recorded inside the aforesaid institute. He further stated that IO had inspected various documents from the possession of the accused however, I cannot tell what were those documents. He further stated that after investigation both the witnesses went to their respective houses. He denied the suggestion that statement of PW Ambika and Arvind Sharma was not recorded at the spot. He further denied the suggest that he had never visited the spot and IO had never inspected the spot or took any document in his possession from the aforesaid institute. He admitted that area in which the aforesaid institute is located is a thickly populated area. He further stated that when they reached the spot there were many students but he cannot tell their number. He denied the suggestion that he is deposing falsely and he was never associated with the investigation of the above said case. He denied the suggestion that he was deposing falsely.
35. After completion of prosecution evidence SA U/s 313 Cr.P.C.
wherein accused denied all the allegations levelled against him and stated that the present case was false and fabricated and he is being involved in the case in connivance with PW-2 Arvind Kumar, FIR No. 62/2005 State VS Vinod Kumar Arora 25 Vinay Aggarwal and local police and Ambika Sharma and Pooja Saini had never taken admission in his institute and had not taken any classes in his institute. He further stated that his institute is recognized by government and the admission closes in month of December and no question of taking admission of Pw-1 and PW-3 in his institute arises. He further stated that PW-2 Arvind Sharma had also sent application for cancellation of his registration at NIOS under MHRD, Government of India. He further stated that this shows the intention of PW-2 complainant Arvind Sharma that he only wanted to get his registration cancelled. He further stated that he was forcibly lifted from his house and his brother Shiv Kumar objected to his arrest but no attention was paid by PW-4 ASI Om Pal Singh and he was taken to PS. He further stated that thereafter, he was subsequently falsely involved in case U/s 107/151 Cr.P.C. and was illegally confined by the police officials of PS Farsh Bazar in connivance with local police. He further stated that he was acquitted from the aforesaid case U/s 107/151 Cr.P.C. He further stated that he wishes to lead evidence in his defence.
36. In his defence accused examined Sh. S.K. Jha and Shiv Kumar Arora.
37. DW-1 Sh. S.K. Jha, was examined on 27.11.2010. He stated that he had brought the record from National Institute of Open School pertaining to Sh. Chheda Lal Commercial College (AVI No. 990022) for the year 2005-2006. He proved on record the FIR No. 62/2005 State VS Vinod Kumar Arora 26 accreditation letter issued to the above said college in the year 2004 as DW-1/1 and for the year 2006 as Ex. DW-1/2. He further proved on record the list of students who got admission in the above said college in the month of July, 2005 as DW-1/3 and for December 2005 as Ex. DW-1/4. He further proved on record the list of faculty members in the said college in the year 2005-2006 as Ex. DW-1/5 which was submitted in NIOS in the year 2005. He further stated that admission in the college takes place twice in a year i.e. in July and December. (The said question was objected to by Ld. APP as originals of the said documents were not produced and the concerned witness had produced the attested photocopies of said documents attested from Sh. Sunil Kaura, Joint Director, Administration.
38. In his cross examination by Ld. APP DW-1 stated that he was working as Section Officer in the Regional Centre of NIOS Delhi at the above said address. He further stated that the Head Quarter of NIOS is situated at Noida and the originals of said documents are in custody of Vocational Education Department, NIOS. He further stated that the regional centre of NIOSis also situated at Noida at a distance of half a kilometer from the head quarter. He further stated that the summons have been issued in the name of record clerk from the office of Joint Director Sunil Kaura. He further stated that since only attested copies of the said documents were available to him he is producing only copies of the same. He further FIR No. 62/2005 State VS Vinod Kumar Arora 27 stated that he can identify the signatures of Sh. Sunil Kaura, Joint Director. He further stated that he cannot comment whether any college accredited by NIOS can also impart training or recruit any faculty for imparting training by concealing or by not revealing their names in the list sent to NIOS. He voluntarily stated that Vocational Education Department conduct inspection of the accredited colleges in order of ascertain whether the students are being imparting training over there whose names are not disclosed or whether any faculty member is engaged in imparting training in any such college whose name is not submitted in the list of the faculty member to NIOS, and he had only brought the record. He further stated that he had no personal knowledge regarding the case in which he was deposing.
39. DW2 is Sh. Shiv Kumar Arora (brother of accused Vinod).
DW-2 stated on oath that he was residing at above said address for about last 30 years. He further stated that he was residing in the above said house with his wife, his brothers and his family members. He further stated that the above said house is measuring 100 sq. meter and is a two storeyed house and they are residing at the ground floor and on the first floor typing and computer college (Chedalal Commercial College) is being run. He further stated that he is working as a clerk in the above said institute since February, 2005. He further stated that the above said institute is comprised of 10 staff members and the strength of staff FIR No. 62/2005 State VS Vinod Kumar Arora 28 was almost the same in the year 2005. He further stated that accused Vinod Kumar Arora is working as principal. It is a govt. registered institute.
40. He further stated that in their neighbourhood there was one another private institute under the name and style of Aggarwal P.T College and which was now operating under the name and style of A.C.M. Institute. He further stated that he is the elder brother of accused Vinod Kumar Arora. He further stated that Arvind Sharma with the help of ASI Om Pal in pursuance to the understanding with Vinay Aggarwal lifted his brother in the night forcibly in order to get the registration of their instutite cancelled. He further stated that on 24.02.2005 when he resisted their attempt of lifting away of his brother, they also threatened him that they would implicate me in a false case and because of fear he did not protest. He further stated that thereafter, they went to PS and police told him that his brother had been lodged in proceedings u/s 107/151 Cr.P.C. He further stated that in the said case his brother was acquitted. He further stated that the present case has been foisted on his brother in order to get the recognition of their institute cancelled and no incident as alleged had ever taken place in our institute.
41. DW-2 was further cross examined on 25.5.2011, wherein he stated that he is the real brother of Vinod Kumar Arora. He further stated that they were residing in a joint family and he was living with his brother namely Vinod Kumar Arora and they all were FIR No. 62/2005 State VS Vinod Kumar Arora 29 residing together on the ground floor in the premises from where the accused Vinod Kumar Arora is running in Chedda Lal Commercial College. He further stated that Arvind Sharma and Vinay Aggarwal are friends. He further stated that Aggarwal P.T. College, which is now being run under the name and style of ACM Institute is 4-5 street away from their Chedda Lal Commercial College.
42. He further stated that he cannot tell since when Chedda Lal Commercial College is registered with Open School, Delhi Government. He further stated that prior to 1 January, 2005 , he was engaged in the work of supplying of stationary items and since 1 January, 2005 he is working in the Institute of his brother as clerk on a salary of 4200/- per month. He further stated that he had brought the appointment letter issued by Vinod Kumar dated 01.01.2005 and the same was proved on record by him as Ex. DW2/A. Original of Ex. DW-2/A was seen and returned. The said document being proved by DW-2 was objected to by Ld. APP, as DW-2 was not the executant of the said document. He denied the suggestion that the document is a forged one and has been prepared subsequently in order to show his appointment in the institute of his brother from date 01.01.2005.
43. It was observed by the court that the document Ex. DW2/A appears to be prepared recently as the paper of the said document FIR No. 62/2005 State VS Vinod Kumar Arora 30 appears to be crispy one even after passing of 6 years from the date it is purported to have been executed.
44. DW-2 further stated that he cannot tell the names of all the employees employed at Chedda Lal Commercial College when he got the appointment and stated that however, there were around 10 employees in the said college at that point of time. He denied the suggestion that he was not the regular employee in the said college and being the member of joint family, he also used to supervise the work of Chedda Lal Commercial College side by side in order to help his brother and also in view of the fact that he was living on the ground floor in the joint family in the same premises. He further stated that he used to get salary in cash from his brother who was the co-ordinator of the institute. He further stated that he cannot say with certainty that even the salaries of other employees of the said college are also mentioned in the same register. He further stated that being the clerk in the said institute he was assigned the duty of maintaining the registers regarding attendance of teachers and to keep an account of the stationary. He admitted that in the absence of co-ordinator he used to supervise the functioning of Chedda Lal Commercial College.
45. He further stated that he cannot tell what the numerals referred as Serial number of his appointment letter dated 01.01.2005 at point X of Ex. DW2/A denote. He further stated that FIR No. 62/2005 State VS Vinod Kumar Arora 31 he can bring the salary register of the month of February, 2005 with the permission of the co-ordinator.
46. DW-2 was again cross examined on 2.3.2012, wherein he stated that he did not know any Ambika Sharma (victim) and her father Arvind Sharma (Complainant). He admitted that accused is his real brother and he was running a college in the name of Chheda Lal Commerical College in the year 2005. He further stated that he know Vinay Aggarwal who was also running a college in the name of Aggarwal P.T. College. He further stated that there was business rivalry between his brother (Accused) and Vinay Aggarwal. He further state that there is no rivalary between his brother and complainant Arvind Sharma. He further stated that he did not make any complaint regarding the conduct of police in connivance with Vinay Aggarwal and Arvind Sharma regarding lifting of his brother from their house on 24.2.2005. He further stated that he also did not made any complaint against police when he came to know that his brother had been falsely booked under section 107/151 Cr.P.C. He voluntarily stated that police had threatened him and due to said threat he did not made any complaint against the police. He denied the suggestion that as volunteer portion had not been stated in examination in chief therefore, he is improving his story and in order to save his brother. He further admitted that whatever he had narrated in his examination in chief, he did not tell the same to anyone and the same is deposed before the court for the first time.
FIR No. 62/2005 State VS Vinod Kumar Arora 32 He denied the suggestion that the daughter of complainant namely Ambika got admitted in the college run by his brother in the month of February 2005. He admitted that the list of students admitted in the college, already exhibited as Ex. DW-1/3 and Ex. DW-1/4 pertains to the year 2005 and December 2005. He further stated that no student got admitted in the college in the month of February, and the students got admitted in the month of July and December. He admitted that no documents pertaining to the admission in the month of July and December 2004 is not placed on record. He voluntarily stated that the same is not required for adjudication of case. He denied the suggestion that his brother i.e. accused had misbehaved with the daughter of the complainant. He denied the suggestion that he was deposing falsely to save his real brother.
47. I have heard the arguments on behalf of Ld. APP for State and defence counsel and have perused the record carefully.
48. Ld. Defence counsel has raised the defence that father of victim Ambika Sharma and owner of Aggarwal P.T. College i.e. Vinay Aggarwal were having cordial relations and at his instance present case FIR has been registered against the accused.
49. From the defence evidence as well as prosecution evidence it is admitted that the accused was running the college i.e. Chheda Lal Commercial College.
50. PW-1 has clearly stated that cutting was obscene material FIR No. 62/2005 State VS Vinod Kumar Arora 33 which was given to her by the accused. PW-1 had denied the suggestion that in the institute there were 7-8 teachers and a batch of approximately 25 students is taken. She had clearly stated that all the students were pursuing the typing class and she alongwith her friend were together in the computer class.
51. PW-2 Arvind Sharma (Father of victim) stated that on 24.2.2005 at around 10.00am accused handed over one paper to his daughter lightly in the mode of carcing the same and uttered "ISKO BAAD MEIN DHYAN PAD LENA". He further stated that at about 1.30pm, he came to know about the incident and thereafter the matter was reported to police.
52. PW-2 Arvind Sharma has not been cross examined on this aspect and therefore, these lines mentioned in the examination in chief of PW-2 stands proved.
53. The defence story is that as Arvind Sharma is the friend of Vinay Aggarwal, owner of Aggarwal P.T. College and he has enemity with accused and therefore at his instance Complainant Arvind Sharma, got a false case got registered against the accused by saying that the modesty of his daughter has been outraged.
54. He denied the suggestion that as he was having cordial relations with Vinay Aggarwal, who is business rival of accused, he had lodged a false complaint against the accused. Though the father of the victim namely, PW-2 Arvind Kumar Sharma has admitted that accused was sent behind the bar on his complaint FIR No. 62/2005 State VS Vinod Kumar Arora 34 made to PS Krishna Nagar and he had also given in writing against accused for cancellation of registration from the college. The factum of moving a complaint against anybody would not mean tht he would use his daughter to implicate accused in a false case.
55. In this regard it is stated that it would be a last recourse available to a father of a girl to implicate any person against whom he may be having any kind of grudge for which he would use his own daughter to register a false case unlike in the present case.
56. PW-3 is an independent witness and she is friend of PW-1 Ambika Sharma, she has also given the same version. By no stretch of imagination it can be said that she would be having any motive to depose against the accused or why would she depose falsely in this regard only at the instance of her friend. It is further pertinent to mention here that though there are discrepancies in the statement of PW-3 being the natural witness, they are bound to occur as we cannot expect a lay man to depose in a manner in which the statements are recorded U/s 161 Cr.P.C. The discrepancies are bound to occur. Reliance is placed on Takdir Samsuddin Sheikh Vs State Gujrat & Another, 2012 (1), JCC
158.
57. Apart from the investigation conducted by the police which are procedural in nature, the factual matrix stands proved. Accused has also produced his defence. In his statement U/s 313 Cr.P.C.
FIR No. 62/2005 State VS Vinod Kumar Arora 35 accused has stated that PW-1 Ambika Sharma had not taken admission in the institute and had not taken any classes in the institute and his institute is recognized by government and admissions are open in July & December only and therefore no question of taking admission by PW-1 and PW-3 in the institute arises. He has further stated that PW-2 has got his registration cancelled at NIOS under MHRD, Government of India, which shows the intention of PW-2 and he was forcibly lifted from his house.
58. In his defence accused has produced one witness namely S.K. Jha, who had brought the record from National Institute of Open Schooling pertaining to Chheda Lal Commercial College. He further proved on record the attested photocopy of list of faculty members and list of admission in the said college in the year 2005-2006. In this regard it is stated that the attested documents cannot be admitted as the original documents were not produced. No reason was assigned for not producing the originals. Hence in the absence of any reason for not producing the primary evidence, secondary evident cannot be considered. Hence, testimony of DW-1 cannot be considered and hence rejected.
59. DW-2 is Sh. Shiv Kumar Arora who is real brother of accused.
He is not a summoned witness. It is testified that the accused was lifted at night in order to get the registration of the institute cancelled. However, in his cross examination he has stated that he is the real brother of Vinod Kumar Arora. He further stated that they FIR No. 62/2005 State VS Vinod Kumar Arora 36 were residing in a joint family and he was living with his brother namely Vinod Kumar Arora and they all were residing together on the ground floor in the premises from where the accused Vinod Kumar Arora is running in Chedda Lal Commercial College. He further stated that Arvind Sharma and Vinay Aggarwal are friends and there is business rivalry between Accused and Vinay Aggarwal. He further stated that there is no rivalry between accused and Arvind Sharma. He further stated that he did not make any complaint regarding the conduct of police in connivance with Vinay Aggarwal and Arvind Sharma, regarding lifting of his brother from their house on 24.2.2005.
60. Since no complaint has been made on record and the testimony of DW-2 also cannot be considered, he being an interested witness.
61. The defence has failed to prove as to why would a person would use his daughter to implicate the accused in a false case and why would daughter depose against the accused. However, there are certain lapses in the investigation conducted by the IO with regard to proof of admission of PW-1 and PW-3 in the college. However, the fact remains that PW-1 and PW-3 have deposed in a very natural manner and they do not have any reason to depose falsely against the accused. The fact of the accused of handing of newspaper cutting, containing obscene material by the accused to Ambika Sharma clearly comes within the purview of Section 354 FIR No. 62/2005 State VS Vinod Kumar Arora 37 IPC.
62. Accordingly accused is convicted for the off ence U/s 354 IPC in case FIR No. 62/2005, PS Farsh Bazar. Let he be heard on the point of sentence.
Announced in the open court (Vandana Jain) On 9th August,2012. M.M./Mahila Court (E) FIR No. 62/2005 State VS Vinod Kumar Arora