Delhi District Court
St. vs . Madan Mohan on 26 November, 2010
IN THE COURT OF MS. SHUNALI GUPTA METROPOLITAN MAGISTRATE:
MAHILA COURT: DELHI.
FIR No. 193/04
PS Sultan Puri
St. Vs. Madan Mohan
JUDGEMENT :
1. Sl. No. of the Case : 414/2/04.
2. Date of Commission of Offence : 23.02.2004.
3. Name & Add. Of the Complainant : Mrs. Madhulata
W/o Sh. Om Prakash
R/o H. No. 261-262, Pocket-4,
Sector-22, Rohini, Delhi.
1. Name & Add. Of the Accused : Madan Mohan
S/o Sh. Chaman Lal
R/o D-1/209, Sector-11, Rohini,
Delhi.
2. Offence complained of : U/s 342/354/509 IPC.
3. Plea of the Accused : Pleaded Not Guilty.
4. Final Order : Acquitted.
5. Date of Order : 26.11.2010.
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. Prosecution case commenced upon receipt of DD No. 17A dated 23.02.2004 whereupon ASI Kaptan Singh along with Ct. Sunil Kumar reached at the spot ie., H. No. 261/262, Pocket-4, Sector-22, Rohini, Delhi. Statement of complainant Mrs. Madhulata was got recorded. Endorsement was made thereon, rukka was prepared. FIR was got registered through HC Devender Singh. Gist of the complaint so far as relateable to the offence was that the FIR No. 193/04 1/8........
elder son of the complainant was having one general store in the house where she also used to sit. On 22.02.2004 at about 11.30 AM accused Madan Mohan who resides in the same locality and was a regular customer, came there and asked for bread. When she was taking bread, accused came inside from the other side and bolted the door from inside. Thereafter, he pushed her on the bed, tried to kiss her and pressed her breast. Somehow, she managed to escape and came out. Accused also came out and threatened her to kill her as well as her family if she raises alarm or discloses the incident to anyone. On the next day, she narrated the whole incident to her husband who informed the police.
Investigations as mentioned above commenced and concluded by presenting the charge sheet disclosing offence U/s 342/354/509 IPC against the accused. Compliance of Section 207 Cr.P.C. was made. Submissions were heard and charge U/s 342/354/509 IPC was framed. Accused had opted to contest the same.
3. Ignoring inconsequential witnesses, case of prosecution primarily rests upon the evidence of complainant Smt. Madhulata examined as PW-3 and her husband Sh. Om Prakash examined as PW-4. Besides them, PW-1 HC FIR No. 193/04 2/8........
Devender Singh who is Duty Officer has reduced the information vide DD No. 17 A which is Ex. PW1/A and also proved the FIR as Ex. PW1/B. PW-2 is Ct. Sunil Kumar who accompanied the IO to the spot and PW-5 ASI Kaptan Singh is the IO of the case who prepared site plan Ex. PW5/B and arrested the accused vide arrest memo and personal search memo Ex. PW2/A and Ex. PW2/B.
4. Since the evidence of the complainant assumes maximum importance, the same is given in detail. PW-3 Smt. Madhulata, the complainant deposed that on the day of incident she was alone in the house and was sitting at her general store. At about 11.30 AM, accused Madan Mohan (resides in the neighbourhood) came there and asked for bread. When she was taking bread, accused came inside and locked the door from inside. He forcibly pushed her on the bed, kissed her and pressed her breast. He also used filthy language against her while molesting her. Somehow she managed to escape herself from the clutches of accused, rushed towards outside and raised alarm. But nobody came there. Accused also came outside and criminally intimidated her not to disclose the same to anyone. When her husband and children came back, she could not tell the incident to them as she was under
the shock. On the next day, she narrated the whole incident to her husband FIR No. 193/04 3/8........
who informed the police. Police reached there and record her statement Ex. PW3/A. During cross examination, she stated that there is one window in the gali from where customers used to take goods. She admitted that there is one kitchen between the main door and the door of the shop. In the shop there are two tables, iron racks and some goods are also lying at the floor. There is one common door between drawing room and shop. She further stated she is having three side open house and one main entrance. However, the main entrance is not visible while sitting at the shop. On the next day, first her husband made a call to police. When police did not come, she again made a call to PCR. The bedroom is adjacent to the shop. One cannot enter the bedroom without coming out of the shop. The bread was kept on the flour bags lying by the common wall. Her husband and elder son had left for Nangloi at about 11.00 AM and her younger son left the house after leaving main door opened at around 11.30 AM. She was going to lock the door as it was lonely place. The bolt of the door can be opened by moving hands between the rods of the door. Accused bolted the door of drawing room which is also the door of entrance of the house. She admitted that she had sold this house about one year back. She further stated that the accused did not come inside the shop, she herself came out. Accused pulled her to the bedroom. At that moment, she was astonished with the act of accused but after two seconds FIR No. 193/04 4/8........
she resisted the same.
5. The next testimony is of the husband of the complainant Sh. Om Prakash examined as PW-4 has deposed that on the day of incident he along with his son left the house for Nangloi. When he returned home in the evening, he found that her wife was crying. When he asked the reason, she did not give response and kept on weeping. On the next day, she narrated the whole incident to him. Thereafter, he made a call to police at 100 number. Police reached at the spot and police proceedings were conducted.
6. It is important to note that evidence of both the public witnesses ie., PW-3 Smt. Madhulata and PW-4 Sh. Om Prakash remained incomplete as their evidence was deferred by the court and later on despite summons being issued a number of time, the presence of the witnesses could not be secured. Hence, PE was closed and S. A. was dispensed with.
7. Perused the entire material available on record. Heard the arguments on behalf of the accused as well as Ld. APP.
8. Prior to adverting further first and foremost question that has to be FIR No. 193/04 5/8........
answered is whether in the absence of witnesses having withstood the test of cross examination, their evidence as such can be accepted or not. To provide the backdrop it is pertinent to state that PW-3 was examined in chief, her cross examination was conducted on two subsequent dates of hearing, further cross examination was deferred by the court. So is the case with PW-4 ie., the husband of complainant namely Sh. Om Prakash, his examination in chief was also recorded but cross was deferred. This fact is also noted in the order sheet dated 14.09.2005 meaning thereby that the right of the accused to cross examine the witness remained intact and it is not the case where the witnesses were sought to be recalled on an application u/s. 311 Cr.P.C. The witnesses were called. The report on the process was that they have sold the premises and were not residing on the given address. Again summons were sent and they were received back with the same report. Summons were served through DCP also. Since the presence of these witnesses could not be secured and all other witnesses had already been examined, PE was closed and the matter was listed for statement of accused. Thereafter, again on application moved by the state u/s. 311 Cr.P.C witnesses were recalled again. But same were received back with the report that they were not residing at the given address. Meaning thereby that the State exhausted all its sources to bring the witnesses to the court but their presence could not be secured. In these circumstances and in FIR No. 193/04 6/8........
view of the report so received on the summons continuing with the trial would have been a futile exercise. The right of the accused to get a speedy and expeditious trial is also his constitutional right. Though, no time limit as such has been prescribed by Cr.P.C but every trial should be completed within a reasonable span of time which depends upon the nature of offence, number of opportunities granted to prosecution, the age of the accused Etc. The prosecution evidence was thereafter closed.
9. The right to cross examine the prosecution witnesses is the cardinal principal of rule of law and can't be negated/truncated. This right to cross examine the prosecution witnesses has many facets which interalia include the right to be defended by a legal practitioner of his choice. In case of his disability, the right to be represented by a legal aid counsel and also in many cases it has been held by Hon'ble High Court that right of accused should be made meaningful and effective. Any person who is facing trial which may entail penal punishment has to be afforded an opportunity to defend the case. The burden is always upon the prosecution and the innocence of the accused is coterminous till the prosecution discharges its burden. In these circumstances, the prosecution has not been able to produce the prosecution witnesses and the right of the accused to cross examine them/ defend himself has been FIR No. 193/04 7/8........
infringed. Necessarily in these circumstances, the evidence which has been led by the prosecution can't be read in evidence. It has been argued on behalf of State that the evidence which was led in examination in chief was clear and categorical and sufficient in ordinary course to base an order of conviction. However, in my opinion using or relying upon such an evidence would be jeopardising the right of the accused, fraught with grave danger and have far reaching consequences. Accordingly, in the fact and circumstances, I am constrained to pass an order of acquittal excluding the evidence which has been led from the zone of consideration on account of inability of the State to bring the witnesses to the court.
10. In view of the discussion above, the prosecution has failed to prove that accused had committed the alleged offences. Thus, offences u/s. 342/354/509 IPC stand unproved. Accordingly, the accused Madan Mohan stands acquitted of the offences U/s 342/354/509 IPC. Bail Bond stands canceled. Surety stands discharged. Security, if any, deposited, be released. Endorsement if any be canceled. File be consigned to record room.
Announced in the open court today on 26.11.2010.
(SHUNALI GUPTA) METROPOLITAN MAGISTRATE :DELHI.
FIR No. 193/04 8/8........ FIR No. 193/04 PS Sultan Puri St. Vs. Madan Mohan U/s. 342/354/509 IPC 26.11.2010. Present: Ld. APP for the State. Accused present along with counsel.
On application u/s. 311 Cr.P.C moved by accused, PW Madhulata and Om Prakash were summoned through DCP (Outer). However, the same were received back unexeucted. Perused the evidence on record. Since the evidence of both the public witnesses are deferred, hence, the same cannot be read. Since nothing incriminating came against accused, accordingly, statement of accused is hereby dispensed with. Final arguments heard. Put up for orders at 4:00 PM.
(SHUNALI GUPTA) METROPOLITAN MAGISTRATE MAHILA COURT/ROHINI/DELHI.
At 4:00 PM.
Present: Ld. APP for the State.
Accused present along with counsel.
Vide separate judgment dictated and announced in the open court today, the accused stands acquitted of the offences U/s 342/354/509 IPC. Bail Bond stands canceled. Surety stands discharged. Security if any, be returned forthwith. Endorsement if any be canceled. File be consigned to record room.
(SHUNALI GUPTA) METROPOLITAN MAGISTRATE MAHILA COURT/ROHINI/DELHI.
FIR No. 193/04 9/8........