Delhi District Court
State vs Amal Kr. Mukhoupadhyay on 27 January, 2025
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS -09,
SOUTH-EAST DISTRICT / SAKET COURTS, DELHI
PRESIDED OVER BY MS. SEEMA NIRMAL
Cr CASES 90429/2016
STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
FIR NO.204/2014
PS CR PARK
JUDGMENT
a. CNR NO. DLSE020028472017
b. Name of the Ms. Pinky Bharadwaj
Complainant R/o E-903, 3rd floor, C.R. Park,
New Delhi.
c. Name of the accused & (1) Amal Kumar
his parentage and Mukoupadhayay
address S/o Sh. Akshay Kumar
Mukoupadhayay
R/o: H.No. G-1307, C.R. Park,
New Delhi
(2) Dr. Ranjan Mukoupadhayay
S/o Sh. Amal Kumar
Mukoupadhayay
R/o: H.No. G-1307, C.R. Park,
New Delhi
d. Offence charged 341/448/34 IPC
Cr CASES 90429/2016 PAGE 1 OF 10
STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
FIR NO.204/2014SEEMA Digitally signed by SEEMA NIRMAL PS CR PARK NIRMAL Date: 2025.01.27 16:19:42 +0530 e. Date of commission of 04.07.2014 offence f. Date of Institution 09.10.2014 g. Plea of accused Pleaded not guilty h. Order Reserved on 04.01.2025 i. Date of Pronouncement 27.01.2025 j. Final Order Acquitted Present: Sh. Sandeep Kumar Bhati, Ld. APP for the State.
Sh. Amit Agarwal, Ld. counsel for both the accused along with accused through VC.
BRIEF FACTS AND REASONS FOR DECISION
1. Briefly stated, the case of the prosecution is that on 04.07.2014, at about 7.00 am, at E-903, 3 rd floor, C.R. Park, New Delhi, accused Amal Kumar Mukoupadhyaya along with co-accused Dr. Ranjana Mukhopadhyaya, in furtherance of their common intention, wrongfully restrained the five months old son of complainant Pinki Bhardwaj and her maid proceeding inside their H.no. E-903, 3rd floor, C.R. Park, New Delhi and they also committed trespass by entering into the said premises of complainant with intent to remove the son and maid of complainant and to wrongfully restrain them from entering in the house and thereby committed offences punishable u/s 341/448/34 IPC.
Cr CASES 90429/2016 PAGE 2 OF 10 STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
FIR NO.204/2014 SEEMA Digitally signed by SEEMA NIRMAL PS CR PARK NIRMAL Date: 2025.01.27 16:19:47 +0530
2. This case was registered on the statement of complainant Ms. Pinky Bharadwaj who stated that she was a tenant on the third floor of H. No. E-903, 3rd floor, C.R. Park, New Delhi and residing for the last one month on monthly rent of Rs. 31,000/-. She further stated that she had already paid rent of previous month to her landlord. However, she could not pay advance to them. She further stated that the landlord had taken 22 PDCs from her, out of which two cheques were to get cleared, however, the same could not be cleared on time. She further stated that she requested for sometime to the landlord for payment of rent. However, the landlord had started mentally harassing her for some time. She further stated that on 04.07.2014, at 7.00 am, she had gone for morning walk and her son and maid were present in the house. In the meantime, accused landlord A.K. Mukopadhyay along with his daughter and 3-4 persons came at her house and threatened the maid of complainant and forcefully let out the maid and the five month's old son of complainant from the house and started investigating the house and they also put locks in the house. Complainant further stated that when she came back from morning walk, she saw that the lock was put outside her house and her househelp along with five month's old son were sitting on the stairs. She made call at 100 number and also requested the copmlainant to open the lock of the house, however, the landlord did not arrive there. Police came at the spot. Thereafter, the complainant along with her son and househelp were sent inside the house after opening the locks. After completion of investigation, final report in the form of charge sheet under Section 173(2) Cr.P.C. for the offences under Sections Cr CASES 90429/2016 PAGE 3 OF 10 STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
FIR NO.204/2014 SEEMA Digitally signed by
SEEMA NIRMAL
PS CR PARK NIRMAL 16:19:53 +0530
Date: 2025.01.27
341/448/34 IPC was forwarded to the Court against the accused persons for trial.
3. After taking cognizance of the offences by the court, the accused persons were summoned. Pursuant to their appearance, in compliance of Section 207 Cr.P.C, copy of charge sheet was supplied to them. Subsequently, after perusal of the judicial file and hearing the parties, a prima facie case against both the accused persons for commission of offences punishable under Sections 341/448/34 IPC was found to be made out. Accordingly, on 14.05.2016, formal charge of accusation for commission of offences under Sections 341/448/34 IPC was served upon both the accused, to which they both pleaded not guilty and claimed trial. Thereafter, the matter was posted for Prosecution Evidence.
4. The prosecution, in order to prove its case against the accused beyond all reasonable doubts, examined the following witnesses; viz.
i) PW-1 Lt. Col. Anjan Kumar Mukhopadhyay (public witness),
ii) PW-2 Mrs. Malvika (public witness),
iii) PW-3 Sh. Virender SIngh (public witness/property dealer),
iv) PW-4 HC Jasram (Duty Officer),
v) PW-5 ASI Devdutt (first IO),
vi) PW-6 ASI Om Prakash (police witness),
vii) PW7 Retd. SI Bhoop Singh (IO),
5. The prosecution, in order to prove its case against the accused beyond all reasonable doubts, also relied upon the following Cr CASES 90429/2016 PAGE 4 OF 10 STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
FIR NO.204/2014 Digitally signedPS CR PARK SEEMA by SEEMA
NIRMAL
NIRMAL 16:20:01
Date: 2025.01.27
+0530
documents:
1) Endorsement on Rukka as Ex. PW4/A,
2) copy of FIR as Ex. PW4/B(OSR),
3) certificate u/s 65B IE Act as Ex. PW4/C,
4) copy of DD no.9A as Ex. PW4/D(OSR),
5) Rukka as Ex. PW5/A,
6) site plan as Ex. PW7/A,
7) photographs as Ex.P-1 (colly),
6. After prosecution evidence, statement of both the accused were recorded u/s 313 Cr.P.C. wherein all incriminating circumstance led against them during the trial by the prosecution witnesses were put to them, affording them an opportunity to give their explanation, if any. Accused persons pleaded innocence and claimed that they have been falsely implicated in the present case. However, accused persons preferred not to lead defence evidence, hence, DE was closed and the matter was posted for final arguments.
7. After hearing rival contentions and after appreciation of evidence on file, I am of the considered view that prosecution has not been able to prove its case against the accused beyond reasonable doubts and the arguments advanced by the ld. APP for the state cannot be accepted for the reasons given below.
8. In the present case, the prosecution has examined as many as seven witnesses in order to prove its case. The material witness of the prosecution is the complainant Pinki Bhardwaj on whose complaint the present case has been registered against the accused. However, she Cr CASES 90429/2016 PAGE 5 OF 10 STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
Digitally signed by FIR NO.204/2014SEEMA SEEMA NIRMAL NIRMAL Date: 2025.01.27 16:20:05 +0530 PS CR PARK has not been examined by the prosecution as she was not traceable. The prosecution further examined PW-1 Lt. Col. Anjan Mukhopadhyay as PW-1 but he has not deposed regarding the facts mentioned in the complaint by Pinki Bhardwaj. Moreover, in his cross- examination he has admitted that he had a quarrel with his father i.e. the accused no.1 regarding property and as such it seems that he is deposing against the accused persons due to his animosity with the accused persons. He further stated in his cross-examination that he came to know about the incident from his wife over the telephone and as such he is not the eye witness. His wife has been examined as PW-2 but she has also stated in her cross-examination that it is wrong to suggest that she had requested the accused persons on phone to open the lock but they denied the same. Thus, in this way she has supported the accused persons only. The prosecution has further examined one Virender Singh as PW-3 but he has clearly stated in his cross- examination that he did not witness the alleged incident. Rather he has also stated in his cross-examination that he later came to know that complainant Pinki was land grabber. Thus, main complainant has not been examined by the prosecution and remaining witnesses have supported the accused persons only. Moreover, from the contents of the complaint also it seems that the complainant Pinki had illegally occupied the property of the accused persons and the dispute was of civil nature. Therefore, concoction and false implication on the part of the complainant can not be ruled out.
9. Therefore, the case of the prosecution solely rests on the Cr CASES 90429/2016 PAGE 6 OF 10 STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
FIR NO.204/2014
SEEMA Digitally signed by
SEEMA NIRMAL
PS CR PARK NIRMAL Date: 2025.01.27
16:20:13 +0530
testimony of a solitary witness namely Lt. Col. Anjan Kumar Mukhopadhyay PW-1. There is no other eye witness of the present case and the complainant has not been examined by the prosecution. The presence of PW-1 on the spot on the day of occurrence is not proved as discussed above. Accordingly, the accused can not be convicted on the sole testimony of PW-1 especially when the same suffers from contradictions and inconsistencies.
10. Further, it is well settled that suspicion, however strong, cannot take the place of proof. Clear and unimpeachable evidence is necessary to convict a person. This court finds that such evidence is absent in this case. Reliance in this regard can be placed on Anil s/o Shamrao Sute & Anr. Vs. State of Maharashtra 2013(2) R.C.R. (Criminal) 541.
11. Also, no independent witness was joined in investigation of the case despite availability as admitted by the prosecution witnesses and no reason has been given by the I.O. for not doing so. Both the prosecution witnesses stated in their cross-examination that many people gathered on the spot at the time of incident. Further, names of the persons who refused to join investigation conducted by the I.O. and what action was taken against them by the I.O. has also not been explained. So, it also creates doubt on the prosecution case, benefit of which must also go to the accused. Reliance in this regard can be placed upon law as laid down by Hon'ble Punjab and Haryana High Court in Amar Singh @ Kabu Vs.State of Cr CASES 90429/2016 PAGE 7 OF 10 STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
Digitally signedFIR NO.204/2014 SEEMA by SEEMA
NIRMAL
PS CR PARK NIRMAL Date: 2025.01.27
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Haryana,2008(4)RCR(Criminal),440.
12. The accused persons have been further charge sheeted for the commission of offence punishable under Section 341 read with Section 34 of IPC. For reference, Section 341 of IPC is hereby reproduced as under:
341.-Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
"Wrongful Restraint" has been defined under Section 339 of IPC. Therefore, the essential ingredients of Section 341 of IPC are that: (1)there was some voluntary obstruction caused;(2) the obstruction was such as to prevent any person from proceeding in any direction;(3)the person obstructed had a right to proceed in that direction.
13. However, in Keki Hormusji Gharda vs Mehervan (2009) 6 SCC 475, it was held that the word 'voluntarily' in section 339 of IPC connotes that obstruction should be direct. The obstruction must be a restriction on normal movement of a person. It should be physical one. But there is no evidence to this effect on the file. Moreover, in Rupan Deol Bajaj vs K.P.S. Gill (1995) 6 SCC 194, it was held that the only allegation relating to the wrongful restraint is that the accused stood in front of the appellant in such a manner that she had to move backward. From such act alone it can not be said that he wrongfully Cr CASES 90429/2016 PAGE 8 OF 10 STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
FIR NO.204/2014PS CR PARK SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.01.27 16:20:23 +0530 restrained her within the meaning of Section 339 of IPC to make him liable under Section 341 of IPC. Accordingly, the accused are held not guilty under Section 341 read with Section 34 of IPC.
14. No independent witness joined: As per the version of the prosecution/official witnesses, no independent witness was joined in the investigation in spite of availability. So, it creates doubt on the prosecution story. In Jeet Singh Vs. State of Punjab, 1998(3) R.C.R. (Criminal) 274, the Hon'ble Punjab & Haryana High Court has held that:
"5. In the opinion of this Court, this revision should succeed on the short ground that there was a legal infirmity in the investigation. It is the case of the prosecution that HC Lekh Raj received the secret information when he was at a public place. The police party was going on patrol. In these circumstances it was mandatory on the part of the Head Constable to associate the independent witness when he could associate it without any difficulty or inconvenience. There is no cogent evidence why the independent witness has not been associated. In these circumstances, to base the conviction of the petitioner solely relying upon the statements of two police officials would be unfair..."
15. Further, as per the version mentioned in the complaint, the househelp of the complainant was also on the spot as she was the one who was thrown out of the house. However, she has not been examined by the prosecution as she was also not traceable. Thus, best Cr CASES 90429/2016 PAGE 9 OF 10 STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
Digitally signedFIR NO.204/2014 SEEMA by SEEMA
NIRMAL
PS CR PARK NIRMAL Date: 2025.01.27
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witness has been withheld by the prosecution and non-examination of this material witness is fatal to the case of the prosecution and as such benefit of the same should be given to the accused persons. Reliance in this regard can be placed upon Gurdev Singh Vs. State of Punjab, 1991(3) R.C.R.(Criminal) 608 and Swapan Bhowmick v. State of Assam (Gauhati)(DB) Crl. Appeal No. 146 of 2003. D/d. 18.12.2012.
16. In the instant case, prosecution has failed to prove its case against the accused beyond reasonable doubts and so they are entitled to benefit of doubt. So, by extending the benefit of doubt to the accused, they are acquitted of the charges framed upon them in this case. Case property, if any, be disposed of as per rules after expiry of period of appeal/revision. File be consigned to the record room after due compliance. SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.01.27 16:20:36 +0530 Announced in the Open (SEEMA NIRMAL) On 27.01.2025 JMFC-09/ SED/ Saket Courts, New Delhi It is certified by me that this judgment contains 10 pages and each page is digitally signed by me. Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date: 2025.01.27 16:20:41 +0530 (SEEMA NIRMAL) JMFC-09/ SED/ Saket Courts, New Delhi/27.01.2025 Cr CASES 90429/2016 PAGE 10 OF 10 STATE Vs. AMAL KUMAR MUKHOUPADHYAY & ANR.
FIR NO.204/2014PS CR PARK