Delhi District Court
State vs . Saroj on 6 February, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 511/2002
P.S. Sarita Vihar
U/s 454/380/511 IPC
State Vs. Saroj
JUDGMENT :
a. Sl. No. of the case : 494/2
b. Date of Institution : 03.04.2003
c. Date of Commission of Offence : 26.10.2002
d. Name of the complainant : Sh. Bal Singh
S/o Malkhan Singh
e. Name of the accused and his : Saroj
parentage and address W/o Subhash
R/o H39/554, Ali Vihar,
Sarita Vihar, New Delhi
f. Offence complained of : U/s 454/380/511 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 06.02.2013
i. Final Order : Acquitted
j. Date of such order : 06.02.2013
1. Accused in this case was sent up for trial for the commission of
offence u/s 454/380/511 IPC.
FIR NO. 511/2002 PAGE 1 OF PAGE 10
PS SARITA VIHAR
2. The facts in brief as per the prosecution story are that on 26.10.2002, at about 5.20 p.m. at the house of the complainant Bal Singh at G557/9, Ali Vihar, New Delhi, accused had committed house tresspass by entering into the house of complainant and also committed attempt of theft. So on the basis of statement of complainant, present case FIR was registered in PS. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested. After completing other formal investigation the challan was presented before the court.
3. A prima facie offence having been made out against the accused, charge was framed against her on 10.12.2004, U/s. 454/380/511 IPC to which she pleaded not guilty and claimed trial.
4. To prove its case the prosecution has examined five witnesses namely five witnesses namely Bal Singh as PW1, Ms. Shakuntala as PW2, Ct. Rajender as PW3, HC Atar Singh as PW4 and SI Babu Khan as PW5.
5. PW1 Bal Singh has testified that on 26.10.2002, a construction work was going on in his house no. H24, Bhawani Gali, Ali Vihar and he was present there. At about 5.00 p.m., his wife namely Shakuntala also came there after sending the children for tuition. PW1 further testified that her wife went back to their house at G557/9 after about 15 minutes where she found Ms. Saroj the accused present in the court had opened the almirahs in his house. PW1 further testified that his FIR NO. 511/2002 PAGE 2 OF PAGE 10 PS SARITA VIHAR wife had raised the noise and Saroj was apprehended. Public persons also gathered there. PCR was called and local police also arrived there. PW1 further testified that the neighborers advised them and accused to compound the matter but accused did not agree and therefore he went to PS and got the FIR registered. PW1 further testified that accused present in the court was arrested by the police. PW1 further testified that on 18.11.2002, he had gone to PS and gave a written complaint to the SHO of PS Sarita Vihar vide Ex. PW1/A. In his cross examination, PW1 has testified that he was an accused in case under section 324 IPC and accused Saroj was complainant in that case. He further testified that he was not present at the spot at the time of incident. PW1 further testified that Saroj asked him to pay Rs. 50,000/ for the compromise in that case. PW1 further testified that the present case was registered on 19.11.2002. PW1 further testified that the complaint was made on 100 number immediately after the incident.
6. PW2 Shakuntala has also deposed the same facts as deposed by PW1. PW2 further testified that the accused had opened the almirahs in her house and belongings were lying in the room. PW2 further testified that she called the PCR and police reached there and also raised noise and Saroj was apprehended. PW2 further testified that public persons also gathered there. PCR was called and local police also arrived there. The accused present in the court was taken by police . PW2 was cross examined by Ld. APP as she was resiling from her FIR NO. 511/2002 PAGE 3 OF PAGE 10 PS SARITA VIHAR previous statement. In her cross examination, PW2 has testified that she could not say if the accused was arrested on 19.11.2002 and on that day, her statement was recorded.
PW2 was cross examined by Ld. Defence counsel also. In her cross examination, PW2 has testified that a case u/s 324 IPC is pending against her husband wherein accused Saroj is complainant.
7. PW3 ct. Rajender has testified that on 11.02.2003, he took part in the investigation of this case with ASI Babu Khan and he along with IO went to Ali Vihat at H.no.554/6 where accused Saroj was present. IO gave her notice for arrest and sent him to the PS to call the lady police. PW3 further testified that he came back and informed the IO that lady police was not available in the PS. PW3 further testified that one lady namely Ms. Sunita Jaiswal was called from H.no.S172, Sarita Vihar and accused present in the court was arrested and he personal search was conducted by Sunita Jaiswal vide memo Ex. PW3/A and 3/B. The notice of arrest given by the IO is Ex. PW3/C. Bhim Singh was informed about the arrest of accused.
8. PW4 HC Atar Singh has testified that on 19.11.2002, he reached the spot and prepared the site plan at the instance of complainant vide memo Ex. PW4/A. PW4 further testified that he recorded the statement of complainant Shakuntala and her husband Bal Singh. Accused Saroj could not be traced despite efforts at her house. In his cross examination, PW4 has testified that complainant Bal Singh FIR NO. 511/2002 PAGE 4 OF PAGE 10 PS SARITA VIHAR did not tell him anything about the FIR which was lodged against him by accused Saroj.
9. PW5 SI Babu Khan has testified that on 27.01.2003, he was assigned the investigation of the present case and on 11.02.2003, he along with Ct. Rajender was on patrolling duty at Ali Vihar. At about 22.30 p.m., they received an information that accused Saroj present in the court was present in her house at 554/6, Ali Vihar. They reached the house of accused Saroj and it was told that she had gone to make a telephone call. PW5 further testified that when she came back at her house, they gave her a notice for her arrest vide Ex. PW3/C. PW5 further testified that he sent Ct. Rajender to the PS to call a lady police and he informed that lady police was not available at PS. PW5 further testified that they took accused to the PS. One lady namely Ms. Sunita Jaiswal was called from Azad Camp, Sarita Vihar where accused was arrested vide memo Ex. PW3/A and personal search was conducted by Sunita Jaiswal vide memo Ex. PW3/B. PW5 further testified that the medical examination of accused was got conducted.
10. After closing of prosecution evidence, statement of the accused was recorded U/s 313 r/w. 281 of Code of Criminal Procedure Code, 1973. In her statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. In her defence, accused has examined three witnesses namely Rajesh Katiyar as DW1, FIR NO. 511/2002 PAGE 5 OF PAGE 10 PS SARITA VIHAR Rajesh Kumar Jha as DW2 and Subhash as DW3.
11. DW1 Rajesh Katiyar has testified that on 26.10.2002, at about 5.15 p.m., he was coming from Som Market and going towards his house. When he reached near house of Mr. Bal Singh, he saw that Mr. Bal Singh and his wife were dragging the accused Saroj present in the court inside their house and Smt. Saroj was shouting "bachaobachao". DW1 further testified that he ran to the house of the husband of accused and told Mr. Subhash about the incident. Thereafter he left for his home.
12. DW2 Rajesh Kumar Jha has also deposed the same facts as deposed by DW1.
13. DW3 Subhash has testified that on 26.10.2002, at about 5/5.15 p.m., one Rajesh Katiyar and Rajesh Pandit came to his house and told him that his wife was confined by Bal Singh in his house while she was going to market to buy vegetables. DW3 further testified that when he reached to rescue his wife, he was also beaten by Bal Singh by Shovel. His wife was also beaten by Bal Singh and his wife Shakuntla and the sister of Shakuntala. Thereafter he came back from there due to the fear of accused. DW3 further testified that one Bhim Singh Nagar who was the respectable person of the colony, met him and on the request of said accused, his wife was got rescued. Thereafter he called at 100 number and police reached the spot and pacified the FIR NO. 511/2002 PAGE 6 OF PAGE 10 PS SARITA VIHAR matter. DW3 further testified that after about two hours when the condition of his wife became serious, he again called at 100 number and police reached there and took his wife to the hospital and she was admitted in the hospital vide MLC mark A. DW3 further testified that on 07.11.2002, his wife lodged a complaint to the Police Commissioner vide Mark D. DW3 further testified that Bal Singh is a person of very bad character and he had also beaten the police persons and in this respect copy of FIR no. 208/12 is registered which is Mark C.
14. I have heard the Ld. APP for the State and Ld. Counsel for the accused and also perused the record.
15. In the instant case, the accused has been prosecuted for her attempt to commit theft in the house of PW1 and PW2. But case appears to be more an attempt to harass the accused by slapping on her the present case without any sufficient ground.
16. This belief is triggered by the manner in which the accused has been prosecuted. PW1 is the complainant who owns the house in which the accused is alleged to have been found on the day of incident by PW2 in the course of commission of theft. The incident is alleged to have occurred on 26.10.2010, but the FIR has been lodged only on 19.11.10. This is by all means an unreasonable and inordinate delay and the reason assigned for the delay is absurd and preposterous. In his FIR NO. 511/2002 PAGE 7 OF PAGE 10 PS SARITA VIHAR complaint which is Ex PW1/A, PW1 disclosed that he did not make any complaint against the accused because the neighbours advised them to settle the matter. He further adds that the accused did not agree causing him to go to Police station for complaint. In his cross examination, PW1 states that he has requested accused to compromise the matter for which the accused demanded Rs 50,000. In other words, PW1 is doing what is said putting the cart before the horses. He was aggrieved and yet it was he who besought compromise.
17. PW2 who is claimed to have seen the accused trying to commit theft has given a total contradictory statement to his husband PW1. According to her, she called the police and got the accused arrested. The evidence of PW1 and PW2 are diametrically opposite in so far as the registration of case and arrest of accused are concerned. On the face, both appear to be totally incredible witnesses.
18. The inordinate delay in registration of FIR without any sufficient explanation itself is fatal to the prosecution case in the particular facts and circumstance of this case. It has been held by the Supreme Court in Ramji Surjya Vs State of Maharashtra 1983 AIR SC 810 that unexplained delay in lodging the FIR cannot but be viewed with suspicion. Again in Dilawar Singh Vs State of Delhi 2007 AIR SC 3234 it was observed by the Supreme Court that if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no FIR NO. 511/2002 PAGE 8 OF PAGE 10 PS SARITA VIHAR such satisfaction is formed, the delay is treated as fatal to the prosecution case because such delay often results in embellishment as a result of afterthought. In Apren Joseph Vs State of Kerala 1973 AIR SC 1, the Supreme Court said that FIR when recorded is the basis of the case set up by the informant and is therefore very useful if recorded before there is time and opportunity to embellish. Undue and unreasonable delay in lodging the FIR therefore, inevitably gives rise to suspicion. In Thulia Kali Vs State of Tamil Nadu AIR 1973 SC 501 the position regarding delay in lodging the FIR was further cleared holding that on account of delay, the FIR not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
19. The motive for implicating accused in this case seems to be cross case instituted against PW1 by accused. Both PW1 and PW2 has admitted this fact in their respective cross examination by the Defence Counsel. They admit that a case for offence u/s 324 IPC committed by PW1 against accused was pending. This motive along with the contradictory statements given by PW1 and 2 are sufficient to cause this court to discard their testimonies. No other public witness has been produced to corroborate the presence of accused at the spot. PW2 had deposed that after she saw the accused in her house, she raised a noise and public gathered at the spot. But none of those public persons has been cited as a witness.
FIR NO. 511/2002 PAGE 9 OF PAGE 10 PS SARITA VIHAR
20. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused.
21. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and she is given the benefit of doubt and therefore accused Saroj is acquitted for the offence punishable U/s. 454/380/511 IPC for which she stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 06.02.2013 Metropolitan Magistrate
South District/New Delhi
FIR NO. 511/2002 PAGE 10 OF PAGE 10
PS SARITA VIHAR
FIR No.511/02
PS Sarita Vihar
u/s 454/380/511 IPC
06.02.2013
Present: Ld. APP for the State.
Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 454/380/511 IPC for which she stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/ with one surety in the like amount. Bail bond furnished. Same is accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal as well as for surety for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/06.02.13
FIR NO. 511/2002 PAGE 11 OF PAGE 10
PS SARITA VIHAR