Delhi District Court
State Pooja vs Talwar Date on 1 December, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
Digitally
signed by
State POOJA
POOJA TALWAR
Vs. TALWAR Date:
2018.12.05
18:09:56
Manish Kumar & Ors. +0530
FIR No. 319/2009
P.S. Ambedkar Nagar
JUDGMENT
1. Sr. No. of case 2034140/2016
2. Date of institution 03.02.2012
3. Name of the complainant Sh. Rati Ram
S/o Late Sewa Ram
FIR No. 319/2009 PS Ambedkar Nagar Page- 1 of 14
R/o House No. B-1st/597-598,
Sector-4, Madangir, Ambedkar
Nagar, New Delhi.
4. Date of commission of offence 17.10.2009
5. Name of accused 1. Manish Kumar
S/o Sh. Hira Lal
R/o House No. B-1/596,
Madangir, New Delhi.
2. Nirmal Chand
S/o Late Dauji Ram
R/o B-1/596, Dr. Ambedkar
Nagar, Sector-4, New Delhi.
3. Hira Lal
Late Dauji Ram
R/o B-1/596, Dr. Ambedkar
Nagar, Sector-4, New Delhi.
4. Bharat Singh
S/o Narauttam Singh
R/o Block No. 20, House No.
177, JJ Colony, Dakshinpuri,
New Delhi.
6. Offence complained of U/s 452/506/34 IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 29.11.2018
9. Final order Acquitted
10 Date of such judgment 01.12.2018
FIR No. 319/2009 PS Ambedkar Nagar Page- 2 of 14
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that a complaint dated 22.10.2009 was received from one Sh. Rati Ram in which it was stated that on 17.10.2009 around 11.30 pm on the day of Deepawali, his grand children were playing with crackers in front of his shop. Four boys residing in the neighbouhood namely Hira Lal, Nirmal Chand, Manish and brother-in-law of Manish who were in inebriated state started throwing crackers in front of his shop. One boy namely Kake who was also drunk were present there. Complainant asked them not to burn the crackers in front of his shop but they did not stop. Kake then threatened him. The people in the neighbourhood also gathered and the boys went away. Then after 25-30 minutes, all these boys alongwith 15-20 associates holding swords and iron rods in theirs hands started pelting stones in the shop of complainant. They also threw bricks in their house and created ruckus. They even entered the house of complainant. They threw bricks on all the floors of house. Thereafter, his family members called the police. Before the arrival of police, these boys broke the shutter FIR No. 319/2009 PS Ambedkar Nagar Page- 3 of 14 of the house and went away. All the boys left the house after threatening him. On his complaint, FIR was registered and investigation was conducted.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused persons before Court and prima facie case having been made out, charge for the offence of under section 452/34 IPC, 506/34 IPC, 427/34 IPC was framed against all the accused persons.
3. In order to prove its case, the prosecution examined 7 witnesses in all.
4. Retired SI Ganga Saran was examined as PW1. He deposed that on 22.10.2009, he was posted at PS Ambedkar Nagar as Duty Officer from 4.00 pm to 12.00 am. That day at about 11.30 pm, a rukka was received through SI Hari Prakash Guliya. On the basis of which, the present case FIR was registered by Computer Operator on his instructions in the computer installed in the police station. After registration of FIR, a copy of FIR alongwith rukka was handed over to Ct. Sukhbir for further investigation. Another computer generated copy of FIR was kept as record in the PS. He produced the FIR FIR No. 319/2009 PS Ambedkar Nagar Page- 4 of 14 register. Copy of FIR is Ex.PW1/A. He made endorsement on the rukka which is Ex.PW1/B.
5. Complainant Sh. Rati Ram was examined as PW2. He deposed that on 17.10.2009, he was present at his home i.e. House No. B-1s/597-598, Sector-04, Madangir, Ambedkar Nagar, New Delhi. His wife namely Asharfi Devi told him that there was an altercation between their family members and accused persons namely Manish, Heera Lal, Nirmal and brother-in-law of Manish. Thereafter, he came out from the house and he came to know that an altercation was going on upon the issue of fire crackers used by accused persons in front of his house. He negotiated the matter and the accused persons left from there. At about 11.30 pm. the abovesaid accused persons and their associates pelted pieces of stones and bricks on their house and they also gave blows of pieces of stones and bricks on the wall and gates of their house. Accused also used sword for breaking the gates of their house. The said incident continued for four hours and their family was terrified from the said act of accused persons. Thereafter, he alongwith his family members called police. Police officials came there. Then, he also came out from his house and told to accused persons that FIR No. 319/2009 PS Ambedkar Nagar Page- 5 of 14 "Mujhe Maar Do". Thereafter, one lady who was associate of accused persons abused him in filthy language by stating that "Aise Police Wali Mere Jeb Me Rehte Hain". The accused persons alongwith their associates fled away from the spot. Police officials remained at the spot till the local police reached there. He visited the police station as well as office of concerned ACP to register a complaint but no action was taken. Finally, he went to the office of DCP concerned and his case was registered at PS Ambedkar Nagar on his written complaint which is already Ex.PW1/A. IO prepared site plan at his instance which is already Ex.PW1/B. Articles i.e. shutter, glasses of window, gates etc of his house were damaged. His son namely Late Suresh Kumar took the photographs of his house and handed over the same to police officials. He correctly identified the spot as well as damaged articles in the photographs. The photographs are Ex.P1. Witness also correctly identified accused persons before the Court.
6. Smt. Savitri Devi was examined as PW3. She deposed that on 17.10.2009, she was residing with her four children in the house of her father at B-1, 597, Madangir, Ambedkar Nagar after the death of her husband. On that night, they were sleeping FIR No. 319/2009 PS Ambedkar Nagar Page- 6 of 14 and suddenly she felt that something had fallen on their roof and she got scared as well as her children. They all woke up and after sometime, they noticed that the bricks started coming to their yard/varandah. She was sleeping at the varandah which was situated outside the road with her children and then she took them to her father's room. The pelting of the bricks remained for 2 and 2 ½ hours which was started at around 11.30 pm. She further deposed that she does not know who were throwing/pelting the said bricks as they were inside the room. Thereafter, they made a call at 100 number. Police officials came there after two hours. They narrated the incident to police officials regarding the pelting of bricks. She deposed that she does not know anything else except the abovesaid fact nor she could tell who were the persons behind the said incident. She was confronted with her statement under section 161 Cr.P.C. which is marked as Mark PW3/A where she denied the fact that she never gave such statement to police.
7. Smt. Sevaratti was examined as PW4. She deposed that on 17.10.2009, she was sleeping with her children at house i.e. B- 1, 597, Madangir, Ambedkar Nagar, New Delhi. Suddenly she heard the noise from outside the house that something had FIR No. 319/2009 PS Ambedkar Nagar Page- 7 of 14 fallen on the roof in front of her house. They all woke up and after sometime, they noticed that the bricks were started coming to their house. They were sleeping in her room on second floor. The pelting of the bricks remained for 2 and 2 ½ hours which was started at around 11.30 pm. She deposed that she does not know who were throwing/pelting the said bricks as they were inside the room. Thereafter, they made a call at 100 number. Police officials came there. They narrated the incident to police officials regarding the pelting of bricks. She deposed that she does not know anything else except the abovesaid fact nor she could tell who were the persons behind the said incident. She also confronted with her statement under section 161 Cr. P.C. vide Mark PW4/A where she denied the fact that she never gave such statement to the police.
8. SI Ghanshyam was examined as PW5. He deposed that in the year 2011, he was posted at PS Ambedkar Nagar. On 07.09.2011, the investigation of present case was assigned to him. During investigation, he found that the accused persons were arrested and were already on bail. He also found the involvement of 5-6 other persons. However, those persons were never found despite efforts. Thereafter, he completed the FIR No. 319/2009 PS Ambedkar Nagar Page- 8 of 14 investigation and filed the chargesheet before the Court.
9. ASI Dharam Singh was examined as PW6. He deposed that on 03.02.2010, he was posted at PS Ambedkar Nagar. That day, investigation of present case was assigned to him. At that time, four accused persons namely Nirmal, Hira Lal, Manish and Bharat were already arrested by the previous IO and they were on bail. He tried to search the other accused persons mentioned in the complaint but in vain. Thereafter, he was transferred and the investigation of present case was assigned to some other IO and he deposited the case file with MHC(R).
10. Retired SI H.P. Gulia was examined as PW7. He deposed that on 22.10.2009, he was posted at PS Ambedkar Nagar. That day, he received a complaint with respect to a quarrel. He prepared rukka on the said complaint which is Ex.PW7/A. On the next day, he went to the spot and met complainant who narrated the incident and at his instance, the site plan was prepared which is already Ex.PW1/B. He recorded the statement of witnesses under section 161 Cr.PC. Thereafter he tried to search accused persons who were named in the complaint but they were not found at that time. After sometime, accused persons filed an anticipatory bail application and they FIR No. 319/2009 PS Ambedkar Nagar Page- 9 of 14 were granted bail. Thereafter, he formally arrested accused Nirmal, Hira Lal and Manish and prepared their arrest memos vide Ex.PW7/B, Ex.PW7/C and Ex.PW7/D. On 05.12.2009, he arrested accused Bharat vide arrest memo Ex.PW7/E. Then he tried to search the other accused persons but they were not found. Thereafter, he was transferred and case file was deposited with MHC(R). Witness correctly identified accused Hira Lal, Bharat Singh, Manish and Nirmal Chand before the Court.
11. The entire incriminating evidence brought on record against the accused persons was put to them and their statements under section 313 CrPC were recorded separately. It is stated by all the accused persons that they are innocent and have been falsely implicated in the present case by police officials at the instance of complainant. This case is false and fabricated in order to extort money from them.
12. I have heard Ld. APP for the State and Ld. counsel for the accused and have also perused the judicial file carefully.
13. It is alleged against all the four accused persons that they in furtherance of common intention committed house trespass by FIR No. 319/2009 PS Ambedkar Nagar Page- 10 of 14 entering into the house of complainant after making preparation for causing hurt, they even threatened the complainant and committed mischief in the property of complainant.
14. The investigation was brought into motion by the complaint of the complainant dated 22.10.2009. In the complaint, it is mentioned that the entire incident was witnessed by the complainant. However, in his testimony before the Court, it is mentioned by PW2 Sh. Rati Ram that "my wife namely Smt. Ashrafi Devi told me that there was an altercation between our family members and the accused persons." He further deposed that "the accused persons alongwith their associates pelted stones and bricks on their house and they even broke the gates of their house."
15. In his cross examination by Ld. APP, he stated that "the accused persons had not entered inside his house after breaking the shutter." In his cross examination by the counsel for accused, it is stated that the names of accused persons was written by police in his complaint Ex.PW1/A at the instance of his son, daughter-in-law and daughter who had seen the incident. The names of the accused persons were disclosed to him by them as they had seen them at the spot. Further, he FIR No. 319/2009 PS Ambedkar Nagar Page- 11 of 14 admitted that at the time of incident, he was inside his house. He did not see the persons who were pelting stones on his house as he was trying to hide himself and save his life.
16. From his testimony, it can be discerned that he is not the eye witness to the incident. The accused persons had not entered his house after breaking the shutter.
17. In order to prove the charge under section 427 IPC, the prosecution has relied upon the photographs Ex.P1 allegedly clicked by late Suresh Kumar who was the son of complainant. In his cross examination, it is stated by the complainant that the photographs Ex.P1 were clicked by a professional photographer engaged by his son. The son could not depose before the Court to prove whether the photographs have been clicked by him or the actual source of the photographs which is the only evidence led by the prosecution to prove the mischief caused by the accused persons.
18. PW3 Smt. Savitri Devi and PW4 Smt. Sevaratti, daughter and daughter-in-law of the complainant were examined. PW3 Smt. Savitri Devi deposed that she did not know who were throwing the bricks on the date of incident as they were inside FIR No. 319/2009 PS Ambedkar Nagar Page- 12 of 14 the room. She further deposed that she could not tell who were the persons behind the said incident. She denied all the suggestions put to her by the Ld. APP. She even denied the suggestion of Ld. APP that the incident did occur.
19. Similarly, PW4 Smt. Sevaratti too deposed that she did not know who were throwing the bricks as they were inside the room. She too denied the suggestions given by Ld. APP that the incident did occur.
20. The three material witnesses examined by the prosecution have not supported the version of the prosecution. PW3 and PW4 Smt. Sevaratti have explicitly denied the occurrence of the incident altogether. Testimony of PW2 Sh. Rati Ram is incredible as there are material discrepancies in his deposition. He has denied having witnessed the incident and his testimony can best be termed as hearsay which is inadmissible in evidence.
21. From the entire evidence led by the prosecution, it stands disproved that any offence was committed by the accused persons. Prosecution has miserably failed to prove the guilt of accused persons, the benefit of which accrues in their favour.
FIR No. 319/2009 PS Ambedkar Nagar Page- 13 of 14 They are accordingly acquitted for the offence under section 452/34 IPC, section 506/34 IPC and section 427/34 IPC Announced in the open Court on 01.12.2018 (POOJA TALWAR) CMM (South), Saket Courts, New Delhi Certified that this Judgment contains 14 pages and each page is signed by me.
(POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 319/2009 PS Ambedkar Nagar Page- 14 of 14