Delhi District Court
(Judgment) State vs . Gopi Chand & Ors. on 5 April, 2018
(Judgment) State Vs. Gopi Chand & ors.
SC No.53709/2016
FIR No.733/14
PS : Maurya Enclave
U/s.323/354/354A/376/34 IPC IPC
IN THE COURT OF SH. SHAILENDER MALIK
ADDITIONAL SESSIONS JUDGE, SPECIAL FAST TRACK COURT,
NORTHWEST, ROHINI, DELHI
In the matter of:
SC No.53709/2016
FIR No.733/14
Police Station : Maurya Enclave
Under Sections : 323/354/354A/376/34 IPC IPC
State
Versus
1. Gopi Chand
S/o. Om Prakash Aggarwal
2. Tarun
S/o. Gopi Chand
3. Amit
S/o. Purushottam Das Goyal
R/o. Ward No.12, Siwani Mandi,
District Bhiwani, Haryana.
4. Shashi
W/o. Gopi Chand
5. Monika
W/o. Rahul
Accused no.1,2,4 & 5 are residents of
GD196, Pitam Pura, Delhi ......Accused
Date of FIR : 27.09.2014
Date of institution/committal : 14.12.2016
Charge framed on : 11.04.2017
Arguments heard on : 05.04.2018
Judgment Pronounced on : 05.04.2018
Decision : Acquitted
Appearance:
Sh. Himanshu Garg, Ld. Addl. PP for the State.
Sh. Sanjeev Nasiar, Ld. Counsel for accused.
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(Judgment) State Vs. Gopi Chand & ors.
SC No.53709/2016
FIR No.733/14
PS : Maurya Enclave
U/s.323/354/354A/376/34 IPC IPC
JUDGMENT
1. Accused Gopi Chand, Tarun, Amit, Shashi and Monika are facing prosecution for offences u/s. 323, 354, 354A, 376 and 34 IPC.
2. Factual matrix of the matter precisely stated that on 20.09.2014, complainant / prosecutrix 'N' (name withheld to protect privacy) went to purchase household articles from the market and when she came back home, nobody opened the door of the house. After about half an hour, the door of the house was opened and when she started going towards the floor in which she was residing, accused persons namely Shashi (her mother in law), Gopi Chand (father in law), Tarun (husband), Monika (Jethani / sister in law) and brother of Monika namely Amit were standing there. Complainant alleges that accused Shashi and Amit gagged her mouth and pressed her neck, whereas accused Gopi Chand, Tarun and Monika started giving her kick blows on her stomach. Thereafter, accused Gopi Chand dragged her inside the room and accompanied also accompanied him and accused Gopi Chand allegedly put his hand inside underwear of prosecutrix and accused Amit lied her down on the bed and opened the zip of her jeans and allegedly opened its button and touched her private part. Thereafter, accused started opening the buttons of his trouser, but in the meantime, she managed to come outside the room, Page 10 of 10 (Judgment) State Vs. Gopi Chand & ors.
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PS : Maurya Enclave U/s.323/354/354A/376/34 IPC IPC where accused Shashi and Monika were present and they started giving her abuses and they dragged her and brought her downstairs and thereafter, they thrown her out of the house. Both accused Shashi and Monika told the prosecutrix to get out of the house and not to come there. Thereafter, prosecutrix made call to the police at 100 number.
3. Thereafter, on such complaint of prosecutrix, police registered the present FIR on 27.09.2014. During the investigation, prosecutrix was medically examined. Statement of prosecutrix u/s 164 Cr.PC was recorded, wherein she alleged about the aforesaid incidence before Ld. MM. Upon completion of investigation, Chargesheet was filed.
4. Considering the material available on record, Ld. Predecessor to this Court vide order dated 11.04.2017, framed separate charges for offence u/s.323 IPC against accused Tarun, Monika and Shashi, whereas charge for the offences u/s.323/354/354A IPC against accused Gopi Chand and u/s.323/354/354A/376 IPC against accused Amit, were framed, to which all accused persons pleaded "not guilty" and claimed trial.
5. When matter was put to trial, prosecutrix appeared in witness box. Prosecutrix did not support the prosecution story at all. Prosecutrix in her evidence has testified that her marriage was solemnized with accused Tarun Singhal in December 2012 and thereafter she started residing in her Page 10 of 10 (Judgment) State Vs. Gopi Chand & ors.
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PS : Maurya Enclave U/s.323/354/354A/376/34 IPC IPC matrimonial home. She states that in her matrimonial home, there were her father in law namely Gopi Chand, mother in law namely Shashi, brother in law namely Rahul (Jeth) and his wife namely Monika and she used to reside at 4th floor of her matrimonial home. She deposes that on 20.09.2014, at about 10.00 a.m., she went to market to purchase some household articles and at about 10.30 a.m., when she returned to her matrimonial home, accused Monika, Shashi, Gopi Chand and one other person, whose name she does not know, started quarreling with her. They abused her and also gave beatings to her and the said other person tried to put his hand into her underwear and thereafter, all the persons threw her outside her matrimonial home and told her not to return there. She made call on 100 number and PCR officials came there and they enquired her about the incident. She deposes that she gave her complaint to them and thereafter, police registered the case and got her medically examined in a hospital at Rohini. She proved her complaint as Ex. PW1/A. She further deposes that police officials got her statement u/s.164 Cr.P.C. Ex. PW1/B before Magistrate. Prosecutrix / complainant deposes that after some time, divorce took place between her and her husband by way of mutual consent under a settlement arrived between the two families in Mediation Centre of the Court. She deposes that on account of such settlement, she does not Page 10 of 10 (Judgment) State Vs. Gopi Chand & ors.
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PS : Maurya Enclave U/s.323/354/354A/376/34 IPC IPC want to pursue the matter as her relations with the accused persons have already come to an end. Prosecutrix when called upon to identify culprits, who committed incidence with her, expressed her inability to identify the person who put his hand into her underwear, if present in the Court. Thereafter, she was crossexamined by Ld. Addl. PP for the State, as she turned hostile and did not support the case of prosecution.
6. In crossexamination by Addl. PP for the State, she denied that her father in law namely Gopi Chand had misbehaved with her and the facts mentioned in her complaint were written by her voluntarily. Complainant further denied that her father in law also put his hand in her underwear and that she came to know the name of said other person as Anil and the said Anil put her on the bed and opened the zip and button of her jeans and touched her private parts. However, she stated it to be correct that she had stated before the Magistrate in her statement u/s.164 Cr.P.C. that the said Anil put her on the bed and opened the zip and button of her jeans and touched her private parts, but she voluntarily stated that she stated so in her statement u/s.164 Cr.P.C. because NGO officials asked her to say so before the Magistrate. She further denied her statements recorded u/s.161 Cr.P.C. Ex. PW1/C & Ex. PW1/D and deposed that she never gave any such statements before the police. She states that she did not Page 10 of 10 (Judgment) State Vs. Gopi Chand & ors.
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PS : Maurya Enclave U/s.323/354/354A/376/34 IPC IPC state before the police that when she visited the PS at about 1.00 - 2.00 p.m., she saw one person sitting in the PS and took his photographs and when she located the said person on Facebook, she came to know the said person as Amit, brother of her Jethani/sister in law Monika. She deposes that she also did not state to the police that her father in law and Amit forcibly dragged her inside the room and she never handed over the photograph of Amit to IO. She further denied that on 28.02.2015, she went to PS and gave the photograph of said Amit to the police and volunteered that police obtained her signatures on some blank papers. Seizure memo of photograph is Ex. PW1/E. The said photograph Ex. PW1/F, when shown to PW1, she stated that she never gave any such photograph to the police. Site plan of the place of occurrence is Ex. PW1/G. She even showed her inability to identify the accused Amit as the person who tried to put his hand into her underwear, when specifically being asked her by showing the said accused Amit to her.
7. In crossexamination conducted by Ld. Counsel of accused persons, she stated it to be correct that she has settled all her disputes with the accused persons in Mediation Centre vide settlement dated 18.05.2015 Ex. PW1/D1 and that on 20.09.2014, when she returned to her matrimonial home from market and rang the door bell, her in laws did not open the Page 10 of 10 (Judgment) State Vs. Gopi Chand & ors.
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PS : Maurya Enclave U/s.323/354/354A/376/34 IPC IPC door for about 1015 minutes and many neighbourers gathered there and when her in laws opened the door, a quarrel took place between her in laws and the neighbourers and the said neighbourers gave beatings to her in laws and in that beatings, she also received fist and kick blows and she did not see the faces of persons, who gave her fist and kick blows. She further stated it to be correct that she mentioned the name of her in laws as the persons who gave her beatings on the asking of her neighbouers as they told her that they had given beatings to her. She deposed that none of the accused persons had given any beatings to her.
8. Prosecution has also examined all the IOs i.e. PW2 SI Sangeeta, PW3 Inspector Sanjita and PW4 ASI Saroj Bala and they deposed about the steps taken by them during the investigation.
9. Upon completion of prosecution evidence, accused was called upon to explain and all the incriminating evidence put to him u/s.313 Cr.P.C. wherein all the accused pleaded innocence and stated that they have been falsely implicated in this case.
10. Having heard submissions from counsel for accused persons and Ld. Addl. PP for State, and having gone through the evidence, as came on record, since prosecutrix has denied all the allegations made by her in the complaint and has completely turned hostile to the prosecution version Page 10 of 10 (Judgment) State Vs. Gopi Chand & ors.
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PS : Maurya Enclave U/s.323/354/354A/376/34 IPC IPC and nothing has come even in her crossexamination to support prosecution story. Since it has also come in the evidence of prosecutrix that she got registered the present case on the asking of police officials. She has further testified that now she has settled all her disputes with the accused persons in the Mediation Centre vide settlement / agreement dated 18.05.2015.
11. Material witness in this case being prosecutrix has not supported the prosecution story at all.
12. The law relating to the guidelines to deal with hostile witnesses is discussed in judgment by the Hon'ble Apex Court reported as "HARADHAN DAS VS. STATE OF WEST BENGAL" [2013 (2) SCC 197], wherein it was held as under: "15. It is a settled principle of law that the statement of a witness who has been declared hostile by the prosecution is neither inadmissible nor is it of no value in its entirety. The statement, particularly the examinationinchief, insofar as it supports the case of the prosecution is admissible and can be relied upon by the Court......"
25.Thus, it is seen that the witnesses cited and examined by the prosecution, when did not support the prosecution and who has been declared as hostile witness and with the leave of the Court, can be crossexamined by the prosecution and still if he reiterates what he had stated in his chiefexamination, namely, not spoken in favour of the prosecution case, he has completely turned hostile. In such circumstances, since nothing incriminating is available in his evidence in favour of the prosecution, any part of his such evidence cannot / could not be Page 10 of 10 (Judgment) State Vs. Gopi Chand & ors.
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PS : Maurya Enclave U/s.323/354/354A/376/34 IPC IPC used to record an adverse finding as against the accused or cannot be used to link with any other incriminating evidence available in favour of the prosecution.
13. Weightage/value to be given to statement u/s. 164 Cr.P.C. is further being discussed in the said judgment as follows:
36. A statement given by a witness u/s.164 Cr.P.C., is like a 'previous statement' given during investigation u/s.161 Cr.P.C. It is not 'substantive evidence' adduced before the Trial Judge, because it was not recorded in the presence of the accused. Because it was recorded 'res inter alia acta recorded behind the back of the accused. Because it was recorded from a witness during investigation. Besides giving it to a police officer, it was also given to a Magistrate."
14. It has also been held in case RAM KISHAN SINGH VS. HARMIT KAUR [AIR 1972 SC 468], by Apex Court that: "8. A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness......"
38.Under Section 161 Cr.P.C., during investigation, the Investigating Officer can orally examine any person acquainted with the facts of the case. When he reduces the true account of it, then it becomes a statement under Section 161 Cr.P.C. and gist of it must find a place in his Case Diary (C.D.) (See Section 172 Cr.P.C). This is the 'previous statement' recorded by the Investigating Officer during investigation stage. It cannot be used as 'substantive evidence' as against the accused. There is total embargo in Section 162 Cr.P.C. for such usage with an exception in Section 162(2) Cr.P.C., that is, when the author of the statement dies it becomes his dying declaration under Section 32(1) of the Evidence Act. The section 161 statement can be used by the accused to contradict and impeach the credibility of the witness by the accused. It can be used by the accused in his favour. It cannot be used by the prosecution as against him. [See Sections 145, 155, 157 Evidence Act].
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(Judgment) State Vs. Gopi Chand & ors.
SC No.53709/2016FIR No.733/14
PS : Maurya Enclave U/s.323/354/354A/376/34 IPC IPC
39.Although the statement of a witness recorded under Section 164 Cr.P.C. during investigation is also a previous statement like a statement recorded under Section 161 Cr.P.C., but, it has some higher value than the statement recorded under Section 161 Cr.P.C. by the police since it was recorded by a Magistrate.
15. The Apex Court in Surajmal Vs. State (Delhi Administration) AIR 1979 SC 408, observed that where witnesses make two inconsistent statements in their evidence, either at one stage or at two stages, the testimony of such witnesses become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses.
16. Taking into consideration the said fact, all the accused persons stand acquitted from the charges. Previous bail bonds and surety bonds of accused persons are cancelled. The accused persons are directed to furnish bail bond and surety bond in sum of Rs.10,000/ each in compliance to Section 437A Cr.P.C.
17. File be consigned to Record Room on compliance to section 437A Cr.P.C. Announced in open Court on 05th of April, 2018 (SHAILENDER MALIK) ASJSpecial Fast Track Court NorthWest, Rohini Courts, Delhi Page 10 of 10