Delhi District Court
Fir No.503/2007 State vs . Kishan Chand & Ors Page Number 9 Of 9 on 21 April, 2018
IN THE COURT OF MM02, MAHILA COURT, NORTH WEST, ROHINI
COURTS, DELHI
Presided by : Ms. Aakanksha Vyas
FIR No. : 503/2007
PS : Ashok Vihar
U/s: 323/354/452/34 IPC
State v. Kishan Chand & Ors.
J U D G M E N T :
a) Case no. : 5382112016
b) Name of the complainant : Name withheld
c) Name parentage and address
of accused :(1)Kishan Chand S/o late Sh.Raja Ram
(2)Nirmala W/o Sh.Kishan Chand
(3)Mahesh S/o Sh. Kishan Chand
(4)Tarun S/o Sh. Kishan Chand &
(5)Gulab Singh S/o late Sh.Raja Ram
all R/o WP515, Wazirpur Village, Shiv
Market, Ashok Vihar, Delhi.
d) Offences charged : 354/452/323/34 IPC
e) Plea of accused : Not guilty
f) Date on which judgment was
reserved : 11.04.2018
g) Final Order : Acquitted
h) Date of decision : 21.04.2018
FIR no.503/2007 State vs. Kishan Chand & Ors Page number 9 of 9
Brief Statement and Reasons for Decision:
JUDGMENT
1 On 20/7/2007, a complaint was addressed to the Joint Commissioner of
Police by the complainant herein (name with held but told to the accused persons) and as
per chargesheet the Joint CP had instructed the registration of a case of molestation. As
per the chargesheet, the Investigating Officer (IO) asked the complainant to get her
statement recorded but she stated that the abovementioned complaint is itself her
statement. In this complaint, the complainant alleged that on 13/7/2017, at around 10:00
pm, when the complainant was alone in her room, accused Tarun who is the son of her
tau entered her room and started misbehaving with her (ashleel harkatein karne laga).
When the complainant raised an alarm, her mother came to the spot and soon her tau
accused Kishan Chand, tai accused Nirmala, chacha accused Gulab, dadi accused
Dhanno and son of her tau accused Mahesh also came into the room with dandas and all
of them tied the hair of the complainant and her mother and beat them with dandas, fists
and leg blows and left them alone only when the complainant and her mother fainted. As
per the complainant, when she regained consciousness, she called on 100 no. at around
11:35 pm and police came at the spot but the accused persons did not allow the PCR van
to reach their home and sent it back. The complainant took her mother to the Hindu Rao
hospital where the police officials came and spoke something to the doctors due to which
the complainant and her mother were discharged from the hospital merely after first aid.
Thereafter the complainant had also gone to PS Ashok Vihar where the concerned police
officials were not recording her statement as per her dictation and were instead
compelling her to sign. Therefore the complainant was constrained to address the present
FIR no.503/2007 State vs. Kishan Chand & Ors Page number 9 of 9
complaint to the Joint CP. It was also alleged in this complaint that even earlier accused
Tarun had misbehaved with her (ashleel harkatein) and on failing in this objective, all the
accused persons had beaten her and her mother.
On the basis of the abovementioned complaint, FIR no. 503/2007 was
registered in PS Ashok Vihar under section 354 Indian Penal Code (hereinafter referred
to as the IPC) and after completion of investigation, chargesheet was filed against the
accused persons under sections 354/323/452/34 IPC.
2. The accused persons were summoned and all accused were charged for the
commission of offences under sections 452/323/34 IPC while accused Tarun was
additionally charged for the commission of offence under section 354 IPC to which they
pleaded not guilty and claimed trial. Further vide order dated 18.10.2012, proceedings
against accused Dhanno stood abated as she had expired.
3. In support of its case, the prosecution examined seven witnesses. PW1 is
the complainant and she proved the complaint made by her to the Joint CP i.e. Ex.
PW1/A. PW2 is the complainant's mother. PW3 is the Duty Officer from PS Ashok
Vihar who proved the registration of FIR Ex. PW3/A and the endorsement made by him
on the complaint Ex. PW1/A i.e. Ex. PW3/B as well as the DD entry no. 29 A dated
13/7/2007i.e. Ex. PW3/C (OSR).
PW4 is the police official who assisted the IO during investigation and he deposed that on 13/7/2007, on receipt of DD no. 29 A, he had accompanied the IO to WP 515 Wazirpur Village Delhi where they came to know that PCR had already taken accused Nirmala to the hospital and there was a quarrel between the accused Nirmala and the complainant's mother. Further the IO had asked the complainant and her mother who FIR no.503/2007 State vs. Kishan Chand & Ors Page number 9 of 9 were sitting at some distance to come to the hospital but they refused and said that they would go by themselves as they did not trust anyone. So they returned to the PS and IO went to BJRM hospital to collect the MLC of accused Nirmala. Further at night, a call was received from Hindu Rao Hospital regarding the admission of complainant and her mother vide DD no. 4A and so PW4 and the IO went to the hospital and asked the complainant and her mother to give statement but they refused saying they were illiterate.
PW5 is the duty officer from PS Ashok Vihar who proved the registration of DD no. 4A i.e. Ex. PW5/A. PW6 is the doctor who identified the signatures of the examining doctor on the MLC of the complainant's mother and thereby proved the same as Ex. PW6/A. PW7 is the IO who deposed that on 13/7/2007, he received DD entry no. 29A regarding quarrel at WP 515 Wazirpur Village Delhi and on reaching the spot, he found the complainant and her mother but the complainant refused to give her statement. One lady from the other party had already been taken to the hospital and so he and PW4 went to BJRM hospital and collected the ME of the said lady namely Nirmala but she was not found in the hospital so they came back to the PS. In the intervening night of 13/14 July 2007, he received DD entry no. 4A from the Hindu Rao Hospital regarding the admission of complainant and her mother. So he alongwith PW4 went to the Hindu Rao Hospital where they found the complainant and her mother and collected their MLCs. Further in the complainant's MLC, she had alleged history of attempt to rape but when the IO asked her for her internal medical examination, she refused. She also refused to give her statement to the IO. The IO went on to depose that on 21/7/2007, the FIR in question was registered and thereafter he went to the spot and prepared the site plan Ex.
FIR no.503/2007 State vs. Kishan Chand & Ors Page number 9 of 9 PW7/A and collected the MLCs from the hospital and arrested accused Kishan vide memo Ex. PW7/B and remaining accused vide memo Ex. PW7/C to G.
4. Thereafter prosecution evidence was closed and statement of the accused persons was recorded under section 313 Cr PC. However the accused persons did not lead defence evidence. Thereafter final submissions were heard.
5. The Ld. APP for the state submitted that the complainant and her mother had corroborated each other. Further during the cross examination of the complainant and her mother, the Ld. Defence counsel had himself given suggestions to the complainant and her mother in which he admitted that accused Tarun and the remaining accused persons had entered the room of the complainant. The Ld. APP for the state further contended that it was not disputed that a quarrel had taken place and the MLC of the complainant and her mother reflected "simple injury". It was therefore contended by him that the prosecution had proved its case beyond all reasonable doubt.
6. To prove the commission of the offences charged against all the accused persons, the prosecution must prove the following:
(i) That the accused persons, in furtherance of common intention, committed housetrespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint.
(ii) That the accused persons, in furtherance of common intention, voluntarily caused hurt to the complainant.
(iii) That the accused Tarun assaulted the complainant with the intention to outage her modesty or the knowledge that her modesty will be outraged.
FIR no.503/2007 State vs. Kishan Chand & Ors Page number 9 of 9
7. The sequence of events put forth by the complainant/PW1 in her testimony is that on 13/7/2007 at about 10:00 pm, she was in her room on the ground floor of the property bearing no. WP 515 Wazirpur Village and her mother was taking bath in the verandah and the accused persons cut off the electricity supply as main switch was on the first floor where the accused persons resided. She further deposed that accused Tarun entered the room of the complainant and caught hold of her hand and pulled her towards himself at which she raised an alarm and tried to get out of the room. On hearing her voice, her mother who was taking bath in the verandah came to her rescue and suddenly all the accused entered the room and beat her and her mother mercilessly. She further deposed that accused Dhanno locked the main gate of the property and all the accused also locked the door of the abovementioned room from inside.
The above testimony of the complainant is a significant improvement upon her complaint Ex. PW1/A as in the said complaint, she has not mentioned that at the time of the alleged incident, her mother was taking bath in the verandah outside her room or that the electricity supply was cut off. Even if this point is ignored, there are material contradictions in the testimony of the complainant/PW1 as well as her mother/PW2. To begin with, during her cross examination, the complainant deposed that she didn't see the electricity being cut off by accused persons and she had stated so in her chief examination on the basis of past experience. On the other hand, the complainant's mother/PW2 stated during her cross examination that she did not even remember whether the room was lightened or not i.e. she failed to testify whether electricity was cut off at that time. During cross examination, the complainant also contradicted herself by saying that she couldn't tell as to who locked the gate and the door of the room.
FIR no.503/2007 State vs. Kishan Chand & Ors Page number 9 of 9
8. It is also pertinent to note that during cross examination, the complainant deposed that to enter the room, the verandah (which is outside the room) had to be crossed and at that time her mother was taking bath in the verandah. Now both the complainant and her mother have deposed that when the accused Tarun entered her room, the complainant raised an alarm after which complainant's mother entered the room to rescue her. If the accused Tarun had entered the room through the verandah in which the mother of the complainant was taking bath, it appears improbable that she would not have at that time itself raised alarm to this effect instead of allowing him to enter the room. The complainant again tried to improve her testimony by stating that the accused Tarun came from the stairs and he entered her room from the side without the notice of her mother as there was no electricity in the verandah. But the first fact taken note of at this point is that there was no electricity in the verandah yet the complainant's mother is stated to be taking bath there. Secondly, the mother of complainant contradicted the complainant by deposing during her cross examination that she saw the accused Tarun enter the room while she was taking bath but she could not stop him as she was not properly clothed at that time.
The fact that the complainant and her mother have changed tack at material points as discussed above severely diminishes the credibility of the prosecution case. In their testimony, the complainant and her mother have also deposed that the accused persons also mercilessly beat the sister and brother of the complainant namely Neha and Sooraj whereas no such fact is mentioned in the complaint and there is no MLC of Neha and Sooraj also on record who are said to have been mercilessly beaten by the accused persons.
FIR no.503/2007 State vs. Kishan Chand & Ors Page number 9 of 9
9. It is also noted in this case that the FIR was registered on 21/7/2007 even though the alleged incident took place on 13/7/2007. In other words there is a substantial delay in the lodging of the FIR. The explanation furnished by the complainant in her complaint Ex. PW1/A is that on the date and time of the incident, she called on 100 no. but the accused persons did not allow the PCR to reach her and the PCR went back. So she herself took her mother to the hospital in an auto where in connivance with the police officials who had reached the hospital, after mere first aid, the doctors discharged them. Thereafter she was not heard even in the police station and so she was constrained to address her complaint to higher police officials after which present case was registered. However during cross examination, the complainant stated that the accused persons themselves called on 100 no. and also admitted that the police officials had come and she alongwith her mother, brother and sister came out of the house as opposed to the fact that the PCR never reached them as mentioned in her complaint. Further she has nowhere deposed that she and her mother asked the police officials to take them for medical examination or record their statement and the police officials refused. Per contra, it is noted that PW4 who assisted the IO has deposed that when he and the IO reached the spot, the complainant and her mother refused to accompany them to the hospital and further the IO has deposed that when he reached the spot, the complainant refused to give her statement and later even when he went to the hospital where the complainant and her mother were treated, there also the complainant refused to give her statement.
Therefore in these circumstances, in view of the delay in the lodging of the FIR also the allegations of the complainant become circumspect.
10. Even with respect to the allegations pertaining to section 354, the case of the prosecution is shaky. The complainant only deposed that accused Tarun had caught FIR no.503/2007 State vs. Kishan Chand & Ors Page number 9 of 9 hold of her hand and pulled her and during the course of quarrel, he put his hand on her breast. But the complainant's mother deposed in her chief examination that when she entered the room, accused Tarun had put his hand on the breasts of the complainant. Further, in her MLC, the complainant alleged history of attempted rape but the backside of the MLC reflects that the complainant denied any alleged attempted sexual assault and also refused internal medical examination. In these circumstances, the allegation of the complainant that the accused molested her also appears doubtful.
11. In so far as the MLCs of the complainant and her mother are concerned, they alone cannot form the basis of conviction of the accused persons. Admittedly there was a quarrel. Even the police witnesses have deposed to this effect. However because there was a quarrel it cannot be automatically included that the accused persons must have beaten the complainant. In fact, it has also come on record that accused Nirmala was also taken to the hospital albeit the prosecution has not filed her MLC. In a scuffle, both the parties are bound to sustain injuries. However to nail the accused persons, it must be proved beyond reasonable doubt that they were the aggressors and they caused hurt to the complainant.
12. In light of the foregoing discussion, the evident conclusion is that the prosecution has not been able to prove its case beyond reasonable doubt. Accordingly the accused persons stand acquitted of the offences charged.
Announced in open Court (Aakanksha Vyas)
on this 21th day of April, 2018 Metropolitan Magistrate
Mahila Court02,North West
Rohini Courts, Delhi
FIR no.503/2007 State vs. Kishan Chand & Ors Page number 9 of 9