Delhi District Court
State vs . Dev Kumar & Ors. on 23 January, 2015
IN THE COURT OF MS. MANU VEDWAN,
METROPOLITAN MAGISTRATE, MAHILA COURT,
CENTRAL DISTRICT, DELHI
State Vs. Dev Kumar & Ors.
FIR NO. 154/12
P.S : Prasad Nagar
Case ID No. 02401R0094702013
Date of institution of case : 17.01.2013
Date on which case reserved for judgment : 23.01.2015
Date of judgment : 23.01.2015
Advocates appearing in the case:
Sh. P.K Ranga, Ld. APP for the state.
Sh. Panna Lal Sharma, Ld. Counsel for accused persons.
JUDGEMENT U/S 355 Cr. P.C:
a) Date of offence : 17.07.2012
b) Offence complained of : 323/341/354/509/34 IPC
c) Name of complainant : Smt. Savitri
d) Name of accused, his parentage,
local & permanent residence : 1.Nirmal @ Nirmala
W/o Sh. Radha Krishan
R/o 16/18I, Bapa Nagar
Karol Bagh, Delhi.
FIR No. 154/12 Page 1 of 16
2.Radha Krishan
S/o Late Sh. Babu Lal
R/o 16/18I, Bapa Nagar
Karol Bagh, Delhi.
3.Dev Kumar
S/o Sh. Radha Krishan
R/o 16/18I, Bapa Nagar
Karol Bagh, Delhi.
e) Plea of accused : Not pleaded guilty
f) Final order : Acquitted
BRIEF FACTS AND REASONS FOR THE DECISION:
1 Case of the prosecution is that one boy namely Dev Kumar resided in the street of the complainant. After seeing the complainant and her sister he used to comment on them. When complainant and her sister on 17.07.2012 at about 12.00 pm went to the house of Dev Kumar, they were beaten by his parents, Nirmala and Radha Krishan. Both the sisters were then thrown out of the house. In the meantime, Dev Kumar also came there. Then, they were beaten by all three persons namely Nirmala, Radha Krishan and Dev Kumar. Accused Dev Kumar also touched on the breast of the complainant and torn her Kurta. Both the sisters complaint about the incident to the police.
2 Charge under Section 323/34 IPC was framed against accused FIR No. 154/12 Page 2 of 16 Nirmal and Radha Kishan and charge under Sections 509/323/354 IPC was framed against accused Dev Kumar on 03.06.2013 to which they pleaded not guilty and claimed trial.
3 Prosecution with a view to establish its case has examined twelve witnesses. Smt. Savitri (complainant) has been examined as PW1. Dr. Sunil Garg has been examined as PW2. PW2 has proved the MLC which is Ex.PW2/A bearing his signatures at point A, B & C. W/Ct. Asha has been examined as PW3. PW3 submitted that on 17.07.2012 at around 12.30 pm, she alongwith Savitri and Krishna went to Lady Harding Hospital on the instructions of duty officer and got medically examined both the ladies. PW3 also proved the seizure memo of kurta of Savitri which is Ex.PW3/A bearing her signatures at point A. W/Ct. Sanyogita has been examined as PW4. PW4 has submitted that on 09.08.2012 she joined the investigation of the present matter alongwith SI Mangesh. PW4 has proved the arrest memo of accused Nirmala Devi Ex.PW4/A bearing her signatures at point A. PW4 has also proved the personal search memo of accused Nirmala Devi Ex.PW4/B bearing her signatures at point A. HC Mukesh has been examined as PW5. PW5 deposed that on 17.07.2012, SI Mangesh handed over rukka to him for registration of FIR. FIR No. 154/12 Page 3 of 16 PW5 made endorsement on the complaint Ex.PW5/A which bears his signatures at point A. PW5 has proved the FIR which is Ex.PW5/B and certificate under Section 65B of Indian Evidence Act Ex.PW5/C, bearing his signatures at point A. Smt. Krishna has been examined as PW6. Ct. Sharad Yadav has been examined as PW7. PW7 deposed that on 17.07.2012 he alongwith investigation officer SI Mangesh Singh joined the investigation of the present case and went to 16/18I, Bapa Nagar, Karol Bagh, Delhi. Accused Dev Kumar was apprehended on the way at Pyare Lal Road. PW7 has proved the arrest memo and personal search memo of accused Dev Kumar, which are Ex.PW7/A & Ex.PW7/B respectively bearing his signatures at point A. Dr. Yogender Kumar has been examined as PW8. PW8 identified and proved the signatures of Dr. Rahul who prepared the MLCs Ex. PW6/A & Ex.PW2/A respectively pertaining to Savitri and Krishna which bears the signatures of Dr. Rahul at point A & D respectively. PW8 also proved the MLC Ex.PW6/A on which Dr. Rahul gave his opinion about the nature of injury and bears his signatures at point C. Ct. Rajveer has been examined as PW9. PW9 has proved the entry at serial no. 2074 in register no.19 regarding deposition of ladies kurta with MHC(M) as FIR No. 154/12 Page 4 of 16 Ex.PW9/A. Ct. Anuj has been examined as PW10. PW10 has deposed that on 17.07.2012 medical examination of Savitri and Krishna got conducted at Lady Harding Medical College on the direction of duty officer. Ct. Bhushan has been examined as PW11. PW 11 has proved the arrest memo and personal search memo of accused Radha Krishan which are Ex.PW11/A and Ex.PW11/B respectively bears his signatures at point A. SI Mangez Singh has been examined as PW12.
4. PE was closed on 07.08.2014. Thereafter, statements of accused persons were recorded on 19.09.2014 after putting all the incriminating evidence on record to which, they pleaded innocence and stated that complainant has implicated them falsely in the present case. Accused Nirmala has stated in her statement that on the day of incident there was exchange of hot words between her and complainant with respect to the cleaning of water in street. Accused Dev Kumar in his statement has stated that on the day of incident, he was not present at his house and he was at work from 9.00 am to 6.30 pm and he returned back to his house at about 7.30 pm.
5. Accused persons chose to lead DE and Sh. Rajesh Kumar has been examined as DW1. DW1, in his examinationinchief, has deposed that he was doing the job of sale and purchase of old vehicles with M/s FIR No. 154/12 Page 5 of 16 Welcome motors at Jain colony, Pahladpur, Delhi42. Accused Dev Kumar is also doing the same job with him. On 17.07.2012 accused Dev Kumar was with him from 9.30 am till 6.00 pm at M/s Welcome motors at Jain colony, Pahladpur, Delhi42.
6 I have heard Ld. APP for the state, Ld. Defence Counsel and perused the complete record file. Judgment filed by Ld. Counsel for accused in 2009(2) Crimes 647 (M.P) in Manish Kumar vs State of M.P, AIR 2005 Supreme Court 643 in Pandurang Sitaram Bhagwat v. State of Maharashtra, AIR 2002 Supreme Court 486, Punjabrao v. State of Maharashtra and (2006) 6 Supreme Court Cases 39 in M.S. Narayana Menon v. State of Kerala also perused carefully.
7. Allegations of the complainant are that accused Dev Kumar used to pass filthy comments on the complainant and her sister and when the complainant alongwith her sister on 17.07.2012 at about 12.00 pm went to the house of Dev Kumar, they were beaten and thrown out of the house by his parents Nirmala and Radha Krishan. In the meantime, accused Dev Kumar also came there and touched on breast of the complainant and torn her Kurta.
8 It is argued by Ld. Defence counsel that no such incident ever happened and complainant has falsely implicated the accused persons as FIR No. 154/12 Page 6 of 16 there was enmity between the complainant and accused persons over the cleaning of water in street. It is argued by Ld. Defence counsel that accused Dev Kumar was not present in his house at the time of incident. He further argued that Sh. Rajesh Kumar who is working with accused Dev Kumar has deposed as DW1 that on 17.07.2012 accused was with him from 9.30 am till 6.00 pm. Per contra, prosecution stated that when the complainant and her sister were thrown out of the house by parents of accused Dev Kumar, then accused Dev Kumar also came there and misbehaved with the complainant.
9. Let us now discuss in detail the aforementioned allegations in view of the testimony of the prosecution witnesses. PW1 in her examination in chief deposed that accused Dev Kumar and his parents reside in her neighbourhood. The incident in question took place on 17.07.2012 at around 12.00 noon. PW1 also deposed that whenever she alongwith her sister Krishna used to pass through the street in which accused also reside, he used to pass filthy comments like "aishwarya Rai ja rahi hai". Accused Dev Kumar also used to stare them with bad intention. On 17.07.2012 at around 12.00 noon, she alongwith her sister went to the house of accused Dev Kumar to complain his misbehaviour and continuous harassment to his parents. But, mother and father of accused FIR No. 154/12 Page 7 of 16 Dev Kumar did pay any attention to their complaint. In fact, they both started beating them and pushing them from their house.
They were then thrown out of the house by accused Radha Krishna and Nirmala Devi in the street. Both, Radha Krishan and Nirmala also slapped her and her sister. Accused Dev Kumar then came there and all the three accused persons started beating them mercilessly in the street. Accused Dev Kumar touched on her breast with bad intention and torn her wearing suit from the front. Accused Dev Kumar also touched on her private parts with bad intention. Immediately from there, she alongwith her sister went to the police station in the same condition and narrated the whole incident to the police. Police recorded her statement which is Ex.PW1/A bearing her signatures at point A. PW1 had handed over her torn kurta which was seized by the IO vide seizure memo Ex.PW3/A. PW1 has also proved the case property i.e. torn kurta as Ex.P1.
PW1 during her cross examination submitted that she had not filed any complaint against any other person except the present accused persons. PW1 has also submitted that at the time of incident, she was living with her son in the rented accommodation and not in the house no. 16/32. She also clarified the fact to the extent that she gave the above mentioned address at the time of incident to the authorities as that was her father's FIR No. 154/12 Page 8 of 16 address, though, she was residing at house no. 16/16 at that time. PW1 was not aware of Gali number of her rented accommodation. PW1 also did not know the name of the owner of her rented accommodation. PW1 has submitted that she had not disclosed any incident regarding the misbehaviour of the accused persons to any male family member of her sister. Though, her sister had disclosed the incident in her presence to her husband but her husband did not pay attention to the same. PW1 later on clarified that disclosure by her sister was not in her presence.
PW1 has submitted that she alongwith her sister had entered in the house of the accused Dev Kumar with the permission of his parents on the day of incident. When, she went to the house of the accused Dev Kumar only accused Nirmala and Radhe Kishan were present there at that time. PW1 has also submitted that no person from the neighbourhood was present at the time of alleged incident. PW1 has submitted that incident might have taken place for 1015 minutes. PW1 has submitted that as she was not carrying any mobile phone at the time of incident, therefore, 100 number was not dialled by her. PW1 though admitted that accused Dev Kumar is working but denied the suggestion put to her by counsel for the accused that accused Dev Kumar was not present at the spot as he was on the job at the time of incident. PW1 has also denied the suggestion put to FIR No. 154/12 Page 9 of 16 her by counsel for the accused that there was a quarrel between her and mother of the accused Dev Kumar regarding cleaning of the water in the street and that is why she has falsely implicated all the accused persons in the present case.
10. PW6 in her examination in chief deposed that accused persons reside in the same street in which his father resides though she is residing in the different street. PW6 further deposed that on 17.02.2012 when she was passing through the street, accused Dev Kumar commented on seeing her that "Ashwarya Rai ki behen ja rahi hai". When she objected the same, he started abusing her in filthy language. Accused Dev Kumar used to pass such kind of comments even prior to the abovementioned incident when she and her sister passed through the street. On hearing the abovesaid incident, her sister decided to make the complaint about the incident to the parents of accused. Thereafter, they both went to the house of accused Dev Kumar on the same day. On seeing them, parents of accused Dev Kumar without listening them started misbehaving with them. Accused Nirmala raised hand and slapped her. Then, both the sisters were pushed by them out of the house. On hearing the noise, accused Dev Kumar also came there and all the three accused persons started misbehaving with them and started beating them in the street. Accused Dev Kumar torn wearing kurta FIR No. 154/12 Page 10 of 16 of her sister Savitri from the front and also touched on her breast in the street. Anyhow, they rescued from the accused persons and went to police station and told the incident to the police officials. PW6 has proved her MLC as Ex.PW6/A. During her cross examination, PW6 was confronted by counsel for the accused with her statement given u/s 161 Cr.P.C where she has nowhere stated that accused commented on her sister "Ashwarya Rai ki behen ja rahi hai". PW6 did not remember if people from the nearby houses had come during the incident. Though, she submitted that there are other residential accommodations. PW6 has also submitted that duration of the incident was 1520 minutes.
11. PW12 in his examination in chief deposed that on 17.07.2012 he was posted at PS Prashad Nagar. On that day, W Ct. Asha brought two ladies namely Savitri and Krishna after their medical examination. Savitri stated that accused Dev Kumar used to taunt upon her as "Ashwarya Rai". She alongwith her sister went to complain to the parents of accused Dev Kumar but parents of accused Dev Kumar insulted them and pushed them out from the house in the street. Thereafter, accused Dev Kumar also reached there and torn her clothes and insulted her as well as her sister. PW12 alongwith W/Ct. Asha, complainant and her sister reached at the FIR No. 154/12 Page 11 of 16 spot and prepared the site plan which is Ex.PW12/A. Complainant Savitri went to her home and after changing her torn clothes handed over her torn clothes to him. During his cross examination, in answer to the question put to him by counsel for accused persons that what steps have been taken by him for knowing the truthness of the complaint Ex.PW1/A? PW12 submitted that he recorded the statement of complainant and her sister. 12 The question which is for consideration is whether the testimony of the witnesses especially of complainant and her sister are of such credible nature that conviction can be based solely on their testimonies. It has been submitted by the complainant as PW1 and her sister as PW6 that even on earlier occasions also accused used to tease them and passed filthy comments. No piece of relevant evidence has been put on record by the complainant to establish the fact that accused had misbehaved with her on earlier occasions also. It is an admitted fact that in that particular street in which house of the accused is located, neither the complainant nor her sister resides. Prosecution has failed to explain the place/places where accused used to pass comments or passed comment on the date of incident which further led to incident in question. It is the house of father of the complainant which is situated in the street of the accused persons.
FIR No. 154/12 Page 12 of 16
PW12 has specifically submitted that he had informed by the father of the complainant that accused Dev Kumar had been troubling the complainant for past 23 months. Prosecution miserably fails to examine the father of complainant who was stated to be residing in the same street as that of accused and who as per the statement of prosecution witnesses only, was aware of the incidents of misbehaviour. It is not understandable that on one had witnesses of prosecution especially the investigation officer during his cross examination specially submitted that father of the complainant was aware that accused had been troubling the complainant from last 23 months. Still, no plausible explanation has been given for not examining the father of the complainant on that aspect. Nowhere, it is the case that father of the complainant never wanted to depose so, it is not conceivable that why his statement had not been recorded by the investigation officer?
It is submitted by the investigation officer in his cross examination that he had also interrogated the neighbours of accused Dev Kumar about the behaviour of accused and complainant towards each other to which they stated that there were quarrel between them usually. PW12 during his cross examination submitted that he had asked few neighbours about the incident who were residing in front of the house of accused Dev FIR No. 154/12 Page 13 of 16 Kumar but he was not able to tell the names and addresses of those neighbours. It is an admitted fact that place of incident is a very narrow street. It is not conceivable that when it is a narrow street and the alleged incident continued for 1015 minutes as submitted by witnesses PW1 and PW6 in their cross examinations that no other person from the neighbourhood was present there. It has been specifically submitted by PW12 who is IO of the present case that to verify the veracity of the complaint of the complainant, he had interrogated the neighbours of the accused about the behaviour of both, accused as well as the complainant. It has been put forward by the neighbours that there were quarrels between them usually. It is neither conceivable and nor explained by the prosecution that when there is some sort of apprehension that there were earlier quarrels between the complainant and accused which might led to filing of present case then why any of the neighbours or even in that case husband of sister of the complainant or the father of the complainant has not been examined by the prosecution on that aspect to verify the same?
It is stand of accused Dev Kumar right from very first stage that he was not present at the place of incident. It is also not explainable that when the presence of accused is disputed at the spot of incident, no steps have been taken by the prosecution to establish his presence by any FIR No. 154/12 Page 14 of 16 way i.e either by placing evidence on record to show that he was very much present on the place of incident or to produce the call records by way of which his presence at the place of incident may have been established. PW12 during the course of his cross examination has admitted that he had not confirmed the location of accused Dev Kumar through his call detail record at the time of incident.
13. It is not conceivable that on one hand witness PW6 deposes that she was being beaten by all three accused persons and on the other hand she also deposes to witness the misbehaviour of accused Dev Kumar with her sister. How can it be possible that when one person is being beaten by three persons then in the meantime she witnessed alleged misbehaviour specifically by accused Dev Kumar with her sister? It is not explainable by the prosecution that how the alleged beatings changed into misbehaviour by accused Dev Kumar with the complainant? It is also not culled out from the depositions of witnesses PW1 and PW6 that all of a sudden how they have been freed from the clutches of accused persons? There is no specific imputations regarding the manner in which each of the accused persons had manhandled the complainant and her sister. This has not been enumerated by the complainant and her sister either in her statement made before the police or in her deposition before the court as witness. There are FIR No. 154/12 Page 15 of 16 clear improvements as well as inconsistencies in the depositions of the complainant as well as her sister with respect to the manner in which the alleged incident took place. Same has been already discussed in detail. Also Dr. Sunil Garg who has appeared as PW2 has in an answer to the question put by counsel for the accused that he is not able to give the clear opinion that whether the injury mentioned in MLC Ex.PW6/A is fresh or old. Therefore, benefit of doubt goes in favour of accused persons and they all are acquitted for the offence under Section 323/34 IPC.
Also, it is settled law that prosecution has to prove its case against the accused beyond pales of reasonable doubts and there should not be any iota of doubts in favour of the accused. Therefore, on the basis of above discussion and in the light of the testimonies of the witnesses accused Dev Kumar is also acquitted for the offence under Section 509/354 IPC. Previous bail bonds of accused persons are further extended for a period of six months as per Section 437A Cr.P.C.
File be consigned to record room.
Announced in the open court today on this 23rd day of January, 2015. (MANU VEDWAN) Metropolitan Magistrate, Mahila Court, Central01, Delhi FIR No. 154/12 Page 16 of 16 FIR No. 154/12 PS Prasad Nagar State Vs Dev Kumar & Ors.
23.01.2015
Present: Ld. APP for the state.
Complainant in person.
Ld. Counsel for accused alongwith all the accused.
Final arguments heard. Put up for orders at 4.00 pm. (MANU VEDWAN) Metropolitan Magistrate, Mahila Court, Central01, Delhi At 4.00 pm Present: None.
Vide separate judgment of even date, all the accused persons are acquitted for the offence under Section 323/34 IPC. Also, accused Dev Kumar is acquitted for the offence under Section 509/354 IPC. Previous bail bonds of accused persons are further extended for a period of six months as per Section 437A Cr.P.C.
File be consigned to record room.
(MANU VEDWAN) Metropolitan Magistrate, Mahila Court, Central01, Delhi FIR No. 154/12 Page 17 of 16