Delhi District Court
Fir No. 61/2013 State vs . Waseem Akram Butt; Ps Defence Colony 1 ... on 15 January, 2019
In The Court Of Ms. Sheetal Chaudhary Pradhan: Metropolitan
Magistrate02 (Mahila Court), SouthEast, Saket Courts:New Delhi
State v. Waseem Akram Butt
FIR No. 61/2013
U/s: 354A/341/356/379/509/506/411 IPC
P.S Defence Colony
JUDGMENT
Date of Institution : 03.09.2013
Criminal Case No. : 90334/2016
Name of the complainant : As per chargesheet
Name & address of the accused : Waseem Akram Butt
S/o Sh. Nisar Ahmed Butt
R/o A21A, South Extension,
PartII, New Delhi.
Offence complained of : U/s 354A/341/356/379/509/506/411 IPC
Offence charged of : U/s 354A/341/356/379/509/506/411 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of arguments : 10.01.2019
Date of announcing of order : 15.01.2019
FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 1 of 28
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
1. Brief facts of the case are that the accused Waseem Akram Butt was known to the complainant and she had filed a case prior against the accused in which charge against him was framed on 12.10.2013 and examination of witnesses was being carried on. However, aforesaid accused was continuously forcing and harassing the complainant to compromise and stay with him as his wife. On 08.05.2013 at about 1500 Hrs. when she was crossing Moolchand and going towards her office, accused tried to stop her and when he was unable to stop her, he had put his car before the car of the complaiannt and she took severe cut and he banged her mirror, opened her gate, took her mobile and banged her badly on the face and tried to sexually harass her and also threatened that he would post her newd pictures on several internet sites if she would not go with him. He also called the mother of complainant and defamed the complainant in front of her family with intention to spoil her character by saying bad things against her for which the complainant had a recording as a proof. Further, complainant was threatened by accused as he was knowing relatives of D.P. Yadav namely, O.P. Yadav that he would do something to the complainant which is beyond imagination. Being continuously harassed, she need police cooperation and security and if something went wrong with the complainant, it was the accused who was responsible. Further that a strict action be taken against him and the mobile and watch (chopard) which the accused snatched from her during the FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 2 of 28 aforesaid incident be recovered. Further, she had already informed the PCR control room by dialing 100 at 1500 Hrs.
2. Pursuant to this complaint dated 08.05.2013, FIR was registered on the same day and accused was arrested and chargesheet was filed in the court on 03.09.2013 and accused was summoned and charge for the offence punishable u/s 354A/341/356/379/509/506/411 IPC to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined six (06) witnesses during trial: PW1 Retired ASI Ajay Pal (Duty Officer) deposed that on 08.05.2013, he was posted as Duty Officer at PS Defence Colony and at about 8.30 PM, he received rukka from ASI Bijender Kumar and on the basis of the same, he registered the FIR Ex.PW1/A on rukka Ex.PW1/B and after registration of FIR, he handed over the copy of FIR and original rukka to ASI Bijender Kumar as further investigation of the present case was marked to him.
Opportunity to cross examine the witness was granted to the accused but he did not question anything to the witness.
PW2 complainant (victim) deposed that she was in relationship with the accused since 2010. During her relationship with the accused, he cheated her by performing a Nikah with her, which he did not FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 3 of 28 intend to materialize. She came to know regarding the aforesaid fact of fake nikah later. During the relationship, accused used to often visit her and stay with her and later leave her. During her stay, accused even made her abort the child for which she had filed a case against him, in which he got acquitted but the State has challenged the acquittal and the same was pending before the Hon'ble High Court of Delhi. During the proceedings of that matter, accused used to often allure her by saying that he wishes to settle with her and wanted her to take back the matter and also told her that he shall live with her. However, he never intended to do the same. In the year 2013 on 8th May at about 3.00pm, she was going to her office, as she was working as an Air Hostess with Air India. On that day, while she was going from Moolchand towards Bhogal and was driving her Verna car, at that time, accused, who was driving his Polo car, suddenly while driving parallel to her car came in front of her car and stopped his vehicle, due to which she applied sudden brake to stop her vehicle. Thereafter, she got panicked. Accused got off of his vehicle and came towards her, when he made her to stop her vehicle. At that time, her window pane was half opened and he banged his hand on the car window and put his hand inside and snatched away her phone make Blackberry from her. At that time, he also took her wrist watch make Chopard from her hand and accused left the spot in his car. At that time, the spot was near a police station Defence Colony and therefore, she drove her car towards PS Defence Colony. At the time of snatching of mobile phone and wrist watch, accused also threatened her to post her nude pictures on sexual internet site and accused earlier also used to threat her to do the same many times.
FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 4 of 28 Apart from aforesaid incident, accused also, continuously forced and harassed her to compromise the previous case and stayed with him as his wife and if she would not do so then he would post her nude picture on internet or even show them to her family members, relatives and friends. After the present incident, she went to PS Defence Colony and gave her written complaint Ex.PW2/A. She had shown the place of incident to police and was taken to hospital for her medical examination. In the night time, on the day of incident, accused was arrested and his personal search was conducted in her presence vide memo Ex.PW2/B and Ex.PW2/C. At the time of arrest, accused was found with her wrist watch make Swiss Chopard Geneva, having golden dial and brown strap in his wrist and the same was seized vide memo Ex.PW2/D. Thereafter, her statement under section 164 Cr.P.C. was recorded which was Ex.PW2/E. Witness correctly identified the case property that is wrist watch golden dial and having brown stripe make "Chopard Geneve"/Swiss as Ex.A1.
During crossexamination on behalf of accused, PW1 deposed that she knew accused since the year 2010 and she had met him through her friends. They had good relations till the year 2012. She was a flight attendant have on several occasions due to her profession, had visited Srinagar. She went to Srinagar several times to meet her friends but not particular the accused. It was correct that during her acquaintance with the accused, she had physical relationship with him. On 08.05.2013, her office was situated at Airport. It was correct that she was working in an FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 5 of 28 International Airlines that is Air India. She voluntarily stated that Air India also performs Haj Operations at Srinagar and also to Macca and Madina due to which she had visited Srinagar. Further, she also had been working as a freelance due to which she had travelled for her work in charter Airlines. Charter Airlines were usually nonscheduled and therefore, she did not have any document to show the details of her travels to Srinagar. It was wrong to suggest that she had not traveled for such charter airlines since she had always work on the International Airlines. On the day of incident that is 08.05.2013, she had left her house for the Airport to report "fitness" since she was no sick leave prior to that. The distance between the spot and police station Defence Colony was about half kilometre. At the time of incident, the place of incident was not very crowded and was not having much traffic. She did not remember the mobile number from which she had given a call at 100 number. She again stated that she was not able to call at 100 number since before she could make a call, her phone was snatched by the accused. She did not remember if she had mentioned in her complaint Ex.PW2/A regarding the fact of making or attempting to make a call at 100 number. She did not remember if she had mentioned in Ex.PW2/A that while she was trying to make a call on 100 number, her phone was snatched away by the accused and the same was confrontation with her statement Ex.PW2/A, wherein in the last line, the same was mentioned from point A to A1. It was wrong to suggest that there were no flights which operate from Srinagar and they only operate from Delhi. No public person gathered on the spot at the time of incident. She had given the complaint Ex.PW2/A immediately after the incident but she FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 6 of 28 could not tell the exact time of giving the same. She remained at the police station till evening. She could not tell if she had signed her complaint Ex.PW 2/A. It was correct that an FIR No.228/2011, U/s 376 IPC was registered against the accused at PS Amar Colony in which she was the complainant. It was wrong to suggest that after registration of the aforesaid matter and the present matter, she had been having relation with the accused. It was wrong to suggest that after the registration of aforesaid matter, she alongwith accused had gone to visit water park namely "WOW" situated at Noida. Witness volunteer stated that she had gone for the aforesaid water park alongwith her mutual friends namely Sunny and Maria who had called the accused at the aforesaid place. She did not know if the aforesaid person namely Sunny was ever a neigbhbourer or a childhood friend of the accused since he was her mutual friend and had been residing in her neighbourhood for past 56 years. She did not know the exact address of the person namely Sunny however, she knew the place of residence. Aforesaid person namely Sunny was residing in Lajpat Nagar2. It was wrong to suggest that the person namely Sunny had never resided in Lajpat Nagar2. It was correct that she had made video call to the accused even after filing of the present matter. She voluntarily stated that she had made the calls as a reply to the calls initially made by the accused. It was wrong to suggest that she had with false intention moved an application for cancellation of bail of accused during the trial of FIR No. 228/2011 in which after inquiry, her claims were found to be wrong. It was correct that she had made a watsapp call to the accused yesterday. It was wrong to suggest that on the aforesaid whatsapp call, she had asked him to come to her.
FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 7 of 28 She had travelled with the flight which was connected from Srinagar to Delhi and then to Jedah for Haj and these flights were extra section flights. She voluntarily stated that she had also travelled to Srinagar for attending marriages of her friends. It was wrong to suggest that she used to travel to Srinagar only to meet the accused with whom she was in relationship since the year 2010 and not for her professional visits. She was not able to reach her office to give her sick leave (fitness report) on the date of incident due to the present incident. She did not remember when subsequently she had given her aforesaid fitness report in the office. She did not remember the exact date or year of the Nikah which was performed between her and the accused. It was wrong to suggest that she had accompanied the accused to a Maulvi where the Nikah ceremony was performed upon their affidavits and photographs given by them. Thereafter, certified copy of a marriage certificate dated 30.04.2012 was shown to the witness and the same was Ex.PW1/D1. Upon seeing the document, the witness states that she was not sure that the document bears her signatures however, she signs the manner in which it is depicted in the aforesaid document. It was correct that she had visited a Maulvi with the accused. Thereafter, photocopy/certified copy of photographs were shown to the witness and the same was Ex.PW1/D2, upon which, PW2 deposed that in the aforesaid photographs, she was not there and the photographs were forged. It was wrong to suggest that in the aforesaid photographs, she was being seen signing the Nikahnama and also present during the Nikah ceremony. She did not file any complaint against the accused for performing false Nikah with her. She did not remember the date FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 8 of 28 or year in which she came to know that accused had performed aforesaid Nikah by cheating her. She did not remember the date, year or month in which she finally stopped living with the accused. She did not remember the exact date, month or year in which accused allured her by saying that he wishes to settle the matter filed against him by her u/s 376 IPC. She could not tell the exact date but on several occasions, she had insisted the accused to take her to his house and give reception of the Nikah, allegedly performed by him with her but he never showed his intention to take her to his house. She used to always asked the accused to take her to his house and give reception if he believed that she was his wife. It was correct that her parents had never visited the house of the accused at Srinagar. She had not filed any complaint against the accused where he used to harass her and forced her to compromise the matter with him. She did not remember if she had spoken to the accused on the date of incident that is 08.05.2013 before the incident. She did not remember if she had told during recording of her statement U/s 164 CrPC that she was slapped by the accused on her face. She did not remember if she had stated during her statement recorded u/s 164 CrPC that the accused had tried to sexually harass her on the date of incident. Witness was confronted with her statement Ex.PW2/E wherein the aforesaid fact was not mentioned. She did not remember if she had stated during her statement recorded u/s 164 CrPC that the accused had threatened her to post her nude pictures on the internet. She did not remember if she had stated during her statement recorded u/s 164 CrPC that the accused had defamed her in front of her mother and family members with the intention to spoil her character by FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 9 of 28 saying bad things against her. She could not tell the exact time when she had made a call to the police. She did not remember the mobile number from which she had made a call to the police. At the time of incident, she was having two mobile numbers in two different phones but she did not remember the mobile number from which she had made a call to the police. PW2 again stated that she did not remember if she had made a call to the police on the date of incident since she had herself visited the police station. The incident went on for about 510 minutes. There were no public persons who had gathered at the spot at the time of incident. Accused had snatched the watch which was worn by her in her hand. She was confronted with statement Ex.PW2/E from portion X to X1. At the time of incident, the speed of her car was about 3040 Kms/hr and she was coming from the side of Moolchand and was taking a right turn towards South Extension Market/AIIMS and accused was coming from the side of Greater Kailash. The police station Defence Colony was at a distance of two minutes from the place of incident. The police officials did not visit the spot in her presence however, she had narrated the place of incident to the police officials. Police had recorded her statement only once on the date of incident. Her car was not damaged in the aforesaid incident. She did not remember if she had stated during her statement recorded u/s 164 CrPC that the accused had extended threats to her through person namely D.P. Yadav and O.P. Yadav. Witness was confronted with the aforesaid fact which was not mentioned in the statement Ex.PW2/E. She did not hand over the bills of purchase of the watch and the mobile to the police during the investigation of the present matter. She could not tell the FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 10 of 28 exact duration for which she stayed at PS Defence Colony on the date of incident after filing her complaint. Police did not prepare any document in her presence however, they had written something in the registers maintained by them. She did not remember if the window panes of her car were open or not at the time of incident. She did not remember as to how accused had opened the door of the car from outside or inside. She again stated that she did not know if the door was opened by her. She did not remember if she had stated to the police regarding the fact of opening of the door of the car but she had mentioned that the accused had taken away her watch and mobile phone after putting his hands inside the window of her car. The watch worn by her was extremely loose and put the pulled out easily as she was in the habit of wearing loose watch. She had suffered injury due to the act of the accused. She did not remember if she had stated during her statement recorded u/s 164 CrPC that the accused had caused injury to her. Witness was confronted with Ex.PW2/E wherein the aforesaid fact was not mentioned. She did not remember the exact place from where accused had taken away her watch and snatched away from her, probably the same was lying on her lap while she was in her car. Witness denied all suggestions put to her.
PW3 Dr. Saket Jha deposed that on 08.05.2013, he had medically examined injured Ankita Singh vide MLC Ex.PW3/A and gave opinion as several injuries were found on her person i.e. abrasion on the left elbow (1cm X 1cm) and swelling on the right side of her face. Thereafter, he prepared MLC which was Ex.PW3/A. FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 11 of 28 During crossexamination on behalf of accused, PW3 deposed that in his usual practice, he did not verify the manner of incident from the injured. As per the examination, the abrasion on the victim was fresh injury. An abrasion was a breach in the skin which was superficial to the dermal layer of the skin. Swelling on any body part of a human being depends on the severity of the injury sustained. It was a possibility that if any person slaps himself or herself with force, it may amount to swelling. Apart from him and one female nurse, there was no other person during the examination of the injured. It was wrong to suggest that he had not examined the injured personally and for this reason he had not taken the signature or thumb impression of injured.
PW4 W/Const. Mukesh deposed that on 08.05.2013, she joined the investigation of present case alongwith IO SI Bijender as on that day, complainant came at PS and gave a written complaint to the IO. On the basis of that complaint IO made an endorsement and handed over the same to Duty officer concerned for registration of present FIR. IO further directed her to take the complainant to AIIMS Trauma Centre where medical examination of complainant was conducted. She collected MLC of the injured/complainant Ankita Singh and thereafter, she alongwith complainant came back at PS. Thereafter, she alongwith IO and complainant went to the spot near Moolchand flyover. IO prepared the site plan at the instance of complainant. Meanwhile, Constable Joginder came from PS with copy of FIR and original rukka and handed over the same to IO. Thereafter, she went to FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 12 of 28 the residence of accused Waseem at A21, SouthExtension, PartII, New Delhi where accused was arrested at the instance of complainant vide arrest memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW2/C. IO recorded supplementary statement of complainant and accused was sent for his medical examination and thereafter, was sent to lockup. IO recorded her statement u/s 161 CrPC.
During crossexamination on behalf of accused, PW4 deposed that she could not tell the exact time when the complainant reached the police station to give her complaint but it was evening time. She could not tell the exact time of taking the complainant to medical but she could not tell the mode of vehicle by which she had taken her to AIIMS. She was present when the medical examination of complainant was conducted. She could not tell the exact time when the site plan was prepared by the IO. Complainant was present when the site plan was prepared. IO had recorded her statement at PS on the date of incident. She alongwith complainant, IO, Const. Joginder went to the residence of accused but it might be around 7.30 PM. They had visited the house of accused after conducting the medical of complainant. After getting the medical conducted of the complainant, they came back to PS, then went to the spot and thereafter, went to the residence of the accused. The house of the accused was near to the police station and it took about 10 minutes from the spot to reach the house of accused. Upon being asked about the time of reaching the house of the accused alongwith other staff members and complainant, the witness could not tell the exact or tentative time which FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 13 of 28 they took to reach the house of the accused after departing from hospital. Witness could not tell the time for which they remained at the house of accused. Upon being asked, witness stated that apart from accused, one or two more persons were present there and she did not sign on the site plan prepared by the IO and the arrest memo and personal search memo were prepared by the IO at the police station. It was wrong to suggest that she did not accompany the IO and the complainant to the spot or the site plan was prepared in her presence. It was wrong to suggest that she had not participated in investigation and signed arrest memo and personal search memo on the asking of IO while sitting the police station.
PW5 HC Joginder deposed that on 08.05.2013, at around 8.50 PM, copy of present FIR and original rukka was handed over to him by the concerned duty officer for further handing over the same to IO at the spot. Thereafter, he went to the spot near Moolchand flyover and handed over original rukka and copy of FIR to the IO. Complainant Ankita Singh and W/Const. Mukesh were also present there. Thereafter, they went to the residence of accused Waseem that is A21A, South Extention PartII, New Delhi where accused Waseem was arrested at the instance of complainant and his personal search was conducted vide memos Ex.PW2/B and Ex.PW2/C. IO interrogated accused Waseem and his disclosure statement was recorded vide memo Ex.PW5/A. The medical examination of the accused was got conducted and thereafter was brought to PS and was sent to lockup. He joined the investigation in the present matter with the IO. Thereafter, upon being asked by Ld. APP for the State, witness stated that one wrist watch and FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 14 of 28 one mobile phone was recovered from the possession of the accused and the same were seized by the IO after preparing seizure memo. Thereafter, seizure memo of one wrist watch make Swiss was shown to the witness and witness correctly identified the same as Ex.PW2/D and also identify the case property as Ex.A1.
During crossexamination on behalf of accused, PW5 deposed that he had handed over to the IO the original Rukka and copy of FIR around 08:50 PM at the spot and there he met the IO alongwith complainant. Thereafter, he remained at the spot for some time. Upon being asked. PW5 deposed that he alongwith complainant, IO, W/Ct Mukesh reached at the house of the accused around 09:30 PM in the car of the IO. He could not tell if there were any other person present in the house of the accused when they reached there. They remained at the house of accused for about half an hour and the paper work was done by the IO at the house of accused. He could not describe the make of the watch or of the phone. He did not know who was the owner of the said phone. He stated that the wrist watch belongs to the complainant as revealed by her. He could not say if the ownership proof of the wrist watch was asked by the IO from the complainant. He did not remember the shape of the watch and he did not remember if the same had a chain or leather strap. It was wrong to suggest that he was deliberately not giving specific answer with regard to the recovery of mobile phone and wrist watch as the same were not recovered from the accused or seized by the IO in his presence. It was further wrong to FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 15 of 28 suggest that he had signed the seizure memo on the asking of the IO at police station itself.
PW6 SI Bijender Kumar (IO) deposed that on 08.05.2013, he was posted at PS Defence Colony. On that day complainant Ankita came to him and handed over a written complaint Ex.PW1/A to him. Complainant was sent for her medical examination through W/Const. Mukesh to AIIMS Trauma Centre and after her medical examination W/Const. Mukesh along with complainant came back at PS and handed over the MLC to him. Thereafter, on the basis of aforesaid complaint and MLC, he prepared rukka as Ex.PW6/A and handed over the same to the concerned duty officer for registration of FIR. Thereafter, he alongwith complainant and W/Const. Mukesh went to the spot that is near Mool Chand flyover and prepared the site plan at the instance of complainant as Ex.PW6/B. Meanwhile, Constable Joginder came at the spot with original copy of FIR and handed over the same to him. Thereafter, complainant took them at the residence of Waseem Akram Butt that is A21A, South Extension, Part1, New Delhi where accused Waseem Akram Butt was found present and he was identified by the complainant. One wrist watch made of Swiss, colour golden and brown color of its strip was found wearing in the wrist of his right hand which was also identified by the complainant. The aforesaid wrist watch was seized vide memo Ex. PW2/B. Thereafter, he interrogated the accused and recorded his disclosure statement vide memo Ex. PW5/A. Accused Waseem Akram Butt was arrested and his personal search was conducted vide memo Ex.PW2/B and Ex.PW2/A. Accused was sent for his medical examination through Const.
FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 16 of 28 Joginder and thereafter he was sent to lockup. Case property was sent to Malkhana. During the course of investigation, he received ownership detail (Customer application form) and CDR of Mobile number 8447494940 & 8447552020 both belongs to complainant and attached with the judicial file. The customer application form was Ex.PW6/C and Ex.PW6/D and CDR of both mobile number were Ex.PW6/E & Ex.PW6/F respectively. The statement u/s 164 Cr.PC of complaint got recorded and copy of the same was collected. He recorded the statement of witnesses. After completion of investigation Challan was filed.
During crossexamination on behalf of accused, PW6 deposed that there was no PCR call made by the complainant regarding the present incident as per his knowledge. He received the complaint Ex.PW2/A at around 6.00 PM. Witness again stated that 7.00 PM at PS from the complainant on 08.05.2013. Complaint was written by the complainant at PS in his presence. He did not remember whether any addition or deletion were made by the complainant while writing Ex.PW2/A. The complainant visited the PS around 6.00 PM on 08.05.2013. During the course of investigation, he did not obtain any CDR pertaining to mobile phone of accused. He voluntarily stated that he had obtained the CDR of mobile number which was inserted in the mobile phone alleged to be snatched from the complainant by accused. He could not recollect as to for which period, he obtained the said CDR. The distance between place of occurrence and PS was around 500 metres. It was correct that the place of occurrence was a busy road and people FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 17 of 28 used to travel from the said place frequently. No CCTV camera was found installed near the spot. It was wrong to suggest that there were CCTV cameras but he deliberately did not obtain the footage. He made inquiries from the complainant as to why she made her complaint after a gap of about three hours of the incident and complainant stated that firstly she had made a call to police and waited for around one hour but no one came at the spot thereafter, she went to PS Amar Colony where police official directed her to visit at PS Defence Colony as the place of incident comes within the jurisdiction of PS Defence Colony. Upon being asked, witness stated that he made inquiry regarding the call made to the police as stated by the complainant but no record of the same was found. He further stated that he had applied for recording of statement of complainant u/s 164 CrPC after three moths of incident since she was not available. Witness deposed that he had asked from the complainant regarding ownership proof of wrist watch during the course of investigation but she could not produce the same. It was correct that he did not mention in the chargesheet regarding the fact that he asked for the ownership proof of the alleged wrist watch from the complainant. It was correct that he did not make any inquiry from the accused with regard to the ownership of the wrist watch. It was wrong to suggest that he had filed wrong chargesheet against accused despite there being no evidence with regard to the rightful ownership of the wrist watch. He had asked from the accused whether he was acquainted with the Hindi language and the accused replied that he can understand the same. It was wrong to suggest that the accused being Kashmiri resident, could not read Hindi FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 18 of 28 language and he obtained his signatures on the blank papers and prepared the false seizure memo and disclosure statement of accused at the instance of complainant. The complainant did not provide the bill of alleged mobile phone. He did not get mechanical inspection of the vehicle of complainant, conducted. He did not remember whether complainant had signed her complaint Ex.PW2/A. It was wrong to suggest that he had not investigated the present case in the spirit and have falsely implicated the accused at the instance of the complainant and for this reason, he did not collect the ownership document of the alleged watch and mobile phone.
4. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
5. Accused did not examine any witness in his defence.
6. Final arguments were advanced.
7. It has been argued on behalf of Ld. APP for the State that in the present matter the guilt of the accused persons have been proved. It is further argued that the complainant has clearly deposed the manner in which the accused misbehaved with her and the manner in which the complainant was suddenly stopped in the middle of the road and the accused misbehaved with her and outraged her modesty by stopping her way and forcefully snatched away the watch and mobile phone of complainant and even extended threats FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 19 of 28 to her. It is further argued that the alleged stolen property that is the watch of the complainant was recovered from the possession of the accused and therefore, the accused is liable to be convicted for the offences charged.
8. On the other hand, it has been argued on behalf of Ld. Counsel for accused that in the present matter the accused has been falsely implicated since the complainant and the accused were known to each other and were in live in relationship. It is further argued that the complainant even on the previous occasions had filed false complaints against the accused and alleged an offence u/s 376 IPC for which the accused had already been acquitted. It is argued that there are several contradictions in the testimony of the complainant and the same render the complaint filed by the complainant to be false and improbable. It is argued that the alleged incident had taken place at 3.00 PM on 08.05.2013, however, despite the grave allegations, the complainant failed to even give a call to the police on 100 number. Further, admittedly the place of incident is opposite to police station defence colony, as per the site plan but even when the complainant reached the police station only at about 8.30 PM and gave her written complainant Ex.PW2/A upon which the rukka was immediately prepared and complainant was taken for her medical examination but the time on the MLC is stated to be 7.49 PM which are contradictory to the FIR. It is further argued that the complaint Ex.PW 2/A is not even signed by the complainant and the statement of the complainant recorded U/s 164 CrPC and her testimony before the court as compared to her complaint are contradictory and there are several improvements in the testimony of complainant which casts a shadow on the FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 20 of 28 veracity of witness. It is further argued that the allegations of the complainant regarding injuries suffered by her at the time of incident and the ones mentioned on the MLC are not corroborated and PW3 during his cross examination has already stated that the injuries stated on MLC Ex.PW3/A may be due to the force by which a person may rub his or her face and the aforesaid possibility can be seen when the time of incident and the time taken for getting the medical examination of complainant is taken into account. It is also argued that despite the fact that the place of incident was having passersby, none of the public persons have been examined. It is also argued that the investigation conducted by the police officials is also doubtful as though PW4 who had been a part of the investigation conducted on 08.05.2013 is stated to have collected the rukka and copy of FIR from the Duty officer for handing over the same to the IO, the same is contradicted by PW1 being a duty officer. Further, the arrest memo, personal search memo and the seizure memo of the watch were prepared on the same day at the residence of the accused, the personal search memo does not mention the presence of any watch in the possession of accused and the same is stated to be Nil, that is when the seizure memo allegedly prepared on the same day shows that a watch has been recovered from the possession of accused which are again contradictory. It has also been argued that the alleged disclosure statement of accused recorded again at the residence of accused does not mention regarding the presence of the complainant and the same is not stated by the complainant in her testimony before the court but the prosecution intends to draw an inference by examining all the witnesses that it was the FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 21 of 28 complainant who accompanied the police officials to the house of accused for him to be apprehended, but the same is not corroborated by PW2. It has also been argued that the MLC dated 08.05.2013 mentions the time of arrival to be 7.53 PM and the time of examination of the victim to be 7.49 PM, but despite the fact that it was the police officials who had taken the complainant for her medical examination, upon the registration of FIR, but the same does not mention regarding the details pertaining to the FIR, name of the police official, belt number of the police official, date of admission or discharge or any thumb impression, signature of the patient examined by the doctor but the same is mentioned in the MLC of the accused which was also conducted in AIIMS hospital on the same day at 10.35 PM which itself shows the callous manner in which the investigation in the present matter had been conducted. It is argued that the MLC Ex.PW3/A of the complainant is anti dated and antitime. It is also argued that though PW4 states that he accompanied the IO during the investigation and after receiving rukka went to the place of incident and met the IO when he was preparing the site plan at the instance of complainant, but the complainant does not depose that the said site plan was ever prepared at her instance or she had taken the police officials to the spot, since at that time, allegedly the complainant was taken by W/Const. Mukesh for getting her medically examined. Further, PW3 Dr. Saket Jha has stated that the MLC was prepared in the presence of the complainant, one female nurse and himself, but he does not state or mention regarding any police official or W/Const. Mukesh to be present at the time of preparation of the MLC and therefore, the said investigation is far from being FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 22 of 28 truthful and is falsely conducted to implicate the accused in the present false case at the behest of the complainant. It is also argued that though the incident had occurred at 3.00 PM, the complainant chose to file her complaint with the police only at 8.30 PM after a lapse of five and half hours when the complainant has herself depose that immediately after the incident, she had gone to the police station and therefore, the aforesaid delay in lodging the FIR is not explained. It is also argued that the ingredients of offence u/s 354 IPC is not made out against the accused since the complainant fails to substantiate the allegations levelled against the accused by leading any cogent evidence and infact there is vast variation and improvement in the statements recorded of the complainant. Further, the offence u/s 379/411/356 IPC is also not made out against the accused since the ownership of the alleged stolen watch is not proved since the complainant has herself admitted that she did not hand over any bill of the same to the IO and the description as per the seizure memo of the seized watch is not mentioned by any of the witnesses and there are contradictions in the deposition of all the witnesses and even the narration of the alleged watch and its description is contradictory. Further, it is also argued that the investigation is silent upon the mobile phone which was allegedly taken away by the accused and the investigation does not reveal as to why the call detail records of the complainant of her mobile phones numbers being actively used on the alleged date of incident repeatedly by the complainant and several calls were made by the complainant but she did not choose to make a call to 100 number. It is also argued that IO of the present matter has contradicted the statement of the other witnesses and the site plan FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 23 of 28 prepared by him itself shows that point A on the same was opposite police station Defence colony and the direction on which the complainant's vehicle is shown to be moving is opposite the direction stated by the complainant and the same is contradictory. It is also argued that admittedly the complainant had solemnised the Nikah with the accused which is also reflected in the photographs annexed with the record and subsequently kept on filing false cases against the accused for which he was acquitted. Further, the statement of defence witnesses examined by the accused in the FIR registered against him by the complainant in which he was acquitted also reveals the truthfulness of the accused and the manner in which the complainant has misled the judicial system and therefore, accused is liable to be acquitted for all the offences charged against him. It is also argued that in the present matter the complainant has herself admitted that the incident took place on the road and in the presence of several public persons however, none of the public persons have been examined by the prosecution. It has also been argued that the veracity of the complainant is doubtful as there is substantial improvement in her statement and the same is not corroborated by any cogent evidence and therefore, the accused is liable to be acquitted and he has relied upon several judgments which shall be taken into consideration.
Court Observations:
9. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the following conclusion:
FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 24 of 28 In the present matter, prosecution examined as many as six witnesses and PW2 being the complainant and the victim in the present matter is also the star witness of the prosecution as she is the sole eye witness to the incident alleged to have taken place with her on 08.05.2013 in broad day light on a busy road near police station Defence Colony. Remaining witnesses examined by the prosecution were formal in nature. In the present matter, accused has been charged for the offence u/s 354A/341/356/379/509/506/411 IPC. To bring home the guilt of the accused for the offences punishable u/s 354A/341/356/379/509/506/411 IPC, prosecution was required to prove that the accused had on the date of incident misbehaved with the complainant by restraining her willfully and used criminal force upon the complainant by snatching away her watch and mobile phone and abused her in filthy language, with an intention to outrage her modesty and threatened her. Further, the accused committed the aforesaid act with an intention to cause injury to the complainant.
10. While testifying as PW1, complainant was not able to even mentioned the exact manner of commission of offence and has deposed differently in her statement Ex.PW2/A and her statement recorded u/s 164 CrPC. Since the complainant had categorically mentioned the time of incident to be 1500 Hrs. as she was a professional Air Hostess and therefore, she was required to explain the reason for delay in lodging of FIR when admittedly she herself went to file her complaint within five minutes of the incident.
Further, the statement of the complainant recorded on the date of incident was in her own handwriting but does not bear her signatures and the same does FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 25 of 28 not mention regarding the theft of her watch on the first page while describing the incident but mentions the same by adding it on her second page.
11. In the present matter, the star witness of the prosecution is the complainant. The complainant in her testimony before the court has not narrated the incident dated 08.05.2013, the manner in which she has narrated it in her complaint Ex.PW2/A. Further, the complainant does not mention regarding any complaints made by her regarding the incident in such detailed, the manner has stated during her statement recorded before the Court. If we carefully peruse the record and confine ourself to the incident dated 08.05.2013, the allegations of the complainant are not substantiated by her in her testimony recorded before the court. PW2 being the complainant has also not corroborated the factum of the accused being misbehaving or assaulting the complainant when she reached near Moolchand and that the accused tried to manhandled her from the window of her car which was half opened, that is when the same finds mentioned in her statement recorded before the Court and the same is confrontation with her statement Ex.PW2/A. Further, there is no corroboration in the testimony of the complainant by any independent witness and do not inspire confidence. Further, the testimony of PW2 lacks credence since she has herself admitted that the accused was wanting her to settle all the cases and was forcing her to do the same which she did not want, but during her crossexamination admits to be meeting the accused even after filing of the present case on several occasions and going for outings with him at Noida alongwith her friends. If we further perused the testimony of the witness, it is admitted by the FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 26 of 28 complainant that she did not raise any alarm when the incident occurred on the road, which is not expected from a woman in distress and also where it was not difficult for her to seek help from passersby being a busy road. Accused cannot be held liable for causing any insult to the complainant as the complainant failed to narrate any such insulting language or gestures used against her by the accused or if any threats were extended by the accused to the complainant.
12. The improvement in the version of PW2 is crucial as Ex. PW2/A is a hand written complaint admittedly prepared by her after five and half hours of the incident on the same day and there is no justification or plausible ground as to why the complainant was unable to narrate the incident explicitly or elaborate upon the details after having the same fresh in her memory. The very fact that the complainant did not mention regarding the details as described by her in her testimony before the court or in a statement recorded u/s 164 CrPC, itself casts a shadow on the veracity of the witness. Further, medical examination conducted on the date of incident is not corroborative with the injuries stated by the complainant during her examination in chief. Further, the allegations of touching the complainant with the intention to outrage her modesty are also not sustainable as the same are completely vague and do not inspire confidence. The complainant has levelled general allegations against the accused and the same are devoid of merit as they are not supported by any medical or documentary evidence. Further, the story of the complainant cannot be believed as she herself has admitted during her crossexamination that at the place of incident, there were FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 27 of 28 several public persons but none was examined by prosecution. Therefore, there was nothing to lend support to the testimony of PW1 apart from bald averments made in the complaint and her testimony before the court. Therefore, it can be safely concluded that the guilt of the accused has not been proved beyond reasonable doubt.
13. In view of the above discussion and considering the material, available on record, the guilt of the accused is not proved beyond reasonable doubts. Therefore, accused Waseem Akram Butt stands acquitted for all the offences.
Announced in Open Court (Sheetal Chaudhary Pradhan)
on 15.01.2019 Metropolitan Magistrate02
(Mahila Court)/SED/Saket
New Delhi.
Digitally signed
by SHEETAL
CHAUDHARY
SHEETAL PRADHAN
CHAUDHARY
Date:
PRADHAN 2019.01.16
15:25:49
+0530
FIR No. 61/2013 State Vs. Waseem Akram Butt; PS Defence Colony 28 of 28