Delhi District Court
State vs Akshay Giri on 4 June, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-08, SOUTH WEST
DELHI
(Presided Over by SH. ANIMESH KUMAR)
Cr CASES/26500/2018
STATE VS. Akshay Giri
FIR NO: 560/2018
P. S Uttam Nagar
U/s 323, 341, 506 & 427 IPC
JUDGMENT
Date of its institution : 16.08.2018
Name of the complainant : Ms. Shalu, w/o Sh. Sachin, R/o
3695/4 Tej Mohan Nagar, Basti
Sheikh, Jalandhar, Punjab
Date of Commission of offence : 21.06.2018
Name of the accused : Akshay Giri, S/o Sh. Jeewach Giri,
R/o H. No. A-280, Nawada Village,
Uttam Nagar, Delhi.
Plea of accused : Not Guilty
Case reserved for orders : 28.02.2024
Final Order : Acquitted
Date of orders : 04.06.2024
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Akshay Giri for having committed the offence 1 punishable u/s 323, 341, 506 & 427 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, the present FIR was registered on the basis of a complaint given by the complainant namely Shalu. As per the complaint, on the day of the incident, she was residing along with her family at H. No. 280, Nawada Village, Uttam Nagar, Delhi on rent. On 21.06.2018 at around 4 PM, the accused Akshay Giri who was her neighbour had tumbled her water bucket on the floor. When the complainant confronted the accused about the same, he restrained her and also started quarrelling with her. The accused also threatened the complainant to kill her. He had also beaten the complainant due to which she had also sustained injury on her hand. The accused had also broken the washing machine of the complainant. The daughter of the accused had also abused the complainant. Thereafter, the complainant called the PCR and went to the PS Uttam Nagar to give the present complaint.
3. After completing the formalities, the investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused. Thereafter, charge u/s 323, 341, 506 & 427 IPC was framed against the 2 accused vide order dated 16.04.2019, to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused, the prosecution examined following seven witnesses:
o Smt. Shalu, deposed as PW-1;
o SI Sitaram, complainant deposed as PW-2; and o ASI Vinod Kumar, deposed as PW-3.
5. PW-1 during the examination in chief deposed that on the day of incident, she was staying with her family I.e. husband and child near Nawada Metro Station in Gali No. 2. She could not state her complete address. She stayed there for around 1-1.5 months. She further stated that on the day of the incident which was Thursday and the date was 22nd, she had brought washing machine and kept it in front of her house but the wife of the accused asked her not to keep the same there. She further stated that she had asked the wife of the accused to remove the utensils from her space as she had to keep the washing machine. However, wife of the accused started fighting with her. When they were arguing, the accused Akshay Giri came and started abusing her and entered into altercation with her. He also broke her bucket and 3 also beaten her. She further stated that at that time, she was alone at the house along with her two children. Thereafter, the complaint went to PCR as her cloth was also torn. PCR officials asked her to go to the police station. She further stated that she went to the police station and gave her complaint Ex. PW-1/A. Thereafter, she was sent for medical examination along with one woman constable. After her medical examination, she came back at the police station at 9-9:30 PM.
6. PW-1 further stated that she was pressurised by SI Rajesh to compromise the matter. She also stated that when she went to the police station, her washing machine was not broken, however, when she back to her home, she found that her washing machine was also broken. She deposed that although she had settled the present matter initially, however, the payment was not received by her. After finding out that her washing machine was broken, she immediately informed the police officials and stated that she did not want to compromise. Thereafter, the police arrested the accused and the complainant PW-1 was called to the police station at around 6 PM when her statement Ex. PW-1/A was recorded. She also stated that her first statement was never given to her. Thereafter, she had complained the SHO about the 4 investigating office. The investigation was handed over to ASI Sita Ram. She further stated that she was recommended to get the X-ray conducted. PW-1 correctly identified the accused in the Court and she also identified the washing machine from the photographs available in the judicial record.
7. PW-1 was duly cross-examined by Ld. Counsel for the accused. During the cross-examination, she deposed that her husband was a driver and she was a housewife. She admitted that other people were also living in her colony in Nawada. She further stated that the said colony was a residential area. She also stated that many people including the ladies of the area had gathered at the time of the incident. No statement of any neighbour was recorded in her presence. She did not place on record any bill of the washing machine. She voluntarily stated that she was not asked for any bill. She did not get the machine mechanically inspected. She further stated that she had told the police about her fight with the wife of the accused regarding the kitchen and utensils. She was confronted with her statement Ex. PW-1/A wherein the same was not recorded.
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8. PW-1 denied the suggestion that she had falsely implicated the accused as she had fought with the wife of the accused and had falsely implicated the accused in order to take revenge against the wife of the accused. She also stated that the washing machine was not broken in her presence. She also stated that she made call at 100 number. She voluntarily stated that she initially had called the PCR officials from van near metro but she had called at 100 number afterwards. She also stated that she had told the police regarding the fact that her clothes were torn by the accused. She was confronted with her statement Ex. PW-1/A wherein it was not so recorded. She denied the suggestion that no such incident even happened or his clothes were never torn. She also denied the suggestion that she was never given any beatings. She did not remember the name of the lady constable who took her to the hospital for medical examination. She had gone for medical on 22nd i..e on the day on which she had given complaint Ex. PW-1/A. She also stated that she was 10th pass. She also stated that she did not give any complaint in her handwriting. She also stated that she had sustained injuries on her hand. Police did not record any other statement other than her statement. She denied the suggestion that since no such incident happened, therefore, the police did not join the public witness 6 in the investigation in the present case. She denied the suggestion that she was filing water and had slipped due to which she got injured. She also denied the suggestion that she used to leave the water running which made the floor slippery due to which dispute had arisen between her and the accused. She also stated that she told the police regarding the abuses given to her. She was confronted with her statement Ex. PW-1/A wherein it was not so recorded. She denied the suggestion that she was deposing falsely.
9. PW-2 SI Sitaram was the first investigating officer of the present case.
He deposed that in the year 2018, he was posted at PS Uttam Nagar as ASI. After the registration of the FIR, the investigation of the present case was marked to him on 22.06.2018. During the investigation, he had visited the spot along with the complainant Shalu and at her instance, he prepared the site plan Ex. PW-2/A. He further stated that during the investigation, he had also arrested the accused on 23.06.2019 at the instance of the complainant vide arrest memo Ex. PW-2/B. He also conducted the personal search of the accused vide personal search memo Ex. PW-2/C. He also handed over the photographs of the washing machine Ex. P-1 (colly). He also obtained 7 final result of the MLC of the complainant and also recorded supplementary statement of the complainant. After the completion of the investigation, he had filed the chargesheet in the Court. He had correctly identified the accused in the Court.
10. PW-2 was duly cross-examined by Ld. Counsel for the accused. During the cross-examination, he deposed that no eye witness was found at the spot during the investigation. No CCTV cameras were installed at the spot. He admitted that at the time of the arrest of the accused, some neighbours and family members were also present there. He also admitted that he did not obtain signatures of any of the family members of the accused and their neighbours. He also admitted that some other tenants were also residing in the same building. He further stated that the complainant did not hand over to him any negatives of the photographs and certificate u/s 65B of the Indian Evidence Act. He denied the suggestion that he had falsely deposed at the instance of the complainant. He also denied the suggestion that he had never visited the spot and prepared all the documents by sitting at the police station.
11. PW-3 ASI Vinod Kumar had deposed that on 21.06.2018, the complainant arrived at the police station. Thereafter, she was sent for 8 her medical examination at DDU Hospital with a woman constable. The MLC of the complainant is already Ex. X-3. He further stated that on 22.06.2018, the complainant again visited the police station where her complaint Ex. PW-1/A was recorded by him. On the basis of the complaint given by the complainant, he had prepared tehrir Ex. PW-3/A. Thereafter, the present matter was marked to some other police official for investigation.
12. PW-3 was duly cross-examined by Ld. Counsel for the accused. During the cross-examination, he admitted that he had never visited the spot to make any kind of investigation. He also admitted that he had never interrogated any public person regarding the present case. He further admitted that he did nots seize any bill pertaining to the washing machine belonging to the complainant. He voluntarily stated that all the above investigation was done by the second investigating officer. He denied the suggestion that he was deposing falsely at the instance of the 2nd IO and the accused was falsely implicated in the present case. He also denied the suggestion that the accused was not involved in the present case. He also denied the suggestion that the accused was involved in the present case in order to extort money from him. 9
13. The accused has also admitted the factum of the registration of the present FIR, certificate u/s 65B of the Indian Evidence Act and MLC No. 05974/18 Ex. X-1 to X-3 respectively u/s 294 Cr.P.C. Hence, formal proof of these documents were dispensed with.
14. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 07.12.2023. Thereafter, statement of the accused was recorded on 11.01.2024 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein he denied the allegations and did not chose to lead the Defence Evidence. The accused stated that he was innocent and was falsely implicated in the present case. He further stated that he was not even present at the spot at the time of the accident. He also stated that the complainant and his wife had altercation with each other over water related dispute. He had nothing to do with the present case.
15. Thereafter, the matter was listed for final arguments. During the final arguments, the Ld. APP urged that all the material witnesses had categorically supported the case of prosecution. No material contradiction could be seen in the testimonies of any of the witnesses. 10 Hence, accused Akshay Giri can be convicted for the offence punishable u/s 323, 341, 427 and 506 IPC. The Ld. Counsel for the accused, on the other hand, argued that material contradictions / improvements have appeared in the testimony of the complainant, and, therefore, she could not be relied upon. It was also argued that no other eye-witness or public witness was examined by the IO during the course of the investigation. Also, the accused was not present at the spot at the time of the incident.
16. I have considered the rival submissions and perused the materials available on record.
17. At the outset, in so far as arguments made by the accused that he was not present at the spot at the time of the alleged incident is concerned, the same being the plea of alibi of the accused, cannot be appreciated by this Court without any cogent evidence.
18. It is not disputed proposition of law that plea of alibi is defence of accused and has to be proved by accused with cogent evidence, especially when accused has been duly identified by the eye witness before the court, but no independent witness has been examined to prove this plea.
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19. The law regarding alibi has been dealt with by the Hon'ble Supreme Court in the case of S K Sattar vs. State of Maharashtra, (2010) 8 SCC 430. Relevant extract of the judgment is reproduced below:
"Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case"
20. In view of the above said law, it stands proved that accused has to lead positive evidence to prove that he was present somewhere else at the time of alleged incident. However, in this case, accused has not led any evidence to discard the testimony of the eye-witness.
21. In the instant case, although the accused had interalia taken the defence of alibi, however, he did not lead any evidence in his defence in order to support his claim made u/s 313 Cr.P.C. He could have examined himself u/s 315 Cr.P.C but he did not do the same. Hence, making a bald statement at the stage of SA u/s 313 Cr.P.C by the accused would be of no help to him. Reference can be taken from the 12 decision of the Hon'ble Supreme Court in the case of Dehal Singh vs. State of Himachal Pradesh AIE 2010 SC 3594 wherein while discussing the scope and relevancy of the statement recorded u/s 313 Cr.P.C, the Apex Court had held interalia the following:
"Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. Appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined, with reference to those statements. However, when an accused appears as witness in defence to disproof the charge, his version can be tested by his cross-examination.
22. Therefore, burden to prove the claims made by the accused lied on him only. He did not examine even a single witness in support of his claim. Hence, the defence taken by the accused could not be proved.
23. Be that as it may, it is a settled proposition of law that the burden of proof in a criminal trial always lies upon the prosecution. It is imperative for the prosecution to prove the guilt of the accused in a criminal 13 offence beyond reasonable doubts. It has to prove its case on its own and cannot take benefits from the weaknesses or loopholes in the defence taken by the accused.
24. In the instant case, after perusing the materials available on record, I find that the prosecution has failed to prove the guilt of the accused in the present case beyond reasonable doubts for the reasons discussed in the subsequent paragraphs.
25. First and foremost, it should be noted that the entire case of the prosecution is based on the testimony of the sole eye-witness i.e. the complainant PW-1. She is the star witness of the prosecution. No other eye-witness was examined by the prosecution. Although, the complainant CW-1 has supported the case of the prosecution, however, a detailed scrutiny of her testimony will show certain material contradictions / improvements.
26. The complainant in her original complaint given to the police Ex. PW-1/ A interalia stated that on the day of the incident, the accused Akshay Giri had thrown her bucket and started quarrelling with her. He had also threatened to kill her and beaten her. She further stated that he had also broken her washing machine. Perusal of the said complaint would 14 show that the complainant had levelled allegations primarily against the accused Akshay Giri and did not state anything against her wife. It would also show that it was the accused Akshay Giri only who had fought with the complainant.
27. However, the complainant while deposing as PW-1 had introduced some entirely new facts in his testimony. She deposed that when she had kept her washing machine in front of her house, it was the wife of the accused Akshay Giri who had asked her to not keep the washing machine there. Due to this, it was the wife of the accused who had started fighting with her. Thereafter, the accused Akshay Giri also joined. This statement of the complainant is completely different from the facts mentioned by her in her complaint given to the police. Interestingly, the complainant did not mention anything about the wife of the accused Akshay Giri in the said complainant. No explanation could be provided by the prosecution on this aspect.
28. Moreover, the complainant in her examination-in-chief had stated that when she came back home from the police station in the midnight, she had found that her washing machine was broken. In fact, she had categorically admitted in her cross-examination that that her washing 15 machine was not broken in her presence. It would mean that the complainant had not seen the accused Akshay Giri breaking her washing machine. This would be contradictory to the statement made by her complaint given to the police Ex. PW-1/A wherein she had stated that it was the accused Akshay Giri who had broken her washing machine.
29. Further, the complainant in her examination-in-chief had stated that the accused had also torn her clothes. However, no such statement was mentioned by the complainant in her original complaint given to the police. It would be difficult to understand as to why the complainant did not mention all these material facts in her complaint given to the police Ex. PW-1/A which was given immediately after the alleged incident when the entire incident was fresh in the mind of the complainant.
30. It would become all the more relevant in light of the fact that the original complaint was given to the police by the complainant one day after the incident. Thus, the possibility of complainant filing an afterthought complaint to the police regarding the incident cannot be entirely ruled out.
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31. Also, the complainant in her testimony or her complaint did not make any specific allegations against the accused Akshay Giri regarding the offence punishable u/s 506 IPC. She did not state as to whether any alarm was caused to her by the threats given by the accused. In fact, the nature and manner in which alleged threats were given to her were also not disclosed.
32. Therefore, in view of the above, I find that it would not be safe to solely rely upon the testimony of the complainant in order convict the accused in the present case without other corroborative evidence. Since, no other eye-witness was examined during the course of the investigation, the testimony of the complainant remained uncorroborated. Hence, her testimony cannot be relied upon.
33. Secondly, there are certain contradictions between the testimonies of the complainant and other police witnesses. The complainant in her testimony had stated that she went to PS Uttam Nagar after the incident and gave her complaint Ex. PW-1/A to the police. Thereafter, she was sent for medical examination along with one woman constable. However, PW-3 who was the 1st IO of the present case had stated that when the complainant came to the PS Uttam Nagar on 21.06.2018, she 17 was first sent for medical examination. Thereafter, she again came back to PS Uttam Nagar on 22.06.2018 when her complaint Ex. PW-1/A was recorded. The testimony of PW-3 could also be corroborated from the fact that the complaint Ex. PW-1/A was given by the complainant to the police on 22.06.2018.
34. Last but not the least, perusal of the materials available on record would show that the IO did not conduct the investigation in the present case in a proper manner. It is an undisputed fact that many neighbours of the complainant were present at the spot at the time of the alleged incident. However, not even a single neighbour was examined during the course of the investigation. They could have corroborated the version of the complainant. No notice in writing was given to any of the eye-witnesses (who were present at the spot at the time of the alleged incident) in order to join the investigation. No explanation was given by the prosecution regarding the non examination of eye-witnesses / public witnesses.
35. Moreover, even the statement of the complainant u/s 164 Cr.P.C was not recorded. IO did not make any effort to get the statement of the 18 complainant recorded u/s 164 Cr.P.C during the course of the investigation. This could have supported the case of the prosecution.
36. Therefore, in view of the above discussions and findings, I find that the prosecution has failed to prove the guilt of the accused in the present case beyond reasonable doubts. Hence, benefit of doubt has to be extended to the accused.
37. Thus, the accused Akshay Giri stands acquitted for the offence punishable u/s 323, 341, 427 & 506 IPC.
Announced in the open court on 04.06.2024 (Animesh Kumar) MM-08, South West, New Delhi/04.06.2024 It is certified that this judgment contains 19 pages and each page bears my signatures.
(Animesh Kumar) MM-08, South West, New Delhi/04.06.2024 19