Delhi District Court
Ram Sanjeevam .................. ... vs (1) Smt. Sunita Pandey ... on 15 September, 2018
THE COURT OF SH. BABRU BHAN
METROPOLITAN MAGISTRATE -07, ROOM NO. 345,
CENTRAL, TIS HAZARI COURTS, DELHI
CASE No. 527611/2016
P.S- SUBZI MANDI
U/s- 323/453(i)/323 34 IPC
RAM SANJEEVAM .................. Complainant
R/o- 2190, Shora Kothi,
Subzi Mandi, Delhi.
VS.
(1) SMT. SUNITA PANDEY ................. Accused
W/o- Sh. Om Prakash Pandey
(2) SMT. MUNNI PANDEY
W/o- Sh. Badri Prasad Pandey
(3) OM PRAKASH PANDEY
S/o- Sh. Badri Prasad Pandey
All R/o- 2190, Shora Kothi,
Subzi Mandi, Delhi.
1. Date of commission of offence: 06.06.2008
2. Date of institution : 19.09.2008
4. Date when judgment : 15.09.2018
was reserved
5. Date when Judgment : 15.09.2018
was pronounced
6. Offence Complained of : U/s 323/451/34 IPC
or proved
7. Plea of accused : Pleaded not guilty
8. Final Judgment : ACQUITTED.
Brief Statement of reasons for the decision of the case
1. Ram Sanjeevan (hereinafter referred as c omplainant) has alleged that on 06.06.2008 at about 06.15 am, when he was entering the gate of his house, accused Sunita Pandey threw red chilly powder in his eyes. Again on 22.07.2008, accused Munni Pandey and Om Prakash Pandey forcibly entered his house and gave beatings to him.
2. Accused persons have been summoned for the offences U/s 451/323/34 IPC.
3. Accusations for the offence U/s 323 IPC was explained to the accused Sunita Pandey in terms of Section 251 Cr.P.C on 20.10.2016. Similarly, accusations U/s 451/323/34 IPC was explained to accused Munni Pandey and Om Prakash Pandey on the even date. The allegations were denied by them and they claimed trial.
4. During post-charge evidence, complainant Ram Sanjeevan examined himself as sole witness. In his Court statement, he stated that on 06.06.2008, at about 9.30 am, he was going to Ghanta Ghar bus stop to drop his wife. When he was returning, accused Sunita Pandey mixed red chilli powder in hot tea in a steel glass and threw in his eyes. Thereafter, he washed his face and called PCR.
5. Since, despite given numerous opportunities, complainant has failed to conclude his evidence. This Court closed the post-charge evidence vide order 15.09.2018.
6. During their statements recorded in terms of Section 313 r/w 281 Cr.P.C, accused persons have denied the case of the complainant and pleaded innocence. No defence evidence has been lead.
7. Final arguments heard. Now, I proceed with the judgment.
8. Section 273 Cr.P.C stipulates that "all the evidence has to be taken in the presence of accused except as otherwise specifically provided". Following the mandate of Section 273 Cr.P.C, the statement of complainant recorded during pre-summoning evidence cannot be taken into judicial calculus.
9. In his statement recorded during post-charge evidence, complainant has not even whispered about the incident dated 22.07.2008. There is no evidence qua the incident dated 22.07.2008. Accordingly, the allegations against the accused Munni Pandey and Om Prakash Pandey that they forcibly entered the house of complainant and gave beatings to him on 22.07.2008 have collapsed here.
10. To prove the incident dated 06.06.2008, the oral testimony of the complainant is the only evidence available on record. True that there is no particular number of witnesses need to be examined by the prosecution to prove its case. If reliable, testimony of a sole witness is sufficient for conviction. But in that case, the quality of evidence given by the sole witness should be of unimpeachable character which can withstand the test of any cross-examination. Now, I proceed to analyze as to whether the testimony of complainant qualifies the aforesaid test of being a sterling witness or not.
11. The complainant in his Court statement has stated that on 06.06.2008 at about 6.15 am, accused Sunita Pandey threw red chilli powder in his eyes. Taking the time and place of incident into consideration, it can be safely said that other public persons must have gathered at the spot. However, no such independent witness has either been cited nor examined. Though, the complainant has examined her daughter Sushma in pre- summoning evidence but complainant failed to produce her during post- charge evidence. Thus, her statement recording during pre-summoning evidence is of no use for case of prosecution.
12. This Court is conscious of the legal position that it is not mandatory for the complainant to produce independent witness to prove his case but non-joining of independent witness despite their probable availability will definitely raise some doubt on the story of the complainant.
13. The complainant in his Court statement has stated that accused Sunita Pandey had threw hot tea mixed with red chilli powder in his eyes. Needless to say, hot tea mixed with red chilli powder would not only have caused irritation in his eyes but would have also resulted into burn injuries. However, admittedly, complainant did not sought any medical attention. This fact also indicates towards probable falsity of his version.
14. During cross-examination, complainant himself admitted that he had made approximately ten complaint cases against the accused persons. During course of arguments, Ld counsel for accused persons has argued that complainant is in the habit of making false complaints against the accused persons to pressurize them to vacate the premises. The fact of lodging ten previous complaints by the complainant against the accused persons strongly indicates towards the ongoing animosity and rancor between him and the accused persons much prior to the incident in question. In light of the previous relations between the complainant and the accused persons, possibility of false implication out of personal grudge cannot be ruled out.
15. In nutshell, this Court is of the considered opinion that the case of the complainant is doubtful. As has been observed above, a possibility of false implication due to previous disputes between complainant and accused persons cannot be ruled out. Complainant has not qualified the test of sterling witness. Thus, it would not be safe to convict the accused persons on the sole testimony of the complainant. The benefit of doubt is hereby given to the accused persons. They are accordingly acquitted.
File be consigned to record room after due compliance. Digitally
signed by
BABRU
BABRU BHAN
BHAN Date:
2018.09.17
14:49:55
ANNOUNCED IN THE OPEN (BABRU BHAN) +0530
COURT ON 15.09.2018 METROPOLITAN MAGISTRATE-07
CENTRAL/ THC/DELHI.