Delhi District Court
Fir No. 296/2015; Ps Oia State vs . Ashok Kumar Page No. 1 Of 20 on 1 December, 2018
Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate
(Mahila court (SouthEast), Saket Courts, New Delhi.
FIR No. 296/2015
PS: OIA
U/s : 451/354/509 IPC
State v. Ashok Kumar
JUDGMENT
Date of institution : 27.07.2015
Cr.C No. : 90487/2016
Name of the complainant : As per chargesheet.
Name & address of the accused : Ashok Kumar
persons S/o Sh. Nem Chand
R/o C67, Harkesh Nagar,
OIA, PhaseII, New Delhi.
Offence Complained of : U/s 451/452/354/509 IPC
Offence Charged of : U/s 451/354/509 IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted
Date of arguments : 30.11.2018
Date of announcing of order : 01.12.2018
BRIEF FACTS:
1. Brief facts of the case are that the complainant has stated in her complaint (undated) that she was residing at House No.C66, FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 1 of 20 Harkesh Nagar and in her neighbourhood, one Renu, wife of Ashok was residing at House No.C67, Harkesh Nagar and was an advocate. Her neighbourer Renu was having a quarrel with her old aged inlaws and abusing them and during the quarrel, took name of the husband of the complainant (namely Panna Lal). Thereafter, the complainant opened her door and asked Smt. Renu as to why she was taking the name of the husband of complainant in her quarrel with her inlaws. Due to the aforesaid reason, Smt. Renu started abusing and beating the complainant. Thereafter, complainant went inside her house and at that time, the husband of complainant namely Ashok also entered the house of the complainant and caught hold of the complainant in his arms and said to the complainant "saali, kaani, zyada bolti hai yahin par chodunga".Meanwhile, the husband of complainant also reached home and upon seeing him, accused Ashok left the complainant and ran towards his house and while running made indecent gestures towards the complainant. Further, the accused used to ask the complainant to come to a room since he wanted to talk personal things. Complainant was apprehensive of the conduct of the accused since she had a daughter in their house and also since the wife of the accused was a lawyer and had threatened the complainant to implicate her husband into false cases and wanted the complainant to leave her house.
FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 2 of 20
2. Pursuant to this complaint against the accused persons, FIR was registered on 10.04.2015 and the matter was investigated. Charge sheet was filed on 27.07.2015. The Court took cognizance of offence and summoned the accused Ashok Kumar. Charge was framed against accused vide order dated 31.01.2018 for the offence punishable U/s 451/354/509 IPC. Accused pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
3. In order to prove its case, prosecution has examined six (06) witnesses during trial.
PW1 complainant/Victim deposed that accused Ashok was residing adjacent to her house. On 10.04.2015 at about 8.30pm, wife of accused Ashok namely Renu was quarreling with her motherinlaw and fatherinlaw in her house and she was abusing them and she told them to call her husband Panna Lal as he was their well wisher. After hearing commotion and name of her husband, she opened the door and asked Renu as to why she was taking her husband's name. Thereafter, she started to beat her. Thereafter, she shut the door and returned to her house. Accused Ashok came behind and entered into her house and caught hold of her from behind and started abusing and using filthy language saying that "sali main tuje yahin choddunga"
meanwhile her husband came there and accused ran away from FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 3 of 20 there. Accused Ashok used to pass lewd comments and remarks on her earlier also. She was alongwith her husband and daughter were residing in her house and her husband used to go to his work place and she and her daughter lived in the house alone and she was worried about her daughter due to aforesaid behaviour of accused. Someone called at no.100. Police reached there and recorded her statement as complaint Ex.PW1/A. She had shown the place of incident to police. Thereafter, her statement under section 164 Cr.P.C. was Ex.PW1/B. During crossexamination PW1 deposed that she was 9th passed and was able to read and write Hindi. She was able to write English but not fluently. She was residing at C66. It was correct that she was the second wife of Sh Panna Lal. It was wrong to suggest that she often have quarrel with her husband Panna Lal. It was correct that due to anger, she had once given a call at 100 number. She had purchased her present house in the year 2011. To her knowledge, the wife of the accused prior to become an advocate used to give private tuitions in the house and on the later part of the day used to go out. It was correct that her daughter had taken tuitions from the wife of the accused for a period of one month. The incident of quarrel of the wife of the accused with the mother of the accused had taken place in the morning at around 08:30 AM. The wordings "Bula apne Jamai Panna Lal ko" was said by the wife of the accused in the morning FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 4 of 20 time during the quarrel and the same was heard by her since their house was adjacent to the house of accused. Her husband Panna Lal was not present in the house at 08:30 AM since at that time he had gone for a walk. When the quarrel started, her husband was not home but he came subsequently but even at that time quarrel continued. After hearing the quarrel, she did not enter the house of the accused but was standing on the door of her house. Accused entered her house and started quarreling with them and gave beatings to her. The wife of the accused had given her beatings after entering into her house. She had shut the door of her house but had not bolted it and entered her house. When accused entered her house no one from my family was present and she was alone and he had held her by his arms. Accused remained present in her house for about 57 minutes. When the accused was running out of the room at that time her husband entered her house and saw him going out and shouted at him, after that accused went to his home. Neither she nor her husband had given a call at 100 number at that time. She had informed her husband regarding the behaviour of accused and his habit of making lewd comments and gestures at her. She had not complained to the police ever regarding the aforesaid behaviour of the accused. She had gone to the police station to file her complaint Ex PW1/A. She did not remember the exact time of giving her complaint at the PS. The complaint Ex PW1/A was in FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 5 of 20 her own handwriting. Police had reached the spot upon call of 100 number. She could not tell the exact time when the police reached the spot, however, police officials came in the morning time. It was correct that wife of the accused had registered FIR against her husband. The site plan was prepared at her instance by the police official.
PW2 Panna Lal (husnand of complainant) deposed that on 10.04.2015 at about 8.00am when he came to his house from the market, he saw that accused Ashok was holding his wife and after seeing him, he ran away from there. His wife told him that accused had abused her in filthy language. He did not remember clearly regarding the incident. Thereafter, witness was asked leading question by Ld. APP for the State and PW2 deposed that it was correct that his wife told him that when she went to the house of accused Ashok Kumar and asked his wife as to why she had taken the name of her husband, then accused Ashok followed her into her house and caught hold of her from behind and used filthy language by saying "yeh bola ki sali kani jyada bolti hai, tere ko yahan par hi chod dunga". It was correct that his wife also told him that accused Ashok Kumar used to pass lewd comments to her whenever, she come out from her house. Thereafter, he alongwith his wife went to police station where statement of his wife was recorded by police, he also signed the statement Ex.PW1/A at point A. FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 6 of 20 During crossexamination PW2 deposed that he had only one house at Harkesh Nagar and the address of the same was C66, Harkesh Nagar, Delhi. He did not know who was the owner of House No.C68, Harkesh Nagar. It was wrong to suggest that house No.C68 Harkesh Nagar was his house. He was residing in his address of house No.C66 for past 67 years. He had a business of readymade jewellery (artificial jewellery). He had some business of gold and silver jewellery but mostly in artificial jewellery. The address of his shop was F1/5, Harkesh Nagar and he was 6th passed. His wife had filed a complaint on 10.04.2015. The distance between his house and shop was about ½ kilometre and it takes about five minutes to reach his house from his shop. The incident occurred in the morning. Witness was confronted with the statement recorded u/s 161 CrPC which was Ex.PW 2/D1 wherein the address of the accused was mentioned as C68, Harkesh Nagar. The incident occurred in the morning around 8.30 AM. On the date of incident, when he reached, he found that accused was misbehaving with his wife inside the room of his house. His house had two entrance doors. He entered from the front door of the house when he saw the accused and he ran away from the door which was on the back side. House of accused was adjacent to his house. He did not make a call to ASI Suresh and did not tell him regarding the incident and was confronted with the statement Ex.PW1/D1 wherein the aforesaid fact of making a FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 7 of 20 call to ASI Suresh was mentioned. His wife had given her complaint after going to the police chowki and was confronted with the statement Ex.PW1/D1 wherein aforesaid fact was not mentioned. His wife had given her complaint after going to the police chowki in the afternoon time. The same was written in the handwriting of his wife. It took about 1520 minutes to reach the police station from his house. He had accompanied his wife to the police station and they had gone to police station by foot. After giving the complaint police officials had come to his house however, he did not know their names. The statement of his wife was recorded first by the police officials. He was not aware as to how many FIRs were registered against him by the accused and his wife. He did not know if there was FIR No.28/2015, PS OIA filed against him which was pending trial. It was correct that he was arrested in case FIR NO. 295/2015. He did not know as to how many persons were available at the house at the time of incident. After seeing him, accused left his wife and ran away. He was coming to his house after his walk.
PW3 SI Suresh Chand (First IO) deposed that on 10.04.2015 he was posted as SI at PS OIA. On that day, upon receiving of information regarding quarrel from police post OIE, Phase3. He alongwith Const. Vikas went to the spot i.e. C66, Harkesh Nagar, New Delhi where complainant Suman Bala met them and she handed over written complaint to him. On the basis FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 8 of 20 of the aforesaid complaint, he prepared rukka Ex. PW3/A and got it registered through Const. Vikas. After discussing with SHO concerned, he had mentioned the name of SI Baldev Raj in rukka Ex.PW3/A for conducted further investigation of the present case. The investigation of the present case was further conducted by SI Baldev Raj.
During crossexamination PW3 deposed that he received information regarding aforesaid quarrel from Chawki Incharge , police postOIE, Phase3. The complaint was given to him in the evening by the complainant. It was wrong to suggest that the address of the complainant was C66, Harkesh Nagar, New Delhi. It was wrong to suggest that he had stated in his statement recorded u/s 161 Cr P.C that he had received the complaint in the evening once he had reached the spot. He was confronted with the statement recorded u/s 161 Cr. P.C wherein it was stated that the statement was handed over at the spot by the complainant.
PW4 SI Baldev Raj (Second IO) deposed that on 10.04.2015, he was posted as SI in PS OIA. On that day, at the instruction of SHO concerned, the investigation of the present case was further marked to him and he had received original rukka and copy of FIR of the present case from Ct. Vikas and thereafter, he went to the spot i.e. C66, Harkesh Nagar. At the spot he met with complainant Panna Lal and her wife and he FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 9 of 20 prepared site plan at the instance of victim, which was EXPW4/A. He tried to search the accused Ashok Kumar at his residence but he was not found present there. On 20.04.2015, accused Ashok Kumar was arrested at PP OIE, Phase III vide memo EXPW4/B as he had already obtained anticipatory bail in the present case. During the course of investigation, on 16.04.2015, statement u/s 164 Crpc of victim got recorded.
During crossexamination PW4 deposed that he had received copy of FIR and original rukka at around 9.30 PM and he reached at the spot around 10.00 PM. The site plan was prepared by him on the same day. The statement of witness Panna Lal u/s 161 CrPC was recorded on the same day, the complainant had stated that she would visit the police station and give her complaint since she was unwell. The statement of the complainant u/s 161 CrPC was recorded on 12.04.2015. He had visited the house of the complainant upon the matter being marked to him. He had gone to visit the house of the accused in search of accused. He did not know if the present FIR was a cross FIR.
PW5 Const. Vikas deposed that on 10.04.2015, he was posted as constable at PP OIAIII. On that day at around 08:10 PM, he was called by IO ASI Suresh Chand at the spot C66, Harkesh Nagar, OIA PhaseII, New Delhi and he reached there within 1015 minutes where ASI Suresh met him and he had FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 10 of 20 given a rukka to him for registration of FIR. He went with rukka at PS OIA and after registration of FIR, he came back with original rukka and copy of FIR and handed over the same to IO. Thereafter, he left the spot for PPOIA, PhaseIII. His statement u/s 161 CrPC was recorded by IO at PP OIA.
During crossexamination PW5 deposed that he did not remember whether he was witness in another case also bearing FIR no. 295/15. The distance between police post OIA PhaseII and spot was around one and half kilometer. Complainant had already given her complaint to the IO. He remained at the residence of complainant around 1015 minutes. He reached at the spot on his personal motorcycle. Distance between residence of complainant and PS was around 34 kilometer. He did not remember how much time, he remained at PS while present FIR got registered at PS. He came back at the residence of complainant with original rukka and copy of FIR and handed over the same to IO. He did not remember whether any other public persons except family members of the complainant was also present at her residence when he came back with original rukka and copy of FIR. He did not remember when he returned to police post. IO ASI Suresh Chand also returned to Police Post on his bike. His statement u/s 161 CrPC was recorded by another IO SI Baldev Raj after two days of the registration of FIR.
FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 11 of 20 PW6 Retired SI Rakesh Kumar deposed that on 10.04.2015, he was posted at PS OIA as Duty Officer. His duty hours were from 04:00 PM to 12:00 midnight. At about 09:05 PM, he received rukka Ex.A3 from Ct. Vikas for registration of present FIR Ex.A1.
During crossexamination PW6 deposed that he had registered the FIR upon receiving rukka. The signature on the FIR and endorsement on the rukka was also done by him. The endorsement was made by him after reading the rukka.
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 examined two witnesses in his defence.
DW1 Smt. Yogesh (maid of the accused) deposed that on 10.04.2015, she was working in the premises of accused as a maid servant. At that time, the wife of accused used to often have a quarrel with her mother in law. Accused Ashok Kumar alongwith his wife Reenu Sharma were lawyer and used to got to the court in the morning. On that day, wife of accused was having quarrel with her mother in law in the morning, that is when one neighbourer namely Panna Lal who was residing in an adjacent FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 12 of 20 house of the accused came inside the house of the accused and started abusing the wife of accused and at that time Panna Lal started abusing and quarreling with the accused and his wife. Thereafter, Panna Lal had torn the wearable kurta of the wife of accused namely Reenu Sharma. That time, Reenu Sharma told the accused person to leave their house, however Panna Lal and his wife who were present inside the house of accused continued to quarrel with the accused and his wife. Thereafter, Reenu Sharma gave a call to 100 number and Panna Lal and his wife left the spot when police arrived. Thereafter, police officials took Panna Lal and his wife with them to the police station. Thereafter, accused Ashok Kumar and his wife Reenu Sharma also went to the police station and she remained in their house to look after the child from morning since late evening. Thereafter, accused and his wife returned home at around 10.00 PM in the night and she went back to her house.
During crossexamination DW1 deposed that she had been working with accused as a maid for one year from the year 2014 till the month of the aforesaid quarrel. She did not have any document of employment with accused as a maid. She did not know if there was any case filed against the complainant on that day. Police did not inquire about the matter from her. She did not disclose the incident to the police on her own. She did not give any statement to the police in the case filed against Panna Lal by FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 13 of 20 accused Ashok and his wife that was an FIR No.295/2015, PS OIA. Witness denied all suggestions put to her.
DW2 Sanjay (client of wife of accused) deposed that on 10.04.2015, he had some work in the court and for the same purpose, he reached the house of accused in the morning at around 8.00 AM since the wife of accused was an advocate and he had intended to visit the court with the wife of accused. The wife of accused did not have cordial relations with her mother in law and used to often have quarrel with each other. At that time, when he reached the house of accused at around 8.00 AM, wife of accused namely Reenu Sharma was having quarrel with her mother in law but she ignored the same since it was a routine affair in their house and she had seen the same being the next door neighbour of the accused. At that time, wife of Panna Lal alongwith Panna Lal entered the house of accused Ashok Kumar. Thereafter, Panna Lal and his wife started intervening in the family matter of accused Ashok Kumar and thereafter, accused Ashok Kumar and his wife told Panna Lal and his wife not to interfere since it was their personal matter and their family issue. However, Panna Lal and his wife entered into a quarrel with the accused and his wife and even started manhandling the accused and his wife. Panna Lal pushed Reenu Sharma and torn the suit of wife of accused. Thereafter, Reenu Sharma made a call at 100 number. Thereafter, Panna Lal and his wife went back to their FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 14 of 20 house. After sometime, police reached the spot and took all the parties to the police station/chowki. Thereafter, he also accompanied accused, his wife to the aforesaid chowki and were told to go for medical to AIIMS hospital. Thereafter, they again returned back to the police chowki. Thereafter, he came to attend his matter in the court and reached back home in the night.
During crossexamination DW1 deposed that he was residing next to the street of accused Ashok Kumar. Police officials did not inquire from him about the present matter. He did not disclose regarding the incident to the police on his own. He did not know if accused and his wife has also filed a case against Panna Lal and his wife. He did not know if accused or his wife had given any written complaint to the police on that day since he did not enter the police station and was standing outside. He had not given any statement to the police and did not appear as a witness in the case filed by accused and his wife against complainant and Panna Lal. He did not know if accused have also filed a case against Panna Lal as they never asked him to appear as a witness in that matter. Witness denied all suggestions put to him.
6. Ld. APP for the state has argued that in the present matter all the witnesses have corroborated the story of the prosecution and there is no contradiction in the testimony of the witnesses and FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 15 of 20 therefore accused is liable to be convicted for the offences charged.
7. However, on the other hand Ld. Counsel for accused has argued that the accused have been falsely implicated by the complainant and it is an admitted fact that the complainant and the accused are residing in a same locality for several years and the complainant always objected and picked up quarrels with the family of accused on triffle issues. Further, the complainant has not even mentioned the date, time of the incident upon which present complaint Ex.PW1/A was registered. Further, the allegations against the accused for misbehaving with the complainant by entering her house are also improbable as though the complainant has stated the incident to have taken place in the morning and that too in rukka Ex.PW3/A allegedly at House No.C67, Harkesh Nagar being the house of accused, the same has been endorsed to have taken place at house No.C66, Harkesh Nagar, OIA. The veracity of the complainant is doubtful as she fails to narrate the manner of commission of offence and is not being supported by PW2 being the husband of complainant. PW2 was not able to narrate the incident and is only a hearsay witness and admittedly was not present when the alleged incident occurred but was informed only in the evening when he returned back from his work. It is also argued that despite the aforesaid averment of informing the incident by the complainant to her husband in the FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 16 of 20 evening, complainant also submits before the court that when the incident occurred, her husband immediately reached the spot and upon seeing the husband of the complainant, accused ran away which are contradictory to each other and the submission of the complainant are false and fabricated. It has also been argued that the complainant has filed the present cross FIR only once the FIR was registered against her and her husband by the opposite party and therefore, is only with the intention to take revenge. It is also argued that the investigation conducted in the present matter is conducted at the behest of the complainant and is faulty. It is also argued on behalf of accused that in the present matter IO SI Suresh Chand is also the IO in the cross FIR No.295/2015 and therefore, he has not conducted fair investigation in the present matter which is reflected in the crossexamination of the witnesses and the manner in which PW3 and PW4 have contradicted each other with PW5 Const. Vikas. Further, the present complaint was filed by the complainant after having spoken to her family members and therefore, the same is false as the allegations are an after thought. It is further argued that there is no corroboration in the testimony of the witnesses and the statement of the complainant. It is also argued that the complaint is vague and the allegations are fanciful and do not inspire confidence and therefore, accused is liable to be acquitted.
FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 17 of 20 Court Observation:
8. 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:
In the present matter, prosecution examined as many as six witnesses among which PW1 was the complainant and PW2 is the husband of complainant and all remaining witnesses examined by the prosecution were formal in nature. In the present matter, the star witness of the prosecution is the complainant, who is also the victim in the present matter. However, if we carefully peruse her complaint Ex.PW1/A, her statement recorded u/s 164 CrPC and her testimony before the court, there are glaring contradictions and no corroboration. Further, there is vast improvement in the testimony of the complainant and the complainant has failed to even narrate the manner in which the incident occurred and has not even stated the date or month of the incident. PW1/complainant has admitted during her examination on behalf of accused that the place of incident was her house however, when the accused misbehaved with her, she did not raise alarm. She admitted that she disclosed regarding the incident only in the night and did not even gave a call to 100 number and infact had given a direct call to a police official, which is not expected from a victim of sexual assault. She further stated that FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 18 of 20 the accused had misbehaved with her on previous occasions, however, she had never made any complaint regarding the aforesaid fact to any authority. She did not remember the dates of any of incidents upon which accused had misbehaved with her on earlier occasion. Further, the IO in the present matter did not examine any public witness and did not even prepare the site plan of the spot where the alleged incident had occurred properly. It is also admitted by PW4 that he did not know the time of recording the statement of the witnesses and of the complainant.
9. In the present matter, accused has been charged for the offence u/s 354/451/509 IPC, however, none of the ingredients of the aforesaid offences have been proved by the prosecution against the accused.
10. In the present fact and circumstances, accused cannot be held liable for causing any of the offences against the complainant. The improvement in the version of PW1 is crucial as Ex. PW1/A is a hand written complaint admittedly prepared by her, soon after the incident 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 particularly when the same has been written on the same day. The very fact that the complainant did not mention about the date of the incident in her complaint Ex.PW1/A shows that the complaint is an after thought and the FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 19 of 20 same had been filed after a delay. 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 the complainant has not explained the same even during her statement recorded u/s 164 CrPC. 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 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.
11. 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 Ashok Kumar is acquitted for the offences U/s 451/354/509 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 01.12.2018 Metropolitan Magistrate02
(Mahila Court), SouthEast,
Digitally signed
by SHEETAL
SHEETAL
CHAUDHARY PRADHAN Saket, New Delhi.
CHAUDHARY
PRADHAN Date: 2018.12.03
15:45:59 +0530
FIR No. 296/2015; PS OIA State Vs. Ashok Kumar Page No. 20 of 20