Delhi District Court
State vs . Ms. Mukesh Etc. on 11 July, 2018
IN THE COURT OF SH. KISHOR KUMAR, MM-03, SOUTH WEST DISTRICT, ROOM NO.11, DWARKA COURTS, DELHI. FIR No. : 896/07 U/s : 323/306/448/500/506/120-B IPC P.S. : Najafgarh State Vs. Ms. Mukesh etc. JUDGMENT:
a) Sl. No. of the Case : 102/18, 427787/2016
b) Name & address of the : Anita Devi W/o Sh. Rakesh complainant. R/o H.No.310, Village Paprawat, New Delhi.
c) Name & address of :1.) Smt. Mukesh
accused W/o Late Sh. Jagbir Singh
R/o H.No. 468, Indra Park, Shani
Bazar Road, Najafgarh, Delhi.
2.) Smt. Sunita
W/o Sh. Rakesh Kumar
R/o H.No. 448, Indra Park,
D Block, Najafgarh, Delhi.
3.) Harvinder
S/o Sh. Ram Chander,
R/o H.No.133, VPO Pochanpur,
New Delhi.
4.) Laxman Singh
S/o Sh. Amar Singh,
R/o VPO Pochanpur,
New Delhi.
d) Date of Commission of : 17.07.2007
FIR No: 896/07 state v. mukesh etc. Page No.1/18
offence
e) Offence complained off : U/s 323/306/448/500/506/120-B
IPC
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
h) Date of such order : 11.07.2018
Date of Institution : 14.01.2009
Final arguments heard on : 11.07.2018
Judgment Pronounced on : 11.07.2018
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 17.07.2007 at about 7 to 7:30 pm, at House No.310, Village Paprawat Delhi, all accused persons in furtherance of their common intention trespassed into the house of complainant, voluntarily caused hurt to deceased Jagbir Singh, defamed him with regard to impotency and also criminally intimidated deceased with threat to kill him. On the application of complainant under section 156(3) Cr.P.C., present FIR was registered and investigation was FIR No: 896/07 state v. mukesh etc. Page No.2/18 carried out.
2. After investigation, challan for offence U/s 323/306/448/500/506/120-B IPC was filed. Compliance of Section 207 Cr.P.C was done.
3. Vide order dated 21.10.2009, all accused persons were discharged of offence under section 306 IPC by Ld. Sessions Court. Accordingly, charge for offences under section 448/34, 323/34, 500 & 506(II) IPC was framed against all the accused persons on 20.03.2013 to which they had pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as eight witnesses.
5. PW1 Smt. Anita is the complainant. She deposed FIR No: 896/07 state v. mukesh etc. Page No.3/18 that accused Mukesh @ Nisha is the wife of her deceased brother Jagbir and they got married on 25.04.2005. Initially they were leading a good married life but gradually after born of a baby child, the expenditure of the house got increased. Accused Mukesh @ Nisha used to instigate her parents even on small issues and her parents and her brothers and sisters used to threaten her brother. Her deceased brother got share of Rs.8,00,000/- from the land which was sold. Her deceased brother also got the insurance policy of Rs.7.0 lacs in his name and he nominated her mother as a nominee. Accused Mukesh @ Nisha was separated from the joint family by separating the kitchen. Her deceased brother left the house ten days before his death due to the quarrel between him and accused Mukesh @ Nisha and he visited the house of his friend. PW1 called her deceased brother at her house at Paprawat and he remained at her house around nine days. FIR No: 896/07 state v. mukesh etc. Page No.4/18 PW1 further deposed that on 16.07.2007, her parents, her maternal uncle and her uncle went to the parental house of accused Mukesh @ Nisha to resolve the matter but the matter was not settled. On 17.07.2007, in evening hours, PW1 along with her deceased brother came to their main house at Najafgarh due to birthday of her niece. At about 7:30 pm, Bablu @ Harvinder, Babbal @ Sunita and Laxman Singh, uncle of accused Mukesh came their house at Najafgarh and started shouting upon her deceased brother. The brother of accused Mukesh told her deceased brother that today they finally settled the matter but the matter gradually become hot and accused Harvinder started beating her deceased brother. After hearing the noise of her deceased brother, PW1 came to see as to what had happened. PW1 saw that accused Harvinder caught hold of her deceased brother and her brother was trying to release himself from him. The FIR No: 896/07 state v. mukesh etc. Page No.5/18 accused Mukesh and Babbal also caught PW1 and started beating her with kick and started abusing her. Accused Harvinder also threatened that they would falsely implicate them in a dowry case. PW1 further deposed that on 18.07.2007, in morning hours her mother came to her house at Paprawat. At about 9:00 am, PW1 received the phone call of her deceased brother who was present at Najafgarh house that PW1 would take his daughter from Najafgarh. When PW1 asked her deceased brother that his daughter being too small, not comfortable with her and PW1 further asked him where he was going if PW1 take her daughter. PW1's deceased brother informed that he consumed the poison. PW1 along with her mother and son immediately rushed to their house at Najafgarh. PW1 saw that her brother was lying on the bed and accused Mukesh was watching TV and listening music in a loud voice. When they tried to take her deceased brother to FIR No: 896/07 state v. mukesh etc. Page No.6/18 the doctor, he refused to go to the doctor. When they asked him why he is denying for the same, he told that he does not want to live. They forcibly took her brother to Metro Hospital where police reached and recorded his statement Ex. PW1/A. During investigation, IO seized the documents vide seizure memo Ex. PW1/B.
6. PW2 Ct. Naresh Kumar joined the investigation of this case with IO who seized documents handed over by complainant Anita vide Ex. PW1/B.
7. PW3 ASI Yudhvir Singh took the documents to FSL, Rohini and deposited the same there.
8. PW4 Dr. Deepak Mathur conducted postmortem on the dead body of deceased vide PM Report Ex. PW4/1. FIR No: 896/07 state v. mukesh etc. Page No.7/18
9. PW5 Dr. Abhinav Suri prepared the death summary of deceased vide Ex. PW5/1 along with connecting MLC Ex. PW5/2.
10. PW6 Dr. Ajay Singh Pundir prepared the treatment summary of patient Jagbir vide Ex. PW6/1.
11. PW7 Sh. Anurag Sharma is the handwriting expert. He proved his report Ex. PW7/4 on the basis of questioned document Ex. PW7/1 and admitted handwriting and signatures Ex. PW7/2 and PW7/3.
12. PW8 Retd SI Bhupender Singh is the second IO. He seized the handwriting of deceased Jagbir along with account opening form of deceased vide Ex. PW1/B.
13. Accused persons made statement under section 294 FIR No: 896/07 state v. mukesh etc. Page No.8/18 Cr.P.C thereby admitting FIR Ex. P1, DD No.21A dated 18.07.2007 Ex. P2, DD No.22A dated 18.07.2007 Ex. P3 and DD No.29A dated 18.07.2007 Ex. P4.
14. After completion of prosecution evidence, all the incriminating evidence was put to accused persons U/s 313 Cr.P.C and their explanation was recorded. They denied all the incriminating evidence against them. Accused persons examined DW1 Kuldeep and DW2 Sri Om who deposed that one settlement was recorded between the accused persons and family of deceased that no legal action would be taken against either of the parties and they are the witnesses of the same vide Ex. DW1/D2
15. I have heard Ld. APP for the State, Ld Counsel for the accused persons and have carefully gone through the record.
FIR No: 896/07 state v. mukesh etc. Page No.9/18
16. PW1 Anita Devi is the complainant. She has been cross examined by Ld. counsel for accused. There she has deposed that it is correct that Panchayat (social meeting) was held at their house at Najafgarh on the teheravi of her brother. She was not present in meeting. Teheravi was held on 27.07.2007. Accused persons were also present at the house for attending the rituals on 27.07.2007. Father of PW1 was also present at that time. Sh. Desh Raj, Sh. Jagdish Dagar, Sh. Rajpal, Chand Ram, Sh. Aman Singh and Sh. Nand Kishore are known to PW1. Sh. Desh Raj and Sh. Jagdish Dagar were present in the teheravi function of deceased brother of PW1 on 27.07.2007. However, PW1 did not know whether Sh. Rajpal, Chand Ram, Sh. Aman Singh and Sh. Nand Kishore were present in the house on the said occasion. PW1 has denied the suggestion that aforesaid people were present in the house on that day and written agreement was executed FIR No: 896/07 state v. mukesh etc. Page No.10/18 between the parties that no criminal case would be filed against each other. PW1 admitted that Panchayat was convened after rituals of teheravi in which it was agreed that Baby Palak (daughter of deceased) will remain with her grandparents and this fact was recorded in writing. The said agreement was put to PW1 in her cross examination and exhibited as Ex. PW1/D2. Accused persons have not filed any civil or criminal case against PW1 and her family members after execution of agreement Ex. PW1/D2.
17. So far as the incident in question dated 17.07.2007 is concerned, in her cross examination, PW1 has deposed that at that time at about 7:30 pm, she along with her mother Smt. Braham Kaur were sitting in the chowk of the house when PW1 heard the noise/shouting inside the room. Accused persons started quarreling as soon as they FIR No: 896/07 state v. mukesh etc. Page No.11/18 reached at the house. No public person came at the spot at the time of incident. PW1 did not call the police that day. She did not go to any doctor for her medical examination on 17.07.2007 nor her brother did the same. No case was registered by them or by accused persons between 17.07.2007 to 27.07.2007. PW1 has further deposed that she had stated the fact of incident of 17.07.2007 to the police on 18.07.2007 in the hospital where her brother was admitted after he consumed the poison.
18. In the present case, all accused persons have been charged for offences u/s 448/34, 323/34, 500/34 and 506 part II read with Section 34 IPC. I have carefully gone through the examination in chief of complainant/PW1 and in her entire testimony, the complainant had not specifically deposed as to with what words, she and her FIR No: 896/07 state v. mukesh etc. Page No.12/18 deceased brother were threatened by the accused persons. The complainant has deposed only to the extent that she saw that accused Harvinder caught hold of her deceased brother who was trying to get himself released from him. The accused Mukesh and Babbal also caught him and started beating him with kick and started abusing PW1 also. Here at this juncture, PW1 has deposed about her abuse by the accused persons, but again at the cost of repetition, it is observed that PW1 has not specified the words with which she was allegedly abused by accused persons.
19. It is an admitted fact that there were on going disputes/ quarrels between the deceased - brother of PW1, and accused Mukesh @ Nisha (wife of deceased) and accused No.1 used to visit her parental house off and on. It is also admitted fact that accused No.1 used to reside at FIR No: 896/07 state v. mukesh etc. Page No.13/18 her matrimonial home where the incident in question is alleged to have happened and other accused persons are relatives of accused No.1. They had gone to the matrimonial house of accused No.1 to resolve the dispute between the deceased and accused No.1. The complainant/PW1 has nowhere deposed about the allegations under section 500/506(II)/34 IPC. Since there was already disputes between the parties, it was incombant on the part of the IO that he should have examined any public witness to corroborate the version of the complainant to strengthen that the incident in question in fact took place. The complainant has admitted in her cross examination that she did not get herself medically examined same day nor she called the police immediately after the incident and there also being no independent public witness to the incident, the case of the prosecution is deemed with suspicion for want of any FIR No: 896/07 state v. mukesh etc. Page No.14/18 medical examination of the complainant and not making call to the police immediately after the incident.
20. PW1 has further deposed that she had made statement to the police about the incident dated 17.07.2007 to the police on 18.07.2007, however, there is no such statement of the complainant on judicial file. PW1 had further deposed that her deceased brother was beaten up by accused persons, however, PW4 Dr. Deepak Mathur has deposed in his cross examination that it is correct that as per his report, there was no external injury on the body of the deceased. It is correct that since there was no injury found on the body of deceased as such no beatings having been given to the deceased can be concluded from the said fact. Similarly, since the complainant also did not get herself medically examined, the allegation of the complainant that she was beaten up FIR No: 896/07 state v. mukesh etc. Page No.15/18 by accused persons on the day of incident is also not believable.
21. So far as the charge under section 448/34 IPC is concerned, the place of incident was the matrimonial home of accused No.1 and she have had every right to visit there and as such her relatives who intended to settle the disputes between deceased and accused No.1, being the relatives, had gone to the aforesaid premises. Their such visit cannot be termed to be forceful or to be trespass into the said house.
22. The prosecution has also not examined the first IO of the case who was a material witness as he died during trial. The mother and father of PW1 also could not be examined as they also died during trial. Therefore, the testimony of PW1 remains to be uncorroborated. FIR No: 896/07 state v. mukesh etc. Page No.16/18
23. Ld. counsel for accused has placed much reliance on a settlement Ex. PW1/D2 under which it was allegedly agreed between the family of PW1 and that of the accused side that they would not file any case against each other. In support and to prove the said settlement Ex. PW1/D2, the defence has examined DW1 Kuldeep and DW2 Sh. Sri Om. They both have proved the said settlement being signatory to it. However, this Court is of the opinion that such settlement is no settlement in the eyes of law as none can be stopped from availing the legal remedies as available to him in law.
24. Other witnesses examined on record and their cross examinations are not delved upon since they are not material in view of the deposition of PW1 who is the only star/public witness. However, in view of the preceding discussion, she has not been able to prove the case of FIR No: 896/07 state v. mukesh etc. Page No.17/18 prosecution beyond reasonable doubt for the reasons that she cannot be believed as there were differences between her deceased brother and accused No.1, PW1 did not get herself medically examined on the day of incident, she did not make any call to the police immediately after the incident, no public witness examined to the incident in corroboration of testimony of PW1 as also that PW1- complainant has not been able to depose with regard to the allegations of section 500 and section 506(II) IPC. Therefore, it is held that prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. Resultantly, all the accused persons are acquitted of the charged offences.
Digitally signed KISHOR by KISHOR KUMAR KUMAR Date: 2018.07.12 14:32:36 +0530 Dictated & Announced in Open Court (Kishor Kumar) On the 11th day of July, 2018 MM-03/South-West/Delhi 11.07.2018 FIR No: 896/07 state v. mukesh etc. Page No.18/18