Delhi District Court
State vs Rakesh on 30 March, 2009
1
IN THE COURT OF DR. ARCHANA SINHA
METROPOLITAN MAGISTRATE, TIS HAZARI COURTS, DELHI.
FIR No. 243/99
P.S Uttam Nagar
State V/s Rakesh
1. S.No. of the case : 11/2/99
2. Date of Institution : 31.05.99
3. Date of Commission of offence : 16.03.1999
4. Name & Add. of Complainant : Km. Usha D/o Sh. Chandi
Lal, R/o A-578, J J Colony,
Pankha Road, Uttam
Nagar, New Delhi.
5. Name & Address of Accused : Rakesh S/o Sh. Hira Lal,
R/o A-956, J J Colony,
Pankha Road, Uttam
Nagar, New Delhi. (aged
around 32 yrs)
6. Offence complained of : U/s 354/323 IPC
7. Plea of the Accused : Pleaded not guilty
8. Date on which Judgment : 27.03.09
has been reserved
9. Date of Delivery of the Order : 30.03.09
10. Final Order : Acquitted.
JUDGMENT
1. The brief resume of the prosecution case is that one Km.
Usha lodged a complaint on 16.03.99 regarding an incident of outraging of modesty and quarrel, reporting that at about 7 a.m, at Gali H.No. A-578, J J Colony, Pankha Road, Uttam Nagar, New Delhi, within the jurisdiction of P.S Uttam Nagar, the accused State V/s Rakesh FIR No. 243/99 JK 2 Rakesh used criminal force on the complainant Usha with the intentions to outrage her modesty and also caused voluntarily hurt to the complainant, thereby alleging that he committed the offences punishable U/s 323/354 IPC, within the cognizance of this court.
2. On the above stated allegations of the prosecution, on completion of investigation by the investigating agency, a charge- sheet was filed against the accused for the offences punishable U/s 323/354 IPC and vide order dated 31.05.99, the cognizance was taken by the court and on finding a prima-facie case against the accused vide order dated 04.05.00 Ld. Predecessor court of Sh. Suraj Bhan, the then Ld. M.M, framed charges against the accused for the offences punishable U/s 323/354 IPC to which he had pleaded not guilty and claimed trial and thus, the trial had commenced.
3. For proving its case, the prosecution has relied on the ocular evidence of 9 prosecution witnesses, mentioned in the list of witnesses, as per the charge-sheet but during the trial of around 6 years of evidence between 2000-2006, the prosecution could produce only 7 prosecution witness in all.
PW-1 Usha was the complainant herself and the alleged victim of the case as per the allegations against the accused person and thus, she was the material star witness of the prosecution who could prove the occurrence for proving the allegations against the accused person.
PW-2 Chandi Lal and PW-3 Bal Mukund were the public witnesses being the father and brother of the complainant Usha, who were produced for proving the allegations against the accused person State V/s Rakesh FIR No. 243/99 JK 3 but these witnesses were not the direct evidence being based on communication with complainant for the alleged offences. Thus, these witnesses are the witnesses of circumstances only and their testimony is treated as circumstantial evidence.
Whereas, PW-4 H.Ct. Raj Kumar was the investigating officer (herein after referred as IO) who was also formal in nature as he proved the facts only regarding the MLC of the injured Bal Mukund, preparation of site plan, the arrest of the accused Rakesh during investigation and also regarding the other procedure adopted by him for recording of statements of the witnesses and preparation and collection of the documents during the course of investigation. Thus, he was only the formal witness as he had only proved the circumstances in which the investigation was proceeded with, but not anything about the factum of allegations made by the complainant against the accused person for the offences alleged.
Thus, this witness is treated as the witness of circumstantial evidence but not as the direct evidence to prove any allegations against the accused person.
And,PW-5 W/SI Rishali Yadav was the formal witness being the duty officer (D.O) who had come to the witness box to authenticate the registration of the case and proved the copy of FIR as Ex.PW-5/A and deposed that on 16.03.1999, while being posted at P.S Uttam Nagar, on receipt of a tehrir through Ct. Abdul, she recorded the FIR bearing No. 243/99 U/s 323/354 IPC against the accused. Thus, this witness is being treated as a formal witness who had come to the witness box to authenticate the registration of the case.
And, PW-6 Ct. Abdul Hui was the police official who accompanied the investigating officer during the course of State V/s Rakesh FIR No. 243/99 JK 4 investigation and testified regarding medical examination of the injured Bal Mukund, preparation of rukka, registration of FIR and arrest of the accused Rakesh in his presence. As he had nothing to say about the occurrence and about the allegations as he joined the investigation only after occurrence/events, thus, he is treated as formal witness but necessary witness to prove the circumstantial evidence on record.
Whereas, PW-7 Naresh Kumar was the radiographer from the DDU hospital who came to the witness box to testify regarding medical examination of the injured and preparation of his MLC and X- ray report, that was duly exhibited by him in the court, as Ex.PW-7/A. Thus, he was also the formal witness but necessary witness to prove the documentary evidence on record.
That is all for the ocular evidence of the prosecution.
4. Apart from the ocular evidence of prosecution witnesses, the prosecution had also produced the documentary evidence in support of its case, same includes the complaint of the complainant Ex.PW-1/A, on the basis of which the FIR Ex.PW-4/C was registered, the site plan Ex.PW-4/B, endorsement on the rukka Ex.PW-5/A, the arrest and personal search memo of the accused Ex.PW-2/A and the X-ray report of the injured Ex.PW-7/A. That is all for the prosecution evidence.
5. Statement of the accused was recorded under section 313 Cr.P.C wherein when all the incriminating evidence and documents was put to the accused, he denied all the allegations and incriminating evidence and documents put to him as incorrect, taking the plea that he was innocent and had been falsely implicated by the complainant State V/s Rakesh FIR No. 243/99 JK 5 as the complainant has falsely alleged the allegations against him, wherein he wish to lead defence evidence, however, after availing number of opportunities no defence witness was produced, and the defence evidence (D.E) was closed.
6. I have heard the final arguments of Ld. APP for the State and Ld. Counsel Sh. R.K Gautam on behalf of the accused and have also perused the record consisting of ocular as well as documentary evidence.
Ld. APP has submitted that PW-1 Usha, the complainant, PW-2 Chandi Lal, the father of the complainant and PW-3 Bal Mukund, the brother of the complainant have fully supported the case of the prosecution and out of these 3 prosecution witnesses, the complainant was the alleged victim and PW-1 and 2 were the eye- witnesses as well as injured of the occurrence and PW-3 was the another eye-witness, thus, through direct evidence, the prosecution has successfully proved all the ingredients for the offences alleged against the accused.
It was further submitted that the prior knowledge and relations of the complainant and her family with the accused, is taken as defence, but the same has not been proved either through the independent defence evidence or through cross-examination of the witnesses produced in the court and also the fact that the complainant or her family, was having relations with the accused prior to the incident, that does not affect the allegations of outraging of modesty of the complainant or causing injuries to the injured persons.
Ld. Defence counsel Sh. R.K Gautam has vehemently countered the prosecution case on many grounds submitting that seven prosecution witnesses were produced by the prosecution, out State V/s Rakesh FIR No. 243/99 JK 6 of these 7 PWs, 3 PWs i.e the complainant, her brother and father were the interested witnesses and other 4 witnesses were formal in nature, as they were nothing to prove regarding the allegations for the offences alleged and that despite the availability of independent witnesses at the spot, no independent witness was produced to prove the occurrence.
It was further submitted that there was a clear motive of the complainant and her family members to falsely implicate the accused, being the accused was having an affair with one of the sisters of the complainant and it was a case of family enemity for such reason and on the day of occurrence, the complainant, her brother and father had gone to the place of the accused with the intentions to raise a quarrel on the pretext of relations of the accused with one Manju, the sister of the complainant, in which the accused received injuries and to counter and avoid the criminal action, that might be taken by the accused against all of them, the complainant in connivance with the police, falsely implicated the accused for the offences alleged.
It was further submitted that the evidence of the witnesses and the complainant contain material contradictions to the extent of making the occurrence improbable as per the description.
It was further submitted that no independent witness was joined, and all the witnesses examined were the interested witnesses and there are contradictions on the point of time of occurrence, the place of occurrence and on the point of tearing of the clothes of the complainant, during occurrence, as there are improvements and omissions in the documentary and ocular evidence of the witnesses.
It was further submitted that basically there was a quarrel between the brother of the complainant and the accused on the State V/s Rakesh FIR No. 243/99 JK 7 pretext of affair between the accused and Manju, the sister of the complainant and both the parties received minor injuries, but, the complainant along with her family in connivance with the police falsely implicated the accused for the offences alleged.
It was further alleged that the DD entry that was the first report, mentions the place of incident as A-256 whereas the house of the complainant bears the municipal No. as A-578, thus, changing the place of incident, proving that the incident has not taken place in the house of the complainant.
Thus, it was requested that accused is entitled for benefit of doubt, on these counts.
Ld. APP has countered the arguments on the pretext that DD entry is not a substantial evidence as it does not detail out the incident completely and is recorded only as a point in brief.
7. Before appreciation of evidence on record, it is worth to re- produce the provisions U/s 354/323 IPC, for which the accused is facing trial so that the evidence can be appreciated in the light of provisions for the allegations against the accused, that read as under :
Section 354 IPC:- Assault or criminal force to woman with intent to outrage her modesty 'Whoever assaults or uses criminal force to any woman, intending to outrage, or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
& Section 323 IPC:- Punishment for voluntarily causing hurt 'Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment State V/s Rakesh FIR No. 243/99 JK 8 of either description for a term which, may extend to one year, or with fine which may extend to one thousand rupees, or with both.'
8. Thus, the prosecution was under the abundant duty to prove the following ingredients :
i). that at the relevant date, time and place, the accused used criminal force against the complainant;
ii). that the criminal force was used with the intentions to outrage her modesty; and
iii). that the injuries received by the prosecutrix at the time of occurrence, were not self inflicted injuries;
9. Now, on appreciation of evidence on record consisting of ocular as well as documentary evidence, in the light of contentions of both the parties and in the light of documents exhibited in the court, it is observed that the prosecution has examined total number of 7 prosecution witnesses for producing ocular evidence and during examination of these witnesses, certain documents were exhibited to produce them as documentary evidence.
Out of the list of examined prosecution witnesses, PW-1 Usha was the complainant, PW-2 Chandi Lal was the father of the complainant and PW-3 Bal Mukund was the brother of the complainant and thus, were the public witnesses who were produced by the prosecution as direct evidence to prove the occurrence as eye- witnesses, whereas, PW-4 H.Ct. Raj Kumar was the IO who reached on the spot, along with Ct. Abdul Hui after occurrence on the information about occurrence and thus, were the formal witnesses to that extent as they have nothing to prove regarding occurrence and had testified only regarding the investigation conducted by them at the State V/s Rakesh FIR No. 243/99 JK 9 spot; similarly, PW-7 Naresh was also a formal witness, a radiographer from the DDU hospital, who came to the witness box to prove the X-ray report pertains to the injured Bal Mukund, proving that there was no bony injury, seen on examination. Also, PW-5, W/SI Rishali Yadav came to the witness box to authenticate the registration of FIR only. Thus, apart from PW-1, 2 and 3, all other witnesses were formal in nature, as through their evidence, except the documents nothing was to be proved by the prosecution.
Therefore, the prosecution has basically relied on the testimony of PW-1 Usha, PW-2 Chandi Lal and PW-3 Bal Mukund. Further, all these three witnesses i.e PW-1, 2 and 3 were the complainant, her father and her brother, being the complainant and her relatives those were interested witnesses and their versions need to be tested with close scrutiny, to reach to the right conclusion of the trial.
10. So far as the testimony of PW-3 Bal Mukund is concerned, as per complaint of the complainant Ex.PW-1/A, he reached on the spot on hearing the noise of the complainant and that is also after the activities pertains to alleged outraging of modesty of the complainant, and thus, if the complaint of the complainant is believed, then, in no case, he could be the eye-witness of such activities and thus, his testimony to that extent in the light of the complaint, is covered within the ambit of hear-say evidence regarding the allegations against the accused for the offences alleged U/s 354/323 IPC.
11. Similarly, PW-2 Chandi Lal, the father of the complainant reached on the spot, hearing the noise of the complainant after the alleged activities conducted by the accused, on the complainant. As State V/s Rakesh FIR No. 243/99 JK 10 per the testimony of PW-1 & 6, to that extent, his testimony was also found within the ambit of 'hear-say' evidence, as the facts regarding the activities were reproduced by these two witnesses on the basis of communications made to them by the complainant.
Therefore, pertains to the allegations of outraging of modesty of the complainant by the accused, the prosecution is left with only one ocular evidence i.e of the complainant Usha, who was examined as PW-1, as the evidence to that extent of PW-2 and 3 is a weak piece of evidence, inadmissible in law, being covered within the ambit of 'hear-say' evidence, in view of the observations made in a case titled as Sanganna Narasimulu V/s State of Andhra Pradesh cited as 2005 Cr.L.J 4168, wherein it was observed that :
'the evidence of ... (relatives) the complainant are not direct witnesses of the alleged cruelty (occurrence), their evidence based on their communication with the complainant (deceased) who complained of.....and thus, their statement is a weak piece of evidence as the deponent cannot be subjected to cross examination for such version.....such statement becomes hear-say, hence, inadmissible in evidence'.
12. Now, on careful perusal of the testimony of PW-1 Usha, in the light of her complaint Ex.PW-1/A for the allegations of outraging of her modesty by the accused, it is observed that in her complaint, the complainant has mentioned the activities of the accused that the accused started doing non-sense talks (ulti-sidhi baatein) and started pulling her hand and she raised alarm, on which her brother had entered and public also gathered, whereas in her testimony, she has added and improved another activities that her clothes were also torn by the accused.
State V/s Rakesh FIR No. 243/99 JK 11 On appreciation of evidence of the complainant, when the facts are considered in totality, it is observed that the complainant's family was known to the accused prior to the incident and that the accused's entry in the house was friendly, who approached the complainant for the purpose of asking of address of her sister, the 'words' non-sense talks (ulti-sidhi baatein) used by her and activities reported that the accused tried to pull her hand, without its specification about what words spoken or language used or specific activities conducted by the accused, having a confusion as to whether hand was pulled or clothes were torn, thus, it is difficult to conclude that the words or activities of the accused were well construed within the ambit of outraging of the modesty or those were with the intentions to outrage the modesty of the complainant.
Also, for an offence punishable U/s 354 IPC, the culpable intention of the accused is the crux of the matter and the relation of the woman is very important, in view of the observations made in a case titled as State of Punjab V/s Major Singh AIR 1967 SC 63 P 65-67, wherein it was observed that, "the culpable intention of the accused is the crux of the matter and the relation of the woman is very relevant."
To this extent, the complainant's testimony contains material improvements regarding the activities conducted by the accused, that was in absolute infirmity with incoherent statements made before the police and in the court regarding the activities of the accused, conducted on the spot. Further, it is noted that neither any such clothes were seized nor sealed or produced in the court, to prove the occurrence.
State V/s Rakesh FIR No. 243/99 JK 12
13. It is further observed that the complainant in her complaint has detailed out the manner and reasons as to how the accused was known to her and also that the accused was asking the address of her sister, whereas, in her testimony, she has denied any prior acquaintance with the accused and that is the material contradiction in both the versions stated by the complainant to the police or in the court.
Further, it is observed that the complainant has a material contradiction in her complaint from her version stated in the court pertains to the number of persons, from his family reached on the spot on hearing her noise. As per her complaint Ex.PW-1/A, her brother along with some public persons gathered at the spot, but, according to her testimony, her brother, mother, father and neighbourers collected on the spot. This fact has material contradictions, because the prosecution has produced her brother and father as eye-witnesses of the occurrence, whereas, in her complaint, she has nowhere mentioned that her father also reached on the spot, on hearing her noise. This contradiction becomes vital as the injuries to her brother are mentioned in the complaint, but, regarding the presence of her mother and father or any kind of involvement of them in the scuffle is not mentioned, nor any such injuries were shown, on the person of her parents.
Also, it is observed that the complainant in her complaint has informed that her brother received injuries on his mouth, whereas she has not mentioned in her testimony that he received injuries on his mouth nor the injuries were proved as the medical record also does not confirm any such injuries.
State V/s Rakesh FIR No. 243/99 JK 13
14. Further, it is observed that in her complaint, the complainant has mentioned that even the accused Rakesh also received injuries during scuffle and the police had taken both of them to the hospital due to such injuries, but, she has not mentioned in her testimony that there was a scuffle between the accused and her brother, in which the accused also received injuries and in what manner, the accused received injuries, whether at the hands of her brother or by some other person and to that extent, she contains vital improvements, contradiction and omissions, in both the versions.
It is further observed that about the injuries received by the accused, the prosecution case has no evidence to show the manner in which, the accused received injuries and to that extent, the prosecution story becomes doubtful and the evidence of the witnesses makes the case of the prosecution improbable, as described. Thus, the evidence of the complainant cannot be relied for its credence, in view of the observations made in a case titled as Idrish Bhai Daud Bhai Vs. State of Gujarat JT 2005 (2) SC 411 wherein it was observed that :
'in case of discrepancies in the evidence .....in-coherent statements regarding the presence of persons. .it was difficult to place reliance upon the witnesses particularly when the statements are apparently contradictory to FIR version.' And even, the evidence of the PWs also become non- credible in view of the observations made in a case titled as Hemraj Vs. State of Punjab 2003 (7) JT 614 wherein it was observed that:
'the prosecution witnesses are non-credible being possessing omissions in their version from their previous version given to the police regarding omissions reflecting the credibility of the witnesses.' State V/s Rakesh FIR No. 243/99 JK 14
15. Further, it is observed that the testimony of PW-2 Chandi Lal and PW-3 Bal Mukund contain material contradictions regarding the facts of one lady Manju, the sister of the complainant, as she was the motive of the presence of the accused at the spot in the house of the complainant, because the complainant has mentioned in her complaint that the accused came to her house to ask the address of her younger sister and in totality of the facts, it has come on record that the occurrence had taken place on asking of the address by the accused about one Manju, the younger sister of the complainant.
Further, it is observed that the witness contains material contradictions regarding the manner the occurrence had taken place, particularly about the torning of the clothes of the complainant by the accused and also pertains to the presence of the persons and also regarding the timings and chronology of their entry at the spot, as to whether the parents of the complainant reached on the spot first, on hearing the alarm or the brother of the complainant reached first on such alarm.
Also, the alleged injuries received by the brother of the complainant are also another point of doubt about the manner of occurrence as described in the prosecution story, as it could not be clarified as to whether the accused had beaten her brother on the pretext of outraging of modesty of the complainant, or on some other pretext, for which, both the persons entered into quarrel and received injuries, and whether the public available at the spot reacted in any manner and if yes, in what manner.
It is a well settled principle of law that for proving an offence punishable U/s 354 IPC, not only the relation of the lady with the accused is important, but her reaction on occurrence along with her previous acquaintance with the accused, and the reaction of the State V/s Rakesh FIR No. 243/99 JK 15 public or persons present on the spot is vital, to gather the intentions of the accused, to prove the offence.
From the testimony of all the three witnesses produced by the prosecution, the story of the prosecution appears highly improbable in view of the infirmities in the testimony of prosecution witnesses.
For these observations, the reliance is placed on a case titled as Sikander Kumar Vs. State cited as 1998 (72) DLT 547, wherein it was observed that :
'in case of infirmities in the testimonies of prosecution witnesses, making the entire story of the prosecution inherently improbable, titles the accused with benefit of doubt.'
16. Further, it is observed that all the three witnesses have reverted their versions on number of points at the time of cross- examination, particularly, regarding the acquaintance of the accused with the family of the complainant and also containing material contradictions in their testimony, and also with the complaint of the complainant, thereby, the prosecution case for the offence punishable U/s 354 IPC is not proved against the accused beyond reasonable doubts.
17. Also, pertains to the offence punishable U/s 323 IPC, the complainant has reported in her complaint, regarding the injuries received by her brother at the hands of the accused, but, no such injuries could be proved on record, rather the injuries to the accused, as per medical record, has come on record, without any explanation as to how he received injuries, doubting the manner of occurrence described in the prosecution story. Even the concerned medical State V/s Rakesh FIR No. 243/99 JK 16 witness who examined the accused was not cited nor produced to leave another room of doubt on the prosecution story.
18. Further, it is observed that the first information given through DD entry 51 mentions the place of occurrence as H.No. 526, but, this number does not tally or match with the house of the complainant where the alleged occurrence had taken place, as per the prosecution story. The prosecution has not explained anywhere as to how the police officials reached at H.No. A-578, when they have received information about at H.No. 526. These facts have created another doubt in the prosecution story as described and also regarding place of recording of the statements of the witnesses, particularly, of the complainant, whether it was at the spot or in the hospital or in at the police post, there are a number of discrepancies in the testimony of witnesses in this regard, that create another doubt on the manner of occurrence and the spot of occurrence.
Thus, in view of the above facts and circumstances, as credential of the witnesses who were the interested witnesses, shake, due to infirmities, making the prosecution story doubtful, and highly improbable, as described. Thus, the complainant cannot be treated as truthful witness, doubting the prosecution story in view of the observations made in a case titled as Jaskaran Singh Vs. State cited as 1997 SCC (Crl) 651 (HC), wherein it was observed that :
'When the evidence of first informant is found to be full of contractions, exaggerations and improvements, he cannot be held to be a truthful witness'.
19. Thus, on the basis of above facts and law as observed on appreciation of evidence on record, the court is of the considered view State V/s Rakesh FIR No. 243/99 JK 17 that the prosecution has miserably failed to prove any of the material ingredients necessary to prove the offences punishable U/s 354/323 IPC against the accused Rakesh, facing trial, on the basis of evidence on record, produced during trial.
20. Therefore, on the basis of principles of criminal justice system, a benefit of doubt is given to the accused Rakesh and he is accordingly acquitted from the charges levied against him for the offences punishable U/s 354/323 IPC.
File be consigned to R/Room.
Announced in the open court On 30th Day of March, 2009 (DR. ARCHANA SINHA) Metropolitan Magistrate, Tis Hazari Courts, Delhi.
State V/s Rakesh FIR No. 243/99 JK