Delhi District Court
State. vs . Aftab @ Chunna. on 19 March, 2007
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IN THE COURT OF SH. NAROTTAM KAUSHAL
ADDL. SESSIONS JUDGE; ROHINI COURTS;
DELHI.
State. vs. AFTAB @ CHUNNA.
s/o Mohd Kalim
r/o Village Sihanabad ,
P.S. Bakhtarpur, Distt. Saharsha (Bihar)
present address:Durga Park,Dabri More,
Delhi.
Sessions case No 26/06
FIR No. 202/04
u/s 366 /452/506/509/511 IPC
and & 27/54/59 Arms Act
Police Station: Tilak Nagar.
JUDGMENT
1. Accused Aftab @ Chuna has been chargesheeted by PS Tilak Nagar to face trial for offences punishable under section 452/506/509 IPC and 27 Arms Act.
2. As per the prosecution case DD No.13 B was received in the PS- 2 Tilak Nagar at 10:25 am. IO reached at the spot of occurrence and recorded the statement of Kamal Kumar Yadav. He had produced the accused, as well as, the knife allegedly recovered from him. As per the statement of complainant accused resided in the neighbourhood, in House Number B-153/A and used to work as a Tailor. He used to tease his daughter on the way to her school. Despite having been advised not do so, he had persisted in the same. On 6.4.2004 he had talephonically threatened the complainant that he would abduct his daughter Deep Sikha. On the day of complaint at about 10 am Aftab entered his house and forcibly caught hold of his daughter. When the complainant protested, he took out a knife which he had concealed in his back and placed the same on the neck of Deepshikha. In the meantime one Jaymat Singh snatched the knife and apprehended the accused. While being brought down the staircase Aftab hit his head on a machine and sustained injuries. Police was then called.
On the complaint abovsaid accused was apprehended, knife was taken into possession. A FIR under section 452/506/509 IPC and 27 Arms Act was registered. Accused was got medically 3 examined at DDU Hospital. Statement of witness were recorded. Challan was filed.
3. After complying with the provisions of section 207 Cr.P.C. learned MM committed the case to the court of Sessions which in turn was assigned to the predecessor of this court.
4. My learned Predecessor vide order dated 9.8.2004 framed charges against accused for offence punishable under section 366 read with 511 IPC, 506 (2) IPC and 25 Arms Act. Accused pleaded not guilty claim trial.
5. Prosecution in support its case examined 13 witnesses and the PE was closed by the statement of learned APP for the State. Complainant has been examined as PW3, his wife Kamlesh Yadav as PW2 and daughter Deepshikha as PW1. All the three of them have deposed that accused used to harass and tease Deepshikha. He had remained in custody for about ten days prior to the present occurrence, on a complaint to this effect made 4 earlier. It is further deposed by all of them that on the day of occurrence he entered into their house with a view to forcibly abduct Deepshikha. He was apprehended by one Jaymat Singh and disarmed. Jasbir Singh (PW7) is a neighbour. He has also deposed that he reached the house of the complainant on hearing alarm and witnessed the entire occurrence. Jaymat Singh ( PW12) has deposed that he was present in the factory of the complainant and on hearing alarm reached the house at first floor and apprehended the accused and also disarmed him. All the five abovesaid witnesses have also deposed that accused sustained self inflicted injuries while being brought down the staircase, by hitting his head against a machine. Bantu Chhabra (PW8), Ramesh Kumar (PW9) and Smt. Veena Arora (PW11) have been examined to establish that complainant possessed telephone number 35995741, on which the accused had threatened him. Rest of the witnesses are officials of the police department who had joined the investigation on one or the other stage and are formal in nature.
6. In his statement under section 313 Cr.P.C. accused denied the 5 entire occurrence and stated that he had been in business with the complainant and was planning to go abroad for his better future. Complainant did not want to leave India and, therefore, falsely implicated him in the present case. No evidence in defence was led despite opportunity.
7. Learned APP on behalf of the State has submitted that the prosecution case is established beyond reasonable doubt from the statements of as many as five eye witnesses. The accused was apprehended at the spot and caught red handed with the knife. Accused had threatened the complainant telephonically on the previous day that he should be marriage off with his daughter Deepshikha, otherwise, he would harm them and abduct Deepshikha. Reference has been made to the statement of PW8, Bantu Chhabra and PW11 Veena Arora to establish the threat. The occurrence, which had taken place on 7.2.2004 at about 10 am is adequately established from the statement of complainant (PW3), his wife Kamlesh Yadav (PW2) and their daughter Deepshikha (PW1). Statements of these three eye witnesses are corroborated 6 by the statements of neighbour Jasbir Singh (PW7) and Jaymat Singh (PW12). Lodging of FIR and the investigation is proved from the statements of police witnesses. Letters written by the accused to the complainant from Jail, Ex.PW1/A to Ex.PW1/D and Ex.PW2/E to Ex.PW2/G are also referred to.
8. Sh. Aseem Bhardwaj, learned Amicus Curiae on behalf of the accused has submitted that Prosecution case suffers from major contradictions in the statement of material witnesses. It is also submitted that the investigation was biased or extremely poor . The accused possessed a passport, ration card and bank account at the same address as that of the complainant. Complainant admits having recommended the application form of accused for issuance of passport from his address. The complaint allegedly made against the accused on the previous occasion was not established. Complainant admits that Deepshikha is daughter of his brother but relies upon a birth certificate reflecting him to be the father. The presence of Deepshikha at the time of occurrence is not established, as she has not signed any document. The identity of 7 Jaymat Singh is also contradictory as all witnesses claim him to be a Cutting Master of the complainant, whereas the witness himself claims to be a Supervisor of some other company. The story of telephone call to threaten the accused has not been established. The call record placed on record has not been duly proved. The injuries on the person of the accused are not sufficiently explained. He, therefore, submits that the prosecution has withheld the real story and the IO has not tried to reach at the truth.
9. I have heard the learned. Counsels and with their assistance gone through the record.
10.The first link in the prosecution story as regards telephonic threat by accused to the complainant is shrouded in mystery. The complainant Kamal Kumar Yadav (PW3) when examined in court is absolutely silent about his mobile phone number on which the accused had threatened him. Prosecution has tried to prove that complainant possessed telephone number 35995741, with the statement of Bantu Chhabra (PW8). He claims to have sold the 8 phone number above mentioned to the complainant, and had himself furnished residential proof, ID proof on behalf of Kamal Kumar Yadav. But somehow the mobile phone was issued in the name of one Ramesh Kumar. Ramesh as PW9 had further confused the matter by deposing that he had never purchased the abovesaid mobile phone but had received a telephone bill, for which he had filed a complaint. Smt. Veena Arora (PW-11) has deposed that the abovesaid telephone number was installed in the house of Kamal Kumar Yadav and she used to make a call on this number to the wife of Kamal Kumar Yadav.
The entire evidence of these witnesses as discussed above, reflects that prosecution is trying to create evidence which either does not exist or is absolutely false. Veena Arora (PW11) calls this number to be a fixed line 'installed' in the house of Kamal Kumar Yadav, whereas others claim it to be a mobile phone. The person in whose name the phone has been issued Ramesh (PW9) is not aware as to who was using the said phone previously. Bantu Chhabra (PW8), claims to have furnished residential and ID proof on behalf of complainant, at his own instance. All that can be gathered from this 9 evidence is: that in case the complainant was using the abovesaid phone, he possessed the same on false ID. It is not in any manner establish that he had received any threatening call on the abovsaid number from the accused.
11.As regards the occurrence dated 7.2.2004 there are five eye witnesses. They have all consistently deposed that accused entered the residential portion of the house of the complainant and forcibly caught hold of her and tried to abduct her at the point of knife. Two of these witnesses namely Jasbir Singh (PW7), Jaimant Singh (PW12) are not natural to be present in the residential portion of complainant's premises. The remaining three being the members of the family can be expected to be present. Both Jasbir Singh (PW7) and Sh. Jaimant Singh (PW12) have deposed that they reached the residential portion on hearing alarm raised by Deepshikha (PW1); whereas Deepshikha has not deposed that she raised any alarm. Jasbir Singh (PW7) is a neighbour residimg in a different premises; if no alarm was raised by Deepshikha how could he have reached the spot of occurrence. His presence, therefore, becomes doubtful. Even if it is assumed that he had 10 reached the spot on hearing an alarm, he could not have watched the entire occurrence which he has deposed. He is, therefore, either exaggerating or extrapolating the evidence. Another factor which causes a doubt as regards his presence, is that three of the four eye witnesses do not mention about his presence. Only Kamlesh Yadav (PW2) has mentioned him to have reached the spot. He has of course, not signed any document which may establish his presence.
The identity or presence of JaimantSingh (PW12) is also doubtful. He has been described as a Cutting Master of the complainant by the complainant himself and Jasbir Singh (PW6); whereas he himself as PW12 has deposed that he had gone to the factory of Kamal Kumar Yadav for inspection of garments, as his company i.e. SMI Export had awarded some business to the complainant.
12. All the eye witnesses have deposed that the accused received injuries on his head, as he had hit his head on a machine while being brought down stairs. There is no Site plan to indicate distance between the staircase and the nearest machine. The cat 11 comes out of the proverbial bag in the testimony of Jaimant Singh (PW12), who has deposed that 'staircase to the first floor is outside the factory shed but within the boundary wall of the premises'. If that be the situation there was no occasion for the accused to have hit his head with a machine, while being brought down from the staircase. IO has of course, not got the said machine examined, by the Crime Team to detect traces of blood thereon. The chargesheet does mention that the accused was taken to DDU Hospital for his medical examination. MLC has not been duly proved. But the same has been filed by the IO with the challan and, therefore, can be used against the prosecution. MLC which is on page number 39 records (i) bruises on back (ii) abrasion on sides of left leg, (iii) laceration on left side of forehead and (iv) abrasion on right head.
MLC also records history of beating by public. The injuries had been received by the accused before the police was called. Eyewitnesses have given a lame explanation only for head injury. The prosecution has thus failed to explain the manner or the author of so many injuries on the person of accused.
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The true sequence of events has, thus been concealed. This also makes the prosecution version doubtful. I am, therefore, of the considered opinion, that prosecution has failed to explain the circumstances under which the accused sustained injuries on his person.
In similar circumstances Hon'ble Supreme Court of India in Raghunath vs. State of Haryana reported as 2003 Cr.L.J. 401 held as under :
"In the present case, as noticed earlier. The prosecution evidence consists of interested or inimical witnesses. Therefore, non-explanation of the injuries sustained by Ram Kishan may assume greater importance. There is also the defence version which competes in probability with that of the prosecution. In our view, therefore, non-explanation of the injuries sustained by the accused. Ram Kishan, which are grievous in nature, renders the prosecution story not wholly true"......
"In the fact and circumstances recited above, we are clearly of the view, that the prosecution has not come up with a true story. It has suppressed the facts. If that be the case, the whole prosecution story would stand on a 13 quick sand."
13.From the testimony of complainant Kamal Kumar (PW3) it transpires that accused was issued a Passport and a Ration Card at the address of complainant i.e. B-157, Ganesh Nagar. Kamal Kumar (PW3) has admitted during his cross examination that he had signed the Passport application form of the accused, wherein he had mention his address. He had not made any complaint to the Passport or to the Ration Card Office for cancellation of Passport and Ration Card of the accused, which had been issued to the accused at his residential address. This circumstance reflects that the accused had been residing in the house of the complainant at some time. This fact has been concealed by the complainant and not properly investigated by the IO. The complaint Ex.PW3/A mentions the address of the accused to be B-153/A. Whereas the IO has mentioned the native address of District Sharsha, Bihar in the chargesheet. He has not conducted any investigation at B-153 to verify if the accused actually resided therein. In such circumstances, the address of accused as furnished in, Passport and Ration Card i.e. the address of the complainant seems to be 14 plausibly correct.
14.Another piece of false evidence relied upon by the complainant is the birth certificate of Deepshikha. Photocopy of birth certificate Mark 3A has been placed on record by the complainant Kamal Kumar ; a perusal of this birth certificate reflects date of birth of Deepshikha to be 12.3.1987 and her mother's name to be Kamlesh Yadav, W/o. Kamal Kumar Yadav. While being cross examined, Kamal Kumar has deposed that Deepshikha was daughter of his brother Ajay Kumar Yadav and he had married his widow Kamlesh. In such circumstances, the date of birth certificate is false. The name of Ajay Kumar Yadave should have been recorded in the correct certificate.
15.Kamlesh Yadav (PW-2) has deposed that the police remained in their house for about ½ hours. The occurrence is stated to have taken place at about 10 am. IO (PW13), has deposed that he reached the spot at about 10:30 am and sent Ct. Sunil with the rukka at about 11:38 am, who returned to the spot after about 45minutes. If his testimony is believed, he stayed at the spot for a period of two hours. Which is contradictory to the testiomony of 15 Kamlesh Yadav (PW2). Deepshikha (PW1) has deposed that police had met her at her house. But there is no document signed by Deepshikha though, she was the prime witness and the victim.
Reliance by the learned APP for the State on letters Ex.PW1/A to Ex.PW1/D and Ex.PW2/E to Ex.PW2/G allegedly written by the accused to the complainant from the Jail is also misplaced. The contents of these letters are not established as per the provisions of Indian Evidence Act. The hand writing of the accused was never compared with these letters. Moreover, the letters which have been written during the trial were not relied upon of the prosecution during investigation. Further these letters only reflected that accused had family terms with the complainant party. This does not establish the occurrence for which the accused has been chargesheeted.
16.On the basis of evidence as discussed above prosecution story seems to be either concoction or in any case a half truth. The complainant Kamal Kumar Yadav (PW3) is a person who cannot be relied upon safely. As per his own admission he had permitted 16 the accused to use his address for preparation of his Passport and Ration Card. He owned and possessed a Phone bearing number 35995741, which had been issued in the name of one Ramesh Kumar and at the time of buying the abovesaid phone connection his residential address and ID proof had been managed by one Bantu Chhabra (PW8). He has described Jaimant Singh (PW12) as his Cutting Master, whereas Jaimant Singh has deposed that he is an employee of one SMI Export which had given business to the complainant. He relies upon birth certificate of Deepshikha which records him to be the father of the child; whereas the real father of Deepshikha was Ajay Kumar Yadav. He does not explain the manner in which accused suffered injuries, before he was handed over to the police. In the circumstances, as noticed above I am of the opinion, that evidence of the complainant or the witnesses produced by him, who are none else but his own family members or friends cannot be accepted to be correct beyond reasonable doubt. The principle of 'falsus in uno falsus in omnibus' may not have received general acceptance but is a rule of caution. This has been held by the Hon'ble Supreme Court of India in Sardul Singh 17 vs. State of Haryana reported as 2002 Vol-2 JCC 1951.
17.I, therefore, hold that the prosecution case suffers from contradictions in the statements of various witnesses. The prosecution story is doubtful. Accused is, therefore, entitled to benefit of doubt. He is accordingly acquitted. He has been in custody for almost three years. He be released from custody forthwith, if not required in any other case. File be consigned to record room.
Announced in the open Court (NAROTTAM KAUSHAL) today i.e. 19.03.2007. ADDL. SESSIONS JUDGE ROHINI COURTS:DELHI.
18FIR NO.202/04.
PS-TILAK NAGAR.
19.03.2007.
Present: APP for the State.
Accused in JC with Sh. Aseem Bhardwaj, Amicus Curae.
Vide a separate judgment, Accused is acquitted. He be released from custody if he is not required in any other case. File be consigned to record room.
(NAROTTAM KAUSHAL) ADDL. SESSIONS JUDGE ROHINI COURTS:DELHI.