Delhi District Court
Fir No. 237/2007 State vs . Sanjay Kapoor Page No. 1 Of 25 on 30 May, 2022
IN THE COURT OF MS SHILPI SINGH, METROPOLITAN
MAGISTRATE-02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
Date of Judgment: 30.05.2022
FIR No. 237/07
U/s 323/342/506(II)509/34 IPC
PS: Hauz Khas
Complainant Arun Mehta through State of NCT
of Delhi
Represented by Sh. AK Dubey, LD. APP for State
Accused Sanjay Kapoor S/o D.K Kapoor, r/o
Z-14, Hauz Khas, New Delhi.
Balbir Singh S/o Mahender Singh
r/o 1802 Parshad gali, Kotla
Mubarakpur, New Delhi.
Nagender Kumar s/o Ambika Singh,
r/o F-210, Village Khanpur, New
Delhi
Represented by Sh. Nitish Banka for accused no.1
Sh. Madhukar Pandey for accused
no. 2 & 3
FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 1 of 25
Date of Offence 17.04.07
Date of FIR 17.04.07
Date of Chargesheet 29.08.07
Date of Framing of Charges 05.10.16
Date of commencement of evidence 17.01.17
Date on which judgment is reserved 27.05.22
Date of the Judgment 30.05.22
Date of the Sentencing Order, if any NA- ACQUITTED
BRIEF FACTS:
1. Succinctly, the case of the prosecution is that on 17.04.2007 (hereinafter called the day of incident) at about 8:20 AM (hereinafter called the day of incident), a complaint was registered vide DD no. 2A, PS: Hauz Khas that one mad man is fighting. ASI Ramveer Singh was marked the case and he reached Z-14 (hereinafter called the place of incident) and he met the complainant at and the accused persons at the place of incident. It has been further alleged that the cause of this fight was the incident dated 16.04.07 where the dog of accused no.1 had defecated outside Z-26, Hauz Khas (hereinafter called the house of the complainant) and a case u/s 93/97 Delhi Police act was registered against accused no.3. The Prosecution further states that no went with the OCR van for medical as the accused persons weren't inured and later, the complainant got his medical vide MLC 42982/07. it has also been brought on record that ASI Ramveer waited for the complainant to give his complaint but he refused and wanted to give the same after consulting with his layer. That, at around 8 pm, on the same day, the complainant appeared before the concerned DCP and ACP and a written complaint was forwarded.
2. The brief contents of the written complaint are that on the day of the incident, the complainant was going for his morning walk when he noticed some unusual activity outside the place of the incident. He submits that he noticed the owner of FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 2 of 25 the house standing outside the house and secretly confabulating against the complainant. The complainant has mentioned that the time at this moment was 8:15 am. He further alleges that he heard accused no.2 abuse the complainant and quoted the words 'Mehta Madarchod'. The complainant alleges that when he went close to question why was he abused, one person caught hold of his arm and pulled him inside the premises and one of the owner of this house was hiding inside the house grabbed him from neck, threw him on the ground and started hammering him with his fists on his abdomen, face and head and dug his knee on his ribs. He submits that on of these owner ordered the goons to bolt the door from inside and then the other owner joined him and started beating him viciously, even while he pleaded for his life. The complainant alleges that all this while, he was being hurled with abuses and despite informing these accused that he can't breathe, the accused person's shouted, quoting 'Maar do isko jaan se, kill him' and tried to suffocate him by smothering his face. Further, the allegation of the complainant is that accused no.3 also joined and continuously punched him in his abdomen and asked him to apologize. On resistance, the complainant submits he was mercilessly beaten by the two owners and his request to open the door was denied and thus, to save his life, he eventually apologized. The complainant has explained that the accused persons did not stop here and pressurized him to touch the feet of accused no.3 and due to the continuous assault, he agreed to this as well but despite the same, they kept of thrashing him. The complainant has also stated that he pleaded the accused persons to let him call his wife as he thought that he would die but they kept on beating him and suffocating him. As per the version of the complainant, he managed to escaped when someone wanted to enter the house and the door was unbolted and as soon he escaped and started running towards his house, the accused persons followed him while abusing him and his family and passing threats of life. The complainant states that when he managed to reach his house, his wife heard his voice and came to save him and then the accused called her a 'Whore' and threatened to murder his family infront FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 3 of 25 of his 80 year old mother. As per the complainant, he reached PS Hauz Khas, where due to severe chest pain he collapses and was taken to AIIMS, wherein he was diagnosed with severe trauma, shock and fractured ribs and was on drip. He has even mentioned that during this incident, his shirt was torn, his shoulders were bruised and shirt had blood-stains and even his spectacles were broken.
3. On the basis of the above allegations, FIR no. 237/07 was registered on 17.04.07, u/s 323/341/509/34 IPC against the accused persons.
4. After completion of investigation, charge sheet was filed under the aforementioned section on 29.08.07. Cognizance was taken and on the basis of prima facie material on record, the accused persons were summoned. On 13.08.09, an application u/s 173 (8) was filed by the complainant as it was his grievance that the police has not investigated against the fourth accused, namely 'Kurdeshi'. Vide order dated 16.03.2012, the Ld. Predecessor ordered that supplementary chargesheet be filed to bring on record the efforts made by the IO to trace this accused. Supplementary chargesheet was filed, wherein the IO had stated that the complainant informed him that he was under the impression that the name of the owner is Kurdeshi but it was actually Pankaj Kudesia. The IO inquired about the owner of the place of incident and had mentioned in his report that the basement and the ground floor of the place of incident was owned by Sh Alok Sahni and Neelam Sahni and the 1st and 2nd floor was owned by Manoj kudesia, who hadn't paid his property tax after September 2010 and had sold the house and left. Due to the lack of information, this accused was kept in column no. 12.
5. On 05.10.2016, arguments on charge were addressed and charges were framed against the accused no.1 to 3 u/s 323/342/506(II)/509/34 IPC, to which they pleaded not guilty and claimed Trial.
FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 4 of 25
6. To bring home the guilt of the accused persons, the prosecution examined seven witnesses.
RANK NAME NATURE OF EVIDENCE
PW-1 Sh. Arun Mehta Complainant/Eye witness
PW-2 ASI Chandan Singh Police Witness
PW-3 Ms. Anshu Mehta Wife of complainant/victim
PW-4 Ct rajesh Police Witness
PW-5 Sh Rajbir Singh, MRT, MRT, AIIMS
AIIMS Hospital
PW-6 ASI Bhanwar Lal Police witness for Kalandra dt
16.04.07
PW-7 ASI Mala Ram Police witness for Kalandra dt
16.04.07
7. PW-1 had deposed that on the day of the incident, he was going for his morning walk when he noticed some unusual activities outside the place of the incident. While returning, at around 7:45 am, accused no.2 called him, "Mehta Madarchod". He submits that when he turned towards the place of the incident to ask why he had abused him, accused no.2 caught hold of his arms and dragged him inside the building and accused no.1 was hiding in the building, caught him by his neck and threw him on the ground and then hammered him with his fists on his face, head and abdomen. He has alleged that accused no.1 dug his knee on his ribs and asked accused no.2 and 3 to bolt the door from inside. Thereafter, accused Kudesiya came downstairs and thrashed him on his face and head, while he pleaded for his life and they continued to beat him and said "kill him" and "maar do". He further alleged that even accused no.3 was instructed to hit him and thereby, he started boxing him on his ribs and despite him informing the FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 5 of 25 accused persons that he may collapse, they tried to suffocate him. As per the version of PW-1, accused no.2 and 3 pressurized him to apologize to accused no.3 and touch his feet. When he refused, they started to beat him again and to save his life, he apologized and touched his feet. PW-1 explained that after a while, the door was opened, he ran to his house and these four accused chased him and were abusing him. He stated that his wife came downstairs and asked accused no.1 as to why did he hit PW-1, he called her a "Whore" and threatened her in public by quoting "I will come to your house and fuck you". He submitted, that he went to the police station where he collapsed and he was taken to AIIMS and later, he gave his written complaint to DCP South. PW-1 has also alleged that on 27.04.07, his wife and daughter noticed some suspicious characters outside the school of the daughter and he had an apprehension that these are the goons hired by the accused persons. The accused persons were identified by PW-1 correctly in Court.
8. During his cross-examination, he denied having any altercation with accused no.3 on 16.04.2007 or that a kalandra was filed pursuant to the fight and said that he could not remember if the police had come after the altercation. He explained that he only asked accused no.3 to get the area cleaned where the dog had defecated. He denied the suggestions of falsely implicating the accused persons due to the fight that had happened on 16.04.07 or that he deliberately picked up the fight on the day of the incident which is why the GD entry said that one mad man is shouting outside the place of incident. He has further clarified that the incident occurred at 7:45am but changed his statement about reaching the police station. Once he said that he went their after getting rescued and then said that he went in the evening, after getting discharged from the hospital. He had also placed on record his original casualty card, which was exhibited as Ex PW1/DX1 and was confronted by the Ld. Counsel for the accused about the time of incident and the weapon. As per PW1/DX1, PW-1 had stated that time of incident was 8:15 and and he was also assaulted with stick. He has also admitted that it is not mentioned FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 6 of 25 in this document that there was bleeding and bruises. He also changed his statement regarding the arrival of police at the place of incident, first he said that the police never arrived there and then he said that he can't remember the same. On the question about non seizure of his blood stained shirt, he submited that he had shown the same to the IO but the IO did not collect it. Apart this, PW-1 denied the suggestion of having concocted the story and deposing falsely.
9. In the cross examination of PW-1 by the accused no.1, it was extracted that he went to the place of incident on the day as he saw the accused persons whispering in a conspiring manner. He could not explain as to who opened the door and who was supposed to enter when he managed to escape the place of incident during his assault. He further explained that when he reached his house, only his wife came downstairs and PCR was already there.
10. PW-2 had deposed that on the day of the incident, he was working as duty officer and he received rukka from PW-4. He submitted that he had registered the FIR and endorsed the rukka. Rukka was exhibited as Ex PW-2/A and FIR was exhibited as Ex PW-2/B. He even stated that DD No. 32A towards this FIR was entered in roznamcha. Nothing material was extracted in his cross examination.
11. PW3 submitted that on the day of the incident, she heard some noise and looked outside her house when she saw PW-1 hurrying towards the house and he was followed by the accused persons, who were shouting and abusing. She submits that she went downstairs and saw PW-1 had cuts and bruises all over his face and she asked PW-1 as to how this happened, to which he explained that the accused persons who had followed him had assaulted him. She further stated that when she asked these accused persons why they had assaulted PW-1, accused no.1 called her a whore and threatened her with words "I will come to your house and fuck you". She submitted that she along with PW-1 went to the police station, FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 7 of 25 where PW-1 had collapsed and he was taken to AIIMS. In her cross examination, she was confronted with her statement recorded u/s 161 CrPC and contradictions were pointed out. It was pointed out by the Ld. Counsel for the accused that she had not mentioned about the threat given by accused no.1 that he will fuck her in her statement; that she had never mentioned about the incident dated 16.04.07 in her statement, when it was actually mentioned there and PW-3 had not given any explanation for the same. She submitted that she does not know why the police did not record these facts when she gave her verbal statement. With respect to the question of her husband bleeding, she submitted that she does not remember whether he was bleeding. She even denied stating that she was present in the lane where PW-1 was stopped and hit by the accused persons, despite the same being mentioned in her statement u/s 161 CrPC. She denied the suggestions of conspiring with PW-1 to falsely implicate the accused persons, due to the incident dated 16.04.07. She has replied to most of the questions put to her by the Ld. Counsel for accused no.1 by saying that she cannot remember and even the fact about presence of her mother in law when PW_1 reached his house. She further admitted that she has stated in her examination u/s 161 CrPC that the owner of Z- 14 had called her whore but she said that she does not know who is the owner of this house.
12. PW-4 had deposed that on the day of incident, he went to the place of incident, i.e Z-14 along with the IO and he met PW-1 and PW-3 there. and PW-1 was taken to AIIMS. He further explained that PW-1 gave a written complaint to DCP and FIR was registered. He even explained that the accused persons were arrested and arrest memo and personal search memo were exhibited as Ex PW-4/A-PW-4/B and PW-4/C-PW-4/D, respectively. He has further stated that accused no.3 was arrested vide arrest memo, which was exhibited as Ex PW-4/E and his personal search memo was exhibited as Ex PW-4/F. As per PW-4, he reached the spot at 8:25 am and that he waited with PW-1 at AIIMS for almost 1 hour 30 mins and FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 8 of 25 PW-1 was even discharged in his presence bu the did not give the statement for registration of FIR and only gave a written complaint to the DCP. Regarding absence of any independent public witness, PW-4 said that neither him nor the IO examined any such public witness. The main contradictions extracted from his cross examination were that as per PW-4, PW-1 had not named the accused persons as owner, driver and guard rather, he had described them to the IO with their respective names and at the time of the incident, he never mentioned about any 4th person. Further, PW-4 stated that PCR was at the place of incident and PW-1 himself informed him about the incident dated 16.04.07.
13. PW5 had deposed that as per guidelines of DGHS letter no. F.10-3/68, dated 31.08.1968, the MLC record, including MLC no. 42982/07 was destroyed. He was however acquainted with the signatures of the doctor who had prepared the MLC and on that basis MLC placed on record was exhibited as Ex PW-5/BX. the destruction order was exhibited as Ex PW-5/A. During his cross examination, he explained that the doctor who had prepared the MLC used to visit the record room and he had seen him writing, hence he was acquainted with his handwriting.
14. PW-6 had deposed that on 16.04.2007, at about 8:35 AM he received a call regarding a quarrel at the place of incident and he along with PW-7, reached there. He further submitted that PW-1 was present there and he had informed him about the details of the incident and because accused no.3 was arguing loudly despite warning, action was taken against him U/s 93/97 DP Act. During his cross examination, he explained that on 16.04.07, accused no.3 had taken the dog for walk outside Z-15, where he had defecated and not outside the house of PW-1, but outside his boundary wall. As per PW-6, even PW-1 was abusing accused no.3 on 16.04.07.
FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 9 of 25
15. PW-7 had deposed on the similar lines as that of PW-6 and kalandra was summoned which was registered against accused no.3 on 16.04.07. PW-7 had produced the order of ACP HQ/SD dated 14.04.18 wherein the record of PS Hauz Khas upto 31.12.2014 were directed to be destroyed. The said order was exhibited as Ex X. Nothing material was extracted in his cross examination.
16. DD no. 2A, dated 16.04.07 was exhibited as Ex B and DD No. 2A, dated 17.04.07 was exhibited as Ex C after the admission by the accused persons towards the recording of these DD's, except the content and allegation, in their statement u/s 294 CrPC on 22.08.19. On 16.09.2019, the accused persons admitted the genuineness of X-Ray of PW-1, report bearing no. CR 42982/07 and had no objection for the same to be read in evidence. The document was exhibited as Ex A, dated 16.09.19. As per Ex X, no fracture was seen on the ribs. As per Ex PW-1/DX1, assault described by PW-1 at 8:15 am, no cuts and bruises are observed, vitals are stated to be normal and movement of limbs is mentioned without pain, with no orthopedic reference. On 27.05.2022, the accused persons even admitted the factum of registration of MLC and its contents and it was re- exhibited as Ex PW-5/BX.
17. Prosecution evidence was closed on 22.10.2019 and examination of IO was dispensed by the Ld. Predecessor as despite making 5 attempts to secure his presence, he did not appear before the Court. An application u/s 311 CrPC was also filed by state on 23.05.2022, which was not allowed vide order dated 24.05.22 on the grounds that the said witness and even the doctor has been dropped by this Court after hearing the prosecution and the said right cannot be opened by the Court at this stage through 311 CrPC.
18. Statement of Accused persons under section 313 Cr.P.C. r/w section 281 Cr.P.C was recorded on 16.12.2021. The accused no.1 had explained that he was falsely FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 10 of 25 implicated in the case and he never stayed at the place of incident or the entire area. Accused no.2 has submitted that PW-1 had a quarrel with accused no.3 and he has been unnecessarily dragged in this case. Accused no.3 had explained that he has been falsely implicated as PW-1 was upset about the argument that had happened on 16,04,07 regarding defecation by the dog, even though he was only performing his duty and even assured to clean it.
19. Further, Accused no.1 chose to lead DE. During his examination, it has come on record that he is a resident of Sarita Vihar since the year 2000 and never resided at Hauz Khas. To corroborate the same, he had placed on record his Adhar Card, bearing no. 344649288425, which was exhibited as ExDW1/A; incorporation certificate of his company, by the name of Riya Communication Pvt Ltd, which was exhibited as Ex.DW1/B; death certificate of his mother, Late Swaran Kapoor, which was exhibited as Ex.DW1/C; his driving license bearing DL no. 031- 9970526327 was exhibited as Ex.DW1/D; Certificate of Importer Exporter Code in the name of company Riya Communication Pvt Ltd was exhibited as Ex.DW1/E; Allotment of Director Identification number in his name by Ministry of Corporate Affairs was exhibited as Ex.DW1/F(OSR) and Copy of LIC policy of Rs Lacs was exhibited as Ex.DW1/G.
20. During his cross examination, it has come on record that he never asked any specific question about him being a resident of the place of incident to PW-1 or PW-3 . He denied knowing the complainant and the victim and as per him, he had met them for the first time after this case. He has voluntarily explained that the change of statement by PW-1 shows his conduct but he denied the suggestions of assaulting him or threatening his wife. His bail bonds were exhibited as Ex DW- 1/A when the same was put to him by the LD. APP and he was asked to explain about Ms. Neelam Sahni, who stood his surety and as per the bonds, her address is that of the place of incident. He answered that he cannot explain the same or FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 11 of 25 the fact whether Neelam Sahni, being his sister, was residing at the place of incident. Also, DW-1 first said that he does not know the co-accused persons and when he was confronted with the bail bonds of accused no. 3, which was exhibited as Ex DW-1/B, surety being his brother in law, he admitted that the address of his brother in law is that of the place of incident.
FINAL ARGUMENTS:
21. The Ld. APP and the Ld. Counsels for the accused persons have addressed their arguments. The Ld. APP has submitted that the evidence brought on record has proved the case of the prosecution beyond reasonable doubt. He submits that the MLC of the complainant shows that he indeed suffered injuries on the day of the incident. As per the prosecution, even though the nature of injuries in the MLC is simple but that is not sufficient to assume that the complainant has lied about the incident. He submits that the injury may be simple but the nature of assault and the weapon used are the factors considered while deciding the offence. As far the motive is concerned, the Ld. APP submits that the incident dated 16.04.07 would prove the same. He submits that the complainant had an altercation with accused no.2 and 3 and because the complainant had filed a complaint against these two accused persons and consequently, they were arrested u/s 93/97 Delhi police act, they had assaulted the complainant, in vengeance. The Ld. APP submits that the contradiction is the version of the story of the accused persons can be observed from the fact that though accused no.1 has stated that he is not the owner, not even residing at the place of incident and does not even know accused no.2 and 3 yet, the brother in law of accused no.1 is the surety for accused no.3 and the sister of accused no.1, being the surety for accused no.1, has mentioned the address in bail bonds as that of the place of incident i.e Z-14. Further, Ld. APP submits that the prosecution witnesses have corroborated the story and there's no improvement, hence the case stands proved beyond reasonable doubt. Another FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 12 of 25 line of submission of the prosecution is that as far the allegations u/s 509 IPC are concerned, the accused did not choose to explain himself at the stage of examination u/s 313 CrPC, which is an opportunity for the accused to explain his version, directly to the Court and that, he even failed to rebut these allegations during the cross examination of PW-3. As per the Ld. APP, the silence of the accused persons on these allegation, failure of the accused no.1 to produce the complaint made by him against the complainant and the unimpeached testimony of prosecution witnesses has proved the case of the prosecution beyond reasonable doubt.
22. The Ld. Counsel for accused no.2 and 3 has filed his written arguments and has even addressed oral arguments. The Ld. Counsel submits that the present case is nothing but misuse of process of law, by an influential person, only to harass and teach a lesson to the accused persons only because the ego of the complainant was hurt. The Ld. Counsel submits that accused no.3 is the guard at the place of the incident and he used to take the dog out for walk. On 16.04.2007, the dog defecated next to the house of the complainant, which infuriated him and he objected to the same. There was an altercation and accused no.3 called the police but being a person belonging to an economically weaker section, the police had in turn filed a Kalandra against accused no.2 and 3 u/s 93/97 Delhi police act. To highlight the motive of the complainant, the Ld. Counsel submits that the complainant chose to not mention about the incident, which is allegedly the cause of the present complaint in his FIR, which shows that he was intentionally hiding this fact. The Ld. Counsel further submits that on the day of the icnident, the call was made by a neighbor, next to the place of incident and not next to the house of the complainant, that on mad man is creating a ruckus. The Ld counsel submits that there were three accused and one complainant and thus this remark of 'one mad man' was for the complainant as he came to the house of the accused persons, deliberately with the intention of picking a fight and to falsely prosecute FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 13 of 25 them. As far the MLC of the complainant is concerned, the Ld. Counsel submits that this is one document which completely destroys the case of the prosecution the nature of injury is simple with no bruises, BP being 118/78 and respiratory rate is normal. He submits that even no fracture was seen in the chest X ray. As per the Ld. Counsel, the allegations of the complainant are that he was brutally assaulted with fists, kicks and blows for more than 40 minutes. The Ld. Counsel submits that the complainant is was a 51 year old man at that point of time and yet after this brutal assault, he suffered o injury, no bruise and even his heart rate and BP was normal, which is highly unlikely. Further, the Ld. Counsel has objected to the story by pointing out the allegation of the complainant that he had cuts over his body and his shirt was filled with blood. He submits that neither was this shirt seized by the IO nor did PW-3 had any memory of the same. Apart this, the Ld. Counsel submits that ASI Ramveer (write PW) was not examined even though he was the one who recorded the Kalandra for 16.04.07 incident as despite service, he wasn't appearing, the doctor wasn't examined to corroborate the nature of injury and the allegation of the complainant and even the IO wasn't examined to prove why the stick with which the complainant was allegedly thrashed, his broken spectacle and blood stained shirt wasn't stained. The Ld. Counsel submits that non examination of these witnesses has only punched the fatal hole in the case of the prosecution which has sunk its case to rock bottom. The Ld. counsel has relied on judgments. The same have been perused and considered.
23. The Ld. Counsel for accused no.1 submits that the allegation of section 509 IPC against the accused no.1 are fabricated and concocted. He submits that the version of PW-3 in her statement u/s 161 and her examination during trial shows major contradictions. He submits that the examination of PW-3 shows that being a witness who had only hearsay knowledge, she has deposed as an eye witness, even though she was not present at the place of the incident. He further submits FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 14 of 25 that the time of incident, as per the FIR is 8:15 am and as per the allegations of the complainant, the incident occurred for about 40 minutes but, the police reached the spot at 8:25am. The Ld. Counsel submits that this itself proves that the story of the prosecution, though well concocted, wasn't fairly structured to falsely accuse the accused persons. He submits that the falsification can also be observed by the improvement made by the complainant during his examination at trial when he said that the time of incident was 7:45 am. Further, the Ld. Counsel submits that the application u/s 173(8) CrPC was allowed to further investigate about the owners of the place of incident and these alleged owner's were never found. He submits that accused no.1 is neither the owner nor the tenant and he has been falsely implicated for no reason whatsoever. The counsel alleges that the story of the complainant of being brutally assaulted is also questionable on another point as he had stated that he ran from the place of incident to his house, with accused persons chasing him, yet in this condition, he out ran the accused persons. As per the counsel, all these averments prove that that the prosecution is not only far from proving the case beyond reasonable doubt but has rather used the machinery of law to sophistically misled the Court.
24. I have heard the arguments and perused the record. After careful consideration, the following point will have to be determined in order to establish the guilt of the accused persons beyond reasonable doubt:
Relevance of incident of 16.04.2007
25. As per the chargesheet, the IO submits that on the day of the incident, he reached the place of incident, where he met the complainant and the accused persons and got to know about the incident. He submits that the cause of the incident was the altercation between the parties on 16.04.2007, as the dog of accused no.1 had defecated outside the house of the complainant, which resulted in PW-7 filing a case u/s 93/97 Delhi Police act and on the day of the incident, again, there was FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 15 of 25 some fight between these parties. The IO has stated in his report that the complainant was sent from the PCR to the hospital and his MLC was conducted, i.e Ex PW-5/BX and since the accused persons did not suffer any injury, they refused to get their medical. ASI Ramveer was supposed to record the FIR but the complainant refused to the same and said that he will depose after consulting the lawyer and as per the IO, the complaint gave a written complaint to the concerned DCP and ACP, which has been reduced in verbatim as the compliant. Perusal of Ex B shows that a complaint was received at 8:35 am on 16.04.07 that some fight had ensued outside Z-14 and PW-7, along with PW-6, were sent to the spot. The same has been corroborated by PW-7 during his examination. Testimony of PW-6 and PW-7 shows that incident dated 16.04.07 had in fact occurred but PW-1 and PW-3 have denied about the same during their evidence. What has not been explained is the admission of this incident by PW-3 during her statement u/s 161 CrPC and has even described the same as the motive behind the incident dated 17.04.07. When confronted with her statement during Trial, she has denied and said that she does not know why the police has recorded so.
26. The above would show that there is a documentary proof on record to corroborate about the incident dated 16.04.07, for which Ex B was registered but the same has been denied by the main witnesses, ie. PW-1 and PW-3 and admitted by PW-6 and PW-7. The defence has contradicted the statement given by PW-3 for this purpose during her cross examination. Now as per section 162 of the evidence act, once such statement is contradicted, the prosecution can use this statement to explain the real intent but here, PW-3 has said that she does not know why the police has recorded this statement. Execution of Ex B is not disputed and therefore, non explanation of her statement u/s 161 CrPC by PW-3 not only resulted in material omission but also raises a doubt on her testimony and in fact supports the story of the defence that she is an interested witness.
FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 16 of 25
Testimony of PW-1
27. When the testimony of PW-1 is assessed after sifting the evidence, various contradictions can be observed. As per PW-1, there was no motive behind the incident as he clearly denied the incident dated 16.04.07. The said incident is even denied by PW-3 but during her statement u/s 161 CrPC and that of the constables, all of them have mentioned about the altercation between PW-1 and accused no.3 on 16.04.07. Even PW-6 and PW-7 have corroborated their version at the time of their evidence. Perusal of Ex B and C would show that incident dated 16.04.07 had actually occurred and the chargesheet would show that Kalandra u/s 93/97 DP act was filed against accused no.3. Now as per the version of PW-1, he went for his walk when he heard the accused persons whispering which appeared as if they were conspiring and then he went there to overhear, which is when accused no.3 abused him. PW-1 has not explained how one day, while going for his walk, he was under the impression that these accused persons, even if they were whispering, were talking about him especially when PW-1 has categorically denied the incident dated 16.04.07. Since the occurrence of the said incident has been proved, it appears that PW-1 has deliberately omitted to not explain this point to the Court and there is a possibility that he has tried to hide a relevant fact. Further, as per the chargesheet, the complaint for the incident was received at the police station at 8:20 AM. As per Ex PW-1/A, he has mentioned that he was coming back from his walk at quarter past 8, i.e 8:15 am and the alleged incident continued for almost 40 minutes. As per PW-4, he reached the spot at 8:25 am. Surprisingly, during the testimony of PW-1, he has stated that the time of incident was 7:45 am. No explanation has been given by the prosecution for the same and it appears that the same has been done intentionally as the witness must have realized the loophole in his story. As per the chargesheet and testimony of PW-4, he reached there at 8:25 and the time of incident originally mentioned is 8:15 am. Had the incident occurred for 40 minutes, the IO would have witnessed the incident. It is not even the case of the prosecution that the IO FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 17 of 25 has falsified in his testimony. Ex C further corroborates the time of incident as 8:15 am. This only leads this Court to believe that PW-1 would have realized the flaw in his complaint and tried to improvise it as had he stuck to the time of 8:15 am as the time of incident, it would have been contradicted by the testimony of police witnesses. This contradiction has demolished the credibility of PW-1.
28. Next, the main point for consideration is the alleged beatings given by the accused persons to PW-1. Perusal of his testimony along with the evidence of other witnesses would show multiple contradictions. Ex PW-5/BX and Ex PW- 1/DX1 and Ex X would show that the opinion of the doctor is "Assault blunt". The X ray reflects no fracture and the discharge summary does not mention if the accused had multiple cuts and bruises over his face and body or that his shirt was stained with blood. These documents have been admitted by defence. The consequence of these documents is that the testimony of eye witness does not corroborate with the medical evidence. PW-1 was not even advised orthopedic opinion even though, had his story been true, it is highly unlikely that he would not have been advised with the same. In such cases, the testimony of eye witness has to be evaluated with caution. Usually the credibility of the testimony of eye witnesses is judged on the basis of medical evidence in order to explain any alternative possibility of the incident as described by the eye witnesses and in the present case, it is one such situation where alternative possibility is the only possibility believable. Not only the medical evidence disproves the version of PW-1 but omission to explain about the incident dated 16.04.07, which appears to be the motive of filing this FIR; the presence of PW-1 and PW-3 at the place of incident, which is contrary to their statement; non explanation about the reason for which PW-1 thought that the accused persons were whispering about him; non explanation about the person who came to the place of incident when PW-1 managed to escape from the assault; contradiction in the testimony of PW-1 and PW-3 w.r.t the accused persons chasing him to his house, where PW-1 said that FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 18 of 25 they could not catch him and PW-3 said that she heard them abusing and saw them assaulting PW-1 and the non seizure of the alleged blood stained shirt and broken spectacles and then denying the assault with stick, only lands the case of the prosecution to a rock bottom. The testimony of PW-1, being an injured witness could have had a high evidentiary value but his testimony has only made this Court reach the conclusion that not only the injury suffered is questionable but also that PW-1 is an interested witness. Hence, his allegations for offence u/s 323 IPC are not made out due to his testimony being full of exaggeration and contradictions. Moreover, the above discussion and contradictions has also resulted in the prosecution miserably failing to prove its case beyond reasonable doubt for offence u/s 506(II) IPC.
29. This consequently also raises a doubt about the manner of the assault. PW-1, as discussed above, failed to explain about who entered the house, when he managed to escape. PW-1 and PW-3 had affirmed that there were 4 persons in the assault, one of them being Kudesiya, owner of the place of incident. As per the supplementary chargesheet, no such person existed and the house was in the name of Pankaj Kudesia, who had not paid tax in last 10 years and had even sold the property. However, he had no information about this person who entered the house during the time of assault. He did not even explain the conduct of this person, if he was surprised to see the assault or said or did something. It is highly unlikely that a person suddenly walks in and witnesses an assault and expresses no emotion. On the other hand, statement of pW-3 u/s 161 CrPC would show that she said there were three persons abusing and assaulting PW-1, accused no.1 being the owner of the house. The said fact has also been contradicted, as discussed above and thus, leaves this Court in a state of doubt about the story of prosecution qua wrongful confinement. That being the case, the prosecution has failed to proves its story beyond reasonable doubt for offence u/s 342 IPC.
FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 19 of 25
MLC of the complainant:
30. As per Ex PW-5/BX and Ex PW-1/DX1 no cuts and bruises or blood stains have been observed in these documents. As per the doctor, the vitals, BP and movement of limbs is normal. The allegation of PW-1 that he was assaulted for almost 40 minutes and the accused persons almost tried to kill him, is not supported by the medical evidence. As per Ex X, no fracture was seen on the ribs. Now the medical testimony is altogether not sufficient to disprove the allegations of assault but then the testimony of eye witness should be of stark quality. Her PW-3 is only a hearsay witness, Ex PW-2/A shows that accused persons did not suffer any injury and testimony of PW-1 itself has various contradictions. Had the accused persons assaulted PW-1 in the manner described by him, they would have suffered some bruises on hands but as per PW-2/A, they had no injury and their medical was not even conducted. Further, cuts and bruises have not been mentioned in PW-5/BX, though alleged by PW-1 and PW-3. The prosecution has failed to explain the non observation of these facts in MLC. Moreover, PW-1 had initially alleged that he was even assaulted by a stick and later denied the same. He has also alleged that his shirt was stained with blood but the IO chose not to seize it. Even this explanation is not satisfactory as PW-1 went to the DCP to get his complaint registered and on the basis of his written complaint, FIR was registered. He could have brought the notice on non seizure of shirt by IO to the DCP. It is very hard to believe that after such grievous assault, PW-1 on one hand chose to get his complaint registered through DCP but for getting the main pieces of evidence like blood stained shirt and brokenn spectacle seized, he had only shown them to the IO and when the IO refused to seize them, he did not take any step. That being the case, his allegation of blood stains are also not proved. Further, MLC is prepared on physical examination of the body. Even after alleging such cuts and bruises and severe assault, when the doctor has observed that no orthopedic opinion is required, that is on the basis of the examination of PW-1 but when PW-1 pleaded pain in chest, the fact being one that cannot be FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 20 of 25 ascertained on physical examination, his X ray was recommended. However, nothing has been found in his X ray as well. As explained above, testimony of PW-1 being questionable, in this case medical evidence becomes an important piece too ascertain the truth behind the nature of assault and the weapon used. The medical evidence has not supported the allegation of PW-1 and has rather raise a serious question on his testimony, leading this Court to believe that the nature of assault and injury described by the complainant were either false or exaggerated.
Testimony of PW-3
31. Perusal of the testimony of PW-3 would show that she has sort of repeated the incident as described by PW-1. As per Ex PW2/A and his examination at trial, PW-1 has described that when he escaped from the place of incident, accused persons were chasing him while hurling abuses but could not catch him and that is when PW-3 heard these abuses and came downstairs to save him and accused no.1 called her a whore and threatened to kill the family before his 80 year old mother. Though during Trial, he denied that his mother was present downstairs and added that accused no.1 threatened PW-3 by saying that he will fuck her. However, as per the version of PW-3 in her statement u/s 161 CrPC, she saw PW- 1 in the lane and that these three accused persons were abusing and assaulting PW-1 and when she went downstairs to get him released, the accused persons abused and insulted her. Here PW-3 has alleged that the owner of the house, accused no.1, called her a whore and all the accused person's abused her. But during her examination, she has stated that accused no.1 called her a whore and threatened to fuck her. As per her version during her testimony, she said that 4 accused persons were chasing PW-1, including one kudesiya. This averment has only come after the testimony of PW-1. PW-3 not only failed to explain about the sudden presence of this alleged fourth accused and the non mentioning of the same during her statement u/s 161 CrPC but she has also not explained what were FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 21 of 25 the exact abuses or insulting words used by each of these accused persons. The prosecution has failed to explain these contradictions in the testimony of PW-3 and her allegation that she does not know why the police has not recorded these facts in her statement u/s 161 CrPC are also not explained. Nothing has been brought on record to show that deliberately these facts were not recorded and the improvement in the story by changing the threat of life to accused no.1 threatening PW-3 of fucking her also raises a doubt. Pw-1 had given a detailed written complaint but he never mentioned this particular fact, even though he has mentioned that the act of the accused amounts to outraging the modesty of women. Pw-1 has also not explained this omission and moreover, the failure on part of PW-3 to explain the abuses or insults hurled by accused no.2 and 3 and change in the cuss words used by accused no.1, makes her testimony questionable.
32. Coming to the essential ingredients of offence u/s 509 IPC, they are: intention to insult the modesty of any woman by- "Uttering any word or making any sound or gesture, with intention that such word or sound shall be heard"; " exhibiting any object with intention that such gesture or object shall be seen by the woman" and "By doing the above the accused thereby intrudes on the privacy of a woman."
33. Intention being one of the ingredients of this offence, it has got to be proved like other ingredients for convicting a person, but, this ingredient being a state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. Words, which are themselves abusive and filthy, if spoken with intention of using these words to a woman, would result in insulting the modesty of a woman. However, as there is no mechanism to probe into the mind of the offender to find out as to what intention he was harboring at the relevant time, the intention will have to be attributed on the basis of the circumstances described.
FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 22 of 25
34. In the case at hand, PW-1 and PW-3 have not only improved their story with respect to accused no.1 but have also failed to explain the omission of these facts during their complaint and recording of statement. At the initial stage, PW-1 could have only been in possession of his written complaint and not the statements recorded u/s 161 CrPC, due to which PW-3 could not improve the story but after evidence, she was probably in knowledge of the testimony given by PW-1 which is why it appears that she has deposed on the same lines. She has not even described the role of accused no.2 and 3 as the particular words attributed to her by them has not been explained. Even otherwise, the main allegation of PW-1 is also in question here due to the observations made above with respect to Ex PW-5/BX, Ex A, Ex X and Ex PW1/DX1.
35. As far her testimony for being an eye witness is concerned, material contradictions can be observed towards that as well. As per PW-6 and PW-7, both PW-1 and PW-3 were present at the place of incident when they reached there. Even otherwise, PW-3 was not present at the place of incident when the alleged assault had happened, she initially said that she saw her husband being abused and assaulted by the accused persons in the lane and then she said that when she saw him with cuts and bruises, she went to save him and asked the accused persons why he was assaulted and that's when they abused her. PW-3 could not remember if PW-1, her husband had blood stains but she could remember the other minute details, which are too coincidental to be believed to be true. Her version of remembering the fact is limited to the evidence given by PW-1 but on the facts where she had specific knowledge, she stated that she could not remember those. It is very strange to believe that a wife can forget about the picture of her husband being marked with his own blood after an assault, as that is one thing that if its true, cannot be forgotten by the memory with time. Apart this, the version depicted by PW-3 is mostly hearsay. She was not present at the spot FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 23 of 25 and as per PW-1, when he was being chased by the accused persons, they could not catch him. Therefore, it shows that PW-1 was not assaulted at his house or while he was running. PW-1 has also said that when he reached his house and his wife heard the noise, accused persons abused and threatened her. He has nowhere said that he was being assaulted even at his house when PW-3 saw it.
36. Hearsay evidence is not admissible before the courts because the person who is providing such evidence bears no personal responsibility towards the factual accuracy of the statement, and there is plenty of scope for the truth to get diluted in such a statement. One of the exception to this rule is Res gestae. Section 6 of the Indian Evidence Act states that "Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places." Thus, in order for a fact to be shown as a part of res gestae, it must be linked to the facts in the issue but should not be the facts in the issue themselves.
37. In this case, PW-3 could maximum have heard the alleged threats and abuses given by accused persons to PW-1 while they were chasing her and as no evidence has been brought on record to show that she actually witnesses them assaulting PW-1 and more so, when there are contradiction to this fact, her testimony is completely hearsay with respect to this fact. The statement of PW-3 of accused persons assaulting PW-1, considering the above discussion is brought forth as a fact in issue and not part of a transaction which forms the fact in issue. That being the case, the same cannot be admitted in evidence. Hence, this results in the Court to disbelieve the testimony of PW-3 and it cannot be said that offence u/s 509 IPC has been proved beyond reasonable doubt.
FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 24 of 25
Non Examination of Public witness:
38. The prosecution has chosen not to examine any public witness and no explanation has been given for the same.
39. The defence of accused no.1 that he was not at the place of incident was questioned by the prosecution. The bail bonds would show that his sister and brother in law were residents of place of incident and his version of not being there altogether has not been proved, burden of this fact being resting on him but this alone is not sufficient to prove the Burden of Proof of the main fact in issue in this case by the prosecution.
40. Thus, on the basis of the above discussion, this Court is of the considered opinion that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt and therefore, accused Sanjay Kapoor, Balbir Singh and Nagender Kumar are acquitted for offence u/s 323/342/506(II)509/34 IPC.
Announced in the Court (SHILPI SINGH) on 30.05.2022 MM-02(SD)/30.05.2022
Certified that this judgment contains 25 pages and each page bears my signature.
(SHILPI SINGH)
MM-02(SD)/30.05.2022
FIR No. 237/2007 State Vs. Sanjay Kapoor Page No. 25 of 25