Delhi District Court
Cr. Case/66482/2016 on 11 April, 2019
IN THE COURT OF SHRI ABHISHEK KUMAR,
METROPOLITAN MAGISTRATE-05, WEST
TIS HAZARI COURTS, DELHI
FIR No. : 174/2004
P.S. : Anand Parbat
Case No. 66482/2016
State
v.
Asha Ram Gautam, S/o Sh. Sheetal Prasad,
R/o House No. 284/C-1, Gali No. 8, Anand Parbat, Delhi.
Date of institution of case : 05.03.2005
Date of reserving the judgment : 09.04.2019
Date of pronouncement of judgment : 11.04.2019
JUDGMENT
1. S. No. of the Case: 66482/2016
2. Date of Commission of Offence: December 2003 to
18.07.2004
3. Date of institution of the case: 05.03.2005
4. Name of the complainant: Smt. Parvati @ Paro
5. Name of the accused: Asha Ram Gautam
6. Offence complained or proved: 385 IPC
7. Plea of Accused: "Not Guilty"
8. Final Order: Acquitted.
9. Date of Final Order: 11.04.2019
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BRIEF FACTS AND REASONS FOR DECISION
1. The present case has been instituted on the basis of chargesheet filed by the IO ASI Desh Raj on investigation into the FIR No. 174/04 PS Anand Parbat registered under Section 385 IPC against the accused Asha Ram Gautam on the information of Smt. Parvati Devi.
2. It is the information of the informant Smt. Parvati @ Paro who happens to be the victim in the present case that the accused had threatened her from December 2003 to 18.07.2004 with the fear of demolition of her house which was being constructed at a plot in Gali No. 9, adjacent to Wasan Transport Company, Nehru Nagar, Anand Parbat, Delhi and the accused had tried to extort an amount of Rs.20,000/- from the informant / victim.
3. The cognizance of the offence was taken on 05.03.2005 and the accused was present before the Court who was supplied the documents in compliance of Section 207 CrPC.
4. The charge was framed for offence punishable under Section 385 IPC against the accused on 04.06.2007 to which he pleaded not guilty and claimed trial.
5. In prosecution evidence, the prosecution has examined six witnesses. The deposition of the witnesses in a nutshell is as below:
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PW-1 Smt. Parvati Devi (informant / victim): The witness has deposed that she had bought a land in Gali No. 9, adjacent to Wasan Transport Company, Nehru Nagar, Anand Parbat, Delhi and in the year 2004, before the month of July, when her house was under construction, the accused came at her land and demanded Rs.20,000/- from her and the accused threatened that if she does not pay the money, he will get her house demolished by making complaint to the higher authorities and she did not pay the money but the accused kept threatening her and then she made a complaint to the police officials on the basis of which the FIR was registered. The complaint of the victim is Ex.PW1/A and the site plan prepared at her instance is Mark A. PW-2 Sh. Bishamber Mishra: The witness has deposed that the informant Parvati is his neighbour and she had purchased a land in the year 2003 opposite Wasan Transport Company in Street No. 9 and the accused had visited the informant when her property was under construction and demanded Rs.20,000/- from Smt. Parvati and threatened her that if she does not pay the money, he will get her property demolished.
PW-3 Sh. Komal Singh: The witness deposed that the informant Parvati is his neighbour and she has purchased a land in GaliNo. 9, Wasan Transport Company and the accused demanded Rs.20,000/- from Smt. Parvati with the threat of demolishing her house if she does not pay the money.
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PW-4 HC Sukh Ram: The witness deposed that on 18.07.2004,
he alongwith ASI Desh Raj reached at House No. 258, Gali No. 7, Nehru Nagar and met the informant Smt. Parvati Devi who told that she has purchased the land alongwith Wasan Transport Company and when she was constructing the said house, the accused came there and threatened her to get her house demolished if she does not pay Rs.20,000/- and the IO recorded her statement and prepared site plan at her instance.
PW-5 HC Anand Singh: The witness has deposed that on 18.07.2004, he has registered the present FIR which is Ex.PW3/A on the basis of rukka prepared by ASI Desh Raj by making endorsement on the same which is Ex.PW3/B. PW-6 HC Mahinder Singh: The witness has deposed that on 11.12.2004, he joined the investigation with IO ASI Desh Raj and went to Gali No. 8, Nehru Nagar and arrested the accused vide arrest memo Ex.PW6/A and conducted the personal search of the accused vide personal search memo Ex.PW6/B.
6. The statement of the accused under Section 313 CrPC was recorded on 05.12.2013 and accused stated that he has been falsely implicated in this case.
7. The accused led the defence evidence. The accused examined FIR No. 174/04 State v. Asha Ram Gautam 4 of 10 PS Anand Parbat himself as a witness under Section 315 CrPC. The defence evidence in a nutshell is as below:-
DW-1 Sh. Asha Ram Gautam (accused): The accused deposed that he is a social worker and the informant in connivance with the police officials of PS Anand Parbat had grabbed a Government plot which was being used for public purposes and Parvati Devi started illegal construction over the same despite status quo being maintained by the directions of the Hon'ble Apex Court and some local people had also objected to the said construction and he has also sent a complaint to the Lieutenant government of Delhi with regard to the same which is Mark DW1/A and the victim got falsely implicated in this matter and he had also received a reply from the DDA stating that the illegal construction has been demolished for which he has filed the complaint and the said letter is Mark DW1/C and photographs of the land is Mark DW1/D. DW-2 Sh. Ashok Kumar: The witness has deposed that one lady Paro Devi was illegally possessing the land of DDA and his father has made a complaint to the DDA on 19.12.2003.
DW-3 ASI Umesh Tiwari: The witness brought complaint dated 09.12.2003 which is Ex.DW3/A filed against Parvati Devi @ Paro by Darshan Singh, Kela, Ram Dass and Tara Chand for stopping illegal construction over the government land by Parvati Devi.
DW-4 Dharmender: The witness has deposed that there was a DDA land lying vacant at Vishwakarma Marg between Gali No. 9 and 10 FIR No. 174/04 State v. Asha Ram Gautam 5 of 10 PS Anand Parbat in Nehru Nagar which was illegally taken by Parvati Devi and the said land was used for functions / marriages by local residents and the accused had filed complaint before the DDA who got the land vacant from Parvati Devi.
8. At the onset it would be appropriate to have glance at the ingredients of the offences charged :
Section 385 IPC. Putting person in fear of injury in order to commit extortion.
Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
9. Before proceeding further, it is necessary to discuss the relevant legal propositions applicable to the facts of the present case. It is settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It has to be seen whether the prosecution had been able to establish the guilt of the accused persons beyond reasonable doubt.
10. In the present case and the evidence that has come on record, it is not in dispute that the accused and the victim were known to each other FIR No. 174/04 State v. Asha Ram Gautam 6 of 10 PS Anand Parbat as they were living in the same locality. It was pertinent upon the prosecution to prove the date, time and place where the attempt to commit the extortion was committed by the accused. The accused has created doubt in the prosecution story by bringing on record certain documents in his defence which shows that an illegal construction was being carried at the place of offence alleged by the prosecution and the same was also removed by the DDA. However, still the case of the prosecution would have existed, if the prosecution would have proved that the accused had acted with a malafide intention to extort money from the victim by threatening her action from the higher officials of the Government.
11. The counsel for the accused has argued before the Court that the prosecution has failed to establish the case beyond reasonable doubt as there is a delay in the registration of the FIR which has not been explained by the witnesses and there is no record to show as on which date and at what time the attempt for extortion was done by the accused. Moreover, there is no explanation as to why the victim did not inform the police immediately on 100 number mentioning about the crime committed by the accused. The counsel argued that the entire case is false and was motivated to harass the accused who was working as a social worker in the area against the encroachment of public land.
12. The prosecution has examined PW1 Smt. Parvati Devi who is the victim of the case also, PW2 Bishamber Mishra and PW3 Komal Singh as the eye witnesses to the offence. Perusal of the testimony of these FIR No. 174/04 State v. Asha Ram Gautam 7 of 10 PS Anand Parbat witnesses shows that none of the witnesses have stated about the date on which the attempt to commit extortion was done by the accused and also the time of the offence is not mentioned. There are mere bald allegations against the accused about the crime without the details of the crime. The complaint given by the informant to the police officials which is Ex.PW1/A also does not mention about the time and date of the offence. Further the place of offence is also not clear from the testimony of the witnesses. It cannot be believed that such a serious offence was being committed and the victim did not respond to it immediately and took it casually and did not report the crime to the police officials on 100 number or by making a written complaint in the police station. The incident is stated to be between the year 2003 to July 2004 but the complaint was not made anytime during the said period. In order to establish the ingredients of Section 385 IPC, it was essential that the witnesses should have told the complete particulars of crime. It is not the case where the particulars of the crime were stated in the beginning and due to a long period of time in the recording of the testimony of the witnesses since the registration of the case, they have forgotten the details of the crime. On the other hand, the details of the crime are not mentioned since the beginning of the case and no effort can be seen on the part of the investigating agency to have inquired about the particulars of the crime. If the investigation would have been done properly, the present chargesheet would not have been filed in the manner it has been presented in the Court and the accused would not have gone through the agony of the trial for the past 10 years. The victim has also not explained the delay in filing of the complaint before the police authorities which FIR No. 174/04 State v. Asha Ram Gautam 8 of 10 PS Anand Parbat makes the version of the complainant and the eye witnesses doubtful.
13. The evidence apparent on record is insufficient for basing the conviction for the accused persons. The benefit of doubt goes in favour of the accused persons and they are entitled to be exonerated. The burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. Every accused is to be presumed innocent until proved guilty. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof.
14. In case titled Partap v. State, AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that "The right of accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded."
15. In case tited Sharad Birdhichand Sarda v. State, AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that "Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of accused was sought to be established by evidence."
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16. In view of above discussion, this Court is of view that the prosecution has not been able to prove its case beyond reasonable doubt. Benefit of doubt goes in favour of accused persons. Accordingly accused Asha Ram Gautam is acquitted for the offences punishable under Section 385 IPC.
17. Bail Bonds u/s 437A of Cr.PC in the sum of Rs.10,000/- with the surety of like amount is to be furnished which would remain valid for a period of six months.
Digitally signed by ABHISHEK ABHISHEK KUMAR
KUMAR Date: 2019.04.11
15:41:55 +0530
Announced in open Court (ABHISHEK KUMAR)
on 11th day of April, 2019 Metropolitan Magistrate
West-05, Delhi
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