IN THE COURT OF SH. AMIT ARORA ADDITIONAL CHIEF METROPOLITAN MAGISTRATE EAST: KARKARDOOMA COURT: DELHI FIR No. : 564/05 PS : New Ashok Nagar U/s : 509/34 IPC STATE VS. VIJAY PANDEY & ORS. JUDGMENT
A New Number of the case 10287/16 B Name of the complainant Ms. Chanda Trikha R/o A-1063, G.D.
Colony, Mayur Vihar Phase-3, Delhi-
C Name of the accused & (1) Vijay Pandey s/o Sh. Ram Ashish his parentage and Pandey R/o H. No. A-1064, G.D.
address Colony, Mayur Vihar Phase-3, Delhi (2) Manoj Kumar s/o Sh. S.C. Singla R/o 137/3, Patparganj, Delhi (3) Anuj Singla s/o Sh. S.C. Singla 137/3, Patparganj, Delhi (4) Rohit Goel s/o Late Subhash Chand Goel R/o H. No. A-1072, G.D. Farm, Delhi D Offence Complained of U/s 509/34 IPC E Date of complaint 22.12.2005 F Date of Institution 08.05.2006 G Offence Charged U/s 509/34 IPC H Plea of the accused Pleaded not guilty I Order Reserved on 20.08.2018 J Date of Pronouncement 31.08.2018 K Final Order Acquitted of offence u/s 509/34 IPC
State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 1/15 BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION’S CASE 1 Accused Vijay Pandey, Manoj Kumar, Anuj Singhla and Rohit were sent to face trial for commission of offence u/s 509/34 IPC with the allegation that they used words and gestures intending to insult the modesty of the complainant Ms. Chanda Trikha.
2 The present FIR was registered on an undated complaint written by complainant Chanda Trikha (CW1) to the SHO, PS New Ashok Nagar, wherein she alleged that the above-named accused persons and Pankaj and Prerna were harassing and torturing them for last four years. She alleged that they always used to abuse and harass them because they want to vacate the house. She stated that they were always teasing her and due to such harassment, it has become difficult for her to tolerate. She further stated that they used to chase her whenever she goes and blocked her way. She further stated that people comment and abuse her while going on bike. She further alleged that they were listening the mobile and conversation of their house and they may have fitted something in her house regarding which she don’t have any evidence.
3 This complaint Ex.PW1/A is the genesis of the FIR. On the basis of this complaint an endorsement was made by the IO SI Rajesh Dangwal, PW3 and the present FIR got registered. Thereafter, as per the charge-sheet, accused above-named were arrested. However, Pankaj and Prerna could not be arrested as their name and parentage was not ascertained. Upon completion of the investigation a charge-
State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 2/15 sheet u/s 509/34 IPC was filed against the above-named accused persons.
4 On the basis of the charge-sheet and after compliance of Sec. 207 Cr.P.C. a charge was framed on 04.02.2012 against the accused persons for the offence punishable under section 509/34 IPC and read out to them to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 03 witnesses in all.
6 PW1 is the complainant Ms. Chanda Trikha. Her examination in chief was recorded on 19.02.2015 and thereafter, she was extensively cross-examined.
7 PW2 is SI Nageshwari who was the duty officer. She deposed regarding the registration of the present FIR which was proved as Ex. PW2/A.
8 PW3 is Inspector Rajesh Dangwal who deposed that he had prepared the rukka on a complaint received on 30.12.2015. he deposed regarding the arrest of the accused persons. He was also extensively cross-examined.
STATEMENT OF ACCUSED 9 Upon completion of prosecution evidence, statement of accused State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 3/15 persons were recorded u/s 313 Cr.P.C. wherein they denied all the allegations made against them and stated that the complainant is a habitual complainant having lodged complaints against several locality persons. Accused Vijay Pandey stated that the complainant was having enmity and was jealous.
10 Except accused Vijay Pandey, other accused did not opt to lead any DE. Vijay Pandey himself entered as a defence witness and deposed (DW1) that complainant was her neighbour who had filed several cases against the locality persons before the Special Executive Magistrate, before the Hon’ble High Court. He deposed that he has no monetary transaction with the complainant and the allegation were false. Thus, by way of his deposition he had tried to prove that complainant is a habitual litigant who had filed a number of cases against the other persons. He had also deposed that several complaints have been lodged by the RWA against the complainant and her family members.
11 Final arguments have been heard and record has been carefully perused. Ld. APP for the State submitted that the complainant has supported her case and has deposed against the accused persons. He contends that the testimony of the complainant shows that the accused Vijay Pandey used foul language against the complainant and the other accused also used to harass her and therefore, prosecution has successfully proved this case.
12 I have also heard the complainant in person.
State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 4/15 13 Per contra Ld. Defence Counsel has argued that the testimony of complainant is not worth reliance as she has substantially improved her version in Court. He argued that whatever PW1 had deposed before the Court was not stated by her to the police and this has been able to prove from the cross-examination of PW1. Ld. Defence Counsel argued that in such circumstances and when the complainant was making improvement and exaggeration, it is unsafe to rely on such witness.
14 Further, Ld. Defence Counsel has argued that PW1 during her cross-
examination has admitted that the accused persons had filed a police complaint against her prior to the present FIR and therefore, the complainant has a motive to falsely implicate the accused. It is further argued that PW1/A which is the complaint does not even mention the time, date or place where the alleged offending words were uttered. He argues that the complaint is completely vague and does not describes as to what were those offending words and what was the nature of harassment. Ld. Defence Counsel submits that the complaint is completely vague and general in nature and there are no specific allegation against the accused persons.
15 I have also heard the complainant. Complainant had argued that while filing he complaint, she was immature and was not aware about the nuances of law. She stated that she has no motive to falsely implicate the accused persons as she was subjected to immense harassment by the accused persons. She argued that she State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 5/15 categorically deposed in Court regarding the nature of harassment meted to her.
16 Having heard the prosecution, complainant as well as the Ld.
Defence Counsel it will be pertinent to note here the testimony of the complainant who is the only witness cited by the prosecution to prove the charges against the accused persons. However before adverting to her testimony it will be pertinent to reproduce here her complaint Ex.PW1/A which she gave to the police. The complaint is reproduced as under:
“Kindly arrange to register the FIR against my neighbour Vijay Pandey, Manoj and Anuj Singla, Rohit, Pankaj and Prerna. They are harassing & torturing us for the last four years. Even we don’t know most of the people but they always used to abuse and harass us because of they want us to vacate the house. I am just an issue to vacate the house. They are always disgracing and teasing me. Here, so many people harassing us but I do not mentioning their names. When they harass simultaneously, it really very difficult to tolerate everything. I am in deep trouble. They hcase me wherever I go and block my way. People comment and abuse me while going on the bike every night. They made my life miserable. Whatever they say which cannot be possible to mention everything here.
I want to know that a girl do not have the right to live respectfully? They are insulting me very badly. They are listening the mobiles and conversations of our house for which we had already complaint. They remark on our every action whatever we do in house. They are listening each & every words from my house. Here, so many people (some in the gali & some people in the market) listening. Though, it means something is fitted in my house. I don’t have evidence about all but I am suffering too much. We are living in suffocating atmosphere & cannot talk freely. They told us to quit the house, that’s why they are giving us severe pain.
Old couple and two unmarried girl, how are we teasing so many people?
State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 6/15 As per mentioned earlier, in future, any kind of trouble occurs in my life, they would be responsible for that.
So, it is requested in your kind honour to look into the matter sincerely & arrange for proper investigations, take strict action against them.”
17 The reason for reproducing the entire complaint was to appreciate her testimony before the Court and the contention of Ld. Defence Counsel that she has virtually improved the same while deposing before Court.
18 Now, coming to her deposition before the Court. PW1 during her examination in chief deposed that in the month of February, 2002 accused Vijay Pandey, Anuj, Manoj and Rohit took advantage of her old parents and harassed her after taking alcohol. Then she made complaint to the police and DCP Directed the police to produce accused Vijay Pandey. She deposed that accused Vijay Pandey gave confession in the presence of Nandan Bhadoria, Kiran Pal to the SHO. Thereafter, the accused persons kept quite for few days and then they again started abusing after taking drinks. She deposed that they were compelled to sell their house below market value. She stated that there was a conspiracy which was hatched by Shiv Nandan and Kiran Pal to compel them to sell their house below the market value and the deal got cancelled after giving double the amount of earnest money. She deposed that on that day when the deal was cancelled accused used abusive language against her. (The one abusive word is mentioned in the testimony of PW1 and is not reproduced herein). She deposed that accused Vijay Pandey had broken a wall adjacent to her house and had also made a drill and State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 7/15 when her mother went to check the same, accused Vijay Pandey did not allow to enter in his house. She deposed that she filed the complaint in the year 2005 Ex.PW1/A but the FIR was registered on 30.12.2015. she deposed that the accused in response to her complaint, made a complaint against her and her parents. She further deposed that in the year 2005 some shopkeepers and neighbours make complaint against her to the police authorities and in the year 2010 again complaint was made against her by some 30 more persons.
19 PW1 has further deposed that in the year 2004 when the deal was cancelled, the accused persons had spread a rumour that they had taken her topless photograph from bathroom and the local people also supported the said rumour. She deposed that she was very much disturbed by this rumour and the locality persons were against her and her family to displaced her. She also went on to depose that the sister of the accused Rohit Goel and Vijay Pandey used some electronic gadgets and they also installed some microphone and speakers in the wall adjacent to their house. She deposed that as they have taken Rs.1 lac on behalf of accused Vijay Pandey, her parents had to return him Rs.2 lacs which was double the amount. She deposed that accused persons used to abuse her by passing vulgar remarks and whenever she used to go anywhere they obstructed their way.
20 PW1 was extensively cross-examined. In her cross-examination she admitted that she do not remember the exact date, time, month and year of incident however, it continued for 3-4 years prior to her State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 8/15 complaint. It is pertinent to reproduce here the cross-examination of PW1 recorded on 28.10.2017. She deposed that she had mentioned the fact that accused Vijay Pandey, Anuj Singhla and Rohit Goel took the advantage of her old parents and they harassed her after taking alcohol in the month of February 2002 in Ex. PW1/A. When confronted with her complaint Ex. PW1/A where it was not so recorded, she stated that she was not mature enough at that time due to this reason it might have skipped. She admitted that she had not mentioned the fact in her complaint Ex. PW1/A that she also made complaint to the police many times and the then DCP Ms. Khan directed the police to produced accused Vijay Pandey who gave confession in presence of witnessrd namely Shivnandan Bhadoriya, Kiran Pal to the then SHO Gyan Singh PS New Ashok Nagar.
21 During cross-examination she admitted that she had not mentioned in Ex. PW1/A that all the accused persons remained quite for few days only, and they again started abusing after drinking liquor. She again admitted that she had not mentioned in Ex. PW1/A that she was so much harassed by these accused persons, that she were compelled to sell her house and there was a conspiracy which was hatched by Shiv Nandan Bhadoriya, Kiran Pal, to compel them to sell their house below the market value. Moreover, she admitted that she had not mentioned in Ex. PW1/A that a deal was cancelled for sale of her house after giving double of earnest money of Rs. 2 lakhs. She further admitted that she had not mentioned in Ex. PW1/A that the said deal was canceled in the month of March 2004 and on the said day accused Vijay Pandey used a foul word against her (the foul word is State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 9/15 not reproduced herein). She further admitted that she had not mentioned in Ex.PW/A that in the night accused Vijay Pandey has also broken the wall adjacent to her house and also made a drill into her house. She again admitted that she had not mentioned in Ex.PW1/A that her mother went to the house of accused Vijay Pandey and she was not allowed to enter the house.
22 She admitted that she had not mentioned in Ex.PW1/A regarding the filing of complaint by some sixty shopkeepers/neighbours in the year 2005 against her. She admitted that in Ex. PW1/A she has not mentioned that a rumour was spread by accused persons that they had taken her photograph from the bathroom and as a result of same she was disturbed by the said rumour and prestige was used as a device for vacating the house.
23 PW1 in her cross-examination further admitted that she has not mentioned in Ex.PW1/A that they had taken Rs. 1 lakh on behalf of accused Vijay Pandey and her parents had to return him Rs.2 lakhs as double amount. She stated that she had mentioned the fact in her complaint Ex.PW1/A that accused persons used to harass her by passing abusing and vulgar remark, whenever she used to go and they used to obstruct her way and used to follow her or the accused used to watch her by using electronic device. She was confronted with the statement Ex. PW1/A where it is not so recorded. PW1 stated that she could not mention the above mentioned fact in her complaint due to the immaturity.
State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 10/15 24 Thus, from the cross-examination referred above, it is quite clear that whatever the witness deposed before the Court all those facts she never reported to the police in her initial complaint. The reason offered by the complainant regarding omission of these facts was that she was immature at that time and she does not knew that these facts ought to have been stated. However, this explanation offered by complainant under the facts and circumstances does not appears to be reasonable and probable as in a criminal trial the burden is always upon the prosecution to prove the allegation beyond doubt. The law in this regard is well settled that mere marginal variation in the statement cannot be dubbed as improvement as the same may be elaboration of the statement made by the witnesses earlier. The omission which amounts to contradiction in material particulars i.e. which goes to the root of this case and which materially affect the trial render the testimonies of the witnesses liable to be discredited. The law in this regard is well settled and there are a catena of judgment.
“12. In Kushal Chand v. State (NCT of Delhi) the Hon‘ble High Court of Delhi in Criminal Appeal Number of 109/2008 in its order dt. 07.03.2014 has observed in para no.12 & 13 as under:
“It is surprising that the trial Court has based its conclusions regarding the guilt of the Appellant for the offence under Section 306/498A IPC only on the depositions of PWs 4 and 7 which, as noted hereinbefore, were substantial improvements over their previous statements under jSection 161 Cr.PC. In Sunil Kumar Sambhudayal Gupta v. State of Maharashtra 2010 XI AD (SC) 500, the Supreme Court again explained the legal position that “where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 11/15 evidence”. It was added that in view of the “discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt”.
13. In Subhash v. State of Haryana 2011 (1) JCC 41 SC, the Supreme Court held that the statements of witnesses who made substantial improvements over their statements under Section 161 Cr.PC did not inspire confidence.”
25 It is pertinent to produce the observations made by Hon’ble Supreme Court in Sunil Kumar Shambhu Dayal Gupta v. State of Maharashtra, 2010 XI AD (SC) 500 wherein it was observed in para no.15 to 17:
15. Where the mission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106)
16. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide : Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334)
17. In case, the complainant in the FIR or the witness in his statement under section 161Cr.PC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide : State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC 440).
State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 12/15 26 It is in this backdrop, I find that there is a lot of improvement made by PW1 in her statement before the Court. The witness for the first time deposed that the accused persons used to harass her after taking alcohol; that she was compelled to sell her house below the market value and there was a conspiracy; that the accused Vijay Pandey was returned a sum of Rs.2 lacs which was double the amount of Rs.1 lac taken from him; that the accused used to harass her by passing abusive and vulgar remarks and whenever she used to go anywhere they used to obstruct her and follow her. Perusal of her complaint shows that the allegation made by her in Ex.PW1 were completely vague and general in nature. No specific incident mentioning the time, date, place was mentioned. There are only sweeping allegation that accused persons were harassing her, teasing her, chased her and blocked her way. In such circumstances, unless a specific incident is pointed out, it is difficult to rely on the general allegation made by the complainant.
27 Moreover, during her cross-examination she admitted that she has not placed any copy of the agreement regarding sale purchase of her house to the police. With respect to the other accused persons, she stated that they were harassing her family to get her house vacated and in order to support the accused Vijay Pandey. Accused Vijay Pandey has categorically denied in his evidence that he had any sort of monetary transaction with the complainant at any point of time. In such circumstances, the burden was on the complainant to have proved that there was a deal regarding sale of her house with the accused Vijay Pandey and as the deal could not mature, she had to State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 13/15 pay double the earnest money. No evidence of this sort has been placed on record. Rather in her cross-examination she had admitted that accused persons were having enmity with her and they have already filed a police complaint against her and her parents in the year 2004 prior to her complaint. Thus, it shows that the relationship between the parties were not cordial as cross-complaints were filed by both the sides.
28 She further admitted during cross-examination that she had searched her house but did not find incriminating articles i.e. any technical device. She further admitted that a team of Delhi Police also searched her house but nothing was found. The version of the complainant itself shows that she was only having the suspicion that the accused persons had fitted a sort of device to which they are keeping a watch on her activities. Complainant’s case in itself only based on a suspicion and suspicion has no place in a criminal trial.
29 Thus, in view of the forgoing discussion, I find that the evidence on record do not prove beyond doubt the charges levelled by the complainant against the accused persons. Though Ld. Counsel has argued at length that the complainant has filed a number of complaint against various persons. It is not out of place that complainant during her cross-examination had admitted regarding the same. However, I need not dwell on the said issue as from the facts and circumstances discussed hereinabove the prosecution has been unable to prove the charges against the accused persons. The testimony of complainant is full of improvements and there are material exaggeration in her State Vs. Vijay Pandey etc. FIR No. 564/05 Page No. 14/15 testimony. No date, time and place regarding the incident was stated by her in her initial complaint and the allegation are only general in nature. In these circumstances when two views are possible then the view which favours the accused ought to be taken.
30 Accordingly, in view of the foregoing discussion, accused are acquitted for the offences as charged against them.
31 As per section 437-A of the Cr.P.C as inserted vide the Amendments Act which came into force on 31.12.2009, the accused shall furnish fresh personal bond and surety bond in sum of Rs. 10,000/- within one week from today which shall remain intact for a period of six months from today.
ANNOUNCED IN THE OPEN COURT ON 31.08.2018 (AMIT ARORA) ACMM (EAST)/KKD/31.08.2018 Certified that this judgment was directly typed by my personal assistant on computer directly on my dictation.
Digitally signed AMIT by AMIT ARORA (AMIT ARORA) Date: ARORA ACMM (EAST)/KKD/31.08.2018 2018.08.31 17:06:21 +05'30'
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