1 IN THE COURT OF SHRI [ENTITY] : ACMM/ NORTH EAST, KARKARDOOMA COURTS, DELHI. State Vs. [ENTITY] etc. FIR No.374/97 U/[SECTION] 365/323/342/348/120B [ACT] P.S.: Shahdara Date of Institution of case: 20.7.98 Date on which judgment is reserved: 19.9.09 Date on which judgment is delivered: 25.9.09 J U D G M E N T
a) Sl. no. of the case 329/03 b) Date of commission of offence 29.12.95 c) Name of complainant [ENTITY] s/o Shri [ENTITY] r/o A/157, Chander Vihar, Mandawali, Fazalpur, Delhi.
d) Name of accused, his parentage 1. [ENTITY] s/o [ENTITY] r/o 1/10224, gali no.1, West Gorakh Park, Shahdara
2. [ENTITY] s/o [ENTITY] r/o F70, Hanuman Gali, West Jyoti Nagar, Shahdara.
[ENTITY] s/o [ENTITY] r/o A218, Suraj Mal Vihar, Delhi92.
[ENTITY] s/o late [ENTITY] r/o C326B, [ENTITY], Chajjupur, Shahdara.
e) Offence complained of or proved U/[SECTION] 348/323/365/342/34 [ACT] f) Plea of the accused Pleaded not guilty g) Final order :Acquitted h) Date of such order :25.9.09 j) Brief reasons for the just decision of the case
1. In brief the prosecution case against all the accused persons is that on 29.12.95 at about 9 am in the factory of [ENTITY] belonging to [ENTITY] and situated in gali no.2, Northern Chajjupur, falling within the jurisdiction of PS Shahdara, all of them in furtherance of their common intention had wrongfully confined [ENTITY] the complainant for the purpose of return of the amount of loan taken by complainant and voluntarily caused simple injuries to [ENTITY] by beating him and abducted him by keeping him forcibly in a car and taking him to Seelampur court for the purpose of getting some documents executed by the complainant and thus, secretly confined him in the aforesaid factory and thereby committed an offence punishable u/[SECTION] [ACT]. On a complaint ([ENTITY]) made by the complainant to the police, rukka was prepared in this regard by IO, present FIR was registered against the accused and they were arrested in the present case and later on were released on bail by court orders.
2. After completion of investigation charge sheet was filed against the accused in the court. Charge for the offence punishable under [SECTION][SECTION] [ACT] was framed against the accused on 8.7.99 to which they had pleaded not guilty and claimed trial.
3. In order to substantiate its version, prosecution had examined 12 witnesses. PW 1 the alleged eyewitness of the offence Smt. [ENTITY] had turned hostile and had not supported the prosecution case.
4. PW 2 [ENTITY] was the D.O and had proved the carbon copy of FIR as Ex.PW 2/A. He was not crossexamined by accused despite opportunity given to them in this regard.
5. PW 3 Shri [ENTITY] had deposed that on 29.12.95 while he was working as Sr. Manager with Canara Bank, Shankar Nagar branch, one saving a/c no. 13806 was opened in the name of [ENTITY] and another a/c no. 13807 in the name of [ENTITY]. Both of them came to him personally and both accounts were opened on 29.12.95. He had further deposed that on next day, [ENTITY] had withdrawn Rs. 1,90,000/ through withdrawal slip. Original documents cheques etc which were seized by police were already proved in the other FIR no. 115/96. This witness was also not crossexamined by Ld. defence counsel despite opportunity given to him in this regard.
6. PW 4 [ENTITY] had deposed that he had sold half portion of his house No.B13 of North Chajjupur, gali no.2, Shahdara, Delhi to one [ENTITY] and one room was constructed on the ground floor which was sold to [ENTITY]. Further he had deposed that he had sold the house for a consideration of about Rs. 2 lacs and that he had no knowledge about the quarrel which had taken place between [ENTITY] and [ENTITY]. [ENTITY] had come to that house which was sold by him being relative of the purchaser of the house. Again, this witness was also not crossexamined by Ld. defence counsel despite opportunity given to him in this regard.
7. PW 5 [ENTITY] had deposed that on 29.12.95 at about 9 a.m. servant of [ENTITY] met him and had told him that [ENTITY] had called him (the witness). Witness, however, did not know the name of that person. Witness had thereafter reached the factory of [ENTITY] which was situated near the house of witness. When witness entered gate, the gate was closed by the servant. On reaching inside the factory, he found 67 persons present there namely [ENTITY], [ENTITY], Nirmal. Witness had correctly identified accused persons present in court. He had further deposed that one [ENTITY] and one [ENTITY] were also present there along with two other persons. However, witness could not remember their names. Witness had pointed out towards 4th accused present in court. Name of accused was [ENTITY]. [ENTITY] and [ENTITY] were not present in court whom he was able to identify if shown to him. It was deposed further by witness that factory was not covered by any roof and the same was opened. Accused [ENTITY] had asked him to return his money of about Rs. 10,000/ which were due to him till date. Witness requested that he had no money that day and had also requested for granting him some time for arrangement of money. On this, accused persons started beating him due to which he had received injuries. Witness used to reside as tenant in the house of his brotherinlaw. Accused persons told him either to return the money or to transfer his house in their names to which witness had objected as he was not the registered owner thereof. Thereafter accused persons took him forcibly in a car, number of which he could not remember, to old Shahdara court which belonged to [ENTITY]. Accused persons had also taken his photo inside the car and forcibly obtained his signatures on an agreement deed. Thereafter accused persons took him to Canara Bank at Krishna Nagar. Though he had remained in the car whereas accused persons had brought some documents from bank and had also obtained his signatures on some documents and blank papers and on a blank cheque there and had got filled up that cheque forcibly by him of the sum of Rs. 90,000/. Again he was taken to factory by accused persons and he was secretly confined there. He got relieved by accused persons on 30.12.95 (wrongly typed in testimony as 30.12.96) in evening. He made written complaint to PP incharge Jyoti Nagar Shahdara PS vide Ex.PW 5/A. Police took him to GTB hospital where he was got medically examined. Thereafter he had reached at PS Shahdara where SI [ENTITY] and SHO [ENTITY] along with all the four accused persons present in court and with [ENTITY] and [ENTITY] were found present. SHO made enquiry from PW 5 and directed SI [ENTITY] to arrest all the accused persons. [ENTITY] had taken them to PP Jyoti Nagar but had not arrested the accused persons and had told witness to make an enquiry. On 2.1.96 witness along with [ENTITY] reached at Canara Bank and SI [ENTITY] had obtained some documents from there regarding account of accused and had also taken the details/ statements from the bank. On 30.7.97, case was registered on complaint of witness against accused persons.
8. During crossexamination by Ld. defence counsel, witness had deposed that factory was opened and large number of persons were seeing the incident at that time out of them one was wife of [ENTITY]. Car of accused persons was parked at road outside Seelampur court. Glasses of the car were closed and he could not raise alarm. Witness had not received any visible injuries. He had made signatures two times on the back side of the cheque. Witness had denied to the suggestion that said cheque was encashed by him. Witness had further denied the suggestion that forged agreement was made with accused persons in order to cheat them.
9. PW 6 [ENTITY] was posted as [ENTITY], Jyoti Nagar PS Shahdara on the intervening night of 29/30.12.95. At about 7.45 am he got contacted by one [ENTITY] whom he directed to see Incharge SI [ENTITY] and SI [ENTITY] gave him one copy with directions to receive the same without its original which he received accordingly by putting his signatures and seal on the same. During crossexamination by Ld. defence counsel, witness had denied to the suggestion that he had connived with [ENTITY] and had fabricated the statement.
10. PW 7 [ENTITY] had deposed that he was constable in Delhi Police in the year 1997 and had retired from service in year 2000. He knew [ENTITY] by face and name due to the fact that he was residing in his locality. This witness was not crossexamined by Ld. defence counsel despite opportunity given to him in this regard.
11. PW 8 Inspector [ENTITY] was the IO of the case who had deposed about the investigation of the case and had proved site plan Ex.PW 8/A, notice u/[SECTION] [ACT] to [ENTITY] for producing the car as Ex.PW 8/B, his reply Ex.PW 8/C and seizure memo of car as Ex.PW 8/D.
12. During crossexamination by Ld. defence counsel, witness had deposed that he had received the file in person through road certificate from Shahdara. He had not remembered how many pages were received by him in the file which was marked to him for investigation. He had recorded statements of five witnesses. However, 7 statements in total were recorded. Two supplementary statements of [ENTITY] were recorded on 30.9.97 and 13.4.98 respectively. The supplementary statement of 13.4.98 was in respect of MLC of injured [ENTITY]. Witness had denied to the suggestion that he had not recorded any statement of [ENTITY] on 13.4.98. He had further deposed that site plan was prepared at the instance of [ENTITY] but the signature of [ENTITY] was not obtained on the same. He had personally given the notice u/[SECTION] [ACT] to [ENTITY] at his office. When he had proceeded for handing over the notice u/[SECTION] [ACT], he had also made a D.D at his office. However, copy of said D.D entry has not been placed on record. The above said car was taken into possession at PS Shahdara on 26.3.98 and entry regarding the same was made in PS Shahdara. The colour of the car was white. He could not recollect whether the colour of the car was mentioned in the seizure memo or not. He had further denied to the suggestion that he never visited the office of [ENTITY] for giving him notice u/[SECTION] [ACT] He had denied to the suggestion that on notice, he had not obtained signature of any person as a witness only due to the reason that he had never visited the office of [ENTITY]. He had not remembered what was situated in the east and west directions of the place of occurrence. He had though volunteered that he could tell the same only by seeing the site plan. He had not remembered as to whose houses were shown in site plan. He had further volunteered that he could tell this fact only after seeing the site plan. He had though made the enquiry from the persons whose houses were shown in site plan but had not recorded their statements. Witness had denied to the suggestion that he had not recorded the statement of any of those persons only due to the reason that they were not supporting the case of complainant. Lastly, witness had denied to the suggestion that he had not conducted the proper investigation.
13. PW 9 Inspector [ENTITY] proved rukka prepared by him as Ex.PW 9/A and got registered the case. He had recorded statements of bank officers [ENTITY] and [ENTITY] and also statements of witnesses [ENTITY], Smt. [ENTITY] and others. Accused [ENTITY], [ENTITY] and [ENTITY] were formally arrested on 14.8.97 and released forthwith as they were on anticipatory bail. Accused [ENTITY] was formally arrested as he was also on anticipatory bail. Thereafter the investigation was transferred to District Crime Cell. This witness was not crossexamined by accused persons despite opportunity given to them in this regard.
14. PW 10 [ENTITY] took accused [ENTITY] to GTB hospital for medical examination on 31.12.1995 and handed over MLC to Ct. [ENTITY]. IO had recorded his statement. This witness was also not crossexamined by accused persons despite opportunity given to them in this regard.
15. PW 11 [ENTITY] had deposed that on 31.12.95, he had sent [ENTITY] for medical examination to GTB hospital through Ct. [ENTITY] who gave him MLC after medical examination which he gave to SI [ENTITY]. IO had recorded his statement on 25.11.97 when he was posted in PS Bhajanpura. This witness again was not crossexamined by accused persons despite opportunity given to them in this regard.
16. PW 12 [ENTITY], record clerk GTB hospital had proved MLC Ex.PW 12/A. The witness was not crossexamined by accused persons despite opportunity given to them in this regard.
17. Thereafter, the PE was closed.
18. During statement of accused persons u/[SECTION] [ACT], entire incriminating prosecution evidence had been put to them to which they had denied as incorrect and false and stated that they were innocent and had been falsely implicated in this case. Accused persons had failed to adduce any evidence despite opportunity given to them and ultimately the same was closed vide orders dt. 3.9.09.
19. I have heard Ld. APP for State as well as Ld. defence counsel appearing for all the accused persons and have carefully gone through the record.
20. If the testimonies of the witnesses as well as material produced by them on record are examined carefully and applied to the ingredients of offences alleged to have been committed by the accused persons, then there remains no doubt in my mind in holding that the prosecution has miserably failed to substantiate its allegations beyond reasonable doubt against the accused persons.
21. For the purpose of an offence of abduction as defined in [SECTION] [ACT] and punishable u/[SECTION] [ACT], it is essential that person abducted must either be compelled by use of force or by any deceitful means to leave from any place.
22. If the evidence of PW 5 as well as his tehrir is examined in this context, then it becomes amply clear that neither in his examinationinchief nor in his tehrir Ex.PW 5/A, complainant has anywhere stated that either he was compelled by use of force to reach the factory of [ENTITY] nor any deceitful means were applied or played upon him so as to induce him to reach that factory rather complainant went to the factory of accused [ENTITY] on his own knowing fully well that he owed some money to the accused and he must have been called in relation to the said loan only and for no other purpose whatsoever.
23. In the light of aforesaid fact, the allegations of abducting the complainant by the accused persons in furtherance of their common intention with an intent to secretly and wrongfully confine the complainant do not sustain any further.
24. Now if the evidence available on record is applied to ascertain the commission of offence as defined u/[SECTION] [ACT] pertaining to wrongful confinement of a person as well as for an offence u/[SECTION] [ACT] pertaining to an offence of wrongful confinement of a person to extort any confession or to compel him for restoration of any property is concerned, then it becomes amply clear that even if the allegations made by the complainant are presumed to be correct for the sake of arguments, in that eventuality as well, no confession was ever attempted to be extorted by the accused persons from him. So far as restoration of property is concerned, complainant himself had admitted that property stood in the name of his brotherinlaw and by applying common sense, it does not appeal to a reasonable, rationale and prudent mind that accused persons would have compelled him to execute the documents of the property in which he was residing without even verifying the actual ownership and title thereof. In his testimony, complainant himself had taken sharp U turn and has spoiled his own case because in his tehrir Ex.PW 5/A, he had stated that it was the accused [ENTITY] himself who had called him at his factory on the date of incident whereas in his examinationinchief before the court, he had reverted back from the earlier stand and stated that servant of [ENTITY] had called him. Further it has been deposed by PW 5 during his examinationinchief that after he entered inside the factory, the servant of [ENTITY] closed/bolted the gate of the factory whereas in his tehrir Ex.PW 5/A, the same allegation has been attributed by him upon accused [ENTITY] and his accomplices without mentioning anything about the presence of their servant as well.
25. Besides the aforesaid anomalies in the testimony, it also appears that during his deposition before the court, complainant had also tried to improve upon his earlier version as narrated earlier by him in tehrir Ex.PW 5/A because in his examinationinchief, he has stated that he had told the accused persons that he was not the owner or holding any title in the property which belonged to his brotherinlaw and hence, he was unable to transfer the same in their name being not a registered owner thereof whereas in his earlier tehrir, no such fact find its mention therein.
26. It is interesting to note here that in his tehrir, complainant had stated that he himself got rescued from the clutches of the accused persons whereas in his examinationinchief, he had stated that he was got released by the accused persons on 30.12.95 (wrongly typed as 30.12.96) in the evening. This has created a sharp anomaly and contradiction in the version of complainant because document mark X which is nothing but a replica of tehrir Ex.PW 5/A reveals that it was received by PW 6 on 30.12.95 but original of same has never been produced on record. Hence, photo copy mark X does not inspire any confidence and the tehrir in this case has admittedly been made on 30.7.97 i.e. more than after 1 years from the date of incident.
27. Although prosecution has not been able to place on record such material and evidence which could have proved the allegations of an offence u/[SECTION] 348 [ACT] against the accused persons. However, in the cross examination of PW 5 itself, a suggestion was put to him which was denied by him that PW 5 had not got himself medically examined on the very same day when he was released by the accused persons for the reason that he had not sustained any injuries as alleged by him. Prima facie it appears to be an admission on the part of accused persons regarding retaining the custody of complainant which may amount to an offence of wrongful confinement as defined u/[SECTION] [ACT]. However, Shri [ENTITY], Ld. counsel appearing for accused persons has vehemently argued that this is nothing but a stupidity or typographical mistake as nobody would ever dare to indulge into putting a suggestion which is self incriminating in nature. I do not find any merits in this contention because despite lapse of more than 7 years after conclusion of evidence of PW 5, no remedial steps for correction of error, if any, were taken by the accused persons. Hence, at this stage, accused are estopped from raising such frivolous pleas to suit their conveniences. It has also been argued by Ld. defence counsel that since this fact amounts to a circumstance which was not put to the accused persons during their examination u/[SECTION] [ACT] or while recording their statement u/[SECTION] [ACT], hence it cannot be read in evidence against them. Reliance in this regard has also been placed on [PRECEDENT] in the case titled as [PRECEDENT] as well as on [PRECEDENT] SC case titled as [PRECEDENT]. However, I do not agree with this preposition of the Ld. Defence counsel as well because if examined carefully, it does not reflect the circumstance but it is a statement pertaining to existence of a fact and since it has come from the side of accused persons themselves, hence same was not required to be put to them during their examination u/[SECTION] [ACT] or [SECTION] [ACT] as the case may be. However, despite holding same, I am of the considered opinion that this part of the crossexamination cannot be read against the accused persons in isolation with the remaining testimony of PW 5. Although it may be presumed that complainant might have spent some time in the company/custody of the accused persons but neither in his tehrir nor in his examinationinchief he had ever stated that he was so confined wrongfully by the accused persons against his own free wish and will and without his consent. Even in his examinationinchief, he had not stated that he had made any hues and cries or any attempt to get out of the factory at the time when its gate was being locked/closed by or at the instance of accused persons. Since the complainant who was a major and had not objected to the closure of factory gate, hence, it cannot be stated that he was wrongfully confined by the accused persons against his wishes and will. Therefore, I am of the considered opinion that no offences as defined u/[SECTION] [ACT] are made out against the accused persons. Admittedly, there is a delay of about 1 years in the registration of FIR which has not been properly explained by the prosecution in this case and prima facie it appears to be a counter blast by the complainant to FIR No.115/06 in which he himself was facing the trial as an accused for an offence u/[SECTION] [ACT]. Interestingly, though IO who himself was the then SHO of P.S. Shahdara had stated that he was required to investigate the present case as per the directions of senior officials but no such directions have been placed on record by him. Hence, the possibility of his conniving with the complainant to falsely implicate the accused persons in the present case can also be not ruled out.
28. In view of the aforesaid discussion, I have no hesitation in holding that prosecution has miserably failed to prove its case beyond reasonable doubt against the accused persons. Accordingly, all the accused persons are acquitted of the charges punishable u/[SECTION] [ACT]. Their PBs and SBs stand cancelled and discharged. File be consigned to Record Room after completion of other necessary formalities.
ANNOUNCED IN OPEN COURT ON 25.9.09) ([ENTITY]) ACMM/02, North East, KARKARDOOMA COURT[SECTION]DELHI