1. That on 04.07.2011 at about 11.30 am at N1/192, Arjun Nagar, New Delhi accused Kalamuddin wrongfully restrained the way of complainant Kanwaljeet Kaur by putting waste material in front of the straicase and on her objection threatened to kill and rape her and to kill her family members and with intention to insult her modesty made vulgar gestures and thereby committed the offence punishable under section 341/506(ii)/509 IPC.

2. Charge sheet was filed. Accused was summoned. Documents were supplied to the accused. Arguments addressed. Prima facie charge u/s 341/506(ii)/509 IPC was framed against the accused to which he pleaded not guilty and claimed trial and thereafter the matter was fixed for PE.

3. In order to prove its case, the prosecution examined three witnesses in all as under :-

(i) PW1 Ct Anuj Pal deposed before the court that on 04.07.2011 he joined the investigation of present case along with IO SI Pawan Tomar and went to residence of complainant and IO prepared the site plan at her instance. Inquiry was made but accused was not found at his residence and only her wife was there. Thereafter, they returned to PS where accused was already present. Complainant identified him at PS. Accused got enraged and started abusing the complainant. Accused was arrested and his personal search was conducted. Medical of accused was got conducted. Witness further stated that IO recorded his statement and he was discharged.

In his cross examination by ld. Defence counsel it is stated by witness that he was assigned the duty of beat area of Humayupur, Arjun Nagar and Krishan Nagar. Information of incident was received by IO. They reached at the spot at about 9/9.30 pm. No resident of locality were present on the spot. IO made inquiry from nearby residents. They remained at spot for around 10-15 minutes. Site plan was prepared after inquiry from 2-3 persons. Accused was present outside the reporting room when they reached at PS.

(ii) PW2 was complainant Ms.Kawaljeet Kaur who deposed before the court that on 04.07.2011 at about 11.30 am some domestic articles i.e drum, shoes, marble stones belonging to accused Kalamuddin were situated on the common staircase. She told the accused to remove those articles but accused using vulgar language and gesture towards her threatened her to kill her family members. Witness further deposed that accused said to her that 'maa betiyon ne dhandha bana rakha hai. Police wale or jitne tere yaar hai unko bula le yahi pe dho dho ke marugna. Police walon ko bulati hai ghar pe daru pilati hai, jitne in maa betiyo ke himayti hai sab ko yahi pe katugna. Iske baap or bhai ke na tukre kar diye to bataiyo. Sali dhandha karti hai. Gandh macha rakha hai muhhale main. Court me le jake tere se shadi karunga. Thereafter, she rushed to her house as accused was about to pull her inside the house, and bolted the room from inside to save herself. She went to PS and gave written complaint. She along with two police officials came at the spot and police prepared site plan at her instance. Accused was not present at the house. Inquiry was made from his wife. She along with police officials came back to PS where accused was entering in PS and she identified her. Police interrogated the accused at PS, at that time also he started abusing her. Accused was arrested. Police recorded her supplementary statement. Police had taken photographs of place of occurrence.

In his cross examination by Ld. Defence counsel it is stated by witness that she cannot tell the exact number of houses situated in her neighbourhood. She had inquired as to why the material was dumped into staircase. None else was present at that time. It is denied by witness that construction work was carrying on in one of the accused's room. It is admitted that incident occurred at first floor. She did not know any person in the name of Ramesh residing at ground floor of N-192. There was delay in lodging complaint as she was scared and elaborate discussion with family members. Family of the accused was known to her.

(iii) PW3 SI Pawan Tomar deposed before the court that on 04.07.2011 he received written complainant from complainant upon which tehrir was prepared and FIR was registered. Thereafter, he along with complainant went to the spot and called Ct. Anuj at the spot. Inquiry was done from neighbours but none had joined the investigation. Photographs of place of occurrence were taken. Site plan was prepared. Inquiry was made from the wife of accused Kalamuddin. Thereafter, he along with Ct. Anuj and complainant returned back to PS where accused was already present. Accused was interrogated. Accused hurled abuses during interrogation to the complainant and become violent. Accused was arrested and his personal search was conducted. Statement of witnesses were recorded and after completion of investigation challan was filed before the court.

In his cross examination by ld. Defence counsel it is stated by witness that the complaint had already written a complainant before handing over to him. No endorsement was made by DO on the complaint. Voluntarily stated it was done after registration of FIR. Complainant met him at around 7.40/7.45 pm. Rukka was sent at around 8 pm. Witness further stated that he cannot say how many complaints were already pending on behalf of accused at that time. He reached at the house of accused at around 8.40/8.45 pm. No one met him outside the house of the complainant. He did not know whether complainant was accompanied by someone to PS. No notice was served to the persons who refused to join the investigation. It is admitted by witness that he had not seen any construction work being going on inside the house of accused. He did not remember whether he had made arrival entry on reaching back to PS. It is denied by witness that accused was earlier arrested by him u/s 107/151 CrPC.

4. Thereafter, PE was closed. Statement of accused was recorded where accused preferred to lead DE. Accused produced four defence witnesses as under :-

(i) DW1 Haripal deposed before the court that he was neighbour of accused. He had heard the loud voice of fighting only once when Dilbagh and his family members were beating the mother of Kalamuddin. He did not have direct link with Dilbagh. Dilbagh was known to him since he was residing there. Witness further stated that the dispute started between Kalamuddin and Dilbagh only after hindrance created after construction of second floor. Dilbagh also removed the water tank of one widow lady residing in the same premises at different flat. Witness further stated that Dilbagh Singh and his family members unnecessarily implicated the accused Kalamuddin in various criminal cases.

In his cross examination by Ld. APP for the state it is stated by witness that accused Kalamuddin was know to him for the last 12 years. He had no enmity against Dilbagh Singh. Police did not inquire from him about the incident. He had never visited the PS. He had visited the mother of the accused at hospital. He had not seen the incident. Accused was not present at the time of incident. He cannot say where he was at that time.

(ii) DW2 Pawan Kumar deposed before the court that he was neighbour of the accused. The family of Dilbagh was also know to him who were not of cordial nature. He had not heard about the bad behaviour of the complainant with any girl except daughter of Dilbagh Singh. He also tried to pacify the dispute but could not succeed. He also visited the PS but they did not give them proper hearing.

In his cross examination by ld. APP for the state it is stated by witness that he had not seen the incident and heard about the same from neighbours after 2/3 days of incident. He did not have cordial relations with Dilbagh Singh.

(iii) DW3 Rani deposed before the court that she was living adjacent to residence of Kalamuddin. The staircase mainly used by the family of Kalamuddin. She had never heard or seen Kalamuddin teasing or fighting with daughter of Dilbagh Singh. On 05.04.2012 in the evening Dilbagh Singh along with his wife and daughter beat up and dragged the daughter of Kalamuddin. Kalamuddin was not present at that time. When they had raised hue and cry, mother of Kalamuddin also reached there who was also mercilessly beaten up by Dilbagh and his family members. Witness further stated that Kalamuddin was very helpful and respected in the area.

In his cross examination by ld. APP for the state it is stated by witness that she had not seen the incident on 04.07.2011 and did not hear any loud noise on that day. She usually remained in her house.

(iv) DW4 Sarabjeet deposed before the court that he was residing in the same premises where Kalamuddin was residing. Approximately one and half years ago he heard the loud noise and saw Dilbagh Singh and his wife and daughter were fighting with mother of Kalamuddin. Police reached Enclave before Kalamuddin reached there. He was detained by police officials.

In his cross examination by ld. APP for the state it is stated by witness that he knew Kalamuddin for the last 15 years and was residing there for the last 16 years. The quarrel had taken place in the street in front of house of 192, Arjun Nagar, New Delhi. Witness further stated that he cannot say about date, month of the incident but it was of year 2012. Dilbagh Singh, his wife and his daughter were beaten by daughter of accused Kalamuddin and when the mother of the accused reached to save her she was also beaten by the family of Dilbagh Singh. He did not tell to the police officials about the incident he had seen. He did not make any compliant to PS or Superior Authority regarding illegal detention of Kalamuddin by police officials.

5. Thereafter, DE was closed. Arguments were addressed by Ld. APP for the state and ld. counsel for accused. It is stated by ld. Counsel for accused that incident took place in residential area and it is hard to believe how the IO could not manage to examine even a single witness to corroborate the testimony of the complainant.

6. As per section 509 IPC "whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be ...".

7. In Roop Chand V/s State of Haryana, 1999 (1) CLR 69, hon'ble Punjab and Haryana High Court has held that "it is well settled principle of the law that the Investigation Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to join the investigation, the Investigating Officer must have a proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".

What inspires from the testimonies of the PWs is that no public witnesses were joined during the investigation. Non joining of public witness in the proceedings has cast serious doubts upon the sincere efforts made by the Investigating Officer to observe the guidelines to be followed during investigation. Interestingly, none of the police officials, involved in the investigation of the matter had given notice to the public persons, who had refused to join in the investigation. Even the details of the general public who turned down the request for getting involved in the police investigation were not available on record. In the case titled as Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused.

8. In the case of Prem Singh Yadav vs. Central Bureau of Investigation, 178 (2011) DLT 529 [LQ/DelHC/2011/1450] , it was held that where it is possible to have both the views, one in favour of the prosecution and th other in favour of the accused, the later should prevail.

9. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligations to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana (P&H) (DB), 1997 (1) RCR (Crml) 662).

10. Moreover, the complainant seems to be an an interested witness and her complaint without corroboration cannot be believed as there are lot of improvement in the statement of the complainant in the court as compared to the statement given in the rukka on which the FIR was registered.

11. Although, the complainant has mentioned in her main complaint Ex.PW2/A that the accused abused her and when she objected accused made vulgar gestures to her and threatened her that he would kill her and her family members and would rape her if she will not withdraw her complaint. She has made several improvements in her deposition before the Court such as :-

i) the accused stated to her that "maa betiyon ne dhandha bana rakha hai. Police wale or jitne tere yaar hai unko bula le yahi pe dho dho ke marugna. Police walon ko bulati hai ghar pe daru pilati hai, jitne in maa betiyo ke himayti hai sab ko yahi pe katugna. Iske baap or bhai ke na tukre kar diye to bataiyo. Sali dhandha karti hai. Gandh macha rakha hai huhhale main. Court me le jake tere se shadi karunga" which she has not mentioned in her complaint/tehrir upon which FIR was registered.

ii) She has not mentioned in her complaint that accused was about to pull her inside the house and she bolted inside the room to save herself.

12. Moreover, from the evidence on record, and the statements of witnesses, it is an admitted fact that there is a previous enmity between the complainant and the accused and enmity is a double edged sword. Hence, the statement in the presence of so many improvements can not be relied upon.

13. Moreover, no public witness has been examined the area being a public place. Rather the cross examination of defence witness has only brought about the factum of previous enmity.

14. In such circumstances when the prosecution has failed to prove its case beyond reasonable doubt, the prosecution story seems to be doubtful and unreliable. Accordingly, the accused is acquitted of the offence u/s 341/506(ii)/509 IPC.

15. Bail bond to remain in force for a period of one month u/s 437A CrPC.

File be consigned to record room.