Delhi High Court
Hazzan Farkhanda Naaz vs State & Anr on 28 January, 2014
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : January 27, 2014
DECIDED ON : January 28, 2014
+ CRL.A. 368/2011
HAZZAN FARKHANDA NAAZ ..... Appellant
Through : Mr.Bhupesh Narula, Advocate.
VERSUS
STATE & ANR ..... Respondents
Through : Mr.Lovkesh Sawhney, APP.
None for Respondent No.2.
CORAM:
MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Present appeal has been preferred by the complainant-Hazzan
Farkhanda Naaz against the judgment dated 29.06.2010 of learned
Metropolitan Magistrate in FIR No.12/2003 registered at Police Station
Jama Masjid by which the respondent No.2-Ashima Begum was
acquitted. It is relevant to note that the State did not challenge her
acquittal.
2. I have heard the learned counsel for the appellant and have
examined the Trial Court record. Allegations against the respondent No.2
were that on 08.01.2003 at about 08.30 P.M. at house No.726, Haveli
Azam Khan, Kala Mahal, Jama Masjid, she committed house trespass
after breaking open the lock and committed theft of various articles
belonging to the complainant-Hajjan Farkanda Naaz. The First
Information Report was lodged on 10.01.2003. On 23.03.2003
respondent No.2 was arrested. Statements of witnesses conversant with
the facts were recorded. After completion of investigation, a charge-sheet
was filed against respondent No.2 in the court of learned Metropolitan
Magistrate. The prosecution examined seven witnesses. In 313
statement, the respondent No.2 denied complicity in the crime and
pleaded false implication. On appreciating the evidence and after
considering the rival contentions of the parties, the respondent No.2 was
acquitted by the trial court.
3. Counsel for the appellant urged that the trial court did not
appreciate the evidence in its true and proper perspective and for no valid
reasons ignored the cogent testimony of PW-1 (Afsari Begum) who had
witnessed the respondent No.2 breaking open the lock of the premises.
The respondent No.2 has violated the stay order granted in favour of the
complainant by the Civil Court. Not only she broke open the lock of the
premises in question, but was found present inside the house and
committed theft of various articles belonging to the complainant.
Contempt Petition is pending against her in the Civil Court.
4. The trial court has noted number of discrepancies,
contradictions and inconsistencies in the prosecution case. Civil Suit
between the parties was pending regarding the property in question where
the complainant was granted stay under Order XXXIX Rule 1 and 2 CPC.
For violation of the stay order, the complainant moved the Civil Court
only after a considerable delay on 04.02.2003. The delay has not been
explained. The trial court suspected the presence of PW-1 (Afsari
Begum) for cogent reasons at the spot. She was not acquainted with
respondent No.2 and had not seen her face at the time of alleged breaking
open of the lock. It was highly difficult for her to identify her (respondent
No.2) in the court. She did not give any features of the alleged trespasser.
She did not raise any alarm and did not challenge her (the respondent
No.2) for breaking of the lock of the house which belonged to the
complainant as per her testimony. The matter was reported to the police
on 08.01.2003 by filing a complaint. It is, however, not clear as to when
the complaint was filed in the police station. Ex.PW-5/A reveals that no
action was taken on the said complaint on that day and the FIR was
lodged after an inordinate delay of two days on 10.01.2003 at 06.50 P.M.
There is nothing on record to show if on 08.01.2003 or 09.01.2003 the
Investigating officer had visited the premises in question or had found the
respondent No.2 present inside the house after committing trespass or
breaking open the lock. Strange enough, name of PW-1 (Afsari Begum)
who had allegedly witnessed the incident does not find mention in the
complaint dated 08.01.2003. The complainant lodged another complaint
(Ex.PW-3/2) on 12.01.2003 with the police and introduced the name of
PW-1 (Afsari Begum) as eye-witness. The complainant further informed
about the theft of various articles which did not find mention in her earlier
report. The complainant did not explain as to how she was unaware of the
theft of so many articles from the house when she had come to know
about the alleged trespass on 08.01.2003 itself. Even after registration of
the case, the respondent No.2 was not apprehended or arrested. After her
arrest on 23.03.2003, no recovery of any stolen article was effected at her
instance. She was also not found present at any time during this
intervening period in the house in question. The police sought two days
police remand of respondent No.2 after arrest. The trial court was vigilant
not to grant any police remand and further admit her on bail the same day.
The trial court observed number of inconsistencies in the statement of
prosecution witnesses and the police witnesses. Statement of PW-1 was
not recorded under Section 161 Cr.P.C. No broken lock or hammer was
recovered during investigation. The Trial Court has given cogent reasons
for acquittal of respondent No.2 which needs no interference. The
prosecution was unable to establish its case against respondent No.2
beyond reasonable doubt.
5. The appeal filed by the appellant is unmerited and is
dismissed. Trial court record be send back forthwith. Observation in the
judgment will have no impact on the contempt petition pending before the
trial court in Civil Suit and it will be decided on its own merits.
(S.P.GARG)
JUDGE
JANUARY 28, 2014
sa
