HAZZAN FARKHANDA NAAZ Vs. STATE

JUDGEMENT

(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.) 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.