Delhi District Court
State vs Mohd Sarvar@Sameer on 30 October, 2023
THE COURT OF SH. UDBHAV KUMAR JAIN, MM-04,
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
STATE v. MOHD. SARVAR @ SAMEER & ANR.
FIR No. -: 16/2021
Police Station -: Madhu Vihar
Section(s) -: 382/34 IPC
Cr. Case No. -: 1996/2021
1. CIS number : DLSH020034122021
2. Name of the complainant : Sh. Yashwant Singh
S/o Sh. Ram Murti Singh
R/o Flat No.35, Jai Apartment,
I.P. Extension, Madhu Vihar,
Delhi.
3. Name of the accused, : 1) Mohd. Sarvar @ Sameer
parentage & residential S/o Sh.Fakruddin
address R/o H.No.302, Gali No15, F-Block
Pakki Khajuri Khas, Khajuri Khas,
Delhi.
2) Mohd. Imran
S/o Sh. Abdul Hakeem
R/o Jaeem Ka Makan, Gali No.3,
Ram Ghat Wazirabad, Delhi.
4. Offence complained of or : 382/34 IPC
proved
5. Date of commission of : 20.01.2021
offence
6. Plea of the accused : Pleaded not guilty and claimed trial.
7. Final Judgment : Acquittal
8. Date of judgment/order : 30.10.2023
FIR No.16/2021 State vs. Mohd. Sarvar @ Sameer & Anr. Page no. 1 of 8
Date of Institution: 08.04.2021
Date of Reserving Judgment: 30.10.2023
Date of Pronouncement of Judgment: 30.10.2023
Duration: 2 years 6 months 22
days
JUDGMENT
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution against the accused persons is that on 20.01.2021 at about 7 am the complainant was returning home from Ajanta Market Mother Dairy. In between the Vijay Laxmi Apartment and Sita Ram Apartment, opposite Arya Nagar Apartment, two boys riding a black colour pulsar motorcycle came from behind and asked him to give them his gold ring weighing 10 grams. Feeling threatened, complainant gave them his gold ring, but complainant could not see the number of motorcycle. As such, it is alleged that the accused persons committed the offence under Sections 382/34 of the Indian Penal Code, 1860 (hereinafter, "IPC") for which FIR No. 16/2021 was registered at Police Station Madhu Vihar, Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of FIR, the investigating officer (hereinafter 'IO') conducted investigation and on culmination of the same, chargesheet against the present accused persons namely Mohd. Sarvar @ Sameer S/o Sh. Fakruddin and Mohd. Imran S/o Sh. Abdul Hakeem for the alleged commission of offences u/s 382/34 IPC was filed. Ld. Predecessor of this Court took cognizance of the offences vide order dated 22.04.2022. After taking cognizance of the offence, accused persons who were produced before the Court, were supplied the copy of documents relied upon in the FIR No.16/2021 State vs. Mohd. Sarvar @ Sameer & Anr. Page no. 2 of 8 charge sheet in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC").
3. Since prima facie offences against the accused was made out, this Court vide order dated 11.07.2023 framed charge against accused Mohd. Sarvar @ Sameer and Mohd. Imran for the offence punishable u/s 382/34 IPC, to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused persons to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 Yashwant Singh DOCUMENTARY EVIDENCE Ex.PW1/A Statement of complainant ADMITTED DOCUMENTS U/S 294 CrPC Ex. P1 FIR No. 16/2021 Ex. P2 Certificate u/s 65B Ex. P3 & DD No. 11A and DD No. 12A dated Ex. P4 20.01.2021 Ex. P5 DD No. 51A dated 07.02.2021 Ex. P6 TIP proceedings
5. Yashwant Singh (PW-1) in his examination-in-chief deposed that he worked in Nature Wash, Wazirpur. On 20.01.2021 at about 7:00 am he was going walking towards his home after taking milk from Mother Dairy and when he reached between Vijaya Laxmi Apartment and Ram FIR No.16/2021 State vs. Mohd. Sarvar @ Sameer & Anr. Page no. 3 of 8 Apartment two persons on black colour pulsar motorcycle came from his back and stopped him. One person tried to show some weapon (however he did not show the weapon) and said "apni anguthi uttar kar de de", another person caught hold of him. Pillion ride threatened him and snatched his gold ring from his middle finger of right hand. Thereafter both the accused ran away from the spot. He called 100 number and police came to the spot and recorded his statement Ex.PW1/A bearing his signature at point A. Police prepared site plan at his instance. Police also checked the CCTV Cameras of the area, but no camera was installed covering the place of incident. Police also inquired public persons regarding the incident and accused but no clue was found. Police registered FIR regarding incident. Witness failed to identify the accused persons.
5.1.Since witness was not disclosing the complete facts and was not identifying the accused persons, Ld. APP for the State cross-examined the witness. In his cross-examination, attention of witness was drawn towards both the accused persons present in the Court by pointing towards them however, witness again failed to identify both the accused persons. Witness denied the suggestions that he was intentionally not identifying the accused persons, that he was deliberately not identifying the accused persons as he wanted to save them from punishment of court and that he was not identifying the accused persons as he had compromised with them, or he had been won over by them. No cross- examination of the witness was conducted by Ld. Counsel for accused.
6. The whole case of prosecution was dependent on the testimony of complainant PW-1 as he was the person, as per prosecution, who saw the accused persons on the motorcycle committing the alleged offence by FIR No.16/2021 State vs. Mohd. Sarvar @ Sameer & Anr. Page no. 4 of 8 accused persons, but complainant PW-1 has turned hostile to the case of prosecution. The identity of accused persons in a criminal trial is of paramount importance and no person can be indicted for criminal liability unless his identity is established beyond any shadow of doubt. In the present case, since the complainant who was the material witness as well as eyewitness of the case has not supported the version of the prosecution, no fruitful purpose will be served to examine other witnesses as they are formal in nature and even if their testimonies are ever taken together, they will fail to establish either the presence of accused persons on the spot or guilt of the accused persons.
7. Prosecution evidence was closed, vide separate order passed today, as recording of any further prosecution evidence in the present case would result into wastage of judicial time, money, resources and will also cause unnecessary burden upon the accused persons. In this regard, reliance is placed upon a Division Bench Judgement of the Hon'ble High Court of Delhi in Govind & Ors. vs. The State (Govt. of NCT of Delhi) 104 (2003) DLT 510 wherein it was held that:
"...In cases where the ultimate chance of conviction is very bleak for there is no prospect of the case and again conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion of a future date."
8. Right to speedy trial is constitutionally guaranteed fundamental right of the accused persons. The present case pertains to an FIR of the year 2021 and continuing the trial any further, when it is clear that prosecution can never hope to prove its case against the accused, would be tantamount to violation of right to speedy trial of the accused. It has been held in P.Ramchandra Rao vs. State of Karnataka AIR 2022 SC 1856 that the FIR No.16/2021 State vs. Mohd. Sarvar @ Sameer & Anr. Page no. 5 of 8 court should exercise its power available under Criminal Procedure Code to give effect to the right of speedy trial to the accused. Similar observations were made in Pankaj Kumar vs. State of Maharashtra AIR 2008 SC 3057. Furthermore, in Satish Mehra vs. Delhi Administration & Anr. 1996 JCC 507 the Hon'ble Supreme Court has held that valuable time of the court should not be wasted merely for formal completion of procedure when there is no chance of the trial culminating in conviction.
STATEMENT AND DEFENCE OF ACCUSED
9. Since nothing incriminating has come on record against the accused persons, recording of statement u/s 313 CrPC stands dispensed with. Accused persons submitted that they do not wish to lead any defence evidence.
ARGUMENTS
10. I have heard the Ld. APP for the State and Ld. Counsels for the accused persons. I have also given my thoughtful consideration to the material available on record.
POINT OF DETERMINATION
11. After going through the record and considering the material available on record, the only point of determination that is left is whether the prosecution can substantiate its case and prove the guilt of accused persons beyond reasonable doubt when the material witness turned hostile.
REASONS FOR DECISION OF THE CASE
12. The general burden of proof on the prosecution is to prove the guilt of accused beyond reasonable doubt. The presumption of innocence of the FIR No.16/2021 State vs. Mohd. Sarvar @ Sameer & Anr. Page no. 6 of 8 accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the settled position of law.
13. The main witness/eyewitness of the prosecution turned hostile in the present case on the point of identity of accused persons. It is pertinent to note that under Indian law, the evidence of hostile witness is not discarded completely. The legal maxim, "false in uno false in ombnibus" is not applicable in India. With respect to the evidentiary value of hostile witness, it was observed by the Apex Court in the case of Rohtash Kumar vs. State of Haryana (2013) 14 SCC 434, as under:
"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
14. Now, if the whole evidence available on record is sift through then it is evident that the whole case of prosecution was dependent on the testimony of complainant PW-1 who saw the accused persons committing the alleged offence. PW-1 has failed to identify the accused persons. Neither presence of accused can be confirmed on the spot nor there is anything on record to connect the accused persons with the commission of the offence. Even no public witness was brought by the investigating agency to prove the alleged offence. As such, even if all the other prosecution witness cited in the list of witnesses were to be examined, the case of the prosecution could not be proved.
15. Furthermore, it has been held by Hon'ble Supreme Court in S.L. Goswami (Dr) v. State of M.P., (1972) 3 SCC 22 that the accused is FIR No.16/2021 State vs. Mohd. Sarvar @ Sameer & Anr. Page no. 7 of 8 entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution. The same view was reiterated by the Hon'ble Apex Court recently in Nanjundappa & Anr. v. The State of Karnataka 2022 SCC OnLine SC 628. In the present case, as already noted above, the prosecution could not discharge the onus of proving the ingredients of offence due to non-appearance of complainant and the other material witness turning hostile. Thus, accused persons Yogesh Kumar and Dheeraj Arora are entitled to benefit of doubt.
CONCLUSION
16. In view of the above discussion, the accused persons namely, Mohd. Sarvar @ Sameer S/o Sh. Fakruddin and Mohd. Imran S/o Sh. Abdul Hakeem are hereby found not guilty. Accordingly, accused persons Mohd. Sarvar @ Sameer and Mohd. Imran are hereby acquitted of the offences under section 382/34 IPC.
File be consigned to record room after due compliance.
Announced in open court today i.e., 30.10.2023.
(UDBHAV KUMAR JAIN) MM-04:SHD:KKD This judgment contains 8 pages all signed by the presiding officer.
FIR No.16/2021 State vs. Mohd. Sarvar @ Sameer & Anr. Page no. 8 of 8