Delhi District Court
State vs . on 15 May, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 2724/2017
CNR No. -: DLSH02-004541-2017
FIR No. -: 133/17
Police Station -: Seemapuri
Section(s) -: 392/411/34 IPC
In the matter of -
STATE
VS.
SHEKH AFSAR ALI
S/o Shekh Asgar Ali,
R/o Jhuggi E-44/A-34, New Seemapuri,
Delhi.
... Accused Person
1. Name of Complainant :- Salman
2. Name of Accused :- Shekh Afsar Ali
Person
3. Offence complained of :- 392/411/34 IPC
or proved
4. Plea of Accused person :- Not Guilty
5. Date of Commission of :- 05.03.2017 & 06.03.2017
offence
6. Date of Filing of case :- 30.06.2017
7. Date of Reserving Order :- 15.05.2023
8. Date of Pronouncement :- 15.05.2023
9. Final Order :- Acquitted
Argued by -: Sh. Pramod Kumar, Ld. APP for the State.
Sh. Nishant Kumar Tyagi, Ld. LAC for the
accused.
JUDGMENT
1. The case of prosecution in brief is that on 05.03.2017 at about 07:45 PM at Bhatia Chowk Sauchalaya, ANKUR New Seemapuri, Delhi the accused in furtherance of common PANGHAL Digitally signed by ANKUR PANGHAL Date: 2023.05.15 15:33:19 +05'30' Cr. Case No. 2724/2017 State vs. Shekh Afsar Ali Page 1 of 9 intention of co-accused persons, who were not arrested, except one person namely Sameer, who was released during investigation, committed robbery of cash of Rs. 11,200/-, one identity card, some visiting cards and RC of motorcycle belonging to complainant bearing registration number DL-3SCA- 5641. It is further case of prosecution that accused on 06.03.2017, at unknown time, at MCD Park, near DTC Bus Depot, New Seemapuri was found in possession of cash of Rs. 1050/- and one ID card of complainant, which he was found retaining dishonestly, knowingly and having reasons to believe the same to be a stolen property. As such, it is alleged that the accused person has committed the offences punishable under section 392/411/34 of the Indian Penal Code, 1860 (hereinafter, "IPC") for which the present FIR was lodged in PS Seemapuri.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC). The accused person was arrested. Relevant record was collected. Final report under section 173 CrPC, was prepared against the abovenamed accused person and chalan was presented in the court on 30.06.2017. After taking cognizance of the offence, the accused person was summoned to face trial.
3. On his appearance, a copy of chargesheet was supplied to him in terms of section 207 of CrPC. On finding a prima facie case against the accused person, charge under section 392/411/34 IPC was framed against accused Shekh Afsar Ali on ANKU Digitally 02.03.2020. The accused person pleaded not guilty and claimed R signed by ANKUR PANGHAL PANG Date:
trial. 2023.05.15
15:33:41
HAL +05'30'
Cr. Case No. 2724/2017 State vs. Shekh Afsar Ali Page 2 of 9
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- Salman (Complainant) DOCUMENTARY EVIDENCE Ex. PW1/A :- Statement of complainant Ex. PW1/B :- Seizure memo of recovered articles Ex. PW1/C :- Disclosure statement of accused Ex. PW1/D :- Arrest memo of accused Ex. PW1/E :- Personal search memo of accused Ex. P1 :- ID card of complainant
5. Salman PW1 was examined in chief as he is the eye witness as well as complainant in the present case. PW1 was examined in chief on 28.01.2023 who deposed that on 05.03.2017 at around 07:45 PM he was going for toilet near wall of Bhatia Chowk and suddenly three persons came in the washroom. One boy caught hold his neck from back side and another boy removed his wallet from his pant and also took cash of Rs. 11,200/- from his wallet. After taking the same, they pushed him and ran away from the spot towards Sabzi Mandi, New Seemapuri. He further stated that he does not remember the accused. PW1 has identified his signature at point A on Ex. PW1/A, Ex. PW1/B, Ex. PW1/C, Ex. PW1/D and Ex. PW1/E. ANKUR PANGHAL His further examination was deferred for want of case property. Digitally signed by ANKUR PANGHAL Date: 2023.05.15 Cr. Case No. 2724/2017 State vs. Shekh Afsar Ali Page 3 of 9 15:33:51 +05'30' 5.1. On 11.05.2023 PW-1 was further examined in chief wherein he stated that he does not want to say anything else.
5.2. PW1 was cross-examined by Ld. APP and he denied the suggestion that accused along with his associate forcefully took out RC of his motorcycle bearing registration no. DL-13SCA-5641, some visiting cards and his identity card. He also denied the suggestion that he had told IO that he can identify the culprits, if shown to him. PW-1 also failed to identify the accused, in court, despite his attention being drawn towards the accused. He also denied the suggestion that accused was arrested at his instance or recovery was affected from the accused. He also denied the suggestion that site plan was prepared at his instance. PW-1 has identified his ID card Ex. P1 in court but stated that the cash of Rs. 1050/- does not belong to him.
5.3. PW1 was not cross-examined by Ld. LAC for accused despite opportunity being given in that regard.
6. Complainant Salman has given a separate statement on 28.01.2023 wherein he has submitted that the present case has been settled with the accused person and he wants to compound the matter with accused person.
6.1. In view of statement of complainant, the offence under section 411 IPC stands compounded between the complainant and accused Shekh Afsar Ali. Accordingly, accused Shekh Afsar Ali is acquitted for the offence punishable U/s 411 IPC.
ANKUR Digitally by ANKUR signed PANGH PANGHAL Date:
AL 2023.05.15
15:33:59 +05'30'
Cr. Case No. 2724/2017 State vs. Shekh Afsar Ali Page 4 of 9
7. Since, the prosecution has cited only one
independent/public witnesses in the present matter, who is the complainant himself and the witness has turned hostile to the case of prosecution. The identity of accused person and case property 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/eyewitness of the case has not supported the version of the prosecution, no fruitful purpose would have been served to examine other witnesses as they are formal in nature and even if their testimonies ever taken together, they will not establish the guilt of the accused.
8. Prosecution evidence was closed, vide separate order passed on 11.05.2023, as recording of any further prosecution evidence in the present case would have resulted in to wastage of judicial time, money, resources and would have also caused unnecessary oppression to the accused person who has anyhow faced the ordeal of the trial in the present case for last six years. In this regard reference may be made to a Division Bench Judgement of the Hon'ble High Court of Delhi passed in the case of 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."
8.1. Right to speedy trial is constitutionally ANKUR PANGHAL guaranteed fundamental right of the accused person. The present Digitally signed by ANKUR PANGHAL Date: 2023.05.15 15:34:09 +05'30' Cr. Case No. 2724/2017 State vs. Shekh Afsar Ali Page 5 of 9 case pertains to an FIR of the year 2017 and continuing the trial any further, when it is clear that prosecution can never hope to prove its case against the accused person would tantamount to violation of right to speedy trial of the accused. It has been held in P.Ramchandra Rao vs. Satte of Karnataka AIR 2022 SC 1856 that the 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 Mahrashtra AIR 2008 SC 3057. Furthermore, in Satish Mehra vs. Delhi Administration & Abr. 1996 JCC 507 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.
9. Since nothing incriminating has come on record against the accused person, recording of his statement under section 313 CrPC was dispensed with.
10. I have heard the Ld. APP for the state and Ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
11. It is argued by the Ld. APP for the state that evidence of hostile witness can be read on material points and it can be used to prove the offences charged against the accused. As such, it is prayed that the accused be punished for the set offences.
12. Per contra, the Ld. LAC for the accused has argued that the state has failed to establish its case beyond ANKUR reasonable doubt. Ld. Counsel has argued that main witness has PANGHAL Digitally signed by turned hostile and despite reading his evidence as a whole, ANKUR PANGHAL Date: 2023.05.15 15:34:18 +05'30' Cr. Case No. 2724/2017 State vs. Shekh Afsar Ali Page 6 of 9 nothing has come on record against the accused. As such, it is prayed that the accused person be acquitted for the said offences.
13. The accused person has been charged for the offence under section 392 IPC. For offence under Section 392 IPC, it has to be proved that the accused has voluntarily caused or attempted to cause death, hurt or wrongful restraint to any person while committing either theft or extortion, and it is to be further proved that other ingredients of the offence were fulfilled by the acts of the accused. For theft amounting to robbery, it is to be proved that the accused has voluntarily caused or attempted to cause death, hurt or wrongful restraint to the victim.
14. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by reducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
15. The main witness of the prosecution has turned hostile in the present case on the point of identity of accused person. It is pertinent to note that under Indian law, the evidence of hostile witnesses 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 ANKUR effaced, or wahed off the record altogether. The same can be PANGHAL Digitally signed by ANKUR PANGHAL Date: 2023.05.15 Cr. Case No. 2724/2017 State vs. Shekh Afsar Ali Page 7 of 9 15:34:30 +05'30' accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
16. Therefore, it has to be seen if the evidence of such hostile witness can be relied in part. In the present case, the evidence available on record is not sufficient to help the prosecution. PW1 has failed to identify the accused person. During his cross examination by Ld. APP, PW1 failed to identify the accused person despite drawing his attention towards him. Therefore, there is nothing on record to connect the accused with the commission of the offence.
17. Thus, even if the evidence of the hostile witness PW1 is considered partly, there is nothing to implicate the accused person in the present case. 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.
18. Furthermore, it has been held by the Hon'ble Supreme Court in Dr. S.L. Goswami vs. State of Madhya Pradesh 197 SCC (Crl.) 258 that the accused person are entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution.
18.1. To recapitulate the above discussion, to bring home the guilt of accused person, the prosecution was required to prove the offence under section 392 IPC beyond reasonable doubt. The star witnesses of the prosecution i.e., PW1 has turned completely hostile. There is no evidence to link the accused person with the crime charged against him. His identity as culprit is not proved during the trial. Further, the ingredients of the offence are not fulfilled from the material on record. In the ANKUR present case, as already noted above, the prosecution could not PANGHAL Digitally signed by ANKUR PANGHAL Cr. Case No. 2724/2017 State vs. Shekh Afsar Ali Page 8 of 9 Date: 2023.05.15 15:34:39 +05'30' discharge the onus of proving the ingredients of offences in question and identity of accused person and thus, the accused person is entitled to benefit of doubt.
19. Resultantly, the accused person namely, SHEKH AFSAR ALI S/o SHEKH ASGAR ALI is hereby found not guilty. He is hereby ACQUITTED of the offences under section 392/411/34 IPC.
21. File be consigned to record room after due compliance.
Announced in open court on 15.05.2023 in the presence of the accused. The judgment contains 9 pages and each page have been signed by the undersigned.
ANKUR Digitally signed
by ANKUR (ANKUR PANGHAL)
PANG PANGHAL
Date: 2023.05.15 MM-06, Shahdara District,
HAL 15:34:47 +05'30' Karkardooma Courts, Delhi
15/05/2023
Cr. Case No. 2724/2017 State vs. Shekh Afsar Ali Page 9 of 9