Delhi District Court
Fir No. 360/11; State vs . Ashok Kumar Etc. Page 1 Of 25 on 30 October, 2014
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 05/12
FIR No. 360/11
P.S. Model Town
U/S: 364A/120B IPC
State
Versus
(1) Ashok Kumar
s/o Sh. Attar Singh
r/o H. No. 326, Gali no. 8,
Sarita Vihar, Mukundpur, Delhi
(2) Rupesh Singh @ Shampy
s/o Late Sh. Devender Rana
r/o H. No. A208, Gali no. 10,
Baba Colony, Sant Nagar, Burari, Delhi
(3) Bhanu Pratap @ Goldy
s/o late Sh. Devender Rana
r/o H. No. A208, Gali no. 10,
Baba Colony, Sant Nagar, Burari, Delhi
(4) Ketan Kumar @ Chetan
s/o late Sh. Ramesh Chander
r/o WZ258, GBlock,
Rishi Nagar, Rani Bagh, Delhi
FIR No. 360/11; State Vs. Ashok Kumar etc. Page 1 of 25
Date of Institution: 14122011
Date of arguments: 30102014
Date of judgement: 30102014
JUDGMENT
1. The case of the Prosecution, in brief, is that on 31082011, this case was registered u/s 364A IPC at PS Model Town on the complaint of Sh. Mahesh Ahuja who stated that in afternoon at around 4 pm, his son had gone to play basketball to NPL, Police Ground, Kingsway Camp and in the evening around 8 pm, he received call from his son's mobile no. 9899642213 and caller told him that his son Gogi was kidnapped. After about 10 minutes, his wife Smt. Monica Ahuja also got call from his son's mobile no. and kidnapper demanded Rs. 20 lacs from them. WT message was flashed to all SHOs in Delhi and all SSP's in India. CDR's were obtained. Next day on 01092011, kidnappers sent a box to complainant which was produced by the complainant to the police. CD script was noted and along with CD placed on the file. Raids were conducted at different places in Burari, Bakhtawarpur and TransYamuna but no clue was found. On 07092011, complainant came to PS and stated that he gave Rs. 8 lacs to kidnappers. His statement was recorded u/s 161 Cr.P.C. FIR No. 360/11; State Vs. Ashok Kumar etc. Page 2 of 25 Complainant produced a CD containing recorded conversation between him and kidnappers. The CD was taken into police possession and its script was written in presence of complainant. On 12092011, kidnapped child Mohit Ahuja @ Gogi was recovered from PS GRP Bareilly Railway Station, UP and he was produced before CWC and then handed over to his parents. Statement of victim Mohit Ahuja was recorded u/s 164 Cr.P.C. On 15092011, accused Ashok Kumar was arrested on a secret information and his confessional statement was recorded. Rs. 50,000/ was recovered from the possession of accused Ashok Kumar which was his share out of the ransom amount. Accused refused for TIP. Accused Ashok Kumar was identified by the complainant Mahesh Ahuja as the person who picked the katta of ransom amount and went after sitting behind a boy on motorcycle. Search was made for the remaining accused but they could not be found. On 29102011, NBWs were obtained against accused Rupesh @ Shampy, Bhaskar @ Goldy and Ketan Kumar. In search of accused Goldy and Shampy, police team also visited Guwahati, Assam but they could not be found. On 02122011, NBWs against accused Gurmeet Singh @ Guri were obtained but he was also found absconding. After completion of investigation, chargesheet u/s 364A/120B IPC FIR No. 360/11; State Vs. Ashok Kumar etc. Page 3 of 25 was filed against accused Ashok Kumar.
2. It is further the case of the prosecution that on 13022012, information was received vide DD no. 36A, PS Model Town that four accused persons namely Ketan @ Chetan, Rupesh @ Shampy, Bhaskar @ Goldy and Gurmeet Singh @ Guri were arrested by the Special Staff and they were sent to J/C. Accused were arrested in this case also. TIP proceedings were conducted and three accused namely Ketan @ Chetan, Rupesh @ Shampy and Gurmeet Singh @ Guri refused to join TIP proceedings. Accused Bhaskar @ Goldy was identified by victim Mohit Ahuja in the TIP. All the accused confessed their involvement in the present case and motorcycle used in the kidnapping was recovered at the instance of accused Ketan Kumar @ Chetan. During investigation, accused Gurmeet Singh Sandhu @ Guri was declared juvenile on 28032012 by the court and his final inquiry report was submitted before JJBIII, Kinsgway Camp. All the accused namely Ketan Kumar @ Chetan, Gurmeet Singh @ Guri, Bhaskar @ Goldy and Rupesh @ Shampy were clearly identified by victim Mohit Ahuja as the persons who kidnapped him. Voice samples of Ketan Kumar @ Chetan was obtained through FSL. No clue was found about absconding accused Yogesh Kumar. Supplementary chargesheet FIR No. 360/11; State Vs. Ashok Kumar etc. Page 4 of 25 u/s 364A/120B IPC was filed against accused Ketan @ Chetan, Rupesh @ Shampy and Bhaskar @ Goldy. On 18102012, process u/s 82 Cr.P.C. was issued against accused Yogesh Kumar by the court and on 22032013, he was declared PO. One CD provided by the complainant and having recorded conversation between the complainant Mahesh Ahuja and kidnapper was provided by the court for comparison. The CD along with certified copy of script of CD along with voice sample of accused Ketan @ Chetan was sent to FSL Rohini for comparison. On 21082013, FSL result along with 2 sealed parcels were submitted in the court. Hence, the accused Yogesh Kumar had been declared absconder and thereafter, supplementary chargesheet was filed against him u/s 364A/120B/174A IPC.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 120B/364A IPC r/w/s 120B IPC was framed against accused Ashok Kumar, Rupesh Singh @ Shampy, Bhanu Pratap @ Goldy and Ketan Kumar @ Chetan to which they pleaded not guilty and claimed trial.
4. I have heard the Ld. defence counsel and Ld. Amicus Curiae for accused persons and Ld. APP for the State and have perused the entire records.
FIR No. 360/11; State Vs. Ashok Kumar etc. Page 5 of 25
5. The Ld. counsel and Ld. Amicus Curiae for the accused persons argued that PW5/victim, PW4 and PW6 parents of PW5 have not supported the case of the prosecution. PW5 could not identify the accused as the same persons who kidnapped him. PW4 and PW6 are not the eyewitnesses to the incident. There are no public witness to the arrest, personal search, seizure memo, site plan and disclosure statements of the accused persons. Mobile Phone, voice recording. The arrest, personal search and disclosure statements of the persons and recovery are doubtful. No independent public person was joined in the investigation and there are contradictions in the testimonies of PWs. The remaining witnesses are formal witnesses. The IO has not conducted the investigation fairly and the accused persons have been falsely implicated in this case.
6. The Ld. APP for State argued that accused persons kidnapped PW5 for ransom. PW6/ complainant produced a CD containing recorded conversation between him and the kidnappers. The victim was recovered from the Bareily Railway Station, UP. The amount of Rs. 50,000/ was recovered from accused Ashok Kumar as his share in the ransom amount. The accused also refused for TIP. The motorcycle used in the commission of offence was also FIR No. 360/11; State Vs. Ashok Kumar etc. Page 6 of 25 recovered. Voice samples of accused Ketan Kumar @ Chetan for comparison were also received from the FSL. Coaccused Yogesh Kumar is absconding. The accused persons cannot take benefit of contradictions in the testimonies of PWs or faulty investigation, if any.
7. The prosecution has examined PW1 to PW13 till date. Let us examine the testimonies of PW5 and PW6. PW5 Mohit Ahuja is the star witness in this case who has been stated to have been kidnapped by the accused persons. PW5 stated that when he remained with the persons wearing the monkey cap who used to give food, PW5 could not see their faces. PW5 admitted that he was shown the papers by the police before recording of his statement and he was asked by the police officials, if he wanted to make his case stronger, he should make statement as tutored by them. Therefore, PW5 followed the instructions of the police. During cross examination by Ld. Addl. PP for the State, PW5 stated that on 18.02.2012 he had gone to Rohini Jail and had identified accused Bhanu Pratap @ Bhaskar in the judicial TIP before a Magistrate. However, PW5 voluntarily stated that the Ld. Judge during TIP asked him as to whether he knew any of the persons standing in the line and he replied that he knew the person as he used to come at FIR No. 360/11; State Vs. Ashok Kumar etc. Page 7 of 25 Police ground to play basketball. PW5 further voluntarily stated that he had signed the TIP proceedings without reading. PW5 denied that juvenile Harman and accused Rohit met him at Vinayak Hospital who were having Splender motorcycle with them or they told him that let they go to Gola Restaurant and he sat on the motorcycle and reached Gola Restaurant and after some time Ketan also reached there. PW5 further denied that he had stated so in his statement u/s 164 CrPC Ex.PW5/B. PW5 also denied that thereafter, all three forced him to go to Mukundpur or that they had told him that there was birthday party of their friend at Mukundpur or he declined them to accompany them and went for his house or at that point of time, Rohit showed a gun to him and forced him to sit on motorcycle or due to fear, he sat on the motorcycle. PW5 denied that motorcycle was ridden by Rohit and PW5 was made to sit in the middle between Rohit and Harman forcibly or Harman was sitting as pillion rider on the motorcycle or they forcibly took him to Mukundpur and on the way they kept on threatening him to kill his family or they took him to a flat at Mukundpur which place he claimed to identify or they had tied a piece of cloth on his mouth and tied his hands and legs and blindfolded him or put him inside a box bed or there were some holes for passing the air. PW5 further denied that he was FIR No. 360/11; State Vs. Ashok Kumar etc. Page 8 of 25 confined in the bed for six hours or in the late night one person namely Yogesh came there and all four took him out and gave him water to drink and again thereafter, put him into the bed box or they all kept watch there or in the morning of the next day he was taken out from the bed and they continued to threat him or he was given lunch in the noon time and thereafter, kept him in a confinement in a room. PW5 further denied that from their conversation, he felt that they had gone to talk to his father or at about 6.30 / 7.00 pm, accused Ketan pushed him and told him that "chal teri baat tere dady se karwani hain" or thereafter, they removed the clothe from his eyes and took him out or he was taken to a field. PW5 also denied that in the same manner he remained in their custody on 03.09.2011 or on 04.09.2011, accused Bhaskar @ Goldy came inside the room and showed one country made pistol which was having one cartridge inside and was having two other cartridges in his hand or he was threatened regarding himself and his family or in that manner PW5 remained in their custody till the morning of 07.09.2011.
8. PW5 also denied during crossexamination by Ld. APP for State that on 07.09.2011, accused Rohit and Bhaskar took him to ISBT Kashmere Gate in an Auto or they were having country made FIR No. 360/11; State Vs. Ashok Kumar etc. Page 9 of 25 pistol with them and told him that if he raised any noise they would kill him or he was very much frightened or that due to the same, he did not raise any alarm or thereafter, they forcibly took him to Meerut in a DTC Bus. PW5 further denied that thereafter, he was taken to Bijnaur in a roadways bus or he was kept at Shiv Kutir Ashram there or in the next morning accused Ketan and Harman(Juvenile) came there or from their conversation, he came to know that his father had paid a ransom amount to the tune of Rs. 08.00 lacs to them. PW5 also denied that they started to discuss with them that if he was allowed to go then he would disclose the names of all the persons or he had come to know from their conversation that accused Ashok and Yogesh had been sent to collect the ransom amount or thereafter, he was taken to Nazibabad and was kept there after threatening for three days or once he was beaten also or thereafter, on 11.9.2011 in the noon time, he was taken to Chandak Railway Station and from there to Lakasar Junction. PW5 further denied that thereafter they planned to go to Lucknow and on 11.09.2011 he was made to sit in a train for Lucknow at about 09.50 hours or at that time accused Bhaskar, Rohit, Harman (juvenile) and accused Ketan with him or Ketan was left with him to keep vigil on him. PW5 also denied that he had jumped from the train after FIR No. 360/11; State Vs. Ashok Kumar etc. Page 10 of 25 duping accused Ketan. PW5 specifically denied that he had claimed to identify accused Bhaskar @ Goldy, Yogesh @ Chidi, Rohit @ Shampi, Harman @ Gauri and Ketan or these persons had kidnapped him for ransom and wanted to kill him after getting the ransom. PW5 further denied that he had gone to PS on 24.02.2012 to know about the progress of his case and had come to know that police had arrested four kidnappers who had kidnapped him and he had identified those four persons i.e. Ketan @ Chetan, present in the Court and Guri @ Harman (juvenile) who were involved in kidnapping him and Bhanu Pratap @ Goldy and Rupesh Singh @ Shampi who joined subsequently with the kidnappers and had identified them very well who were involved in his kidnapping and extorted ransom from his father. The statement Ex. PW5/PA from portion A to A was read over to PW5 but he denied having made any such statement. PW5 also stated that he came to know about the arrest of accused persons subsequently many times ago but he had not made any application before the police or any Court of law or any forum stating that they were not the persons involved in this case, though he has been keeping himself hale and hearty and pursuing his other works including studies. During cross examination by Ld. defence counsel, PW5 admitted that he did not FIR No. 360/11; State Vs. Ashok Kumar etc. Page 11 of 25 state anywhere the name of the accused persons (present in the court) as the offenders/kidnappers who kidnapped him. In reply to a question whether the accused persons present in the court were the persons who kidnapped him or not, PW5 specifically replied in negative and stated that he did not think so but he can say that the accused persons present in the Court did not kidnap him.
9. During crossexamination by Ld. Addl. PP for the State, PW6 Mahesh Ahuja/ complainant/ father of PW5 admitted that he had not stated in his statement marked A to the police that on 02092011 in the noon time he received a call from kidnapper who told him that a packet was lying at juice shop in front of Mahender Enclave and instructed him to collect the same. PW6 further admitted that he had also not stated in his statement mark A to the police that when they got collected the packet from there and opened the same it was found containing one toy wrapped in a packet and one CD and he produce the same in the PS before the IO. PW6 also admitted that he had also not stated to the police in his statement mark A that the police officials kept them in a white colour cloth and thereafter he along with IO and constable watched that CD and IO recorded the manuscript of said CD word to word which was also signed by him. PW6 identified his signature on FIR No. 360/11; State Vs. Ashok Kumar etc. Page 12 of 25 seizure memo Ex. PW5/X but stated that he cannot say the document Ex. PW5/X was fully written before it was signed by him or not and voluntary stated that in that period of 13 days he was in such mental trauma and shock that he could not tell what was going on in his life. PW6 admitted that during entire investigation and proceedings he did not have any type of conversation with accused Ketan and never received any phone call from Ketan.
10. It is evident from the testimonies of PW5 being eyewitness and PW6 being the complainant/ father of PW5 have not supported the case of the prosecution. Even, crossexamination of PW5 and PW6 conducted by the Ld. APP has not yielded fruitful result to the prosecution.
11. Let us further examine whether PW3, PW4, PW6, PW9 and PW13 have supported the case of the prosecution on the aspect of mobile phone and voice recording. The complainant/ PW6 stated in his statement Ex. PW6/A that he received a call from his son's mobile no. 9899642213 but PW3 Sh. Anuj Bhatia, Nodal Officer, Vodafone Mobile Services Ltd., stated that as per record, the mobile phone 9899642213 was provided to one Rinku Chaturvedi w/o Sh. Dharani Dhar r/o 2201, Kailash Nagar, Delhi. PW13 Dr. C. P. Singh, Asstt. Director (Physics), Forensic Science Laboratory, FIR No. 360/11; State Vs. Ashok Kumar etc. Page 13 of 25 Rohini, Delhi stated that the voice exhibit of speakers Ex. Q1 in the audio files in the CD Ex. 1 and Ex. S1 were the voice of the same person i.e. Ketan @ Chetan but when CD Ex. PW5/P1 was played in the Laptop and video clipping was shown to PW4 Ms. Monika Ahuja, the video clipping depicted one boy whose eyes were wrapped (blindfolded) holding one newspaper "Times of India" (English), however, there was no voice being heard at that stage. PW4 admitted in her crossexamination by the Ld. defence counsel that the recording was not done in her presence. PW4 did not tell the time of recording of her statement by the police at PS. PW6 Mahesh Ahuja/ complainant denied that the transcript of CD having the voice of his son, kidnapper and himself. PW6 stated that Ex. PW6/C bears his signature at point A and denied that script of CD was taken into possession in his presence. PW6 voluntarily stated that his signatures were obtained by the police on blank papers. PW9 SI Rakesh Rana stated that no chargesheet was filed qua accused Ketan till 09.04.2012 and admitted that he was not having any documentary proof upto 09.04.2012 that the voice in the recording is of Ketan. PW9 admitted that no legal assistance was provided to accused Ketan at the time of recording of his voice sample. PW9 did not obtain the voice samples of complainant and FIR No. 360/11; State Vs. Ashok Kumar etc. Page 14 of 25 his family members. PW9 also admitted that in this case, the complainant on his own recorded the voice of the accused Ketan when he made telephone calls to him.
12. Let us also examine whether arrest, personal search & disclosure statements of the accused persons, site plan, recovery & seizure of the currency notes, articles and other memos have been proved by the prosecution. PW2 ASI Parmod Kumar stated that the position of traffic booth was not shown in the site plan. PW2 further stated that public persons were not offered their search. PW2 also stated that public persons or the family members of accused Ashok were not called at the time of conducting his personal search. PW2 stated that IO did not put any specific mark on the currency notes prior to converting the same into parcel. IO did not prepare any sample seal of seal RR. PW2 further stated that no public witness joined the investigation at the time of recovery. No specific identification mark was put on the currency notes. IO had not signed on those currency notes nor the accused Ashok Kumar had signed the same. PW2 admitted that such type of currency notes were easily available with everyone. PW2 stated that no separate search memo was prepared regarding seizing of money from the accused. IO had not recorded the serial numbers of the FIR No. 360/11; State Vs. Ashok Kumar etc. Page 15 of 25 currency notes in the recovery memo Ex. PW2/A. PW2 stated that he had stated to the IO in his statement that Rs. 50,000/ was received by accused Ashok as a ransom amount along with other accused. PW2 was confronted with the statement recorded u/s 161 Cr.P.C. Ex. PW2/DA, where it was not so recorded. PW6 Mahesh Ahuja/ complainant admitted that he had not stated in his statement MarkC to the police that on 20.9.2011, he visited the PS Model Town to know the progress of his case and met the IO SI Rakesh Rana before whom he saw one person was in his custody and PW6 identified him to be the same person who had picked up the bag of currency notes and left from there on a motorcycle which was being driven by another boy. PW6 denied that he had identified the accused before the IO on 20.09.2011 when he visited the Police Station to know the proceedings of his case to be the same person who had picked up the bag containing currency notes at Burari Nala and left from there on a motorcycle which was being driven by another person. PW6 admitted that he had not stated in his statement Mark B to the police that on 07.9.2011, he visited the Police Station Model Town and stated that he can identify those two persons who had picked up the packets of currency notes amounting to Rs. 8 lacs. PW6 denied that he had seen those two persons who FIR No. 360/11; State Vs. Ashok Kumar etc. Page 16 of 25 picked the currency notes of sum of Rs. 8 lac which was thrown by him near Burari Nala. PW8 Ct. Baikunth in his crossexamination stated that he did not recall the name of the train by which they went to Bareily from Delhi.
13. PW9 SI Rakesh Rana did not prepare any site plan of the playground. PW9 stated in his crossexamination that the fact that "I had made enquiry from the Caretakers employed at the said Playground but PW9 had not recorded his statement. From the enquiry, it was revealed that the victim had not gone to the said playground on the date of incident" was not mentioned in the chargesheet filed in the Court. PW9 admitted that he had not recorded any supplementary statement of complainant Mahesh Ahuja pertaining to the fact which had come to his knowledge that the victim had not gone to the playground on the date of incident. PW9 had not obtained the details of currency notes amounting to Rs. 8 lakhs from the complainant. PW9 had not mentioned the details of currency notes amounting to Rs. 50,000/ in the seizure memo. PW9 did not put any mark of identification or his initials on the alleged currency notes. PW9 admitted that he had not got conducted the TIP of the seized currency notes. PW9 admitted that signatures of the complainant were not obtained on each page of the FIR No. 360/11; State Vs. Ashok Kumar etc. Page 17 of 25 transcript. PW9 also admitted that he had not seized the recording device which was used for converting the conversation into CD. PW9 admitted that the toy Ex. P4 was easily available in the open market and no case particulars were mentioned on Ex. P4. In Ajay @ Chotu Vs. The State, 2012 [2] JCC 1261, it was held by the Hon'ble High Court of Delhi that three conflicting versions undermine the prosecution's versions about arrest of the accused. Principle laid down by the Hon'ble Apex Court has been followed that the circumstances surrounding arrest of the accused and doubts emerging from the prosecution's case can be a ground for acquittal.
14. In the present case, there is no public or independent witness to the arrest, personal search and disclosure statements of the accused persons, seizure memo of two audio cassettes and seizure memo of Rs. 50,000/ Ex. PW2/A recovered from the accused Ashok Kumar and site plan Ex. PW2/D. The police officials are only interested in the success of their story and therefore the testimonies of police officials cannot be believed without corroboration. In my considered opinion, statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the FIR No. 360/11; State Vs. Ashok Kumar etc. Page 18 of 25 search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. In Staila Sayyed Vs. State 2008 (4) JCC 2840, it was held that there was nonjoining of public witness at the time of arrest of accused and recoveries. All the witnesses to the recoveries were police officials. Such recoveries do not inspire confidence. It seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt for the prosecution case. In Nanak Chand Vs. State, 1991 Rajdhani Law Reporter 62, it was held by Hon'ble High Court that if recovery is in the absence of witnesses, who could be available then it casts doubt on prosecution.
15. In the present case, though the complainant/ PW6 was the witness to the seizure memo of box containing one sealed and one toy Ex. PW6/D, script of CD Ex. PW6/C, seizure memo of CD Ex. PW5/X, seizure memo of recovery of Mohit Ahuja @ Gogi Ex. PW6/B but PW6 has not supported the case of the prosecution.
16. PW2 ASI Parmod Kumar stated that 45 public persons were requested to join the raiding party. PW2 further stated that no written notice was given to any public persons who refused to join. PW2 also stated that they remained present at Burari Chowk in FIR No. 360/11; State Vs. Ashok Kumar etc. Page 19 of 25 connection with the investigation for about 3½ to 4 hours and Burari Chowk is a thoroughfair way and some vehicle were passing. None of the passerby vehicles were associated in the investigation. In State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, the Hon'ble Supreme Court held that the failure of the prosecution to examine independent witnesses though available is fatal for their case. In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that where the IO has failed to even note down the names and addresses of the persons, who have refused to join as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful. In Dinesh Kumar Vs. State, 1998 [1] JCC [Delhi] 173, it was held by Hon'ble High Court that disclosure statement and recovery of knife not made in presence of independent witnesses. Only police constables are the witnesses. No explanation coming forth for not joining independent witnesses.
17. In the present case, PW2 ASI Parmod Kumar himself had not made any DD entry in the police station about the availability of the currency note with him. PW8 Ct. Baikunth stated that IO had FIR No. 360/11; State Vs. Ashok Kumar etc. Page 20 of 25 made their departure entry but he did not recall its number. PW8 further stated that they made their arrival entry at GRP Bareily but he did not tell its number. PW9 stated that he had not made any DD entry in the Roznamacha regarding return of seal. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 that "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution." In the present case, PW1 HC Rajender Pal Singh exhibited the FIR and endorsement on the rukka. PW7 Ct. Sule Chand stated that complainant handed over one carton box in which one toy and one CD were found. PW10 Ms. Rachna Tiwari Lakhanpal and PW11 Sh. Dheeraj Mor Ld. MMs proved the TIP proceedings. PW12 ASI Joginder Singh prepared seizure memo of Mohit Ahuja already Ex. PW6/B.
18. It is well settled and one of the cardinal principles in criminal jurisprudence that the accused is presumed to be innocent FIR No. 360/11; State Vs. Ashok Kumar etc. Page 21 of 25 until proved guilty by the prosecution. Another golden thread which runs through the veins of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be accepted. Reference in this connection can be made to the decision in Bhikari Vs. State of UP, AIR 1966 SC 1, therein the Hon'ble Supreme Court held that "undoubtedly, it is for the prosecution to prove beyond reasonable doubt that the accused has committed offence with the requisite mens rea. Once it is done, the accused can rebut this presumption either by leading evidence or by relying on the prosecution evidence itself. If upon evidence adduced in the case, either by prosecution or by defence, a reasonable doubt is created in the mind of the court, regarding one or more ingredients of the offence including mens rea, then he would be entitled to be acquitted". In, Tika Vs. State of UP, AIR 1974 SC 155, it was held that "one of the cardinal principles which has always to be kept in view, in our system of administration of justice for criminal cases, is that an accused is presumed to be innocent, unless, that presumption is rebutted by the prosecution by production of evidence which may show him to be guilty of the offence with which FIR No. 360/11; State Vs. Ashok Kumar etc. Page 22 of 25 he is charged". In Balraj Singh Vs. The State of Punjab, 1976 Cr.L.J. 1471 (DB) (Punjab), it was held that "The guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole, the prosecution may be true, but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted". In Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court held that in a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks 'credibility', benefits of doubt necessarily has to go to accused.
19. In Ashish Batham Vs. State of M.P. 2002 (3) JCC 1883, it was held that realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the FIR No. 360/11; State Vs. Ashok Kumar etc. Page 23 of 25 charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true "and must be true" and this basic and golden rule only helps to maintain the vital distinction between conjectures and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. In Vikramjit Singh @ Vicky Vs. State of Punjab, 2007 (1) CC Cases (SC) 35, it was held by the Hon'ble Supreme Court that where two views of a story appeared to be probable, the one that was contended by the accused should be accepted.
FIR No. 360/11; State Vs. Ashok Kumar etc. Page 24 of 25
20. Keeping in view the above facts & circumstances that PW5, PW4 and PW6 being the star witnesses and PW1 to PW3 and PW7 to PW13 have not supported the case of Prosecution, therefore, no useful purpose would be served by examining the remaining witnesses who are the police officials. Therefore, the prosecution evidence has been closed. No incriminating evidence has come on record against the accused persons, therefore, statements of all the accused have also been dispensed with. Accordingly, all the accused persons are acquitted. The accused Rupesh Singh @ Shampy, Bhanu Pratap @ Goldy and Ketan Kumar @ Chetan be released forthwith if not wanted in any other criminal case. The bail bonds of accused Ashok Kumar are cancelled and his surety is discharged. Documents of surety, if any, be released against proper acknowledgement. File be consigned to Record Room with liberty to prosecution to revive the case file as and when PO accused Yogesh Kumar is arrested and produced before the court.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 30102014 FIR No. 360/11; State Vs. Ashok Kumar etc. Page 25 of 25