Delhi District Court
State vs . Madan Mohan Etc. on 11 August, 2016
State vs. Madan Mohan etc.
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-01, EAST, KARKARDOOMA COURTS, DELHI
State vs. Madan Mohan etc.
FIR No.671/97
U/sec. 147/452/354/323 IPC
PS: Bhajan Pura
Date of institution of the case: 28.08.2000
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 11.08.2016
Unique I. D. No. 02402R0028472003
JUDGMENT
a) Sr. No. of the case : RBT/80/13
b) Date of commission of the offence : 05.10.1997
c) Name of the complainant : Name withheld
d) Name of the accused and his parentage : 1.Madan Mohan,
S/o Sh. Ved Prakash Shrama
R/o C-8/72, Yamuna Vihar, Delhi
2. Saroj Sharma,
W/o Sh. Suresh Sharma
R/o C-2/266, Yamuna Vihar,
Delhi
3. Sneh Lata,
W/o Late Sh. Sukhdev
R/o C-8/72, Yamuna Vihar
Delhi
FIR No. 671/97 Page 1 of 9
State vs. Madan Mohan etc.
4. Madan Lal,
S/o Sh. Dhan Prakash
R/o A-15, North Ghonda, Delhi
5. Shyam Lal,
S/o Sh. Dhan Prakash
R/o A-15, North Ghonda, Delhi
6. Kuldeep,
S/o Late Sh. Ved Prakash
R/o D-26, East Jyoti Colony,
Shahdara, Delhi
e) Offence complained of or proved : Sec. 147/452/354/323 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 11.08.2016
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 05.10.1997 at about 08:20 a.m., when the complainant was boiling milk in the kitchen, accused persons namely Sneh Lata, Saroj Sharma, Shyam Lal, Madan Mohan, Madan Lal and Kuldeep came to her house and called her outside. As soon as she came out of the kitchen, all the accused persons clung to the complainant (chipat gaye). They dragged her out of the room assaulting her. Accused Shyam Lal and Kuldeep also bit her left hand thumb and right hand finger with their teeth respectively. Thereafter, they fled away from the spot.
FIR No. 671/97 Page 2 of 9State vs. Madan Mohan etc. With regard to the aforesaid incident, a DD entry No. 16-A was recorded by the police of PS Bhajan Pura. The same was marked to ASI Prabhu Dayal for investigation, who immediately reached the spot, took the injured to G.T.B. Hospital and got her medically examined, obtained the MLC and recorded the statement of complainant/injured 'M', wherein she narrated the incident in the manner above mentioned. On the basis of her statement, present FIR bearing No. 617/1997 was registered against the accused persons.
After investigation, an untraced report dated 26.01.1998 was prepared by the IO but the case was revived and re-investigated.
After completion of the re-investigation, charge-sheet was filed before the court under sections 147/149/323/354/452/109 IPC. Consequently, the accused persons were summoned to face the trial. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to them as per norms.
Thereafter, the charge under sections 147/452/354/323 of the IPC was framed against all the accused persons except accused Lalit to which they pleaded not guilty and claimed trial. Accused Lalit was discharged by the learned Predecessor Judge vide order dated 15.07.2013. Relevant part of the order reads as under:-
"..I am in complete agreement with the submissions made by his counsel regarding delay. In the present case first statement of complainant was recorded on 05.10.1997 and thereafter IO has filed the untraced report. After two and a half years the case has been revived again and statement of complainant has been recorded under section 161 CrPC making allegations against accused Lalit for the first time.FIR No. 671/97 Page 3 of 9
State vs. Madan Mohan etc. Perusal of the challan does not reveal the cause of filing untraced report at the first instance and there is also no explanation of the revival of the case after two and half years. Further there is nothing in the challan which may depict discovery of any new evidence after two and half years which was not within the reach of IO two years back since the present case has been revived only on the testimony of complainant under section 161 CrPC and the said witness was available tow and half years back also. In view of the same, the said delay in recording statement of witnesses under section 161 CrPC remained unexplained and creates doubt in the prosecution case against accused Lalit. Accordingly, accused Lalit is discharged in the present case.
With a view to connect the accused persons with the crime, the prosecution has examined only one witness.
PW1/SI Ashok was the Duty Officer, who recorded the FIR/Ex.PW1/B. During the course of trial, summons sent to complainant/injured 'M' and the other alleged eye witnesses namely Ram Prakash, Akash, Vikas and Kiran received back un-served with the report that "not residing at the given address/left for some unknown place in the year 2006". Thereafter, summons were issued through the DCP concerned, however, the same also received back un-served with the report "not residing at the given address/left for some unknown place". Therefore, they were dropped from the list of witnesses and the PE was closed and request of the learned APP for State to examine all the prosecution witnesses was declined as no useful purpose would be served by examining the rest of the witnesses, who are formal in nature. In this regard reference may be made to a Division Bench FIR No. 671/97 Page 4 of 9 State vs. Madan Mohan etc. judgment of the Hon'ble Delhi High Court 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 ultimate chance of conviction is very bleak or there is no prospect of the case ending in 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 on a future date..........."
Since there was no incriminating circumstance against the accused persons, recording of their statements under section 313 of the Code was also dispensed with.
I have heard the rival submissions advanced by the ld. APP for State and the ld. Counsel for the accused and have also perused the records very carefully.
Arguments It is submitted by the ld. Counsel for the accused persons that they have been charged for the offences punishable under sections 147/452/354/323 of the IPC but the prosecution has failed to examine the complainant/victim and other alleged eye witnesses of the occurrence despite availing numerous opportunities and in the absence of the testimony of complainant/eye witnesses, there is nothing on record to establish that alleged offences were committed by accused persons. He therefore, requested that the accused persons may be acquitted of the charge leveled against them.
FIR No. 671/97 Page 5 of 9State vs. Madan Mohan etc. He relied on a judgment passed by the Hon'ble Supreme Court of India reported as AIR 1975 SC 1453 wherein it was observed that:
"It is the duty of the prosecution to examine all the material witnesses and if all the material witnesses are not examined then an adverse inference can be drawn that he was kept aback and presumption can be drawn that on his examination he may not support the prosecution case"
He also cited another judgment passed by the Hon'ble Supreme Court of India passed in the case of Karnesh Kumar Singh & Ors. Vs. State of U.P AIR 1968 SC 1402 wherein it was observed that:
"it is the duty of the prosecution to examine the material witnesses and non-examination of some of the witnesses leads to the adverse inference to their non-support of the prosecution case."
He submitted that the case pertains to the year 1997. He submitted that speedy trial is an integral part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution of India. He submitted that continuance of the prosecution as against the accused persons would not serve any useful purpose and would be a sheer waste of time as all the public witnesses are reportedly not traceable and rest witnesses are formal in nature. He, therefore, requested that PE may be closed and the accused persons may be acquitted of the charge leveled against them.
Per contra, ld. APP for the State has requested that opportunity may be given to the State to examine all the prosecution witnesses.
Decision and brief reasons for the same FIR No. 671/97 Page 6 of 9 State vs. Madan Mohan etc. It is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove his guilt beyond a reasonable doubt. Therefore, the prosecution is under legal obligation, to prove each and every ingredient of the offence beyond any reasonable doubt. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution can succeed only on discharging its burden of proving the case against the accused. Strongest of suspicion, does not constitute the proof required. Keeping in view the principle of law laid down in cateena of judgments by the superior courts, now let us see, as to whether the prosecution has been able to prove its case, against the accused, beyond a reasonable doubt.
The prosecution has cited as many as fourteen witnesses in the list of witnesses annexed with the charge-sheet. Out of these fourteen witnesses, Smt. M was the complainant as well as the victim, PW/Ram Prakash was her husband, PW/Akash and Vikas were their sons and PW/Smt. Kiran was their maid servant. Rest witnesses are formal in nature and the guilt of the accused persons cannot be proved from their testimonies, inasmuch as, the alleged incident was neither committed in their presence nor it is the case of the prosecution.
However, the alleged eye witnesses to the incident including the complainant/victim could not be examined by the prosecution despite availing numerous opportunities. On every occasion, summons received back un-served. Even the summons upon them could not be served through the office of the DCP concerned.
FIR No. 671/97 Page 7 of 9State vs. Madan Mohan etc. The only witness examined by the prosecution to bring home the guilt of the accused was PW1/SI Ashok, who has proved the FIR/Ex. PW1/A. No doubt the evidence of PW1/Duty Officer has proved the registration of the FIR against the accused persons but the question still is whether it were the accused persons who had committed the alleged offence.
I am of the considered opinion that, once the first informant is not examined, even if the First Information Report is proved and exhibited through the Duty Officer, all that can be read from the evidence of the Duty Officer is the fact that FIR was in fact recorded at the date and time mentioned by the Duty Officer in his evidence but the contents of the FIR cannot be used to hold the accused persons guilty of the charge.
Since the complainant/victim and the other alleged eye-witnesses could not be examined despite giving numerous opportunities, nothing could come out on the record to prove the incident or the necessary ingredients of the offence alleged. In the absence of any eye witness account as to how the incident has taken pace, accused persons cannot be fastened with any criminal liability as there is no direct evidence to connect the accused persons with the crime.
Therefore, keeping in view the overall conspectus of the case, I am of the considered view that the prosecution has miserably failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused persons. Therefore, I give benefit of doubt to the accused persons FIR No. 671/97 Page 8 of 9 State vs. Madan Mohan etc. and accordingly, the accused persons namely Madan Mohan, Saroj Sharma, Sneh Lata, Madan Lal, Shyam Lal and Kuldeep are acquitted of the charge levelled against them. Bail bonds furnished u/sec 437-A of the Code shall remain in force a period of six months from today.
File be consigned to record room after due compliance.
Announced in open Court on 11th day of August, 2016 (Babita Puniya) MM(Mahila Court-02/Shahdara KKD Courts/Delhi 11.08.2016 This judgment contains 9 pages and each page bears my signature.
(Babita Puniya) MM(Mahila Court-02/Shahdara KKD Courts/Delhi 11.08.2016 FIR No. 671/97 Page 9 of 9