Delhi District Court
State vs . Subhash Fir No. 430/05 on 29 March, 2022
State vs. Subhash FIR No. 430/05
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-05, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
State vs. Subhash
FIR No. 430/2005
U/sec. 285/379/336/420 IPC
PS: Krishna Nagar
Date of institution of the case: 08.06.2006
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 29.03.2022
Unique I. D. No. 1128/2019
JUDGMENT
a) Date of commission of the offence : 12.10.2005
b) Name of the complainant : Shri Bharat Grover
c) Name of the accused and his parentage : Subhash, S/o Sh. Veerpal, R/o 3/30, Khichripur, PS Kalyanpuri Delhi.
d) Offence complained of : Sec. 407/285/174-A IPC
e) Offence charged of : Sec. 407285/174-A IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted for the offence u/s 407/285 IPC but convicted for the offence punishable u/s 174-
A IPC
h) Date of such order : 29.03.2022
Page No. 1 of 8
State vs. Subhash FIR No. 430/05
i) Brief reasons for the just decision of the case:
Succinctly stated facts of the prosecution case are that on 12 October 2005, the present FIR was registered against the accused at police station Krishna Nagar on the complaint of Mr. Bharat Grover. It was alleged against the accused that the accused was transferring gas from one domestic cylinder to another.
After completion of investigation, charge-sheet under sections 407/285/379/420 IPC was filed before the court against accused. Consequently, he was summoned to face the trial.
On his appearance before the court, copy of the charge-sheet was supplied to him and charge under sections 407/285 IPC was framed against him to which he pleaded not guilty and claimed trial.
While the case was at the stage of arguments on the point of charge, accused stopped appearing before the court and vide order dated 30.03.2011, he was declared "proclaimed offender".
On 31.10.2017, accused was produced before the court and trial resumed. With a view to connect the accused with the crime, the prosecution has examined the complainant as PW1 and Sh. Ashok Kumar as PW2. However, PW2 unfortunately expired before his examination could be concluded. Hence, he was dropped from the list of witnesses. The incomplete statement is not admissible under section 32 and 33 of the Indian Evidence Act (Mangru Ram vs The State (NCT of Delhi) Page No. 2 of 8 State vs. Subhash FIR No. 430/05 decided on 8 November, 2012).
On 26.03.2022, the owner of the property Smt. Anju Gupta appeared before the court and compounded the offence punishable under section 407 IPC.
PW1/Mr. Bharat Grover was also dropped from the list of witnesses. Rest witnesses are formal in nature and the guilt of accused cannot be established from their testimonies, inasmuch as, the incident was neither caused in their presence nor it is the case of the prosecution. Therefore PE was closed declining the request of the learned APP for State to examine all the prosecution witnesses 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 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, recording of his statement under section 313 of the Code is also dispensed with.
I have heard the rival submissions advanced by the learned APP for State Page No. 3 of 8 State vs. Subhash FIR No. 430/05 and the learned counsel for the accused and have also perused the records very carefully.
Arguments It was argued on behalf of the accused that section 407 IPC has been compounded by the owner of the property and that there is no iota of evidence that accused has committed the offence punishable under section 285 IPC.
He submitted that offence punishable under section 285 IPC is summons triable case as the punishment is less than two years. He, therefore, prayed that proceedings may be stopped under section 258 Cr.P.C., which reads as under:-
258. Power to stop proceedings in certain cases. In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.
He further stated that the Honorable Chief Justice of India in D.O. letter dated 08.11.11 observed as under:
"The cases which are more than five years' old can be brought to the level of ' zero' pendency by way of Court Management and Court Application."(Empha- sis supplied) Accordingly, in the opinion of the court, Page No. 4 of 8 State vs. Subhash FIR No. 430/05 in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 279/338 IPC to make the ends of justice meet..."
He, therefore, prayed that accused may be acquitted of the charge.
Decision and brief reasons for the same The rule that every accused person is presumed innocent until he is proved guilty and that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt is fundamental to the system of justice practiced in this country and in several other countries. Indeed it is entrenched in the Constitution that every person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.
A Court cannot draw an inference of guilt from mere suspicion. Suspicion, no matter how strong cannot take the place of legal proof.
The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the Page No. 5 of 8 State vs. Subhash FIR No. 430/05 prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v.
State of U.P., AIR 2012 SC 1979).
Now let us see if the prosecution has been able to prove its case beyond reasonable doubt against the accused?
Section 285 IPC Section 285 IPC deals with the case of negligent nature and dealing with fire or any combustible matter. Acting rashly or negligently so as to endan- ger human life, or in a manner likely to cause hurt or injury, is a sine qua for making an act come within the meaning of section 285 IPC. It reads as under:-
285. Negligent conduct with respect to fire or combustible matter.--Whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order Page No. 6 of 8 State vs. Subhash FIR No. 430/05 with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
To prove this offence, the prosecution has cited as many as eight (08) witnesses in the list of witnesses annexed with the charge-sheet. Out of these eight witnesses, PW/Bharat Grover and PW/Ashok Kumar were cited as eye witnesses, PW/Prakash Rastogi and PW/Naresh Kumar were cites as res-gestea witnesses while rest witnesses are formal in nature and the guilt of the accused cannot be proved from their testimonies, inasmuch as, the alleged incident has neither happened in their presence nor it is the case of the prosecution.
However, the complainant and PW2 could not be examined by the prosecution despite availing numerous opportunities. Thus, the fact that accused was transferring the gas from one cylinder to another was not proved. PW1 and PW2 only could have proved this fact. However, they were dropped from the list of witnesses. In these circumstances, the statement of PW/Prakash Rastogi and PW/Naresh Kumar cannot be said to form part of the same transaction, when the transaction itself is not proved. Had PW1 or PW2 been examined during trial, their evidence could have been corroborated by PW/Prakash Rastogi and PW/Naresh Kumar on the ground that it was the statement of the complainant made to them immediately after the occurrence. Since PW1 and PW2 could not be examined despite giving numerous opportunities, nothing could come out on the record to prove the necessary ingredients of the offence alleged Page No. 7 of 8 State vs. Subhash FIR No. 430/05 against the accused.
Result Prosecution has failed to prove beyond reasonable doubt that the accused was transferring the gas from one domestic cylinder to another. Consequently, accused SUBHASH is ACQUITTED of the offence punishable under section 285 IPC. HE also stands acquitted of the offence punishable under section 407 IPC on compounding. However, he is convicted for the offence punishable under section 174-A IPC.
Announced in open BABITA Digitally signed by BABITA PUNIYA Court on 29th day of March , 2022 Location: Court No.3, Karkardooma Courts, Delhi PUNIYA Date: 2022.03.29 16:02:45 +0530 (Babita Puniya) MM-05/East District, Karkardooma Court/Delhi/29.03.2022
This judgment contains 8 pages and each page bears my signature.
(Babita Puniya) MM-05/East District, Karkardooma Court/Delhi/29.03.2022 Page No. 8 of 8