Delhi District Court
State vs . Krishan @ Kishan on 21 September, 2022
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
DLSW020230682019
IN THE MATTER OF :
State Vs. Krishan @ Kishan
FIR No.286/2016
PS : Uttam Nagar
U/s 392/411 IPC &
U/s 25/27/54/59 Arms Act
Date of Institution : 11.05.2016
Date of Judgment : 21.09.2022
JUDGMENT
1. Serial No. of the case : 11162/2019
2. Name of the Complainant : Sh. Vijay Kumar S/o
Sh. Deva Nand
R/o H.No.376, T Camp,
Krishana Colony, Kali Basti,
Uttam Nagar, New Delhi.
3. Date of commission of offence : 14.03.2016
4. Name of accused person : Krishan @ Kishan S/o Sh. Nand Kishor R/o A-119/3, Shiv Vihar, Vikas State Vs. Krishan @ Kishan FIR No.286/2016, PS Uttam Nagar Judgment dated 21.09.2022 Page No. 1 of 10 Digitally signed by ALKA ALKA SINGH SINGH Date:
2022.09.22 16:40:16 +0530 Nagar, Uttam Nagar, Ranholla, Delhi.
5. Offence charged : U/s 392/411 IPC and U/s 25/27 Arms Act
6. Plea of accused persons : Not guilty
7. Final Order : ACQUITTAL BRIEF REASONS FOR ORDER:
1. The accused were chargesheeted for committing offences punishable under Section 392/411 of Indian Penal Code (hereinafter referred as "IPC") and under Section 25 of Arms Act.
2. It has been alleged by the prosecution that on 14.03.2016, at about
08.00 pm, at LIG Flat Chowk, Hastsal Village, Kali Basti, Uttam Nagar, Delhi, accused committed robbery of cash amount of Rs.100/- by snatching it from the pocket of the Deepak Kumar and he was caught red handed on the spot. The accused was also found in possession of one button actuated knife, in contravention of notification issued by Delhi Administration.
3. After conclusion of investigation, the present chargesheet was filed against the accused persons u/s 392/411 IPC and u/s 25 of Arms Act.
4. On receipt of chargesheet, cognizance of offence was taken and accused were summoned to face trial. Copy of the chargesheet alongwith all annexures was supplied to the accused in terms of Section 207 Cr.P.C.
5. After giving opportunity to state as well as accused for making State Vs. Krishan @ Kishan FIR No.286/2016, PS Uttam Nagar Judgment dated 21.09.2022 Page No. 2 of 10 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2022.09.22
16:40:29
+0530
submissions on charge, a charge for offence under Section 392/411 IPC and under Section 25/27 of Arms Act was framed against the accused on 26.08.2016, to which he pleaded not guilty and claimed trial.
6. Prosecution examined five witnesses to prove its case.
7. As PW1 complainant Sh. Vijay Kumar was examined, wherein he stated that in the month of March, 2016, at abut 09:00 PM, when he was going to his house and reached near LIG Flat, he was pushed by one person and 3-4 persons started quarreling with him, whereafter, he dialed at 100 number but till the time police arrived the accused persons ran away from the spot. He stated that he was thereafter taken to the police station, where his statement was recorded Ex. PW1/A. It was also stated by the complainant that since it was dark he could not see the persons who quarreled with him and refused to identify the accused who was present in the court. Thereafter, permission was granted to Ld. APP for State to cross- examine the said witness for he was resiling from his earlier statement and the complainant refused to admit his previous complaint as per which the accused has snatched away a 100 rupee note from his pocket. All the adverse suggestions of the Ld. APP for State were denied by the witness. However, the witness admitted his signature on the seizure memo of currency note of Rs.100/- Ex. PW1/B, the sketch of knife Ex. PW1/C, the seizure memo of knife Ex. PW1/D, arrest memo Ex. PW1/E and personal search memo Ex. PW1/F but also went on to state that these signatures were taken on blank papers by the police. He was not cross-examined by the defence counsel.
State Vs. Krishan @ Kishan
FIR No.286/2016, PS Uttam Nagar
Judgment dated 21.09.2022 Page No. 3 of 10
Digitally
signed by
ALKA ALKA SINGH
Date:
SINGH 2022.09.22
16:40:37
+0530
8. As PW2 HC Babu Lal was examined, who stated that on 14.03.2016, while he was on patrolling with HC Sunil, he reached at Hastsal Chowk, Kali Basti, LIG Flat, where two persons had caught hold of one person, who is present in the court and they said that he has snatched Rs.100/- from them. It was also stated that the Rs.100/- and one knife which they allegedly recovered from the possession of the accused. On production of the case property by the MHC(M) i.e. two pullandas sealed with the seal of SY, which found to contained one 100 rupee currency and one knife. Both these properties were correctly identified by the witness and they were Ex. P-1 (colly). It is stated that thereafter, the tehrir was prepared by the IO and was handed over to him for registration of FIR. He said that after coming back from police station to the scene of occurrence, he handed over the copy of FIR and tehrir to HC Sunil.
In his cross-examination, he affirmed the suggestions of the defence counsel that the case property was handed over to IO by the complainant and it was not found in possession of accused.
9. As PW3, Sh. Deepak was examined by the prosecution, who stated that on the day of the incident, the date of which he does not remember, he was coming back from buying some clothes near Uttam Nagar and it was dark in night and he stated that accused who was present in the court and correctly identified, came from behind and suddenly one person shouted that accused had taken money out of his pocket and started beating him but he found his 100 rupee note lying on the ground and after that he does not know what happened. Since, this witness was also not supporting his previous statement, he was allowed to cross-examine by Ld. APP for State, State Vs. Krishan @ Kishan FIR No.286/2016, PS Uttam Nagar Judgment dated 21.09.2022 Page No. 4 of 10 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2022.09.22
16:40:46
+0530
whereby he did not admit his statement recorded u/s 161 Cr.P.C. and denied all the suggestions of the Ld. APP for State. He was not cross-examined by the defence counsel.
10. As PW4 ASI Yadram was examined, he was only a formal witness and was called upon to testify regarding the submission of the case property to him on 14.03.2016 by HC Sunil. The relevant entries in the register no.19 was Ex. PW4/A (OSR). He was not cross-examined by Ld. Defence counsel despite opportunity.
11. As PW5 ASI Sunil Kumar was examined, who deposed similar facts as that of PW2 and stated that after apprehension of the accused he recorded his disclosure statement Ex. PW5/C and also recorded the statement of complainant and his cousin. The witness also correctly identified the accused who was present in the court. On production of the case property i.e. one 100 rupee and button actuated knife, same were correctly identified by the witness. In his cross-examination, he was asked about his departure entry and whether any public person was asked to join the investigation, he replied that none of the public person joined the investigation and they all refused to disclose their names. All the adverse suggestion of the defence counsel were denied by the witness.
12. Since, no other witness was examined by prosecution, hence, the PE was closed and statements of the accused was recorded under Section 313 Cr.P.C. to allow him to explain the incriminating circumstances appearing in evidences against him and stated that he is innocent and all of them including the complainant were drunk and a fight took place between them, State Vs. Krishan @ Kishan FIR No.286/2016, PS Uttam Nagar Judgment dated 21.09.2022 Page No. 5 of 10 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2022.09.22
16:40:57
+0530
whereby he was beaten up. Accused denied to have attack anyone with a knife or that he snatched away the amount of Rs.100/- from anyone.
13. Final arguments were thereafter heard on behalf of state as well as the accused.
14. It was argued on behalf of the ld. counsel for accused that there were two public witness and they both turned hostile and could not identify the accused or the case property. Hence, it is a clear case of acquittal.
15. It was the arguments of Ld. APP for the State that prosecution has been successful in proving its case against the accused.
16. I have carefully considered the submissions made on behalf of the parties and have perused the case file meticulously.
17. Now this court shall appreciate the evidences one by one in order to decide whether the prosecution has been successful in proving its case.
18. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
" i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the State Vs. Krishan @ Kishan FIR No.286/2016, PS Uttam Nagar Judgment dated 21.09.2022 Page No. 6 of 10 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2022.09.22
16:41:06
+0530
prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
19. It is a settled law as well as matter of common knowledge that evidence of complainant/ victim and other public witnesses is the best available evidence and the case can be proved beyond reasonable doubts on the basis of testimony of said witness only. In the present case, perusal of entire evidence reveals that the complainant who was the sole public witness could not identify any of the accused persons despite the fact that accused persons were pointed out during his examination. Further, no recovery of the stolen articles were also effected from any of the accused.
20. So far as the charge against accused is concerned U/s 25 of Arms Act has also not been proved by the prosecution for the followings reasons.
21. As per the case of the prosecution, the seal after use was kept by the concerned police official namely ASI Sunil Kumar with himself and had also seized the case property i.e. knife and the seal was not given to any independent public person which creates a doubt on the case property as to State Vs. Krishan @ Kishan FIR No.286/2016, PS Uttam Nagar Judgment dated 21.09.2022 Page No. 7 of 10 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2022.09.22
16:41:16
+0530
whether the same was intact and not tampered with. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para 7 as :
"The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
22. Further it was held in Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15 .......................... In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case".
23. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all State Vs. Krishan @ Kishan FIR No.286/2016, PS Uttam Nagar Judgment dated 21.09.2022 Page No. 8 of 10 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2022.09.22
16:41:26
+0530
enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
24. In the present case, as per PW5, public persons were requested to join but none of them agreed. However, no written notice was served upon them to join the proceedings in the present case or to face action U/sec. 187 IPC. Therefore it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution.
25. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:-
'' It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery State Vs. Krishan @ Kishan FIR No.286/2016, PS Uttam Nagar Judgment dated 21.09.2022 Page No. 9 of 10 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2022.09.22
16:41:35
+0530
being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
26. In view of the aforesaid discussion, this Court is of the considered opinion that the complainant has failed to prove its case beyond all reasonable doubts and the benefit of doubt ought to be granted to both the accused. Accused Krishan @ Kishan S/o Sh. Nand Kishor is acquitted of the charges U/s 392/411 IPC and U/s 25 of Arms Act.
27. Ordered Accordingly.
Pronounced in open Court, on this Day of 21th September, 2022. This judgment consists of 10 signed pages.
ALKA Digitally signed by
ALKA SINGH
SINGH Date: 2022.09.22
16:41:45 +0530
(ALKA SINGH)
Metropolitan Magistrate-08/South-West Dwarka Courts: New Delhi State Vs. Krishan @ Kishan FIR No.286/2016, PS Uttam Nagar Judgment dated 21.09.2022 Page No. 10 of 10