Delhi District Court
State vs Bhola Prasad @ Abhishek on 23 October, 2024
IN THE COURT OF MS. AISHWARYA SINGH
KASHYAP, METROPOLITAN MAGISTRATE (MM06),
SHAHDARA, KKD, DELHI
State Vs Bhola Prasad @ Abhishek & Ors
CR NO: 6849/2019
FIR NO: 318/2019 PS Seemapuri
CNR No.: DLSH020113322019
In the matter of -
STATE
VS.
Bhola Prasad @ Abhishek & Ors
S/o Lalji Prasad, R/o H.No. Village Karkar Model Marg Near
Red Rose School Site 4, Industrial Area, Sahibabad, Ghaziabad,
UP Accused
1 Name of Complainant Poonam Joshi
2 Name of Accused Bhola Prasad @ Abhishek
3 Offence complained of 356/379 IPC
4 Plea of accused Not Guilty
5 Date of Commission of offence 12.05.2019
6 Date of Registration 04.09.2019
7 Date of Reserving Order 23.10.2024
8 Date of Pronouncement 23.10.2024
9 Final Order Acquitted
JUDGMENT
Factual Matrix
1. Briefly stated, the case of the prosecution is that on 12.05.2019 around 7:45 PM in front of O & P Pocket, Dilshad Garden, Poonam Joshi (hereinafter referred as "the complainant") was going towards her mother's house when a boy came on scooty and snatched her bag/wallet containing Rs 4,000/-, ATM Card, Credit Card, ID Cards and CGHS forms etc and ran towards Dilshad Colony. The complainant called on 100 1 of 6 State vs Bhola Prasad @ Abhishek; FIR 318/2019 CR No.6849/2019 number and informed the police. Bhola Prasad @ Abhishek was apprehended in another FIR, made disclosure in the present case and was accordingly arrested (hereinafter referred as "the accused"). The case property could not be recovered. Thus, FIR was registered with respect to the allegations made by the complainant against the accused.
Investigation and Trial Proceedings
2. After the completion of investigation, the chargesheet was filed against the accused for the offences U/s 356/379 of the Indian Penal Code, 1860 (hereinafter referred as "IPC"). The Ld. Predecessor took cognizance of the matter.
3. The accused entered appearance before this court and in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC") he was supplied the copy of the chargesheet as well as documents relied upon in the same.
4. Thereafter, upon finding prima facie case against the accused, notice under Sections 356/379 of the IPC were framed upon the accused on 23.10.2019 by the Ld. Predecessor, to which he pleaded not guilty and claimed trial.
Prosecution Evidence
5. Poonam Joshi (PW-1)/complainant is the star/primary/eye- witness of the prosecution. However, she turned hostile during her cross-examination before the court and failed to support the version of the prosecution on oath in all material aspects with respect to the identity of the accused despite being cross- examined by the Ld. APP for the State extensively. All the remaining prosecution witnesses are formal in nature. There are Page 2 of 6 Digitally signed by AISHWARYA AISHWARYA SINGH SINGH KASHYAP Date: 2024.10.23 KASHYAP 16:32:07 +0530 State vs Bhola Prasad @ Abhishek; FIR 318/2019 CR No.6849/2019 no other eye witnesses to the incident nor there is any digital evidence on record to link the accused to the offences involved.
6. In view of the aforesaid and the hostile evidence of the primary prosecution witness, PE was closed in the matter. In view thereof, the statement of accused under Section 313 CrPC read with Section 281 CrPC was dispensed with. The accused did not wish to lead DE.
7. Rival submissions were heard on behalf of the accused as well as the State. Whilst Ld. APP for the State sought conviction despite the hostile testimony of the main eye-witness, on the basis of the documentary evidence on record, Ld. LAC for the accused vehemently opposed the same citing unsubstantiated version of the prosecution, hostile testimony of the prime witness who failed to support the sham version of the prosecution, and shoddy investigation in the matter.
APPRECIATION OF EVIDENCE Hostile Primary/Eye-Witness/Complainant
8. The primary witness of the prosecution i.e. the complainant turned completely hostile in the present case with respect to the identity of the accused despite being cross- examined by the Ld. APP for the State.
9. Herein, it is pertinent to note that under Indian law, the evidence of hostile witnesses is not discarded completely. The legal maxim falsus in uno falsus in ombnibus i.e. false in one thing, false in everything is not applicable in India. The scope of evidentiary value of hostile witnesses has been delineated by the Page 3 of 6 Digitally signed by AISHWARYA AISHWARYA SINGH SINGH KASHYAP KASHYAP Date: 2024.10.23 16:32:14 +0530 State vs Bhola Prasad @ Abhishek; FIR 318/2019 CR No.6849/2019 Hon'ble Apex Court in Rohtash Kumar vs State of Haryana1 holding 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 effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.
10. Therefore, the court must evaluate whether evidence of such hostile witness can be relied upon albeit in part against the backdrop of other corroborative evidence on record. However, in the present case, the complainant/primary witness has entirely demolished the prosecution version by failing to identify the accused present in court. There are no other independent witnesses to support the present case. It is also pertinent to bear in mind that the accused persons were apprehended on the basis of disclosure statement alone and case property was also not recovered in the present matter. Therefore, the chain of events with respect to the offence and the accused remains incomplete. All other witnesses are formal in nature being police witnesses. The prosecution failed to bring on record the testimony of any independent/other public persons on record or digital evidence to sustain the allegations against the accused persons.
11. Thus, in the instant case, the evidence on record is not sufficient to sustain the case of the prosecution. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The entire investigation of the case does not inspire confidence before the court. Therefore, the prosecution has failed to satisfy the essential ingredients of 1 (2013) 14 SCC 434.
Page 4 of 6 Digitally signed by AISHWARYA AISHWARYA SINGH SINGH KASHYAP KASHYAP Date: 2024.10.23 16:32:23 +0530
State vs Bhola Prasad @ Abhishek; FIR 318/2019 CR No.6849/2019 the offences and prove their commission by the accused beyond reasonable doubt.
12. With respect to cases of the aforesaid nature, the Hon'ble Delhi High Court in Govind and Ors vs the State (Govt of NCT)2 made the underlying observations:
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 court. The trial should not be continued only for the purpose of formally completing the proceeding to pronounce the conclusion of a future date.
13. In order to bring home guilt of accused, the prosecution has to prove all the essential ingredients of the offences. However, in the instant case, there is no concrete evidence to link the accused with the crime charged against him in view of the hostile statement of the complainant. His identity as the culprit is not proved during the trial as the eye-witness/complainant failed to support the prosecution version. Therefore, the ingredients of the offence are not fulfilled from the material on record. In the present case, as already noted above, the prosecution could not discharge the onus of proving the ingredients of offences and thus, the accused is entitled to the benefit of doubt.
Decision
14. In view of the aforementioned discussion, the main prosecution witness failed to support the case and turned hostile. The prosecution failed to satisfy the essential ingredients of the offences by bringing on record cogent evidence and independent witnesses to prove the guilt of the accused beyond reasonable doubt. Accordingly, the accused is hereby found not guilty and 2 104 (2003) DLT 510.
Page 5 of 6 Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH Date: KASHYAP 2024.10.23 16:32:31 +0530
State vs Bhola Prasad @ Abhishek; FIR 318/2019 CR No.6849/2019 acquitted of the offence punishable under Sections 356/34 IPC.
ORDER: Acquitted
15. Accused shall furnish personal bond and surety bond as per the mandate of Section 437A CrPC upon which previous bonds shall be cancelled and previous surety shall be discharged.
Announced in Open Court on 23.10.2024. Digitally signed by AISHWARYA AISHWARYA SINGH SINGH KASHYAP (This judgement contains 6/Six signed pages.) KASHYAP Date:
2024.10.23 16:32:45 +0530 (Aishwarya Singh Kashyap) MM 06/SHD/KKD Courts/Delhi 23.10.2024 Page 6 of 6