Delhi District Court
State vs . on 17 January, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 80856/2016
CNR No. -: DLSH020031582015
FIR No. -: 1280/2015
Police Station -: Seemapuri
Section(s) -: 392/411/34 IPC
In the matter of -
STATE
VS.
1. ADARI @ RAVIBUL
S/o Mohd. Yakub,
R/o E-383, New Seemapuri,
Delhi.
2. ASHRAF
S/o Abdul Kalam,
R/o E-43, Jhuggi New Seemapuri,
70 Foota Road, Near Idgah, Delhi.
3. RAFIQ
S/o Kale,
R/o Garima Garden, Bhopra,
Ghaziabad, U.P.
... Accused Persons
1. Name of Complainant :- Mohd. Ali
2. Name of Accused :- 1. Adari @ Ravibul
Persons 2. Ashraf
3. Rafiq
3. Offence complained of :- 392/411/34 IPC
or proved
4. Plea of Accused Persons :- Not Guilty
5. Date of Commission of :- 11.09.2015
offence
6. Date of Filing of case :- 09.11.2015
7. Date of Reserving Order :- 17.01.2023
8. Date of Pronouncement :- 17.01.2023
9. Final Order :- Accused Adari @
Ravibul acquitted U/s.
392/411 IPC
Accused Ashraf acquitted
ANKUR
U/s. 392 IPC and PANGHAL
convicted U/s. 174A IPC Digitally signed by
ANKUR PANGHAL
Date: 2023.01.17
Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 1 of 10 20:25:35 +05'30'
Argued by -: Sh. Pramod Kumar, Ld. APP for
the State.
Sh. Nadeem Khan, Ld. LAC for the
accused Adari @ Ravibul.
JUDGMENT
1. The case of prosecution in brief is that on 11.09.2015 at about 03:30 PM at Sochalya, 70 futta road, New Seemapuri, Delhi that the accused persons committed theft by using criminal force against the complainant namely Mohd. Ali and were found in possession of Rs. 400/- belonging to complainant despite being having knowledge or reason to believe that the same is stolen property. As such, it is alleged that the accused persons have committed the offences punishable under section 392/411/34 of the Indian Penal Code, 1860 (hereinafter, "IPC") for which the present FIR was lodged in PS Seemapuri.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC). The accused persons were arrested. Relevant record was collected. Final report under section 173 CrPC, was prepared against the abovenamed accused persons and chalan was presented in the court on 09.11.2015. After taking cognizance of the offence, the accused persons were summoned to face trial.
3. On their appearance, a copy of chargesheet was supplied to them in terms of section 207 of CrPC. On finding a ANKU Digitally signed by prima facie case against the accused persons, charge under R ANKUR PANGHAL PANG Date:
2023.01.17 section 392 IPC was framed against the accused person Asraf & HAL 20:25:47 +05'30' Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 2 of 10 Rafiq and under section 392 & 411 IPC was framed against accused Adari @ Ravibul on 04.11.2016. The accused persons pleaded not guilty and claimed trial.
3.1. During the course of trial accused Rafiq was declared as PO vide order dated 22.02.2022 and accused Ashraf was declared PO vide order dated 29.11.2021. A separate charge was framed against accused Ashraf U/s 174A IPC on 08.03.2022.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- HC Jitender (Joined Investigation alongwith IO) PW2 :- Mohd. Ali (Complainant) DOCUMENTARY EVIDENCE Ex. PW1/A :- Arrest memo of accused Adari @ Ravibul Ex. PW1/B :- Personal Search Memo of accused Adari @ Ravibul Ex. PW1/C :- Disclosure statement of accused Adari @ Ravibul Ex. PW1/D :- Seizure memo of Rs. 400/-
Ex. PW2/A :- Statement of complainant
ANKUR
5. Mohd. Ali PW2 was examined in chief as he is the PANGHAL
Digitally signed by
ANKUR PANGHAL
eye witness as well as complainant in the present case. PW2 was Date: 2023.01.17
20:25:58 +05'30'
Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 3 of 10
examined today who deposed that he does not remember date, month and year of incident due to lapse of time.
5.1 PW2 was cross-examined by Ld. APP and he denied all the suggestions to put to him by ld. APP regarding making of statement Ex. PW2/A. PW2 failed to identify the accused Adari and Ashraf, who were present in the court today. He denied the suggestion that contents of statement Ex. PW2/A were read over to him by the IO and that the accused Adari & Ashraf were arrested at his instance. PW2 failed to identify accused Adari & Ashraf despite drawing their attention towards them by Ld. APP.
5.2. PW3 was cross-examined by Ld. LAC for accused Adari @ Ravibul wherein he deposed that he had never seen Adari & Ashraf and today he has seen both of them for the first time.
6. PW1 HC Jitender was also examined but he is not the witness to incident and he is formal witness who has supported the case of the prosecution and proved the documents mentioned in the table above.
6.1. Complainant Mohd. Ali has given a separate statement today wherein he has submitted that the present case has been settled with the accused persons and he wants to compound the matter with accused persons.
6.2. In view of statement of complainant the offence under section 411 IPC stands compounded between the complaianant and accused Adari @ Ravibul. Accordingly, accused Adari @ Ravibul is acquitted for the offence ANKUR Digitally signed punishable U/s 411 IPC. by ANKUR PANGH PANGHAL Date: 2023.01.17 AL 20:26:13 +05'30' Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 4 of 10 6.3. Accused Ashraf has submitted that he wants to plead guilty for the offence punishable U/s 174A IPC. The consequences of pleading guilty and the allegations leveled by the prosecution were explained to the accused in vernacular, however, he has reiterated his plea of guilt and stated that his is pleading guilty without any force, pressure or undue influence after understanding the nature of allegations. Vide separate order accused Ashraf was convicted for offence U/s. 174A IPC and arguments were heard on sentence. Order was passed on sentence accordingly, separately today.
7. Since, the prosecution has cited only one independent/public witnesses in the present matter, who is the complainant himself and the witness has turned hostile to the case of prosecution. The identity of accused person and case property in a criminal trial is of paramount importance and no person can be indicted for criminal liability, unless his identity is established beyond any shadow of doubt. In the present case, since the complainant/eyewitness of the case has not supported the version of the prosecution, no fruitful purpose will be served to examine other witnesses as they are formal in nature and even if their testimonies ever taken together, they will not establish the guilt of the accused.
8. Prosecution evidence was closed, vide separate order passed today, as recording of any further prosecution evidence in the present case would result in to wastage of judicial time, money, resources and will also cause unnecessary operation to the accused persons who have anyhow faced the ordeal of the trial in the present case for last seven years. In this regard reference may be made to a Division Bench Judgement of the ANKU Digitally signed by R ANKUR PANGHAL PANG Date:
2023.01.17 20:26:25 Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 5 of 10 HAL +05'30' Hon'ble High Court of Delhi 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 the ultimate chance of conviction is very bleak for there is no prospect of the case and again 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 of a future date."
8.1. Right to speedy trial is constitutionally guaranteed fundamental right of the accused persons. The present case pertains to an FIR of the year 2015 and continuing the trial any further, when it is clear that prosecution can never hope to prove its case against the accused persons would tantamount to violation of right to speedy trial of the accused. It has been held in P.Ramchandra Rao vs. Satte of Karnataka AIR 2022 SC 1856 that the court should exercise its power available under Criminal Procedure Code to give effect to the right of speedy trial to the accused. Similar observations were made in Pankaj Kumar vs. State of Mahrashtra AIR 2008 SC 3057. Furthermore, in Satish Mehra vs. Delhi Administration & Abr. 1996 JCC 507 Hon'ble Supreme Court has held that valuable time of the court should not be wasted merely for formal completion of procedure when there is no chance of the trial culminating in conviction.
9. Since nothing incriminating has come on record against the accused persons, recording of their statement under section 313 CrPC was dispensed with.
ANKUR Digitally signed by ANKUR PANG PANGHAL Date: 2023.01.17 HAL 20:26:36 +05'30' Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 6 of 10
10. I have heard the Ld. APP for the state and Ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
11. It is argued by the Ld. APP for the state that evidence of hostile witness can be read on material points and it can be used to prove the offences charged against the accused. As such, it is prayed that the accused be punished for the set offences.
12. Per contra, the Ld. LAC for the accused Adari @ Ravibul has argued that the state has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that main witness has turned hostile and despite reading his evidence as a whole, nothing has come on record against the accused. As such, it is prayed that the accused persons be acquitted for the said offences.
13. The accused persons have been charged for the offence under section 392 IPC. For offence under Section 392 IPC, it has to be proved that the accused caused hurt to any person while committing either theft or extortion amounting to robbery, and it is to be further proved that other ingredients of the offence were fulfilled by the acts of the accused. For theft amounting to robbery, it is to be proved that the accused has voluntarily caused or attempted to cause death, hurt or wrongful restraint to the victim.
14. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by reducing cogent evidence that points ANKUR PANGHAL Digitally signed by ANKUR PANGHAL Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 7 of 10 Date: 2023.01.17 20:26:46 +05'30' towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
15. The main witness of the prosecution has turned hostile in the present case on the point of identity of accused person. It is pertinent to note that under Indian law, the evidence of hostile witnesses not discarded completely. The legal maxim, "false in uno false in ombnibus" is not applicable in India. With respect to the evidentiary value of hostile witness, it was observed by the Apex Court in the case of Rohtash Kumar vs. State of Haryana (2013) 14 SCC 434, 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 wahed 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."
16. Therefore, it has to be seen if the evidence of such hostile witness can be relied in part. In the present case, the evidence available on record is not sufficient to help the prosecution. PW2 has failed to identify the accused persons. PW2 has deposed that he has never seen accused Adari & Ashraf and today he has seen them for first time. During his cross examination by Ld. APP, PW2 failed to identify the accused persons despite drawing his attention towards them. Therefore, there is nothing on record to connect the accused Adari & Ashraf with the commission of the offence.
17. Thus, even if the evidence of the hostile witness PW2 is considered partly, there is nothing to implicate the ANKUR PANGH accused person Adari & Ashraf in the present case. As such, even AL Digitally signed if all the other prosecution witness cited in the list of witnesses by ANKUR PANGHAL Date: 2023.01.17 20:26:58 +05'30' Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 8 of 10 were to be examined, the case of the prosecution could not be proved.
18. Furthermore, it has been held by the Hon'ble Supreme Court in Dr. S.L. Goswami vs. State of Madhya Pradesh 197 SCC (Crl.) 258 that the accused persons are entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution.
18.1. To recapitulate the above discussion, to bring home the guilt of accused person, the prosecution was required to prove the offence under section 392 IPC beyond reasonable doubt. The star witnesses of the prosecution i.e., PW2 has turned completely hostile. There is no evidence to link the accused persons Adari & Ashraf with the crime charged against them. Their identity as culprit is not proved during the trial. Further, 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 in question and identity of accused persons and thus, the accused persons are entitled to benefit of doubt.
19. Resultantly, the accused person namely, ADARI @ RAVIBUL S/o MOHD. YAKUB is hereby found not guilty. He is hereby ACQUITTED of the offences under section 392/411 IPC.
19.1. Resultantly, the accused person namely, ASHRAF S/o ABDUL KALAM is hereby found not guilty for the offence under section 392 IPC. He is hereby ACQUITTED ANKUR of the offences under section 392 IPC. However, accused person PANGHAL namely ASHRAF S/o ABDUL KALAM is hereby Digitally signed by ANKUR PANGHAL Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 9 of 10 Date: 2023.01.17 20:27:10 +05'30' CONVICTED of the offence punishable U/s 174A IPC on his pleading guilty.
20. Copy of this judgment be given free of cost to the convict.
21. File be consigned to record room after due compliance.
Announced in open court on 17/01/2023 in the presence of the accused. The judgment contains 10 pages and each page have been signed by the undersigned.
ANKUR Digitally signed by ANKUR
PANGHAL
(ANKUR PANGHAL)
PANGHAL Date: 2023.01.17 20:27:23
+05'30' MM-06, Shahdara District,
Karkardooma Courts, Delhi
17/01/2023
Cr. Case No. 80856/2016 State vs. Adari @ Ravibul & Ors. Page 10 of 10