Delhi District Court
State vs . Shrikant Etc on 5 March, 2015
State Vs. Shrikant etc
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-01, EAST, KARKARDOOMA COURTS, DELHI
State vs. Shrikant etc.
FIR No. 01/04
U/sec. 356/368/120-B/323/34 IPC
PS: Gandhi Nagar
Date of institution of the case: 20.04.2004
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 05.03.2015
Unique I. D. No 02402R0097572004
JUDGMENT
a) Sr. No. of the case : 59/2
b) Date of commission of the offence : 31.12.2003
c) Name of the complainant : Hari Om
d) Name of the accused and his parentage :1. Shrikant, S/o Sh. Khichu Ram @ Girraj R/o Village Nangla Ahiwasi,PS Madrak, District Aligarh, UP
2. Krishan Kant, S/o Sh. Jagdish Prasad R/o Viilage Pethgao, PS Mutsan, District Hathras, UP
3. Rama Kant, S/o Sh. Jagdish Prasad FIR No. 01/04 Page No. 1 of 8 State Vs. Shrikant etc R/o Viilage Pethgao, PS Mutsan, District Hathras, UP
4. Sunil Sabharwal S/o Sh. Tilak Raj Sabharwal R/o H. No. D-32, Sector 24, District Gautam Budh Nagar, Noida, UP
e) Offence complained of or proved : Sec. 365/368/120-B/323/34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 05.03.2015
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 01.01.2004, complainant Hari Om Sharma lodged an FIR against the accused persons with regard to assault and abduction of his younger brother namely Prabhu Dayal Sharma from Gandhi Nagar market. Thereafter, victim Prabhu Dayal Sharma returned home and informed the police that he and Anil Kumar Sharma were assaulted and abducted by the accused persons, however, Anil Kumar Sharma fled away taking advantage of the situation. He further claimed that these persons had taken him to various places by TSR and car in Delhi and Mathura.
Thereafter, accused persons namely Shri Kant, Krishan Kant, Rama Kant and Sunil Sabharwal were arrested and their disclosure statements were recorded.FIR No. 01/04 Page No. 2 of 8
State Vs. Shrikant etc After completion of the investigation, charge-sheet was filed before the court. 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 section 365/368 r/w sec. 120-B/323/34 of the IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
With a view to connect the accused persons with the crime, the prosecution has examined only two witnesses.
PW1/Head Constable Madan Pal was the Duty Officer, who recorded the FIR No. 01/04/Ex.PW1/A on the basis of the statement of the complainant Shri Hari Om Sharma.
PW2/Anil Kumar Sharma is the alleged eye-witness and victim. He deposed that some quarrel took place among Prabhu Dayal, Hari Om, Rama Kant, Hantu and others. He stated that he does not know anything about the dispute and cannot identify Rama Kant or Hantu or their associates.
He was cross-examined by learned APP for the State with the leave of the court and confronted him with his statement Mark 'X' purportedly given to the Investigating Officer during the course of investigation. He, however, has not FIR No. 01/04 Page No. 3 of 8 State Vs. Shrikant etc supported the prosecution even in the cross-examination by learned APP and nothing substantive has come on record from this witness.
He during his cross-examination by the ld. APP for the State stated that on the day of incident, he was with Hari Om Sharma, elder brother of Prabhu Dayal at his place of residence situated at Ghaziabad.
During the course of trial, summons sent to complainant Hari Om Sharma and the victim Prabhu Dayal Sharma received back un-served with the report that "not residing at the given address". 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". Therefore, they were dropped from the list of witnesses and the PE was closed and request of the ld. APP for State to examine all the remaining 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 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 FIR No. 01/04 Page No. 4 of 8 State Vs. Shrikant etc 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, statement of the accused persons under section 313 of the Code of Criminal Procedure, 1973 was also dispensed with.
I have heard the rival submissions advanced by the ld. APP for State and the ld. Counsel for the accused persons and have also perused the records very carefully.
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 At the outset, it would be advantageous to reproduce sec. 365 and 368 of the Code. It reads as under:-
FIR No. 01/04 Page No. 5 of 8State Vs. Shrikant etc
365. Kidnapping or abducting with intent secretly and wrongfully to confine person.-- Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person-- Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person for which he conceals or detains such person in confinement.
"Abduction" is defined in Section 362 of the Code, which reas as under:
"Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person".
Thus, the essential ingredients of an offence under Section 365 and 368 IPC are that of abduction. If no abduction is there, the offence under Section 365 and 368 IPC are not made out.
FIR No. 01/04 Page No. 6 of 8State Vs. Shrikant etc Now, let us see whether prosecution has been able to bring home the charge leveled against the accused persons.
The prosecution has cited as many as eleven witnesses in the list of witnesses annexed with the charge-sheet. Out of these eleven witnesses, Prabhu Dayal Sharma is the victim, Anil Kumar Sharma is the alleged eye-witnesses and Hari Om Sharma is the informant/complainant. Rest witnesses are formal in nature.
The entire prosecution case, thus, rests upon the testimony of the complainant Sh. Hari Om Sharma, victim Sh. Prabhu Dayal Sharma and Anil Kumar Sharma. However, the complainant Hari Om Sharma and Victim Prabhu Dayal Sharma could not be examined by the prosecution despite giving numerous opportunities whereas PW2/Anil Kumar Sharma, the alleged eye-witness has turned hostile. He was cross examined at length by ld. APP for the State but no material came on record against the accused which may connect the accused persons with the crime in question. The witness, during his cross examination conducted by ld. APP for the State, stuck to his hostile stand which he had taken in his examination in chief to complete disadvantage of the prosecution case. He feigned complete ignorance about the incident. Thus, nothing could come out on the record to prove the incident or the necessary ingredients of the offence. In the absence of any eye witness account as to how the incident has taken pace, accused cannot be fastened with any criminal liability as there is no direct evidence to connect the accused with the crime. Therefore, I am of the considered opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt.
FIR No. 01/04 Page No. 7 of 8State Vs. Shrikant etc Consequently, the accused namely Shri Kant, Krishan Kant, Rama Kant and Sunil Sabharwal are acquitted of the charge levelled against them. Bail bonds u/s 437-A Cr.P.C furnished. Perused and accepted for a period of six months from today. Original documents, if any, be handed over to the person entitled thereto on acknowledgment. Endorsement, if any, be cancelled. File be consigned to record room after due compliance. Announced in open court on 5th day of March, 2015 (Babita Puniya) MM-01/East/KKDCourts/Delhi 05.03.2015 This judgment contains 8 pages and each page bears my signature.
(Babita Puniya) MM-01/East/KKD Courts/Delhi 05.03.2015 FIR No. 01/04 Page No. 8 of 8