Delhi District Court
State vs . on 16 December, 2022
IN THE COURT OF METROPOLITAN
MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 1864/2019
CNR No. -: DLSH0200378520109
FIR No. -: 86/2019
Police Station -: M.S.Park
Section(s) -: 392/411 IPC
In the matter of -
STATE
VS.
ISHU CHAUDHARY
S/o Krishan Pal Singh,
R/o H.No. E-416, Gali No-13, Hardevpuri,
Mandoli Road, Shahdara, Delhi.
... Accused Person
1. Name of Complainant :- Malti Devi
2. Name of Accused Person :- Ishu
Chaudhary
3. Offence complained of or :- 392/411 IPC
proved
4. Plea of Accused Person :- Not Guilty
5. Date of Commission of :- 15.03.2019
offence
6. Date of Filing of case :- 12.04.2019
7. Date of Reserving Order :- 16.12.2022
8. Date of Pronouncement :- 16.12.2022
9. Final Order :- Acquitted
Argued by -: Sh. Pramod Kumar, Ld. APP for
the State.
ANKUR
PANGHAL
Sh. Ravi Dhankar, Ld. Counsel
Digitally signed by
for the accused. ANKUR PANGHAL
Date: 2022.12.17
16:50:06 +05'30'
Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 1 of 13
JUDGMENT
1. The case of prosecution in brief is that on 15.03.2019 at about 04:00 PM, under the flyover between Nathu colony and Durga Puri Chowk, Delhi the accused person, namely Ishu Chauhdhary, pushed the complainant from back and snatched ear rings worn by the complainant. The accused person thereafter started running and on making noise by the complainant accused person was apprehended on the spot by public. As such, it is alleged that the accused person has committed the offences punishable under section 392/411 of the Indian Penal Code, 1860 (hereinafter, "IPC") for which the present FIR was lodged in PS M.S.Park.
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 person and chalan was presented in the court on 12.04.2019. After taking cognizance of the offence, the accused person was summoned to face trial.
3. On his appearance, a copy of chargesheet was supplied to him in terms of section 207 of CrPC. On finding a prima facie case against the accused person, charge under section 392 IPC was framed against the accused person on 19.07.2019. The accused person pleaded not guilty and claimed trial.
ANKUR Digitally signed by ANKUR PANGHAL PANGHAL Date: 2022.12.17 16:50:20 +05'30' Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 2 of 13 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 Dinesh Rana (Duty Officer)
PW2 :- Malti Devi (Complainant)
PW3 :- Suman (Eye Witness)
PW4 :- Ct. Rajkumar (Accompanied IO to
spot)
DOCUMENTARY EVIDENCE
Ex. PW1/A :- Computer copy of FIR no. 86/19 PS M.S.
Park
Ex. PW1/B :- Rukka with endorsement
Ex. PW1/A :- Statement of complainant
dated
23.12.2019
Ex. PW1/B :- Seizure memo of ear ring
dated
23.12.2019
Ex. PW1/C :- Site Plan
Ex. PW1/D :- Arrest Memo
Ex. PW1/E :- Personal Search Memo
Ex. P1 :- Case Property i.e., one gold ear ring
Ex. PW4/A :- Disclosure statement of accused
ADMITTED DOCUMENTS (under S. 294 CrPC) ANKU Digitally Ex. C1 :- DD No. 35A dated 15.03.2019 R signed by ANKUR PANGHAL PANG Date:
2022.12.17 16:50:30 Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 3 of 13 HAL +05'30'
5. Malti Devi PW2 was examined in chief as she is the eye witness as well as complainant in the present case. PW2 was examined on 23.12.2019 who deposed that she does not remember exact date of incident, however incident happened before the festival of Holi in the year 2019. She further deposed that she along with her daughter in law namely Suman was going back home by Rickshaw from Durga Puri Chowk at about 3-4 P.M. and someone snatched her earrings from back. She further deposed that she could not identify the snatcher due to low eye vision. Thereafter, someone informed the police and PCR van came at the spot. It is further deposed that police did not make enquiry from her and she did not give any statement to the police regarding the aforesaid incident. It is further submitted that after incident she became unconscious and she cannot tell whether snatcher was apprehended at the spot with her earrings.
5.1 PW2 was cross-examined by Ld. APP and she denied the suggestion that she gave statement to the police voluntarily regarding the aforesaid incident which is Ex.PW1/A. She further denied the suggestion that the aforesaid incident took place on 15.03.2019 at 6:15 PM in front of Easy Day Club Shop at Nathu Colony Chowk ANKUR PANGHAL Shahdara, Delhi. The witness has failed to identify Digitally signed by ANKUR PANGHAL Date: 2022.12.17 16:50:40 +05'30' Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 4 of 13 the accused person despite drawing attention to the accused person. The witness also denied the suggestion that accused was apprehended at the spot by public and recovery of earrings was effected from the accused. The witness has also denied other suggestions put by Ld. APP pertaining to arrest memo, personal search memo, site plan and seizure memo.
5.2. PW2 exhibited her gold ear ring which is Ex.P1 and she was cross-examined by Ld. counsel for the accused wherein she deposed that she did not give any proof of her stolen ear ring to the police during investigation and she further deposed that police did not put any special remark of identification on the stolen property when the same was taken in police possession.
6. Suman (PW3) was examined-in-chief on 24.02. 2020 wherein she deposed that about one year back she along with mother-in-law namely, Malti Devi went to market to purchase household articles where someone looted her earring. It is further deposed that she received information and reached in front of Easy Day Club, Near Nathu Colony Chowk, Shahdara. It is further submitted that when she reached the spot, nobody met her there and police has already taken her mother-in- law as well as thief to police station. It is also deposed that the witness does not know anything ANKU Digitally signed by what happened thereafter. PW3 further submitted R ANKUR PANGHAL PANG Date:
2022.12.17 Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 5 of 13 16:50:50 HAL +05'30' that she cannot identify the accused person as she has not seen him at the spot and police obtained her signatures on some blank papers and forms.
6.1. PW 3 was cross-examined by Ld. APP for the state wherein she has denied the suggestion that she was accompanying her mother-
in-law when she came to market. The witness has also denied the suggestion that incident took place on 15.03.2019 at about 4 PM when she along with her mother-in-law was going back home by an E- rickshaw. The witness has failed to identify accused person despite drawing attention towards the accused person. She has also denied the suggestion that accused was apprehended while running from the spot after committing the incident. The witness also denied the suggestion that one ear ring of her mother-in-law was recovered from the possession of accused. PW3 has denied suggestions put by Ld. APP regarding seizure memo, arrest memo and personal search memo. The witness also denied to have made statement recorded under section 161 CrPC dated 15.03.2019.
7. HC Dinesh Rana (PW1) and Ct.
Rajkumar (PW4) were also examined, who are formal witnesses and supported the case of the prosecution and proved the documents mentioned in the table above.
8. Since, the prosecution has cited only two independent/public witnesses in the present matter, Digitally ANKUR signed ANKUR by one of whom is the complainant herself and another PANG Date:
PANGHAL HAL 16:50:59 2022.12.17 Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 6 of 13 +05'30' is stated to be eye witness to the incident and both the witnesses have 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 and 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.
9. 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 person who has anyhow faced the ordeal of the trial in the present case for last three years. In this regard reference may be made to a Division Bench Judgement of the 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 Digitally advisable to truncate or snip the proceedings and ANKUR signed ANKUR by save valuable time of the courts. The trial should PANG Date:
PANGHAL HAL 16:51:08 2022.12.17 Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 7 of 13 +05'30' not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion of a future date."
9.1. Right to speedy trial is constitutionally guaranteed fundamental right of the accused person. The present case pertains to an FIR of the year 2019 and continuing the trial any further, when it is clear that prosecution can never hope to prove its case against the accused person 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.
10. Thereafter, before the start of defence evidence, in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded without oath under section 313 CrPC. In reply, the accused person stated that he has been falsely implicated in ANKUR Digitally by ANKUR signed PANG Date:
PANGHAL Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 8 of 13 2022.12.17 HAL 16:51:18 +05'30' the present case. Thereafter, he stated that he does not wish to lead evidence in his defence and the same was closed.
11. 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.
12. 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.
13. Per contra, the Ld. counsel for the accused has argued that the state has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that main witnesses have turned hostile and despite reading their 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.
14. The accused person has been charged for the offence under section 392 IPC. For offence under Section 392 IPC, it has to be proved that the accused committed either theft or extortion amounting to robbery, and it is to be further proved that other ingredients of the ANKU Digitally signed by offence were fulfilled by the acts of the accused. R ANKUR PANGHAL PANG Date:
2022.12.17 16:51:28 Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 9 of 13 HAL +05'30' 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.
15. 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 towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
16. The main witnesses of the prosecution have 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 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."
ANKUR Digitally by ANKUR signed PANG Date:
PANGHAL 2022.12.17 HAL 16:51:37 +05'30' Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 10 of 13
17. 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 and PW3 have failed to identify the accused person. Further, both PW2 and PW3 have denied all the suggestions put forward by the prosecution. The witnesses have even denied the fact of giving any statement to the police on which the present FIR was registered. PW3 deposed that her signatures were taken on blank papers. No TIP was conducted in the present matter and IO had only relied upon the statement of witness recorded under section 161 CrPC for identification of accused, which has been denied by the witness. During their cross examination by Ld. APP, PW2 and PW3 were specifically shown the accused, yet they could not identify the accused. Therefore, there is nothing on record to connect the accused with the commission of the offence.
18. Thus, even if the evidence of the hostile witness PW2 and PW3 is considered partly, there is nothing to implicate the accused person in the present case. As such, even if all the other prosecution witness cited in the list of witnesses were to be examined, the case of the prosecution could not be proved.
ANKUR Digitally signed by ANKUR PANGHAL PANGHAL Date: 2022.12.17 16:51:48 +05'30' Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 11 of 13
19. 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.
19.1. 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 and PW3 have turned completely hostile. There is no evidence to link the accused person with the crime charged against him. His 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 person and thus, the accused person is entitled to benefit of doubt.
ANKUR Digitally by ANKUR signed PANGH PANGHAL Date: 2022.12.17 AL 16:52:00 +05'30' Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 12 of 13
20. Resultantly, the accused persons namely, ISHU CHAUDHARYR S/o KRISHAN PAL is hereby found not guilty. Hi is hereby ACQUITTED of the offences under section 392 IPC.
21. File be consigned to record room after due compliance.
Announced in open court on 16/12/2022 in the presence of the accused. The judgment contains 13 pages and each page have been signed by the undersigned.
ANKUR Digitally signed by (ANKUR PANGHAL) ANKUR PANGHAL MM-06, Shahdara District, PANGHAL Date: 2022.12.17 16:52:10 +05'30' Karkardooma Courts, Delhi 16/12/2022 Cr. Case No. 1864/2019 State vs. Ishu Chaudhary Page 13 of 13