Delhi District Court
State vs . Mahavir & Ors on 19 March, 2018
State vs. Mahavir & Ors
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE (MAHILA COURT-02), SHAHDARA,
KARKARDOOMA COURTS, DELHI
State vs. Mahavir & Ors
FIR No.17/2007
U/sec. 323/506/34
PS: Seemapuri
Date of institution of the case: 20.07.2007
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 19.03.2018
Unique I. D. No. 02402R0548322007
JUDGMENT
a) Sr. No. of the case : T-13/18
b) Date of commission of the offence : 18.09.2006
c) Name of the complainant : Shri Devi Ram
d) Name of the accused and his parentage : 1. Mahavir S/o Sh. Thakur Das R/o H.No.F-295, Old Seemapuri, Delhi. (Expired)
2. Sheela D/o Sh. Vijay Kumar Both R/o H.No.F266, Old Seemapuri, Delhi. (PO)
3. Vijay Kumar S/o Sh. Visheswar Rajak
4. Ravishankar S/o Sh. Devi Rai R/o J-290, Old Seemapuri, Delhi.
FIR No.17/2007 Page No.1 of 8 State vs. Mahavir & Ors e) Offence complained of or proved : Sec. 323/506/34 IPC f) Plea of the accused : Pleaded not guilty g) Final order : Acquitted h) Date of such order : 19.03.2018
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 18.09.2006 at about 1:30-02:00 p.m., at the place Mark A in the Site Plan, accused persons caused simple hurt to the complainant and extended life threats to him. The complainant approached the police, however, his FIR was not lodged. Therefore, he filed an application under section 156 (3) of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) before the court. Consequently, the present FIR bearing No. 17/2007 was registered at PS Seema Puri against the accused persons.
After completion of the investigation, charge-sheet under sections 324/325/506/34 IPC 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, charge under section 323/506(ii)/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
During the course of trial, accused Sheela stopped appearing before the court and consequently, she was declared proclaimed offender vide order dated 12.02.2014 and accused Mahavir expired and the proceedings qua him were dropped as "abated" vide order dated 30.05.2014.
With a view to connect the accused with the crime, the prosecution has examined as many as three witnesses.
PW1/Devi Ram was the complainant. He stated on oath that on the date of incident, he was sleeping on a cot outside his house. At about 02:00 p.m., accused Vijay FIR No.17/2007 Page No.2 of 8 State vs. Mahavir & Ors along with his daughter Sheela came and started beating him with danda. He stated that he visited police station, however, his case was not registered. Thereafter, he filed a complaint before the court. Complaint is Ex.PW1/A. On that day, further examination-in-chief of the complainant/victim was deferred at his request as he was not feeling well.
But, thereafter, he could not be produced as a witness as he expired.
PW2/Head Constable Ramzan had accompanied the IO during the investigation.
PW3/Smt. Laxmi was the daughter-in-law of the complainant. She was cited as an eye witness to the alleged incident. However, she feigned complete ignorance about the case.
Since the witness resiled from her previous statement given to the police, she was cross-examined by the learned APP for the State with the permission of the court and was confronted with her statement Mark A. She during her cross-examination by the learned APP for the State denied all the suggestions put forth by the learned APP for the State.
Since the victim had expired and another public witness had not supported the prosecution case, PE was closed and request of the learned APP for State to examine all the prosecution witnesses was declined as no useful purpose would be served by examining the rest of the witnesses, who are formal in nature and the ingredients of the offence cannot be established from their testimonies, inasmuch as, the alleged incident was neither committed in their presence nor it is the case of the prosecution.
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 FIR No.17/2007 Page No.3 of 8 State vs. Mahavir & Ors 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 on a future date..........." Since there was no incriminating circumstance against the accused persons namely Vijay and Ravi Shankar, recording of their statement under section 313 of the Code was also dispensed with.
Arguments It is submitted by the learned APP for the State that the complainant has supported the prosecution in his examination-in-chief, however, thereafter; he could not examined on account of his death. He submitted that there is sufficient material on record to convict accused Vijay.
Per contra, it is submitted by the learned defence counsel that the complainant/PW1 expired during the course of trial, and as a consequence thereof even his examination-in-chief could not be completed, thus making his part- recorded testimony inadmissible in evidence.
He placed reliance on a judgment passed by the Hon'ble High Court of Delhi 2006, Rajdhani Law Reporter, 49 (Note) wherein it was observed that if a witness is partially examined and is not available for the cross-examination then his incomplete statement cannot be read in evidence at all and the incomplete statement has no evidential value.
Per contra, it is submitted by the learned APP for the State that the earlier testimony of the complainant cannot be treated as incomplete as he had expired. He urged that the testimony of the complainant is admissible and it cannot be discarded on this ground. He drew the attention of the court towards section 33 of the Indian Evidence Act. It reads as under:-
33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.--Evidence given FIR No.17/2007 Page No.4 of 8 State vs. Mahavir & Ors by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided-- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross- examine; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
In reply, it is stated by the learned counsel for the accused that his earlier examination in court cannot be read in evidence as his examination-in-chief was deferred at his request and thereafter he could not be examined on account of his death. He submitted that incomplete testimony does not fall in the category of evidence.
He placed reliance on a judgment passed by a Division Bench of the Hon'ble High Court of Delhi in the case of Ripen Kumar vs Department Of Customs 2000 (72) ECC 722, wherein it was observed as under:-
"The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examination-in-chief and cross-examination. That statement alone will from evidence. In the present case petitioner had been deprived to cross-examine PW1 thereby dislodge his testimony. Hence, incomplete statement of PW1 in the absence of cross-examination could not be treated as evidence nor the same could be relied upon. Therefore, the observation of learned ASJ that incomplete statement could have been the basis of deciding the question of charge is FIR No.17/2007 Page No.5 of 8 State vs. Mahavir & Ors contrary to law. Part statement of PW1 did not attain the status of evidence, nor on the basis of the same it could be said that statement of the accused recorded under Section 108 of the Customs Act stood proved."
He reiterated that the statement of the complainant being incomplete his evidence could not be considered.
He further submitted that another witness, who has been projected by the prosecution as an eye witness, has not supported the prosecution and has turned hostile.
He, therefore, prayed that the accused persons may be acquitted of the charge leveled against them.
I have given my thoughtful consideration to the rival submissions made by the counsel on either side.
Decision and brief reasons for the same 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.
To bring home the guilt of the accused persons, the prosecution has cited as many as nine witnesses in the list of witnesses annexed with the charge-sheet. Out of these nine witnesses, informant was the victim and PW3 was his daughter-in-law and was projected as an eye witness of the alleged manner of occurrence. Rest FIR No.17/2007 Page No.6 of 8 State vs. Mahavir & Ors witnesses are formal in nature and the guilt of the accused cannot be proved from their testimonies, inasmuch as, the alleged incident was neither committed in their presence nor it is the case of the prosecution. As per the record, the complainant was partly examined-in-chief on 16.11.2009 but his further examination was deferred at his request as he was not feeling well on that day. On the subsequent dates, his examination could not be recorded as the parties sought time to explore the possibility of settlement. However, thereafter, he could not be examined as he unfortunately expired. Hence, no reliance can be placed on the incomplete testimony of the complainant/victim. PW3/Smt. Laxmi was cited as an eye witness to the incident, however, she was declared hostile because she had given evidence adverse to the State and inconsistent with the statement she had made to the police during the course of investigation. Her cross-examination by the learned APP for the State did not yield any positive evidence. She, during her cross examination conducted by learned APP for the State, stuck to her hostile stand which she had taken in her examination-in-chief to complete disadvantage of the prosecution case.
Result The entire prosecution case rested upon the testimony of the complainant/victim and PW3/Smt. Laxmi. In other words, it can be said that the entire edifice of the prosecution was the statement of complainant/victim. However, the complainant/victim could not be examined by the prosecution on account of his unfortunate death during the pendency of the trial whereas another eye-witness PW3, feigned complete ignorance about the incident and did not support the prosecution case.
Thus, nothing could come out on the record to prove the necessary ingredients of the offence. In the absence of any eye witness account as to how the incident has taken pace, accused persons namely Vijay and Ravi Shankar cannot be fastened with any criminal liability as there is no direct evidence to connect them with the crime.
FIR No.17/2007 Page No.7 of 8State vs. Mahavir & Ors It is settled proposition of law that the guilt of the accused must be proved beyond reasonable doubt because the law presumes that the accused is innocent. This presumption must prevail until the end unless overcome by strong, clear and compelling evidence. However, in the case in hand the prosecution has failed in establishing the guilt of the accused persons namely Vijay and Ravi Shankar beyond reasonable doubt. Consequently, accused persons namely Vijay and Ravi Shankar are ACQUITTED of the crime charged.
Bail bonds furnished under section 437-A of the Code shall remain in force for a period of six months from today.
File be consigned to record room after due compliance and be revived as and when accused Sheela appears before the court or is brought before the court after being arrested.
Announced in open Court on 19th day of March, 2018 (Babita Puniya) MM (Mahila Court-02)/Shahdara KKD Courts/Delhi/19.03.2018 This judgment contains 8 pages and each page bears my signature.
(Babita Puniya) MM (Mahila Court-02)/Shahdara KKD Courts/Delhi/19.03.2018 FIR No.17/2007 Page No.8 of 8 State vs. Mahavir & Ors FIR No. 17/2007 PS: Seema Puri 19.03.2018 Present: Learned APP for the State Accused Sheela is PO Proceedings qua accused Mahavir have been abated vide order dated 30.05.2014.
Rest accused on bail along with counsel Death verification report of complainant Devi Ram received. Perused. In view of the report submitted by SHO, PS Seemapuri, PW Devi Ram is dropped from the list of witnesses.
PW3/Sheela examined and discharged. No other PW is present today. It is submitted by the learned defence counsel that continuance of the prosecution as against the accused persons would not serve any useful purpose and would be a sheer waste of time as the complainant has expired and another alleged eye witness has turned hostile.
Heard. File perused.
Perusal of judicial record shows that the prosecution has cited as many as nine witnesses in the list of witnesses annexed with the charge-sheet. Out of these nine witnesses, PW1 was the complainant as well as victim and PW3 was cited as an eye witness and rest witnesses are formal in nature.
The complainant/victim is reported to have expired and the alleged eye witness has not supported the prosecution story and has turned hostile.
Therefore, I am of the considered view that no useful purpose will be served by examining the rest of the witnesses who are formal in nature. Learned APP for the State has requested that opportunity may be given to the State to examine all the prosecution witnesses. Request of the learned APP is declined in view of the above discussion. PE Closed. In this regard reference may be made to a Division Bench FIR No.17/2007 Page No.9 of 8 State vs. Mahavir & Ors 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 trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
Statement of the accused persons under section 313 of the Code is also dispensed with as there is no incriminating circumstance against them.
Final arguments heard. File perused.
Vide separate judgment of even date, accused persons namely Vijay Kumar and Ravi Shankar have been acquitted of the crime charged.
Bail bond furnished under section 437-A of the Code shall remain in force for a period of six months from today.
File be consigned to record room after due compliance and be revived as and when accused Sheela appears before the court or is brought before the court after being arrested.
(Babita Puniya) MM (Mahila Court-02)/Shahdara KKD Courts/Delhi/19.03.2018 FIR No.17/2007 Page No.10 of 8