Delhi District Court
State vs . Karan on 28 January, 2019
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
Old SC No. 9669/2016
New SC No. 31/2018
State Vs. Karan
FIR No. 276/2013
U/s: 392/411 IPC
PS: Mandir Marg
1. Date of Institution : 25.02.2015
2. Date of Commencement
of Final Arguments : 22.01.2019
3. Date of Conclusion of
Final Arguments : 22.01.2019
4. Date of Reserving Order : 22.01.2019
5. Date of Pronouncement : 28.01.2019
6. Whether Acquitted or
Convicted? : Acquitted.
Present: Sh. Kamal Akhtar and Sh. Pradeep Kumar, Addl. PPs for
the State.
Accused on bail with Sh. Yogesh Kumar, Advocate.
JUDGMENT
Brief Facts of the Case The brief facts of the case are that complainant Sh. Raj Kumar is a rickshaw puller in the area of Gole Market and resides in a park, near Kali Bari Marg, New Delhi. On 31.12.2013, he ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 1 of 26 reported that at around 10:30 PM, he was taking meals in the park when a boy came over there and started abusing him. Thereafter, he pointed out a knife at him and asked him to take out whatever money he was having and hand over the same to him. Thereafter, the said boy took out seven notes of rupees hundred each from front pocket of his shirt. He raised hue and cry and police arrived over there and apprehended the said boy. The identity of the said boy came to be known as Karan son of Satbir, resident of Jhuggi No. C33/01, G Point, Kali Bari Marg, New Delhi. In the meanwhile, somebody also informed the police by dialing 100 and thereafter investigating officer (IO) reached over there and the said boy was handed over to him for necessary action. These facts led to the registration of the instant case.
2. During investigation, rupees seven hundred, consisting of seven currency notes of hundred each, and a knife were recovered from the accused and the same were seized by the police. A site plan was also prepared and the accused was arrested and his personal search was conducted. His disclosure statement was also recorded and he was got medically examined. PCR Form was also collected. Statements of witnesses were recorded. Investigation was completed and the charge sheet, under Section 392/411 IPC, was filed in the Court on 25.02.2015. Committal of Case and Framing of Charge
3. On completion of formalities under Section 207 CrPC, ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 2 of 26 the case was committed to the Court of Sessions on 05.12.2016.
4. Vide order dated 02.01.2017, my learned Predecessor was pleased to frame charges under Section 392/397/411 IPC against the accused, to which he pleaded not guilty and claimed trial.
Evidence of the Prosecution
5. In support of its case, the prosecution has examined eight witnesses in all.
6. PW 1 is Sh. Raj Kumar, the complainant of the case. He has deposed about the facts of the case on the same lines as were narrated by him to the police, leading to the registration of the instant case. He proved his complaint, Ex PW 1/A. He also proved site plan, Ex PW 1/B, seizure memo of currency notes, Ex PW 1/C, seizure memo of knife, Ex PW 1/D, and arrest memo of the accused, Ex PW 1/E. He also identified the currency notes, Ex P1, and knife, Ex P2.
7. PW 2 is ASI Shamsher Singh. On 31.12.2013, he was working as Duty Officer in Police Station Mandir Marg and his duty hours were from 04:00 PM to 12:00 midnight. On that day at about 10:40 PM, he received information from the Wireless Operator regarding snatching of money by showing knife near Birla Mandir and also apprehension of the snatcher. He recorded the same vide DD Entry No. 38A, Ex PW 2/A, and handed over the same to SI Ravinder for necessary action. On the same day at ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 3 of 26 about 11:45 PM, he received a rukka sent by SI Ravinder through Ct. Jaiprakash. He recorded the FIR, computerized copy of which is Ex PW 2/B and made endorsement, Ex PW 2/C, on the rukka. After registration of the FIR, he handed over a copy of the FIR and the rukka to Ct. Jaiprakash.
8. PW 3 is Ct. Pradeep. On that day, he was posted in Police Station Mandir Marg and was working as DD Writer. On that day, he had prepared the Duty Roster, according to which HC Ved Prakash was on duty at Kali Bari Marg in the area of Police Station Mandir Marg. HC Ved Prakash departed for duty at the aforesaid place vide DD Entry No. 49B, Ex PW 3/A.
9. PW 4 is HC Ved Prakash. He deposed that on 31.12.2013, he was posted at Police Station Mandir Marg and was on duty at Kali Bari Marg in connection with New Year arrangement. At about 10:30 PM, he heard noise of a quarrel and someone shouting chorchor from the nearby park. He went to the park and saw one person shouting chorchor as well as one more person and he apprehended the said person. He turned out to be the person, who had snatched rupees seven hundred from the complainant and his name was subsequently revealed as Karan. He apprehended the said boy, recovered rupees seven hundred from him and also a knife. IO reached the spot after some time and he handed over the said boy, currency notes and a knife to him. He has proved the seizure memo of currency notes and knife, Ex PW ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 4 of 26 1/C and D, and the arrest memo of accused, Ex PW 1/E. Personal search of the accused was conducted vide memo, Ex PW 4/A. He has identified the currency notes and the knife, Ex P1 and P2, respectively.
10. PW 5 is Sh. Jaikaran Paswan, also a rickshaw puller. He deposed that on 31.12.2013 at about 10:30 PM, he was also present in the park and had just finished his dinner. He saw that Raj Kumar and Karan were grappling with each other and when he questioned Karan, he started abusing him. On this, he made a telephonic call to the police, PCR police arrived over there and took Karan with them. He also deposed that both Karan and complainant Raj Kumar were taken by the police to the Police Station. He also deposed that Raj Kumar told him that Karan had snatched rupees seven hundred from him after showing a knife.
11. PW 6 is Ct. Jaiprakash. He deposed that on 31.12.2013, he was posted in Police Station Mandir Marg. He also deposed that on receipt of DD No. 38A at about 10:40 PM, he along with SI Ravinder had gone to the spot at Tiwari Chowk, Kali Bari Marg, New Delhi. There, HC Ved Prakash, the accused and complainant were present. HC Ved Prakash handed over the accused to the IO and told that he had snatched rupees seven hundred from the complainant by showing a knife. SI Ravinder recorded statement, Ex PW 1/A, of the complainant, made endorsement, Ex PW 8/A, thereon and handed over the same to him for getting a case ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 5 of 26 registered in the police station. He took the rukka to the police station, got the case registered and returned to the spot. The accused was arrested vide memo, Ex PW 1/E, his personal search was conducted vide memo, Ex PW 4/A, and his disclosure statement was recorded vide memo, Ex PW 6/A. He also proved seizure memo of the currency notes and knife, Ex PW 1/C and D.
12. PW 7 is SI Dharmender Kumar. The investigation of the case was transferred to him in May 2014. He collected the PCR Form, Mark A, completed the investigation and filed the charge sheet.
13. PW 8 is SI Ravinder, IO of the case. He deposed that on 31.12.2013, he was posted in Police Station Mandir Marg and on receipt of DD Entry No. 38A, Ex PW 2/A, he went to the spot. Thereafter, he has deposed on the same lines as deposed to by earlier witnesses regarding recording of statement of complainant, arrest of the accused, seizure of currency notes and knife and preparation of site plan. He has also identified the currency notes, Ex P1, and the knife, Ex P2.
14. Thereafter, prosecution evidence was closed. Statement of the Accused and Defence Evidence
15. Statement of the accused was recorded under Section 313 CrPC, wherein he denied the allegations against him to be incorrect stating that no such incident as deposed to by the complainant had taken place and submitted that he has been ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 6 of 26 falsely implicated in this case. He stated that on the date and time of incident, he was taking drinks in the park on the occasion of New Year day and the complainant and other rickshaw pullers objected to it and abused him. On account of this, people collected on the spot and started crying pakdopakdo and he ran away from the spot. However, the police picked up his brother and wife in order to force him to surrender and when he surrendered before the police at 01:30 AM on 01.01.2014, police planted upon him rupees seven hundred and a knife and implicated him in this case of robbery. He stated that he did not snatch any money from the complainant by showing any knife but he did admit that he had slapped the complainant. He expressed his desire to lead evidence and has examined DW 1 Sh. Akash as a witness.
16. DW 1 Sh. Akash deposed that on the date of incident, he was called to Police Station, Mandir Marg by the police at around 08:00 PM to 09:00 PM. Thereafter, Karan reached the police station and when Karan reached there, he was let off by the police. He also deposed that police planted money and knife on his brother.
Submission of the Parties
17. I have heard the arguments at the bar and have carefully gone through the record.
18. It is submitted by learned Addl. PP that PW 1 Sh. Raj Kumar, complainant of the case, has clearly deposed that on ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 7 of 26 31.12.2013 at about 10:30 PM, the accused showed him knife, threatened him and asked him to hand over whatever money he was having. It is submitted that thereafter the accused snatched rupees seven hundred from the complainant. It is further submitted that the complainant has identified the currency notes, knife as well as the accused. It is further submitted that deposition of the complainant proves the case of the prosecution. He also submitted that PW 5 Jaikaran Paswan had informed the police immediately after the incident and DD Entry No. 38A, Ex PW 2/A, was recorded to the effect that one person had snatched money by showing knife and he had been apprehended on the spot. It is submitted that this is the immediate action and its truthfulness cannot be doubted, as the accused was apprehended on the spot. It is also submitted that PW 4 HC Jai Prakash was on duty near the place of incident in connection with New Year day arrangement. It is submitted that on hearing the noise, he reached the spot and on coming to know of the robbery, he immediately apprehended the accused and recovered the robbed amount of rupees seven hundred and a knife from the accused and has identified the same as Ex P1 and P2 respectively. It is repeatedly submitted that in the instant case, a knife was used by the accused in the commission of robbery and the robbed amount was recovered on the spot from the accused. It is submitted that on the basis of evidence led on record, the prosecution has been successful in proving its case beyond ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 8 of 26 reasonable doubt under Section 392 read with Section 397 IPC against the accused.
On the other hand, it is submitted by learned defence counsel that it was a simple case of quarrel between the accused and the complainant and the police has deliberately and wrongly converted it into a case of robbery by manipulating the facts. It is submitted that in the crossexamination, PW 1 Sh. Raj Kumar has himself deposed that the accused came to him and caught hold of his collar and started beating him by fists and thereafter the accused was caught, as he did not run away from the spot. It is also submitted that PW 5 Sh. Jaikaran Paswan, other rickshaw puller, who was also present on the spot, has not supported the prosecution case that the accused had snatched any money from the complainant by showing knife. It is also submitted that the accused was not arrested from the spot but after quarreling with the complainant, he had run away from the spot and thereafter the police picked up his brother and took him to police station to force the accused to surrender and thereafter only he came to the police station at about 01:30 AM on 01.01.2014. It is submitted that thereafter the accused was falsely implicated in this case. It is repeatedly submitted that the accused is a Jhuggi dweller and complainant is a rickshaw puller and both reside in the same area and they had quarreled with each other and this simple quarrel/drunken brawl has been wrongly converted into a case of ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 9 of 26 armed robbery by the police. It is further submitted that this submission is proved by the fact that PW 5 Sh. Jaikaran Paswan was not supportive of the prosecution version and his statement, Ex PX, was recorded by the police on 10.01.2015, more than one year after the incident. It is repeatedly submitted that the prosecution has failed to prove its case against the accused beyond reasonable doubt, despite the deposition of PW 1 Sh. Raj Kumar and benefit of such doubt always goes to the accused. It is submitted that the accused is innocent and may be acquitted.
19. In rebuttal, learned Addl. PP has argued on the same lines that the accused was caught on the spot and the robbed amount and knife were recovered from him immediately after the incident. It is submitted that this proves the case of the prosecution beyond reasonable doubt.
20. I have carefully considered the submissions made at the bar in the light of material on record.
Legal Provisions
21. Section 392 IPC, which deals with punishment for robbery, reads as under:
"Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 10 of 26 Section 397 IPC, which deals with robbery, in which a deadly weapon is used by an offender, reads as under:
"If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
Origin of the Incident: Whether a Quarrel or Robbery?
22. It is the case of the prosecution that it is a case of armed robbery, wherein the accused pointed a knife at the complainant and robbed him of rupees seven hundred, whereas the accused has claimed that he was drunk and had quarreled with the complainant, which quarrel has wrongfully been converted into a case of robbery.
Complainant Sh. Raj Kumar has been examined as PW 1 and relevant part of his testimony reads as under:
"On 31.12.2013 at about 10:30 PM I was taking meal alongwith two other boys inside the Park, Pani ki tanki, Kali Badi. (I am rickshaw puller by profession). At that time accused Karan present in the court today came there and showed me a knife and abused me and threatened me and asked me to hand over him whatever money I was having with me. Thereafter, he took out Rs.700/ in the denomination of Rs.100/ from the pocket of ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 11 of 26 my shirt. Thereafter, I started shouting. Police came there and accused was caught inside the park, whose name was later on revealed as Karan. My statement was recorded by the police which is now Ex PW 1/A bears my signature at point A......."
He also deposed that rupees seven hundred and knife were recovered from the accused in the park itself. This witness was crossexamined and in the crossexamination, he deposed as under:
"On the day of the incident, I was taking dinner with Jaikaran and my brother Bishambhar Paswan. When I had finished my dinner, accused Karan came to me and caught hold of my collar. Thereafter, he started beating me by fists. The accused did not run away from the spot. He had taken rupees seven hundred from my pocket. The policeman who was already present in the park caught hold of the accused. In the meanwhile, Jaikaran made a PCR call......."
23. A bare perusal of his testimony reveals that at the time of incident, he was taking meal with two other persons, namely Jaikaran and his brother Bishambhar Paswan. However, in the examinationinchief, he did not name these two persons and also did not tell as to who had called the police. However, in the cross examination, he deposed that it was Jaikaran, who had made a PCR call. In his statement, Ex PW 1/A, on which the instant case ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 12 of 26 was registered, he stated that someone had called the police at 100. This means that at the time of incident, he was not knowing as to who had made the telephonic call. Furthermore, in his statement, Ex PW 1/A, he did not say anything about the recovery of rupees seven hundred and a knife from the accused, though both were recovered when he made the statement. These minor things, though insignificant but are important, as the case of the defence is that the facts of the case have been manipulated to implicate the accused in this case. In this background, it is instructive to take a look on the testimony of PW 5 Sh. Jaikaran Paswan, who was also admittedly present on the spot and was taking dinner with the complainant.
The relevant part of testimony of PW 5 Sh. Jaikaran Paswan reads as under:
".......On the day of the incident, we had just finished our dinner. I saw that Raj Kumar and Karan were grappling with each other. I knew Raj Kumar since he is resident of a village neighbouring to my village. I did not know Karan from before. I questioned Karan, whose name I was not known at that time, as to why he was grappling with Raj Kumar. On this, he started abusing me. On this, I made a telephonic call to PCR, police arrived and took away Karan. My mobile number was 9711686793. Karan is present in Court and I identify him.
I cannot say as to why Karan was ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 13 of 26 grappling with Raj Kumar. However, a knife was recovered from the possession of accused Karan and at that time even policemen were present on the spot. Both Karan and Raj Kumar were taken by the police to the police station. Raj Kumar told me that Karan was snatching money from him by showing a knife to him. Raj Kumar had told me that Karan had snatched rupees seven hundred from him after showing the knife."
In crossexamination, he deposed as under:
".......The money amounting rupees seven hundred, which Raj Kumar had told me that the accused had snatched from him on knife point, were not recovered from the accused. The knife was also not recovered from the accused as when the policemen shouted 'pakropakro', he had thrown the knife somewhere. The knife could not be recovered in my presence. I had not seen the accused pointing out the knife at Raj Kumar."
24. This witness despite being present with the complainant has not supported the prosecution version. The complainant deposed that he was robbed by the accused of rupees seven hundred at knife point, but this version is not supported by PW 5 Sh. Jaikaran Paswan despite being present on the spot. He deposed that he saw the two grappling and does not know as to why were they grappling. Not only this, he also said that nothing was recovered from the possession of the accused in his presence. The ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 14 of 26 prosecution also did not put the recovered property to him for identification. Not only this, his statement, Ex PX, was recorded by IO PW 7 SI Dharmender Kumar on 10.01.2015, though the incident took place on 31.12.2013, and no reason for this delay has been given, though the witness denied that he had made any such statement. The delay in recording the statement of this witness indicates that he might not have been willing to support the prosecution version.
In an authority reported as Sudershan Kumar Vs. State of H.P., (2014) 15 SCC 666, while dealing with the impact of delay in recording of statement of witness under Section 161 CrPC, Hon'ble Supreme Court observed in paragraph 30 as under:
"There is another striking and significant feature in this case which cannot be lost sight of, namely, there was a delay of 77 days in recording the statements of persons under Section 161 CrPC. No explanation, worth the name, is coming forth as to why such an abnormal delay took place and it tells a lot about the way investigation was carried out in the present case. This factor also shakes the credibility of the deposition of PW 2, who may have been led to give the statement to save his skin."
Thus, the two witnesses have given entirely different versions of the same incident, though both admit that they were taking dinner at the time of incident. There is no doubt that there ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 15 of 26 is incriminating evidence in the deposition of PW 1 Sh. Raj Kumar. PW 4 HC Ved Prakash, who was present on duty nearby and reached the spot on hearing the noise. He also deposed that he had apprehended the accused on coming to know of the facts of robbery and recovered rupees seven hundred and a knife from the accused. However, PW 5 Sh. Jaikaran has deposed in his crossexamination that one constable was present outside the boundary wall and was watching the entire scene and asked them to apprehend Karan, but he ran away and surrendered to the police after his brother was picked up. Thus, this witness also contradicts the testimony of PW 4 HC Ved Prakash. Thus, there is contradictory version of the incident in the testimony of these witnesses.
25. However, the version given by PW 5 Sh. Jaikaran gets strengthened by the call made to the Police Control Room and reaction of the police to that. In his deposition, PW 5 Sh. Jaikaran deposed that Raj Kumar told him that Karan had snatched rupees seven hundred by showing him a knife. Believing this version, he made a call at 100 from his mobile No. 9711686793 and this version was recorded by the police in PCR Form, Mark A, at 22:25:02 Hrs. and the PCR version reads "Ek Aadmi Ne Chaku Dikhakar Paisa Chhin Liya Jisko Caller Ne Pakad Rakha Hai." On this information, police reached the spot and after enquiry informed the Control Room at 23:39:38 Hrs. reporting that "Chaku Aur Rupaya Chhinane Wali Koi Bat Nahi. Jankar Se Kahasuni. SHO ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 16 of 26 Mauke Par Hai." This recording shows that on receipt of the information, police reached the spot, enquired about the matter and found it to be a case of mutual altercation between two acquaintances. As per the call to the PCR, the offender was also caught by the caller, that is, Jaikaran, but Jaikaran denied this and deposed that the accused had run away, though he admitted that he had made the call. If this call is to be believed that the caller had caught hold of the accused, then there was no occasion for PW 4 HC Jai Prakash to apprehend him after hearing the voice chorchor. Not only this, PW 5 Sh. Jaikaran and DW 1 Akash have deposed that the accused had run away from the spot and came to the police station at about 01:30 AM, when he was arrested in this case. Furthermore, the prosecution has placed a copy of the PCR Form on record, but very cleverly refrained from exhibiting it, thinking that Court may read it and if not proved, it may escape the attention of the Court. This fact is further compounded by the delay in recording the statement of PW 5 Sh. Jaikaran. All these facts give strength to the theory that the prosecution might have manipulated the facts of the case to build a new story. This conflicting version creates doubt about the truthfulness of the prosecution version.
In an authority reported as State of M.P Vs. Ratan Singh, 2018 SCC OnLine SC 1929, while dealing with conflicting version of events, Hon'ble Supreme Court observed in paragraph 7 ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 17 of 26 as under:
"Thus, not only was there a delay in filing of the FIR (which remained unexplained) which was taken as the basis of the investigation in this case, but also there was a wilful suppression of the actual first information received by the police. These factors together cast grave doubts on the credibility of the prosecution version, and lead us to the conclusion that there has been an attempt to build up a different case for the prosecution and bring in as many persons as accused as possible."
Minimization of Offence and Delay in Investigation
26. As per the statement, Ex PW 1/A, the accused had used a knife in the commission of robbery, in which he had robbed complainant of rupees seven hundred. On these facts, the case should have been registered under Section 392 read with 397 IPC, but the police chose to register it as a simple case of robbery under Section 392 IPC and thus minimized the offence. Furthermore, as per the prosecution version, the accused was caught on the spot and the robbed amount of rupees seven hundred and knife were also recovered on the spot. There was nothing much for the police to investigate, but they kept the case pending and recorded the statement of Sh. Jaikaran after more than one year, that is, on 10.01.2015. No reason has been given for this delay. The reason for this is that the police were unable to reconcile the two ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 18 of 26 conflicting versions of the incident in the PCR Form. These facts also create doubt about the truthfulness of the prosecution version. This is further compounded by the fact that the accused was medically examined and PW 6 Ct. Jai Prakash has deposed that the accused was medically examined and this fact has been recorded in the charge sheet also, but the MLC of the accused has not been placed on record. This fact is again very crucial and is indicative of the manipulation of the facts by the police, as the accused has claimed in his statement under Section 313 CrPC that he was taking drinks in the park to which the complainant objected and abused him and on account of this, he had given two slaps to the complainant. On this, the complainant raised hue and cry, he ran away from the spot and was later on made to surrender by the police, as they had picked up his brother. The MLC would have revealed if the accused was drunk or not. The withholding of the MLC by the police strengthens the doubt that the accused was drunk, had a quarrel with the complainant, and due to this he might have been falsely implicated in this case. Though the accused could not prove that he was drunk but by taking this plea he has been successful in creating a doubt, which could have been resolved by the production of MLC.
In an authority reported as Tomaso Bruno Vs. State of U.P., (2015) 7 SCC 178, Hon'ble Supreme Court, while dealing with such a situation, observed in paragraphs 27 and 28 as under:
___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 19 of 26 "27. As per Section 114 Illustration (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 Illustration (g) of the Evidence Act is only a permissible inference and not a necessary inference......."
28. .......Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, the prosecution in possession of the best evidence, CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."
Onus of Proof on the Accused
27. It may be noted that defence has only to create a doubt about prosecution case or to probablize a fact in its defence. The accused bears no burden of proof. Defence is not required to prove its case beyond reasonable doubt. It is the burden of the prosecution to do so. It is instructive to take note of the law laid down by the Hon'ble Supreme Court in an authority reported as M. S. Narayana Menon @ Mani Vs. State of Kerala and Another, (2006) 6 SCC 39, wherein it observed in paragraphs 46 and 47 as ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 20 of 26 under:
"46. In Harbhajan Singh v. State of Punjab this Court while considering the nature and scope of onus of proof which the accused was required to discharge in seeking the protection of Exception 9 to Section 499 of the Penal Code, stated the law as under: (SCR pp. 242 H243 A) "In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a criminal court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him."
47. In V. D. Jhingan v. State of Uttar Pradesh it was stated: (SCR p. 739 H) "It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt."
(See also State of Maharashtra v. Wasudeo Ramchandra Kaidalwar)."
Similarly, in another authority reported as State of Gujarat Vs. Jayrajbhai Punjabhai Varu, AIR 2016 SC 3218, Hon'ble Supreme Court observed in paragraph 13 about burden of proof as under:
"The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 21 of 26 prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other towards his innocence, the view which is favourable to the accused should be adopted."
28. In view of the above discussion, it is clear that there is incriminating evidence in the deposition of the complainant and HC Ved Prakash against the accused, but the same has come under a serious shadow of the doubt and the doubt arises from the material on record and not from any external material. It is a settled law that the benefit of doubt always goes to the accused. It is instructive to take a look on the law relating to benefit of doubt. Law relating to Benefit of Doubt
29. As earlier noted, benefit of doubt always goes to the accused and the accused should get it as a matter of right.
In an authority reported as Gangadhar Behera Vs. State of Orissa, (2002) 8 SCC 381, while dealing with the meaning of and the situation in which the benefit of doubt is to be granted, Hon'ble Supreme Court observed in paragraphs 17 and 18 as under:
"17. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 22 of 26 hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh [(1990) 1 SCC 445 : 1990 SCC (Cri) 151 : AIR 1990 SC 209].) Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v.
Ashok Kumar Srivastava [(1992) 2 SCC 86 :
1992 SCC (Cri) 241 : AIR 1992 SC 840].) A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.) [(1978) 4 SCC 161 : 1978 SCC (Cri) 564 : AIR 1978 SC 1091] .] Vague hunches cannot take the place of judicial evaluation.
"[A] Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. ... Both are public duties...." (Per Viscount Simon in Stirland v. Director of Public Prosecution [1944 AC 315 : (1944) 2 All ER 13 (HL)] quoted in State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48 : AIR 1988 SC 1998] , SCC p. 692, para 17.) ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 23 of 26 Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
18. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489] (SCR at pp.
49293) : (SCC p. 799, para 6) "The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. ... The evil of acquitting a guilty person lightheartedly as a learned author (Glanville Williams in 'Proof of Guilt') has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty.
Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 24 of 26 eroding the judicial protection of the guiltless. ... 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent......' "
Similarly, in another authority reported as Harendra Sarkar Vs. State of Assam, (2008) 9 SCC 204, while dealing with the question of benefit of doubt, Hon'ble Supreme Court observed in paragraph 51 as under:
"Presumption of innocence is a human right. Such a legal principle cannot be thrown aside under any situation. (See Narendra Singh v. State of M.P. [(2004) 10 SCC 699 : 2004 SCC (Cri) 1893] and Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [(2005) 5 SCC 294 : 2005 SCC (Cri) 1057] .)"
(All underlinings by me for supplying emphasis).
Conclusion and Judgment
30. In view of the facts and law discussed above, a serious doubt has crept in about the truthfulness of the prosecution story. Though, the complainant has stood by his story, but there are facts on the file, as discussed above, which put the prosecution story under a serious shadow of doubt. Accordingly, the prosecution has failed to prove its case beyond reasonable doubt. Consequently, accused is granted benefit of doubt and is acquitted.
31. Rupees seven hundred, seized in the case, be returned to the complainant, as the accused has not claimed the same and ___________________________________________________________________________ State Vs. Karan FIR No. 276/13, PS: Mandir Marg Page 25 of 26 the knife is forfeited to the State to be disposed of after time of appeal is over.
32. Bail bond of the accused is cancelled and his surety is discharged. Endorsement, if any, be cancelled. Documents, if any, be released against proper signatures of the surety.
33. As per the provisions of Section 437A CrPC, accused is directed to furnish personal bond in the sum of Rs.10,000/ with one surety in like amount to appear before Hon'ble Appellate Court, as and when he receives notice of appeal.
34. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 28.01.2019 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
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