Delhi District Court
State vs . on 20 December, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 84028/2016
CNR No. -: DLSH020056692015
FIR No. -: 408/2015
Police Station -: Seemapuri
Section(s) -: 392/411/34 IPC
In the matter of -
STATE
VS.
SHAKIB
S/o Shamsuddin,
R/o H.No. 17, Majboor Nagar,
J.J.Camp, IP Extension, Delhi.
... Accused Person
1. Name of Complainant :- Sanjeev Seth
2. Name of Accused Person :- Shakib
3. Offence complained of or :- 392/411/34 IPC
proved
4. Plea of Accused Person :- Not Guilty
5. Date of Commission of offence :- 15.03.2015
6. Date of Filing of case :- 14.05.2015
7. Date of Reserving Order :- 20.12.2022
8. Date of Pronouncement :- 20.12.2022
9. Final Order :- Acquitted
Argued by -: Sh. Parmod Kumar, Ld. APP for
the State.
Sh. Ashok Kumar, Ld. Counsel for the
accused.
JUDGMENT
1. The case of prosecution in brief is that on 15.03.2015 at about 09:00 PM, near Arvachin School, Dilshad Garden, Delhi the accused person, namely Shakib alon with his co-accused, in furtherance of their common intention forcibly Cr. Case No. 84028/2016 State vs. Shakib Page 1 of 9 snatched bag of complainant, namely Sanjeev Seth, which he was carrying and also caused injuries to complainant. As such, it is alleged that the accused person has 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 person and chalan was presented in the court on 14.05.2015. 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 394/34 IPC was framed against the accused person on 24.06.2015. The accused person pleaded not guilty and claimed trial.
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 :- Atul Singhal (Owner of motorcycle Cr. Case No. 84028/2016 State vs. Shakib Page 2 of 9 bearing reg no. DL-5SZ-7048) PW2 :- ASI Yashpal (Duty Officer) PW3 :- Sanjeev Seth (Complainant) DOCUMENTARY EVIDENCE Mark A :- Photocopy of FIR no. 319/15 PS Bhajanpura Ex. P1 & P2 :- Photographs of motorcycle bearing reg no. DL-5SV-7968 Ex. PW2/A :- Endorsement on rukka Ex. PW2/B :- FIR No. 408/15 PS Seemapuri Ex. PW3/A :- Statement of complainant Ex. PW3/B :- Seizure memo of motorcycle bearing reg no. DL-5SV-7968 Ex. PW3/C :- Seizure memo of bag of complainant Ex. PW3/D :- Arrest memo of accused Ex. PW3/E :- Personal search memo of accused
5. Sanjeev Seth PW2 was examined in chief as he is the eye witness as well as complainant in the present case. PW3 was examined on 15.11.2022 who deposed that on 15.03.2015 at about 9:00PM, he was coming back home from Jhilmil Metro Station and he had a black document bag in his hand. When he reached, near Arvachin Schol, two boys, on black motorcycle, came in front of him and obstructed his way. The boy who was sitting on back seat tried to snatch above said bag but PW3 caught hold of bag and the said boy snatched Rs.400/- from pocket of his shirt. In the meantime, boy who was riding motorcycle hit PW3 with kicks, so he left the bag. Both boys ran away from spot on their motorcycle. He shouted 'Chor-Chor', and a boy came in front of motorcycle of accused persons due to which motorcycle fell down due to dis balance. Boy who was Cr. Case No. 84028/2016 State vs. Shakib Page 3 of 9 riding motorcycle ran away but PW3, with help of public, caught hold of pillion rider. PW3 called police and police came after some time and recorded his statement Ex. PW3/A. Thereafter, police officer prepared site plan Mark A at his instance. Police officer seized motorcycle bearing registratin number DL-5SV- 7968 vide seizure memo Ex. PW3/B. Thereafter, police officer seized my black bag vide seizure memo Ex. PW3/C. Police officer arrested and personally searched accused vide arrest memo and personal search meo Ex. PW3/D and Ex. PW4/E respectively. Thereafter, police officials recordedhis supplementary statement. Witness has failed to identify the accused in court.
5.1 PW3 was cross-examined by Ld. APP and he deposed that he has seen accused at time of occurrence but he could not identify him due to his old age. He denied the suggestion that he is deposing falsely at instance of accused as he has been won over by the accused. He further denied suggestion that he is deposing falsely as he has compromised matter outside court or that he is deliberately favouring accused.
5.2. PW3 was cross-examined by Ld. Counsel for accused wherein he denied suggestion he has signed all the documents while sitting in police station or that nothing happened to him on 15.03.2015 at about 09:00 PM.
6. Atul Singhal (PW1) and ASI Yashpal Singh (PW2) were also examined but neither of them is witness to incident and they are formal witness who have supported the case of the prosecution and proved the documents mentioned in the table above.
Cr. Case No. 84028/2016 State vs. Shakib Page 4 of 97. Since, the prosecution has cited only one independent/public witnesses in the present matter, who is the complainant himself and 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/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 person who has 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 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 person. The present Cr. Case No. 84028/2016 State vs. Shakib Page 5 of 9 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 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.
9. 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 the present case. Thereafter, he stated that he does not wish to lead evidence in his defence and the same was closed.
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 Cr. Case No. 84028/2016 State vs. Shakib Page 6 of 9 such, it is prayed that the accused be punished for the set offences.
12. 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 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 person be acquitted for the said offences.
13. The accused person has been charged for the offence under section 394 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 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 Cr. Case No. 84028/2016 State vs. Shakib Page 7 of 9 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. PW3 has failed to identify the accused person. 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 his cross examination by Ld. APP, PW3 deposed that he could not identify the accused due to his old age. Therefore, there is nothing on record to connect the accused with the commission of the offence.
17. Thus, even if the evidence of the hostile witness 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.
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.
Cr. Case No. 84028/2016 State vs. Shakib Page 8 of 918.1. To recapitulate the above discussion, to bring home the guilt of accused person, the prosecution was required to prove the offence under section 394 IPC beyond reasonable doubt. The star witnesses of the prosecution i.e., PW3 has 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.
19. Resultantly, the accused persons namely, SHAKIB S/o SHAMSUDDIN is hereby found not guilty. He is hereby ACQUITTED of the offences under section 394/34 IPC.
20. File be consigned to record room after due compliance.
Announced in open court on 20/12/2022 in the presence of the accused. The judgment contains 9 pages and each page have been signed by the undersigned.
ANKUR Digitally signed by ANKUR PANGHAL (ANKUR PANGHAL) PANGHAL Date: 2022.12.21 16:45:14 +0530 MM-06, Shahdara District, Karkardooma Courts, Delhi 20/12/2022 Cr. Case No. 84028/2016 State vs. Shakib Page 9 of 9