Delhi District Court
State vs Sumit on 9 October, 2023
IN THE COURT OF MS. HIMANSHI TYAGI,
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
DLET020023362023
FIR No. 3/2023
Police Station Mandawali
Unique Case ID No. 1400/2023
Title State Vs. Sumit
Name of complainant Sh. Suraj S/o Sh. Om Pal
Name of accused Sumit
S/o Sh. Lal Singh
R/o Gali No. 18, West Vinod Nagar,
Mandawali, Fazalpur, Delhi.
Date of institution of challan 03.03.2023
Date of Final arguments 04.10.2023
Date of pronouncement 09.10.2023
Offence complained of Under Section 392/394/34/411 IPC
& 25/54/59 Arms Act
Offence charged with Under Section 392/34 IPC & 25
Arms Act
Plea of the accused Pleaded not guilty
Final order Acquitted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
The facts of the case in brief are that on 01.01.2023 at
Digitally
signed by
HIMANSHI
FIR No. 3/2023 State Vs. Sumit page 1 of 13 HIMANSHI TYAGI
TYAGI Date:
2023.10.09
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0700
about 9.30 p.m. at main road, Mandali near Janta Cycle, accused
Sumit alongwith CCL Shivam and CCL Usman had committed
robbery of Rs. 5,300/- from the possession of complainant Suraj by
showing the knife. A PCR call regarding this incident was received in
PS Mandawali vide GD No. 107-A and same was assigned to SI
Pradeep for enquiry and action. Upon this, SI Pradeep reached at the
spot, met the victim Suraj and the eye witness Sanju, enquired them
and searched for the accused persons. Thereafter, SI Pradeep
commenced the investigation of the case and arrested accused Sumit
alongwith CCL Shivam and CCL Usman on 02.01.2023 at about 11.00
a.m. near Janta Cycle and these persons were identified by the
complainant as the perpetrators of the crime. Accordingly, after the
completion of the investigation, police filed the present charge sheet
against the accused Sumit in the Court for commission of offences
punishable Under Section 392/394/34/411 of the Indin Penal Code
(hereinafter referred to as "IPC") & 25/54/59 Arms Act.
02. Complete set of charge sheet and other documents were
supplied to the accused. After hearing arguments, charge for offences
punishable under section Under Section 392/34 IPC & 25 Arms Act
was framed against the accused, to which he pleaded not guilty and
claimed trial.
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03. The prosecution in support of present case has examined signed by
HIMANSHI
HIMANSHI TYAGI
TYAGI Date:
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FIR No. 3/2023 State Vs. Sumit page 2 of 13 0700
four witnesses.
EVIDENCE OF THE PROSECUTION:-
04. PW1 is Suraj who deposed that on 01.01.2023 at about
9.20 p.m., he alongwith his Jija namely Sanju was going to Sunday
market, Talab chowk for purchasing shoes from his house and when
they reached at Janta Cycle, his jija Sanju stated him that he had to go
for the toilet and he was standing outside the toilet. He further
deposed that in the meantime, his three friends namely Sumit, Shivam
and Usman came there and started talking him in a loud pitch. He
further submits that someone had called the police at 100 number
presuming that a quarrel took place between them and after sometime,
police gypsy came at the spot and interrogated him whether he had
made any complaint, but he had denied for the same, even though, the
police took him and his jija to PS Mandawali and kept him there 1-1½
hour. He further deposed that police officials took him and his jija to
the spot, but in the way, his above said friends met them and police
officials took him and his friends to the PS and even after his denial,
police officials had got the FIR registered in the present case. The
witness was then cross-examined by the State. The defence Counsel
did not cross-examine the witness despite opportunity.
Digitally
signed by
05. PW2 is Sh. Sanju, who had accompanied PW1 Suraj and HIMANSHI
HIMANSHI TYAGI
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FIR No. 3/2023 State Vs. Sumit page 3 of 13
deposed on the same lines as deposed by PW1 Suraj. The witness was
then cross-examined by the State, however, he was not cross-
examined by the defence Counsel despite opportunity.
06. PW3 is SI Pradeep Kumar, who deposed that on
01.01.2023 at about 09.49 p.m., after receiving DD No. 107-A Mark
3-A, he alongwith Ct. Pradeep reached at the spot, where complainant
Suraj and his brother in law Sanju met them. He deposed that he had
recorded the statement of complainant Ex. PW1/A, prepared rukka
Ex. PW3/A, handed over the same to Ct. Praddep for registration of
FIR, on which Ct. Pradeep left for PS, got the FIR registered, came
back at the spot and handed over the copy of FIR and original rukka to
him. He further deposed that he alongwith complainant, his jija and
Ct. Pradeep tried to search the accused persons nearby area and went
in a gali nearby the spot, where complainant pointed out towards the
three boys stating that they are the same boys who had committed the
robbery with him. He further deposed thereafter, he had apprehended
all the three boys namely Sumit, Shivam and Usman, interrogated
them and accused Shivam and Usman were found to be juvenile. He
further deposed that he had arrested the accused Sumit vide arrest
memo Ex. PW1/B, conducted his personal search in which one button
actuated knife was recovered from him, which was seized vide seizure
memo Ex. PW3/B, cash of Rs. 2,000/- were also recovered from the
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possession of CCL Usman and the same was seized by him vide HIMANSHI signed by
HIMANSHI
TYAGI
TYAGI Date:
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seizure memo Ex. PW3/C and also conducted personal search of
accused Sumit vide memo Ex. PW3/D. He further deposed that he
had recorded the disclosure statement Ex. PW3/E of accused Sumit.
He further deposed that he alongwith Ct. Pradeep, accused Sumit,
CCL Usman and Shivam went to the PS, got conducted the medical
examination of the accused in LBS hospital and accused Sumit was
produced before the concerned court and CCL were produced before
concerned JJB. The witness was then cross-examined by the State, and
then, cross-examined by the defence Counsel.
07. PW4 is Ct. Pradeep, who was accompanied SI Pradeep
and deposed on the same lines as deposed by SI Pradeep. The witness
was cross-examined by the defence Counsel.
08. 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 281 read with
section 313 Cr.PC. In reply, the accused person stated that he has been
falsely implicated in the present case, he had not done any act against
the complainant, complainant falsely implicated him in the present
case with connivance of police with ulterior motive and he was not
present at the spot on the day of incident. Thereafter, he stated that he
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signed by
HIMANSHI
FIR No. 3/2023 State Vs. Sumit page 5 of 13 HIMANSHI TYAGI
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does not wish to lead evidence in his defence and the same was
closed.
09. I have heard Sh. Satish Shukla, Ld. APP for the state and
Sh. Raj Kumar, Ld. counsel for the accused. It is argued by the Ld.
APP for the State that the evidence of hostile witnesses can be read on
material points and it can be used to prove the offences u/s 392/34 IPC
against the accused and evidence of police witness can be used to
convict the accused u/s 25 Arms Act. As such, it is prayed that the
accused be punished for the offences he is charged with.
10. Per contra, Ld. counsel for the accused has argued that
the State has failed to establish its case beyond reasonable doubt. Ld.
counsel has argued that the 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 be acquitted
for the said offences.
11. I have given my thoughtful consideration to the material
appearing on record.
FACTS FINDINGS AND REASONS
12. The accused have been charged for the offence under Section 392/34 of the IPC and for offence u/s. 25 Arms Act. For Digitally signed by HIMANSHI FIR No. 3/2023 State Vs. Sumit page 6 of 13 HIMANSHI TYAGI TYAGI Date:
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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 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.
13. 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 adducing cogent evidence that points toward the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
14. The main witnesses of the prosecution i.e the victim/complainant PW1 and the eye witness PW2 have turned hostile in the present case. Both these witnesses deposed on oath that no crime of any nature had been committed by the accused. Infact, both the witnesses stated that the accused was their friend and police persons pressurised them to implicate the accused in a false case. Thus, it clearly shows that PW1 and PW2 did not support the story of the prosecution and have completely turned hostile.
15. It is pertinent to note that under Indian law, the evidence Digitally signed by HIMANSHI of hostile witness is not discarded completely. The legal maxim, "false HIMANSHI TYAGI TYAGI Date:
2023.10.09 15:18:21 -0700
FIR No. 3/2023 State Vs. Sumit page 7 of 13 in uno false in omnibus" 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."
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. PW1 has deposed on oath that no offence of robbery took place and someone reported the loud pitch talk between him and the accused as a crime to the police. Further, he deposed that even after his denial police registered an FIR. As per the testimony of PW1, he claimed the accused was his friend and the accused did not commit any crime against him. Although the witness has admitted that the complaint bears his signature, he has stated that his signatures were obtained on blank papers by the police. He has denied all the facts put to him by Digitally signed by the Ld APP in the cross examination and in confrontation with his HIMANSHI HIMANSHI TYAGI TYAGI Date:
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FIR No. 3/2023 State Vs. Sumit page 8 of 13 0700 previous statement given to the IO. Similarly, PW2 deposed that the complainant Suraj was talking to the his friend and someone made a call to the police. He also deposed that no offence took place and even after their denial, police registered an FIR. He also has denied all the facts put to him by the Ld APP in the cross examination and in confrontation with his previous statement given to the IO. Therefore, even if the evidence of the hostile witnesses PW1 and PW2 is considered partly, there is nothing to implicate the accused.
17. The testimony of PW3 ,who is the IO of the case, is not sufficient to prove the essential ingredients of the main offence u/s 392/34 IPC as he has only disclosed about the investigation done by him. Therefore, there is nothing on record to connect the accused with the commission of the offence u/s 392/34 IPC. PW4 is the police official who accompanied the IO. He has only deposed about his role in the investigation and about the investigation conducted by the IO. Even his testimony does not connect the accused with the crime u/s 392/34 IPC.
18. No other public witness of the incident has been cited and there is no other circumstance to point towards the guilt of the accused. Allegedly, the case of the prosecution commenced upon a PCR call. However, IO did not make any efforts to interrogate the Digitally PCR caller and cite him as a witness in the case. Further, no signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.10.09 15:18:34 -0700
FIR No. 3/2023 State Vs. Sumit page 9 of 13 independent witness has been examined by the prosecution to prove the search and seizure of alleged knife from the possession of the accused. The accused cannot be convicted on the sole testimony of a police official in the absence of a public and independent witness to the search and recovery of the knife from the accused. PW3/IO admitted in his cross examination that the place of the recovery was a crowded place. He deposed that despite his request to join the investigation, public persons present at the Janta cycle, none agree. Thus, it is clear that public persons were present at the spot. Despite the availability of public persons neither any independent person was joined as a witness in the investigation nor any notice was served upon those public persons by the IO.
19. The availability of independent witnesses is not denied by the police witnesses. When a statutory provision mandates that independent witness has to be joined in the investigation, the IO is duty bound to comply the same. At least he should make sincere efforts in this regard. If someone refuses to join the investigation without any justifiable reason, proper notice u/s 187 IPC should be given to him. Merely stating that the public person refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and failed to take any required steps in terms of Section 37 and 42 of Cr.P.C. Therefore, mere explanation given the IO Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.10.09 FIR No. 3/2023 State Vs. Sumit page 10 of 13 15:18:41 -0700
that the public persons refused to join the investigation, cannot be considered sufficient.
20. Further, in Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of Maharashtra AIR 1995 Hon'ble Supreme Court held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435 , that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
21. Now, it is true that non-joining of independent witnesses cannot be a sole ground to discard the entire prosecution story, in view of the law laid down by the Hon'ble Supreme Court of India in Appabhai vs State of Gujarat AIR 1988 SC 696, evidence in each case has to be weighed in light of the peculiar factual matrix of the same. Non-joining of public witnesses, despite their easy availability, reflects lack of genuine efforts on the part of the prosecution and dents its case as in case at hand, the star witnesses have deposed that the IO registered the case despite their denial of the incident. The IO could Digitally signed by HIMANSHI FIR No. 3/2023 State Vs. Sumit page 11 of 13 HIMANSHI TYAGI TYAGI Date:
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have easily served notice in writing to the witnesses, to make them join the investigation. But did not do so. Where the IO has failed to make genuine efforts to join public witnesses, veracity of the case of prosecution becomes doubtful.
22. From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness at the time of arrest, search, seizure or while completing the formalities. It is hard to believe that no person stopped despite being signaled by the IO/PW3, who presumably was dressed in uniform. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
23. Moreover, from the record it seems that PW3 and PW4, who are the police officials, did not offer their search to the accused before searching him. This is also a serious lapse on the part of the police officers in the investigation which now affects the root of the matter and makes the entire recovery doubtful. The hostile nature of testimony of public witnesses and the contradictions as well the omissions in the investigation on material aspects creates doubt over the story of the prosecution about the entire facts and circumstances of the recovery and crime alleged against the accused.
24. To recapitulate the above discussion, to bring home the Digitally signed by HIMANSHI guilt of the accused, the prosecution was required to prove the offence HIMANSHI TYAGI TYAGI Date:
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FIR No. 3/2023 State Vs. Sumit page 12 of 13 under Section 392/34 IPC and Section 25 Arms Act beyond reasonable doubt. The star witnesses of the prosecution i.e. the complainant/victim and the eye witnesses have turned completely hostile. Further, in the case at hand, all the lapses in investigation discussed as above, casts serious doubts on the very recovery of knife from the possession of the accused. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. Thus, the court is of the considered view that prosecution has not been able to prove the guilt of the accused and has failed to prove its case beyond reasonable doubt.
25. Resultantly, the accused SUMIT S/o LAL SINGH is hereby found not guilty and is hereby ACQUITTED of the offence under Section 392/34 IPC and Section 25 Arms Act. Accused to furnish bail bonds in compliance of Section 437-A Cr.PC.
Pronounced in open Court on 09.10.2023.
The Judgement contains 13 pages and each page has been signed by the undersigned. Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.10.09 15:19:03 -0700 (Himanshi Tyagi) Metropolitan Magistrate-03 (East), Karkardooma Courts, Delhi FIR No. 3/2023 State Vs. Sumit page 13 of 13