Delhi District Court
State vs . Aseem Ullah And Ors. on 24 April, 2023
IN THE COURT OF Ms. MEENA CHAUHAN
MM-08: CENTRAL DISTRICT: TIS HAZARI COURTS:
DELHI
FIR No. 136/2016
PS: Kamla Market
U/s 379/34 Indian Penal Code
State v. Aseem Ul Haq and Ors.
CIS No. 7140/17
CNR No. DLCT02-014478-17
Date of Institution of case: 23.06.2017
Date when Judgment reserved: 05.04.2023
Date on which Judgment pronounced: 24.04.2023
JUDGMENT
FIR No. 136/16 PS: Kamla a Serial No. of the case :
Market Date of the commission of b : 17.05.2016 the offence Dilip Kumar S/o Sh.Shiv c Name of the Complainant :
Mangal Rai d Name of Accused persons : 1. Aseem Ullah S/o Sh.
and their parentage and Sami Ullah@Lattu R/o
residences. H. No. 1/10112, Gali no.
3, West Gorakh Park,
Delhi. (expired)
2. Ajit Kumar Soni S/o Sh.
Dharam Nath Soni R/o
C/o Vijay Tomar, Gali
no. 5, Murto Wala Park,
West Gorakh Park,
State Vs. Aseem Ullah and Ors.
FIR No. 136/16
PS Kamla Market
1/22
Delhi.& Village
Piparpati, Raghunath
Pur, Bansdih Road,
Ballia, Uttar Pradesh.
e Offence complained of : U/s 379/34 Indian Penal Code
Plea of the Accused and his
f : Pleaded not guilty.
examination (if any)
g Final Order : Acquitted
h Date of Order 24.04.2023
BRIEF FACTS OF THE CASE:
1. The case of prosecution was instituted on allegation against both the accused namely Ajit Kumar Soni and Aseem Ullah that on 17.05.2016 at about 07.20 am near Zakir Hussain College, JLN Marg, Kamla Market, Delhi, within the jurisdiction of P.S Kamla Market, the accused Ajit Kumar Soni along with his co-associate Aseem Ullah(since expired) in furtherance of the common intention dishonestly took away the mobile phone make Lava Arix-1, from the pocket of the complainant Dalip Kumar without his consent and, thereby leading to the registration of present FIR u/s 379/34 of Indian Penal Code, 1860 (hereinafter called as IPC).
2. Upon conclusion of investigation, a charge sheet has been filed against the both accused persons. Cognizance of offence was taken u/s 379/34 IPC. Copy of the charge sheet was supplied to both the accused in compliance of Section 207 of The Code of Criminal Procedure,1973 (hereinafter called as State Vs. Aseem Ullah and Ors.FIR No. 136/16
PS Kamla Market 2/22 Cr.P.C) on 05.07.2017.
3. It is to be noted here that during the court proceedings, it has been reported that the accused Aseem Ullah expired on 04.08.2017 and after receiving his death certificate, the proceedings qua accused Aseem Ullah was abated by order dated 14.11.2017 of Ld. Predecessor of the court. Thereafter, charge u/s 379/34 IPC was framed against the accused Ajit Kumar Soni on 22.05.2018 to which he pleaded not guilty and claimed trial.
4. With a view to connect the accused with the crime, the prosecution examined six(06) witnesses:
5. PW-1 Dilip Kumar deposed in his examination-in-chief that on 17.05.2016, he took a bus from Old Delhi Railway Station with route no. 729 to Kapashera and the bus was crowded. The accused Aseem-Ullah (since deceased) laid hand in his pocket and took out his mobile phone from pocket. He deposed that there was commotion in the bus and people started screaming, the accused tried to run away. He deposed that he tried to apprehend him and he also got down from the bus as the accused de-boarded the bus. The accused was apprehended by the public near the boundary wall of Dr. Zakhir Hussain College and at that time Ct. Hawa Singh came at the spot and took the accused and him to PS Kamla State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 3/22 Market in Auto. He deposed that Ct. Hawa Singh registered the case against the accused in PS Kamla Market. The mobile phone was not recovered from the accused Aseem Ullah. He further deposed that the accused told the police that he handed over the mobile to his friend Ajit(PW-1 correctly identified the accused Ajit). The model no. of his mobile was LAVA Arix-1 bearing SIM no. 9818642581. He deposed that IO took him to the spot and prepared a site plan Ex.PW1/A at his instance which bears his signature at point A, recorded his statement Ex. PW1/B bearing his signature at point and arrested the accused Aseem Ullah vide arrest memo Ex. PW1/C bearing his signature at point A. IO recorded the disclosure statement of accused Aseem Ullah vide Ex. PW1/C bearing his signature at point A. He deposed that on 18.05.2016, he came to Tis Hazari court to enquire about his case and he saw the accused Ajeet Kumar Soni in Tis Hazari Court and he told the IO that Ajeet the person to whom the accused handed over his mobile phone that day. IO recorded his statements and supplementary statements two times.
During his cross-examination by the Ld. LAC for the accused Ajit Kumar Soni, PW-1 deposed that he did not make a call at 100 number. There were about 25-30 people present at the spot in the bus and IO did not record the statement of any public person. He went to the PS only for one day after I registered the complaint against the accused. He denied the State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 4/22 suggestion that the accused Aseem Ullah did not name his friend in front of IO as the involvement in the present case. He did not give any original mobile bill to the IO as he purchased the said mobile phone from the internet. His brother ordered the same. He denied the suggestion that he is deposing falsely as he fought with Aseem Ullah regarding the seat of the bus and that the accused has been falsely implicated in the present case.
6. PW-2 Ct. Hawa Singh deposed in his examination-in-chief that on 17.05.16, he was on emergency duty and at about 7.00-7.15 am, he was on patrolling at JLN Marg. He deposed that he saw the crowd of persons and one person was running and one another person was running behind him by raising noise chor chor. He reached and apprehended that person, who was running. In the meantime, SI Ramesh arrived there. The person who was raising noise Chor Chor got recorded his statement to SI Ramesh Chand regarding snatching his mobile phone by the person, who was apprehended and he handed over the said mobile phone to his associate, who fled away along with the mobile phone. The name of the apprehended person was revealed as Aseem Ullah (since expired), who is not present in court today. IO prepared the rukka on the statement of the complainant Dalip Kumar and handed over the rukka to him for registration of the FIR. He went to PS and registered the case. After registration of the State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 5/22 FIR, he returned back at the spot and handed over the copy of FIR and original rukka to IO HC Brij Mohan as the further investigation was marked to him. The accused was arrested vide arrest memo and personal search memo Ex. PW1/C, bearing his signature at point B, personal search memo Ex. PW2/A, bearing his signature at point A, disclosure statement of the accused was recorded which is Ex.PW1/D, bearing his signature at point B. IO had inspected the site and prepared the site plan Ex. PWIA, bearing his signature at point B. The accused was put behind the bar after his medical examination. Efforts were made to arrest the co-accused but he could not be traced out. Thereafter, the accused Ascem Ullah was produced before the concerned court and a one day custody remand was taken. During police custody, the accused Aseem Ullah took him and IO HC Brij Mohan to Gorakh Park, Gali No. 5 and pointed out the house of accused Ajeet. Associates of accused Aseem Ullah, who is the accused Ajit, (PW-2 correctly identified the accused Ajit) was apprehended from his house at the instance of accused Aseem Ullaha. The accused Ajeet was interrogated, who made a disclosure statement Ex. PW2/A, bearing his signature at point A. Thereafter, the accused Ajeet was arrested vide arrest memo Ex.PW2/B, personal search memo Ex. PW2/C, bearing his signature at point A. Accused Ajeet was medically examined. The accused persons were produced before the concerned State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 6/22 court, where the accused Ajeet refused to participate in TIP.
During his cross-examination by the Ld. LAC for the accused Ajit Kumar Soni, PW-2 denied the suggestion that the accused Ajeet was shown to the complainant in police station and the photographs of accused Ajeet was taken by the IO in the mobile phone. He deposed that they reached the house of accused Ajeet at about 5.30-6.00 pm and one female was present at the house of accused Ajeet, but he did not know her name. He cannot tell as to what relation that lady was having with the accused. He does not remember how many stories the house of the accused was built up and at which floor of his house, the accused was found at that time. He denied the suggestion that he did not join the investigation of the present case and that he was deposing falsely.
7. PW-3 Ct. Ramesh Chand deposed in his examination-in-
chief that on 18.05.16, he and Ct. Hawa Singh took the accused Aseem Ullaha (since expired) and Ajeet, (PW-3 correctly identified the accused Ajit), from lock up and their dossier was prepared in the dossier cell. Efforts were made by IO to trace the stolen mobile phone but the same could not be traced out. Thereafter, the accused persons were produced before the concerned court.
During his cross-examination by the Ld. LAC for the accused Ajit Kumar Soni, PW-3 denied the suggestion that he State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 7/22 did not join the investigation of this case with the IO or that he did not accompany the IO at any place and that he was deposing falsely.
8. PW-4 SI Ramesh Chand deposed in his examination-in-
chief that on 16/17.05.2016, he was posted at PS Kamla Market as SI and was on night emergency duty. On that day, at about 07:40 am, he received information about present case vide DD No. 14A. Thereafter, he went to the spot i.e. near Zakir Hussain College, JILN Marg, Delhi where complainant and Ct. Hawa Singh met him and they had caught hold of accused Aseem Ullah. The complainant gave his statement regarding theft of his mobile phone and he recorded the same. On the basis of said statement, he prepared rukka which is Ex. PW4/A bearing his signature at point B. HE handed over the said rukka to Ct. Hawa Singh for registration of FIR. Accordingly, he went to PS and after registration of FIR, came at the spot along with HC Brij Mohan. Further investigation of the present case was marked to HC Brij Mohan and he handed over the accused to him and he was relieved from investigation of the present case.
During his cross-examination by the Ld. LAC for the accused Ajit Kumar Soni, PW-4 admitted he did not meet with co-accused Ajeet during his tenure of investigation and that he had not conducted action against accused Ajeet.
State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 8/22
9. PW-5 ASI Brij Mohan deposed in his examination-in-chief that on 17.05.2016, he was posted at PS Kamla Market as Head Constable. On that day at about 09:00 am, further investigation of the present case was marked to him. The case was already registered and he alongwith Ct. Hawa Singh reached the spot i.e. near Zakir Hussain College, JLN Marg. Delhi where he met SI Ramesh Chand who was present along with complainant and accused Aseem Ullah. SI Ramesh Chand produced accused Aseem Ullah and thereafter, he was relieved from the investigation. He also recorded the statement of SI Ramesh Chand at the spot. He interrogated accused Aseem Ullah and he was arrested vide arrest memo Ex. PW I/C. The personal search of the accused Aseem Ullah vide personal search memo Ex. PW5/A. The disclosure statement of accused Aseem Ullah was recorded vide memo Ex.PWI/D. Thereafter, he prepared a site plan at the instance of the complainant which is Ex. PW1/A bearing his signature at point C. They searched for co-accused Ajeet but he was not found there. Accused Aseem Ullah was taken to LNJP hospital for his medical examination and after medical examination, he was brought to the police station Kamla Market. The dossier of accused Aseem Ullah was prepared in a police station. At that time, a computer copy of the FIR was not received and therefore, on the basis of rukka, the accused was produced before the court. By the order of the court, one State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 9/22 day PC remand was granted to SI Mangesh. From court, the accused was again taken to LNJP hospital for medical examination. After the medical examination, they went to the police station. He alongwith Ct. Hawa Singh took the accused to West Gorakh Park in search of co-accused Ajeet. Accused Aseem Ullah took them to the house of accused Ajeet at West Gorakh Park, Gali No. 5. At his house, accused Ajeet was present and he was caught at the instance of accused Aseem Ullah. He interrogated accused Ajeet Kumar about the present incident and he was arrested vide arrest memo Ex. PW2/B bearing his signature at point B. The personal search of the accused was also conducted vide memo Ex. PW2/C bearing his signature at point B. The disclosure statement of accused Ajeet was also recorded vide memo Ex PW2/A bearing his signature at point B. Accused Ajeet told them that he had kept a stolen mobile phone near bus stand ISBT, Kashmere Gate. They took him near the bus stand, ISBT Kashmere Gate, however the mobile phone was not recovered. Accused was taken to hospital for medical examination in a muffled face and medical examination, he was kept in lock-up. The dossier of accused Ajeet prepared. On the next day, both the accused were produced in the court in a muffled face (accused Ajeet). He moved an application for TIP but accused Ajeet refused to participate in TIP proceedings. During court proceedings, complainant Dilip Kumar also came in the court and on State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 10/22 seeing accused Ajeet, he stated him as co-accused. He recorded the statement of the complainant and witnesses u/s 161 Cr.P.C. By the order of the court, both the accused were sent to JC. The mobile phone was kept on surveillance but the same was not traced. In the meantime, he was transferred from PS Kamla Market and handed over the case file to MHC(R), PS Kamla Market. PW-5 correctly identified the accused.
During his cross-examination by the Ld. LAC for the accused Ajit Kumar Soni, PW-5 deposed that he reached the spot alongwith Ct. Hawa Singh at about 09:00 am. Many public persons were passing through the spot but he did not record statements of any public person. The complainant had not handed in any bill receipt for the mobile phone. He did not make any inquiry as to whether from where the complainant had purchased the mobile phone. He denied the suggestion that he did not inquire about the mobile phone as no theft was committed. He along with accused Aseem Ullah and Ct. Hawa Singh went to the house of accused Ajeet Kumar. He admitted that at the time of arrest of accused Ajeet, the complainant was not present. He denied the suggestion that he had taken photographs of accused Ajeet prior to his refusal of TIP. Only the mother of the accused Ajeet was present, when he was arrested. No public persons including mother of accused Ajeet were joined in State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 11/22 investigation at the time of arrest of accused Ajeet. The complainant had not told the bus number in which he was traveling at the time of incident. He denied the suggestion that the accused has been falsely implicated in the present case and that he was deposing falsely.
10. PW-6 SI Rajkumar has deposed in his examination to the effect that the present case was marked to him by IO, he has prepared the charge sheet and filed the same in the court. His cross-examination is Nil despite the opportunity given.
11. Vide separate statements of the accused person recorded u/s 294 Cr.P.C, the accused admitted the factum of registration of FIR(Ex. A-1), certificate u/s 65B Indian Evidence Act (Ex. A-
2), DD No. 14A dated 17.05.2016 and TIP proceedings(Ex. A-3), without admitting the contents of the same and without prejudice to his defence.
12. As no witness was left to be examined, PE was closed 19.10.2022 and thereafter, the statement of the accused Ajit Kumar Soni was recorded U/s 313 Cr.P.C on 24.11.2022 wherein all the incriminating circumstances appearing in evidence against him were put to him, to which he stated that he has been falsely implicated in the present matter and he is innocent. Accused did not opt for defence evidence. Final State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 12/22 arguments of the case were heard.
13. Learned APP for the state submitted that the prosecution has proved the case against the accused beyond reasonable doubt as all the prosecution witnesses especially the eye-witness has supported its case and even the documentary evidence placed on record is cogent. He prayed that the accused be convicted for offence u/s 379/34 IPC.
14. Per Contra, learned LAC for the accused submitted that there are severe discrepancies in the prosecution evidence. He claimed that the testimony of eye-witness/complainant reflects several contradictions and identification of accused is also doubtful and stated that he has been falsely implicated and the case against him has not been proved beyond doubt, so he be acquitted of the offence u/s 379/34 IPC.
POINT FOR DETERMINATION:
15. Whether the accused Ajit Kumar Soni, on 17.05.2016 at about 07.20 am near Zakir Hussain College, JLN Marg, Kamla Market, Delhi, within the jurisdiction of P.S Kamla Market, the accused along with his co-associate Aseem Ullah(since expired) in furtherance of the common intention dishonestly took away the mobile phone make Lava Arix-1, from the pocket of the complainant Dalip Kumar without his consent State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 13/22 and thereby committed an offence punishable u/s 379/34 IPC?
DISCUSSION, DECISION AND REASONS THEREON:
16. I have considered the material facts and circumstances of the case. Same are discussed in succeeding paragraphs.
17. The prosecution has a duty to prove its case beyond reasonable doubt. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt. A Court cannot draw an inference of guilt from mere suspicion.
Suspicion, no matter how strong, cannot take the place of legal proof. The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure State Vs. Aseem Ullah and Ors.FIR No. 136/16
PS Kamla Market 14/22 conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."
18. In the present case, to discharge its burden prosecution has heavily relied on the testimony of the complainant/PW-1. Scanning the entire material produced by the prosecution, it can be culled that the only eye-witness to the alleged offence is the complainant. A careful perusal of the deposition of PW- 1 reflects that he nowhere mentioned that he had seen the accused Ajit Kumar Soni at the spot at the time of alleged incident/soon after the incident. Rather, the PW-1 made allegations that he saw one accused moving away his mobile phone, and thereafter, he chased him only, the accused Aseem Ullah was caught by the public. This clearly shows that the complainant has not whispered about the role of any other person in the commission of the alleged offence during his examination-in-chief. On the other hand, he deposed that after apprehending the accused Aseem Ullah, the said accused made disclosure statements about the role of his accomplice namely Ajit Kumar Soni whom he had allegedly given the State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 15/22 stolen mobile phone. It is settled law that the disclosure statement of co-accused is per se admissible against the other accused(non-maker). Hence, there is no direct evidence to link accused Ajit Kumar Soni with the alleged offence as the complainant who is the only eye-witness had deposed about the role of accused Ajit Kumar Soni neither he mentioned about his presence or that he had seen him taking away the stolen property.
19. Now coming to the testimony of PW-2 Ct. Hawa Singh, contrary to the evidence of PW-1, he deposed that the complainant has narrated the story to IO/SI Ramesh Chand regarding the stealing to mobile phone by accused who was apprehended at the spot and handing over the said phone by the said accused to his associate, who ran away from the spot with the stolen mobile phone. There are clear contradictions in the above said depositions of two most crucial witnesses of the prosecution regarding the allegations made by the complainant which led to the registration of present FIR.
20. Coming to the identification part of accused Ajit Kumar Soni, as per the prosecution, the accused has refused to take part in the TIP proceedings during investigation which was fixed on 18.05.2016. Though, on refusal to take part in the TIP proceedings, an adverse inference may be drawn against the State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 16/22 accused, however, mere refusal to participate in the TIP in itself is not sufficient to prove charge against the accused. The onus remains upon the prosecution to prove the allegations against the accused.
21. The Hon'ble Supreme Court of India in the case of Vijay @ Chinee vs State of M.P decided on 27 July 2010 while dealing with the evidentiary value of TIP, held as under:-
17. In Malkhan Singh Vs. State of M.P. AIR 2003 SC 2669, this Court has observed as under:
"It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine."
18. In Mulla & Anr. Vs. State of Uttar Pradesh (2010) 3 SCC 508, this court (one of us, Hon'ble P. Sathasivam, J.) placed reliance on Matru@Girish Chandra Vs. The State of Uttar Pradesh AIR 1971 SC 1050; and Santokh Singh Vs. Izhar Hussain & Anr. AIR 1973 SC 2190, wherein it had been held that the Tests Identification Parades do not constitute substantive evidence. They are primarily meant for the purpose of providing the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. The Test Identification Parade can only be used as corroboration of the statement in Court. The necessity for holding the Test Identification Parade can arise only when the accused persons are not previously known to the witnesses. The test is done to check the veracity of the witnesses. The court further observed as under :-
"The evidence of test identification is admissible under Section 9 of the Indian Evidence Act. The Identification parade belongs to the stage of State Vs. Aseem Ullah and Ors.FIR No. 136/16
PS Kamla Market 17/22 investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial.
The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in the Cr.P.C entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circum- stance corroborative of the identification in Court."
19. Thus, it is evident from the above, that the Test Identification is a part of the investigation and is very useful in a case where the accused are not known beforehand to the witnesses. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court."
22. Returning to the facts of the present case, admittedly the accused Ajit Kumar Soni was not arrested at the spot, rather he was arrested after the disclosure statement of accused Aseem Ullah and at his instance only and there is no recovery from the accused Ajit Kumar Soni. PW-1/Complainant has identified the accused Ajit Kumar Soni during his examination before the court. However, as discussed above, when the complainant has not alleged the presence of accused Ajit Kumar Soni at the time of alleged offence or soon after that in his examination, in such a situation his identification before the court seems to be doubtful. Further, the complainant Dilip Kumar clearly has not mentioned any features or description of the accused Ajit Kumar in his complaint which is Ex. PW1/B nor during his examination-in-
State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 18/22 chief before the court. The accused, admittedly, was not known to the complainant or any of the prosecution witnesses. PW-1 deposed that he had seen the accused Ajit Kumar Soni on 18.05.2016, coincidently visited the court to enquire about his case and identified the accused in presence of IO. Now, when the accused Ajit was arrested and produced before the court, he was admittedly in a muffled face and on 18.05.2016, he was produced before the concerned court for the purpose of TIP proceedings in a muffled face as per Ex. A-3. here, the reasonable question arises that how the complainant has identified the accused in muffled face when the accused was not known to him earlier and his first complaint i.e. Ex. PW-1/B, he did not give details of the single feature/characteristic of the accused Ajit Kumar Soni. The accused was not arrested from the spot, admittedly the accused was not known to complainant, the physical characteristic features of the accused not mentioned by the complainant, and the interval of time in which the entire offence of theft allegedly happened, and the nature of interaction the complainant had with the accused in that duration, make it difficult to believe the complainant's identification of accused in the court. It is pertinent here to note that as per the examination-in-chief of the complainant, he has not disclosed the presence of the accused Ajit Kumar Soni at the spot or disclosed that he had seen the accused. In State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 19/22 the light of above discussion, the identification of the accused by the complainant comes under shadow of doubts and there is a missing link in the story of the prosecution to directly implicate the accused Ajit Kumar Soni in the alleged offence.
23. In every criminal trial, the identity of the malefactor must be established by proof beyond reasonable doubt. Indeed, the first duty of the Prosecution is not to prove the crime but to prove the identity of the offender, for even if the commission of the crime can be established, there can be no conviction without proof of identity of the offender beyond reasonable doubt. Onus is, thus, on the prosecution to prove beyond reasonable doubt that the person facing the trial is, in fact, the same person who committed the offence. In the present FIR, accused Aseem Ullah was apprehended at the spot, however, the accused Ajit Kumar Soni was implicated on the basis of the alleged disclosure statement of accused Aseem Ullah given to the Investigating Officer during the course of investigation and on his refusal to participate in the Test Identification Parade. Thus, it was for the prosecution to prove that the accused Ajit Kumar Soni was the same person who was present at the spot and allegedly stole the mobile phone of the complainant along with his associate Aseem Ullah. Identification of the accused Ajit Kumar Soni by the complainant cannot be relied upon in the light of his State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 20/22 examination before the court where he has not mentioned even the presence of accused Ajit Kumar at the spot at the time of alleged offence. Rest of the witnesses are formal in nature and the identity of the accused cannot be established from their testimonies, inasmuch as, the alleged theft was neither committed in their presence nor it is the case of the prosecution.
24. Thus, the identity of the accused Ajit Kumar could not be established beyond reasonable doubt. In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal, though his innocence may be doubted. The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defence he put up but on the strength of the evidence for the Prosecution.
CONCLUSION:
25. In view of the above discussion, I am of the considered view that the prosecution has miserably failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused. Consequently, accused Ajit Kumar Soni S/o Sh. Dharam Nath Soni R/o State Vs. Aseem Ullah and Ors.
FIR No. 136/16PS Kamla Market 21/22 C/o Vijay Tomar, Gali no. 5, Murto Wala Park, West Gorakh Park, Delhi is acquitted of the charge leveled against them.
26. Bail bond and surety bond discharged. Original documents be returned to entitled parties. Bail bonds u/s 437A of Cr.PC are to be furnished which would remain valid for a period of six months.
File be consigned to record room after due compliance.
Announced in the open court Digitally signed by MEENA MEENA CHAUHAN on 24.04.2023. CHAUHAN Date:
2023.04.24 17:45:56 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi [This judgment contains 22 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned] State Vs. Aseem Ullah and Ors.FIR No. 136/16
PS Kamla Market 22/22