Delhi District Court
State vs . Sanjeev Etc Fir No. 299/2006 on 14 May, 2018
State vs. Sanjeev etc FIR No. 299/2006
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE, MAHILA COURT-02, SHAHDARA,
KARKARDOOMA COURTS, DELHI
State vs. Sanjeev etc
FIR No. 299/2006
U/sec. 323/341/427/452/34 IPC
PS: Farsh Bazar
Date of institution of the case: 23.02.2007
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 14.05.2018
JUDGMENT
a) Sr. No. of the case : RBT 18/18
b) Date of commission of the offence : 06.10.2006
c) Name of the complainant : Ram Kishore Sharma
d) Name of the accused and his parentage : 1. Sanjeev Bhatia S/o Late Sh. Bihari Lal Bhatia R/o H.No.360/5F, Gali No.7, Jharkhandi Road, Bhola Nath Nagar, Shahdara, Delhi-32.
2. Mohan S/o Sh. Raj Kumar R/o H.No.4/1034, Gali No.4, Bhola Nath Nagar, Shahdara, Delhi-
32.3. Puran Mal S/o Late Sh. Lakshmi Narayan R/o H.No.425/9, Bhola Nath Nagar Shahdara, Delhi-32.
4. Sunny S/o Sh. Daya Ram H.No.425/9B, Jharkhandi Road, Bhola Nath Nagar, Shahdara, Delhi-
32.5. Pawan Kumar PS: Farsh Bazar Page 1 of 7 State vs. Sanjeev etc FIR No. 299/2006 S/o Sh. Ram Kishan H.No.4/2272, Gali no.2, Bihari Colony, Delhi.
6. Kanta Prasad Sharma @ Tonu S/o Pt. Hetram Sharma R/o H.No.360/5F, Gali No.7, Jharkhandi Road, Bhola Nath Nagar, Shahdara, Delhi-32.
(Expired)
7. Sanjay Aggarwal S/o Sh. Lokesh Chand Aggarwal H.No.953/1, Gali No.3, Jharkhandi Road, Bhola Nath Nagar, Shahdara, Delhi-32.
(Expired)
e) Offence complained of : Sec. 323/341/323/452/34 IPC
f) Offence charged of : Sec. 323/341/452/427/34 IPC
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date of such order : 14.05.2018
j) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 07.10.2006 at about 00:20 hours, on the complaint of Shri Ram Kishore Sharma, the present FIR was registered against the accused persons under sections 341/427/452/323/34 IPC at PS Farsh Bazar.
After completion of the investigation, charge-sheet was filed under sections 323/341/452/427/34 IPC before the court. Consequently, the accused persons were summoned to face the trial. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to them as per norms.
While the case was at pre-charge stage, accused Kanta Prasad and Sanjay Aggarwal expired and the proceedings qua them were dropped as abated vide order dated 20.05.2013 and 15.11.2017 respectively.PS: Farsh Bazar Page 2 of 7
State vs. Sanjeev etc FIR No. 299/2006 Thereafter, charge under section 323/341/452/427/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
With a view to connect the accused persons with the crime, the prosecution has examined only two witnesses.
PW1/Ram Kishore Sharma was the complainant as well as the victim. He stated on oath that he does not remember the date and month of the incident, however, it was in the year 2006. He was at his house, when someone informed him that some unknown persons were quarrelling with his workers and had also broken the glasses of his Wagon-R Car bearing registration number DL-3CM-5141 and TATA Tempo bearing Registration number DL-1LE-9933. Therefore, he went to his Godown at H-23, Gali No. 1, Bhola Nath Nagar and saw the glasses of the car and the tempo broken. Bricks, stones and broken glasses were lying scattered on the road. Thereafter, he went to the police station.
Since the witness had resiled from his previous statement, he was cross-examined by the learned APP for the State with the permission of the court.
He during his cross-examination by the learned APP denied having made any statement to police. He stated that his signatures were obtained on blank papers/documents. He denied all the suggestions put by the learned APP regarding the incident.
He stated that he cannot identify the accused persons. His attention was drawn towards the accused persons standing in the dock, however, he failed to identify them.
PW2/Shri Bhupender Sharma was cited as an eye witness to the incident. However, he feigned complete ignorance about the case. He denied having witnessed the incident. He stated that he cannot identify the accused persons.
Since this witness had resiled from his previous statement given to the Investigating Officer, he too was cross-examined by the learned APP for the State with the permission of the court and confronted him with his statement purportedly given to the Investigating Officer.
PS: Farsh Bazar Page 3 of 7State vs. Sanjeev etc FIR No. 299/2006 He during his cross-examination by the learned APP for the State denied each and every suggestion put by the learned APP for the State regarding the incident and the accused persons. His attention was drawn towards the accused persons standing in the dock; however, he failed to identify them.
PW/Karan Singh and PW/Sadiq Ali @ Chhotu were the injured/victim whereas PW/ Dharmender, Shree Pal, Lamni and Jagbir Singh were cited as eye-witnesses of the crime. However, they could not be examined by the prosecution despite availing numerous opportunities. On every occasion, summons received back un-served. Even the summons upon them could not be served through the office of the DCP concerned. Therefore, they were dropped from the list of witnesses vide order dated 26.04.2018 and 14.05.2018 respectively.
PW1/complainant Ram Kishore Sharma and another alleged eye witness of the incident/PW2/Bhupender Sharma have turned hostile and have refused to identify or recognize the accused persons in the court as the assailants. Rest witnesses are formal in nature and the identity of the accused persons cannot be established from their testimonies, inasmuch as, the alleged crime was neither committed in their presence nor it is the case of the prosecution. If that is so then on the basis of their testimony it, otherwise, cannot be held that it were the accused, who committed the crime alleged against them, more so, when the complainant/PW1 and PW2 have turned hostile and other alleged victims/eye witnesses are reportedly un-traceable.
Thus, I am of the considered opinion that no useful purpose would be served by examining the rest witnesses, who are formal in nature and the request of the learned APP for the State to examine the remaining witnesses was declined. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that "...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
PS: Farsh Bazar Page 4 of 7State vs. Sanjeev etc FIR No. 299/2006 Since there was no incriminating circumstance against the accused persons, recording of their statement under section 313 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) was also dispensed with.
I have heard the learned counsel for the accused persons and the learned APP for the State and have perused the records very carefully.
Arguments Learned defence counsel has submitted that the identity of the accused is an essential element of any offence. In continuation, he submitted that PWs namely Karan Singh, Sadiq Ali @ Chhotu, Dharmender, Shree Pal, Lamni and Jagbir Singh are reportedly not traceable and the complainant and another alleged eye witness/PW2 of the incident have failed to identify or recognize them in the dock as the wrongdoers and were declared hostile and cross-examined by the APP for the State but nothing could be elicited from them which could indicate complicity of the accused persons in the crime. Thus, according to him, prosecution has miserably failed to establish the identity of the accused persons beyond reasonable doubt.
He further submitted that in the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal.
He, therefore, submitted that the accused persons deserve to be acquitted of the charge leveled against them.
Decision and brief reasons for the same A successful prosecution of a criminal action largely depends on proof of two things:
the identification of the author of the crime and his actual commission of the same. An ample proof that a crime has been committed has no use if the prosecution is unable to convincingly prove the offender's identity.
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.PS: Farsh Bazar Page 5 of 7
State vs. Sanjeev etc FIR No. 299/2006 The Hon'ble High Court of Delhi while dealing with the identity of the accused in the case of Ashraf vs State held as under:-
"....However, in case a witness is completely hostile with regard to identity of the accused even in his examination- in-chief and nothing could be elicited from him to show the involvement of the accused in the offence in the cross- examination by the APP, such a testimony cannot be accepted and made the basis of the conviction....."
In the case in hand, to bring home the guilt of the accused persons, prosecution has cited as many as sixteen (16) witnesses in the list of witnesses annexed with the charge-sheet. Out of these sixteen witnesses, PW1/Ram Kishore Sharma was the informant as well as the victim. PW2/Bhupender Sharma has been named as being the eye witness to the incident. PW Karan Singh and PW/Sadiq Ali @ Chhotu were the injured/victim whereas PW/Dharmender, Shree Pal, Lamni and Jagbir Singh have also been named as the eye witnesses to the incident. Rest witnesses are formal in nature and the identity of the accused persons cannot be established from their testimonies, inasmuch as, the alleged crime was neither committed in their presence nor it is the case of the prosecution.
However, PWs Karan Singh, Sadiq Ali @ Chhotu, Dharmender, Shree Pal, Lamni and Jagbir Singh could not be examined by the prosecution despite availing numerous opportunities. On every occasion, summons received back un-served. Even the summons upon them could not be served through the office of the DCP concerned.
PW1/complainant and PW2/Bhupender Sharma have turned hostile. They in their statement recorded by the IO during the course of investigation stated as to how the accused persons assaulted the complainant and his workers and damaged his property. However, they during their examination-in-chief feigned complete ignorance as to who were the perpetrators. They denied having made any statement to the police. They were cross-examined by learned APP for the State; however, nothing material could be elicited to ascertain the identity of the accused persons.
Result The identity of the accused is an essential element of any offence. Onus is on the prosecution to prove beyond reasonable doubt that the person facing the trial is, in PS: Farsh Bazar Page 6 of 7 State vs. Sanjeev etc FIR No. 299/2006 fact, the same person who committed the offence.
In the case in hand, the PWs Karan Singh, Sadiq Ali @ Chhotu, Dharmender, Shree Pal, Lamni and Jagbir Singh are reportedly not traceable whereas PW1/Ram Kishore Sharma and PW2/Bhupender Sharma, who were the complainant and alleged eye witness of the incident, have failed to identify or recognize the accused persons in the dock. They were declared hostile and cross-examined by the APP for the State but nothing could be elicited from them which could indicate complicity of the accused persons in the crime. Thus, in my considered opinion, the prosecution has miserably failed to establish the identity of the assailants or the wrongdoers.
Therefore, keeping in view the overall conspectus of the case, I am of the considered view that the prosecution has failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused persons.
Therefore, I give benefit of doubt to the accused persons and accordingly, the accused persons namely Sanjeev, Sunny, Pawan Kumar, Mohan and Puran Mal are acquitted of the charge levelled against them.
Bail bond under section 437A of the Code of Criminal Procedure, 1973 furnished. Perused and accepted for a period of six months from today.
File be consigned to record room after due compliance.
Announced in open Court on 14th May, 2018 (Babita Puniya) MM (Mahila Court-02)/Shahdara KKD Courts/Delhi 14.05.2018 This judgment contains 7 pages and each page bears my signature. Digitally signed by BABITA BABITA PUNIYA PUNIYA Date:
2018.05.15 17:14:02 +0530 (Babita Puniya) MM (Mahila Court-02)/Shahdara KKD Courts/Delhi 14.05.2018 PS: Farsh Bazar Page 7 of 7