Delhi District Court
State vs . Kartik & Anr. on 10 July, 2018
IN THE COURT OF MR. SANDEEP GARG,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH),
NEW DELHI
F.I.R. No: 156/15
U/s 336/387/506/34 IPC & Section 25/27 of Arms Act
P.S. Ambedkar Nagar
State Vs. Kartik & Anr.
Date of Institution of Case : 23.07.2015
Judgment Reserved on : 10.07.2018
Date of Judgment : 10.07.2018
JUDGMENT:
(a) The serial no. of the case : 2035715/2016
(b) The date of commission of offence : 16.02.2015
(c)The name of complainant : Sh. Shakeel Ahmed,
: S/o Sh. Rashid Khan,
: R/o H.No. KII/10, Madangir,
: New Delhi.
(d) The name, parentage, of accused : 1. Kartik
: S/o Sh. Nagraj,
: R/o H.No. H1st/354,
: Madangir, New Delhi.
: 2. Kamal Singh
: S/o Sh. Brijwasi,
: R/o H.No. BH24, 3rd Floor,
: Madangir, New Delhi.
Present Address : As above
(e) The offence complained of : U/s 336/387/506/34 IPC
: & Section 25/27 of Arms Act
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(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 10.07.2018
Brief reasons for the decision:
1. In brief the case of the prosecution is that on 16.02.2015 at about 11:00 PM, opposite H.No. KII/80, near Bhumia Chowk, Madangir, New Delhi within the jurisdiction of PS Ambedkar Nagar, both accused viz. Kartik and Kamal Singh, in furtherance of their common intention, fired in the air. In order to pressurize the complainant Sh. Shakeel Ahmed to vacate property no. KII/80, near Bhumia Chowk, Madangir, New Delhi and in order to commit extortion, they put complainant in fear of death or grievous hurt and threatened him with dire consequences with intent to cause alarm to him. Furthermore, on the same, date, time and place, the said fire arm and 8 mm empty cartridge having length 5 cm and breadth 1.4 cm was found in possession of accused Kartik without any license. Accused persons are thus alleged to have committed offences punishable U/s 336/387/506/34 IPC and Section 25/27 of Arms Act. On the basis of rukka sent by SI Bijender Singh, FIR for offences punishable U/s 336/506/34 IPC and Section 25/27 of Arms Act was registered. The case was investigated. After conclusion of investigation, chargesheet U/s 173 Cr.P.C. was filed whereby, both accused were chargesheeted for offences punishable U/s 336/506/34 IPC and Section 25/27 of Arms Act.
FIR No. 156/15 PS Ambedkar Nagar State Vs. Kartik & Anr. 2 of 10
2. Vide order dated 22.02.2018, charge U/s 387/506/34 IPC was framed upon both the accused and charge U/s 25/27 of Arms Act was framed upon accused Kartik to which both the accused pleaded not guilty and claimed trial.
3. In order to substantiate its case, prosecution has examined complainant Sh. Shakeel Ahmad as PW01, Sh. Rafiq Ahmed as PW02, Sh. Swatantar Singh as PW03 and Sh. Sonu as PW04 till date.
A brief scrutiny of the evidence :
4. PW01 Sh. Shakil Ahmad has deposed that 78 days prior to the incident, accused Kamal had met him on the way and told him that house in which he was residing belongs to him. He was sitting alongwith his friend Rafiq, servant Bunty and Sonu in his godown situated in K 2nd/80, Madangir. He heard a voice of firing. He did not open the door and made a call at 100 number. Police came at the spot and asked him as to whether he had any suspicion on anyone in response to which, he had named accused Kamal. Police obtained his signatures on blank papers. After 1012 days, police showed him the documents which were bearing his signatures. Police asked him to read the same, but he told that he was not able to read it. Upon being shown, complaint / statement, Ex. PW 1/A, he admitted his signatures on it at point A. He failed to identify accused persons to the the same persons who had threatened him to vacate the house.
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5. PW01 was declared hostile and crossexamined by ld. APP for the State. During his crossexamination, PW01 denied that he knew accused Kamal and Kartik. He denied that accused Kamal and Kartik had come to him and had asked him to vacate property no. K2nd/80, Madangir and he told them that he had purchased the said property from one Gupta Jee and will not vacate it. He was confronted with statement, Ex. PW 1/A from portion A to A1 wherein it was so recorded. He denied that he opened the gate of said godown and saw accused Kamal and Kartik who were saying that "Aaj Ka Scene Itna Hi Hai" and fled away from there and he had identified them. He was confronted with his statement, Ex. PW 1/A from portion B to B1 wherein it was so recorded. He denied that he had told to the police that accused Kamal and Kartik had fired outside the gate of his godown. He was confronted with statement, Ex. PW 1/A from portion C to C1 wherein it was so recorded. He admitted that Ex. PW 1/B bears his signatures. He volunteered that his signatures were taken on blank paper. He denied that empty cartridge was recovered in his presence. Upon being pointed out by ld. APP towards accused Kamal and Kartik to be the persons who had fired in air, but he failed to identify them. He denied that he was won over by accused persons or that he was not telling the truth before the court.
6. PW02 Sh. Rafiq Ahmed deposed that on 16.02.15, he was present at his home. At around 11.30 PM, he heard noise and came out from house, near H.No. 80, where crowd had already gathered. People in the crowd were saying that somebody had fired from a pistol or gun, but it FIR No. 156/15 PS Ambedkar Nagar State Vs. Kartik & Anr. 4 of 10 was not known as to who had fired. The police came at the spot. During that period, he was working with Shakeel Ahmed, chicken/mutton supplier. He does know anything else.
7. PW02 was declared hostile and was crossexamined by ld. APP for the State. During his crossexamination, PW02 stated that was not present with Shakeel Ahmed, Sobu @ Sundar and Swatantar @ Bunty at KII, 80, godown at Madangir at around 11 PM. The distance between his house and the Godown was around 200 meters. He denied that he was present at KII, 80, godown at Madangir at around 11 pm with Shakeel Ahmed, Sobu and Swatantar. Upon being pointed out towards both the accused persons, he failed to identify them. He had seen both the accused for the first time in the present case. He denied that on 16.02.15, he was present at the house no. KII, 80, godown at Madangir and heard noise of firing. He denied that on hearing the sound of firing, he came out from godown and saw both accused present outside the godown who were saying that "aaj itna hi seen kafi hai". He was confronted with his earlier statement recorded u/s 161 Cr.P.C. which is MarkP2 wherein it was so recorded. He denied that he made a call at 100 number. He denied that in his presence, police took photographs of the spot and seized empty cartridge. He denied that in his presence, police had prepared a site plan. He denied that police had inquired from him and recorded his statement. He was confronted with his earlier statement recorded U/s 161 Cr.P.C., MarkP2 wherein it was so recorded. He denied that both the accused were having property dispute with Shakeel Ahmed. He denied that he was FIR No. 156/15 PS Ambedkar Nagar State Vs. Kartik & Anr. 5 of 10 deposing falsely as he was won over by accused persons and not telling the truth before the Court.
8. PW03 Sh. Swatantar Singh deposed that on 16.02.15, he alongwith Shakeel Ahmed, Rafeeq Ahmed were sitting in office KII, 10 i.e. house of Shakeel Ahmed at around 11 PM. He was working as driver of Shakeel Ahmed at that point of time. Suddenly, they heard noise and went outside. They saw that crowd had gathered near Neem Wala Chowk and police was present there. Police was taking signatures from people who had gathered there. He also signed on some papers. He does not want to depose anything else.
9. PW03 was declared hostile and was crossexamined by ld. APP for the State. During his crossexamination, ld. APP pointed out towards both accused persons and after seeing them, he failed recognize accused Kartik, but he recognized accused Kamal stating that he was having a cloth shop and he had seen him while passing by the said cloth shop. Upon being questioned as to whether he had seen both the accused on 16.02.15 at any point of time near the house or godown of Shakeel Ahmed, he stated that he had not seen them on 16.02.15 at any point of time near the spot. He denied that on 16.02.15, he was present at godown, KII 80 of Shakeel Ahmed at around 11 PM and had heard noise of firing outside the said godown. He denied that on coming out of the godown, he saw both the accused persons while they were running by saying "aaj itna hi seen kafi hai". He denied that he was already acquainted with both the FIR No. 156/15 PS Ambedkar Nagar State Vs. Kartik & Anr. 6 of 10 accused persons. He denied that there was some property dispute between Shakeel Ahmed and the accused persons. Upon being questioned as to who made call at 100 number, he replied that he does not know. Upon being told that call on 100 number was made by Mr. Rafiq, he denied that call at 100 number was made by Mr. Rafiq. He was confronted with his earlier statement recorded U/s 161 Cr.P.C., MarkP5 wherein it was so recorded. He denied that police had recorded his statement. He denied that he was deposing falsely as he won over by both the accused persons.
10. PW04 Sh. Sonu deposed that he does not remember the date, month and year of the incident. However, the incident had occurred either in the month of January or February prior to the festival of Holi. He had no idea pertaining to year of the incident. On the day of the incident, he was looking after the godown of Mr. Shakeel, situated at Madangir. On that day, after having dinner, they were talking inside the said godown. He has no idea about the time as to when, he had heard loud noise from the street. He alongwith another person, whose name he does not remember, came out from the godown and saw that public persons had gathered there. He got scared and thereafter, returned to godown and slept. After ten days of the incident, he went to his native village. He does not remember anything else.
11. PW04 was declared hostile and was crossexamined by ld. APP for the State. During his crossexamination, he denied that on FIR No. 156/15 PS Ambedkar Nagar State Vs. Kartik & Anr. 7 of 10 16.02.2015 in the night, he alongwith Shakeel Ahmad, Rafiq Ahmad, Swatantar were sitting inside the godown or that at around 11:00 PM, they heard noise of firing. He denied that on hearing the said noise, they came out from the godown and saw that two persons namely Kamal and Kartik told them that "Aaj Ka Itna Hi Scene Kafi Hai" or that they fled away from the spot. He denied that Rafiq called the police by dialing at 100 number or that police official reached at the spot who took photographs and seized the empty cartridge. He denied that he had narrated said facts to the police official, who recorded his statement. Upon being shown statement U/s 161 Cr.P.C., Mark PX1 from point A to A1, he denied having made any such statement to the police. He denied that he was deposing falsely. Upon being pointed out towards accused Kartik and Kamal by Ld. APP, to be the persons who had threatened Shakeel, he stated that he cannot identify them. He denied that he was intentionally not identifying the accused persons in court. He denied that he was won over by accused persons or deposing falsely.
12. The court has examined the record. Prosecution has proposed to examine thirteen witnesses which includes complainant Sh. Shakeel Ahmed who has been examined as PW01, Sh. Rafiq Ahmed who has been examined as PW02, Sh. Swatantar Singh who has been examined as PW03 and Sh. Sonu who has been examined as PW04. The remaining witnesses proposed to be examined are formal / official witnesses and none of them is an eyewitness to the incident. This fact has been fairly conceded by Ld. APP for the State.
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13. There is not even an iota of evidence on record to establish that both accused persons had fired in air in order to pressurize complainant Sh. Shakeel Ahmed and in order to commit extortion, they put complainant into fear of death or grievous hurt and threatened him with dire consequences. Moreover, there is not even an iota of evidence on record to establish that the said fire arm and 8 mm empty cartridge having length 5 cm and breadth 1.4 cm was recovered from possession of accused Kartik. Therefore, no liability U/s 387/506/34 IPC and U/s 25/27 of Arms Act can be fastened upon them. Reference can be made to State of Rajasthan v. Joita (Rajasthan) 2002 Cri.L.J. 3514 and Ishwar Singh v. State of Haryana, (P&H) 2000 (2) R.C.R. (Criminal) 571 and K. Nageshwara Rao v. State of A.P. 2003 (4) R.C.R. (Criminal) 588.
14. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R.(Criminal) 662).
15. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, FIR No. 156/15 PS Ambedkar Nagar State Vs. Kartik & Anr. 9 of 10 subject of course to some statutory exceptions. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190, it was again held that in criminal cases burden is always is on prosecution and never shifts.
16. A perusal of statements of complainant PW01 Sh. Shakeel Ahmed, PW02 Sh. Rafiq Ahmed, PW03 Sh. Swatantar Singh and PW04 Sh. Sonu shows that they have deposed that they did not see the accused persons firing in the air on 16.02.2015 and threatening the complainant. During their crossexamination by ld. APP, they denied that accused persons had fired in the air and threatened the complainant. Therefore, the court holds that prosecution has failed to discharge the onus of establishing guilt of both the accused persons. In view of the depositions of complainant / PW01 Sh. Shakeel Ahmed, PW02 Sh. Rafiq Ahmed, PW 03 Sh. Swatantar Singh, PW04 Sh. Sonu, further continuation of trial will be a futile exercise. Accordingly, PE is closed. Since there is no incriminating evidence on record against accused persons, SA is dispensed with. Accused Kartik and Kamal Singh are acquitted of the charges leveled against them. They are directed to furnish bail bonds in terms of Section 437A Cr.P.C. forthwith. Case property be confiscated to State and be destroyed after expiry of period of appeal. Original documents, if any, be returned to its rightful owner after cancellation of SANDEE Digitally signed by SANDEEP GARG endorsement, if any.
DN: c=IN, o=OFFICE OF THE DISTRICT AND SESSIONS JUDGE...., 2.5.4.20=c0638bd0f6b2591ae536772d72 e898dfdef5a6e0dfd0e0a8b83c0396a0110 File be consigned to Record Room.P GARG 47f, ou=DELHI DISTT COURTS,CID -
6553892, postalCode=110017, st=Delhi,
cn=SANDEEP GARG
Date: 2018.07.11 17:47:06 +05'30'
Announced in the open (Sandeep Garg)
Court on 10.07.2018 ACMM (South),
New Delhi.
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