Delhi District Court
State vs Salman@Billi on 27 May, 2025
IN THE COURT OF MS. SWATI SHARMA,
CHIEF JUDICIAL MAGISTRATE
SHAHDARA, KKD, DELHI
JUDGMENT U/S 355 Cr.PC
CNR No.DLSH020037572024
a Serial No. of the case : FIR No.42/2024, PS
Shahdara Cr. Case
No.1983/2024]
b Date of the commission of the : 20.01.2024
offence
c Name of the Complainant : Ms. Shabana
d Name of Accused person and his : 1) Salman @ Billi
parentage and residence S/o Late Sh. Safiq
Khan
R/o H.No.12B, Gali
No.2, Near Saheed
Jama Masjid, Husain
Barat Ghar, Mojpur,
Delhi.
2) Saifali @ Nathu
S/o Sh. Gulzar Khan
R/o H.No.E-168, Gali
No.5, Behind Tent
wala School, Subhash
Mohalla, Moujpur,
Delhi.
e Offence complained of : 392/411/34 IPC
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 13.05.2025
i Order pronounced on : 27.05.2025.
BRIEF REASONS FOR THE DECISION
FIR No.42/24
PS Shahdara
State v. Salman @ Billi and Anr. Page No.1 of 21
Factual matrix and trial proceedings
1.Briefly stated the facts of the Prosecution case are that on 20.01.2024 at about 11:45 am at property no. B-110, Gali No.03, Jyoti Nagar, Delhi within the jurisdiction of PS Shahdara, Delhi, both accused persons in furtherance of their common intention committed robbery of mobile phone make Narzo (Light Green Colour) belonging to the complainant Shabana. Further, on the same date at Police Booth, Panchsheel Garden, Shahdara, Delhi, accused Saifali was found in possession of mobile phone make Narzo (Light Green Colour) belonging to the complainant Sabana which he retained knowingly or having reason to believe to be the same as stolen property from the jurisdiction of PS Shahdara. In this background, a case was registered against the Accused persons for the offences punishable u/s 392/411/34 IPC.
2. Chargesheet in this matter was filed in the court on 19.03.2024 for the offences u/s 392/411/34 IPC against accused persons whereupon Cognizance was taken in this matter and upon appearance of Accused persons, copies of documents were supplied to the Accused persons in compliance of section 207 Cr.P.C.
3. Accordingly, vide order dated 02.04.2024, charge u/s 392/34 IPC was duly served upon the both accused persons and additionally, charge under section 411 IPC was framed against accused Saifali. Charge was read over and explained to Accused persons to which they pleaded not guilty and claimed trial.
It is pertinent to note that on 13.01.2025, vide statement recorded u/s 294 Cr.P.C., Accused persons jointly admitted the FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.2 of 21 registration of FIR No.42/24 PS Shahdara (Ex.C1) and DD NO.35A dated 20.01.2024 (Ex.C2). Thus, DO/ASI Vijay Kumar Seth was dropped from the list of witnesses.
Thereafter, matter was taken up for recording of prosecution evidence.
4. In order to bring home the guilt of the Accused, Prosecution examined eight witnesses as follows:-
PW1 Complainant Shabana
PW2 HC Pramod
PW3 HC Ravi
PW4 HC Nishant
PW5 Sh. Praveen Kumar
PW5 HC Naveen Kumar
PW6 ASI Satender Singh
PW7 SI Kanhaiya Lal
5. A detailed scrutiny of the testimonies of the Prosecution witnesses has been done and is hereby discussed in detail. 5.1. PW1 Smt. Shabana: She is the complainant in the present case. She deposed that on 20.01.2024, at about 11:45 a.m, she was present in front of shop no. B-110, Jyoti Colony, Delhi and talking on her mobile phone, in the meanwhile two boys came on a white colour motorcycle from the side of main 100 Ft Road and parked the motorcycle near her and tried to snatch her mobile phone make of Narzo, Light Green Colour, however, they could not snatched the said mobile phone as mobile phone was tightly hold by her. She further deposed that thereafter, one of them slapped her and forcefully snatched her mobile phone at the spot and fled away from the spot towards Chauhan Optical, 100 ft FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.3 of 21 road and she chased the abovesaid accused persons and noted down motorcycle bearing no. as 7268 and someone made PCR call, police came at the spot and recorded her statement Ex. PW1/A. She further deposed that thereafter, police officials prepared site plan at her instance Ex. PW1/B and thereafter, she went to her house and during the course of investigation, she handed over bill/tax invoice of the abovesaid mobile phone to the police official, Ex. PW1/C. She further deposed that she cannot identify the accused persons as well as motorcycle if shown to me due to the lapse of time.
She was cross examined by the Ld. APP for the State as she resiled from her previous statement.
During her cross examination by Ld. APP for State, she denied the suggestions that police officials recorded her supplementary statement on 20.01.2024, Mark X and also denied the suggestions that after incident she alongwith her relative namely Azar visited at the PS Shahadra to get copy of FIR No. 42/2024 in the present case. She was confronted with the statement mark X from portion A to A1 wherein it is so recorded. She further denied the suggestions that after getting the copy of FIR in the present case, she contacted police official in the present case and police official called me at Panchsheel Garden, Police Booth, Near Chaska Restaurant, Shahadra, accordingly, she went there and met with police official and police official showed her the abovesaid motorcycle bearing Reg No. 7286 white colour and the abovesaid boys who had committed robbery with her. She was confronted with the statement mark X from portion A2 to A3 wherein it is so FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.4 of 21 recorded. She denied the suggestions that she had identified the accused persons at Panchseel Garden, Police Booth, Chaska Restaurant, Shahadra and narrated whole incident to the police and on the search of accused Saif Ali abovesaid mobile phone was recovered from right pocket of wearing pant and mobile phone, motorcycle bearing Reg No. DL7SCB-7268 and wearing cloths of the accused persons were seized vide seizure memos Ex. PW1/D, Ex. PW1/E and Ex. PW1/F. She was confronted with the statement mark X from portion A3 to A4 wherein it is so recorded. all bearing my signature at point A. She denied the suggestions that accused persons namely Saif Ali and Salman were arrested vide arrest memo Ex. PW1/B and Ex. PW1/H. During evidence, her attention was drawn towards the accused persons, however, she failed to identify the accused persons due to lapse of time. She denied the suggestions that matter has been settled outside of the Court with relative of accused persons pr atj she has been won over by the accused persons as directly or indirectly or that she deliberately not identifying the accused persons.
During her cross examination by Ld. Defence counsel admitted that she had deposed in the examination in chief voluntarily and denied the suggestions that no such incident was ever happened with her.
5.2. PW2: HC Pramod: He deposed that on 20.01.2024, he joined in the investigation in the present case and at about 11:45 a.m, he alongwith HC Ravi and HC Nishant reached at the spot i.e. Gali no.03, Jyoti Colony, where they checked the CCTV footage installed on a shop and on checking the CCTV footage, FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.5 of 21 they saw the incident was captured in the CCTV footage and face of accused and as well as registration number of motorcycle bearing No. DL7S-CB-7268 (white colour make of Apache) on which accused persons came were clearly shown and thereafter, they searched the accused persons in the area of Maujpur and Jafrabad and on the same day, at about 9:00 p.m, he alongwith HC Ravi and HC Nishant left the PS in the search of accused person when they reached near Chaska Restaruant, Panchseel Garden Police Booth, where they noticed that accused persons as seen in the CCTV footage were coming from the side of Chaska Restaurant and they stopped the persons coming on abovesaid motorcycle and noticed that the stopped person as well as motorcycle were same as had been seen in the CCTV footage. He further deposed that thereafter, they checked the abovesaid motorcycle on Zipnet, same were found stolen case property from the PS Lahori Gate, Delhi. He further deposed that thereafter, they inquired from the abovesaid apprehended person and rider disclosed his name as Saif Ali @ Natu and pillion rider Salman @ Billi and thereafter, they took the cursory search of accused persons and on cursory search mobile phone make Narzo (Light green colour) was recovered from the possession of accused Saifi Ali from his right pocket of wearing pant and he shared the abovesaid information to IO/ASI Satender Singh and after sometime, IO/ASI Satender and Ct. Naveen came at the spot and they handed over the custody of accused persons as well as case property i.e. abovesaid mobile phone to IO/ASI Satender. He further deposed that in the meantime, IO/ASI Satender Singh received a call from the complainant namely FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.6 of 21 Sabana and IO/ASI Satender Singh called the complainant Sabana at the spot, accordingly, complainant alongwith Devar Azhar came at the spot and IO/ASI Satender Singh handed over mobile phone to complainant Sabana to open the lock of mobile phone and accordingly, complainant opened the lock of the abovesaid mobile phone recovered from the accused persons. He further deposed that thereafter, IO/ASI Satender Singh verified the IMEI number of the mobile phone and informed that the said mobile phone was stolen case property in the present case and complainant also recognized/identify the accused at the spot and thereafter, IO seized the abovesaid mobile phone and prepared pullanda sealed with the seal of SP and prepared seizure memo and IO also seized the abovesaid motorcycle and prepared seizure memo Ex. PW1/E. He further deposed that IO/ASI Satender seized the jacket of abovesaid accused persons and prepared seizure memo and recorded disclousure statement of accused persons namely Saif Ali and Salman @ Billi vide disclosure statement Ex. PW2/A and Ex. PW2/B and thereafter, accused persons namely Saif Ali and Salman @ Billi were arrested and personally searched vide arrest memo and search memo Ex. PW1/G and Ex. PW1/H and they were personally searched vide personal search memos is Ex. PW2/C and Ex. PW2/D and thereafter, they alongwith accused persons came back at the PS. He correctly identified the accused persons as well as case property Ex.P1 (colly) in the court.
During his evidence, the alleged incident of robbery played in the computer system of the Court which was contained in pendrive 16 GB Sandisk Cruzer (Blade Red and Black 16 GB) FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.7 of 21 and as per video accused persons were coming in first video and fleeing on the motorcycle from the spot and complainant were chasing behind the motorcycle of accused persons. 5.3. PW3: HC Ravi: He was present alongwith HC Pramod and reached at the spot and has deposed exactly on the lines of PW2 HC Pramod.
During his cross examination by Ld. Defence counsel, he denied the suggestions that he had not visited at the spot or that accused persons has been falsely implicated in the present case or that case property is planted upont he accused persons or that all the writing work were done by the IO while sitting at the PS. 5.4. PW4: HC Nishant: He was present alongwith HC Pramod and reached at the spot and has deposed exactly on the lines of PW2 HC Pramod.
During his cross examination by Ld. Defence counsel, he stated that he reached at the spot at about 12:00 p.m. and IO reached at the spot at around 11:50 am. He failed to remember at what time HC Naveen has left the spot carrying the rukka to the PS and at what time he has reached again on the spot carrying copy of FIR. He also failed to remember whether HC Naveen had had gone alone to the PS or not. He admitted that all the police party were carrying mobile phone with camera and also admitted that no videography/photography of the said recovery or personal search of the accused persons were carried out or that that no notice was given by the IO to the public persons to take part in the investigation proceedings or that the said place is a public place. He failed to remember as if statement of any other witness was taken by the IO on the spot. He denied the FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.8 of 21 suggestions that he had not visited at the spot or that accused persons has been falsely implicated in the present case or that case property is planted upon the accused persons or that all the proceedings were carried out by the IO while sitting at the PS. 5.5. PW5: Sh. Praveen Kumar: He deposed that he had installed CCTV Camera on the shop and on 23.01.2024, police officials of the PS Shahdara came at his shop and checked the CCTV Footage. He further deposed that he had given CCTV footage of the incident in a pen drive make of Sandisk 16 GB (red and black colour) to the police officials of PS Shahdara and the said pen drive was seized by the police officials of the PS Shahdara Ex. PW5/A. He further deposed that he had given certificate U/s 65B Indian Evidence Act Ex.PW5/B regarding the abovesaid pen drive as per the law. He correctly identified the pen drive make of Sandisk 16 GB Ex.P1.
During his cross examination by Ld. Defence counsel, he admitted that the certificate U/s 65B Indian Evidence Act was not prepared by him and that he had not witnessed the incident. 5.6. PW5: HC Naveen Kumar: He deposed that on 20.01.2024, he joined the investigation alongwith IO/ASI Satender Singh and upon receipt of PCR call vide DD No. 35A by IO/ASI Satender Singh, he alongwith him reached at the spot i.e Property no. B-110, 100 Ft. Road, gali no.03, Jyoti Nagar, Near Nathu Colony Chowk, where one lady/complainant namely Sabana met them. He further deposed that IO ASI Satender Singh inquired the complainant namely Sabana at the spot and prepared tehrir. IO/ASI Satender Singh handed over him tehir for registration of FIR and accordingly, he went to the PS and got registered the FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.9 of 21 FIR and after registration of FIR, he came back at the spot alongwith copy of FIR and original rukka and same was handed over to IO/ASI Satender Singh and thereafter IO/ASI Satender Singh prepared site plan of the spot. He further deposed that IO/ASI Satender Singh called crack team at the spot and crack team consisting HC Pramod Kumar, HC Ravi and HC Nishant came at the spot and in the meantime, SHO/PS concerned also came at the spot and directed crack team to check the CCTV Camera installed at the spot as well as in the nearby area and Crack team found one CCTV camera installed at the spot and check the CCTV camera covering the incident. He further deposed that on the same day, at about 9:00 p.m, officials of the abovesaid crack team informed to ASI Satender Singh regarding apprehension of accused persons alongwith motorcycle involved in the incident in case FIR No. 42/2024. He further deposed that thereafter, he alongwith IO/ASI Satender Singh reached at the place i.e Chaska Restaurant, where accused persons alongwith motorcycle were apprehended by officials of the crack team and when they reached at the Chaska Restaurant, they noticed that HC Pramod Kumar, HC Ravi and HC Nishant alongwith apprehended two persons were present and IO/ASI Satender Singh interrogated the apprehended person who revealed his name Salman @ Billi and Saifi Ali @ Nathu. He further deposed that officials of the crack team handed over the custody of both accused persons as well as case property i.e. abovesaid mobile phone to IO/ASI Satender and in the meantime, IO/ASI Satender Singh received a call from the complainant namely Sabana and IO/ASI Satender Singh called the complainant FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.10 of 21 Sabana at the spot, accordingly, complainant namely Sabana alongwith her Devar Azhar came at the spot and IO/ASI Satender Singh handed over mobile phone to complainant Sabana to open the lock of mobile phone and accordingly, complainant opened the lock of the abovesaid mobile phone recovered from the accused persons. He further deposed that thereafter, IO/ASI Satender Singh verified the IMEI number of the mobile phone and informed that the said mobile phone was stolen case property in the present case. He further deposed that complainant also recognized/identify the accused at the spot and thereafter, IO seized the abovesaid mobile phone and prepared pullanda sealed with the seal of SP and prepared seizure memo and also seized the abovesaid motorcycle and prepared seizure memo same is already Ex. PW1/E. He further deposed that IO/ASI Satender seized the jacket of abovesaid accused persons and prepared seizure memo same is already Ex. PW1/F and thereafter, accused persons namely Saif Ali and Salman @ Billi were arrested and personally searched vide arrest memo and search memo. Arrest memos of the accused persons is Ex. PW1/G and Ex. PW1/H and were personally searched vide personal search memos same is already Ex. PW2/C and Ex. PW2/D and thereafter, they alongwith accused persons came back at the PS. He correctly identified the accused persons as well as case property Ex.P1 (colly) in the court.
During his evidence, the alleged incident of robbery played in the computer system of the Court which was contained in pendrive 16 GB Sandisk Cruzer (Blade Red and Black 16 GB) and as per video accused persons were coming in first video and FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.11 of 21 fleeing on the motorcycle from the spot and complainant were chasing behind the motorcycle of accused persons.
During his cross examination by Ld. Defence counsel, he stated that he reached at the spot at about 01:00 p.m and took rukka at about 4:45 p.m for the registration of FIR and came back at the spot alongwith copy of FIR and original rukka at about 5:45 p.m. He admitted that all the police party were carrying mobile phone with camera. He admitted that no videography/photography of the said recovery or personal search of the accused persons were carried out or that no notice was given by the IO to the public persons to take part in the investigation proceedings or that the said place is a public place. He failed to remember as if statement of any other witness was taken by the IO on the spot. He denied the suggestions that he had not visited at the spot or that accused persons has been falsely implicated in the present case or that case property is planted upon the accused persons or that all the proceedings were carried out by the IO while sitting at the PS. 5.7. PW6 ASI Satender Singh: He was present alongwith HC Naveen Kumar and reached at the spot and has deposed exactly on the lines of PW5 HC Naveen Kumar.
During his cross examination by Ld. Defence counsel, he stated that he reached at the spot at about 12:45 p.m via his private motorcycle and the spot is around 1.5 km from the PS. He further stated that complainant alongwith her companion was present on the spot when they reached. He admitted that the said spot is a public place which was situated near the main road and he had had not given any written notice to any public persons to FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.12 of 21 join the investigation. He further stated that Ct. Naveen had left the spot at around 4:45 p.m carrying rukka at the PS and had returned to the spot at around 5:45 p.m. He admitted that no videography or photography of recovery and arrest of the accused persons has been made and complainant has reached on the spot at about 9:00 p.m alongwith her Devar. He further stated that he had not taken statement of the companion of the complainant and her devar and they had remained on the spot for around two hours and had finally left the spot at about 11:45 p.m. He further stated that he had taken statement of complainant Sabana on the spot, however, all the other statements were recorded by me at the PS. He denied the suggestions that he had not visited at the spot or that accused persons has been falsely implicated in the present case or that case property is planted upon the accused persons or that all the proceedings were carried out by the IO while sitting at the PS. 5.8. PW-7 SI Kanhiya Lal: He deposed that on 04.02.2024, case file of the present case was marked to him from MHC(R) for the further investigation and thereafter, he inspected the case file and found that the one pendrive 16 GB Sandisk cruzer red and black colour was seized by the previous IO/ASI Satender Singh. He further deposed that he verified documents annexed with the case file and thereafter, he prepared chargesheet and made written submission in the chargesheet that the abovesaid CCTV Footage in the abovesaid pendrive of the incidence is being sent to the FSL for the authenticity and expert opinion, however, the abovesaid pendrive was not sent to FSL till date.
With the above-mentioned testimonies, Prosecution FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.13 of 21 Evidence was brought to an end.
6. Thereafter, on 10.03.2025, statement of the accused persons U/s 313 r/w Section 281 Cr.PC was recorded wherein all the incriminating evidence was put to the Accused persons. They denied the commission of the alleged offences stated that they are innocent and has been falsely implicated in the present case and lifted from the house and case property has been planted upon them.
Despite opportunity, accused persons preferred not to lead any evidence in their defence and accordingly, defence evidence was closed.
Resultantly, the matter was taken up for final arguments.
It is pertinent to note that in total 10 witnesses had been cited by the Prosecution including two public witnesses i.e. the complainant and witness Praveen Kumar. All the remaining 8 witnesses cited by Prosecution are formal witnesses.
It is vital to mention here that the star witnesses to this case was PW Complainant Shabana as she witnessed the entire incident. To the utter dismay of Prosecution the prime Prosecution witnesses turned hostile and even though she admitted the incident but she failed to identify the Accused persons in the court.
7. After recording of the testimony of the eye witnesses in this matter, it was observed that she failed to provide any support to the Prosecution case as she failed to identify the Accused persons. The other witness examined by the prosecution also FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.14 of 21 could not lend any support to the prosecution case as they were also not an eye witness to the case and only deposed regarding the investigation conducted by them.
Upon perusal of testimonies of the prosecution witnesses as above-mentioned, it was observed that no substantial evidence against the Accused persons has been brought by them on record.
Summary of arguments
8. Ld. APP for the State has vehemently argued that the Accused persons be convicted for the offences with which they have been charged as the said offences are heinous in nature and leaving them free without any penalty being imposed upon them would rather make them commit similar offences again. It is further argued by Ld. APP for the State that even though PW Complainant Shabana has been unable to identify the Accused persons, it is undisputed that FIR has been registered in this matter upon a statement of complainant and therefore, Accused persons deserve to be held guilty.
9. On the other hand, Ld. LAC for accused persons has strongly opposed the contentions of Ld. APP for the State stating that prosecution has been unable to bring even an iota of valid evidence against the Accused persons which points out towards their guilt. It is further argued by the Ld. Counsel for the Accused persons that merely because the complainant initiated the criminal proceedings against the Accused persons in this matter, they cannot be held liable for it as eye-witnesses/complainant has filed to identify the Accused persons and all the evidence brought out in this matter is nothing FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.15 of 21 but herasay. Further, it was argued that when the eye-witness/complainant herself has failed to identify the Accused persons in the court, no question of establishing the guilt of the Accused persons arises. Thus, Ld. LAC for the Accused persons has strongly pressed upon setting the Accused persons at liberty by acquitting them.
10. Accordingly, this court has heard the rival submissions advanced by the Ld. APP for State and the Ld. LAC for the Accused persons and has also perused the entire record carefully.
Brief reasons for the decision
11. At the outset, before proceeding further on to discussing the weight and relevancy of evidence led by the Prosecution, this court deems it appropriate to first highlight the cardinal principles of Criminal Jurisprudence, i.e. one, that the Accused is presumed to be innocent unless proved guilty and two, that the burden upon the Prosecution lies to the extent of proving the guilt of the Accused beyond all reasonable doubts . Thus, it is incumbent upon the Prosecution to prove all the ingredients which constitute the offence so that all reasonable doubts in the case of the Prosecution are removed. It may be noted that strongest of suspicion upon the Accused persons, does not lead to the guilt of the Accused persons. Thus, keeping in view the above stated aspects and principles of criminal jurisprudence this court shall proceed to decide upon the innocence or guilt of the Accused persons.
12. Coming to the facts of the case, the Prosecution has cited 10 witnesses in the list of witnesses annexed with the FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.16 of 21 chargesheet out of which two are prime public witnesses and rest of the witnesses cited by the Prosecution are formal witnesses, who might have played some part in the investigation but were not firsthand witnesses to the alleged incident. Certainly, the guilt of the Accused persons could not have been proved by the Prosecution from the mere testimony of said formal witnesses inasmuch as, the alleged incident was never committed in their presence.
13. The main witness of the prosecution i.e. PW1 Smt. Shabana has turned hostile in the present case. It is pertinent to note that under Indian law, the evidence of hostile witness is not discarded completely. The legal maxim, "false 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 -
"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."
14. In the instant case, it is not in dispute that the robbery has been committed in the present case, however, PW1 in her testimony has failed to identify the accused persons due to lapse of time. In her cross-examination, she has stated that she did not identify the accused persons at Panchsheel Graden. Police Booth, Chaska Restaurant, Shahdara. She has refuted the suggestion that FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.17 of 21 she is deliberately not identifying the accused persons as she has been won over by the accused persons. She also denied that on the search of accused Saif Ali mobile phone was recovered from right pocket of wearing pant and the same was seized. It seems that the witness, PW-1 has changed her statements from time to time, as per her convenience for the reasons best known to her. Moreover, the CCTV Footage in which the accused persons were seen coming in the first video and fleeing on the motorcycle from the spot and complainant were chasing behind the motorcycle of the accused persons was not sent to the FSL for expert opinion. Hence, the same cannot be reiled upon by the prosecution. Moreover, the footage does not show the incident of robbery.
15. Admittedly, no other public witness of the incident in question has been cited and there is no other circumstance to point towards the guilt of the accused persons. No other PW leads to the suggestion that the accused persons have committed the offence. Thus, even if the evidence of the hostile witness is considered partly, there is nothing on record to implicate the accused persons. As such, none of the essential ingredients of the offence stands fulfilled in the present case.
16. With respect to the allegation u/s 411 IPC qua the accused Saifali it is stated that the star witnesses of the prosecution are PW2, PW3 and PW4 in whose presence the alleged stolen mobile phone was recovered. However, in the opinion of this Court, the testimonies of these witnesses do not inspire confidence. Even though mere fact that the witness is police official is not sufficient to doubt his testimony, the other factors FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.18 of 21 discussed below throw a doubt on the reliability of the police witnesses. In this regard, it is to be noted at the outset that the prosecution has failed to produce any documentary evidence to prove that the police witnesses were present when the recovery was made from the accused Saifali. The prosecution has not tendered into evidence any arrival/departure entries of the official witnesses to support its case. The departure/arrival entry in the Daily Diary would have been a substantial piece of evidence to corroborate the version of the police officials if there is no other evidence on record. Therefore, non-production of DD entries to prove that the witnesses were present at the spot throws a doubt on the testimonies of the police officials. No PW has led any evidence in order to support that they were present while the recovery was made from the possession of the accused. Also, the statement of the public witnesses has not been recorded while the recovery was being made from the possession of the accused. It is an admitted fact by the prosecution witnesses that no statement of the independent public witness has been recorded while the recovery of the stolen article was made from the possession of the accused. The Hon'ble High Court of Delhi in the case of Anoop Joshi vs. State,1992 (2) C.C. Cases 314(HC) has observed as under:
"It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop−keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.19 of 21 of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shop−keepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
17. Further it was held in the Hon'ble Punjab & Haryana High Court in case titled as Roop Chand vs The State of Haryana, 1999(1) C.L.R 69 that it is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was 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.
18. It is pertinent to note that Section 100(4) CrPC provides that "before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issue an order in writing to them or any of them so to do". In the present case, the IO has even failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation qua the accused Saifali when there is no other evidence on record to implicate him. Thus, the FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.20 of 21 chances of his false implication cannot be ruled out when there is nothing on record to prove his guilt.
Conclusion
19. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence under Section 392/34 & 411 IPC beyond reasonable doubt. The star witness of the prosecution i.e., the complainant, PW1 has turned hostile. There is no evidence to link the accused persons with the crime charged against them. Further, the ingredients of the offence are not fulfilled from the material on record. In these circumstances, this court has no hesitation in holding that Accused namely Salman @ Billi and Saifali @ Nathu are not guilty for the offences U/s 392/411/34 IPC. Accordingly, the Accused persons namely Salman @ Billi and Saifali @ Nathu stand acquitted in the present case.
ANNOUNCED IN THE OPEN COURT ON 27.05.2025 (Swati Sharma) Chief Judicial Magistrate(Shahdara) Karkardooma Courts,Delhi [This judgment contains 21 signed pages] [This judgment has been directly typed to dictation.] Swati Sharma Digitally signed by Swati Sharma Date: 2025.05.27 16:59:21 +0530 FIR No.42/24 PS Shahdara State v. Salman @ Billi and Anr. Page No.21 of 21