Delhi District Court
In Re: State vs Mohd. Salim Zafar Etc on 3 April, 2013
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SAKET
COURTS: NEW DELHI
In Re: STATE VERSUS MOHD. SALIM ZAFAR ETC
F.I.R. No: 338/07
U/s 323/341/427/34 IPC
P.S. Sarita Vihar
Date of Institution of Case :19.02.2008
Judgment Reserved for : 03.04.2013
Date of Judgment : 03.04.2013
JUDGMENT:
(a) The serial no. of the case : 850/2/07
(b) The date of commission of offence : 03.05.2007
(c) The name of complainant : Sh. Khalid Abbas
(d) The name, parentage, of accused : 1) Mohd. Salim Zafar s/o Zafar
Ali,
2) Zafar Ali s/o Late Najir
Ahmed, Both R/o K50, Batla
House, New Delhi.
3) Ashutosh @ Hare Ram s/o
Late Sh. A.P. Singh, R/o J6,
Shatabdi Enclave, sector 49,
Noida UP.
FIR No. 338/07 State Vs. Mohd. Salim Zafar etc 1/6
Present Address : As above
(e) The offence complained of : U/s 341/323/427/34 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : All accused persons
acquitted
(h) The date of such order : 03.04.2013
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 03.05.2007 at about 06.00 p.m. at Gali Tohark no. 4, Abul Fazal I, Sarita Vihar, New Delhi within the jurisdiction of police station Sarita Vihar, all accused persons in furtherance of their common intention wrongfully restrained complainant Khalid Abbas and voluntarily caused simple injuries to him. Furthermore they damaged his mobile phone and camera and thus thereby the accused persons committed offence punishable u/s 323/341/427/34 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused persons were supplied the documents. Thereafter vide orders dated 25.05.2011 notice u/s 323/341/427/34 IPC was framed against the FIR No. 338/07 State Vs. Mohd. Salim Zafar etc 2/6 accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined one witness only. Thereafter the PE in the matter was closed by the Ld. Predecessor of this court vide orders dated 25.08.2012 and the statement of accused persons u/s 313 Cr.P.C was recorded wherein they claimed themselves to be innocent and having been falsely implicated in the case. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 ASI Sumer Singh deposed that on 04.05.2007 he was posted as ASI in PS Sarita Vihar and on that day he registered the present case FIR i.e. Ex. PW1/A on receipt of rukka from Constable Yogesh sent by HC Ravinder. He deposed that he also made endorsement on the rukka i.e. Ex. PW1/B.
5. This so far is the prosecution evidence in the matter.
6. Despite ample opportunities prosecution failed to bring on record complainant Khalid Abbas. As per records he remained not traceable. I have gone through report on the numerous summons as were issued against him since the framing of notice as well as have considered the statement of IO SI Ravinder Singh and his report Ex. P1. As per the statement of the IO dated FIR No. 338/07 State Vs. Mohd. Salim Zafar etc 3/6 25.08.2012 and his report the complainant could not located/traced despite due efforts.
7. As per the prosecution story, it was complainant Khalid Abbas who was restrained and assaulted/injured by the accused persons and his mobile and camera damaged. Hence, the deposition of complainant/injured Khalid Abbas was sine qua non for establishing the charges against the accused persons as the complainant/injured could have proved how and under what circumstances, the incident dated 03.05.2007 occurred. His deposition was also essential to establish the identity of the accused persons as the perpetrators of crime. He was the star/material witness of the prosecution case and in his absence the prosecution shall not be able to prove the alleged incident or the identity of the accused persons as admittedly there is no other eye witness of the incident. His absence has proved fatal and sounded death knell for the prosecution case.
8. Prosecution proposed to examine 5 witnesses in all and those who have been examined and those who remain to be examined are formal/official witnesses who came into the picture only after the alleged incident had occurred and information in this regard was received by them. Their testimony in the absence of the testimony of the complainant/injured shall not be sufficient to bring home the guilt against the accused persons.
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9. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true"
and "must be true".
10. 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).
11. 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, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. 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 FIR No. 338/07 State Vs. Mohd. Salim Zafar etc 5/6 prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
12. Prosecution has failed to discharge its onus. Accordingly, all three accused persons are entitled to acquittal.
15. I order accordingly.
Announced in the open (Gaurav Rao)
Court today MM (SE)/Delhi/03.04.2013
FIR No. 338/07 State Vs. Mohd. Salim Zafar etc 6/6
F.I.R. No: 338/07
U/s 323/341/427/34 IPC
P.S. Sarita Vihar
03.04.2013
Pr: Ld. APP for state.
All accused persons are present on bail today.
Final arguments heard.
Vide my separate judgment announced today in the open court, accused persons have been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Fresh bail bonds u/s 437A Cr.P.C. furnished, considered and accepted. File be consigned to Record Room.
(Gaurav Rao) MM (SE)/Delhi.
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