Delhi District Court
State vs Bishnu Kumar @ Vishnu Kumar @ Kalla on 22 April, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SAKET COURTS,
DELHI
Presided over by- Ms. Twinkle Chawla, DJS
Cr. Case No. -: 1840/2024
CNR No. -: DLSE020076462024
FIR No. -: 201/2004
Police Station -: Sarita Vihar
Section(s) -: 323/384/342/365/34 IPC
In the matter of -
STATE
VS.
BISHNU @ VISHNU @ KALLA
S/o Misrilal,
R/o B-2, 2nd Floor, Sunlight Apartment,
Gujjar Chowk, Tajpur Village, Badarpur, Delhi.
...Accused
1. Name of Complainant :- Sanjay Yadav
2. Name of Accused Person :- (1) Bishnu @
Vishnu @ Kalla
(present accused)
(2) Shiv Shankar @
Challiya (since P.O.)
(3) Anil Kumar
(acquitted vide order
dated 24.01.2012)
(4) Jatan
(acquitted vide order
dated 24.01.2012)
(5) Omveer
(acquitted vide order
dated 24.01.2012)
3. Offence complained of or :- 323/384/342/365/34
proved IPC
FIR No. 1840/2024 State vs. Bishnu @ Vishnu @ Kalla
PS Sarita Vihar Page 1 of 8
4. Plea of Accused Person :- NOT GUILTY.
5. Date of Commission of :- 05.04.2004
offence
6. Date of Filing of case :- 13.09.2004
7. Date of Reserving Order :- 05.04.2024
8. Date of Pronouncement :- 22.04.2024
9. Final Order :- Bishnu @ Vishnu
@ Kalla -
ACQUITTAL
JUDGMENT
1. The case of prosecution in brief is that on 05.04.2004 at around 02:00 AM at Red Light, Mathura Road, Madanpur Khadar, New Delhi within the jurisdiction of PS Sarita Vihar, New Delhi, the present Accused Bishnu @ Vishnu @ Kalla alongwith co-accused persons namely namely Anil Kumar, Omveer, Shiv Shankar and Jatan, in furtherance of their common intention, wrongfully restrained the complainant's Santro car bearing registration no.DL-4CP-8441, forcefully abducted the complainant/Sanjay Yadav and one Waseem Khan, and hit them and also extorted an amount of Rs.10,000/- and one mobile phone from their possession, and thereby committed the offences u/s 323/342/365/384/34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which the present FIR was lodged in PS Sarita Vihar.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). Relevant record was collected. Final report under FIR No. 1840/2024 State vs. Bishnu @ Vishnu @ Kalla PS Sarita Vihar Page 2 of 8 Section 173 CrPC, was prepared against the above-mentioned accused persons and challan was presented in the Court on 13.09.2004. After taking cognizance of the offence, the Accused persons were summoned to face trial.
3. On their appearance, copy of chargesheet was supplied to them in terms of section 207 of CrPC. On finding a prima facie case against the Accused persons, charge under Section 323/384/342/365/34 IPC was framed against the Accused persons on 10.07.2006 for which the Accused persons pleaded not guilty and claimed trial.
4. Thereafter, the present accused Bishnu @ Vishnu @ Kalla and co-accused Shiv Shankar stopped appearing in the Court, and were declared P.O. by Ld. Predecessor of this Court vide order dated 10.12.2010, and the trial was proceeded with against remaining co-accused persons i.e. Anil Kumar, Omveer and Jatan, and the said accused persons were acquitted by Ld. Predecessor of this Court vide order dated 24.01.2012, on the ground that the complainant and injured remained untraceable despite several attempts, even through DCP concerned. Thereafter, on 21.02.2024, the present accused was arrested and produced after fresh arrest in kalandara bearing DD no.15, PS Crime Branch, SR, Malviya Nagar dated 20.02.2024. Thereafter, a supplementary chargesheet was filed on 01.03.2024 for commission of offence under Section 174A IPC, against the present accused. Charge under Section 174A IPC was framed upon the present accused, to which he pleaded guilty and did not claim trial. He was convicted for the offence under Section 174A FIR No. 1840/2024 State vs. Bishnu @ Vishnu @ Kalla PS Sarita Vihar Page 3 of 8 IPC and sentenced. Thereafter, prosecution evidence for offences under Section 323/384/342/365/34 IPC was commenced.
PROSECUTION EVIDENCE
5. During the trial for the offence u/s 323/384/342/365/34 IPC, prosecution was to examine the complainant Sanjay Yadav and injured Waseem Khan as the prime witnesses of the offence. However, the said witnesses remained unserved even through DCP concerned and accordingly, they were dropped from the list of witnesses vide order dated 05.04.2024. Since several opportunities were given to the prosecution to examine the said witnesses and the said witnesses did not appear, prosecution evidence was closed by way of order dated 05.04.2024.
6. Rest of the prosecution witnesses were only official witnesses, such as the arrest witness and the IO, whose testimony even if taken together, would not have been sufficient to prove the allegations against the Accused. Accordingly, further recording of prosecution evidence was stopped to prevent unnecessary delay and wastage of state expenses. Hence, vide order dated 05.04.2024, recording of further prosecution evidence was stopped, as in the present case, the same would have resulted in to wastage of judicial time, money, resources and will also cause unnecessary oppression to the Accused. In this regard reference may be made to a Division Bench Judgement of the Hon'ble High Court of Delhi passed in the case of Govind & Ors. v. The State (Govt. of NCT of Delhi) 104 (2003) DLT 510 wherein it was held that: -
FIR No. 1840/2024 State vs. Bishnu @ Vishnu @ Kalla PS Sarita Vihar Page 4 of 8 "...In cases where the ultimate chance of conviction is very bleak for there is no prospect of the case and again 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 of a future date."
7. Right to speedy trial is constitutionally guaranteed fundamental right of the Accused person. The present case pertains to an FIR of the year 2004 and continuing the trial any further, when it is clear that prosecution can never hope to prove its case against the Accused would tantamount to violation of right to speedy trial of the Accused. It has been held in P. Ramchandra Rao v. State of Karnataka AIR 2022 SC 1856 that the court should exercise its power available under Criminal Procedure Code to give effect to the right of speedy trial to the Accused. Similar observations were made in Pankaj Kumar v. State of Maharashtra AIR 2008 SC 3057. Furthermore, in Satish Mehra v. Delhi Administration & Anr. 1996 JCC 507 Hon'ble Supreme Court has held that valuable time of the court should not be wasted merely for formal completion of procedure when there is no chance of the trial culminating in conviction.
STATEMENT OF ACCUSED
8. Since no incriminating evidence came on record, the examination of the present Accused Bishnu @ Vishnu @ Kalla u/s 313 CrPC was dispensed with. The matter was listed for final arguments.
ARGUMENTS & ANALYSIS FIR No. 1840/2024 State vs. Bishnu @ Vishnu @ Kalla PS Sarita Vihar Page 5 of 8
9. I have heard the Ld. APP for the state and Ld. counsel for the Accused at length. I have also given my thoughtful consideration to the material appearing on record.
10. It is argued by the Ld. APP for the State that there is sufficient material on record to convict the Accused for the said offences.
11. Per contra, the Ld. Counsel for the Accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that main prosecution witnesses have not appeared for their examination. Hence, nothing has come on record against the Accused. As such, it is prayed that the Accused be acquitted for the said offence.
12. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the Accused has to be rebutted by the prosecution by reducing cogent evidence that points towards the guilt of the Accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
13. A key element of the offence u/s 323/342/365/384/34 IPC is the identification of the Accused by the Complainant and the victim. In the present case, the complainant and the injured did not appear for their examination and remained untraceable, even upon service through DCP concerned. Accordingly, since their examination was not conducted by the prosecution, despite opportunity, the said witnesses were dropped from the list of prosecution witnesses. It is also observed that the said witnesses have remained untraceable since the year 2004, as in the judgment passed FIR No. 1840/2024 State vs. Bishnu @ Vishnu @ Kalla PS Sarita Vihar Page 6 of 8 against co-accused persons Anil Kumar, Omveer and Jatan by the Ld. Predecessor of this Court on 24.01.2012, as well, it is noted that the complainant and the injured could not be traced. There is no CCTV footage covering the incident. There is no other public witness, who had witnessed the offence. Further, as per the chargesheet, there is no recovery of the extorted mobile phone/ amount of Rs.10,000/- from the present accused. There is no CDR on record.
14. As such, since, the main witnesses of the prosecution, namely the complainant and injured, who were the sole eye-witnesses to the incident, are not traceable; even if all the other prosecution witness cited in the list of witnesses were to be examined, the case of the prosecution could not be proved.
15. Furthermore, it has been held by the Hon'ble Supreme Court in Dr. S.L. Goswami vs. State of Madhya Pradesh 197 SCC (Crl.) 258 that the Accused is entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution.
16. To recapitulate the above discussion, to bring home the guilt of Accused person, the prosecution was required to prove the offences under Section 323/342/365/384/34 IPC beyond reasonable doubt. The star witnesses of the prosecution i.e., the complainant and the injured have remained untraceable. There is no evidence to link the Accused with the crime charged against him. His abduction of the Complainant/ extortion of money/mobile phone from the Complainant and the injured is not proved during the trial. Further, the ingredients of the offence are not fulfilled from the material on record. In the present case, as FIR No. 1840/2024 State vs. Bishnu @ Vishnu @ Kalla PS Sarita Vihar Page 7 of 8 already noted above, the prosecution could not discharge the onus of proving the ingredients of offences in question and thus, the Accused is entitled to benefit of doubt.
17. Resultantly, the Accused namely, Bishnu @ Vishnu @ Kalla S/o Misrilal is hereby found not guilty. He is hereby ACQUITTED of the offences under Section 323/342/365/384/34 IPC. It is clarified that the present judgment is being passed only against accused Bishnu @ Vishnu @ Kalla S/o Misrilal, and accused Shiv Shankar @ Challiya is still P.O. and proceedings against him are pending. Accordingly, Ahlmad is directed to give a red-note on the cover of the file that the same is not to be destroyed and the file be revived upon apprehension of accused Shiv Shankar @ Challiya.
18. File be consigned to record room after due compliance.
Announced in open court on 22.04.2024 in the presence of the Accused.
The judgment contains 8 pages and each page have been signed by the undersigned.
(TWINKLE CHAWLA) MM-05, South-East District, Saket Courts, New Delhi 22.04.2024 FIR No. 1840/2024 State vs. Bishnu @ Vishnu @ Kalla PS Sarita Vihar Page 8 of 8