Delhi District Court
State vs . Mustkim Khan & Ors. on 14 March, 2022
IN THE COURT OF SH. ABHINAV PANDEY, MM-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. MUSTKIM KHAN & Ors.
FIR NO. 80/2019
PS: MOTI NAGAR
U/S: 392/34 IPC
JUDGMENT
Case no. : 4611/2019
Date of commission of offence : 31.07.2019
Date of institution of the case : 04.06.2019
Name and details of the complainant : Sh. Monu Singhal S/o
Late Sh. Prem Chand
Singhal, R/o: H. No.
323/268, Gali No. 9,
Mukund Pur, Part-II near
Burari Authority, Burari,
Delhi.
Name of accused and address : (I) Mustkim Khan S/o Sh.
Vakil Khan, R/o: H. No.
Jhuggi No.64, Rakhi
Market,Zakhira, Delhi.
(II) Alam Ali S/o Mr. Mohd.
Islam, R/o: H. No. J-
54,Furkaniya Masjid,
Shagzada Bagh, Sarai
Rohilla, Delhi.
(III) Azad @ Babloo S/o Mr.
Babu Khan, R/o: C-5/63,
Sultan Puri, Delhi.
(IV) Mr. Prahlad @ Sonu @
Vijay @ Baba S/o Sh.
Shyam Lal, R/o: C-3/319,
Sultan Puri, Delhi.
Offence complained of or proved : U/s: 392/34 IPC
Plea of the accused persons : Pleaded not guilty
FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 1
Final Order : Acquitted
Date on which reserved for judgment : 14.03.2022
Date of pronouncing of judgment : 14.03.2022.
1. BRIEF FACTUAL POSITION:
1.1 This is the prosecution of accused persons namely (i) Mustkim
Khan S/o Sh. Vakil Khan, R/o: H. No. Jhuggi No.64, Rakhi Market, Zakhira, Delhi, (ii) Alam Ali S/o Mr. Mohd. Islam, R/o: H. No. J- 54,Furkaniya Masjid, Shagzada Bagh, Sarai Rohilla, Delhi, (iii) Azad @ Babloo S/o Mr. Babu Khan, R/o: C-5/63, Sultan Puri, Delhi and (iv) Mr. Prahlad @ Sonu @ Vijay @ Baba S/o Sh. Shyam Lal, R/o: C-3/319, Sultan Puri, Delhi pursuant to charge sheet filed by PS Moti Nagar for commission of offences U/s 392/34 IPC, subsequent to the investigation carried out by them in FIR No.159/2019 PS: Moti Nagar 1.2 As per the prosecution, on 15.02.2019 at about 04:30 PM at Zakhira Flyover, Moti Nagar, Delhi, accused persons namely Mustakim Khan, Alam Ali alongwith other accused persons namely Azad @ Babloo and Prahlad @ Sonu (both absconding at the time of framing of charge) in furtherance of their common intention, robbed Rs.8,00,000/- and a scooty bearing no. DL-1SAE-2073 from the possession of complainant Sh. Monu and his friend Abdul. Accordingly, after the investigation, police filed the present charge sheet against the accused persons for commission of offences punishable u/s 392/34 IPC.
1.3 Complete set of charge sheet and other documents were supplied to the accused persons Mustkim Khan and Alam Ali. After hearing the arguments, charge for offence punishable under section 392/34 IPC was framed against the accused persons Mustakim Khan and Alam Ali to which FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 2 they pleaded not guilty and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution in support of the present case has examined one witness in total.
S. No. Name of Documents Dates of Dates of
Prosecution Exhibited in examination cross-
witnesses. Evidence. in chief. examination.
PW-1 Sh. Monu Singhal (I) Complaint 31.01.2020 31.01.2020
Ex. PW1/A
Since the material and sole eye witness of the prosecution did not support its case, this Court did not deem it expedient to record the testimonies of remaining witnesses, who were merely formal witnesses, as continuing with prosecution evidence in this case would have resulted in unnecessary wastage of judicial time and resources.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 Nothing incriminating has come on record against the accused persons and there are no circumstances appearing against them in prosecution evidence and therefore, examination of accused persons u/s 313 Cr.P.C. was dispensed with.
4. ARGUMENTS:
4.1 Ld. APP for the State has argued that on a combined reading of prosecution witnesses' testimony, offences U/s 392/34 IPC are proved beyond reasonable doubt, against the accused persons.
FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 3 4.2 On the other hand, Ld. counsel for accused persons have argued that the prosecution has failed to prove the guilt of accused persons beyond reasonable doubt due to tainted testimony of PWs, hence accused persons are entitled to be acquitted.
5. BRIEF STATEMENT OF THE REASONS FOR THE DECISION.
5.1 Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused persons have been heard. Evidences and documents on record perused carefully.
5.2 I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offences U/s 392/34 IPC
(a) Section 390 IPC states that, "In all robbery there is either theft or extortion.
When theft is robbery:- theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the things extorted".
Explanation - The offender is said to be present if he is sufficiently near to put the other person is fear of instant death, of instant hurt, or of instant wrongful restraint.
FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 4
(b) Section 392 IPC states that "whoever commits robbery shall be punished with rigorous imprisonment for a term may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunsent and sunrise, the imprisonment may be extended to fourteen years".
(c) Section 34 IPC states that "when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
5.3 PW-1 Sh. Monu Singhal is the complainant in the present case and he has stated in his examination-in-chief that the incident in question took place on 15.02.2009 at around 04.00-04.15 pm at Zakhira Flyover, Delhi, when he was going on his scooty towards his office situated at Anand Parbat. He has further stated that all the accused persons came from backside on a motorcycle and rammed the same in his scooty due to which he fell down on the road and they took away his scooty wherein an amount of Rs.8,00,000/- were kept by him. Thereafter, he made a PCR call and apprised the police about facts and circumstances in which the incident had taken place, and in this regard he lodged a complaint Ex. PW1/A with the police.
5.4 In the present case recovery, of stolen property has been conducted by the police from the accused persons Mustkim and Alam Ali, and the other two accused persons Prahlad and Azad had been arrested upon the disclosure statement of co-accused persons. The complainant did not know the accused persons prior to the incident, and accused persons have admittedly not been arrested upon the identification of the complainant. It is pertinent to note that the complainant has clearly stated in his examination-in-chief that he FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 5 could not see the features of the accused persons as they had fled away in a flash. Upon this, the prosecution proceeded to put leading question to the witness, whereupon, he has categorically stated that he never told the IO that he can identify the robbers if they are produced before him and has denied mentioning this fact in the statement Ex. PW1/A wherein it is so recorded from point A to A1. PW-1 has further stated that he identified the accused persons Mustkeem and Alam Ali in Tihar Jail vide proceedings Mark P1/1 and Mark P1/2 bearing his signature at point A. He has further deposed that photos of the accused persons had been shown to him by the IO before conducting TIP proceedings, only upon which he could identify the accused Mustkeem and Alam Ali in Tihar Jail. He has denied being won over by the accused outside the Court, and not deliberately or intentionally stating true facts before the Court. In his cross-examination by ld. defence counsel, PW-1 has categorically admitted that no incident of robbery was committed with him by accused persons Mustkeem and Alam Ali.
5.5 Accused Azad @ Bablu had already been released u/s 169 Cr.P.C. for lack of evidence vide order of this Court dated 26.06.2019, as neither the TIP of the accused succeeded nor was any recovery effected from him.
5.6 As far as accused Prahlad Singh @ Sonu is concerned, neither any recovery has been effected from him, nor TIP proceedings have been conducted for his identification by the complainant. Accused Prahlad has already pleaded guilty for the offence u/s 174-A IPC and he has been sentenced to the period of imprisonment already undergone by him in judicial custody vide order of this Court dated 17.10.2019. No other offences have been FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 6 alleged against him.
5.7 In the light of testimony of the aforesaid witnesses, who are the sole eye witness/ victims/ material witnesses and in the absence of the testimony of any other eye witness during investigation, the fact that accused persons committed robbery with complainant Sh. Monu and his friend Abdul on the alleged date, time and place, can never be proved by the prosecution, even if the remaining witnesses who are merely formal witnesses testify.
5.8 Time and again, Hon'ble Supreme Court and Hon'ble Delhi High Court, have emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the CrPC. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of Hon'ble Supreme Court in Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 & Anr. & in Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar (1980) 1 SCC 81, the Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be 'reasonable, fair and just'; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
The exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively considered afresh by the Constitution Bench of Hon'ble FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 7 Supreme Court in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr. (1992 1 SCC 225). Referring to a number of decisions of Hon'ble Supreme Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, this Court does not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are:-
(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;
(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial;
(iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is -- who is responsible for the delay?;
(iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-- what is called, the systemic delays;
(v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case;
(vi) ultimately, the court has to balance and weigh several relevant factors--'balancing test' or 'balancing process'--and determine in each case whether the right to speedy trial has been denied;
(vii) Ordinarily speaking, where the court comes to the conclusion FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 8 that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;
(viii) it is neither advisable nor feasible to prescribe any outer time-
limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint; (ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of Hon'ble Supreme Court Court in "Common Cause" A Registered Society Vs. Union of India (UOI) & Ors. (1996) 4 SCC 33, "Common Cause", A Registered Society Vs. Union of India & Ors. (1996) 6 SCC 775, Raj Deo Sharma Vs. State of Bihar (1998) 7 SCC 507 and Raj Deo Sharma II Vs. State of Bihar (1999) 7 SCC 604 gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused.
The confusion on the issue was set at rest by a seven-Judge Bench of Hon'ble Supreme Court in P. Ramachandra Rao Vs. State of Karnataka16. (2002) 4 SCC 578. Speaking for the majority, RC Lahoti J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 9 case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait- jacket formula. Their applicability would depend on the fact-situation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial.
5.9 The Hon'ble Supreme Court has further stated in Pankaj Kumar Vs. State of Mahrashtra (2008) 16 SCC 117 and Jayendra Vishnu Thakur Vs. State of Maharashtra (2009) 7 SCC 107 that a person charged with an offence and submitted before the process of law, has also a right of speedy trial, which has been considered as a fundamental right under Article 21 of the Constitution of India. It was held by Hon'ble Supreme Court of India in case titled Satish Mehra vs. Delhi Administration & Anrs. reported as 1996 JCC 507, that "in case where there is no prospect of the case ending in conviction, the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on the future date".
5.10 Accordingly, in view of the testimony of all the material witnesses, and in the light of the aforesaid discussion and cited judgments, and the fact that the examination of remaining witnesses who are formal witnesses, will not be of any help in altering the conclusion arrived at, this Court hereby acquitted the accused persons namely (i) Mustkim Khan S/o Sh. Vakil Khan, R/o: H. No. Jhuggi No.64, Rakhi Market, Zakhira, Delhi, (ii) FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 10 Alam Ali S/o Mr. Mohd. Islam, R/o: H. No. J-54,Furkaniya Masjid, Shagzada Bagh, Sarai Rohilla, Delhi, (iii) Azad @ Babloo S/o Mr. Babu Khan, R/o: C-5/63, Sultan Puri, Delhi and (iv) Mr. Prahlad @ Sonu @ Vijay @ Baba S/o Sh. Shyam Lal, R/o: C-3/319, Sultan Puri, Delhi of all the charges levelled against them in the present case.
5.11 File be consigned to Record Room after due compliance.
Digitally signed by ABHINAV ABHINAV PANDEY PANDEY Date: 2022.03.15 14:27:16 +0530 ANNOUNCED IN THE OPEN (ABHINAV PANDEY) COURT ON 14.03.2022 MM-04 (WEST)/DELHI Digitally signed Containing 11 pages all signed by the presiding officer. ABHINAV by ABHINAV PANDEY PANDEY Date: 2022.03.15 14:27:23 +0530 (ABHINAV PANDEY) MM-04 (WEST)/DELHI FIR No. 80/2019, PS Moti Nagar State Vs. Mustkim & Ors. 11