Delhi District Court
State vs . on 11 July, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 8285/2017
Unique Case ID No. -: DLSW020310442017
FIR No. -: 140/2017
Police Station -: Chhawala
Section(s) -: 440/34 IPC and 174A
IPC
In the matter of -
STATE
VS.
1) AMAN @ AZAD @ CHHOTU
S/o Sh. Balbir Singh,
R/o Bhagat Singh Colony, Karala, Delhi.
2) DEVENDER @ SONU
S/o Sh. Surender Singh,
R/o VPO Kharkhari Nahar,
Najafgarh, New Delhi.
.... Accused
1. Name of Complainant : Lt. Punit
1) Aman @ Azad @ Chhotu
2. Name of Accused :
2) Devender @ Sonu
Offence complained of or
3. : 440/34 IPC and 174A IPC
proved
4. Plea of Accused : Not Guilty
Date of commission of
5. : 23.04.2017
offence
6. Date of Filing of case : 03.10.2017
7. Date of Reserving Order : 11.07.2022
8. Date of Pronouncement : 11.07.2022
9. Final Order : Acquitted
Digitally
signed by DEV
CHAUDHARY
DEV
Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 1 of 10 CHAUDHARY Date:
2022.07.11
17:46:59
+0530
Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Amarveer Singh Bhullar, Ld. Counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that the complainant had a dispute with his nephew Devender @ Sonu over a plot. On 23.04.2017 at about 08.15 PM, complainant was going to his fields. Suddenly, accused Devender @ Sonu alongwith two of his friends came on motorcycle and followed the complainant to the field. Accused Devender @ Sonu started abusing the complainant by stating that he will not let anyone sell the plot. Thereafter, he took out a revolver and fired in the air. Thereafter, he alongwith his friends fled from the spot. As such, it is alleged that the accused committed the offences punishable under Section 440/34 of the Indian Penal Code, 1860 (hereinafter, "IPC").
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused were summoned to face trial. Initially, the chargesheet was filed only against accused Aman @ Azad and thereafter, a supplementary chargesheet was filed against accused Devender, who was absconding during the investigation. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 2 of 10 2022.07.11 17:47:05 +0530
3. On their appearance, a copy of charge-sheet was supplied to them in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the present accused persons, charge under Sections 440/34 IPC was framed against both the accused persons. The accused pleaded not guilty and claimed trial. Additionally, charge under Section 174A IPC was framed agaisnt accused Devender @ Sonu qua his abscondence. He pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : HC Rakesh Kumar (accompanied IO) PW-2 : Harpal Singh (brother of complainant) PW-3 : Ct. Ashok (accompanied IO) PW-4 : SI Birender Singh (IO).
DOCUMENTARY EVIDENCE
Mark X : Statement of Harpal Singh
Ex. PW3/A : Arrest memo of accused Devender.
Disclosure statement of accused
Ex. PW3/B :
Devender.
Ex. PW3/C : Pointing out memo of accused Devender.
Ex. PW4/A : DD no. 53A dated 07.05.2022
Ex. PW4/B : Statement of complainant Punit.
Ex. PW4/C : Tehrir
Ex. PW4/D : Site plan
Ex. PW4/E : Arrest memo of accused Aman @ Azad
Disclosure statement of accused Aman @ Ex. PW4/F :
Azad Digitally
signed by
DEV
DEV CHAUDHARY
Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 3 of 10 CHAUDHARY Date:
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Pointing out memo of accused Aman @
Ex. PW4/G :
Azad.
5. PW2 Sh. Harpal Singh stated that he is an electrician by profession. He does not know anything about the present case as he was not present at his house at the time of incident. He stated that he does not want to say anything else.
5.1. In cross examination by Ld. APP for the State, PW2 Harpal Singh denied his statement given to the police in toto. He denied all the suggestions by the Ld. APP for the State and denied that he has been won over by the accused. The defence did not corss examine the said witness.
6. PW4 SI Birender Singh is the IO in the case, who stated that on 23.04.2017, after receiving intimation vide DD no.
53A, he alongwith Ct. Rakesh went to the spot i.e. Kharkahri Nahar Village, where the complainant Punit met them. He had recorded his statement, prepared a tehrir and got the FIR registered. He deposed about the investigation done by him and stated that the accused as well as the used cartridges could not be found despite efforts. On 03.08.2017, accused Aman @ Azad was arrested in case FIR no. 214/17, who disclosed his involvement in the present case and he was formally arrested by him in the present case. He also tried to search for the coaccused and thereafter, accused Devender was declared as an absconder in the present case. 6.1. In his cross-examination, PW4 SI Birender Singh admitted that the alleged fire arm used in the present case was not Digitally recovered. He had not obtained prior permission from the court for DEV signed by DEV CHAUDHARY CHAUDHARY Date:
arresting the accused Devender. He admitted that when he recorded 2022.07.11 17:47:16 +0530 Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 4 of 10 the disclosure statement of accused Devender, he was already on police remand in case FIR no. 214/2017 PS Chhawla. He denied the suggestion that both the accused persons have no connection with the present case and both the accused persons are falsely implicated in the present case. He admitted that the accused were already arrested in case FIR no. 214/2017 and was on PC remand in the said case. He admitted that he had not obtained any prior court permission to arrest you in the present case.
7. Since the prosecution had cited only one independent/public witness in the present matter, who is the brother of the complainant and had turned hostile, no other witness was examined in view of the fact that the complainant and sole eyewitness of the incident had expired. Rest of the six prosecution witnesses were all police officials and no purpose would have been served by examining the remaining witnesses. As such, prosecution evidence was closed vide separate order passed today, keeping in view the submissions of the Ld. APP.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
8. Thereafter, before the start of defence evidence, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statements of the accused were recorded without oath under Section 281 read with Section 313 CrPC. In reply, the accused stated that they have been falsely implicated in the present case. Thereafter, they stated that they did not wish to lead evidence in their defence.
Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2022.07.11 17:47:21 +0530 Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 5 of 10 ARGUMENTS -
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 the evidence of hostile witness can be read on material points and it can be used to prove the offences charged against the accused. As such, it is prayed that the accused be punished for the said offences.
11. Per contra, ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt.
Ld. counsel has argued that the public witness has turned hostile and despite reading his evidence as a whole, nothing has come on record against the accused. As such, it is prayed that the accused be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE -
12. The accused have been charged for the offences under Section 440/34 of the IPC. For offence under Section 440 IPC, it has to be proved that the accused committed mischief in terms of Section 425 IPC and after making preparation for causing death / hurt/ wrongful restraint or fear of such death/ hurt and wrongful restraint.
13. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be Digitally signed by DEV DEV CHAUDHARY weighed keeping in view the above legal standards. CHAUDHARY Date:
2022.07.11 17:47:26 Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 6 of 10 +0530 APPRECIATION OF EVIDENCE -
14. The star witness of the case was the complainant Punit, who has expired before trial. The IO has tendered into evidence the initial police complaint of the deceased complainant. However, in absence of any opportunity for the accused to cross examine the said witness, it would be unsafe to convict the accused on such statement. Further, in the statement Ex. PW4/B, it is stated that the accused Devender took out a revolver and fired in the air. There is no allegation of causing any wrongful loss or damage to any property. The complainant was inside his fields at the time when the incident took place. The essential requirement for the offence of mischief, is damage / distruction or dimnishing in value / utility of any property. Even if the statement is taken on its face value, there is no asertion that any property was damaged on account of such firing in the air. Therefore, the offence under Section 440 IPC is not made out. The other public witness PW-2, who is stated to be the brother of the deceased complainant, turned completely hostile when he entered into the witness box. It is pertinent to note that under Indian law, the evidence of hostile witnesses 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 witnesses, it was observed by the Apex Court in the case of Rohtash Kumar vs. State of Haryana (2013) 14 SCC 434, as under -
"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution Digitally signed by DEV chose to treat him as hostile and cross examined him. The evidence DEV CHAUDHARY CHAUDHARY Date:
of such witnesses cannot be treated as effaced, or washed off the 2022.07.11 17:47:31 +0530 record altogether. The same can be accepted to the extent that their Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 7 of 10 version is found to be dependable, upon a careful scrutiny thereof."
15. However, in the present case, there is no testimony of the hostile witness to be relied upon in part, as he has only stated that he does not know anything about the present case. The IO has admitted that no used cartridges were found at the spot and there is no other evidence on record to prove the commission of the offence by the accused persons. Even if all the prosecution witnesses were to be examined, the offence could not have been proved. There is also no recovery of the bike which were used by the assailants. The site plan Ex. PW4/D does not contain the signatures of the complainant. The only evidence on record is the disclosure statement of the accused Ex. PW4/F and Ex. PW3/B. However, the IO has admitted in his cross examination the even the disclosure was recorded when the accused were on police remand in some other matter. Even otherwise, the evidentary value of such disclosure statements is stricktly curtailed in terms of Section 25 to 27 of the Indian Evidence Act.
16. Apart from the main offences, accused Devender @ Sonu has been charged with the offence under Section 174A IPC. The offence under Section 174A IPC pertains to non-appearance in pursuance of a proclamation issued under Section 82 of the CrPC. Failure to appear constitutes the offence. Under Section 82 of the CrPC, whenever the Court comes to a conclusion that a person is absconded or concealed himself, despite issuance of warrants, a written proclamation is issued to require him to appear before the Court. In order to ensure that publication of the proclamation, Digitally signed by certain requirements, stipulated in the provision, are to be met. The DEV DEV CHAUDHARY CHAUDHARY Date:
2022.07.11 17:47:36 Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 8 of 10 +0530 proclamation is to be publicly read in some conspicuous place of the town, village, it has to be affixed at the house or homestead of the person and a copy of the same is to be affixed in the Court house. A clear period of 30 days from the date of publication is to be given to the accused to appear before the court.
17. In order to prove the offence under the said provision, the prosecution has examined two witnesses. However, in the opinion of this Court, the evidence led by the prosecution is not sufficient to convict the accused. The order vide which the accused was declared absconder and the process issued against him under Section 82 CrPC has not been exhibited during the trial. Even if it is assumed that the order being part of judicial record can be considered, other vital evidences are missing. Proclamation is the basis for the offence under Section 174A IPC. The process server, although examined at the time of declaring the accused absconder, has not been examined during the trial. As such, the accused has lost a valuable right to test the testimony of the witness on the anvil of cross examination. The only evidence is that of the witnesse PW-3 who arrested the accused later on. Thus, the offence under Section 174A IPC is also not proved beyond reasonable doubt against accused Devender @ Sonu.
18. As such, none of the essential ingredients of the offences stands fulfilled in the present case.
CONCLUSION -
19. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the Digitally signed by DEV offences under Section 440/34 IPC and 174A IPC beyond DEV CHAUDHARY CHAUDHARY Date:
2022.07.11 Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 9 of 10 17:47:41 +0530 reasonable doubt. The star witness of the prosecution i.e. the complainant has passed away before the trial could start and the only other public witness has turned completely hostile. There is no evidence to link the accused persons with the crime charged against them. Further, the ingredients of the offences are not fulfilled from the material on record.
20. Resultantly, the accused Aman @ Azad @ Chotu and Devender @ Sonu @ Praveen are hereby found not guilty. They are hereby ACQUITTED of the offence under Section 440/34 IPC. Additionally, accused Devender @ Sonu @ Praveen is also acquitted of the offence under Section 174A IPC.
Pronounced in open court on 11.07.2022 in presence of the accused.
This judgement contains 10 pages and each page has been signed by the undersigned. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2022.07.11 17:47:49 +0530 (DEV CHAUDHARY) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi/ 11.07.2022 Cr. Case No. 8285/2017 State vs. Aman @ Azad @ Chhotu & Anr. Page 10 of 10