Delhi District Court
Cr. Case/9310/2018 on 11 April, 2022
IN THE COURT OF MS. VIDHI GUPTA ANAND, METROPOLITAN
MAGISTRATE-08, CENTRAL, TIS HAZARI COURTS, DELHI
JUDGMENT U/S 355 Cr.PC
a Serial No. of the case : FIR No. 83/18, PS Kamla Market
[CIS No.9310/18]
b Date of the commission of the : 12.03.2018
offence
c Name of the Complainant : Sh. Mohd. Waseem
d Name of Accused person and his : Sh. Zahir
parentage and residence S/o Saeed Ahmed
R/o H.no.T-518,
Gali no.13, Gautampuri,
Delhi.
e Offence complained of : 454/380/511 IPC
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 11.04.2022
i Order pronounced on : 11.04.2022
BRIEF REASONS FOR THE DECISION
Factual matrix and trial proceedings
1.Briefly stated the facts of the Prosecution case are that on 12.03.2018 at about 05:20 PM, at house number 4195, First Floor, Lane Santra, Kamla Market, Delhi, Accused Zahir broke the lock of the house with an iron blade and attempted to commit house-tresspass with the intention to commit theft. Allegedly, he was caught by the neighbours and police was called at the spot. Hence, the present complaint.
FIR No. 83/18, PS Kamla Market titled as State v. Zahir 1/ 8
2. Chargesheet in this matter was filed in the court on 06.07.2018 for the offence u/s 454 IPC (Lurking house-trespass or house breaking in order to commit an offence punishable with imprisonment), 380 IPC (Theft in a dwelling house, etc.) and 511 IPC (Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment), against the Accused and on the same day, Cognizance was taken in this matter and the Accused was summoned in the court to face the trial. After his appearance in the Court, copies of documents were supplied to them as per section 207 Cr. P.C.
3. Thereafter, vide order dated 11.03.2019, charges were duly served upon the Accused u/s 454/380/511 IPC which were read over and explained to Accused in vernacular. Accused pleaded not guilty and claimed trial. Accordingly, matter was taken up for recording prosecution evidence.
4. In order to bring home the guilt of the Accused, Prosecution examined three witnesses as follows:-
PW1 Complainant Wasim
PW2 Mohd. Zahid
PW3 IO/ASI Sarvesh Kumar
The aforesaid witnesses brought the following documents on record to prove the prosecution case:-
Ex.PW1/A Complaint given by the Complainant Ex.PW1/B Seizure memo of lock and Kunda of the gate Ex.PW1/C Seizure memo of Iron Kulhadi (blade) Ex.PW1/D Arrest memo of the Accused Ex.PW1/E Personal Search memo of the Accused FIR No. 83/18, PS Kamla Market titled as State v. Zahir 2/ 8 Ex.PW3/A Rukka prepared by the IO Ex.PW3/B Site Plan Ex.PW3/C Disclosure Statement of the Accused Ex.P1 Broken lock Ex.P2 Iron Blade It is pertinent to note that in total 7 witnesses have been cited by the Prosecution including two public witnesses i.e. the complainant/injured Mohd. Waseem and eye-witness Mohd. Zahid. The remaining five witnesses are all police witnesses including one MHC(M) and four other police witnesses i.e. the Duty officer who registered the FIR, the DD writer who recorded DD no.62B dt 12.03.2018, the arrest witness Ct. Mahesh and IO of the case.
Further, it may be noted that the the DD writer who recorded DD no.62B dt 12.03.2018 (Ex.P1), duty officer who registered the FIR (Ex.P2), and the arrest witness Ct. Mahesh were dropped from list of witnesses on account of statement of the Accused u/s 294 Cr.P.C.
Accordingly, after recording of testimonies of Prosecution witnesses as aforesaid, Prosecution evidence was closed.
5. Statement of the Accused u/s 313 Cr.P.C. was recorded on 11.04.2022 whereby entire incriminating evidence brought against him on court record was put to him. Accused denied all the allegations and claimed that he is innocent.
Ld. Counsel for the Accused preferred not to lead any evidence in his defence and therefore, the matter was taken up for hearing of final arguments, which were duly addressed by Ld. Counsel for the Accused as well as Ld. APP for the State.
FIR No. 83/18, PS Kamla Market titled as State v. Zahir 3/ 8 Summary of arguments
6. Ld. APP for the State has vehemently argued that even if the eye- witnesses could not support the case of the prosecution, there is no dispute that the FIR had been registered in this matter upon a written statement given by the Complainant and therefore, the Accused deserves to be held guilty for the charges leveled against him. Ld. APP for the State also argued that the complainant Mohd. Waseem and Mohd. Zahid have turned hostile in this case as they have been won over by the Accused outside the court and there are plethora of judgments which provide that even in case of the hostile witnesses, conviction can be sustained if other evidence brought by the prosecution points towards the guilt of the accused. In this background, Ld. APP for the State submits that the Accused be convicted and maximum punishment be awarded to them.
7. On the other hand, Ld. Defence counsel has argued that merely on the basis of registration of a case, the Accused cannot be convicted for the offences in question and right to fair trial demands that the Prosecution should prove the allegations leveled upon the Accused beyond all reasonable doubts. Ld. counsel for the Accused also argued that the Prosecution has miserably failed to prove its case on account of lack of support from the vital prosecution witnesses despite availing sufficient opportunity. Thus, Ld. Counsel for the Accused has argued for his acquittal from the case.
FIR No. 83/18, PS Kamla Market titled as State v. Zahir 4/ 8
8. Accordingly, this court has heard the rival submissions advanced by the Ld. APP for State and the Ld. Counsel for the Accused and has also perused the entire record carefully.
Appreciation of evidence
9. 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, does not lead to the guilt of the Accused. 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.
10. Coming to the facts of the case, the Prosecution has cited 7 witnesses in the list of witnesses annexed with the charge-sheet. Out of these 7 witnesses, two are prime public witness and rest of the witnesses cited by the Prosecution are formal witnesses, who might have played some part in the investigation but were not first hand witnesses to the alleged incident. Certainly, the guilt of the Accused 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.
FIR No. 83/18, PS Kamla Market titled as State v. Zahir 5/ 8
11. It is vital to mention here that the two public witnesses cited by the prosecution i.e. the complainant Mohd. Waseem and eye-witness Mohd. Zahid were duly examined in the court.
However, after recording of the testimony of both the said public witnesses, it was observed that they retracted from their previous statements given to the police. To the utter dismay of prosecution the prime public witnesses to this case i.e. the complainant and PW Mohd. Zahid did not support the case put forward by prosecution. The only other witness examined by the prosecution i.e. IO ASI Sarvesh Kumar also could not lend any support to the prosecution case as he was a police witness who conducted arrest and personal search, seized case property, prepared tehrir etc but did not see the incident himself.
12. Moving further, the most important testimony to this case is that of the complainant as it is at his instance that the criminal proceedings were initiated against the Accused in this matter and criminal law was brought into motion. Damaging the prosecution case beyond repairs, complainant did not identify the Accused in the court. Even though he admitted giving the complaint Ex.PW1/A to the police but he refused to identify the Accused. Moreover, it is important to note that he specifically stated that when he checked inside his house, he found that nothing was stolen. Also, he himself did not see Accused breaking the lock and hence, he cannot be said to be an eye-witness to the case.
13. Similarly, even PW2 Mohd. Zahid could not lend any support to the drowning case of prosecution and deposed on the lines of the complainant. He deposed that he heard a noise from the first floor of the building and saw that FIR No. 83/18, PS Kamla Market titled as State v. Zahir 6/ 8 the door was broken by someone. Even he could not identify the Accused in the court.
14. Further, even the Investigation officer examined in the court could could not depose anything substantial with respect to the facts of the case or the incident in question. He turned out to be only a formal witness to the case and gave his deposition with respect to registration of FIR, arrest and personal search of the accused etc. IO is not a first hand witness of the crime scene. 15 As is manifest from the testimony of the prosecution witnesses as discussed above, it is apparent that they completely failed to provide any support to the case of the prosecution and not even an iota of evidence was brought against the Accused from their depositions. More than the testimony of PW1 it is the hostility in the testimony of the PW2 Mohd. Zahid which strikes at the root of the case.
16 Thus, from the aforesaid testimonies itself, the case of the prosecution was rendered full of doubts in regard to the happening the incident as such. In view of the above depositions, it is apparent that despite examining two relevant public witnesses no evidence could be brought by the prosecution against the Accused.
17 The star public witness examined by the Prosecution i.e. the complainant could not even bring the slightest of confirmation of guilt of the Accused as he failed to identify the Accused and was not even present at the spot at the time of the incident. Further, even the second public witness testified on the lines of Complainant. Had the complainant really been wronged by the Accused, he would have certainly come forward and would FIR No. 83/18, PS Kamla Market titled as State v. Zahir 7/ 8 have deposed with respect to the mischief suffered by him but he refrained from doing the same and hence, damaged the Prosecution case beyond repairs.
18. It is already settled in law that the burden upon the prosecution is to bring home the guilt of the accused on the basis of evidence collected during investigation and when the star witnesses to the case themselves speak against the case of the prosecution, there remains no scope of doubt with respect to the lack of sufficient proof by the prosecution to prove the guilt of the accused. Moreover, as per the tenets of criminal jurisprudence, benefit of doubt in the case of the prosecution goes to the accused.
Conclusion
19. Therefore, keeping in view the overall facts and circumstances of this case, this court is of the considered view that the Prosecution has failed to discharge the burden imposed upon it by law of proving the guilt of the Accused beyond reasonable doubts. In these circumstances, this court has no hesitation in holding that Accused Zahir is not guilty for the offence u/s 454/380/511 IPC. Accordingly, the Accused namely Zahir stands acquitted in the present case. Digitally signed VIDHI by VIDHI GUPTA ANAND GUPTA Date:
ANNOUNCED IN THE OPEN ANAND 2022.04.11
17:35:00 +0530
COURT ON 11.04.2022 (VIDHI GUPTA ANAND)
Metropolitan Magistrate-08 (Central)
Tis Hazari Courts, Delhi.
[This judgment contains 8 signed pages]
[This judgment has been directly typed to dictation.] FIR No. 83/18, PS Kamla Market titled as State v. Zahir 8/ 8