Delhi District Court
State vs Sanjeev @ Sonu on 21 March, 2012
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Sanjeev @ Sonu
FIR No. 174/09
PS: Ashok Vihar
U/s. 323/342/452 IPC & 27/54/59 Arms Act
JUDGMENT
A) Unique ID No. of the case : 02404 R0 147272009
B) The date of commission : 31.03.2009
of offence.
C) Name of the complainant : Nanak Chand
S/o. Sh. Chander
D) Name of the accused : Sanjeev @ Sonu
S/o. Sh. Gopi Lal
E) Offence complained of : U/s. 323/342/452 IPC &
27/54/59 Arms Act
F) The plea of accused : Pleaded not guilty.
G) Final order : Acquitted
H) The date of such order : 21/03/2012
Date of Institution : 02/06/2009
Judgment reserved on : Not reserved
Judgment announced on : 21/03/2012
State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 1/21
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 31/03/2009 at about 07:00 am at H. No. D - 557, Wazirpur, J.J. Colony, Delhi within the jurisdiction of Police Station Ashok Vihar, accused entered into the house of the complainant Nanak Chand under influence of liquor and placed revolver on the temple of the complainant and threatened him. It is also case of prosecution that the accused gave beatings to the complainant and wrongfully confined him in his house along with his son in law. The accused after giving beatings and abusing the duo left the spot after locking the house from outside which was later opened by one Vinod. The accused was arrested by police officials of PS Jahangirpur in case FIR No. 149/09, U/s. 365/302/201/34 IPC wherein he disclosed about his involvement in the instant case FIR.
2. After completion of investigation challan was filed by the police U/s. 323/342/452/506 IPC of which cognizance was taken by the Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused.
4. Vide order dated 25.06.2009 charge was framed against the accused State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 2/21 for trial of offences U/s. 323/342/452/506 IPC by the Ld. Predecessor to which accused pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence. Also additional charge U/s. 27/54/59 Arms Act was framed against the accused vide order dated 19.10.2011 to which he pleaded not guilty and claimed trial.
5. Prosecution has examined 10 witnesses to prove guilt of accused. A brief scrutiny of the examined witnesses is as below.
PW-1 is Nanak Chand who deposed that he is working with Ministry of Finance as Daftary. He further deposed that he purchased the house in which he is residing at present from one Kamla Devi about three years back. He further deposed that on 31.03.2009 he was at his house when in the morning at about 07:00 am accused Sonu @ Sanjeev who was present in the court that day came to his house and asked him about his land line number. He further deposed that the accused asked him to give false evidence in his favour that Sanjeev has given earnest money to some person in his presence. He also deposed that the accused pressurized him to speak lie about this fact and on his denial took out a gun from his pocket and placed the same on his temple and asked about his land line number and said that if he do not speak about the earnest money on the phone, he would kill him. He further deposed that his son- in-law Sachin was also present there and on his objection, the accused Sanjeev pointed the gun towards him and said "tera bhi kaam kar doonga"
and that he would come again and kill them. He further deposed that when the accused was moving from their house, he locked the door from outside by moving kundi and the same was opened by some public State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 3/21 persons moving on the road when he asked them. He further deposed that the accused Sanjeev also threatened them on previous occasions to speak lie about the bayana. He further deposed that he showed the spot to the police official and was taken to hospital at Jahangirpuri for medical examination. He further deposed that on that day accused also took out magazine from his gun which was filled with bullets and told them that it was not empty. Accused also said that he had committed two murders on previous occasion. He further deposed that due to his threat he got terrified and had to get himself admitted at Kalra hospital and proved the treatment over there as mark A. He further deposed that on 03.04.2009 he identified the accused at lock up of PS Jahangirpuri as the person who threatened him with gun at his house. He further deposed that the accused was arrested by IO SI Des Raj vide arrest memo Ex. PW-1/B bearing his signature at point A, proved the personal search memo as Ex. PW-1/C and disclosure statement of the accused as Ex. PW-1/D which bears his signature at point A. On 17.02.2010 on being recalled for further examination in chief, he correctly identified the pistol and two cartridges as the same which was pointed towards him by the accused.
He was recalled for cross examination after additional charge U/s. 27/54/59 Arms Act was framed against him and was cross examined by Sh. B.P. Singh Ld. LAC on 19.10.2011. In his cross examination he deposed that at the time of incident the accused was having katta with him. Voluntarily he said that he was at that time offering prayers and as soon as he came he took the katta and placed on his temple. He further stated that the accused was not apprehended on the spot as he had left after threatening them after bolting the door from outside. The police was called by one Vinod. He further deposed that the door was opened by State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 4/21 some passer by and the police reached the spot within half an hour. He further stated that he had told the police about the use of katta by the accused. Further that while putting the gun on his forehead the accused asked him to depose in his favour regarding giving of bayana in his presence. He deposed that the accused threatened him to kill, if he do not depose in his favour. Further that he did not see as to from where the accused took out the katta since at that time when he put the same on his forehead he was offering prayers with his eyes closed. Further that after hearing noise of the pooja trolley on his elbow hitting, Sachin came there. He further deposed that accused also threatened Sachin when he came there. After that he left after bolting the house. He denied the suggestion that he was deposing falsely.
PW-2 Vinod Kumar deposed that on 31.03.2009 at about 07:15 am he was present at his residence situated at D - 559, Wazirpur, J.J. Colony, Delhi and on that day Smt. Krishna wife of the complainant Nanak Chand came to him at about 07:15 am and informed him that the accused Sanjeev had threatened Sh. Nanak Chand. He further deposed that he made call at 100 number. He further deposed that Sh. Nank Chand and Sachin informed him that the acused Sanjeev had threatened them to kill. He further deposed that Sh. Nanak Chand also infomed him that the accused was forcing him to give false evidence in some case and upon refusing to give false evidence accused threatened. He further deposed that he did not see the accused during the period of incident.
This witness was cross examined by Ld. APP with the permission of the court wherein he denied the suggestion that he had stated to the IO that on 31.03.2009 at about 07:15 am he was standing outside his residence and he saw that the accused was coming from the house of State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 5/21 Nanaj Chand and was passing from the street. He deposed that accused Sanjeev was already known to him.
PW-3 is HC Dev Nath who proved the copy of FIR as Ex. PW-3/A and his endorsement on rukka as Ex. PW-3/B. PW-4 is Sachin deposed that on 30/03/09 he came to his Sasural to meet his in laws in the morning of 31/03/09 he was sitting with his father-in-law on ground floor and meanwhile the accused Sonu entered into the room and he was saying to his father in law that he has to give evidence regarding the Bayana. His father-in-law replied to the accused that he will not give any false evidence and accused started hurling abuses to his father in law and he also gave fist blow to his father in law. Further he deposed that the accused Sonu took one gun from his helmet and put it on the temple of his father in law and threatened that he will have to give false evidence and gave threatening to kill his father in law and when he opposed this the accused also pointed gun towards him and also threatened him to kill you don't give false evidence. Further he deposed that accused stated that "Mein Ek Katal To Kake Aaya Hun, our do teen katal kar dunga to bhi wahi Saja Milegi". He further deposed that accused also opened the gun and shown them the magazine and said these are real. Thereafter accused ran away by locking the doors and also the main door. Further he deposed that thereafter they raised an alarm and the door was opened by his brother-in-law (Sala) Vinod and his father in law narrated the incident to Vinod. He further deposed that thereafter Vinod made a call to 100 number. Police reached at the spot. He correctly identified the case property i.e. Pistol, live cartridge and empty cartridge as Ex. P-1.State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 6/21
This witness was cross examined by Sh. Jagminder Singh Ld. LAC for the accused wherein he deposed that five family members were residing at the spot and at the time of incident he, his wife, his daughter and five other family members were present at the spot. He further deposed that the house in which his father in law used to reside was purchased from the accused. Further he denied the suggestion that no balance payment was due against his father in law and that is why accused was falsely implicated in this case. Further he deposed that no other family member were made witness in the present matter. Police reached at the spot at about 7:45am. He further deposed that at the time of incident neighbourer were also present at the spot. Further he deposed that no neighbourer/public persons were made witness in the present case. Further he deposed that police left the spot at about 9am. Further he deposed that he never visited police post Wazirpur JJ Colony after the incident. He further deposed that only one police person namely ASI Dev Raj was came from the PP JJ Colony.
He was recalled for cross examination after additional charge U/s. 27/54/59 Arms Act was framed against him and was cross examined by Sh. B.P. Singh Ld. LAC on 17.01.2012. In his cross examination he deposed that at the time when katta was put on the forehead of Nanak Chand he was offering prayers in his room on the ground floor and that he was in the same room when the incident happened. He further deposed that the accused had taken out katta from his helment and while he was taking out Katta from the helmet he was sitting on the bed. He further deposed that when the accused put the katta on the person of Nanak Chand he asked what is he up to and thereafter the accused also showed him the katta and threatened. He denied the suggestion that he was State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 7/21 deposing falsely to implicate the accused at the instance of his relatives.
PW-5 is ACP Jai Kumar Sharma deposed that on 02/04/09 he arrested the accused Sanjeev in case FIR No.149/09 PS Jahangirpuri, Delhi. Further he deposed that the accused disclosed that on 31/03/09 that he along with his associates Kuldeep and Rajender went to the house of Nank Chand situated in JJ Colony Wazirpur and criminal intimidated. Further he recorded the disclosure statement of accused Sanjeev in case FIR No.149/09 mark-B. Further he deposed that he also informed to PS Ashok Vihar about the arrest of accused through SI Sanjeev Kumar. He further deposed that he also handed over the copies of documents to the IO ASI Dev Raj.
PW-6 is Ct. Subhash deposed that he joined the investigation with IO ASI Dev Raj and deposed that he along with IO went to spot i.e. D-557, Wazirpur JJ Colony where Nanak Chand met them and stated that one person namely Sanjeev gave threatening to him and then IO recorded his statement. Rukka was prepared by the IO and handed over to him for registration of case FIR. He got registered the case FIR. Thereafter on the instruction of the IO he took complainant Nanak Chand to BJRM Hospital there he was medically examined than he along with complt came to the spot he handed over medical examination of the complt to the IO.
PW-7 is HC Naresh deposed that he joined the investigation with IO ASI Dev Raj and deposed that accused Sanjeev was arrested and his personal search was conducted in this case as Ex. PW-1/B and Ex. PW-1/C. State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 8/21 PW-8 is SI Sanjeev Verma deposed that on 02.04.2009 he was posted at PS Jahangir Puri as a Sub Inspector. On that day he joined the investigation of case FIR No, 149/09, U/s. 365/302/201/34 IPC, PS Jahangirpuri along with IO Inspector J.K. Sharma. On that day IO Inspector J.K. Sharma arrested the accused Sanjeev, who was present in the court on that day, in case FIR No, 149/09, U/s. 365/302/201/34 IPC, PS Jahangirpuri. During interrogation accused disclosed that he along with his associate Kuldeep and Rajender went to house of Nanak Chand and criminally intimidated him on 31.03.2009. he further deposed that IO Inspector J.K. Sharma recorded his statement mark B which bears my signature at point X. He further deposed that on 03.04.2009 he informed to the IO of the present case regarding the disclosure statement and arrest of the accused Sanjeev. Further he deposed that IO of the present case ASI Dev Raj came to PS Jahangirpuri and arrested the accused Sanjeev Kumar in the present case.
This witness was cross examined Ld. L.A.C Sh. B.P. Singh for accused where he deposed that accused Sanjeev was arrested in case FIR No. 149/09 at about 08:30 pm on 02.04.2009. further he deposed that HC Anil also accompanied in the investigation of case FIR No. 149/09. He further deposed that on 03.04.2009 ASI Dev Raj came to PS Jahangirpuri at about 11:00/11:30 am. Further he denied the suggestion that no disclosure statement of accused Sanjeev was recorded regarding the present case FIR No. 149/09. he further denied the suggestion that the accused is falsely implicated in the present case.
PW-9 is Ms. Meena, Asst. Ahlmad had brought the original case State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 9/21 file of the case FIR No. 149/09, U/s. 365/364/201/120 B/392/411/302 IPC and 25/27 Arms Act, PS Jahangirpuri. Copy of FIR No. 149/09, PS Jahangirpuri is Ex. PW9/A (OSR), arrest memo of accused Sanjeev Kumar @ Sonu in case FIR No. 149/09, U/s. 365/364/201/120 B/392/411/302 IPC and 25/27 Arms Act, PS Jahangirpuri is Ex. PW9/B (OSR), disclosure statement of accused Sanjeev Kumar @ Sonu is Ex.
PW9/C (OSR). Seizure of pistol and cartridge from accused Kuldeep is Ex. PW9/D (OSR). Seizure memo of country made pistol and cartridge from accused Sanjeev Kumar @ Sonu is Ex. PW9/E (OSR).
PW-10 is ASI Dev Raj, deposed that on 31.03.2009 he was posted at PP Wazirpur, JJ Colony, PS Ashok Vihar. On that day at about 07:35 am on receipt of DD No. 6, Ex. PW-10/A, he along with HC T.N. Yadav, Ct. Subhash reached at the spot at D. 557, Wazirpur, JJ Colony where complainant Nanak Chand met them and told that accused Sanjeev @ Sonu came to his house with pistol and threatened him. He recorded the statement of complainant as Ex. PW1/A and prepared rukka Ex. PW-10/B and sent the same through Ct. Subhash to PS Ashok Vihar for registration of the case. After getting the case registered Ct. Subhash came back to spot and handed over the copy of FIR to him. He prepared site plan Ex. PW-10/C at the instance of complainant and sent him along with Ct. Subhash for medical examination to BJRM hospital. M.E. No. 21295 dated 31.03.2009 of Nanak Chand is Ex. PW-10/D. He further deposed that on 03.04.2009 SI Sanjeev Verma, who was accompanying the investigation of the case FIR No. 149/09, PS Jahangirpuri gave him an information regarding the arrest of accused Sanjeev @ Sonu. Further he deposed that he along with complainant Nank Chand went to PS Jahangirpuri and obtained the relevant documents from Inspector J.K. State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 10/21 Sharma, IO of the case FIR No. 149/09, PS Jahangirpuri. Further he arrested the accused Sanjeev @ Sonu, vide arrest memo Ex. PW1/B at the identification of complainant Nanak Chand and took his personal search vide memo Ex. PW1/C. He recorded the disclosure statement of accused Sanjeev @ Sonu vide memo Ex. PW1/D. He further deposed that he recorded the statement of witnesses including Vinod and Sachin.
This witness was cross examined Ld. L.A.C Sh. B.P. Singh for accused where he deposed that he received information regarding the incident vide DD No. 6 at 07:35 am. He along with HC T.N. Yadav, Ct. Subhash reached at spot within 3/4 minutes of receiving the information. He further deposed that he went there on his motorcycle and HC T.N. Yadav was on his motorcycle. No visible injury was seen on the person of complainant Nanak Chand. Complainant Nanak Chand told me that accused Sanjeev had slapped him. The time of incident was about 07:00 am. He further deposed that only family members of Nanak Chand were there at the spot when he reached. He further deposed that he did not record the statement of all the members of the family but recorded the statement of Sh. Sachin and Vinod who were present at the spot in the ground floor where incident took place, other family members were not in the ground floor at that time. He further deposed that accused had closed the latches of door of the stairs and main gate. The same was opened by the witness Vinod on calling of complainant Nanak Chand. Sachin who was son-in-law of complainant was present at the spot while complainant was performing pooja. Sachin had come to the house of complainant Nanak Chand in the night a day prior to the incident. He further deposed that Sachin resides in Nazafgarh. Further he deposed that the rukka was sent to PS at about 09:00 am. He further deposed that Ct. Subhash came back to spot along with rukka at about 10:00/10:30 am. He further State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 11/21 deposed that the distance between the PS and the spot is about 3/4 km.
Further he denied the suggestion that the accused is falsely implicated in the present case at the instance of complainant as he had not deposed in his favour in a money recovery case filed against Lila Kishan by the accused. Further he do not know whether complainant Nank Chand used to call accused to compromise the matter of recovery with Lila Kishan. He further deposed that he do not know whether Lila Kishan is friend of complainant Nanak Chand or not. He further denied the suggestion that accused had not entered in the house of complainant with pistol.
6. P.E. was closed vide order dated 05.03.2011 and statement of accused U/s. 281/313 Cr.P.C was recorded to which the accused had denied all the allegations leveled against him and lead D.E. U/s. 315 Cr.P.C accused Ashok Kumar examined himself as DW-1.
DW 1 Sanjeev, deposed that Nanak Chand has falsely implicated him in the present case at the instance of Sh. Leela Kishan with whom he was having a dispute over a property and the dispute is still pending in the court of Sh. V. K. Kedia, Ld. Civil Judge, Tis Hazari Courts, Delhi. In that dispute Sh. Leela Kishan is the petitioner and he is respondent and his intention is that he should not be able to produce any documents against the petitioner and that he should not pursue the case. He further deposed that he know Nanak Chand since 30/35 years and due to this he sold his father's house to Sh. Nanak Chand and from this money he gave a sum of Rs. 80,000/- to Sh. Leela Kishan in the presence of my neighbours who live in the same street. Sh. Leela Kishan promised that he would return State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 12/21 the money within two months but after two months when he went to Leela Kishan and asked for the money which he borrowed from him, he refused to return his money. Upon this he told the whole incident to Sh. Nanak Chand and also to his neighbours. Thereafter Sh. Nanak Chand and his neighbours suggested him to file a case against Sh. Leela Kishan and they assured him that they will give their full support to him. In this regard he filed a case against Leela Kishan before the court of Sh. R.L. Meena, Ld. Civil Judge, Tis Hazari Courts, Delhi through his counsel Sh. A.K. Chaturvedi. His further examination in chief was deferred. This witness was further examined on 20/08/11 wherein he deposed that Nanak Chand nexus with Leelakishan and denied to give statement in the court and after that Hon'ble Court suggested him to withdraw the case with liberty to file the amended one as the court fees was not affixed in that case and the present case is falsely implicated upon him at the instance of Leelakishan and he is innocent.
This witness was cross examined by Ld. APP for state where he deposed that he cannot tell the name of the neighbours in whose presence he had given Rs.80,000/- to Leela Kishan. Further that no receipt of the loan money of Rs.80,000/- was made. Further he denied the suggestion that he had not given Rs.80,000/- to Leela Kishan that is why he cannot tell the name of any witness or he can produce the receipt of the same. Further he denied the suggestion that he is reproducing a concocted and false story in order to save himself.
DW-2 is Gaus Mohd., Ahlmad had brought the summoned file of case FIR No.227/07 PS Civil Lines. He deposed that case FIR No.227/07 PS Civil Lines State V/s Sanjay Kumar U/s 406 IPC was decided on 18/05/11 by the court of Sh. Sanjay Bansal, Ld. ACMM, North, Tis Hazari State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 13/21 Courts, Delhi and the accused was acquitted. Further he deposed that in that case complaint was filed by Sh. Leela Kishan.
7. D.E was closed on 10.10.2011 and thereafter matter was fixed for final arguments. It was observed by the court that there were allegations of using of fire ams by the accused in the testimony of PW-1 Nanak Chand and PW-4 Sachin. U/s. 216 Cr.P.C additional charge was framed against the accused for the offence U/s. 27/54/59 Arms Act to which the accused pleaded not guilty and claimed trial. Accused submitted that he would like to cross examine PW-1 Nanak Chand and PW-4 Sachin on this aspect. Both were recalled and cross examined. P.E. was closed and Statement of Accused U/s. 313 Cr.P.C was recorded to which he pleaded innocence and preferred not to lead D.E. Thereafter the matter was fixed for final arguments.
8. It is submitted by Ld. APP that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt. It is further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
9. It is submitted by Ld. LAC Sh. B.P. Singh that the accused has been falsely implicated by the complainant. It is further submitted by Ld. LAC that there are several inconsistencies and loopholes in the story of prosecution. He further submits that there are reasonable doubts in the State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 14/21 testimonies of the prosecution witnesses rendering them to be unreliable and unbelievable.
10. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused and have gone through the evidence and the material available on record.
11. It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
12. In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 15/21 has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs. State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
13. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted)."State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 16/21
14. After going through the material on record, including the testimonies of the witnesses examined by the prosecution as well as the documents relied upon I do not find the story of the prosecution as reliable. The alleged eye witnesses including the complainant have contradicted themselves on various aspects.
15. PW-1/complainant Nanak Chand has deposed that on 31.03.2009 the accused Sonu @ Sanjeev came at his house at about 07:00 am and asked him to give false evidence in his favour that he has given earnest money to some person in his presence. He also deposed about the presence of his son-in-law Sachin at that time. In his cross examination he deposed that Sachin came at the spot after hearing the noise of the pooja trolly when his elbow hit the same. Whereas PW-4 Sachin deposed that he was sitting with his father-in-law when the accused entered into the room and asked him to give evidence regarding the bayana. In his cross examination he has deposed that the accused took out katta from his helmet and at that time he was sitting on the bed. Both the witnesses have given different versions about the presence of PW-4 Sachin. The complainant has stated that PW-4 Sachin came after hearing the noise whereas PW-4 Sachin has deposed that he was very much present in the room itself and he saw the accused taking out the katta and showing it to the complainant. PW-1 has deposed in his testimony that the accused while pointing the gun towards Sachin uttered "Tera Bhi Kaam Kar Doonga" whereas PW-4 Sachin has deposed that the accused stated to PW-1 "Mein Ek Katal To Karke Aaya Hun, Aur do teen katal kar Doonga to State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 17/21 bhi wahi sajaa milegi". Interestingly none of them have deposed as to what the accused spoke to them but only what he spoke to the other one.
16. As has come in the cross examination of PW-4 there were five family members apart from him, his wife and his daughter present at the time of incident. Neither of them have been made witness nor any one's presence has been shown during the incident.
17. PW-1 in his statement has stated that the door which was locked by the accused while leaving was opened by some public person moving on the street when he asked him whereas PW-4 Sachin has stated in his testimony that the same was opened by PW-2 Vinod. Amusingly, PW-2 Vinod Kumar has deposed that on 31.03.2009 Smt. Krishna wife of the complainant Nanak Chand came to him at about 07:15 am and informed him about the incident that the accused has threatened the complainant. There is also discrepancy as to who opened the door from outside. If the wife of the complainant had the opportunity to go to the house of Vinod Kumar, what stopped the complainant or PW-4 Sachin to make a call at PCR from the land line from their home.
18. PW-2 Vinod Kumar has refuted the story of the prosecution that on the day of incident at about 07:15 am he was standing outside his residence and he saw the accused coming out of the house of the complainant and passing from the street.
State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 18/2119. Further,a s per the DD No. 6 dated 31.03.2009 there was a call that the previous owner of D 557, Wazirpur J.J. Colony is misbehaving under the influence of alcohol. If the incident were to be taken correct as a whole, I find no reasons as to why there would be a call at the PCR only of misbehaving and not of threatening while using a country made pistol.
20. The present case seems to have been blown out of proportion and the story woven by the complainant to falsely implicate the accused as admittedly and as well as proved by DW-1 and DW-2 that civil disputes are going on between the parties regarding some properties.
21. In view of the above the whole story of the prosecution has come under the shadow of doubt, benefit of which must go to the accused. The whole incident remains unproved. The testimonies of the PWs in particular PW-1 and PW-4 do not inspire confidence and it will be unsafe to rely upon them. Thus the allegations of the accused entering into the building/house of the complainant Nanak Chand and and giving beatings to the complainant and wrongfully confining the complainant in his house with his son in law after having made preparation to put him in fear of death and also threatening to eliminate the complainant Nanak Chand with injury to his person and his family members while using a country made pistol remains unproved.
State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 19/2122. 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).
23. 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 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 State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 20/21 innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
24. Prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot replace the standard of proof required to establish the guilt of the accused . In the present case, the prosecution has miserably failed to discharge its onus. The evidence available on record is not sufficient to substantiate the guilt of the accused . Accordingly the accused deserves acquittal.
25. It is ordered accordingly.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on March 21, 2012.
State V/s Sanjeev @ Sonu FIR No. 174/09 PS: Ashok Vihar Page No. 21/21