Delhi District Court
State vs . on 20 February, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 86002/2016
CNR No. -: DLSH020020212015
FIR No. -: 1278/2014
Police Station -: Seemapuri
Section(s) -: 394/34 IPC
In the matter of -
STATE
VS.
1. AMIT KUMAR
S/o Kashmiri Lal,
R/o D-31/A-4, Dilshad Garden,
Delhi.
2. RICKY
S/o Kashmiri Lal,
R/o D-31/A-4, Dilshad Garden,
Delhi.
... Accused Persons
1. Name of Complainant :- Ankit
2. Name of Accused Persons :- 1. Amit
Kumar
2. Ricky
3. Offence complained of or :- 394/34 IPC
proved
4. Plea of Accused Persons :- Not Guilty
5. Date of Commission of :- 07.09.2014
offence
6. Date of Filing of case :- 04.03.2016
7. Date of Reserving Order :- 20.02.2023
8. Date of Pronouncement :- 20.02.2023
9. Final Order :- Acquitted
Argued by -: Sh. Parmod Kumar, Ld. APP for the State.
Sh. Narender Singh, Ld. Counsel for both
accused. ANKUR Digitally signed
by ANKUR
PANGH PANGHAL
Date: 2023.02.20
AL 18:03:37 +05'30'
Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 1 of 11
JUDGMENT
1. The case of prosecution in brief is that on 07.09.2014 at about 11:00 p.m. near Shani Mandir, Mukherjee School, P-Pocket, Dilshad Garden, Delhi both the accused persons in furtherance of their common intention had robbed Rs. 7,000/- from possession of complainant namely Ankit and for that purpose both accused persons had caused hurt, voluntarily, to the complainant on his head. The present accused persons were thereafter arrested. As such, it is alleged that the accused persons have committed the offences punishable under section 394/34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which the present FIR was lodged in PS Seema Puri.
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). The accused persons were arrested. Relevant record was collected. Final report under section 173 CrPC, was prepared against the abovenamed accused persons and chalan was presented in the court on 04.03.2016. After taking cognizance of the offence, the accused persons were summoned to face trial.
3. On their appearance, a 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 394/34IPC was framed against the accused persons on 13.02.2019. The accused persons pleaded not guilty and claimed trial.
ANKUR Digitally signed by ANKUR PANGHAL PANGHAL Date: 2023.02.20 18:03:53 +05'30' Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 2 of 11 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 PW1 :- Ankit (Complainant) PW2 :- Simmi Mehta (Eye Witness) PW3 :- Kamlesh (Eye Witness) PW4 :- Rajeev Bhutani (Eye Witness) Witness Dropped Name of :- Reason from drop witness Ct. Rajbeer :- Due to non-service through DCP concerned DOCUMENTARY EVIDENCE Mark X :- Statement of complainant ADMITTED DOCUMENTS (under S. 294 CrPC) Ex. A1 :- FIR No. 1278/14 PS Seemapuri 4.1. Ankit (PW-1) in his examination in chief stated on oath that on 07.04.2014 he was doing computer course and on that day at 11 PM he was present at home with his parents. He heard a noise of glass breaking, of his car, which was powered in compound. After hearing of noise, he went downstairs and found three persons were standing there namely Amit, Ricky and Tinku. The witness identified both accused persons correctly in court. Thereafter PW-1 deposed that he ANKUR found glass of his car had already broken, due to which some PANGHAL Digitally signed by ANKUR PANGHAL Date: 2023.02.20 18:04:02 +05'30' Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 3 of 11 altercation took place between him and accused persons. After hearing the noise, his mother came there. He thereafter deposed that accused persons scuffled him and his mother. Due to high noise many neighbours gathered there and someone called on hundred number, when he fell on the ground. Police came there and took him and his mother to GTB hospital. He further deposed that police official took his signatures on some blank papers and he denied his signature on his statement Mark X at point A. 4.2. PW-1 was cross-examined by Ld. APP for state wherein he denied the suggestion that on 07.09.2014 at about 11 PM accused persons were trying to take articles lying in the car bearing registration number Dl-13-CA-5285. PW1 also denied the suggestion that when he made noise, one of the accused persons strangulated the wire on his neck and he fell down due to strangulation. He also denied the suggestion that when his mother tried to save him from the clutches of accused persons, one accused entered into his house and caught hold hairs of his mother and pulled her outside. He further denied the suggestion that both accused persons criminally intimidated him and his mother. He denied the suggestion that after gathering of people on spot, all accused persons left the spot and after inspection, he came to know that cash of ₹ 7000 was stolen from his car. He also denied the suggestion that accused persons have assaulted him while committing robbery in his car.
5. Simmi Mehta (PW-2) was examined-in-chief on 02.03.2021 wherein she deposed that on 07.09.2014 at about 11 -
11:30 PM, she heard some noise and when she came in balcony, ANKUR she so accused Amit and Ankit while scuffling with each other.
PANGHAL Digitally signed by ANKUR PANGHAL Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 4 of 11 Date: 2023.02.20 18:04:12 +05'30' PW-2 has correctly identified accused Amit in court. She came downstairs and intervened in the matter. Thereafter both the parties went to their houses. She further deposed that police did not record her statement.
5.1. PW-2 was cross-examined by Ld. APP for state wherein she denied the suggestion that on 07.09.2014 accused it and caught hold the hair of Kamlesh (mother of Ankit) and was scuffling and beating both Ankit and his mother, under influence of liquor. She denied the suggestion that after intervention accused and away from the spot.
6. Kamlesh (PW-3) was examined-in-chief on 25.11.2021 wherein she deposed that on 07.09.2014 at about 11 PM she was present in our house and she heard some noise outside her house in street and she rushed outside. She felt down in stairs and sustained injury on her leg. Her family members and police officers shifted her to hospital. She further stated that she does not know anything about this incident and submitted that she did not give any statement to police. She further stated that both the accused persons have never injured her or her son namely Ankit in her presence.
6.1. PW-3 was cross-examined by Ld. APP for state wherein she deposed that she's illiterate and she has accepted the suggestion that after hearing noises she rushed towards the stairs. Thereafter, she voluntarily stated that she had not reached the street. She denied the suggestion that when she reached on street, accused Amit and his brother were beating her son Ankit. He also denied the suggestion that accused persons ANK Digitally dragged her by he held and pushed her due to which she got signed by UR ANKUR PANGHAL PAN Date:
2023.02.20 18:04:21 GHAL +05'30' Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 5 of 11 injured. She also denied suggestion that accused persons had criminally intimidated her or her son.
7. Rajeev Bhutani (PW-4) was examined-in-chief on 13.02.2023 wherein he deposed that he does not know anything regarding the present case but he knows the accused persons as they are his neighbours.
7.1. PW-4 was cross-examined by Ld. APP for state wherein he denied suggestion that on 07.09.2014 at about 11 PM, he saw accused Amit and Ricky were beating Ankit and his mother Kamlesh. He also denied suggestion that he rescued Ankit from clutches of both accused persons.
8. During the trial, IO has submitted that the witness mentioned at serial number 1 and 8 in the list of witnesses is same and separate statement of IO was recorded in this regard.
9. Prosecution evidence was closed, vide separate order passed on 13.02.2023, as recording of any further prosecution evidence in the present case would have resulted in to wastage of judicial time, money, resources and would have also caused unnecessary operation to the accused persons who have anyhow faced the ordeal of the trial in the present case for last seven years. 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. vs. The State (Govt. of NCT of Delhi) 104 (2003) DLT 510 wherein it was held that: -
"...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 Digitally time of the courts. The trial should not be continued only for the ANKUR signed ANKUR by PANG PANGHAL Date:
HAL 18:04:31 2023.02.20 Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 6 of 11 +05'30' purpose of formally completing the proceedings to pronounce the conclusion of a future date."
9.1. Right to speedy trial is constitutionally guaranteed fundamental right of the accused persons. The present case pertains to an FIR of the year 2014 and continuing the trial any further, when it is clear that prosecution can never hope to prove its case against the accused persons would tantamount to violation of right to speedy trial of the accused. It has been held in P.Ramchandra Rao vs. Satte 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 vs. State of Mahrashtra AIR 2008 SC 3057. Furthermore, in Satish Mehra vs. Delhi Administration & Abr. 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.
10. Thereafter, since nothing incriminating has come on record against both the accused persons recording of their statement under section 313 CrPC was dispensed with.
11. 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.
12. It is argued by the Ld. APP for the state that 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 set offences. ANKUR Digitally signed by ANKUR PANGHAL PANGHAL Date: 2023.02.20 18:04:40 +05'30' Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 7 of 11
13. Per contra, the Ld. counsel for the accused persons has argued that the state has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that main witnesses have turned hostile and despite reading their evidence as a whole, nothing has come on record against the accused. As such, it is prayed that the accused persons be acquitted for the said offences.
14. The accused persons have been charged for the offence under section 394/34 IPC. For offence under section 392 IPC, it has to be proved that accused committed either theft or extortion amounting to robbery and while doing so has caused hurt voluntarily, and it has to be further proved that other ingredients of the offence were fulfilled by the acts of the accused. For theft amounting to robbery, it is to be proved that accused has voluntarily caused or attempted to cause death, heart or wrongful restraint to the victim.
15. 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.
16. The main witness of the prosecution i.e., PW-1 has turned hostile in the present case. It is pertinent to note that under Indian law, the evidence of hostile witnesses not discarded completely. The legal maxim, "false in uno false in ombnibus"
is not applicable in India. With respect to the evidentiary value of hostile witness, it was observed by the Apex Court in the case of ANKUR PANGHAL Digitally signed by ANKUR PANGHAL Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 8 of 11 Date: 2023.02.20 18:04:52 +05'30' 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 chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
17. Therefore, it has to be seen if the evidence of such hostile witness can be relied in part. In the present case, the evidence available on record is not sufficient to help the prosecution. PW1 (complainant) has deposed that altercation took place between him and accused persons but he has denied the suggestion put to him by Ld. APP for state that accused persons were trying to take articles lying in his car. He also denied the suggestion that one of the accused strangulated his neck by wire or pulled his mother, outside his house, by holding her hair or criminally intimidated him or his mother. He has also denied the suggestion that accused persons assaulted him while committing robbery. He also submitted that police took his signatures on some blank papers and has denied his signatures on compliant, which is basis of present FIR.
17.1. PW-2 accepted the fact that scuffle took place between the accused Amit and complainant but she denied the suggestion that accused Amit was beating complainant and his mother under influence of liquor. PW-3 has also deposed that she suffered injury because she fell down from stairs. She further deposed that she had not seen the incident and denied the suggestion that accused persons had criminally intimidated her or ANKUR her son. Therefore, there is nothing on record to connect the PANGHAL Digitally signed by ANKUR PANGHAL accused persons with the commission of the offence. Date: 2023.02.20 18:05:03 +05'30' Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 9 of 11
18. In the instant case, the complainant/PW1 has turned hostile and his testimony cannot be considered worthy to be accepted and acted upon and other public witnesses have also turned hostile to case of prosecution.
19. Thus, even if the evidence of the hostile witnesses PW1, PW2, PW3 and PW4 is considered partly, there is nothing to implicate the accused persons in the present case. As such, 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.
20. 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 persons are entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution.
20.1. To recapitulate the above discussion, to bring home the guilt of accused persons, the prosecution was required to prove the offence under section 394/34 IPC beyond reasonable doubt. The star witness of the prosecution i.e., the complainant as well as other public witnesses have turned completely hostile, which has created a dent in the prosecution's case. There is no evidence to link the accused persons with the crime charged against them. Further, the ingredients of the offence are not fulfilled from the material on record. In the present case, as already noted above, the prosecution could not discharge the onus of proving the ingredients of offences in question and thus, the accused persons are entitled to benefit of doubt. ANKUR Digitally signed by ANKUR PANGHAL PANGHAL 18:05:12 +05'30' Date: 2023.02.20 Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 10 of 11
21. Resultantly, the accused persons namely, AMIT KUMAR and RICKY are hereby found not guilty. They are hereby ACQUITTED of the offences under section 394/34 IPC.
22. File be consigned to record room after due compliance.
Announced in open court on 20.02.2023 in the presence of the accused. The judgment contains 11 pages and each page have been signed by the undersigned.
(ANKUR PANGHAL) ANKUR Digitally signed by ANKUR PANGHAL MM-06, Shahdara District, PANGHAL Date: 2023.02.20 18:05:21 +05'30' Karkardooma Courts, Delhi 20/02/2023 Cr. Case No. 86002/16 State vs. Amit Kumar & Anr. Page 11 of 11