Delhi District Court
State vs . Santosh Paswan And Anr on 29 May, 2019
1
IN THE COURT OF MS. NEETI SURI MISHRA: METROPOLITAN MAGISTRATE02
(CENTRAL), TIS HAZARI COURTS:DELHI
State Vs. Santosh Paswan and Anr
FIR No. 244/15
U/s: 420/34 IPC
P.S. Timar Pur
CNR No. DLCT020041752015
J U D G M E N T
Unique Identification No. : 293798/16 Date of Institution : 28.09.2015 Date on which case reserved for judgment : 29.05.2019 Date of judgment : 29.05.2019 Name of the complainant : Arvind Date of the commission of offence : 13.04.2015 Name of accused : (1) Santosh Paswan, S/o Sh. Suresh Paswan, R/o. Village Chomukh, PS Bochan, Distt. Muzaffarpur, Bihar. (2) Sumant Kumar, S/o Sh. Sharvan Kumar, R/o. Village Bamori, PS Nohta Distt. Damoh, MP. Offence complained of : U/s 420/34 IPC Offence charged of : U/s 420/406/34 IPC Plea of the accused : Pleaded not guilty. Final order : Acquitted FIR No .244/15, State vs. Santosh Paswan & Anr. 2
1. The brief facts of the present case as per prosecution are that on 13.04.2015, at about 4 pm, when the complainant Arvind along with his cousin Virender was going towards the New Delhi Railway Station and when they were about to board the metro from the Azad Pur Metro Station, they met two boys at the platform of the metro and one of the boys commenced conversation with both the abovenamed persons. It is submitted that during conversation, the complainant and his cousin informed those two boys that complainant Arvind was going to Banaras and one of those boys told the complainant that he was also going to Banaras and they further informed the complainant that the train tickets of complainant Arvind can be confirmed as the maternal uncle (mama) of one of those boys was a TT in the railways. It is submitted that thereafter, both the accused induced the complainant and his cousin to hand over the bags carried by complainant Arvind along with him, to one of the accused as they reached outside the Vishwavidyalaya Metro Station.
2. The complainant further stated that on being induced by the boys, both the bags were handed over to one boy by the complainant and both the complainant and his cousin accompanied the other boy as the other boy told them to come to the office of Railways which was near the mother dairy, Jawahar Market, Timarpur. The complainant stated that the boy who had accompanied them told them that his maternal uncle will arrange for the ticket, however as they reached near one street, the latter told them to stop and wait near the street and further told them that he would go and get the confirmed ticket of the complainant. As per the complainant's version both he and his cousin waited for some time at the same spot but that boy did not return. Then they went back to the Vishwavidyalaya Metro Station but did not find even the first boy there. He has stated that they again rushed back to the same spot where they were asked to wait but even the latter did not return. It is the case of prosecution that after this incident, a 100 number call was made by the FIR No .244/15, State vs. Santosh Paswan & Anr.
3complainant and on the basis of his statement, FIR in the present case was registered against two unknown persons.
3. Further as per the prosecution during investigation of the present case, the IO of the case came across both the accused of the present case, when on 21.04.2014, both the accused who had been arrested in case FIR no.266/15 PS. Timarpur U/s 420/406/411 IPC, confessed to the commission of offence in the present case also. As per the chargesheet, when the IO moved application for conducting the Test Identification Parade of both the accused, they refused to the same and hence, chargesheet was filed against both of them U/S 420/34 IPC by the IO. The court took cognizance of the offences, summoned the accused persons and on their appearance, copy of the challan was supplied to them in compliance with the provision under Section 207 Cr.P.C.
4. On the basis of the contents of the chargesheet and after hearing both the parties, charge was framed u/s 420/406/34 IPC. Both the accused did not plead guilty and claimed to be tried.
5. To establish the guilt of the accused, the prosecution furnished a list of seven witnesses, however, only four witnesses were examined and the record of their evidence is as under:
PW1 HC Sandeep Kumar deposed that on 13.04.2015, he was posted as HC and worked as duty officer from 4 pm to 12 midnight and on that day, he received rukka at about 0.05 pm, he received a PCR call regarding cheating. He deposed that on the basis of same, he lodged DD entry no.35A and copy of the same proved as EX.PW1/A(OSR) and shared this information with HC Sukesh. Witness stated that on the same day, at about 6.25 pm, he received a rukka sent by HC Sukesh brought FIR No .244/15, State vs. Santosh Paswan & Anr.4
by Ct. Amit and on the basis of the rukka, he registered the FIR proved as EX.PW1/B and made endorsement on rukka proved as EX.PW1/C. PW2 Om Prakash deposed that on 13.04.2015, he alongwith his cousin Arvind (son of my bua) were going to New Delhi Railway Station via Metro and they went at the platform of Azadpur metro station and were waiting for metro train. He stated that at platform they met two boys and one of those boys asked his brother where he was going. He stated that his brother replied to him that he was going to Banaras and then the said boy pointed out towards the other boys accompanying him and he said to the brother of witness that his brother was also going to Banaras on the day. He stated that then he asked that whether his brother had purchased the train ticket for journey to Banaras. He stated that his brother replied that he did not buy the ticket till then and then the said boy told to his brother that his maternal uncle (mama) is a TT in railway department and he further said to the brother of witness that he can get the confirmed ticket for Banaras for the brother of witness through his mama. He stated that then the metro came and they boarded the said metro and those two boys were also boarded the said metro and then the said boy asked the brother of witness and witness to deboard at Vishwavidhayala metro station. He stated that then they deboard at the Vishwavidyalaya metro station and they all come out of the Vishwavidyalaya metro station and reached at near bus stop. He stated that they were having two bags one was of blue colour and other was of black colour and those bags contained three sarees, one pant, clothes of two shirts, one lehnga chunni, one jacket and amount of Rs. 2,000/. Witness stated that one of the said two boys asked them to hand over the custody of their aforesaid bags to the other boy accompanying him and the said boy asked the witness and his brother to accompanying him for fetching confirmed railway ticket for Banaras from the office of Railway which was near to Mother Dairy, Jawahar Market, Timar Pur where his mama will arrange for the ticket. Witness stated that they handed over FIR No .244/15, State vs. Santosh Paswan & Anr.5
bags to the other boy accompanying the first accused boy and then they went with him near Mother Dairy which was nearby to the bus stop of Vishwavidhayala metro station. Witness stated that they reached near the street, the said accused boy asked him and his brother to stop there as he was going to fetch the confirmed ticket and when they waited for some time, however, the said accused boy did not return with confirmed ticket. Witness stated that they became suspicious and then they returned to the bus stop where they handed over their aforesaid two bags to the other boy, however, when they reached there, the said boy alongwith their aforesaid two bags had disappeared from the said place. Witness stated that thereafter, they again went to the mother dairy where the first accused boy took them for fetching ticket and then they told about the said incident to the public persons nearby. Witness stated that then someone from public called the police and police came and took them to PS and there IO recorded the statement of witness and statement of his brother.
Thereafter, the witness could not identify the accused persons and Ld. APP for State crossexamined the witness with the permission of the court on the part of identity of accused persons. Ld. APP for the State specifically pointed out the accused persons and asked the witness whether these two persons had committing cheating with him and his brother and took away their aforesaid two bags on the day of incident, to which witness replied that he cannot identify them as long time has lapsed since the date of incident. Witness also denied the suggestion that he is intentionally or deliberately not identifying the accused persons or that he is deposing falsely as he has been won over by the accused persons.
PW3 Arvind deposed that he does not remember the date of incident and he alongwith his cousin Virender were going from Azadpur after taking our luggage to their native village by train. Witness stated that he has two bags with him and they went to Azadpur Metro Station and there they wanted to go New Delhi. Witness stated that in the meantime two persons met at Metro Station and those boys asked FIR No .244/15, State vs. Santosh Paswan & Anr.6
the witness where he was going and witness replied to them that he will go to New Delhi and from where by train witness will go to Banaras. Witness stated then that one of those two boys that his brother was also going to banaras and then he said that one of his known can get ticket of witness confirmed. Witness stated that then they asked them to go to Vishwavidyalaya metro station and their his known person will be met, who can get confirmed ticket of witness to Banaras. Witness stated that on Vishwavidyalaya metro station they boarded down and they come out of Vishwavidyalaya metro station. Witness stated that one boy alongwith himself went to fetch the railway ticket from the said known person. Witness stated that in the meantime his cousin and other accused boy remained there alongwith their two bags. Witness stated that the said boy took him to street near some building. Witness stated that the said boy left him there by saying that he is going to fetch the confirmed ticket. Witness stated that he stood there in waiting him. Witness stated that in the meantime his cousin also reached there and he told the witness that those two bags he has left with the other accused boy. Witness stated that they wait for some time, however, the first accused boy did not there with confirmed ticket. Witness stated that they become suspicious upon them and then they returned to the place near Vishwavidyalaya Metro Station where the cousin of witness left aforesaid two bags, however, bags and those two accused boys were not there. Witness stated that then they talked with the people around there and suggested them to call at number 100 and then someone from public person call at number 100 and police came at the spot and police recorded statement of witness Ex. PW3/A. Witness stated that then they went to the house of their known and they stayed there at night and on next day they went to their house. Witness stated that he cannot identify those two boys. Thereafter, Ld. APP for State asked the witness to look around the court and see whether those two boys are present in the court or not and accordingly witness looked around the court and stated that those two boys are not present in the court. Thereafter, the witness could not identify the accused persons FIR No .244/15, State vs. Santosh Paswan & Anr.7
and Ld. APP for State crossexamined the witness with the permission of the court on the part of identity of accused persons. Witness admitted as correct that he stated to police in his statement Ex. PW3/A, that the incident was 13.04.2015 and he stated to police that one of those accused boy told him that his mama is TT in Railway, who can get confirmed ticket for him to go to Banaras and that at about 04:00 PM they deboarded Vishwavidyalaya Metro Station or that in the bag witness there were three sarees, two shirts, one pant, lehnga Chunni, one jacket and amount of Rs. 2,000/ or that one bag was of blue colour and the other was of black colour or that boy took the witness to near Mother Dairy, Jawahar Market, Timar Pur where he asked the witness to wait till he returned with the confirmed ticket. Thereafter, Ld. APP for the state specifically pointed out the accused persons namely Santosh Paswan and Sumant Kumar and asked the witness whether these two persons had committing cheating with him and his brother and took away their aforesaid two bags on the day of incident, to which witness replied that he cannot identify them as long time has lapsed since the date of incident. Witness also denied the suggestion that he is intentionally or deliberately not identifying the accused persons or that he has suppressed the true facts from the court or that he is deposing falsely as he has been won over by the accused persons.
PW4 SI Yogesh Kumar deposed that on 22.04.2015, he was posted as SI at PS Timar Pur and on that day investigation of the present case was marked to him and on 21.04.2015, he arrested accused persons namely Santosh Paswan and Sumant Kumar in connection with case FIR No. 266/15 PS Timar Pur. He stated that during interrogation, the aforesaid accused persons suffered the disclosure statement wherein they admitted their involvement in commission of cheating in present case vide their disclosure statement Ex. PW4/A and Ex. PW4/B and on the basis of their aforesaid disclosure statement, witness formally arrested the aforesaid accused persons in present case vide memos Ex. PW4/C and Ex. PW4/D and FIR No .244/15, State vs. Santosh Paswan & Anr.8
conducted their personal search vide memos Ex. PW4/E and Ex. PW4/F. Witness also stated that he also recorded their disclosure statement proved as Ex. PW4/G and Ex. PW4/H and he interrogated both the accused regarding the case property, however, no recovery of case property could be effected. He stated that he also moved application for conducting TIP of the accused persons by the complainant and eye witness, however, both the accused persons refused to participate in TIP proceeding and he recorded the statement of witnesses. He stated that on completion of investigation, he prepared the charge sheet and filed the same before the court. Witness correctly identified both the accused persons in the court.
6. Perusal of the record further showed that except PW Arvind and PW Virender Kumar, no other witness of the incident was cited by prosecution and after examining the testimonies of both the abovenamed witnesses, it was observed that neither of the witnesses could identify the accused persons as the persons who had cheated them on 13.04.2015. In the eventuality of nonidentification of the accused by the eyewitnesses, no purpose would have been served by examining the remaining witnesses, who were merely formal witnesses, as all the remaining witnesses were merely those witnesses who could have only proved the procedural formalities conducted by the police officials pursuant to the arrest of the accused persons. Hence, the recording of evidence of remaining prosecution witnesses was stopped in view of decision of Satish Mehra V. Delhi Administration & Anr. (1996) 9 Supreme Court Cases 766, where it was observed in Para No. 15: "But when the judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the curt should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date."
7. Record further revealed that charge against the accused persons was framed u/s 420/406/34 IPC and for establishing the allegations against them, the FIR No .244/15, State vs. Santosh Paswan & Anr.
9identification of the accused persons by the complainant and PW Virender was essential as they could have only established the identity of the accused persons in the court. All the remaining witnesses of the prosecution are formal witnesses whose evidence would have had no bearing on liability of the accused. In view of the fact that no other eyewitness was cited by prosecution, no incriminating evidence was available on record for recording the statement of the accused persons, therefore, recording of the statement of accused persons u/s 313 r/w Section Cr.P.C. was dispensed with.
8. Subsequently, final arguments were heard from the Ld. APP for the state and from the Ld. Counsel for accused. Material on record was also perused.
9. In the present case, the complainant Arvind and PW Virender were the only witnesses who could have proved the complaint and would have established the identity of the accused persons as offenders. It is settled proposition that the identification of the accused in the court is a substantive piece of evidence and in case of their nonidentification the most important link in the prosecution's case does not stand proved. Thus, in view of nonidentification of the accused persons by the complainant and PW Virender, it is held that prosecution has failed to prove that the accused persons were infact the same persons who had cheated the complainant of the alleged case property. Therefore, both the accused persons are acquitted of offences punishable U/s 420/406/34 IPC in the present case.
10. Bail bond in compliance of Section 437 A Cr.P.C was directed to be furnished.
Digitally signed by NEETI NEETI SURI
SURI MISHRA
Date: 2019.06.06
MISHRA 19:38:59 +0530
Pronounced in open court (NEETI SURI MISHRA)
on 29.05.2019 MM02 (Central): Tis Hazari Courts
Courts:Delhi:/29.05.2019.
FIR No .244/15, State vs. Santosh Paswan & Anr.