Delhi District Court
State vs 0 on 23 November, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 4612/2018
CNR No. -: DLSH020069542018
FIR No. -: 871/2016
Police Station -: Seema Puri
Section(s) -: 392/34 IPC
In the matter of -
STATE
VS.0
1. ROHAN
S/o Rana,
R/o B-20 Priydarshini, Kusht Ashram,
Tahir Pur, Delhi.
2. SUBRATI
S/o Jamaal
R/o H.No. 49, Gandhi Ashram,
Tahir Pur, Delhi.
3. SAMSON
S/o Israel George
R/o Anand Gram,
Tahir Pur, Delhi.
... Accused Persons
1. Name of Complainant :- Jitender
2. Name of Accused Persons :- 1. Rohan
2. Subrati
3. Samson
3. Offence complained of or :- 392/34 IPC
proved
4. Plea of Accused Persons :- Not Guilty
5. Date of Commission of :- 15.09.2016
offence
6. Date of Filing of case :- 11.08.2017
7. Date of Reserving Order :- 23.11.2022
8. Date of Pronouncement :- 23.11.2022
9. Final Order :- Acquitted
ANKUR Digitally signed by ANKUR
PANGHAL
PANGHAL Date: 2022.11.28 21:38:14
+05'30'
Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 1 of 12
Argued by -: Sh. Pramod Kumar, Ld. APP for
the State.
Sh. Ajay Gautam, Ld. Counsel
for all the accused.
JUDGMENT
1. The case of prosecution in brief is that on 15.09.2016 at about 12:00 noon the complainant was passing Deer Park, Dilshad Garden, Delhi, along with his brother-in-law namely Ashok Kumar. When they both reached in the mid of the park, near the nala, then three to four boys aged about 20-22 years came from the front and stopped the complainant and his brother-in-law and started entering their hands in the pockets of the complainant and his brother-in-law. When the complainant and his brother-in-law objected, one of the boys took out a small knife from his pocket and threatened the complainant and his brother-in-law that he will stab them if they will make any noise. Complainant and his brother-in-law stood quietly and those boys caught hold of hands of the complainant and his brother-in-law and forcefully took ₹ 300, voter I/D card, mobile phone of the complainant and ₹ 500 and Aadhar card from the pocket of his brother-in-law. After that, the said boys ran away from there. The complainant ran behind them and they threw mobile phone of the complainant and ran away. The present accused persons were thereafter arrested on the basis of their disclosure in another matter. As such, it is alleged that the accused persons have committed the offences punishable under section 392/34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which the present FIR was lodged in PS Seema Puri.
Digitally signed by ANKURANKUR PANGHAL PANGHAL Date: 2022.11.28 21:38:32 +05'30' Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 2 of 12
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 11.08.2017. 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 392/34 IPC was framed against the accused persons on 06.06.2019. The accused persons pleaded not guilty and claimed trial.
4. During the trial, in order to prove its case, prosecution examined only one witness i.e., PW1 namely Jitender. PW1 is the star witness as well as complainant in the present case. PW1 was examined on 16.10.2019 who deposed that around 3-4 years back at around 12 noon he along with his brother-in-law namely Ashok was roaming around Deer Park, Dilshad Garden, Delhi. He further deposed that, on their way back home from the park when they reached near nala 3-4 boys restrained their way and try to snatch their belonging by putting their hands in the pockets of PW1 and his brother-in-law. PW1 further deposed that the boys threatened to kill them due to which ANKU Digitally signed by he got afraid and thereafter the said accused persons caught hold R ANKUR PANGHAL of his hands and looted ₹ 300 from his pocket and ₹ 500 from PANG Date:
2022.11.28 HAL 21:38:48 +05'30' the pocket of his brother-in-law along with mobile phone of PW1 Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 3 of 12 and other documents which they were carrying at that time. PW1 further deposed that the moment accused persons looted them and tried to flee away from the spot, he made noise and on making his noise one of the accused threw his mobile there only and fled away. Thereafter, PW1 deposed that he made a call to 100 number. Police came at the spot and PW1 gave his complaint to the police which is Ex.PW1/A bearing his signature at point A. PW1 further deposed that inquiries were made from him about the spot of incident and police tried to search the accused persons but could not find them and his statement was recorded by the police. It is further deposed that few days after the incident police called him to identify the accused persons but none of the accused persons came there for the purpose of their identification. PW1 also deposed that he cannot identify the accused persons who were present in the court.
4.1 PW1 was cross-examined by Ld. APP and he denied all the suggestions of Ld. APP and further denied to identify the accused persons. He further deposed that he does not remember as to whether the incident in question took place on 15.09.2016 as considerable time has been lapsed.
5. There is one more eyewitness to the case namely Ashok Kumar but he was not mentioned as a witness in the list of witnesses in column number 13 of the chargesheet. Since, the prosecution has cited only one independent/public witness in the present matter, who is the complainant himself and he has turned hostile to the case of prosecution. The identity of accused person and case property in a criminal trial is of paramount importance ANKUR and no person can be indicted for criminal liability, unless his PANGHAL Digitally signed by identity is established beyond any shadow of doubt. In the ANKUR PANGHAL Date: 2022.11.28 21:39:03 +05'30' Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 4 of 12 present case, since the complainant/eyewitness of the case has not supported the version of the prosecution and the other eyewitness has not been cited in the list of witnesses by the prosecution, no fruitful purpose will be served to examine other witnesses as they are formal in nature and even if their testimonies ever taken together, they will not establish the guilt of the accused.
6. Prosecution evidence was closed, vide separate order passed on 15.11.2022, as recording of any further prosecution evidence in the present case would result in to wastage of judicial time, money, resources and will also cause unnecessary operation to the accused persons who have anyhow faced the ordeal of the trial in the present case for last five 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 time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion of a future date."
6.1. Right to speedy trial is constitutionally guaranteed fundamental right of the accused persons. The present case pertains to an FIR of the year 2016 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 ANKUR violation of right to speedy trial of the accused. It has been held PANGHAL Digitally signed by in P.Ramchandra Rao vs. Satte of Karnataka AIR 2022 SC ANKUR PANGHAL Date: 2022.11.28 21:39:17 +05'30' Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 5 of 12 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.
7. 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 persons were recorded without oath under section 281 read with section 313 CrPC on 23.11.2022. In reply, the accused person stated that they have been falsely implicated in the present case. Thereafter, they stated that they do not wish to lead evidence in their defence and the same was closed.
8. 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.
9. 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
10. Per contra, the Ld. counsel for the accused has PANGHAL Digitally signed by argued that the state has failed to establish its case beyond ANKUR PANGHAL Date: 2022.11.28 21:39:34 +05'30' Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 6 of 12 reasonable doubt. Ld. Counsel has argued that main witness has turned hostile and other eyewitness has not been cited as a witness in the list of witnesses by the prosecution. Ld. counsel has argued that the main 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 persons be acquitted for the said offences.
11. The accused persons have been charged for the offence under section 392/34 IPC. For offence under section 392 IPC, it has to be proved that accused committed either theft or extortion amounting to robbery, 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 Colter attempted to cause death, heart or wrongful restraint to the victim.
12. 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.
13. The main witness of the prosecution 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 ANKU Rohtash Kumar vs. State of Haryana (2013) 14 SCC 434, as R Digitally signed by ANKUR PANGHAL under: - PANG Date: 2022.11.28 21:39:49 +05'30' Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 7 of 12 HAL "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."
14. 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 has failed to identify the accused persons. Further, he has also submitted that he does not remember as to whether the incident in question took place on 15.09.2016 and has submitted that considerable time has lapsed from the date of incident. Although, the witness has admitted his signatures on the complaint, Ex. PW1/A at point A, made by him to the police, that does not prove the guilt of the accused person rather it is only indicating the fact that a complaint was given by the complainant/PW1 regarding the incident in question. TIP was conducted in the present matter but the accused persons refused to participate in the TIP proceedings stating that their photographs have already been taken by police at police station. Therefore, there is nothing on record to connect the accused persons with the commission of the offence.
15. The other eyewitness namely Ashok has not been cited as a witness in the list of prosecution. In the case of Surender Kumar vs. State of Haryana, (2011) 10 SCC 173, the Apex Court held that a failure on part of the prosecution in non- examining the two children, aged about section 4 years, respectively, when both of them were present at the site of the ANKUR PANGHAL crime, amounted to failure on part of the prosecution. In State of Digitally signed by H.P. v. Gian Chand, (2001) 6 SCC 71, the Apex Court, while ANKUR PANGHAL Date: 2022.11.28 21:40:04 +05'30' Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 8 of 12 dealing with non-examination of material witnesses have expressed that: -
"14 ... Non-examination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record, howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court leveled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution. The Court has first to assess the trustworthiness of the evidence adduced and available on record. If the Court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence which tough available has been withheld from the Court then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise."
15.1. In Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, the Apex Court has held that it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of ANKUR Digitally by ANKUR signed such other witnesses may not be material. In such a case the court PANGH PANGHAL Date:
2022.11.28 AL 21:40:20 +05'30' Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 9 of 12 ought to scrutinise the worth of the evidence adduced. The Court should pose the question whether in the facts and circumstances of the case, it was necessary to examine such other witness. If so, whether such witness was available to be examined and yet was being withheld from the court. If the answer is positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.
15.2. Recently, the Hon'ble High Court of Allahabad in the judgment titled as Babu Pasi and Another vs. State of U.P., 2022 SCC OnLine All 119 : (2022) 3 ALL LJ 20 held as:-
"101. From the aforesaid authorities, it is quite vivid that non- examination of material witnesses would not always create a dent in the prosecution's case. However, as has been held in the case of State of H.P. v. Gian Chand (supra), the charge of withholding a material witness from the Court levelled against the prosecution should be examined in the background of facts and circumstances of each case to find out whether the witnesses were available for being examined in the Court and were yet withheld by the prosecution. That apart, the Court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on. There may be other witnesses available who could also have been examined but were not examined. Another aspect which is required to be seen whether such witness or witnesses are the only competent witnesses who could have been fully capable of explaining correctly the factual situation."
15.3. In the instant case, the complainant/PW1 has turned hostile and his testimony cannot be considered worthy to be accepted and acted upon and there was an eye witness namely Ashok who could have been examined but have not been cited as ANKU Digitally signed by a witness in the list of prosecution and he was a witness, who if R ANKUR PANGHAL PANG Date:
2022.11.28 examined could explained the factual situation correctly. The eye HAL 21:40:35 +05'30' Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 10 of 12 witness namely Ashok was available for being examined in court as his identity is very well in the knowledge of the complainant but he was withheld by the prosecution as he was not cited as a witness by the IO. Thus, non-examination of material witnesses namely, Ashok, has created a dent in the prosecution's case.
16. Thus, even if the evidence of the hostile witness PW1 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.
17. 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.
17.1. To recapitulate the above discussion, to bring home the guilt of accused persons, the prosecution was required to prove the offence under section 392/34 IPC beyond reasonable doubt. The star witness of the prosecution i.e., the complainant has turned completely hostile and the other eye witness was not cited in the list of witnesses 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 ANKUR ingredients of offences in question and identity of accused PANGHAL Digitally signed by persons and thus, the accused persons are entitled to benefit of ANKUR PANGHAL Date: 2022.11.28 21:40:52 +05'30' doubt.
Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 11 of 1218. Resultantly, the accused persons namely, ROHAN, SUBRATI and SAMSON are hereby found not guilty. They are hereby ACQUITTED of the offences under section 392/34 IPC.
19. File be consigned to record room after due compliance.
Announced in open court on 23.11.2022 in the presence of the accused. The judgment contains 12 pages and each page have been signed by the undersigned.
ANKUR Digitally signed by ANKUR PANGHAL (ANKUR PANGHAL) MM-06, Shahdara District, PANGHAL Date: 2022.11.28 21:41:09 +05'30' Karkardooma Courts, Delhi 23/11/2022 Cr. Case No. 4612/18 State vs. Rohan & Ors. Page 12 of 12