Delhi District Court
State vs Mohd. Zaki on 29 April, 2014
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE :NORTH EAST:
KARKARDOOMA COURTS, DELHI
CA No.12/2013
State, G.N.C.T of Delhi,
Through Public Prosecutor .....Appellant.
Versus
Mohd. Zaki, S/o Sh. Mohd. Zaheer,
R/o H. No.C99, Gali No.11,
Opp. Gali No.13, Old Mustafabad, Delhi. .....Respondent.
Case received on assignment : 31.10.2013.
Arguments heard on : 29.04.2014.
Date of judgment : 29.04.2014.
:J U D G M E N T:
1. Aggrieved by the judgment dated 23.08.2013, passed by Ld. MM (NE), KKD : Delhi in a case bearing FIR no.191/2005 U/s 457 IPC PS Gokal Puri, titled as State Vs. Mohd. Zaki, whereby accused (respondent herein) was acquitted of the charges while observing that the prosecution has failed to prove the charge against the accused beyond reasonable doubt, the appellant/prosecution has preferred the present appeal through Addl. Public Prosecutor on 30.10.2013.
2. Briefly stated the facts necessary for the disposal of the appeal are that on 07.06.2010 in between 3.30 to 4.00 a.m at A12/273, Brijpuri, Delhi within the jurisdiction of PS Gokal Puri, accused/respondent had committed lurking trespass by entering into the house of complainant Vikram Singh, a (State Vs. Mohd. Zaki) (CA No.12/2013) Page No. 1 of pages 6 dwelling house, with intention to commit theft in the aforesaid house and thus accused thereby committed an offence punishable U/s 457 IPC. On the basis of the aforesaid, FIR was lodged and the matter was investigated at PS Gokal Puri. After completion of investigation, charge sheet was filed before the trial court where the trial was commenced which was culminated into the pronouncing of the impugned judgment, which has been assailed by the revisionist/State on the following grounds:
(i).the impugned judgment has been passed without application of judicial mind, which renders the entire judgment to be void abinitio.
(ii).Impugned judgment, as passed by Ld. Trial Court is bad in law, as the same has been passed on irrelevant consideration ignoring the relevant material.
(iii).Impugned judgment has been passed by Ld. MM against the principle of natural justice in as much as the same has been passed without giving prosecution an opportunity to examine its all witnesses.
(iv).Ld. Trial Court has committed grave in law by holding that PW1 Vikram Singh and PW2 Triloki Sharma had turned hostile. It has also not been appreciated by Ld. Trial Court that all the material witnesses, who have been examined by the prosecution had identified the accused and had also stated that they handed over the accused to the police officials at the spot itself, but despite that decision of Ld. MM holding them hostile witnesses is surprising and (State Vs. Mohd. Zaki) (CA No.12/2013) Page No. 2 of pages 6 based on surmises and conjectures.
(v).Ld. Trial Court while passing the impugned judgment has committed gross error in law by closing the prosecution evidence vide order dated 22.08.2013, without giving opportunity to prosecution to examine all the material police witnesses including IO SI Ishwari Prasad, to whom the accused was handed over by PW1 in the presence of PW2 & PW3 at the spot.
(vi).Ld. Trial Court has failed to appreciate that PW1 i.e. complainant Vikram Singh has totally supported the case of prosecution and his testimony is well supported by the testimonies of PW2 and PW3, who deposed that accused was apprehended at the spot and handed over to the police officials.
(vii).Further impugned judgment passed by Ld. Trial Court is without reasoning as no reason has been given for holding that why PW1 and PW2 considered as hostile witnesses.
3. I have carefully heard the rival submissions of both the sides. I have also perused the entire material placed on record particularly the impugned judgment, the contents of the appeal specially the grounds taken therein as well as the record summoned from the Trial Court and in my considered opinion, the appeal as filed by the appellant is devoid of substance as it has been failed to point out any material infirmity or illegality in the impound judgment. It is settled preposition of law that the prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trust worthy evidence without reasonable doubt. The case of the prosecution has to (State Vs. Mohd. Zaki) (CA No.12/2013) Page No. 3 of pages 6 stand on its own legs and it can not derive any benefit from the weaknesses or the infirmities, if any, in the defence of the accused. It is not for the accused to prove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts always remains on the prosecution and it never shifts. In the judgment reported as Rajinder Prasad & Ors. Vs. State 1990 (2) C.C. Cases 183 (HC), wherein it has been held that, "If the prosecution fails to prove satisfactorily that the incident took place in the very manner it alleges, the only logical and reasonable inference would be that it had taken place in the a manner different that the one suggested by the prosecution and the benefit thereof would naturally go to the accused. Though the accused are not to prove their innocence, they can always probablize their defence by reference to the facts and circumstances of the case."
In the instant case though PW1 Vikram Singh has narrated about the incident in sequence and also stated that "that person disclosed his name as Mohd. Zaki, who is present in the court". But when the veracity of the witness was tested upon at the time of his cross examination he raised suspicion and stated that "he can not say exactly, but perhaps he is the same person as two years have been elapsed to the incident. When the accused was apprehended by them, he was clean shaved and now he is having beard and mustache". Said deposition on the part of PW1 Vikram Singh made the identification of accused/appellant doubtful. Similarly, PW2 Triloki Sharma was also not sure about the identity of accused/appellant as in his examinationinchief, he categorically stated that "accused is perhaps present in the court, who was apprehended by the public persons. He can not (State Vs. Mohd. Zaki) (CA No.12/2013) Page No. 4 of pages 6 say exactly as more than two years has been elapsed to the incident and he had seen the accused only once." Even during cross examination he reiterated the same version. Likewise, testimony of PW3 Uma Shankar Srivastava, who has seen one person jumping from the roof of his neighbour in the gali, is not worthy of credence, as in his cross examination, he conceded that he had not seen the accused jumping from the roof of the house of any of the neighbour in the gali.
4. For the foregoing reasons, I find no reason to interfere in the findings recorded by Ld. Trial Court and the instant appeal as filed by the appellant contain no merits and therefore, the same is liable for dismissal. Same stands dismissed accordingly.
5. TCR alongwith the copy of the judgment be sent back to the Ld. Trial Court.
6. Appeal file be consigned to Record Room after completion of necessary formalities.
(Announced in open (RAKESH KUMAR)
Court on 29.04.2014) Addl. Sessions Judge/North East
Karkardooma Courts, Delhi
(State Vs. Mohd. Zaki) (CA No.12/2013) Page No. 5 of pages 6
CR No.64/2011
State Vs. Suman Kumar @ Pappu & Anr.
29.04.2014
Present: Sh. Dharam Chand, Ld. Addl. PP for State/appellant.
Ld. Counsel for respondent.
Arguments heard.
Put up at 4.00 p.m for orders.
(RAKESH KUMAR)
ASJ02 (NE)/KKD/DELHI
29.04.2014
29.04.2014 (at 4.00 p.m.)
Present: As before.
Vide a separate judgment, appeal of the appellant stands disposed off.
TCR alongwith the copy of the judgment be sent back to the Ld. Trial Court.
Appeal file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ02 (NE)/KKD/DELHI 29.04.2014 (State Vs. Mohd. Zaki) (CA No.12/2013) Page No. 6 of pages 6