Delhi District Court
State vs . on 29 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 3796/2018
CNR No. -: DLSH02-005290-2018
FIR No. -: 369/2016
Police Station -: Seemapuri
Section(s) -: 392/34 IPC
In the matter of -
STATE
VS.
ALI MOHD.
S/o Rafique Khan,
R/o E-59/729, Kalander Colony,
Dilshad Garden, Delhi.
... Accused person
1. Name of Complainant :- Neera Sharma
2. Name of Accused person :- Ali Mohd.
3. Offence complained of or :- 392/34 IPC
proved
4. Plea of Accused person :- Not Guilty
5. Date of Commission of offence :- 10.03.2016
6. Date of Filing of case :- 08.06.2018
7. Date of Reserving Order :- 29.04.2023
8. Date of Pronouncement :- 29.04.2023
9. Final Order :- Acquitted
Argued by -: Sh. Parmod Kumar, Ld. APP for the State.
Sh. S.K.Tiwari, Ld. Counsel for accused.
JUDGMENT
1. The case of prosecution in brief is that on 10.03.2016 at about 09:30 p.m. near petrol pump in front of Metro Station, Dilshad Garden, Delhi the accused in furtherance of common intention, along with CCL Sandeep, committed robbery of ear rings being worn/carried by the complainant. As such, it is alleged that the accused person have committed the ANKUR Digitally by ANKUR signed PANG Date:
PANGHAL 2023.04.29 offences punishable under section 392/34 of the Indian Penal HAL 15:45:41 +05'30' Cr. Case No. 3796/18 State vs. Ali Mohd Page 1 of 8 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 person was arrested. Relevant record was collected. Final report under section 173 CrPC, was prepared against the abovenamed accused person and chalan was presented in the court on 08.06.2018. After taking cognizance of the offence, the accused person was summoned to face trial.
3. On his appearance, a copy of chargesheet was supplied to him in terms of section 207 of CrPC. On finding a prima facie case against the accused person, charge under section 392/34IPC was framed against the accused person on 26.04.2019. The accused person pleaded not guilty and claimed trial.
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 :- Neera Sharma (Complainant) PW2 :- Raj Kumar (Eye Witness) DOCUMENTARY EVIDENCE Ex. PW1/A :- Statement of complainant Mark A :- TIP Proceedings Ex. PW1/B :- Arrest memo of accused ANKUR Digitally by ANKUR signed PANGH PANGHAL Date: 2023.04.29 AL 15:46:03 +05'30' Cr. Case No. 3796/18 State vs. Ali Mohd Page 2 of 8 4.1. Neera Sharma (PW-1) in her examination in chief stated on oath that on 10.03.2016, at about 09:30 pm, she along with her son Raj Kumar was going to attend a marriage party by bus and some boys forcibly snatched her ear rings (jhumki) from her ears and ran away. She further deposed that since it was night time, they went to her paternal home. She further stated that she cannot identify the snatchers. She further stated that her statement was recorded by police which is Ex.
PW1/A. Further she stated that site plan was prepared. Thereafter, she stated that on 02.04.2016, she along with her son Raj Kumar visited Tihar Jail and participated in TIP proceedings but she could not identify the snatchers.
4.2. PW-1 was cross-examined by Ld. APP for state wherein she denied the suggestion that the accused is one of the snatchers who had snatched her ear rings. She also denied the suggestion that accused was arrested by police at her instance, however she admitted her signatures on arrest memo Ex. PW1/B at point A. She denied all other suggestions put to her by Ld. APP pertaining to apprehension of co-accused Sandeep or showing the spot to police.
4.3. PW-1 was not cross-examined by the Ld. Counsel for accused despite opportunity being given to him in that regard.
5. Raj Kumar (PW-2) was examined-in-chief on 06.02.2020 wherein he deposed that on 10.03.2016 at about 09:30 PM, he along with his mother Neera Sharma was going to attend a marriage party at Shalimar Garden and they were going by bus. He further stated that some boys forcibly snatched ear ANKUR Digitally signed rings (jhumki) from ears of his mother and ran away from the PANG by ANKUR PANGHAL Date: 2023.04.29 HAL 15:46:19 +05'30' Cr. Case No. 3796/18 State vs. Ali Mohd Page 3 of 8 spot. He further stated that since it was night hours, they went to paternal home of his mother. He also stated that he cannot identify the snatchers of gold Jhumki of his mother. Furthermore, he stated that they had shown spot to police and statement of his mother was recorded by the police. Thereafter, on 02.04.2016, he along with his mother had visited Tihar Jail and participated in TIP proceedings but he could not identify the snatchers. He also stated that police did not record his statement.
5.1. PW-2 was cross-examined by Ld. APP for state wherein he had denied the suggestion that accused is the same person who had snatched ear rings of his mother. He also denied the suggestion that accused was arrested by police at his instance, however he admitted his signatures on arrest memo Ex. PW1/B at point B. He denied all other suggestions put to him by Ld. APP pertaining to apprehension of co-accused Sandeep or showing the spot to police.
5.3. PW-2 was not cross-examined by the Ld. Counsel for accused despite opportunity being given to him in that regard.
6. Prosecution evidence was closed, vide separate order passed on 25.04.2023, 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 person who have anyhow faced the ordeal of the trial in the present case for last four and half 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 ANKUR Digitally signed by ANKUR PANG PANGHAL of Delhi) 104 (2003) DLT 510 wherein it was held that: - Date: 2023.04.29 HAL 15:46:32 +05'30' Cr. Case No. 3796/18 State vs. Ali Mohd Page 4 of 8 "...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 person. 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 person 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.
7. Thereafter, since nothing incriminating has come on record against both the accused person recording of his statement under section 313 CrPC was dispensed with.
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 Digitally evidence of hostile witness can be read on material points and it ANKUR signed ANKUR PANGH PANGHAL by Date:
AL 2023.04.29 15:46:46 Cr. Case No. 3796/18 State vs. Ali Mohd Page 5 of 8 +05'30' 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.
10. Per contra, the Ld. counsel for the accused person 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 person be acquitted for the said offences.
11. The accused person has 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 caused or 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 witnesses of the prosecution i.e., PW-1 and PW-2 have 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 ANKU Digitally signed by evidentiary value of hostile witness, it was observed by the Apex R ANKUR PANGHAL PANG Date:
2023.04.29 Cr. Case No. 3796/18 State vs. Ali Mohd Page 6 of 8 15:46:59 HAL +05'30' Court in the case of 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."
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 (complainant) has deposed that she could not identify the accused person. She failed to identify the accused person in court as well as during investigation in TIP proceedings. PW-2 is another eye witness, who has also failed to identify the accused person during trial as well as during investigation. Therefore, there is nothing on record to connect the accused person with the commission of the offence.
15. In the instant case, the complainant/PW1 and PW2 have turned hostile and their testimony cannot be considered worthy to be accepted and acted upon.
16. Thus, even if the evidence of the hostile witnesses PW1 and PW2 is considered partly, there is nothing to implicate the accused person 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 person are entitled ANKUR Digitally by ANKUR signed PANG PANGHAL Date:
2023.04.29 HAL 15:47:11 +05'30' Cr. Case No. 3796/18 State vs. Ali Mohd Page 7 of 8 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 person, 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 as well as other public witness i.e., PW-2 have turned completely hostile, which has created a dent in the prosecution's case. There is no evidence to link the accused person with the crime charged against him. 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 person is entitled to benefit of doubt.
18. Resultantly, the accused person namely, ALI MOHD. is hereby found not guilty. He is 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 29.04.2023 in the presence of the accused. The judgment contains 8 pages and each page have been signed by the undersigned.
Digitally signedANKUR byPANGHAL ANKUR (ANKUR PANGHAL) PANG Date:
2023.04.29 MM-06, Shahdara District, HAL 15:47:24 +05'30' Karkardooma Courts, Delhi 29/04/2023 Cr. Case No. 3796/18 State vs. Ali Mohd Page 8 of 8