Delhi District Court
16.In Case Titled State Of Punjab vs . Sohan Singh 1993 Scc Criminal 114 , on 29 May, 2009
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IN THE COURT OF SHRI SURINDER S. RATHI : ADDL. SESSIONS JUDGE
FAST TRACK COURT: ROOM NO.272 : TIS HAZARI COURTS : DELHI
SC NO: 32/09
FIR NO: 05/03
PS Roop Nagar
U/S 399/402 IPC
JUDGMENT
1 Sl. No. of the Case SC NO: 32/2009
`2 Date of Committal to Sessions 31.8.2004 3 Received by this court on transfer 26.3.09 4 Name of the complainant Inspector Balbir Singh 5 Date of commission of offence 11/01/03 6 Name of accused, parentage and 1.Md. Mehraj S/o Mohd. Munne R/o address Nathore, Jyotiba Phule Nagar, Muradabad, UP.
2.Muzahir S/o Maqsood Hussain R/o Nathore, Jyotiba Phule Nagar, Muradabad, UP.
3.Rahis Ahmad S/o Abdul Rashid R/o PO Sabhal, District Muradaba UP.
4.Naresh S/o Sh. Haram R/o Jhuggi N-
101/68, C.D. Block Subzi Market, Jahangir Puri, Delhi.
7 Offence complained of U/s 399/402 IPC & 25 Arms Act 8 Plea of guilt Pleaded not guilty 9 Final order ACQUITTED 10 Date on which order reserved 29.5.09 11 Date on which order announced 29.5.09 Contd/......
2BRIEF REASONS FOR DECISION
1. Case of the prosecution in brief is that on 11.1.2003 when Inspector Balbir Singh of PS Roop Nagar was present alongwith his staff at Roshanara Road Chowk, he received a secret information that few armed boys at Jheel Roshana Park are making a plan to commit dacoity and that if raided they can be caught. Inspector Balbir Singh constituted a raiding party alongwith HC Surender and HC Umed and Ct. Kuldeep , Ct. Suresh, Ct. Hawa Singh and Ct. Shailesh and reached the spot alongwith secret informer at around 4.30 PM. Ct. Suresh was sent forward to hear the conversation and thereafter on his gesture , the raid was conducted. Five accused persons 1.Md. Mehraj 2.Muzahir
3.Rahis Ahmad 4.Naresh and 5. Mohd. Ikram were arrested . Accused Mehraj was found carrying bag containing the iron rod and plastic rope. Accused Mujahid was found carrying a razor and a packet of chilly powder. Accused Naresh was found carrying a button actuated knife for which a separate FIR was registered. Accused were arrested and articles were seized.
2. After conclusion of investigation, chargesheet was filed. After Contd/......
3compliance of section 207 Cr.P.C the challan was committed to Sessions U/s 209 Cr.P.C. Separate charge was framed against all the five accused U/s 399/402 IPC to which all accused pleaded not guilty and claimed to be tried. During the course of trial on an application accused Ikram was perse found to be juvenile and vide order dated 11.3.2005 , Ld. Predecessor ordered that his trial be separated and be sent to LD. Juvenile Justice Board.
3. During the course of trial prosecution examined 8 witnesses . Thereafter statements of all the four accused persons were recorded in which they claimed that they are innocent and have been falsely implicated. One defence witness was also examined.
4. I have heard arguments of Ld. APP Sh. Irfan Ahmad for State, and Ld. counsel Sh. Ushman Chaudhary on behalf of accused Mohd. Ikram and Ld. Counsel Sh. Akshar Raina Advocate for other remaining accused. I have also carefully gone through the entire judicial record besides perusing the relevant laws involved in the issue in hand.1 Contd/......
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5. At the onset it would be appropriate to have a glance at the deposition made by prosecution witnesses.
6. First witness examined by the prosecution is PW-1, HC, Rajinder Singh.He has proved copy of FIR as Ex. PW1/A and endorsement on rukka as Ex. PW-1/B.
7. PW-2 is Ct. Kuldeep. He has proved sketch of knife as Ex. PW-2/A, Pullanda of knife and seized memo as Ex. PW-2/B. Disclosure statement of accused Naresh as Ex. PW-2/C, personal search of Naresh as Ex. PW- 2/D, Arrest memo as Ex.PW-2/E. Knife as Ex. P-1.
8. Third witness examined by the prosecution is PW-3 Constable Shailender Singh. He has proved seizure of Iron rod recovered from accused Mehraj as Ex.PW-3/A, sketch of Ustra as Ex. PW3/B. Seizure memo of pullinda of Mirchi Powder and Ustra as Ex. PW-3/C, arrest memo of accused Md. Mehraj as Ex. PW-3/D, personal search memo as Ex.
Contd/......
5PW-3/E, arrest memo of accused Rais Ahmed as Ex. PW-3/F, personal search of Rais Ahmed as Ex. PW-3/G, arrest memo of accused Muzahir as Ex. PW-3/H, personal search of Muzahir as Ex. PW-3/I, disclosure statement of all the accused as Ex. PW-3/J, Iron rod as Ex.P-2, one green colour plastic rope as Ex. P-3, one packet of Mirchi Powder as Ex.P-4. Pullanda for Ustra as Ex. P-5 one bag recovered from accused Mehraj as Ex. P-6.
9. Fourth witness examined by the prosecution is PW-4 Constable Suresh Kumar. He narrated on the lines of the PW3 Ct. Shailnder Singh .
10.Fifth witness cross examined by the prosecution is PW-5 Ct. Narender, Police Station Sarai Rohilla. He has proved copy of the DD entry as Ex. PW-5/A. Copy of DD is Ex.PW-5/B .
11.Sixth witness examined by the prosecution is PW-6 H. Ct. Umed Singh. He has proved rukka as Ex. PW-6/A, knife as Ex. P-1.
Contd/......
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12.Seventh witness examined by the prosecution is PW-7 Head Constable, Sripal. He has prove site plan as Ex. PW-7/A,
13.Eighth witness examined by the prosecution is PW-8, Inspector Balbir Singh. He has proved rukka as Ex. PW8/A, site plan as Ex. 8/B, He has also proved case property i.e. iron road as Ex. P-2, plastic rope as Ex. P- 3, red chilly powder as P-4, Ustra as P-5 and one bag as Ex. P-6.
14.In their defence accused persons examined one defence witness Pavitra Kumar as DW1 as per whom he is a Commission Agent at Azad Pur Subzi Mandi and accused were working there when they were arrested by police .
15.Perusal of entire record shows that even though the arrests were made from a public place in broad day light, but still no public person was joined the investigation.
Contd/......
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16.In case titled State of Punjab Vs. Sohan Singh 1993 SCC Criminal 114 , while upholding the acquittal order of the High Court , Hon'ble Supreme Court observed:
"no independent witness has been examined, even though the incident is alleged to have taken place in broad day light on a public road in an inhabited area.'' In another case titled State of Rajasthan Vs. Teja Singh and Ors. 2001 II AD (SC) 125, it has been observed by Hon'ble Supreme Court that:-
"........ by not examining those independent witnesses, the prosecution has failed to produce the available independent corroborative evidence to support the evidence of interested witness... because of which the High Court was justified in drawing adverse inference against the prosecution."
17.Depositions of members of raiding team namely PW2 Ct. Kuldeep, PW3 Ct. Shailender Singh, PW4 Ct. Suresh Kumar, PW6 H.C. Umed Singh, PW7 HC Sripal and PW8 Inspector Balbir Singh shows that they have casually narrated a crammed story in the parrot like fashion in their examination in chief.
Contd/......
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18.Close scrutiny of the cross examination of witnesses shows that they have given contradictory versions on vital aspects. Upon being asked about the availability of light at the spot, PW3 in his cross examination deposed that there was street light in the park. Whereas in the site plan Ex. PW8/B no such street light has been shown. Further PW8 Inspector in his cross examination stated that the raiding party was at the distance of 10-15 meters where the signal was received whereas PW4 stated in his cross examination that they were at the distance of 5-7 paces.
19.In AIR 1974 SC 21 Hon'ble Supreme Court while observing on appreciation of evidence ruled that -
"although court should disengage truth from falsehood but if they are so inextricably mixed up down to the core that disengagement is impossible, court can reject evidence in toto."
Contd/......
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20. The above shortcomings in the evidence of the prosecution discredits the prosecution story and renders it unbelieveworthy . Owing to above anomalies , prosecution has failed to prove its case against the accused persons beyond shadow of doubt. It is settled legal preposition that benefit of doubt shall always be given to the accused.
21.In case titled Partap Vs. State AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that :
''The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.'' In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
''An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the Contd/......10
prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words , the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the Sessions Judge had reminded himself of the above mentioned basic or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided.'' In case titled Sharad Birdhichand Sarda AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that :
"Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of the accused was sought to be established by evidence."
In case titled Manzoor Vs. State of U.P. (1982) 2 SCC 72 while dealing Contd/......11
with the acquittal of accused in benefit of doubts it has been observed by Hon'ble Supreme Court that :
"Prosecution failing to prove the guilt of accused satisfactorily beyond all reasonable doubt-Hence, the accused must be acquitted."
22.Concluding the discussion, for the forgoing reasons, I am of the considered view that prosecution has miserably failed to conclusively prove the charges framed against the accused persons and to connect either of the accused persons with alleged offences. All the accused namely 1.Md. Mehraj 2.Muzahir 3.Rahis Ahmad 4.Naresh as such stand acquitted of the charges U/S 399/402 IPC . Bail bonds of accused persons stand canceled, their surety discharged and file be consigned to RR.
ANNOUNCED & DICTATED IN THE OPEN COURT ON : 29.5.2009 ( SURINDER S. RATHI ) ASJ:FTC:DELHI Contd/......