Delhi District Court
State vs . on 27 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 74607/2016
CNR No. -: DLSH02-000034-2003
FIR No. -: 304/2002
Police Station -: Seemapuri
Section(s) -: 379/411/34 IPC
In the matter of -
STATE
VS.
IRFAN
S/o Nasir Ahmed,
R/o C-89, Gali No 09, Ashok Vatika,
Pasonda, Ghaziabad, U.P.
... Accused Person
1. Name of Complainant :- Inder Singh
2. Name of Accused Person :- Irfan
3. Offence complained of or :- 379/411/34 IPC
proved
4. Plea of Accused Person :- Not Guilty
5. Date of Commission of offence :- 17.08.2002 &
09.10.2022
6. Date of Filing of case :- 24.01.2003
7. Date of Reserving Order :- 27.04.2003
8. Date of Pronouncement :- 27.04.2003
9. Final Order :- Acquitted U/s.
379/411 IPC
Convicted U/s.
174A IPC
Argued by -: Sh. Parmod Kumar, Ld. APP for the State.
Sh. S.P. Thakur, Counsel for the accused.
JUDGMENT
1. The case of prosecution in brief is that on 17.08.2002 at about 11:15 AM, at A-29 Dilshad Colony, Delhi in Digitally signed ANKUR byPANGHAL ANKUR furtherance of his common intention stolen the motorcycle PANG Date:
2023.04.28 HAL 10:06:49 +05'30' Cr. Case No. 74607/16 State vs. Irfan Page 1 of 8 bearing no. DL-5SJ-7184 of the complainant, namely Inder Singh and on 09.10.2022 at about 01:30 at Maisanpur, Tihara Area Nangar, Dist. Bijnor, U.P., accused got recovered above said stolen motorcycle. As such, it is alleged that the accused person has committed the offences punishable under section 379/411/34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which the present FIR was lodged in PS Seemapuri.
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 24.01.2003. 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 them in terms of section 207 of CrPC. On finding a prima facie case against the accused person, charge under section 379/411 IPC was framed against the accused person on 20.04.2004. The accused person pleaded not guilty and claimed trial.
4. During the course of trial, the accused was declared proclaimed offender on 15.07.2011 and was apprehended on 29.08.2022. Accused was granted bail, thereafter, on 31.08.2022. Supplementary chargesheet U/s 174A IPC was filed against the accused on 19.01.2023.
ANKUR Digitally signed by ANKUR PANG PANGHAL Date: 2023.04.28 HAL 10:07:02 +05'30' Cr. Case No. 74607/16 State vs. Irfan Page 2 of 8 4.1. Thereafter, on 27.04.2023 on finding a prima facie case against the accused person, charge under section 174A IPC was framed against the accused person. The accused person pleaded guilty and did not claim trial. On his plea of guilt accused was held guilty and convicted for the offence punishable U/s 174A IPC.
5. During the trial, in order to prove its case, prosecution examined only two witnesses i.e., PW1 namely ASI Shahid Khan (Duty Officer) and PW2 namely Inder Singh (complainant). PW2 is the star witness as well as complainant in the present case. PW2 was examined on 12.10.2006 who deposed that he does not remember the date and month of incident but it was the year 2022. He further sated that on that day he had gone to Dilshad Colony to meet his friend namely Raj Kumar at his residence. He reached there at about 10/11 a.m., and he had parked his motorcycle Hero Honda Splendour number DL-5SJ- 7184 in front of the house of Raj Kumar and he had gone inside the house to meet his friend. After about 30 minutes, when he came back, he found that his motorcycle was not there as it was stolen by someone. He made a call at 100 number and his statement Ex. CW1/A. He also showed spot to police and took the motorcycle on superdari vide application Ex. PW2/A. 5.1. PW2 further stated that his motorcycle was stolen again on 27.01.2005 from the area of PS welcome, MCD Parking. He further stated that RC of the motorcycle was stolen as the same was lying in the motorcycle.
5.2. PW2 was cross-examined by Ld. Counsel for ANKUR Digitally signed by ANKUR PANG PANGHAL Date: 2023.04.28 accused wherein he deposed that he cannot produce the HAL 10:07:14 +05'30' Cr. Case No. 74607/16 State vs. Irfan Page 3 of 8 motorcycle in question before court. He further stated that he does not know the accused.
6. 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 and no person can be indicted for criminal liability, unless his identity is established beyond any shadow of doubt. In the present case, since the complainant/eyewitness of the case has not supported the version of 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.
7. Prosecution evidence was closed, vide separate order passed today, as recording of any further prosecution evidence in the present case will result in to wastage of judicial time, money, resources and will also cause unnecessary operation to the accused person who has anyhow faced the ordeal of the trial in the present case for last twenty 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 Digitally purpose of formally completing the proceedings to pronounce signed by ANKUR ANKUR PANGHAL the conclusion of a future date." PANGHAL Date:
2023.04.28 10:07:31 +05'30' Cr. Case No. 74607/16 State vs. Irfan Page 4 of 8 7.1. Right to speedy trial is constitutionally guaranteed fundamental right of the accused person. The present case pertains to an FIR of the year 2002 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.
8. Thereafter, since nothing has come on record against the accused, recording of his statement U/s 313 CrPC was dispensed with. Thereafter, he stated that he does not wish to lead evidence in his defence and the same was closed.
9. 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.
10. 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 Digitally signed by ANKUR PANGHA PANGHAL Date: 2023.04.28 L 10:07:43 +05'30' Cr. Case No. 74607/16 State vs. Irfan Page 5 of 8
11. Per contra, the Ld. counsel for the accused has argued that the state has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that 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.
12. The accused person has been charged for the offence under section 379/411/174A IPC. Accused Irfan has already been convicted for the offence punishable under section 17AIPC as per his plea of guilt on 27.04.2023. For offence under section 379/411 IPC, it has to be proved that accused committed theft and was found in possession of stolen property. For both the things the identity of accused as well as stolen property has to be proved.
13. 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.
14. The main witness of the prosecution has turned hostile in the present case on the point of identity of accused person and has also not produced the case property being the superdar stating that the case property has been stolen. 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 ANKUR Digitally signed to the evidentiary value of hostile witness, it was observed by the by ANKUR PANG PANGHAL Date: 2023.04.28 HAL 10:07:55 +05'30' Cr. Case No. 74607/16 State vs. Irfan Page 6 of 8 Apex 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."
15. 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. PW2 has failed to identify the accused person and has stated that he does not know the accused person. PW2 has also submitted that he cannot produce the stolen property i.e. motorcycle as the same has been stolen.
16. In this case, it is pertinent to note that no TIP proceedings were conducted. There is no other witness of the incident. The identity of the accused as the person who committed theft and the identity of case property remains unproved as the case property has not been produced. Therefore, there is nothing on record to connect the accused with the commission of the offence.
17. Thus, even if the evidence of the hostile witness 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.
18. 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 ANKU Digitally signed by R ANKUR PANGHAL PANG Date:
2023.04.28 Cr. Case No. 74607/16 State vs. Irfan Page 7 of 8 10:08:05 HAL +05'30' to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution.
18.1. To recapitulate the above discussion, to bring home the guilt of accused person, the prosecution was required to prove the offence under section 379/411 IPC beyond reasonable doubt. The star witness of the prosecution i.e., the complainant has turned completely hostile. There is no evidence to link the accused person with the crime charged against him.
His identity as culprit is not proved during the trial. 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 identity of accused person and thus, the accused person is entitled to benefit of doubt.
19. Resultantly, the accused person namely, IRFAN S/o NASIR AHMED is hereby found not guilty. He is hereby ACQUITTED of the offences under section 379/411 IPC.
19.1. However, the accused person namely IRFAN s/o NASIR AHMED is hereby convicted U/s. 174A IPC on his plea of guilt.
20. File be consigned to record room after due compliance.
Announced in open court on 27.04.2003 in the presence of the accused. The judgment contains 8 pages and each page have been signed by the undersigned.
ANKUR Digitally by ANKUR signed (ANKUR PANGHAL) PANGHA PANGHAL Date: 2023.04.28 MM-06, Shahdara District, L 10:08:15 +05'30' Karkardooma Courts, Delhi 27/04/2023 Cr. Case No. 74607/16 State vs. Irfan Page 8 of 8