Delhi District Court
State vs . Nain Sheikh on 5 January, 2019
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR NO. DL CT020002972003
CIS No. 295494/16
State Vs. Nain Sheikh
FIR No. 557/02
PS. Timar Pur
U/s. 392/34 IPC
JUDGMENT
1) The date of commission of offence : 09.12.2002
2) The name of the complainant : Ranjeet Singh @Kaku
3) The name & parentage of accused : 1. Kaushar Ali S/o. Late Sh Rafiq Ali.
R/o. H.No. 71 Block Shastri Park, Delhi.
2. Sagar Yadav S/o Lalji (Since proclaimed person vide order dated 09.09.2003)
3. Lal Chand @ Lal S/o Faujdaar (Since discharged vide order dated 07.06.2017)
4. Nain Sheikh S/o Rehmat Sheikh (Since proclaimed person vide order dated 30.11.2007)
4) Offence complained of : 392/34 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 05.01.2019 Date of Institution : 09.05.2003 Judgment reserved on : 05.01.2019 Judgment announced on : 05.01.2019 BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused Kaushar Ali is that on 19.12.2002 at about 5:30 AM near Vashisht Dharam Kanta, Main Road Burari within the jurisdiction of PS Timar Pur he along with his associates Sagar Yadav(since PO), Lal Chand (Since discharged vide order dated 07.06.2017 and Nain Sheikh(since PO) committed robbery of 9 boxes of electric wires which were in possession of complainant Ranjit Singh and Bhadur Singh.
2) After completion of investigation, charge sheet was filed against the accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused. Arguments on point of charge were heard. Vide order dated 24.02.2012, a charge u/s. 392/34 IPC was framed upon the accused, to which he pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined six witnesses. The victims (Ranjit Singh and Bhadur Singh) and Sh Yogesh Kumar, the driver of Mini Bus in which two accused persons fled away from the spot, failed to identify the accused. The investigating officers SI Rakesh and SI Shivraj Singh already dropped from list of witnesses by Ld Predecessor of this court vide order dated 17.12.2017. The accused has not disputed the MLC of injured and the TIP proceedings dated 03.01.2003. The statement of accused per section 294 Cr.PC was recorded separately today in the court. The other witnesses are formal witnesses being witnesses to the investigation at different points. Their examination would have been no consequence as the identification of accused being offender could not have been proved on record as PW2, PW3 and PW7 turned hostile. Thus the prosecution evidence was closed.
4) After conclusion of prosecution evidence, statement of accused was recorded in which he denied all the allegations and did not wish to lead DE.
5) I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) The complainant of the present case Sh Ranjit Singh was examined as PW3 by the prosecution. PW3 deposed that in the month of December 2002 he along with Bhadur(PW2) came at Burari in truck no. RJ 02 4412 which was loaded with articles of Havels Company. He deposed that the vehicle was parked at the road side. He deposed that about 5:30 AM he heard some noise for which he and Bhadur wake up and they noticed 45 persons on the back side of truck. He deposed that those persons were removing the cartons from the truck and loading the same in tempo. He deposed that they were threatened to be killed if any noise be made. He deposed that he gave the complaint Ex.PW3/A to the police and took the truck to the police station. He deposed that he cannot identify those persons who committed robbery of the articles. PW3 was declared hostile and was crossexamined by Ld APP for the State in which he denied that he had stated in his statement Ex.PW3/A that he can identify the persons who committed theft if they produced before him. He denied that one person showed a knife and threatened them to kill. He denied that he is deliberately not identifying the accused being won over by him.
8) Perusal of testimony of complainant/PW3 reveals that he did not support the case of prosecution as far the identification of the accused being one of the offender of the present case is concerned. His testimony is categorical that he cannot identify any of the offenders. He even denied that he made a statement to the police that he can identify offenders. Thus the complainant of the present case not supported the case of prosecution qua the identification of accused. Thus the identity of the accused not came on record in the testimony of PW3.
9) Further qua the use of a knife by one of the person during the incident the complainant not supported the case of prosecution. PW3 specifically denied that one of the person shown a knife and threatened to kill him and PW2. This is the direct contradiction from the rukka/Ex.PW3/A.
10) Moreover the identification of the stolen articles also not came on record in the testimony of PW3 unambiguously. In the examinationinchief it is simply mentioned that after looking at photographs ExP1 witness correctly identifies the same. This is ambiguous. It is not came in the testimony of PW3 that the articles which are depicted in the photographs are those which were stolen from the truck. When the PW3 was crossexamined by Ld Defence Counsel he deposed that he cannot say whether the cartons shown in the photographs are same which were removed from the truck or not. On this aspect there is no reexamination on the part of the State. Thus vide testimony of PW3 it is not came on record as to whether the articles appearing in photographs ExP1 are of stolen property or not. Thus the complainant even not proved the identification of the case property.
11) In the crossexamination PW3 deposed that the truck was taken to the police station before the arrival of the police at the spot. This is in contradiction to the case of the prosecution as per which after receiving DD no.7 Dated 09.12.2002 SI Rakesh Kumar along with other staff reached at the spot where they found the truck in question standing at the road side. This material contradiction leads to the doubt in the entire investigation. If the truck was already taken to the police station than this impliedly makes out that the rukka and the other documents were not prepared at the spot. This creates a gaping hole in the entire investigation and thus in the case of the prosecution.
12) The person who was with the complainant at the time of incident and was the driver of the truck namely Sh Bhadur Singh was examined as PW2 by the prosecution. PW2 deposed that he along with Ranjit Singh (PW3) came at Burari in a truck which was loaded with articles of Havels Company. He deposed that they were sleeping in the truck and at about 5:30 AM he felt some movement in the truck. He deposed that he came down from the truck and started running but was attacked with a knife by a person. He deposed that the boy who caused injuries to him was in muffled face. He deposed that he cannot identify those persons. PW2 was also declared hostile and was crossexamined by Ld APP for the State in which he deposed that he cannot admit or deny as to whether the accused present in the court was amongst the persons who committed robbery. He denied the suggestion that he is not deliberately not identifying the accused being won over by the accused. He denied the suggestion that he tried to apprehended the offenders and in that process he was given injuries by a knife. Thus in the testimony of PW2 also the identification of the accused being one of the offenders not came on record. The testimony of PW2 is also of no avail as far as the identification of accused is concerned.
13) The other material witness examined on behalf of prosecution is Sh Yogesh Kumar who was examined as PW7 by the prosecution. PW7 was the conductor of a mini bus in which two offenders fled away from the spot. PW7 deposed that on the day of incident some passengers boarded the bus at Dharamkanta and thereafter they reached at ISBT bus terminal. He deposed that he does not know the accused and does not know any fact of the present case.
14) Since PW7 also not supported the case of prosecution he was also crossexamined on behalf of the State. PW7 deposed that his statement was never recorded by the police. His statement U/s 161 Cr.PC was read over to him but he denied to make any such statement to the police. He denied each and every suggestion of Ld APP. He was not able to identify the accused. Thus in the testimony of PW7 also the identification of the accused as one of the person who boarded the mini bus after the incident not came on record. The testimony of PW7 is also not incriminating to the accused.
15) The other witness are formal witness being the duty officer who registered the present case, the workers of Havels company/PW1 who was not the eye witness and the person who took part in the investigation at one point or other. There is no need to discuss their testimony as that would be of no consequence in view of the fact that the public witnesses turned hostile qua the identification of accused. The mere fact that the accused refused judicial TIP during the investigation is not sufficient in itself to convict the accused when none of public witnesses including victim not identified the accused during the trial. The identification of the accused being offender not proved on record.
16) To sumup the complainant, the driver of truck in question and the conductor of the mini bus in which some of the offender allegedly fled away from the spot after the incident not supported the case of prosecution. The identification of the accused being offender not proved. It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
17) In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubts. Accused is entitle to benefit of doubt. Accordingly, I acquit the accused Kaushar Ali S/o Late Rafiq Ali from the charges framed in the present case. Section 437A Cr.PC complied with. File be consigned to Record Room after due compliance with the liberty to prosecution to revive the same as and when accused persons Sagar Yadav and Nain Sheikh be apprehended.
Digitally
signed by
KAPIL KAPIL KUMAR
Date:
KUMAR 2019.01.05
16:50:16
+0530
Announced in open court (Kapil Kumar)
on 05.01.2019 MM5/Central District
Tis Hazari Courts/Delhi,