Delhi District Court
The Hon'Ble Sc In Kalyan Kumar Gogoi vs Ashutosh Agnihotri & Anr Air on 27 July, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-01
ROHINI COURTS, DELHI.
TITLE: : State v. Pappu Prasad &. Ors.
FIR NO. : 502/1999
P.S. : Sultanpuri
R-NO. : 535520/2016
Date of commission of offence : 12-5-2009
Name of Informant/complainant : Rajkumar
Name of accused : 1. Pappu Prasad
2. Usha
3. Devi Charan
Offence/s complained of : s. 363/365/344/380/346/506-120B IPC
Cognizance under section/s : s. 363/365/344/380/346/506-120B IPC
Charges framed under section/s : s. 363/365/344/380/346/506-120B IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 01-07-2022
Date of pronouncement : 27-07-2022
Final Order : Acquittal
For the Prosecution : Ld. APP Sh. Pankaj Yadav
For the Defence : Sh. Chandrashekhar
Present : Pritu Raj
M.M.- 01,
Rohini Courts, Delhi.
R. no. 535520/2016 State v Pappu Prasad. Page 1 of 22
JUDGEMENT
1. The accused persons are facing trial for offences s. 363/365/344/380/346/506- 120 B IPC.
2. Stated succinctly, the facts germane for the prosecution of the case is that all accused persons, on or before 12-05-1999 entered into a criminal conspiracy to kidnap one Neetu from the lawful guardianship of Raj Kumar at D-1/41 Sultanpuri Delhi with the result of kidnapping Neetu with the intent to secretly confine her for ten or more days with the intent that her confinement should not be known to any person and also committed theft at the house of the complaint while criminally intimidating Neetu, while she was allegedly kidnapped, leading to the present case .
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident as FIR no. 502/99 on 15-05-1999 and, after investigation, submitted the charge sheet on 25-07-2000 against the aforementioned accused persons. Cognisance was taken vide. order dated 25-07-2000 and provisions of section 207 Cr.P.C. were complied on 05-09-2000.
4. Charges s. 363/365/344/380/346/506-120B IPC were framed and read over to the accused persons, in Hindi, on 04-11-2000 to which they denied the incident and R. no. 535520/2016 State v Pappu Prasad. Page 2 of 22 claimed to be tried.
5. The prosecution, in order to prove the case beyond all reasonable doubt, examined nineteen witnesses in support of its case during the course of trial.
6. PW1 Raj Kumar deposed that on 12.05.1999, he along with his wife, his child and his sister namely Neetu were sleeping in their room. On next morning, when he got up his sister was not found in the room and he got suspicious that she was enticed away or kidnapped by the accused as he along with co-accused Devi Charan and Usha were also not present in their house and before the date of incident, some quarrel took place b/w them and the complainant. He further deposed regarding the missing of his sister, he lodged a complaint Ex. PW1/A and After about 11 months, he received information from Nari Niketan, Jail Road regarding recovery/ finding of his sister and He accordingly went to the nari niketan and got released his sister. He deposed that his sister told him that she was kidnapped by the accused, Devi charan and Usha. He also deposed that the accused along with their associates took the Neetu and some jewellery, one camera and Rs. 4000/- cash from the almirah.
7. PW2 HC Sukhbir Singh deposed that on 13.05.99, he received DD no. 42B Mark A for investigation.
R. no. 535520/2016 State v Pappu Prasad. Page 3 of 22
8. PW3/ victim Neetu deposed that in the night of 13.5.99, she was taken by the accused along with the co-accused and they held the legs of victim and accused Devi Charan has put his hands on her mouth and accused Usha was waiting in the gali. She deposed that accused Devi charan also committed theft of cash, jewellary and camera and along with co-accused took the girl to Delhi Station on a tempo. Accused Devi Charan came back at home and accused Pappu Prasad along with co-accused took her to Gorakhpur village, where he kept her for about 4-5 days thereafter he along with the co-accused took the girl at another place and kept her for 10 days. The accused Pappu Prasad kept PW-3 at different places after that he left her on Gorakhpur station. After that, she reached at Delhi Station by train and some one left her at Naari Niketan. PW-3 stated that till that period she remained in custody of him, he(accused Pappu Prasad) pointed out a knife towards her several times and did not offer her food. In the night of incident, when she cried for help, hepointed out a knife on her at the instance of co- accused Devi Charan so that she could not cry. She correctly identified the accused in the court.
9. PW4 Shanti deposed that on 05, in the year of 1999, accused Pappu Prasad alongwith co-accused Usha and Devi sharan kidnapped Neetu aged about 09 year old. She further deposed that Victim Neetu was found Nari Niketan after almost 12 months of the incident. She further deposed that she resided in the property of accused Devi Charan and accused Pappu Prasad and accused Usha R. no. 535520/2016 State v Pappu Prasad. Page 4 of 22 were also residing in the same property on the top floor.
10. PW5 HC Sanjay deposed that on 11.04.2000 , while posted as MHCM, HC Jagdish deposited one pulanda saled with seal of HRH along with sample seal with FSL form and he registered in register no. 19 at 5127 and sent the same to CFSL through HC Jagdish vide RC no. 13/21/00 and the photocopy of entry was Ex. PW5/A.
11. PW6 Dr. Ajay Kumar deposed that on 03.04.2000 he prepared MLC, Ex. PW6/A of Neetu. No injury was found on the body. PW-6 referred the patient to Gynae department.
12. PW-7 Satpal deposed that on 30.05.2000, he along with ASI Raj Kumar, Ct. Sombir, SI Yashvir Singh and accused Devi Charan reached at Gorakpur. They came to know that this village lies in the Distt. Patrona, UP. Thereafter, they reached at Khirkia village. They further reached at small mauja, name of which was Sohrawa, where at the instance of accused raid was conducted and they came to know that Pappu is damad in this village but his native village is Arju-naha which is in Distt. Khushi Nagar. Thereafter, they reached at concerned PS Kusma and gave the details to SHO. On 30.5.2000, they went to village khirkia along with one lady Ct. Uma Gupta of said PS and father in law namely Jagdish of accused Pappu was asked to accompany them in finding of accused Pappu. Raid R. no. 535520/2016 State v Pappu Prasad. Page 5 of 22 was conducted and effected and both accused Pappu and Usha were arrested vide memo Ex. PW12/A and B and their personal search was conducted vide memo already Ex. PW1/C and PW12/C. Prepared their disclosure statement Ex. PW7/A and 7/B. Transit remand was taken from the court of CJM Khushi Nagar on application Ex. PW12/D. On 31.5.2000, they came back to Delhi and custody of accused was handed over to Insp. Gulab Rai.
13. PW8 Dr. Rekha Jain, Indra Hospital deposed that on 03.04.2000, the patient Neetu was referred to her by CMO for medical examination with the alleged history of kidnapping 10 months back and recovered about 2 days earlier. Patient was throughly examined and found that the patient was conscious, vitals stable. Patient has not attained menarche by that time, secondary sex character was not developed. Local examination there was no mark of fresh injury. Hypen was old torn. Vagina admits one finger. On vagina examination, cervix downward, uterus antiverted. Normal size. Slides made from vaginal discharge and handover to IO. Patient was referred to Radiologist for bone aged determination. PW-8 prepared her detailed report as Ex. PW8/A.
14. PW9 Gulab Rai deposed that on 15.05.1999, while posted at DIO unit North West Distt, further investigation of this case marked to him. On 30.05.99, he received a secret information that the kidnapped girl was in Naari Niketan. He brought her to PS and she told that she was tenant at D-1/41, first floor with her R. no. 535520/2016 State v Pappu Prasad. Page 6 of 22 family and landlord Devi Charan was residing at the ground floor. Accused Usha and Pappu Prasad were residing at the 2nd floor. She told that on 12.05.99, accused Pappu and Usha taken her to railway station with Devi Charan forcibly. Victim Nitu told him that accused Pappu and Usha took her to many places including the house of in-laws of Pappu by telling them that she is daughter of her sister-in-law. Nitu told that she used to tell to the person who was residing there that accused persons have kidnapped her on that both accused persons used to tell them that Nitu is mad. She further deposed that both accused persons confined her at many places and gold ornaments and cash of Rs. 4000/- belongs to bhabhi of Nitu were stolen by both accused persons and they left her on Gorakhpur Railway station and Nitu boarded the train for New Delhi and some body took her to Naari Niketan.
15. W10 HC Krishan Chander deposed that on 15.5.99, while posted at PS Sultan Puri as duty officer from 04.00 PM to 12 night and at about 07 pm, complainant Raj Kumar came in the PS to lodge FIR and on that basis FIR no. 502/99 Ex. PW10/A got registered and handed over to SI Chittar Mal for further investigation.
16. PW11 SI C.M. Meena deposed that on 15.05.99, while posted at PS: S. Puri he received copy of FIR on the complaint of Raj Kumar by DO and thereafter, he informed missing persons squad at Darya Ganj and got flashed WT message R. no. 535520/2016 State v Pappu Prasad. Page 7 of 22 which is Ex. PW11/A and Portraits of said victim were Ex. PW11/B and C. The poster of kidnapped girl was Ex. PW11/D and thereafter, an application for poly test of landlord/ accused Devi Charan was moved and then the case was transferred from him to DIU Cell.
17. PW 12 B P Yadav deposed that on 29.10.99, while posted at DIU(NW) he received the file in FIR no. 502/99 and got flashed the WT message, made search for girl and conducted inquiries.
18. PW-SI Yashvir Singh deposed that on 28.05.2000, the investigation was marked to him and Insp. Gulab Rai handed over the custody of the accused Devi Charan and case file to him. On 29.05.2000, he along with ASI Raj Kumar, Ct. Sombir, Ct. Satpal and accused Devi Charan reached at Gorakpur and they came to know that this village lies in the Distt. Patrona, UP. Thereafter, they reached at Khirkia village. They further reached at small mauja, name of which was Sohrawa, where at the instance of accused raid was conducted and they came to know that accused Pappu is damad in this village but his native village is Arju-naha which is in Distt. Khushi Nagar. Thereafter, they reached at concerned PS Kusma and gave the details to SHO. On 30.5.2000, they went to village khirkia along with one lady Ct. Uma Gupta of said PS and father in law namely Jagdish of accused Pappu was asked to accompany them in finding of accused Pappu. Raid was conducted and effected and both accused Pappu and Usha were arrested vide R. no. 535520/2016 State v Pappu Prasad. Page 8 of 22 memo Ex. PW12/A and B and their personal search was conducted vide memo already Ex. PW1/C and PW12/C. Prepared their disclosure statement Ex. PW7/A and 7/B. Transit remand was taken from the court of CJM Khushi Nagar on application Ex. PW12/D. On 31.5.2000, they came back to Delhi and custody of the accused persons was handed over to Insp. Gulab Rai.
19. PW-13 Jagdish deposed that he is labourer, illiterate and resides at Khirkiyasorana, PS Patrana, Distt. Kushinagar, U.P. His daughter Usha married with Pappu. He stated that accused Pappu along with her daughter Usha came to his house and after some days, they gone to their native village.
20. PW14 Dr. G.D. Gupta, Retd. Principal Scientific Officer, CFSL deposed that on 18.04.00, while posted as PSO at CFSL, CBI, he received one sealed sample which contains two micro slides described as vaginal swab. On the analysis, he did not find any semen in that vaginal swab and prepared his detailed report Ex. PW14/A.
21. PW15- SI Raj Kumar deposed that on 26.05.00, accused Devi Charan was arrested by Insp. Gulab Rai vide memo Ex. PW15/X and on 28.05.00, he joined the investigation with SI Yashvir and on that day, accused Devi Charan took in police remand and they left for Kushi Nagar, U.P. On next day, they reached at Kushi Nagar and with the help of local police they reached at the village of R. no. 535520/2016 State v Pappu Prasad. Page 9 of 22 accused Pappu but the accused was not found there but it was revealed that their village was Arjunwa. They returned back to PS Kasma. On next morning, they met with father-in-law of accused Pappu with the help of local police and W/ Ct. Uma Gupta by reaching village Khidkyia. Accused Pappu and Usha apprehended after reaching village Arjunwa and they arrested vide memo Ex. PW12/A and B and personally searched Ex. PW7/C and PW12/C. Disclosure statement of both accused persons Ex. PW7/A and B was recorded. All the accused persons produced before Ld. CJM, Kushinagar Court and later on in Delhi.
22. PW16-K V Singh, MLC Incharge deposed that he was deputed by Ms. Indira Hospital for deposing with regard to X-ray report no. CX-8787 of patient Neetu. The same was prepared by Dr. Rajneesh Juneja but PW-16 identified his writing and signatures. He proved Ex. PW16/A as it was prepared by said doctor with regard to X-ray report Ex. X1 and X2.
23. PW 17-ASI Ramroop Singh deposed that on 26.05.2000, while posted as HC at Distt. Line, Ashok Vihar, he joined the investigation with IO/ Insp. Gulab Rai and ASI Raj Kumar. Thereafter, he along with them reached at H No. D-1/41, S. Puri, Delhi and met with Devi Charan and IO inquired him with respect to the present case and he was arrested vide arrest memo Ex. PW17/A and personal search of him was conducted vide memo already Ex. PW15/X. IO also recorded disclosure statement of the accused which is Ex. PW17/B which bears his signatures at pt A. R. no. 535520/2016 State v Pappu Prasad. Page 10 of 22 The accused disclosed in his disclosure statement that he knows that other co- accused namely Pappu and his wife Usha went to Gorakhpur along with kidnapped girl namely Neetu. Thereafter, they along with accused came to the PS and IO recorded his statement u/s 161 Cr. P.C. This witness correctly identified the accused in Court.
24. PW18- W/ Ct. Uma deposed that on 29.05.2000, while posted at PS: Padrona, Distt. Khushinagar as Ct and was called at PS Kasia by Senior officials of PS:
Kasia. After receiving the said information, she reached there and she met with ASI Raj Kumar and she was directed by senior officials to go with ASI Raj Kumar for investigation pertaining to the present case. ASI Raj Kumar was having the custody of one accused Devi Charan at that time. Accused Devi Charan was correctly identified by this accused. On that day, they went to village Khirkia where they did not find accused Pappu and his wife Usha and some one revealed to them that their village was Arjuna. They returned back to PS Kasma (Kasia). On next day ie 30.05.2000, in the morning, they again reached Khirkia, where they met the father in law of accused Pappu namely Jagdish and asked about accused Pappu and Usha and he became ready to help them and took them to village Arjunwa. Where at the instance of accused Devi Charan both the accused Pappu and Usha were apprehended. Both of them disclosed and confessed about their guilt with regard to the kidnapping of girl Neetu. Accused Pappu and Usha were arrested vide memo already Ex. PW12/A & B bearing his R. no. 535520/2016 State v Pappu Prasad. Page 11 of 22 signatures on Ex. PW12/B at pt C resp. Their personal search were got conducted vide memo already Ex. PW7/C and 12/C bears his signatures on Ex. PW12/C at pt C. Their disclosure statement already Ex. PW7/A & B bears his signatures on Ex. PW7/B at pt C resp. All the accused were correctly identified by this witness.
Later on, the accused were produced before the court before Ld. CJM, Khushinagar court and medical examination of the accused persons be conducted in the hospital. IO recorded my statement in this regard.
25. PW 19 deposed that on 29.05.2000, he was posted at N/w Distt. Line as Ct. On that day, he along with ASI Raj Kumar and Ct. Satpal went to the Gorakhpur in order to apprehend the accused persons. They went here and there for the search of accused persons. Finally, on 30.05.2000, accused Pappu Prasad and Usha were arrested from Village Arjuna, PS: Kasia, Kushinagar, U.P in his presence vide memo Ex. PW12/A and B. Accused Pappu and Usha were correctly identified. Accused Pappu was personally searched by the IO vide memo Ex. PW7/C bears his signature at pt C. The disclosure statement of both the accused recorded vide memo Ex. PW7/A and B bears his signature at pt C. IO obtained the transit remand from the CJM Khushi Nagar and on next day ie 31.05.2000, they came back to Delhi and custody of the accused was handed over to Insp. Gulab Rai.
26. Evidence on behalf of the prosecution was closed vide order dated 05-06-2017. All the incriminating evidence which had come in evidence against the accused persons were put to the accused persons vide. SA recorded under s. 313 Cr.P.C. R. no. 535520/2016 State v Pappu Prasad. Page 12 of 22 on 21-12-2017 wherein the accused persons chose not to lead DE.
27. Final arguments were heard on behalf of both sides on 01-07-2022 and the matter was fixed for judgement vide. order dated 01-07-2022.
APPRECIATION OF EVIDENCE
28. 'The primary issue to be decided in the present case is whether the prosecution has been able to prove it's case against the accused beyond all reasonable doubt. It is settled law that the burden of proof in a criminal case lies on the prosecution and it never shifts. The prosecution has to prove its case on the precipice of burden of proof as stated above and it cannot take advantage of any omissions/ loopholes in the case of the defence.
29. Before embarking to determine the guilt of innocence of the accused, it would be prudent to take a look at the oral/documentary evidence led by the prosecution.
30. A perusal of the case of the prosecution shows that the prosecution has arrayed four public witnesses. However, PW13 has turned completely hostile and not supported the case of the prosecution. While this Court is aware that the testimony of a hostile witness need not be discarded only because the said witness has turned hostile and it has to be read for what its worth, a perusal of the R. no. 535520/2016 State v Pappu Prasad. Page 13 of 22 testimony of the aforesaid witness i.e. PW 13 makes it clear that the witness has not deposed anything regards the case at hand and has categorically stated that he does not know anything about the case at hand.
31. The other public witness i.e. the complainant has ben arrayed as PW-1 on behalf of the prosecution. A perusal of the testimony of this witness shows that this witness is not an eye-witness to the incident in question. He has stated that he was informed by his wife about the fact that his sister was missing and thereupon came to know about the same. Hence, it is apparent that this witness is not an eye-witness to the alleged crime and therefore, no sanctity can be attached to his testimony in Court.
32. Coming to the other public witness arrayed as PW 4, a perusal of the testimony of the aforesaid witness makes it apparently clear that, by her own admission, this witness was asleep when the incident allegedly occurred. This is the unrebuttable conclusion from the testimony of this witness in his cross-examination, when she has stated, "mujhe subhah maloom para tha ki meri ladki ghar se gayi hai..." Hence by the own admission of this witness, she was asleep when the alleged incident of kidnapping occurred. Furthermore, this witness has admitted in her cross-examination that she had just reiterated what she had been told by her daughter and hence, by her own admission, this witness is a hearsay witness R. no. 535520/2016 State v Pappu Prasad. Page 14 of 22 when she had deposed, "meri ladki ne jo baatein much batai the woh maine bata di the."
33. The law as regards to the testimony of a hearsay witness is no longer res-integra. The Hon'ble SC in Kalyan Kumar Gogoi vs Ashutosh Agnihotri & Anr AIR 2011 SC 760 held as follows:
The term `hearsay' is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. The word `hearsay' is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else and sometimes it is treated as nearly synonymous with irrelevant. The sayings and doings of third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears.
34. Moreover, PW-2 is an inimical witness in the present case, as by her own admission in the examination-in-chief, she has stated that she had a fight with the accused persons during the day when the victim was allegedly kidnapped by the accused persons. The Hon'ble Apex Court in ANIL RAI v. STATE OF BIHAR, (2001) 7 S.C.C. 318, has held, "In case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity." Similarly, in Raju@balachandran & Ors. v. State of Tamil Nadu, the Hon'ble Supreme Court held, " The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a R. no. 535520/2016 State v Pappu Prasad. Page 15 of 22 case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny."
35. In light of the aforesaid discussion, the testimony of PW 1 and PW 2 cannot be relied upon for the discharge of burden of proof by the prosecution in the instant case. This leaves us with the only other public witness i.e. the victim.
36. It is settled law that oral testimony may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable any witness. In the present case, this Court is of the considered opinion that the testimony of PW-3 falls into the third category since a perusal of the testimony of this witness shows that she has gone to depose that the accused persons had entered the room in which she was sleeping with her family members and stuffed her mouth with cloth. As per the version of this witness, the accused persons then proceeded to take cash and valuables which was in the room and then carried her downstairs and subsequently to the railway station. After going through the testimony of this witness, this Court is of the considered opinion that the version stated in the examination-in-chief does not inspire the confidence of the Court on account of the fact that is seems improbable that accused persons would be able to come into a room which is full of people, pick up a girl- who gets awake R. no. 535520/2016 State v Pappu Prasad. Page 16 of 22 during the process- stuff cloth in her mouth, take valuables and scoot off - all while the people present in the room keep sleeping.
37. Furthermore the testimony of this witness also cannot be relied upon in its entirety without corroboration in material particulars on account of the fact that while this witness has stated in her examination-in-chief that she is well aware about the topography of Delhi and has even answered the question as to the location of railways station. Hence, the version floated by the prosecution that the girl/victim had come back from the place where she was being allegedly kept to Delhi and then she proceeds to Naari Niketan instead of her own house, does not inspire the confidence of this Court. Moreover, this witness/victim remained in the aforesaid Naari Niketan for a substantial period of time and was subsequently brought home. It seems highly improbable that a kid who knows the entire topography of Delhi would remain Delhi at a place for almost an year and not come back despite having knowledge of her way back.
38. Moreover, in the present case, no oral or documentary has been adduced on behalf of the prosecution to prove the factum that the witness PW-3 was indeed lodged at Naari Niketan and was subsequently recovered from there. While PW-1 has stated that a letter in this regard had been received from the said institution, the said letter has not been produced before this Court. No witness/official from the said institution has been arrayed to depose on this aspect by the prosecution. R. no. 535520/2016 State v Pappu Prasad. Page 17 of 22
39. In light of the above-discussion, this Court is of the considered opinion that the element of tutoring this witness cannot be ruled out entirely as the version of events deposed by PW-2 seems to be highly unlikely and improbable.
40. As regards dealing with the testimony of a tutored child witness, the law has been settled by the pronouncement of Hon'ble Apex Court in Arbind Singh v. State of Bihar, 1995 Supp (4) SCC 416 Having taken a careful look at the evidence of this child witness we are of the opinion that implicit faith and reliance cannot be placed on her testimony since it is not corroborated by any independent and reliable evidence. It is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring. We, therefore, think that the appellant No. 1 was entitled to benefit of doubt.
41. In the present case, no corroborative evidence whatsoever has been led by the prosecution to supplement the version stated by the victim in her examination-in- chief. Hence, in light of the aforesaid discrepancies as regards the veracity of the said accused, this Court is of the considered opinion that reliance cannot be placed solely upon the testimony of PW-3 to shift the burden of proof upon the accused.
42. Furthermore, in the present case the child in question, neither the alleged victim i.e. PW-3 nor any property had been recovered from he accused persons. Infact the child had been recovered from a place in Delhi where she had allegedly stayed after she was allegedly kidnapped by the accused persons. The case of the R. no. 535520/2016 State v Pappu Prasad. Page 18 of 22 prosecution cannot be sustained on the confessional statement of the accused persons and apart from the the said confessional statements, the fact that nothing had been recovered from the accused persons lends credence to the defence of the accused and punches holes in the story sought to be established by the prosecution.
43. Hence, this Court is of the considered opinion that the prosecution has been unable to prove its case beyond all reasonable doubt against the accused.
Determination qua 120-B IPC
44. It is the case of the prosecution that the accused persons entered into a criminal conspiracy to commit the offences as stated above and that the accused persons while having entered into such criminal conspiracy, committed the offences in question.
45. The law as regards criminal conspiracy and the burden which is required to be discharged in order to successfully prove the same has been reiterated by the Hon'ble Apex Court in a recent pronouncement titled Parveen @ Sonu vs The State Of Haryana 2021 SCC OnLine SC 1184, where it was held as follows:
2. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences R. no. 535520/2016 State v Pappu Prasad. Page 19 of 22 under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused. In the case of Indra Dalal v. State Of Haryana1, this Court has considered the conviction based only on confessional statement and recovery of vehicle used in the crime. In the said case, while Crl.A.@SLP(Crl.)No.5438 of 2020 setting aside the conviction, this Court has held in paragraphs 16 & 17 as under:
"16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.
17. The word "confession" has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible.
46. In the present case, nothing has come on record except the bald statements of the two public witnesses that the accused persons had entered into a criminal conspiracy to commit the offences against the victim/complainant. A perusal of the testimony of the witnesses examined on behalf of the prosecution shows that they have merely stated that the accused persons had entered into a conspiracy to commit the offences, without any evidence whatsoever to back up their claims. R. no. 535520/2016 State v Pappu Prasad. Page 20 of 22 The complainant has merely stated that he suspected the accused Devicharan of entering into a criminal, conspiracy because he had allegedly returned after responding to nature's call and was wearing formal clothes. In the consider opinion of this Court, this mere statement is woefully inadequate to establish the charge of the accused persons entering into a criminal conspiracy. While direct evidence of a conspiracy is hard to obtain as the same is allegedly hatched in utmost secrecy, as observed by the Hon'ble Apex Court above, convicting a person for the charge of conspiracy merely on assertions would be in inadequate. Moreover, the fact that the remaining accused persons were arrested from their native place does not seem to be out of place since as per the own version of the prosecution, the place from where they had been arrested was their native place. This court finds nothing suspenseful in a person visiting his native place and the said fact in the absence of any recovery of the victim being done, instead of supporting the case of the prosecution, lends more credence to the defence of the accused.
47. The accused persons are accordingly acquitted of the offence u/s 120-B IPC.
FINDINGS
48. In light of the aforesaid discussion, this Court is of the considered opinion that the defence has been able to punch holes in the version of the prosecution and has failed to discharge its burden of proving its case against the accused. It is well settled that the burden which lies on the prosecution is to prove the case beyond R. no. 535520/2016 State v Pappu Prasad. Page 21 of 22 all reasonable doubt and not merely on the preponderance of probabilities. The case of the prosecution must stand on its own two legs. Reliance in this regard is placed on S.L.Goswami v. State of M.P, 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held that:-
"...... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negate it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
49. The accused persons are hereby acquitted of the offence punishable under Section s. 363/365/344/380/346/506-120B IPC
50. File be consigned to Record Room after due compliance.
Announced in open Court (PRITU RAJ)
on 27th July, 2022 Metropolitan Magistrate-01
N/W, Rohini Courts, Delhi.
R. no. 535520/2016 State v Pappu Prasad. Page 22a