Delhi District Court
State vs . Mohd. Asif on 9 December, 2022
1
IN THE COURT OF SH. ABHINAV PANDEY:
METROPOLITAN MAGISTRATE- 04,
SHAHDARA DISTRICT, KARKARDOOMA COURTS:
DELHI
FIR No. 115/20
PS Jafrabad
CIS No. 1661/20
State Vs. Mohd. Asif
State Represented by
Sh. Anuj Handa,
Ld.Special Public Prosecutor
Versus
Mohd. Asif Represented by
S/o Mohd. Hanif Sh. Mohd. Yusuf, Ld.Counsel.
R/o C-215, Gali no.7,
Chauhan Banger, Delhi
1. Complaint Case number : CIS No. 1661/20
2. Name and address of the : Mohd. Asif
accused S/o Mohd. Hanif,
R/o C-215, Gali no. 7,
Chauhan Banger,
Delhi.
4. Offence complained of or : Under Section
proved 147/148/149/458/120 B of
Indian Penal Code.
5. Plea of the accused : Pleaded not guilty and
claimed trial.
6. Final Order : Acquitted
7. Date of Institution : 02.05.2020
8. Date of Reserving the : 08.12.2022
Judgment
FIR No. 115/20 State Vs. Mohd. Asif Page no.1 of 24
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9. Date of pronouncement : 09.12.2022.
JUDGMENT
1. BRIEF FACTUAL POSITION:-
1.1 This is the prosecution of accused Mohd Asif S/o S/o Mohd. Hanif, R/o C-215, Gali no. 7, Chauhan Banger, Delhi pursuant to the chargesheet filed by police station Jafrabad alleging the commission of offences under section 147,148,149,458 and 120 B of Indian Penal Code, 1860, pursuant to the investigation carried out by them in FIR No. 115/2020, PS Jafrabad.
1.2. The case of the prosecution is that the accused had been a member of a riotous unlawful assembly, armed with deadly weapons, who taking advantage of the nationwide protests against the Citizenship Amendment Act, indulged in vandalism, violence and criminal trespass.
1.3. The aforesaid FIR dated 02.03.2020 had allegedly been lodged upon the complaint in writing made to the police by Sachin Kumar Rawal, stating that he resides with his family at house no. C-213, Gali no. 6, Chauhan Banger, Delhi-53, near Aryan Public School, and that the accused resides in the same locality in Gali no. 7. It was alleged that on 29.02.2020, the accused, accompanied by 8-10 unknown riotors, and armed with stones and lathis, unlawfully stepped on to the terrace of the complainant and attempted to enter the house of the complainant.
It was further alleged in the complaint that when the complainant Sachin Kumar Rawal raised a hue and cry, the accused alongwith other unknown armed riotors fled from the scene of occurrence.
FIR No. 115/20 State Vs. Mohd. Asif Page no.2 of 24 3 It was further stated in the complaint that he also made a call at PCR no. 112, at 02.21 AM, but did not get any response. Upon these allegations, the police registered an FIR U/s 147/148/149/458 of IPC and as per the chargesheet, thereafter, the site plan was prepared at the instance of the complainant and the disclosure/confessional statement of the accused was recorded on the basis of which an iron rod allegedly was discovered from the terrace of the residence of the accused. As per the contents of the chargesheet, the complainant accompanied the police for search of the accused, who was arrested from the area of his residence itself on 04.03.2020. No test identification proceedings of the accused in the presence of the complainant were conducted. It is in this form that the ACP, Sub-Division Bhajanpura, forwarded the present chargesheet to this Court alleging the commission of offence under Section 147,148,149,458 read with Section 120 B of IPC by the accused. 1.4. Complete set of chargesheet and other documents were supplied to the accused. After hearing the arguments, charges for offences punishable under section 147/148/149/458/120B of IP were framed against the accused, to which he pleaded not guilty and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution in support of its case, examined PW1 Sachin Rawal, who is the complainant, and PW2 Rohit Rawal, who is alleged to be the brother of the complainant, and residing at the same address as the complainant. Both the witnesses did not support the prosecution version of events, at all. Since the FIR No. 115/20 State Vs. Mohd. Asif Page no.3 of 24 4 material and sole eye witnesses of the prosecution did not support its case, this Court did not deem it expedient to record the testimony of the remaining witnesses, who were merely formal witnesses.
3. STATEMENT OF THE ACCUSED.
Nothing incriminating could come on record against the accused and there are no circumstances appearing against him in the prosecution evidence, and therefore the examination of the accused U/s 313 Cr.P.C was dispensed with.
4. ARGUMENTS.
4.1 Ld. Special Public Prosecutor, appearing for the State, has argued that the testimony of all the prosecution witnesses should be recorded by the Court before coming to any conclusion regarding the guilt or innocence of the accused. He has further stated that the mere fact of submission of complaint by the complainant to police officials is sufficient to summon the concerned police officials for the purpose of their examination- in-chief and cross-examination. He has further argued that the police witnesses, when summoned, may narrate a different version of events than that stated by witnesses PW1 and PW2, which may point towards the guilt of the accused. Accordingly, Ld.Special Public Prosecutor has prayed to this Court not to acquit the accused on the basis of examination of PW1 and PW2, and to summon the remaining witnesses so that their evidence may be recorded, and a holistic view of the case may be taken by this Court. In making these submissions, Ld. Special Public FIR No. 115/20 State Vs. Mohd. Asif Page no.4 of 24 5 Prosecutor has relied upon the judgments of Hon'ble Supreme Court in Govindaraju @ Govinda Vs. State [(2012) 4 SCC 722] and Bable alias Gurdeep Singh Vs. State of Chattisgarh [(2012) 11 SCC 181], and upon the judgment of Hon'ble High Court of Delhi in Manoj Kumar Vs. State (NCT of Delhi) [2010 SCC Online Del 4099].
4.2 On the other hand, Ld.Counsel for accused has argued that there is no legally admissible evidence against the accused, and merely the witnesses pertaining to registration of FIR and arrest of the accused and the investigating officer can, by no means, prove the offences alleged against the accused, when the sole witnesses of the prosecution have turned hostile.
5. BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
5.1 Arguments advanced by the Ld. Special Public Prosecutor for the State and by the Ld.Defence Counsel have been heard in detail. Evidence and documents on record have been perused carefully.
5.2 I have bestowed my thoughtful consideration to the rival submissions made before me. The accused is indicted for the offences U/s 147/148/149/458 and 120 B of IPC. 5.3 The essential ingredients of the offences as alleged by the prosecution against the accused have also been considered by this Court, and are being discussed as under :-
5.3.1 Section 120 A states that "when two or more persons agree to do, or cause to be done-
(1) an illegal act, or FIR No. 115/20 State Vs. Mohd. Asif Page no.5 of 24 6 (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof".
5.3.2 Section 120 B states that "(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death [imprisonment or life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commits an offence punishable as afore- discussed shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both".
5.3.3 Section 146 states that "whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting". 5.3.4 Section 147 states that "Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". 5.3.5 Section 148 states that "Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may FIR No. 115/20 State Vs. Mohd. Asif Page no.6 of 24 7 extend to three years, or with fine, or with both". 5.3.6 Section 149 states that " if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence". 5.3.7 Section 441 states that "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass"".
5.3.8 Section 442 states that "Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass"".
5.3.9 Section 444 states that "Whoever commits lurking house- trespass after sunset and before sunrise, is said to commit "lurking house-trespass by night"".
5.3.10 Section 445 states that "A person is said to commit "house-breaking" who commits house trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committing FIR No. 115/20 State Vs. Mohd. Asif Page no.7 of 24 8 an offence therein, he quits the house or any part of it in any of such six ways, that is to say-
First- If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.
Secondly - If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly- If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.
Fourthly- If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.
Fifthly- If he affects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault.
Sixthly- If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.
5.3.11 Section 446 states that "Whoever commits house-breaking after sunset and before sunrise, is said to commit "house- breaking by night"".
FIR No. 115/20 State Vs. Mohd. Asif Page no.8 of 24 9 5.3.12Section 458 states that "Whoever commits lurking house- trespass by night, or house-breaking by night,having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine".
5.3.13 Recently in Mahendra & Another versus State of M.P. (Crl. Appl. No. 30 of 2022 arising out of SLP (Crl.) no. 6530/2018) a two judge bench of Hon'ble Supreme Court has held that it is an essential requirement of an unlawful assembly that its membership must be five and more, but, at the same time, it may not be necessary that five or more persons necessarily be brought before the Court and convicted. Less than five persons may be charged under section 149, if the prosecution case is such that the persons before the court and others, numbering in all more than five, composed an unlawful assembly, these other persons being not identified and being unnamed. 5.3.14 In State of UP vs. Dan Singh & Others (1997 3 SCC 747) and Lalji Versus State of UP (1989 1 SCC 47), it was held that the common object of the unlawful assembly may be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence.
5.3.15 Further, in Lakshman Singh versus State of Bihar (2021 9 SCC 191), it was held that the ingredients for the completion of an offence under section 146 of IPC are that: (i) FIR No. 115/20 State Vs. Mohd. Asif Page no.9 of 24 10 there is an assembly of 5 or more persons which was unlawful, having one or the other objects defined in section, (ii) the unlawful assembly must have used force or violence. Force is defined in section 349 of IPC as: "A person is said to use force to another if he causes motion, change of motion or cessation of motion to that other" ; and (iii) the force or violence used by an unlawful assembly or any member thereof must be in the prosecution of common object of the assembly. 5.3.16 It was further held by the court that there is no requirement of attribution of specific role to every member of the unlawful assembly, for the offence of rioting under section 147 of IPC to be made out as where there are a large number of assailants, it can be difficult for the witnesses to identify each assailant and attribute specific role to him. When the incident occurs over a short span of time, it is natural that the exact version of the incident, revealing every minute detail, i.e. meticulous exactitude of individual acts cannot be given by the eye witnesses. Even otherwise, every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. There is thus, vicarious responsibility when force or violence is used in prosecution of the common object of the unlawful assembly. In holding so, the court derived support from Mahadev Sharma versus State of Bihar (1966 1 SCR 18, AIR 1966 SC 302) and Abdul Sayeed Versus State of Madhya Pradesh (2010 10 SCC 259).
6. In the present case, complainant Sh. Sachin Rawal S/o Sh. Rajender Singh Rawal has appeared as PW1 and has stated in his examination-in-chief that he had been living at the house no. C-
FIR No. 115/20 State Vs. Mohd. Asif Page no.10 of 24 11 213, Gali no. 6, Chauhan Banger, Delhi since his birth and on 29.02.2020 he was at his house when at about 2 am, he heard some noise from the terrace, whereupon he alerted his brother and went with him to the terrace where they saw seven to eight people. It is further stated by him in his examination that thereupon they got scared and made a PCR call. PW1 stated in his examination-in-chief that he cannot recognize any person from the 7-8 people who were present at that time on their terrace. Since the witness was turning hostile regarding identification of the accused, Ld.Special PP for the State proceeded to cross-examine the witness U/s 154 of Indian Evidence Act, 1872. In his cross-examination by Ld.Special PP for the State, the complainant admitted to having given the complaint to police and also admitted his handwriting upon the same. PW1 also admitted that he had written in his complaint that amongst the people whom he saw on the terrace, he could identify the accused. However, PW1 further stated that he had written the same upon the direction/dictation of the police officials, who were present in the police station and he further stated that he is not aware that on the basis of the said complaint, the accused was arrested by the police. PW1 also admitted his signatures on the arrest memo Ex.PW1/B, but denied the suggestion that the accused was arrested in his presence. PW1 denied having won over by the accused or deposing falsely in order to shield the accused.
6.1 PW1 was cross-examined by Ld.Defence Counsel as well, and it has come on record in his cross-examination of the PW1 by the Ld.Defence Counsel that in the police station, police FIR No. 115/20 State Vs. Mohd. Asif Page no.11 of 24 12 officials had obtained the signatures of PW1 on certain papers and forms, some of which are typed and others were blank. It needs to be noted that test identification proceedings of the accused in the presence of the complainant were never conducted by the investigating agency and during examination of PW1, he has not given any statement of identification of the accused by him in the Court.
6.2 Sh. Rohit Rawal S/o Sh. Rajender Singh Rawal, is stated to be the brother of the complainant/PW1 and has appeared and deposed as PW2 wherein he has given identical statement to that of PW1 and has categorically stated in his examination-in-chief that he cannot recognize any person from the 7-8 people, who were present upon the terrace at the time of incident, whereupon, Ld.Special PP for the State has cross-examined PW2, as he did not support the prosecution story regarding the identification of the accused.
6.3 During the cross-examination of PW2, he stated that he went alongwith his brother/PW1 to the police station and that PW1 had not told the name of any person amongst the riotors, who had entered on the terrace on the night of 29.02.2023. PW2 further alleged during his cross-examination that PW1 had been told by the police officials as what is required to be written in the complaint and whatever was being told by the police officials, PW1 was writing the same in the complaint. PW2 identified the signatures and handwriting of his brother PW1 upon the complaint Ex.PW1/A, but stated that the name of the accused was written in the complaint by PW1 upon the dictation/direction of the police officials, who were present in the police station.
FIR No. 115/20 State Vs. Mohd. Asif Page no.12 of 24 13 PW2 further stated during his cross-examination by the prosecution that the accused was not arrested in his presence. PW2 denied having been won over by the accused or deposing falsely in order to shield the accused. He further denied the suggestion that his brother PW1 had written his complaint voluntarily. Accordingly, Ld.Defence Counsel did not proceed to cross-examine the witness.
6.4 It become clear from the perusal of the aforesaid testimony of the eye witnesses of the prosecution that the prosecution case has fallen flat on its face and has no legs to stand upon. Ld. Special Public Prosecutor for the State has fervently argued that it is upon the identification of the complainant that the police officials had arrested the accused, and the investigation was carried out in that direction, and therefore, the accused can still be identified by the arrest witnesses and by the investigating officer of the case.
6.5 At this juncture, it is pertinent to refer to the provisions of Section 60 of the Indian Evidence Act, which is being reproduced as under:
"Oral evidence must, in all cases whatever, be direct; that is to say-
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who say he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness, who says he perceived if by that sense or in that FIR No. 115/20 State Vs. Mohd. Asif Page no.13 of 24 14 manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of the experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers tot he existence or condition of any material thing other than a document, the Court may, if it thinks fir, require the production of such material thing for its inspection".
6.6. In the light of these provisions, this Court now proceeds to examine the role of the remaining prosecution witnesses, only for the purpose of arriving at the utility of recording of their testimony in the Court, within the confines of Section 162 of Cr.P.C.
6.7 SI Rakesh Kumar, is the investigating officer of the present case, who is stated to have received the complaint of the complainant Ex.PW1/A, which the complainant has categorically stated during his examination in the Court, to have been given on the dictation of police officials.
6.8 Another witness cited in the list of witnesses of the investigating agency is ASI Pawan Kumar, who had allegedly lodged the GD no. 4A dated 29.02.2020 at PS Jafrabad, wherein FIR No. 115/20 State Vs. Mohd. Asif Page no.14 of 24 15 the description of PCR call alleged to be made by the complainant was given in the following manner " kuch log caller ke ghar mai ghusne ki koshish kar rahe hai". It is apparent from the aforesaid description that no particulars had been mentioned by the complainant in the PCR call dated 29.02.2020 regarding the names of any such persons, who were attempting to forcefully enter into the house of the complainant. 6.9 Finally, Ct. Joginder is another witness whose statement U/s 161 Cr.P.C had been recorded by the IO, wherein he had stated that he was involved in the investigation of the present case with the investigating officer on 02.03.2020, and on that date, he alongwith investigating officer ASI Rakesh Kumar, went to the house of complainant, involving him in the investigation of the present case and went with the complainant to Bhrampura Road, in front of Gali no. 7, when the complainant pointed towards the person standing at a distance and said that he was the person who had came at the terrace of the complainant alongwith other unknown riotors on 29.02.2020, and that his name is Asif S/o Sh. Hanif. Ct. Joginder further stated in his statement U/s 161 Cr.P.C that thereafter the accused was arrested upon the disclosure statement and an iron rod was recovered from the water tank at the terrace of the accused.
6.10 Therefore, a bare perusal of remaining evidence sought to be adduced on behalf of the prosecution shall itself reveal that none of these prosecution witnesses can, in any manner, assist this Court in establishing the identity of the accused as the offender. At the most, they can testify to the effect that the accused was the person who was arrested upon the instance of FIR No. 115/20 State Vs. Mohd. Asif Page no.15 of 24 16 the complainant. Whether or not the accused was the person who committed the offences in question can only be proved by the eye-witnesses, both of whom have not supported the prosecution story at all.
7. The judgments relied upon by the prosecution also do not come to its rescue considering the factual matrix of the present case. The judgment of Hon'ble Supreme Court in Govindaraju Vs. State (2012 4 SCC 722) relied upon by the prosecution deals with a case where a police official was the sole eye-witness and Hon'ble Supreme Court held that the testimony of such eye- witness cannot be disregarded due to the mere fact that he is a police official. However, in the present case, the police officials are not eye-witnesses to the incident but are mere formal witnesses, and accordingly, the ratio of the aforesaid judgment of Hon'ble Supreme Court does not apply to the present case. The judgment in Manoj Kumar Vs. State (NCT of Delhi) [2010 SCC Online Del 4099] relied upon by the prosecution deals with the issue whether the entire testimony of a hostile prosecution witness is to be discarded or some part of it can be relied upon. In that case, the sister of the victim was also a prosecution witness, and as per the testimony of the hostile witness, when the deceased was talking to the appellant, the sister of the victim also came out of the house, and deposed to that effect in the Court. The Hon'ble High Court of Delhi held that the part of the statement of the hostile witness which corroborates the testimony of sister of the deceased, that upon hearing the conversation between the accused and the deceased, she came out, can be relied upon. However, the sister of the deceased was another eye-
FIR No. 115/20 State Vs. Mohd. Asif Page no.16 of 24 17 witness in that case who had supported the prosecution story, unlike in the present case, where both the eye-witnesses have not supported the prosecution version regarding the identity of the accused, and the only witnesses not examined are formal witnesses relating to arrest and other investigative steps. 7.1 Similarly, in Bable alias Gurdeep Singh Vs. State of Chattisgarh (2012 11 SCC 181), the eye-witness had turned hostile but there were two other witnesses who had reached at the place of incident immediately after the occurrence, and were told by the deceased as to who were the assailants, making their statement fall with the category of 'res gestae' under section 6 and 'dying declaration' under section 32 of the Indian Evidence Act, 1872, and it is in these circumstances that the evidentary value of FIR was stressed upon by the Hon'ble Supreme Court. The present case pertains to entirely different facts wherein complaint has been made a few days after the incident, and there is no witness whose statement can be said to fall within the ambit of Section 6 or Section 32 of the Indian Evidence Act, 1872. 7.2 It is clear from the aforesaid discussion that in view of the testimony of PW1 and PW2, the prosecution shall never be able to establish the guilt of the accused beyond reasonable doubt, even if the remaining prosecution witnesses are summoned and examined, as they can only be a witness to the fact of the complainant pointing towards the accused as the person who committed the offences in question at 29.02.2020, alongwith other riotors, but these remaining witnesses are not eye witnesses to the actual commission of offences by the accused. Moreover, in their examination-in-chief and cross-examination by FIR No. 115/20 State Vs. Mohd. Asif Page no.17 of 24 18 Ld.Special PP for the State, PW1 and PW2 have neither stated about the accused being armed with a rod, nor have given any particulars about such rod, nor have identified the rod as recovered, and in these circumstances, the recovery of iron rod allegedly from the terrace of the accused loses evidentary value. 7.3 In this regard, it is also pertinent to mention that as a rule of caution and prudence, even though not as a rule of law, various judgments of Hon'ble Supreme Court have established the legal position that when a criminal court has to deal with the evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, the normal test is that a conviction can be sustained only if it is supported by two or more witnesses, who give a consistent account of the incident in question. {Busi Koteshwara Rao & others versus State of Andhra Pradesh (2012 12 SCC 7 11) relied upon}. Further, in State of Uttar Pradesh Versus Dan Singh and Others ( 993 3 SCC 747), it was recognized by Hon'ble Supreme Court that when an incident of rioting takes place, there may be a possibility of the incident being exaggerated, or some innocent persons being named as members of the assailant's party, either willingly or unwillingly, and merely some inconsequential exaggeration or contradictions in the testimony of the eye witnesses should not be a ground to reject their evidence in its entirety, as in offences involving large number of assailants and witnesses, testimony of witnesses cannot be expected to be identical.
7.4 However, in the same judgment, Hon'ble Supreme Court has also held that what requires to be seen in such a case is that FIR No. 115/20 State Vs. Mohd. Asif Page no.18 of 24 19 whether the basic features of the occurrence have been similarly viewed and/or described by the witnesses in a manner which tallies with the outcome of the riot, viz, the injuries sustained by the victims and the number of people who are attacked and/or killed. Further, applying the principle laid down by Hon'ble Supreme Court in Masalti versus State of Uttar Pradesh (AIR 1965 SC 202) and Inder Singh versus State of Rajasthan (2015 2 SCC 730), the identity of the accused persons as a member of the unlawful assembly, should be confirmed by two or three or more witnesses, who identify the accused persons as a part of the mob/unlawful assembly.
7.5 As already discussed, in the present case, PW1 and PW2 are the only eye-witnesses to the commission of offences, and both of them have denied identifying the accused as one of the riotors, and have further stated that the particulars in the complaint Ex.PW1/1 were written by them at the dictation of the police, and therefore, the prosecution evidence does not stand the test of guidelines laid down by Hon'ble Supreme Court in Masalti Case.
7.6 Time and again, Hon'ble Supreme Court and Hon'ble Delhi High Court, have emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the CrPC. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of Hon'ble Supreme Court in Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 & Anr. & in Hussainara Khatoon & Ors.
FIR No. 115/20 State Vs. Mohd. Asif Page no.19 of 24 20 Vs. Home Secretary, State of Bihar (1980) 1 SCC 81, the Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be 'reasonable, fair and just'; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively considered afresh by the Constitution Bench of Hon'ble Supreme Court in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr. (1992 1 SCC 225). Referring to a number of decisions of Hon'ble Supreme Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, this Court does not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are:-
(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;
(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, FIR No. 115/20 State Vs. Mohd. Asif Page no.20 of 24 21 appeal, revision and retrial;
(iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is -- who is responsible for the delay?;
(iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-- what is called, the systemic delays;
(v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage.
However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution and when does the prosecution become persecution, again depends upon the facts of a given case;
(vi) ultimately, the court has to balance and weigh several relevant factors--'balancing test' or 'balancing process'--and determine in each case whether the right to speedy trial has been denied;
(vii) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest FIR No. 115/20 State Vs. Mohd. Asif Page no.21 of 24 22 of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;
(viii) it is neither advisable nor feasible to prescribe any outer time- limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint;
(ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
7.7 Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed, the pronouncements of Hon'ble Supreme Court Court in "Common Cause" A Registered Society Vs. Union of India (UOI) & Ors. (1996) 4 SCC 33, "Common Cause", A Registered Society Vs. Union of India & Ors. (1996) 6 SCC 775, Raj Deo Sharma Vs. State of Bihar (1998) 7 SCC 507 and Raj Deo Sharma II Vs. State of Bihar (1999) 7 SCC 604 gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the FIR No. 115/20 State Vs. Mohd. Asif Page no.22 of 24 23 accused. The confusion on the issue was set at rest by a seven- Judge Bench of Hon'ble Supreme Court in P. Ramachandra Rao Vs. State of Karnataka16. (2002) 4 SCC 578. Speaking for the majority, RC Lahoti J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait- jacket formula. Their applicability would depend on the fact-situation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial.
7.7 The Hon'ble Supreme Court has further stated in Pankaj Kumar Vs. State of Mahrashtra (2008) 16 SCC 117 and Jayendra Vishnu Thakur Vs. State of Maharashtra (2009) 7 SCC 107 that a person charged with an offence and submitted before the process of law, has also a right of speedy trial, which has been considered as a fundamental right under Article 21 of the Constitution of India.
7.8 Accordingly, in view of the testimony of all the material FIR No. 115/20 State Vs. Mohd. Asif Page no.23 of 24 24 witnesses/eye witnesses, and in the light of the aforesaid discussion and cited judgments, this Court is of the opinion that the examination of the remaining witnesses who are formal witnesses, will not be of any help in altering the conclusion arrived at by this Court, and the prosecution shall not be in a position to establish the guilt of the accused beyond reasonable doubt regarding the commission of offences as alleged. The prosecution has completely and miserably failed to prove the guilt of the accused beyond reasonable doubt.
8. Conclusion In view of the above discussion, I am of the considered opinion that the prosecution has failed to establish its case beyond reasonable doubt against the accused. Accordingly, accused Asif S/o Mohd. Hanif, R/o C-215, Gali no. 7, Chauhan Banger, Delhi, is hereby acquitted of the offence punishable un- der Section 147/148/149/458/120 B of the Indian Penal Code. Copy of this judgment be given free of cost to both the sides.
Announced in the open Court on 09.12.2022.
(Abhinav Pandey) Metropolitan Magistrate-04 (Shahdara) KKD/Delhi The judgment contains 24 pages, all pages signed by the presiding officer (Abhinav Pandey) Metropolitan Magistrate-04 (Shahdara) KKD/Delhi FIR No. 115/20 State Vs. Mohd. Asif Page no.24 of 24