Delhi District Court
State vs Vishal Kumar on 8 January, 2024
IN THE COURT OF MS. VIDHI GUPTA ANAND,
CHIEF METROPOLITAN MAGISTRATE
SHAHDARA, KKD, DELHI
JUDGMENT U/S 355 Cr.PC
CIS No.DLSH020003412018
a Serial No. of the case : FIR No. 259/2014, PS
Vivek Vihar [Cr. Case
No.926/2018]
b Date of the commission of the : 14.04.2014
offence
c Name of the Complainant : Sh. Gulshed Ahmed
d Name of Accused person and his : 1. Vishal
parentage and residence Kumar
S/o Sh. Rakesh
Kumar
R/o H.No.174B,
D Block, Gali
No.6 Harsh
Vihar,
Delhi.
2. Govind
Kumar
S/o Karan Singh
R/o H.No.103,
Gali No.7,
Tahirpur, Delhi.
e Offence complained of : 394/411/34 IPC
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 08.01.2024
i Order pronounced on : 08.01.2024
FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 1/ 10
BRIEF REASONS FOR THE DECISION
Factual matrix and trial proceedings
1.Briefly stated the facts of the Prosecution case are that on 14.04.2014, at about 06:30 P.M. at Seemapuri Flyover, Delhi, within the jurisdiction of P.S. Vivek Vihar, Delhi, Accused persons namely Vishal Kumar and Govind Kumar, in furtherance of their common intention committed robbery with Complainant Gulshed Ahmed and robbed his motorcycle make Neelam Super Plus and also caused hurt to him while retreating from the spot. It is further the case of the Prosecution that both the Accused persons were found in possession of robbed bicycle at Surya Nagar, Red Light Road no.56, Vivek Vihar on the same day, thus also committing the offence of being found in possession of the stolen article. Hence, the present case.
2. Chargesheet in this matter was filed in the court on 12.01.2018 for the offences u/s 394/411/34 IPC against both the Accused persons and vide order dated 01.05.2018, Cognizance was taken in this matter and the Accused persons were summoned in the court to face the trial. After their appearance in the Court, copies of documents were supplied to them as per section 207 Cr. P.C.
3. Thereafter, vide order dated 09.08.2019, charges were duly framed upon the accused persons under section 394/411/34 IPC. Charges were read over and explained to accused persons in vernacular. Accused persons pleaded not guilty and claimed trial. Accordingly, matter was taken up for recording prosecution evidence. The charges framed upon the accused persons are listed FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 2/ 10 below:-
Section 394 IPC Voluntarily causing hurt in committing robbery Section 411 IPC Dishonestly receiving stolen property.
4. In order to bring home the guilt of the Accused, Prosecution examined two witnesses as follows:-
PW1 Complainant GulHed Ahmed
PW2 IO/ SI Santosh Pabri
Complainant in this matter denied the entire prosecution case and almost all the documents attached along with the chargesheet, including his own complaint given to the police. On the other hand, IO identified and got exhibited the following documents on court record:
Ex.PW1/A Complaint given by Complainant
Ex.PW1/B Seizure memo of the bicycle
Ex.PW2/A Site PLan
Ex.PW1/C Arrest memo of accused Vishal Kumar
Ex.PW1/D Arrest memo of accused Govind
Kumar
Ex.PW1/E Personal search memo of accused
Vishal Kumar
Ex.PW1/F Personal search memo of accused
Govind Kumar
Ex.PW2/B Disclosure statement of Accused
Vishal Kumar
Ex.PW2/C Disclosure statement of Accused
Govind Kumar
It is pertinent to note that in total 8 witnesses had been FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 3/ 10 cited by the Prosecution including one public witness i.e. the complainant Gulshed Ahmed. There is no other public witness cited by the Prosecution either to the incident of robbery or with respect to the recovery of the stolen article. Apart from the complainant all the remaining witnesses are either police witnesses or MLC witnesses.
It is vital to mention here that the star witness to this case was the Complainant himself since he was the victim of the offences in question and the sole eye witness to the case. He was duly examined in the court, however, to the utter dismay of Prosecution this witness turned hostile and did not support the Prosecution case either with respect to the identification of the Accused persons or the stolen property itself.
5. After recording of the testimony of the only public witness in this matter i.e. the Complainant, it was observed that he completely retracted from his previous statements given to the police. The other witness examined by the prosecution i.e. IO/SI Santosh Pabri also could not lend any support to the prosecution case as he was also not a spot witness and only deposed regarding the investigation conducted by him. In these circumstances, the recording of testimony of the remaining witnesses i.e. PW Ct. Lokendra, Ct. Ram Swaroop, Dr. R. Shah, ASI Rajendra, SI Sahdev Singh and MHC(M) cited by the Prosecution was dispensed with as they were not witnesses to facts and could have only deposed with respect to the conducting of investigation in this matter. With respect to the dropping of the said witnesses, it is relevant to take a note of an order of the Hon'ble Apex Court of India in the matter titled as In Re :
FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 4/ 10 Speedy Trial of Undertrial Prisoners (dated 22.10.2018) whisein it has been held that :
"We direct all the Trial Courts to consider the possibility of pruning the list of witnesses in consultation with the Public Prosecutor as well as the Defence Counsel so that the number of witnesses required to be examined can be reduced at the threshhold."
6. Moving further, the most important testimony to this case is that of the complainant as it is at his instance that the criminal proceedings were initiated against the accused persons in this matter and also because He is not only the victim of offences in question but the main eye witness examined by prosecution. Damaging the prosecution case beyond repairs, complainant took a complete U-turn from his previous statement / complaint given to the police (Ex.PW1/A). Initially in his testimony given on 04.03.2020, he did support the Prosecution case but later, vide his testimony dated 01.03.2023, totally discrediting the prosecution case, complainant denied all the contents of complaint Ex.PW1/A. He denied arrest and personal search of accused persons in his presence and also that the police official had come at the spot and apprehended the Accused persons along with robbed bicycle. Damaging the prosecution case beyond repairs, witness even failed to identify the case property when shown to him.
Rather, upon his cross-examination he stated that IO had obtained his signatures on several blank papers and admitted that he had not given any bill/invoice pertaining to the bicycle in question. Thus, the witness on whose shoulders the entire prosecution case rested, turned out to be the weakest link the FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 5/ 10 chain of circumstances.
Further, even the IO could only depose regrading the documents prepared by him during investigation. To the utter surprise of Prosecution, IO has stated in his cross-examination that no recovery of alleged bicycle had been effected in his presence, however, the seizure memo bears his signature at point B. Thus, not only the Complainant, the IO's testimony has also damaged the Prosecution case as when the IO himself disputes the recovery of the stolen property, the charge u/s 411 IPC becomes questionable.
As is manifest from the testimony of the prosecution witnesses as discussed above, it is apparent that they completely failed to provide any support to the case of the prosecution and not even an iota of evidence was brought against the accused persons from their depositions. More than the testimony of PW2, it is the hostility in the testimony of the complainant (PW1) which strikes at the root of the case as the complainant is the star witness to this case.
Thus, from the aforesaid testimonies itself, the case of the prosecution was rendered full of doubts in regard to the happening the incident as such. In view of the above depositions, it is apparent that despite examining two relevant witnesses including the victim and the IO, no evidence could be brought by the prosecution against the accused persons.
7. Therefore, since no incriminating evidence or circumstance was found against the Accused persons, recording of their statements under section 313 Cr. PC. was also dispensed FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 6/ 10 with. Ld. Counsel for the accused persons preferred not to lead any evidence in their defence and therefore, the matter was taken up for hearing of final arguments, which were duly addressed by Ld. Counsel for the Accused persons as well as Ld. APP for the State.
8. With respect to the above stated trial proceedings in this matter, reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court 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 whise ultimate chance of conviction is very bleak or there is no prospect of the case ending in 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 purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
Thus, keeping in view the above said guidelines this court proceeded to expedite the matter in which FIR had been registered way back in the year 2014 i.e. around 10 years ago.
Summary of arguments
9. Ld. APP for the State has vehemently argued that even if the Complainant could not support the case of the prosecution, there is no dispute that the FIR had been registered in this matter upon a written statement given by the Complainant and therefore, the Accused persons deserve to be held guilty for the charges leveled against them. Ld. APP for the State also argued that the complainant has turned hostile in this case as he has been won over by the accused persons outside the court and FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 7/ 10 there are plethora of judgments which provide that even in case of the hostile witnesses, conviction can be sustained if other evidence brought by the prosecution points towards the guilt of the accused. In this background, Ld. APP for the State submits that the Accused persons be convicted and maximum punishment be awarded to them.
10. On the other hand, Ld. Defence counsel has argued that merely on the basis of registration of a case, the Accused persons cannot be convicted for the offences in question and right to fair trial demands that the Prosecution should prove the allegations leveled upon the Accused beyond all reasonable doubts. Ld. counsel for the Accused persons also argued that the Prosecution has miserably failed to prove its case on account of lack of support from the vital prosecution witnesses despite availing sufficient opportunity. Thus, Ld. Counsel for the Accused persons has argued for their acquittal from the case.
11. Accordingly, this court has heard the rival submissions advanced by the Ld. APP for State and the Ld. Counsel for the Accused persons and has also perused the entire record carefully.
Brief reasons for the decision
12. At the outset, before proceeding further on to discussing the weight and relevancy of evidence led by the Prosecution, this court deems it appropriate to first highlight the cardinal principles of Criminal Jurisprudence, i.e. one, that the Accused is presumed to be innocent unless proved guilty and two, that the burden upon the Prosecution lies to the extent of proving the guilt of the Accused beyond all reasonable doubts. Thus, it is incumbent upon the Prosecution to prove all the ingredients FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 8/ 10 which constitute the offence so that all reasonable doubts in the case of the Prosecution are removed. It may be noted that strongest of suspicion upon the Accused, does not lead to the guilt of the Accused. Thus, keeping in view the above stated aspects and principles of criminal jurisprudence this court shall proceed to decide upon the innocence or guilt of the Accused persons.
13. Coming to the facts of the case, the Prosecution has cited 8 witnesses in the list of witnesses annexed with the chargesheet. Out of these 8 witnesses, one is prime public witness and rest of the witnesses cited by the Prosecution are formal witnesses, who might have played some part in the investigation but were not first hand witnesses to the alleged incident. Certainly, the guilt of the Accused persons could not have been proved by the Prosecution from the mere testimony of said formal witnesses inasmuch as, the alleged incident was never committed in their presence.
14. The star public witness examined by the Prosecution i.e. the complainant could not even bring the slightest of confirmation of guilt of the accused persons as he completely denied the incident and stated that IO had taken his signatures on some blank papers. Had the complainant really been wronged by the accused persons, he would have certainly come forward and would have deposed with respect to the mischief suffered by him but he refrained from doing the same and rather completely tore apart the case of the prosecution by backtracking from his previous averments. In these circumstances, it would be travesty of justice to hold the accused persons guilty of the alleged offences as the complainant himself submits that nothing as FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 9/ 10 alleged happened with him at the hands of the Accused persons standing in the court.
15. It is already settled in law that the burden upon the prosecution is to bring home the guilt of the accused on the basis of evidence collected during investigation and when the star witness to the case himself speaks against the case of the prosecution, there remains no scope of doubt with respect to the lack of sufficient proof by the prosecution to prove the guilt of the accused. Moreover, as per the tenets of criminal jurisprudence, benefit of doubt in the case of the prosecution goes to the accused.
Conclusion
16. Therefore, keeping in view the overall facts and circumstances of this case, this court is of the considered view that the Prosecution has failed to discharge the burden imposed upon it by law of proving the guilt of the Accused persons beyond reasonable doubts. In these circumstances, this court has no hesitation in holding that Accused persons namely Vishal Kumar and Govind Kumar are not guilty for the offences U/s 394/411/34 IPC. Accordingly, both the accused persons namely Vishal Kumar and Govind Kumar stand acquitted in the present case. Digitally signed by VIDHI VIDHI ANAND GUPTA ANNOUNCED IN THE OPEN GUPTA Date:
ANAND 2024.01.08 17:24:08 COURT ON 08.01.2024 +0530 (Vidhi Gupta Anand) CMM/SHD/KKD Courts/Delhi [This judgment contains 10 signed pages] [This judgment has been directly typed to dictation.] FIR No. 259/14 PS Vivek Vihar titled as State v. Vishal Kumar & Ors. 10/ 10