IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SAKET COURTS: NEW DELHI In Re: STATE VERSUS MADAN SINGH ETC. F.I.R. No: 224/01 U/[SECTION] [ACT] P.S. Sarita Vihar Date of Institution of Case : 03.08.2001 Judgment Reserved for : 05.04.2013 Date of Judgment : 05.04.2013 JUDGMENT:
(a) The serial no. of the case : 1709/2/01 (b) The date of commission of offence : 14.06.2001 (c) The name of complainant : Sh. [ENTITY] (d) The name, parentage, of accused : [ENTITY] s/o [ENTITY], R/o Barnakot, Distt. Pratapgarh, Allahabad, UP. Present Address : As above (e) The offence complained of : U/[SECTION] [ACT] FIR No. 224/01 [PRECEDENT] [ENTITY] 1/10 (f) The plea of accused : Pleaded not guilty (g) The final order : Accused acquitted (h) The date of such order : 05.04.2013 Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 14.06.2001 15.06.2001 at 11.30 p.m. to 06.00 a.m. at room no. 25, house of [ENTITY], Village Jasola, New Delhi within the jurisdiction of police station Sarita Vihar, accused committed lurking house trespass in night in the house of [ENTITY] and committed theft of suit case containing Rs. 15,000/ and other articles as mentioned in seizure memo Mark X and Y belonging to complainant [ENTITY] and thus thereby accused committed offence punishable u/[SECTION] [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] [ACT] accused persons were supplied the documents. Thereafter vide orders dated 28.04.2005 charge u/[SECTION] [ACT] was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against all the accused persons, prosecution so far examined two witnesses.
FIR No. 224/01 [PRECEDENT] [ENTITY] 2/10 A brief scrutiny of the evidence recorded in the matter is as under:
4. PW1 [ENTITY] deposed that on the intervening night of 14/15.06.2001 after consuming dinner he had gone to room in his house for sleeping after locking his room and at about 6.00am when he got up he found that the Kunda of his door was broken and after entering the room he found that household articles were scattered. He deposed that on checking suit case VIP containing Rs. 15,000/, clothes, deck, clock watch were found stolen in order to report the incident to the police while he was going to the PS he saw a person which was in the possession of the suit case similar to his suit case and he caught hold him his name was revealed as [ENTITY] (accused and correctly identified) He deposed that several other persons also gathered at the spot. He deposed that he gave information to the Police by telephon. He deposed that his metric certificate and admit card were also in the suit case. He deposed that police had recorded his statement in this regard same is Ex. PW1/A. He deposed that police during the course of investigation prepared site plan at his instance and police had seized aforesaid VIP suit case having the slip of his name vide memo Ex. PW1/B. He deposed that thereafter accused [ENTITY] was arrested vide memo Ex. PW1/C and he made disclosure statement vide memo Ex. PW1/D wherein he had confessed his guilt and in pursuance of disclosure statement he got the recovery of currency note of Rs. 69,00/ in the FIR No. 224/01 [PRECEDENT] [ENTITY] 3/10 denomination of 100 currency note of Rs. 50 and 19 currency of note of Rs. 100 same were seized by the police from the possession of the accused [ENTITY] vide memo Ex. PW1/E and at the time of recovery aforesaid currency notes were identified by him. He deposed that accused [ENTITY] also pointed out the place of occurrence vide memo Ex. PW1/F. He deposed that accused also pointed out the place where he had thrown his clothes and document but same could not be found in this regard. He deposed that a memo was prepared by the police same is Ex. PW1/G. He correctly identified the case property as Ex. P1 (currency notes) and Ex. PW1/B (suit case). He deposed that personal search of the accused was conducted on 15.06.2006 vide memo Ex. PW1/H.
5. During his cross examination he stated that he had seen all the case properties in the PS sarita vihar first time. He stated that he met with with the accused [ENTITY] first time in the PS. He stated that no case property was recovered from possession of accused in his presence. He stated that he cannot say whether the accused present in the court had entered into his house and committed theft. He admitted that he had signed all the documents in the PS. He admitted that he had not read over the contents of the documents before signing them nor it was explained to him by the IO.
6. Thereafter Ld. APP reexamined the witness after taking permission of the FIR No. 224/01 [PRECEDENT] [ENTITY] 4/10 court. During re examination he denied that accused had entered into his house and committed theft. He denied that he had caught hold of the accused when he was carrying his suit case. He denied that he had signed all documents at the spot and investigation was conducted by the IO. Thereafter accused was shown to the witness and asked to identify him but he failed to identify the accused. He denied the suggestion that he has been won over by the accused due to which he was deposing falsely before the court and deliberately not identifying the accused. He denied the suggestion that he was deposing falsely.
7. PW2 [ENTITY] deposed that on 15.06.2001 he registered the present FIR i.e. Ex. PW2/A and made endorsement on the rukka i.e. Ex. PW2/B.
8. This is so far is the prosecution evidence.
9. I have perused the records carefully. In my opinion in view of deposition of PW1 i.e. complainant [ENTITY] as discussed above no purpose shall be served with further continuation of trial as in all likelihood the prosecution story shall fall flat.
10. Complainant [ENTITY] was star/material prosecution witness however his deposition proved to be of no help for the prosecution and rather it FIR No. 224/01 [PRECEDENT] [ENTITY] 5/10 created serious doubts upon the prosecution case. The witness retracted from his statement time and again during his deposition. He repeatedly gave contrary statements which casted grave doubts upon his credibility. Though he supported the prosecution story to some extent during his examination in chief however during his cross examination he completely disowned his earlier stand/whatever was stated by him during his examination in chief. As per records the witness was examined on 20.01.2012 and then again on 16.07.2012 and on 30.08.2012 before the Ld. Predecessor of this court. The relevant portion deposition of the PW1 (complainant [ENTITY]) which created serious doubts upon the prosecution story and rendered it unreliable are reproduced hereunder:
XXXXX by Ld. Defence counsel.
" I met with with the accused [ENTITY] first time in the PS. No case property was recovered from possession of accused in my presence. I cannot say whether the accused present in the court today had entered into my house and committed theft. It is correct that I had signed all the documents in the PS. It is also correct that I had not read over the contents of the documents before signing them nor it was explained to me by the IO"
XXXXXX by Ld. APP for State.
" It is incorrect that accused present in the court today had entered into my house and committed theft. It is further incorrect that I had FIR No. 224/01 [PRECEDENT] [ENTITY] 6/10 caught hold of the accused when he was carrying my suit case. It is incorrect that I had signed all documents at the spot and investigation was conducted by the IO.
11. It is difficult to rely upon such a statement. The statement cannot be formed the basis of believing the prosecution story. In fact the manner in which the complainant retracted from his statement/stand time and again during his deposition cast serious doubts about the demeanor of the witness and renders the prosecution story unreliable.
12. Deposition of complainant in terms of the prosecution story was sine qua non for brining home the guilt against the accused however he himself rendered it untrustworthy and unreliable. His deposition created serious doubts as to the identity of the accused and his involvement in the crime. The entire proceedings i.e. the arrest of the accused and the recovery of stolen suit case/money was rendered unreliable. It casted serious doubts upon the entire sequence of events as narrated/portrayed by the prosecution, more so when no public person was joined by the IO in the investigation. As per the complaint/records numerous public persons had gathered at the spot when the accused was apprehended however for reasons best known to the IO he did not join any of the public person in the entire proceedings. Their exclusion is unjustified and itself casts doubt FIR No. 224/01 [PRECEDENT] [ENTITY] 7/10 upon the prosecution story.
13. Prosecution had proposed to examine 6 witnesses in all and apart from the complainant the remaining witnesses proposed to be examined are formal/official witnesses who came into the picture only after the alleged incident had occurred and information in this regard was received by them. None amongst them is the eye witness of the incident. Same has been conceded by Ld. APP for State during the course of arguments today.
14. Once the complainant had himself turned hostile on material particulars, there is no other independent witness of the incident and remaining witnesses are police officials only there shall always be doubts upon the prosecution story benefit of which has to be given to the accused.
15. Therefore, continuation of trial shall be an exercise in futility. PE stands accordingly closed. SA is dispensed with as no worthy incriminating material has been brought forward against the accused.
16. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true"
and "must be true".
FIR No. 224/01 [PRECEDENT] [ENTITY] 8/10
17. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( [PRECEDENT]).
18. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in [PRECEDENT] that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In [PRECEDENT] it was again held that in criminal cases burden is always is on prosecution and never shifts. In [PRECEDENT] and [PRECEDENT] it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden FIR No. 224/01 [PRECEDENT] [ENTITY] 9/10 lies on prosecution to prove the guilt of accused beyond reasonable doubt.
Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. ([PRECEDENT] relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
19. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
20. I order accordingly.
Announced in the open ([ENTITY]) Court on 05.04.2013 MM (SE)/Delhi FIR No. 224/01 [PRECEDENT] [ENTITY] 10/10 F.I.R. No: 224/01 U/[SECTION] [ACT] P.S. Sarita Vihar 05.04.2013 Pr: Ld. APP for state. Accused on bail present today.
PW [ENTITY] is present. He has been examined as PW2 and discharged.
No other PW is present.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Fresh Bail bonds u/[SECTION] [ACT] furnished, considered and accepted. File be consigned to Record Room.
([ENTITY]) MM (SE)/Delhi.
05.04.2013 FIR No. 224/01 [PRECEDENT] [ENTITY] 11/10