IN THE COURT OF Ms. [ENTITY] ADDL. CHIEF METROPOLITAN MAGISTRATE : WEST TIS HAZARI COURTS : DELHI FIR No. 349/2016 ID 75735/2016 U/S. 324 [ACT] PS Patel Nagar [ENTITY] Vs. [ENTITY] JUDGMENT
1. [CASE NUMBER] 2. Date of commission of offence 4.5.2016 3. Name of complainant Sh. [ENTITY] 4. Name of accused [ENTITY] s/o. Sh. [ENTITY] r/o. H NO. T511/G Baljeet Nagar, Delhi 5. Offence complained of U/[SECTION] [ACT] 6. Plea of accused Pleaded not guilty 7. Final order Acquitted 8. Date of such order 6.6.2019
1. FACTS IN BRIEF/ CASE SET UP BY PROSECUTION: The case of the prosecution is that on 4.5.2016 at about 10.30 PM at U Block, Khanna Market, Delhi, accused hit some sharp edged object on the person of complainant Sh. [ENTITY] as a result of which he sustained injuries.
2. MISCELLANEOUS PROCEEDINGS: [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 1/13 After completion of the investigation, chargesheet was filed by the police against accused on 3.11.2016. Cognizance of the offence was taken and the accused was summoned. Copy of the chargesheet was supplied to the accused and the matter was adjourned for arguments on charge on 3.11.2016 itself.
3. CHARGE FRAMED AGAINST THE ACCUSED: Charge for offence punishable u/[SECTION] [ACT] was framed against accused on 5.5.2018, to which he pleaded not guilty and claimed trial.
4. EVIDENCE LED BY THE PROSECUTION : In order to prove its case, prosecution has examined 3 witnesses as under :
(a)PW1 [ENTITY] had joined the investigation with the IO and deposed that on 4.5.16 he alongwith SI [ENTITY] went to the spot where they came to know that the injured had been shifted to LHMC and thereafter they went there and collected the MLC of injured and they came to know that the injured was discharged from hospital by the time they reached there.
(b)PW2 SI [ENTITY] was the IO and deposed that on 4.5.16 on receipt of DD NO. 37A he alongwith PW1 went to the spot and thereafter went to LHMC and collected MLC of injured. Witness deposed that thereafter he got the present FIR registered against [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 2/13 accused and thereafter he was transferred.
(c)PW3 Sh. [ENTITY] was the complainant as well as star witness of the prosecution. PW3 deposed that on 4.5.2016 at about 10.30 PM he went to Khanna Market to meet his friend and when he was passing through the shop of accused who was known to him, someone hit him with sharp edged article from behind. PW3 had turned hostile and did not support the prosecution version.
5. STATEMENT OF ACCUSED: [ENTITY]ment of accused was recorded u/[SECTION] [ACT] wherein the incriminating evidence was put to the accused. In the said statement u/[SECTION] [ACT], accused stated that he was falsely implicated in this case. Accused opted not to lead evidence in her defence.
6. ARGUMENTS OF LD. APP FOR STATE AND DEFENCE: Ld APP for the [ENTITY] had argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the [ENTITY] had also argued that the factum of causing injury to complainant by accused has been proved beyond reasonable doubt therefore, accused is liable to be convicted in this case.
On the other hand, Ld Counsel has argued that the prosecution has failed to join any independent witness in support of its case. It is further submitted that prosecution has miserably [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 3/13 failed to prove its case against the accused and therefore, accused is entitled of being acquitted in this case.
7. REASONS FOR THE DECISION:
(i) In the present case charge for offence punishable u/s.
324 [ACT] was framed against the accused and to prove its case has examined three witnesses.
(ii) In order to prove its case, prosecution was required to prove the following essential ingredients That accused had voluntarily caused hurt to the complainant by means of any instrument
(iii) The law on appreciation of evidence in the event of witness turning hostile was discussed by the Hon'ble Supreme Court in case titled as [PRECEDENT]. The relevant extract of the same is reproduced below for ready reference: " even in a criminal prosecution when a witness is cross examined and contradicted with a leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands throughly discredited or can still be [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 4/13 believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto ".
(iv) Now coming back to the facts of the instant case, the star witness PW3 had turned hostile. The relevant extract of his examination is reproduced below for ready reference: "PW3: I residing at the abovesaid address alongwith my family and doing the job of AC repairing. ON 4.5.16 at about 10.30 PM I went to Khanna Market to meet one of my friend after closing my shop at Khanna Market. When I was passing through the temporary shop of accused namely [ENTITY] who was known to me, somebody hit me with a sharp edged article from behind. By the time I looked back to see as to who me there was no one behind me. Thereafter I called my friend at the spot who immediately came there and they informed the police regarding the incident. The accused was also [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 5/13 present at the spot and he helped me.
Thereafter one PCR came at the spot and took me to LHMC from where I was discharged after first aid treatment the accused present in the court did not hit me on the date of incident rather he helped me and was wrongly named by one of my friend in the present case due to mistake and misunderstanding "
(v) Despite being cross examined, nothing beneficial for the prosecution could be brought out from the mouth of said witness. In these circumstances, it is not safe to convict the accused as prosecution has failed to discharge his onus. Remaining witnesses were police officials and their testimony is on formal aspect of the investigation of the case.
(vi) In view of the abovesaid discussion, the opinion of the court is that the present case is a fit case where the court should exercise its power under [SECTION] of [ACT] and stop the proceedings qua offence u/[SECTION] [ACT] as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
(vii) In P. Ramachandra Rao v. [ENTITY] of Karnataka AIR 2002 SUPREME COURT 1856 ( Coram : 7 [ENTITY], C.J.I., [ENTITY], [ENTITY], [ENTITY], [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 6/13 [ENTITY], Mrs. [ENTITY], [ENTITY], JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The [ACT], as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. [SECTION], dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation2 to [SECTION] confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. [SECTION], in [SECTION] of [ACT], on Trial Summons cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 7/13 proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under [SECTION] can be invoked to make such orders, as may be necessary, to give effect to any order under the [ACT] or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under [SECTION] of [ACT] for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by [SECTION] of the [ACT]. The [ACT] Bench in [ENTITY]'s case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from [SECTION], the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 8/13 pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW [SECTION]9 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and [ENTITY] (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in [ENTITY]'s case is correct and still holds the field.
(2) The propositions emerging from [SECTION] of the [ACT] and expounding the right to speedy trial laid down as guidelines in [ENTITY]'s case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in [ENTITY]'s case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 9/13 judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The timelimits or bars of limitation prescribed in the several directions made in Common Cause (I), [ENTITY] (I) and [ENTITY] (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), [ENTITY] Case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in [ENTITY]'s case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such timelimits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those under [SECTION], [SECTION] and [SECTION] of [ACT] to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 10/13 [SECTION] of [ACT] and [SECTION] and [SECTION] of [ACT] can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the [ENTITY] Governments of their constitutional obligation to strengthen the judiciary
- quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act."
(emphasis supplied)
(viii) In Pankaj Kumar v. [ENTITY] of Maharashtra AIR 2008 SUPREME COURT 3077 (Coram : 2 [ENTITY] AND [ENTITY], JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of [SECTION] of the [ACT] in [ENTITY] (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down timelimits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" [PRECEDENT]., "Common Cause", [PRECEDENT]., [ENTITY] Vs.[ENTITY] of Bihar and [ENTITY] II Vs. [ENTITY] of Bihar 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 accused. The [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 11/13 confusion on the issue was set at rest by a seven Judge Bench of this court in P. Ramachandra Rao Vs. [ENTITY] of Karnataka. Speaking for the majority, [ENTITY], J. (as his Lordship then was) while affirming that the dictum in [ENTITY]'s case (supra) is correct and still holds the field and the propositions emerging from [SECTION] of the [ACT] 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 [ENTITY]'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 factsituation 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 [SECTION], [SECTION] and [SECTION] of [ACT] to effectuate the right to speedy trial.
In appropriate cases, jurisdiction of the High Court under [SECTION] [ACT] and [SECTION] and [SECTION] of the [ACT] can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied)
(ix) Accordingly, in the opinion of the court, in the light of [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 12/13 the above cited judgments, the court needs to exercise its power under [SECTION] [ACT] qua offence u/[SECTION] [ACT] to make the ends of justice meet.
8. CONCLUSION: Keeping in view the facts and circumstances and the discussion made hereinabove, accused is hereby acquitted for offence punishable u/[SECTION] [ACT]. Digitally signed by [ENTITY] Date: 2019.06.25 11:34:00 +0530 Judgment dictated and [ENTITY] pronounced in the open Court ACMM:WEST DISTT:DELHI i.e. the 6th of June, 2019 (This judgment consists of 13 pages) [ENTITY] Vs. [ENTITY]; FIR No. 349/2016 Patel Nagar 13/13