IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT: SAKET COURT: NEW DELHI In Re: STATE VERSUS HARI PRAKASH ETC. [CASE NUMBER] U/[SECTION] [ACT] P.S. Defence Colony Date of Institution of Case : 14.11.1996 Judgment Reserved for : 17.09.2011 Date of Judgment : 17.09.2011 JUDGMENT:
(a) The serial no. of the case : 622/2/96 (b) The date of commission of offence : 20.08.1996 (c) The name of complainant : Sh. [ENTITY] S/o Sh. [ENTITY], R/o 2, Sanwal Nagar, New Delhi. (d) The name, parentage, of accused : 1) [ENTITY] 2) [ENTITY] S/o Sh. [ENTITY], R/o B29, Sanwal Nagar, New Delhi. 3) [ENTITY] 4) [ENTITY] 5) [ENTITY] All S/o Sh. [ENTITY], R/o H.No. 873, Mahawar Nagar, K.M. Pur, New Delhi. Present Address : As above (e) The offence complained of : U/s/323/506/34 [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : All accused persons acquitted (h) The date of such order : 17.09.2011
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 20.08.1996 at about 11.00 am at C3, Sawal Nagar, New Delhi, within the jurisdiction of police station Defence Colony, all accused persons in furtherance of their common intention voluntarily caused simple injuries upon complainant [ENTITY] by beating him with a rod and also threatened to kill him and thus thereby the accused persons 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 order dated 09.08.2004, charge u/[SECTION] [ACT] was framed against all the accused persons to which they pleaded not guilty and claimed trial.
3. Today matter was listed for PE however, no PW was present.
4. I have perused the records which includes my last orders i.e. orders dated 01.09.2011. The present matter pertains to year 1996 i.e. around 15 years old and still pending at the stage of PE.
5. In order to prove its case against the accused persons, the prosecution has so far examined three witnesses.
6. PW1 is the complainant who was allegedly beaten up and threatened by the accused persons. Record reveals that the examination in chief of this witness was partly recorded on 14.09.2005 and the same remained deferred till date. This implies that not only the chief examination was concluded but as a necessary corollary his cross examination could not be accordingly conducted. Hence, in view of the provision of [SECTION] read with [SECTION] of the [ACT] the examination in chief recorded so far cannot be read against the accused persons as the examination includes examination in chief as well as cross examination which is conducted by the adverse party so as to rebut/challenge/contradict/falsify the claims made in the examination in chief.
7. Similar is the case of PW3 [ENTITY]. Cross examination of this witness remained deferred vide proceedings dated 21.08.2006 and despite repeated processes as directed to be issued through the office of DCP/SHO/IO vide my orders dated 01.09.2011, 26.07.2011, 11.05.2011 as well as orders of my Ld. Predecessor dated 11.11.2010. Despite the directions and numerous opportunities given vide the above orders the prosecution failed to bring either PW3 or PW1 on record. It is reflected in the report on summons as issued against witness [ENTITY] and [ENTITY] i.e. report on summons dated, 17.09.2011, 26.07.2011,11.05.2011, 21.08.2006 etc. that both these witness who were real brothers were found no longer residing at the said address. Summons have been received back from the office of DCP/SHO. Though, they were directed to be served through IO however, IO/ASI [ENTITY] has already retired from the Services of Delhi Police.
8. As far as the other witness is concerned i.e. W/[ENTITY] (PW2), her testimony in the absence of the complainant or the eye witnesses shall not be sufficient to bring home the guilt against the accused persons as role of PW2 is confined merely to the recording of case FIR which is Ex. PW2/A.
9. Record further reveals that prosecution proposed to examine 11 witnesses in all. Witnesses whose name appear at serial no. 3 & 4 i.e. [ENTITY] and [ENTITY] also could not be brought to the witness box by the prosecution and it is reflected in the report on summons dated 12.04.2005, 14.09.2005, 21.08.2006, 11.05.2011, 26.07.2011 that they were found not residing at the said address. In fact, summons were returned to the court with the report that they had left the tenanted address and shifted to some other place.
10. Name of two more public witness appear in the list of witness at serial no. 5 & 11 namely [ENTITY] and [ENTITY]. However, none of them is the eye witness. The Ld. APP has conceded the same. Witness [ENTITY] is a photographer and statement of [ENTITY] is confined only to the aspect that [ENTITY] was a resident of C2, Sawal Nagar and he also had a ration card of the said address.
11. Remaining witnesses examined and 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.
12. In these circumstances and in view of my above discussion when despite repeated opportunities the witnesses could not be served and brought to the witness box neither the incident dated 20.08.1996 nor the exact circumstances in which the incident occurred as well as the identity of the accused persons as the perpetrators of crime cannot be established.
13. 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".
14. 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]).
15. 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 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.
16. Prosecution has failed to discharge its onus. Accordingly, accused persons are entitled to acquittal.
17. I order accordingly.
Announced in the open ([ENTITY]) Court today MM (SD)/Delhi/17.09.2011 [CASE NUMBER] U/[SECTION] [ACT] P.S. Defence Colony 17.09.2011 Pr: Ld. APP for state.
All accused persons are present on bail today.
No PW is present.
I have gone through my orders dated 11.05.2011, 26.07.2011 as well as 01.09.2011. Despite repeated opportunities, prosecution could not bring on record the material witnesses.
Matter is already 15 years old and the same cannot be allowed to linger on till eternity, more so when there is prospect of the complainant/injured being traceable/brought to the witness box. In their absence the prosecution story is likely to fall flat.
PE is accordingly closed.
SA is dispensed with as the same shall be an empty formality as no worthy incriminating material has been brought forward against the accused persons.
Vide my separate judgment announced today in the open court, accused persons have 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/personal bond furnished as per [SECTION] [ACT] and same are accepted vide separate endorsement.
File be consigned to record room after necessary compliance.
([ENTITY]) MM (SD)/Delhi.
17.09.2011 FIR No. 718/96 10/