IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH EAST DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS MANOJ KUMAR F.I.R. No: 13/00 U/[SECTION] [ACT] P.S. Sarita Vihar Date of Institution of Case : 19.10.2000 Judgment Reserved for : 06.03.2013 Date of Judgment : 06.03.2013 JUDGMENT:
(a) The serial no. of the case : 641/2/00 (b) The date of commission of offence : 11.01.2000 (c) The name of complainant : Sh. [ENTITY] s/o Late Sh. [ENTITY]. (d) The name, parentage, of accused : [ENTITY] s/o [ENTITY], R/o c/o Jagan Pardhan, B30, Village Jasola, New Delhi (e) The offence complained of : U/[SECTION] [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 06.03.2013 FIR No. 13/00 St. Vs. [ENTITY]
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 11.01.2000 at 10.00 p.m. in Apollo Hospital, New Delhi accused committing lurking house tress pass at night and was caught red handed when he was trying to break one female locker bearing no. LCR34 in the locker room and thus thereby the accused committed offence punishable u/[SECTION] [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] [ACT] accused was supplied the documents. Thereafter vide orders dated 01.11.2001 charge u/[SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
3. So far prosecution examined only one witness.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 ASI [ENTITY] deposed that on 21.12.2000 he was posted as Duty Officer and on that day he recorded FIR no. 13/00 i.e. Ex. PW1/A.
5. This so far is the prosecution evidence in the matter.
6. I have perused the record. Prosecution proposed to examine 6 witnesses FIR No. 13/00 St. Vs. [ENTITY] in all in the present matter which included complainant [ENTITY] and eye witness [ENTITY]. However despite ample opportunities prosecution failed to bring on record either of the above two witnesses. The charge in the present matter was framed in the year 2001 and since then repeated processes were issued against the complainant and eye witness [ENTITY] through the office of DCP/SHO/IO however as per report on the summons/processes since 2001 till date they remained not traceable at the address available on record as they shifted from there. Apart from the report on the processes I have also gone through statement of IO HC [ENTITY] and HC [ENTITY] as examined by Ld. [ENTITY] of this court vide proceedings dated 26.09.2011 and 29.08.2012. As per their statements despite due efforts neither the complainant nor the eye witness could be traced.
7. Deposition of complainant [ENTITY] and eye witness [ENTITY] who had allegedly caught the accused while he was breaking open the locker was sine qua non for bringing home the guilt against the accused. They were the star/material prosecution witnesses and their testimony was essential to surface/elicit the truth. In their absence neither the incident of trespass or of attempt to break open the locker can be proved nor the identity of the accused can be established. Their absence thus proved fatal and in fact sounded death knell for the prosecution case as the remaining witnesses are official/formal in nature who came into picture later on and none amongst them is the eye witness of the incident. In their absence there shall always be shadow of doubts upon the FIR No. 13/00 St. Vs. [ENTITY] prosecution case.
8. Hence continuation of trial in the present matter which is 13 years old shall be a exercise in futility with no prospect of a result in favour of the prosecution. PE stands accordingly closed. SA is dispensed with as prosecution could not bring any worthy incriminating material on record against the accused.
9. 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]).
10. 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 Vijayee Singh v. State of U.P., (SC) 1990(3) FIR No. 13/00 St. Vs. [ENTITY] S.C.C. 190 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.
11. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
12. I order accordingly.
Announced in the open ([ENTITY]) Court on 06.03.2013 MM (SD)/Delhi FIR No. 13/00 St. Vs. [ENTITY] F.I.R. No: 13/00 U/[SECTION] [ACT] P.S. Sarita Vihar 06.03.2013 Pr: Ld. APP for state. Accused is present on bail today. No PW is present.
Process to complainant and eye witness yet again received back with the report that they are not traceable.
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 06.03.2013 FIR No. 13/00 St. Vs. [ENTITY] FIR No. 13/00 St. Vs. [ENTITY]