IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN MAGISTRATE (WEST): DELHI F.I.R. No: 1109/00 U/[SECTION] [ACT] P.S. Nangloi STATE VS SATPAL Date of Institution of Case : 26.05.2001 Judgment Reserved for : 09.08.2010 Date of Judgment : 09.08.2010 JUDGMENT:
(a) The serial no. of the case : 4217/1/08 (b) The date of commission of offence : 10.12.2000 (c) The name of complainant : Sh. [ENTITY] S/o Sh. [ENTITY], R/o village Bhagwan Pur, PS Aehraouli, Distt. Deveriya, UP Present address : Factory No. 91, Swarn Park, Mundka, Nangloi, Delhi.
(d) The name, parentage, of accused : [ENTITY] S/o Sh. Parsa Ram, R/o A-3, Prem Nagar I, Kirai, PS Sultanpuri, Delhi.
Present Address : As above FIR No. 1109/00 1/ (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 : 09.08.2010.
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 10.12.2000 at about 9.00 am at factory No. 91, Swarn Park, Mundka, Delhi within the jurisdiction of police station Nangloi, accused [ENTITY] committed criminal tress pass in the aforesaid factory and further caused grievous injuries upon complainant [ENTITY] with a sharp edged weapon and thereby the accused committed offence punishable u/[SECTION] [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] Cr.p.c accused persons were supplied the documents. Thereafter vide order dated 04.12.2001, charge U/[SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
3. Record perused. In order to prove the charges against the accused, prosecution examined only four witnesses.
4. PW 1 [ENTITY] deposed that on 10.12.2000 he was posted at PS Nangloi as MHC(M) and on that day IO [ENTITY] deposited the case property i.e two pullanda duly sealed with the seal of ZSS in malkhana FIR No. 1109/00 2/ vide entry no. 4138 in register no. 19 as Ex. PW1/A.
5. PW 2 Ct. [ENTITY] deposed that on 10.12.2000 he was posted at PS Nangloi and on that day on receipt of DD no. 12 B he along with [ENTITY] reached at factory No. 91, Swarn Park, Mundka and they came to know from the public that one injured had already been taken to Soni Hospital. They reached at Soni hospital, where injured [ENTITY] met them and IO recorded his statement and made endorsement on the same and handed over the rukka to him and sent him to PS for registration of the case. He deposed that after registration, he went to the spot at Swarn Park and original rukka and copy of FIR handed over to the IO. Thereafter, they went to Kamruddin Nagar, where [ENTITY] joined the investigation in this case and then they reached again at Swarn Park where IO seized the cover of a sword from the spot and sealed the same with the seal of ZSS and same was taken into possession vide seizure memo Ex. PW2/A. He deposed that they again went to Kamruddin Nagar and on the instance of [ENTITY], they apprehended accused [ENTITY] (correctly identified) and prepared personal search memo Ex. PW2/B and arrest memo Ex. PW2/B-1. IO interrogated accused [ENTITY] and recorded his disclosure statement Ex. PW2/C. He deposed that on the instance of accused [ENTITY] they got recovered one sword in a banned condition from Swarn Park, railway line and same was seized by the IO and prepared pointing out and seizure memo Ex. PW2/D. He further deposed that IO recorded his statement.
This witness duly identified the case property as Ex. P1 & P2 when the same was produced by the MHC(M).
6. PW 3 Sh. [ENTITY], Record Clerk, Sonia Hospital FIR No. 1109/00 3/ deposed that he had been working in Sonia hospital since November 2004. He produced the record pertaining to [ENTITY] S/o [ENTITY]. He deposed that he had seen the [CASE NUMBER] dated 10.12.2002 which was prepared by Dr. [ENTITY] in respect of injured [ENTITY]. He identified the writing and signatures of Dr. [ENTITY]. He deposed that MLC was not prepared in his presence and he has no personal knowledge of this case. He deposed that Dr. [ENTITY] had left the service from Sonia hospital and his whereabouts he does not know. Medical report is Ex. PW3/A. He deposed that medical papers are signed by Dr. [ENTITY] and Dr. [ENTITY] who has also left the service of Sonia hospital.
7. During his cross examination he stated that medical report Ex. PW3/A was not prepared in his presence and Dr. [ENTITY] who prepared the medical papers did not sign the same in his presence. He stated that he has no personal knowledge of the injuries of [ENTITY]. He stated that medical papers were not prepared in his presence.
8. PW 4 [ENTITY] deposed that on 10.12.2000 he was posted at PS Nangloi as DO and at about 1.15 pm, he received a rukka which was sent by [ENTITY] through Ct. [ENTITY], on the basis of which he recorded the case FIR as Ex. PW4/A and after registration of the case FIR, he handed over the copy of FIR and original rukka to Ct. [ENTITY].
9. Record reveals that present prosecution was lodged at the instance of complainant [ENTITY] s/o [ENTITY]. However, the said witness is not FIR No. 1109/00 4/ traceable. Same is reflected in report on summons dated 06.09.2002, 02.04.2003, 02.12.2003, 04.03.2008, 27.08.2008, 17.09.2009 and 28.07.2010. The said summons have been duly forwarded by the SHO concerned. Today, separate of IO ASI [ENTITY] has also been recorded in this regard.
10. Apart from the complainant, prosecution proposed to examine ten witnesses in all.
11. Perusal of the list of witnesses reveals that one more public witness namely [ENTITY] was proposed to be examined by the prosecution. However, even he is also not traceable. Separate of IO ASI [ENTITY] has been recorded in this regard.
12. Complainant/injured [ENTITY] and witness [ENTITY] were the star/material witnesses of the prosecution story and their deposition was sine qua non for establishing the charges against the accused as it was the prosecution story that accused [ENTITY] on 10.12.2000 had inflicted dangerous injuries upon the complainant in factory number 91, Swarn Park, Mundka. Their absence has thus proved fatal for the prosecution as they could have proved the identity of the persons who inflicted injuries upon [ENTITY] i.e. whether it was the accused [ENTITY] or someone else. They could have proved the genesis of the crime and in their absence neither the identity of the accused persons nor their being the perpetrators of the crime as alleged by the prosecution can be established/ proved.
FIR No. 1109/00 5/ 13 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. The Ld. APP has conceded that none amongst them was a witness to the alleged incident dated 10.12.2000.
14. Hence, continuation of trial shall be an exercise in futility with no prospect of a result in favour of the prosecution. With no prospect of the said witnesses being traceable/brought to witness box trial cannot be allowed to be continued till eternity as same would be in violation of the fundamental right of speedy trial of the accused ([PRECEDENT], [PRECEDENT] and [PRECEDENT]).
15. 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".
16. 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], FIR No. 1109/00 6/ (P&H)(DB) ,1997(1) R.C.R.(Criminal) 662).
17. 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.
18. Prosecution has failed to discharge its onus. Accused [ENTITY] is accordingly entitled to acquittal.
FIR No. 1109/00 7/ 19. I order accordingly. ([ENTITY]) MM (W)/Delhi 09.08.2010 FIR No. 1109/00 8/ FIR No. 1109/00 9/ 0/ PS Nangloi Pr: Ld. APP for state. Accused is present on bail.
No PW is present apart from IO ASI [ENTITY]. Perusal of the record reveals that the complainant [ENTITY] and witness [ENTITY] not traceable and apart from the said witnesses there is no other eye witness of the incident. Separate statement of the IO in this regard has been recorded.
Matter pertains to year 2000 i.e. already 10 years old. I have perused order dated 17.09.2009 to 28.07.2010. In view of the statement of the IO recorded today and with no prospect of the witnesses being traceable, PE stands closed as trial cannot be allowed to go till eternity.
As no worthy incriminating material has been brought against the accused, S.A is dispensed with.
Vide my separate judgment announced today in the open court accused [ENTITY] 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.
File be consigned to Record Room.
([ENTITY]) MM (w)/Delhi.
09.08.2010 1/