Delhi District Court
Cr. Case/289951/2016 on 12 September, 2019
IN THE COURT OF SH. ASHU GARG
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
New Case No. 289951/2016
CNR No. DLCT02-002812-2016
FIR No.: 532/15
PS: Desh Bandhu Gupta Road
U/s 379/34 IPC
State v. Mohd. Murtaza @ Raj
(a) CIS No. of the case : 289951/2016
(b) Name of complainant : Md. Abid
S/o. Md. Daud
R/o. Hounse No. 9340,
Katra Ganga Bishan,
Kishan Ganj, Delhi
(c) Date of commission of offence : 28.09.2015
(d) Name of the accused : Mohd. Murtaza @ Raja
S/o. Mohd. Jaggi
R/o. B-24, 2nd Floor,
New Jafrabad, Delhi
(e) Offence complained of : U/s. 379/34 IPC
Charges framed : U/s. 379/34 IPC
Charges amended : U/s. 392/34 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 26.08.2019
(h) Final Order : Acquitted.
(i) Date of such order : 12.09.2019.
FIR No.532/2015 P.S. DBG Road Page No. 1 of 13
JUDGEMENT:
1. Accused Mohd. Murtaza had been charge-sheeted by the officers of PS DBG Road for commission of the offence punishable under section 379/34 IPC, with the allegations that on 28.09.2015, at about 01.00 PM, near Shani Mandir, East Park Road, he along with his two accomplices (since not apprehended/identified/located), in furtherance of their common intention, committed theft of cash of ₹ 20,000/- in a moving bus, from out of the possession of the complainant Mohd. Abid.
2. As per the case of the prosecution, on 28.09.2015, DD No. 18 PP was received by the police officials, upon which HC Mahender Pal along with Ct. Satish reached near Filmistan Cinema where the complainant Md. Abid, who had already apprehended the accused Md. Murtaza, met them. The complainant informed that he was travelling on a bus plying at route no. 937 from Sultanpuri to his house; that when the bus reached near Shani Mandir, East Park Road at around 01:00 PM, while he was standing to deboard, one person came and stood near him; that the said person, who was accompanied with two more boys, tried to put his hand in the pocket of his trousers upon which he got suspicious; that the complainant caught hold of the hand of the person, when those persons managed to get down from the bus; that the complainant also chased them and managed to apprehend one boy while the other two boys managed to flee away; that when the complainant checked, he found cash of ₹ 20,000/- missing from the front pocket of his trousers; that public persons gave the apprehended boy beatings; and that the complainant made a call to police. The apprehended boy is the accused herein, while his two accomplices managed to flee away. On the statement of the complainant, the present FIR was registered under FIR No.532/2015 P.S. DBG Road Page No. 2 of 13 section 379/34 IPC. The accused was arrested and booked in the present case. He disclosed the names of his accomplices as Naeem and Rashid, and stated that the cash had been handed over to Rashid. Despite efforts, neither the said accomplices could be apprehended nor the stolen cash could be recovered. After completion of investigation, the present charge-sheet was filed against the accused on 16.03.2016.
3. Cognizance of the offence under section 379/34 IPC was taken by the court on 16.03.2016 itself and charge was framed for commission of the said offence vide order dated 08.04.2016, to which the accused pleaded not guilty and claimed trial.
4. It may be noted that while the complainant Md. Abid was being examined as PW-1 on 07.05.2016, he claimed that while committing theft, the assailants had caught hold of his hand and had forcibly robbed him of his cash. Upon this, the prosecution moved an application under section 216 CrPC seeking amendment of charge. The said application was allowed vide order dated 05.12.2016 and the charge was amended from section 379/34 IPC to section 392/34 IPC, to which the accused again pleaded not guilty and claimed trial.
5. At the trial, the prosecution examined for witnesses in all in support of its case.
6. PW-1 Md. Abid is the complainant and the sole eye-witness of the alleged incident. During his examination-in-chief recorded on 07.05.2016, he not only supported the prosecution case but also deposed about additional facts resulting in amendment of charge to a graver offence. He FIR No.532/2015 P.S. DBG Road Page No. 3 of 13 stated that while he was returning to his home from Sultanpuri by bus on route no. 937, he stood up from his seat to deboard the bus at around 01:00 PM near Shani Mandir, East Park Road. In the meanwhile, 3 to 4 persons, including the accused (whom he identified in the court) surrounded him, caught hold of his hand and forcibly took out cash of ₹ 20,000/-. He tried to save himself and the money, but could not do so as the assailants were four in number. In the scuffle, his bus tickets and documents kept in the front pocket of his shirt were also lost. All the assailants, including the accused, tried to flee away after robbing him of his cash, but he apprehended the accused with the help of public persons while the other associates of accused managed to flee away with cash. He made a call to the police and made complaint Ex. PW-1/A. He claimed that he had told all these facts to the police but was not aware why these facts were not mentioned in the said complaint.
7. After the charge was so amended on the basis of this statement of the complainant/PW-1, he was recalled for further examination/cross- examination on 20.11.2017. However, the complainant now took a complete U-turn when cross-examined by the Ld. Defence Counsel. He stated that the bus was heavily crowded where pushing and pulling was going on; that he was standing in the middle of the bus as there was no seat to sit; that he was not aware as to in which pocket he had kept cash; and that he had felt sensation in his pocket that someone had put his hand inside. He accepted that he ran as soon as the crowd raised alarm. Now claiming that he had given his earlier statement at the instance of the IO, he deposed that he could not say if money in his pocket had been taken out by someone or otherwise had fallen in the crowd, stating that when he checked his pocket, he found the money missing. He went on to say that he had taken the name FIR No.532/2015 P.S. DBG Road Page No. 4 of 13 of the accused to the police on suspicion and under the pressure of the IO.
8. Upon this version coming up in the testimony of PW-1, he was re- examined by the Ld. APP for the State, during which he maintained that his previous statement dated 07.05.2016 had been given at the instance of and under the pressure of the IO. He denied that the previous statement had been made voluntarily or the statement being made that day was false having been won over by the accused.
9. During his further cross-examination by the Ld. Defence Counsel, PW-1 denied that the IO had told him to depose as per his version upon which he would get his money back. He however maintained that the IO had never threatened him or pressurized him as such.
10. PW-3 W/Ct. Pushpa was the DD writer who had recorded DD no. 18 PP Ex. PW-3/A. PW-2 Ct. Satish Kumar and PW-4 HC Mahender Pal (IO of the case) had reached the spot upon receipt of DD No. 18 PP, where the complainant produced the accused and gave his statement Ex. PW-1/A. PW-4 prepared the tehrir Ex. PW-4/A and the site plan Ex. PW-4/B and sent PW-3 for registration of the FIR. The accused was arrested and personally searched vide memos Ex. PW-2/A and Ex. PW-2/B, and his disclosure statement Ex. PW-2/C was recorded. The police officials tried to search the co-accused persons but neither they could be apprehended nor the case property could be recovered. After completion of investigation, PW-4 filed the charge-sheet in the court.
11. Statement of the accused under section 313 CrPC was recorded on 29.07.2019, wherein he denied the allegations and pleaded innocence. Though he admitted that he was travelling in the bus in question, yet FIR No.532/2015 P.S. DBG Road Page No. 5 of 13 claimed that he had never committed any offence. He stated that the offence had been committed by 3-4 other boys who managed to flee away but he was apprehended on suspicion. He termed the documents to be fabricated and claimed that his signatures had been obtained on some empty and some filled papers at the PS without telling him what those papers were. He however chose not to lead any evidence in defence.
12. It is in these circumstances that the Ld. APP has argued that the prosecution has been able to prove its case against the accused, primarily on the ground that the accused had been apprehended by the complainant himself and handed over to the police, as also revealed from his complaint Ex. PW-1/A, the genuineness of which has never been disputed. It is submitted that something must have transpired between the complainant and the accused during the intervening period after recording of his examination-in-chief, as a result of which he turned hostile during his cross- examination subsequently. It is argued that despite such hostility of the complainant during his cross-examination, sufficient material is there in his examination-in-chief to nail the accused, who had been duly identified by the complainant and specific role had been attributed to him. It is submitted that the subsequent version of the complainant, that he had deposed falsely against the accused at the instance of the IO, cannot be believed because the IO never threatened or pressurised him, that the police officials were not even in the picture when the accused had been apprehended, the details of the case have been given in the initial complaint given to the police, and that the complainant never claimed any such pressure/threat at any previous stage in the court. It is thus argued that the accused be convicted on the basis of the testimony of the complainant as given in his examination-in- chief, uninfluenced by his hostility during his cross-examination conducted FIR No.532/2015 P.S. DBG Road Page No. 6 of 13 subsequently.
13. On the other hand, Ld. Counsel appearing on behalf of accused has argued that the prosecution case has to fail because of complete hostility of the sole eye-witness PW-1. It is submitted that no conviction can be based only on the version of a witness given in his examination-in-chief, as the credibility of the witness is determined only on the basis of his cross- examination. It is submitted that PW-1 it is not a reliable or credible witness on the basis of which the accused could be convicted in the present case.
14. I have considered the rival submissions made by the Ld. APP for the State as well as the Ld. Defence Counsel for the accused and have perused the record.
15. A perusal of the evidence would clearly show that the prosecution case is entirely based on the testimony of the sole eye-witness PW-1 (complainant herein), as the other witnesses examined on record merely participated in subsequent investigation in a formal manner. PW-2, PW-3 and PW-4 had never witnessed the incident nor had seen any overt act on the part of the accused to be called as an offence. They merely carried out procedural formalities after the accused was handed over to them. It has already come on record that neither any other accomplice could be apprehended nor the stolen property, that is, cash of ₹ 20,000/-, could be recovered from anyone or anywhere. Therefore, it is only the testimony of PW-1 that shall determine the fate of the present case.
16. As already noticed above, the complainant PW-1 not only supported the prosecution case during his examination-in-chief but also deposed about FIR No.532/2015 P.S. DBG Road Page No. 7 of 13 additional facts resulting in amendment of charge to a graver offence. However, it is certain that something did transpire during the intervening period as a result of which the said witness took a U-turn and completely resiled from his previous statement. Initially, the complainant identified the accused to be one of the four assailants who had robbed him of his cash by catching hold of his hand and forcibly taking out ₹ 20,000/- from his possession. However, he later claimed to have made this statement at the instance of and under the pressure of the IO, thereby stating that he was not even aware if the cash had been taken by someone or otherwise had fallen in the crowd. He now claimed that his money was found missing when he checked his pocket. This is complete somersault.
17. Irrespective of such change of stands by the complainant, it can be said that the allegation made by him, that he had given earlier statement at the instance of or under the pressure of the IO, have remained not proved. Apparently, the police officials were never into the picture when the accused had been apprehended by the complainant himself. The police officials were not having any previous acquaintance or enmity with the accused so as to give them any reason to falsely implicate him in a false case. They had no motive or reason to implicate an innocent person in such a case and it does not appeal to the senses that any independent person (complainant herein) would involve himself at the instance of police officials without any reason. This is particularly when PW-1 during his re- examination by the Ld. APP accepted that he had never informed the court that he had been pressurized, and even during his further cross-examination by the Ld. Defence Counsel when he maintained that the IO had never threatened or pressurized him or given any assurance of return of money if he deposed as per his version. Apparently, no such suggestion was given to FIR No.532/2015 P.S. DBG Road Page No. 8 of 13 PW-2 or even the IO PW-4, so as to enable them to admit or deny or explain the same. PW-4 was not even cross-examined by the defence and his testimony has remained unrebutted and unchallenged. Therefore, it can never be said that the hostility of PW-1 was on account of any threat or pressure of the IO.
18. Despite this position, the fact remains that PW-1 has turned hostile and did not support the prosecution case during his cross-examination. Of course, the version of the witness during his examination-in-chief cannot be ignored altogether, yet it has to be accepted that the testimony of a witness has to be read as a whole. If a witness has chosen not to support the prosecution case during his cross-examination, for any reason whatsoever, particularly considering the time gap between his examination-in-chief and cross-examination, his evidence has to be appreciated accordingly. In case there are material inconsistencies, contradictions, missing links or improvements in the testimony of the witness, when read as a whole, and if such contradictions go to the root of the matter, the benefit of the same shall have to be given to the accused.
19. It has to be understood that the complainant had changed his version not once but thrice. In his initial complaint given to the police Ex. PW-1/A, he only alleged commission of theft by the accused along with his two accomplices, without attributing any allegation of robbery. He identified his signatures on this complaint and never claimed that the statement had been recorded by the police officials of their own without explaining the same to him. However, during his examination-in-chief, he changed his version for the first time and claimed that the accused was accompanied with 3 more boys who had robbed him of his cash by using force. He FIR No.532/2015 P.S. DBG Road Page No. 9 of 13 expressed his ignorance as to the contents of Ex. PW-1/A and stated that he had informed about the facts to the police but was not aware why those facts were not mentioned in the said complaint. He again changed his version for the second time during his cross-examination when he claimed that his previous statement had been falsely made under the pressure of and at the instance of the IO. He changed his version for the third time during his further cross-examination, wherein he maintained that the IO had never pressurized or threatened him.
20. The reason for such improvements being made by the complainant are not clearly visible from record, though it can be certainly said that the said witness is not at all reliable. In my considered view, it shall not be safe to rely on the testimony of such a witness who has been changing his stand repeatedly, so as to convict a person for commission of a criminal offence. Though it is apparent that something did transpire between the complainant and the accused after he was examined-in-chief, yet the hostility of the complainant is of such a nature which would go to the root of the matter.
21. Even otherwise, it may be noted that the complainant had never seen the accused to have actually taken out money from his pocket. It is nowhere in his statement Ex. PW-1/A that the boy whom he had apprehended, had taken out cash from his pocket. He merely stated that he had caught hold of the hand of one person who was attempting to put his hand in his pocket, that the said person and his accomplices started running and he chased them, that he was able to apprehend the accused with the help of public persons, and when checked, he found cash of ₹ 20,000/- missing from his pocket. He never claimed that he had seen the accused taking out money from his pocket or handing over the same to any of his accomplices.
FIR No.532/2015 P.S. DBG Road Page No. 10 of 13Similarly, during his examination-in-chief, he never attributed any specific role to the accused as such, though stated that accused and his accomplices had robbed him by forcibly taking cash of ₹ 20,000/-. In that statement, the complainant never stated as to where he had kept his money and in what manner the money was forcibly taken by four assailants. No role had been attributed to any specific assailant. During his cross-examination subsequently, he stated that he was not aware as to in which pocket he had kept cash, though stated that he had felt some sensation in his pocket that someone had put his hand inside. He categorically stated that he could not say if money in his pocket had been taken out by someone or otherwise had fallen in the crowd, as he found his money missing when he checked his pocket. Even in this statement, the complainant never claimed that he had seen any particular person taking money out from his possession or handing over the same to any other person who managed to flee away. He had merely found his money missing while he was travelling in the bus, though he suspected some persons to be the offenders who had started running after getting down from the bus. Though he chased the boys and apprehended the accused, but neither his money could be recovered from his possession or from the possession of some other person at his instance. No other assailant could be apprehended nor the stolen money could be recovered.
22. In view of this position, what remains in the testimony of PW-1, is only a strong suspicion against the accused and nothing else. There is no witness who might have seen the accused taking out money from the pocket of the complainant or handing it over to any of his accomplices. Even after his apprehension, neither any such stolen property could be recovered from his possession, nor any other assailant could be apprehended, nor any such property could be recovered from anywhere or any other person. When the FIR No.532/2015 P.S. DBG Road Page No. 11 of 13 complainant himself claims, rightly or falsely, that he is not sure if the money in his pocket had been taken out by someone or had otherwise fallen in the crowd, the court cannot say with certainty as to if such loss of money was a result of theft or robbery or it was only a case of loss of money in the crowd. Irrespective of the reason of hostility of PW-1, the constant improvements and variations being made by him in his testimony, would be sufficient to hold that he is not a reliable or credible witness so as to base conviction of the accused in the present case. Such a situation would go to root of the matter and would be sufficient to create a dent in the prosecution case. The benefit of doubt has to be therefore given to the accused.
23. This is particularly when there is no other witness who could corroborate the testimony of the complainant. The complainant claimed to have apprehended the accused with the help of public persons, but no such public person has been made a witness in the present case, nor their names or identities are known. The record reveals that the statement of one Mohd. Habib had also been recorded under section 161 CrPC who claimed to have given cash of ₹ 20,000/- to the complainant on account of one committee (chit fund transaction), to establish source of the money with the complainant, but this person was never made a witness in the present case and not examined in the court.
12. In such a position, it can be said that on account of the hostility of the sole eyewitness PW-1, the prosecution has not been able to prove its case against the accused beyond the shadow of reasonable doubt. The burden is always on the prosecution to establish this fact and this burden never shifts on the accused to explain that he was not the offender.
FIR No.532/2015 P.S. DBG Road Page No. 12 of 1314. The accused Mohd. Murtaza is therefore given the benefit of doubt and is acquitted of the charges. His bail bond shall remain in force in terms of Section 437-A, Cr.P.C.
15. File be consigned to Record Room.
Digitally signedASHU by ASHU GARG Date: Announced in the open Court GARG 2019.09.12 15:00:32 this 12th Day of September, 2019 +0530 (Ashu Garg) Chief Metropolitan Magistrate (Central) Tis Hazari Courts, Delhi FIR No.532/2015 P.S. DBG Road Page No. 13 of 13