Delhi District Court
State vs . Aslam @ Muslim on 11 March, 2014
IN THE COURT OF SHRI PAWAN KUMAR: METROPOLITAN
MAGISTRATE01 (SOUTHEAST), SAKET COURTS:NEW DELHI
State Vs. Aslam @ Muslim
FIR No. 74/2005
U/s 356/379/34 IPC & 420/511 IPC
P.S. Sri Niwas Puri
J U D G M E N T
Serial No. of the Case : 107/1
Unique Identification No. : 02403R0145522005
Date of Institution : 01.04.2005
Date on which case reserved for
judgment : 04.03.2014
Date of judgment : 11.03.2014
Name of the complainant : Shri Hemant Kumar
s/o Shri Vishnu Dutt
r/o H.No. G51, New Seelampur,
Delhi
Date of the commission of offence: 05.02.2005
FIR No. 74/2005
P.S. Sri Niwas Puri Page No.1 of 8
Name of accused : Aslam @ Muslim
s/o Shri Abdul Karim Miyan
r/o VillageRudal Pur P.S. Jaga Patti
DistrictBetia (Bihar)
Offence complained of : U/s 356/379/34 IPC & 420/511 IPC
Offence charged of : U/s 420/511 IPC & 356/379/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : Accused Aslam is convicted for the
offences punishable U/s 356/379/34
IPC and is acquitted for the offences
punishable U/s 420/511 IPC
Date of Institution : 01.04.2005
Date on which case reserved for
judgment : 04.03.2014
Date of judgment : 11.03.2014
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
In the present case, the accused Aslam is facing trial on the charge of offences punishable U/s 420/511 IPC & 356/379/34 IPC. The present case FIR arises FIR No. 74/2005 P.S. Sri Niwas Puri Page No.2 of 8 out of the statement of Shri Hemant Kumar (hereinafter to be referred as complainant). As per the statement, the accused & his associate namely, Nizam induced him to make the payment of Rs.10,000/ in order to supply fake currency notes of Rs.30,000/. Further it is alleged that when he along with his partner Rahul reached at the spot, the accused & Nizam came in a car and Nizam snatched Rs.6,000/ from his hand. The accused assisted his associates in order to run away from the spot with the snatched money. The accused was apprehended at the spot with the help of the public person and other associate managed to run away from the spot and could not be arrested during investigation. On the basis of aforesaid facts, the present case FIR was registered.
2. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, vide order dated 28.07.2005 separate charge was framed against the accused for commission of offence under Section Section 420/511 IPC & 356/379/34 IPC to which he pleaded not guilty and claimed trial.
4. Prosecution examined two witnesses in order to prove their case.
PW1 Shri Rahul Verma did not support the prosecution case in its FIR No. 74/2005 P.S. Sri Niwas Puri Page No.3 of 8 entirety.
PW2 Shri Hemant Kumar (the complainant) deposed that in the year 2005 he used to run a gift item shop along with his partner Rahul. His partner used to receive a call from the accused and he told him that the accused can give fake currency notes of Rs.30,000/ for the sum of Rs.10,000/. On the insistence of his partner the witness accompanied his partner on 05.02.2005 at 06:00PM to Ashram Chowk with sum of Rs.10,000/ in cash. In the meantime, Aslam & Nizam came to the spot and asked him to accompany them to different place as one other person is waiting. He kept Rs.6,000/ in one envelope and Nizam snatched the said envelope and sat in a maruti van by pushing him. He caught hold the collar of the driver of the said maruti van and raised the alarm. The said driver was rescued by the accused Aslam and one of his associate. The accused was apprehended at the spot, however, the driver and other person succeeded to run away from there. He made 100 number call and handed over the accused to them. Police recorded his statement Ex.PW2/A. He pointed out the place of incident to the police. He witnessed the arrest and personal search of accused vide memo Ex.PW2/B & Ex.PW2/C. The witness was not crossexamined by the accused despite the opportunity being given.
Out of the remaining witnesses, PW Gaurav, Jagdish & Rajbir were dropped from the list of prosecution witnesses vide order dated 19.02.2014 as they were reported to be untraceable through concerned DCP. IO was FIR No. 74/2005 P.S. Sri Niwas Puri Page No.4 of 8 reported to have expired and accordingly, he was also dropped.
7. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
8. No defence witness was examined on behalf of the accused.
9. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 420:
"Whoever, dishonestly induces by way of cheating to deliver any property to any person or to make alter or destroy the whole or any part of the valuable property is liable to be punished. Essential ingredient of Section 420 are:
Cheating and dishonest inducement to deliver any property.
Section 415 defines cheating in following terms: Anything done with an intent to defraud but not otherwise. In substance, the ingredients of offence of section 420 are:
(i) There should be fraudulent or dishonest inducement of a person by deceiving him.
(ii) The person so deceived should be induced to deliver any property to any person or the person so deceived should be FIR No. 74/2005 P.S. Sri Niwas Puri Page No.5 of 8 intentionally induced to do or to omit to do anything which he would not do or omit, if he were not so deceived.
10. The allegations in brief are that the accused along with other associate induced the complainant to pay Rs.10,000/ for the supply of fake currency of Rs.30,000/. Further when the complainant visited the the spot to deliver the money, a sum of Rs.6,000/ was snatched by the associate of the accused and he helped the associate to run away from the spot. The case of the prosecution is that the accused committed the alleged offences in furtherance of the common intention with his associate.
11. As far as the allegation of the offence U/s 420/511 IPC are concerned, there is no evidence on record to substantiate the allegation against the accused. The case of the prosecution is that partner of the complainant namely Rahul used to receive call from the accused and he told the complainant regarding the said transaction. As such PW1/complainant is hearsay evidence and is not relevant. It is a settled law that the court cannot take into consideration the testimony of hearsay witness.
12. PW2/complainant categorically stated in his testimony that when Nizam & the driver of the said van were trying to run away from the spot the complainant caught hold the collar of the driver of the van and accused Aslam rescued FIR No. 74/2005 P.S. Sri Niwas Puri Page No.6 of 8 the said driver and his associate. The testimony of PW2 remains uncontradicted as he was not crossexamined despite the opportunity being given.
The case of the prosecution is that the accused committed the act in furtherance of common intention and therefore, the charge was framed for the offences punishable U/s 356/379/34 IPC.
13. Section 34 lays down a principle of joint liability in the doing of a criminal act. To invoke Section 34 of the Code, the prosecution must prove beyond reasonable doubt that teh criminal act was done by one or more of several accused in furtherance of the common intention of all. No doubt, it is difficult if not impossible to procure direct evidence to prove the intention of an individual since it is subjective one; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case.
Pandurang AIR 1955 SC 216: 1955 Cri LJ 572 (SC).
The totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. The prearranged plan may develop on the spot during the course of commission of the offence but the crucial circumstance is that the said plan must precede the act constituting the offence.
14. There is no rule of law that the testimony of a single witness cannot be accepted and the conviction cannot be based on such evidence, if believed. The FIR No. 74/2005 P.S. Sri Niwas Puri Page No.7 of 8 testimony of a single witness if it is straightforward, cogent and if believed is sufficient to prove the prosecution case, the conviction can be made on the testimony of such a single witness.
15. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused.
16. On the basis of facts and circumstances, the prosecution miserably failed to establish the charge for the offences punishable U/s 420/511 IPC. Accordingly, the accused Aslam is acquitted of the offences punishable U/s 420/511 IPC.
However, the prosecution established the allegations for commission of offences punishable U/s 379/356/34 IPC against the accused. Accordingly, the accused is convicted for commission of offences U/s 356/379/34 IPC.
11. Let the parties be heard on the point of sentence.
Pronounced in open court (PAWAN KUMAR)
on 11.03.2014 MM01 (SouthEast): Saket Courts:
New Delhi:11.03.2014
FIR No. 74/2005
P.S. Sri Niwas Puri Page No.8 of 8