Delhi District Court
State vs . Julia @ Mochi on 18 July, 2023
IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE
DISTRICT EAST, KARKARDOOMA COURTS, DELHI
Presided by: Ms. Kadambari Awasthi, DJS
State Vs. Julia @ Mochi
FIR No. 255/22
PS. Kalyan Puri
U/s. 356/379/411 IPC
JUDGMENT
1) Case ID No. : 2352/22
2) The date of commission of offence : 10.02.2022
3) The name of the complainant : Ms. Rakhi
4) The name & parentage of accused : Julias @ Mochi
S/o Sh. Pappu
5) Offence involved : 356/379/411 IPC
6) The plea of accused : Pleaded not guilty
7) Final order : Convicted
8) The date of such order : 18.07.2023
Date of Institution : 04.04.2022
Judgment reserved on : 05.07.2023
Judgment announced on : 18.07.2023
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Prosecution case emanates from the allegations that on 10.02.2022 at about 7.40 PM at Chand Cinema, Trilokpuri, Delhi within the jurisdiction of PS - Kalyan Puri the accused Julica @ Mochi had used criminal force to the complainant Ms. Rakhi in attempt to commit theft of her mobile phone make Vivo with an FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 1 of 10 intention to take dishonestly the said mobile phone out of the possession of the complainant without her consent. That the said mobile phone belonging to the complainant was then recovered from the possession of accused which he retained knowingly having reasons to believe to be the same to be stolen property and thereby the accused has committed the offence punishable u/s 356/379/411 IPC.
2. Upon completion of the investigation the instant charge- sheet for the offence punishable under section 356/379/411 IPC was filed by the Investigating Officer against the accused. The compliance of section 207 Cr.P.C. was made and thereafter the charge for the offence punishable under section 356/379/411 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. To substantiate its case, prosecution has examined three witnesses in the case.
4. PW1 Ms. Rakhi has deposed that on 10.02.2022 at about 7.30 PM near Chand Cinema, she was waiting for e-rickshaw meanwhile the accused (correctly identified as offender in the court) one person came and snatched her mobile phone from her hand. She raised alarm, upon which police officials present nearby apprehended the accused at the spot and her mobile phone was recovered from the possession of the accused. Police recorded her statement Ex. PW-1/A and also prepared site plan Ex. PW-1/B. Police seized said mobile phone vide seizure memo Ex. PW-1/C and arrested the accused vide arrest memo Ex. PW-1/D. Personal search memo and disclosure FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 2 of 10 statement Ex PW-1/E and Ex.PW-1/F. She got released her mobile phone vide panchnama Ex. PW-1/G and superdarinama is Ex. PW- 1/H. She correctly identified the photograph of case property is Ex. P- 1 (colly). Witness was cross-examined by the Ld. counsel for accused.
5. PW2 SI ASI Satish Kumar has deposed that on 10.02.2022, when he reached near Chand Cinema, he saw one lady was raising alarm 'chor chor'. He deposed that the said lady was chasing one boy who was wearing a red sweater and a blue colour jeans. In the meanwhile, Ct. Kirori also reached at the spot and thereafter, he alongwith Ct. Kirori caught the said boy, thereafter, formal on the formal search of accused, a mobile phone belonging to the complainant recovered from right side pocket of accused. He deposed that he recorded the statement of complainant . He prepared the Tehrir (original Rukka) which is Ex. PW-2/A which was handed over to Ct. Kirori at about 9.50 pm for registration of FIR. He deposed that after registration of FIR, Ct. Kirori came at the spot alongwith copy of FIR and original rukka and same were handed over to him he prepared the site plan, seized the mobile phone, prepared memos. He deposed that he obtained CAF of SIM which is Ex. PW-2/B. He correctly identified the witness. Witness was cross-examined by the Ld. counsel for accused.
6. PW3 Ct. Kirori has deposed that on 10.02.2022, during patrolling duty, he alongwith HC Satish Kumar caught the accused and recovered the mobile phone of the complainant from the possession of accused. He deposed the same lines as deposed by the PW-2. Witness FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 3 of 10 was cross-examined by the Ld. counsel for accused.
7. Upon completion of the prosecution evidence the respective statement of the accused under section 313 of Cr.P.C. was recorded and the evidence surfaced against him during the trial was put to him. The accused denied it's correctness and pleaded innocence. The accused opted not to lead defence evidence.
8. I have heard arguments on behalf of the State as well as arguments advanced by Ld LAC for the accused and also perused the record.
10. The Ld. APP for the State has argued that the prosecution has proved its case beyond reasonable doubts. The testimonies of the witnesses have proved that the accused had committed the theft and forcefully snatched the phone of complainant. The complainant has correctly identified the accused in the Court. The accused has not led any evidence. It was argued that the prosecution was able to prove all the ingredients of the offence punishable under Section 356/379/411 IPC in the present case and the guilt of the accused has also been proved beyond reasonable doubt. Hence, it is prayed, that the accused be convicted.
11. Ld. Counsel for the accused has argued that the prosecution has failed to prove its case against the accused beyond reasonable doubt. That there are various contradictions in the testimonies of the witnesses of the prosecution. It is submitted that nothing was recovered from the possession of the accused and FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 4 of 10 recovery was planted upon him. That no other public witness has been joined by the IO and the complainant is an interested witness. That the complainant has identified the accused at the instance of the police officials. That all these facts and circumstances create reasonable doubts in the case of the prosecution. It is prayed that the benefit of doubt be given to the accused and he should be acquitted.
12. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
13. In the present case, the accused has been charged for committing an offence punishable under section 356/379/411 IPC.
14. In the present case, The complainant has deposed as PW1. In her deposition she has distinctly stated that at the aforesaid date, time and place, the accused has committed the theft of her mobile phone. She has categorically and unequivocally identified the accused. The mobile phone of the complainant was recovered at the spot from the possession of the accused. Therefore from the testimony of the complainant, the commission of the offence of theft punishable under section 356/379/411 IPC is established.
24. Section 349 IPC reads as follows:
FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 5 of 10
349. Force.--A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described.
(First) -- By his own bodily power.
(Secondly) --By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.
(Thirdly) -- By inducing any animal to move, to change its motion, or to cease to move.
Section 356 IPC provides as follows:
356. Assault or criminal force in attempt to commit theft of property carried by a person.--Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
16. The complainant has deposed that her mobile phone has not simply been taken away but it was snatched from her hand. This specifically shows that force has been used in committing the theft of the phone. The mobile of complainant was recovered at the spot from the possession of the accused which was correctly identified by the FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 6 of 10 complainant and witnesses. Therefore the commission of the offence punishable under section 356 IPC read with section 379 IPC & 411 IPC has been Proved by the prosecution beyond all reasonable doubt.
17. The complainant was cross-examined. However, nothing contradictory has come in her cross-examination to doubt her testimony. It has been argued by the defence that the complainant had identified the accused at the instance of the police officials, however, no such suggestion was given to the PW-1 during her cross examination. Complainant deposed during cross-examination that she was not shown to be related to the accused in any manner. There is nothing brought on record to show that the complainant had any motive to make a false complaint to get the FIR registered. The FIR was registered on 10.02.2022 and the accused was arrested on the same day at the spot. There is no reason to say that the complainant had made a false complaint. PW-2 and PW-3 who are police officials and apprehended the accused red handed at the spot.
19. Ld. Counsel for the accused has taken the defence that no other public witness has been examined by the prosecution to corroborate the testimony of the complainant. Hence, reasonable doubt has been raised on his testimony.
20. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of victim is available on record, there is no requirement of any FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 7 of 10 other witness to prove such facts. The law regarding a witness who is a victim of the offence is well settled. The testimony of a victim stands on a higher footing. For appreciating the evidence of a victim, the Court has to see that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. She is the best witness to describe the manner in which the offence was committed by the accused. Being the victim of the crime, she would be most keen to ensure that the real culprit do not go scot free. The testimony of PW1 is cogent and convincing. The site plan was prepared at the instance of complainant which was also not disputed. I do not find any contradiction in the testimony of PW1 and other material on record as far as the significant aspects of the essential ingredients of the offence are concerned.
21. There might be some minor contradictions in the testimonies of the witnesses as argued by the Ld. LAC. However, they are not material in nature. Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, has observed as under :-
"19. While appreciating the evidence of a witness, the court has to assess whether the reading as a whole is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 8 of 10 are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that the principle " falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 9 of 10 not escape".
22. In the present case also, there is no reason to doubt the testimony of the complainant who is also a victim of the crime.
23. In the present case also, the testimony of PW1 is cogent and convincing. There is no reason to doubt her testimony. The accused, on the other hand, has failed to prove his defence even on the preponderance of probabilities.
26. In these circumstances, this Court holds that it has been proved beyond reasonable doubt that the accused Julias @ Mochi, intending to take dishonestly the mobile phone out of the possession of the complainant without her consent had moved that phone in order to such taking. He therefore has committed the offence punishable under section 379/411 IPC. It has also been proved conclusively before the court that the accused had used criminal force to the complainant, in attempting to commit theft of the mobile phone from the hand of the complainant. He therefore has committed the offence punishable under section 356 IPC as well.
27. In the light of the discussion made herein-above, this court holds the accused Julias @ Mochi guilty of the offence punishable under section 379 IPC read with section 356 IPC & 411 IPC. Ordered accordingly.
Announced in open court (KADAMBARI AWASTHI) on 18th day of July, 2023 CMM/East/ KKD Courts/Delhi FIR No. 255/22 State Vs. Julias @ Mochi PAGE No. 10 of 10