Delhi District Court
State vs . Sahil @ Mulla on 13 April, 2021
IN THE COURT OF MS. MEDHA ARYA
MM-02: -WEST: TIS HAZARI COURTS:NEW DELHI
CNR No.DLWT02-019705-2019
FIR No.486/19
PS: Rajouri Garden
U/s. 394/34 IPC
State Vs. Sahil @ Mulla
Date of Institution of case : 09.12.2019
Date of Judgment reserved : 13.04.2021
Date on which judgment pronounced : 13.04.2021
JUDGMENT
1) Unique ID no. of the case : 9656/2019
2) Date of commission of offence : 18.09.2019
3) Name of complainant : Reeta Goswami
17/125, Subhash Nagar,
Rajouri Garden,
New Delhi.
4) Name and address of accused : Sahil @ Mulla
S/o Sh. Mohd. Niyaz
E-50, Raghubir Nagar, Delhi.
5) Offence complained of : U/s 394/34 IPC
6) Plea of accused : Pleaded not guilty
7) Final Order : Acquitted
8) Date of order : 13.04.2021
BRIEF REASONS FOR DECISION
Brief facts
1. The case of the prosecution, in brief, as culled out from the chargesheet is that on 28 September 2019, at about 10 PM, when the complainant along with her husband was walking from Bikaner Rajouri Garden (close to Rajouri Garden Metro Station) , towards their car, two unknown men Digitally signed by MEDHA MEDHA ARYA ARYA Date: 2021.04.13 18:42:34 +05'30' accosted her from behind and snatched her purse, on account of which she fell and suffered injuries on her elbows and hips. The complainant stated that she could not see the face of the two boys/men nor could she see the vehicle on which they were riding. It is the case of the complainant that her purse contained two credit cards, one debit card,PAN card, Aadhaar card, mobile phone Samsung S8 with Sim card number9871112659 besides Rs.13,000 in cash and other belongings. Thereafter, an FIR was registered and site plan et cetera were prepared at the behest of the complainant. On 11 October 2019, the accused Sahil alias Mulla was arrested with respect to the above captioned FIR on the basis of a disclosure made by him after his arrest in FIR number 524/19 under section 25 of arms act.
2. After investigation, the present chargesheet under section 392/34IPC was filed against the accused. The accused was summoned and was duly supplied with a copy of the chargesheet in compliance of section 207 of CRPC. Thereafter, holding that there is prima facie sufficient material on record to evidence the fact that the accused has committed the offence of robbery against the complainant, along with his accomplice, who however could not be apprehended, and with that intention they deliberately caused hurt to the complainant, formal charge under section 394/325/34 IPC was framed against the accused on 29.01.2020.
3. The matter was thereafter fixed for PE. In support of its case, the Prosecution examined the complainant as its first witness, PW1. PW1/complainant Reeta Goswami deposed in her examination in chief, on the lines of the charge sheet as well as the FIR, that on 28 September 2019, when after having dinner at Bikanerwala Rajouri Garden, at about 10 to 10:15 PM in the night, she and her husband were walking towards their car which was parked in the service lane, two people approached them from behind and the Digitally signed by MEDHA ARYA MEDHA ARYA Date: 2021.04.13 18:42:53 +05'30' person who was who was the pillion rider on the vehicle forcefully snatched her purse, due to which she fell down on the road and sustained a fracture on her right hand besides sustaining certain injuries on her right leg. PW1 volunteered that she had suffered a hairline fracture on her right hand. PW1 also deposed that the purse that was snatched by the persons on the vehicle contained Rs.13,000, 2 debit cards, a credit card , PAN card and her Aadhaar card. PW1 has further deposed in her examination in chief that thereafter she along with her husband went to PS Rajouri Garden and lodged a complaint whereupon first her medical test was conducted at Guru Gobind Singh Hospital. PW1 has deposed to note that after reaching the police station post her medical examination, she gave a written complaint at the police station exhibit PW1/A bearing her signatures at point A. PW1 further deposed in her examination in chief that the site plan was neither prepared at her instance nor does it bear her signatures. In her examination in chief, PW1 also failed to recognise the accused who was present in the court by stating that as her purse was snatched from behind, she could not see the accused.
4. Ld APP for the state cross-examined PW1 with the permission of the court. In her cross-examination PW1 denied the suggestion that she has been won over by the accused outside the court as she has settled the matter with the accused. PW1 further denied the suggestion that the site plan exhibit PW1/B bears her signatures at point. In her cross-examination by ld. LAC for the accused, PW1 accepted as correct the suggestion that she had neither seen the accused nor had she seen the vehicle number on which the accused was riding. PW1 denied the suggestion that the accused was falsely implicated in the present case and that she had not given any handwritten any complaint in the police station. PW1 however accepted as correct the suggestion that her signatures were obtained on a blank paper in the police station.
Digitally signed by MEDHA MEDHA ARYA ARYA
Date: 2021.04.13 18:43:10
+05'30'
5. Prosecution next examined the husband of the complainant, namely Dr SK Goswami, as PW2. In his examination in chief, PW2 deposed on the lines of the testimony of PW1. Even PW2 failed to identify the accused present in the court and stated that as he was walking a few steps ahead of his wife at the time of the incident, he could not see the accused.
6. PW2 was also cross examined by ld. APP for the state with the permission of this court. In the limited cross examination conducted by ld. APP for the state, PW2 deposed that he cannot identify the accused, despite the accused being pointed out. PW2 also denied the suggestion that he is deliberately not recognising the accused present in the court as he has been won over by the accused. PW2 further denied the suggestion that he had identified the accused outside the court on 21 November 2019, but is deliberately not recognising him in the court. In his cross-examination conducted on behalf of the accused, PW2 accepted as correct the suggestion that he had not seen the accused or the vehicle of the accused at the time of the incident. PW2 further denied the suggestion that the accused has been falsely implicated in the case.
7. As is evident from a bare perusal of the testimony of PW1 and PW2, the sole eyewitnesses to the incident, the said witnesses have turned hostile, in the sense that they do not support the case of the prosecution. It is pertinent to mention here however that the testimonies of PW1 and PW2 are not contradictory to their statements recorded under section 161 CRPC, wherein both the witnesses had stated that they will not be able to identify the accused persons who had snatched the purse of PW1.PW2 failed to recognise the accused even when he was specifically pointed out by ld. APP for the state. As no recovery of the case property has been made and as the sole eyewitnesses have failed to recognise the accused, this court by its order dated 24 March 2021, closed PE, in recognition of the fact that examination of any more witnesses would have been Digitally signed by MEDHA ARYA MEDHA ARYA Date: 2021.04.13 18:43:29 +05'30' futile as the prosecution could not prove its case in the absence of the recovery of the case property as well as failure of the eyewitnesses in identifying the accused. It was held by Hon'ble Supreme Court of India in case titled Satish Mehra vs. Delhi reported as 1996 JCC 507, that "in case where there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on the future date". Since nothing incriminating had come on record against the accused, as such, recording of statement of accused was also dispensed with.
8. Matter was thereafter directly fixed for final arguments. Final arguments have been addressed by Ld. APP for the State as well as Ld. LAC for the Accused. Heard. Record perused. Considered.
9. The accused has been charged with the offence punishable under section 394 IPC. 394IPC provides, "If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
10. Even as per the chargesheet or the testimonies of PW1 and PW2, it is not the case of the prosecution that the accused along with his accomplice deliberately caused her to the complainant in order to commit robbery. Therefore this court is of the considered opinion that the accused cannot be held guilty of the offence punishable under section 394IPC.
11. Now it remains to be seen whether a charge under section 392IPC can be maintained against the accused, in view of Section 222 CrPC. Section 392 IPC MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.04.13 18:43:47 +05'30' provides for punishment of the offence which has been described in section 390 IPC.The ingredients of section 390 IPC are as follows-
Theft or extortion is robbery if :-
1. the offender should have voluntarily caused/ attempts to cause to any person death or hurt or wrongful restrain or fear of instant death/hurt/wrongful restrain.
2. In order to commit the theft or in committing the theft, or carrying away or attempting to carry away property obtained by theft.
In the case at hand , the complainant PW1 and the other eyewitness to the incident, PW2 have both failed to identify the accused. Besides, as no recovery has been made of the case property, the prosecution has not been able to link the crime allegedly committed against the complainant with the accused person, who was arrested merely on the basis of a disclosure statement which has no sanctity in the eyes of law. As no recovery was made from the accused in pursuance of the disclosure statement, the said statement cannot even be looked into for the limited purpose of section 27 of the Indian evidence act. Further, as per the chargesheet itself, no CCTV footage of the incident was found. No public witnesses were also made to join investigation. The prosecution has thus failed to prove its case that the accused wrongfully caused hurt to the complainant for the purpose of committing theft. In view of the above discussion, this court is of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Thus, the accused Sahil alias Mulla is acquitted of the accusations under section 394/325/34IPC.
MEDHA ARYA Digitally signed by MEDHA ARYA
Date: 2021.04.13 18:44:08 +05'30'
Announced in open Court on (MEDHA ARYA)
13.04.2021 (6 pages) M.M.-02(West)/THC,
Delhi/13.04.2021