Delhi District Court
State vs . Mohit @ Man Singh. on 2 September, 2016
FIR No. 733/15
P.S.: Khyala
U/s: 392/34 IPC
IN THE COURT OF SH. JITENDRA SINGH : METROPOLITAN
MAGISTRATE, WEST DISTRICT, TIS HAZARI COURTS DELHI.
FIR No. 733/15
PS: Khyala
U/s. 392/34 IPC
Case ID No. 02402R0041652016
Dated: 02.09.2016
STATE VS. MOHIT @ MAN SINGH.
Date of Institution : 19.11.2016.
Date of Commission of offence : 01.02.2016.
Name of the Complainant : Sh. Chander.
Name parentage and address
of the accused : Mohit @ Man Singh
S/o Sh. Natthu Ram,
R/o: A495, J.J. Colony,
Raghubir Nagar, New
Delhi.
Offence Complaint of : U/s. 392/34 IPC
Plea of the accused : Pleaded not guilty.
Final Order : Acquitted.
Judgment reserved on : 02.09.2016
Date of judgment : 02.09.2016
JUDGMENT
BRIEF FACTS
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 733/15. The case of the prosecution is that on 14.11.2015, at about 9.00 pm at Krishna Gyan Mandir, Main Road, Page 1 of 6 FIR No. 733/15 P.S.: Khyala U/s: 392/34 IPC Delhi, within the jurisdiction of PS Khyala, accused Mohit @ Man Singh alongwith his other coassociates in furtherance of their common intention committed robbery of mobile phone of make Samsung and cash of Rs.200/ from the complainant Sh. Chander. On the complaint of the complainant, the present FIR was registered.
2. On conclusion of the investigation a charge sheet was filed against the accused under Section 392/34 IPC. After necessary compliances a charge was framed against the accused U/s. 392/34 IPC, to which accused pleaded not guilty and claimed trial.
3. To bring home the guilt against the accused, the prosecution examined three witnesses in the instant case.
PW1 Sh. Satender, who stated on oath that o n 14.11.2015, at about 9.00 pm, he was going to meet his Mousi Kavita at N11, Ragubir Nagar. When he reached at Krishan Mandir, about 5 persons caught hold of him. One of them gag his throat, other persons had punched in his stomach and one of them also put in hand on his mouth. They also shown him knife and one of them hit him on his back head by knife. After that, they robbed his Mobile Phone, Samsung J2 and Rs. 250/ etc. from hiss pocket. For some time he got faint. After the incident, the offender left from the spot. He went to the PS Khyala and got recorded his statement, Ex. PW1/A. He had shown the place of the incident to the IO. He had handed over my Mobile Phone bill to the IO which was seized by the IO, Ex. PW1/B. After some days, he was called for TIP of the accused. The accused present in the court today was one of them amongst the offenders, correctly identified. He can identify my mobile phone if shown to me.
PW2 SI Yadram Yadav, who stated on oath that on 14.11.2015 he was posted at PS: Khyala as SI. On that day, he was on emergency duty. On that day complainant Satender came at police station to record his statement which is already Ex. PW1/A. In Page 2 of 6 FIR No. 733/15 P.S.: Khyala U/s: 392/34 IPC the said statement, he stated that at around 9.00 pm when he was going to meet with the mother in law of his brother namely Kavita, 2 3 accused persons came there, out of which two person caught him and third one snatched his mobile phone of make Samsung J2 and stolen Rs.250/ from his pocket of wearing shirt in front of Krishna Gyan Mandir, Raghubir Nagar, Delhi. Thereafter, they ran away from the spot. Thereafter, he made endorsement on the complaint which is Ex. PW2/A bearing his signature at point A. Thereafter, he handed over the complaint to Duty Officer for registration of FIR. After that he alongwith complainant went to the spot and prepared the site plan at the instance of complainant. The site plan is Ex. PW2/B. Thereafter, he search the accused persons but none was found. Complainant produced the bill of his aforementioned/stolen mobile phone. He had seized the same vide seizure memo already Ex. PW1/B. Thereafter, he recorded the statement of complainant u/s 161 Cr.P.C. On 16.11.2015, he recorded the statement of complainant Satender again regarding the dual number, he used in the mobile. Thereafter, he went on leave on and the case is handed over to ASI Gulab Singh. On 12.12.2015, he received the case file and thereafter started investigation and on 16.12.2015, he apprehended the JCL Pawan and produced him before JJBI. Thereafter, on 14.01.2016, he apprehended JCL Gagan and produced him before JJBI. Thereafter, he produced the charge sheet before the court for judicial verdict.
PW3 Smt. Kavita, who deposed on her oath that She had purchased one mobile phone make Samsung Galaxy J200 in the Rs. 8390/ from Samsung Store, Rajouri Garden, Delhi. The same mobile Bill/invoice was in her name, which is Ex. PW3/A, bearing her name at point A. She had given her mobile phone to Satender for use on that date of incident.
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4. Statement of accused U/s. 313 Cr.PC. has been recorded separately, in which the accused did not lead his defence evidence. Final arguments have been heard and record has been meticulously perused.
5. During the course of arguments, Ld. Defence Counsel has submitted that the witness, who has been examined by the Prosecution is not sufficient to convict the accused. It is further submitted that the PW1 Sh. Satender has turned hostile in the instant case and remaining witnesses are formal in nature being the police witnesses, therefore the accused is entitled to be acquitted in the instant case.
6. For proving the offence U/s 392 IPC, the prosecution is required to prove the following:
(i) That both the accused in furtherance of their common intention had caused wrongful restraint / hurt to the complainant; &
(ii) The aforesaid wrongful restraint/hurt was caused in order to commit theft or in carrying away the property obtained by theft.
7. It is pertinent to mention here that the star witness of the Prosecution in the instant case is complainant/PW1 Sh. Satender who is projected as the only eye witness and victim to the alleged incident. The law on appreciation of evidence in the event of witness turning hostile was discussed by the Hon'ble Supreme Court in case titled as Sat Paul Vs. Delhi Administration, AIR 1976 SC 294. The relevant extract of the same is reproduced below for ready reference: "....even in a criminal prosecution when a witness is cross examined and contradicted with a leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such Page 4 of 6 FIR No. 733/15 P.S.: Khyala U/s: 392/34 IPC cross examination and contradiction, the witness stands throughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.....".
8. Now coming back to the facts of the instant case, the complainant who is the victim and only eye witness to the incident has turned hostile. The relevant extract of the crossexamination is reproduced below for ready reference: " PW:1: XXXXX by Sh. Tajender Singh, ld. counsel for accused Mohit @ Man Singh.
There are 10 or more persons from public had arrived at the spot. There are five accused persons and one of them stabbed me. I reached at PS at about 9.45 pm. Police took my signature on 34 documents. Police did not readover the contents of documents after writing the same which were signed by me at police station. I was accompanied by my brother and Muasi to the PS. My brother did not give any statement to the police. I remained at the PS for about ½ an hour and after that I went to medical clinic for my medical examination/treatment. I received injury in my head. It is correct that there was a dark when occurrence took place.
At this stage, accused Mohit @ Man Singh present in the court today shown to the witness. Upon which the witness is stated that he does not know him and accused was not involved in commission of abovesaid crime".
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9. The eye witness Sh. Satender, who has been examined as PW1 has turned hostile on the point of identification of the accused. The remaining witnesses were merely police witnesses, who were formal in nature. The admission of FIR, personal search memo and arrest memo only prove that the FIR was registered in the instant case against the accused and he was arrested. These documents are not sufficient to prove the ingredients of the offences. Non identification of the accused during trial raises a serious doubt to the case of prosecution.
10. 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.
11. In view of the foregoing reasons, I hold that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt. The benefit of any lacunae, left in the investigation, has to be given to the accused. For the foregoing reasons, accused Mohit @ Man Singh is entitled to acquittal. Accused is therefore acquitted.
Announced in the open court (JITENDRA SINGH) today itself i.e.02.09.2016 METROPLITAN MAGISTRATE TIS HAZARI COURTS/DELHI Page 6 of 6