Delhi District Court
Mohd. Danish @Mehtab Alam vs State on 21 September, 2023
IN THE COURT OF SH. PURSHOTAM PATHAK,
ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 292 OF 2019
CNR No. : DLST01-005241-2019
MOHD. DANISH @ MEHTAB ALAM,
S/O SH. MD. AFTAB,
R/O H. NO. J3/37,
KHIRKI EXTENSION, HAUZ RANI,
MALVIYA NAGAR, NEW DELHI .........APPELLANT
VERSUS
STATE (DELHI OF NCT) ......... RESPONDENT
DATE OF INSTITUTION : 01.08.2019
ARGUMENTS HEARD ON : 21.09.2023
DATE OF JUDGMENT : 21.09.2023
JUDGMENT
1. The present appeal has been filed by the appellant Mohd. Danish @ Mehtab Alam against the impugned judgment dated 26.03.2019 and order on sentence dated 01.07.2019 passed by the court of Ld. MM, South-02, Saket Courts, New Delhi, in FIR no. 326/2018, whereby the Ld. Trial Court convicted the appellant for offence punishable under Section 392 IPC and sentenced the appellant/ convict to rigorous imprisonment for one year. However, vide impugned judgment dated 26.03.2019, Ld. Trial Court acquitted appellant for offence punishable under Section 411 IPC.
2. Aggrieved by the judgment dated 26.03.2019 and order on sentence dated 01.07.2019, the appellant / convict has filed the CA NO. 292 OF 2019 Mohd. Danish @ Mehtab Alam Vs. State Page no. 1 of 6 present appeal.
3. I have heard the arguments advanced by Sh. Neeraj Bhardwaj, Ld. LAC for appellant as well as the Ld. Addl. PP for the State.
4. The prosecution case against the appellant/ convict in brief is that the present FIR was registered on the complaint of Smt. Munni Rai. Complainant in her statement stated that on 05.10.2018, she was taking a walk in the Tikona Park and at about 7.45 PM, one boy, who came from her back side, pushed her, snatched her mobile phone and started running towards Gupta Colony. In the meantime, one person, who was also taking walk, apprehended the said boy and recovered her phone from him. Complainant has further alleged that the mobile and the apprehend boy were given into custody of police officials of PS- Malviya Nagar. On the basis of the aforesaid allegations, FIR in question was registered and investigation was taken up. After completion of investigation, charge-sheet was filed against the applicant/ convict herein for offence punishable under Section 392/411 IPC. Charge for offence punishable under Section 392/411 IPC was framed against the accused/ appellant, to which he pleaded not guilty and claimed trial.
5. Prosecution produced, examined four witnesses in support of its case. In defence evidence, accused examined two witnesses.
6. PW-1 is the eye-witness. PW-2 is the HC Buddhi Prakash, who recorded the statement of complainant. PW-3 is the complainant and PW-4 is SI Manoj Kumar i.e. IO. Prosecution CA NO. 292 OF 2019 Mohd. Danish @ Mehtab Alam Vs. State Page no. 2 of 6 evidence was closed and statement of accused was recorded. Thereafter, appellant/convict, produced and examined two witnesses. Final arguments were heard by the Ld. Trial Court. Accused / appellant was convicted by the Ld. Trial Court vide impugned judgment dated 26.03.2019 and was sentenced vide impugned order dated 01.07.2019.
7. Sh. Neeraj Bharadwaj, Ld. LAC for appellant argued that the appellant/ convict has been falsely implicated in this case. Ld. LAC further argued that the testimony of witnesses is full of lacunaes and contradiction and whole prosecution case is unreliable. Ld. Trial Court failed to appreciate the points/ grounds raised by the appellant's counsel during trial and has based its judgment on conjunctures and surmise. He also argued that the identity and ownership of mobile has remained disputed. The impugned judgment and order on sentence are liable to be set-aside and appellant/ convict is entitle to be acquitted in this case.
8. On the other hand, Ld. APP for the State has argued that the judgment passed by the Ld. Trial Court is well reasoned and no ground for setting-aside the same is made out. Prosecution has examined four witnesses in support of its case and the said witnesses have duly proved the prosecution case. He argued that the appellant/ convict was apprehended at the spot itself and the mobile phone of the complainant was recovered from him. The appeal filed the by the appellant is without merit and same is liable to be dismissed.
9. I have duly considered the rival submissions. I have perused the record carefully.
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10. Perusal of record shows that the charge for offences punishable under Section 392/411 IPC was framed against the accused/ appellant. Appellant/ convict has been convicted and sentenced for offence punishable under Section 392 IPC. Appellant/ convict was acquitted for offence punishable under Section 411 IPC. No appeal has been preferred by State against the acquittal of appellant/ convict for the offence punishable under Section 411 IPC, hence, such acquittal has attained finality.
11. To apply the provision of Section 392 IPC, the prosecution has to establish that during the course of commission of offence of theft, the offender had caused or had intended to cause threat of death or hurt or wrongful restraint. From the statement of complainant (PW-3), it appears that in committing the theft of mobile from her possession, the appellant during the course of commission of offence of theft, assaulted the complainant and had caused injury to the complainant.
12. I have carefully perused the statement of PW-1 and PW-3 and find them to be trustworthy and reliable witnesses. Ld. LAC has argued that the ownership of the case property has not been verified. However, from the evidence on record, it is clear that the counsel for the accused not raised any objection when case property was produced and identified by the PW-1 in the court. He also not asked any question regarding the identity or ownership of mobile phone during the cross examination of PW- 1 and PW-3. Further, accused has examined two witnesses to support his case. Accused did not disclose about the presence of DW-1 and DW-2, when his statement under Section 313 Cr.P.C was recorded. It is only after the completion of prosecution CA NO. 292 OF 2019 Mohd. Danish @ Mehtab Alam Vs. State Page no. 4 of 6 evidence, he introduced these witnesses. These witnesses not having seen the incident happen, although DW-2 may have been present at the spot, could not contradict the case of the prosecution, which was duly supported by statement of complainant and an eye witness.
13. Prosecution has proved beyond reasonable doubt that the appellant convict had caused hurt to the complainant while committing the theft. The testimony of PW-3 has been fully corroborated by PW-1 in this regard and there is no reason to dis- believe the same. From testimony, it is proved beyond shadow of reasonable doubt that incident did happen in which the appellant had robbed the complainant. No material discrepancy can be pointed out by the Ld. LAC in their statements so as to discard their version with regard to the incident of robbery.
14. In my view, the offence under Section 392 IPC is made out against the applicant and he has been rightly convicted by the Ld. Trial Court under this provision of law. The reasoning given by Ld. Trial Court while convicting the appellant/ convict for said offence is just proper and I find no reason for setting aside the same.
15. Keeping in view the facts and circumstance proved by the prosecution during trial, I am of the considered view that appellant/ convict is liable to be convicted for the offence punishable under Section 392 IPC. I find no reason for interference in the same. Hence, conviction of appellant for offence punishable under Section 392 IPC is hereby upheld.
16. As far as quantum of sentence is concerned, Ld. LAC for CA NO. 292 OF 2019 Mohd. Danish @ Mehtab Alam Vs. State Page no. 5 of 6 applicant/ accused argued that as per records available on court file, accused is not a previous convict, hence a lenient view may be taken in sentencing the appellant/ convict.
17. On the other hand, Ld. APP for the State has argued that accused/ applicant is a habitual offender and do not deserve any leniency.
18. I have duly considered the rival contentions and perused the record.
19. Having regard to the totality of facts and circumstances of case and that punishment awarded has to be proportional to the gravity of crime, I am unable to find any infirmity in the impugned order on sentence. Therefore, the impugned order on sentence, passed by Ld. Trial Court, is upheld. Ld. Trial Court shall proceed to execute its awarded sentence as per law.
20. A copy of this judgment be supplied to Ld. LAC forthwith.
21. TCR be sent back to court concerned along with copy of present judgment.
22. Appeal be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 21st DAY OF SEPTEMBER, 2023 (PURSHOTAM PATHAK) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA NO. 292 OF 2019 Mohd. Danish @ Mehtab Alam Vs. State Page no. 6 of 6