Delhi District Court
State vs . Shahnawaz on 8 December, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Shahnawaz FIR NO. : 869/15, U/s 392/34 IPC PS : NEW USMANPUR A. CIS No. of the Case : 460546/2015 B. FIR No. : 869/2015 C. Date of Institution : 28.09.2015 D. Date of Commission of Offence : 19.08.2015 E. Name of the complainant : Rakesh Kumar Tiwari S/o Shiv Shankar Tiwari, R/o J-
288/2, Gali No.11, Kartar Nagar, 3 ½ pushta, Delhi.
F. Name of the Accused, his : Shahnawaz S/o Fayyaz, R/o Parentage & Addresses B-425, Gali No.4, Subhash Mohalla, Bhajanpura, Delhi G. Representation on behalf of : Sh. Ankit Gautam, Ld. APP. State H. Offence complained of : U/s 392/34 IPC I. Plea of the Accused : Pleaded not guilty and claimed trial.
J. Order reserved on : 02.12.2022 K. Date of Order : 08.12.2022 L. Final Order : ACQUITTED
Brief Statement of Reasons for Decision of the Case
1. The present FIR has been lodged by the complainant Rakesh Kumar Tiwari wherein he has stated that on 19.08.2015 FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.1 of 12 at around 07:30 pm while he was standing on 4 ½ main road to boys came to him and one of them pressed his neck and the other forcefully took out his mobile phone make Samsung Galaxy Ultra Duos and started running. The complainant started shouting, in the mean time Ct. Dayal was coming from the front and with the help of Ct. Dayal the complainant apprehended one of the boys who revealed his name as Shahnawaz S/o Fayyaz. The other boy escaped with mobile phone. The accused was charge-sheeted for offence punishable under Section 392/34 IPC.
2. FIR was registered and has been investigated by the officials of Police Station New Usmanpur and IO/ASI Mahander Pal filed the charge sheet against the accused upon which cognizance was taken on 28.09.2015 by the learned Predecessor of this Court.
3. Accused appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. were supplied to them.
4. Charge was framed vide order dated 03.03.2016 for the offence punishable Under Section 392/34 of the IPC against accused persons by the learned Predecessor of this Court, to which, the accused persons pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined 07 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Complainant Rakesh Tiwari he reiterated the facts as FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.2 of 12 stated in the complaint given to the police. He did not support the case of the prosecution in entirety and missed out certain crucial facts. Ld. APP for State after seeking permission of the Court put questions to him in the nature of cross examination to bring out the correct facts. The said witness was cross examined at length after being recalled.
(ii) PW2 HC Dayal Kumar was on patrolling duty on the day of incident and was present at the spot at about 07:30 pm. He heard the voice "chor chor pakado pakado" and saw two boys running.
He stopped one boy and the complainant PW1 came and apprehended the accused stopped by him. The name of the accused was revealed as Shahnawaz. He handed the custody of accused Shahnawaz to IO/ASI Mahender Pal. The said witness was cross examined by Ld. counsel for accused.
(iii) PW3 Ct. Rahul Sharma was on emergency duty on the day of incident and after receiving DD No.82B regarding snatching he alongwith IO/ASI Mahender reached the spot where he met the complainant PW and Ct. Dayal PW2 who were apprehending one person who disclosed his name as Shahnawaz. The said witness took rukka prepared by the IO, got the registration of the FIR done and returned to the spot with the copy of FIR and original rukka and handed the same to the IO. The said witness was not cross examined by the accused despite giving the opportunity.
(iv) PW4 SI Bhura Singh was the Duty Officer and after receiving the rukka from Ct. Rahul he registered the present FIR. He also endorsed the rukka and handed over the copy of FIR and original rukka to Ct. Rahul for further handing over the same to ASI Mahender. The said witness was not cross examined by the FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.3 of 12 accused despite giving the opportunity.
(v) PW5 Ct. Bijender brought the rojnamcha and had recorded DD No.82B regarding robbery dated 19.08.2015. The said witness was not cross examined by the accused despite giving the opportunity.
(vi) PW6 Ct. Praveen alongwith IO produced accused Shahnawaz before the Court and took one day PC. He alongwith IO and accused went to the spot where IO prepared pointing out memo at the instance of accused. He alongwith the IO searched co-accused Gabbar at Khajuri Chowk at the instance of accused but he could not be found. The said witness was not cross examined by the accused despite giving the opportunity.
(vii) PW7 SI Mahender Pal is the IO of the present case and after receiving the DD entry 82B regarding snatching of mobile phone he went to the spot to find complainant PW1 and accused Shahnawaz. He recorded the statement of the complainant, prepared rukka, site plan, arrested the accused and recorded his disclosure statement. He has stated that stolen mobile phone could not be traced despite keeping it for surveillance. The said witness was not cross examined by the accused despite giving the opportunity.
6. PE was closed on 23.03.2022 and on 14.10.2022, statement of accused under Section 313 Cr.P.C. was recorded. Accused stated that he did not want to lead defence evidence and the matter was fixed for final arguments.
7. Final arguments heard. Case record perused meticulously.
FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.4 of 12
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. Section 392 IPC provides for punishment for robbery.
The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
10. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section
390. Punishment is higher if it is committed on a highway and between sunset and sunrise. Section 390 which defines "robbery" reads as follows:
"390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery"
FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.5 of 12 if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
11. In Venu @ Venugopal and Ors. Vs. State of Karnataka(Arising out of SLP (Crl.) No. 6056 of 2007), division bench of Hon'ble Supreme Court has observed that:
"8. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough."
12. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them.
FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.6 of 12 This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime;
nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
13. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.7 of 12
14. In the present case, the complainant deposing as PW1 has stated that two persons came towards him and one of them caught him and the other took his mobile from the shirt pocket. He tried to apprehend them and caught hold of the person who had taken out his mobile phone. PW1 did not depose the correct set of facts and it was only when Ld. APP after the permission of the court put questions in the nature of cross examination, he deposed that one of them pressed his neck and the other one took out his mobile phone. The incident pertains to 19.08.2015 and the complainant was deposing on 30.11.2016. It cannot be said that a sufficiently long enough time has elapsed for the witness to forget something as material as the accused pressing his neck.
15. During his cross examination dated 22.03.2017, PW1 has deposed that he does not have any bill/receipt of the stolen mobile phone as the same has been lost while shifting the house. Neither any stolen phone was recovered from the IO nor the co- accused Gabbar was arrested by the police despite taking 2 days Police Remand of accused Shahnawaz. During his cross- examination PW1 has stated that the area was a crowded public place and public persons had gathered at the spot. It is the version of the complainant that he was shouting "Chor Chor Pakdo Pakdo". Despite this, no eye witness was found at the incident by the IO or any public persons joined the investigation. PW1 in his cross examination has also deposed that he had seen the accused carefully, but he does not know which of the accused pressed his neck. There were only two accused and one of them was caught, it is improbable that the complainant would not know who FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.8 of 12 pressed his neck especially when he had seen the accused carefully.
16. PW2 HC Dayal has deposed that he stopped accused Shahnawaz and later he was apprehended by the complainant. The said PW did not witness the incident of robbery. He was on his patrolling duty and heard the voice chor chor pakdo pakdo and saw two boys running. He searched the accused but no mobile phone was recovered from him. PW3, PW4 and PW5 are formal witnesses. PW3 took the rukka and got the FIR registered, PW4, was the duty officer who registered the FIR and PW5 brought the roznamcha showing DD No. 82B dated 19.08.2015.
17. PW7, SI Mahender Pal deposed that he took PC of accused Shahnawaz and took him to the place of incident and prepared the site plan. He has also stated that he had kept the stolen phone on surveillance but it could be traced. Nothing has been mentioned by the IO regarding the ownership pf the stolen mobile phone or why no statement of public witnesses were recorded. Despite it being a crowded public place why no eye witness was found.
18. The offence of robbery as defined in S. 390 IPC is an aggravated offence of theft. In the present case, no ownership of the stolen mobile phone has been established by the prosecution. PW1 has not been able to furnish any document to suggest that he was the owner of the stolen mobile phone. Moreover, nothing has been said by the complainant PW1 as to who was the accused who took out his phone and who was the one who pressed his FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.9 of 12 neck.
19. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar, (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
20. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.10 of 12 is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
21. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
22. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
23. In Shivaji Sahabrao Bobade v.State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489 Hon'ble Supreme Court cautioned that:
FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.11 of 12 "the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."
24. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. For proving an offence punishable under S. 392 IPC, firstly either the offence of theft or extortion has to be proved. PW1 has not been able to establish as to which accused took out his mobile phone from the pocket or which accused pressed his neck. Despite, it being a pubic place, no public witness or eye witness has been found. The stolen phone has not been traced till date.
25. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt that accused Accused Shahnawaz has committed offence under S. 392/34 IPC, therefore, accused Shahnawaz is found not guilty in the present case and resultantly, he stands acquitted in the present case.
26. Accused is directed furnish personal bond in the sum of Rs.10,000/- each u/s 437A Cr.P.C with one surety of like amount and directed to be present before the Ld. Appellate Court as and when directed. Digitally signed by VIPUL SANDWAR VIPUL Date:
SANDWAR 2022.12.08
16:00:23
+0530
Announced in the open (VIPUL SANDWAR)
Court on 08th December, 2022 MM-02/NE/KKD COURTS
FIR No.869/15 State vs. Shahnawaz PS New Usmanpur Page No.12 of 12