Delhi District Court
State vs Dheeraj@Ravi on 5 October, 2023
IN THE COURT OF MS. NEETIKA KAPOOR, MM-02, WEST DISTRICT, TIS
HAZARI COURTS, DELHI.
FIR Number : 349/2020
P.S. : Rajouri Garden
U/s : 356/379/511/34 IPC
STATE VS. Dheeraj @ Ravi & Anr.
a) Cr. no. of the Case : 694/2020
b) Name & address of the Complainant : Amrit Pal Singh, S/o Gurmukh
Singh, R/o H. No. D-394, Tagore
Garden Extension, New Delhi.
c) Name & address of the accused : Dheeraj @ Ravi, S/o Prem
Kumar, R/o D-2/557, J.J.
Colony, Raghubir Nagar, New
Delhi.
(2) Manav S/o Rakesh, R/o B-
2/303j, Ground Floor, J.J.
Colony, Raghubir Nagar, New
Delhi.
d) Date of Commission of offfence : 18.04.2020
e) Offence complained of : 356/379/511/34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final Order : Acquittal
Date of registration of FIR : 19.04.2020
Final arguments heard on : 05.10.2023
FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 1 / 10
Judgment Pronounced on : 05.10.2023
JUDGMENT
1. The accused persons Dheeraj @ Ravi and Manav are facing trial for the commission of offences punishable under Sections 356/379/511/34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) in connection with the case FIR No. 349/2020 registered at P.S. Rajouri Garden.
2. Briefly stated, the case of the prosecution is that on 18.04.2020 at about 9:21 PM at H. No. D-394, Tagore Garden Extension, Rajouri Garden, two boys came from the back and called out sister-in-law of complainant namely Avinash Kaur and as soon as she turned, one of the boys snatched gold chain from her neck by by using criminal force. Thereafter, the boys fled from the spot. The gold chain had fallen on the road due to commotion which was picket up by Avinash Kaur. Feeling aggrieved complainant went to PS Rajouri Garden and gave a complaint which is Ex. PW-1/A and thereafter, present FIR was registered u/s 356/379/511/34 IPC and ASI Sanjay was appointed as the Investigating Officer of the case.
3. During investigation, IO inspected the site of the incident and having inspected it, prepared a site plan. Thereafter, accused persons was arrested in the present FIR based on their disclosure statements. Statements of the witnesses were recorded and based on the material collected, accused Dheeraj @ Ravi and Manav were found responsible for the commission of offences punishable under Section 356/379/511/34 of the IPC. After completion of the investigation, case file was handed over by the IO to SHO of Police Station Rajouri Garden who after following the codal formalities, prepared and filed the instant challan against the accused persons.
4. On finding sufficient material on record against accused persons Dheeraj @ Ravi and Manav, they were summoned before this court and on their appearance, FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 2 / 10 copies of the challan and other documents were supplied to them in compliance of Section 207 of Code of Criminal procedure, 1973 (herein referred to as Cr.P.C).
5. On finding a prima-facie case against the accused persons under Sections 356/379/511/34 of I.P.C., charge was framed to which they pleaded not guilty and claimed to have a defense to make.
6. Thereafter, prosecution was called upon to adduce its evidence. The prosecution in order to prove its case examined as many as 02 witness. PW-1 Amritpal Singh is the complainant and PW-2 Avinash Kaur is the victim and eye witness to the incident.
7. Thereafter, on completion of PE, considering that the complainant and sole eye witness had turned hostile on point of identity, statement of accused persons u/s 313 Cr. P.C. was dispensed with. Thereafter, final arguments were heard.
8. I have heard Mr. Aditya Trehan, Ld. APP for State and Mr. Rishi Raj Pandey, Ld. LAC for accused Manav and Sh. Karan Babuta, Ld. LAC for accused Dheeraj @ Ravi and have gone through the records carefully.
9. It is argued by Ld. APP for the State that the evidence of hostile witness can be read on material points, and it can be used to prove the offence charged against the accused. As such, it is prayed that accused be punished for the said offence.
10. Per contra, Ld. Counsel for accused persons have argued that State has failed to establish its case beyond reasonable doubt. Ld. Counsel have argued that main witness has turned hostile and despite reading his evidence as a whole, nothing has come on record against the accused persons. As such, it is prayed that accused persons be acquitted for the said offence.
11. On the basis of evidence on record, the following points arise for determination in the present case:
1. Whether the prosecution has proved its case beyond reasonable doubt that on 18.04.2020 at around 9:21 PM in front of D-394, Tagore Garden Extension, Rajouri Garden, both accused persons in furtherance FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 3 / 10 of their common intention came and snatched gold chain from the neck of victim Avinash Kaur by using criminal force which was recovered from the spot and accused persons were apprehended by public persons, as alleged?
2. Final order.
12. For the reasons to be recorded hereinafter while discussing the reasons for my findings, my findings on the aforesaid points are as under:
Point No. 1: No Final order: The accused persons Dheeraj @ Ravi and Manav are acquitted as per the operative part of the judgment.
REASONS FOR FINDINGS POINT NO. 1
13. To bring home the culpability of accused under Section 378, 379, 356 and 511 IPC, it is pertinent that relevant provisions of law are first read. Section 378, 379, 356 and 511 IPC is reproduced herein below:
"Section 378 IPC: Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 4 / 10 as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which affects the severance may be a theft.
Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4.--A person, who by any means causes an animal to moPrevve, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.
"Section 379 IPC: Punishment for theft.-Whoever com- mits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
"Section 356 IPC : Assault or criminal force in attempt to commit theft of property carried by a person.--Who- ever assaults or uses criminal force to any person, in at- tempting to commit theft on any property which that per- son is then wearing or carrying, shall be punished with FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 5 / 10 imprisonment of either description for a term which may extend to two years, or with fine, or with both."
"Section 511 IPC : Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be commit- ted, and in such attempt does any act towards the com- mission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description pro- vided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment pro- vided for that offence], or with such fine as is provided for the offence, or with both".
14. From bare reading of this provision, the two essential ingredients which constitute the offence of using criminal force or assault in attempt to commit theft of property carried by a person are as follows:
1. Person must have used criminal force or assault on any person;
2. and the assault or criminal force must have been used in attempting to commit theft of any property which that person was then wearing or carrying.
15. It is trite that in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused must be FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 6 / 10 rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the case at hand, is to be weighed keeping in view these legal standards.
16. In order to prove its case, the prosecution has examined, PW1 Amritpal Singh who being the complainant stepped into the witness box and deposed that the alleged incident took place three years ago somewhere in the evening in front of his house when his sister in law Avinash Kaur had returned from the market and was entering her house and two boys called her from the back. As soon as she turned, one of them grabbed her gold chain from her neck and fled from the spot. She raised alarm and hearing her voice, public persons on the road apprehended the boys. Gold chain was recovered from the spot as it had fallen on the road. PCR was called on No. 100 and when they came, the boys were handed over to the police. His statement was recorded which is Ex.PW1/A. Site plan was prepared at his instance which is Ex.PW1/B. Accused persons were arrested and personally searched in his presence. Disclosure statements of the accused persons were recorded in his presence. Witness failed to identify the accused persons in court as sufficient time had elapsed and categorically deposed he was not aware whether the persons in the witness box were the ones who had snatched the gold chain on the day of the incident. Witness was declared hostile by Ld. APP for the State and was cross examined.
17. In his cross-examination, he denied the suggestion that he had made any statement to the police that one of the snatcher had beard and his name was Dheeraj while the other snatcher was Manav. Witness was confronted with his statement Ex.PW1/A from point A1 to A2 wherein he denied giving any such statement to the IO. He denied the suggestion that he was deliberately not identifying the accused persons as he had settled the matter with the accused persons.
18. In order to corroborate testimony of PW-1, prosecution examined PW-2 Avinash Kaur who stepped into the witness box and deposed that the alleged incident took place three years ago but failed to recollect the exact date and time of the incident. She further deposed that the incident took place in front of her house when she was entering the same and FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 7 / 10 one boy called her from the back. As soon as she turned, the boy grabbed her gold chain from her neck and fled from the spot. She picked up the gold chain that had fallen on the road and immediately went inside her house. She failed to state about the person who had called PCR on No. 100. She further failed to depose about the person who had handed over the boys to the police. She further deposed that she was never called by the IO for her statement. Witness failed to identify the accused persons in court as sufficient time had elapsed and categorically deposed that she was not aware whether the persons in the witness box were the ones who had snatched the gold chain on the day of the incident. Witness was declared hostile by Ld. APP for the State and was cross examined.
19. In her cross-examination, witness was confronted with her statement u/s 161 Cr.P.C. dated 19.04.2020 from point A1 to A2 to which she denied giving any such statement. She denied the suggestion that he was deliberately not identifying the accused persons as she had settled the matter with the accused persons.
20. PW-1/complainant and PW2/victim have turned hostile in the instant case. At this stage, it is pertinent to note that under Indian Law, the evidence of a hostile witness is not discarded completely as the legal maxim "false in uno false in omnibus" is not applicable. Reliance can be placed on the following observations made by Hon'ble Apex Court in case titled "Rohtash Kumar vs. State of Haryana(2013) 14 SCC 434:
"It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
21. Therefore, it must be seen if the evidence of such hostile witness can be FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 8 / 10 relied in part. The perusal of the testimonies of this witnesses shows inconsistencies and contradiction in their version. PW1 and PW2 in their testimony have failed to identify the accused persons. The witnesses also categorically stated that they do not remember the faces of the snatchers. Moreover, PW1 stated that two boys were involved in the incident whereas PW-2 deposed about the involvement of only one boy. Both the witnesses have merely stated that one/two boys came from the back and grabbed the gold chain and snatched it from the neck of Avinash Kaur but failed to depose anything about the involvement of accused persons in the alleged incident. Thus, even if the evidence of the hostile witness is considered partly, there is nothing to implicate the accused as it is clear that an inference of use of criminal force or assault by the accused cannot be drawn from a simple testimony of the PW1 and PW2. Specific evidence has to be led by the prosecution in order to prove the same.
22. Testimonies of other witnesses were dispensed with as they being police witnesses could only explain the factum of investigation conducted by them and could not explain in detail, the act of assault or use of criminal force by the accused. Moreover, site plan prepared by the IO is not sufficient to prove the act of assault or criminal force on the part of the accused. While it shows the location of the accident which is undisputed, it could not be inferred that the incident had occurred as accused persons had used criminal force on the victim.
23. There is no other witness to establish the guilt of the accused persons. As such, the prosecution has failed to establish the act of assault or use of criminal force on the part of the accused persons in the present case and, therefore, failed to prove beyond reasonable doubt the fact that accused persons Dheeraj @ Ravi and Manav had snatched the gold chain of victim Avinash Kaur by using criminal force or assault in furtherance of their common intention. Testimony of eyewitness does not completely support the prosecution story and testimonies of the rest of the witnesses are not sufficient enough to prove the guilt of the accused persons. Hence, benefit of doubt must be given to the accused persons. Thus, this point is answered in the negative and is decided against the prosecution.
FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 9 / 10 FINAL ORDER:
24. Accordingly, in view of the above discussion, since the prosecution could not prove the guilt of the accused persons for commission of offence punishable under section 379/356/511/34 of IPC, beyond reasonable doubt, accused persons Dheeraj @ Ravi and Manav are acquitted of the offence punishable under Section 379/356/511/34 of IPC.
25. Personal bonds/surety bonds stands cancelled. Endorsement, if any is also cancelled. Sureties stand discharged. Superdarinama, if any stands cancelled. Original documents, if any be returned to the rightful claimant against proper receipt as per rules.
26. The accused persons have already furnished personal and surety bonds as per the mandate of section 437-A of the Code of Criminal Procedure, wherein he has undertaken that he shall put in his appearance before the appellate court within the prescribed period in case an appeal is filed and admitted for hearing. File after due completion be consigned to the Record Room.
Announced and signed in the open court on 05th day of October, 2023 (Neetika Kapoor) MM-02, West, THC,DELHI 05.10.2023 It is certified that this judgment contains 10 pages, and each page bears my signature.
FIR Number : 349/2020 State vs. Dheeraj @ Ravi & Anr. 10 / 10