Delhi District Court
State vs Dinesh on 16 September, 2023
IN THE COURT OF MS. NEETIKA KAPOOR, MM-02, WEST DISTRICT, TIS
HAZARI COURTS, DELHI.
DLWT02-011015-2020
FIR Number : 726/2020
P.S. : Rajouri Garden
U/s : 356/379/411 IPC
STATE VS. Dinesh @ Dabbu
a) Cr. no. of the Case : 6010/2020
b) Name & address of the Complainant : Saibahar Tyagi, D/o Late Sh.
Lalit Tyagi, R/o H. No. 79, Road
No. 45, Punjabi Bagh, Delhi.
c) Name & address of the accused : Dinesh @ Dabbu S/o Padam
Singh, R/o H. No. C-133, Tagore
Garden, Delhi.
d) Date of Commission of offfence : 17.08.2020
e) Offence complained of : 356/379/411 IPC
f) Plea of the accused : Pleaded not guilty
g) Final Order : Acquittal
Date of registration of FIR : 17.08.2020
FIR Number : 726/2020 State vs. Dinesh @ Dabbu 1/8
Final arguments heard on : 16.09.2023
Judgment Pronounced on : 16.09.2023
JUDGMENT
1. The accused Dinesh @ Dabbu is facing trial for the commission of offences punishable under Sections 356/379/411 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) in connection with the case FIR No. 726/2020 registered at P.S. Rajouri Garden.
2. Briefly stated, the case of the prosecution is that on 17.08.2020 at about 3:30 pm at Raja Garden Flyover, two boys came on a scooty and snatched the bag of the complainant (containing Rs. 500/- cash, PAN Card, Aadhaar Card and Iphone XR) by using criminal force from complainant. Thereafter, the boys fled from the spot. 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 356/379/411 IPC and HC Vijay Kumar 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. IO formally seized scooty bearing no. DL 6S AS 2503 and the stolen bag vide separate seizure memos. Thereafter, accused was arrested in the present FIR. Statements of the witnesses were recorded and based on the material collected, accused Dinesh @ Dabbu was found responsible for the commission of offences punishable under Section 356/379/411 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.
FIR Number : 726/2020 State vs. Dinesh @ Dabbu 2/8
4. On finding sufficient material on record against accused Dinesh @ Dabbu, he was summoned before this court and on his appearance, copies of the challan and other documents were supplied to him 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 under Sections 356/379/411 of I.P.C., notice of accusation was put to him, to which he pleaded not guilty and claimed to have a defense to make.
6. During trial, offence u/s 379 r/w 411 IPC was compounded between the parties and statutory acquittal u/s 379/411 IPC was announced in favor of accused.
7. Thereafter, prosecution was called upon to adduce its evidence qua commission of offence u/s 356 IPC. The prosecution in order to prove its case examined as many as 01 witness. PW-1 Ms. Saibahar Tyagi is the complainant and sole eye witness of the case.
8. Thereafter, on completion of PE, considering that the complainant and sole eye witness had turned hostile on point of identity, statement of accused u/s 313 Cr. P.C. was dispensed with. Thereafter, final arguments were heard.
9. I have heard Mr. Aditya Trehan, Ld. APP for State and Mr. Rishi Raj Pandey, Ld. LAC for accused and have gone through the records carefully.
10. 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.
FIR Number : 726/2020 State vs. Dinesh @ Dabbu 3/8
11. Per contra, Ld. Counsel for accused has argued that State has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that main witness has turned hostile and despite reading his evidence as a whole, nothing has come on record against the accused. As such, it is prayed that accused be acquitted for the said offence.
12. 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 17.08.2020 at around 3:30 pm, at Raja Garden Flyover, accused Dinesh @ Dabbu alongwith co-accused Sonu (not arrested) came on a scooty and snatched bag belonging to the complainant Saibahar Tyagi by using criminal force, as alleged?
2. Final order.
13. 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 Dinesh @ Dabbu is acquitted as per the operative part of the judgment.
REASONS FOR FINDINGS
POINT NO. 1
FIR Number : 726/2020 State vs. Dinesh @ Dabbu 4/8
14. To bring home the culpability of accused under Section 356 IPC, it is pertinent that relevant provisions of law are first read. Section 356 IPC is reproduced herein below:
Assault or criminal force in attempt to commit theft of property carried by a person.--Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished with imprisonment of ei- ther description for a term which may extend to two years, or with fine, or with both.
15. 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.
16. 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 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.
17. In order to prove its case, the prosecution has examined, PW1 Saibahar Tyagi who being the complainant and sole eye witness is the star witness of the case.
FIR Number : 726/2020 State vs. Dinesh @ Dabbu 5/8
18. PW-1 Saibahar Tyagi stepped into the witness box and deposed that on the day of the incident at around 3:00 pm to 4:00 pm, she was on her way to Janakpuri for meeting her mother in an auto when two boys came on a two wheeler all of a sudden and snatched her bag (containing Iphone XR red in colour, cosmetics, Aadhaar Card, cash of Rs.
500/- etc). She further deposed that she informed her mother about the incident. Thereafter, she alongwith her mother went to PS Rajouri Garden where she narrated the entire incident to the police officials who recorded her complaint which is Ex.PW1/A. Witness failed to identify the accused in court and categorically deposed that the person standing in the witness box in front of her to be not the person who had snatched her bag on the day of incident. Witness was declared hostile by Ld. APP for the State and was cross examined.
19. In her cross-examination, she denied the suggestion that she was deposing falsely as she had settled the matter with the accused. Production of case property was dispensed with on no objection of Ld. APP for the State as well as Ld. Defence counsel.
20. PW-1/complainant has 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 : 726/2020 State vs. Dinesh @ Dabbu 6/8 relied in part. The perusal of the testimony of this witness shows inconsistencies and contradiction in her version. PW1 in her testimony has failed to identify the accused. The witnesses also categorically stated that accused was not the person who had snatched the bag on the day of alleged incident. The witness has merely stated that two boys came on a two wheeler and snatched her bag on the day of the alleged incident but failed to depose anything about the involvement of accused 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. 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 had used criminal force on the complainant.
23. There is no other witness to establish the guilt of the accused. As such, the prosecution has failed to establish the act of assault or use of criminal force on the part of the accused in the present case and, therefore, failed to prove beyond reasonable doubt the fact that accused Dinesh @ Dabbu had snatched the bag/purse of the complainant by using criminal force or assault. 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. Hence, benefit of doubt must be given to the accused. Thus, this point is answered in the negative and is decided against the prosecution.
FINAL ORDER:
FIR Number : 726/2020 State vs. Dinesh @ Dabbu 7/8
24. Accordingly, in view of the above discussion, since the prosecution could not prove the guilt of the accused for commission of offence punishable under section 356 of IPC, beyond reasonable doubt, accused Dinesh @ Dabbu is acquitted of the offence punishable under Section 356 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 has 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 16th day of September, 2023 (Neetika Kapoor) MM-02, West, THC,DELHI 16.09.2023 It is certified that this judgment contains 08 pages, and each page bears my signature.
FIR Number : 726/2020 State vs. Dinesh @ Dabbu 8/8