Delhi District Court
State vs Haidar Ali on 21 November, 2023
IN THE COURT OF MS. NEETIKA KAPOOR, MM-02, WEST DISTRICT, TIS
HAZARI COURTS, DELHI.
DLWT02-011514-2020
FIR Number : 542/2020
P.S. : Rajouri Garden
U/s : 356/379/411 IPC
STATE VS. HAIDAR ALI
a) Cr. no. of the Case : 6580/2020
b) Name & address of the Complainant : Vishakha, D/o Devender
Kumar, R/o H. No. 19/3758,
Ragarpura, Karol Bagh, New
Delhi.
c) Name & address of the accused : Haidar Ali, S/o Islamuddin, R/o
H. No. A-73, Raghubir Nagar,
New Delhi.
d) Date of Commission of offence : 09.06.2020
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 : 09.06.2020
Final arguments heard on : 21.11.2023
Judgment Pronounced on : 21.11.2023
FIR No. 542/2020 State vs. Haidar Ali 1/7
JUDGMENT
1. The accused Haidar Ali 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 E-FIR No. 542/2020 registered at P.S. Rajouri Garden.
2. Briefly stated, the case of the prosecution is that on 09.06.2020 at about 6:10 pm near Red Light Road No. 28, Near Shivaji College, Rajouri Garden, one boy came on a scooty and snatched mobile phone by using criminal force from complainant. Thereafter, the boy tried to escape but was caught by the brother of complainant. Feeling aggrieved complainant went to PS Rajouri Garden and gave a complaint and thereafter, present FIR was registered u/s 356/379/411 IPC and ASI Kuldeep Singh 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 4SCF 8326 and the stolen mobile vide separate seizure memos. Thereafter, accused Haider Ali was arrested in the present FIR. Statements of the witnesses were recorded and based on the material collected, accused Haider Ali was found responsible for the commission of offences punishable under Section 356/379/411 of the IPC. On 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.
4. On finding sufficient material on record against accused Haidar Ali, 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. Thereafter, 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.
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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 02 witness. PW-1 Vishakha is the complainant and PW-2 Harsh Dev is the brother of complainant.
8. During the course of prosecution evidence, statement of accused u/s 294 r/w Section 313 r/w Section 281 Cr.P.C. was recorded wherein the accused admitted the present FIR along with certificate u/s 65B IEA which is Ex.A1, Site plan which is Ex.A2, Seizure memo of mobile phone which is Ex.A3, Seizure memo of scooty which is Ex.A4, Arrest memo which is Ex.A5 and personal search memo which is Ex.A6.
9. After completion of prosecution evidence, incriminating evidence adduced by prosecution was put to accused by recording his statement u/s 313 Cr.P.C, wherein he denied the case of prosecution and pleaded innocence and preferred not to lead any evidence in their defense. Thereafter, final arguments were heard.
10. I have heard Mr. Aditya Trehan, Ld. APP for State and Sh. Pankaj Sharma, Ld. LAC for accused and have gone through the records carefully.
11. 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.
12. 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.
13. 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 06.06.2020 at about 6:10 pm near Red Light Road No. 28, Near Shivaji College, Rajouri Garden, accused Haidar Ali snatched the mobile phone belonging to the complainant Vishakha by using criminal force, as alleged?
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2. Final order.
14. 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 Haidar Ali is acquitted as per the operative part of the judgment.
REASONS FOR FINDINGS POINT NO. 1
15. 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:
"356. 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 imprison-
ment of either description for a term which may extend to two years, or with fine, or with both."
16. From bare reading of this provision, the two essential in- gredients 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.
17. 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.
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18. In order to prove its case, the prosecution has examined, PW-1 Vishakha and her brother PW-2 Harsh Dev who being the eye-witnesses are star witnesses of the case.
19. PW-1 Vishakha stepped into the witness box and deposed that on the day of the alleged incident, she had left from her office i.e., DM office, Rajouri Garden at around 6:30 pm and was standing just outside her office when suddenly one boy came on a Scooty from the back and snatched her mobile phone. Her brother was waiting ahead for her and she went and narrated the entire incident to him. They tried to chase the snatcher on a motorcycle and caught him on a red light near petrol pump. She saw her mobile phone in the boy's pocket and immediately took out the same. Witness had called PCR on No.
100. She further stated that the boy who had snatched her phone was also present at the spot when the police came to the spot. They handed over custody of the boy to the police. Thereafter, police took them to PS where her statement was recorded which is Ex.PW1/A. Witness correctly identified the mobile phone from the photograph on record which is Ex. P1. Witness failed to identify the accused and stated that she cannot identify the boy who had snatched her mobile phone on the day of the alleged incident as the incident had taken place three years ago. Witness was declared hostile by Ld. APP for the State and was cross examined.
20. In her cross-examination, she denied the suggestion that she was deposing falsely as she had settled the matter with the accused. She further denied the suggestion that she was intentionally and deliberately not identifying the accused as she had been won over by the accused. She denied the suggestion that she was deposing falsely as she had settled the matter with the accused.
21. PW-2 Harsh Dev stepped into the witness box and deposed that on the day of the alleged incident, he had gone to pick up his sister in Rajouri Garden and was standing at Petrol pump when suddenly his sister came running to him and informed that her mobile phone been snatched by a boy wearing orange T-shirt riding a scooty. Witness informed her that he had just seen the boy going away on the scooty. They tried to chase the scooty on their motorcycle and stopped the scooty on the red light. His sister had seen her mobile phone in the boy's pocket and she immediately took it out from his pocket. Some public persons had also gathered at the spot. Witness failed to remember who had called PCR on No. 100. Witness stated that the boy who had snatched his sister's phone was also present at the spot when the police came to the spot. They handed over custody of the boy to the police. Thereafter, police took them to PS. Witness correctly identified the mobile phone from the photograph on record which is Ex.P1. Witness failed to identify the accused and stated that he cannot identify the boy who had snatched mobile phone on the day of the alleged incident as the incident had taken place three years ago. Witness was FIR No. 542/2020 State vs. Haidar Ali 5/7 declared hostile by Ld. APP for the State and was cross examined. In his cross-examination, he denied the suggestion that she was deposing falsely as she had settled the matter with the accused. He further denied the suggestion that he was intentionally and deliberately not identifying the accused as his sister had been won over by the accused.
22. PW-1/complainant and PW-2 her brother 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."
23. Therefore, it must be seen if the evidence of such hostile witnesses can be relied in part. The perusal of the testimony of these witnesses show inconsistencies and contradiction in their version. PW1 and PW-2 in their testimonies have failed to identify the accused and clearly stated to have not seen the face of the snatcher at the time of alleged incident. The witnesses have merely stated that one boy came on a scooty and snatched the mobile 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 witnesses 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 testimonies of the PW1 and PW2. Specific evidence has to be led by the prosecution in order to prove the same.
24. There is no other witness to establish the guilt of the accused. 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 on the spot on the day of the FIR No. 542/2020 State vs. Haidar Ali 6/7 alleged incident. 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.
25. 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 Haidar Ali had snatched the mobile phone of the complainant by using criminal force or assault. Testimony of eyewitnesses 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:
26. 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 Haidar Ali is acquitted of the offence punishable under Section 356 of IPC.
27. 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.
28. 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 21st November, 2023** (Neetika Kapoor) MM-02, West, THC, DELHI 21.11.2023 It is certified that this judgment contains 07 pages, and each page bears my signature.
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