Delhi District Court
State vs Sarjina on 14 February, 2024
IN THE COURT OF Ms. NEETIKA KAPOOR, METROPOLITAN
MAGISTRATE-06, SOUTH WEST DWARKA, DWARKA COURTS, DELHI.
DLSW020554572021
FIR Number : 743/2021
P.S. : Dwarka North
U/s : 392/34 IPC
STATE VS. SARJINA
a) Cr. no. of the Case : 14263/2021
b) Name & address of the Complainant : Abhishek Nair, S/o R.C. Nair,
R/o H. No. 112, Pocket E,
Pipeel Apartment, Sector 17,
Dwarka, New Delhi.
c) Name & address of the accused : Sarjina W/o Tilak, R/o H. No.
139, Dharmpura, Najafgarh,
Delhi
d) Date of Commission of offence : 05.10.2021
e) Offence complained of : 392/34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final Order : Acquittal
Date of registration of FIR : 05.10.2021
FIR Number : 743/2021 State vs. Sarjina Page 1 of 11
Digitally signed
NEETIKA by NEETIKA
KAPOOR
KAPOOR Date: 2024.02.14
17:01:29 +0530
Final arguments heard on : 14.02.2024
Judgment Pronounced on : 14.02.2024
JUDGMENT
1. The accused Sarjina is facing trial for the commission of offence punishable under Sections 392 r/w Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) in connection with the case FIR No. 743/2021 registered at P.S. Dwarka North.
2. Briefly stated, the case of the prosecution is that on 05.10.2021 at around 10:30 am, complainant Abhishek Nair was going to his home from health Solution Fitness Gym Sector 17, Dwarka and when he had reached near Sector 13, Metro Station, his car was surrounded by four women asking for help. The four women created a ruckus by banging on the car. Before complainant could react, the women themselves opened the door of his car and one of them sat on the front passenger seat. The women asked the complainant to drive towards Sector 16 and as soon as they reached near the red light she asked him to take a left turn. When the complainant refused and asked the women to step out of her, she robbed him of his gold chain and fled from the spot. Feeling aggrieved complainant called PCR on No.
100. Police officials reached the spot in about 5 minutes but the women culprit was not found. Statement of complainant was recorded, based on which rukka was prepared and consequently, present FIR was registered and SI Gurtej 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. On 09.10.2021 IO alongwith the complainant again went to the spot where complainant pointed towards the accused Sarjina as the culprit. Thereafter, accused was arrested and personally searched. Disclosure statement of the accused was recorded. Statements of the witnesses were recorded and based on FIR Number : 743/2021 State vs. Sarjina Page 2 of 11 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.02.14 17:01:38 +0530 the material collected, accused Sarjina was found responsible for the commission of offence punishable under Section 392/34 of the IPC. After completion of the investigation, case file was handed over by the IO to SHO of Police Station Dwarka North who after following the codal formalities, prepared and filed the instant challan against the accused.
4. On finding sufficient material on record against accused, she was summoned before this court and on her appearance, copies of the challan and other documents were supplied to her 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 392/34 of I.P.C., charge was put to her, to which she 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 03 witnesses. PW-1 Abhishek Nair is the complainant and sole eye witness of the case, PW-2 W/Ct. Sushila had accompanied the IO during investigation and PW-3 SI Gurtej Singh the IO in the present case.
7. Thereafter, 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 alongwith certificate u/s 65B Indian Evidence Act which is Ex.A1(colly) and DD No. 37A which is Ex.A2.
8. After completion of prosecution evidence, incriminating evidence adduced by prosecution was put to accused by recording her statement u/s 313 Cr.P.C, wherein she denied the case of prosecution and pleaded innocence and preferred not to lead any evidence in her defense. Thereafter, final arguments were heard.
9. I have heard Mr. Pushpendra Verma, Ld. APP for State and Sh. Rajnikant Mishra, Ld. counsel for accused and have gone through the records carefully.
FIR Number : 743/2021 State vs. Sarjina Page 3 of 11 Digitally signedNEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.02.14 17:01:43 +0530
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.
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 her 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 05.10.2021 at about 10:30 am near IP University Red Light Sector 16, Dwarka, New Delhi, accused Sarjina alongwith co-accused (not charge-sheeted) in furtherance of their common intention committed robbery of gold chain belonging to complainant Abhishek Nair, 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 Sarjina is acquitted as per the operative part of the judgment.
REASONS FOR FINDINGS FIR Number : 743/2021 State vs. Sarjina Page 4 of 11 Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.14 17:01:48 +0530 POINT NO. 1
14. To bring home the culpability of accused under Section 392 IPC, it is pertinent that relevant provisions of law are first read. Offence of Robbery is defined u/s Section 390 and punished u/s 392 PC and both are reproduced herein below:
390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" 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 the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or 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 to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 392 IPC: Whoever commits robbery shall be punished with rigorous imprisonment for a term FIR Number : 743/2021 State vs. Sarjina Page 5 of 11 Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date:
2024.02.14 17:01:54 +0530 which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
15. For a case to fall under section 392 IPC in case of theft amounting to robbery, actual theft as defined in section 378 IPC should be committed. In case titled "Malkhan Singh vs. State of Haryana 1994 SCC (Crl) 1422)", the Hon'ble Supreme Court of India held that for Section 392 IPC to apply, the prosecution has to establish that during the course of commission of the offence of theft the offender had caused or had intended to cause threat of death or hurt or wrongful restraint.
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 Abhishek Nair who being the complainant and sole eye witness is the star witness of the case.
18. PW-1 Abhishek Nair stepped into the witness box and deposed that on 05.10.2021 at around 10:30 am, he was returning from Health Solution Fitness Gym Sector 17 Dwarka and going towards Sector 14 when he had stopped near Sector 13 Metro Station. Four women surrounded his car and started asking for help stating that one of them is extremely ill and on deathbed. All the ladies created a ruckus and kept on banging on his car. Witness was startled and before he could react, the women opened car doors and one of them came and sat on front seat of his car. The woman was aged approximately 25 years. He further deposed that the woman kept on asking FIR Number : 743/2021 State vs. Sarjina Page 6 of 11 Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.14 17:01:58 +0530 for his help and asked him to drive forward. As soon as he reached the red light of Sector 16, the woman asked him to take a left turn which was completed deserted. Witness refused and asked the woman to step out of the car. He further deposed that as the traffic was coming from behind, he was looking in the side rear view mirror before taking a u-turn and at that time the lady stepped out of his car and he could only hear car door being shut. He further deposed that he immediately took a u-turn and did not even see where the lady went but he soon realized that the gold chain in his neck was missing. He immediately called his father and informed PCR on No. 100. Police officials reached the spot in about 5 minutes. Despite best efforts, the lady culprit was not found. Witness was taken to PS where his statement was recorded which is Ex.PW1/A. Site plan was prepared in presence of the witness which is Mark A. Witness further deposed that in PS, police officials had produced the accused before him but he had informed them that she was not the woman who was involved in the incident but despite that police officials forced him to continue with the matter. Accused Sarjina was arrested in presence of the witness. He further deposed that he had informed the IO that he was not inclined to pursue the matter. (Witness failed to identify the accused Sarjina in court. Witness was declared hostile by Ld. APP for the State and was cross examined).
19. In his cross-examination by Ld. APP, he deposed that accused Sarjina was not the woman who was involved in the alleged incident and he had clarified this fact with the IO. He further deposed that he had repeatedly told the police officials that he was not inclined to pursue the matter but they kept on insisting. He further deposed that police officials had taken his signatures forcefully on all the documents and had made him sit in PS the whole day. He denied the suggestion that he was deposing falsely as he had been won over by the accused.
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 FIR Number : 743/2021 State vs. Sarjina Page 7 of 11 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.02.14 17:02:03 +0530 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 relied in part. The perusal of the testimony of this witness shows inconsistencies and contradiction in his version. PW1 in his testimony has failed to identify the accused Sarjina and even gone ahead to say that she was not the woman involved in the alleged incident. The witness has merely stated that the woman who had sat in his car on the day of incident had robbed him of his gold chain but failed to depose anything about the involvement or presence of accused Sarjina in the alleged incident. Witness event went on to say that the said fact was also brought to the knowledge of the IO but despite that IO has falsely implicated the accused in the present case. 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 for committing theft and putting the complainant in fear of instant death, hurt or wrongful restraint by the accused Sarjina 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. In order to prove its case, prosecution also examined PW-2 W/Ct. Sushila who stepped into the witness box and deposed that on 09.10.2021 she was on FIR Number : 743/2021 State vs. Sarjina Page 8 of 11 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.02.14 17:02:10 +0530 reserve duty and had accompanied the IO, HC Basant and PW-1 to the spot i.e. backside of I.P. University where complainant had pointed towards the accused. Thereafter, accused was personally searched in her presence and her disclosure statement was recorded. She had accompanied the accused for her medical examination and had later handed over her custody to the IO.
23. In her cross-examination by Ld. Defence counsel, she admitted that no gold chain had been recovered from the accused in her presence. No public persons were present at the spot. She denied the suggestion that she was deposing falsely.
24. In order to corroborate testimony of PW-2, prosecution examined PW-3 SI Gurtej Singh who being the Investigating Officer, supported the case of the prosecution and narrated the factum of investigation conducted by him in the present case. On 05.10.2021 he had gone to the spot alongwith HC Bhagirath and complainant but had not found the culprit. On 09.10.2021, he had again gone to the spot with complainant, HC Basant and W/Ct. Sushila to the spot where complainant had identified the accused. Later, disclosure statement of accused was recorded which is Ex.PW3/A. Accused was arrested and her personal search was conducted vide memos Ex.PW3/B and Ex.PW3/C respectively. During interrogation, accused had stated that some other lady had taken away the stolen gold jewellery from her. On completion of investigation, charge-sheet was filed in the court.
25. In his cross-examination by Ld. Defence counsel, witness admitted that no public persons were present at the spot. No notice was issued to public persons to join investigation. Witness admitted that no recovery had been affected from the accused in his presence. Witness denied the suggestion that he was deposing falsely.
26. Perusal of testimonies of PW2 and PW3 reveal that they had only conducted the investigation after receiving the complaint regarding the incident and had reached the spot later and thus, cannot depose about the factual position of the FIR Number : 743/2021 State vs. Sarjina Page 9 of 11 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.02.14 17:02:15 +0530 incident. Moreover, both the witnesses have simply stated that role of accused was ascertained and she was arrested in the present matter only after her identification by PW-1, however, the said fact have been completely denied and negated by PW1 in his testimony, who repeatedly stated that he had informed the IO that accused Sarjina was not the woman who was involved in the alleged incident. PW1 also clearly deposed that his signatures were taken forcefully on all the documents prepared by the police in PS. Thus, testimonies of PW2 and PW3 do not support the testimony of PW1 and are not sufficient to establish guilt of accused Sarjina beyond reasonable doubt.
27. 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 role or involvement of accused in the alleged incident. Moreover, site plan prepared by the IO is not sufficient to prove the act of assault or use of criminal force or robbery on the part of the accused. While it shows the location of the incident which is undisputed, it could not be inferred that the incident had occurred as accused Sarjina had robbed the complainant of his gold chain by putting him in fear of instant death, instant hurt or instant wrongful restraint.
28. 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 or robbery on the part of the accused and her involvement in the present case and, therefore, failed to prove beyond reasonable doubt the fact that accused Sarjina in furtherance of her common intention with her accomplices, had robbed complainant Abhishek Nair of his gold chain by putting him in fear of instant death, instant hurt or instant wrongful restraint. 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 : 743/2021 State vs. Sarjina Page 10 of 11
Digitally signed
by NEETIKA
NEETIKA KAPOOR
KAPOOR Date:
2024.02.14
29. Accordingly, in view of the above discussion, since the prosecution could not prove the guilt of the accused Sarjina for commission of offence punishable under section 392 r/w Section 34 of IPC, beyond reasonable doubt, accused Sarjina is acquitted of the offence punishable under Section 392 r/w Section 34 of IPC.
30. 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.
31. The accused has already furnished personal and surety bonds as per the mandate of section 437-A of the Code of Criminal Procedure, wherein she has undertaken that she shall put in her 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 14th day of February, 2024.
Digitally signedNEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.02.14 17:02:32 +0530 (Neetika Kapoor) MM-06/SWD/Dwarka Court New Delhi/14.02.2024 *It is certified that this judgment contains 11 pages, and each page bears my signature.* FIR Number : 743/2021 State vs. Sarjina Page 11 of 11