Delhi District Court
State vs Gautam on 17 May, 2024
IN THE COURT OF MS. NEETIKA KAPOOR, MM-06, SOUTH WEST
DISTRICT, DWARKA COURTS, DELHI.
DLSW020426432023
FIR Number : 123/2020
P.S. : Dwarka North
U/s : 356/379/411/34 IPC
STATE VS. GAUTAM & Ors.
a) Cr. no. of the Case : 9942/2023
b) Name & address of the Complainant : Bharat Bhusan S/o
Pradeep Kumar R/o
Ward No. 6, Behind
Madhusudan Public
School, Rewari,
Haryana.
c) Name & address of the accused : (i) Gautam S/o Ashok
Kumar R/o RZ, A-18,
PH-1, Jai Vihar,
Najafgarh, New
Delhi.
(ii) Prashant S/o Manoj
Kumar R/o E-5, Jai
Vihar, PH-1,
Najafgarh, New
Delhi.
d) Date of Commission of offence : 04.02.2020
FIR Number : 123/2020 State vs. Gautam & Ors. Page 1 of 11
Digitally signed
NEETIKA by NEETIKA
KAPOOR
KAPOOR Date: 2024.05.17
17:59:44 +0530
e) Offence complained of : 356/379/411/34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final Order : Acquittal
Date of registration of FIR : 04.02.2020
Final arguments heard on : 17.05.2024
Judgment Pronounced on : 17.05.2024
JUDGMENT
1. The accused persons namely Gautam and Prashant are facing trial for the commission of offences punishable under Sections 356/379/411/34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) in connection with the case FIR No. 123/2020 registered at P.S. Dwarka North.
2. Briefly stated, the case of the prosecution is that on 04.02.2020 at about 8:25 am near Om Apartment and Shaheed Bhagat Singh Apartment, Sector 14, Dwarka, two boys snatched mobile phone (Oppo A-55 Blue and Green in colour) by using criminal force from complainant Bharat Bhusan. Thereafter, the boys fled from the spot. Feeling aggrieved complainant went to PS Dwarka North and gave a complaint, thereafter, present FIR was registered for offence u/s 356/379/411/34 IPC and IO HC Mahaveer Singh was appointed as the 1st 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 the mobile phone vide separate seizure memo. Thereafter, accused was arrested in the present FIR.
FIR Number : 123/2020 State vs. Gautam & Ors. Page 2 of 11 Digitally signedNEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.17 17:59:51 +0530 Statements of the witnesses were recorded and based on the material collected, accused persons namely Gautam and Prashant were found responsible for the commission of offences punishable under Section 356/379/411/34 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 persons.
4. On finding sufficient material on record against accused persons, they were summoned before this court and on their appearance, 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 356/379/411/34 of I.P.C., charge was put to them, to which they pleaded not guilty and claimed to have a defence to make.
6. During trial, offence u/s 379/411 IPC was compounded between the parties and statutory acquittal u/s 379/411 IPC was announced in favor of accused persons.
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 03 witness. PW-1 Bharat Bhushan is the complainant and sole eye witness of the case and PW-2 ASI Mahaveer Singh is the 1st Investigating Officer and PW-3 ASI Mahabir is the 2 nd Investigating Officer in the present case
8. Thereafter, statement of accused persons u/s 294 r/w Section 313 r/w Section 281 Cr.P.C. was recorded wherein the accused persons admitted the present FIR which is Ex.P/A/1 and TIP proceedings of accused persons which is Ex.P/A/2(colly).
9. After completion of prosecution evidence, incriminating evidence adduced by prosecution was put to accused persons by recording their FIR Number : 123/2020 State vs. Gautam & Ors. Page 3 of 11 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.17 17:59:57 +0530 statement u/s 313 Cr.P.C, wherein they 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. Puspendra Verma, Ld. APP for State and Mr. Sandeep Ranjan, Ld. counsel for accused Prashant and Sh. Shashi Kant, Ld. counsel for accused Gautam 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 persons. As such, it is prayed that accused persons were be punished for the said offence.
12. Per contra, Ld. Counsel for accused persons 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 persons. As such, it is prayed that accused persons 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 04.02.2020 at around 8.25 am, near Om Apartment and Shaheed Bhagat Singh Apartment, Sector 14, Dwarka, Delhi, accused persons namely Gautam and Prashant had snatched mobile phone (make Oppo A-55 Blue and Green) belonging to the complainant Bharat Bhushan by using criminal force, as alleged?FIR Number : 123/2020 State vs. Gautam & Ors. Page 4 of 11 Digitally signed
NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.17 18:00:03 +0530
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 persons namely Gautam and Prashant are 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:
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 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 ingre- dients which constitute the offence of using criminal force or assault in attempt to commit theft of property carried by a person are as follows:
FIR Number : 123/2020 State vs. Gautam & Ors. Page 5 of 11 Digitally signedNEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.17 18:00:09 +0530
1. Person must have used criminal force or as- sault 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 persons must be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused persons. The evidence in the case at hand, is to be weighed keeping in view these legal standards.
18. In order to prove its case, the prosecution has examined, PW1 Bharat Bhushan who being the complainant and sole eye witness is the star witness of the case.
19. PW-1 Bharat Bhushan stepped into the witness box and deposed that in year 2019-2020 he was going to his house from Dwarka Sector 14 metro station and had reached near Om Apartment and was talking on his phone when suddenly two boys came from behind on a motorcycle and snatched his mobile phone and thereafter fled from the spot. He went to police chowki and reported the matter and thereafter, went to PS Dwarka North where his statement was recorded by the IO which is Ex.PW1/A. Site plan was also prepared by the IO in his presence. After some time, police officials had informed him that his mobile phone had been recovered. Witness correctly identified the mobile phone from the photographs on record which are Ex.P1(colly). He further deposed that he had not seen the face of the snatchers at the time of the alleged incident as they were wearing monkey caps. Witness FIR Number : 123/2020 State vs. Gautam & Ors. Page 6 of 11 Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.05.17 18:00:15 +0530 failed to identify the accused persons in court and categorically deposed that the person standing in the witness box in front of him to be not the persons who had snatched his mobile phone on the day of incident. Witness was declared hostile by Ld. APP for the State and was cross examined.
20. In his cross-examination, witness failed to identify the accused persons as the snatchers stating that the boys who were involved in the incident were not similar to snatchers. Witness denied the suggestion that he was deposing falsely as he had been won over by the accused.
21. PW-2 ASI Mahaveer Singh stepped into the witness box and deposed that on 05.02.2020, present FIR was marked to him for investigation. He had called complainant in PS and recorded his statement which is Ex.PW1/A. Thereafter, complainant took him to the spot i.e Sunday Bazar Road behind Om Apartment, Sector 14, Dwarka Delhi and he prepared the site plan which is Ex.PW2/A. Despite search, neither any CCTV cameras nor the culprits were found. Witness was not cross-examined, despite opportunity.
22. Further, PW-3 ASI Mahabir stepped into the witness box and deposed that on 19.09.2020 further investigation of the present case was marked to him. On that day, secret informer informed him that two persons would be coming at Jai Vihar Nala who are habitually involved in stealing articles and can be arrested if a raid is conducted. Witness discussed the information with SHO concerned. Thereafter, a raiding team was constituted consisting of Ct. Sunil, Ct. Giri and the secret informer. Thereafter, members of the raiding team alongwith the secret informer went to the spot where secret informer pointed towards two boys who were coming towards Nala. They were apprehended by police officials and during their cursory search, one mobile phone OPPO (green and blue in colour) was found from possession of accused Prashant and same was seized vide seizure memo Ex.PW3/A. He further deposed that one mobile phone make OPPO was also found from possession of accused Gautam which was FIR Number : 123/2020 State vs. Gautam & Ors. Page 7 of 11 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.17 18:00:20 +0530 seized vide seizure memo Ex.PW3/B. Site plan of spot of recovery was prepared which is ExPW3/I. Thereafter, Both the boys were arrested vide arrest memos Ex.PW3/C and Ex.PW3/D. Personal search memos were prepared which are Ex.PW3/E and Ex.PW3/F respectively. Disclosure statements of both accused persons were recorded which is Ex.PW3/G and Ex.PW3/H respectively. Witness correctly identified the accused persons in the court but failed to identify them by name.
23. In his cross-examination, Ld. defence counsel he stated that at the time of recovery of mobile phone, same was switched off and no vaild/ active sim card was found. He had only matched the IMEI details of mobile phone and had not verified KYC details of mobile phone recovered from the accused. Witness had not recovered motorcycle used in the present case. Witness denied the suggestion that no mobile phones were recovered from custody of accused and same are planted. Witness denied the suggestion that all the documents were prepared while sitting in PS. Witness denied the suggestion that he had not conducted fair and proper investigation in the present case. Witness denied the suggestion that accused persons have been falsely implicated in the present case. Witness denied the suggestion that he was deposing falsely.
24. 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 FIR Number : 123/2020 State vs. Gautam & Ors. Page 8 of 11 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.17 18:00:27 +0530 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."
25. 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 persons and clearly stated to have not seen the face of the snatcher at the time of alleged incident. The witness also categorically stated that accused persons were not the persons who had snatched the mobile phone on the day of alleged incident. The witness has merely stated that two boy came on a motorcycle and snatched his mobile phone on the day of the alleged incident 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. Specific evidence has to be led by the prosecution in order to prove the same.
26. Perusal of testimony of PW2 and PW3 reveal that they had only conducted the investigation after receiving the information regarding the incident and had reached the spot later and thus, cannot depose about the factual position of the incident and the use of criminal force by the accused persons, if any. Testimony of PW2 and PW3 are at best corroborative in nature but not sufficient to establish guilt of accused persons beyond reasonable doubt.
27. Testimonies of other witnesses were dispensed with as they FIR Number : 123/2020 State vs. Gautam & Ors. Page 9 of 11 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.17 18:00:34 +0530 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 incident which is undisputed, it could not be inferred that the incident had occurred as accused persons had used criminal force on the complainant. Moreover, site plan also fails to depict the exact location where the mobile phone of complainant was snatched and the point from where the accused persons were apprehended.
28. 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 namely Gautam and Prashant had snatched the mobile phone 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 persons. Thus, this point is answered in the negative and is decided against the prosecution.
FINAL ORDER:
29. 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 persons namely Gautam and Prashant are acquitted of the offence punishable under Section 356 of IPC.
FIR Number : 123/2020 State vs. Gautam & Ors. Page 10 of 11 Digitally signed byNEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.05.17 18:00:40 +0530
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 persons have already furnished personal and surety bonds as per the mandate of section 437-A of the Code of Criminal Procedure, wherein they have undertaken that they shall put in their 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 17thDigitally day of byMay, 2024 NEETIKA NEETIKAsigned KAPOOR KAPOOR 18:00:49 +0530 Date: 2024.05.17 (Neetika Kapoor) MM-06/SWD/Dwarka Court New Delhi/17.05.2024 It is certified that this judgment contains 11 pages, and each page bears my signature.
FIR Number : 123/2020 State vs. Gautam & Ors. Page 11 of 11