Delhi District Court
State vs . Mobin on 19 October, 2022
IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE,
DISTRICT EAST, KARKARDOOMA COURTS, DELHI
Presided by: Mr. Jitendra Pratap Singh, DJS
State Vs. Mobin
FIR No.: 274/13
PS : Pandav Nagar
U/s. 382/34 IPC
JUDGMENT
1) SI No. of the case : 4189/16
2) The date of commission of offence : 01.06.2013
3) The name of the complainant : Ms. Babita
4) The name & parentage of accused : Mobin S/o. Sh. Mukkaram
R/o. H.No.A-328, Gali No.9,
Village Wazirabad, Land
Mark Near Amina Masjid,
Delhi-110084.
5) Offence involved : 356/379/382 IPC
6) The plea of accused : Pleaded not guilty
7) Final order : Convicted u/Sec.356/379 IPC &
acquited u/Sec.382 IPC
8) The date of such order : 19.10.2022
9.) Date of Institution : 29.08.2013
10.) Judgment reserved on : 18.10.2022
11.) Judgment announced on : 19.10.2022
FIR No.:274/13 State Vs. Mobin Page 1/15
THE BRIEF REASONS FOR THE JUDGMENT:
1. The accused Mobin has been chargesheeted for the offence punishable under section 382, The Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 01.06.2013 at about 4 PM, near the Agarwal Bikaner Sweet Shop, Acharya Niketan/Pratap Nagar, Mayur Vihar, Phase - 1, Delhi within the jurisdiction of the Police Station Pandav Nagar the accused along with his associate, who has remained untraceable during the investigation, in furtherance of their common intention had committed the theft of the ornamental chain of the complainant Mrs Babita after having made preparation for causing hurt to her and they had wrongfully restrained her in order to commit the said theft. The accused therefore have committed the offence punishable under section 382 IPC.
3. After perusing the record, cognizance was taken by the Court. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.) was done.
4. After hearing the parties, charge for the offence punishable under Section 382 IPC was framed on 16.11.2013 against the accused Mobin. He pleaded not guilty and claimed trial.
FIR No.:274/13 State Vs. Mobin Page 2/15
5. Summons were issued to the witnesses. The prosecution has examined nine witnesses in support of its case.
6.PW1 Mrs Babita is the complainant and she deposed that on 23.06.2013 while she with her mother Mrs Baby were going to the Market at Acharya Niketan, Trilokpuri at about 4 PM and when they reached near M/s Agarwal Bikaner Sweet Shop two boys came on Bajaj Pulsar motorcycle and waylaid them. While identifying the accused Mobin as the pillion rider, she further deposed that he was placing his hands in such a manner so as to give an impression that he was getting some weapon. That the accused snatched her gold chain from her neck. She gave a chase to both the riders but in vain. She called the PCR and the police arrived at the spot and recorded her statement Ex. PW1/1. She showed the place of the incident to the police officials. She deposed that the rider of the motorcycle was wearing a closed helmet but she had seen the accused Mobin as his visor was open.
7. The PW-1 has identified the accused in the Court as the person who had committed the offence with her.
8. PW-2 Mrs Baby has corroborated the testimony of the PW1. She however has failed to identify the accused as the offender despite cross-examination on this aspect by the Ld. APP for the State.
FIR No.:274/13 State Vs. Mobin Page 3/15
9. PW-3 HC Dharampal has proved the registration of the FIR in the present case,i.e. Ex. PW3/A (OSR). He also proved the endorsement on the Rukka Ex. PW3/B.
10. PW4 Ct. Ranbir and PW7 SI Sanjeev Kumar have deposed that on 23.06.2013, the PW7 received the DD no. 27A regarding snatching. Thereafter they both reached the spot and the PW7 recorded the statement of the complainant, already Ex. PW1/E and rukka was given to PW4 for the registration of FIR. PW7 proved the site plan Ex. PW1/DA. He deposed that on 29.06.2013, the accused was arrested in FIR no. 281/13, PS Pandav Nagar and on his making a disclosure statement regarding the present case on 03.07.2013 he was formally arrested by the PW7 in the present matter by way of the arrest memo Ex. PW5/A. The PW7 had also made an application for the Test Identification Parade (TIP) but the accused refused to participate in TIP.
11. PW5 Ct. Mehak Singh and PW8 Inspector Praveen have deposed that on 29.06.2013 the accused Mobin was arrested in FIR no. 281/13, PS - Pandav Nagar vide arrest memo Mark A. On 02.07.2013 he made a disclosure of his involvement in the present case. On 03.07.2013 he was arrested in the present matter by way of memo Ex. PW5/A. They both have identified the accused correctly in the court.
FIR No.:274/13 State Vs. Mobin Page 4/15
12. PW6 Ct. Suresh has deposed that on 03.07.2013 while the accused was in his custody in FIR no. 281/13 he was arrested by SI Sanjeev Kumar in the instant case vide memo Ex. PW5/A. He also identified the accused correctly.
13. PW9 Mr Khemraj Chamoli produced the original file of FIR no. 281/13, PS Pandav Nagar. He also produced the supplementary statement Ex. PW9/1, the arrest memo Ex. PW9/B and the personal search memo Ex. PW9/C.
14. The witnesses were cross-examined. The accused admitted, under Section 294 Cr.P.C., the record of the TIP Proceeding conducted by the Ld. MM, i.e. Ex AD-1.
15. The prosecution evidence was closed. The accused was examined u/s 313 Cr.PC. The incriminating evidence was put to him. He denied all the incriminating evidence. He stated that he was innocent. That he had refused for the TIP proceedings as he was shown to the complainant in the Police Station . That the complainant has falsely identified him at the instance of the police officials.
16. The accused did not lead any defence evidence. Therefore, the matter was fixed for final arguments.
17. The Ld. APP for the State has argued that the prosecution has proved its case beyond reasonable doubts. The testimonies of the witnesses have proved that FIR No.:274/13 State Vs. Mobin Page 5/15 the accused, after making preparation for causing death, hurt or restraint, had committed the theft. The complainant has correctly identified the accused in the Court. The accused has not led any evidence. Hence, the prosecution has proved all the ingredients of the offence punishable under Section 382 IPC and the guilt of the accused has been proved beyond reasonable doubt. Hence, it is prayed, that the accused be convicted.
18. Ld. Counsel for the accused has stated that the prosecution has failed to prove its case against the accused beyond reasonable doubt. That there are various contradictions in the testimonies of the witnesses of the prosecution. It is submitted that nothing was recovered from the possession of the accused. It is argued that no recovery of the motorcycle allegedly used in the offence is made nor the alleged associate of the accused has been apprehended. That the accused has not made any disclosure statement and his signatures were forcibly obtained on papers. That no other public witness has been joined by the IO and the complainant is an interested witness. It is submitted that a false mention of a weapon was made to bring the matter under Section 382, IPC. That the complainant has falsely identified the accused at the instance of the police officials. It is further argued that the accused had refused to participate in the TIP as the police officials had shown him to the complainant in the Police Station. That the identity of the accused has not been effectively established in FIR No.:274/13 State Vs. Mobin Page 6/15 view of the testimony of the PW 2. That all these facts and circumstances create reasonable doubts in the case of the prosecution. It is prayed that the benefit of doubt be given to the accused and he should be acquitted.
19. I have heard the rival submissions and have perused the material available on record.
20. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also a settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
21. In the present case, the accused has been charged for committing an offence punishable under section 382 IPC. Section 382 IPC provides punishment for committing theft, having made preparation for causing death, or of hurt, or of restraint etc. The Section reads as under:
"382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.--Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in FIR No.:274/13 State Vs. Mobin Page 7/15 order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
22. Offence under Section 382, IPC is an aggravated form of the offence of theft punishable under Section 379, IPC. Theft is defined under Section 378, IPC. The term 'dishonestly' has been defined under Section 24, IPC as doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. From a casual approach, the offence punishable under Section 382, IPC appears similar to the offence of robbery. However there is one difference between the two offences. In the offence punishable under Section 382, IPC, the thief prepares himself and is ready to cause death etc. In the case of robbery the preparation takes effect if resisted and some injury or restraint is actually caused. To prove an offence under Section 382, IPC, apart from the ingredients of theft, as defined under Section 378, IPC, it must be proved that the accused had, when committing theft, made preparation for causing death or hurt or restraint, or fear of death or of hurt or of restraint to any person. It must be proved that he made the said preparation either to commit the theft, or to make good his escape or to retain his spoil.
23. In the present case, The complainant has deposed as PW1. In her deposition she has distinctly stated that at the aforesaid date, time and place, the accused Mobin has committed the theft of her gold chain. She has categorically and FIR No.:274/13 State Vs. Mobin Page 8/15 unequivocally identified the accused as the pillion rider on the motorcycle which was used in commission of the offence. Tsherefore from the testimony of the complainant, the commission of the offence of theft punishable under section 379 IPC is established.
24. Section 349 IPC reads as follows:
349. Force.--A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described.
(First) -- By his own bodily power.
(Secondly) --By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.
(Thirdly) -- By inducing any animal to move, to change its motion, or to cease to move.
Section 356 IPC provides as follows:
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 imprisonment of either description for a term which may extend to two years, or with fine, or with both.FIR No.:274/13 State Vs. Mobin Page 9/15
25. The complainant has deposed that her gold chain has not simply been taken away but it was snatched from her neck. This specifically shows that force has been used in committing the theft of the gold chain. Therefore the commission of the offence punishable under section 356 IPC read with section 379 IPC has been Proved by the prosecution beyond all reasonable doubt.
26. In order to bring the case within the purview of section 382 IPC, the prosecution has relied upon the statement of the complainant that the accused had placed his hands in a manner which gave her an impression that he was carrying some weapon due to which she was afraid. Admittedly, no recovery of any weapon has been effected from the accused. In the opinion of this court, the perception of fear in the mind of the complainant merely due to the placement of the hands of the accused in a particular manner is not sufficient to bring the case under section 382 IPC. The said provision envisages active preparation made for causing death, hurt or restraint in order to the committing of the theft. The entire evidence led on behalf of the prosecution fails to bring on record any material which is sufficient to assume that any such preparation has been made by the accused. Therefore the commission of the offence punishable under section 382 IPC is not made out.
27. The complainant was cross-examined. However, nothing contradictory has come in her cross-examination to doubt her testimony. It has been argued by the FIR No.:274/13 State Vs. Mobin Page 10/15 defence that the complainant had identified the accused persons at the instance of the police officials However, no such suggestion was given to the PW1 during her cross examination. The complainant is a housewife. She is not shown to be related to the accused in any manner. There is nothing brought on record to show that the complainant had any motive to make a false complaint to get the FIR registered. The FIR was registered on 23.06.2013 while the accused was arrested on 03.07.2013. There is no reason to say that the complainant had made a false complaint 10 days prior to the arrest of the accused for implicating him falsely. Even if the PW2 has failed to identify the accused as the offender, this itself does not render his positive identification by the PW1 obsolete. Moreso, when the PW2 has not denied the accused to be the offender.
28. Ld. Counsel for the accused has taken the defence that no other public witness has been examined by the prosecution to corroborate the testimony of the complainant. Hence, reasonable doubt has been raised on his testimony.
29. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is a victim of the offence is well settled. The testimony of a victim stands on a higher footing. For appreciating the evidence of a victim, the Court FIR No.:274/13 State Vs. Mobin Page 11/15 has to see that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. She is the best witness to describe the manner in which the offence was committed by the accused. Being the victim of the crime, she would be most keen to ensure that the real culprit do not go scot free. The testimony of PW1 is cogent and convincing. Her inability to depose regarding the place where her complaint Ex.PW1/A was recorded does not affect the merit of the case of the prosecution. I do not find any contradiction in the testimony of PW1 and other material on record as far as the significant aspects of the essential igredients of the offence are concerned.
30. There might be some minor contradictions in the testimonies of the witnesses as argued by the Ld.LAC. However, they are not material in nature. Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, has observed as under :-
"19. While appreciating the evidence of a witness, the court has to assess whether the reading as a whole is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, FIR No.:274/13 State Vs. Mobin Page 12/15 the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that the principle " falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape".
31. In the present case also, there is no reason to doubt the testimony of the complainant who is also a victim of the crime.
FIR No.:274/13 State Vs. Mobin Page 13/15
32. It has been further argued by the Ld. LAC that the accused was shown to the witness by the police officials and that she had identified the accused at the instance of the police officials. Due to said reason he had also refused to participate in TIP proceedings. Hence, the accused may be given the benefit of doubt.
33. There is no material on record to substantiate these arguments. Even if the accused has been shown to the complainant at the Police Station , it can not be presumed that the complainant had falsely identified the accused in the Court at the instance of the police officials. There is nothing on record to show that the complainant and the accused were known to each other prior to the incident in question and that there was any enmity between them. The law is settled that testimony of an eyewitness/victim should be believed unless there is specific reason on record to disbelieve him or her. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence.
Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."FIR No.:274/13 State Vs. Mobin Page 14/15
34. In the present case also, the testimony of PW1 is cogent and convincing. There is no reason to doubt his testimony. The accused, on the other hand, has failed to prove his defence even on the preponderance of probabilities.
35.In these circumstances, this Court holds that it has been proved beyond reasonable doubt that the accused Mobin, intending to take dishonestly the gold chain out of the possession of the complainant without her consent had moved that chain in order to such taking. He therefore has committed the offence punishable under section 379 IPC. It has also been proved conclusively before the court that the accused had used criminal force to the complainant, in attempting to commit theft of the gold chain which the complainant was wearing. He therefore has committed the offence punishable under section 356 IPC as well.
36. In the light of the discussion made herein-above, This court holds the accused Mobin guilty of the offence punishable under section 379 IPC read with section 356 IPC. He however is acquitted of the offence punishable under section 382 IPC. Ordered accordingly.
Announced in open court (JITENDRA PRATAP SINGH)
on 19.10.2022 CMM/East/KKD Courts/Delhi
19.10.2022
FIR No.:274/13 State Vs. Mobin Page 15/15