Delhi District Court
State vs Salman S/O Sazid Hussain, on 28 March, 2018
IN THE COURT OF POONAM CHAUDHARY ADDITIONAL SESSIONS JUDGE02 (CENTRAL), TIS HAZARI COURTS, DELHI SC No.27833/2016 FIR No.114/2014 U/s 392/397/411 IPC & 25 Arms Act PS Chandni Mahal CNR No.DLCT010014452014 STATE Vs Salman S/o Sazid Hussain, R/o H. No.1726, Hauz Suiwalan, Chandni Mahal, Delhi. Date of institution : 12.03.2015 Judgment reserved on : 28.03.2018 Date of pronouncement : 28.03.2018 JUDGMENT
1. The case of prosecution in brief is that on 28.04.2014 at about 5 pm in front of Welcome Tailor Suiwalan, Delhi accused robbed complainant Mohd. Faizal of scooty make Activa bearing registration No.DL 3S CK 6761. It is further the case of prosecution is that in order to commit robbery accused used a knife and put the same on the neck of complainant. It is also the case of prosecution that on 28.04.2014 at about 7.40 pm near Pataudi House, Kala Mahal, Delhi accused was found in possession of aforesaid scooty which was robbed by him FIR No.114/2014 State Vs Salman 1 which accused had retained knowingly or having reason to believe the same to be stolen property. The accused was also found in possession of a button actuated knife which he had used for committing robbery, the possession of button actuated knife and its use is in contravention of notification No.F 13/203/78Home(G) dated 17.02.1979 issued by Delhi Government.
2. On the receipt of complaint, the case was registered and investigation was taken up. The police after the completion of investigation filed chargesheet against accused under section 392/397/411 IPC and 25 of Arms Act.
3. Charges were framed against the accused to which he pleaded not guilty.
4. The prosecution examined 7 witnesses to bring home the guilt of accused.
5. PW6 W/HC Manju stated that on 28.04.2014, she was working as Operator, PCR PHQ New Delhi when an information was received regarding robbery of a scooty, she recorded the same in the PCR form which was proved as Ex. PW6/A and certificate of the same under section 65B of Indian Evidence Act was proved as Ex. PW6/B. PW6 further stated FIR No.114/2014 State Vs Salman 2 that the information was transferred to command room for onward transmission.
6. PW7 IO SI Ashish stated that on 28.04.2014 he was posted at PS Chandni Mahal Model Town Delhi and was on emergency duty when DD No.53B Ex. PW7/A was assigned to him. He further stated that he along with Ct. Chander Bhan reached at the spot i.e Suiwalan where complainant Mohd. Faizal met them who informed them that accused Salman, whom he correctly identified, robbed him of his scooty at knife point and fled away towards Kalan Mahal. IO further stated that he along with police staff and complainant reached at Kalan Mahal Patodi House in search of accused and on the identification of complainant, accused Salman was apprehended with a purple colour Activa Scooty. IO further stated that he conducted the search of accused and a buttondar knife was recovered from his possession. PW7 proved the sketch of knife Ex. PW4/B and its seizure memo Ex. PW4/C. IO further testified that he took into possession Activa scooty vide memo Ex.PW4/D. IO also stated that he recorded the statement of complainant Ex. PW4/A and prepared the rukka Ex. PW7/B and sent PW5Ct. Chander Bhan to PS for FIR No.114/2014 State Vs Salman 3 registration of FIR. PW7 further stated that he interrogated accused and arrested him vide memo Ex. PW4/F and conducted his personal search vide memo Ex. PW4/G. PW7 further stated that he prepared inspection memo of accused Ex. PW4/H. IO further stated that he prepared the pointing out memo of spot Ex. PW4/E and the site plan Ex. PW7/C at the instance of complainant. PW7 identified Activa Scooty Ex. P1 and knife as Ex. P2.
7. PW1 HC Vijay proved the entry Ex. PW1/A in register No.19 relating to the deposit of scooty No.DL 3S CK 6761 in the malkhana on 28.04.2014.
8. PW2 ASI Kanwar Sain proved the FIR Ex. PW2/A and the certificate under section 65B of the Indian Evidence Act Ex. PW2/B.
9. PW3 Mohd. Suleman stated that he was registered owner of scooty No.DL 3S CK 6761. He further stated that on 28.04.2014 complainant took his scooty for buying milk and later on he came to know that the said scooty was robbed from his possession and was seized by the police. He correctly identified the scooty Ex. P1.
10. PW4 Mohd. Faizal, complainant stated that on the date of FIR No.114/2014 State Vs Salman 4 incident, he was going with his friend Mohd. Adil on scooty and when they reached Suiwalan, accused Salman correctly identified, met them and he threatened him with a knife and took the scooty from him and went away. Complainant further stated that he followed the accused and found that he was standing at Kala Mahal. Complainant further stated that some one informed the police and in the meantime 2 - 3 police officials reached. Complainant further deposed that police recorded his statement Ex. PW4/A.
11. As complainant had not testified in terms of statement recorded under section 161 Cr. P. C, he was crossexamined by Ld. Addl. PP with the leave of court. In his crossexamination by Ld. Addl. PP, he stated that he gave statement to the police but he denied that he stated before the police that accused put knife on his neck and also hit the ankle of his chest and accused forced him and his friend Mohd. Adil to get down from the scooty and then snatched the scooty from him. Complainant further denied that he stated before the police that accused took his scooty towards Kala Mahal while waving the knife in the air. Complainant also denied that he stated before the police that he had made a call on 100 number pursuant to which IO FIR No.114/2014 State Vs Salman 5 along with the other police staff reached the spot and they left in search of accused went towards Pataudi House or that he saw accused Salman coming from their opposite side on his scooty and on his identification, police apprehended him. Complainant also denied that he stated before the police that scooty was found in possession of accused and on taking the formal search of accused, one button actuated knife was recovered from his right side pocket of his jeans or that the knife was the same with which accused threatened him at the time of robbing him of the scooty, he was confronted with his statement Ex. PW4/A wherein it was so recorded. The complainant denied that the knife Ex. P2 was the same with which accused threatened him.
12. PW5 Ct. Chandra Bhan corroborated the version of IO. He correctly identified the accused, the scooty Ex. P1 and knife Ex. P2 and stated that the documents Ex. PW4/A, Ex. PW4/B, Ex. PW4/C, Ex. PW4/D, Ex. PW4/E, Ex. PW4/F, Ex. PW4/G bears his signature.
13. The statement of accused was thereafter recorded under section 313 of Code of Criminal Procedure (in short 'Cr. P. C'). Accused was confronted with all the incriminating material brought on record, the accused denied the same and stated that FIR No.114/2014 State Vs Salman 6 he was innocent. Accused on being asked whether he had anything else to say stated as under: "I am innocent and falsely implicated in the present case."
14. As regards the explanation offered by accused in his statement under section 313 Cr. P. C, it has to be seen whether the explanation can be said to have been established. It is well settled that the accused can establish his defence by preponderance of probability. The explanation offered by accused in his statement under section 313 Cr. P .C has to be considered on the touchstone of preponderance of probability and not on the touchstone of beyond reasonable doubt.
15. Accused did not lead evidence in his defence.
16. Sections 392/397/411 IPC and Section 25 of the Arms Act, 1959 under which accused has also charged are as under: "392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term 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.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time FIR No.114/2014 State Vs Salman 7 of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
411. Dishonestly receiving stolen property.-- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 25 of the Arms Act provides punishment for certain offences."
17. I have heard the Ld. Addl. PP and Ld. counsel for accused and perused the record.
18. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft.
2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
(ii) fear of instant death, hurt or wrongful restraint.
3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft.
FIR No.114/2014 State Vs Salman 8
19. Section 390 which defines "robbery" reads as follows:
a. "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 the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
b. 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.
Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint."
20. Section 397 IPC provides for punishment for robbery or dacoity with an attempt to cause death or grievous hurt.
21. It is for the prosecution to prove all the ingredients of the offences against the accused beyond reasonable doubt. The FIR No.114/2014 State Vs Salman 9 complainant did not support the prosecution case and exonerated the accused persons by not supporting the case of prosecution on the point of recovery of scooty and knife from accused. Moreover, no independent witness was examined to prove the incident, as alleged. Thus, no evidence is available on record against accused to connect him with the commission of offence except his disclosure statements.
22. It is to be noted that the testimony of a hostile witness can be accepted to the extent it is found to be dependable on a careful scrutiny thereof and need not be discarded in toto. In this regard, it has been held in Sat Paul Vs Delhi Administration 1976 I SC 727 as under: "It is a wrong assumption that the only purpose of cross examination of his own witness by a party is not contended on the witness being declared hostile or entire evidence being discarded", that the entire testimony of such witness could not be discarded and reliance on any part of statement of such a witness by both parties were permissible.
"The position is that even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of FIR No.114/2014 State Vs Salman 10 fact to consider in each case whether as a result of such crossexamination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony."
23. Thus, in a criminal prosecution when a witness is cross examined and contradicted with the leave of the court by the party calling him his entire evidence need not be discarded. It is for the court to consider whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or part of his testimony could be relied upon.
24. The complainant had turned hostile and did not support the case of prosecution on the point of arrest, recovery relating to accused.
25. An independent witness Mohd. Adil was not examined despite sufficient opportunities being afforded to the prosecution. Thus, in my view as prosecution failed to establish the involvement of accused in the commission of offence, the accused is entitled to benefit of doubt and acquitted of the offence under section 392/397/411 IPC. His bail bonds are cancelled and sureties discharged.
FIR No.114/2014 State Vs Salman 11
26. The file be consigned to record room after accused furnishes bail bond under section 437A Cr. P. C. Digitally signed by Announced in the open court POONAM POONAM CHAUDHRY on this 28th day of March 2018 CHAUDHRY Date: 2018.04.06 16:51:10 +0530 (Poonam Chaudhry) Additional Sessions Judge-02 Central District, THC, Delhi FIR No.114/2014 State Vs Salman 12