Delhi District Court
State vs . Dulare on 7 August, 2023
IN THE COURT OF SH. SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, NEW DELHI
DLSW020602962021
CNR No. DLSW020602962021
Case 58125/2021
FIR No. 747/2021
PS: Dwarka North
U/S: 356/379 IPC and 411 IPC
State Vs. Dulare
JUDGMENT
A. Sl. no. of the case : 58125/2021
B. Date of institution : 13.12.2021
C. Date of offence : 07.10.2021
D. Name of the complainant : Darshana Hudda,
R/o H. No. B 298, B Block, Bharat Vihar,
Kakrola, Dwarka North, Dwarka,
New Delhi
E. Name of the accused : Dulare
S/o Mohd. Afroz,
R/o H.No. E 43, Pkt. 2, J.J. Colony,
Sector 16, Dwarka, Dwarka North,
New Delhi.
FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 1 of 15
F. Offence complained of : 356/379 IPC and 411 IPC
G. Plea of accused : Pleaded not guilty.
H. Final order : Convicted under section 356/379 IPC
Acquitted under section 411 IPC.
I. Date of such order : 07.08.2023
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BRIEF STATEMENT OF REASONS FOR THE DECISION:-
1. The case of the prosecution is that on 07.10.2021 at about 11:30 AM when the complainant Ms. Darshana Hudda was going to Bharat Vihar Kakrola from Vikaspuri and had boarded an e-rickshaw when she reached Dwarka More, Dwarka New Delhi, the accused came on foot and snatched her phone make Redmi Note 7 Pro while the complainant Darshana was holding the mobile phone in her hand. Thereafter, the accused tried running away from the spot but the complainant made hue and cry whereupon the public persons caught hold of him, took the complainant's mobile from him and a call at 100 number was made by a public person. Thereafter, the police came at the spot and the accused and mobile phone of the complainant were handed over to the police. Thus, as per prosecution the accused used criminal force and snatched the mobile phone make Redmi note 7 pro belonging to complainant Ms. Darshana Hudda and thereby committed an offence punishable under section 356/379/411 Indian Penal Code, 1862 (hereinafter for brevity 'IPC'). Therefore, the present FIR bearing number 747/2021 dated 07.10.2021 under section 356/379/411 IPC was registered against the accused at P.S. Dwarka North, Delhi. Investigation was taken up by ASI Ram Kishan.
FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 2 of 15
2. After completion of investigation, charge sheet was filed against the accused under section 356/379/411 IPC on 13.12.2021, cognizance of offence was taken. Upon production, copy of charge sheet was supplied to the accused in compliance of Section 207 Criminal Procedure Code, 1973 (hereinafter for brevity 'CrPC').
PROCEEDINGS BEFORE COURT
3. After completion of scrutiny of documents, vide order dated 16.07.2022, charge for committing offence punishable u/s 356/379/411 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
POINT FOR DETERMINATION
4. Whether accused Dulare s/o Mohd. Afroz used criminal force to dishonestly remove the mobile phone make Redmi which belonged to the complainant from her possession?
5. Whether the accused Dulare received this stolen property i.e., mobile phone make Redmi Note 7 Pro "knowing or having reason to believe the some to be stolen property"?
6. Following documents were relied upon by prosecution during the trial:
i. FIR number 747/2021 PS Dwarka North dated 07.10.2021 Ex. P/A/1, ii. Certificate under Section 65B Indian Evidence Act Ex. P/A/2, iii. DD number 45A dated 07.10.2021 Ex. P/A/3, FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 3 of 15 iv. Statement of the complainant Ms. Darshana Hudda Ex. PW-1/A, v. Site plan Ex. PW-1/B, vi. Arrest memo and personal search memo of the accused Ex. PW-1/C & Ex. PW-2/B respectively, vii. Seizure memo of mobile phone Redmi Note 7 Pro Ex. PW-1/D, and viii. Disclosure statement of accused Ex. PW-1/E. DEPOSITION OF PROSECUTION WITNESSES:
7. In order to prove its case, the prosecution has examined 02 witnesses in total. The accused had given a statement u/s 294 CrPC admitting the factum of registration of FIR, certificate under Section 65B IEA and DD No.45A dated 07.10.2021, whereupon PW at Serial number 03 i.e., Duty Officer HC Rajesh was dropped from the list of witnesses being admitted.
8. PW-1 Ms. Darshana Hooda deposed that on 17.09.2022 at about 11:30 AM, she was going in an e-rickshaw from Vikaspuri and was going towards Bharat Vihar. She deposed that she took the e-rickshaw from Kakrola Mor. She further deposed that in the meanwhile, while she was sitting in the e- rickshaw, accused Dulare came from behind and snatched her mobile phone make Redmi Note 7 Pro from her hand and thereafter the accused ran away from the spot. She further deposed that she raised an alarm and public persons caught hold of him and someone from the public made a call at 100 number. She further deposed that thereafter the police reached the spot and recorded her statement which was exhibited as Ex. PW-1/A and thereafter FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 4 of 15 the site plan exhibited as Ex. PW1/B was prepared at her instance by the police. She further deposed that the accused was arrested in her presence vide arrest memo exhibited as Ex. PW1/C and the mobile phone was also recovered from him and seizure memo for the same was also prepared. She further deposed that the disclosure statement of the accused was also prepared by the IO in her presence. PW-1 correctly identified her case property and the accused in the court during her testimony.
In her examination by Ld. defence counsel PW-1 deposed that she had changed her e-rickshaw from Kakrola mor and other passengers were also sitting in the e-rickshaw at the time when the incident happened. She further deposed that she was holding her mobile phone in her hand when the incident happened and stated that she was sitting on the backside corner seat of the e-rickshaw, which was parked at Dwarka more and it was about to move before the incident took place. She further accepted as correct the suggestion that there were many other persons present at the spot when the incident happened. PW-1 denied the suggestion that her phone had fallen down from the e-rickshaw from her hand and the accused took the same and at that very moment she raised an alarm. She further deposed that public persons handed over phone to her from the accused. She further deposed that she did not know the names of any public persons and also stated that she did not know the name of the person who made a call at number 100. She further deposed that the police recorded her statement at the PS and further stated that the accused was taken by the police from the spot and thereafter she went to the PS. She further denied the suggestion that the accused did FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 5 of 15 not snatch the phone from her hand. She lastly denied the suggestion that she is not deposing falsely.
9. PW-2 ASI Ram Kishan deposed that on 07.10.2021 he was posted at PS Dwarka North as ASI and was on emergency duty when he received DD No. 45A regarding apprehension of a snatcher at about 11:30 AM. He further deposed that he went to the spot along-with Ct. Sandeep and there met the complainant Ms. Darshana and saw that the public persons had apprehended one accused person whose name was later revealed as Dulare. He further deposed that the complainant had told him that the accused Dulare had snatched her mobile phone and the same was given by her to the IO. PW-2 further deposed that he recorded the statement of the complainant and prepared the rukka. He further deposed that Ct. Sandeep was sent to the PS for registration of FIR and he reached the spot after some time and handed over to the IO the copy of FIR and the rukka. PW-2 further deposed that the mobile phone was seized by him and the site plan was prepared at the instance of the complainant. He further deposed regarding the arrest, personal search of the accused. The witness correctly identified the accused and the case property in the court. He lastly deposed that he prepared the charge-sheet and filed the same in the court.
In his cross-examination by Ld. defence counsel PW-2 deposed that he reached the spot in about 20 minutes after the DD number 45A was marked to him. He further deposed that the call was marked to him by the duty officer. He further deposed that when he reached the spot there were no public persons found and the accused was presented to him by the complainant. He further deposed that the complainant informed him about FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 6 of 15 the facts of the case and it was informed to him by the complainant that the case property was also recovered from the accused. He further deposed that he returned to the PS after about one hour and stated that he had not recorded the statement of any public person during the entire course of investigation. He denied the suggestion that he had not recorded the statement of any public person as the accused had been falsely implicated at the instance of the complainant and the recovery had been falsely planted upon him. He further denied the suggestion that no recovery was ever effected from the accused in this case. He further denied the suggestion that the accused was picked up from his home and falsely implicated in the instant case. PW-2 lastly denied the suggestion that he was deposing falsely.
10. Upon completion of prosecution evidence on oral statement of Ld. APP for the State, statement of accused under Section 313 CrPC was recorded on 19.10.2022. The accused denied the allegations, pleaded innocence and stated that the recovery had been falsely planted upon him and opted not to lead defence evidence. The court proceeded to hear the respective arguments of Ld. APP for State and Ld. counsel for accused.
11.I have heard the final arguments and meticulously perused the record.
ARGUMENTS
12. It was argued on behalf of defence that the prosecution has failed to make out any case against the accused and thus accused deserves to be acquitted. It is further submitted that the accused has been falsely implicated by police in the present case. It is further argued that it is stated by complainant that FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 7 of 15 public persons had gathered at the spot, however, the statement of public persons was not recorded. It is also submitted by the counsel for accused that complainant did not produce any documents to establish that mobile phone belonged to her. It is argued vehemently that prosecution has failed to discharge its burden to prove that the accused has committed the offence complained of.
13.On the other hand, Ld. APP for State argued that prosecution has established the guilt of accused beyond reasonable doubt through the evidence of the complainant and IO. It is further argued by prosecution that accused was apprehended at the spot and there is sufficient evidence against him to convict him for the offence punishable under Section 356/379 IPC. Ld. APP for State has further argued that ownership of the complainant over the case property is not required to be proved in light of Section 378 IPC. Finally, it was argued by Ld. APP for State that the testimonies of prosecution witnesses goes on to prove beyond reasonable doubt that the offence of snatching of mobile phone by using criminal force was committed by the accused.
FINDINGS AND REASONS FOR DECISION
14.I have considered arguments advanced by Ld. APP for State as well as Ld. Counsel for accused and have perused the entire material available on record carefully.
15.It is a settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 8 of 15 evidence. It is also well settled that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
16.It is beneficial herein to refer to the legal provisions involved. Section 356/379 IPC are as follows:
"Section 356 IPC: 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."
"Section 378 IPC: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."
17.From reading of Section 356 IPC, it is clear that offence under Section 356 IPC is complete when in order to commit theft of any property which is being carried by the complainant, assault or criminal force is used by the accused. Section 350 & 351 of IPC deals with definition of criminal force and assault. Criminal force is defined as used of force against a person FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 9 of 15 against his consent for the purpose of committing an offence or intending by use of force to cause injury.
Section 379 defines theft as dishonest moving of a movable property out of the possession of a person without his/ her consent.
18.The proceedings in the present case have emanated from the statement of complainant Ex.PW-1/A dated 07.10.2021. The complainant has stated that when she was coming from Vikaspuri to Bharat Vihar Kakrola, and had reached near Dwark Mor, Delhi, when the accused came on foot and snatched her phone while she was holding it in her hand. Thereafter, the accused tried to run away from the spot and the complainant raised hue and cry. Thereafter, complainant along-with public persons apprehended the accused. The complainant reiterated the above-said facts in her examination in chief and correctly identified the accused in the court.
19.PW-2/ IO deposed regarding the investigation of the case and deposed that when he reached the spot the complainant handed over to him the accused and her mobile phone which was recovered from the accused.
20.From the aforesaid testimonies, it has been established by the prosecution that the accused was apprehended on 07.10.2021 by complainant. The complainant correctly identified the accused in the court.
21.It has been argued by Ld. defence counsel that complainant had deposed that the area was crowded and despite the time & place of alleged apprehension being such that presence of independent witnesses could have been secured, no such efforts were made by the IO or the complainant. It is argued that in FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 10 of 15 view of this, story of prosecution must be viewed with suspicion. This court finds this argument to be without any merit as PW-2 had stated that when he reached the spot he did not find any public person.
22.Furthermore, it needs to be appreciated that it is not uncommon that independent members of public are reluctant to become witnesses in criminal proceedings. The Hon'ble Supreme Court of India in the case of State of UP Vs. Anil Singh, AIR 1988 SC 1998 has held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. It was observed by their Lordships that the public are generally reluctant to come forward to depose before the court and that it is therefore, not correct to reject the prosecution version for want of corroboration by independent witnesses. Similarly, in the case of Appa Bhai vs. State of Gujarat, AIR 1988 SC 696 it was observed that these days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
23.It is settled that the testimony of victim is accorded a special status in law as the victim would not want to let his/ her actual assailant go unpunished merely to falsely implicate the third party for the commission of the offence. In the present case, the testimony of the complainant/PW-1 has remained consistent with her statement given to the police. Further, the complainant has given complete details of the incident which took place on 07.10.2021 whereby the accused snatched her mobile phone from her hand. Her testimony has remained consistent and is worthy of credit throughout examination and cross examination. Though, it is argued that the witness in FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 11 of 15 her cross examination had stated that her mobile phone was handed over to the IO by her and hence no recovery can actually be attributed upon the accused. The complainant is the star witness to the present case who has clearly and completely deposed in detail regarding the facts of the alleged incident.
24.It has been emphatically argued by Ld. counsel for accused that no public person were joined in the investigation and apart from complainant, all witnesses are police officials.
25.At this juncture, it is relevant to refer to the observation of Hon'ble Supreme Court of India in Baldev Singh Vs. State of Haryana [(2015) 17 SCC 554], which is reproduced below:
"There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witness cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of the police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.
[26] It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in the leading case of Aher Raja Khima vs State of Saurashtra, AIR 1956 SC 217, Venkatarama FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 12 of 15 Ayyar, J. stated: (AIR p.230, para 40) 40......The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". (emphasis supplied) [26] In Tahir vs State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: (SCC p.341, para6) `6.....Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
26. In view of the aforesaid observation, it is not difficult to arrive at the conclusion that testimony of the police witnesses are worthy of credit and cannot be completely disregarded in the absence of independent witnesses. In the instant case, it is noted that the complainant had stated that the accused had committed the act while he was on foot and the complainant was sitting in the e-rickshaw and was apprehended by the public. The said fact is corroborated by the DD number 45A and it is also mentioned in the said admitted DD that the accused was beaten by the public, the said fact is also corroborated by the M.E of accused conducted after arrest which noted abrasion and bruise over cheek and neck and abrasion over eye-brow.
27.Upon careful perusal of the testimonies rendered in the present case, this court is of the opinion that the testimony of complainant is cogent and FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 13 of 15 convincing. There is no reason to disbelieve or doubt the version given by the complainant.
28.Ld. counsel for the accused argued that the accused was lifted from his house and thereafter the present case has been registered. However, neither in his statement recorded u/s 313 CrPC nor in the form of examining any witness, the accused had produced before the court any reason for which the complainant or the police officials would be acting with vengeance against him. It was imperative for the accused to bring before the court some probable & reliable fact to create suspicion in the story of the prosecution. In the instant case, apart from making a bald assertion of false implication, the accused has not furnished any explanation for his alleged false implication.
29.In light of the aforesaid discussion, it can be culled out that the testimonies of the witnesses specially that of complainant had remained unimpeached on record and thus proved.
30.In the present case, the unblemished testimony of complainant/PW-1 has established that the accused had snatched her mobile phone. The said testimony/version of the complainant has been proved on record. Further as the accused had taken the mobile phone out of possession of complainant against her will and it is apparent that intention of accused was dishonest, thus, offence u/s 379 IPC also stands completed and the accused is liable to be convicted for offence under section 356/379 IPC.
31.Furthermore, as the offence under Section 356/379 IPC stands proved against the accused for the reasons mentioned hereinabove, Section 411 IPC FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 14 of 15 cannot be stated to have been committed by him. It is so because he cannot be said to be the thief and receiver of stolen property at the same time. [reliance placed upon Sunil Mashi @ Silly vs State of NCT of Delhi pronounced by Hon'ble HC of Delhi (2014) and Gopi Jaiswal vs State of U.P pronounced by Hon'ble Allahabad High Court (2011)] In light of the same, accused Dulare is acquitted for offence under Section 411 IPC.
CONCLUSION:
32.Considering the totality of the circumstance, the court is of the view that there does not exist any reason to disbelieve the case of the prosecution. The prosecution has successfully established that on 07.10.2021, accused Dulare s/o Md. Afroz had snatched the mobile of the complainant by use of criminal force. Consequently, accused is convicted for the offences punishable under Section 356/379 IPC and he is acquitted for the offence under Section 411 IPC. Digitally signed by SANKALP SANKALP KAPOOR Announced in the open Court KAPOOR Date: 2023.08.07 today i.e. on 07.08.2023 17:03:12 +0530 (Sankalp Kapoor) Metropolitan Magistrate-06 South West/Dwarka Court/New Delhi FIR No. 747/2021 PS Dwarka North State v. Dulare Page no. 15 of 15