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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  No(s). 146 OF 2019 (Arising out of SLP (CRL.) No.10418 of 2018)

SURAJ PAL                                    Appellant(s)

                               VERSUS

THE STATE OF HARYANA                        Respondent(s)

O R D E R

BANUMATHI, J.:

(1) Leave granted.

(2) The appellant has been convicted under Section 379-A and

sentenced  to  undergo  rigorous  imprisonment  for  five  years.

Though by Order dated 22nd November, 2018, we have observed that

there is no ground warranting interference with the verdict of

conviction  of  the  appellant  under  Section  379-A  I.P.C.  and

notice was issued only limited to the quantum of sentence, upon

hearing further submissions today made at the Bar by Mr. Liaqat

Ali,  learned  counsel  appearing  for  the  appellant,  and  Mr.

Devender  Kumar  Saini,  learned  Additional  Advocate  General,

appearing for the respondent-State of Haryana, we are of the

considered view that the matter needs to be examined on its

merits including on the verdict of conviction also.

(3) The case in hand is of “mobile snatching”.  One Vikas

Sharma (PW-1) stated that on 15th March, 2016 when he was going

to his house after the office work at 7 p.m., two persons came

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on the motor-cycle and snatched away his mobile phone of Nexus

having SIR of Airtel No.9871395297.  The de facto complainant,

Vikas Sharma (PW-1), lodged the complaint of the same, based

upon which FIR NO.136 of 2016  was registered at Police Station

Manesar, Gurugram, Haryana.

(4) The appellant and the co-accused, Javed, were arrested in

Rajasthan;  subsequently  on  20th September,  2016,  taken  into

custody  by  the  Assistant  Sub-Inspector  (PW-3)  on  production

warrant in connection with the present case in FIR No.136 of

2016.

(5) The Disclosure statement of the co-accused, Javed, led to

the recovery of the mobile phone of Vikash Sharma (PW-1). Based

upon the evidence of Vikash Sharma (PW-1) and the evidence

regarding seizure of mobile phone from the co-accused, Javed,

the Trial Court convicted the appellant Section 379-A I.P.C.

and sentenced him to undergo rigorous imprisonment for five

years which is the statutory minimum prescribed under Section

379-A I.P.C. (Haryana State Amendment).

(6) We have heard learned counsel for the parties and also

perused the impugned judgment and other materials on record.

(7) The occurrence was of 15th March, 2016 late evening at 7

p.m.   Though  the  custody  of  the  accused  was  secured  in

connection  with  this  case  on  20th September,  2016,  no  Test

Identification  Parade  (TIP)  was  held  to  identify  the  said

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accused and for the first time, Vikas Sharma (PW-1) identified

the appellant-accused in the court.

(8) When the mobile phone was allegedly snatched from Vikas

Sharma (PW-1), he would have seen the accused only for few

seconds.   It  is  doubtful  whether  he  would  have  been  in  a

position to identify the appellant-accused.  Having regard to

the  passage  of  time  between  the  occurrence  and  the

identification of the accused-appellant for the first time in

the court by Vikas Sharma (PW-1) becomes highly doubtful.  This

is more so, when the said mobile phone was recovered only at

the  behest  of  the  disclosure  statement  of  the  co-accused,

Javed.  The benefit of doubt has to be given to the accused.

(9) In  our  considered  view,  the  prosecution  has  not

established the guilt of the appellant beyond reasonable doubt.

Accordingly, the appeal is allowed and the impugned order is

set aside.  The appellant is acquitted of all the charges under

Section 379-A I.P.C.  and is ordered to be set at liberty

forthwith unless his presence is required in connection with

any other case.  

..........................J.                 (R. BANUMATHI)

..........................J.         (R. SUBHASH REDDY)

NEW DELHI, JANUARY 25, 2019.