Delhi District Court
State vs . Nazbul Hasan @ Jegum, on 11 December, 2014
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI.
FIR No. : 59/2013
PS : Preet Vihar
Offence complained of : 379/411 IPC & 53/116/103 D.P. Act
Date of commission of offence : 07.02.2013
Unique Case ID No. : 02402R0121242013
STATE Vs. Nazbul Hasan @ Jegum,
S/o Late Sh. Sanshul Hasan,
R/o Gali No.7, Bhagirathi Vihar,
Old Mustafabad, Delhi ............ Accused
Sh. Deepak Sahu,
S/o Sh. Hira Lal Sahu,
R/o H. No. 68, Pocket7, Sec No.24,
Rohini, Delhi ............. Complainant
Date of Institution : 18.04.2013
Plea of accused : Pleaded not guilty.
Date of pronouncement : 11.12.2014
Final Order : Acquitted u/s 379/411 IPC
Convicted u/s 103 DP Act &
53/116 DP Act
BRIFE STATEMENT OF THE REASONS FOR DECISION
ALLEGATIONS
1.The story of the prosecution is that on 07.02.2013 at about 1:40 PM at Bus Stand Nirman Vihar, Near V3S Mall, Delhi falling within the jurisdiction of Police Station Preet Vihar, accused had stolen one mobile phone make Kenxinda IMEI FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 1 / 14 No.867293014180288 of the complainant from his pocket and the same was recovered from his possession at the spot. On the same day accused was also found in possession of ten different mobile phones which he had kept at his house i.e. Gali No.7. Bhagirath Vihar. Moreover, it was found that in violation of externment order passed against the accused by Addl. DCP on 18.09.2012 (as per which the accused was directed to remove himself beyond the limits of NCT of Delhi for a period of two years w.e.f. 25.09.2012) he was present in Delhi at Bus stand Nirman Vihar, Near V3S Mall, Delhi i.e. where he was arrested, and thereby he committed an offence punishable u/s 379/411 IPC and 53/116 & 103 of D.P. Act.
FIR
2. On the basis of the said allegations and on the complaint of the complainant Deepak Sahu, an FIR bearing number 59/2013 under section 379/411 IPC and 53/116/103 D.P. Act was lodged at Police Station Preet Vihar on 07.02.2013.
CHARGE
3. After investigation, chargesheet under section 173 Cr. P.C was filed on 18.04.2013.
The accused was summoned to face trial and produced from JC on 13.01.2014, he was supplied the copy of charge sheet as per section 207 Cr. P.C. On the basis of the chargesheet, a charge for the offence punishable under section 379/411 IPC and 53/116/103 D.P. Act was framed against accused Nazbul Hasan @ Jaigam and read over to him, to which the accused pleaded not guilty and claimed trial on 21.01.2014.
LEGAL REQUIREMENT & EVIDENCE
4. The allegations against the accused person are under section 379/411 of the IPC and in order to prove the allegations u/s 379 IPC, the prosecution need to prove the following facts: FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 2 / 14
(i)That the accused had dishonestly taken the property/mobile phone.
(ii)That the property was movable.
(ii)That the property was taken out of the possession of another person/complainant.
(iv)That it was taken without the consent of that person/ complainant.
(v)That there must be some moving of the property in order to accomplish the taking of it.
In order to prove the allegations of offence punishable under section 411 IPC, the prosecution need to prove the following essential ingredients :
(i)That the accused has dishonestly received or retained any stolen property (as defined u/s 410 IPC).
(ii) That the such property has been received or retained by the accused knowing or having reason to believe the same to be stolen property.
In order to prove the allegations of offence punishable under section 103 DP Act, the prosecution need to prove the following essential ingredients :
(i)That accused was found in possession of some property of which there is reason to believe that it is stolen property;
(ii)The accused fails to account such possession to the satisfaction of the Magistrate.
In order to prove the allegations of offence punishable under section 53/116 of Delhi Police Act, the prosecution need to prove the following essential ingredients :
(i)That an externment order was passed against the FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 3 / 14 accused under Delhi Police Act directing him to remove himself from Delhi for certain period as specified in the order.
(ii) That during the said period the accused is found to be present in Delhi in violation of the terms and conditions of the externment order
5. In order to prove the afore said allegations, the prosecution has cited 7 witnesses, out of which PW1 HC Munesh, PW2 Ct. Rakesh, PW3 ASI Ranbir Singh, PW4 Ct. Rajesh Kumar and PW5 HC Santosh Kumari were examined. Their testimonies are as follows: PW1 HC Munesh and PW3 ASI Ranbir Singh deposed that on 07.02.2013, upon receiving of DD No.16A Ex. PW 3/A they reached at the spot where they met with PW2 Ct. Rakesh and complainant Deepak Sahu, who produced accused with stolen mobile phone to PW3/IO. PW3 recorded the statement of complainant Ex. PW 3/B and prepared rukka and handed over the same to PW1 for registration of FIR. PW3 prepared site plan at the instance of complainant Ex. PW 3/C. PW1 came back at the spot after registration of FIR and handed over the copy of FIR and original rukka to IO. PW3/IO seized the stolen mobile phone Ex. PW 1/A. Thereafter, accused was arrested and his personal search was conducted vide memos Ex. PW 1/B and PW 1/C respectively. It is further deposed that disclosure statement of accused was recorded vide memo Ex. PW 1/D. PW1 and PW3 stated that other ten mobile phones were recovered from the house of accused i.e. Gali No. 7, Bhagirathi Vihar and were seized vide memo Ex. PW 1/E. PW3 recorded statement of PW1 and PW2 and thereafter produced the accused before the court. PW3 prepared charge sheet and kalandara u/s 153/116/103 DP Act Ex. PW 3/D and filed it before the court for FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 4 / 14 trial.
PW2 Ct. Rakesh deposed that on 07.02.2013 at about 01:45 PM, he heard alarm of chorchor and saw one person coming from behind and running after another person. When another person came near to him, he apprehended him and the person who was raising alarm of chorchor, told him that the apprehended person was the person who snatched his mobile phone. The snatcher disclosed his name as Nazbul Hassan @ Jaigam. PW2 gave information at PS upon which PW3 along with PW1 came at the spot and recorded statement of complainant. PW3 prepared rukka and handed it over to PW1, who got the FIR registered. PW1 handed over the copy of FIR and original rukka to IO/PW3. In the meantime, IO prepared site plan at the instance of complainant. At the instruction of IO/PW3, PW2 went to North East District, DCP Office, Seelampur and obtained the externment order of the accused and handed over the same to IO/PW3. Thereafter, they went to rented premises of accused from where 10 mobile phones were recovered at the instance of accused.
PW 4 Ct. Rajesh Kumar from Externment Cell was summoned and he produced original externment order dated 18.09.2012 bearing No. 477592/Ext. Cell/NE Distt. which was passed against accused Najbul Hassan @ Jaigam and he proved copy of the said order as Ex. PW4/A. PW8 HC Santosh Kumari deposed that on 07.02.2013, she was posted as a DO in PS Preet Vihar and upon receiving a rukka at about 2:55 PM from HC Munesh she registered FIR of the present case Ex. PW 5/A and made endorsement upon rukka Ex. PW 5/B. PW5 handed over the copy of FIR and original rukka to HC Munesh/PW1.
6. On 17.11.2014 statement of the accused was recorded u/s 313 Cr. P.C. wherein FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 5 / 14 he denied the allegations of prosecution and claimed innocence. Accused stated that he never went to V3S Mall and that at the time of alleged incident his wife was admitted in Lok Nayak Hospital and he used to go to hospital from home. He also submitted that he was lifted from his house at Gali No.7, Bhagirathi Vihar, Old Mustafabad, Bhajanpura, Delhi by the police on 0607.02.2013 and was falsely implicated in this case. As regards externment order he stated that his counsel had told him about the said order in 2012 and that he had started living in Ghaziabad, but after his wife was admitted in hospital, he took a room on rent at Bhajanpura for his convenience. Accused did not lead evidence in his defence.
7. I have heard the Ld. APP for the state and Ld. Defence counsel and have also carefully perused the entire record and the relevant provisions of law.
JUDICIAL RESOLUTION
8. Offence under section 379/411 IPC:
9. The main witness qua offence under section 379/411 IPC in the present case is complainant Deepak Sahu and he was summoned on several occasions since framing of charge but he was not traceable. Summons were also issued to the said witness through IO as well as through DCP concerned which were received back unserved with the report that the whereabouts of the witness are not traceable. The court came to the conclusion that the said witness is not traceable and vide order dated 18.07.2014, the said witness was dropped from the list of witnesses.
10.The remaining witnesses who have been examined by the prosecution are all formal/police witnesses. None of the remaining witnesses is a witness to the commission of offence of theft and no other witness is competent enough to prove the guilt of the accused, qua offence of theft, in absence of the testimony of FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 6 / 14 complainant Deepak Sahu.
11. In judgment titled Trimbak v. State of M.P., (SC) 1954 A.I.R. (SC) 39 : 1954 Cri.L.J. 335 Hon'ble SUPREME COURT OF INDIA while referring to section 411 of IPC, mentioned about the requirements of Section 411 IPC and the same are as under :
5. We are satisfied that this was not the correct way of approaching the decision of a case under Section 411, I.P.C. It is the duty of the prosecution in order to bring home the guilt of a person under Section 411, I.P.C. to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. There is no reliable evidence to prove either of these facts.
6. When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was is possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles. (emphasis supplied)
12.The crux of the offence under section 379 and section 411 IPC is that the property has been stolen from the lawful possession. Hence, unless and until the owner of the property (complainant Deepak Sahu in the present case) appears before the court and categorically affirms the breach of his possessory right i.e. his movable property (mobile phone) has been dishonestly taken form his possession, section 411 IPC cannot be made applicable. Moreover, the identity of the case property being a stolen one needs to be fixed. The incriminating evidence marshaled against the accused is that he had got recovered one mobile phone which was a stolen property belonging to the complainant. The primary fact that article in question was a stolen property could not be established by the prosecution in the absence of the testimony of the complainant Deepak Sahu.
FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 7 / 14
13.The remaining official witnesses could have only deposed with regard to the role played by them at different stages of the investigation, conducted subsequently and as such they could not have provided any strength to the prosecution case once the material witness that is the complainant failed to appear before the court. Hence, in absence of the testimony of the complainant, the fact that the mobile phone, which was recovered from the possession of accused Nazbul Hassan @ Jegum, was a stolen property as defined under section 410 IPC can never be proved.
14.Accordingly, in the opinion of the court, in absence of the testimony of the complainant, the prosecution has failed to prove the factum of theft and consequently the fact that the recovered mobile phone was a stolen property could also not be proved.
15.Thus accused is entitle to be acquitted under section 379/411 IPC. Offence under section 103 Delhi Police Act:
16.
17. As per the testimony of prosecution witnesses, 10 mobile phones were recovered at the instance of the accused from his house in Gali No. 7, Bhagirathi Vihar, Delhi, and the same were seized vide seizure memo Ex.PW1/E.
18. It is argued by Ld. defence counsel vehemently that all the witnesses of recovery and arrest, examined by the prosecution are police personnel and in absence of any public witness, their testimony alone, should not be held sufficient for convicting the accused. He has also submitted that there are material contradictions in the testimonies of police witnesses and their testimony is thus not trustworthy.
19.In order to make out an offence u/s 103 DP Act, the prosecution is first of all required to prove recovery of the mobile phones at the instance of accused.
20.The recovery of mobile phones from the house of the accused (at Gali No.7, FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 8 / 14 Bhagirathi Vihar), is made in presence of three police witnesses namely PW1 HC Ramesh, PW2 Ct. Rakesh and PW3 ASI Ranbir Singh and Complainant Deepak Sahu. Deepak Sahu could not be examined as he could not be traced. However, all the three police witnesses have deposed regarding recovery of 10 mobile phones at the instance of accused from his house in Gali No.7, Bhagirathi Vihar which were seized vide seizure memo Ex. PW 1/E. All the three witnesses also correctly identified the accused as the same person at whose instance 10 mobile phones were recovered. PW1 and PW3 have been cross examined at length by Ld. defence counsel.
21.There is no cross examination of PW1 as regards the recovery of 10 mobile phones at the instance of accused from his house in Gali No.7, Bhagirathi Vihar. There is no suggestion to the witness that the said recovery is planted and that no recovery was made from accused. There is also no suggestion to the witness regarding wrong identification of case property by the witnesses as Ex. P2.
22.Similarly, no suggestion regarding planted recovery has been put to PW3. The cross examination of the said witnesses regarding recovery of 10 mobile phones at the instance of accused is as under: "It is correct that Gali No.7, Bhagirathi is a residential area and many public persons reside there. It is correct that I had not made any public persons as witness in the recovery. The brother of accused was present in the house of accused but I did not note down his name."
23. PW2 has not been cross examined though two opportunities were given to the accused on 04.03.2014 and 11.11.2014 for his cross examination. Thus, his testimony remains unchallanged.
24.The seizure memo Ex. PW 1/E bears the signature of aforesaid three police witnesses and public witness Deepak (not traceable) and also that of accused, but there is no cross examination of any PW, to the effect that the signature of FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 9 / 14 accused on the seizure memo is forged or that signature of accused were forcibly obtained on the said document or on blank papers by the police. The accused has also not stated in his statement u/s 313 Cr. P.C. that his signatures on the documents are forged or forcibly obtained.
25.There is no contradiction in the testimonies of witnesses as regards recovery of 10 mobile phones from the house of accused in Gali No.7, Bhagirathi Vihar, Delhi.
26.It is argued by Ld. Defence counsel vehemently that all the witnesses of recovery and arrest examined by the prosecution are police personnel and in absence of any public witness, their testimony alone, should not be held sufficient for convicting the accused.
27.Answering this question Hon'ble Supreme Court has observed in Karamjit Singh Vs. State (Delhi Admn.) AIR 2003 SC 1311 as under (para 8):
".........In my opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should not be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down."
28. It has been further held in Aher Raja Khima Vs. State of Saurashtra (SC) 1956 AIR (SC) 217 in para 40 as under: "Pausing here, it will be seen that in discussing the question of the recovery of the bloodstained axe, as indeed throughout the judgment, the learned Judge has taken up an attitude of distrust towards the police for which it is difficult to find any justification in the evidence an attitude which I regret to say, is becoming a growing feature of judgments of subordinate Magistrates.
When at the trial, it appears to the Court that a police officer has, in the discharge of his duty, abused his position and acted oppressively, it is no doubt its clear duty to express its stern disapproval of his conduct. But it is equally its duty not to assume such conduct on the part of the officer gratuitously and as a matter of course, when there is, as in the case, no reasonable basis for it in the evidence of in the FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 10 / 14 circumstances.
The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistrate nor good to the public. It can only run down the prestige of the police administration."
29. A similar view has been taken by Hon'ble High Court in judgment titled as Ajmer Singh Vs. State of Haryana 2010 Cri.L.J. 1899 and also by our own Hon'ble High Court in judgment titled as Shashi Shekhar @ Neeraj @ Raju Vs. State 2007 Cri.LJ. 4193.
30.More recently i.e. in 2011 Hon'ble Delhi High Court in judgment titled "Jhodha Sahney Vs. State of NCT of Delhi 2011 (1) Crimes 382", it has been observed as under: "7. The next ground taken by the Counsel for the appellant is that no public witness was joined at the time of recovery. The accused had started moving quickly towards the village on the seeing police party and police party therefore stopped the accused/appellant and checked his gunny bag. On checking it was found that gunny bag held by the accused contained charas. Merely because the police party did not associate public persons in this "chance recovery" cannot be a ground to disbelieve the case of prosecution. Moreover, there is normal tendency of public persons not to associate themselves with police investigation as the investigation and the trials in this country are the source of great harassment to the witnesses who are often not taken care of by the Courts or by the police. The witnesses are normally scared to join any investigation or give testimony even of what they have witnessed in broad daylight because of the repeated summoning in the Courts and sending them unexamined in a routine and casual manner by the Courts."
31. Thus, the said defence taken by the accused is without merits and more so, as in the present case the complainant was not only a witness to the arrest of the accused, but also to the recovery of the 10 mobile phones from the house of the accused. The complainant could not be traced after wards for evidence, but the investigating agency had joined one public witness (complainant), in the investigation and as such the argument that no public witness was joined is also factually incorrect.
FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 11 / 14
32.The defence taken by accused in his statement u/s 313 Cr. P.C. is that he has been lifted from his house at Gali No.7, Bhagirathi Vihar, Old Mustafabad, Bhajapura, Delhi, but there is no suggestions to this effect in the cross examination of any prosecution witness. Rather, by taking the said defence the accused has admitted that he was residing at his house in Gali No.7, Bhagirathi Vihar, Old Mustafabad, Bhajapura, Delhi, which, corroborates the story of prosecution that the house of accused is in Gali No.7, Bhagirathi Vihar, Old Mustafabad, Bhajapura, Delhi and it gives credence to the allegation that 10 mobile phones were recovered at his instance from his house.
33.The factum of recovery of 10 mobile phones from the possession of accused, at his instance vide seizure memo Ex. PW 1/E, stands proved beyond reasonable doubt.
34.The accused has failed to account for the possession of mobile phones in such large quantity (10 mobile phones) to the satisfaction of the court and he is accordingly convicted for offence u/s 103 DP Act.
Offence under section 53/116 Delhi Police Act:
35.
36. As regards the said offence it is argued by Ld. defence counsel vehemently that all the witnesses of recovery and arrest, examined by the prosecution are police personnel and in absence of any public witness, their testimony alone, should not be held sufficient for convicting the accused. He has also argued that the accused was not aware of externment order as it was passed exparte and the order never reached the accused.
37.The argument regarding inclusion of public witnesses during investigation has already been taken up and discussed, while dealing with offence under section 103 of DP Act.
38.As regards the argument that the accused was not aware of externment order as FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 12 / 14 it was passed exparte and the order never reached the accused, it is found, that the accused has himself admitted in his statement under section 313 Cr.P.C that he was told about the said order by his counsel in 2012 and he had also started living at Ghaziabad.
Thus, the accused has himself admitted that he was aware of the externment order and that is why he had shifted his residence outside Delhi, to Ghaziabad, Uttar Pradesh.
39. The fact that the accused was arrested from Delhi stands proved from the testimonies of PW1, 2 and 3 and the evidence in this regard has been discussed at length while dealing with offence under section 103 DP Act.
40. However, the accused in his statement under section 313 CrP.C has also admitted that he was arrested at Delhi. The relevant portion of the statement of the accused under section 313 cr.P.C is as under: "Either on 6/7.02.2013 I was lifted from my house at Gali No.7, Bhagirathi Vihar, Old Mustafabad, Bhajanpura, Delhi by the police and I was taken to PS Preet Vihar"
"I was never told about the said externment order by the police, however, my counsel had told me about the same in the year 2012 that such order had been passed against you. Thereafter, I started living in Ghaziabad (UP) but after my wife was admitted in hospital, for my convenience, I had taken a room on rent at Bhajanpura."
41.Thus, the accused has himself admitted that he was present in Delhi despite having knowledge of the externment order and that he was arrested in Delhi.
42.Thus, the prosecution has proved the externment order, the fact that the accused was aware of the externment order and that he was present in Delhi in violation of the externment order and that he was arrested in Delhi.
43.Accordingly, ingredients of offence under section 53/116 Delhi Police Act stand proved beyond reasonable doubt. Accused is accordingly convicted for the offence under section 53/116 of Delhi Police Act.
FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 13 / 14 Conclusion:
44. In view of above discussion, it is clear that the prosecution has successfully proved its case against the accused qua offences under section 103 Delhi Police Act and 53/116 Delhi Police Act. Accordingly, accused Najbul Hassan @ Jegum is convicted for the offence punishable u/s 103 and 53/116 of D.P. Act. However, in absence of the testimony of complainant, accused Najbul Hassan @ Jegum is acquitted of the offences under section 379/411 IPC.
45. Be put up for submissions on point of sentence on 17.12.2014 at 2:00 PM. ANNOUNCED ON 11.12.2014 SAURABH PARTAP SINGH LALER) ACMM(East)/KKD/11.12.2014 Certified that this judgment contains 14 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) ACMM(East)/KKD/11.12.2014 FIR No.59/2013 State Vs. Nazbul Hasan @ Jagum Page No. 14 / 14