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Delhi District Court

State vs Sandeep@Sanjit on 1 November, 2023

        IN THE COURT OF SH. PANKAJ ARORA:
     ADDITIONAL SESSIONS JUDGE-04: NORTH-EAST:
               KARKARDOOMA:DELHI

SESSIONS CASE NO. 80/2017
CNR No. DLNE01-006211-2016

FIR No. 712/2016
P.S. Bhajanpura
U/s : 392/397/411/34 of IPC

STATE
                                   Versus

(1) SANDEEP @ SANJIT
s/o Sh. Lakhi Kant Yadav
r/o House of Genda Ram,                     (declared Proclaimed
Gali no. 10, D-Block,                       Offender vide order dt.
Bhajanpura, Delhi-110053                    02-09-2019)

(2) RAFEEQ
s/o Sh. Mansoor Khan
r/o H. No. 2078, Gali no. 21,
Rajiv Gandhi Nagar,
New Mustafabad, Delhi-110094


Date of Institution :      31-03-2017
Date of Argument :         19-10-2023
Date of Judgment :         01-11-2023

JUDGMENT

1. Brief facts of this case are that on 08.11.2016 at about 12:12 am, an information was received at PS Bhajanpura that "at D-Block, Gali No. 16, 5th Pusta, Rajiv Colony, brother of caller had gone for shopping, whose money and articles were snatched on the point of knife". The information was reduced into writing vide DD No. 3B (Ex.PW1/E). Thereafter, investigating officer FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 1 of 19 (hereinafter referred to as IO) HC Jai Singh reached at the spot where the complainant could not be found. Thereafter, complainant Shamshad himself came at PS and got his statement recorded wherein he had stated that on 06.11.2016, he along with his friend Danish was going towards Gamdi Road, in the factory of Danish, through Bhajanpura drain. At about 5:30 pm, when they reached in front of H. No. D-37, Gali No. 3, Gamdi Extension, Bhajanpura, two unknown boys were already standing at the pavement of the drain. One boy amongst them had signaled them to stop and when they stopped, the second boy had put knife on his neck and the first boy had forcibly removed his mobile phone Make Lava IMEI No. 911450954160151, 911450956660158 and one leather purse containing one Aadhar Card and cash of Rs. 3,000/- from his pocket. Thereafter, they fled from the spot. He stated that he can identify the boys if produced before him. On the basis of statement of Shamshad, present FIR came to be registered for the offence punishable u/s 392/34 IPC. During investigation, on 09.11.2016, the complainant Shamshad had himself apprehended and produced accused Sandeep @ Sanjit before the IO/SI Ashish Kumar. Thereafter, accused Sandeep @ Sanjit was interrogated and arrested. He confessed about commission of alleged offence. He stated that one JCL 'R' had put a knife on the neck of complainant and scared him, and the robbed mobile phone make Lava was sold by him to one boy, namely, Anmol. The disclosure statement of accused was recorded and he was produced before the concerned court. His PC remand was obtained. During PC remand, accused got recovered robbed leather purse and Aadhar Card, and got arrested the JCL 'R'. JCL 'R' was produced before FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 2 of 19 the JJB Board and his TIP was got conducted wherein JCL 'R' had refused to participate. Efforts were made to trace co-accused Anmol and robbed mobile phone, but the same could not be found. CDR was obtained wherefrom it was found that robbed mobile phone Make Lava was being operated on some sim No. 8285345433, belonging to one Rafeeq s/o Mansoor Khan, who was directed to produce the mobile phone at PS. Thereafter, accused Rafeeq had produced the mobile phone at PS and he was arrested, produced before the concerned court and sent to judicial custody.

COMMITTAL

2. After completion of necessary formalities, charge-sheet was filed in the Court of Ld. Ilaqa MM. After taking cognizance and compliance of section 207 of Cr.P.C., the present case was committed to the Courts of Sessions by the order of Ld. MM/NE/KKD vide order dated 17-03-2017. The same was allocated by the then Ld. District and Sessions Judge to the Ld. Predecessor of this Court.

CHARGE

3. After hearing the arguments and finding that prima facie case is made out against the accused Sandeep @ Sanjit for the offence punishable u/s 393/34, 397 and 411 of IPC and u/s 411 of IPC against accused Rafeeq. Charges were framed vide order dated 28-04-2017 by the ld. Predecessor, to which accused persons pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as eight witnesses.

During the trial, accused Sandeep @ Sanjit absented himself and he was declared proclaimed offender vide order dated 02-09-2019.

PROSECUTION EVIDENCE

4. (i) PW1 HC Yash Pal Singh is the Duty Officer and he deposed that on 08-11-2016, he was posted at PS Bhajanpura and on that day, rukka Ex. PW1/A recorded by HC Jai Singh was presented before him and he made endorsement Ex. PW1/B. He got registered the FIR Ex. PW1/C and issued certificate regarding correctness of FIR and proper maintenance of computer system as Ex. PW1/D. He also recorded DD no. 6A and DD no. 3B as Ex. PW3/E. The witness was not cross-examined despite being given opportunity.

(ii) PW2 Shamshad is the complainant and he deposed that he has been residing alongwith his family at Shri Ram Colony, Rajiv Nagar, Khajuri, Delhi for last 10-12 years.

On 06.11.2016 at about 5 pm, he along with his friend Danish left their gali to go to 5 th Pusta, at the workshop. At about 5:30 P.M., they reached in front of H. No. 37, Gali No.3, Gamri Extension near drain. He and his friend Danish were stopped by two boys at the pavement of drain (nala). One out of two put chhuri on his neck (the said boy was not present in court on that day). The other boy had robbed his mobile phone of Black colour Lava having Vodafone sim and one currency note of 100 denomination was also snatched by that boy. The witness put finger towards accused Sandeep present in court saying that he was the same boy who had robbed his mobile phone and Rs.100/- from his friend. No other article was robbed from his possession. Both the robbers ran away with aforesaid looted mobile phone and Rs.100/- belonging to his friend. They left the spot and reached at their house and from there, he made call at 100 FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 4 of 19 number using phone of his father.

He further deposed that he was called by Police at spot. He along with his friend Danish reached at spot where police officials in gypsy and other police officials were present. He had narrated the incident to Police and his statement was recorded vide Ex.PW2/A. He had told to Police that he could identify both the robbers if produced before him. Police officials had also prepared site plan in his presence where incident had taken place. On next day, he and his family members reached at PS and police made search of accused persons at his instance here and there near the spot. Accused Sandeep was apprehended by Police on his pointing out from Gamri area which come under the jurisdiction of PS Bhajanpura, Delhi. Police prepared arrest papers of accused Sandeep vide Ex. PW2/B-1 and personal search memo Ex. PW2/B-2. No recovery of his belongings was effected from accused Sandeep. Police officials had told him that his phone was at PS which was recovered from some boy. No recovery of mobile hone was effected in his presence. He had seen his mobile phone at PS and got released the same. He had produced receipt/invoice of his aforesaid mobile phone vide Ex.PW2/C. He did not bring his mobile phone which was on superdari as same has been destroyed.

The disclosure statement of accused Sandeep Ex. PW2/D was shown to witness and he admitted his thumb impression at point A. He deposed that he can identify that boy who had put knife / chhuri on his neck at the time of incident.

One seizure memo of purse and adhaar card Ex.PW2/E was shown to witness and he admitted his signature at point A. He was not cross-examined by Ld. Defence counsel for FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 5 of 19 accused Rafeeq despite having given the opportunity.

(iii) PW-3 Danish deposed that Shamshad is his friend. On 06.11.2016, he along with his friend Shamshad were going to workshop, 5th Pusta, Gamri Road for their jobs. At about 5:30 pm, they both reached in front of H. No. D-37, Gali No.3, Gamri Extension at pavement of nala, where two unknown persons stopped them. One out of them put knife on the neck of his friend and another boy robbed mobile phone from the possession of his friend. A sum of Rs. 3,000/- was also robbed from his possession. The aforesaid boy had also robbed one note of 100 denomination from his left pocket of wearing pant. Both the robbers ran away with looted aforesaid articles. No other things from the possession of Shamshad was robbed. They left the spot and went to their house. From there, his friend Shamshad made phone call from the phone of his father. Thereafter, police called them at spot on phone. They reached there and found two police officials at spot. Statement of his friend Shamshad was recorded by the Police. After about two days, he and his friend had joined investigation with Police and police had arrested one accused from the area of Bhajanpura near nala, 5th Pusta, Gamri at about 11 A.M. He and his friend had pointed out and identified one robber whose name was revealed later on as Sandeep. He put finger towards accused Sandeep present in court saying that he was the same person who had robbed mobile phone and cash. He deposed that robber who had put the knife on the neck of Shamshad was not present in court. Black colour mobile phone make Lava of his friend Shamshad was recovered by the Police which was got released by him on superdari. He did not know other facts of this case.

He was not cross-examined by Ld. Defence counsel for accused Rafeeq despite having given the opportunity.

(iv) PW4 HC Jai Singh is the first IO of the present case. He deposed that on 07.11.2016, he was posted at PS Bhajanpura. On the intervening night 07/08-11-2016, he was on night emergency duty and at about 12:15 A.M., copy of DD No. 3B Ex. PW1/E was assigned to him which was in connection of snatching the money and goods as brother of caller had passed on information to Control Room. He reached at spot i.e H. No. D- 37, Gali No.3, Gandhi Extension, Bhajanpura, Delhi near pavement of nala after making phone call to caller. At aforesaid spot where incident had taken place as told to him by caller, neither caller nor his brother met him. He returned to PS. He again made call to caller from PS. Caller along with victim came at PS and met him. He interrogated victim Shamshad who told him that he and his friend Danish were going to their work place and on the way Shamshad was robbed in presence of Danish at the point of weapon by two unknown persons. One wallet containing Aadhar card and a sum of Rs. 3,000/- and one mobile phone make Lava having sim connection no. 9643621624 were robbed. PW4 recorded his statement vide Ex.PW2/A. He obtained his thumb impression under his statement after reading over the same to him and he attested the same at point X. Thereafter, he made endorsement Ex.PW1/A to register an FIR for offence u/s 392 r/w 34 IPC. He presented rukka at about 2:05 A.M before duty officer for registration of FIR. After registration of FIR Ex.PW1/C, investigation of this case was assigned to SI Ashish. He produced complainant and his brother who had made call before IO. He also handed over the copy of DD NO.3B to FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 7 of 19 him. Danish who was present at spot at the time of incident with victim Shamshad had not met him as he had not come at PS. The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.

(v) PW5 ASI Raj Kumar is the investigating police official who had assisted the IO/ SI Ashish with regard to the proceedings conducted against accused Sandeep @ Sanjit. He has also deposed on the same lines on which SI Ashish (PW8) has deposed.

The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.

(vi) PW6 ASI Babu Ram is the MHC(M) at the relevant time. He has proved entries of register no. 19 with regard to deposit and release of case property as Ex. PW6/A to Ex. PW6/C. The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.

(vii) PW7 Ct. Yogender is the investigating police official who had assisted the IO/ SI Ashish at the time of apprehension and arrest of accused Rafiq. He deposed that on 03-02-2017, he had joined investigation of this case with SI Ashish. On that day, in noon hours, accused Rafiq was arrested at the instance of secret informer from gali no. 21, Rajeev Gandhi Nagar, near Mustafabad, Delhi vide arrest memo Ex. PW7/A and personally searched vide memo Ex. PW7/B. IO interrogated accused Rafeeq and whatever he told, same was recorded in disclosure statement Ex. PW7/C. Accused Rafeeq was found in possession of one mobile phone make LAVA and he produced the same saying that he had purchased the robbed mobile phone from someone after making payment of Rs. 3,000/-. IO seized the FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 8 of 19 mobile phone vide seizure memo Ex. PW7/D. He correctly identified accused Rafeeq in the court.

During cross-examination by Ld. Defence counsel, he deposed that he had not given any written notice to accused before taking his search. No mohalla people gathered in the gali when accused was brought to PS. However, passersby were going and coming in the gali. IO had not called passersby to join the proceedings. He deposed that he was not in a position to tell the IMEI number.

(viii) PW-8 SI Ashish Kumar is the 2nd IO of this case and he deposed that on 08.11.2016, he was present at PS. Investigation of the case was assigned to him after registration of FIR. HC Yashpal Singh, Duty Officer had delivered rukka Ex.PW1/A and copy of FIR Ex. PW I/C to him at about 3.00 p.m. for investigation. He met with HC Jai Singh who had recorded statement of complainant Shamshad and he briefed him about the incident. HC Jai Singh also delivered copy of DD no.3B Ex.PWI/E. He reached at the spot alongwith complainant Shamshad who had been produced by HC Jai Singh to him. On reaching at the spot i.e. place of incident i.e. at the pavement of nala which was near the gali no.3 and H. NO. D-37, Gamri Extension, Delhi. He inspected the spot at the instance of complainant and prepared site plan Ex. PW 8/A. At that time, one Danish, friend of complainant Shamshad, was also with them from the PS. He had made search of both the robbers at the instance of complainant and his friend in the nearby area of spot, but they could not be traced. As per statement of complainant, he had stated that he can identify both the robbers, if produced before him. They returned back to PS. He recorded statement of FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 9 of 19 Danish, who was eyewitness of incident of robbery. He had also recorded supplementary statement of complainant regarding inspection of spot and preparation of site plan. He had also recorded statement of Ct. Raj Kumar who had joined investigation with him from PS and in his presence, he had prepared site plan.

He further deposed that on next day i.e. 09.11.2016, complainant Shamshad came at PS alone and told him that he had made efforts in search of robbers in the area of D-Block Bhajanpura and during search, he had noticed that one robber was present in gali no. 14 of D-Block, Bhajanpura. He had stated that if raid conducted there, robber can be arrested. Immediately, PW8 constituted raiding team with the help of Ct. Raj Kumar and rushed at the instance of complainant Shamshad towards gali no.14 of D-Block where they both police officials overpowered one robber on the pointing out of complainant Shamshad at about 10.45 a.m. He interrogated him and his name was revealed as Sandeep. It was told to him by complainant that at that time, accused Sandeep had robbed his wallet containing Aadhar Card, a sum of Rs.3,000/- and one black mobile phone make Lava having sim, the connection number of which I did not remember and that associate of accused Sandeep had used knife at the time of robbery. During course of interrogation, accused Sandeep had disclosed name of his associate JCL 'R' who had used knife in the crime. It was also disclosed by accused Sandeep that he can get recovered purse containing Aadhar Card from his house. He further disclosed that he had handed over mobile phone make Lava to sell the same to his friend Anmol. He further disclosed that looted money was distributed between him and his associate.

He further deposed that accused Sandeep led them at his tenanted room at first floor which was in the house of Genda Ram, D-Block, Gali no.10, Gamri Extension. Bhajanpura, Delhi for recovery. On reaching there, accused Sandeep took out one black wallet from the iron almirah fitted on the wall of his rented room and produced the same. He checked and found one Aadhar Card of complainant inside the aforesaid wallet which was claimed and identified by complainant. He seized the same vide seizure memo Ex. PW5/A. He had not sealed the aforesaid wallet and Aadhar Card. He prepared site plan of place of recovery vide Ex. PW5/B. He arrested accused Sandeep vide arrest memo Ex.PW2/B-1 and p/search memo Ex. PW2/B-2. He recorded statement of accused vide Ex. PW2/D. Accused led at the spot and pointed out the same. He prepared pointing out memo vide Ex. PW8/B. He made search of associate JCL 'R', but in vain. Thereafter, they returned to PS and he deposited the case property with MHC(M) in intact condition and accused Sandeep was put in lock up. He recorded supplementary statement of complainant Shamshad regarding arrest of accused and recovery of wallet etc. Accused Sandeep was produced before court after medical examination and he was taken on PC for one day. He was brought at PS and on next day i.e. 10.11.16, PW8 made efforts at the instance of accused Sandeep to procure the presence of associate JCL 'R' and his friend Anmol. JCL 'R' was apprehended at the instance of accused Sandeep. PIR against JCL 'R' was submitted by him before concerned court. No recovery of knife could be effected at his instance despite efforts. Anmol could not be traced as his complete address was not with accused Sandeep. Thereafter, accused Sandeep was produced before court FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 11 of 19 and he was sent to J/C. The witness correctly identified accused Sandeep in the court.

He identified the case property i.e. wallet Ex. PX and Aadhar Card Ex. PY as the same which were recovered from the rented room at the instance of accused Sandeep and belonging to complainant.

During course of investigation, Sim connection number of the complainant having IMEI number were given to concerned police official to put on surveillance for the purpose of recovery and application was moved to this effect.

After recording statement of PW Danish u/s 161 Cr.PC, section 397 IPC was added. Request for CDR of robbed mobile phone of the complainant was made and CDR of mobile phone was obtained, which was analyzed by him and he came to know that the mobile phone of complainant was being used by one Rafeeq s/o Mansoor Khan r/o H.No 2078, gali no.21, Rajiv Gandhi Nagar, New Mustafabad, Delhi, as he was using his sim no.8285345433 in the mobile phone of the complainant. After that he had talked the said person on this number and directed him to appear before him at the PS. On 03.02.2017, the said person Rafeeq had come to him at PS. He made inquiries from him in the presence of Ct.Yogender about the mobile phone of complainant which he had brought with him. On inquiry, he disclosed that one boy namely Anmol had mortgaged the said mobile phone to him for Rs. 3000/- and that when the said boy Anmol did not come to redeem the mobile phone then he had started using his own sim in the said mobile phone. At that time, the said person Rafeeq had produced one mobile phone make LAVA ATAM 2 of black colour before him.

The said phone was checked and he came to know that the Chip bearing IMEI number was removed from the said phone. After that, he confirmed the IMEI number of the said phone by going into the 'Settings' of the said mobile phone and came to know that IMEI number of the said mobile phone was of the same mobile phone which was robbed from the complainant. After that, he had seized the mobile phone from accused Rafeeq and taken the same into possession vide seizure memo Ex.PW7/D. He arrested accused Rafeeq for the offence u/s 411 IPC vide arrest memo Ex. PW7/A and his p/search was also conducted vide memo Ex. PW7/B. He had recorded disclosure statement of accused vide Ex. PW7/C. PW8 correctly identified accused Rafeeq.

Mobile phone was deposited in the malkhana. After arrest, accused Rafeeq was got medically examined and after that he was produced before concerned court and from there, he was sent to J/C. After that during investigation, he made efforts to find out the suspect Anmol, but neither accused Sandeep nor accused Rafeeq had disclosed his exact address. Hence, despite efforts, the said suspect could not be apprehended. During course of investigation, he had also taken the bill/invoice Ex. PW2/C of robbed mobile phone from complainant Shamshad regarding ownership proof vide seizure memo Ex. PW8/C. After completing investigation, he had prepared the chargesheet against accused Sandeep @ Sanjit and Rafeeq.

During cross-examination by Ld. Defence counsel, he deposed that accused Rafiq could not produce any bill for purchase of said mobile phone. He went to the spot and no eyewitness except the complainant was found at the spot. He FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 13 of 19 affirmed that no public person joined in the present matter. He did not serve any notice upon any public person for not joining the investigation.

STATEMENT OF ACCUSED

5. After completion of prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. wherein incriminating facts were put to the accused Rafeeq, which were denied by him. He stated that he is innocent and has been falsely implicated in this case.

FINAL ARGUMENTS

6. This court has heard the arguments and perused the record. It is submitted on behalf of accused Rafeeq that the recovered robbed mobile phone from the possession of accused Rafeeq has been planted upon him. No public witness was joined in the investigation at the time of alleged recovery of the stolen robbed mobile phone. The recovered mobile phone was never brought by the complainant at the time of recording of his deposition. Nor the photograph thereof have been placed on record. There is material contradiction with regard to the apprehension of accused Rafeeq in the testimony of PW7 Ct. Yogender and PW8 SI Ashish Kumar. PW7 Ct. Yogender has claimed that the accused was arrested on 03-02-2017 from Gali no. 21, Rajiv Gandhi Nagar, near Mustafabad, Delhi on the basis of secret information, whereas PW8 SI Ashish Kumar has claimed that the accused was arrested on the basis of analysis of CDR.

On the other hand, Ld. Addl. PP for the State submits that the testimony of all the prosecution witnesses is sufficient to bring home the guilt of accused beyond reasonable doubts.

FINDING OF THE COURT

7. Before analyzing the prosecution and defence evidence adduced in the present case, this court deems it proper to refer to provisions of law and some citations of Superior courts, which are found to be applicable on the facts of the present case.

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.

8. It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :-

"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."

9. In Harendera Narain Singh vs. State of Bihar, AIR 1991 S.C. 1842, their Lordships of the Supreme Court had reiterated the well-known principle of the criminal jurisprudence is that:

"....... The basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."

10. In Data Xiva Naique Desai and Another vs. The State, AIR 1967 Goa, Daman and Diu 4, the Hon'ble Supreme Court reiterated the well-known principles of the criminal jurisprudence which are reproduced as under:

"The learned Judge would be advised to observe the following general rules when he is dealing with the serious question of the guilt or innocence of persons charged with crime: (i) The onus of proving everything essential to the establishment of the FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 15 of 19 charge against the accused lies on the prosecution; (ii) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused; (iii) In matter of doubt it is safer to acquit than to condemn; for it is between several guilty persons should escape than that one innocent person suffer; and (iv) the hypothesis of delinquency should be consistent with all the facts proved."

11. In Swarn Singh Ratan Singh vs. State of Punjab, AIR 1957 SC 637, it was held by the Hon'ble Apex Court that, "in criminal cases mere suspicion, however, strong, cannot take the place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof."

12. As per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under:-

''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

13. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entry with regarding seizure of robbed mobile phone, departure of police official Ct. Yogender during the investigation of the present case have not been proved on record and even the DD Writer was not examined and no explanation is given as to why the said DD Writer is not made the witness in the present case. At FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 16 of 19 this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."

In the present case, the above said provision appears to have not been complied with by the prosecution.

14. It is observed that charge against accused Rafeeq is only that he was found in possession of one mobile phone make Lava, which, as per prosecution case, was retained by him with knowledge that same is stolen property. This court finds itself in agreement with the submissions of Ld. Defence counsel to the effect that recovery of alleged mobile phone from the possession of accused Rafeeq is doubtful. There is apparent contradiction in the testimony of PW7 Ct. Yogender and PW8 SI Ashish Kumar. PW7 claimed that on 03-02-2017, accused Rafeeq was arrested on the basis of secret information from Gali no. 21, Rajeev Gandhi Nagar, near Mustafabad, Delhi. On the other hand, PW8 SI Ashish Kumar claimed that he has obtained CDR of mobile phone of complainant and on analysis, he came to know that mobile phone of complainant was being used by accused Rafeeq i.e. sim no. 8285345433. He claimed that on 03.02.2017, the said person Rafeeq had come to him at PS. He made inquiries from him in the presence of Ct. Yogender about the mobile phone of complainant which he had brought with him. On FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 17 of 19 inquiry, Rafeeq disclosed that one boy namely Anmol had mortgaged the said mobile phone to him for Rs. 3,000/- and that when the said boy Anmol did not come to redeem the mobile phone then he had started using his own sim in the said mobile phone. At that time, accused Rafeeq had produced one mobile phone make LAVA ATAM 2 of black colour before him. The said phone was checked and he came to know that the Chip bearing IMEI number was removed from the said phone. After that, he confirmed the IMEI number of the said phone from the 'Settings' of the said mobile phone and came to know that IMEI number of the said mobile phone was of the same mobile phone which was robbed from the complainant. Thus, as per the version of PW8, accused Rafeeq was arrested on the basis of analysis of CDRs of alleged robbed mobile phone.

15. It is further observed that the alleged recovered stolen mobile phone was never produced in the court for the purpose of identification by any of the prosecution witness. No Nodal Officer of the service provider has been cited as witness in the chargesheet. The CDR of sim no. 8285345433 and that of complainant's mobile number were not placed on record and no cogent explanation in this regard is furnished. In these circumstances, the prosecution has failed to prove the fact that accused Rafeeq had knowledge that robbed mobile phone, which was being used by him, was the stolen property. DECISION OF THE COURT

16. It is well settled that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of FIR No. 712/16 State Vs. Sandeep @ Sanjit & Anr. Page 18 of 19 doubt certainly goes in favor of the accused Rafeeq. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, the accused Rafiq is hereby acquitted of the charge punishable u/s 411 of IPC. File be consigned to record room after compliance of section 437A of Cr.P.C with liberty to the prosecution to get the case reopened as and when accused Sandeep @ Sanjit and Anmol are apprehended / arrested and produced before the court.

ANNOUNCED IN THE OPEN COURT
ON 01-11-2023                               PANKAJ        Digitally signed by
                                                          PANKAJ ARORA

                                            ARORA         Date: 2023.11.01
                                                          16:54:47 +0530

                               (PANKAJ ARORA)
                 ADDL. SESSIONS JUDGE-04: NORTH-EAST/
                            KARKARDOOMA/ 01-11-2023




FIR No. 712/16        State Vs. Sandeep @ Sanjit & Anr.       Page 19 of 19