Delhi District Court
State vs . Mohd. Ashkeen on 20 February, 2023
IN THE COURT OF SH. RAHUL VERMA,
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI.
FIR No. 391/2019
PS - Sunlight Colony
U/s - 356/379/411 IPC
State Vs. Mohd. Ashkeen
JUDGMENT
Part A - The list at a glance A. Serial No. of the Case : 20284/2019 B. Date of Commission of offence : 17.04.2019 C. Date of Institution of Case : 31.05.2019 D. Name of the Complainant : Shri Rishi Kumar S/o Shri Ram Narayan E. Name of Accused : Mohd. Ashkeen S/o Mohd. Arif R/o House No. T106, Nafisa Masjid, Sarai Kale Khan, New Delhi.
F. Offence charged of : 420/356/379/411 IPC
G. Plea of the accused : Pleaded not guilty.
H. Final Order : ConvictedU/s.420/356/379 IPC.
Acquitted U/s.411 IPC
I. Judgment reserved on : 16.02.2023
J. Date of judgment : 20.02.2023
State Vs Mohd Ashkeen; FIR No.391/19 PS: Sunlight Colony Page No. 1 of 10
Part B - A brief statement of reasons for the decision (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.)
1. It is the case of the prosecution that on 17.04.2019 at about 12:20 AM at main gali Sarai Kale Khan near Choupal within the jurisdiction of PS Sunlight colony, accused Mohd. Ashkeen induced the complainant namely Rishi Kumar to part with his mobile phone make Samsung Galaxy J - 6 bearing IMEI no. 358461098012273 and 358462098012271 having phone number 9773602771 of airtel, and ran away with it. It is further the case of the prosecution that thereafter accused used criminal force upon the complainant and snatched Rs.4,000/ from his hand / possession without his consent. It is further the case of the prosecution that on 18.04.2019 at about 08:00 AM at gali of Nafeesa Masjid Sunlight colony the aforesaid mobile phone was got recovered from the possession of the accused which he dishonestly received or retained, knowing or having reasons to believe the same to be stolen property. Present FIR was registered on the basis of complaint by the complainant.
2. After completion of investigation, charge sheet qua the accused was filed under Section 356/379/411 IPC. Documents were furnished to the accused in compliance of Section 207 of Criminal Procedure Code (hereinafter, referred to as 'Cr.P.C.'). On the basis of material on record, charge under section 420/356/379/411 IPC was framed upon the accused, to which the accused pleaded not guilty and claimed trial.
3. In order to substantiate its case, prosecution has examined the following witnesses:
(i) PW1 Rishi Kumar deposed that he was working as food State Vs Mohd Ashkeen; FIR No.391/19 PS: Sunlight Colony Page No. 2 of 10 delivery boy in Swiggy, Malviya Nagar. On 17.04.2019 at about 12:20 midnight, after returning from Khan Market after finishing his work he reached Sarai Kale Khan and parked his bike at Sarai Kale Khan bus stand. He further deposed that one person (accused) asked him for his mobile phone as he had to talk. Thereafter, he handed over his mobile phone make Samsung Galaxy J6 colour black to him. The accused did not talk and put his mobile phone in his pocket and started moving from there. Thereafter, he asked him to return his mobile phone however he refused to return the same. Thereafter he chased the accused to which the accused told him to give money if he wanted his mobile back. He further deposed that when he was trying to take money from his bag, the accused snatched Rs.4,000/ from his bag. He further deposed that the accused did not return his phone and asked him to leave the place and also hit him with brick and then ran away from the spot. He further deposed that he came back to his house and called the police at 100 number. When the police came to the spot, he narrated the whole incident to the police. Thereafter, on next day i.e. 18.04.2019 police came to the spot and took him in search of the accused. He further deposed that he identified the accused at Nafisa Masjid and thereafter, police arrested the accused vide arrest memo Ex.PW1/B. He further deposed that his mobile was recovered from the pocket of the accused and the same was seized by the police vide seizure memo Ex.PW1/A. Police also personally searched the accused vide search memo Ex.PW1/C. He correctly identified the accused as the person who took away his phone and the cash. He produced his mobile phone make Samsung Galaxy J6 black colour having IMEI numbers 358461098012273 and 358462098012271 Ex.P1 and deposed State Vs Mohd Ashkeen; FIR No.391/19 PS: Sunlight Colony Page No. 3 of 10 that it was the same phone which was taken away by the accused. He further identified his phone from its 03 photographs alongwith panchnama Ex.P2 (colly.). He further deposed that when he visited the PS the police officials had caused registration of an online FIR Ex.PW1/E on his behalf. This witness was duly cross examined by the Ld. Defence counsel for the accused.
(ii) PW2 Ct. Arjun deposed that on 18.04.2019 he alongwith ASI Praveen and the complainant went to Sarai Kale Khan to check the CCTV footage in order to find out the offenders. At about 08.00 AM, the complainant pointed out towards the person who was at the Nafisa Gali and told them that he was the same person who took his mobile phone. Thereafter, he alongwith ASI Praveen apprehended the said person. He further deposed that they searched the said person and one Samsung mobile phone was recovered from his pocket and the said mobile phone was identified by the complainant. During the interrogation, said person disclosed his name as Mohd. Ashkeen. Thereafter, the accused pointed out towards the place where he had committed the offence of snatching. He further deposed that IO prepared the pointing out memo Ex. PW2/A. IO also seized the mobile phone recovered from the possession of the accused vide memo Ex. PW1/A. He further deposed that at PP Sarai kale Khan, IO interrogated and arrested the accused vide memo Ex. PW1/B, recorded his disclosure statement Ex. PW2/B and conducted his personal search vide memo Ex. PW1/C. He correctly identified the accused in the court. He correctly identified the mobile phone from its photographs Ex. P1 (colly). This witness was duly cross examined by the Ld. Counsel for the accused.
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(iii) PW3 ASI Praveen Kumar deposed that on 17.04.2019 he was on night emergency duty and during that period he received PCR call vide DD no. 2A regarding snatching of mobile phone. Thereafter, he went to the spot i.e. Sarai Kale Khan where he met the complainant. Complainant Rishi Kumar told him that he has already lodged eFIR about the snatching of his mobile phone. Thereafter, he recorded u/s 161 Cr.PC statement of the complainant and also prepared the site plan at the instance of the complainant Ex. PW3/A. He further deposed that during inquiry, complainant told him that he could identify the person who snatched his mobile phone and that person was residing in the area of Sarai Kale Khan. On the next day i.e. 18.04.2019, he alongwith complainant and Ct. Arjun went to Sarai Kale Khan in early morning. At about 08.00 AM, they all reached at Nafisa Masjid Gali, complainant pointed out towards one boy who was coming from the Gali and told them that he was the same person who snatched his mobile phone. Thereafter, he alongwith Ct. Arjun nabbed the said person. He conducted the search of the said person and one mobile phone make Samsung was recovered from the pocket of his pant. He interrogated the said person and he disclosed his name as Mohd. Ashkeen. He further deposed that he seized the said mobile phone vide memo Ex. PW1/A. Then, the accused led them to the place of incident and pointed out towards the said place, where he had committed the offence in question. He further deposed that he prepared the pointing out memo in this regard Ex. PW2/A, arrested the accused vide memo Ex. PW1/B, conducted his personal search Ex. PW1/C, and recorded his disclosure statement Ex. PW2/B. He correctly identified the accused in the court. He also identified the stolen mobile phone from State Vs Mohd Ashkeen; FIR No.391/19 PS: Sunlight Colony Page No. 5 of 10 its photographs Ex. P1 (colly). This witness was duly cross examined by the Ld. Defence counsel for the accused.
4. Vide a separate statement dated 21.09.2019 and 01.02.2020 the accused admitted the genuineness of FIR (without contents) Ex. PW1/E and GD No. 2A dated 17.04.2019 Ex. PX respectively.
5. Prosecution evidence was closed vide order dated 11.01.2023.
6. Statement of accused u/s. 313 r/w 281 of Cr.P.C was recorded on 20.01.2023 wherein the accused denied the incriminating evidences appearing against him. The accused did not opt to lead defence evidence.
7. Subsequently, final arguments from the counsel for accused and Ld. APP for the State were heard.
8. In the present matter, the accused has been charged for the offences punishable under Section 420/356/379/411 IPC.
9. To bring home the guilt of the accused under Section 420 IPC, the prosecution was required to prove that the accused cheated the complainant and thereby dishonestly induced him to deliver any property to any person. Further, in order to prove its case under Section 356/379 IPC, it was incumbent upon the prosecution to prove that criminal force was used by the accused upon the complainant to move the property out of his possession without his consent and by doing so wrongful loss was caused to the complainant.
10. In order to prove its case, the prosecution examined the complainant Rishi Kumar as PW1. He deposed that he was working as food delivery boy State Vs Mohd Ashkeen; FIR No.391/19 PS: Sunlight Colony Page No. 6 of 10 in Swiggy, and on 17.04.2019 at about 12:20 midnight, after returning from Khan Market when he parked his bike at Sarai Kale Khan bus stand, one person (accused) asked him for his mobile phone as he had to talk. Thereafter, he handed over his mobile phone make Samsung Galaxy J6 colour black to him. He further deposed that the accused did not talk and put his mobile phone in his pocket and started to move away from there. Thereafter, he asked the accused to return his mobile phone but he refused to return the same. He further deposed that thereafter he chased the accused but the accused asked him to give money if he wanted his mobile back. He further deposed that when he was trying to take money from his bag, the accused snatched Rs.4,000/ from his bag. He further deposed that the accused did not return his phone and asked him to leave the place and also hit him with brick and then he ran away from the spot. He correctly identified the accused as the person who took away his phone and the cash.
11. It is clear from the testimony of complainant/ PW1 Rishi Kumar that on the pretext of making a call, the accused asked for phone from the complainant, and on believing him, the complainant handed over his phone to the accused. Here, it was implied that the accused would actually make the call and thereafter would return the phone to complainant. However, the accused neither made any call from the said phone nor returned the same and ran away from there. When the accused was chased and asked to return the phone, he did not do so and he even demanded money from the complainant. It is thus clear that the complainant was misled into believing that the accused needed his phone to make a call. The subsequent conduct of the accused in demanded the money to return his phone and the fact that he ran away with the phone of the complainant, shows that the complainant was deceived and was dishonestly induced to deliver his phone to the accused. It further shows State Vs Mohd Ashkeen; FIR No.391/19 PS: Sunlight Colony Page No. 7 of 10 that the inducement by the accused was both dishonest and fraudulent and the intention to deceive existed at the time when the inducement was made. The accused was also correctly identified by the complainant/PW1. The complainant was crossexamined at length by the counsel for the accused, however, nothing came on record to impeach his credit or disbelieve his testimony. His testimony is free of blemish and inspires confidence.
12. Now, coming to the charge under Section 356/379 IPC, the testimony of the PW1 complainant shows that when the complainant handed over his phone to the accused, instead of retuning the same, the accused started to run away from the spot. When the complainant chased the accused, he demanded money to return the phone. Testimony of PW1 further shows that when he was trying to take money from his bag, the accused snatched Rs.4,000/ from his bag, and ran away from the spot. On 18.04.2019 police took him in search of the accused and he identified the accused at Nafisa Gali and his mobile was also recovered from the pocket of the accused. The same was seized by the police vide seizure memo Ex.PW1/A. Though, the stolen cash of Rs. Rs.4,000/ was not recovered during investigation, factum of snatching of the said amount is proved by the testimony of PW1. It is further proved that criminal force was used by the accused upon the complainant to move the said cash out of his possession without his consent and by doing so, wrongful loss was caused to the complainant. Despite being crossexamined at length, nothing came on record to disbelieve his testimony. The defence failed to elicit any material contradiction in his deposition. Further, no reason has been adduced before the court, which might lead to any indication that PW1 deposed against the accused because of any previous animosity or to falsely implicate the accused.
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13. As far as the arrest of the accused and the recovery of stolen phone from the accused is concerned, testimony of the PW1 is corroborated by PW 2 Ct. Arjun and PW3 ASI Praveen Kumar who deposed that on 18.04.2019 at the pointing out of the complainant, they apprehended the accused at the Nafisa Gali. Upon his search, phone belonging to the complainant was recovered from him vide memo Ex. PW1/A. No contradiction is found between the testimony of prosecution witnesses on any material aspect. All prosecution witnesses fully supported the case of the prosecution.
14. In defence of the accused, Ld. Counsel for the accused argued that no other public witnesses have been examined despite their presence on the spot and that the testimony of the complainant alone is not sufficient to prove the case of the prosecution. However, I do not see merit in this argument. The incident occurred at midnight in empty street. Thus, there are no eye witnesses to the incident. Further, the recovery of mobile in question from the accused was made in presence of the complainant. Though, at the time of arrest and recovery, other public persons were also present, their non examination is not fatal to the case of the prosecution. The court is of the view that on the aspect of recovery, the testimony of PW2 and PW3 has been duly corroborated by PW1 and does not require further corroboration by any independent witnesses.
15. Here, it is pertinent to note that though the said phone recovered from the accused does not technically fall under the definition of "stolen property,"
the manner in which the said phone was obtained by the accused and the fact that the same was found in possession of the accused just one day after the incident, it strengthens the case of the prosecution that it was the accused who had acquired the possession of the said phone from complainant by cheating.
State Vs Mohd Ashkeen; FIR No.391/19 PS: Sunlight Colony Page No. 9 of 10 The accused neither explained the possession of the said phone with him nor led any evidence in his defence.
16. In opinion of this court, testimony of PW1 Rishi Kumar is found to be reliable. No material contradictions have been found in his testimony. Also, there is no occasion for the complainant to falsely implicate the accused, thereby letting the real culprit escape. Thus, in opinion of this court the cheating as well as snatching of cash of Rs. 4000/ from the complainant has been duly proved by the prosecution.
17. In view of the above discussion, this court is of the considered opinion that the prosecution has successfully proved its case beyond reasonable doubt. Hence, the accused Mohd. Ashkeen is held guilty of the offence punishable under Section 420 IPC, 356 IPC and Section 379 IPC. Accordingly, the accused Mohd. Ashkeen stands convicted under Section 420 IPC, 356 IPC and Section 379 IPC.
18. Since the phone in question recovered from the accused does not fall under the definition of "stolen property," the accused is acquitted under the charge of Section 411 IPC.
19. Let the copy of the judgment be supplied to the accused free of cost.
Announced in open Digitally signed
by RAHUL
RAHUL VERMA
court on 20.02.2023 VERMA
Date:
2023.02.20
14:18:42
+0530
(RAHUL VERMA)
Metropolitan Magistrate07,
South East, Saket, New Delhi
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