Delhi District Court
3.Title State vs . Manoj on 2 January, 2014
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
1.FIR No. 398/2013
2.Unique Case ID No. 02401R00310482013
3.Title State Vs. Manoj
3(A).Name of complainant Mohd. Nabeel Ahmed, S/o Mohd.
Safiullah, R/o 1-29, Lalita Park, Laxmi
Nagar, Delhi.
Permanent address: Pakri Bazar, Lohar
Patti, Besati Patti, Motihari, East
Champaran, Bihar.
3(B).Name of accused Manoj, S/o Sh. Vinod, R/o 14/497,
Trilokpuri, Delhi.
4.Date of institution of challan 23.9.2013
5.Date of Reserving judgment Not reserved pronounced on the same
date.
6.Date of pronouncement 02/01/14
7.Date of commission of offence 24.7.2013
8.Offence complained of Under Section 379/411/34 IPC
9.Offence charged with Under Section 379 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Convicted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. In the present matter the State machinery was brought into motion on the complaint of the complainant Mohd. Nabeel Ahmed pursuant to which the FIR bearing no. 398/2013 was registered in the present matter in PS Mandawali.
2. The prosecution case in brief is that on 24.7.2013 at about 8.00pm, at Mother Dairy bus stand, Delhi, the accused Manoj alongwith his associates namely Bomad and Parveen (who could not be traced) committed theft of black colour purse containing Rs. 230/-, PAN Card, Voter ID Card, belonging to the complainant Mohd. Nabeel Ahmed and committed theft of one mobile phone make Samsung with SIM card no. 9505538569 (AP), belonging to one T. Premkumar.
FIR No.398/13 State Vs. Manoj 1/09
3. In this case charge sheet was filed by the IO under the provisions of Section 379/411/34 IPC on 23.9.2013 and the cognizance for the offence was taken on the very same date and thereafter, the copy of the documents were supplied to the accused on the same date and after the compliance of the provisions of Section 207 Cr.P.C and after hearing parties, charge for the offence punishable u/s 379 IPC was framed against the accused on 7.10.2013, to which he pleaded not guilty and claimed trial.
4. In the present matter after the charge was framed the accused admitted the factum of registration of FIR, however denied the contents therein and therefore, FIR was exhibited as Ex. P-1 and Duty Officer was dropped from the list of witnesses.
5. Thereafter, matter was fixed for prosecution evidence.
Prosecution in order to prove its case against the accused in total has examined as many as four witnesses i.e. T. Prem Kumar, Ct. Rajinder Singh, Nabeel Ahmed and SI Virender, as PW-1 to PW-4 respectively.
6. Prosecution evidence was closed in the present matter vide order dated 27.11.2013 and the matter was fixed for statement of accused. Statement of accused was recorded on 10.12.2013, however as it was submitted by the accused that he does not wish to lead any evidence in his defence, the matter was fixed for final arguments.
7. Final arguments are heard as advanced by Ld. APP for State and the Ld. Counsel for accused.
8. PW-3 Nabeel Ahmed, is the complainant in the present matter.
He has deposed that on 24.7.2013, he had boarded the bus route no. 473 at about 7.30pm from Laxmi Nagar Metro Station for Maharani Bagh. However, the bus was crowded and when the bus reached near Ganesh Nagar Chowk Bus stand he noticed that the person standing behind him took out his purse having Rs. 230/-, Pan Card, some visiting cards. On noticing the same he immediately held the hand of that person and raised alarm on which 2-3 persons immediately and swiftly moved towards gate of the bus.
9. It is further deposed that he apprehended one other person, but FIR No.398/13 State Vs. Manoj 2/09 he managed to escape alongwith his other associates. It is deposed by the witness that the person who was apprehended by him was beaten by the public persons and he also came to know that the mobile phone of one other passenger namely T. Prem Kumar was also missing. Thereafter somebody called the police.
10. It is further deposed by the witness that his purse was recovered from the possession of accused. Police came at the spot and recorded his statement Ex. PW-3/A bearing his signature at point A. The witness further deposed that he produced the purse to the IO and the IO seized the same vide memo Ex. PW-2/A bearing his signature at point B. Thereafter, FIR was got registered and the IO arrested the accused vide arrest memo exhibited as PW-2/B bearing his signature at point B.
11. It is deposed by the witness that thereafter he got his purse and other documents released on superdari vide superdiginama Ex. PW-3/B bearing his signatures at points A and B. The witness had brought the case property before the court and exhibited the purse as Ex. P-6, pan card as Ex. P-7, Voter ID as Ex. P-8, and photographs of the currency notes were exhibited as Ex. P-5. The witness correctly identified the accused present before the court as the person who was apprehended by him.
12. In his cross examination it was admitted by the witness that in his presence the police had not interrogated the driver and the conductor of the bus and nor has the police asked any other public person besides him and T. Prem Kumar to join investigation. It was further admitted by the witness that his statement was recorded by the police at PS and no document was prepared by the police at the spot. It is further admitted by the witness that he had a bus travelling pass and therefore he had not deposited the same with the police as he had to travel further and he had not handed over any photocopy of the same to the police and neither had the police asked about the same.
13. PW-1 T. Prem Kumar, is also one of the victim whose mobile phone was reported to be stolen. He has deposed that on 24.7.2013, he was travelling in bus route no. 473, at about 8.00-8.30pm and was FIR No.398/13 State Vs. Manoj 3/09 going to Maharani Bagh from Laxmi Nagar and suddenly, he noticed that some person removed his mobile make Samsung having Sim no. 9505538569 ( the number was of Andhra Pradesh). Thereafter, one person was apprehended in the bus and was beaten by the passengers/public persons and a purse was recovered from his possession. The witness correctly identified the accused present before the court as the person from whose possession purse was recovered.
14. It was further deposed by the witness that two other persons managed to escape from the bus when the door of the bus opened. It was further deposed by him that the accused was standing behind him and therefore, it might be a possibility that he had handed over his mobile phone to other persons who had managed to escape from the bus.
15. In his cross examination it was admitted by the witness that he cannot say as to whether the accused had taken out his mobile from his pocket. It was further admitted by the witness that the police did not enquire from the driver and the conductor of the bus in his presence as the driver has taken away his bus. It is further admitted by the witness that he had not given his bus ticket to IO as he was not asked to give the same.
16. PW-2 Ct. Rajender, has deposed that on 24.7.2013, after receiving DD No. 70B, he alongwith IO/SI Virender reached Ganesh Nagar Chowk Bus Stand, where a boy was apprehended by the public persons who was having injuries on his person. IO recorded the statement of the complainant and prepared rukka and gave the same to him for registration of FIR. Thereafter he got the FIR registered and came back at the spot and handed over the copy of FIR and rukka to the IO. Thereafter, IO prepared seizure memo of purse and documents Ex. PW-2/A. The witness further deposed that thereafter, he got the accused medically examined from LBS Hospital and thereafter he took the accused to the PS. The accused was arrested by the IO at the PS vide arrest memo Ex. PW-2/B and his personal search was conducted vide memo Ex. PW-2/C. The disclosure statement of the accused Ex.
FIR No.398/13 State Vs. Manoj 4/09 PW-2/D was also recorded by the IO in his presence. It is deposed by the witness that despite best efforts by the IO to arrest other accused persons they could not be apprehended. His statement was also recorded by the IO. The witness correctly identified the accused present before the court and identified the case property and the photographs of the articles were exhibited as Ex. P-1 to Ex. P-5.
17. PW-4 SI Virender, is the IO of the present matter and he has deposed that on 24/07/13, on receipt of DD No. 70B he along with Ct. Rajender reached near mother dairy bus stand where he noticed that the crowd has gathered and a PCR van was also standing. He recorded the statement of complainant Mohd. Nabil Ahmed Ex. PW 3/A. The complainant produced the accused and purse alongwith other articles to him. Accused was having injury on his head and on enquiry he came to know that the accused was beaten by the public persons.
18. It was further deposed by the witness that thereafter he prepared rukka Ex. PW 4/A and handed over the same to Ct. Rajender for the purpose of registration of FIR. After getting the FIR registered Ct. Rajender handed over the rukka and copy of FIR to him and thereafter, he prepared site plan Ex. PW 4/B and seized the purse and other articles i.e. Rs. 230/-, one PAN card, one voter I Card and some visiting cards vide memo Ex. PW 2/A.
19. It was further deposed by the witness that one another public person who was also travelling by the same bus namely T Prem Kumar also informed him that his mobile phone was also stolen by the accused and his associates. The statement of that person was also recorded by the witness.
20. It was further deposed by the witness that thereafter, he came back to the PS alongwith the complainant and the accused was taken to hospital for medical examination by Ct. Rajender. Thereafter, Ct . Rajender produced the accused at PS and then the accused was arrested vide arrest memo Ex. PW 2/B in the presence of complainant and his personal search was conducted vide memo Ex. PW 2/C. The disclosure statement of the accused was also recorded by the witness FIR No.398/13 State Vs. Manoj 5/09 Ex. PW 2/D. Thereafter, the case property was deposited in the Malkhana and the statement of other witnesses were recorded by him.
21. It is further deposed by the witness that despite his best efforts other accused persons could not be traced. Thereafter, after completing investigation he prepared the charge sheet. The witness correctly identified the accused present before the court and the case property i.e. photographs of the purse, voter ID, PAN Card and Rs. 230/- Ex. P1 to P5.
22. In his cross examination it was admitted by the witness that no notice was given to any public person who refused to join the investigation. It was further admitted that no enquiry was made from the driver and conductor of the bus.
23. Statement of accused U/s 313 Cr.P.C. was recorded in the present matter on 10.12.2013, wherein all the incriminating evidence were put to the accused, to which it was replied by the accused that he is innocent and has been falsely implicated in the present matter and was lifted from the road as a quarrel has taken place between him and some other person for which police had taken him to police station. However, it was submitted by the accused that he does not wish to lead any defence evidence in the present matter.
24. I have heard the arguments as advanced by Ld. APP for the State and the Ld. Counsel for the accused.
25. It is a settled legal principle that the prosecution has to prove its case beyond the shadow of all reasonable doubts and has to stand upon its own legs. The prosecution cannot draw any strength from the weakness of the case of the accused. It is also a settled proposition in the criminal law that the accused had a pious right of not to be convicted for an offence which is not established beyond reasonable doubts by the prosecution. The burden of proof in a criminal trial always rest upon the prosecution and the same never shifts on accused.
26. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the FIR No.398/13 State Vs. Manoj 6/09 Punjab & Haryana High Court wherein it was observed as under:-
" 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".
27. Now by applying the aforesaid legal propositions of law to the factual matrix of the present case, let us see as to what extent the prosecution has been able to prove its case against accused.
28. The accused person in the present case has been charged for the offence punishable U/s 379 IPC.
29. Section 379 IPC reads as under:-
Punishment for theft- Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
Theft has been defined U/s 378 IPC and the section reads under:
Section 378 IPC Theft - 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.
30. In order to constitute the offence of theft, five factors are essential:-
(a) Dishonest intention to take property.
(b) The property must be movable.
(c) It should be taken out of the possession of another
person.
(d) It should be taken without the consent of that person.
(e) There must be some removal of the property in order to
FIR No.398/13 State Vs. Manoj 7/09
accomplish the taking of it.
31. Intention is the gist of the offence and it determines whether the taking or the moving of the thing is theft or not and dishonest intention exist when the taker intends to cause wrongful gain to one person or wrongful loss to another person.
32. In the present case in hand, the property of which the theft is complained of is movable property i.e. a purse containing Rs. 230/-, PAN Card, Voter ID Card and one mobile phone make Samsung.
33. The complainant had categorically deposed before the court that he had apprehended the accused on spot, red handed when he noticed that his purse was being taken out by the accused and on search his purse was found in the possession of the accused. The purse of the complainant contained Rs. 230/- and his PAN Card and voter ID card. The complainant correctly identified the accused before the Court. Besides the complainant other public witness namely T. Prem Kumar who is PW-1 in the present matter has already identified the accused before the court as the person from whose possession the purse was found.
34. Though in the present matter besides the allegations of theft of purse and allegations of theft, allegations of theft of mobile phone are also there. However, the said mobile phone was not recovered from the possession of the accused. Further more it was deposed by the witness that they had seen some other persons running out of the bus when the bus stopped. The prosecution has not been able to categorically prove the theft of mobile phone by the accused beyond all reasonable doubts. The other persons have remained untraced. However, the theft of the purse by the accused is proved by the prosecution as there is direct testimony of complainant and eye witness with respect to recovery of purse from custody of accused.
35. Proximity of the time of alleged incident, the arrest of the accused and registration of the FIR is shown before the Court.
36. Nothing has come in the deposition of PW-1 or PW-3 which can assail the credibility of these witnesses before the court. The said FIR No.398/13 State Vs. Manoj 8/09 persons have correctly identified the accused as the accused person from whose possession Rs. 230/-, PAN Card, Voter ID Card was found. Thus a movable property has been moved in the present matter without the consent of its owner/possessor i.e. the complainant in the present matter with the intent to cause wrongful loss to the complainant and wrongful gain to the accused. Therefore, the offence of theft is proved in the present matter.
37. In view of the above said discussions and findings the prosecution has been able to prove the guilt of the accused beyond the shadow of reasonable doubts. Complete convincing and unflinching evidence has come against the accused in the present case. Thus the accused is convicted for the offence punishable U/s 379 IPC.
38. Let the Convict be heard separately on the quantum of sentence.
39. Copy of judgment be supplied to the convict free of cost.
Announced in the (Neha Paliwal)
Open Court on 2.1.2014 Metropolitan Magistrate-03 (E)
KKD,-Delhi
It is certified that this judgment contains 9 pages and each page bears my signature.
(Neha Paliwal)
Metropolitan Magistrate-03 (E)
KKD,-Delhi
FIR No.398/13 State Vs. Manoj 9/09
FIR No. 398/2013
PS Mandawali
Order on sentence
2.1.2014
Present: Ld. APP for State.
Convict produced from JC with LAC Sh. Sanjeev Kumar. At request of Ld. Counsel for convict, arguments on point of sentence are heard on the same day, considering the fact that the convict is in JC.
It is submitted by the Ld. Counsel for the convict that the convict is in JC in the present matter since the time of his arrest.
Thus it is prayed by the Ld. Counsel for convict that a lenient view be taken against the convict keeping in view his age and the fact that theft was with respect to a purse containing Rs. 230/-, PAN Card and ID Card and other documents.
On the contrary it is submitted by Ld. APP for the state that the convict was caught immediately after the incident, red handed by the victim/complainant.
Submissions heard. Record perused.
While sentencing the court has to look towards the aggravating and mitigating circumstances of the case.
In the present case in hand the convict is of young years of age. He is convicted for stealing a purse containing Rs. 230/-, PAN Card and ID Card and other documents, from the complainant. He is in custody in the present matter since 24.7.2013 and has not been released from custody since then. And thus he has remained in custody for a period for about Five months and nine days.
In view of the same keeping in view the value of the property stolen, the age of the convict, the chances of his getting reformed, the convict is sentenced to the period already undergone in custody. He be released from custody if not required in any other matter.
File be consigned to record room after necessary compliance.
(Neha Paliwal)
MM-03(E)/KKD/Delhi:2.1.2014
FIR No.398/13 State Vs. Manoj
10/09
FIR No.398/13 State Vs. Manoj
11/09
FIR No.398/13 State Vs. Manoj
12/09