Delhi District Court
State vs Zikrur Rehman @Jigru Rehman on 28 July, 2016
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IN THE COURT OF MS.HEMANI MALHOTRA/SPECIAL JUDGE
(PC ACT)(ACB)/CENTRAL-05/TIS HAZARI COURTS/DELHI
Criminal Appeal No. 20/2016
FIR No. 56/04
P.S. Rajinder Nagar
Under Sections 411 IPC
State
Govt. of NCT of Delhi
(Through Public Prosecutor)
.....Appellant
Versus
Zikrur Rehman @Jigru Rehman
s/o Fazzal-ur-Rehman
R/o 1684, Gali Takhatwali,
Sulwalan, Chandani Mahal, Delhi ..... Respondent/accused
Date of Institution : 30.04.2016
Date of conclusion of final argument : 25.07.2016
Date of pronouncement of Judgment : 28.07.2016
JUDGMENT
1. Present criminal appeal has been preferred by the State against the impugned judgment of acquittal dated 03.02.2016 passed by learned MM in FIR No.56/04, PS Rajinder Nagar U/s 458/380/411IPC titled as State Vs. Jigru Rehman whereby the respondent/accused was acquitted.
2. The brief facts necessary for the disposal of the present criminal appeal as per the case of the prosecution are that complainant Ram Lakhan (PW1) gave his first information statement (Ex.PW1/A) to the police alleging that he was a Chowkidar at 11/5B, Taneja Building, Pusa Road, New Delhi and his working hours were from 8.00pm upto opening of Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 1 of 12 2 the shops. On 15.3.2004 when he came for his duty, he checked all the offices and the shops in the building. At about 2.00-2.30am in the intervening night of 15.3.2004 and 16.3.2004, he noticed some boys coming from the side of office of Hutch with some boxes in their hands. One of those boys put tape on his mouth while leaving the spot. Subsequently, when he checked the building, he noticed that a theft had taken place in the office of Hutch and Nokia.
3. On the basis of the first information statement (Ex.PW1/A) of the complainant Ram Lakhan (PW1) ruqqa (Ex.PW2/B) was prepared and FIR U/ss 458/380/34 IPC was registered. During investigation, IO SI Arvind Kumar (PW9) prepared site plan (Ex.PW4/A) at the instance of the complainant (PW1) and got the spot photographed. He also obtained the list of stolen articles including the IMEI Nos. of the stolen mobile phones which was seized vide seizure memo Ex.PW3/B. Thereafter, since the accused persons could not be traced, unrtrace report was filed by him and file was handed over to MHCR on account of his transfer.
4. Subsequently on 15.12.2004 at Bikaner Chowk, Gurudwara Road, Karol Bagh, respondent/accused was apprehended on suspicion by ASI UR Khan, HC Raju Yadav (PW8), Ct. Sunder Gautam and Ct. Naresh Kumar (PW7). On search of respondent/accused, one of the stolen mobile phones make Nokia (black and white color model 6600) with IMEI No.351546/00/418875/8 (last figure wrongly typed as B) without any SIM card was recovered. Thereafter the stolen mobile phone with IMEI No. 351546/00/418875/8 was seized and kalandara U/s 103 DP Act was prepared since accused/respondent failed to show any document qua Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 2 of 12 3 ownership of the said mobile. Respondent/accused was then arrested in FIR No. 56/2004, PS Rajender Nagar i.e. in the present case and charge U/s 411 IPC was framed against him by Learned MM to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution had examined 9 witnesses but the case of the prosecution signficantly depended upon the testimonies of PW1 Ram Lakhan (complainant in case FIR No.56/04) who proved his first information statement Ex.PW1/A, PW 3 Raj Kumar/ Accountant in Tele Mart Communication who handed over list of stolen mobiles (Ex.PW3/A running into 5 pages) to the IO , PW4 HC Ganga Ram who joined investigation with the IO/SI Arvind Kumar on 16.3.2004 regarding the theft at 11/5B, Pusa Road, PW9 SI Arvind Kumar/IO who reached the spot i.e. 11/5B, Pusa Road on 16.3.2004 alongwith HC Ganga Ram (PW4) on receipt of DD No.10A, PW7 Head Constable Naresh Kumar and PW8 ASI Raju Yadav who were witnesses to the recovery of mobile in question from the possession of the accused on 15.12.2004.
6. After completion of prosecution evidence, statement of respondent/accused was recorded U/s 313 Cr.P.C. wherein he denied allegations against him in toto and stated that he had been falsely implicated and that the case property had been planted upon him. Since respondent/accused did not opt to lead evidence in his defence, final arguments were heard and impugned judgment of acquittal was passed by Learned Trial Court which has been challenged before this Court vide the present appeal.
Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 3 of 12 47. It was argued by learned Addl. PP for the State that the learned MM failed to observe that the prosecution only had to prove that the recovered mobile phone from the possession of the accused/respondent was one of the mobile phones which was stolen in the intervening night of 15/16.3.2004 and the fact that IMEI no. of the recovered phone from the accused/respondent matched with IMEI no. of one of the stolen mobile phones was enough to convict him.
8. Per contra, it has been argued by learned counsel for the respondent/accused that the prosecution miserably failed to prove that any theft had taken place in the intervening night of 15.3.2004 and 16.3.2004 as the complainant Ram Lakhan/PW1 improved upon his statement in his examination in chief. Since he had improved upon his statement, his testimony was unreliable and as rightly held by the Learned Trial Court, prosecution failed to prove that any theft had taken place in the intervening night of 15/16.3.2004 of the alleged recovered mobile phone. He further contended that assuming for the sake of argument that any mobile phone bearing IMEI No.351546/00/418875/8 was recovered from the respondent/accused, the IMEI No. 351546/00/418875/8 did not match with the IMEI No. 351546004188758 of the mobile phone mentioned in the list (Ex.PW3/A) alleged to have stolen in intervening night of 15/16.3.2004.
9. Since, as per the defence, evidence of PW1 is untrustworthy and inconsistent, it is imperative to examine the testimony of PW1 Ram Lakhan in detail. PW1 had testified that at about 12.00 in the intervening night of 15/16.3.2004, 4-5 boys had apprehended him and had tied his hands and legs. Thereafter they had broken the lock of the Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 4 of 12 5 showroom and had forcibly taken out mobile phones etc. They had also threatened him that in case he would raise alarm, they would kill him. His cross examination reveals that no suggestion was put to him that no theft had taken place. Rather , it was suggested to him that no incident had taken place in his presence which he categorically denied. Regarding the alleged improvements in his testimony , these are not contradictions which go to the root of the case and same can be attributed to errors of memory due to lapse of time. In a case titled as Akbar Vs. State reported as 2009 Cri. LJ 4199, wherein the Hon'ble High Court has enumerated certain principles on appreciation of ocular evidence of a witness. The relevant portion is reproduced below:-
i.While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in cviw the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole ad evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
ii. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the genraql tenor of evidence given by the witness, the appellate court which had ot this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
iii.When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence.
iv.Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 5 of 12 6
v. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
vi. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
vii. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore can not be expected to be attuned to absorb the details.
viii. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
ix.By and large people can not accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
x. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one can not expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
xi. Ordinarily, a witness can not be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
xii. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill-up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
xiii. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. (These principles have been culled out from the decisions of Supreme Court reported as Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat 1983 Crl. LJ 1096, Leela Ram Vs. State of Haryana 1997 Crl.LJ 3178 and Tashildar Singh Vs. State of UP 1959 Crl. LJ 1231)."Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 6 of 12 7
10.Keeping in view the aforestated principles coupled with the fact that PW1 was examined almost five years after the incident, minor improvements are bound to creep in due to lapse of memory. PW1 Ram Lakhan essentially proved that theft did take place in the intervening night of 15/16.3.2004. I thus, find him to be a reliable and trustworthy witness.
11.The incident of theft was also corroborated by the testimonies of PW3 Raj Kumar, PW4 HC Ganga Ram and PW9 IO/SI Arvind Kumar. Both PW4 HC Ganga Ram and PW9 IO/SI Arvind Kumar testified that on 16.3.2004 they were posted at PS Rajinder Nagar. On that day on receipt of DD No10A regarding some theft at Pusa Road Delhi, they reached the spot where they found locks of the said office lying broken and articles of the said shop lying on the floor. PW9 SI Arvind Kumar got prepared the list of stolen articles and IMEI Nos of 108 mobile phones which he seized vide seizure memo Ex.PW3/B. Crime Team was also called to the spot which lifted the chance prints from the spot. It is pertinent to note that their testimonies were not challenged in the trial by the defence in any manner, thus their testimonies are deemed to be accepted by the accused Zikrur Rehman. Qua the list of stolen articles and IMEI Nos of 108 mobile phones which were stolen during the incident, prosecution had examined PW3 Raj Kumar , Accountant in Tele Mart Communication India Pvt. Ltd situated at 11/5B, Pusa Road , Delhi. He testified that in the month of March'2004, theft of mobile phones was committed in their office. On 2.4.2004, he had handed over a list of stolen mobiles (Ex.PW3/A running into five pages) to the IO which the Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 7 of 12 8 IO had seized vide seizure memo Ex.PW3/B. It is worth while to mention here that the list of stolen mobile phone also included mobile phone make Nokia bearing IMEI No. 351546004188758. Most importantly PW3 Raj Kumar, Accountant in Tele Mart Communication too was not cross examined by the respondent/accused which necessarily implies that his testimony was also unequivocally accepted by the respondent/accused. Hence, there is no manner of doubt that the prosecution successfully proved the fact that Nokia Phone bearing IMEI No. 351546/00/418875/8 was stolen in the intervening night of 15/16.3.2004.
12.So far as recovery of stolen mobile bearing IMEI No. 351546/00/418875/8 from the possession of respondent/accused is concerned, the prosecution had examined PW7 Head Constable Naresh Kumar and PW8 ASI Raju Yadav. Both of them had testified on the same lines. They testified that on 15.12.2004 they along with ASI U.R.Khan and Ct. Sunder Gautam were on patrolling duty in Karol Bagh area. At about 9.30 pm they saw the respondent/accused coming from the side of Gurudwara in a suspicious manner. When they signalled him to stop, he turned back and started running. They chased him and apprehended him. When he was casually searched, one mobile make Nokia 6600 without any SIM, black and white colour with IMEI No. 351546/00/418875/8 was recovered from his right hand. Since he could not give any satisfactorily reply regarding the ownership of the mobile phone, a Kalandra U/s 103 DP Act was prepared by ASI U.R.Khan and the mobile phone was deposited in the malkhana. Both PW7 and PW8 also correctly identified the recovered mobile phone from respondent/accused during their testimonies.
Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 8 of 12 913.It was vehemently argued by learned counsel for the accused/respondent that as per kalandra U/s 103 DP Act prepared by ASI U.R.Khan, the case property i.e. Nokia Mobile Phone make 6600 bearing IMEI No. 351546/00/418875/8 was sealed with the seal of UR. However, when the same was produced in the court, it was in an unsealed condition, hence it is evident that the case property has been tampered with. This recovery is therefore not only doubtful but clearly suspicious. To substantiate his argument, he has placed reliance upon a case titled as Rajbir Vs. State reported as 2014 (1) JCC 433. I am afraid that this judgment does not help the case of the defence as in the aforesaid case (supra), gunny bags containing certain metal scrap were produced in an unsealed condition. Whereas in the present case even if the mobile phone Nokia was produced in an unsealed condition, because of the fact that every mobile phone has a unique IMEI No, this will not make any difference . The bare perusal of kalandra U/s 103 DP Act prepared by ASI U.R.Khan reflects that mobile phone bearing IMEI No.35146/00/418875/8 was recovered from the respondent/accused. This IMEI No. matches the IMEI No. of the mobile phone make Nokia produced in the Court and therefore it does not lie in the mouth of the respondent/accused that the case property was in any manner tampered with. In State Vs. Mohd. Afzal & Ors reported as 2003 VII AD (Delhi) 1, a similar question was raised. In the said case, as per the evidence recorded, IMEI No. is fifteen digit number, the first six digits are type approval code which represents the manufacture of the handset. The next two digits are the assembly code which represent the model. The next six digits are serial number of the handset according to GSM specification number 3.03. First fourteen digits are significant and the Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 9 of 12 10 last digit according to GSM certification could be transmitted by the mobile number as zero or any other digit. IMEI code which corresponds to telephone number are assigned by telephone company and they are unique. Last digit is the spare digit. It was not possible for two handsets to have same first fourteen digit numbers. This evidence was accepted as legal evidence against the accused persons. Considering the acceptance of the evidence by the Hon'ble High Court of Delhi in the aforecited case (supra), it is not possible that the mobile set recovered from accused/respondent and the mobile set which was produced in the Court could have had same fifteen digits, if they were different mobile phones. The slash ( / ) put between the digits in the recovered mobile phone is not a digit but a mere separator and was inserted in my opinion to enable the reader to read the digits easily. Hence, I am of the considered view that the recovered hand set from the possession of the accused/respondent was same as the mobile set make Nokia 6600 bearing IMEI No. No.351546004188758 stolen in the intervening night of 15/16.3.2004.
14.In view of the aforesaid discussion, I am of the opinion that the prosecution successfully brought home the guilt of the accused Zikrur Rehman @ Jigru Rehman for commission of offence punishable U/s 411 IPC. Appeal of the State is accordingly allowed and impugned order of acquittal dated 3.2.2016 stands set aside. Accused/Respondent is convicted U/s 411 IPC accordingly. He shall be heard separately on the point of sentence today itself.
Announced and signed in the
open Court on 28.07.2016 (HEMANI MALHOTRA)
Special Judge(PC Act)(ACB)(C)-05,
Tis Hazari Courts, Delhi
Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 10 of 12
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IN THE COURT OF MS.HEMANI MALHOTRA/SPECIAL JUDGE (PC ACT)(ACB)/CENTRAL-05/TIS HAZARI COURTS/DELHI Criminal Appeal No. 20/2016 FIR No. 56/04 P.S. Rajinder Nagar Under Sections 411 IPC State Govt. of NCT of Delhi (Through Public Prosecutor) .....Appellant Versus Zikru Rehman @ Jigru Rehman S/o Fazzal-ur-Rehman R/o 1684, Gali Takhatwali, Sulwalan, Chandani Mahal, Delhi ..... Convict ORDER ON SENTENCE
1. Vide judgment on appeal announced today , appeal of the State was allowed and impugned judgment of acquittal dated 3.2.2016 was set aside. Accused/Respondent was found guilty for commission of offence punishable U/s 411 IPC and he was convicted accordingly.
2. I have heard submissions of Learned Counsel for convict and that of Learned Addl. PP for the State on the point of sentence. I have also perused the Trial Court Record with utmost care.
3. It is argued on behalf of convict that lenient view be taken as convict is the sole bread earner in his family comprising of his two children of tender age, his wife and old ailing parents. It is further Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 11 of 12 12 submitted that convict may be released for the period already undergone by him.
4. Per contra, it is argued on behalf of the State by learned Addl. PP for the State that maximum sentence be awarded to the convict .
5. Considering the fact that convict has been facing trial since 2004 coupled with the fact that he remained in J/c in this case for 25 days, lenient view is taken and convict is sentenced to undergo for the period already undergone by him. Convict is also sentenced to pay a fine of Rs.3,000/- I/D to undergo SI for 1 months.
Announced and signed in the open Court on 28.7.2016 (HEMANI MALHOTRA) Special Judge(PC Act)(ACB)(C)-05, Tis Hazari Courts, Delhi Criminal Appeal No. 20/16 State Vs. Zikrur Rehman @ Jigru Rehman Page 12 of 12