Delhi District Court
State vs Rahul @ Goli & Anr. on 4 July, 2015
1
In the Court of Dig Vinay Singh : Additional Sessions Judge
Spl. Judge : NDPS (NW) : District Courts : Rohini : Delhi
SC No. 53/14
FIR No. 206/14
PS Mangol Puri
U/s 392/394/304(Part-II)/411/34 IPC
State Vs.Rahul @ Goli & Anr.
State
Versus
1)Rahul @ Goli
S/o Suresh Kumar
R/o H.No. S-776,
Mangol Puri, Delhi.
2)Ajeet Singh @ Mitu
S/o Jaswant Singh
R/o H.No. R-708,
Mangol Puri, Delhi.
Permanent Address : H.No. 242, New Basti,
Satwari Chowk,
Police Station Gandhi Nagar,
Distt. Jammu (J & K).
Date of receipt : 24.05.2014
Date of arguments : 30.06.2015
Date of announcement : 04.07.2015
SC no. 53/14 Page 1 of 25
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JUDGMENT
1. The above named two accused have been sent up for trial U/s 392/394/304(Part-II)/411 of IPC.
1.1 The facts of the case are that on 05.02.2014 complainant Bhirender came to Police Station Mangol Puri and gave a complaint in which he alleged that his brother Navin Sagar aged 36 years was doing a business of Navin Cable and his dead body was recovered from a drain near C-Block Public Toilet on 14.01.2014 at 7 AM. He came to know about the dead body of his brother Navin from someone. Thereafter, he along with his family members reached the place of recovery of body. Subsequently, on inquiry he learnt that deceased was seen roaming in the gali from which his body was recovered in the night intervening 13 &14.01.2014 and at that time deceased Navin was carrying one mobile phone make MAX with IMEI No. 911318100806698 and IMEI No. 911318100854698. It was a dual SIM mobile, therefore, it had two IMEI numbers. Deceased was also carrying one laptop make HP of golden colour and cash amount of Rs.14,000 - 15,000/- with him. But when his body was recovered in the morning of 14.01.2014, the above mentioned cash amount and articles were found missing. Complainant suspected that someone took away the articles of deceased. On this complaint, initially the case was registered U/s 379 of IPC only.
SC no. 53/14 Page 2 of 25 31.2 It may be mentioned here that this complaint was not the first complaint of the complainant. This complaint on which present case was registered was made on 05.02.2014 and FIR was registered on the same day. Whereas the incident occurred sometime in the midnight of 13th & 14th of January, 2014. Prior to this complaint also the complainant had lodged one complaint which does not find mention in the rukka or the supplementary statement of this witness. But during trial it came to be filed by the complainant as Ex. PW12/A. In the said complaint, which is hand written complaint given to the SHO received in the Police Station on 14.01.2014, what is mentioned is that deceased did not reach his house till 12.30 PM in the midnight and then his other spoke to the deceased who told his mother that he was working and would reach his house shortly. Deceased at that time informed his mother that he had collected some cash amount and had also purchased a new laptop. Thereafter, mother of deceased slept and in the morning she came to know about discovery of dead body of deceased. Upon learning that fact, mother of deceased along with some neighbours went to the spot, where it was found that the body of deceased was forcibly stuffed into a Nali and his body was smeared in blood. Body was taken out by the police and a cash amount of Rs.14,000-15,000/-, mobile phone and laptop of deceased were found missing. In that complaint specifically it was alleged that someone had taken SC no. 53/14 Page 3 of 25 4 away the cash amount as well as the articles, but for some reasons best known to the investigating agency no FIR was registered on the first initial complaint dtd. 14.01.2014. FIR was registered on the subsequent above mentioned complaint dtd. 05.02.2014.
1.3 Be that as it may, thereafter on 06.02.2014, after the lost mobile phone of the deceased was kept on surveillance and it was found that someone by the name of Rishi Prakash was using that mobile, police along with the complainant reached the house of Rishi Prakash at H.No. T-711, Mangol Puri, Delhi. The mobile phone of deceased was found in possession of Rishi Prakash. On being examined, Rishi Prakash told that he took the mobile phone from one Neeraj Kumar for sum of Rs.500/-. The mobile phone was taken into possession. Police and the complainant reached the house of Neeraj on that very day i.e. 06.02.2014. Neeraj informed that it was accused Rahul @ Goli who had sold that mobile for Rs.500/- and at the time of sale of mobile co-accused Ajeet @ Mitu was also present. Neeraj also stated that co- accused Ajeet @ Mitu was also present with Rahul at the time of sale of mobile and Mitu told Neeraj that Mitu had one laptop of HP of golden colour and he wanted to sell that laptop also. Both Rishi Prakash and Neeraj told that accused Rahul promised to deliver bill of mobile in few days but did not provide the bill. Thereafter, accused Mitu was arrested and from his house the stolen laptop of deceased was SC no. 53/14 Page 4 of 25 5 recovered. Subsequently, accused Rahul was arrested from Rohini Courts formally and his one day Police Custody was taken in which accused Rahul got recovered the purse of the deceased which was also taken into possession. The mobile phone was sold to Rishi Prakash by Rahul on 18.01.2014 i.e. about four days after the incident. During investigation, postmortem of the deceased was got conducted. In the postmortem, it was reported that the deceased died due to drowning. No external injury was noticed on the body of deceased. On completion of investigation, charge sheet was filed.
2. Accordingly, charge U/s 304(Part-II)/392/394/34 of IPC was framed against both the accused. In the alternative, charge U/s.411 of IPC was also framed against accused Rahul for being in possession of the mobile phone and purse of the deceased and against Ajeet for being in possession of the laptop of the deceased. Both the accused pleaded not guilty to the said charges and claimed trial.
3. In support of its case, prosecution examined total 22 witnesses.
3.1 The complainant Bhirender is examined as PW12. Rishi Prakash and Neeraj are examined as PW20 and PW21, respectively. Public witnesses Sunny and Amit who saw the deceased in the gali shortly before he died are examined as SC no. 53/14 Page 5 of 25 6 PW7 & PW8, respectively. Investigating Officer is examined as PW22 namely SI Robin Tyagi.
3.2 Other witnesses are more or less formal in nature.
3.3 PW1 HC Pawan Kumar proved DD No.7A dtd. 14.01.2014 as Ex. PW1/A. In the said DD, it is recorded that at 7.16 AM on 14.01.2014 body of deceased was discovered in the drain near public toilet, Mangol Puri. The said information was given to the PCR by someone from mobile no. 9211026892. The said mobile caller has not been examined in the present matter.
3.4 PW2 HC Hukmender was Duty Officer on 05.02.2014 who got the FIR registered and proved the FIR and endorsement on rukka as Ex. PW2/A & PW2/B. 3.5 PW3 ASI Ram Kumar and PW5 Ct. Sandeep were members of the mobile crime team which reached the spot and inspected the place of recovery of dead body. ASI Ram Kumar being Incharge of the crime team prepared his report Ex. PW3/A and Ct. Sandeep being photographer obtained 8 photographs of the body and the place of recovery which are proved as Ex. PW5/A1 to PW5/A8.
3.6 PW4 Ct. Navrang simply carried the viscera of the deceased preserved by the doctor from the malkhana to FSL on 07.02.2014.
SC no. 53/14 Page 6 of 25 73.7 PW6 Inspt. Mahesh Kumar was the Draftsman who prepared the scaled site plan of place of incident after measurement of the spot on 31.03.2014. The said scaled site plan is proved as Ex. PW6/A. It was prepared on 21.04.2014.
3.8 PW10 HC Sesan Singh was the MHC(M) of Police Station who proved deposition of two sealed parcels sealed with the seal of RT in the malkhana by SI Robin Tyagi on 07.02.2014 and who also proved deposition of one more sealed parcel in the malkhana by SI Robin Tyagi on 29.04.2014. This witness also deposed that on 01.05.2014 one sealed parcel was sent to Rohini Courts for TIP purposes and after the TIP purposes the sealed parcel was re-deposited in the malkhana by SI Robin Tyagi. The entries in the malkhana register are proved as Ex. PW10/A & PW10/B. 3.9 PW14 Ravinder Kumar simply identified the dead body of the deceased prior to his postmortem.
3.10 PW15 Pawan Singh from Idea Cellular Ltd. proved the customer application form and call detail records of the two mobile phones used by Rishi Prakash. The telephone numbers being 9210702139 & 7834890277 which were in the name of Jitender and Rishi Prakash, respectively. The CDRs of these mobile phones are proved as Ex. PW15/D and PW15/G, respectively.
SC no. 53/14 Page 7 of 25 83.11 PW16 Chander Shekhar, the Nodal Officer from Bharti Airtel Ltd. proved the customer application form and call detail records of the two mobile phones being used by the deceased vis. 8800655060 & 8800560090, both of which were in the name of mother of deceased namely Smt. Omwati Sagar. The CDRs of these two mobile phones for the relevant period are proved as Ex. PW16/G & PW16/H, respectively.
3.12 PW17 Dr. Manoj Dhingra proved the postmortem report of the deceased as Ex. PW17/A. The witness conducted postmortem and stated that cause of death of deceased was asphyxia as a result of drowning in water. He also deposed that there was no external injuries noticed on the body of deceased.
3.13 PW18 Sh. Ajay Nagar, Ld. Metropolitan Magistrate, proved that during TIP of the purse of deceased, got recovered by accused Rahul, the purse was correctly identified by the complainant Bhirender vide TIP proceedings Ex. PW18/A. 3.14 PW11 Ct. Ram Avtar and PW19 ASI Narender Singh both reached the place of recovery of dead body on 14.01.2014 upon receipt of DD No.7A. They deposed that body of deceased was taken out from the drain in front of H.No. 150, C-Block, Mangol Puri, near public toilets. There was no injury mark on the body of deceased. Crime team was called SC no. 53/14 Page 8 of 25 9 and the spot was got inspected. ASI Narender Singh recorded statement of Amit and statement of Sunny i.e. PW8 & 7, respectively, which are signed statement of these two witnesses, Ex. PW7/DA & PW8/DA. These two statements were recorded on 14.01.2014 i.e. even prior to the registration of FIR which was registered on 05.02.2014. Thereafter, the postmortem of the deceased was got conducted. After postmortem, viscera of the deceased was handed over by the doctor to ASI Narender which was taken into possession vide seizure memo Ex. PW11/A and subsequently the said viscera was sent to FSL on 07.02.2014.
3.15 PW9 HC Gurmail and PW22 SI Robin Tyagi deposed that on 06.02.2014 they along with complainant went to the house of Rishi Prakash after the mobile of deceased was found to be used by Rishi Prakash on surveillance of the mobile phone. Rishi Prakash met them and handed over the mobile of deceased. The mobile was identified by the complainant. Rishi Prakash then disclosed that he had purchased that mobile from one Neeraj for Rs. 500/-. Mobile was taken into possession after sealing it vide memo Ex.PW9/A. Thereafter, the police team and complainant went to the house of Neeraj located at Mangol Puri. On being enquired Neeraj informed that the mobile was sold by accused Rahul @ Goli. It was also disclosed that Ajit @ Mitu was also with accused Rahul at that time and also that Ajit SC no. 53/14 Page 9 of 25 10 @ Mitu had told Neeraj that he was in possession of one Laptop also which also he wanted to sell. Thereafter, police reached house of Ajit @ Mitu and from the house of Mitu, laptop of deceased was recovered which was taken into possession after identification by the complainant. Ajit was arrested in the present matter. It is also deposed by SI Robin Tyagi that subsequently accused Rahul was arrested and was taken on police remand. During police custody, accused Rahul got recovered the purse of the deceased on 29.04.2014. At the time of arrest of Rahul and recovery of purse, PW13 Ct. Gaurav was also there. The purse was got recovered by accused Rahul from bushes on the north side of railway station track at Mangol Puri. The wallet was of brown and black colour. During evidence complainant Bhirender PW12 identified all these articles in the court as Ex.P1 to P3 and claimed that those articles belonged to his deceased brother. PW12 also deposed that he came to know about the recovery of dead body of his brother and reached there but by the time the dead body had already been removed to the mortuary of the hospital. He then went to the police station on that very day and gave a complaint Ex.PW12/A which was received in the police station vide DD no. 29B. Subsequently, he again went to the police station on 5.02.2014 and lodged his complaint Ex.PW12/D on which present case was got registered. The witness also deposed that during investigation on 6.2.2014 he accompanied the SC no. 53/14 Page 10 of 25 11 investigating officer to the house of Rishi Prakash from where mobile of deceased was recovered. Rishi Prakash named Neeraj as the person from whom mobile was purchased. Then they went to the house of Neeraj. Neeraj named accused Rahul as the person who had sold the mobile in question. At that time, accused Ajit @ Mitu was also with Rahul. Thereafter, Ajit was arrested from his house and from his possession, laptop in question was recovered. The witness also deposed that he produced the carton box of the mobile phone which contained the IMEI numbers on 10.02.2014 and which was taken into possession by the investigating officer. The witness also deposed that he identified the purse of deceased during TIP proceedings.
3.16 PW21 Neeraj deposed that it was accused Rahul who on 18.1.2014 sold the mobile of deceased for a sum of Rs. 500/- and assured that he would bring the bill in 3 - 4 days. The said mobile was purchased by Rishi who wanted a mobile. The witness identified accused Rahul in the court as the same person and he also identified the mobile in question as Ex.P2.
3.17 Similarly, PW20 Rishi Prakash deposed that he purchased the mobile of deceased from PW21 Neeraj and on being asked about the bill, he was told that Neeraj would bring the bill from the boy who sold the mobile. Rishi also claimed that he purchased the mobile in question on 18.1.2014.
SC no. 53/14 Page 11 of 25 124. On completion of the prosecution evidence, all the incriminating evidence was put to the two accused in their statements U/s 313 Cr.P.C. Both the accused generally denied the evidence against them and claimed that they have been implicated falsely in the present matter. None of the two accused opted to lead any evidence in defence.
5. I have heard Ld. Counsels for the two accused and Ld. Prosecutor for the State.
6. A bare perusal of above discussed gist of evidence would reveal, that so far as charges U/s 304-II, Sec. 394 & Sec. 392 of IPC are concerned, there is no direct evidence against either of the accused qua those offences. Nobody saw the two accused in the company of the deceased at any time prior to his death. The testimony of PW7 Sunny and PW8 Amit at the most establishes that the deceased was seen in the gali at about midnight of the night intervening 13th & 14th of January, 2014. Their testimonies in the court also reveal that the deceased was speaking to someone on mobile phone and he was carrying a backpack, which purportedly was carrying the laptop of deceased. Even if testimonies of PW7 & PW8 are taken as unrebutted, at the most their testimonies establishes that the deceased was alive till about midnight of 13 & 14th January, 2014 and he was seen in the same gali in which his body was found. It appears that in the same gali the deceased had his office SC no. 53/14 Page 12 of 25 13 and after closing his office, the deceased was preparing to go to his house. Even if the testimonies of PW7 & PW8 are taken as unrebutted, that does not even remotely indicate anything against the two accused. The accused were not seen either with the deceased or even in the gali at or about the time when the deceased was seen alive in the gali in question. The call detail record of the deceased is proved as Ex.PW16/D & 16/H. The deceased was using the mobile with dual SIM card, therefore, he was using two mobile connection numbers 8800655060 & 8800560090, both of which were in the name of his mother. Perusal of the call detail records of mobile no. 880655060 would reveal that the deceased attended one call at 00:01:16 hours from one mobile no. 9810367771. That call lasted for 16 seconds and it was an incoming call. This was about the same time when PW7 & PW8 saw the deceased in the gali. Perusal of the call detail records of the second mobile no. 8800560090 of the deceased would show that at 01:51:48 hours and 01:51:51 hours, two missed calls were there on the mobile of deceased from mobile no. 9911369596. These facts would reveal that the death of deceased occurred some time after 12 in the midnight and prior to 1.51 AM, since, the deceased could not attend the last two mentioned calls. Yet the fact of the matter is that no one saw the two accused even near the deceased at the time of incident. There is no last seen SC no. 53/14 Page 13 of 25 14 evidence which can establish that the two accused were in the company of the deceased at the time of his death.
6.1 Perusal of post mortem report would reveal that there is no external injury noticed by the doctor on the body of deceased. The cause of death of deceased was asphyxia as a result of drowning. His body was recovered from inside a drain which had stagnant or flowing water.
6.2 It has also come in the evidence that deceased was drunk at the time of incident. PW7 deposed that deceased was drunk at the time. Similarly, PW8 Amit also deposed that the deceased was not only drunk but he was barely able to walk properly. Both these witnesses establish one fact that the deceased was drunk and was barely able to walk properly. It could well be a case where the deceased himself fell in that drain in the gali and later on drowned in inebriated condition.
6.3 In absence of any direct evidence or even circumstantial evidence that the two accused robbed the deceased or they caused death of deceased, both the accused deserves to be acquitted U/s 392/394 & Sec. 304-II of IPC. Merely because the two accused were found in possession of the mobile phone, the laptop or the purse of the deceased after the incident cannot establish that they robbed the deceased or they caused death of the deceased. Even if the other evidence of the prosecution is taken as unrebutted to the SC no. 53/14 Page 14 of 25 15 effect that accused Rahul sold mobile of the deceased to Neeraj or Rishi Prakash on 18.1.2014 or that accused Ajit @ Mitu was found in possession of laptop in February 2014 or that accused Rahul got recovered the purse of deceased in April 2014, the said fact cannot give rise to a presumption that the two accused robbed the deceased or caused his death. It cannot be ruled out that they either received those articles from someone else or they themselves removed those articles from the spot after the deceased fell and drowned in the drain.
6.4 Thus, so far as Sec. 392/394 & 304-II of IPC are concerned, there being no evidence at all, the two accused are acquitted of those charges.
7. Turning to the alternative charges U/s 411 of IPC, witnesses Rishi and Neeraj, both have categorically deposed that it was accused Rahul who sold the mobile in question on 18.1.2014. Neither of these two witnesses have any enmity with either of the accused. They have no plausible reason to falsely depose against the two accused. The accused have not come up with any reason as to why these two witnesses would falsely depose against the two accused. In the cross examination of these two witnesses, nothing material could be brought out in order to impeach their creditworthiness. Therefore, this court has no reason to doubt testimony of PW20 & 21 as to the fact that it was accused Rahul who sold SC no. 53/14 Page 15 of 25 16 the mobile in question four days after death of deceased. It has also come in the evidence of these two witnesses that accused Rahul promised to deliver the bill of mobile within few days of sale of mobile but he did not deliver any. That fact reveals that accused Rahul at least had reasons to believe that he was in possession of stolen property. Even if it is assumed that accused Rahul did not know that the mobile was a stolen property, and even if there is no evidence that Rahul himself stole the mobile phone of the deceased, yet, convincingly, knowledge can be attributed to him that he had reasons to believe it to be a stolen property. Rahul has not offered any explanation as to how he came in possession of the mobile phone of deceased. It is established beyond reasonable doubt that it was Rahul who sold the mobile to Neeraj or Rishi Prakash for the sum of Rs. 500/- four days after death of deceased.
7.1 Though in the previous statements of Sunny and Amit given to ASI Narender on 14.1.2014, Ex.PW7/DA and Ex.PW8/DA respectively, it is not mentioned that the deceased was carrying any back pack or bag containing laptop with him, but the absence of the said fact by itself cannot be a reason to doubt that the deceased was carrying a laptop at the time of his death. May be at the time of recording of statement of these witnesses they did not find it worth mentioning since at that time there was no suspicion against anyone. Said SC no. 53/14 Page 16 of 25 17 omission of the fact in their previous statement does not go to show that the deceased was not carrying the laptop.
7.2 In the statement Ex.PW8/DA, it is mentioned that deceased was talking to someone on mobile phone. The said fact establishes that the deceased was in possession of mobile phone at the relevant time. Though the call detail records of the mobile phone of deceased does not reveal that deceased talked to anybody at 12.30 PM, but then in the statement of these witnesses Sunny and Amit, they have mentioned the time by approximation and not precisely. Brother of deceased PW12 produced a carton container of the mobile phone in question which is proved is Ex.PW12/G. In the said carton both IMEI numbers of the mobile instrument are categorically mentioned. Though brother of deceased could not produce bill of the mobile of deceased but the said fact alone cannot be a reason to doubt that the deceased was using that mobile. In the mobile connections which were in the name of mother of deceased, the CDR reveals the same IMEI numbers. A lot many people do not keep the bills of mobile phones. The container carton reveals that the mobile in question was imported sometime in May 2013 i.e. more than six months prior to the incident. It may well be a case where even the deceased purchased this mobile in second hand from someone.
SC no. 53/14 Page 17 of 25 187.3 Merely because the two employees of the deceased and wife of deceased have not been examined as also mother of deceased has not been examined, is not a ground to disbelieve the fact that deceased was using the mobile instrument at the relevant time. Accused Rahul also does not explain that if the mobile was not of deceased, to whom it belonged and whether it belonged to Rahul or someone else. How he came into possession of that mobile is also not explained. From the evidence of PW12, it is reasonably clear that it was the deceased who was using the mobile instrument in question.
7.4 The testimonies of Rishi and Neeraj also gets corroborated from the fact that in the call detail records of the instrument in question were used by Rishi with two numbers i.e. 9210702139 and 7834890277, the CDR would reveal that this mobile instrument was used from 19.1.2014 and 18.1.2014 onwards, respectively, with the said two numbers as is revealed from CDRs Ex. PW15/D and Ex.PW15/G. It has come in the evidence that the last mentioned mobile number was in the name of Rishi Prakash himself whereas the earlier number being used by Rishi was in the name of Jitender. But both these numbers were used from the same instrument as is clear from IMEI number mentioned in the CDR. That fact corroborates the testimonies of Rishi and Neeraj that the instrument in question was delivered on 18.1.2014. Thus, this court has no doubt that accused Rahul SC no. 53/14 Page 18 of 25 19 was in possession of the mobile instrument of the deceased knowing or at least having reasons to believe that it was a stolen property.
7.5 It has also come in the evidence of PW13 Ct. Gaurav and PW22 SI Robin that during police custody on 29.04.2014 accused Rahul got recovered one purse of the deceased from bushes in a vacant ground towards northern side of Mangol Puri railway station at Mangol Puri Industrial area, Phase-1. The recovery memo of the purse is proved as Ex.PW13/C. Though no independent witness has been joined by the investigating agency at the time of recovery of the purse and though no independent witness was joined by the investigating officer at the time of disclosure statement Ex.PW13/B vide which the accused Rahul got recovered the purse in question, but that fact alone cannot be a reason to disbelieve the recovery at the instance of accused Rahul. The said purse was identified by PW12 Bhirender during TIP proceedings.
7.6 It is argued by accused Rahul that TIP proceedings of the purse conducted by PW18 Ld. Magistrate was defective since it is not mentioned specifically in the TIP proceedings that other purses were of similar colour, features and appearance and whether same letter 'S' was also written on the other similar purses. That contention cannot be given any weightage for the reason that PW18 was not cross SC no. 53/14 Page 19 of 25 20 examined at all on that aspect of the matter. Testimony of PW18 was left as unchallenged.
7.7 Merely because wife of deceased and employees of deceased were not examined to identify the purse can also not be a reason to doubt that the said purse belonged to the deceased. After all, PW12 Bhirender is brother of deceased and it is quite natural and obvious for him to have seen the purse of deceased. It is also established that accused Rahul got recovered a purse of deceased from Mangol Puri Industrial Area on 29.04.2014.
7.8 It has also come in the evidence of PW9, PW12 and PW22 that when they reached the house of accused Ajit, the laptop of deceased was got recovered by Ajit from his house. This court has no reason to doubt the testimonies of recovery witnesses on that aspect of the matter. There is no reason for these witnesses to depose against either of the accused. Accused Ajit did not explain as to how he came in possession of the said laptop. PW12 Bhirender deposed that from the contents of the laptop, after the files and folders were checked, he satisfied himself that it was the laptop of deceased. If the laptop in question was not of deceased, how Ajit @ Mitu was in possession of the said laptop and from where he brought that laptop is not explained at all. Merely because the bill of laptop could not be proved is not a reason to doubt that the laptop belonged to the deceased.
SC no. 53/14 Page 20 of 25 217.9 The contention of the two accused that there is a delay in lodging of the FIR has to be summarily rejected for the reason that it has come in the evidence of PW12 Bhirender that he had lodged the complaint on that very day when the body of deceased was recovered. Said complaint is proved as Ex.PW12/A. It bears stamp of concerned police station Mangol Puri with DD no. 29B dated 14.1.2014. It is a signed complaint of PW12 Bhirender. In this complaint itself, PW12 Bhirender mentioned that the deceased was having one mobile phone of MAX company, one laptop of HP Company of golden colour and, a cash amount of Rs. 14,000-15,000/-. The said complaint was lodged promptly. It is the police which did not register FIR timely, despite the fact that from that very complaint cognizable offence of commission of theft were revealed. Thus, it is not a case where the complaint itself was not lodged promptly. Therefore, this court cannot term the version of PW12 Bhirender as a concocted version or tutored version. He revealed the facts of the articles in his very first complaint. It appears that on being not satisfied as to the commission of cognizable offences, the police did not register FIR and proceed with the matter. Therefore, the delay in lodging of the FIR in the present matter is explained and it has not remained unexplained. The entire case of the prosecution therefore cannot be disbelieved for the reason of delay in FIR.
SC no. 53/14 Page 21 of 25 228 On behalf of accused persons reliance has been placed upon following eight cases, all of which are distinguishable on the facts & circumstances and are not applicable to the facts & circumstances of this case.
8.1 In the case of Drojan Singh Vs. State 2014 [1] JCC 628, the recovery was of currency notes and coin which had no special and distinct mark, whereas, in the present case the recovery is of identifiable mobile phone, laptop and purse of deceased.
8.2 In the case of Mohd. Shahid Vs. State 2014 [2] JCC 1305, the recovery of knife which was effected in absence of public witness was not proved beyond reasonable doubt and the knife was also not established to be a weapon of offence used in the commission of crime.
8.3 In the case of Gokal Vs. State 2009 [3] JCC 1914, the recovery was effected from the room which had already been accessed by the police and therefore, the recovery was held to be not believable.
8.4 In the case of Tejram Vs. State 2015 [1] JCC 181, there was no specific identification mark on the weapon of offence and it was considered improbable that the accused would retain the weapon of offence for two months after commission of crime despite the fact that the accused knew that FIR has been registered against them. On the other SC no. 53/14 Page 22 of 25 23 hand, in the present case, the FIR was registered only on 5.2.2014 i.e. one day prior to the recovery of laptop and mobile and which were also identifiable and therefore the case is distinct.
8.5 In the case of Kanhaiya Vs. State 2015 [2] JCC 859, different versions were forthcoming regarding the place from where the weapon of offence was recovered, which is not the case before this court.
8.6 In the case of Shahnaj Vs. State 2015 [1] JCC 3, material improvements were made in the deposition in the court and also the post mortem report alone was held to be insufficient to draw conclusion of guilt upon the accused.
8.7 In the case of State Vs. Sunil Kumar @ Sagar @ Rahul & Ors. 2015 [2] JCC 802, site plan was found to be a totally non-descript document, which is not the case before this court.
8.8 The case of Jagdish & anr. Vs. State of Rajasthan 2012(1) JCC (Narcotics), was a case of NDPS Act qua non- compliance of Sec. 42 NDPS Act and it is not applicable to the facts & circumstances of the present case.
9. The contention of the accused that the recovery witness i.e. brother of deceased should not be believed being interested has to be rejected out rightly. The complainant brother of SC no. 53/14 Page 23 of 25 24 deceased was accompanying the police officials to identify the mobile phones and the laptop and he witnessed the recovery. Merely because he was related to the deceased is not a ground to view his testimony with suspicion. Even if he was standing out of the house of Ajit @ Mitu and laptop was brought by the police from inside the house of Ajit @ Mitu, yet that fact would not create any doubt about the recovery, for the simple reason that laptop was recovered from the house of Ajit and Ajit was also present in the house at that time and Ajit did not explain any circumstance as to how he came into possession of the laptop.
10. The contention of accused that Omwati the mother of deceased has not been examined and the two mobile phones of the deceased were in the name of Omwati, and also the contention that the CDR after 14.1.2014 till 18.1.2014 have not been proved, has to be rejected. It is not uncommon that a family member uses the mobile phone in the name of another family member. There was no requirement to examine the registered owner of the mobile connection when from the IMEI number of the CDR, it was clear that the deceased was using that mobile. Non- availability of CDR between 14.1.2014 to 18.1.2014 could be for the simple reason that the mobile was not switched ON between those dates. It is the case of prosecution that mobile was sold to Rishi on 18.1.2014 and therefore Rishi started using the mobile from 18.1.2014 onwards.
SC no. 53/14 Page 24 of 25 2511. The contention that the CCTV footage of the ATM located near the place where dead body of deceased was recovered and non-examination of the guard of the concerned ATM is inconsequential, since, I have already observed that even otherwise there is no direct evidence to connect the two accused with the crime scene and the charges proved against the two accused are U/s 411 IPC only and not qua Sec. 304 or 392 or 394 of IPC.
12. Thus the prosecution proves its case that the two accused were found in possession of the articles belonging to the deceased and at least they knew or had the reasons to believe the same to be stolen property. Both the accused are therefore found guilty and convicted U/s 411 IPC.
13. The sum and substance of the above discussion is that both the accused are acquitted U/s 304-II/392/394 of IPC but are convicted U/s 411 IPC.
Announced in the open court on 04th day of July, 2015.
Dig Vinay Singh ASJ/Spl.Judge : NDPS(N-W) Rohini Courts/Delhi SC no. 53/14 Page 25 of 25