Delhi District Court
State vs . Ankush Kumar on 24 May, 2019
IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL
SESSIONS JUDGEII (CENTRAL): TIS HAZARI COURTS:
DELHI
Session Case No. 136/2018
Filing No. 959/2018
CRN No. DLCT010026512018
State Vs. Ankush Kumar
S/o Madan Pal
R/o H. No. B5/10, Bin Dayal Hospital
Complex, Hari Nagar,
Delhi
(CONVICTED)
FIR No.: 455/2017
Police Station: Kashmere Gate
Under Sections: 394/328/379/411/467/468/471 IPC and
Section 66 (D) IT Act
Date of Committal: 01.09.2012
Judgment Reserved on: 24.05.2019
Judgment Pronounced on: 24.05.2019
JUDGMENT:
(1) As per the allegations on 08.11.2017 at about 7:00 PM near Metro Gate No.1, Kashmere Gate, Delhi the accused Ankush Kumar administered some stupefying substance or some intoxicating/ unwholesome drug to the complainant Ankit Verma with intent to commit the offence of robbery of his camera make Nikon D5300 and lens and while committing robbery the accused voluntarily caused hurt State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 1 of 15 to the complainant. Further, as per the allegations, the accused committed theft of camera make Nikon D5300 and one lens from the possession of Ankit Verma and on 16.11.2017 at Bulvard Road, near Metro Gate No.3, Kashmere Gate, Delhi the accused was found in possession of the said camera and lens which he knew or have reasons to believe the same to be stolen property. Also, as per the allegations, on or before 16.11.2017 the accused forged the invoice No. BDN642 of Betterdeal Electronics Pvt. Ltd. purporting to be valuable security as receipt for delivery of Nikon Camera D5300 which he forged with an intention that it shall be used for the purpose of cheating and he used the said invoice knowing it to be a forged document. It is also alleged that before 16.11.2017 the accused Ankush Kumar created a false ID on OLX for cheating by impersonation and had offered the stolen camera for sale.
CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 10.11.2017 the complainant Ankit Verma had visited Police Station Kashmere Gate and gave his written complaint wherein he had alleged that on 08.11.2017 he had a word with a person called Rakesh Singh in respect of selling his camera Nikon D5300 with two lenses through OLX and they decided to meet to finalize a deal at Kashmere Gate Metro Station at 7:00 PM. According to the complainant, after showing him the camera and accessories, the said person started smoking a different kind of cigarette which caused a severe cough to him (complainant) upon State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 2 of 15 which the said person offered him a sip from freshly opened juice drink bottle (Minukz Maid Juice) and after having a few sips, he started feeling drowsy and fainted partly. The complainant further alleged that he forcefully puked but later on noticed that the said person Rakesh had disappeared along with his camera bag and while he had just a little senses left, he made a call at 100 number to get some help and when he regained consciousness, he found himself in Aruna Asaf Ali Hospital.
On the basis of the statement of Ankit Verma, the present FIR was registered and the investigations commenced. (3) On 16.11.2017 the complainant Ankit Verma informed the Investigating Officer that the said person Rakesh who had stolen his camera, was trying to sell the same through OLX by using a fake ID on which SI Ashok contacted the said person for purchasing the camera and asked him to come at Kashmere Gate Metro. Thereafter, SI Ashok along with the complainant Ankit Verma and a constable, reached Metro Gate no.3, Kashmere Gate where the said person also reached and the complainant had identified him as the same person who had robbed his camera after administering him stupefying substance. The said person was then apprehended who disclosed his real name as Ankush Kumar and from his possession the Nikon D5300 Camera belonging to the complainant was recovered, which he duly identified. From the possession of accused Ankush Kumar, a number of tablets were also recovered, which were duly seized. Thereafter, the accused Ankush was arrested in this case and after completion of investigations, charge sheet was filed in the Court.
State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 3 of 15 CHARGES:
(4) Pursuant to the order on charge dated 20.08.2018 passed by the Ld. Predecessor Court, charges under Section 328, 394 (alternatively under Section 397), 411, 467, 468, 471 Indian Penal Code and Section 66 (D) of the Information Technology Act, 2000 were settled against the accused to which they pleaded not guilty and claimed trial.
EVIDENCE:
(5) During the trial the prosecution has examined two witness whose testimonies are are put in a tabulated form as under:
S. Witness Deposition No. Public Witnesses
1. HC Mahender PW1 HC Mahender is the duty officer at P.S. Kashmere (PW1) Gate who in his examinationinchief has proved having recorded the FIR of the present case copy of which is Ex.PW1/A; certificate under Section 65B of Indian Evidence Act which is Ex.PW1/B and his endorsement on the rukka which is Ex.PW1/C. This witness has not been cross examined by the accused person despite grant of opportunity.
2. Sh. Ankit Verma PW2 Sh. Ankit Verma is the complainant/ victim in the (PW2) present case who in his examinationinchief has deposed on the following aspects :
1. That on 06.11.2017, he had posted an advertisement on OLX for sale of his camera make Nikon D5300 alongwith two lenses and other accessories alongwith the bag of the camera.
State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 4 of 15
2. That one person namely Rakesh Singh contacted him on the chat on OLX and stated that he was interested in buying the camera.
3. That they fixed the time of meeting at about 67 PM on 08.11.2017 at the gate no.1 of Kashmere Gate Metro Station.
4. That he reached at gate no.1 of Kashmere Gate Metro Station at about 66.30 p.m. on 08.11.2017.
5. That he received a call on his mobile phone from the said Rakesh Singh (accused Ankush correctly identified by the witness in the Court) and they managed to meet each other and he had shown the camera and other accessories to him.
6. That he (witness) offered to sell his camera for Rs.35,000/ and the accused tried to bargain with him but he refused.
7. That thereafter, the accused told him that he was carrying about 1520 thousand and that his sister was coming there alongwith rest of the amount and that they had to wait.
8. That accused started talking with him, took out a cigarette and started smoking the same due to which he (witness) started coughing on which the accused offered him one bottle of Minute Maid, orange pulp juice and when he drank the juice, he stated feeling drowsy and his visibility also become blurred.
9. That when he looked around, he found that his bag containing the camera alongwith the camera box were missing and the accused also fled away from the spot, however, he could see him going.
10. That he tried to raise his hands but could not. He also unable to raise his voice to call him.
11. That when he started feeling drowsy after drinking the juice, he took the photographs of the accused alongwith the bottle through his mobile phone.
12. That he put his finger inside his throat to puke out and he vomited and thereafter he called the police at 100 number.
13. That thereafter he became unconscious and regained his consciousness probably on the third day of the incident at Aruna Asaf Ali Hospital.
14. That he was discharged from the hospital and doctor had prescribed some medicines to him.
State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 5 of 15
15. That thereafter, he wrote a complaint, went to Police Station Kashmere Gate and handed over his complaint to the police which is Ex.PW2/A.
16. That he had shown the place of incident to the police and handed over the printout of the photographs of the accused taken by him through his mobile phone to the police.
17. That he has brought his said mobile phone containing the photographs of the accused and has opened the gallery of the mobile phone and had shown the photographs.
18. That the printout of the photographs are tallied with the photograph on the mobile phone and printout of the same are Ex.PW2/B.
19. That he alongwith police tried to search for the accused at Kashmere Gate Metro Station and CCTV footages were also checked but in vain.
20. That thereafter, when he was again searching the OLX site, he came across the photograph of his stolen camera on the ID of some other person who had shared his phone number on the said ID, pursuant to which he immediately went to the police and told this fact to them, thereafter the police contacted the same person.
21. That on 16.11.2017, he was called by the police at the PS in the night at about 77.30 p.m.
22. That the police had told him that they had contacted the said person through chat and that they had given their phone number to the said person.
23. That the said person contacted the police and meeting point was fixed at gate no.3 of Kashmere Gate Metro Station.
24. That he accompanied the police to the gate no.3 of Kashmere gate metro station where the accused was already standing there and he pointed out towards him and identified him as the same person who had stolen his camera.
25. That police apprehended the accused who was wearing the same cap at that time which he was wearing on 08.11.2017.
26. That upon his search, he was found in possession of his camera alongwith its bag and box of the camera which was kept by him in his backpack. State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 6 of 15
27. That the bag was found containing some strips of medicines/ tablets, out of which in one strip there were two tablets and rest strips were empty, the backpack was also found containing one box which is containing many tablets which were counted by the police.
28. That the backpack was also found containing one bill of his stolen camera, which bill was not genuine.
29. That as far as he remember the accused was also found carrying one mobile phone and probably he was also having one more mobile phone but he does not remember exactly.
30. That the seizure memo of the camera was prepared which is Ex.PW2/C, seizure memo of mobile phone was prepared which is Ex.PW2/D, seizure memo of bag/ backpack alongwith his cap, fake bill, strips of tablets, box of his camera containing ID card, CD's, booklet etc. which is Ex.PW2/E and seizure memo of tablets contained in the box which is Ex.PW2/F.
31. That arrest memo of the accused was prepared vide Ex.PW2/G and his personal search memo was conducted vide memo Ex.PW2/H.
32. That disclosure statement of the accused was recorded vide Ex.PW2/I, pointing out memo was prepared vide Ex.PW2/J and site plan of place of arrest was prepared vide Ex.PW2/K.
33. That later on he handed over the original bill of his camera to the police Ex.PX1 which was taken into possession by the police vide seizure memo Ex.PW2/L.
34. That later on, the DSLR Camera i.e. Nikon D5300 (Kit 1855 MM and 70300 MM Kit Lenses, Bag, Box and Accessories) had been released to him by the order of Ld. MM Sh. Abhilash Malhotra, dated 29.11.2017 which is Mark A.
35. That the four photographs of Camera and Accessories which were taken at the time of release and as per instructions of Ld. MM are Ex.PW2/M to Ex.PW2/P. State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 7 of 15 The witness has correctly identified the case property i.e. Camera i.e. Nikon D5300 (Kit 1855 Mm and 70300 MM Kit Lenses, Bag, Box and Accessories) which is Ex.P1 (colly); Motorolla Mobile Phone, bearing IMEI No. 358962060848982, Black Colour recovered from the possession of accused Ankush, which is Ex.P2; the container of Double Mint along with 69 white coloured which are Ex.P3 (Colly); one black colour bag which is Ex.P4; five empty strips of Lonazep which is are Ex.P5; one strip of Histakem 120 mg which is Ex.P6; one strip of four rows with 11 tablets of Cetcip which is Ex.P7; one bill of Dass Studio dated 05.08.2016 which is Ex.P8; one bill of Capital Photo Service Pvt. Ltd. Dated 24.08.2016 which is Ex.P9; one black colour cap which is Ex.P10; two mobile SIMs which are Ex.P11 (colly); one vaseline container which is Ex.P12 and a colgate tooth brush which is Ex.P13.
In his cross examination by the Ld. Counsel for the accused, the witness has deposed on the following aspects: That he had had registered himself on OLX and later on used the same I.D. to sell the Camera in question Ex.P1.
That he had produced the details to the IO regarding his advertisement on the OLX App/site.
That IO had obtained a screen shot of the same.
That IO of the case asked him to submit the mobile phone through which he had posted the advertisement.
That he had not deposited the said mobile phone to the IO.
That whenever IO had demanded, he had handed over phone to him.
That IO had not sent his mobile phone for FSL examination to verify the authenticity of the advertisement posted through mobile phone. That he had not handed over the ID details of the accused to the IO from where the accused had approached him to purchase the Camera Ex.P1.
State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 8 of 15 That he could not provide the details as per the system of OLX, the chats alongwith ID gets automatically deleted after certain days. That he had chatted with the accused on OLX site either on 07th or 08th of November, 2017. That he does not have any idea that after how many days the OLX site delete the chat history automatically.
That when he had chat with the user he did not disclose his name and mobile number and he had given an incorrect mobile number. That thereafter, when the user had called him on his mobile phone he had told his name as Rakesh Singh.
That he don't remember the mobile number from which he received the call but he had given the said mobile phone number to the police in his complaint.
That IO did not visit the OLX office with him to verify the fact regarding the chats between him and the accused.
That he did not obtain and handed over any information to the IO from OLX office regarding the chat between him and the accused.
That five pages of document containing chats which are Ex.PW2/DX1 (colly) shown to the witness who stated that he had not provided the same to the IO.
That he had not provided the call details of his prepaid mobile phone to the IO.
That invoice Ex.PX1 does not bear any seal impression and sign of the seller but this Camera was purchased online through Paytm and this bill is a computer generated invoice and does not require any stamp or signature which fact is also mentioned in the invoice under the column of terms.
That he had not visited alongwith the IO to the Paytm office to verify the invoice Ex.PX1. That he don't remember where the seizure memo Ex.PW2/E was prepared.
State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 9 of 15 That the recovered articles mentioned in the seizure memo Ex.PW2/E were not sealed in his presence but he had seen all these articles at the time of recovery.
That he does not remember whether the camera alongwith accessories Ex.P1 were seized at the same time in the bag alongwith the other articles or not.
That the photographs Ex.PW2/M to Ex.PW2/O were taken in the police station at the time of release.
That he had taken all these photographs from his mobile phone and handed over the physical photographs to the police officials as per the order of the Ld. MM.
That the court did not direct any specific person to click the photographs.
That he does not remember the exact mobile number from which he dialed 100 number since he was carrying two phones so either he had called from 9582113333 or 8802744463. That he does not remember whether IO had asked the call details of above mentioned mobile phone numbers from him or not.
That accused was arrested from Gate No. 3 of Kashmere Gate, Metro Station and at the time of arrest of accused, he was not accompanied by any family member.
That no other public person except himself had witnessed the arrest of the accused.
That he cannot tell if the Gate No.3 of Kashmere Gate, Metro Station is being surveillance by CCTV Camera or not.
That the CCTV footage were checked by the IO on the day of incident.
That in the midnight of 08/09.11.2017, he was got admitted in Aruna Asaf Ali Hospital by the police officials.
That the bottle shown in Ex.PW2/B was not provided by him to the IO.
That no advance or part payment was paid by the accused to him at the time of the offer/ negotiation.
State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 10 of 15 That accused did not pay any advance as he wanted first to see the item.
That he had visited first to the police station next day from the discharge of hospital and on that day, only his written complaint was received and thereafter, he visited 8 to 10 times P.S. Kashmere Gate but he does not remember the exact dates when he visited the police station.
That on 10.11.2017, when he visited the police station accused was not present in the Police Station.
That he cannot tell on which date he had informed to the police officials that the same model no. Camera's are uploaded on the OLX site for sale.
That the police had not opened and checked the OLX site in his presence to check the details of the uploaded Camera's.
That IO did not verify from the ID's at OLX site in his presence regarding uploaded advertisement same model number camera's. That after getting discharge from Aruna Asaf Ali Hospital, he did not take any medical treatment again pertaining to the said incident.
STATEMENT OF ACCUSED REGARDING PLEA OF GUILT:
(6) During the trial, when the matter was pending for recording the statement of remaining witnesses, the accused Ankush Kumar through his counsel Sh. Anuj Malhotra moved an application under Section 265B Cr.P.C. for recording his plea of guilt. The accused has been duly heard and explained the consequences of his plea of guilt.
The accused Ankush Kumar has submitted that he had filed this application voluntarily without any inducement, pressure or coercion of any kind and was aware of the consequences of the same. He submitted State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 11 of 15 that he is 12th pass and at the time of the incident he was doing Bachelor of Computer Applications but later he dropped out of the said course finding if difficult. He further submitted that he is a first time offender and is presently doing Diploma Course in BPO (Finance & Marketing) from IGNOU. He has also submitted that at the relevant point of time he was unemployed and out of desperation he had committed the present offence and undertakes that he will not repeat his conduct in future.
(7) Upon consideration of this application, the evidence of the prosecution was closed and the statement of the accused Ankush Kumar was recorded separately wherein the various incriminating evidence in the form of statement of the complainant Ankit Verma (PW2) was put to the accused, which he duly admitted. He has stated that his family is comprising of his parents and one married sister. According to the accused, his father is a government employee being an Operation Theater Technician in DDU Hospital. He has further stated that he had studied till 12th from Government Boys Senior Secondary School, Hari Nagar, Delhi and was initially doing BCA but dropped out as he found it to be a difficult course. He has also stated that he has no previous involvements and is a first time offender and he has committed the present offence out of desperation and he is extremely sorry for his conduct. According to the accused, he is in judicial custody for the last 18 months and has moved the application for pleading guilty which is Ex.C1 voluntarily of his own without any inducement, pressure or coercion of any kind and after understanding the contents of the same.
State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 12 of 15 He has prayed that a lenient view be taken and has undertaken not to repeat his conduct in future.
OBSERVATIONS & FINDINGS:
(8) I have given my careful consideration to the submissions made before me and to the evidence on record and also considered the plea of guilt of the accused recorded before me. At the very outset I may observe that the Ld. Predecessor of this court had framed an alternative charge under Section 394 along with the charge under Section 379 and 411 IPC. In this regard, I may observe that the accused has duly admitted having committed the theft of camera Nikon D5300 belonging to the complainant/ victim Ankit Verma (PW2) after administering stupefying substance to him which camera has been recovered from his possession. The accused Aankush Kumar is therefore held guilty of the offence under Section 328 and 379 read with 411 IPC being the person having committed the theft and being found in possession of the stolen property. Since the accused has held guilty of the provisions of Section 379 read with 411 IPC, hence the alternative charge settled under Section 394 IPC is hereby dropped. (9) In so far as the charges under Sections 467, 468 and 471 IPC are concerned, I may observe that the said charges were settled against the accused since he was found in possession of a forged invoice No. BDN642 of Betterdeal Electronics Pvt. Ltd. However, I may note that no report from the FSL regarding forgery has been obtained nor the Investigating Officer has cited any witness on this aspect. The accused State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 13 of 15 Ankush Kumar does not deny that he was found in possession of the said invoice and hence, under the given circumstances the provisions of Section 474 IPC (lesser offence) are made out and not Section 467, 468 and 471 IPC. The accused is therefore held guilty of the lesser offence under Section 474 Indian Penal Code (which provides that whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, if the document or electronic record is one of the description mentioned in section 466 of this Code, shall be punished with imprisonment of either description for a term which may extent to seven year, and shall also be liable to fine and if the document is one of the description mentioned in section 467, shall be punished with imprisonment for life, or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine).
(10) Now coming to the charges under Section 66 (D) of Information Technology Act, the allegations against the accused Ankush Kumar are that he had created fake ID on OLX site. However, there is no material on record whatsoever to prove the said allegations, nor any expert opinion has been obtained by the Investigating Officer with regard to the I.P. Address nor any witness has been cited to confirm the said allegations. The accused Ankush Kumar is, therefore, acquitted of the charge under Section 66 (D) of the Information Technology Act.
State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 14 of 15 CONCLUSONS:
(11) In the light of my aforesaid discussion, the accused Ankush Kumar is accordingly convicted for the offence under Sections 328, 379 read with 411 IPC and 474 Indian Penal Code.
(12) Be listed for arguments on sentence on 27.05.2019.
Digitally signed KAMINI by KAMINI LAU
LAU Date: 2019.05.24
18:14:24 +0530
Announced in the open court (Dr. KAMINI LAU)
Dated: 24.05.2019 Addl. Sessions JudgeII (Central),
Tis Hazari Courts, Delhi
State Vs. Ankush Kumar, FIR No. 455/2017, PS Kashmere Gate, Judgment dated 24.05.2019 Page No. 15 of 15