Delhi District Court
3.Title State vs . Ram Kumar @ Monga on 20 May, 2015
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE03, EAST
KARKARDOOMA COURTS : DELHI
1.FIR No. 434/2013
2.Unique Case ID No. 02401R0332382013
3.Title State Vs. Ram Kumar @ Monga
3(A).Name of complainant Sh. Murli Mukhiya S/o Sh. Bhagwat
Mukhiya R/o Gali No. 14, Saket
Block, Mandawali, Delhi.
3(B).Name of accused Ram Kumar @ Monga S/o Sh. Brij
Lal R/o Dharampal ka Makan, Saket
Block, Gali No. 14, Mandawali,
Delhi.
4.Date of institution of challan 11.10.2013
5.Date of Reserving judgment Not reserved. Pronounced on the
same day.
6.Date of pronouncement 20.05.2015
7.Date of commission of offence 16.08.2013
8.Offence complained of Under Section 380 IPC
9.Offence charged with Under Section 380 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Accused is acquitted for the offence
Punishable U/s 380 IPC.
FIR No. 434/2013 State Vs Ram Kumar @ Monga 1of13
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. In the present matter the State machinery was brought to motion by the registration of FIR bearing no. 434/2013 in PS Mandawali. The facts in brief as per prosecution are that on 16.08.2013 at around 2.30 am, at the house of Dharampal, Gali No. 3, Saket Block, Mandawali, Delhi, within the jurisdiction of PS Mandawali, the accused committed theft of China Mobile Phone containing SIM bearing number 9560229882 and Nokia Mobile Phone containing SIM bearing number 8757572474. The said mobile phones with the said SIM numbers belong to complainant Murli Mukhiya and his wife respectively. The accused was apprehended by the complainant by chasing him. However, both the mobile phones were thrown by the accused in a dirty drain in front of the complainant. Thus it is the case of the prosecution that accused has committed offence of theft of mobile phone from the house of the complainant.
2. In the present matter charge sheet was filed by the IO before the Court on 11.10.2013. Cognizance for the offence was taken on the very same day and copy of documents were also supplied to the accused free of cost U/s 207 Cr.P.C. After hearing parties, charge for the offence punishable u/s 380 IPC was framed against the FIR No. 434/2013 State Vs Ram Kumar @ Monga 2of13 accused on 25.10.2013, to which he pleaded not guilty and claimed trial.
3. Thereafter, matter was fixed for prosecution evidence. Prosecution in order to prove its case against the accused in total has examined as many as eight witnesses.
4. PW1 HC Shamsher Ali is the Duty Officer. He had proved before the Court that the registration of FIR bearing no. 434/13 Ex. PW1/A (OSR) and the endorsement on rukka Ex. PW1/B. He has also proved the lodging of DD Entry No. 7A dated 16.08.2013 Ex. PW1/C. The said DD Entry is regarding apprehension of thief.
5. PW2 Sh. Murli Mukhiya is the complainant of the present matter. He has deposed that on 15.08.2013 at about 2.30 am he was sleeping in his house i.e. Room No. 8, Gali No. 3, Saket Block, Mandawali. After hearing noise he got up and saw that the accused was taking his mobile phone from the Almirah. He raised the alarm and chased him and apprehended him. However, the accused threw his mobile phones in a drain. Thereafter, he called at 100 no., Police officials reached and they shifted the accused to LBS Hospital. His statement Ex. PW2/A was recorded by the IO. Accused was arrested and was personally searched in his presence vide memos Ex. PW2/B and Ex.PW2/C respectively. The witness FIR No. 434/2013 State Vs Ram Kumar @ Monga 3of13 correctly identified the accused before the Court.
6. In his cross examination, the complainant admitted that he knew the accused previously for last 23 years as the accused is residing in the same vicinity near his house. He admitted that the door of his room was locked from inside, however, deposed that accused has broken the lock/handle of the door, though he had not heard any noise of breaking of the lock/handle. It was further deposed that no documents were prepared at the spot and the statement of any other persons was not recorded in his presence. No public person was enquired by the police in his presence. The witness admitted that no mobile phone was recovered from the possession of the accused. It was further deposed that he had not given any proof of ownership of mobile phone to the IO as he did not have the bill of the stolen mobile phones.
7. PW8 Smt. Manju Devi is the wife of the complainant. She has deposed that two mobile phones were stolen from her house at around 12.00 am midnight. Her husband ran after the team who had stolen the mobile phones. The thief was apprehended by the public persons. Police was called which took the thief to the PS.
8. PW3 SI Om Prakash is the IO of the present matter and has deposed that on 16.08.2013 on the receipt of DD no. 7A he FIR No. 434/2013 State Vs Ram Kumar @ Monga 4of13 alongwith Ct. Ram Singh reached at the spot. The complainant met him. Thereafter, he alongwith the complainant reached at the hospital where the accused was getting treatment. He recorded the statement of the complainant, prepared rukka, got the case registered through Ct. Ram Singh. He prepared site plan Ex. PW3/B at the instance of the complainant. He arrested the accused and conducted his personal search. It was further deposed by him that he tried to search the mobile phone in the drain, however, could not succeed. He identified the accused before the Court. In his cross examination, it was deposed by the witness that the distance between the Naala (Drain) and the main gate of the building would be about 50 feet and the width of the drain would be about 1 feet and it was about 2 feet deep. It was further deposed by him that the complainant had not told him regarding the breaking of the locks of the door.
9. PW5 HC Ajay Kumar has proved before the Court that the PCR Call Entry regarding apprehension of thief Ex. PW5/A.
10. PW6 SI Prem Pal Singh is the second IO of the present matter. He has deposed that he had sent the request for getting the call detail record of mobile numbers 9560229882 and 8757572474. Both the numbers were in the name of the complainant. In his cross FIR No. 434/2013 State Vs Ram Kumar @ Monga 5of13 examination, it was deposed by him that he had not asked the complainant as to whether he had purchased a new SIM on the same number. No enquiry was made by him from the company in this regard.
11. PW7 Ct. Ram Singh is the witness of investigation. He has deposed on the same lines as that of IO/SI Om Prakash. He has further deposed that the mobile phone was searched inside the Naala, however, due to heavy rain the said mobile phone could not be recovered. In his cross examination, it was deposed by him that public persons have searched for the mobile in the drain.
12. PW4 Sh. Deepak Handa is the Nodal Officer, Bharti Airtel Ltd. He had brought before the court the ownership proof of mobile no. 9560229882 and 8757572474 and has stated that both these numbers were issued in the name of complainant Sh. Murli Mukhiya. The documents showing the ownership proof were Ex. PW4/A and Ex. PW4/B. He also deposed that he has got the call details of the numbers for the period 14.08.2013 to 17.08.2013 Ex. PW4/C and Ex. PW4/D1 and Ex. PW4/D2 and the certificate u/s 65 B of the Indian Evidence Act with respect to the same is Ex. PW4/E. In his cross examination, it was deposed by the witness that as per the call records of mobile no. 8757572474 and FIR No. 434/2013 State Vs Ram Kumar @ Monga 6of13 9560229882 the SIM (IMSI Number) is same on 14.08.2013 and 17.08.2013. He admitted that if a new SIM is issued the IMSI Number would change and as per the call record no new SIM was issued.
13. As it was submitted by Ld. APP for State that all the prosecution witnesses have been examined, prosecution evidence was closed in the present case vide order of the Court dated 21.11.2014. Thereafter, the matter was fixed for statement of accused. At the stage of statement of accused, as some clarification was required with respect to the deposition regarding the call details PW4 was called again.
14. Statement of accused was recorded before the Court on 20.05.2015 u/s 281 r/w 313 Cr.P.C. wherein all the incriminating material on record was put to the accused person. It was submitted by the accused that he is innocent and has been falsely implicated in the present matter by the complainant. The complainant has implicated him in connivance with the father of the girl with whom he was having in affair. It was further submitted by him that he was also beaten up by the family members of the girl and was therefore, taken to LBS Hospital and in order to save themselves the family members in connivance with the complainant have falsely FIR No. 434/2013 State Vs Ram Kumar @ Monga 7of13 implicated him in the present matter.
15. 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.
16. I have heard the arguments as advanced by Ld. APP for the State and the Ld. Legal Aid Counsel for the accused person.
17. 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.
18. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the 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 FIR No. 434/2013 State Vs Ram Kumar @ Monga 8of13 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".
19. 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.
20. The accused person in the present case has been charged for the offence punishable U/s 380 IPC which prescribes punishment for the offence of theft committed in dwelling house. Section 378 IPC defines theft as per which if a person intends to take dishonestly any movable property out of the possession of any other person without that person's consent and moves that property in order to such taking he is said to commit theft.
21. Thus intention is the gist of the offence and in order to constitute the offence of committing theft, the prosecution has to prove that there was an dishonest intention on the part of accused to take the movable property of the complainant out of the possession of the complainant without his consent and the accused has moved that property in order to such taking.
FIR No. 434/2013 State Vs Ram Kumar @ Monga 9of13
22. In the present matter the complainant PW2 Sh. Murli Mukhiya has deposed that accused had committed theft of his mobile phones containing SIM No. 9560229882 and 8757572474 from the almirah of his house at 2.30 a.m. in the night. He has chased the accused and has apprehended him, however, the accused threw the mobile phones in the drain and the mobile phones could not be recovered. It is deposed by the IO/PW3 as well that efforts were made to trace the mobile phones from the drain but the mobile phones could not found and the width of the Naala was about 1 feet and it was about 2 feet deep. It was deposed by PW7 Ct. Ram Singh that the mobile phones were searched inside the Naala, however, due to heavy rain the phones could not be recovered. Thus, it is coming out from the deposition of all the prosecution witnesses that the mobile phones containing the above mentioned SIM numbers were thrown by the accused in the drain and were not recovered. It is further coming out in the deposition of the complainant that at the time when the said mobile phones were stolen, they were containing the above mentioned SIM numbers.
23. However, it is coming in the deposition of PW4 Sh. Deepak Handa, Nodal Officer, Bharti Airtel Ltd., who was cited as a witness by the prosecution in order to establish the ownership of FIR No. 434/2013 State Vs Ram Kumar @ Monga 10of13 the SIM numbers that these SIM numbers were on use from 14.08.2013 to 17.08.2013. The documents exhibited in his evidence i.e. Ex. PW4/C and Ex. PW4/D1 and D2 coupled with Ex. CW4/E which is a certificate u/s 65 B of Indian Evidence Act, show that the above mentioned SIM numbers were in use on 14, 15 and 17 August, 2013. The IMSI Number of the SIMs remaining the same during the entire period. In his cross examination, it was admitted by the witness that if a new SIM would be issued by the company even with respect to the same number then also the IMSI Number of the SIM would change. It was further that in the present case the IMSI Number of both the SIMs have not changed from 14.08.2013 till 17.08.2013.
24. The incident is complained to be of 2.30 a.m. on 16.08.2013. If the mobile phones containing the above mentioned SIM Numbers were thrown in the drain then those very SIM Cards containing the said IMSI Numbers could not have been operational on 17.08.2013. The very fact that the Original SIM Cards which were complained to be stolen were operational on 17.08.2013 established before the Court that the mobile phones of the complainant were not stolen in the present matter and the mobile phones containing the said SIM Cards were very much in the FIR No. 434/2013 State Vs Ram Kumar @ Monga 11of13 possession of the complainant on 17.08.2013 also.
25. Therefore, there is no moving of mobile phones of the complainant out of his possession of the accused.
26. Further it is admitted by the complainant that he knew accused for the past 23 years and accused resides in his neighbourhood. The addresses of both complainant and accused also reflects the same.
27. In view of the above said findings the false implication of accused in the present matter by the complainant cannot be ruled out.
28. In view of the same, the ingredients for the offence U/s 380 IPC are not made out in the present matter and by virtue of the deposition of the prosecution witnesses itself, it has been established before the Court that the accused has not committed the offence of theft of mobile phones from dwelling house i.e. the house of the complainant.
29. The prosecution has failed to prove the commission of the offence by the accused before the Court beyond shadow of all reasonable doubts and the only finding which acn be given with respect to the accused is that of not guilty.
30. Accordingly, accused Ram Kumar @ Monga is acquitted for FIR No. 434/2013 State Vs Ram Kumar @ Monga 12of13 the offence U/s 380 IPC in the present case. Let he be released from custody if not required in any other case.
31. As the accused is coming from custody in some other matter and it is submitted by him that he has no surety in his favour, personal bond accepted for a period of next 6 months for the purpose of section 437 A Cr.P.C.
32. File be consigned to record room after due compliance.
Announced in the (Neha Paliwal)
Open Court on 20.5.2015 Metropolitan Magistrate03
KKD,Delhi
It is certified that this judgment contains 13 pages and each page bears my signature.
Neha Paliwal) Metropolitan Magistrate03 KKD,Delhi/20.5.2015 FIR No. 434/2013 State Vs Ram Kumar @ Monga 13of13 FIR No. 434/2013 State Vs Ram Kumar @ Monga 14of13 FIR No. 434/2013 State Vs Ram Kumar @ Monga 15of13