Delhi District Court
State vs . Pawan Giri on 30 June, 2021
In the Court of Ms. Shefali Barnala Tandon,
Additional Chief Metropolitan Magistrate (West),
Tis Hazari Courts, Delhi
FIR No. 613/2015
Under Section : 392/411 IPC & 103 DP Act.
PS : Patel Nagar
State Vs. Pawan Giri
JUDGMENT
1. CIS number of the case : 60022 of 2016
2. The date of commission of offence : 08.08.2015
3. The name of the complainant : Ms. Kritika
4. The name and address of accused : Pawan Giri
S/o Shri Vinod Giri
R/o H. No. 2921/44, Beadon Pura,
Karol Bagh, Delhi.
5. Offence under which charge has been : 392 IPC & Section 103 DP Act
framed
6. The plea of accused : Pleaded not guilty
7. Final Order : Convicted of charge under
Section 392 IPC and Section
103 DP Act
Date of Institution : 07.10.2015
Judgment reserved on : 14.06.2021
Judgment announced on : 30.06.2021
JUDGEMENT
1. The factual antecedents which the prosecution unfolded is that on 08.08.2015 at about 2:00 p.m., while the complainant was returning home FIR No. 613/2015 1 of 15 State Vs. Pawan Giri after giving the tuitions and reached near her house, one person came from behind on his motorcycle and snatched her mobile Make Samsung Grand Prime from her right hand. She caught hold that person with his t-shirt, who took off his helmet and hit her on her face but she did not leave the t-shirt. The entire incident was witnessed by her mother, who was standing on the second floor of their house and raised alarm for help. In the meanwhile, one neighbour Aakaash came to the spot and took out keys of the motorcycle and handed over the phone mobile phone lying on the head light of the motorcycle. That person chased Aakash to hit him but he was apprehended by some persons, who came to the spot on hearing the cries. The complainant called at 100 number and police came to the spot. The complainant handed over the phone to police officials. The person apprehended and his motorcycle were also handed over to police officials. That person disclosed his name as Pawan Giri. Statement of complainant was recorded and an FIR was registered for the offence punishable under Section 392/411 of the Indian Penal Code (hereinafter referred to as 'IPC') .
2. On completion of the investigation, charge-sheet was filed against the accused. Vide order dated 07.11.2015, charge for the offence punishable under Section 392 of IPC and Section 103 DP Act was framed against the accused to which he pleaded not guilty and claimed trial.
FIR No. 613/2015 2 of 15
State Vs. Pawan Giri
3. In order to substantiate its case, the prosecution examined eight witnesses in all. Relevant parts of their testimonies are reproduced hereinbelow.
Ms. Kritika, the complainant was examined as PW-1 and deposed that on 08.08.2015 at about 2:00 p.m., while she was returning home after giving tuition on foot, one person came riding a bike from behind and snatched her mobile phone. She caught hold of that person from collar and shouted for help, while her mother was watching the entire incident from their balcony. Then she tried to push that person from bike. Her friend cum neighbour Aakash reached the spot and on her asking, Aakash took her mobile from that person and handed over to her. On this that motorcyclist took out his helmet and gave blow to her with it. Her friend took the keys of the bike and ran away. That person followed him but he was caught by some other persons. Meanwhile, she called the police and police came to the spot and took that person to police station. The witness proved her statement as Ex.PW1/A, site plan as Ex.PW1/B prepared at her instance, seizure of her mobile Ex.PW1/C, seizure of motorcycle and helmet of accused Ex.PW1/D and Ex.PW1/E respectively, seizure of keys of motorcycle Ex.PW1/F. The complainant correctly identified the accused and the case property as well in Court.
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State Vs. Pawan Giri
During cross examination, this witness stated that accused did not try to run away from the spot.
4. Ms. Jyoti Mehta, mother of the complainant/ eye witness was examined PW-2, who deposed that on 08.08.2015 at about 2:00 p.m., she was standing in balcony and waiting for her daughter to return from her tutitions. After sometime she saw her daughter walking towards the house, however one person came on a bike and her snatched the mobile phone of her daughter. Her daughter caught hold of that person from his collar and raised alarm for help. One neighbour namely Aakash reached at the spot on hearing the alarm raised by her daughter, caught hold of accused and took the mobile phone from his possession. Aakash managed to remove the keys of the bike and ran away. Accused chased him to get the keys but he was apprehended by some public persons present near the spot. She also came down and reached the spot. Her daughter called the police and police reached at the spot and custody of accused was handed over to the police. On inquiry, accused disclosed his name as Pawan Giri. Police seized the mobile phone of her daughter and motorcycle of the accused. Her statement was recorded by the police and collected the ownership documents of the mobile phone which was in her name and used by her daughter . She correctly identified the accused and case property in Court.
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State Vs. Pawan Giri
5. Shri Aakash Chabra/ Eye witness was examined as PW-3 and deposed on 08.08.2015 at about 2:00 p.m., he was at his home and heard some noise from outside to which he came out and saw that one of his neighbour Kritika was shouting for help and she was trying to apprehend one motorcyclist by holding his shirt and the motorcyclist was hitting her with his helmet to get ride off her. He immediately rushed to help her and took the key of motorcycle and apprehended him. He further deposed that Kritika narrated him entire incident that after snatching the phone, he was trying to ran away. He took the phone phone kept over the head light space on the motorcycle and handed over to Kritika. The motorcyclist tried to take keys of motorcycle but by that time some public persons gathered and overpowered him. Someone called the police and police arrived at the spot. He handed over the keys of motorcycle to Kritika and left the spot. His statement was recorded by the police officials. He correctly identified the accused and case property in Court.
Despite opportunity given he was not examined by the defence.
6. SI Pramod KumarB/Investigating Officer was examined as PW-4 and deposed that on 08.08.2015 at about 2:30 p.m., on receipt of DD No. 20A, he along with Ct Ravinder went to the spot i.e. 20/58, West Patel Nagar, Delhi, where they met complainant Ms. Kritika, who narranted that one motorcyclist was trying to flee away from the spot after snatching her FIR No. 613/2015 5 of 15 State Vs. Pawan Giri mobile but was apprehended with the help of public persons. That person, who was apprehended by the public person was handed over to him, who discosed his name as Pawan Giri and one mobile phone was also handed over to him. Thereafter, he recorded the statement of complainant Ex.PW1/A and after making endorsement handed over to Ct. Ravider to registration of FIR. In the meanwhile, he prepared the site plan Ex.PW1/B at the instance of complainant. After sometime, Ct. Ravinder came to the spot along with copy of FIR and original rukka. Accused was arrested vide memo Ex.PW4/B and his personal search was conducted vide memo Ex.PW4/C and his disclosed statement Ex.PW4/D was recorded. Helmet and motorcycle of the accused were seized vide memo Ex. PW1/D and Ex.PW1/E respectively. The complainant handed over the keys of motorcycle and her mobile phone to him which was seized vide memo Ex.PW1/F & Ex.PW1/C respectively. He further deposed that he also recovered two mobile phones Make Motorola and Sony from the possession of accused and the same were seized vide memo Ex.PW5/A. He recorded the statements of mother of complainant and Aakash Chabra. Accused was taken to police station and case property was deposited in the malkhana with MHC(M). He further deposed that on verification, the motorcycle was found registered in the name of accused. He also obtained the CDR and CAF of mobile phone make Samsung and annexed it with case file. The FIR No. 613/2015 6 of 15 State Vs. Pawan Giri witness correctly identified the accused and the case property.
During cross examination, he stated that he inquired from the neighbourers about the incident but they refused to tell anything stating that they had not seen any incident. He checked regarding installation of CCTV Camera at or near the spot, however, no CCTV Camera was found to be installed. He further stated that he cannot tell whether witness Aakash Chabra was present at the spot on 08.08.2015.
7. Ct. Ravinder was examined as PW-5, who deposed on the same lines of the I.O. that on 08.08.2015, on receipt of DD No. 20A regarding apprehension of a thief, he along with SI Pramod Kumar went to the spot i.e. 20/58, West Patel Nagar where they met the complainant namely Kritika, who narrated the incident that accused was trying to run away from the spot after robbing her mobile phone and he was apprehended at the spot with the help of public persons. The accused was handed over to them and on inquiry, accused disclosed his name as 'Pawan Giri' and on search robbed mobile phone along with two other mobiles were recovered from the possession of accused. He further deposed that IO recorded the statement of the complainant and handed over the tehrir to him for registration of FIR. He went to police station and returned to the spot along with copy of FIR and original tehrir. IO prepared the site plan at the instance of complainant and accused was arrested vide memo Ex.PW4/A and his personal search was conducted vide FIR No. 613/2015 7 of 15 State Vs. Pawan Giri memo Ex.PW4/C. The detailed disclosure statement Ex.PW4/D of accused Pawan Giri was recorded by the IO. Two recovered mobile phones were seized vide memo Ex.PW5/A. Helmet and motorcycle of the accused were seized vide memo Ex.PW1/D and Ex.PW1/E respectively. Recovered mobile phone of complainant was seizxed vide memo Ex.PW1/C and keys of motorcycle of accused were seized vide memo Ex.PW1/F. The witness correctly identified the accused and case property as well.
During cross examination, the witness stated that there were about 6-7 persons were present at the spot and accused was apprehended by Aakash and 2-3 other public persons. He also stated that mobile phone of the complainant was handed over to the IO by the complainant and two other mobile phones were recovered from the pocket of trousers of the accused.
8. Shri Anand was examined as PW-6, who deposed that about 3-4 years ago, while he was walking on the road in front of his house, one biker came from behind, snatched his mobile and fled away. He called the PCR and gave his complaint. He further deposed that after about one month police informed him that his mobile phone was recovered from one person. He handed over the invoice of mobile phone and the same was seized vide memo Ex.PW6/A and the copy of Bill is Mark PW6/B. He got released his mobile phone by the order of the Court.
FIR No. 613/2015 8 of 15
State Vs. Pawan Giri
9. Shri Prashant Kumar, Nodal officer Vodafone Idea Ltd. was examined as PW-7 and proved the reply to notice under Section 91 as Ex.PW7/A and CAF along with a photo ID and the CDR as Ex.PW7/B-D and certificate under Section 65B regarding document as Ex.PW7/E. During cross examination, this witness stated that the CDR pertains to mobile number 9582787185 issued in the name of Jyoti Matta and as per CDR, the IMEI No. 356554063721690 and no other IMEI shown in the said CDR. After seeing the complaint Ex.PW1/A, the witness stated that IMEI mentioned in the complaint is not the same as mentioned in the CDR. He voluntarily explained that intial 14 digists of IMEI mentioned in the complaint are same as mentioned in the CDR and the last digit (15 th) of IMEI becomes Zero by default when the CDR is generated.
10. Shri Amit Kumar Yadav examined as PW-8, who deposed that on 08.08.2015, he lost his mobile phone Make - Motorola G-2 and lodged its missing report at PS-Karol Bagh. He further deposed that he came to know from newspaper that one person has been arrested at PS-Patel Nagar from whom mobile phones were recovered. Thereafter, he visited the police station and came to know that his mobile phone was also recovered from the possession of accused. He handed over the copy of NCR of his lost mobile to IO which was seized vide memo Ex.PW4/E. The witness correctly identified the case property Ex.P2 (Colly.) FIR No. 613/2015 9 of 15 State Vs. Pawan Giri
11. Statement of accused under Section 294 of Code of Criminal Procedure (hereinafter referred to as 'Cr. PC') was recorded wherein he admitted the registration of FIR, verification of RC of vehicle No. DL-6AR-4220 and DD No. 20A dated 08.08.2015. Thereafter, prosecution evidence was closed.
12. In order to afford an opportunity to the accused to explain the incriminating evidence adduced by the prosecution against him, the accused was examined under Section 313 Cr.P.C. wherein he claimed to be innocent and took a plea that his bike hit the complainant due to which her mobile phone fell down and he also lost balance and fell down from the bike. In the meanwhile, public persons gathered and gave beatings to him. Someone took out keys of his bike and when he tried to call the PCR, someone snatched his phone. He also claimed that no recovery was made from him. However, the accused choose not to lead defence evidence.
13. Learned APP for the State vehemently argued that the prosecution has been successfully able to prove its case beyond reasonable doubt. He further argued that the testimony of prosecution witnesses including the complainant and eye witnesses are consistent with the case of the prosecution, which is sufficient to prove the guilt of the accused.
14. Per Contra, learned counsel for the accused vehemently opposed arguments advanced on behalf of learned Prosecutor and submitted that the accused has been falsely implicated by the complainant as his bike hit against her FIR No. 613/2015 10 of 15 State Vs. Pawan Giri resulting into falling of her mobile phone; that the alleged recovery of mobile phones have been planted upon the accused and the alleged recovery of articles is highly doubtful; that the investigation in the present case was not carried out fairly; that all the witnesses are interested witnesses being related/ police officials.
15. This Court heard the rival submission advanced on behalf of the prosecution as well as learned counsel for the accused persons and carefully examined the entire material available on record.
16. The case of the prosecution that on the date of alleged offence, the accused snatched the mobile phone of the complainant and hit her with his helmet has been proved by the prosecution witnesses as specifically the complainant examined as PW-1 has narrated the entire incident in detail which is in consonance of prosecution story. The testimony of the complainant/PW-1 has been well corroborated with testimony of eye witnesses i.e. PW-2 and PW-3, who is mother and neighbour of the complainant.
17. PW-2, the mother of the complainant deposed to have been waiting in her balcony for the complainant to return and witnessed the present incident from there only. She has well corrborated the version of the complainant/PW-1 and depiste her cross examination, nothing came on record to doubt her testimony.
FIR No. 613/2015 11 of 15
State Vs. Pawan Giri
18. PW-3, Mr. Aakash, who is neighbour of the complainant/PW-1 is a witness of res gestae as he came out of his house on hearing the alarm raised by the complainant and on reaching the spot, the complainant/PW-1 narranted him the entire incident. He helped the complainant in getting her phone recovered and took out the keys of motorcycle so that the accused does not flee from the spot. There may be minor discrepencies in his testimony vis a vis the complainant, however, he has corrborated her version in material particulars.
19. The only defence of the accused is that his bike hit the complainant due to which, the phone of the complainant fell on the ground and even the accused lost his balance and feel from his bike. Meanwhile, public persons gave beatings to him and falsely arrainged him in the present matter. However, no occasion has been specified by the accused to charge him with such serious allegations by the compalinant or other witnesses. No previous enimity with complainant/PW-1 or purpose for premeditation has been stated by the defence. No such question has been put by the defence in the cross examination of prosecution witnesses and this defence has been introduced first time when statement of accused was recorded under Section 313 Cr.PC., hence, it only appears to be an afterhthought and nothing else.
20. Learned LAC for accused has argued specifically that at best Section 356 IPC is made out against the accused and not Section 392 IPC. For this FIR No. 613/2015 12 of 15 State Vs. Pawan Giri purpose, the reliance is placed on Setion 390 IPC defining the robbery. Section 390 IPC reads as under :
"Section 390 - Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."
The offence is punishable under Section 392 Cr.PC.
21. In the instant case, it has been infactically deposed by the complainant that after she caught hold of the accused, the accused hit her with his helmet. This testimony of complainant is suffient to bring the alleged offence under the ambit of Section 392 IPC.
22. Now coming to other section charged under Section 103 DP Act. For ready refrence Section 103 DP Act is reproduced herein below :
"Section 103 in The Delhi Police Act, 1978
103. Possession of property of which no satisfactory account can be given.- Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is FIR No. 613/2015 13 of 15 State Vs. Pawan Giri reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Metropolitan Magistrate, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees, or with both.
23. In order to prove the offence under Section 103 DP Act, the prosecution has examined PW-4 SI Pramod Kumar/IO of the present case and PW-5/Ct. Ravidner Kumar, who joined the IO in the investigation, who deposed that on personal search of the accused after his arrest in the present matter two mobiles phones of make Motorolla and Sony Experia were recovered which were seized vide seizure memo Ex.PW5/A.
24. PW-6 Shri Anand and PW-8 Shri Amit Kumar Yadav were examined by the prosecution, who deposed that their mobile phones were stolen on earlier occasion before the date of present offence. PW-6 proved the seizure memo and invoice/copy of bill of mobile phone make Sony Experia as PW-6/A and Ex.PW6/B respectively. PW-8 deposed that on 08.08.2015, he lost his mobile phone make Motorolla G-2 and lodged a missing report at PS-Karol Bagh. However, he came to know from newspaper that one person has been arrested by PS-Patel Nagar from whom mobile phones have been recovered.
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State Vs. Pawan Giri
He visited the concerned PS and came to know that his mobile phone has been recovered from the possession of accused. He proved seizure memo of his mobile phone bearing his signatures as allready Ex.PW4/E and correctly identified his mobile phone through photogrpahs as Ex.P2.
During his cross examination by defence, the witness deposed that he has shown the ownerhsip proof of his mobile phone to the Investigating Officer.
25. From the testimony of PW-6 and PW-8, it is clear that the mobile phone belonging to them were recovered from the possession of the accused during his personal search as per testimony of PW-4 and PW-5, however, the mobile phones neither belonged to accused Pawan Giri nor he had any occasion to have their possession.
26. With this background, the occular evidence produced by the prosecution supported by the documentary evidence is sufficient to prove the guilt of the accused beyond reasonble doubt. Accordingly, accused Pawan Giri is convicted of charge under Section 392 IPC and Section 103 DP Act.
Copy of this judgment be given to convict free of cost. He be Digitally signed heard on point of sentence. SHEFALI by SHEFALI BARNALA BARNALA TANDON TANDON Date: 2021.06.30 15:41:29 +0530 Announced in open Court (Shefali Barnala Tandon) today i.e. on 30.06.2021 ACMM (West)/THC/Delhi (The judgment contains 15 pages in all ) FIR No. 613/2015 15 of 15 State Vs. Pawan Giri