Delhi District Court
State vs Maqsood Khan on 29 August, 2023
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01): SOUTH-
EAST DISTRICT : SAKET COURTS : NEW DELHI
SC No.2628/2016
STATE Vs MAQSOOD KHAN
FIR No.: 155/2016
U/S 379/328/411 IPC
PS : Amar Colony
Particulars of the case
1. Date of offence : In the intervening night of 04-
05.03.2016 & 27.03.2016
2.Offence complained of : u/s 328/379/411 IPC
3.Name of the complainant : Inder Singh
4. Name of the accused : Maqsood Khan
his parentage s/o Sh. Nasruddin,
his residential address R/o: Block-9 Near Rest House,
Zirka Firozpur, District Nuh (Haryana).
5. Plea of accused : Pleaded not guilty
6.Final order : Convicted for offence u/s 379/411 IPC
& Acquitted for offence u/s 328 IPC
Date of Institution : 21.07.2016
Date of Judgment reserved on : 04.08.2023
Date of Judgment : 29.08.2023
SC No. 2628/2016
FIR No. 155/2016 State v. Maqsood Khan Pages 1/23
Name of Ld. Addl. PP for State : Sh. Ashok Debbarma
Name of Legal Aid Counsel for accused
Maqsood Khan : Sh. Rohit Kathuria
JUDGMENT
1. CHARGESHEET 1.1 As per chargesheet, on 05.03.2016 complainant Inder Singh had given his written complaint to HC Hari Singh at PS Amar Colony.
1.2 As per the said complaint, he was working in Army in HQ SPP, R. K. Puram, New Delhi. On 04.03.2016 at about 08.00 pm he boarded an auto from Delhi Cant for going towards Ajmer. On the way, he started feeling thirsty and asked water from an auto driver who gave his own water to him and after drinking the same he do not know what happened thereafter.
Next day on 05.03.2016 when he got up at 5.00 am, he found himself sleeping in Gupta Market bus stand, Service Ring Road, Lajpat Nagar-4, Delhi and his bag was found missing along with following items: 1. Two Mobile phone 9819214380 Samsung & J-5 09822600407, 2. I Card (service), 3. PAN Card, 4. CSD Card, 5. Driving license and Bank ATM card which had been stolen by some unknown person by intoxicating him. Accordingly, he pleaded that said person should be legally punished for his acts and his FIR shall be registered.
1.3 On the basis of above said written complaint of complainant, HC Hari Singh made endorsement and got the case registered u/s 379/328 IPC. After registration of case, investigation of the case was handed over to IO/HC Vijay.
SC No. 2628/2016FIR No. 155/2016 State v. Maqsood Khan Pages 2/23 During investigation, HC Vijay prepared the site plan at the complainant's instance and also put the stolen phone IMEI number on surveillance on which IMEI number of mobile phone no. 9541654019 was found to be active. After analyzing the CDR of said mobile phone and inquiry, the name of user was revealed as Maksood Khan s/o Nasrudin and both stolen phones were recovered from his possession and same were taken into police possession. Accused Maksood Khan was arrested in the present case and his disclosure statement was recorded. Bag containing the other stolen articles was stated to be thrown in the garbage by the accused and same could not be traced. Statement of witnesses were recorded u/s 161 CrPC. Thereafter, accused was sent to judicial custody and mobile phones were released to the complainant on superdari. After completion of investigation, chargesheet u/s 379/328/411 IPC was filed against the accused. Accused was sent to judicial custody and recovered mobile phones were released to its owner/complainant on superdari.
2. CHARGE 2.1 On the basis of the chargesheet, charge u/s 328/379/411 IPC was framed against the accused to which he pleaded not guilty and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the chargesheet.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 08 witnesses.
SC No. 2628/2016FIR No. 155/2016 State v. Maqsood Khan Pages 3/23
S. No. Name of the witnesses Nature of the evidence
PW-1 Indra Singh Complainant of the case
PW-2 Shashi Kumar Previous owner of the TSR
bearing no. DL-1RL-6087
PW-3 Abbas Khan Present owner of the above
mentioned TSR
PW-4 ASI Ram Bharose Duty Officer
PW-5 HC Zaffar Iqbal Witness to arrest of accused and
seizure of case property i.e. both
mobile phones recovered from
said accused
PW-6 Prashant Kumar Nodal Officer, Vodafone Idea
PW-7 HC VIjay IO of the case
PW-8 Pawan Kumar Nodal Officer, Vodafone Idea
3.2 The prosecution has exhibited following documents/objects in support of its case:-
No.of exhibit Nature of exhibit Ex.PW1/A Written complaint of complainant Ex.PW1/B Site Plan Ex.PW1/C Superdaginama regarding releasing of mobile phones to its owner/complainant Ex.P1 Mobile Phone make micromax Ex.PW1/D Missing report lodged by complainant regarding missing of his J-5 Samsung mobile phone SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 4/23 Ex.PW2/A & Form 29 & 30 dated 10.08.2012 regarding Ex.PW2/B sale of TSR no. DL-1RL-6087 to one Abas Khan on 18.02.2012 Ex.PW3/A Written statement given to the police by the above said TSR owner that accused used to drive his vehicle. Ex.PW4/A FIR Ex.PW4/B Rukka Ex.PW5/A Arrest memo of accused Maksood Khan Ex.PW5/B Personal search memo of accused Maksood Khan Ex.PW5/C Disclosure statement of accused Maksood Khan Ex.PW5/D Seizure memo of both recovered mobile phones from said accused. Ex.PW6/A Customer re-verification E-KYC application form of complainant qua mobile no. 9822600407 Ex.PW6/B Call detail record of mobile no. 9822600407 for the period from 01.03.20216 to 03.03.2016 Ex.PW6/C Certificate u/s 65B of Indian Evidence Act regarding correctness of CDR of mobile no. 9822600407 Ex.PW6/D Cell ID chart of above mentioned mobile number SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 5/23 Ex.PW8/A CDR details of mobile no.9822600407 for the period from 01.03.2016 to 03.03.2016 Ex.PW8/B Certificate u/s 65B of Indian Evidence Act regarding CDR details of above mentioned mobile phone Ex.PW8/C CDR record of IMEI number 911376901500830 for the period from 10.03.2016 to 27.03.2016 Ex.PW8/D Subscriber detail of the SIM number 9953489319 used in above mentioned IMEI number Ex.PW8/E Certificate u/s 65B of Indian Evidence Act regarding the said computerized record Ex.PW8/F CAF details of mobile no.9953489319 3.3 Though 08 witnesses have been examined by prosecution but the main witnesses of the case are: i. PW-1 Indra Singh, complainant of the case, ii. PW-2 Shashi Kumar Mishra, previous owner of the TSR bearing no. DL1RL6087,
iii. PW-3 Abbas Khan, present owner of the above mentioned TSR and iv PW-7 HC Vijay, IO of the case.
3.4 PW-1 Indra Singh, complainant of the case deposed that on 04.03.2016 at about 08.00 am he hired an auto for going to Delhi Cant Railway Station as he had to board a train going towards Ajmer. He asked the accused to stop the TSR SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 6/23 as he had to purchase a water bottle but accused offered him water bottle which he was already carrying with him. He drank some water from the said bottle and thereafter he started feeling giddiness. When he regained his consciousness on the next day i.e. 05.03.2016 at around 06.00 am he found himself lying on the ring road bus stand near Gupta Market, Lajpat Nagar, New Delhi and found his articles missing i.e. a bag containing his clothes, his army I-card, PAN Card, DL, ATM card of SBI Bank, Rs.1,200/- cash and his two mobile phones make Samsung J5 and Micromax. He went to Amar Colony police station and handed over his written complaint Ex.PW1/A to the police. He also went to his Army Headquarter at Delhi Cant seeking help from there. Site plan Ex.PW1/B was prepared on his pointing out of place of occurrence by the police. Police got recovered his mobile phones, robbed by the accused persons after intoxicating him. He also went to participate in the judicial TIP at Tihar Jail but accused refused to participate in said TIP proceedings. He identified the accused in the police station. The recovered mobiles were got released to him on superdari vide superdaginama Ex.PW1/C. Mobile phone make micromax released to him on superdari was produced. Said mobile is Ex.P1.
The other mobile make Samsung Model No. J-500F (released to him on superdari) was not produced by him as he stated that same was lost and he had informed regarding missing of the same to the police. Copy of the information report regarding missing of above mentioned mobile phone is Ex.PW1/D. During his testimony, PW2 identified the accused Maksood Khan in the court as the person who was driving the said auto.
PW2 was duly cross examined by Ld. Defence Counsel for the accused.
SC No. 2628/2016FIR No. 155/2016 State v. Maqsood Khan Pages 7/23 3.5 PW-2 Shashi Kumar Mishra deposed that he was previous the owner of the TSR No. DL-1RL-6087 which was purchased by him from Dhamija Finance and Leasing Company. On 18.02.2012 he sold the said TSR to Abas Khan and he executed the form 29 & 30 regarding the same. Said forms are Ex.PW2/A and Ex.PW2/B. PW2 was duly cross examined by Ld.Defence Counsel for the accused. 3.6 PW3 Abbas Khan deposed that in the year 2016, he was the owner of TSR bearing no. DL1RL-6087 and he had given his above mentioned TSR to the accused on daily rent basis. He purchased the above mentioned TSR through Super Auto from its previous owner namely Shashi Kumar Mishra. He had given a written application Ex.PW3/A to the police that accused used to drive the above mentioned TSR.
PW3 was duly cross examined by Ld. Defence Counsel for the accused. 3.7 PW7 HC Vijay, IO of the case deposed that on 05.03.2016 he was posted at PS Amar Colony and on that day, after registration of FIR, further investigation was assigned to him. He took the complainant to the place of occurrence at Gupta Market Bus Stand, Lajpat Nagar where he prepared the site plan Ex.PW1/B of said place at complainant's instance. Thereafter, search of stolen property i.e. two mobile phones, one bag and some documents of the complainant, were made but same could not be found. Then he returned to the police station and recorded statement of complainant in this regard. Both mobile numbers of complainant were sent for IMEI number and CDRs and then IMEI numbers of both mobile phones were obtained. Thereafter, these two IMEI numbers were sent for analysis and out of the two IMEI numbers, one mobile SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 8/23 number i.e. 9541654019 was found to be active on one IMEI number of complainant's mobile phone. Then, he analysed the CDR of mobile number 9541654019 and then found a call made upon mobile number 8800501642 belonging to constable Jan Mohd., PS Badarpur. He contacted the said constable, who told him that mobile number 9541654019 belonged to accused Maqsood.
Thereafter, on 27.03.2016 he along with HC Zafar Iqbal went to Firojpur Zhirka, Haryana and there after inquiry, they reached at the house of accused. The accused was found at his home along with his family and he made inquiry. On inquiry, the accused confessed his involvement in the commission of the offence and also produced two stolen mobile phones. He seized the said mobile phones make Samsung and micromax through seizure memo Ex.PW5/D. No other stolen articles items were recovered from the accused as he stated that he had thrown the remaining stolen items. He then arrested the accused vide arrest memo Ex.PW5/A and conducted his personal search vide memo Ex.PW5/B. They took the accused to Delhi. He also recorded the disclosure statement of accused Ex.PW5/C but nothing incriminating could be discovered in pursuance to said disclosure statement.
Accused was got medically examined and lodged in lock up. Case property was deposited in malkhana. He recorded the statement of HC Zafar Iqbal.
He further deposed that on next day, accused was produced before the Magistrate and was remanded to judicial custody. Accused refused to participate in the TIP proceedings and after his refusal, he was identified by the SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 9/23 complainant. He sought the CDRs of complainant mobile numbers i.e. 9818214380 for the period from 01.03.2016 to 05.03.2016 and mobile number 9822600407 for the period from 01.03.2016 to 03.03.2016.
He did not get the complainant medically examined. He examined the owner of the auto which was being driven by accused.
After completion of investigation, he prepared the chargesheet and filed the same in the court.
PW7 was duly cross examined by Ld. Defence Counsel for the accused.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, accused was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him. He has stated that he is innocent and has been falsely implicated in the present case. 4.2 Accused Maqsood Khan stated that complainant i.e. PW1 hired his auto but he hired the same from G. B. Road for going to Lajpat Nagar. He stated that he did not offer PW1's any water and rather he picked PW1 from G. B. Road, Delhi. He was coming from Sadar Bazar with his auto and PW1 signalled his auto at G. B. Road and asked him to take him to Lajpat Nagar. He agreed and told that he will charge Rs.120/-. PW1 told that he will pay Rs.80/- only. He told PW1 that he will charge by meter and PW1 told that he shall take him in the auto and he will pay the fare (usne kaha tu chal, kare lenge). Then they stopped at Delhi Gate as PW1 asked him to purchase liquor for him from a liquor vend at Delhi Gate but he refused. Then PW1 asked him to bring Pepsi bottle for him. He even refused to get the same for him. PW1 himself brought liquor and Pepsi.
SC No. 2628/2016FIR No. 155/2016 State v. Maqsood Khan Pages 10/23 PW1 gave half of the Pepsi to him and PW1 poured the liquor into the remaining Pepsi in the bottle. PW1 asked him to proceed. Thereafter, PW1 asked him to stop the auto near Matkapeer at gate no.8 of Pragati Maidan where transgenders (hijaras) remained usually present there. PW1 got down and brought one hijara in the auto and they both started indulging in vulgar activities. He asked them to get off the auto. They (PW1 and hijara) stopped their activities and PW1 dropped said hijara there itself. Then he and PW1 reached at Lajpat Nagar metro station. PW1 got off and he asked PW1 for the fare. There were hijaras opposite the metro station of Lajpat Nagar. PW1 was crossing over the road to approach them. PW1 handed over his two phones to accused and stated that he was just coming. Police officials take rounds at the said spot. Police officials arrived and they caused beating to hijaras and also PW1. Accused was standing in the auto lane under the Lajpat Nagar metro station. After dealing with hijaras and PW1, the police officials arrived in the auto lane, started asking the autos to leave from the lane and started beating them with dandas and made the auto drivers leave from there. Accused waited near the metro station for about 45 minutes or one hour but since police officers kept on using dandas against the auto drivers, therefore, he had to leave from there.
Police asked him to produce one phone but he himself produced two phones to the police. He claimed that he had not intoxicated the complainant. He admitted that he used to drive the auto no. DL 1RL 6087 of Abas Khan but he do not know Shashi Kumar Mishra. He admitted that police arrived at Firojpur Jhirka and he himself handed over phones the police. He further admitted that SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 11/23 one was samsung phone and the other one was micromax. He admitted that he talked to Ct. Jan Ali using one of the mobile phone. Said constable was his relative. He stated that he told the same facts to the police as he told in the court. He had not stated to the police that he had thrown the other articles of the complainant. He stated that complainant came in the police station and told him not to tell about about hijaras and if he do so, PW1 will not implicate him. PW1 even tried to scuffle with him but was restrained by the police officials. He further stated that complainant has deposed against him as he stated about his activities with hijaras to the police.
5. DEFENCE EVIDENCE 5.1 Accused chose not to lead defence evidence. Thereafter, defence evidence was closed and matter was listed for final arguments.
6. ARGUMENTS 6.1 Thereafter, arguments of both parties were heard. Ld. Addl. PP for State has submitted that complainant has deposed against the accused and has identified the accused as well as the case property in the court. Further, the connection of the accused to the auto of the TSR has also been proved and even the recovery of mobile phones from the accused have been duly proved and even accepted by the accused. Accordingly, case of prosecution stands proved against the accused.
6.2 On the other hand, Ld. Counsel for accused has submitted that prosecution has miserably failed to prove the main offence u/s 328 IPC as SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 12/23 admittedly no medical examination of the complainant was got conducted and no reasonable explanation has come forth for such omission. Ld. Counsel for accused has relied on the judgment of Hon'ble High Court of Delhi in Mahender Kumar & Anr. v. State 2017 SCC Online Del 8327 to press upon the point that in the absence of the medical evidence, a person cannot be convicted for offence u/s 328 IPC on the basis of only oral testimony. He has argued that accused has given detailed narration of the facts under which the complainant hired his auto and the phones came in his possession. He has argued that defence of the accused is consistent and even the complainant was examined on the same lines. It is argued that complainant has been evasive and inconsistent in his cross examination and same shows that complainant has tried to hide the true facts of the case from the court. He has argued that it has come in the cross examination of the owners of the auto that same was GPS enabled but no record of such GPS was procured by the IO since it would have gone against the case of prosecution. Likewise, the IO has omitted to file the call detail record of phone of complainant of the alleged night and the location ID of the phone during said period. It is submitted that withholding of such information further shows that IO has suppressed the facts of the case as same would have been corroborative of the defence taken by the accused. Accordingly, it is submitted that accused is entitled to be acquitted from all the charges.
7. POINTS FOR DETERMINATION 7.1 Section 328 IPC provides "Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 13/23 or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
Section 379 provides provides "Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
The offence of theft is defined in section 378 IPC. Same provides "Who- ever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."
Section 411 IPC provides "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen prop- erty, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
7.2 From the facts of the case, arguments of the parties and relevant provisions of law, the following points for determination arise:-
1. Whether there is no sufficient evidence for the offence u/s 328 IPC?
2. Whether the testimony of complainant is credible?
3. Whether the defence taken by accused is probable?
4. Whether the accused is liable to be convicted for any of the alleged offences?SC No. 2628/2016
FIR No. 155/2016 State v. Maqsood Khan Pages 14/23
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The main charge against the accused is u/s 328 IPC. As per complainant, he drank the water offered by the accused and thereafter lost his consciousness.
Accordingly, as per the version of complainant, he has been administered some intoxicating substance by the accused in the water. However, he admitted in his cross examination that he was not subjected to any medical examination by the police at any point of time. Even the IO has deposed that complainant was not subjected to any medical examination. It is not the case of prosecution that complainant reported the offence after a long gap and therefore the medical examination was not feasible or would not have been fruitful. Rather, as per complainant he regained consciousness about 5.00/6.00 am and as per the FIR, same was registered at 08.30 am. Accordingly, there appears no reason as to why the complainant was not medically examined. In the cases of intoxication the IO ought to have obtained the blood sample of the complainant or the gastric lavage of the complainant or both as per the advice of the doctor. However, no efforts whatsoever was made regarding the same. In the judgment relied upon by the Ld. Defence Counsel (Mahender Kumar & Anr. v. State 2017 SCC Online Del 8327) it has been held by Hon'ble High Court of Delhi that "in the absence of any medical evidence corroborating the allegations of injured, convicting the appellants for the offence u/s 328 of IPC does not seem to be justified in the facts of the present case, especially when the prosecution has not seized any liquid/substance for taking expert opinion so as to know the substance was poisonous, stupefying, intoxicating or unwholesome drug". The Hon'ble High Court has further held "this court is of considered opinion that in SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 15/23 a case u/s 328 IPC mere oral assertions are not sufficient to hold an accused guilty of the offence. To hold an accused guilty for the offence, the oral assertions ought to be corroborated by other circumstances and evidence".
Thus, in the present case there is nothing else regarding the allegations u/s 328 IPC except the oral evidence of the complainant. Hence, in view of aforesaid judgment, prosecution has failed to lead the requisite evidence for proving the offence u/s 328 IPC.
8.2 As far as the offence u/s 379/411 IPC is concerned, the accused has not disputed that phones were recovered from him. He has not even disputed that he got such phones from the complainant. However, he has told a different story altogether regarding the circumstances leading to the phones coming into his possession. Now the main question is whether the version stated by the accused is a probable one or it is the testimony of complainant which is credible on the given facts. It is to be noted that complainant and accused were strangers and, therefore, they appears no motive with the complainant to make any false allegation against the accused. Further, he has stood the test of detailed cross examination. More importantly, the scrutiny of his cross examination shows that questions put to him regarding the defence of the accused were way off the defence taken by the accused in his examination u/s 313 CrPC. Same are discussed in the succeeding para.
8.2(a) During his cross examination, the following suggestions were put to him:- "it is wrong to suggest that I took auto from G. B. Road kotha no.56-57 and I was totally drunk." It is to be noted that during his examination u/s 313 CrPC the accused has stated that complainant hired his auto from the G. B. SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 16/23 Road and then on reaching Delhi Gate complainant asked him to purchase liquor for him from the liquor vend at Delhi Gate. As per accused, he refused to oblige the complainant and the complainant even asked him to bring a pepsi bottle for him. The accused even refused to bring said Pepsi bottle and thereafter complainant himself brought the liquor and pepsi. Thereby in the said examination, the accused has implied that complainant consumed the liquor after boarding his auto as opposed to the defence taken during cross examination that the complainant was "totally drunk" while boarding the auto. Moreover, such aspects of defence i.e. request of complainant to stop for the liquor, refusal of accused, purchase of liquor by complainant have not even been put to the complainant during his cross examination.
8.2(b) Further, the complainant was cross examined as follows:- "it is wrong to suggest that I walk out at Purana Qila for a while to satisfy my urge with kinners." However, the accused in his examination u/s 313 CrPC has mentioned a different stoppage in this regard. He has stated that the complainant asked him to stop the auto near matka peer at gate no.8 of Pragati Maidan. The accused has even stated that complainant got down and brought one hijra in the auto and they both started indulging in vulgar activities and he asked them to get off and thereupon the complainant dropped said hijra there itself. Thus, accused has not only stated a different place regarding the stoppage but has given a detailed account of the interaction of the complainant with hijra and the consequent warning by accused to complainant to get off the auto. However, no such defence was put to the complainant regarding such vulgar activities, objection by the accused and thereupon dropping of such hijra.
SC No. 2628/2016FIR No. 155/2016 State v. Maqsood Khan Pages 17/23
8.2(c) Most importantly, during his cross examination the complainant
was questioned as follows:- "it is wrong to suggest that I gave my both mobiles to the auto driver because I was not able to give money which was travelling charge at night for about 3½ hours...... It is wrong to suggest that accused was being annoyed for not paying the fare for so long hence instead of money mobile phones were handed over to the accused voluntarily in place of money." Thus, it has been implied that the charges for the auto were huge as the auto was used for 3½ hours and further the mobile phones were given in lieu of the hiring charges. However, in his examination u/s 313 CrPC accused has stated that he had asked for Rs.120/- as hiring charges of the auto/TSR. Further accused has stated that after reaching Lajpat Nagar PW1 (complainant) crossed the road to approach hijras and handed over his two phones to accused and stated that he is just coming. Neither accused has stated that the charges were much more nor he has stated that the phones were given to him in lieu of the hiring charges. Even otherwise, it cannot be believed by any stretch of imagination that a person shall hand over his two mobile phones for fare of Rs.120/-. Further, accused stated in his examination u/s 313 CrPC that police officials arrived and caused beatings to hijras and the complainant and thereafter he waited for about one hour but police officials kept on using dandas against the auto driver so he had to leave from there. However, no such line of defence was ever put to the complainant throughout his cross examination. It may be noted here that after the accused was arrested the IO moved application for TIP of the accused but the accused refused to participate in the TIP. Said fact has not been disputed throughout the cross examination of the IO and the only suggestion put to IO was that accused SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 18/23 refused to participate in the TIP since he was shown to the complainant earlier. However, if the defence of the accused was genuine i.e. the mobile phones were voluntarily handed over by the complainant to the accused there was no reason for the accused to refuse the TIP and rather he would have stated that there is no need of TIP and that he admits that complainant had hired his auto and thus, he is not disputing his identification by the complainant. Therefore, from the aforesaid facts and circumstances, no other conclusion can be drawn except that the phone were taken away by the accused with dishonest intention only and thus the whole defence story taken by the accused appears bogus. 8.3 Ld. Defence Counsel has submitted that complainant is not a reliable witness. It is submitted that in his examination in chief, he has deposed that he hired the auto for going to Delhi Cantt Railway Station as he had to board a train for Ajmer. However, he did not specify as to from which place he hired said auto. Even in the FIR it is only mentioned that he hired the auto around 08.00 pm as he had to go to Delhi Cantt for Ajmer. Thereby, even in the FIR the exact place of boarding of auto is not mentioned. During his cross examination, he has deposed that "I took an auto from Sadar Bazar, Delhi Cantt to Railway Station Delhi Cantt". Regarding his presence in Sadar Bazar, he has deposed "I was going through Sadar to Delhi Cantt as I performed my duty at Delhi Cantt. Again said, my posting was at Mor Line, HQ SSF Camp and I was going on foot to Sadar Bazar and then I took an auto to Delhi Cantt ". He further deposed "I keep traveling to perform my duty from R. K. Puram to Delhi Cantt. I discharged my duty from R. K. Puram. Then, I took a walk to Sadar Bazar, Delhi Cantt. It is approx. 9 kms to reach Sadar Bazar, Delhi Cantt from SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 19/23 R. K. Puram." Thereby he implied that he walked 9 kilometers from his office at R. K. Puram to Delhi Cantt and then took auto for only 3 kilometers i.e. the distance between Sadar Bazar and Delhi Cantt Railway Station. Thus, Ld. Counsel has submitted that complainant is evasive about the place from which the auto was taken and same shows that he had taken the auto from the place stated by the accused i.e. G. B. Road.
I have considered said submissions. Firstly, the complainant has stated that he was not fully consciousness even when he got the FIR registered. Therefore, the details of the incident may have been omitted at that time. Secondly, the FIR is not the encyclopedia of the entire incident and is just the starting point of the incident. Thirdly, in his cross examination, he further deposed "I discharge my duty at 06.00 pm on the day of incident i.e. 04.03.2016. Again said, I went Sadar Bazar from Moudia Line. I took my government vehicle to reach Moudia Line from R. K. Puram." Therefore, the complainant has clarified as to how he reached the place of boarding of the auto and the explanation has come in the cross examination immediately after he deposed that he went on foot from his office. He has also explained in his cross examination that he has a family in Ajmer and every week he used to travel to Ajmer. He has explained that he has five working days and it was Friday on the date of incident. Perusal of calender of year 2016 shows that indeed it was a Friday on the date of alleged incident. Thus, the totality of the testimony of the complainant shows that there is no reasonable doubt regarding the place of hiring of the auto.
SC No. 2628/2016FIR No. 155/2016 State v. Maqsood Khan Pages 20/23 8.4 Ld. Counsel for accused has further submitted that the accused has given detailed narration mentioning hiring of the auto from a different place and has mentioned the route taken by his auto with the complainant. Ld. Counsel has further argued that PW2 Shashi Kumar, the erstwhile owner and even PW3 Abbas Khan, the present owner of the auto have deposed in their cross examination that GPRS system was installed in the auto. However, no such GPRS data was obtained by the IO to verify the route of auto on the date of incident. Ld. Counsel has further argued that both mobile phones of the complainant were with him when he hired the auto at Sadar Bazar, Delhi Cantt. The IO could have obtained the CDR and cell ID chart of the said phones to trace out their locations. However, the IO has not filed the CDR and cell ID chart of the said phones as on the date of incident and has rather filed the CDR of other dates. I have considered said arguments. Firstly, as far as the GPRS in the auto/TSR is concerned, it is nowhere stated by the owner that they had told about said fact to the IO of the case. Moreover IO has not been cross examined regarding the alleged GPRS. Further, such GPRS record could have been brought by the accused through his owner in defence evidence or in cross examination of the witnesses. However, no such efforts were made by the defence also. Further, as far as the non filing of the CDR of the mobile phone of the complainant is concerned, Ld. Addl. PP has submitted that the IO has obtained the CDR of the mobile phone for two purposes firstly for knowing the IMEI number of the stolen phone as bills of the phone were not available with the complainant. For that purpose, the CDR details prior to the date of incident were required and such record has been filed with the chargesheet and proved by SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 21/23 the prosecution. The second purpose of getting the CDR was to know the usage of phone after the same was stolen and the usage of one of the phone through such CDRs was indeed found and only through the same the IO reached upto the accused. Ld. Addl. PP has submitted that there was no specific requirement of obtaining the call location details of the complainant on the date of incident when the offence was reported and the purpose was limited to obtain the CDRs (call detail record) to know the IMEI number of the phone and put it on tracing. I have considered the arguments of Ld. Addl. PP and I am duly convinced by the same as indeed the call detail record regarding the mobile no. 9822600407 was obtained during investigation and has been proved as Ex.PW8/A. Further the IMEI number obtained through such CDR was thereafter put on tracing and found to be in usage by the accused as reflected in Ex.PW8/C. 8.5 It is further argued by the defence Counsel that as per the IO, the police reached to the accused after analyzing the CDR wherein one phone number which was contacted by using the mobile of complainant was found to be of Ct. Jan Mohd. The police contacted said Ct. Jan Mohd who further told that accused was using the said phone. However, admittedly IO did not record statement of said Ct. Jan Mohd. Accordingly, the same shows defective investigation. I have considered said arguments. However, since accused himself has admitted the possession of mobile phone in question, the non examination of Ct. Jan Mohd. regarding usage of the phone by the accused pales into insignificance.
8.6 Ld. Counsel for accused has also argued that besides the mobile phone of the accused no other alleged stolen property has been recovered at this instance SC No. 2628/2016 FIR No. 155/2016 State v. Maqsood Khan Pages 22/23 and same shows that accused has not stolen the alleged mobile phone. I have considered said arguments. It may be noted that in case a thief is caught soon after the incident i.e. either in a hot chase or within one or two days after the incident then the non recovery of complete stolen property assumes significance. However, in the present case, the accused was arrested after 22 days of the incident and therefore there was ample time with the accused to dispose off the other case property. Accordingly, non recovery of the complete case property does not go to the root of the matter.
9. CONCLUSION 9.1 Thus, in view of the above said discussion, accused Maqsood Khan is acquitted of the offence u/s 328 IPC. However, he is convicted for the offence u/s 379/411 IPC. Digitally signed by SACHIN SACHIN SANGWAN (Announced in the Open Court on SANGWAN Date: 2023.08.29 29th August, 2023) 16:03:07 +0530 (Sachin Sangwan) Additional Sessions Judge (FTC-01): South East:
Saket District Court: New Delhi.SC No. 2628/2016
FIR No. 155/2016 State v. Maqsood Khan Pages 23/23