Delhi District Court
State vs . Subhash Giri on 6 August, 2018
IN THE COURT OF SHRI AMIT ARORA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
EAST, KARKARDOOMA COURT, DELHI
FIR No. : 162/15
PS : Preet Vihar
u/S : 356/379/411/34 IPC
STATE Vs. SUBHASH GIRI
JUDGMENT
A New Number of case 9924/16
B Name of the Sh. Ashish Kumar s/o Sh. Ashok
complainant Kumar Gupta
C Name of the accused & 1. Subhash Giri s/o Sh. Jay Prakash his parentage and Giri R/o H. No.368, Jhuggi Kalyan address Vyas, Near LBS Hospital, Delhi D Offence Complained of U/s 379/356/411/34 IPC E Date of commission of 20.02.2015 offence.
F Date of Institution 06.01.2016
G Offence Charged U/s 356/34 & 411/34 IPC
H Plea of the accused Pleaded not guilty
I Order Reserved on 02.08.2018
J Date of 06.08.2018
Pronouncement
K Final Order Acquitted of offence u/s 356/34 &
411/34 IPC
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 As per the charge sheet prosecution case in brief is as under:
STATE Vs. SUBHASH GIRI PAGE No.1/6
2 On 20.02.2015, ASI Raghubar Dayal alongwith Ct. Puneet, after
receipt of DD No.36A reached at Digambar Jain Mandir, Nirman Vihar, where they met complainant Ashish Kumar. Complainant informed that at around 7 pm while he was using his mobile phone, Samsung Note-3 NEO, two boys on a Splendor motorcycle came and the pillion rider snatched his mobile phone. He further stated that he can identify the offender. Thereafter, FIR u/s 356/379/34 IPC was registered, site plan was prepared and efforts were made to trace the offender. Thereafter, on 24.03.2015, accused Subhash Giri was apprehended by Ct. Sajjan and Ct. Mounvir during a routine picket-checking at Mandawali Pulia Picket. From his search, a mobile phone was found. Accused made a disclosure that he alongwith co-accused Sanju (not arrested) had committed the offence. Efforts were made to trace out the accused Sanju, however, he could not be traced. On completion of investigation, charge-sheet was filed.
3 On the basis of the charge-sheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable under section 356/34 & 411 IPC was framed against the accused and read out to him to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 4 To bring home the guilt against the accused, prosecution has examined 04 witnesses in all.
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5 PW1 is complainant Ashish Kumar, PW2 is the first IO SI
Raghubar Dayal, PW3 is ASI Kamal Kumar who is the second IO and PW4 is Ct. Mounvir who is one of the police official who apprehended the accused during a routine patrolling.
STATEMENT OF ACCUSED 6 Upon completion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. wherein he denied all the allegations made against him and stated that he was falsely implicated. Accused did not opt to lead any defence evidence.
7 Final arguments have been heard and record has been carefully perused. Ld. Defence Counsel has vehemently argued that the complainant has failed to identify the accused; that complainant was unable to produce any bill of the mobile phone and had admitted that there was no specific mark on his mobile phone. It is further stated that testimony of PW4 is also not reliable as no independent witness were joined despite thickly populated area.
8 I have perused the testimony of the witnesses. The star witness of the prosecution is the complainant/PW1. Though he deposed regarding the incident of snatching, however, coming to the identity of the offender, he deposed, "I CANNOT IDENTIFY THE ACCUSED PERSONS AS I COULD NOT SEE THE FACES OF ACCUSED PERSONS DURING COMMISSION OF CRIME". He was cross-examined by Ld. APP. During cross-examination, his STATE Vs. SUBHASH GIRI PAGE No.3/6 attention was drawn towards the accused however, the witness again stated that he is seeing the accused for the first time in Court. He denied the suggestion that he has been won over by the accused. Though there was a supplementary statement Ex.PW1/X-A of the witness wherein he had identified the accused at PS however, the witness denied that he had ever identified the accused in PS. Thus, the non-identification by the complainant is a serious blow to the case of the prosecution.
9 Now coming to the second aspect, the complainant was unable to produce the bill of the aforesaid mobile. He further stated that he do not remember the IMEI number of his mobile. It is only during the cross-examination by Ld. APP that he stated his IMEI number. However, during cross-examination, he expressed his inability to produce the mobile phone. He further admitted that there was no specific mark on the mobile phone on the basis of which he can say that the mobile phone belongs to him. This is another flaw on the case of the prosecution as prosecution has been unable to prove that the mobile phone belongs to the complainant.
10 Lastly, the so called recovery effected to be made from the accused by PW4/Ct. Mounvit also appear to be doubtful. The witness was unable to prove any DD entry showing that he has left the PS for patrolling. He admitted that no public witness was joined during the personal search of the accused and despite the fact that the area is thickly populated and having many shops. Morover, as per the version of PW3, the accused was arrested at STATE Vs. SUBHASH GIRI PAGE No.4/6 the spot itself i.e. at Mandawali Police Picket by memo Ex.PW3/C however, PW4, have contradicted the same. During cross- examination he stated that the accused was arrested at PS. Thus, this further leads to suspicion regarding the manner in which investigation was carried. Strangely, PW3, the IO of this case stated that he was not aware whether the complainant has identified the accused or not which is itself contrary to the supplementary statement of complainant recorded by him.
11 It is trite to say that in a criminal trial prosecution has to prove his case beyond reasonable doubt. Whenever any doubt creeps in the version of the prosecution, the accused are entitled to benefit of doubt. Though PW4 is a chance witness and had apprehended the accused at a later stage alongwith the alleged stolen mobile, however, it is difficult to rely upon his testimony as the complainant has not identified the accused. Thus, in view of the aforesaid infirmities, a serious cloud exist qua the recovery of mobile phone from the accused.
12 As the complainant has not supported the case of prosecution, it is therefore, difficult to rely upon the testimony of PW4 as he is an interested witness. Moreover, the investigation is also silent with respect to the ownership of mobile phone as no bill was taken by the IO from the complainant. It has also come in the evidence of PW1 that such mobiles are easily available in market.
13 In these circumstances, the prosecution has been unable to
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connect the accused with the offence of snatching which took place with the complainant and the recovery of mobile subsequently effected from the accused therefore, he is entitled to benefit of doubt.
14 Accordingly, accused Subhash Giri is acquitted for offences u/s 356/34 and 411 IPC as charged against him.
15 As per section 437-A of the Cr. P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, accused is directed to file fresh personal bond and surety bond in like amount within a week from today which shall remain intact for a period of six months.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 06.08.2018 (AMIT ARORA) ACMM (EAST)/KKD/06.08.2018 Certified that this judgment was directly typed by my personal assistant on computer directly on my dictation.
(AMIT ARORA) ACMM (EAST)/KKD/06.08.2018 AMIT Digitally signed by AMIT ARORA DN: c=IN, o=OFFICE OF THE DISTRICT AND SESSIONS JUDGE....., 2.5.4.20=5d03bd2902bae524e472 081070b034ee609e5ec0ad1936d9 ARORA 3a0429d51816814c, ou=HIGH COURT,CID - 6309251, postalCode=110092, st=Delhi, cn=AMIT ARORA Date: 2018.08.06 14:42:21 +05'30' STATE Vs. SUBHASH GIRI PAGE No.6/6