Delhi District Court
St. vs . Anil & Others on 31 July, 2013
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IN THE COURT OF SH. SHARAD GUPTA
METROPOLITAN MAGISTRATE
DWARKA COURTS, NEW DELHI.
St. Vs. Anil & others
P S Binda pur
U/S 392/411/34 IPC
JUDGEMENT
(a) The FIR No. of the case : 296/08
(b) The date of commission of : 12.10.2008
offence
(c) The name of complainant : Sanjeev Kumar S/o Roshan Lal
(d) The name, parentage etc. of : Anil S/o Sh. Rattan Lal R/o
accused 165, Village Nawada, Balmiki
Mohalla, New Delhi.
2) Vishal @ Monu S/o Sh. Gian
Singh R/o 885 A, Village
Kakrola, Delhi.
3) Vijay @ Munna S/o Sh. Ram
Singh R/o H. No. 887, Village
Kakrola, Delhi.
(e) The offence complained of/ : U/S 392/411/34 IPC
proved
(f) The plea of accused : Pleaded not guilty
FIR No. 296/08 St. Vs. Anil and others
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(g) The date of institution : 19.09.2009
(h) The final order : Accused Anil and Vishal
convicted u/s 411 IPC .
Accused Anil and Vishal and
Vijay @ Munna acquitted for
offence u/s 392 IPC.
(i) The date on which order was : 31.07.2013
reserved
(j) The date of such order : 31.07.2013.
k) Brief statement of the reasons
for the decision
BRIEF REASONS FOR DECISION OF THE CASE
1. The accused persons are facing trial on the allegations that on 12.10.2008 at about 10.15 p.m. at shop no. C 20 , Kiran Garden , Main Matiala Road, Uttam Nagar, Delhi the accused persons in furtherance of common intention committed robbery of 2025 new mobile phones and 15/20 old mobile phone belonging to complainant Sanjeev Kumar. It is further alleged that on 25.11.2008 at Shani Bazar Chowk, Mahavir Enclave, Delhi accused Anil was found in possession of one mobile phone having IMEI No. 359947000242460 which he received or retained in his possession knowing or having FIR No. 296/08 St. Vs. Anil and others
-:3 reason to believe the same to be stolen property. It is also the case of the prosecution that on 25.11.2008 at Shani Bazar Chowk, Mahavir Enclave, Delhi accused Vishal @ Monu was found in possession of one mobile phone having IMEI No. 356845013423262 which he received or retained in his possession knowing or having reason to believe the same to be stolen property. For the said offence FIR No. 296/08 was registered. After usual investigation charge sheet was filed against the accused persons.
2. After compliance of section 207 Cr.P.C accused persons were charged with commission of offence u/s 392/34 IPC vide order dated 13.07.2011 to which the accused persons pleaded not guilty and claimed trial. Charge U/s 411 IPC was separately framed against the accused Anil and Vishal to which they pleaded not guilty and claim trial.
3. The prosecution in support of its case has examined as many as 10 witnesses in support of its case. PW1 SI Shanti Parkash duty officer registered FIR No. 296/08. PW2 Sanjeev Kumar is the complainant of the case. PW3 Kaushal Kishore is a spot witness. PW4 HC Mahavir Singh assisted in formal arrest of the accused persons and recovery of stolen mobiles. PW5 Bhola is another spot witness/eye FIR No. 296/08 St. Vs. Anil and others
-:4 witness. PW6 HC Surat Singh, MHCM, P.S. Bindapur produced register No. 19. PW7 Ct. Zafar Khan along with PW8 HC Ravinder Pal Singh assisted in arrest of the accused and recovery of stolen mobiles. PW8A Sh. Deepak Sehrawat, Ld. MM conducted the TIP of all the accused. PW9 SI Om Prakash is the IO of the case and PW10 HC Maman Singh, MHCR produced the register No. 2 containing record of DD No. 53A.
4. The version of the prosecution as adduced in its evidence is that on 11.10.2008 PW3 /A Kaushal Kishore and PW5 Bhola were present at Bobby mobile shop at C 20, Kiran Garden, Matiala Road, Uttam Nagar, belonging to PW2 Sanjeev @ Bobby when some boys came inside the shop and took away several mobile phones from the said shop after threatening to kill PW3 Kaushal Kishore and PW5 Bhola. PCR call was made. That PW9 SI Om Prakash alongwith Constable Ashok Kumar on receiving DD No. 53A Ex.PW10/A reached at the spot where PW3 Kaushal and PW5 Bhola informed that PW2 Sanjeev Kumar had gone out of station and DD No. 53 A was kept pending. In respect of the incident PW2 Anil gave complaint Ex. PW2/A to the police officials on 16.10.2008. List of stolen mobile phones Ex. PW2/B was given to the police official by PW2. IO prepared rukka FIR No. 296/08 St. Vs. Anil and others
-:5 Ex. PW9/A on 20.10.2008 on receiving details of the mobile phones Ex. PW2/B. On the basis of rukka and got FIR Ex.PW1/A was registered through PW1 SI Shanti Prakash. IO seized the list of stolen mobile phones vide Ex.PW9/B. IO visited the spot and prepared site plan Ex.PW2/C at instance of PW2 Sanjeev Kumar. That on 25.11.2008 PW7 Ct. Jaffar Khan alongwith PW8 H C Ravinder Pal alongwith SI Ashok, SI Virender, Constable Amit Kumar and H C Rajinder Singh all posted at AATS South West. They were checking vehicles by placing barricades near Shani Bazar Chowk near Mahavir Enclave. At around 5.30 p.m they saw three boys coming on TVS motorcycle from side of Ganda Nala. On seeing the barricades, the boys tried to run away. The boys were stopped and checked. All the accused accused have been identified as the said boys. On interrogation, the accused persons disclosed that they were looking an opportunity to commit theft of mobile phones. They also disclosed that they had committed theft of mobile phones from one mobile shop situated at Kiran Garden, Uttam Nagar alongwith one Machhander and one boundary. Accused Vishal @ Monu produced one mobile phone from right pocket of his worn pant and identified the mobile phone as one stolen from the said shop. The accused Anil produced FIR No. 296/08 St. Vs. Anil and others
-:6 one mobile phone from right pocket of his worn pant and identified the same as one of the mobile phones stolen by him from the said shop. The mobile phones were seized vide memos Ex.PW7/A and Ex. PW7/B. The disclosure statements of the accused were recorded vide Ex. PW7/C, Ex.PW7/D and Ex. PW7/E. The accused were arrested vide memos Ex. PW7/G, Ex.PW7/H and Ex. PW7/I and were personally searched vide memos Ex. PW7/J, Ex.P/W7/K and Ex. Pw7/L. PW8 prepared kalandra u/s 41.1.(d) cr.p.c vide Ex. PW8/A. Motorcycle was seized vide memo Ex. PW7/F. Intimation was given at P S Binda Pur. That on 25.11.2008 PW9 ASI Om Prakash received information from AATS South West regarding the arrest of the accused vide DD No. 41 A Ex. PW9/C. On 26.11.2008 PW9 alongwith PW4 H C Mahavir went to AATS office where he collected the relevant documents and arrested the accused vide memos Ex. PW4/C,Ex.PW4/D and Ex.PW4/E. Their disclosure statements were recorded vide memo Ex. PW4/A, Ex.PW4/B and Ex.PW9/D. The accused led IO to the spot of theft where pointing out memos Ex.PW4/F, Ex. PW4/G and Ex. PW4/H were prepared. IO tried to search for the other accomplices but could not find them. IO moved application Ex. PW9/E for conducting TIP of the accused. Application FIR No. 296/08 St. Vs. Anil and others
-:7 had been put up before PW8 Sh. Deepak Shehrawat , ld. MM who fixed the date of TIP as 2.12.2008 vide order Ex. PW8/A. On 2.12.2008 witness Kaushal refused to participate in TIP and IO was directed to take appropriate steps vide order Ex.Pw8/B. The application was fixed for 13.12.2008 vide order Ex. PW8/C. On 13.12.2008 the accused refused to participate in the TIP proceedings. The refusal of accused Ajay has been proved as Ex.PW8/F while refusal of accused Vijay @ Munna has been proved as Ex. PW8/D and refusal of accused Vishal @ Monu has been proved as Ex.PW8/E. Copy of TIP proceeding was provided to the IO vide order Ex. PW8/G. Case property was deposited in mal khana P S Binda pur on 25.11.2008 vide entry no. 1258 and 1259 Ex. PW6/A.
5. However, during recording of prosecution evidence the only eyewitnesses of the incident PW 3 Kaushal Kishore and PW 5 Bhola dis not support the version of the prosecution and failed to identify the accused as the culprits.
6. Accused were examined U/s 281/313 Cr.P.C and all the incriminating evidence coming on record was put to the accused. The accused submitted that they are innocent and had been falsely implicated in this case. The accused persons opted not to lead DE and the matter FIR No. 296/08 St. Vs. Anil and others
-:8 was thereafter fixed for final arguments.
7. I have heard the Ld. APP for State and Ld Counsel for the accused and have perused the material on record. In the present case, the prosecution was required to prove beyond reasonable doubt that on 12.10.2008 at about 10.15 p.m. at shop no. C 20 , Kiran Garden , Main Matiala Road, Uttam Nagar, Delhi the accused persons in furtherance of common intention committed robbery of 2025 new mobile phones and 15/20 old mobile phone belonging to complainant Sanjeev Kumar. It is further alleged that on 25.11.2008 at Shani Bazar Chowk, Mahavir Enclave, Delhi accused Anil was found in possession of one mobile phone having IMEI No. 359947000242460 which he received or retained in his possession knowing or having reason to believe the same to be stolen property. It is also the case of the prosecution that on 25.11.2008 at Shani Bazar Chowk, Mahavir Enclave, Delhi accused Vishal @ Monu was found in possession of one mobile phone having IMEI No. 356845013423262 which he received or retained in his possession knowing or having reason to believe the same to be stolen property.
8. As regards the allegation regarding commission of offence u/s 392/34 by all the accused persons, it appears that to discharge its onus in this FIR No. 296/08 St. Vs. Anil and others
-:9 context, the prosecution had exained the only eye witnesses of the matter PW 3 Kaushal Kishore and PW 5 Bhola. However, while both the prosecution witnesses supported the version of prosecution that robbery of mobile phones has taken place from shop of PW2 Sanjeev Kumar on 11.10.2008, neither of the said prosecution witnesses has identified the accused as the culprits. The witnesses were cross examined at length by Ld APP for the state but they did not support the version of the prosecution regarding identity of the accused persons as the culprits. No other eye witness of the incident has been examined by the prosecution. The only other material coming on record against the accused persons is their refusal to particpate in TIP proceedings. However, in the absence of the positive identification of the accused persons by the only eye witnesses PW 3 Kaushal Kishore and PW 5 Bhola, the refusal of the accused to participate in the TIP proceedings is of no consequence. There is thus no material on record to connect the accused persons with commission of offence u/s 392/34 IPC.
9. Charge was also framed against accused Anil and Vishal for commission of offence u/s 411 IPC. In this regard the case of the prosecution against the accused Anil is that on 25.11.2008 at Shani FIR No. 296/08 St. Vs. Anil and others
-:10 Bazar Chowk, Mahavir Enclave, Delhi accused Anil was found in possession of one mobile phone having IMEI No. 359947000242460 which he received or retained in his possession knowing or having reason to believe the same to be stolen property. It is also the case of the prosecution that on 25.11.2008 at Shani Bazar Chowk, Mahavir Enclave, Delhi accused Vishal @ Monu was found in possession of one mobile phone having IMEI No. 356845013423262 which he received or retained in his possession knowing or having reason to believe the same to be stolen property.
10. To discharge its onus, the prosecution has examined as many as 10 witnesses. To establish the factum of robbery of various mobile phones the prosecution has inter alia examined PW2 Sanjeev Kumar. PW2 Sanjeev Kumar has deposed that he was running a mobile shop under the name and style of M/S Bobby Mobile shop at Matiala Road ,Uttam Nagar. That in the month of November,2008 he had gone to Dehradoon to attend a marriage ceremony where he received a telephone call from a neighbouring shopkeeper that theft had taken place in his shop that he returned to Delhi and got the FIR registered. That he found that around 20 to 25 new mobile phones had been stolen alongwith some old mobile phones. That he gave a FIR No. 296/08 St. Vs. Anil and others
-:11 list of mobile phones stolen to the IO mentioning their IMEI numbers. PW2 has proved his statement Ex.PW2/A and has proved the list of mobile phones as Ex.PW2/B.
11.The prosecution has also examined PW3 Kaushal Kishore and PW5 Bhola in this regard. It has been observed that although , the said witnesses failed to identify the accused persons as the robbers, however , they have supported the version of the prosecution in material particulars regarding the robbery in shop of complainant. It appears to be settled proposition of law that merely because a witness is declared hostile, his entire testimony is not washed off the record. The testimony of even a hostile witness can still be adverted to and appreciated PW3 Kaushal Kishore has deposed that he was present in shop of PW2 on 11.10.2008 when 23 boys committed robbery of mobile phones from the said shop. PW5 Bhola has also deposed along the same lines and has stated about the incident of robbery in shop of complainant in the night of 11/12.10.2008 . The version of the prosecution witnesses in this regard has been corroborated in material particulars by testimonies of PW9 SI Om Prakash and PW1 S I Shanti Prakash, duty officer who have both deposed regarding registration of FIR no. 296/08 on complaint of FIR No. 296/08 St. Vs. Anil and others
-:12 PW2 Sanjeev Kumar. Thus the prosecution has been able to establish that several mobile phones were taken away from shop of complainant PW2 Sanjeev Kumar on 12.10.2008 at about 10.15 p.m for which FIR no. 296/08 was got duly registered at P S Binda Pur.
12. Further More, the prosecution has also examined PW7 Ct. Zafar Khan and PW8 H C Ravinder Pal who had arrested the accused persons and found stolen mobile phones in possession of accused Anil and Vishal to prove the factum of arrest of the accused persons on 25.11.2008 at shani Bazar Chowk , Mahavir Enclave , Delhi and recovery of the stolen mobile phone IMEI No. 356845013423262 from possession of accused Vishal and recovery of stolen mobile phone with IMEI No. 359947000242460 from possession of accused Anil. PW8 H C Ravinder Pal deposed that on 25.11.2008 he alongwith PW7 Ct. Jaffar Khan and SI Ashok, SI Virender, Constable Amit Kumar and H C Rajinder Singh were all posted at AATS South West. They were checking vehicles by placing barricades near Shani Bazar Chowk near Mahavir Enclave. At around 5.30 p.m they saw three boys coming on TVS motorcycle from side of Ganda Nala. On seeing the barricades, the boys tried to run away. The FIR No. 296/08 St. Vs. Anil and others
-:13 boys were stopped and checked. All the accused accused have been identified as the said boys. On interrogation, the accused persons disclosed that they were looking an opportunity to commit theft of mobile phones. They also disclosed that they had committed theft of mobile phones from one mobile shop situated at Kiran Garden, Uttam Nagar alongwith one Machhander and one boundary. Accused Vishal @ Monu produced one mobile phone from right pocket of his worn pant and identified the mobile phone as one stolen from the said shop. The accused Anil produced one mobile phone from right pocket of his worn pant and identified the same as one of the mobile phones stolen by him from the said shop. The mobile phones were seized vide memos Ex.PW7/A and Ex. PW7/B. The disclosure statements of the accused were recorded vide Ex. PW7/C, Ex.PW7/D and Ex. PW7/E. The accused were arrested vide memos Ex. PW7/G, Ex.PW7/H and Ex. PW7/I and were personally searched vide memos Ex. PW7/J, Ex.P/W7/K and Ex. Pw7/L. PW8 prepared kalandra u/s 41.1.(d) cr.p.c vide Ex. PW8/A. Motorcycle was seized vide memo Ex. PW7/F. Intimation was given at P S Binda Pur. PW7 Ct. Zafar Khan has deposed along the same lines and has corroborated the version of the prosecution in material particulars. PW 7 Ct. Zafar Khan and PW8 FIR No. 296/08 St. Vs. Anil and others
-:14 H C Ravinder Pal have been cross examined at length but nothing materially damaging the version of the prosecution could be elicited on record. The version of prosecution inspires confidence and appears to be trust worthy.
13.It has been urged on behalf of the accused that there are contradictions in the testimony of prosecution witnesses. Before proceeding any further, it would be germane to refer to the settled law on the point It has been held in Shahbuddin Abdul Kahlik Shaikh v. State of Gujarat, 1995(3) R.C.R.(Criminal) 531 (SC) that where there are contradictions in statement of P.W., then before acting on evidence of such a witness court is required to first consider whether the contradiction was apparent or real, inconsequential or material, explainable or irreconcilable and acceptance of the claim of the witness was to depend on the answer thereon. It has similarly been held in Hardeep v. State of Haryana, 2002 Cri.L.J. 3939 (SC) as follows:
In the background of what has been indicated above, we may now proceed to consider the submissions made by learned counsel for the appellant Mrs. Avinish FIR No. 296/08 St. Vs. Anil and others
-:15 Ahlwant on merit. In this connection it may be observed, in the criminal cases the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution case, the probabilities and normal course of human conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case. ...It is true, as observed by the Trial Court every contradiction or discrepancy may not necessarily be fatal to the prosecution case but it all depends on the facts and circumstances of the case, such discrepancies and contradictions have to be seen in the background of probabilities of the prosecution story and veracity of the prosecution witnesses. In case evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in that event discrepancies and contradictions here and there may have no value at all. (emphasis supplied) FIR No. 296/08 St. Vs. Anil and others
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14. It thus appears to be the settled proposition of law that every discrepancy occurring in prosecution evidence is not a contradiction and cannot be considered apart from the broad features of the prosecution case, the background of probabilities of the prosecution story and veracity of the prosecution witnesses. In case evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in that event discrepancies and contradictions here and there may have no value at all.
15.Coming to the factual matrix of the case, it has been urged that while PW7 Ct. Zafar Khan has deposed that he and members of the raiding party reached at the checking point 4 to 4.30 p.m, PW8 H C Ravinder Pal has deposed that he alongwith members of the raiding party reached at the spot at 5.30p.m. It is further urged that while PW7 has deposed that out of the raiding party only two police officials were in police uniform and the rest were in civil uniform whereas, PW8 H C Ravinder Pal has deposed that all the members of the raiding party were in civil dress. It has been urged that while PW7 Ct. Zafar Khan has deposed that the distance between the barricades and the point from which the accused took turn was about 4 to 5 ft while PW8 has deposed that the distance between the barricades from where the FIR No. 296/08 St. Vs. Anil and others
-:17 accused tried to turn back was about 4 to 5 steps. It has been observed in this context that human memory is neither supposed to be infallible nor perfect. PW7 Ct. Zafar Khan was cross examined in court on 20.5.2013 while PW8 H C Ravinder Pal was cross examined in court on 09.04.2013 while the incident pertained to 25.11.2008. It thus appears that more than four and half years had elapsed between the incident and the cross examination of the witnesses. In these circumstances some discrepancies here and there are to be expected in the testimony of the witnesses. Even otherwise , having regard to the broad feature of the prosecution case, the said discrepancies are of no consequence and do not effect the broad feature of the prosecution version.
16. It has been further urged that while PW7 Ct. Zafar Khan deposed that six person constituted the raiding party, PW8 H C Ravinder Pal has deposed that five persons constituted the raiding party. In this context , it appears that the entire testimony of a witness is to be read as a whole and in his examination in chief, PW8 H C Ravinder Pal has deposed that he alongwith SI Ashok, SI Virender Singh, Ct. Zafar Khan, Ct. Amit Kumar and H C Rajender. It thus appears that even PW8 had deposed that there were six members in the raiding party FIR No. 296/08 St. Vs. Anil and others
-:18 and there is no contradiction as alleged in the testimonies of PW7 and PW8.
17. The prosecution has thus been able to establish through the testimony of PW7 Ct. Zafar Khan and PW8 H C Ravinder Pal the factum of arrest of the accused persons on 25.11.2008 at shani Bazar Chowk , Mahavir Enclave , Delhi and recovery of the stolen mobile phone IMEI No. 356845013423262 from possession of accused Vishal and recovery of stolen mobile phone with IMEI No. 359947000242460 from possession of accused Anil.
18.It is now proposed to consider whether the accused received or retained the stolen property knowing or having reason to believe the same to be stolen property. In peculiar facts of the present case, the prosecution has established the factum of arrest of the accused persons on 25.11.2008 at shani Bazar Chowk , Mahavir Enclave , Delhi and recovery of the stolen mobile phone IMEI No. 356845013423262 from possession of accused Vishal and recovery of stolen mobile phone with IMEI No. 359947000242460 from possession of accused Anil. It also appears that the stolen mobiles phones are unique articles with a unique IMEI numbers and no explanation of their possession of the stolen mobiles has been FIR No. 296/08 St. Vs. Anil and others
-:19 brought on record by the accused Anil and Vishal. It thus cannot be held that the possession of the accused Anil and Vishal in respect of the respective stolen mobile phones recovered from thier possession was innocent in as much as they knew that the mobile phones were not theirs. It rather appears that the accused knew or had reason to believe that the mobile phones were stolen property.
19. It has been urged on behalf of the accused that they have been falsely implicated in this case. It appears that there is nothing on record even by way of a suggestion to afford any reason as to why the accused were singled out by the prosecution witnesses and falsely implicated, as alleged by the accused. There is no hint of any acrimony past or present between the complainant and police officials on the one hane and the accused on the other. In these circumstances, even from the standpoint of a reasonably prudent man, there is no reason to disbelieve the testimony of the complainant and the police officials and the plea of false implication does not appear to be believable.
20.It has been urged on behalf of the accused that no public witness was joined in this case by the IO to witness the recovery of the stolen articles and as such the prosecution version is unbelievable. It appears to be the settled law that merely because public witnesses FIR No. 296/08 St. Vs. Anil and others
-:20 have not been joined in investigation does not falsify the case of the prosecution. Reference might be made here to the pronouncement of the Hon'ble Apex Court in Tahir Vs State 1996 SCC 515 wherein the Hon'ble Apex Court has considered the value of the evidence of police officials and has observed as follows:
"No infirmity attaches to the testimony of police officials merely because they belong to police force and there is no rule of evidence which lays down that conviction cannot be recorded on the evidence of police officials, if found reliable, unless corroborated by some independent evidence. The rule of evidence however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials after careful scrutiny inspires confidence and is found to be trustworthy and reliable, it can form the basis of a conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the credit worthiness of the prosecution witnesses."
21. When the test laid down in Tahir Supra is applied to the facts of the present case, it appears that the testimonies of the prosecution witnesses have remained credit worthy and believable. The version of FIR No. 296/08 St. Vs. Anil and others
-:21 the prosecution witnesses inspires confidence and the witnesses have corroborated each other in material particulars and the version of the prosecution has also been corroborated by the documentary evidence on record. It appears that the ratio of Tahir supra is fully applicable to the facts and circumstances of the case and the non joining of public witnesses does not make the prosecution case unbelievable.
22.In view of the aforesaid discussion, the prosecution has not been able to establish its onus to prove the guilt of the accused beyond reasonable doubt in respect of offence u/s 392/34 IPC. All the accused persons are acquitted for offence u/s 392/34 IPC giving them the benefit of the doubt. However, the prosecution has been able to discharge its onus to prove the guilt of the accused Anil and Vishal beyond reasonable doubt in respect of offence u/s 411 IPC. Accused Anil is accordingly convicted for offence u/s 411 IPC. Accused Vishal is also convicted for offence u/s 411 IPC. Let the accused be heard on the quantum of sentence separately. Bail Bonds and surety bonds of the accused Vijay stand canceled and Surety is discharged. Bonds u/s 437 A CrPC in respect of the accused Vijay be filed separately.
Announced in the open (SHARAD GUPTA)
st
Court on 31 July, 2013. METROPOLITAN MAGISTRATE FIR No. 296/08 St. Vs. Anil and others
-:22 DWARKA COURTS, DELHI.
FIR No. 296/08 St. Vs. Anil and others
-:23 FIR No. 296/08 St. Vs. Anil and others