Delhi District Court
State vs . Bhupender @ Sonu on 22 August, 2016
IN THE COURT OF SH. KISHOR KUMAR, MM-03, SOUTH
WEST DISTRICT, ROOM NO.211, DWARKA COURTS,
DELHI.
FIR No. : 85/11
U/s : 380/411/34 IPC
P.S. : Bindapur
State Vs. Bhupender @ Sonu
JUDGMENT:
a) Sl. No. of the Case : 46/6
b) Name & address of the : Krishan Bansal
complainant. S/o Sh. Pawan Bansal
R/o G-72, School Road, Uttam
Nagar, New Delhi.
c) Name & address of : Bhupender @ Sonu
accused S/o Late Sh. Hira Lal
R/o D-55, Om Vihar, Phase-V,
Uttam Nagar, New Delhi.
d) Date of Commission of : 12.04.2011
offence
e) Offence complained off : U/s 380/411/34 IPC
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
h) Date of such order : 22.08.2016
Date of Institution : 22.05.2012
Final arguments heard on : 22.08.2016
Judgment Pronounced on : 22.08.2016
FIR No: 85/11 state v. bhupender @ sonu Page No.1/12
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 12.04.2011 from 6:45 pm to 7:15 pm from House No. G-72, First Floor, School Road, Uttam Nagar, New Delhi, a theft took place and some gold and silver articles, some cash and a mobile phone make Nokia 2310 were stolen from the house of complainant Krishna Bansal. Police recorded statement of complainant Krishna Bansal on the basis of which present FIR was registered and investigation was carried out. During investigation, on 09.06.2011, at about 5:45 pm at open road near Om Vihar, Phase V, Uttam Nagar, New Delhi, accused was found in possession of stolen mobile phone make Nokia 2310 having IMEI No.354552013221363.
2. After investigation, challan for offences punishable U/s 380/411/34 IPC was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable Under FIR No: 85/11 state v. bhupender @ sonu Page No.2/12 section 411 IPC was framed against the accused, to which he had pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as eighteen witnesses.
5. PW1 Krishan Bansal is the complainant. He deposed that on 12.04.2011 at around 6:45 pm, he along with his mother had gone to the dentist clinic at Mangal Bazar Road in Uttam Nagar. From there at around 7:15 pm, he along with his mother came. His mother stopped for shopping in Mangal Bazar Road and he returned to home. When PW1 returned at his home, he saw the locks of the main door were broken and when he entered inside, he found the household articles lying helter and skelter. PW1 noticed that the almirah was also broken. He checked the almirah and found some gold and silver articles, cash amount of Rs.25,000/- and one mobile phone, make Nokia 2310 missing. He made call at No.100. Police came at his house FIR No: 85/11 state v. bhupender @ sonu Page No.3/12 and recorded his statement Ex. PW1/A. PW1 also identified the mobile phone Ex. P-1.
6. PW2 SI Dheeraj, PW4 Ct. Vijender Singh and PW6 Ct. Dinesh Kumar, all deposed on the same lines. They apprehended the accused on the basis of secret information. Disclosure statement of accused was recorded vide Ex. PW2/A. The mobile phone was seized vide memo Ex. PW2/B. Accused was arrested vide memo Ex. PW2/C and his personal search was conducted vide memo Ex. PW2/D. PW2 made DD No.7A Ex. PW2/E and prepared the Kalandra Ex. PW2/F.
7. PW3 HC Sanjeet Kumar is the MHC(M) who proved the relevant entries vide Ex. PW3/A and copy of RC Ex. PW3/B.
8. PW5 Ct. Ravinder Kumar took the rukka to the PS and got the present case FIR registered.
FIR No: 85/11 state v. bhupender @ sonu Page No.4/12
9. PW7 HC Bajrang Singh remained with IO PW18 SI Rakesh Kumar during investigation. PW18 deposed that accused was formally arrested vide Ex. PW18/A. He recorded the disclosure statement of accused Bhupender vide Ex. PW7/A. Accused then took them along with HC Ved Pal in front of 3B, Sainik Enclave, Vikas Nagar, where accused Raj Kumar was apprehended at the instance of accused Bhupender. His disclosure was recorded vide Ex. PW7/F. Thereafter, he was arrested vide Ex. PW7/B. The accused persons also led them to the shop of Avtar Jeweller, C-161, Pocket -IV where they sold away the jewellery articles. Nishandehi was prepared vide Ex. PW7/J, Ex. PW7/K and Ex. PW7/L. Thereafter the jeweller Raj Soni was apprehended and then he was interrogated and his disclosure was recorded vide Ex. PW7/G. He was arrested vide Ex. PW7/D. No recovery was effected. Thereafter, PW18 filed application to the Nodal Officer, Vodafone and IDEA to take out call details of mobile no. FIR No: 85/11 state v. bhupender @ sonu Page No.5/12 9718627703 and 9953839739 vide Ex. PW18/B and Ex. PW18/C. Thereafter, PW18 obtained the call details report and CAF vide Ex. PW12/B, Ex.PW12/C, Ex. PW12/D and Ex. PW12/E. The documents of Vodafone are Mark A along with certificate U/s 65B Evidence Act. Thereafter, PW18 also brought the mobile phone from PS BHD Nagar, through Ct. Diwan Singh vide road certificate no. 44/21/11 dated 19.06.2011 and the same is Mark B.
10. PW8 Ct. Giriraj, PW9 Ct. Deewan Singh and PW10 Ct. Amarender Kumar brought the accused persons to the Court for sending them to JC.
11. PW11 ASI Lala Ram prepared the rukka Ex. PW11/A and got the FIR registered through Ct. Ravinder.
12. PW12 Pawan Singh is the Nodal Officer from IDEA. He proved the certificate U/s 65B of Evidence Act Ex. PW12/A, CDR Ex. PW12/B, CAF Ex. PW12/C, copy of Voter ID FIR No: 85/11 state v. bhupender @ sonu Page No.6/12 Card Ex. PW12/D and copy of PAN Card Ex. PW12/E.
13. PW13 SI Virender Kumar tried to develop finger prints from the scene of crime. No finger prints were found from the spot. He proved his report Ex. PW13/A.
14. PW14 SI Data Ram is the Duty Officer who recorded the present FIR Ex. PW14/A and made endorsement Ex. PW14/B.
15. PW15 HC Ramesh Chander prepared the site plan Ex. PW15/A. He also filed the application to get the CDR and also to put the mobile phone bearing No. 9718627703 on surveillance vide Ex. PW15/B.
16. PW16 SI Shashank deposed that he tried to search the accused as well as the case property but same could not be found.
FIR No: 85/11 state v. bhupender @ sonu Page No.7/12
17. PW17 Ct. Vimal Kumar recorded the DD NO.74B Ex. PW17/A.
18. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C and his explanation was recorded. He denied all the incriminating evidence against him.
19. I have heard Ld. APP for the State, Ld Counsel for the accused and have carefully gone through the record.
20. Present case FIR has been registered on the complaint of complainant Sh. Kishan Bansal Ex. PW1/A that various gold as well as silver ornaments along with mobile set Nokia 2310 were stolen by somebody from his house. Complainant/PW1 deposed in line with his original complaint Ex. PW1/A. He identified his stolen mobile FIR No: 85/11 state v. bhupender @ sonu Page No.8/12 phone in the Court as Ex. P-1. Admittedly, the other alleged stolen articles as mentioned in the complaint Ex. PW1/A were never found.
21. It was only on dated 09.06.2011 when PW2 SI Dheeraj had got secret information that one person, who is thief, was present at Om Vihar, Phase-V, Uttam Nagar and that the stolen mobile phone of the present case can be found from his possession. Accordingly a raiding team was constituted, accused was stopped near his house in the gali at Om Vihar. After interrogation, the stolen mobile phone Make Nokia 2310 was found in the possession of the said person whose name later on was revealed as Bhupender @ Sonu.
22. PW4 Ct. Vijender Singh is one of the members of the aforesaid raiding party. PW2 as well as PW4 have been cross examined by Ld. Counsel for the accused wherein PW4 testified that the secret information was not reduced FIR No: 85/11 state v. bhupender @ sonu Page No.9/12 into writing. The public persons were asked to join the proceedings, but they did not agree. No site plan was prepared. As per PW4, the secret informer accompanied Ct. Dinesh on bike. Ct. Dinesh is PW6 who, in his cross examination, has deposed that he cannot tell the description of the car by which they went to the spot, but it belonged to SI Dheeraj driven by SI Dheeraj himself. Ct. Dinesh Kumar/PW6 was sitting in the said car behind the driver SI Dheeraj. This piece of evidence is found in complete contradiction to the testimony of PW4 who has stated that the secret informer accompanied Ct. Dinesh on bike. To most of the questions, either put to PW4 or PW6, they have shown their ignorance.
23. After going through the cross examination done of other prosecution witnesses, they all have deposed in contradiction to each other. Apart from all these bottlenecks, it is found that the complainant never gave FIR No: 85/11 state v. bhupender @ sonu Page No.10/12 nor produced the invoice/bill of the alleged stolen mobile phone Ex. P-1. To complete the chain of events, to connect the accused with the charged offence, it was the bounden duty of the IO to procure the invoice/bill of the stolen mobile phone. In the absence of the same it cannot be said even by way of any stretch of imagination that the complainant/PW1 was in fact the rightful owner/ claimant of the stolen mobile phone Ex. P-1. More so, the accused has been allegedly arrested and recovery effected from his possession in a thickly populated residential area. Though, as per police officials, they requested public persons to join the investigation, but none agreed. If position was so, the IO was under
mandatory obligation to serve upon them notice while noting down their name and other relevant particulars. The IO, not having done so, this casts a cloud of doubt if really the alleged stolen mobile phone Ex. P-1 was found and recovered from the possession of accused. Adding, FIR No: 85/11 state v. bhupender @ sonu Page No.11/12 for no reasons explained, the IO did not prepare the site plan of the place from where the accused was apprehended and recovery of the stolen mobile phone effected. The secret information was not reduced into writing nor the factum of secret information was ever brought to the notice of any higher police official. All these omissions and commissions on the part of the members of the raiding party who allegedly made recovery of stolen mobile phone from the possession of the accused, raise doubt over the case of the prosecution. Hence, it is held that the prosecution miserably failed to prove its case against the accused for the charged offence beyond reasonable doubt. Therefore, the accused is acquitted of the same.
Dictated & Announced in Open Court (Kishor Kumar) nd On the 22 day of August, 2016 MM-03/South-West/Delhi 22.08.2016 FIR No: 85/11 state v. bhupender @ sonu Page No.12/12