Delhi District Court
State vs . Rahul on 22 September, 2012
IN THE COURT OF MS. NEHA: METROPOLITAN
MAGISTRATE10 : (SOUTH EAST) DELHI
STATE Vs. Rahul
FIR No: 18/07
P. S. Amar Colony
Date of Institution of Case : 14.11.2007
Date on which case reserved : 24.08.2012
for Judgment
Date of Judgment : 22.09.2012
JUDGEMENT U/S 355 Cr.P.C
.:
a) Date of offence : 379/411/34 IPC
b) Offence complained of : U/s 379/411/34 IPC
c) Name of complainant : Imran Khan
d) Name of accused, his : Rahul
parentage & residence S/o Sh. Ramesh
R/o S46, Private Colony,
Sriniwaspuri, New Delhi.
e) Plea of accused : Not guilty
g) Final order : Acquitted
Present: Sh. Nischal Singh, Ld. APP for the State
Sh. B.S. Randhawa, Ld. Counsel for the accused Rahul.
FIR no. 18/07 State vs. Rahul
PS Amar Colony 1 of 11
BRIEF FACTS AND REASONS FOR DECISION:
1. The case of the prosecution in brief is that on 15.09.2007 at about 8.15 PM at Garhi, Main Chowk near Bus stand within the jurisdiction of PS Amar Colony, accused Rahul alongwith co accused Sonu (already convicted) in furtherance of their common intention committed theft of one mobile phone make Nokia model 2310 (light blue in colour) belonging to the complainant Sh. Imran Khan. It is also alleged by the prosecution that on 16.09.2007 at House No.853/24ِA, Gandhi Camp, Sriniwaspuri, New Delhi, one stolen mobile phone Nokia model 2310 (light blue in colour) belonging to complainant Sh. Imran Khan was recovered from the possession of accused Sonu. Accordingly, a case vide FIR No. 18/2007 was registered with PS Amar Colony, New Delhi.
2. After the completion of the investigation, charge sheet for offence u/s 379/411/34 IPC was filed against both the accused person. Cognizance of the offence was taken and they were summoned to face the trial for the offence allegedly committed by them. After supply of the copies to the accused person, FIR no. 18/07 State vs. Rahul PS Amar Colony 2 of 11 charge for the offence u/s 379/411/34 IPC was framed against both the accused person which was read over and explained to the accused person to which accused Rahul has pleaded not guilty and claimed trial and accused Sonu had voluntarily pleaded guilty and was convicted vide order dated 28.11.2007.
3. In Prosecution Evidence, prosecution examined six witnesses in all. The prosecution evidence was closed vide order dated 05.06.2012.
4. Prosecution has examined complainant Imran Khan as PW1. PW1 has stated that he was working as a Security Guard at DIHM, Lajpat Nagar. On 15.09.2007, he left the institute at about 8.00 PM and was traveling in the bus route No. 429 for Garhi. He has stated that when the bus reached at Garhi bus stand, somebody picked his mobile phone make Nokia 2310 from the right pocket of his pant, whose name was later on revealed as Rahul. Accused Rahul handed over the said mobile phone to one of his associate. Thereafter, both the accused person started running. However, he managed to apprehend one of them namely Rahul. Accused Rahul disclosed the name of his associate as Sonu. Somebody called the police and police FIR no. 18/07 State vs. Rahul PS Amar Colony 3 of 11 came at the spot.
5. PW1 has further deposed that he handed over the accused to police. Police recorded his statement vide memo Ex. PW1/A. Then, accused Sonu got recovered the above said stolen mobile phone from his house, which was seized vide memo Ex. PW1/B. Both the accused were arrested and their personal search were conducted vide memos Ex. PW1/C to Ex. PW1/F. Thereafter, disclosure statement of both accused were recorded vide memos Ex. PW1/G and Ex. PW1/H. Police prepared the site plan at his instance vide memo Ex. PW1/I.
6. Prosecution has also examined Shyamvir, collegue of complainant as PW1 (it appears that due to inadvertent mistake he has been again cited as PW1, though he should be PW2). He has deposed that he was working as security guard at DIHM. The complainant belonged to his village. He has stated that he gave the complainant his SIM card bearing number 9911906275 of Idea company for use and the theft of mobile phone took place.
7. HC Praveen Kumar has been examined as PW2. He has stated that on that day, he was working as DO from 4.00 PM to 12.00 FIR no. 18/07 State vs. Rahul PS Amar Colony 4 of 11 midnight. At about 10.30 PM, he has received one rukka sent by ASI Sukhwinder Singh through Ct. Sanjeev for registration of FIR. He has registered the FIR on the basis of rukka vide memo Ex. PW2/A and endorsement on rukka vide memo Ex. PW2/B.
8. ASI Sukhwinder has been examined as prosecution witness. Though again due to the inadvertent mistake he has been cited as PW2, however he should have been PW3. ASI Sukhvinder has deposed that on 15.09.2007, on receiving DD No. 16A from duty officer, he reached at Garhi Chowk, East of Kailash alongwith Ct. Sanjeev Kumar. When they reached there, complainant Imran Khan met them and narrated the entire incident. The complainant handed over accused Rahul to him. He recorded statement of complainant which is Ex. PW1/A and prepared rukka Ex. PW2/B and handed over the same to Ct. Sajeev for registration of FIR. After registration of FIR, he prepared site plan Ex. PW1/I.
9. ASI Sukhvinder has further deposed that he arrested the accused Rahul vide memo Ex.PW1/D and conducted his personal search vide memo Ex.PW1/E. Then he recorded the FIR no. 18/07 State vs. Rahul PS Amar Colony 5 of 11 disclosure statement of the accused Rahul vide memo Ex.PW1/M. On the pointing out of the accused Rahul, the accused Sonu was arrested on the intervening night of the incident from his house i.e S53/24, Gandhi Camp, Sriniwaspuri vide arrest memo Ex.PW1/F. He also conducted personal search of accused vide memo Ex.PW1/E and also recovered the stolen mobile from a bag hidden in his jhuggi. Thereafter, ASI prepared the pointing out as well as the seizure memo of the mobile phone vide memo Ex.PW1/B. Thereafter, he also recorded disclosure statement of the accused Sonu vide memo Ex.PW1/G.
10.HC Sanjeev Kumar has been examined as PW3. HC Sanjeev Kumar has deposed on the lines of ASI Sukhvinder Singh.
11. Prosecution has examined Sh. Pawan Singh, Nodal Officer, Idea Cellular as PW4. PW4 has proved the CDR of the mobile of the complainant as Ex. PW4/A(colly).
12.Statement of accused Rahul was recorded under Section 313 Cr.P.C. in which he denied all the incriminating evidence against him and claimed himself to be innocent. However he denied to lead any evidence in defence.
FIR no. 18/07 State vs. Rahul PS Amar Colony 6 of 11
13.Final arguments were addressed on behalf of prosecution and the accused.
14. Ld. APP for the State has argued that the prosecution has been able to prove its case beyond reasonable doubt and recovery has been effected at the instance of the accused Rahul. It is also argued on behalf of State that the accused was apprehended by the complainant at the spot and he has also been arrested in the presence of complainant and have also been identified by the complainant.
15.On the other hand, Ld. Counsel for the accused has argued that accused has been falsely implicated. Ld. counsel has argued that there are material contradictions in the testimonies of prosecution witnesses which makes the story of the prosecution doubtful. Therefore accused may be given benefit of doubt and may be acquitted.
16. I have considered the submissions of Ld. APP for the state and Ld. Counsel for the accused persons and perused the entire material on record carefully. After appreciation of the testimonies of the witnesses as well as the material placed on record by the prosecution, this Court is of the opinion that the FIR no. 18/07 State vs. Rahul PS Amar Colony 7 of 11 there are major contradictions in the testimonies of PWs, which makes the story of the prosecution doubtful.
17. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. Certain inherent contradictions are noticed in the testimony of prosecution witnesses which remained unexplained.
18. It is relevant to mention that complainant has been examined as PW1. In the examination in chief, the complainant has supported the story of the prosecution. However in the cross examination, he has stated a different story from that of the prosecution. In the crossexamination, complainant has stated that he along with accused Rahul went to the police station Amar Colony by auto. They were only two person in the auto, he and accused Rahul. Inquiry was made in the PS. Complainant also did not remember about the place where he FIR no. 18/07 State vs. Rahul PS Amar Colony 8 of 11 signed his complaint. He has stated that 34 persons accompanied him to the house of coaccused Sonu (already convicted). He has also stated that mobile was given to a third person by coaccused Sonu, from whom he got the same recovered.
19. The entire testimony of the PW1 is contradictory to the prosecution case. The testimony of PW1 shows that he apprehended accused Rahul at the spot and thereafter he along with accused Rahul went to PS in an auto and handed over the accused to the police. He has also stated that in auto he was alone with accused Rahul. Thereafter he has stated that mobile was got recovered by coaccused Sonu from some third person, whose name he did not know. PW1 has stated in his cross examination that he remained in PS till 02.00 AM, thereafter he went to the house of accused Sonu.
20.However it is case of the prosecution that complainant apprehended accused Rahul at the spot, dialed number 100. Thereafter police reached the spot and arrested accused Rahul and on his disclosure, coaccused Sonu was arrested, who got recovered the mobile phone from a bag hidden in his jhuggi.
FIR no. 18/07 State vs. Rahul PS Amar Colony 9 of 11
21. Perusal of the arrest memo of accused Sonu would show that he was arrested at about 01.30 AM on 16.09.2007, this is contradictory to the statement of the complainant that he remained in the PS till 02.00 AM, till the documents against accused Rahul were prepared in the PS, thereafter they went to the house of the accused Sonu for recovery of mobile phone.
22.The testimony of PW1/complainant and police witnesses are contradictory. These contradictions create doubt over the prosecution story of alleged theft and recovery of articles.
23. The prosecution has also relied upon CDR of the mobile phone which is Ex. PW4/A. Perusal of the CDR would show that it contains information from 14.05.2007 to 16.09.2007. It is alleged that the theft has taken place in the night of 15.09.2007 at about 8.50 PM. However the CDR shows that even after alleged theft of the mobile phone at about 08.50 PM, it was used for making or receiving calls, which also creates doubt over the alleged theft.
24.In view of above discussions, this court is of the opinion that there are material contradictions in the testimonies of prosecution witnesses regarding the alleged theft and alleged FIR no. 18/07 State vs. Rahul PS Amar Colony 10 of 11 recovery of mobile phone. The prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused is entitled to benefit of doubt. Therefore, the accused Rahul is acquitted of charges for offence under Section 379/411/34 IPC.
Pronounced in the open Court (Neha)
today on 22th September, 2012 MM10 (South East)
Saket, New Delhi
FIR no. 18/07 State vs. Rahul
PS Amar Colony 11 of 11