Delhi District Court
State vs Devraj Nagar on 29 January, 2025
Fresh Criminal Appeal
CA 27/2025
State Vs. Devraj Nagar
29.01.2025
Fresh criminal appeal is received by way of
assignment. It be checked and registered as per rules.
Present: Ms. Manisha Singh, Ld. (Subs.) Addl. PP for the
State/appellant.
1. Heard. Appeal file including the impugned judgment of
acquittal is carefully perused.
2. The present appeal is preferred against the judgment dated
24.07.2024 passed by Ld. JMFC-04, NDD, PHC, New Delhi
whereby the respondent has been acquitted for the offence
punishable under Sections 380/457/411 IPC.
3. Briefly stated, the case of the prosecution is that an FIR bearing no.84/2016 under Sections 380/457 IPC PS Inder Puri was registered on the complaint of Sh. Sumit Jha to the effect that on 10.09.2016, he was studying in his room with open door and fell asleep at around 03-03:30 am. He alleged that when he woke up, he found that his three mobile phones i.e. Samsung Galaxy Ace 2 GTI 8160; Samsung Wave 5; and Nokia were missing from his room.
4. During investigation, CDR of all the said three mobile phones were obtained and mobile phone (make Nokia) was found active with SIM No.8860588189 registered in name of the respondent. On 29.10.2019, the said stolen mobile phone was seized from the respondent. On completion of investigation, charge-sheet was filed in the court concerned. On 27.11.2019, the respondent was charged for the offence punishable under Section Digitally signed by DHEERAJ DHEERAJ MOR Page No.1 of 6 MOR Date:
2025.01.29 17:36:39 +0530 380/457/411 IPC. In order to prove its case, the prosecution examined five witnesses including complainant. After conclusion of trial, the respondent was acquitted for the said offences by way of impugned judgment.
5. The grievance of the State against the impugned order is confined to his acquittal for the offence punishable under Section 411 IPC. Even otherwise, there is no illegality in the impugned judgment regarding his acquittal for the offence punishable under Sections 380/457 IPC. The Ld. Trial Court has rightly arrived to the said conclusion as none of the prosecution witness including complainant saw the respondent committing the offence of theft or trespass. Further, there is no scientific evidence on record in the form of CCTV footage or call detail records to establish presence of the respondent on the alleged date, time and place of the incident. Moreover, illustration (a) appended to Section 114 of Evidence Act, 1872 also does not come to the rescue of the prosecution in order to draw presumption against him that he committed the offence of theft and trespass. The alleged recovery of one of the three stolen mobile phones of the complainant was not effected from the respondent soon after the theft but it was recovered from him after thirteen months of the incident i.e. on 29.10.2017. Thus, acquittal of the respondent for the offence punishable under Section 380/457 IPC is legally sustainable finding and therefore, it does not require any interference. The appellant has also rightly and wisely chosen not to challenge the said part of the judgment of acquittal.
6. In respect of the impugned part of the judgment of acquittal qua the offence punishable under Section 411 IPC, Ld. DHEERAJ MOR Page No.2 of 6 Digitally signed by DHEERAJ MOR Date: 2025.01.29 17:36:46 +0530 (Subs.) Addl. PP for the State/appellant submits that the Ld. Trial Court has failed to appreciate that on 29.10.2017, the respondent himself handed over the stolen mobile phone (make Nokia) of the complainant to the police official in PS Inder Puri. However, he has not produced any documentary evidence to establish his defence that he purchased the same from someone in the sum of Rs.500/-. She further submits that there is sufficient evidence on record against the respondent for the offence punishable under Section 411 IPC as he was using SIM no.8860588189 in the said mobile phone and the said fact is also corroborated by the testimony of PW-2 Jai Singh.
7. In the instant case, the prosecution has been able to successfully establish that on 10.09.2016 at the alleged place, three mobiles phones including Nokia mobile phone Ex.P1 of the complainant (PW-1) were stolen. The defence has not denied the recovery of the said mobile phone Ex.P1 from the respondent on 29.10.2017. As per case of the prosecution, the CDR of the said mobile phone was obtained and it was found to be used by the respondent. Accordingly, on 29.10.2017, the said mobile phone was recovered from him. The said facts have not been disputed by the respondent. Thus, it is established beyond any reasonable doubt that the mobile phone Ex.P1 is stolen property of this case and the respondent was in its possession on 29.10.2017. Accordingly, it is evident that the stolen property was found in possession of the respondent after about thirteen months of its theft.
8. The Ld. Trial Court has rightly observed that in order to indict the respondent for the offence punishable under Section Digitally signed by DHEERAJ DHEERAJ MOR Page No.3 of 6 MOR Date:
2025.01.29 17:36:52 +0530 411 IPC, the prosecution is required to establish that the respondent was dishonestly retaining the said stolen mobile phone Ex.P1 knowing or having reason to believe the same to be the stolen property. The onus of proving the said ingredient (mens rea) of the said offence lies on the prosecution.
9. Mens rea is not a physical object that can be perceived by senses. Rather, it is a question of fact which is to be gathered from the acts of the parties and the accompanying circumstances. It is the natural result of a man's act and not the condition of his mind that is looked upon by the law. The legal maxim is that everyone must be presumed to intend the normal consequences of his act.
10. Therefore, for ascertaining the mens rea of the respondent in committing the present offence, his act, motive, value of the stolen property, time gap between the theft and recovery, previous criminal involvement of the respondent, the financial condition of the respondent and other relevant circumstances are required to be evaluated.
11. The complainant has placed and proved on record the invoice of the stolen mobile phone Ex.P1. As per said invoice, he purchased it for an amount of Rs.1,900/- from a shop on 25.04.2014 i.e. more than two years prior to the present incident. In the present era of technological advancement, the prices of the electronic devices including mobile phones exponentially drops with every passing day with the advent of new technology. Therefore, at the time of the theft of the said mobile phone, its market value must have plunged to insignificance. Thus, the version of the respondent that he purchased it for Rs.500/- from Digitally signed by DHEERAJ DHEERAJ MOR Page No.4 of 6 MOR Date:
2025.01.29 17:36:58 +0530 an unknown person is extremely probable. Further, the fact that the respondent did not have any previous involvement and belonged to a poor strata of society for being a labourer, the said defence appears to be credible. In these circumstances, there is sufficient reason to presume that the respondent was in bona fide possession of the mobile phone Ex.P1. The onus of proving defence shifts to the respondent only when the prosecution is able to prove its case beyond reasonable doubt. In this case, the prosecution has not been able to successfully discharged its onus of substantiating its allegations that the respondent was retaining stolen mobile phone Ex.P1 with dishonest intention. In absence thereof, there was no occasion for the respondent to lead evidence to prove that he bona fidely purchased it from an unknown person for an amount of Rs.500/-. Therefore, non- leading of any evidence in that regard by him cannot be read against him when the prosecution itself failed to stand on its own legs.
12. Furthermore, it is a commonly known fact that the actual perpetrators of the offence of theft of mobile phones do not use them by themselves as they are aware that if used, they can be easily traced by routine scientific surveillance. Therefore, the said perpetrators identify and find vulnerable victims to whom they can sell/dispose the stolen mobile phones at throw away prices by exploiting their vulnerability in the form of poverty, illiteracy or ignorance. The open manner in which the respondent was using the stolen mobile phone coupled with the above discussed mitigating circumstances in his favour gives rise to the presumption of absence of mens rea in this case. In the above Digitally signed by DHEERAJ DHEERAJ MOR MOR Date:
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given circumstances, the Ld. Trial Court has rightly drawn presumption of innocence in favour of the respondent and has justly given him benefit of doubt.
13. Consequently, there is no illegality, error or infirmity in the impugned judgment of acquittal. Rather, it is a legally sustainable and reasoned judgment which deserves to be upheld. Therefore, there is no merit in the present appeal and it is hereby dismissed.
14. Appeal file be consigned to the record room after due Digitally signed DHEERAJ by DHEERAJ compliance. MOR MOR Date: 2025.01.29 17:37:16 +0530 (Dheeraj Mor) ASJ-06/NDD/PHC New Delhi:29.01.2025 Page No.6 of 6