Delhi District Court
State vs . Bittoo on 18 April, 2023
IN THE COURT OF SH. ANUBHAV JAIN, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SHAHDARA, KKD COURTS,
DELHI.
FIR No. 34/2018
PS - Anand Vihar
U/s 379/411 IPC & 147/179 Indian Railways Act
State Vs. Bittoo
JUDGMENT
A. SL. NO. OF THE CASE : 4777/2018
B. DATE OF INSTITUTION : 24.08.2018
C. DATE OF OFFENCE : 02.07.2018
D. NAME OF THE : Vikas Kumar Kesari
COMPLAINANT
E. NAME OF THE ACCUSED: Bittoo
F. OFFENCE COMPLAINED OF: 379/411 IPC & 147/149 Indian
Railways Act
G. PLEA OF ACCUSED PERSONS: Pleaded not guilty
H. FINAL ORDER : Convicted for the offences u/s 379/411 IPC &
147 Railways Act.
Acquitted for the offence u/s 149 Railways Act.
I. DATE OF FINAL ORDER : 18.04.2023 FIR no. 34/2018 State vs. Bittoo. Page no. 1 Of 12 Brief Statement of Reasons for Decision :
1. Present accused is produced before the court to stand trial for the offence punishable u/s 379/411 IPC and 147/149 Indian Railways Act.
2. In brief, facts of the case as per the prosecution are that on 02.07.2018, while ASI Babu Ram along with Ct. Rahul were on patrolling duty at Anand Vihar Railway Station and when they reached at Circulating Area Motorcycle Parking, they heard some one shouting "chor-chor". It is further stated that upon the same, both the police officials apprehended the said person, who was running away. Thereafter, the person who was raising noise reached at the spot and informed them that the laptop bag in the hands of accused(the person apprehended) belongs to him (complainant). He further informed that the said Laptop bag contains his Dell Laptop, laptor charger and mobile charger and that same was got stolen from Supkranti Express Train.
Upon the same, IO recorded the statement of the complainant namely Vikas Kumar Kesari who stated that on 02.07.2018, he boarded Supkranti Express Train and at around 5 PM he took his seat no. 32 at coach no. S-6 and put his Laptop bag on the upper berth. He further stated that after 5 minutes he noticed that some person has stolen his Laptop bag from upper berth, upon which he de-boarded the train and started searching for his bag. He further FIR no. 34/2018 State vs. Bittoo. Page no. 2 Of 12 stated that till 7 PM, due to heavy rain and bad weather he stayed back at the platform and after the rain stopped, he came out at the parking area of the Railway Station. He further stated that at about 08:15 PM, he found one person going towards the out-gate of the station with his laptop bag and upon the same, he raised noise (chor- chor), when the said person was apprehended by the police officials.
Upon the said complaint of the complainant, IO got the FIR registered against the accused for the offence u/s 379/411 IPC. Further, since accused was found to be not carrying the platform ticket, further Section 147 and 149 Indian Railways Act were added in the said FIR.
That thereafter, IO during the course of investigation prepared the site plan, arrested the accused person, recorded the statement of the witnesses and seized the case property. After completion of investigation, IO file the charge-sheet against the accused person for the offence punishable u/s 379/411 IPC and 147 and 149 of Indian Railways Act.
3. Upon filing of the charge-sheet, Ld. Predecessor Court took cognizance of offence on 24.08.2018 and further supplied copy of the charge-sheet to the accused in compliance of Section 207 Cr.PC on the same day itself.
4. Further, charges were framed against the accused person for the FIR no. 34/2018 State vs. Bittoo. Page no. 3 Of 12 offence punishable u/s 411/379 IPC and 147/149 of Indian Railways Act on 07.09.2018, to which accused pleaded not guilty and claim trial.
5. To prove its case, prosecution examined four witnesses. The role of the PWs is described herein below.
PW-1/HC Bhupender deposed that on 02.07.2018, he was working as Duty officer and PW-3/Ct. Rahul produced before him rukka sent by PW-4/ASI Babu Ram and he endorsed the Rukka Ex. PW1/A and he got FIR registered Ex. PW1/B. He further deposed that he issued a certificate 65 of IEA Ex. PW1/C. PW-2/Vikas Kumar Kesari deposed that on 02.07.2018, he was at the Anand Vihar Railway Station to board the Sapt Kranti Express from AVRS to Bettiah, Bihar and his seat was in S-6, berth no. 32 which was upper berth. He further deposed that he put his laptop bag on his berth. After two minutes, he saw that his laptop bag was not there and it was stolen by some one and he inquired about the same but all in vain. He further deposed that he started searching his laptop here and there at platform no. 2 of AVRS but all in vain. He further deposed that at that time, it was heavy raining and storm due to which he could not go outside and at about 08:00 PM, he went to the parking area of the AVRS station to search his laptop bag and on reaching there, he saw that one unknown person was carrying his FIR no. 34/2018 State vs. Bittoo. Page no. 4 Of 12 laptop bag and he made noise by shouting "chor chor". He further deposed that one police personnel who was at duty chased the accused and caught him red handed. He further deposed that police personnel took him and accused to the PS and police had broke the lock as his key was stolen. Further, he identified his Dell laptop and the charger. Witness further proved his statement Ex. PW2/A, arrest memo Ex. PW2/B, personally search memo Ex. PW2/C, seizure memo of laptop Ex. PW2/D, seizure memo of photocopy of the receipt of the DEL laptop and E-ticket Ex. PW2/E and receipt of his laptop is Ex. PW2/F (OSR). He further deposed that he had also given copy of his Aadhar Card to IO Ex. PW2/G (OSR) and got his laptop was released vide release memo Ex. PW2/H. Witness correctly identified the accused and case property in the court.
PW-3/HC Rahul deposed that on 02.07.2018, he joined the investigation with PW-4/ASI Babu Ram and they were on patrolling duty in the parking area of AVRS and heard shouting as chor chor from the side of parking and they saw that one person was fleeing towards exit gate. They apprehended the said person and recovered a bag of black colour. He further deposed that in the meanwhile, one person came there and told to them that his bag is stolen from Saptkranti sleeper coach train and this is his bag. Thereafter, IO asked him what is inside in his bag and he replied that one Dell laptop, one laptop charger, mobile charger. He further deposed that IO prepared FIR no. 34/2018 State vs. Bittoo. Page no. 5 Of 12 site plan Ex.PW3/A. PW-3 proved the seizure memo of case property, seizure memo of the railway ticket of the complainant, arrest memo of accused, personal search memo of accused. He further deposed that disclosure statement of accused was recorded Ex. PW3/B. Witness correctly identified the accused in the court.
PW-4/SI Babu Ram reiterated the facts as stated by PW-3 during the course of his testimony. He further deposed that he prepared rukka Ex. PW4/A. PW-4 proved the statement of the complainant Vikas Kumar Kesari, site plan, seizure memo of the case property, seizure memo of bill of laptop and IRCTC e-ticket and ID of the complainant, arrest memo of accused, personal search memo, disclosure statement of accused. He further deposed that Ct. Pankaj did not join the investigation and his name is inadvertently mentioned in the list of witnesses. Witness correctly identified the accused and case property in the court.
6. Thereafter, PE was closed on 14.03.2023 and matter was listed for statement of accused. Statement of accused u/s 313 Cr.PC was recorded on 21.03.2023, wherein, contradictory averments made by the accused. Further, accused states that he does not wish to lead DE and matter was listed for final arguments.
7. It is argued by the Ld. counsel for accused that there is no FIR no. 34/2018 State vs. Bittoo. Page no. 6 Of 12 investigation conducted with regard to the fact that it was the accused who has committed theft of the laptop of the complainant. It is further argued that accused has been falsely implicated in the present case. It is further argued that no public witness of the recovery has been made by the IO. It is further argued that prosecution has failed to prove its case beyond reasonable doubt and accused is entitled to be acquitted for the offence he is charged for.
8. On the other hand, it is argued by Ld. APP for the State that all the witnesses have correctly identified the accused in the court. It is further argued that recovery of stolen item was made from the possession of the accused and same is duly proved by the prosecution witness. It is further argued that prosecution has proved the case beyond reasonable doubt and accused is entitle to be punished for the offences he is charged for.
9. I have heard the arguments so led by Ld. APP for the State and Ld. counsel for the accused and perused the case file carefully.
10. It is settled proposition of criminal law that burden lies upon prosecution to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit FIR no. 34/2018 State vs. Bittoo. Page no. 7 Of 12 from the weaknesses, if any, in the defence of the accused.
11. It is the case of the prosecution that accused herein committed theft of laptop bag of the complainant on 02.07.2018 and he was found further in the possession of the same. It is further the case of the prosecution that accused was found to be present at Railway Station without having any valid ticket. As such, it is for the prosecution to prove:-
a. That accused has committed theft of laptop bag of the complainant and was found in the possession of the same.
b. That accused was found to be on Railway Station without having valid ticket.
12. In order to prove its case, prosecution has examined the complainant Vikas Kumar Kesri as PW-2. Complainant Vikas Kumar Kesri during the course of his evidence have stated that he boarded Saptkranti train on 02.07.2018 from Anand Vihar Railway Station when his laptop bag was stolen from his berth. Furthermore, as per the testimony of the complainant, accused Bittoo was found present at the Railway Station with the laptop bag of the complainant when he was apprehended by the police officials.
In order to corroborate his averments that complainant has boarded Saptkranti Train on the said date, complainant has FIR no. 34/2018 State vs. Bittoo. Page no. 8 Of 12 produced his e-ticket of the train as per which, the date of boarding is 02.07.2018 from Anand Vihar Railway Station and the seat number allotted to the complainant was in S-6 berth no. 32. Complainant has further produced the invoice of his Dell Laptop.
13. The factum that the accused was caught while in possession of laptop bag of the complainant is further proved by the testimony of police officials who deposed as PW-3 and PW-4 respectively. The said witnesses further proved that when the said laptop bag was open it was found carrying the Dell Laptop, laptop charger and mobile charger as stated by the complainant. As such, the testimony of police witnesses corroborate the averments of the complainant.
14. The said witnesses were cross-examined at length by Ld. counsel for the accused, however nothing is brought forth to show that the accused has been falsely implicated in the present case. In view of the same, the prosecution has proved that accused was found in possession of the laptop bag having laptop and charger of the complainant.
15. As such, now coming upon the arguments so led by the Ld. counsel for the accused that there is no eye-witness brought forth by the prosecution to prove that the said laptop bag was stolen by the accused Bittoo, it is pertinent to state in here that no explanation has FIR no. 34/2018 State vs. Bittoo. Page no. 9 Of 12 been brought forward by the accused to explain as to how he came within the possession of the laptop bag of the complainant.
Section 114 of Indian Evidence Act empowers the court to presume the existence of certain facts taking into consideration the common course of natural events, human conduct and public and private business with relation to facts of case at hand. Furthermore, as per illustration of Section 114 of Indian Evidence Act, a man who is in possession of stolen goods soon after the theft is either the theif or has received the goods knowing them to be the stolen, unless he can account for his possession.
16. The accused in answer to question no. 1 in his statement u/s 311 Cr.PC has admitted the fact that he has committed theft of laptop bag of the complainant on 02.07.2018 from Saptkranti Train. However, subsequently in the statement u/s 311 Cr.PC itself, accused has stated that he is falsely implicated in the present case and that he went alongwith one person namely Danish, who stole the laptop bag and handed over to him.
As such, the accused has given contradictory versions as to how, he came within the possession of laptop bag of the complainant. Further, since once, a presumption u/s 114 of Indian Evidence Act is raised against the accused, onus of proof shifts upon him and it is for the accused to account for the possession of the stolen item. In the present case in hand, accused not brought forth any FIR no. 34/2018 State vs. Bittoo. Page no. 10 Of 12 evidence in order to show or proof as to how, he came within the possession of the stolen property.
17. Since, the accused has failed to account for the possession of the stolen article, it can be held that, it was the accused Bittoo who has committed theft of laptop bag of the complainant from the train.
18. It is also alleged against the accused that he was found present at Anand Vihar Railway Station without having any valid ticket or pass. In order to prove the fact that accused was present at the Anand Vihar Railway Station, the prosecution has placed on record, the arrest memo of the accused, as per which, he was arrested from Anand Vihar Railway Station. Accused himself never denied the fact that he was present at Anand Vihar Railway Station at the alleged point of time. Since, it is alleged against the accused that he was present at the Railway Station without having valid ticket, it was for the accused to show that he was having valid platform ticket at the said point of time when he was arrested from the railway station. In this regard, reference can be made to Section 106 of Indian Evidence Act, which states that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.
19. Since, no evidence has been brought forth by the accused to prove that he was having valid ticket at the alleged point of time, the FIR no. 34/2018 State vs. Bittoo. Page no. 11 Of 12 charges u/s 147 of Railways Act against the accused stands proved. Furthermore, the act of the accused as stated by the prosecution does not fall within the purview of Section 149 of Railways Act.
20. In view of the law and facts discussed above, accused Bitto is convicted for the offence u/s 379 and 411 IPC and 147 Railways Act and acquitted for the offence u/s 149 Railways Act. Digitally signed by ANUBHAV ANUBHAV JAIN JAIN Date: 2023.04.18 16:59:44 +0530 Announced in the Open Court (ANUBHAV JAIN) th on dated 18 March, 2023 ACMM/SHAHDARA DISTRICT/ KARKARDOOMA COURTS/ DELHI/18.04.2023 Present judgment consisted of 12 pages and each page bears Digitally signed by my signatures. ANUBHAV ANUBHAV JAIN JAIN Date: 2023.04.18 16:59:54 +0530 (ANUBHAV JAIN) ACMM/SHAHDARA DISTRICT/ KARKARDOOMA COURTS/ DELHI/18.04.2023 FIR no. 34/2018 State vs. Bittoo. Page no. 12 Of 12