Delhi District Court
State vs Nitin Sharma & Ors. on 31 July, 2014
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATE -04, ROOM NO.212
DWARKA, DELHI
STATE versus Nitin Sharma & Ors.
FIR No. 19/10
PS: Dwarka South
U/s- 356/379/411/34 IPC.
1. Serial No. of the case : 0240 5R 0156232011
2. Date of commission of offence : 10.12.2010
3. Name of the complainant : Amarjeet s/o Sh. Ganga Sharma
4. Name of the accused, and his : 1. Nitin Sharma s/o Sh. Mahesh Sharma
parentage and residence r/o C-37/9, Old Som Bazar Road, Mahabir
Enclave, Delhi
2. Harish s/o Sh. Tejender Singh
r/o RZC-126, Old Som Bazaar Road, Mahabir
Enclave, Delhi
3. Shivam Singh s/o Sh. Shyam Singh
r/o RZG-17, Mandir Marg, Mahabir Enclave
Part I, Delhi
5. Date of Reserving Judgment : 14.07.2014
6. Date when judgment was : 31.07.2014
pronounced
7. Offence Complained of : Section 356/379/411/34 IPC.
8. Plea of accused : Pleaded not guilty.
9. Final Order : Acquittal.
10. Date of Order : 31.07.2014.
JUDGMENT
Brief Statement of the reasons for the decision of the case
1. Succinctly, the facts of the present case are that the accused persons have been brought before this court for trial on the allegation that on 10.12.2010 under metro line Sector 10, Dwarka, the accused State v. Nitin Sharma & Ors.
FIR no. 19/10 PS Dwarka South Page 1 of 6persons reached at the spot in a Maruti van bearing no. DL 9CK 6276 and snatched the complainant Amarjeet's mobile phone and cash of Rs.15,000/-. An FIR was lodged on the complaint of Sh. Amarjeet. On apprehension of the accused persons, the case property was recovered from the possession of accused Shivam and Harsh. The investigation was completed and charge sheet was filed against the accused under Section 356/379/411/34, Indian Penal Code 1860 (hereinafter referred to as IPC) on 27.07.2012. Cognizance was taken and provisions of Section 207, CrPC were complied with.
2. After hearing arguments on charge, a charge under Section 356/379/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. A separate charge under Section 411/34 IPC was also framed against accused Shivam and Harsh to which they pleaded not guilty and claimed trial. Thereafter, the matter was listed for Prosecution Evidence. The prosecution examined as many as 9 witnesses. PW1 Amarjeet is the complainant. PW2 HC Roshan Lal is the DO. PW3 Ct. Dharmender, PW6 SI B.S. Gulia, PW7 HC Jaiveer and PW8 HC Govind were the part of the team which apprehended the accused persons. PW4 Ct. Heera Ram and PW5 Ct. Pradeep aided the IO in the investigation of the present case. PW9 HC Ram Avtar is the IO. Prosecution evidence was closed vide order dated 28.02.2014. Statement of the accused under Section 313, CrPC was recorded on 11.03.2014. No defence evidence was led by accused persons. Hence, DE was closed. Thereafter, matter was listed for final arguments.
3. At that time, the Ld. APP moved an application under Section 311, CrPC as during the examination-in-chief of PW1 Amarjeet, he had stated that he could not identify the accused persons and he had not been cross-examined by him at this point. The application was allowed and PW1 Amarjeet was recalled for cross-examination. He was cross-examined and discharged on 14.07.2014. An additional statement of the accused persons under Section 313, CrPC was recorded on the same day. The accused persons were again given an opportunity to lead DE but they chose not to do so. Thereafter, final arguments were heard. I have also gone through the record.
4. The accused persons have been charged for the offence under Section 356/379/34 IPC and Section 411 IPC in the alternative. First, the court shall see if the offence under Section 356/379/34 IPC are made out against the accused or not. Section 379, IPC provides for punishment for theft, which has been defined under Section 378, IPC as follows:
State v. Nitin Sharma & Ors.FIR no. 19/10 PS Dwarka South Page 2 of 6
"Theft.-- Whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft."
5. Section 356, IPC provides for punishment for assault or criminal force in attempt to commit theft of property carried by a person. Therefore, in order to prove that the accused persons have committed the offence under Section 356/379/34 IPC, the prosecution must prove the following:
a) the accused moved/took a movable property from the possession of the complainant;
b) such moving/taking was without the consent of the complainant;
c) such moving/taking was done with dishonest intention;
d) while committing the above, the accused assaulted or used criminal force upon the complainant; and
e) the above-mentioned acts were done by the accused persons in furtherance of their common intention with each other.
6. The Ld. APP has submitted that all the above-mentioned essentials are made out against the accused in view of the sound testimony of PW1 Amarjeet. He has stated on oath that on 10.12.2010 iunder metro line Sector 10, Dwarka, the accused persons reached at the spot in a Maruti van bearing no. DL 9CK 6276 and snatched the complainant Amarjeet's mobile phone and cash of Rs.15,000/-. He duly identified the accused persons as the assailants in the court. He was duly cross-examined by the Ld. Counsel for the accused in the court but his testimony could not be shaken. Hence, the version of the prosecution is established beyond reasonable doubts.
7. Per contra, Ld. Counsel for the accused has argued that the accused persons be acquitted. It is stated that during the examination-in-chief of PW1 Amarjeet, he could not identify the accused and was declared hostile by the Ld. APP on this point. Then, only during his cross-examination by the Ld. APP, he identified the accused persons. It is submitted that this identification does not inspire confidence. Further, he had stated in his examination-in-chief dated 26.04.2012 that he could not identify the accused persons as during the incident, they were in muffled faces. This was again repeated by him on 14.07.2014. He stated that at that time, their faces were covered by a handkerchief. Hence, it clearly indicates that the complainant has deliberately identified the accused at the instance of the prosecution.
FIR no. 19/10 PS Dwarka South Page 3 of 68. Ld. APP has submitted that in this regard, a clarification was taken by the court from PW1 Amarjeet and he had responded that he could identify the accused persons as their faces were covered only with a handkerchief. Further, he identified the accused persons on his own and not at his pointing out. Hence, the averment of the Ld. Counsel for the accused is of no consequence.
9. I have perused the record. As pointed out by the Ld. Counsel for the accused, PW1 Amarjeet could not identify the accused persons during his deposition in the court. Then, he again reaffirmed that the faces of the accused persons were covered during the incident. In view of the same, his correct identification of the accused persons in the court, at the second instance, does not inspire confidence. It would have been a different matter had he identified the accused persons at the first instance in the court. Hence, a benefit is doubt is accrued in favour of the accused persons. No other evidence has been led by the prosecution to prove the commission of the offences by the accused persons. In view of the same, the accused are acquitted for the offences under Section 356/379/34 IPC.
10. In the alternative, the accused Harsh and Shivam have been charged for the offence under Section 411/34, IPC as the case property i.e. the mobile phone and cash of Rs.2,000/- was allegedly recovered from the possession of the accused persons respectively. In this regard, Ld. APP has relied upon the testimonies of PW3 Ct. Dharmender, PW6 SI B.S. Gulia, PW7 HC Jaiveer and PW8 HC Govind in whose presence the case property was allegedly recovered. Ld. APP submits that the PWs stated on oath that on 16.12.2010, at about 01.45 am, at the information of one secret informer, they reached near MTNL office, Dabri Palam and apprehended the accused persons and on the formal search of accused Harsh and Shivam, the case property i.e. the mobile phone and cash of Rs.2,000/- was recovered from the possession of the accused persons respectively. It is submitted that these witnesses have deposed in corroboration with each other and nothing contrary could be brought out in their cross-examination by the defence.
11. On the other hand, Ld. Counsel for the accused has argued that even this charge has not been proved by the prosecution. Ld. Counsel for the accused submits that on the basis of the alleged recovery of Rs.2,000/-, the accused Shivam cannot be convicted as it could not be proved on record that the alleged cash belonged to PW1 Amarjeet. Even PW1 Amarjeet could not identify the currency notes in the court. Hence, no offence is made out against accused Shivam.
FIR no. 19/10 PS Dwarka South Page 4 of 612. The court is in total agreement with the Ld. Counsel for the accused. The cash could have been of any person and as pointed out by the Ld. Counsel for the accused, the currency notes could not be identified by PW1 Amarjeet in the court. Hence, the offence under Section 411, IPC is not made out against accused Shivam.
13. Regarding accused Harsh, Ld. Counsel for the accused has argued that the prosecution has not proved that the alleged recovered mobile phone has not been proved to be owned by the complainant. Further, PW1 Amarjeet did not mention the IMEI number of the mobile phone in his complaint Ex.PW1/A. The IMEI number was disclosed by him on 18.12.2010 while the recovery had already been effected on 16.12.2010. Hence, it has not been proved that the mobile phone belonged to the complainant.
14. Ld. APP, on the other hand, stated that the recovery has been beyond reasonable doubts from the testimonies of PW3 Ct. Dharmender, PW6 SI B.S. Gulia, PW7 HC Jaiveer and PW8 HC Govind. Further, the same is also proved as the mobile phone was correctly identified by PW1 Amarjeet in his deposition in the court.
15. The latter argument taken by the Ld. Counsel for the accused is misleading. As per the record, the IMEI number of the mobile phone was allegedly disclosed by the complainant on 10.12.2010 vide a supplementary statement under Section 161, CrPC and not on 18.12.2010, as stated by the Ld. Counsel for the accused. However, on other grounds, the court is of the opinion that the prosecution has failed to prove beyond reasonable doubts that the mobile phone belonged to the complainant. Firstly, the statement under Section 161, CrPC dated 10.12.2010 has not been proved by the prosecution. The complainant PW1 Amarjeet did not corroborate this statement in the court. Hence, the statement has no relevance. Secondly, in his deposition before the court, PW1 Amarjeet stated that he was not aware of the IMEI number of his mobile phone. Thirdly, though he identified the mobile phone in the court, he stated in his cross-examination that he could identify the phone by switching it on and going through its contents but then he said that he had not gone through the recovered mobile. Hence, his identification of the mobile phone seems only on the ground that the same was of the same model as was stolen. At the cost of repetition, it may be mentioned that the prosecution could not prove that the mobile phone allegedly recovered was the same as was stolen from the complainant. Hence, the recovery is not State v. Nitin Sharma & Ors.
FIR no. 19/10 PS Dwarka South Page 5 of 6proved in terms of Section 411, IPC. Hence, considering all the facts and circumstances, the accused Harsh is acquitted for the offence under Section 411, IPC also.
16. In view of the above discussion, the accused persons are acquitted from the offences under Section 356/379/411/34 IPC. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 31.07.2014 (RUCHIKA SINGLA) METROPOLITAN MAGISTRATE-04 DWARKA COURTS, DELHI State v. Nitin Sharma & Ors.
FIR no. 19/10 PS Dwarka South Page 6 of 6