Delhi District Court
State vs . Himanshu & Anr on 19 April, 2023
IN THE COURT OF SH. GAURAV DAHIYA, METROPOLITAN MAGISTRATE06, SOUTH
DISTRICT, NEW DELHI
State Vs. Himanshu & Anr
FIR NO: 217/2011
P. S Kalkaji
U/s 380/411 IPC
CT Case 92266/2016
JUDGMENT
Date of its institution : 20/10/2011
Name of the complainant : Sh. Manoj Bhardwaj,
S/o Sh. H. N. Bhardwaj,
R/o B268/C, Tigri Extn.,
New Delhi.
Date of Commission of offence : 26.06.2011
Name of the accused : (1) Himanshu,
S/o Sh. Raj Kumar Sharma,
R/o H. No. 1233B, Gali NO. 10, 2nd
Floor, Govind Puri, Kalkaji, New
Delhi.
(2) Gaurav,
S/o Sh. Anil Chauhan,
R/o H. NO. 686, A/7, Govind Puri,
Kalkaji, New Delhi.
1
Plea of accused : Not Guilty
Case reserved for orders : 29.03.2023
Final Order : Acquitted
Date of orders : 19.04.2023
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused persons namely Himanshu and Gaurav for having committed the offence punishable u/s 380/411 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, it is the case of prosecution that on 26.06.2011 at about 04:40 PM accused persons namely Himanshu and Gaurav committed theft of mobile phone make Blackberry belonging to complainant and committed an offence punishable u/s 380 IPC. Further, on 07.10.2011 the stolen mobile phone was recovered from the possession of the accused Himanshu.
3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused persons. Thereafter, charge u/s 380/34 IPC was framed against both the accused persons and charge u/s 411 IPC was framed against accused Himanshu vide order dated 18.08.2017 to which they pleaded not guilty and claimed trial.
4. PW1 deposed that on 26.06.2011 he was posted as a store Incharge of mobile store at H. No. 19/8, Kalkaji Extension, New Delhi at about 04:30 PM accused Himanshu along with coaccused Gaurav came to the shop on motorcycle and parked it and went inside the shop to buy blackberry torch model no. 9800 and on seeing the same accused persons were ready to buy and when complainant asked for payment, they had asked to make bill and one of the person had made an excuse for getting cash from nearby ATM 2 and in the moment they took the mobile phone and ran away from the spot. PW1 tried to chase the accused persons but they fled away. Thereafter, PW1 called at 100 number, police reached at the spot and enquired about the incident and recorded statement of PW1 as Ex. PW1/A.
5. PW2 deposed that on 26.06.2011, he was working as Assistant Store Manager at shop i.e. the Mobile Store situated at Kalkaji Extension, New Delhi. On that day, at about 4.00 p.m., two persons came on bike in shop and asked about one mobile phone make Blackberry and shown willingness to purchase the same. As soon as, he shifted his attention towards the counter, accused persons ran away with the abovesaid mobile phone.
6. PW3 deposed that in the month of June 2011 he used to work in the Blackberry store at Store Manager at K1, C R Park, New Delhi. Accused persons came into the shop and had seen the blackberry phone but not purchased. Thereafter, they went to the opposite shop. In the meantime, he heard the noise from opposite shop that some persons at gun point robbed the mobile and fled away. After hearing, he along with other staff went to the spot and met the staff of the shop who told that accused went into his shop and robbed him at gun point. Thereafter, police came at the spot. Police interrogated him and demanded DVR but he could not provide the same because his owner was not present at that time. After two days police came at store and his owner provided the hard disk to the police. His statement was recorded by the police.
7. PW4 deposed that on 26.06.2011, the present case was marked to him by ASI Vir Sen. He went to the spot i.e. 1829 Kalkaji, in front of the mobile store, in front of K31, C R Park. He prepared the site plan Ex. PW4/A. Thereafter, he reached at K31 Mobile Store and recorded the statement of staff which is mark A and B. He also checked the nearby shop and found CCTV camera installed there. He checked the same, in CCTV camera he had seen that accused went inside the shop and after some time accused left that shop.
3He requested the staff for CCTV footage but they refused because the owner was not present. On 03.07.2011, he obtained the CCTV footage from the owner and made photographs of the incident from footage which is already Ex. PW1/B. He did not prepare seizure memo of the DVR. He obtained IMEI number of the blackberry mobile phone. Thereafter, he sent the same for tracing. He collected the CDR and traced the location of the mobile phone. Thereafter, he went to the house of accused Himanshu where he met him and asked about the phone, accused Himanshu handed over the mobile phone to PW5. Thereafter, he arrested accused Himanshu and conducted his personal search vide memos Ex. PW4/B and Ex. PW4/C. Thereafter, he called coaccused through accused Himanshu and coaccused Gaurav came at the main road and he arrested and conducted personal search of coaccused Gaurav vide memos Ex. PW4/D and Ex. PW4/E. Thereafter, he recorded the disclosure statement of coaccused Gaurav Chauhan which is Ex. PW4/F. He also recorded disclosure statement of Himanshu Sharma which is Ex. PW4/G. He also seized the case property vide memo Ex. PW4/H. Subsequently, he along with accused persons went back to PS and the case property was deposited in Malkhana.
8. PW5 deposed that on 07.10.2011, he joined the investigation of the present case with SI Malkhan and Ct. Narender. During the course of investigation, he along with SI Malkhan and Ct. Narender went to 1278B/11, Govind Puri, New Delhi where he met with Himanshu. SI Malkhan interrogated the accused Himanshu and arrested and conducted his personal search vide memos are already Ex. PW4/B and Ex. PW4/C. SI Malkhan interrogated accused Himanshu but he did not disclose any specific information about the stolen property and coaccused Gaurav. Thereafter, accused Himanshu was brought to the PS Kalkaji. SI Malkhan interrogated accused Himanshu again and showed the CCTV footage. Thereafter, accused Himanshu told that the mobile was kept in his house in Almirah and he can apprehend other coaccused Gaurav. Thereafter, they all three along with accused Himanshu went to his house where he produced the stolen mobile phone from almirah before Malkhan. Thereafter, SI Malkhan seized the case property in pullanda 4 sealed with the seal of MSY. After use seal was handed over to him. Seizure memo of the case property is already Ex. PW4/H. Thereafter, they took the accused to gali no. 8 Govind Puri where accused Himanshu called other coaccused Gaurav Chauhan. In the meantime, coaccused Gaurav came at the spot and he was apprehended. Thereafter, SI Malkhan interrogated the coaccused Gaurav. In the meantime, arrest memo and personal search memo of coaccused Gaurav was conducted vide memos are already Ex. PW4/D and Ex. PW4/E. Thereafter, they came back to the PS along with accused Himanshu. Thereafter, he left the investigation.
9. PW6 deposed that on 26.06.2011, on receipt of call of theft of mobile phone, he along with SHO Kalkaji reached at the spot i.e. 1918, Kalkaji Extension, mobile store where he met with complainant Manoj Bhardwaj who informed them that accused Himanshu along with coaccused went and asked to buy mobile phone. Thereafter, accused persons took away the mobile phone and other was trying to give money and he also fled away. In the meantime, accused persons fled away on bike. He also interrogated the neighbour shopkeeper who told him that accused persons went on his shop also and was seeing the mobile phones. Thereafter, he recorded the statement of complainant and went to PS for registration FIR. He endorsed the statement of complainant and same was given to DO to register the case.
10. PW7 deposed that on 07.10.2011, he joined the investigation of the present case with SI Malkhan and HC Harish. During the course of investigation, he along with SI Malkhan and HC Harish went to 1278B/11, Govind Puri, New Delhi where he met with accused Himanshu. SI Malkhan interrogated, arrested and conducted his personal search vide memos are already Ex. PW4/B and Ex. PW4/C. SI Malkhan interrogated accused Himanshu but he did not disclose any specific information about the stolen property and coaccused. Thereafter, accused Himanshu was brought to the PS Kalkaji. SI Malkhan interrogated the accused Himanshu and shown the CCTV footage. Thereafter, accused Himanshu told that the mobile was kept in his house in Almirah and he can apprehend 5 other coaccused person. Thereafter, they all three along with accused Himanshu went to his house where he produced the stolen mobile phone from almirah before Malkhan. Thereafter, SI Malkhan seized the case property in pullanda sealed with the seal of MSY. After use seal was handed over to HC Harish. Seizure memo of the case property is already Ex. PW4/H. Thereafter, he took you to gali no. 8 Govind Puri where accused Himanshu called other coaccused Gaurav Chauhan. In the meantime, coaccused Gaurav came at the spot and he was apprehended. Thereafter, SI Malkhan interrogated the coaccused Gaurav. In the meantime, arrest memo and personal search memo of co accused Gaurav was conducted vide memos are already Ex. PW4/D and Ex. PW4/E. Thereafter, he came back to the PS along with accused persons. Thereafter, he left the investigation.
11. Accused persons have also admitted the documents i.e. factum of registration of FIR NO. 217/2022 and register no. 19 u/s 294 Cr.PC.
12. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 02.09.2022. Thereafter, statement of the accused persons were recorded on 28.01.2023 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein they denied the allegations and chose not to lead DE.
13. It has been argued by Ld. APP that the accused persons have committed a heinous offence of theft inside a shop and testimonies of various witnesses examined by the prosecution is sufficient to prove the case beyond reasonable doubt.
14. Per contra, Ld. Counsel for accused persons have argued that the accused persons were caught after a long delay and the recovery was planted. It is further submitted that no public witness was made to testify in favour of the prosecution. It is further submitted that even the complainant has not supported the version of the prosecution and various contradictions have been found in the testimonies of witnesses and therefore, the 6 prosecution has failed to prove its case beyond reasonable doubt and accused persons deserve acquittal.
APPRECIATION OF EVIDENCE
15. In order to establish the offence u/s 380 IPC the prosecution is required to prove the following elements :
(a) That the accused dishonestly intended to take the movable property of the complainant out of his possession ;
(b) That the act to take out the property was done without consent of the complainant ;
(c) That the accused moved that property in order of such taking ;
(d) That the theft was committed in any building, tent or vessel, which is used as a human dwelling or used for custody of property.
16. Section 411 IPC deals with the offence of dishonestly receiving stolen properties. It reads as under:
"411. Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
17. In the case of Rajender Kumar Vs. State (Delhi Administration), (1983) 23 Del LT 42, it was held that in order to bring home the guilt of the person under this provision, it is the duty of the prosecution to prove the following;
(i)That the stolen property was in the possession of the accused;
7(ii)That some person, other than the accused had the possession of the property before the accused got possession of it, and
(iii)That the accused had knowledge that the property was the stolen property.
18. Apart from the above said elements, the first requirement that needs to be fulfilled is to establish the identity of the accused visavis theft of the property. In order to prove that the theft was committed by the accused person, the prosecution examined complainant as PW1. PW1 in his testimony has deposed that two boys had come to his shop where he was posted as store incharge for buying blackberry phone and the moment they took the phone for checking it, they ran away from the spot. Complainant has not identified the accused persons present in the court and turned hostile. Ld. APP after taking permission of the court cross examined the witness on the point of identity of the accused persons and despite being pointed out by LD. APP, witness failed to identify the accused persons as well as the photographs which were taken out of the CCTV footage. He has not supported the prosecution story.
19. Prosecution further examined Sh. Suraj Sharma as PW2 who was working as Assistant Store Manager at the relevant time. PW2 deposed on the same lines as PW1 and failed to identify the accused persons present in the court. On being cross examined by Ld. APP after taking permission of the court, the witness still could not identify the accused persons. Witness was also shown photographs of the shop however, after seeing the same, he stated that they are not the photographs of his shop and thus, did not support the prosecution story.
20. The prosecution has further examined Sh. Prakash Rai as PW3 who had a shop opposite to the shop of the complainant across the street. He deposed that two persons had come into his shop for the purpose of purchasing blackberry phone but had not purchased the same. He has further deposed that he heard the noise from opposite shop 8 that some person at gun point had robbed the mobile and had fled away. He has himself deposed that he had heard the story of robbing at gun point from the staff of the other shop. He has further deposed that police had asked about DVR but same was not provided by him to the police after two days as the owner was not present on the day of incident. PW3 has identified one of the accused person and has failed to identify the other one.
21. It is worthwhile to mention here that no such allegation of robbing at gun point has been made by the complainant during their testimony and no such fact was even mentioned by the complainant in his complaint. The said witness has himself not stated anything about robbery on gun point during his statement u/s 161 Cr.PC and on this aspect he was also confronted with his statement u/s 161 Cr.PC during the cross examination.
22. Prosecution has further examined SI Malkhan Singh as PW4 who deposed that he obtained the CCTV footage from the owner of the opposite shop on 03.07.2011 and made photographs of the incident from footage. He has further deposed that he did not prepare any seizure memo of the DVR and that he had obtained IMEI number of the blackberry phone which was allegedly stolen and on the basis of CDR location of the accused Himanshu Sharma was traced and he was arrested and on his instance coaccused Gaurav was also arrested. During his crossexamination, the witness has deposed that he has not made any seizure of the DVR or CCTV footage. He has also deposed that he has not obtained the data of sale and purchase of mobile phones from the shop and has also not collected any cash memos or record of the phones which was sold on the said dates. He has also admitted that he did not get conducted the TIP proceedings of case property and accused persons. During his crossexamination, he has also admitted that the shopkeeper had given him the IMEI number and the case property and has also admitted that he had not seized box of the stolen phone.
923. The other witnesses are police witnesses who were part of the investigation and they have deposed on the same lines as the IO and the prosecution story and nothing substantial came out of their crossexamination.
24. In adversarial system of criminal trial the burden to prove its case lies on the prosecution and prosecution is supposed to prove its case beyond reasonable doubt standing on its own legs. In the present case, the prosecution has failed in its duty to prove the case beyond reasonable doubt and when the identity itself of the accused has not been proved by the prosecution, it seems that there is no requirement to examine other elements of the offence for which the accused has been charged.
LOOPHOLES IN THE PROSECUTION STORY
25. The complainant has failed to identify the accused persons present in the court. He turned hostile and with the permission of the court he was cross examined by Ld. APP and surprisingly at the instance of Ld. APP also he failed to identify them. On being confronted with photographs of the accused persons taken from the CCTV footage, the witness failed to recognize them. The other witness who was the employee in the same shop also failed to identify the accused persons. He also turned hostile and during his crossexamination by Ld. APP he even deposed that the photographs of the shop which were shown to him were not of the same shop in which he used to work. Thus, both the main witnesses and the complainant have not supported the case of the prosecution.
26. The other witness who was a shopkeeper of the other shop opposite to the shop in question has disclosed totally different facts during his testimony. He has alleged robbery at gun point which was not even mentioned by the complainant in his complaint and neither the complainant nor the employee of his shop have made any such deposition during their testimony. He has deposed that he had only heard about robbery at gun point and he was not an eye witness to the incident. His whole testimony is hearsay in nature and thus, has corroborative value only and in the present facts wherein the complainant 10 and other eye witness have not supported the prosecution story such piece of evidence has a very weak value.
27. IO SI Malkhan Singh in his testimony has deposed that he obtained the CCTV footage of the incident on 03.07.2011 which is in contradiction to the depositions made by PW3, from whose shop the said footage was collected, who has deposed that the footage was collected two days after the incident. The IO has not even prepared any seizure memo of the DVR or the footage and in such circumstances, it is not understandable as to whose version is to be believed and benefit of doubt goes in favour of the accused.
28. It is clear from the testimony of the IO and other police witnesses that no data of sale and purchase of mobile phones was obtained from the shop. Moreover, no record of cash memos of the sale on that particular day was obtained. IO has himself admitted that IMEI number and the case property was obtained from the shopkeeper himself and in such circumstances, the version of the prosecution can not be accepted as no corresponding data has been obtained.
29. Moreover, the present case is also related to dishonestly receiving or retaining stolen property. None of the witnesses have proved the point of dishonest intention on the part of the accused Himanshu Sharma in receiving or retaining the stolen property as on the one hand they have failed to link the identity of the accused persons vizaviz theft and on the other hand, they have not collected any data or record from the shop which shows that the phone in question was stolen and not purchased. The necessary mens rea has not been proved by either of the witnesses. In a way the prosecution has not even established that the particular phone which was recovered from the accused was a stolen phone. Further, merely because a person has been found to be having a stolen property it can not be imputed that he was knowing or having reason to believe the same to be a stolen property unless the prosecution establishes that same was being received or retained by him dishonestly.
1130. Accordingly, the accused namely Himanshu & Gaurav stand acquitted for the offence punishable u/s 380/411 IPC.
Announced in the open court on 19.04.2023 (Gaurav Dahiya) MM06, South East, New Delhi It is certified that this judgment contains 09 pages and each page bears my signatures.
(Gaurav Dahiya) MM06, South East, New Delhi/19.04.2022 12