Delhi District Court
State vs . Nitesh Kumar & Ors. on 27 June, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX, NEW
DELHI
STATE Vs. NITESH KUMAR & ORS.
FIR No. 325/10
U/s : 380/411/34 IPC
P.S. : Malviya Nagar
Date of Institution : 15.10.2011
Date on which case reserved for Judgment : 05.06.2018
Date of judgment : 27.06.2018
JUDGMENT
1.FIR No. of the case : 325/10
2.Date of the Commission : 03.08.2010
of the offence
3.Name of the accused : Nitesh Kumar,
: S/o Sh. Rajender Kumar,
: R/o H. No. J28D, Sheikh Sarai,
: PhaseII, New Delhi.
: Note: Accused Rahul Dogra is PO,
: Accused Siddharth has been discharged
: vide order dated 29.07.2013 and accused
: R.Ram has been convicted on his plea of
: guilt vide order dated 29.01.2014.
4.Name of the complainant : Sh. Sanjay Gautam,
: S/o Inder Gautam,
: R/o H. No. K45G, Sheikh Sarai,
: PhaseII, New Delhi
5.Offence complained of : U/s 380/411/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Accused Nitesh convicted for the offence
: U/s 411 IPC and acquitted for the offence
: U/s 380 IPC.
FIR No. 325/10 State Vs. Nitesh Kumar & Ors. 1/8
BRIEF FACTS:
1. The present judgment is directed against the accused Nitesh Kumar as the accused Rahul Dogra was declared as a proclaimed offender vide order dated 21.02.2011, accused Siddharth was discharged vide order dated 29.07.2013 and accused R.Ram was convicted on his plea of guilt vide order dated 29.01.2014.
2. Briefly stated the case of the prosecution is that on 03.08.2010 between 07:00 pm and 09:00 pm at the house no. K45G, Sheikh Sarai, PhaseII, New Delhi within the jurisdiction of PS Malviya Nagar, accused Nitesh Kumar alongwith co accused persons R.Ram (since convicted on his plea of guilt) and Rahul Dogra (since PO) in furtherance of their common intention committed theft of articles as mentioned in the complaint of the complainant Sh. Sanjay Gautam without his consent and one mobile phone and Rs. 5000/ as per seizure memo were recovered from the possession of accused Nitesh Kumar and coaccused R.Ram which they retained knowingly or having reasons to believe the same to be stolen one and thus accused committed the offences punishable U/s 380/411/34 IPC.
3. FIR No. 325/10 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
4. After completion of investigation charge sheet under sections 380/411/34 IPC was filed before the court on 15.10.2011.
5. On the basis of prima facie material available on the record charge for the offence punishable under section 380/411/34 IPC was framed against the accused Nitesh Kumar (and also R. Ram, since convicted) to which the accused pleaded not guilty and claimed trial on 27.09.2013 THE TRIAL PROCEEDINGS:
6. In order to establish its case, the prosecution has examined eight FIR No. 325/10 State Vs. Nitesh Kumar & Ors. 2/8 witnesses.
7. PW1 was the complainant Sh. Sanjay Gautam. He exhibited his complaint as Ex.PW1/A and list of said articles as Ex. PW1/B.
8. PW2 was Ct. Shoveer Singh. He exhibited the arrest memos of accused persons Nitesh, Siddharth and R.Ram as Ex. PW2/A, Ex. PW2/B and Ex. PW2/F respectively, their personal search memos as Ex. PW2/C, Ex. PW2/D and Ex. PW2/E and case properties i.e. one mobile phone make Nokia 6300, other mobile phone make Nokia 3230 and jewelery being the gold ornament as per the seizure memo and stolen documents vide seizure memos as Ex. PW2/I, Ex. PW2/J, Ex.PW2/K and Ex. PW2/L respectively.
9. PW3 Sh. Shyam Sunder Hotchandani was the earlier Branch Manager of Muthoot Finance Ltd. He exhibited the loan certificate as Ex. PW3/A, appraisal certificate as Ex. PW3/B and personal information of accused as Ex. PW3/C.
10. PW4 was the MHC(M) PS Malviya Nagar HC Netra Pal Singh who brought the original Register no. 19 showing the entries regarding the deposition of case property in the malkhana i.e. two mobile phones make Nokia 6300 and Nokia 3230 respectively and one sealed plastic box containing jewellery at Serial Nos. 2862/10 and 2867/10 respectively.
11. PW5 was the then Accounts Assistant of Muthoot Finance Ltd. Smt. Jessy James who deposed about the gold loan given to the accused persons. She exhibited the photograph of the case property i.e. jewellery as Ex. P1.
12. PW6 was the Duty Officer (DO) HC Pappu Ram who received a rukka and got the FIR registered. He exhibited the copy of the FIR as Ex. PW6/A and his endorsement on rukka as Ex. PW6/B.
13. PW7 was the first Investigating Officer (IO) of the case Retired SI Jagar Pal. He exhibited the rukka as Ex. PW7/A and site plan as Ex. PW7/B.
14. PW8 was the second Investigating Officer (IO) of the case SI Amit FIR No. 325/10 State Vs. Nitesh Kumar & Ors. 3/8 Chaudhary. He exhibited the disclosure statements of accused persons namely Nitesh, Siddharth and R. Ram as Ex. PW8/A, Ex. PW8/B and Ex. PW8/C respectively.
15. Accused Nitesh Kumar admitted the genuineness of recording of Test Identification Parade Proceedings of case property U/s 294 Cr.P.C. on 24.06.2017 which proceedings were then exhibited as Ex. X1.
16. Prosecution evidence was closed on 16.05.2018. After conclusion of prosecution evidence, the Statement of Accused (SA) under section 313 r/w section 281 Cr.P.C was recorded on 26.05.2018. Accused did not seek to lead defence evidence.
FINAL ARGUMENTS:
17. Final arguments were thereafter advanced by Ld. APP for the State and Ld. counsel for the accused.
REASONS FOR DECISION:
18. Qua the offence U/s 380 IPC, the prosecution has not produced any cogent evidence to link the accused Nitesh with the same. PW1 Sh. Sanjay Gautam the complainant deposed during trial that on 03.08.2010 at about 07:00 pm he had gone out of his house with his wife and daughter for vaccination of his daughter at a clinic in Malviya Nagar and when they returned home at around 09:00 pm they saw that the household articles were messed up and on checking the almirah they saw that the articles i.e. gold jewellery, two gold necklaces, four gold bangles, one gold bracelet, one gold mangalsutra, one gold chain with locket and a mobile phone model 6300 which were kept in the almirah were missing and he made the complaint Ex. PW1/A to the police.
19. It is unclear as to on what basis PW1/complainant identified the accused Nitesh by name and the other accused (R.Ram) by face as in crossexamination it came out that he did not know how the lock of the door was opened and he only found his articles scattered when he came back. He also admitted in crossexamination that no FIR No. 325/10 State Vs. Nitesh Kumar & Ors. 4/8 accused was apprehended at the spot. In any case, it is clear that the complainant/PW1 was not an eye witness of the incident of theft and had discovered that theft had occurred in his house when he found the valuables to be missing. Complainant/PW1 testified that he handed over the list of articles to the police at the spot. The case property i.e. two bangles, one necklace and one mangalsutra were produced by the complainant during trial when the testimony of PW5 Smt. Jessy James was being conducted and the photograph of the case property was exhibited as Ex. P1. No dispute qua the identity of the case property was raised by the accused Nitesh.
20. The complainant/PW1 deposed regarding the incident of theft and proved his complaint to the police as Ex. PW1/A and the FIR Ex. PW6/A was proved by the duty officer PW6 HC Pappu Ram thus the fact that the theft occurred stands duly proved. However, there is no eye witness cited and examined by the prosecution of the incident of theft who could depose about the identity of the persons who committed the theft.
21. Furthermore the theft occurred on 03.08.2010 and as per the prosecution's version the case property i.e. mobile phone in question was recovered from the possession of accused Nitesh Kumar on 25.10.2010 i.e. after almost two months from the date of the incident of theft. Thus it cannot be said that the stolen articles were recovered so soon after the theft so as to attract the presumption under illustration (a) of Section 114 Evidence Act of the accused Nitesh Kumar being the thief. The charge U/s 380/34 IPC therefore fails against the accused Nitesh Kumar.
22. In so far as the offence U/s 411/34 IPC is concerned, the witnesses to the recovery proceedings are PW2 Ct. Shoveer Singh and IO/PW8 SI Amit Chaudhary, both of whom have deposed about the recovery proceedings. The seizure memo of the mobile phone make Nokia 3230 was proved as Ex. PW2/J by PW2 Ct. Shoveer Singh and PW8 SI Amit Chaudhary. It is true that there is no public witness cited qua the recovery proceedings but there is no rule of evidence to the effect that the testimonies FIR No. 325/10 State Vs. Nitesh Kumar & Ors. 5/8 of the police witnesses are to be given any less weightage than that of public witnesses. PW2 HC Shoveer Singh stood firm to his stand in crossexamination denying the suggestion that the recovery of the mobile phone was planted upon the accused Nitesh.
23. PW2 denied the suggestion that he did not join the investigation with the IO in the present matter at the spot and also denied the suggestion that accused Nitesh had been falsely implicated in the present case upon the false disclosure of coaccused. PW2 testified that the IO asked 45 passersby to join the investigation. PW8 SI Amit Chaudhary similarly deposed that he asked passersby to join the investigation while interrogating the accused but they refused to join the investigation as the accused Nitesh was a local resident of the same locality. Thus from the evidence it emerges that the police officials made sincere efforts to join public witnesses to the investigation but public persons were not inclined to join the investigation. As such it is well settled that nonjoining of public witnesses to the recovery proceedings is not of itself fatal to the prosecution's case especially when the testimonies of the police officials are cogent and trustworthy and corroborative of each other and the prosecution's version. Nothing favourable to the defence of the accused Nitesh (qua the offence U/s 411 IPC) could be elicited through the cross examination of PW8 SI Amit Chaudhary.
24. The supplementary disclosure statement of the accused Nitesh is Ex. PW9/B. As per Section 27 Indian Evidence Act only the factum of knowledge of the accused regarding the whereabouts of the stolen mobile phone contained in the disclosure statement is admissible in evidence and nothing else. The factum of the knowledge of the accused regarding the whereabouts of the stolen mobile phone coupled with the consequent recovery of the mobile phone from an almirah in the room of the house of the accused Nitesh at his instance clinch the case against the accused Nitesh.
25. Ld. defence counsel argued that PW8 SI Amit Chaudhary deposed that the mother of the accused was present in the house at the time of alleged recovery but FIR No. 325/10 State Vs. Nitesh Kumar & Ors. 6/8 she has not been cited as a witness. I agree with the counter argument raised by Ld. APP for the State that being the mother of the accused she would have no interest in supporting the prosecution's case even if she were joined as a witness; there would thus have been no purpose of citing the mother of the accused as a prosecution witness.
26. It was also argued by ld. Defence counsel that the mobile phone in question had been falsely planted upon the accused but no reason for false implication by the police officials has been brought out by the accused. The only defence raised by the accused in S.A. is that he was arrested alongwith Siddharth being his friend and Siddharth used to reside alongwith him. No such specific suggestion was put to any of the prosecution's witnesses throughout trial nor did the accused choose to lead defence evidence to establish any motive for his alleged false implication.
27. Coming to the issue of the mobile phone in question having not been produced in trial as it was misplaced by the complainant/PW1 who ultimately had to deposit the fine in the Court qua the same, it is pertinent to note that the seizure memo of the mobile phone is Ex. PW2/J which was duly proved by PW2 Ct. Shoveer and PW8 SI Amit Chaudhary and the accused could not demolish its veracity and authenticity during trial. The seizure memo proves the factum of the mobile phone in question having been seized from the house of the accused.
28. The mobile phone in question was subsequently deposited in the malkhana of the police station Malviya Nagar vide the entry made in Register no. 19 as per the testimony of PW4 who also brought the original Register No. 19. No question or suggestion regarding the case property not being deposited in the police station was put to PW4 HC Netrapal and he was only asked the time when the IO deposited the articles which he did not remember but the witness cannot be expected to remember such minute details and no adverse inference can be drawn against the prosecution on this ground nor does it make the testimony of PW4 any less reliable. From the testimony of PW4 it is proved that the mobile phone in question was deposited in the FIR No. 325/10 State Vs. Nitesh Kumar & Ors. 7/8 malkhana of the police station and no suspicion regarding the same could be raised by the accused.
29. The Test identification Proceedings (TIP) of the case property the report of which is an admitted document being Ex. X1 mentions about the two mobile phones being the case property which is corroborative of the prosecution's case regarding two mobile phones having been recovered. Thus, merely because one of the mobile phones was later on misplaced by the complainant and could not be produced during trial it is no reason to disbelieve the prosecution's version when otherwise the prosecution has established the guilt of the accused for the offence U/s 411 IPC.
30. The prosecution has proved its case against the accused Nitesh U/s 411 IPC of recovery of stolen article i.e. mobile phone belonging to the complainant which the accused retained knowing or having reasons to believe the same to be stolen. The accused Nitesh is thus convicted for the offence U/s 411 IPC. However the accused Nitesh is acquitted for the offence U/s 380 IPC for lack of evidence against him qua said offence.
31. Be listed for arguments on sentence on 29.06.2018.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date: 2018.06.27
16:04:03 +0530
Announced in the Court (ANJANI MAHAJAN)
on 27.06.2018 MM02(SD)/27.06.2018
Certified that this judgment contains 8 pages and each page bears my signatures.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date: 2018.06.27
16:04:11 +0530
(ANJANI MAHAJAN)
MM02(SD)/27.06.2018
FIR No. 325/10 State Vs. Nitesh Kumar & Ors. 8/8