Delhi District Court
State vs Rakesh Kumar on 9 September, 2025
DLND010093732024 Page 1 of 15
Cr Appeal 280/2025
State
Vs.
Rakesh Kumar
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05
NEW DELHI DISTRICT : PATIALA HOUSE COURTS : NEW DELHI
Criminal Appeal No.CA/280/2024
In the matter of :-
State of NCT of Delhi
.....Petitioner
(Through Public Prosecutor)
Versus
Rakesh Kumar
S/o Sh. Hira Lal
R/o H. No. 34/13,
Trilok Puri, Delhi
.....Respondent /Accused
(Through Mr. Azad Ali, Ld. Counsel)
CRIMINAL APPEAL UNDER SECTION 419/427 BNSS
Date of institution : 22.11.2024
Date when judgment reserved : 13.08.2025
Date of Judgment : 09.09.2025
Final Order : Appeal dismissed
DLND010093732024 Page 2 of 15
Cr Appeal 280/2025
State
Vs.
Rakesh Kumar
JUDGMENT
1. INTRODUCTION This criminal appeal has been preferred by the State under Sections 419/427 of the Bharatiya Nagarik Suraksha Sanhita (B.N.S.S.) challenging the judgment and order dated 11.09.2024 passed by Ld. JMFC-02, Patiala House Courts, New Delhi in FIR No. 120/2009, PS Chanakyapuri, registered under Sections 379/411 IPC, whereby the respondent/accused Rakesh Kumar was acquitted of the offence punishable under Section 411 of the Indian Penal Code. The State seeks to set aside this acquittal and secure conviction of the accused under Section 411 IPC.
2. BRIEF FACTS a. The genesis of this case traces back to the evening of 06.06.2009 when complainant Sh. A.K. Kapoor, Additional Member, Ministry of Railways, Rail Bhavan, was traveling as a passenger in a hired cab driven by one Rahul @ Santosh within the territorial jurisdiction of Police Station Chanakyapuri, New Delhi. The cab had been officially booked by the Railways for the complainant's transportation. Upon reaching his residence at Railway Officers Colony, S.P. Marg, Chanakyapuri at approximately 9:30 PM, the complainant discovered DLND010093732024 Page 3 of 15 Cr Appeal 280/2025 State Vs. Rakesh Kumar that he had inadvertently left his mobile phone, a Nokia N73 (brown color) inside the cab.
b. His immediate attempts to contact his own mobile number initially resulted in the phone ringing, but after approximately six calls, the device was permanently switched off. The complainant also attempted to contact the cab driver regarding the missing phone, but the driver denied having any knowledge of its whereabouts. Subsequently, the complainant informed the cab booking agency about the incident and arranged for his Personal Assistant, Sh. Yogesh Chander Parasar, to lodge a formal complaint at PS Chanakyapuri, which was registered as FIR No. 120/2009 under Section 379 IPC.
c. The investigation was initially conducted by ASI Tiku Ram and subsequently transferred to ASI Sheel Kumar in April 2010. During the course of investigation, Call Detail Records (CDR) of the stolen mobile number 9810048970 were obtained from Bharti Airtel Ltd. Based on the CDR analysis, it was determined that the stolen mobile phone was being used with a different SIM card. On 09.05.2010, accused Rakesh Kumar s/o Sh. Hira Lal was arrested from his residence at H.No. 34/13, Trilok Puri, Delhi. The investigating officer claimed to have recovered the stolen Nokia N73 mobile phone along with an Airtel SIM card from the accused's possession, documenting DLND010093732024 Page 4 of 15 Cr Appeal 280/2025 State Vs. Rakesh Kumar the recovery through seizure memo, arrest memo, personal search memo, disclosure statement, and pointing out memo. d. After completion of the investigation, a chargesheet was filed on 29.10.2010 under Sections 379/411/34 IPC against both accused persons. Accused Rahul @ Santosh was charged under Section 379 IPC for theft, while accused Rakesh Kumar was charged under Section 411 IPC for receiving stolen property. During the course of the trial, accused Rahul @ Santosh absconded and was declared a proclaimed offender vide order dated 21.12.2023. The trial proceeded solely against accused Rakesh Kumar, who pleaded not guilty and claimed trial when charges were framed on 22.07.2015.
3. IMPUGNED JUDGMENT a. The learned trial court, after hearing the arguments of both sides and examining the evidence, identified several critical deficiencies in the prosecution's case that created reasonable doubt about the accused's guilt. The court found a material discrepancy between the IMEI number mentioned in the chargesheet (351851014978330) and the IMEI number recorded in the seizure memo (351851014978333), noting that the seizure memo was missing the final digit '0'. The court observed that no satisfactory explanation was provided by the prosecution regarding this missing digit.
DLND010093732024 Page 5 of 15 Cr Appeal 280/2025State Vs. Rakesh Kumar b. Additionally, the court noted inconsistencies in the color description of the mobile phone as provided by different witnesses and documents. The trial court also expressed concern about the absence of independent public witnesses during the recovery of the mobile phone from the accused's possession. The court emphasized that such recovery operations should be conducted before independent witnesses to impart authenticity and creditworthiness to police proceedings.
c. Furthermore, the trial court noted that PW-1, the complainant who had lodged the FIR, had turned completely hostile to the prosecution story, significantly weakening the foundation of the case. Based on these cumulative factors, the learned trial court concluded that the prosecution had failed to establish the essential ingredients of Section 411 IPC beyond reasonable doubt and accordingly acquitted accused Rakesh Kumar.
d. Relevant portion of the impugned judgment is reproduced as under:
"12. The evidence led by the prosecution to prove that the mobile phone was stolen which was subsequently recovered from accused person is the testimony of PW1/complainant and PW2/Owner of the mobile Phone who stated that the stolen mobile phone was left in the cab hired by his employer. PW2 deposed that the mobile was ringing, when he called, but later switched off and the ame was duly informed to the cab aggregator and a written complaint was given by PW-1/PA of the owner of the Mobile phone.
13. Perusal reveals that PW-1 has turned complete hostile to the prosecution story and the opportunity to cross examine his own witness PW-1 was sought by the Prosecution. Even upon cross examination of the said witness, nothing DLND010093732024 Page 6 of 15 Cr Appeal 280/2025 State Vs. Rakesh Kumar incriminating came on record qua the accused. PW-2 the owner of the mobile had given the description of the case property as Nokia N73, black or brown color, but no IMEI number was given in the testimony. Though the IMEI number is mentioned in the charge sheet, but the same does not matches with the IMEI in the seizure memo. The IMEI number as mentioned in the charge sheet is 351851014978330, however the IMEI number as mentioned in the seizure memo is 35185101497833. No explanation has been furnished either by the IO, or the recovery witnesses or any other witness qua the missing 0 from the IMEI number as mentioned in the seizure memo. Further, the color as mentioned in the seizure memo, does not matches with the description as given by the owner of the mobile phone PW-2 in his testimony.
14. It is imperative to note that the accused person has been implicated only on the premise that the stolen case property was recovered from his possession when it was moved out of the possession of complainant. No other material has been brought on record by prosecution to indicate that this accused person has committed theft.
15. Be that as it may, even if the Court assumes that testimony of PW2 as reliable and relevant, it should be noted that his testimony could not prove the recovery of mobile allegedly stolen as the discription and IMEi number doesn't match. Mere disclosure of this fact in his disclosure statement would not be of any help to the prosecution. It is not sufficient to show that accused was careless, or that he had reason to suspect that the property was stolen or that he did not make sufficient inquiry to ascertain whether it had been honestly acquired.
16. Furthermore, in the present case, there is no independent public witness to corroborate the alleged recovery of the mobile phone from the possession of accused Rakesh. No reasons were forthcoming as to why the said recovery of the said stolen mobile phone was not done in the presence of independent person. The recovery of case property, arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the case of the prosecution. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion. Hence, in the absence of non-joinder of any independent witness in the investigation, false DLND010093732024 Page 7 of 15 Cr Appeal 280/2025 State Vs. Rakesh Kumar implication of the accused by the local police in the present case cannot be ruled out.
......
18. Here it is relevant to point out that dishonest intention, which is the gravamen of an offence under section 411 of the Indian Penal Code has to be established by the prosecution as one of the chief ingredients of section 411 IPC. The basic ingredient that accused must receive and retain the stolen property and secondly, he must have the knowledge or the reasons to believe that property is stolen property, within the meaning of section 410 IPC is not made out.
CONCLUSION
19. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
20. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the ingredients of the offence punishable under section 411 of IPC beyond reasonable doubt. The prosecution has failed to prove that the accused has committed theft or were in possession of stolen articles. The evidence brought on record by the prosecution, is not sufficient to link the accused person to the commission of the crime. Thus, accused person entitled to be acquitted. Accordingly, accused Rakesh stands acquitted for committing offence punishable under Section 411 IPC."
4. GROUNDS OF APPEAL The State has challenged the impugned judgment on the following grounds:
DLND010093732024 Page 8 of 15 Cr Appeal 280/2025State Vs. Rakesh Kumar a. The learned JMFC failed to appreciate that the IMEI numbers of the recovered and stolen mobile phones are substantially identical, and the missing final digit '0' cannot be said to be a mismatch of the IMEI Number of the stolen mobile phone.
b. The learned JMFC failed to appreciate that minor variations in color description cannot be grounds for acquittal when the IMEI number substantially matches.
c. The learned JMFC failed to appreciate that the mobile phone was scientifically traced through CDR analysis, which constitutes reliable evidence, and was found in the exclusive possession of the accused. d. The learned JMFC wrongly conceived the facts and failed to appreciate the testimony of recovery witness PW-4 SI Sheel Kumar, who had effected the recovery.
5. ARGUMENTS a. Arguments for the Appellant/State: The learned Additional Public Prosecutor vehemently argued that the prosecution had led sufficient evidence to establish the guilt of the accused beyond reasonable doubt. The prosecution particularly contended that the last digit of an IMEI number is a check digit and in CDR records, it is often recorded as '0' by default. The State argued that the substantial identity of fourteen out of fifteen digits should be sufficient for identification DLND010093732024 Page 9 of 15 Cr Appeal 280/2025 State Vs. Rakesh Kumar purposes. The prosecution submitted that the presumption under Section 114 of the Indian Evidence Act should apply since the stolen property was found in the recent possession of the accused, and minor discrepancies in color description should not vitiate the entire case when substantial evidence of scientific tracing through CDR analysis exists.
b. Arguments for the Respondent/Accused: The learned counsel for the respondent/accused supported the trial court's reasoning, emphasizing that the discrepancies in IMEI number and color description were material and created reasonable doubt about the identity of the recovered phone. The defense argued that the absence of independent witnesses during recovery and the hostile testimony of PW-1 significantly weakened the prosecution case. Counsel contended that where reasonable doubt exists, it must benefit the accused, and the trial court's conclusion was well-reasoned and legally sound.
6. SCOPE OF APPEAL a. It is well-established that the power of an appellate court to interfere with an order of acquittal is limited and circumscribed. The appellate court should not interfere with an acquittal unless the trial court's view is perverse or unreasonable, there has been a gross miscarriage of justice, the trial court has ignored material evidence, or the conclusion DLND010093732024 Page 10 of 15 Cr Appeal 280/2025 State Vs. Rakesh Kumar is against the weight of evidence. The Supreme Court in Chandrappa v. State of Karnataka (2007) 4 SCC 415, observed that while an appellate court has full power to review the evidence upon which an order of acquittal is founded, it must bear in mind that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court. In cases of acquittal, there is a double presumption in favor of the accused - the presumption of innocence and the presumption arising from securing acquittal after full trial. b. In Chandrappa (supra), Hon'ble Supreme Court held:
" Bare reading of Section 378 of the present Code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.
It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court."
c. Similarly, in State of Punjab v. Karnail Singh (2003) 11 SCC 271, it was observed:
DLND010093732024 Page 11 of 15 Cr Appeal 280/2025State Vs. Rakesh Kumar " There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re- appreciate the evidence even where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (JT 2002 (3) SC 387)]. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (1973 (2) SCC 193), Ramesh Babulal Doshi v. State of Gujarat (1996 (9) SCC 225) and Jaswant Singh v. State of Haryana (JT 2000 (4) SC 114).."
(emphasis supplied)
7. FINDINGS ON GROUNDS OF APPEAL a. IMEI Number Discrepancy: The prosecution argued that the last digit of an IMEI number is a check digit and is by default recorded as zero in CDR records. However, no documentary evidence or testimony from the nodal officer to this effect was recorded before the learned trial court. While it is technically accurate that the check digit can be DLND010093732024 Page 12 of 15 Cr Appeal 280/2025 State Vs. Rakesh Kumar calculated using the Luhn algorithm, which in this case yields '3' for the given sequence rather than '0', there must be proper evidence to explain why it was recorded as '0' in the CDR . The mere assertion without supporting evidence cannot cure this fundamental discrepancy in the identification of the case property. There has to be some evidence to show that the last digit is recorded as zero by the service providers in the CDRs. The court cannot presume that it is so recorded by the service providers, merely on the basis of arguments of prosecution. Moreover, if the said '0' is rightly recorded in CDR, then the IMEI number before '0' in CDR, may be incorrectly recorded, because as per Luhn Algorithm, the last digit cannot be '0' but has to be '3'. In absence of a clear evidence to prove that the service providers deliberately hid the last digit of IMEI number for a particular purpose and replaced it with zero, it is not possible to base a conviction merely on the argument of the Ld. Addl. PP in this regard. It may be noted that in this case, there is no bill of the mobile to find out IMEI number and the only source is the CDR, which mentions last digit as '0', which is different from what is recorded in the seizure memo. Moreover, if this discrepancy came into knowledge of IO at time of preparing seizure memo, then he should have either sought clarification from the mobile company or should have subjected the recovered mobile phone to TIP, which was not done.
DLND010093732024 Page 13 of 15 Cr Appeal 280/2025State Vs. Rakesh Kumar b. Color Variation: While the victim described his mobile phone as "Nokia N73, black or brown color" and the seizure memo recorded it as "brown colour," this discrepancy, though appearing minor in isolation, when considered alongside other material inconsistencies, contributes to the overall doubt regarding proper identification. The Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra 1984 AIR 1622, held that in cases dependent on circumstantial evidence, all circumstances must be consistent with the guilt of the accused and inconsistent with his innocence. c. CDR Analysis: While CDR analysis is generally considered reliable scientific evidence, its evidential value depends on the proper establishment of the chain of custody and the identity of the device being traced. The crucial missing link in the present case is the proper identification of the recovered mobile phone as the same device that was stolen. Due to the IMEI number discrepancy, as discussed earlier, this essential link remains unestablished beyond reasonable doubt. d. Recovery Witness Testimony: The testimony of PW-4 SI Sheel Kumar regarding the recovery suffers from several infirmities: no independent witness was present during the recovery, the IMEI number recorded in the seizure memo differs from the chargesheet, and no satisfactory explanation was provided for these procedural lapses. The Hon'ble High Court of Punjab & Haryana in Roop DLND010093732024 Page 14 of 15 Cr Appeal 280/2025 State Vs. Rakesh Kumar Chand v. State of Haryana 1999 (1) CLR 691, held that investigating agencies should join independent witnesses at the time of recovery, and their failure to do so casts a shadow of doubt on the prosecution case.
8. CONCLUSION a. After exhaustive analysis of the evidence, arguments, and legal principles, this Court concludes that the prosecution's failure to provide satisfactory evidence explaining the IMEI number discrepancy creates material doubt about the identity of the recovered phone. The absence of independent witnesses during recovery and other procedural irregularities further weaken the prosecution case. The combined effect of various discrepancies and lapses creates reasonable doubt that must benefit the accused. b. The benefit of doubt given by the trial court cannot be lightly taken away in appeal, particularly when the prosecution has failed to satisfactorily explain material discrepancies in evidence. The learned trial court's analysis was thorough, well-reasoned, and legally sound, properly applying the fundamental principles of criminal jurisprudence. The prosecution has failed to establish the guilt of the 1 Relied upon by Ld. Trial Court in impugned judgment.
DLND010093732024 Page 15 of 15 Cr Appeal 280/2025State Vs. Rakesh Kumar accused beyond reasonable doubt, and the material discrepancies in evidence create sufficient doubt to sustain the acquittal.
9. FINAL ORDER In view of the detailed analysis and findings recorded above, this Court concludes:
a. The present criminal appeal lacks merit and is hereby DISMISSED .
b. The acquittal of respondent Rakesh Kumar under Section 411 IPC is hereby UPHELD and CONFIRMED.
c. The trial court record be sent back to the learned trial court, alongwith copy of this order.
SAURABH Digitally
PARTAP signed by
SAURABH
SINGH PARTAP
Announced in the open Court LALER SINGH LALER
on 09th of September, 2025 (Saurabh Partap Singh Laler)
ASJ-05 New Delhi
Patiala House Courts
Delhi/09.09.2025