Delhi District Court
State vs . Ram Sunder Gupta on 7 April, 2018
IN THE COURT OF SH. VISHAL PAHUJA, MM-04,
WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE VS. RAM SUNDER GUPTA
FIR NO. 266/08
PS: MOTI NAGAR
U/S: 411 IPC
JUDGMENT
Case No. : 67637/16
Date of commission of offence : 19.08.2008 and 20.08.2008
Date of institution of the case : 25.05.2011
Name of the complainant : Sh. Dharam Pal Tyagi
Name of accused and address : Ram Sunder Gupta, s/o
Sh. Barsati Lal r/o W-
83/16, Rama Road, Garib
Basti, Karampura, Delhi.
Offence complained of or proved : U/s 411 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment : 07.04.2018
Date of judgment : 07.04.2018
******************************************************************************************************************************* BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused Ram Sunder Gupta pursuant to charge sheet filed by PS Moti Nagar U/s 411 IPC subsequent to the investigation carried out by them in FIR No.266/08.
2. As per the prosecution, between 19.08.2008 and 20.08.2008 at G-
6, Balram House opposite Milan Cinema, Karampura, Delhi, house FIR No. 266/08, PS Moti Nagar Page 1/10 breaking and theft was reported and to have been committed in the shop of complainant Sh. Dharampal Tyagi and it was reported that 43 mobile phones, recharge coupons and cash was stolen. The accused Ram Sunder Gupta was found in possession of 6 mobile phones out of 43 stolen phones which were seized vide memo Mark X1 to X6. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offence punishable u/s 411 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 411 IPC was framed against the accused Ram Sunder Gupta to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined 15 witnesses in total.
5. PW1 Dharam Pal Tyagi stated that he was running a shop in the name of M/s Arun Electronics and Electricals at Karampura near Milan Cinema. He further deposed that in the year 2008, the exact date not remember, he closed the shop in the night as usual and on the next day he found that the (galla) chest inbuilt in the counter was lying upon it. It is further deposed that the mobile phone boxes were lying empty and scattered and it was found that 40-45 mobiles were stolen. It is further deposed that the iron net in the rear portion of the shop had been broken for entering into the shop. It is further stated that the mobile recharge coupons and the cash was also found stolen. The police was informed and his statement was recorded as Ex. PW-1/A. This witness was cross examined on behalf of accused.
FIR No. 266/08, PS Moti Nagar Page 2/106. PW-2 Ram Vilas stated that accused Ram Sunder Gupta present in the court is his relative as his brother in law. It is further stated that in the year 2008 accused given him one mobile make Nokia model and after one week police call from PS Moti Nagar on his mobile and was asked to come PS Moti Nagar. It is further stated that he visited PS Moti Nagar accordingly and found the accused sitting in the PS and on production of Nokia mobile police took the same in possession vide seizure memo Ex. PW-2/A. Statement of PW-2 was recorded. The witness identified the mobile as Ex. P-1. This witness was cross examined on behalf of the accused.
7. PW-3 Ram Babu stated that accused Ram Sunder Gupta was his neighbour. It is further deposed that in the year 2008 he took one mobile make Nokia 2310 from the accused for Rs. 1800/-. No receipt was given by the accused against the said purchase with the assurance to be given later on. PW-3 further stated that he inserted the SIM of Airtel in the mobile and after 2-3 days he received a call from PS Moti Nagar inquiring about the said mobile. It is further deposed that after 2-3 days he came from his Village at Delhi and visited PS Moti Nagar and produced the mobile to the police which took into possession vide seizure memo Ex. PW-3/A. Statement of PW-3 was recorded. The witness identified the mobile as Ex. P-2. This witness was also cross examined on behalf of accused.
8. PW-4 HC Bhagirath stated that on 20.08.2008 he received a call regarding theft in front of Milan Cinema in a electronic shop. It is further stated that he along with HC Yogender went to the spot and found one person namely Dharampal, owner of the shop, who stated that 43 mobile phones and recharge coupons of Rs. 20-25,000/- was stolen after breaking open the jaal from the back side of the shop. PW-4 prepared rukka upon which HC Vijender got the FIR registered. This witness was FIR No. 266/08, PS Moti Nagar Page 3/10 cross examined on behalf of accused. PW-5 HC Vijender deposed on the same lines as that of IO HC Bhagirath. This witness was cross examined on behalf of accused.
9. PW-6 Suraj Prasad Mishra stated that about ten years back, he was working in Furniture Market, Kirti Nagar and he purchased a second hand mobile phone make of which he could not remember for Rs. 2500/- from a person through a worker who was also working at furniture market. It is further deposed that after purchasing the mobile he put his SIM. Thereafter, received a call from PS Moti Nagar for producing the same. No receipt was given against said purchase. PW-6 further stated that mobile produced by him was taken into possession by the police vide seizure memo Ex. PW-6/A. The witness failed to identify the accused as the seller of the mobile. As this witness did not support the case of prosecution hence he was cross examined by the Ld. APP for the State with the permission of the Court. This witness was also cross examined on behalf of accused.
10. PW-7 Retd. SI Raghuvir stated that he was the IO in the present case and it is deposed that he after receiving the file made an application to ACP, Punjabi Bagh for location of mobile phones and to keep them under surveillance. Photocopy of the same was Mark A-1. As per the direction of ACP, the stolen mobiles mentioned in the application kept under surveillance. Out of 43 stolen mobiles, the location of 6 mobile phones were detected. Hence, user of the same was called in the PS Moti Nagar. It was further deposed that on 28.12.2008 Surya Prasad, Sanjay, Rizwan and Ram Vilas came to PS Moti Nagar and produce their mobile phones which were detected and same were found stolen one from the shop of Arun Electronics and it was inquired that same were purchased from Ram Sunder Gupta. It was further deposed that none of them produce the receipt. The mobile phones were kept in a separate pullanda and sealed with the seal of RSM. It was further deposed that on FIR No. 266/08, PS Moti Nagar Page 4/10 02.01.2009 mobile phones of Rizwan and Israr were also kept in a separate pullanda vide seizure memo Ex. PW-7/B and Ex. PW-7/C. The accused was correctly identified by the witness. Accused was arrested in the PS in the presence of Ct. Munna Pathak vide arrest memo Ex. PW-7/D and personally searched vide memo Ex. PW-7/E. The list of 43 mobile phones was collectively Ex. PW-7/F. This witness had recorded the disclosure statement of accused as Ex. PW-7/G, Driving license was seized vide seizure memo Ex. PW-7/H. This witness was cross examined on behalf of accused.
11. PW-8 Rizwan stated that in the year 2008 he was working at Furniture market, Kirti Nagar. It is further stated by PW-8 that he wanted to purchase the mobile phone and he purchased one mobile phone make Nokia without any receipt against purchase of the same from thekedar Suleman. PW-8 was using the mobile when he was called by Suleman (thekedar) to reach at PS Moti Nagar along with mobile as the same was reported to be stolen. It was stated that he handed over the mobile phone to the police. The witness failed to identify the accused and also denied that he had purchase the mobile from the accused. As the witness did not support the case of prosecution in any manner he was cross examined by the Ld. APP for the State with the permission of the Court.
12. PW-9 ASI Umrab Singh, Duty Officer. He exhibited on record computer generated copy of FIR as Ex.PW9/A and endorsement on the rukka as Ex.PW9/B. This witness was cross-examined on behalf of accused.
13. PW-10 SI Ajender and PW-14 HC Balakishan deposed qua manner and involvement in the investigation. This witness was not cross examined on behalf of accused.
14. PW-11 Ct. Munna Pathak deposed qua manner and involvement in the investigation on the same lines as that of PW-7. This witness was not FIR No. 266/08, PS Moti Nagar Page 5/10 cross examined on behalf of accused.
15. PW-12 W/HC Usha Devi was duty officer deposed that on 20.08.2008 she was duty officer and her duty hours were from 08.00 AM to 04.00 PM. It is deposed that on that day at about 10.34 AM , he had received an information through wireless operator regarding theft at shop no. G-6, Karampura, near Milan Cinema, Delhi, in respect of which he had made DD entry no. 16A which is Ex. PW12/A (OSR). Thereafter, she handed over the DD entry to HC Bhagirath. This witness was cross examined on behalf of accused.
16. PW-13 ASI Hareti Lal was the MHC(M), who exhibited on record the relevant entry in register no.19 vide (entry at serial no. 3185/08) which the case property I.e. 5 mobile phones was deposited in the Malkhana as Ex.PW13/A. It is further deposed that on 02.01.2009 SI Raghubir Singh deposited one mobile phone in malkhana. The entry in register no. 19 at serial no. 2320/09 is Ex. PW13/B. PW3 was cross-examined on behalf of accused.
17. PW-15 Tarkeshwar Mall from ARTO Office, Fezabad, UP. He received an application regarding verification of driving license and in this regard he had given his reply as Ex. PW-15/A.
18. No other PW was left to be examined, hence PE was closed on 31.01.2018.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
19. Statement of accused recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to him.
The accused controverted and denied the allegations levelled against him. It is stated by him that entire mobile phones were recovered from the FIR No. 266/08, PS Moti Nagar Page 6/10 possession of PW6 Suraj Prasad Mishra but the police officials falsely implicated him in the present case because he was not ready to comply the version of the police. Accused opted to lead defence evidence but did not lead defence evidence.
ARGUMENTS:
20. Ld. APP for State has argued that prosecution witnesses have supported the prosecution and their testimony has remained unrebutted.
That on a combined reading of testimony of prosecution witnesses, offence U/s 411 IPC is proved beyond doubt.
21. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused as no recovery has been effective from the possession of the accused. It is further argued that accused has been falsely implicated and the property shown to have been recovered is planted upon him. It is further argued that prosecution has failed to build the case against accused Ram Sunder Gupta, hence he is entitled to be acquitted of the offence charged against him.
FINDINGS:
22. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
23. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused Ram Sunder Gupta is indicted for the offences U/s 411 IPC. Section 411 IPC provides punishment for dishonestly receiving and retaining any stolen property knowing or having reason to believe the same to be stolen property.
FIR No. 266/08, PS Moti Nagar Page 7/1024. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused not guilty for any offence charged herein and he deserves acquittal for the following reasons:-
25. The essential ingredients to prove an offence under Section 411 IPC are:-
i). The property should be in possession of the accused.
ii). Such property should be 'stolen property' i.e it should have been transfered by theft, extortion or robbery, or which has been criminally misappropriated.
iii). The accused received the same knowing or having reason to believe the same to be stolen property.
26. The very first aspect / ingredient of section 411 IPC I.e. property should have been recovered from the possession of the accused has not been established by leading any evidence on record. In fact, the prosecution witnesses PW2, PW3, PW6 and PW8 from whom the mobiles have been recovered have claimed to have purchased or taken from the accused Ram Sunder Gupta. The statement to this effect clearly shows that no recovery has been effected directly from the possession of the accused. This fact is also strengthened by the testimony of IO SI Raghuvir Singh PW7, who in his cross examination admitted that none of the mobile was recovered from the possession of accused. In absence of any recovery section 411 IPC cannot be said to be made out against the accused.
27. It is further petinent to mention that the testimony of the star witnesses PW2, PW3, PW6 and PW8 stating the fact that the mobile was FIR No. 266/08, PS Moti Nagar Page 8/10 taken from accused cannot be belived in view of the tainted testimonies of the aforesaid witnesses. PW-2 during his cross examination could not tell the address of the accused nor he could tell the date on which mobile was given to him by the accused. PW-2 further failed to tell the number of the connection which was being used in the mobile. He further admitted that he has no receipt or any such documentary proof to show that the mobile was purchased or taken from the accused. Similarly, PW3 during his examination in chief stated that no receipt was obtained against the purchase of the mobile from the accused nor could he tell the number of the mobile connected being used in the aforesaid mobile. This witness claimed the accused to be his neighbourer however, he could not tell the address of the accused. PW3 further failed to tell the day or date of purchase of the mobile from the accused. Hence, the testimony of PW2 and PW3 is not worth to be relied upon.
28. PW-6 Suraj Prasad Mishra failed to identify the accused as the person from whom he claimed to have purchased the mobile. In fact, in his examination in chief he denied the purchasing of mobile from the accused. This witness did not even identified the case property when confronted during cross examination. Similarly, PW8 during his examination in chief did not support the case of the prosecution in any manner nor he could identify the accused as the person from whom he purchased the mobile. During his cross examination this witness stated that the police official obtained his signatures on the blank paper Ex. PW7/B. Testimony of both these witnesses could not support the case of the prosecution.
29. The arrest of the accused is also doubtful in view of the material inconsistency in the testimony of PW-7 and PW-11 as PW-7 during his examination in chief stated that the accused was arrested in PS when he was called there whereas PW-11 in whose presence the accused was arrested stated in his examination in chief that the accused was arrested from Jawahar Camp, Kirti Nagar, New Delhi. This is a material FIR No. 266/08, PS Moti Nagar Page 9/10 contradiciton in respect of apprehension of the accused. In view of the statements given by the witnesses discussed above the false implication of the accused and the plantation of the case property upon him cannot be ruled out.
30. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. The testimony of prosecution witnesses does not inspire confidence due to several inconsistencies. Thus, in the considered view of this Court, the prosecution failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused Ram Sunder Gupta to be acquitted of the offence charged against him. Therefore, the accused is hereby acquitted of the charges levelled against him in the present case.
31. Requirements of Section 437-A Cr.P.C have already been complied with. File be consigned to Record Room after due compliance.
Digitally signed VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2018.04.07
16:54:26 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 07.04.2018 MM-04 (WEST)/DELHI
Containing 10 pages all signed by the presiding officer.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date:
2018.04.07
16:54:33 +0530
(VISHAL PAHUJA)
MM-04 (WEST)/DELHI
FIR No. 266/08, PS Moti Nagar Page 10/10