Delhi District Court
Sc No. 41/3/14 Fir No.124/2013 Ps South ... vs . Sanjeev @ Bhandey 1 Of 15 on 30 May, 2015
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0041022014
S.C. No. : 41/3/14
FIR No. : 124/13
PS: : South Campus
U/S: : 379/411/75/413 IPC
State
Versus
Sanjeev @ Bhandey
s/o Sh. Lakhmi Chand,
r/o Bhalla Factory,
Jhuggi Bhadbuje Sultanpuri,
Delhi.
Date of receipt of files in this Court : 27.03.2014
Date when arguments were heard : 30.05.2015
Date of judgment : 30.05.2015
JUDGMENT
1. Accused Sanjeev @ Bhandey has been charge sheeted by P.S. South Campus for commission of offences punishable under section 379/411/75/413 IPC.
2. Copy of charge sheet was supplied to the accused. The Learned Metropolitan Magistrate after complying with the provisions of section 207Cr.PC, committed the case to the Court of Sessions as the offence u/s 413 Cr.PC is exclusively triable by the Sessions Court.
3. The story of the prosecution in brief is that Sh. Tanuj Singh (complainant) was standing at Satya Niketan bus stand on 30.07.2013 and SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 1 of 15 at about 01.00 p.m. received a phone call from his brother on his mobile phone. At that time, the complainant was having two mobile phones i.e. SAMSUNG GALAXY TAB 2, model GTP 3100 of white colour, bearing IMEI no. 352373057220191 having a connection no. 888260029 ( Ex P1) and one another mobile phone. The complainant took the said call on the other mobile phone and kept Ex P1 having no. 888660029 on the nearby wall. At that time two boys were standing nearby and after completing the hearing of the call PW3 found that Ex P1 was missing from the said place. The complainant reported the matter to the police on 100 number. The information reached the police station and consequently PW 10 SI Ram Pratap along with PW1 Ct. Pawan Kumar reached the spot i.e. Service road near Satya Niketan bus stand where they met the complainant and his statement was recorded. PW10 made his endorsement upon the statement and handed it over to PW1 for registration of the case upon which the case FIR was registered. On 03.01.2014, the IO PW11 ASI Surender Singh came to know that the stolen mobile (ExP1) was in working condition and same had been used by PW6 Sh. Narain. The IO tried to contact PW6 at his given address which was available from the IMEI report, however, one Sh. Krishan was found at the spot who informed that PW6 had left the said address but said Sh. Krishan provided the address of one Mr. Puran i.e. brother of PW6. Mr. Puran also showed his inability to provide the permanent address of PW6 Narain as he was not having good terms with him, he, however, informed PW11/IO that PW6 was driver of one Sh. Santosh Kumar. PW11/IO thereafter found PW6 who told that he had taken the said phone from the accused as his (PW6) mobile phone had went out of order, in November, 2013 it was used by him with SIM no. 9910540691 and after about 1½ months he had returned back the same to the accused in January, 2014 after his phone was repaired. On 12.1.14, PW11 received an information that the accused would be coming at Satya Niketan and if a raid was to be conducted, then he could be apprehended.
SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 2 of 15 The police raiding team was prepared and at the pointing out of the informer at about 08.45 a.m., the accused was apprehended at the Satya Niketan bus stand. As per the case of the prosecution, at that time the accused was carrying a polythene bag in his right hand which upon checking was found to contain two mobile phones i.e Ex P1 and one another MICROMAX dual SIM Mobile phone ( Mark A). The SAMSUNG GALAXY TAB 2 (Ex P1) was the mobile phone which had been stolen from the complainant, it is the case property of present case and both the said phones were seized vide seizure memo Ex PW5/A. The complainant/PW3 subsequently identified the mobile phone Ex P1 and took it on superdarinama.
4. After completion of the investigation, the charge sheet was filed against the accused under section 379/411/75/413 IPC.
5. The accused is facing trial on the allegations of the prosecution that on 12.01.2014 at Service Road near Satya Niketan Bus Stand, Moti Bagh, near wall of Shamshan Ghat, within the jurisdiction of PS South Campus, he was found in possession of stolen property i.e two mobile phones, SAMSUNG GALAXY TAB2, model GTP3100 of white colour bearing IMEI no. 352373057220191 which was stolen from Sh. Tanuj Singh (Complainant ) on 30.07.2013 from service road near Satya Niketan Bus Stand and another mobile phone make MICROMAX dual SIM bearing IMEI nos 911255801800986 and 911255801821982 of black colour, both the phones without SIM card, and he had retained the possession of said mobile phones knowing or having reasons to believe the same to be stolen property and thereby committed an offence punishable u/s 411 IPC.
The accused is also facing trial on the allegations of the prosecution that he habitually received or dealt in properties which he knew or had reasons to believe to be stolen properties and had already been convicted in a number of such type of cases and thereby had committed an offence SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 3 of 15 punishable u/s 413 IPC.
The above said charge was framed against the accused by the learned predecessor of this Court on 02.05.2014 to which he pleaded not guilty and claimed trial. The case was thereafter fixed for prosecution evidence.
6. The prosecution in support of its case has examined total 11 witnesses and thereafter the prosecution evidence was closed.
7. The statement of the accused was recorded under section 313 Cr.PC in which he denied all the incriminating circumstances appearing in the prosecution evidence on record against him and stated that he was innocent and had been falsely implicated in this case. He stated that he was not arrested from the spot as alleged by the prosecution nor any alleged recovery was made from him. He stated that he had never dealt with stolen properties as alleged by the prosecution. He further stated that he did not know Sh. Tanuj Singh (complainant) and he had no idea about the theft of his phone. He also stated that he had never given any mobile to PW6 Mr. Narain as alleged by the prosecution. He stated that no raid was conducted and he was not arrested from the spot as he was not present on that day on the spot. He stated that no recovery was made from him and no site plan of his apprehension was prepared before him. He stated that he was arrested from his home on 10.01.2014 and was kept for two days at PS South Campus. He stated that he had been falsely implicated in the present case just to save PW6 Mr. Narain and that no mobile phone was recovered from him. He stated that he even did not know Mr. Narain. He further stated that he was lifted by the police from his home and the alleged recovery was falsely planted upon him by the IO. He preferred not to lead any defence evidence.
8. I have heard the final arguments and perused the record. The final arguments shall be referred to and discussed in detail at different appropriate paragraphs in the judgment.
SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 4 of 15
9. As mentioned above, the prosecution in support of its case has examined total 11 witnesses.
PW1 Ct. Pawan Kumar reached the spot at Service Road, near Satya Niketan bus stand, Delhi on 30.07.2013 along with SI Ram Pratap after receiving DD no. 18A regarding the snatching of the mobile phone, where they met the complainant Sh. Tanuj Singh. SI Ram Pratap recorded the statement of the complainant, prepared Tehrir and handed it over to PW1. PW1 went to the police station South Campus for registration of the case, after registration of the case, he obtained copy of FIR and original Tehrir from duty officer, returned back at the spot and handed over the same to the IO.
PW2 ASI Sunita is a formal witness being the duty officer. On 30.07.2013 at about 3.05 p.m, ASI Devender Singh informed her on telephone about the snatching of a mobile phone in front of Satya Niketan near foot over bridge. ASI Devender Singh also informed her that the said call was recorded in Dhaula Kuan but the jurisdiction was found in PS South Campus. On the basis of said information, PW2 recorded DD no. 18A dated 30.07.2013 which has been proved as Ex PW2/A. After recording Ex PW2/A, PW2 informed PW10 SI Ram Pratap on his mobile phone for taking necessary action. On 30.07.2013, at about 3.25 p.m, she was informed in the duty officer room through wireless from South Control Room that an information had been received from South West Control Room that two persons had snatched the mobile phone of the caller at the road going towards Dhaula Kuan bus stand, Karol Bagh and the mobile number of the caller was disclosed as 7838314004. PW3 recorded the said information vide DD no. 20A, which has been proved as Ex PW2/B. PW2 informed PW 10 on phone about it for taking appropriate action.
PW3 Sh. Tanuj Singh is the complainant/ victim of the case incident. He has deposed that on 30.07.2013 at about 01.00 p.m, he was SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 5 of 15 standing at Satya Niketan bus stand and received a phone call of his brother on his mobile phone. He deposed that at that time he was having two mobile phones, at the time of receiving call, he had kept his mobile phone make SAMSUNG GALAXY TAB2, GTP 3100, having connection no. 8882660029 on the nearby wall, two young boys were also standing nearby and he could not see their faces. He deposed that after completing the hearing of the call from his brother, he saw that the above said phone was missing from the said place and thereafter, he reported the matter to the police on no. 100, the police came and recorded his statement dated 30.07.2013 upon which the case FIR was registered. It has been proved as Ex PW3/A bearing the signatures of PW3 at point A. PW3 also pointed out the place of incident to the police and the site plan Ex PW3/B was prepared at his instance. PW3 deposed that after about 7 or 8 months of the incident, the police informed him about the recovery of his mobile phone, he identified the mobile phone before the police, also gave the photocopy of receipt of the said mobile phone to the police and subsequently took it from the court on superdari. The photocopy of the receipt of the mobile phone has been proved as Ex PW3/C and the superdarinama has been proved as Ex PW3/D. The case property i.e the stolen SAMSUNG GALAXY TAB 2 mobile phone has been proved as Ex P1.
PW4 H.C. Devender Kumar was posted as Duty Officer on 30.07.2013 at PS South Campus and at about 07.15 p.m, PW1 came at the PS with Tehrir which was sent by PW 10 and on its basis he recorded the FIR of this case on DD no. 28 A. The FIR has been proved as Ex PW4/A bearing the signatures of PW4 at point A. The endorsement of PW4 on the original tehrir has been proved as Ex PW4/B. After registration of the FIR, PW4 handed over the copy of the FIR and original tehrir to PW1 for handing over the same to PW10.
PW5 Ct. Amrish Kumar was the member of the alleged raiding party which allegedly apprehended the accused on 12.1.2014 at Satya SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 6 of 15 Niketan bus stand, Moti Bagh, New Delhi and recovered the stolen mobile phone Ex P1 and one other MICROMAX dual phone from the accused. The seizure memo of the said mobile phones has been proved as Ex PW5/A . The arrest memo and personal search memo of the accused have been proved as Ex PW5/B and Ex PW5/C respectively. The disclosure statement of the accused is Ex PW5/D. The pointing out memo prepared at the instance of the accused regarding the place from where he had stolen the mobile phone Ex P1 has been proved as Ex PW5/E. The above said SAMSUNG GALAXY Tab 2 has been proved as Ex P1 and the other phone i.e. MICROMAX mobile phone is Mark A. PW6 Sh. Narain has inter alia deposed to the effect that Ex P1 was used by him for about 11½ months after taking it from the accused as his own mobile phone went out of order and thereafter he returned it back to the accused.
PW7 Ct. Jitender Kumar was the driver of the government vehicle no. DL1LM6561 (TATA 407) in which the members of the alleged raiding party travelled to the spot. He has deposed to the effect that on the instructions of PW11/IO, he had parked the said vehicles secretly at service lane near the spot and remained present inside the vehicle.
PW8 H.C. Chander Bhan is a formal witness who brought the summoned record i.e. register no. 19 containing entry no. 303 dated 12.01.2014 related to this case and the copy of the same has been proved as Ex PW8/A. PW9 Ct. Vicky Walia was the member of the alleged raiding party which allegedly apprehended the accused on 12.1.2014 at Satya Niketan bus stand, Moti Bagh, New Delhi and recovered the stolen mobile phone Ex P1 and one other MICROMAX dual phone (Mark A) from the accused.
PW10 SI Ram Pratap has deposed to the effect that on 30.07.2013, after receipt of DD no. 18A (Ex PW2/A), he along with PW1 reached the spot and met PW3, who gave the statement Ex PW3/A. PW10 made SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 7 of 15 endorsement Ex PW10/A on it and handed it over to PW1 for registration of the case FIR, PW1 went to the PS, got the case FIR Ex PW4/A registered and came back at the spot with copy of FIR and rukka and handed the same to him. PW10 also prepared the site plan Ex PW3/A at the instance of the complainant / PW3. In the cross examination by ld. defence counsel, PW10 admitted that CDR was not collected by him so long he remained the IO of the case. He also deposed that he did not have any information relating to the identity of the accused.
PW11 ASI Surender Singh is the IO of the case. He has deposed to the effect that on 3.1.2014, the further investigation of the case was marked to him. He during investigation came to know that the stolen mobile Ex P1 was in working condition and the same was used by PW6 Mr. Narain son of Mr. Ram Singh r/o L80, JJ Colony No.3, Nangloi, Delhi. He has deposed that PW6 told him that the accused used to live near Bhalla factory and he ( PW6) had taken the said phone from the accused as his mobile phone was out of order, in January, 2014, the mobile phone of PW6 was repaired and thereafter he returned the said mobile phone of the accused back to him. He was also the member of the alleged raiding party which allegedly apprehended the accused on 12.1.2014 at Satya Niketan bus stand, Moti Bagh, New Delhi and recovered the stolen mobile phone Ex P1 and one other MICROMAX dual phone (Mark A) from him. The site plan of the place of apprehension of the accused as made by PW11 is Ex PW 11/A.
10. The case of the prosecution is thus that on 12.1.2014 at Satya Niketan bus stand, Moti Bagh, New Delhi, the accused was found in possession of two mobile phones i.e Ex P1 belonging to PW3 (complainant of this case) and Mark A, which the accused retained knowingly or having reasons to believe the same to be the stolen property.
11. As mentioned above, the prosecution has examined four material witnesses in this case, who were the members of the alleged raiding party SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 8 of 15 which allegedly seized the said two mobile phones from the accused. The said witnesses are PW5 Ct. Amrish Kumar, PW7 Ct. Jitender Kumar, PW9 Ct. Vicky Walia and PW11 ASI Surender Singh/IO. There are, however, various material contradictions in the testimony of said witnesses which render their testimony unworthy of any credence and a strong doubt is created over the alleged recovery of the above said stolen mobile phones from the accused.
Firstly, PW5 and PW9 in their examination in chief have deposed that on 12.1.2014 at about 8.30 a.m upon receipt of DD no. 13B, they along with other Police Officials left the PS in a government vehicle TATA 407 for investigation and reached at Satya Niketan bus stop, Moti Bagh. Both PW5 and PW9 in their cross examination have deposed that the secret informer had given the information which was reduced into writing vide DD no.13B. PW11/IO has, however, deposed that the informer informed him on 12.1.2014 about the accused at about 8.15 a.m and no DD entry was registered regarding said information given by the informer. He further deposed in his cross examination that DD no. 13B dated 12.1.2014 PS South Campus pertained to departure entry for going to the spot for the apprehension of the accused after getting the secret information. It is a material contradiction in the testimony of the said witnesses which raises a very strong doubt over the receiving of information of any secret informer itself and regarding the said DD no. 13B dated 12.1.2014 PS South Campus. The misery of the prosecution is further compounded by the fact that no such DD entry has been placed or proved on record by the prosecution. PW 11 has also admitted in his cross examination that no such DD entry has been placed on record. It is a material contradiction in the testimony of the said witnesses which raises a strong doubt over their testimony and in turn the case of prosecution.
Secondly, PW5 in his cross examination deposed that he did not remember as to what was the exact seating arrangement of the members SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 9 of 15 of the raiding party in TATA 407. PW7 in his cross examination has deposed that he was driving the vehicle ( TATA 407 ), ASI (Manoj) and H.C. (Surender Singh/PW11 ) were seating in the cabin with him and the remaining two constables were seating in the back portion of the vehicle. PW9, on the other hand, has deposed that they were five persons including the driver (PW7), ASI Manoj was sitting along with driver in the driver cabin and remaining members of the raiding party were seating in the back side portion of the vehicle. Thus, as per PW7, PW11 was not sitting in the driver cabin of TATA 407 but was in the back side portion of the vehicle. This testimony of PW9 is in contradiction to the testimony of PW7. PW11 has deposed that PW7 was driving the said vehicle, ASI Manoj was sitting with PW7 and other members of the raiding party ( including PW 11 ) were in the back of the said vehicle. Again the testimony of PW11 is in contradiction to the testimony of PW7. It reflects adversely upon the authenticity of the case of the prosecution and a doubt is raised if the said raiding party was ever constituted or not or if it went to the spot and in what way.
Thirdly, PW5 has deposed in cross examination that the members of the raiding party were in official uniforms, whereas PW9 and PW11 in their cross examination have deposed that the members of the raiding party were in civil dress. It again reflects upon the story of the prosecution regarding the constitution of any alleged raiding party.
Fourthly, PW5 in his cross examination has deposed that the secret information had accompanied the IO but he had not accompanied them to the spot and was already present there. PW5 has thus deposed to the effect that the secret informer did not accompany the raiding party to the spot but was already present at the spot. PW9 has also deposed on the same lines in his cross examination. PW11 has taken a contradictory stand in his cross examination and has deposed to the effect that the raiding team also consisted of the secret informer. PW5 and PW9 have thus deposed SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 10 of 15 that the secret informer did not accompany the raiding team to the spot, whereas the IO / PW11 has deposed to the effect that the raiding team also consisted of secret informer. It is a material contradiction in the testimony of prosecution witnesses which raises a strong doubt over the entire story of prosecution.
Fifthly, the said prosecution witnesses have deposed to the effect that ASI Manoj was also a member of the alleged raiding party. It also seems from the case of the prosecution that he was the senior most members of the said raiding party as PW11 was a Head Constable at that time. It is surprising that the senior most member of the raiding party has not been cited as a witness nor examined by the prosecution in support of its case. PW11 in this regard has deposed in his cross examination that he did not take the signatures of ASI Manoj on any document on 12.1.2014. He has also deposed that no statement of ASI Manoj was recorded and he has also not been cited as a prosecution witness in this case. No proper explanation has come on record from the side of the prosecution as to why the senior most member of the alleged raiding party did not sign any document including the seizure memo Ex PW5/A or as to why he has not been cited or examined as a prosecution witness. It is a very material lacuna which throws a very strong doubt over the alleged raiding party and the alleged seizure of stolen mobile phones Ex P1 and Mark A from the accused.
All these contradictions and lacunas in the case of prosecution are material in nature which demolish the entire story of prosecution including the constitution of any raiding party and the alleged seizure of mobile phones from the possession of the accused. The benefit of doubt goes in favour of the accused who is entitle to acquittal in the present case.
12. As per the arrest memo of the accused i.e. Ex PW5/B, the accused was arrested on 12.01.2014 at 11.00 a.m from Service road near Satya Niketan bus stand, Moti Bagh, New Delhi. PW11 in his examination in SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 11 of 15 chief has deposed that on 12.1.2014 at about 08.45 a.m at the pointing out of the informer, the accused was apprehended at Satya Niketan bus stop. He has deposed in his examination in chief that they reached the spot at about 8.30 a.m. where he asked 4 / 5 passersby to join the raiding party but none of them agreed and left without disclosing their names and addresses. In cross examination, PW11 has deposed that no action was taken against any public person who refused to join the raid. He has also deposed that DTC buses were coming and going at the spot which is a bus stand and he did not make any effort to join any driver or conductor of said buses as a witness during the raid. The perusal of seizure memo of mobile phone Ex PW5/A also shows that no public witness has been made a witness in this case. The staff of DTC buses, which admittedly were coming and going at the spot, were government officials and the IO should have made sincere efforts to join at least them as public witnesses during the raid. It seems that despite the availability of public witnesses, no sincere efforts were made by the IO to join the public witnesses during the entire investigation and during the alleged seizure of mobile phones from the accused. The bus stand in the morning time is a very busy area and various independent public witnesses would have been available. In these circumstances, no reliance can be placed only upon the testimony of police witnesses, more so, when there are material contradictions in their testimony, some of them which have been highlighted during the earlier part of the judgment. It raises a strong doubt over the alleged recovery of mobile phones Ex. P1 and Mark A from the accused at the given place and time. It is absolutely fatal to the case of prosecution. The benefit of reasonable doubt goes in favour of the accused and against the prosecution.
13. The role of PW6 Sh Narain is also very doubtful in this case and he seems to be a planted witness by the Investigating Agency. He has deposed to the effect that in November, 2013, his mobile phone went out of order SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 12 of 15 and then he had taken ExP1 from the accused and it was used by him to run with SIM no. 9910540691. He further deposed to the effect that the mobile phone Ex. P1 was used by him for about 1 or 1½ month and after that he returned the same to the accused. To a leading question by Ld. Addl. PP for the State with the permission of the court, PW6 denied that the said mobile phone Ex. P1 was returned by him to the accused after two months. In cross examination by Ld. defence counsel, PW6 deposed that police had met him in November, 2013 and his statement was recorded only once in the police station at that time and that he had also signed his statement. He was confronted with his statement recorded u/s 161 CrPC i.e. Ex. PW6/D2, where no such signatures were there. He inter alia deposed that accused was known to him as he was residing in his neighbourhood for the last 56 years, however, he did not know his address and also did not know about the family members of the accused. He did not know the cost of SAMSUNG GALAXY TAB 2 i.e. the type of mobile phone Ex.P1. He further deposed that no other person was present at the time when he had taken the said mobile phone from the accused, however, again deposed that his employer Sh. Santosh was present at that time. He further deposed that he had told police in his statement that he had taken the hand set from the accused in the presence of his employer, however, he was confronted with his statement Ex. PW6/D2 where no such fact was mentioned. He deposed that he returned the mobile phone to the accused on his own without being asked by the accused and it was returned before his employer Sh. Santosh, however, the fact of returning the phone to the accused in the presence of Sh. Santosh was not found mentioned in Ex. PW6/D2. PW11/IO has taken a contradictory stand and has deposed to the effect that PW6 was contacted only on 03.01.2014 when PW6 told them that in January 2014, his phone was repaired and he had returned the said mobile of the accused back to him. IO further deposed that thereafter he recorded the statement of PW6 and came back SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 13 of 15 to the PS. PW6 has thus deposed to the effect that his statement was recorded only once in the PS in November 2013, whereas, PW11/IO has deposed that the statement of PW6 was recorded on 03.01.2014. The statement of PW6 u/s 161 CrPC on record i.e. Ex.PW6/D2 shows that it is neither of November 2013 nor is dated 03.01.2014 but it is dated 08.01.2014. There is no mention in it of giving or taking of Ex P1 by the accused and PW6 before any Sh Santosh nor any Sh Santosh has been cited or examined as a prosecution witness in this case. Further, it is very surprising as to why the accused would hand over his costly Samsung GALAXY TAB 2 mobile to PW6 for his use even though PW6 has deposed that he did not know the address of the accused nor he knew about the family members of the accused. The accused in his statement u/s 313 CrPC has also stated that he did not even know Mr Narain (PW6) and the prosecution witnesses have deposed falsely to save PW6. It seems from the testimony of PW6 and record that PW6 is not a truthful witness, is trying to hide material facts from the court and his testimony cannot be relied upon. The prosecution has failed to prove on record any document to show that PW6 in fact took the mobile phone Ex.P1 from the accused and in fact used it after putting his own SIM Card and thereafter returned it to the accused in January 2014. As discussed above, no receipt or no call details record in that regard have been placed or proved on record by the prosecution. It also raises an adverse inference against the case of prosecution.
14. As far as the mobile phone Mark A is concerned, its recovery from the accused also becomes doubtful due to the doubt over the alleged raid and consequent seizure of mobile phone vide seizure memo Ex.PW5/A, as has been discussed in earlier part of the judgment. Further, nothing has been proved on record by the prosecution to show that mobile phone Mark A was in fact a stolen property within the definition of Section 410 IPC. No witness has been examined by the prosecution in that regard to prove SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 14 of 15 that on what date and in what circumstances the mobile Mark A was stolen and it was allegedly stolen from whose possession.
15. In view of the above said discussion, the prosecution has failed to prove beyond reasonable doubt that on 12.01.2014 at Service road near Satya Niketan bus stand, the accused was found in possession of two stolen mobile phones Ex. P1 and Mark A and had dishonestly received or retained the said mobile phones knowing or having reasons to believe the same to be stolen property. The accused is thus liable to be acquitted and is acquitted u/s 411 IPC.
16. As the accused has been acquitted u/s 411 IPC in this case, therefore, there is no requirement of making a detailed discussion regarding Section 413 IPC which pertains to 'Habitually dealing in stolen property'. Further, the prosecution has failed to prove on record that the accused habitually receives or deals in property which he knows or has reasons to believe to be stolen property. The prosecution has failed to prove on record the particulars of previous cases in which the accused might have been convicted earlier for receiving or dealing in stole property defined u/s 410 IPC. The prosecution has therefore failed to prove beyond reasonable doubt that the accused habitually dealt in stolen property. The accused is thus acquitted u/s 413 IPC.
17. In view of the above said discussion, the prosecution has failed to prove beyond reasonable doubt the charge u/s 411/413 IPC against the accused and therefore the accused Sanjeev @ Bhandey is acquitted in the present case u/s 411/413 IPC. He be released from judicial custody, if not required to be detained in any other case.
18. File be consigned to record room.
Announced in the open court ( Amit Bansal)
th
on 30 May, 2015 Addl. Sessions Judge04
NEW DELHI DISTRICT/ PATIALA
HOUSE COURTS/NEW DELHI
SC no. 41/3/14 FIR No.124/2013 PS South Campus State Vs. Sanjeev @ Bhandey 15 of 15