Delhi District Court
State vs . Rajan Oberoi Ca 287/17 on 20 November, 2018
State Vs. Rajan Oberoi CA 287/17
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
CA No.287/17
State (Govt.of Nct Delhi)
Through Public Prosecutor Delhi ....... Appellant
Versus
(1) Rajan Oberoi @ Golu
S/o Sh.Ashwani Kumar
R/o BGB Block, H.No. 92, Janta Flat,
Raghubir Nagar, Delhi.
(2) Satbir
S/o Ram Chander
R/o 301/302, E Block,
J.J.Colony,
Wazir Pur, Ashok Vihar,
Delhi. ......Respondents
Date of Institution : 17.10.2017
Date of Reserving Judgment : 19.11.2018
Date of Judgment : 20.11.2018
Result: Dismissed Page 1 of 7
State Vs. Rajan Oberoi CA 287/17
JUDGMENT on Appeal under Section 378 Cr.P.C. against the impugned Judgment dt. 16.08.2017
1. This is an Appeal of the State U/s 378 Cr.P.C. against Judgment of Acquittal dt.16.08.2017 passed by the Ld.trial Court.
2. One Ms.Namita Khanna was present in A2 Market, Paschim Vihar, Delhi on 28.11.2012 between 08:00 PM to 08:30 PM when Rajesh Oberoi (R1) allegedly committed theft of her Mobile Phone (Samsung Galaxy S2) intending to take the same dishonestly from her possession without her consent and thus, removed the said property in order to such taking.
3. On 29.12.2012, a Mobile Phone was recovered from the possession of Satbir (R2) connected as case property. Accused persons were chargesheeted for offences Punishable U/s 379/356/411 IPC.
4. They had pleaded not guilty.
5. 08 Prosecution witnesses were examined including the complainant as PW1 and one Rajeev as PW2 who accompanied Result: Dismissed Page 2 of 7 State Vs. Rajan Oberoi CA 287/17 the Complainant to PS on 05.12.2012 to furnish copy of Bill of stolen Mobile Phone (Mark A) which was taken into Police possession vide Memo Ex.PW2/A. The Mobile Phone is Ex.P.1. It was obtained on Superdari after its recovery.
6. Remaining witnesses are Police witnesses.
7. The Ld.trial Court appreciated the evidence and acquitted both the accused persons holding primarily that (a) the IMEI number of Mobile Phone as reflected in the CDR Ex.PW4/A and the IMEI number as mentioned in the Chargesheet do not match thereby creating doubt regarding authenticity of recovered case property; and (b) Public witnesses to recovery were not examined despite admitted availability.
8. Prosecution is aggrieved of the Judgment primarily on the grounds that (a) PW1 had correctly identified R1 in the Court as person who snatched her Mobile Phone; (b) that PW1 produced the Mobile Phone Ex.P.1 and identified its photographs Ex.PW 1/1 to Ex.PW1/4 and the same was recovered from R2, as per PW5 one of the recovery witness; and (c) that Trial Court did not appreciate that last digit of IMEI number with the digit '0' is Result: Dismissed Page 3 of 7 State Vs. Rajan Oberoi CA 287/17 default setting and it would always be mentioned as such in Call detail report.
9. Notice of the Petition was issued to both the respondents who have contested the Petition.
10. Respondent no.1 has been appearing from Judicial Custody as required in some other case.
11. Respondent no.1 is represented by Sh.Praveen Garg, Advocate while Respondent no.2 is represented by Sh.S.P.S.Chauhan, Advocate.
12. I have carefully gone through the Judgment impugned. The Ld.trial Court has meticulously taken note of the entire facts and has drawn complete and composite picture of testimonies of Prosecution witnesses and while doing so, the Ld.trial Court simultaneously appreciated their crossexamination.
13. One such observation is that PW8 admitted that complainant had not handedover Invoice of the Mobile Phone with her written complaint and it was handedover after five days on 05.12.2012.
14. This piece of evidence has not been proved. It is Mark A. The Seller has not been examined. Accordingly, no reference can be made to it.
Result: Dismissed Page 4 of 7State Vs. Rajan Oberoi CA 287/17
15. This left the Court with details of IMEI number referred in Ex.PW1/A which is 354505057348146.
16. The CDR's of Mobile Number 9650380700 is on record.
Ex.PW1/A does not reveal as to what number she was using in the stolen Mobile Phone. She does not provide this number even in her examination in Chief. The CDRs are Ex.PW4/A while Call details of Mobile Phone having IMEI number 354505057348140 is from 29.11.2012 to 27.12.2012 in Ex.PW4/B.
17. The observation of the Ld.trial Court is correct as the last digit reflected in the IMEI in the CDRs is different from the IMEI number provided in the Chargesheet.
18. The Prosecution argues that the same is the default setting and the last digit of the IMEI number will always be mentioned as '0' in the CDR.
19. In support of this contention, the Prosecution had not produced anything before this Court to form this opinion.
20. No expert has been produced who will vouch for this contention. Thus, in absence of legal or expert support to the same, the contention cannot be accepted.
Result: Dismissed Page 5 of 7State Vs. Rajan Oberoi CA 287/17
21. It is true that complainant identified R1 in the Court in her testimony. It is also true that the accused, who has admitted TIP proceedings had refused to take part in the Judicial TIP.
22. At the same time, he is not disputing his presence on the spot and the reasons for not taking part in the TIP is given by him as "because complainant had seen him on the spot".
23. No reason is provided by R1 as to why he was present at the time of occurrence at the spot. This omission should be more than sufficient for securing the conviction coupled with positive identification by the Complainant and also production of the case property however, in this case, the case property has not been indisputably linked by the Prosecution as 'stolen case property' and therefore this Court finds no fault in the findings of the Ld.trial Court.
24. Hence, I find no illegality, error or misappreciation of evidence in the Judgment of the Ld.Trial Court dt. 16.08.2017.
25. With these directions, the present Appeal stands disposed of as dismissed.
26. Trial Court record be sent back alongwith the Copy of this Result: Dismissed Page 6 of 7 State Vs. Rajan Oberoi CA 287/17 Judgment.
27. After necessary formalities, Appeal file be consigned to Record Room.
Announced in open Court. (Manish Yaduvanshi)
Dated: 20.11.2018 ASJ05(West)Delhi
Digitally
signed by
MANISH
MANISH YADUVANSHI
YADUVANSHI Date:
2018.11.22
14:23:18
+0530
Result: Dismissed Page 7 of 7