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Fir No. 62/18, Ps : Ndrs State vs Sunil Thapa on 23 May, 2019

FIR No. 62/18, PS : NDRS         State Vs Sunil Thapa


   IN THE COURT OF MM­08 (CENTRAL DISTRICT)
        TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Sunil Thapa
FIR No. 62/2018
PS : NDRS
U/s : 356/379/34 IPC
Date of Institution                   : 30.07.2018
Date of reserving of order            : 08.05.2019
Date of Judgment                      : 23.05.2019

JUDGMENT

CNR No. DLCT02­024784­2018

1. Serial No. of the case : 10594/2018

2. Name of the Complainant : Smt. Tejeswari

3. Date of incident : 11.05.2018

4. Name of accused person :

Sunil Thapa S/o Sh. Kanapadi R/o H. No. 353/32A, Chandnigarh, India.

5. Offence for which chargesheet was filed : S. 356/379/34 IPC.

6. Offence for which charge has been framed : As above

7. Plea of accused : Not guilty

8. Final Order : Acquitted Page 1 of 12 MM­08(Central)/THC/Delhi/23.05.2019 FIR No. 62/18, PS : NDRS State Vs Sunil Thapa

9. Date of Judgment : 23.05.2019 BRIEF REASONS FOR ORDER:

1. Mr. Sunil Thapa, the accused herein, has been charge­sheeted for committing offences punishable under Section 356/379/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").

2. The case of the prosecution is that on 11.05.2018, complainant Tejaswari Rana was traveling in Indore Chandigarh Express alongwith her family members. During the said journey, her purse was stolen by someone. Various items / belongings of other passengers were also stolen by 10­15 boys. After committing the theft, they had jumped from the running train and fled away. However, the accused was apprehended on the spot, he was handed over to the custody of GRP Chandigarh where a zero FIR was registered which was transferred to PS GRP NDRS. The accused was formally arrested. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was charge­ sheeted for the offences punishable under Section 356/379/34, Indian Penal Code.

FIR No. 62/18, PS : NDRS State Vs Sunil Thapa

3. After perusing the record, cognizance was taken by the Court. The accused was produced in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 356/379/34 IPC was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.

4. The prosecution has examined as many as 08 witnesses to prove its case against the accused.

5. PW­1 W SI Urmila was the IO of zero FIR GRP Chandigarh. She has deposed that on 11.05.2018, she had recorded the statement of the complainant and other witnesses/victims. They had also produced the accused Sunil Thapa. After interrogation, she had arrested the accused vide memo Ex.PW1/A. Thereafter the accused was taken for his medical examination. He was produced before the Ld. MM and his judicial custody orders were obtained. Thereafter, he was sent to JC. She had also sent one police official to PS : NDRS, Delhi alongwith copy of zero FIR.

6. PW­2 W HC Anna Gloria is the DO of PS Page 3 of 12 MM­08(Central)/THC/Delhi/23.05.2019 FIR No. 62/18, PS : NDRS State Vs Sunil Thapa NDRS. She has deposed that on 22.06.2018, she had received a zero FIR, a complaint having the endorsement of PS : NDRS for registration of FIR. On the basis of same, she got recorded FIR No 62/2018, copy of which is Ex. PW2/A (OSR). She had also issued certificate under section 65­B of Indian Evidence Act, which is Ex.PW2/B. She had made endorsement on the back side of the complaint, which is Ex. PW2/C. She handed over the complaint and copy of FIR to ASI Md. Fahim for further investigation.

7. PW­3 Smt. Tejaswari Rana is the complainant. She has deposed that on 10.05.2018, she alongwith her husband and two children had boarded train no. 19307 (Indore Chandigarh Express) at Gwalior station. She was having her purse containing two gold chains, four gold rings, Two ATM cards, one credit card, one Aadhar Card, one PAN Card, one mobile phone and ₹10,000/­ in cash. When the train was about to reach at NDRS, one person had snatched her aforesaid purse from her hand. After snatching her purse, that snatcher tried to flee away towards the exit gate of the boggie. She shouted for help and also followed that snatcher. The train was running Page 4 of 12 MM­08(Central)/THC/Delhi/23.05.2019 FIR No. 62/18, PS : NDRS State Vs Sunil Thapa slowly at that time. She saw that the aforesaid snatcher had thrown her purse on the ground and he also de­ boarded the train. At that time, she came to know that more than 25 snatchings were done in the same train simultaneously. Several public persons had apprehended one snatcher namely Sunil Thapa. Rest of the snatchers had successfully fled away from the aforesaid train. The accused was brought at Chandigarh Railway Station. She had given her complaint in this regard to GRP police station Chandigarh which is Ex. PW­3/A. All the victims had given separate complaints to GRP police station, Chandigarh. One joint complaint was also made by the passenger which is Ex. PW­3/B. She had also sent her complaint through Whatsapp to SHO, Nizamuddin Railway Station which is Mark PW­3/C. IO of this case had recorded her statement in this regard.

8. PW­4 Ms. Alka was one of the victim.

However, she had compounded the offences with the accused. She would state in her examination that she had not seen the accused committing theft of her belongings.

9. PW­5 Ms. Maya is also a victim. However, she had compounded the offences with the accused. She Page 5 of 12 MM­08(Central)/THC/Delhi/23.05.2019 FIR No. 62/18, PS : NDRS State Vs Sunil Thapa would state in her examination that she had not seen the accused committing theft of her belongings.

10. PW­6 Sh. Rahul Chauhan is one of the victim. He has deposed that in the year 2018 he was traveling in a train from Bhopal to Chandigrah in Chandigarh Express. He was in coach No. S­4. He had kept his mobile phone Vivo Company for charging in the train. However, he did not find his phone at the said place after some time. Thereafter, he alongwith his friend had tried to trace the said phone. One army official was also traveling in the said train who told that one thief was caught in one coach of the train. He reached there. However, nothing was recovered from the said person. His mobile phone could not be traced.

11. PW­7 Ms. Rupali Saxena is one of the victim. She has deposed that on 11.05.2018, she was traveling in Indore Chandigarh Express with her husband. One person suddenly came and snatched her mobile phone and ran away with it. She made a complaint at Chandigarh Railway Station. The said complaint is Ex. PW­7/A. She could not see the face of the accused as he had come so quickly and ran away.

FIR No. 62/18, PS : NDRS State Vs Sunil Thapa

12. PW­8 ASI Fahim Ahmed is the IO. He has deposed that on 22.06.2018, zero FIR was received at PS after having been endorsed by the SHO. Thereafter, FIR No. 62/2018 was registered, and the same was marked to him for investigation. Accused Sunil Thapa was in Ambala Jail. Thereafter, he had obtained production warrants and formally arrested the accused. The disclosure statement of the accused was recorded which is Ex. PW8/A. He arrested the accused vide memo Ex.PW8/B. His Personal search was conducted vide memo Ex.PW8/C. His supplementary disclosure statement was recorded which is Ex. PW8/D. He had recorded the statements of all the witnesses complainant. He had prepared the challan and filed in the Court.

13. All the witnesses were cross­examined. The prosecution evidence was closed. The accused was examined under Section 313 Cr.P.C r/w Section 281 Cr.P.C. All the incriminating evidence was put to him. He would state that he was innocent.

14. The accused did not lead defence evidence and therefore, matter was fixed for final arguments.

FIR No. 62/18, PS : NDRS State Vs Sunil Thapa

15. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused was apprehended at the spot while his associates had successfully run away with the case property. The identity of the accused has been established beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.

16. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. Hence, it is prayed that benefit of doubts may be given to the accused and he may be acquitted.

17. I have heard the rival submissions and carefully perused the material available on record.

18. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.

19. In the present case, the accused has been charged for committing offences punishable under Section 356/379/34 IPC. Section 356 IPC provides punishment Page 8 of 12 MM­08(Central)/THC/Delhi/23.05.2019 FIR No. 62/18, PS : NDRS State Vs Sunil Thapa for assaulting or using criminal force to any person in attempting to commit theft or any property which that person is then carrying or wearing. Section 379 IPC provides punishment for committing theft as defined under Section 378 IPC. Section 378 IPC defines theft as moving any movable property with an intention to take it dishonestly out of the possession of a person without consent of such person. Section 411 IPC provides punishment for dishonestly receiving or retaining any property which the accused knows or has reason to believe to be stolen property. Section 34 IPC provides that whenever a criminal act is done by several persons in furtherance of common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.

20. In the present case, the testimonies of the prosecution witnesses have proved beyond reasonable doubts that the accused had been apprehended in the train at the relevant time. The accused himself has admitted this fact during his examination under Section 313 Cr.P.C.

FIR No. 62/18, PS : NDRS State Vs Sunil Thapa

21. PW­3 Smt. Tejaswari Rana has deposed in her examination that one person had snatched her purse from her hands and he tried to flee away towards the exit gate of the coach. She has also deposed that at the said time, more than 25 snatching had been done in the same train. Some passengers had apprehended the accused i.e., one of the snatchers in the train.

22. Be that as it may, PW­3 Smt. Tejaswari Rana has stated in her examination that the person who had snatched her bag had thrown the bag outside the train and he himself had also jumped out of the train. Thus, his testimony has proved that accused Sunil Thapa was not the person who had snatched the bag of the complainant. In her cross examination pw­3 has stated that she had not seen the face of the snatchers who had snatched her bag. Her testimony has also shown that she had not seen the accused committing any crime in the train. Her evidence regarding the apprehension of the accused as a snatcher is also hearsay. The testimony of PW­3 is unable to prove any offence against the accused beyond reasonable doubts.

FIR No. 62/18, PS : NDRS State Vs Sunil Thapa

23. PW­6 Rahul Chauhan has also deposed in his testimony that he had not seen the accused committing any crime. He has also stated that he had not seen the accused in his coach at any point of time. Thus, the testimony of PW­6 is also not able to prove ingredients of any of the offence against the accused even on the preponderance of probability.

24. PW­7 Ms. Rupali Saxena has also stated in her examination that she had not seen the face of the person who had snatched her mobile phone. When the accused was shown to her, she had stated that she could not have said that the accused was the person who had snatched her phone.

25. Other witnesses are the police officials who had participated in investigation. None of the eye witnesses examination by the prosecution had apprehended the accused. All of them have stated that they had heard that one snatchers was apprehended by the passengers in the train. There is nothing on record to show as to who had actually apprehended the accused in the train. None of the public witness examined by the prosecution has identified the accused as a snatcher who Page 11 of 12 MM­08(Central)/THC/Delhi/23.05.2019 FIR No. 62/18, PS : NDRS State Vs Sunil Thapa had committed any offence in their presence. There is also nothing in their testimonies to prove beyond reasonable douobts that the accused was one of the associates of the snatchers who had committed the offences in the train. Therefore, the possibility of mistaken identity and false implication cannot be ruled out. It is settled position of the law that whenever there are two views possible, the view which favours the innocence of the accused must be accepted by the Court. In the present case, the material on record is not sufficient to prove the guilt of the accused beyond reasonable doubts. The accused is entitled to benefit of reasonable doubts. He is therefore, acquitted.

26. The accused has already furnished bond under Section 437A Cr.P.C. Digitally signed by DINESH DINESH KUMAR Date:

                             KUMAR              2019.05.23
                                                16:36:26
                                                +0530

Pronounced in the open Court on (Dinesh Kumar) rd this 23 Day of May 2019 MM­08 (Central) Tis Hazari Courts, Delhi Page 12 of 12 MM­08(Central)/THC/Delhi/23.05.2019