Delhi District Court
State vs . Sonu Rathore on 17 April, 2023
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE : SOUTH EAST
DISTRICT : SAKET COURTS : NEW DELHI
Presided by : Ms. Sonam Singh-I
State vs. Sonu Rathore
FIR No. 180/2022
Police Station : Badarpur
Under Section: 411 of the Indian Penal Code, 1860 (in short
"IPC")
Date of institution : 19.05.2022
Date of reserving : 20.03.2023
Date of pronouncement : 17.04.2023
JUDGMENT
a) Serial number of the case : 3912/2022
b) Date of commission of : 21.04.2022 offence
c) Name of the complainant : Moeen Khan
d) Name, parentage and : Sonu Rathore, S/o Sh. Ramhet, address of the accused R/o H. No. B-1028, Transit Camp, Govindpuri, New Delhi.
e) Offence complained of : Section 411 of the IPC
f) Plea of the accused : Accused pleaded not guilty State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 1 of 20
g) Final order : Accused stands acquitted of the offence punishable under Section 411 IPC.
h) Date of final order : 17.04.2023
BRIEF FACTS AND REASONS FOR DECISION
OF THE CASE
1. Vide this judgment, the accused Sonu Rathore stands acquitted of the offence punishable under Section 411 IPC in this case for the reasons mentioned below.
CASE OF THE PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') is that on 05.04.2022, at about 3.30 PM, the complainant, namely, Sh. Moeen Khan went to deposit money in lieu of a bill at Indicom Company. It is alleged that the mobile phone of the complainant was snatched by the accused when the complainant was on his way back, at Mohan Estate Metro Station, in front of Haldiram, near a service Road. It is alleged that while the complainant was talking on his phone, the accused came on a black coloured bike from behind and snatched the mobile from the hand of the complainant and fled away towards Mohan Estate State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 2 of 20 Metro Station. . It is alleged that the mobile phone was blue in colour and of Honour company. On the basis of statement of complainant dated 07.04.2022, initially a case FIR U/s. 356/379 IPC was registered. After registration of FIR, investigation was conducted, during investigation, site plan was prepared and search was conducted regarding the culprits and the snatched/stolen mobile phone.
3. During investigation, on 18.04.2022 information was received to IO regarding apprehension of accused Sonu Rathor in another FIR No. 127/22, U/s.186/353/332/506/307/411 IPC & 25/27 Arms Act of PS C.R.Park wherein the accused had disclosed the commission of offence in the present case also and also the mobile phone of the complainant Moeen Khan was recovered from the custody of the accused. Accordingly after obtaining the permission of court, on 21.04.2022, the accused was produced on production warrant, interrogated, arrested and sent to judicial custody in this case by the Ld. Predecessor. Thereafter, the stolen mobile phone which is of make Honor Blue Colour having IMEI No. 866783043101678 & 866783043136682 mentioned in seizure memo Mark X was seized and deposited in the Malkhana. It is alleged that the accused kept the said phone in his possession knowing or having reason to believe that the same was the stolen property. Accordingly, Section 411 IPC was added to the investigation.
State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 3 of 20
4. The investigation was done by the IO/ASI Vijay Singh who filed the police report under Section 173 of the Cr.P.C. in respect of the offence punishable under Sections 411 IPC.
COURT PROCEEDINGS
5. This court took cognizance upon the said police report on 19.05.2022 and copies of police report and documents were also supplied to the accused on 19.05.2022 itself.
CHARGE
6. Vide order dated 02.06.2022, this court framed the charge against the accused for the offence punishable under Section 411 of the IPC, to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
7. Vide order dated 02.06.2022, in compliance with the provisions of Section 294 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C."), the accused was called upon to admit or deny the genuineness of e-FIR No. 000180/2022, PS Badarpur, Certificate U/s 65B Indian Evidence Act, DD No. 52A dated State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 4 of 20 18.04.2022 and DD No. 66A dated 21.04.2022. The said documents were admitted by the accused and were accordingly exhibited as Ex. A1 to Ex.A4. In view of the admissions made, the evidence of PW duty officer HC Ajit Singh was dispensed with.
EVIDENCE OF THE PROSECUTION
8. Thereafter, the matter was listed for prosecution evidence.
(i) Prosecution Witnesses
9. In order to prove and substantiate its case, the prosecution in all has examined five witnesses, namely:
Designation and Name Role in the present case Sr. No. of the Witness
1. PW1 Mohd. Mueen Complainant Khan
2. PW2 HC Manish Police official / witness who joined IO in investigation.
3. PW3 SI Amit Kumar Police official from PS CR Park / witness who informed IO in regard to recovery of mobile phone/stolen property in the present case.
4. PW4 ASI Vijay Singh Investigating Officer
5. PW5 Sh. Anurag Sharma Ahlmad in the court of Sh.
Sonu Agnihotri, Ld. ASJ-
03/SE, Saket Courts, Delhi who produced the original State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 5 of 20 record of FIR No. 127/2022 P.S. C.R. Park.
(ii) Documents on record:
10. The prosecution witnesses relied on the following documents:
Sr. No. Exhibits/Marks Nature of documents
1. Ex.PW1/1 Statement of the complainant
2. Ex.PW1/2 Site Plan
3. Ex.PW2/1 Arrest Memo of accused
4. Ex.PW2/2 Personal Search memo of accused
5. Ex.PW2/3 Disclosure statement of accused
6. Mark PW3/1 Seizure memo of mobile phone
7. Mark PW3/2 Seizure memo of motorcycle
8. Ex.PW4/1 Rukka
9. Mark PW4 (colly 5 Photo copy of FIR, copy of pages) seizure memo of mobile and motorcycle and copy of disclosure statement of accused In FIR No.127/2022.
10. Ex.P1 Mobile Phone
11. Mark X Seizure memo of phone
12. Mark PW4 (Colly five Photocopies of FI, seizure pages) memo of mobile, motorcycle and copy of disclosure statement in FIR No. 127/2022, PS C.R. Park.
13. Ex.PH1 (Colly two) Photographs of Mobile Phone
14. Mark A Statement of the complainant u/s 161 CrPC State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 6 of 20
11. Thereafter, prosecution evidence was closed vide order dated 22.02.2023. The court will discuss the testimonies of the said witnesses later i.e. at the time of appreciation of evidence.
THE STATEMENT OF THE ACCUSED UNDER SECTION 313 Cr.PC. / DEFENCE OF THE ACCUSED
12. The Accused in his statement under Section 313 Cr.P.C, on 06.03.2023 denied the entire evidence put to him. He stated that he is innocent and recovey of mobile phone was planted on him.
FINAL ARGUMENTS
13. The Court heard the final arguments on 20.03.2023.
ANALYSIS AND FINDINGS
14. I have heard the submissions of Ld. APP for the State as well as that of Sh. Nitish Bhardwaj, Ld. LAC for the accused. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
15. In order to decide the present case, it is important to discuss the provision. First, let us discuss Section 411 IPC. The essential ingredients to prove the offence under Section 411, IPC are as under:-
State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 7 of 20
a) The property should be in possession of the accused;
b) Such property should be "stolen property" i.e it should have been transferred by theft, extortion or robbery, or which has been criminally misappropriated; and ;
c) The accused had received the same knowing or having reason to believe the same to be stolen property.
16. In the case of Trimbak v/s State of M.P. 1954 AIR SC 39 also, the Hon'ble apex court described extensively the ingredients to be proved by the prosecution in order to bring home the guilt of a person under Section 411, I.P.C.:
"(1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property."
17. It is a well settled principle of criminal law that the burden of proof on the prosecution is to prove the case by leading convincing evidence to prove the guilt of accused person beyond reasonable doubt. The accused person cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof. Every benefit of doubt goes in favour of accused person.
State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 8 of 20 FIRST INGREDIENT: WHETHER THE MOBILE PHONE ALLEGEDLY RECOVERED IS STOLEN PROPERTY?
18. In this regard, it is pertinent to mention the meaning of "stolen property", as per IPC. "Stolen property" has been defined under Section 410 I.P.C. as under :
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
19. In the present case, it has been alleged that the mobile phone in question was stolen from the possession of complainant Sh. Mueen Khan at about 3.30 PM on 05.04.2022 and found in the possession of the accused on 18.04.2022 . In order to prove its case, the prosecution has examined the complainant Sh. Mueen Khan as a witness.
20. It was imperative for the prosecution to have proved that the mobile phone allegedly recovered from the possession of the accused was the same as that which had been stolen from the complainant. Perusal of the complaint Ex.PW1/1 reveals that complainant had not stated the IMEI number of the stolen mobile phone. He had simply informed that his mobile which was blue in State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 9 of 20 colour of Honour Brand having mobile phone No. 9582998917 was snatched. It is nowhere stated in the said complaint as what was the IMEI number of the mobile phone. A mobile phone can be identified specifically on the basis of its model and its IMEI number. Perusal of the record reveals that no cogent evidence has been placed on record to show that the complainant was the owner of the case property or he was in the possession of the same. The prosecution has relied upon two photograph of mobile phone which are Ex.PH1 (Colly) are on record but the IMEI no. of the mobile phone is not visible in the said photographs. Further, no cogent evidence like CDR of the complainant or bill of the purchase of mobile phone has been placed on record to show that the complainant Moeen Khan was the owner of the mobile phone make Honor, Blue in Colour having IMEI No. 866783043101678 & 866783043136682. It is relevant to mention that the complainant/ PW1 Mueen Khan deposed that he did not remember the IMEI no. of the mobile phone. Further, he deposed that when he went to Police Station Badarpur for registration of FIR, police official asked him for bill of the mobile phone. However, the said bill was not placed on record. It is also pertinent to note that in the seizure memo Mark PW3/1, the IMEI number of Honor mobile phone was also not found mentioned. Thus, it is apparent that the complainant has not produced any cogent document to prove his ownership and consequent possession of the mobile phone. Thus, this court finds merit in the State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 10 of 20 contention of Ld. Counsel for the accused that the prosecution has failed to establish complainant's possession or ownership of the mobile beyond reasonable doubt.
21. Further, as per the prosecution story, the theft had allegedly taken place at around 03.30 p.m. on 05.04.2022 and the complaint was lodged only on 07.04.2022, at about 05.40 p.m. Same is evident from the complaint Ex. PW-1/1 as well as the examination-in-chief of PW-1 Sh. Mueen Khan. However, no explanation has been furnished by the complainant/PW-1 Sh. Mueen Khan as to why he did not report the theft immediately upon finding his mobile phone missing. This factor also casts doubt on the prosecution version regarding theft of the mobile phone.
22. In view of the aforesaid deficiencies, it is not established beyond reasonable doubt by the prosecution that the mobile phone allegedly recovered from the possession of the accused was the same as that which had been stolen from the complainant.
SECOND INGREDIENT: WHETHER THE ACCUSED HAD DISHONESTLY RECEIVED OR RETAINED THE MOBILE IN QUESTION?
23. To prove the said ingredient, the prosecution had to prove that the accused had received or retained the mobile in State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 11 of 20 question and that the same was done dishonestly. For this ingredient, the prosecution was required to first of all prove beyond reasonable doubt that the said mobile phone was recovered as alleged from the possession of the accused. The same has not been proved by the prosecution beyond reasonable doubt for the reasons to follow.
(A)NON-JOINDER OF PUBLIC WITNESSES:
24. In the present case, there is no independent public witness to corroborate the alleged recovery of the mobile phone from the possession of accused Sonu Rathore.
25. As per the case of prosecution on 18.04.2022, an information was received to IO from Duty Officer, PS Badarpur regarding recovery of the mobile phone in the present case from the accused Sonu Rathore who was arrested in another FIR No. 127/22, U/s.186/353/332/506/307/411 IPC & 25/27 Arms Act of PS C.R.Park. It is alleged that the Duty officer PS Badarpur informed IO ASI Vijay Singh that the snatched mobile phone had been recovered by SI Amit of PS C.R. Park.
26. PW3 SI Amit Kumar is the only recovery witness in this case. He deposed that on 05.04.2022, at about 08.00 PM, he received information from Duty Officer regarding apprehension of accused Sonu Rathore at Kabutar Chowk Ring Road, CR Park. He further deposed that he went to the spot where Ct. Jaiveer State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 12 of 20 produced accused Sonu Rathore alongwith one knife and two mobile phones. He also deposed that one motorcycle bearing registration No. HR 87BH 9416 was also recovered from the possession of accused. He deposed that he interrogated the accused and during interrogation accused disclosed that he had stolen two mobile phones from different places. PW 3 SI Amit deposed that he seized the recovered mobile phones vide seizure memo Mark PW3/1 and also seized the motorcycle vide seizure memo Mark PW3/2. He further deposed that during investigation he came to know the mobile phone make Honor Blue Color was stolen in the present case and he gave information at PS Badar Pur vide DD No.52 dt. 18.04.2022. He further deposed that IO ASI Vijay Singh came to the PS CR Park and recorded his statement in which he stated the IMEI number of recovered mobile phone. He identified the Honor mobile as Ex.P-1. However, it is pertinent to note that during his cross examination he deposed that public persons were present at the spot and he requested them to join the investigation but none agreed to join the investigation.
27. 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 State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 13 of 20 suspicion. Hence, in the absence of non joinder of any independent witness in the investigation, false implication of the accused by the local police in the present case cannot be ruled out.
28. The aforesaid observation of the Court is fortified by following observations in case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, by Hon'ble High Court of Punjab & Haryana:
"...It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case.
In the present case also admittedly, the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful..."
State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 14 of 20 .
29. Similar opinion was expressed by Hon'ble Delhi High Court in case titled Anoop Joshi vs. State 1992 (2) CCC 314 (HC) wherein it was held:
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
30. The aforesaid deposition of PW3 SI Amit Kumar shows that he has failed to give any plausible explanation for non- joining of the public witnesses in the investigation despite their availability. This casts a serious doubt about the veracity of the entire prosecution case of the regarding arrest of accused and recovery of case property.
31. This Court is, however, conscious that the case of the prosecution cannot be thrown out merely on the sole ground of non-joining of public witnesses. The reason is that public witnesses generally avoid court related proceedings unless it is inevitable, as has been held in Appabhai and another v. State of State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 15 of 20 Gujarat AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances as well, as described below, which raise suspicion over the prosecution version.
(B) CONTRADICTIONS/DISCREPANCIES IN THE TESTIMONY OF PROSECUTION WITNESSES
32. There are serious contradictions in the testimony of prosecution witnesses on various aspects. The star witness, PW 1 Mueen Khan in examination-in-chief deposed that 05.04.2022, at about 3:30 pm, one boy came on a black coloured motorcycle and snatched his mobile phone and fled away. In his examination-in- chief he also identified the accused as the one who snatched the mobile phone. However, in his cross-examination, PW1 deposed that he cannot identify the motorcycle on which the accused had come to snatch his phone and he had not seen the registration number. In his cross-examination, he was confronted with his statement given to the police u/s 161 CrPC which is Mark A, wherein, he had stated that the accused was wearing helmet at the time of incident and he cannot identify the accused. In this regard, PW1 deposed that the said statement was not given by him to the police. He further deposed in his cross examination that the phone was not recovered from the possession of accused in his presence. PW1 further deposed that police officials did not check CCTV camera covering the place of occurrence and that the place of State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 16 of 20 occurrence was densely populated area. The aforesaid contradictions between his testimony and the statement u/s 161 CrPC and other aforesaid deficiencies are serious lapses in the story of the prosecution and makes their case doubtful.
33. Further, the PW3 SI Amit Kumar deposed in his examination in chief that he seized the recovered mobile phone and during investigation he came to know the mobile phone make Honor blue color was stolen in the present case i.e. FIR No. 180/22 PS Badar Pur. He did not explain as to what part of investigation revealed to him the IMEI number of the mobile phone in question Further, PW4 ASI/IO Vijay Singh deposed that the recovery witness/ SI Amit had not intimated to him the IMEI number of the recovered mobile phone. In view of the aforesaid, it is not clear as to how the recovery witness and IO of the present case came to the conclusion that the mobile phone stolen was the one which belonged to the complainant in the present case.
34. PW1 Mohd. Mueen Khan complainant in his cross examination deposed that police did not check the CCTV camera covering the place of occurrence. PW2 HC Manish also in his cross examination deposed that IO had not checked CCTV camera installed near the place of incident. On the other hand PW4 IO ASI Vijay Singh in his testimony had denied the existence of the CCTV cameras on the spot and this fact also makes the investigation conducted by the IO doubtful.
State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 17 of 20
35. The above said contradictions and discrepancies in the statement of all prosecution witnesses makes the apprehension of accused, recovery of case property and the investigation conducted on the spot doubtful. Hence, there are material contradictions and discrepancies between the versions of the said prosecution witnesses, which casts a serious doubt on the story of prosecution.
(c)ABSENCE OF SITE PLAN OF PLACE OF APPREHENSION OF ACCUSED AND RECOVERY OF MOBILE PHONE AND NON-
JOINDER OF A MATERIAL RECOVERY WITNESS:
36. Though a site plan Ex. PW1/2 of the place from where the mobile phone belonging to the complainant had allegedly been stolen has been filed on record. However, the prosecution has failed to file, let alone prove, any site plan either of the place of apprehension of the accused or of the place of alleged recovery of the mobile phone in question. No explanation has been furnished for the failure of the prosecution to place on record and prove the site plan of the place of apprehension of the accused and alleged recovery. In the absence of a site plan of the place of recovery it is difficult to ascertain the place from where the mobile phone in question was allegedly recovered and that where the accused was apprehended.
37. Further, as per the story of the prosecution, PW3 SI Amit Kumar received information from Ct.Jaiveer that the State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 18 of 20 accused Sonu Rathore alongwith one knife and two mobile phones including the mobile phone of present case was arrested. However, the prosecution failed to mention him in the list of witnesses. He was a material witness who would have deposed as to the location/surroundings of the place from where the mobile in question was allegedly recovered and under what circumstances. The absence of a site plan of the aforesaid places and non- examination of Ct.Jaiveer is a circumstance that goes against the prosecution
38. In view of the aforesaid, the prosecution has failed to prove beyond reasonable doubt that the mobile phone in question was recovered at the instance of the accused as alleged. It has accordingly failed to establish that the accused had received or retained the aforesaid mobile phone dishonestly.
III) WHETHER THE ACCUSED KNEW OR HAD REASON TO BELIEVE THE MOBILE IN QUESTION TO BE STOLEN PROPERTY?
39. The prosecution has failed to lead any evidence to show that the accused either knew or had reason to believe the mobile in question to be stolen property. Further, there was a time gap between the date of the alleged theft, i.e. 05.04.2022, and the date of the alleged recovery of the mobile phone at the instance of the accused, i.e. 18.04.2022, and hence no adverse presumption can be drawn against the accused.
State vs.Sonu Rathor
FIR No. 180/2022 : PS:Badarpur Page No. 19 of 20
OTHER ARGUMENTS BY THE
PROSECUTION
40. It is a well settled law that the disclosure statement of the accused is not admissible in evidence in terms of section 25 and section 26 of the Indian Evidence Act, 1872, therefore, the said statement cannot be read into evidence except for the discovery effected pursuant to the said statement as contemplated /s 27 of the Indian Evidence Act, 1872. Thus, in the absence of any cogent evidence, the contention of Ld. APP for the State that the accused had disclosed in his disclosure statement Ex.PW2/3 that he had stolen the mobile phone from the complainant cannot be accepted.
CONCLUSION
41. In view of the aforesaid detailed discussion, the prosecution has failed to bring home the charge under Section 411 I.P.C. against the accused. The accused Sonu Rathore is entitled to the benefit of doubt and to be accordingly acquitted of the offence punishable under Section 411 I.P.C.
42. File be consigned to records after due compliance.
Dictated and announced in the open Court on 17.04.2023 (SONAM SINGH-I) ACMM (SOUTH EAST):
SAKET COURTS:NEW DELHI State vs.Sonu Rathor FIR No. 180/2022 : PS:Badarpur Page No. 20 of 20