Delhi District Court
State vs Ajit Kumar on 27 September, 2023
IN THE COURT OF Ms. VIJAYSHREE RATHORE, METROPOLITAN
MAGISTRATE, SOUTH DISTRICT, SAKET COURTS, DELHI
STATE VS. Ajit Kumar
FIR No. : 238/2022
PS : Hauz Khas
U/s : 379/411 IPC
JUDGMENT
A. Sl. No. of the Case 4966/2022
B. Date of Commission of offence 16.06.2022
C. Date of FIR 16.06.2022
D. Date of charge-sheet 12.08.2022
E. Name of the complainant Babuddin Ali
F. Name of the accused persons, their Ajit Kumar, S/o Shankar Das, R/o S-26,
parentage and residence Jhuggi No. 66, Indra Kalyan Cam Badar Pur,
Delhi.
G. Offence complained of or proved 379/411 IPC
H. Date of framing of charges 20.09.2022
I. Date of commencement of evidence 29.11.2022
J. Plea of the accused Pleaded not guilty
K. Date on which judgment is reserved 03.08.2023
L. Final Order Acquitted
M. Date of Judgment 27.09.2023
State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas
U/s 379/411 IPC Page no. 1 of 10
Brief facts of the present case
1. The case of prosecution arises out of complaint dt. 16.06.2022 of complainant Babbudin that on the said date of incident at around 4 pm he was trying to board bus from AIIMS bus stand. As he boarded the bus one boy took out phone Redmi 5S violet color from his pocket of pant and started running away. With the help of public persons, he apprehended the accused and handed over to police who were on patrolling duty. On the cursory search of accused 2 other phones were recovered from the accused. On the basis of complaint FIR was registered. During the investigation IO prepared the site plan at the instance of complainant. Statement of complainant was recorded u/s 161 Cr. PC. Accused was arrested and the case property was seized vide seizure memo. After completing the investigation, charge-sheet was filed in the case.
Framing of charge
2. After compliance of Section 207 Cr.P.C., vide order dated 20.09.2022 charge was framed against accused for the offence u/s 379/411 IPC to which the accused pleaded not guilty and claimed trial.
Prosecution Evidence
3. In support of its case, the prosecution had examined five witnesses. PW1 is Babudeen, PW2 is ASI Om Prakash, PW3 is HC Jai Narayan, PW4 is SI Rahul Kumar and PW5 is ASI Brhama Nand.
State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas
U/s 379/411 IPC Page no. 2 of 10
4. PW1 Babudeen Ali had deposed in his testimony that on 16.06.2022 he along with his wife Sona Khatoon and his 4 years child namely Ali came at AIIMS hospital for the medical treatment of his son. He had further deposed that after consulting the doctor of AIIMS, they went to the bus stand of the AIIMS as soon as he along with his family members were boarding on the bus in meantime accused took out his mobile phone make RealMe 5S from his right pocket of pants and tried to run away so he raised an alarm. He had further deposed that he apprehended the accused with the help of other public person and produced before the police officials who were patrolling there. He had further deposed that thereafter, the police officials took cursory search of accused and found 3 mobile phones (including his mobile phone). He had further deposed that thereafter they went to the PS with the police officials and IO recorded his statement which is Ex.PW1/A. He had further deposed that he had shown to the place of incident and IO prepared the site plan at his instance. He had further deposed that IO arrested the accused vide arrest memo which is Ex.PW1/B and also recorded disclosure statement of accused which is Ex.PW1/C. He had further deposed that IO seized the mobile phones in his presence which is Ex.PW1/D, Ex.PW1/E and Ex.PW1/F. Witness had correctly identified the accused. He had further deposed that the mobile phone make of Realme 5S bearing IMEI No. 868734048455815 is Ex.P1.
5. PW2 ASI Om Prakash had deposed in his testimony that on 16.06.2022 he was posted as HC/DO at PS Hauz Khas and on that day he was State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 3 of 10 working as Duty Officer and his duty hours from 4 pm to 12 midnight and at around 09.08 pm he received a rukka through IO SI Rahul Nimesh and he endorsed the rukka which is Ex.PW2/A and FIR was lodged on the basis of same which is Ex.PW2/B (OSR) and the same were handed over to the IO. He had further deposed that he has also issued certificate u/s 65B IEA with respect to the registration of FIR which is Ex.PW2/C. He had further deposed that he has brought the original FIR registration of year 2022.
6. PW3 HC Jai Narayan deposed in his testimony that on 16.06.2022 he was posted as constable at PS Hauz Khas and at about 04.30 pm, complainant namely Babuddin Ali met him near AIIMS bus stop and handed over the custody of accused. He had further deposed that complainant stated that while he was boarding bus route no. 507 from bus stop near AIIMS bus stop, it was about 4 pm when you took out his mobile phone from the pocket of his pants. He further stated that accused was apprehended by him with the help of public person and he conducted cursory search of accused and 3 mobile phones were recovered from the possession of accused. He had further deposed that two mobile phones were make Oppo and one make RealMe 5S. He had further deposed that the RealMe mobile was of the complainant. He had further deposed that thereafter, he along with the complainant took accused and aforesaid mobile phones to PS Hauz Khas. He had further deposed that he produced accused and aforesaid case property before SI Rahul Nimesh. IO/SI Rahul Nimesh seized aforesaid mobile phones. He had further deposed that the complainant Babuddin got his statement recorded and the IO got registered the State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 4 of 10 FIR. He had further deposed that IO recorded his statement. Witness had correctly identified the accused and as well as the case property.
7. PW4 SI Rahul Kumar deposed in his testimony that on 16.06.2022 he was posted as SI at PS Hauz Khas and on that day HC Jai Narayan produced accused before him as three stolen mobile phones were recovered from the possession of accused. He had further deposed that complainant was also alongwith HC Jai Narayan at that time. He had further deposed that thereafter, he recorded the statement of complainant which Ex.PW1/A. He had further deposed that thereafter, he prepared rukka which is Ex.PW4/A. He had further deposed that thereafter, he along with the complainant reached the spot and prepared the site plan which is Ex.PW4/B. He had further deposed that thereafter, he along with the complainant returned back and interrogated the accused in his presence. He had further deposed that he recorded disclosure statement of accused and arrested him vide arrest memo which is Ex.PW1/B and Ex.PW1/C. He had further deposed that he seized aforesaid mobile phones vide seizure memo Ex.PW1/D, Ex.PW1/E and Ex.PW1/F. He had further deposed that the case property of the present case was seized by him vide seizure memo which is Ex.PW1/D. He had further deposed that he recorded the statement of Ct. Jai Narayan and thereafter, he got transferred. Witness had correctly identified the accused and case property.
8. PW5 ASI Brahama Nand had deposed that on 12.07.2022 he was State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 5 of 10 posted as HC at PS Hauz Khas and on that day he was marked the present case for further investigation. He had further deposed that investigation was already concluded by the previous IO SI Rahul. He had further deposed that he filed the charge-sheet before the court. He had further deposed that he never met the accused pertaining to the present case nor he have seen the case property.
Statement of accused
9. The examination of accused u/s 313 r/w 281 Cr.P.C. was recorded in which he stated that he is innocent. He have been falsely implicated in the case. He was present at the Green Park metro station and a quarrel had taken place between auto drivers. He was standing there and police official came there after some time and took him to PS and filed the present case against him.
10. Accused led defence evidence in which he stated that on the day of alleged incident he was going to a flowers shop. There was a fight going on between the auto drivers at Green Park Metro station gate towards Gautam Nagar. He was passing by and observing the said dispute. SHO PS Hauz Khas was present there. Some auto drivers were arrested and he was also arrested with them. Later on , auto drivers were released and the present false case was implicated on him by planting a mobile phone upon him. Thereafter matter was fixed for final arguments.
11. Final arguments addressed by the Ld. APP for State and Ld. State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 6 of 10 Counsel for accused were heard and case file was perused.
12. It is argued on behalf of the Ld. APP for the State that there is sufficient material on record that accused had committed theft and further he was found with the possession of the stolen property. Accused had deliberately retained the property knowing the same to be stolen one.
13. It is argued on behalf of accused that he is falsely implicated in the case. No public witness had been examined in the case. The case property is planted upon him. It is also argued on behalf of accused that the deposition made by PW1 Babuddin Ali is not reliable and not trustworthy. The prosecution has failed to prove its case.
14. Section 379 IPC defines 'Theft'. The main ingredients of theft are that one should intent to take dishonestly any movable property out of the possession of any persons, without that person's consent. And the offender shall actually move that property in order to take it. For proving the charge under Section 411 IPC, prosecution had to prove that the stolen mobile phone was recovered from the possession of accused and he knowingly/dishonestly retained or received stolen property in question, belonging to complainant.
15. The case of prosecution is that on 16.06.2022 accused stole the mobile phone Redmi 5S violet color from the pocket of complainant's pant State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 7 of 10 when he was boarding the bus. In this regard PW1 complainant had deposed that on 16.06.2022 he alongwith his wife Sona Khatoon and child Ali came at AIIMS hospital for medical treatment of his son. After consulting the doctor they went to bus stand of AIIMS. His mobile phone was stolen from right pocket of his pant and when he apprehended the accused, police officials took cursory search of him and found 3 mobile phones including his phone. The witness had duly identified the accused before the court as the one who had stolen the phone. In his cross-examination PW1 Babbudin had stated that when he was sitting in the bus, in the meantime he checked his mobile phone and he came to know that it was missing and one passenger told him that accused took out his mobile from his pocket. It appears from the testimony of PW1 Babbudin that he was the one who had apprehended accused from the bus alongwith the other public persons. No other public person apart from PW1 Babbudin is examined in the case who was present while witness was boarding the bus. It also appears from his version that he himself had not seen accused stealing the mobile phone. It was only after person sitting inside the bus told that accused had stolen the mobile, thereafter he got to know that his phone went missing. PW2 IO HC Jai Narayan had stated that when he made a cursory search of accused 3 phones were recovered from the possession of accused. He admitted that lot of persons were present when the complainant handed over the custody of accused to him. He further admitted that he did not note down the name of any public persons who were present at the spot. He further admitted that he did not note down the name of public persons who helped complainant to apprehend the accused. He further admitted that he did not prepare any State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 8 of 10 document at the spot. The version of PW IO HC Jai Narayan also shows that public persons were present on the spot when the accused was apprehended and also when he made cursory search. There is no reason why he did not interrogate other public persons apart from PW Babbudin at the time the recovery was made from the accused. Thus, in the absence of any other independent person present there, the testimony of PW1 Babbudin does not seem to be reliable. The testimony of PW1 Babbudin is not sufficient to inspire the confidence of the court for proving allegations against the accused. According to PW4 Rahul Nimesh when he met with the accused, the mobile phone was already recovered from the possession of accused. Since he had not seen the case property, his testimony also does not show any incriminating circumstances against the accused.
16. From the perusal of entire testimony of record, there is no ground to assume that accused had received or retained the stolen mobile phone knowing that the same was stolen property. The testimony of PW2 HC Jai Narayan and PW4 SI Rahul Nimesh shows that seizure memo was prepared after seizing alleged stolen mobile from the accused but there is no evidence of independent witness who was asked to join in the investigation for the recovery of alleged stolen article. In the absence of testimony of independent witness, testimony of PW Babbudin, PW2 HC Jai Narayan and PW4 SI Rahul Nimesh is not sufficient to prove the case of prosecution. Even assuming that accused was found to be in possession of stolen mobile, but there is nothing on record to show that it was he who stole the said phone or had received from any person State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 9 of 10 with knowledge that the mobile phone was stolen one.
17. The cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. This general burden never shifts and it always rests on the prosecution. There is no material on record to assume that accused had stolen the alleged mobile Redmi 5S, had retained the same knowing it to be stolen property. It is apparent from the above discussion that the allegations against the accused have not been proved.
Conclusion & Decision
18. From the perusal of the record, there is also no evidence on record to show the that accused had retained the stolen property mobile Redmi 5S knowing the same to be stolen property. Thus, I am of the considered view that the prosecution has failed to prove its case u/s 379/411 IPC against the accused beyond reasonable doubt. Keeping in mind the above-mentioned discussion, accused is acquitted for the commission of the offence U/s 379/411 IPC.
Announced in the open court (VIJAYSHREE RATHORE) In Delhi on 27.09.2023 MM-06,SOUTH/SAKET DELHI State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 10 of 10