Delhi District Court
State vs . Sonu @ Shahnawaz on 23 May, 2022
IN THE COURT OF SH. SNEHIL SHARMA, METROPOLITAN
MAGISTRATE-08, SOUTH EAST DISTRICT, SAKET COURTS,
SAKET, NEW DELHI
State Vs. Sonu @ Shahnawaz
FIR no. 262 /2020
PS JamiaNagar
A Sl. No. of the case : 5051/2020
B Date of commission : 05.09.2020
C Date of Institution of the case : 23.10.2020
D Name of complainant : Sana
E Name of accused persons and : Sonu @ Shahanwaz, S/o Sh.
their parentage. Yaseen, R/o House no. P-154, Gali
no. 2, Pehalwan Chowk, Batla
House, Jamia Nagar, New Delhi.
F Charged under sections : 392/356/380/451 Part II/411IPC.
G Plea of accused : Not guilty
H Orders reserved on : 11.05.2022
I Final order : Accused is acquitted for the
offence punishable u/s
392/356/380/451 Part II IPC and
accused is convicted for offence
punishable u/s 411 IPC.
J Date of judgment : 23.05.2022
JUDGMENT:-
1. Briefly stated, case of the prosecution is that on 05.09.2020, at around 2pm, at H-36, Ground Floor, Muradi Road, Batla House, Jamia Nagar, New Delhi, accused, trespassed into the house of FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 1 of Page 15 complainant Sana. It is further the case of prosecution that accused, attacked the complainant Sana by hitting her on her head and took away her mobile phone make Realmi, one pair of anklets and cash amount of Rs.8000/- to Rs.10,000/- and also one chain worn by her using criminal force, from her possession, without her consent. Later on accused was found in possession of mobile phone, gold chain, cash of Rs. 4600/- on 07.09.2020. The present case was registered u/s 392/356/380/451 Part II IPC and 411 IPC. After completion of investigation in the present case, charge sheet was filed in the court.
2. Cognizance was taken in the present matter vide order dated 23.10.2020. After compliance of provisions of section 207 Cr.P.C., matter was fixed for consideration on charge. On the basis of material on record, charge u/s 392/356/380/451 Part II IPC and u/s 411 IPC was framed upon the accused, to which he pleaded not guilty and claimed trial.
3. In order to establish its case against the accused, prosecution has examined 5 witnesses. Prosecution examined PW-1/ Sana, who deposed that on the date of incident, at about 1 pm, during the day, she was lying down with her daughter in her above stated house. One person entered her house by opening the lock by putting his hand inside. The said person forcefully hit on the head of Sana/PW- 1 and PW-1 fell unconscious. The said person took away her FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 2 of Page 15 pendant which she was wearing alongwith with her mobile phone and cash of Rs. 7000/- to Rs. 8000/- from the Almira. She saw him running away. She then called her husband who came home and called the police. Police came to the spot and she gave her written complaint. Police also prepared site plan. She was called to the PS on the next day. Police told her that her pendant and mobile phone have been recovered. They showed the same to her and she identified the same. She also identified the said pendant and mobile phone during TIP proceedings conducted in the court. The said articles were released to her vide superdarinama Ex.PW 1/D. She could not identify the person who had entered into her house and committed the robbery in question as she was hit on the head by the said person and she felt giddy. She had identified the above said mobile phone, cash and pendant from 4 photographs of the case property i.e. cash amount, mobile phone and pendant that were shown from the judicial file to the witness. After seeing the photographs, witness had correctly identified it.
4. Prosecution examined Talib as PW2, who deposed that on 05.09.2020, at about 01.30 to 02.00 pm, PW-2/Talib was present in his office at Mohan Estate. His wife called him and told him that some person had trespassed into his house and taken away his locket and mobile phone and money. He came back to his house and his wife narrated the incident to him. He then called the police at 100 number and police came to the spot. PW-2/Talib and his wife FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 3 of Page 15 then went to the PS and his wife filed complaint to the police. On the next day, they gave IMEI number of the mobile to the police. One mobile, one locket and some money were recovered by the police, which they got released on superdari from the court. Four photographs of the said mobile phone, cash amount and pendant were shown to the witness and witness had correctly identified the same.
5. Prosecution examined PW-3/ Ct. Naveen, who deposed that on 07.09.2020, he was posted as Ct. at PS Jamia Nagar, New Delhi. On that day, IO/ ASI Harinder received information from secret informer that one person may be coming to Dhobi Ghat area to sell stolen goods. After discussing the matter with the SHO, ASI Harinder, I, HC Nemi Chand and Ct. Ram Avtar went to Dhobi Ghat area. At around 7 pm, they saw one person coming from the side of 'P' Block, on foot. Secret informer pointed out towards him and confirmed his identity. We apprehended the said person and ASI Harinder searched the said person and found one mobile phone make 'Realmi' from right pocket of pants of the said person. He also found one golden coloured locket from the said pocket of the said person. In the left pocket, ASI Harinder found Rs. 4600/-. The said person disclosed his name to be Sonu @ Shahnawaz. The said person is the accused. Accused told them that he had stolen the said articles from 'H' Block Batla House, Jamia Nagar, New Delhi. They then took the accused to 'H' Block, Batla House, Jamia Nagar, New FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 4 of Page 15 Delhi. Accused pointed out towards house bearing no. H-36, Batla House, Jamia Nagar, New Delhi and stated that he had committed the theft from the said house. They then brought the accused back to the PS. IO seized the articles vide seizure memo Ex.PW 3/A bearing his signatures at point A. Accused was arrested vide arrest memo already Ex.PW 1/E bearing his signatures at point B. IO also conducted personal search of the accused vide memo Ex.PW 3/B bearing his signatures at point A. IO called the complainant/ Sana to the PS, who came to the PS on the same day. Complainant had identified the accused at the PS. Witness had correctly identified the accused in the court. Witness also told that he can identify the above said stolen articles which were recovered from the accused. 4 photographs of the above said case property i.e. mobile phone, locket and cash were shown from the judicial file to the witness. After seeing the photographs witness had correctly identified it.
6. Prosecution examined PW-4 Ct. Dilip, who deposed that on 05.09.2020, he was posted as Ct. at PS Jamia Nagar, New Delhi. On that day, he was on emergency duty from 8 am to 8 pm. They received PCR call at about 3.15 pm regarding theft of phone. He alongwith IO/ ASI Harender reached the spot i.e. House no. H-36, Muradi Road, Batla House, Jamia Nagar, New Delhi, where they met complainant Sana. Complainant gave her written complaint. IO endorsed the same and prepared the rukka Ex. PW 4/A and handed over the same to him and sent him to PS for registration of FIR. He FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 5 of Page 15 went back to the spot after registration of FIR and handed over copy of the same and original rukka to the IO. Thereafter, IO had prepared site plan at the instance of complainant. IO had also recorded supplementary statement of the complainant u/s 161 Cr.P.C. They checked CCTV footage, but could not find anything relevant. They then came back to the PS.
7. Prosecution examined PW-5/ASI Harender, who deposed that on 05.09.2020, he was posted as ASI at PS Jamia Nagar, New Delhi. On that day, they received PCR call at about 3.15 pm regarding theft vide DD no. 42 A. PW-5/ASI Harender along with Ct. Dilip went to the spot i.e. House no. H 36, Muradi Road, Batla House, Jamia Nagar, New Delhi, where they met complainant Sana, who gave her written complaint already Ex.PW 1/A. PW-5/ASI Harender endorsed the same and prepared rukka already Ex.PW 4/A bearing his signatures at point A. He handed over rukka to Ct. Dilip for registration of FIR. Ct. Dilip came back to the spot after registration of FIR and handed over original rukka and copy of FIR to PW-5/ASI Harender. He then prepared site plan already Ex.PW 1/B bearing his signatures at point C at the instance of complainant. They searched for the accused, but could not find him and they came back to the PS. On 07.09.2020, PW-5/ASI Harender was in the PS, at about 5 pm, when secret informer told him that one person carrying stolen articles will be passing through the area of Dhobi Ghat and can be apprehended, if raid is conducted timely.
FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 6 of Page 15
PW-5/ASI Harender discussed the same with SHO. Thereafter, PW- 5/ASI Harender alongwith HC Nemi Chand, Ct. Naveen and Ct. Ram Avtar went to Dhobi Ghat area. Secret informer was also with them. After sometime, secret informer pointed out towards accused who was coming on foot from the side of P Block, Dhobi Ghat. Accused saw them and started running away. They chased the accused and apprehended him. Upon his search, they found one mobile phone (make Realmi, colour black), one gold pendant and Rs. 4600/- from the possession of the accused. Upon checking, the said phone was found to be stolen in the present FIR. PW-5/ASI Harender seized the said articles vide seizure memo already Ex.PW 3/A bearing his signatures at point B. PW-5/ASI Harender also recorded disclosure statement of the accused. Accused was taken to the spot and at his instance pointing out memo Ex.PW 5/B was prepared by PW-5/ASI Harender. Accused was arrested vide memo already Ex.PW 1/B and his personal search was conducted vide memo already Ex.PW3/B. PW5 had correctly identified the accused present in the court. He can also identify the mobile phone which was recovered from the accused and 4 photographs of the case property i.e. mobile phone, gold pendant and cash were shown from the judicial file to the witness. After seeing the photographs witness had correctly identified the same.
8. Thereafter, statements of the accused under section 313 Cr.P.C. were recorded, wherein he denied all the allegations put FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 7 of Page 15 against him but stated in one question that he had gone in the said house as he was intoxicated. The said house was latched from outside. He then entered the house by opening the latch and saw that one lady was sleeping inside the house. He opened the almira and took out one mobile phone and a pendant from the almira. The lady woke up in the meanwhile and hence, he ran away from the spot. The said mobile phone was recovered from him by the police later on. He was falsely implicated in the present case. Accused persons chose not to lead any evidence in their defence. Hence, matter was listed for final arguments.
9. It has been argued by Ld. APP for the State that case of the prosecution has been fully proved as all the evidences are in line with the prosecution story. On the other hand, Ld. Counsel for accused has argued that accused has been falsely implicated in the present case and that none of the prosecution witnesses has supported the case of prosecution and recovery was planted upon the accused and false and fabricated case has been made against the accused and complainant has not supported the case of prosecution and section 313 Cr.P.C. statement of the accused is without oath and cannot be considered.
10. I have heard Ld. APP for the State and Ld. Defence counsel for accused and considered the respective arguments as well as gone through case file very carefully.
FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 8 of Page 15
11. At the outset, I would like to discuss the provision of section 392 IPC. Section 392 IPC punishes the offence of 'robbery'. Robbery has been defined u/s 390 of IPC and said definition, which is in two parts, and mentions 'when theft is robbery' as under:
when theft is robbery - Theft is "robbery" if, in order to committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
12. As per the witness himself/PW-1, she cannot identify the person who had entered her house and committed the offence as she was hit on the head by the said person and felt giddy. Same is corroborated with the fact mentioned in her complaint Ex.PW1/A where she mention 'meri sir par jor she hath mara or itne par mai kuch samajh pati, mere pas rakha mobile phone....... Le gaya' .
Moreover, in cross examination when asked specifically after pointing out towards the accused witness denied and stated that she cannot say if accused is the same person or not. Further, PW3 in his examination in chief deposed that complainant identified the accused at the police station and since the accused has been identified in the police presence, hence, it has no evidentiary value.
FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 9 of Page 15
Moreover, even if accused was caught by the police and taken to police station, then he should be in muffled face and essential process of TIP of a person in such cases should be conducted which was not done in the present case. It is necessary to mention here some basic principals governing criminal aspect i.e. it is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the case is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
13. Here, the prosecution could not establish the identity of the accused with respect to the fact that he has entered into a house and robbed the complainant/PW1 as complainant/PW1 had turned hostile on the aspect of identity of the accused. Further no other eyewitness was produced by the prosecution to prove its case who had seen the accused committing theft/ robbery as alleged by the prosecution. With respect to argument of Ld. APP for the State with FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 10 of Page 15 respect to statement u/s 313 Cr.P.C. it is necessary to discuss that accused in his statement u/s 313 Cr.P.C. has denied all the allegations and one unclear statement could not be basis of conviction when the case of the prosecution is weak. Statement u/s 313 Cr.P.C. is a cementing evidence and may be used only to explain /fill the gap in prosecution case. But it is not sufficient to shift the burden on defence from prosecution.
14. Hon'ble Supreme Court of India in Mohan Singh vs Prem Singh And Anr decided on 1 October, 2002, Appeal (crl.) 792- 793 of 1994 held that "The statement of accused under Section 313 of Cr.P.C, is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the persecution. As held in the case of Nishi Kant (Supra) by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 of Cr.P.C. cannot be made the sole basis of his conviction."
15. Hence inculpatory statement in part given by accused during examination u/s 313 Cr.P.C. cannot be taken into consideration in FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 11 of Page 15 totality and cannot be equated with confession. Moreover, statement recorded u/s 313 Cr.P.C. is not recorded after administering oath by the accused. Hence, benefit of doubt is given to the accused. Hence, charges u/s 392/356/380/451 Part II IPC are not attracted.
16. Now coming to the offence punishable u/s 411 IPC charged against accused. To constitute an offence under this section, it must first be proved that property recovered from the possession of accused was 'stolen property'. Stolen property has been defined under section 410 IPC and is that property the possession whereof has been transferred by theft, or by extortion, or by robbery or which has been criminally misappropriated. It must further be proved by the prosecution that accused had dishonestly received the said stolen property, or having received it honestly, dishonestly retained it.
17. In the instant case, PW1 has correctly identified her articles in TIP proceedings of property (recovered articles), photographs and stolen articles. TIP proceedings of property (recovered articles) is admissible and relevant factor in court of law and here have corroborated with the story of the prosecution with respect to recovery from the accused. It has nowhere been claimed by the accused that the said mobile phone belonged to the accused himself and that he was the owner of the same. Neither he proved that he has come into the possession of the stolen articles innocently. In FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 12 of Page 15 absence of any plea taken by the accused about ownership of the mobile phone which was recovered from him, onus was upon the accused to explain the circumstances in which he came into the possession of the said mobile phone. However, the said onus has not been discharged by the accused and he has not given any explanation whatsoever in this regard. This fact, coupled with the fact that description of mobile recovered from the accused matches exactly with the description of stolen mobile as mentioned in complaint Ex.PW1/A, leaves no manner of doubt that mobile phone recovered from the accused was the one which had been stolen and that accused was carrying it despite being aware that it was stolen property. In the instant case, accused is caught just after two days of the incident with specific stolen articles which have been correctlly identified by the complainant in TIP are sufficient to attract the ingredients of section 411 IPC. Examination in chief of PW3, PW4 and PW5 have proved the recovery of stolen articles from the possession of the accused and they have correctly identified the accused during their testimony. Nothing contrary came out in cross examination of the witnesses. Also, the recovery of specific mobile phone and pendant is sufficient in order to satisfy the ingredients of section 411 IPC. Hon. Allahabad High Court in Rajjaua vs The State on 12 December, 1958 citation: AIR 1959 All 718, 1959 CriLJ 1271 wherein ;their Lordships of the Privy Council reiterated the same principle in Otto George Gfeller v. The King, 45 Cri LI 241:
(AIR 1943 PC 211), when they observed:"that upon the prosecution FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 13 of Page 15 establishing that the accused was in possession of goods recently stolen, they may in the absence of any explanation by the accused of the way in which the goods came into his possession which might reasonably be true find him guilty, but if an explanation were given which the jury think might reasonably be true, and which is consistent with innocence although they were not convicted of its truth the prisoner was entitled to be acquitted." If therefore it is proved that a theft was committed and that soon after it was committed, the stolen property was recovered from the possession of the accused, the prosecution can without proving any additional fact request the Court to presume that the accused is either the thief or the receiver of the property knowing it to be stolen'. No other explanation can be deduced from the discussed averments except the culpability of the accused. Moreover, with respect to defence that no public witnesses to prove the alleged recovery, this court does not find to be in agreement with his submissions. There is no rule of law that testimony of police witnesses cannot be relied upon, unless corroborated by public/independent witnesses. The rule that sole testimony of police witnesses must be accepted with caution is only a rule of prudence. However, it is an equally well settled rule that testimony of a witness cannot be discarded merely because he is a police personnel. Moreover, in chief and cross examination of all the witnesses nothing contrary came with respect to recovery of case property from accused. In view of the above, and from the material available on record the stolen articles were recovered from FIR No.262/2020 State Vs Sonu @ Shahnawaz PS Jamia Nagar Page 14 of Page 15 the possession of the accused. Accused also could not lead any documentary evidence in support of his plea of ' alibi' for the day of arrest. Hence, accused is found guilty for the offence punishable u/s 411 IPC.
18. Hence, accused is acquitted for the offence punishable u/s 392/356/380/451 Part II IPC and accused is hereby convicted for offence under section 411 IPC.
Let convict be heard on point of sentence separately.
Announced in the open court (Snehil Sharma)
on 23.05.2022 Metropolitan Magistrate-08,
South East, Saket, New Delhi
23.05.2022
FIR No.262/2020 State Vs Sonu @ Shahnawaz
PS Jamia Nagar Page 15 of Page 15