Delhi District Court
State vs . Ashu Shukla on 1 April, 2015
State Vs. Ashu Shukla
SC No.19/2014
FIR No.341/14
PS Sarai Rohila
1
IN THE COURT OF SH. RAJIV MEHRA
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.19/2014
FIR No.341/14
PS Sarai Rohila
State
Versus
Ashu Shukla,
S/o Sh. Vijay Shukla,
R/o A-6, Shastri Nagar,
Delhi.
JUDGMENT
1. Accused Ashu Shukla in this case has been facing trial for the charge U/s 392/397 IPC and also for the alternative charge U/s 411 IPC.
2. The prosecution case is that on 07.04.2014, at about 8.30 p.m., at bus stand Usha Mata Mandir, Sarai Rohilla within the jurisdiction of PS Sarai Rohilla, accused Ashu Shukla alongwith one more associate (since not arrested) robbed complainant Rahul Gupta of his mobile phone make Samsung Grand Quatro bearing State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 2 IMEI NO.356575052052504 and in order to take away that mobile phone also caused injury to him with a sharp edged weapon.
3. Further case of the prosecution is that accused was apprehended by the police party on 21.08.2014 on the basis of secret information. The robbed mobile phone was recovered from him.
4. As per prosecution case, after his arrest, Ashu Shukla was subjected to TIP, where he was identified by complainant Rahul Gupta.
5. The subject mobile phone was released in this case to the complainant on Superdari without any TIP .
6. On completion of investigation, police submitted the charge sheet U/s 394/397/411/34 IPC.
7. Charge as aforesaid was framed against the accused on 27.01.2015, to which he pleaded not guilty and claimed trial.
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8. In order to prove its case, prosecution examined 15 witnesses.
9. It is submitted by Ld. PP that PW-1 Rahul Gupta is the complainant and has deposed about the incident in question and also about the robbing of his mobile phone and suffering injuries at the hands of the two persons including accused facing trial. It is submitted that accused has been identified in TIP conducted by PW-15 Sh. Prayank Nayak Ld. MM. It is submitted that for the injuries suffered by PW-1 Rahul Gupta he was treated by PW-14 Dr. Pankaj Sharan, CMO, Sunder Lal Jain Hospital, Ashok Vihar, Phase-III, Delhi where he was removed in the first instance and PW-14 in his deposition has confirmed to this fact.
10. It is submitted by the Ld. PP that the subject mobile phone has been recovered from the accused Ashu Shukla and recovery has been proved by PW-2 SI Neeraj of Special Cell, Rohini and PW-7 HC Gopi Nath in the raiding party alongwith him on 21.8.2014 after the accused was apprehended on secret information which mobile phone was seized vide memo Ex.PW2/A. It is submitted that as such prosecution on record got sufficient evidence to prove the charge u/s 392/397 IPC against the State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 4 accused.
11. On the other hand it is submitted by the Ld. Defence counsel that PW-1 Rahul Gupta has not identified the accused in the witness box. It is submitted that in cross examination PW-1 has stated that accused is not the person involved in the crime. According to the Ld. Defence counsel in view of this position no case u/s 392/397 IPC is proved against the accused. According to the defence counsel there is no independent witness to the recovery of the mobile phone from the accused, same has been planted upon the accused by the police party.
12. This Court has heard the Ld. APP for the State, defence counsel and has carefully gone through the record.
13. PW-1 Rahul Gupta is the injured and victim and is the only witness of the incident happened with him on 7.4.2014. It may be seen from the testimony of PW-1 that initially he failed to remember the correct date and month of the incident which according to him happened in the year 2013. According to PW-1 on that day he was returning from his office in Punjabi Bagh to his residence at Shastri Nagar in a DTC bus at route no.219 from State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 5 Punjabi Bagh to Daya Basti.
14. This part of testimony of PW-1 is contradictory to the averments of the complaint Ex.PW1/A where he has stated that on 7.4.2014 he was returning from his office in Bus Route No.816 from his office to his residence.
15. PW-1 has been cross examined on these facts by the Ld. PP where he confirmed the date of the incident being 7.4.2014 but he stated as being incorrect that he was traveling in Bus No.816 on that day.
16. The complaint has been proved as Ex.PW1/A. It is mentioned there that on 7.4.2014 one boy of lean built aged about 20 years, wheatish colour was also present inside the bus who made an attempt to picked up his pocket. It has been averred in this complaint Ex.PW1/A that about 8.30 pm he got down at Usha Mata Mandir and that very boy alongwith one of his associate aged about 18 years/19 years lean built, wheatish complexion also got down there and thereafter both of them picked up a quarrel with him and during this scuffle the boy aged about 20 years taken out some pointed objected from his pocket and hit on his right State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 6 hand and also snatched his mobile phone with sim Airtel No. 9958906729 and offender thereafter ran away from the spot. It is averred in this complaint that some passers by brought him to a nearby doctor from where he was brought to the hospital by his family members.
17. In the witness box appearing as PW-1 the injured while deposing about some incident happened with him in the bus has deposed that he noticed that he was being followed by the two boys since Zakhira. As per PW-1 he got down from the bus at Daya Basti bus stand. At that time he was carrying one mobile phone with him. According to PW-1 both these boys also alighted from the bus and picked up a quarrel with him and thereafter they lifted some glass bottle lying on the road and hit him on his right hand and snatched his mobile phone and fled away.
18. As per PW-1 the make of the mobile phone was Samsung Galaxy Grand Quatro. It was of white colour having sim card no.9958906729.
State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 7
19. PW-1 deposed that Ex.PW1/A having his thumb impression at point A.
20. As per PW-1 he identified accused Ashu Shukla in TIP conducted in Tihar Jail. As per PW-1 he identified his mobile before TIP of the accused and it was returned to him on his moving application before the concerned Magistrate.
21. PW-1 also confirmed to TIP proceedings Ex.PW1/B and he also produced his robbed mobile telephone which has been proved as Ex.P1 which according to him was brought to him by his brother in law Yashpal.
22. In cross examination by the defence counsel, it has been stated by PW-1 that accused is not the offender in this case and according to PW-1 he identified him as he had seen him in the police station. It is stated in cross examination by PW-1 that no one else was present at the spot at the time of the occurrence and as per him there is no street light except one electricity pole on the side of nearby Mandir which was at a distance of one minute walking from the spot. He again stated in cross examination that accused is not the person involved in the occurrence.
State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 8
23. It is submitted by the Ld. PP that PW-1 was extended threats at the time of conducting TIP of accused in this case and for that reason he is not identifying him. According to the Ld. PP this fact is confirmed by PW-15 Sh. Prayank Nayak, Ld. MM who conducted the TIP of the accused. It is submitted by the Ld. PP that no adverse may be drawn against the prosecution case for the want of this infirmity.
24. In the instant case PW-1 is the only witness to the incident of robbery dated 7.4.2014. The fact is that he is not identifying the accused. In cross examination there is a clear statement by him that accused is not the person involved in the incident. According to PW-1 he identified him as he had seen him in police station. In view of this position it would be unsafe to take the prosecution case as proved for the offence u/s 392/397 IPC is concerned against accused.
25. Then even otherwise nothing emerges from the complaint Ex.PW1/A about the specific role played by the two persons including accused involved in the incident of robbery and causing injury to the complainant. It is not mentioned in the complaint which of the two accused snatched the mobile and State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 9 which of them caused injury. The charge u/s 397 IPC is an individual charge and cannot be proved by the prosecution with the help of Section 34 IPC. For proving the charge u/s 397 IPC the prosecution has to prove beyond doubt that accused is the person involved in the incident of causing injury with some dangerous weapon upon the victim.
26. In the instant case the incident admittedly has taken at the night time. The complainant in complaint Ex.PW2/A and also in witness box testify that two persons were involved in the incident. They are unknown to the injured. The complainant only gives their description through physical appearance.
27. Even in TIP proceedings proved as Ex.PW1/B no where it ha been specified about the role of the accused.
28. Given this fact scenario can not be said that prosecution has adduced sufficient evidence on record in this case to prove the identity and once the identity goes no charge for the offence u/s 392/397 IPC may be taken as proved.
State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 10
29. So far as charge u/s 411 IPC is concerned, it may be seen from the records, that as per police case the accused in this case was arrested by the police party Special Cell, Rohini on the basis of secret information on 21.8.2014 and in his search the robbed mobile phone was recovered vide memo Ex. PW2/A. The statement of PW-2 SI Neeraj and PW-7 HC Gopi Nath confirm to the arrest and recovery of the mobile phone from the accused. There is no cross examination of the two witnesses that no recovery of the mobile phone has been effected from the accused.
30. It is submitted by the Ld. Defence counsel that there is a discrepancy in the IMEI number given by the complainant in his testimony where it is mentioned as 356575052052504 and statement of PW-4 Israr Babu, Nodal Officer, Vodafone who has produced the sim card record of mobile telephone no. 8860295635 which according to PW-4 is of Ashu Shukla accused herein and according to PW-4 as per their record sim card of the accused was used on mobile set bearing IMEI No. 356575052052500 from 16.4.2014 to 21.8.2014. According to the Ld. Defence counsel this makes the case of the prosecution of recovery of the mobile phone from the accused highly doubtful. It shows that they are the two State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 11 separate mobile sets with different IMEI number. It is submitted that police has planted the mobile phone upon the accused.
31. So far as the discrepancy in the IMEI number given as 356575052052504 in the statement of PW-1 and IMEI number 356575052052500 as noted in the statement of PW-4 Israr Babu who has produced the CDR record and Customer Application Form of the accused, this would be hardly of any help to the defence. The difference of last digit which is '4' in the testimony of PW-1 and '0' in the testimony of PW-4 is of no significance for defence of the accused keeping in view the judgment reported in Gajraj Vs. State Criminal Appeal No.461/2008 decided by our own High Court (DB) on 18.3.2009.
32. The Hon'ble High Court in the case of Gajraj (Supra) in para 40 had referred to the judgment of the Hon'ble Apex Court in State (NCT of Delhi) Vs. Navjot Sandhu 2005 Cri L.J. 3950 where also a discrepancy in the last number of IMEI was found on record and it was explained to the Hon'ble Apex Court that last one digit is a spare digit and according to GSM specification should be transmitted by the mobile phone as '0' ......
State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 12
33. The objection on the point of discrepancy in IMEI number in the above said case of Gajraj (Supra) was rejected in view of the judgment of the Hon'ble Supreme Court in Navjot Sandhu case.
34. Same is the fact situation in the present case and in absence of any other discrepancy pointed out by Ld. Defence counsel the objection of the defence taken on the point of discrepancy in the last digit in the evidence of the two witnesses on the point of IMEI number is only to be rejected.
35. It is submitted by the Ld. Defence counsel that in his statement u/s 313 Cr.P.C it has been stated by the accused that he has lost his mobile phone no. 8860295635 about ten months before his arrest. He has forgotten to inform the service provider for blocking the same and he has no knowledge about the Samsung Quatro and according to him, may be someone else, has misused his mobile number and his sim card.
36. This plea of the defence counsel about the statement of the accused u/s 313 Cr.P.C that his mobile phone was lost is only to be rejected being not believable. At no stage of the trial State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 13 prior thereto accused has taken up this defence. It is only the first time that this defence has been raised by him in his statement u/s 313 Cr.P.C. By making this defence the accused only wants to wriggle out from the prosecution case of recovery of the stolen mobile from him. This fact of the loss of mobile phone was within the special knowledge of the accused himself and as per Section 106 Indian Evidence Act the burden is upon him to prove this fact and given to the facts and circumstances the accused cannot be taken as discharged this burden.
37. It is submitted by the Ld. Defence Counsel that complainant has failed to produce the original bill or duplicate bill to show that robbed mobile phone belongs to him and taking into account this infirmity, it cannot be said that prosecution has proved its case even u/s 411 IPC against the accused.
38. The plea of defence that no bill of the mobile set has been produced to prove that mobile set belong to the complainant which creates doubt about the prosecution case is only to be rejected.
State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 14
39. As may be seen from the record as per the testimony of PW-1 the subject mobile phone was given to him by his brother in law Yashpal. Yashpal has been examined as PW-8 who has confirmed this fact. Admittedly the original bill is not produced and matter was referred for further investigation by the order of the Ld. Predecessor of this Court and in pursuance of the direction PW-9 Parveen Juneja owner of the shop from where this mobile phone was purchased was approached by the IO SI kanwaljeet Singh for issuing of duplicate bill. PW-9 in witness box confirmed this fact and has deposed that duplicate bill could not be issued by him as the mobile box having the scanner code was not produced.
40. In view of the abovesaid position, non production of the original bill or the duplicate bill would not hamper the prosecution case to prove the charge u/s 411 IPC against the accused. Then moreover to prove a charge u/s 411 IPC ownership is not material and only possession is relevant which has been duly proved by PW-2 SI Neeraj and PW-7 HC Gopi Nath through their unrebutted testimony.
41. It may be seen that during investigation police has also collected CDR record of sister of complainant namely Sweety State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 15 which has been got produced and proved through the statement of PW-4 Israr Babu and also the CDR record of mother of the complainant Smt. Pushpa Gupta which has been produced and proved by the statement of PW-12 Chander Shekhar Nodal Officer from Bharti Airtel to prove that the mobile phone with IMEI number 356575052052504 was being used during conversation even prior to the incident in question of the date of 7.4.2014.
42. The evidence adduced on record by the prosecution sufficiently prove the charge u/s 411 IPC for recovery of mobile phone from the possession of the accused beyond shadow of doubt.
43. Since the accused has been held guilty only for the offence u/s 411 IPC which is punishable imprisonment upto 3 years or fine or with both in the given facts and circumstances of the present case the imprisonment of RI of one year plus fine of Rs. 5000/- will serve the ends of justice. In default of payment of fine convict to undergo further SI for 15 days.
44. ORDER IS MADE ACCORDINGLY.
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45. Copy of the judgment be given to the convict free of cost.
46. Benefit of Section 428 Cr.P.C., if any, be given to the convict.
47. File be consigned to record room.
Dictated and announced in the open Court on 01.04.2015.
( RAJIV MEHRA ) Additional Sessions Judge(Central) Delhi. State Vs. Ashu Shukla SC No.19/2014 FIR No.341/14 PS Sarai Rohila 17