Delhi District Court
State vs . : Rohit Verma on 19 December, 2016
FIR No.188/2011 Page No. 1 of 13
IN THE COURT OF DR.JAGMINDER SINGH:
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA DISTRICT COURTS: DELHI
State Vs. : Rohit Verma
FIR No : 188/2011
U/s : 427/457/380/411 IPC
P.S. : Kapashera
JUDGEMENT
1. Sl. No. of the Case : 02405R-037810-2011
2. Date of commission of offence : 11.10.2011
3. Date of institution of the case : 03.04.2012
4. Name of the complainant : Sh. Gulshan Srivastava
5. Name of accused persons, parentage & : Rohit Verma
address S/o Late Sh.Madan Pal,
R/o House of Lakhmi, Old
Delhi-Gurgoan Road,
Samalkhan, New Delhi.
6. Offence complained off : u/s 427/457/380/411 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : not reserved
9. Final order : Acquitted
10. Date of final order : 19/12/2016
Brief statement of reasons for decision :
1. In the present case allegations against the accused are that on 11/10/2011 in between of 12.30 AM to 01.30 AM at Khasra State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 2 of 13 No.78/13/2, main road, near mother dairy, New Delhi, he entered into the premises of complainant i.e. room of ATM, Axis Bank and damaged the ATM Machine and committed theft of UPS (Numeric) and on 28/10/2011, stolen UPS (Numeric) along with black wire was got recovered from Room No.586, Samalkha at the instance of accused which he retained knowing or having reason to believe the same to be stolen property. Present case was registered at the complaint of complainant Sh.Gulshan Srivastava. After completion of investigation, charge-sheet was filed against the accused for the offence punishable under Sections 427/457/380/411 IPC.
2. Accused was summoned. Copy of charge sheet was supplied to him. On the basis of prima-facie evidence, charge framed against the accused for the offence punishable under Sections 427/457/380/411 IPC to which he pleaded not guilty and claimed trial.
3. In order to substantiate the charge, prosecution has filed list of 09 witness and examined 08 witnesses.
4. PW1 Sh.Dharmender stated that in the month of October, 2011, he went to PS Kapashera, where he saw the accused Rohit Verma was sitting and police told him that accused broken the ATM machine and he handed over the verification copy regarding the State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 3 of 13 tenancy of Rohit Verma. He further stated that he do not know anything else except this.
5. PW2 Sh.Gulshan Srivastav is the complainant who stated that he is an Area Manager in AGS Transact Technologies Ltd. On 11.10.2011, he was Channel Manager in Prizm Payment Services P Ltd. His nature of work was to take care of Axis Bank ATM installed in the Delhi/NCR. He received a call from SIS Company who told him that one ATM installed at Samalkha area near mother dairy is damaged. He reached there and saw that somebody had damaged the ATM machine with bricks or other things like iron rod and also found broken the back room of the ATM. After checking he found that the UPS was also missing. He had given a written complaint Ex.PW2/A in the PS Kapeshera on behalf of company on 11.10.2011. Police demanded the CCTV footage and he provided the same to them. But he did not see that footage. On the next day when he reached to the PS, police told him that perhaps the UPS was recovered and the accused has been apprehended. But he is not sure. He identified the stolen UPS make Numeric, same is Ex.P-1.
6. PW3 Ct.Jagdish Chand stated that on 28.10.2011, he joined the investigation of the present case. He along with IO/SI Om Prakash State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 4 of 13 and complainant went to spot. IO prepared site plan at the instance of complainant. Complainant handed over the CCTV footage to IO. IO showed the CCTV footage to some persons. Public persons told that the boy who had been seen in the CCTV footage, resides in Samalkha near the said ATM and working as a driver. Secret informer met them and gave information regarding the accused. They took their positions and at about 10.30 pm, at the pointing out of secret informer, they overpowered the accused and after inquiry, accused disclosed his name as Rohit Verma. IO recorded disclosure statement of accused vide memo Ex.PW3/A. IO arrested and personally searched vide memos Ex.PW3/B & Ex.PW3/C. Accused led them to his rental house and got recovered UPS from his room-cum-house no.586 Smalkha. IO prepared Pullanda of same and sealed with the seal of DSS and seized vide memo Ex.PW3/D. IO also seized Aaari, hammer, Sua, one spare blade, prepared Pullanda and sealed with the seal of DSS vide memo Ex.PW3/E. IO seized the CCTV footage vide memo Ex.PW3/F. IO prepared pointing out memo Ex.PW3/G at the instance of accused. Dharmender Bhardwaj had produced the documents and IO seized the same vide memo Ex.PW3/H. They went to PS and deposited the case property in the Malkhana. After medical examination of accused, he State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 5 of 13 was kept in lockup. He identified the case property i.e. one Aari, one spare blade, one Sua and hammer as Ex.P2 (collectively) and case property i.e. stolen UPS and same is Ex.P1.
7. PW4 Ct.Arun Kumar stated that on 11/10/2011, he took four photographs Ex.PW4/D1 to PW4/D4 of ATM Axis Bank. He had brought the negatives of the said photographs which are Ex.PW4/A (collectively).
8. PW5 Sh.Sandeep Katyal stated that he is the regional manager of Thakral Services India Ltd. The said company deal in electronic surveillance i.e. CCTV, Fire Alarm Access Control, etc. and they provide installation of CCTV cameras to Prizm Payment Services. Prizm Payment Services deals with the different banks and operates their ATMs including Axis Bank ATM and they provide CCTVs Cameras in the said ATM premises. They provided/handed over the copy of CCTV footage to the Prizm Payment Services on a routine basis as per the request. He cannot tell if the CCTV footage placed on record is the same as provided by his company or not. However, he can tell the same after seeing the CCTV footage. Thereafter, the CD of the CCTV footage was removed from the case file and played for the perusal of the witness. However, the CD could not be played as the same could State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 6 of 13 not be read by the computer. There are various scratches on the CD and hence, was not readable. On next date, IO produced another copy of CCTV Footage. The same was played in the Court and shown to the witness. After seeing the same, the witness has stated that the CCTV footage had been supplied from their office. Copy of the said CCTV Footage is Ex.PW5/A.
9. PW6 SI Jagdish Singh recorded the FIR of the present case. Copy of which is Ex.PW6/A and his endorsement on Rukka in this regard is Ex.PW6/B.
10. PW7 SI Om Prakash stated that on 11/10/2011, he received DD No.39B regarding theft. He went to spot, where he met caller Vikram Singh but Vikram Singh could not give any statement as Vikram Singh was only working in SIS Company as cash filler in ATM Machine and the ATM was of Prizm Company. He called the crime team and crime team inspected the spot and took photographs. He further deposed the identical version as of PW3/Ct.Jagdish. He further stated that he prepared site plan Ex.PW7/A at the instance of complainant. He prepared site plan Ex.PW7/B of place of recovery. He prepared challan and filed in the court through SHO.
11. PW8 HC Binesh Kumar stated that on 28/10/2011, SI Om State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 7 of 13 Prakash deposited the case property in the Malkhana and entry regarding same was mentioned in register no.19 at Sr.No.1167. Photocopy of relevant page of register no.19 is Ex.PW8/A.
12. No other witness examined by the prosecution. Thereafter, PE was closed and the statement of the accused was recorded under Section 313 Cr.P.C. in which he denied the allegations levelled against him and stated that he is falsely implicated in this case. He did not opt for defence evidence. Thereafter, matter was fixed for final arguments.
13. Final arguments advanced by the parties. Ld.APP for the State argued that case of the prosecution is proved beyond reasonable doubt against the accused and he is liable to be convicted for the offence alleged against him. On the other hand Ld. Counsel for accused submits that the case of the prosecution is concocted one. Witnesses had given false & contradictory evidence. Public witnesses had not supported the prosecution case. The alleged recovery has been planted upon the accused and he is falsely implicated in this case by the police only to solve this case. It is further stated that the CD of CCTV Footage placed on record by the prosecution is a tampered CD having no any proof of its genuineness. There is no any admissible evidence against the accused showing that he had entered into the State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 8 of 13 ATM room in question and committed the offence there. Accused is facing trial of this false case since last about 4 years. Therefore, he is liable to be acquitted.
14. I have heard the arguments of the parties and have perused the record. Charge against the accused is that he trespassed into ATM Room of Axis Bank ATM, where he damaged the ATM and committed theft of UPS (Numeric). It is also the charge against the accused that the said stolen UPS (Numeric) along with black wire were recovered from his possession.
15. There is no any eye witness of the alleged incident of trespassing and theft by the accused in the ATM Room in question. Prosecution story is based in this respect only on the CCTV Footage Ex.PW5/A. As per IO/PW7, on 28/10/2011, the complainant handed over him the CCTV Footage in the form of a CD. The complainant/PW2 in his cross-examination stated that he do not know that who had provided him the said CCTV Footage. During chief-examination, he stated that on 11/10/2011, he was channel manager in Prizm Payment Services Pvt. Ltd., whereas during his cross-examination, he stated that he had worked in M/s Prizm Payment Services Pvt. Ltd. from 18/11/2010 to 22/12/2011. He further admitted that he handed over State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 9 of 13 his written complaint to the police station on 11/10/2011, whereas his complaint Ex.PW2/A is having the date of 28/10/2011. Date of FIR is also 28/10/2011. No reason is stated by the IO that when the information was received regarding the alleged offence on 11/10/2011, then why the FIR was registered after a long gap of about 17 days.
16. Regarding the CCTV footage, PW5 the regional manager of the company which deals in electronic surveillance i.e. CCTV, fire alarm etc., stated that their company had provided copy of CCTV Footage to the Prizm Payment Services as per request. However, he stated that he cannot tell that the CCTV Footage placed on the file with charge-sheet is the same as provided by his company or not. But he stated that he can tell the same after seeing the CCTV Footage. However, when the CD of CCTV Footage placed with the charge-sheet was played in the computer during evidence, the same could not read by the computer due to various scratches on the CD. Thereafter, another copy of the CCTV Footage brought by the IO on next date i.e. Ex.PW5/A which was played and on seeing the same PW5 stated that the same had been supplied from their office.
17. During cross-examination, regarding the alleged CCTV Footage, PW5 stated that he had not prepared the CD in question and State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 10 of 13 he could not tell the name of the person who prepared the same. No such person has been cited or examined as a witness by the prosecution who had prepared the alleged CD. PW5 further stated that he had seen the CD first time in the court only and stated that he cannot say if the CD produced in the Court is the same as was prepared by his staff or not. According to PW5 only one copy of the CD was prepared by their company and was handed over to Prizm Payment Services. IO had not clarified that from where he procured 2 nd copy of CCTV Footage. PW7/IO in his cross-examination stated that the complainant gave a temper proof certificate issued by Thakral Services regarding the CCTV Footage. On the other hand, regional manager of Thakral Services/PW5 stated in his cross-examination that no certificate regarding temper proof of the CD was given by him. No such document is proved by the prosecution during evidence. IO admitted that no seizure memo of any such document was prepared. No any certificate u/s 65B of Indian Evidence Act has been placed on record by the prosecution regarding the genuineness of the CD of the alleged CCTV Footage. During cross-examination, PW7 stated that he did not investigate as to from which computer the CD containing CCTV Footage was procured by the complainant. Thereafter in further cross-
State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 11 of 13 examination, IO/PW7 admitted that he had taken into possession the system/instrument from which CD was prepared. However, neither any such seizure memo nor any such system/instrument has been produced by the prosecution during evidence. Hence in view of contradictory statements and incomplete chain of procuring the genuine CCTV Footage, as reveals from the statement of PW2/complainant, PW5 i.e. regional manager of the Thakral services and PW7/IO, the genuineness of the CCTV Footage i.e. Ex.PW5/A comes under the shadow of doubt.
18. Regarding the allegation of recovery of the stolen UPS, prosecution had examined one public witness i.e. PW1. According to prosecution story, the accused was tenant of PW1 Sh.Dharmender and on 28/10/2011, after apprehension of accused, he was taken to the house of PW1 and thereafter the stolen UPS along with the instruments used in theft were recovered from the possession of accused at his instance. During evidence before the Court, PW1 not supported the prosecution story. According to PW1, on calling by the police, he went to the police station where he found that the accused was sitting in the police station and police disclosed to him that the ATM Machine was broken by the accused. PW1 was cross-examined by Ld.APP in which State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 12 of 13 he denied his statement u/s 161 Cr.P.C. PW1 specifically denied that in his presence, any stolen UPS or any instrument used in committing of the theft was recovered from the possession or at the instance of the accused. He admitted the signature on the seizure memo Ex.PW3/D but stated that his signature was obtained by the police on blank papers. According to PW3 who was with the IO at the time of arrest and alleged recovery from the accused, the accused was already arrested before the alleged recovery but according to IO, accused was arrested after the alleged recovery. Hence, in view of total contradictory statements of official witnesses and only public witness regarding recovery, the alleged recovery also becomes doubtful.
19. It is also held by Hon'ble High Court of Delhi in State Vs. Dharmender Singh Mehta and anr. 2012 V AD (Delhi) 108 that "it is now very well established that in all criminal cases, the prosecution has to establish the guilt of the accused beyond reasonable doubt through unimpeachable evidence".
20. Hence the Court comes at the conclusion that the case of the prosecution becomes doubtful and prosecution failed to establish its case against the accused beyond reasonable doubts. The benefit of doubt goes to accused as per principles of criminal justice. Accused State vs. Rohit Verma PS:Kapashera FIR No.188/2011 Page No. 13 of 13 Rohit Verma S/o Late Sh.Madan Pal is stands acquitted in this case for the offence punishable u/s 427/457/380/411 IPC in present case FIR No.188/2011, PS Kapashera.
21. Accused is directed to furnish bail bonds and surety bonds under Section 437-A Cr.P.C. and is also directed to furnish his latest passport size photographs as well as of his surety alongwith their latest residential proof.
Announced in open court
on 19/12/2016 (Dr. Jagminder Singh)
Metropolitan Magistrate-04/ Dwarka
Delhi/19.12.2016
Note: This judgment contains Thirteen (13) pages and having my signature on each page.
(Dr. Jagminder Singh)
Metropolitan Magistrate-04/ Dwarka
Delhi/19.12.2016
State vs. Rohit Verma PS:Kapashera