Delhi District Court
State vs Aman Gupta on 27 April, 2024
IN THE COURT OF SHRI SHUBHAM DEVADIYA,
METROPOLITAN MAGISTRATE-05, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
FIR No. 14/2010
PS Raja Garden Metro
Cr. Case No. 63583/2016
State Vs. Aman Gupta & Anr.
CNR No. DLWT020004312011
JUDGMENT
(a) Sr. No. of the case. 63583/2016
(b) Date of offence. 15.09.2010
(c) Complainant. Vishnu Kapoor
(d) Accused persons. Aman Gupta S/o Sh. Daya Ram Gupta and
Sandeep Kumar S/o Sh. Satish Kumar
(e) Offences Under Section 414/411/34 IPC.
(f) Plea of accused Pleaded not guilty.
(g) Final Order Acquittal
(h) Date of institution 05.05.2011
(i) Date of judgment 27.04.2024
Argued by :- Sh. Arvind Dahiya, Ld. APP for State.
Sh. Sanjay Kumar, Ld. counsel for accused Aman Gupta.
Sh. M. R. Shehgal, Ld. counsel for accused Sandeep Digitally signed SHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2024.04.27 17:25:33 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 1 of 27 PS Raja Garden & Anr.
Table Of Contents
Sr. No. Contents Page no.
A BRIEF FACTS 3-4
B PROSECUTION EVIDENCE 4-22
C DEFENCE EVIDENCE 22
D ARGUMENTS 23
E ANALYSIS AND FINDINGS 23-26
F CONCLUSION 26-27
Digitally signed
by SHUBHAM
SHUBHAM DEVADIYA
DEVADIYA Date:
2024.04.27
17:25:43
+0530
FIR No. 14/2010 State v. Aman Gupta & Anr. 2 of 27
PS Raja Garden & Anr.
A. BRIEF FACTS.
1. The case of Prosecution is that on 25.02.2010 at unknown time, accused voluntarily assist in concealing or disposing of mobile phones make Nokia 6303 and other remaining stolen mobile phones by selling the same at Shop No. 29, Karol Bagh, Gaffar Market, Delhi, which accused Sandeep Kumar knows or has reason to believe to be stolen property and the same was stolen from The Mobile Store situated at Metro Station Janak Puri West, within the jurisdiction of PS R.G. Metro, belonging to complainant Sh. Vishnu Kapoor. Further, on 25.02.2010 at unknown time at A-41, DDA Flats, Pandav Nagar, which was stolen from the mobile store situated at Metro Station Janakpuri, West, within the jurisdiction of PS R.G. Metro, belonging to complainant Sh. Vishnu Kapoor, which accused Aman Gupta had dishonestly received or retained, knowing or having reason to believe that such property was stolen propert. Further, accused Aman Gupta voluntarily assist in concealing or disposing of two mobile phones make Nokia 7210 and Samsung Star by selling the same to two persons, which accused knows or has reason to believe to be stolen property. Thereafter, FIR was registered and chargesheet was filed in the Court for commission of offences under Section 414/411 IPC.
2. The Court took cognizance of above offence and accused person were summoned to appear before the Court. After the appearance, compliance of Section 207 CrPC was done (hereinafter referred to as Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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CrPC) and separate charge for offence punishable under Section 414/411 IPC were framed against accused persons on 18.10.2019 to which they pleaded not guilty and claimed trial. Thereafter, the matter was fixed up for recording of Prosecution evidence.
B. PROSECUTION EVIDENCE
3. In Prosecution evidence, the Prosecution has examined 13 witnesses. The testimony of the witnesses in a nutshell are as below:
(I) PW-1/Sh. Vishnu Kapoor was examined. He had deposed that on 23.12.2009, he received a call from the Store Manger of The Mobile Store situated at Metro Station Janakpuri, West to inform him that on 22.12.2019, he went to his house after closing the store and when he returned back on 23.12.2009, he found that six hand sets and cash amount of RS. 11,500/- were found missing from the outlet and thereafter, he made a complaint Ex. PW-1/A on 20.01.2010 to SHO PS Raja Garden Metro and he furthe stated that he provide the details of missing hand sets to the police officials ie. Ex. PW-1/B and he also correctly identified the case property in the court.
He was duly cross-examined by Ld. Defence counsels.
(II) PW-2/Sh. Parminder Singh was examined. He had deposed that in the year 2009, he was working as Store Incharge of The Mobile Store outlet situated at Metro Station Janakpuri, West and one Rattan Deep Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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Singh was also working with him in the said outlet. He further stated that on 22th of the year 2009, he went to the store at around 11.00 am and at around 3.00 pm Ratan Deep Singh came at the store and he handed over the total cash and other relevant documents to Rattan Deep Singh and left the store and on next date i.e. 23 of the year 2009, he received a call from PW-3 Rattan Deep Singh who informed him that the theft had taken place in the store and he further told him that from phones and cash amount of Rs. 11,500/-were missing. He further stated that during investigation by the police, the police told them that the theft had taken place after opening the locks from the keys and on chekcing they came to know that 06 mobile hand sets along-with cash of Rs. 11,500/-was stolen. It is further stated that they all went to police station. Ratandeep Singh gave a complaint and he had also signed the complaint which is Ex. PW-2/A. He was cross-examined by Ld. APP for State. During his cross-
examination, he admitted that he had stated in the complaint that the mobile handsets which were stolen from the outlet were of Nokia 7210, 02 sets of LG KP500, Samsung S3310, Nokia 6303 and Samsung 5233S. He further admitted that they had also given the IMEI numbers of the abovesaid handsets to the police officials. He further stated that he cannot identify the mobile phones due to the lapse of time, even if shown to him. He denied the suggetion that he is intentionally and deliberately not identifying the mobile handsets. He admitted that the incident happened in the month of December, 2009.
He was duly cross-examined by Ld. Defence counsels.
Digitally signedSHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2024.04.27 17:26:05 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 5 of 27 PS Raja Garden & Anr.
(III) PW-3/Sh. Ratandeep Singh Sethi was examined. He deposed that he had joined the Mobile Store company on 14.07.2008 as a Sales Executive. He does not remember when he had joined The Mobile Store at East Janak Puri Metro Station. He does not remember when he came at the store on 22.12.2009. He does not remember who had opened the store on that day. He cannot cannot say with confirmation but as far as he remember the store was closed by him on 22.12.2009. He further deposed that on 23.12.2009, he had opened the store at about 5:00 P.M. in the evening. When they entered the store, they used to clean the same and check the mobile handsets. He found that 6-7 mobile phones and also cash of Rs.11,500/- were missing from the store. He got worried and he called his colleague Parminder Singh and told him about the incident. Then, Parminder Singh came at the store after some time and they informed the Area Manager about the same. Thereafter, Area Manager came at the store and he narrated him about the entire articles which were missing from the store. He told him to visit the police station and to lodge the complaint in this regard. Then, he visited the police station alongwith Parminder Singh and lodged the complaint which is Ex.PW2/A, Thereafter, they left the police station. He had given mobile handsets details in his complaint. They were not allowed to work further in the company and we left the job.
He was cross-examined by Ld. APP for State. During his cross- examination, witness stated that there were only two people working at Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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the store which included Parminder Singh and he had two working times. He does not remember the exact working times. On 22.12.2009, he came for duty at around 10:00 A.M. He admitted that he had stated to police that on 22.12.2009, Parminder Singh came at the Store in the morning and remained there till 5:00 P.M. and he came at the store at 3:00 P.M. He further admitted that he had stated in his complaint that he remained at the store till 8:00 P.M. He further admitted that whoever close the store, count the mobile handsets lying in the store. He further admitted that he had stated in his complaint that he had counted the mobile handsets and it was found to be 49. He further admitted that he had counted the cash which was around Rs.11,500/-. He further admitted that he had stated in his complaint that after checking and locking the store, he went to his home. He further admitted that he had stated in his complaint on 23.12.2009, he came at the store in the morning and opened it and after checking, he found 06 mobile handsets and cash amount of Rs.11,500/-
was missing. He further admitted that on 23.12.2009, Parminder Singh was on leave. He further admitted that he had stated in his statement that he had called Parminder Singh and told him the entire facts. He further admitted that he had also informed the Area Manager about the theft. He further admitted that he had stated in his statement that he had also informed the senior officials of the Metro about the theft. He further admitted that he had mentioned in his complaint the details of the stolen mobile handsets which i.e. Nokia 7210, 02 LG KP500, Samsung S3310, Nokia 6303 and Samsung S5233S. He further stated that he can identify Digitally signed SHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2024.04.27 17:26:21 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 7 of 27 PS Raja Garden & Anr.
the mobile phones only on the basis of the image which is there on the mobile phone box. He can identify the mobile phones but cannot tell whether they are the same mobile phones which were stolen from his mobile store and same can be identified through the IMEI numbers only. He can only identify the particular model or make. He does not remember the IMEI numbers of the mobile phones due to lapse of time but it was mentioned by him in his complaint. Vol. it is not easy to remember the IMEI numbers of 06 mobile handsets. He denied the suggestion that he is deliberately and intentionally not telling the IMEI numbers of the mobile phones.
He was duly cross-examined by Ld. Defence counsels. During cross-examination, he stated that Parminder Singh was also Sale Executive. He was the Incharge of the store. He does not remember when Parminder Singh joined the store at East Janak Puri Metro Station. He also does not remember till when he remained at the Mobile Store. On 22.12.2009, he closed the store at 5:00 P.M. He does not remember his duty hours on 23.12.2009. His duty hours were of 06 hours. Parminder Singh was also having the same duty hours. They both do the cleaning of the store. They did not have fixed weekly off. They had the discretion to take one day off in every week on any day after giving prior intimation to the Area Manager. They did not use to give the intimation to any officer of the company for coming late to the store. He did not know who was the Incharge of the Delhi Region of The Mobile Store. The Mobile Store is a private limited. He cannot tell who was the Managing Director of Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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The Mobile Store company. He denied the suggestion that he had never worked in the Mobile Store. They used to maintain cashbook in our mobile store outlet. They did not used to maintain the stock register. On 22.12.2009, the cash reflected in the cashbook was Rs.11,500/-. They did not give the copy of the cashbook to the police official and also did not tell them about the same. The cashbook used to bear the signature of the person who used to issue the cash receipt. There was a stock inventory in the system from which they used to know about the stock of the mobile phones available in the store. He had never given the copy of the stock inventory to the police officials. He told Parminder Singh about the incident at about 11:15 to 11:30 A.M. The Area Manager was told about the same after half an hour when he intimated Parminder Singh.
Parminder Singh reached at the store within 15-20 minutes. He did not remember when the Area Manager reached at the store. Parminder Singh reached earlier than Area Manager. He does not know when the Area Manager reached the store after Parminder Singh came there. He took 15- 20 minutes to verify about the theft of the mobile phones from the store. He further denied the suggestion that Parminder did not come to the store on 23.12.2009. He alongwith Parminder visited the police station. Area Manager did not come with us to the police station. The complaint Ex.PW2/A is in his handwriting. He denied that he had given a false complaint in the police station. The keys of the store was with him and Parminder Singh. He voluntarily stated that the keys of the store was with one person who was working in the store earlier and the keys were Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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handed over to him by said person. He denied that he was not the Incharge of the store at any point of time. He remained at police station for about 30-45 minutes. The complaint was written by him in the police station. He had taken the print out from the system with regard to the details of the stolen mobile handsets. He had not attached the said print out alongwith his complaint but he had mentioned the details of mobile handsets in his complaint. The details given by him in complaint was correct as per their record. He had never given the print out of the details of the mobile handsets to the police officials. He had counted the mobile phones on 22.12.2009 before closing the store. He had not told about this fact in his complaint or to the police officials. Again said, he had told this fact to the police officials and written the same in his complaint also. They used to sell the mobile handsets make Nokia, Samsung and LG. The models of the mobile phones were Nokia 3310, Nokia 7210, LG Cookie and Samsung Galaxy etc. which were being sold at our store. He cannot tell about the exact quantities with regard to the different models available at the store on 22.12.2009. He admitted that store timings were from 11:00 A.M. till 6:00 P.M. He did not know why he came at the store on 22.12.2009 at 10:00 A.M., he might have come early. They used to sell one to two mobile phones on an average at the store daily. He could not tell the day on 22.12.2009 and 23.12.2009. Parminder Singh had told him that he will be on leave on 23.12.2009 and this fact was told to me by him around 2-3 days back. He had told to the senior officials of Metro on 23.12.2009 about the theft. He does not know the names of the said Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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senior officers. He denied the suggestion that the mobile phones were not stolen from the store or if stolen, the same were stolen by him and Parminder Singh.
(IV) PW-4/Retd. ASI Ranbir Singh was examined. He deposed that on 04.02.2010, he was posted at PS R.G. Metro as duty officer. His duty hours were 9:00 A.M. to 5:00 P.M. He received a rukka from SI Bhan Singh and on the basis of which he got present FIR registered. The FIR was registered by using the computer systems and specially designed software installed at PS, which does not allow any alteration or deletion subsequent to the feeding of data. The true print out of the FIR is Ex.PW4/A (OSR). He further stated that he further certify that during the period the FIR was registered the computers installed at PS were under his lawful control and Ex.PW4/A is a computer output based upon the information fed into the computer in ordinary course of the said activities and is free from any error on account of failure or malfunctioning of the computer. He handed over the copy of FIR to SI Bhan Singh and made an endorsement Ex.PW4/B on the tehreer to this effect. He also prepared the certificate u/s 65B of the Evidence Act regarding the authenticity of the aforementioned FIR which is Ex.PW4/C. He was duly cross-examined by Ld. Defence counsels. (V) PW-5/Retd. SI Bhan Singh was examined. He deposed that on 04.02.2010, he was posted at PS Raja Garden Metro as Sub Inspector. On that day, the complaint in the present case was marked to him for investigation. On the basis of the complaint, he prepared rukka which is Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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Ex.PW5/A. Thereafter, he went to the spot and prepared site plan which is Ex.PW5/B. During investigation, he gave notice u/s 91 CrPC for the production of proof of ownership of stolen mobile phone which is Ex.PW5/C. He made search of the accused persons but could not find any accused persons. During investigation, he became ill and thereafter, further investigation was marked to SI Puran Singh. Later on, further investigation was marked to him. He checked the case file properly and the entire investigation has already been done by SI Puran Singh. Thereafter, he prepared the challan and submitted the chargesheet before the Court.
He was duly cross-examined by Ld. Defence counsels. (VI) PW-6/HC Noor Singh was examined. He deposed that on 16.09.2010, he was posted at PS Raja Garden Metro as HC. On that day, ASI Puran Singh alongwith him and Const. Baljeet had arrested accused Sandeep Kumar vide arrest memo Ex.PW6/A. ASI Puran Singh had also recorded disclosure statement of accused Sandeep which is Ex.PW6/B. In his disclosure statement, accused Sandeep told that he had purchased the mobile from co-accused Aman Gupta. In his disclosure statement, accused Sandeep further disclosed that on 15.12.2009, he had prepared a fake bill in the name of Manish Hari Nagar which is marked as Mark A. Accused Sandeep Kumar further disclosed that he had sold mobile phone to one Inderjeet Singh. Thereafter, IO also seized the photocopy of ID proof of accused Sandeep Kumar on which "I have sold Two handsets to Mr. Shop No. 29, Gaffar Mkt. Karol Bagh on Dated-25/02/10" and the Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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word "cancel" is written at two places on the same ID which is Mark B. Accused Sandeep was arrested at the instance of Inderjeet Singh. Both accused persons were correctly identified by the witness.
He was duly cross-examined by Ld. APP for State. During his cross-examination, witness admitted that he alongwith Const. Baljeet Singh and Const. N.N. Nayak left the police station for the investigation in the present matter alongwith ASI Puran Singh. He further admitted that secret informer had informed ASI Puran Singh that the wanted accused Sandeep Kumar had arrived at the place. He further admitted that IO had asked some public persons to join the investigation. He voluntarily stated that IO had asked but the public persons refused to join the investigation and left the spot without disclosing their identity. He further admitted that after sometime of taking position, accused came from North side of Nawada Metro Station and he was apprehended by them who disclosed his name as Sandeep Kumar. He further admitted that on 23.12.2009 at about 7:00 A.M. or 8:00 A.M., he had stolen 06 mobile handsets from the shop "The Mobile Store" at Janak Puri Metro Station after opening the gate with key. He further admitted that accused had disclosed that he had made duplicate key of the store. He further admitted that one of the mobile phone was sold by him to Aman Gupta in Rs.7300/- without any bill. He further admitted that accused Sandeep had sold 02 handsets of LG in the Gaffar Market. He further admitted that one handset of Nokia was sold to one unknown person. He further admitted that thereafter, accused Sandeep Kumar was arrested. He further admitted that accused Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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Sandeep Kumar lead them to the place from where he had stolen the mobile phones and at his instance, ASI Puran Singh prepared pointing out memo Ex.PW6/C. He further admitted that accused Sandeep Kumar also lead them to the shop at Gaffar Market which belongs to Inderjeet Singh and at his instance ASI Puran Singh prepared pointing out memo which Ex.PW6/D. He further admitted that accused had further disclosed in his disclosure statement that he has also sold a mobile phone to one Kapil Arora, who is the owner of one hotel in Karol Bagh. He further admitted that accused Sandeep Kumar had lead them to the hotel in Karol Bagh. He further admitted that when they met Kapil Arora in the hotel, he disclosed that he had purchased one mobile phone from the shop of Inderjeet Singh from Karol Bagh. He further admitted that Inderjeet Singh handed over the bill dated 15.12.2009 to Kapil Arora alongwith mobile phone which was sold by Inderjeet Singh to Kapil Arora. He further admitted that Kapil Arora stated that he had given the said mobile phone to one of his friend who had gone out of the country. He further admitted that thereafter, IO seized the documents given by Kapil Arora. He further admitted that IO had written disclosure statement of accused Sandeep Kumar Ex.PW6/E. He further admitted that on 15.09.2010, he alongwith Const. Ram Sarik and IO ASI Puran Singh went to Ranjeet Nagar in the government vehicle, where secret informer met ASI Puran Singh and told that accused Aman Gupta is present in his house. He further admitted that thereafter, IO asked some public persons to join the investigation but none agreed and went away without disclosing their Digitally signed SHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2024.04.27 17:28:06 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 14 of 27 PS Raja Garden & Anr.
names and identity and thereafter, they parked the vehicle on one side and proceed towards the first floor of House No. A-41, Pandav Nagar. He further admitted that they found one person sitting on a chair on the first floor of House No. A-41, Pandav Nagar and on interrogation, he disclosed his name as Aman Gupta. He further admitted that accused Aman Gupta had taken out 02 mobile phones from his pocket and thereafter, the same was seized vide memo Ex.PW6/F. He further admitted that IO had recorded disclosure statement of Aman Gupta which Ex.PW6/G. He further admitted that thereafter, accused Aman Gupta was arrested and personally searched vide memos Ex.PW6/H and Ex.PW6/I. He further admitted that accused Aman Gupta had lead them to Fast Track, 21/8, Second Floor, Naraina Industrial Area and pointed out towards one person who was sitting in cabin and told them that it was the same person to whom he had sold one mobile phone and the said person revealed his name as Tikam Singh. He further admitted that Tikam Singh had produced one receipt which he received from accused Aman Gupta alongwith mobile phone which he purchased from accused Aman Gupta. Thereafter, IO prepared pointing out memo and seized mobile phones make Nokia-7210 recovered from Tikam Singh vide seizure memo Ex.PW6/J. He further admitted that accused Aman Gupta had also sold mobile phone to one Dheerpal Yadav on the basis of the receipt given by accused Aman Gupta. He further admitted that the mobile phones make Samsung, Star, S-5233 were recovered from accused Dheerpal Yadav. He further admitted that IO had prepared seizure memo alongiwht pointing Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2024.04.27 17:28:18 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 15 of 27 PS Raja Garden & Anr.
out memo Ex.PW6/K. He further admitted that the mobile phone which was recovered from Aman Gupta was Samsung 3310. He had correctly identified the case property and submitted that mobile phones are the same which was recovered from the accused and at their instance.
He was duly cross-examined by Ld. defence counsels. (VII) PW-7/Sh. Rupesh Gupta was examined. He deposed that on dated 23.12.2009, he was working with The Mobile Store Ltd. as a DGM of the company since 2007. The Mobile Store had a shop at Janak Puri West Metro Station. From where 05 mobile phones were stolen from the said shop on the said date. Thereafter, the FIR was lodged by Vishnu Kapoor (Area Operation Manager) of the said company. Thereafter, one police personnel but he does not remember the name of said police personnel who came to our office on April 2011 at 140, First Floor, Zamrudpur, G.K.-I, Delhi for taking the copy of invoices of the handsets.
He handed over the copies of the invoice to the said police personnels. However, he left the said company on dated 22.11.2017, therefore, he could not brought the original invoice of mobile phones which were stolen. He cannot recall the model number or IMEI of mobile phones which were stolen as he had only handed over copies of invoice to the police official. He cannot recall which invoices he had given to police official but after seeing the same he could depose regarding the same. He had given 05 invoices to the police official whose name he does not know. Witnesss identified the photocopies of invoices. Photocopies of invoices are exhibited as Ex.PW7/A, Ex.PW7/B, Ex.PW7/C, Ex.PW7/D Digitally signed SHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2024.04.27 17:28:27 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 16 of 27 PS Raja Garden & Anr.
and Ex.PW7/E. The original record of invoices were placed in the record of said company.
He was duly cross-examined by Ld. defence counsels. (VIII) PW-8/Sh. Ajit Singh was examined. He deposed that as per the direction, he was asked to bring call detail records pertaining to Mobile No. 9990277003 and 9999995968. He further deposed that as per the record, Mobile Phone No. 9999995968 was issued to Mr. Mangal Singh on 10.06.2008 and the same was de-activated on 15.02.2010 and the said number again issued to Mr. Aman Gupta on 17.02.2010 and was de- activated on 10.12.2010. Call detail records of Mobile No. 9999995968 as required is not available with the company as the same is not available in the system being more than one year old. Record is Ex.PW8/A. He further deposed that as per the record Mobile No. 9990277003 was issued to Mr. Kapil Arora on 02.03.2010 and was deactivated on 29.01.2013. Call detail records of mobile No. 9990277003 as required is not available with company as the same is not available in the system being more than one year old. Record is Ex.PW8/B and Ex.PW8/C. He was duly cross-examined by Ld. defence counsels. (IX) PW-9/HC Ram Sarikh was examined. He deposed that on 16.09.2010, he was posted at PS Raja Garden Metro. On that day, he alongwith HC Pooran Singh and driver HC Ashwani Kumar was part of the investigation. On that day, as per the recovered CDR, they went in search of accused Aman Gupta, R/o Pandav Nagar. When they reached at Pandav Nagar, they met one secret informer who informed that one Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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person namely Aman Gupta i.e. accused was having the stolen mobile phone with regard to the present case and he was present at his house No. A-41, Pandav Nagar, Delhi. Thereafter, they went to the abovesaid house and they found accused Aman Gupta sitting on a chair. Thereafter, one mobile phone was recovered from the right pocket of his wearing pants. The said mobile phone was of Samsung company and of silver colour. IO seized the mobile phone vide seizure memo already Ex.PW6/F. Thereafter, case was registered. He did not remember the other facts as he had forgotten the facts.
He was duly cross-examined by Ld. APP for State. During his cross-examination, witness admitted that police official recorded his statement. He further admitted that accused Aman Gupta was arrested vide arrest memo Ex.PW6/H. He further admitted that personal search memo of accused Aman Gupta was also conducted vide memo Ex.PW6/I. He further admitted that IO had also recorded disclosure statement of accused Aman Gupta which is already Ex.PW6/G. He further admitted that Aman Gupta lead them to the office of Tikam Singh which was situated at Fast Track, 21/8, Naraina Industrial Area, New Delhi and pointed out towards Tikam Singh and told that he had sold mobile phone Nokia 7210 to Tikam Singh for amount of Rs.3000/-. He further admitted that the mobile phone make Nokia 7210 was produced by the said Tikam Singh. He further admitted that said Tikam Singh gave one receipt of mobile phone where he signed as a buyer and accused Aman Gupta signed as a seller. He further admitted that the said mobile phone make Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
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Nokia 7210 and receipt were seized by IO vide memo already Ex.PW6/J. He further stated that he could not identify the accused Aman Gupta due to lapse of time.
He was duly cross-examined by Ld. Defence counsels. (X) PW-10/HC N.N Naik that on 26.09.2010, he joined the investgation along-with SI Puran Singh andhe along-with ASI Puran Singh went to the Gaffar Market, Shopno. 29, Delih and met one Inderjeet Singh who handed over one ID i.e. photocopy of driving license and PAN Card on the same paper and both the IDs were cancelled by the pen. He further stated that accused had given his ID while selling 02 mobile phones make LG KP 500 and accused Sandeep Kumar had written on the said photocopy from his own hand that he had sold 02 handsets to Shop No. 29, Gaffar Market, Karol Bagh. Thereafter, IO seized the said photocopy of ID vide seizure memo Ex.PW10/A .
He was duly cross-examined by Ld. Defence counsels. (XI) PW-11/Retd. ASI Puran Singh was examined. He deposed that on 14.02.2010, he was posted at PS Raja Garden Metro as ASI. On that day, further investigation of present case was marked to him. During investigation i.e. on 14.02.2010, he arrested accused Sandeep Kumar vide arrest memo already Ex.PW6/A. He also recorded disclosure of accused Sandeep Kumar which is already Ex.PW6/E. During investigation, he seized two mobile phones from Karol Bagh. He also arrested accused Aman Gupta vide arrest memo already Ex.PW6/H. Accused Aman Gupta was also personally searched vide memo already Ex.PW6/I. He took PC Digitally signed SHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2024.04.27 17:28:52 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 19 of 27 PS Raja Garden & Anr.
remand of accused Sandeep Kumar. Accused Sandeep Kumar lead them to one keymaker (chabiwala) from whom he got made one duplicate key for the store. He did not remember exactly but may be he had recorded the statement of keymaker. Accused Sandeep Kumar lead us to a shop in Karol Bagh where he had sold the mobile phones and the owner of the said shop handed over one photocopy of documents which contain ID of accused Sandeep Kumar. Thereafter, he seized the said ID vide seizure memo already Ex.PW10/A. Thereafter, they returned back to PS. After medical examination of accused Sandeep Kumar, he was produced before the Court on the next day and from there accused Sandeep Kumar was sent to JC. He further stated that he was not able to recollect any more facts due to lapse of time and his old age. He further stated that can identify accused persons, if shown to him. Witness identified both accused persons in the Court today but witness pointed out towards accused Sandeep Kumar and told that he is accused Aman Gupta and witness also pointed out towards accused Aman Gupta and told that he is accused Sandeep Kumar.
He was duly cross-examined by Ld. APP for State. He was duly cross-examined by Ld. Defence counsels. (XII) PW-12/Sh. Teekam Singh was examined. He deposed that he did not remember the date and month but it was in the year 2010, he had purchased one mobile phone from one Aman. The said Aman had given a receipt to me in that regard which is already Ex.PW11/A. One printed bill was also given to me alongwith an ID proof by the said Aman. Police Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2024.04.27 17:29:01 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 20 of 27 PS Raja Garden & Anr.
officials visited him office and inquired from him about the mobile phone. He told to police officials that he had used the mobile phone but now the mobile phone was given by him to someone else but he did not remember the name of said person. He called the said person and asked him to come at PS. He came at PS and produced the said phone before the police officials. He was also present in the PS at that time. Police officials seized the mobile phone in his presence vide seizure memo already Ex.PW6/J. He further stated that he can identify the person namely Aman from whom he had purchased mobile phone if shown to him. On seeing the Court, witness submits that the said Aman from whom he had purchased mobile phone. He identified the case property i.e. mobile phone make Nokia 7210.
He was duly cross-examined by Ld. APP for State. He was duly cross-examined by Ld. Defence counsel of accused Aman Gupta.
He was duly cross-examined by Ld. Defence counsel of accused Sandeep Kumar despite given opportunity. (XIII) PW-13/Sh. Kapil Arora was examined. He deposed that in the year 2010, he had purchased a mobile phoone make LG KP 500 from Inderjeet Singh who run the shop at Gaffar Market, Karol Bagh and the said Inderjeet singh had handed over to him one bill w.r.t the mobile phone and the said Kapil Arora handed over the phone to police officials and the same was seized vide memo Ex. PW-11/C. Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2024.04.27 17:29:09 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 21 of 27 PS Raja Garden & Anr.
4. Thereafter, PE was directed to be closed as the Ld. APP for State had requested for the same. Statement of the accused persons were recorded under section 313 Cr.P.C. In their statement, the accused persons had stated that they were wrongly framed by the police officials in the present case and the reason best known to the police officials.
Nothing was recovered from them at any point of time w.r.t this case or at their instance. After their statements, accused persons opted to lead DE.
C. DEFENCE EVIDENCE
5. During defence evidence, Sh. Sandeep examined himself as DW-1 and denied the allegations of Prosecution. He stated that he has worked for about two years in the complainant's company. He was shifted to Subhash Nagar store around 5-6 months before the incident. He was falsely implicated in the present case for the reason that he was not getting any medical facility and he was raising voice in the company for the medical benefits or other benefits like PF and annual increment which he was demanding from time to time. The company was running into losses and therefore, they fired the employees of the company and implicated me in this false case. The said witness was duly cross- examined by the Ld. APP for the state.
Digitally signed by SHUBHAMSHUBHAM DEVADIYA DEVADIYA Date:
2024.04.27 17:29:18 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 22 of 27 PS Raja Garden & Anr.
D. ARGUMENTS
6. After the defence evidences, the matter was then listed for final arguments. Final arguments were heard. I have given thoughtful consideration to the submissions of the accused and the State. Ld. APP submitted that Prosecution has been successful in proving guilt against accused beyond reasonable doubt. Per contra, Ld. Defense Counsel submitted that Prosecution has failed to prove the guilt against accused persons beyond all reasonable doubts. He further submitted that the case of Prosecution suffers from various loopholes and the fact of recovery from the possession of accused persons cannot be set to have been proved. Accordingly, they prayed that the accused persons be acquitted in the present case.
E. ANALYSIS AND FINDINGS
7. In the considered opinion of this Court, the Prosecution has failed to prove the charges u/s 411/414 IPC against accused Aman Gupta and u/s 414 IPC against the accused Sandeep as the case of the Prosecution suffers from serious discrepancies and is clouded with various doubts that has not been explained at all. The case property of the present case as seized vide seizure memos Ex. PW-6/F, Ex. PW-6/J, Ex. PW-6/K, PW-
11/C and Ex. PW-11/D has not been duly seized by the IO concerned as Digitally signed SHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2024.04.27 17:29:27 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 23 of 27 PS Raja Garden & Anr.
the same has been seized without sealing the same and has been produced before the Court in unsealed condition which raises serious suspicion about the fact of recovery from the alleged possession of accused persons. Same is reflected from the testimonies of PW-1, PW-2, PW-3 & PW-6. Further, the Prosecution has not been able to establish the ownership of the case property in question. Though the Prosecution has brought on record the invoices of the mobile phones received from the company of the complainant which is Ex. PW-7/A to Ex. PW-7/E, however, in none of the invoices, the IMEI number of the mobile phones is reflected in respective seizure memos Ex. PW-6/F, Ex. PW-6/J, Ex. PW-6/K, PW-11/C and Ex. PW-11/D which creates doubts regarding the ownership of the person to whom these mobile phones belongs to. Further, as per the Prosecution, the theft in the present case has been committed on 23.12.2009, complaint of which was made to the SHO concerned on 24.12.2009 vide complaint Ex. PW-2/A, however, the FIR in the present case has been registered only on 04.02.2010. The delay in registration of FIR has not been explained. No explanation has been advanced by the prosecution to explain the delay in registration of the FIR and accordingly, the delay in a fire cast a serious doubt upon the veracity of the story of the prosecution. The Hon'ble Supreme Court in various cases has held that the delay in lodging in FIR without any plausible explanation can be fatal to the case of the prosecution. The Hon'ble Supreme Court in In Thulia Kali v. The State of Tamil Nadu, Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2024.04.27 17:29:37 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 24 of 27 PS Raja Garden & Anr.
(1972) 3 SCC 393, emphasising the necessity of explaining the delay in lodging FIR, has held as follows:
"12... First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained...."
The Hon'ble Supreme Court in Kishan Singh Vs. Gurpal Singh, (2010) 8 SCC 775 with regard to the effect of delay in lodging FIR has held as under:
"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass FIR No. 14/2010 State v. Aman Gupta & Anr. 25 of 27 PS Raja Garden & Anr. Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2024.04.27 17:37:08 +0530 the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case..."
Therefore, the delay in registration of FIR by the IO concerned, even after the facts revealing commission of cognizable offence casts a serious doubt on the whole story of the prosecution, and is held to be fatal to the case of the prosecution in view of the previous enmity and inconsistencies in the story of the Prosecution.
F. CONCLUSION:
8. In view of the above discussion, I am of the opinion that the Prosecution has not been able to prove the charges u/s 414/411 IPC against both the accused persons beyond all the reasonable doubts.
Keeping in view above discussion, this Court is of view that Prosecution has remained unsuccessful in proving the alleged charges u/s 414/411 IPC against the accused persons. Accordingly, accused persons namely Aman Gupta S/o Sh. Daya Ram Gutpa (for charges of commission of Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date:
2024.04.27 17:37:40 +0530 FIR No. 14/2010 State v. Aman Gupta & Anr. 26 of 27 PS Raja Garden & Anr.
offence under Section 411/414 IPC) and Sandeep Kumar S/o Sh. Satish Kumar (for charge of commission of offence under Section 414 IPC) are hereby acquitted.
9. File be consigned to record room as per rules.
10. This Judgment contains 27 pages and all the pages have been digitally signed.
Digitally signed by SHUBHAM DEVADIYASHUBHAM Date: DEVADIYA 2024.04.27 17:37:48 +0530 Announced in open Court (Shubham Devadiya) on 27th day of April, 2024 Metropolitan Magistrate West-05, Delhi FIR No. 14/2010 State v. Aman Gupta & Anr. 27 of 27 PS Raja Garden & Anr.