Delhi District Court
State vs . Amar Singh on 31 January, 2023
IN THE COURT OF MS. SAMIKSHA GUPTA
Addl. Chief Metropolitan Magistrate
South West District; Dwarka Courts: New Delhi
Date of Institution : 17.11.2018
Date of reserving judgment : 19.01.2023
Date of Judgment : 31.01.2023
In the matter of :
State Vs. Amar Singh
FIR No. 200/2017
PS : Sector-23 Dwarka
U/s: 411 IPC
1. CNR No. : DLSW02-044833-2018
2. Regn. No. of Case : 30490/2018
3. Name of accused : Amar Singh
S/o Matadin
R/o Near Hanuman Chowk,
Gali no. 11, Qutub Vihar Phase II,
Goyala Dairy, New Delhi.
Present Add. Village Pali
PS Kathor, Tehsil Kalpi,
District Jalaun, UP
4. Offence charged under Section : 411 IPC
5. Plea of accused : Not guilty.
6. Final Order : Acquitted.
JUDGMENT
State Vs. Amar Singh FIR No. 200/2017 /PS Sector 23 Dwarka Page No.1 of 9
1. It is the case of prosecution that on 27.07.2017, accused Amar Singh got recovered one mobile phone belonging to complainant Ashwani Kumar, from Gali no. 11, Hanuman Chowk, Qutub Vihar, Phase II, Goyla Dairy, New Delhi which was stolen on 11.07.2017 at 10:20 PM from Patri Park, in front of Sector 20, Dwarka, which he dishonestly received or retained knowing or having reason to believe that the same is stolen property. Thus, prosecution has set up a case u/s 411 IPC against accused Amar Singh.
2. On the basis of investigation carried out by the police charge sheet was filed in the Court and copy of the same was supplied to accused.
3. On the basis of charge sheet, charge for committing the offence punishable under Section 411 IPC was served upon accused Amar Singh to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined six witnesses, who are as under:
Sr.No Name Nature of Evidence
1. PW-1/Sh. Ashwani Kumar Complainant.
2. PW-2/Sh. Lalta Prasad Purchaser of stolen mobile
phone
3. PW-3/ Sh. Rahul Nodal officer Vodafone Idea
Ltd.
State Vs. Amar Singh
FIR No. 200/2017 /PS Sector 23 Dwarka
Page No.2 of 9
4. PW-4/ Retd. SI Kamlesh IO.
Kumar
5. PW-5/ SI Gajraj 2nd IO
6. PW-6/ SI Suresh 3rd IO
7. PW-7/ HC Vinod MHC(M)
5. Prosecution has relied upon the following documents:
S. No. Exhibits Documents
1. Ex.PW-1/A Complaint of complainant given in PS
2. Mark X Bill/invoice of mobile phone
3. Ex.PW-3/A Reply of Nodal Officer vide letter dated 26.09.2018
4. Ex.PW-3/B Attested copies of CAF alongwith supporting documents
5. Ex.PW-4/A DD No. 46-A regarding snatching
6. Ex.PW-4/B Endorsement
7. Ex.PW-4/C Site plan
8. Ex.PW-4/D CDR/IMEI search request form sent to DCP Dwarka
9. Mark PW- Copy of CDR 5/A
10. Ex.PW-5/1 Seizure memo of mobile Make MI
11. Ex.PW-5/2 Arrest memo of accused
12. Ex.PW-5/3 personal search memo of accused
13. Ex.PW-5/4 disclosure statement of accused
14. Ex.PW-6/A Notice u/s 91 Cr.PC for obtaining the CDR of mobile No. 8588831372
15. Ex.PW-7/A Copy of entry No. 2059 in register no. 19.
16. Ex.A-1 FIR without contents State Vs. Amar Singh FIR No. 200/2017 /PS Sector 23 Dwarka Page No.3 of 9
17. Ex.A-2 Certificate u/s 65-B of Indian Evidence Act
18. Ex.A-3 Panchnama of mobile phone Makr MI Redmi 4
19. Ex.A-4 Superdarinama
20. Ex.P-1 Photographs of mobile phone (colly)
6. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, wherein he claimed that he is innocent and have been falsely implicated in the case.
7. Arguments heard. Record perused.
8. To bring home the charge under Section 411 IPC, the prosecution is required to prove, beyond reasonable doubt, the following components:-
(i) That some property was stolen;
(ii) The said stolen property was received or
retained by accused, with the knowledge/ belief that the property is stolen; and
(iii) The said stolen property was received / retained by accused dishonestly.
9. The evidence of prosecution witnesses in the present case has to be examined against this legal backdrop.
(i) PW-1 Complainant Ashwani Kumar has deposed that in July 2017 when he was talking on his phone, Redmi Note 4 Gold colour, while going towards his home, one boy came from behind, snatched his phone and ran away. The complainant State Vs. Amar Singh FIR No. 200/2017 /PS Sector 23 Dwarka Page No.4 of 9 chased him for 10-15 metres and after that came back and informed the police from his second phone. Police came and inspected the spot after which he gave his formal complaint and also gave the bill of mobile to the police officials. He further deposed that he could not identify the person who snatched his phone as it was night time.
He was not cross examined despite opportunity.
(ii) PW-2 Lalta Prasad deposed that accused was the brother of his brother in law. The witness was approached by the police in year 2017 and he was informed that the aforesaid mobile phone was stolen property. He deposed that he had purchased one mobile phone of make Redmi from the accused for Rs.2500/-3000/-. Accused did not give him any bill for such phone. Thereafter, the witness went alongwith police officials to the house of accused. The police seized the mobile phone from the accused which was handed over by PW-2 to the accused. The witness correctly identified the accused as well as the stolen mobile phone.
He was not cross examined despite opportunity.
(iii) PW-3 Rahul deposed that on receiving notice from the IO, he got provided the CDR for period 22.07.2017 to 24.07.2017 and CAFF of mobile number 8588831373 by Nodal Officer Sh. Dev Kumar. Further, CDR was not available due to lapse of more than one year. He also identified the signature of Dev Kumar on letter dated 26.09.2018.
He was not cross examined despite opportunity.
State Vs. Amar Singh FIR No. 200/2017 /PS Sector 23 Dwarka Page No.5 of 9
(iv) PW-4 Retired SI Kamlesh Kumar deposed that on receiving DD No. 46-A regarding mobile snatching on 11/12.07.2017, he went to the spot alongwith Ct. Satish where the complainant / caller met them. He recorded his statement and sent Ct. Satish with ruqqa for registration of FIR. After registration of FIR, he prepared the site plan at the instance of complainant and recorded supplementary statement of complainant. He also sent CDR / IMEI search request form for tracing the mobile phone. On 14.07.2017, he handed the case file to MHC (R) as per SHO's directions.
He was not cross examined despite opportunity.
(v) PW-5 SI Gajraj (2nd IO) deposed that he received the case file on 27.07.2017 for further investigation. From the CDR of the snatched mobile phone, he contacted on mobile number 8588831372 and the caller revealed his name as Lalta Prasad. He went to the address of Lalta Prasad alongwith Ct. Heera Lal and made inquiries about the mobile phone. The witness was informed by Lalta Prasad that the accused had given him the mobile phone by saying that it belonged to him. Thereafter, Lalta Prasad took them to the house of accused and gave the mobile phone to accused. The accused could not produce any bill for mobile phone, after which he was interrogated and he disclosed regarding his involvement in the present case. Mobile phone was seized and accused was arrested. Thereafter, mobile phone was deposited in State Vs. Amar Singh FIR No. 200/2017 /PS Sector 23 Dwarka Page No.6 of 9 the maalkhana after which the present witness was transferred. The witness correctly identified the accused as well as the stolen mobile phone.
He was not cross examined despite opportunity.
(vi) PW-6 SI Suresh (3rd IO) received the present case file for further investigation on 30.06.2018. Thereafter, he sent notice for obtaining CDR of mobile number 8588831372. The said record was not available due to lapse of more than one year. Thereafter, he handed over case file to MHC (R).
He was not cross examined despite opportunity.
(vii) PW-7 HC Vinod (MHCM) proved entry number 2059 on 27.07.2017 regarding deposit of case property in maalkhana which was subsequently released on superdari to the complainant.
During cross examination, he deposed that he was not MHC (M) when the case property was deposited in the maalkhana and that he had not personal knowledge of the case.
10. It is pertinent to mention the recent judgment of Hon'ble Supreme Court in Criminal Appeal No. 1503 of 2022 (arising out of SLP (Crl.) No. 9141 of 2019) in Shiv Kumar Vs. State of M.P., where the essential ingredients of Section 411 IPC have been reiterated and affirmed. It has been observed that although recovery of stolen property is made, it is imperative for State Vs. Amar Singh FIR No. 200/2017 /PS Sector 23 Dwarka Page No.7 of 9 the prosecution to prove that the accused had positive knowledge that the goods were stolen property. Further, he should have retained the said stolen property dishonestly.
"Dishonestly" is defined under Section 24 of the IPC as, "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
It was further observed that "to establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable."
11. In the entire evidence led by prosecution, there is no whisper regarding knowledge/belief of accused that the mobile phone in question was stolen property and that accused was using the same while having knowledge of such fact. PW-5 SI Gajraj has in his testimony merely stated that he was informed by Lalta Prasad that accused gave him the mobile phone. There is no investigation done by the IO on the nature of inquiry from Lalta Prasad or any other witness to show that the accused retained or received the State Vs. Amar Singh FIR No. 200/2017 /PS Sector 23 Dwarka Page No.8 of 9 stolen mobile phone knowingly and dishonestly. No evidence has been led by the prosecution to prove the essential ingredient of Section 411 IPC, as discussed above.
12. In the absence of substantial incriminating evidence and no investigation qua knowledge/belief of accused that the mobile phone in question was stolen, the present case is a fit case where benefit of doubt should be given to the accused.
13. In view of the above discussion, I am of the view that prosecution has failed to prove the guilt of accused beyond reasonable doubt.
Accordingly, accused Amar Singh is acquitted for the offence under section 411 IPC. Digitally signed by SAMIKSHA GUPTA Pronounced in the open Court SAMIKSHA Date:
GUPTA on 31.01.2023 2023.01.31 15:35:51 +0530 SAMIKSHA GUPTA Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi 31.01.2023 State Vs. Amar Singh FIR No. 200/2017 /PS Sector 23 Dwarka Page No.9 of 9