Delhi District Court
State vs . Usman & Anr. on 27 November, 2014
IN THE COURT OF SHRI SUNIL GUPTA, MM (NE)
KARKARDOOMA COURTS, DELHI
FIR No. : 09/10
U/s : 379/356/411/34 IPC
P.S : Seelampur
State Vs. Usman & Anr.
Unique Case ID No. 02402R0091172010
JUDGEMENT
1. Sl. No. of the case : 173/2011(RBT) 2. Date of institution of the case : 06.03.2010 3. Name of complainant : State 4. Date of commission of offence : 07.01.2010
5. Name of accused, parentage & address : 1) Usman @ Chhotu s/o Sh. Sagir r/o Jhuggi No.49, Wooden Market, Welcome, Delhi.
: 2) Hans Raj @ Sonu ( already convicted )
6. Offence complained of or proved : 411 IPC
7. Plea of accused : Accused pleaded not guilty
8. Final order : Convicted u/s 411 IPC : Acquitted u/s 356/379 IPC
9. Date of which order was reserved : 20.11.2014
10.Date of pronouncement : 27.11.2014 BRIEF REASONS FOR THE DECISION OF THE CASE
1. The case of the prosecution in brief is that on 07.01.2010 at about 2.30 pm at Seelampur bus stand, T-point, 66 Foota Road, Delhi, one boy used criminal force against the complainant Ms. Rekha and FIR No. 09/10 .. 1 of 14 snatched her mobile phone make Nokia bearing IMEI No. 358008033501066 which she was carrying in her hands at that time. The boy managed to flee away from the spot along with the mobile phone of the complainant. The present FIR was registered on the complaint of Ms. Rekha on 08.01.2010 for the offences under Section 379/356 IPC. During the course of investigation, on 09.01.2010, accused persons namely Hansraj @ Sonu and Usman @ Chhotu were apprehended on a secret information and disclosed about the commission of offence in question. The aforementioned stolen mobile was found in possession of accused Usman @ Chhotu. The accused were accordingly arrested and investigation was carried out further.
2. After the completion of investigation, the charge sheet against the accused persons Hansraj @ Sonu and Usman @ Chotu was filed on 06.03.2010. After supplying of documents, Ld. Predecessor vide order dated 05.04.2010 was pleased to frame a separate charge for the offences under Section 356/379 IPC & 411 IPC against the accused persons to which they pleaded not guilty and claimed trial.
3. To prove its case prosecution has examined as many as six witnesses in all.
FIR No. 09/10 .. 2 of 14 PW1 is W/Ct. Rekha, the complainant in the present matter. She has deposed as under :
" Date of incident was of 07.01.10. On the said date I was posted at PS Sonia Vihar as Wct. On aforesaid date I came to PS Seelampour to attend the lecture on terrorist and photos of terrorist was also shown to me and other three lady Cts. who attended the said lecture. When after attending the said lecture we aforesaid four lady Cts. were going to PS Sonia Vihar and at about 2.30 pm we were standing at Bus Stand, 66 futta road, T-Pt. and were waiting for the bus and when RTV came and we were boarding the aid RTV at the same time accused present today int eh court came from the side and at that time I was having one mobile phone i.e Nokia 2700 Classic bearing M.No. 9968396188 in the pocket of my jacket and the aid boy took out my said mobile phone from my jacket and when i tried to catch him and other lady ct. also tried to catch him but he fled away from the spot. The other lady Ct. who was along with me made phone call on 100 No. and police officials came at the spot and polie official from PS Seelampur also came and I did not give my statement to day I went to PS Seelampur and gave my statement which is Ex. PW1/A which bears my signature at pt. A. The aforesaid mobile phone was purchased by me in name of my fiance Pravav Kumar Mishra to gift him. The aforesaid mobile phone was later on recovered by the police officials and the aforesaid Pranav Kumar Mishra has taken the said phone on superdari. I can identify the aforesaid mobile phone if shown to me."
She has identified the case property i.e black color Nokia-2700 mobile phone ( same was produced by her only in the Court ). She FIR No. 09/10 .. 3 of 14 has correctly identified the accused Hans Raj as the person who had stolen the said mobile phone.
Ld. Defence Counsel has cross-examined this witness at length. PW2 is Ct. Omender. He is the recovery witness in this case. He has deposed as under :-
" On 09.01.2010, I was posted at PS Seelampur. On that day, I joined the investigation of this case with SI Fateh Singh and we both were present at Seelampur bus stand. At around 6.30 p.m., we apprehended two accused persons namely Hans Raj and Usman at the instance of secret informer. One stolen mobile phone of this case was recovered from accused Usman. Both of them were interrogated and they made disclosure that accused Hans Raj had snatched that mobile from a girl. Their disclosure statements are Ex.PW2/A and Ex.PW2/B, both bear my signatures at point A. Mobile phone was seized. Carbon copy of seizure memo is Ex.PW2/C which bears my signature at point A. Both the accused persons were arrested vide arrest memos Ex.PW2/D and Ex.PW2/E which bear my signatures at point A. Their personal search memos are Ex.PW2/F and Ex.PW2/G which bear my signatures at point A. My statement was recorded. Accused Usman is present in the court (correctly identified). I can identify the accused Hans Raj if shown to me (already convicted). Mobile phone is already exhibited as Ex.P1 in the statement of PW1 Rekha. Two photographs of mobile phone are Ex.PW2/H1 and Ex.PW2/H2 are shown to the witness and after going through the same witness submits that it is the same mobile phone which was recovered from accused Usman. (Identity of mobile phone is not disputed by Ld. Counsel for the accused as well as by the accused, FIR No. 09/10 .. 4 of 14 but they submit that nothing was recovered from the present accused).
PW3 is Ct. Devender. He has deposed that on 08.01.2010, the Duty Officer handed over me one rukka and copy of FIR to hand over the same to IO/SI Fateh Singh. He reached at at Seelampur, T-point, 66 foota road and handed over the same to SI Fateh Singh. Rought site plan was prepared. We tried to find out the accused, but no clue was found. He along with the IO/SI Fateh Singh and complainant returned to P.S. PW4 ASI Harbir Singh is the Duty Officer. He has deposed on 08.01.2010, he received one rukka from SI Fateh Singh in the PS. On the basis of rukka, he recorded the FIR No. 09/10. He has proved the copy of FIR as Ex PW4/A and his endorsement on the rukka Ex PW 4/B. PW5 is Ct. Mohd. Iqbal. He has deposed that on 07.01.2010, after receiving DD No. 19A, he along with SI Fateh Singh reached at Seelampur, T-point, 66 Foota Road, Bus Stand and met complainant Rekha. Rekha refused to give statement on the ground that she will visit the PS very soon. They tried to enquire public persons but no clue was found. They returned to PS. He has deposed that on next day, complainant Rekha came to PS and gave her statement. Rukka FIR No. 09/10 .. 5 of 14 was prepared and handed over to Duty Officer for registration of the case. Thereafter, he along with Rekha and IO Fateh Singh reached the spot and enquired. Ct. Devender also came there and handed over original rukka and copy of FIR to SI Fateh Singh. Rought site plan was prepared. No other clue was found. IO recorded his statement. Ld. Defence Counsel has cross-examined this witness.
PW6 is SI Fateh Singh, the IO of the case. He has supported the prosecution story and deposed more or less on the similar lines of prosecution witnesses. He has detailed about the steps taken by him during the course of investigation. He has proved the rukka Ex. PW6/A and rough site plan Ex. PW6/B. Ld. Defence Counsel has cross-examined this witness at length.
During the course of trial the accused Hans Raj @ Sonu pleaded guilty voluntarily and he was convicted accordingly by the Ld. Predecessor for the offences in question. He was sentenced to the period already undergone. He was also given the benefit of Section 428 Cr.P.C.
4. After conclusion of prosecution evidence, statement of accused Usman @ Chhotu was recorded under Section 313 Cr.P.C on 14.11.2014 wherein he pleaded his innocence and claimed that the FIR No. 09/10 .. 6 of 14 police officials has falsely planted the mobile phone on him. He also stated that he was never any mobile with him. However, he did not lead any evidence in his favor.
5. I have heard the arguments of Ld. APP for state and, Ld. Legal Aid Counsel for the accused and have perused the case file carefully.
6. The accused has been charged with for the offences under Section 356/379/411 IPC.
Section 356 IPC provides as under : Assault or criminal force in attempt to commit theft of property carried by a person. Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 379 IPC provides the punishment for the offence of theft defined under Section 378 IPC which provides as under: Section 378 IPC : Theft. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moved that property in order to such taking, is said to commit theft.
Ld. APP for the State has submitted that accused is liable to be FIR No. 09/10 .. 7 of 14 convicted for the offences under Section 356/379 IPC as the prosecution has proved its case beyond reasonable doubt. It has further been argued that accused has refused to participate in the TIP being conducted by the then Ld. MM and that in itself is sufficient to raise the presumption against the accused. On the other hand, Ld. Defence Counsel has submitted that the PW1/Complainant W/Ct. Rekha has deposed about there being only one boy when the incident in question took place. It has been further argued by Ld. Defence Counsel that boy was identified as co-accused Hans Raj, who has already been convicted on his voluntary plea of guilt. There is nothing on record that there was another boy with the co-accused Hans Raj when the alleged theft took place. Ld. Counsel for the accused has also argued that refusal to participate in the TIP is not sufficient to convict the accused for the offences under Section 356/379IPC.
Perusal of the testimony of PW1 W/Ct. Rekha shows that as per the complainant, she along with four lady constables was standing at Bus Stand, 66 foota road, T-point waiting for the bus and at that time the accused ( present in the court during the testimony ) came from the side. He took away the mobile phone of W/Ct. Rekha when she FIR No. 09/10 .. 8 of 14 was putting the same in her pocket and fled away from there. She has not stated about there being any other boy present on the spot involved in the offence in question along with the boy who so committed the offence. She has identified the accused Hans Raj as the offender who has stolen her mobile phone. It is correct that the accused herein ( Usman @ Chhotu ) along with the accused Hans Raj had refused to participate in the TIP but in view of the Court that refusal is not sufficient to relieve the burden on the prosecution to prove its case beyond reasonable doubt. It is also to be seen that the TIP proceedings in question dated 20.01.2010 has not been proved by the prosecution. It is settled law that the prosecution is to stand on its own legs and the presumptions cannot replace the positive evidence as required to prove a particular offence.
Considering the testimony of PW1 W/Ct. Rekha which speaks about there being one boy involved in the incident coupled with the fact that co-accused Hans Raj was identified as the boy who committed the theft, this Court is of the view that the evidence on record is insufficient to prove the offences under Section 356/379 IPC against the accused Usman @ Chhotu. He, accordingly, stands acquitted for the said offences.
FIR No. 09/10 .. 9 of 14 As far as the offence under Section 411 IPC is concerned, it would be in the fitness of things to lay down the legal provision as contained in the IPC, which provides as under :-
Section 411 IPC Dishonestly receiving stolen property Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. It has been argued by Ld. Defence Counsel that no public witness has been joined by the police while making the alleged recovery. He has also submitted that as per PW2 Ct. Omender, the spot of recovery was a public place and several public persons were passing through it. It has been submitted that nonjoining of public witness despite the fact that they were available on the spot in itself makes the alleged recovery doubtful. It has further been submitted that the alleged recovery should not be believed by the court merely on the basis of testimonies of two police witnesses.
In view of the Court, it is settled law that the police officials are also competent witnesses like any other witness. In Karamjit Singh v. State(AIR 2003 SC 1311), the Hon'ble Supreme Court has held that :
FIR No. 09/10 .. 10 of 14 "The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds'.
The Apex Court reiterated the above position in a case titled as Girija Prasad v. State of MP(AIR 2007 SC 3106) and held that, "It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced tat what was stated by a witness has a ring of truth, conviction can be based on such evidence'.
So, the argument that no independent witnesses has been joined FIR No. 09/10 .. 11 of 14 by the police and this fact in itself vitiates the case of the prosecution, is unfounded and devoid of merits.
It has further been argued that the alleged recovery of mobile phone has not been properly connected with the facts in hand. It has also been argued that the possibility that some other mobile phone has been planted on the accused herein cannot be ruled out.
It is to be seen that the mobile phone in question has been duly mentioned in the FIR as mobile Nokia no. 9968396188 and IMEI No. 358008033501066. Same mobile phone has been recovered by the police officials from the possession of the accused Usman @ Chhotu and the seizure memo to this effect Ex. PW2/C is on record. It is correct that the IMEI no. of the recovered mobile phone has been mentioned in the seizure memo 358008033501060 instead of 358008033501066 but that seems to be an inadvertent mistake because the mobile was released to Mr. Pranav Kumar Mishra ( fiance of PW1 and owner of the mobile ) on superdari by Ld. Predecessor vide order dated 28.01.2010. The photocopy of the bill is on record. The application for release of the same on superdari contains the IMEI No. 358008033501066. The photocopy of the bill also contains this IMEI No. only. The photographs of the mobile are also on record FIR No. 09/10 .. 12 of 14 from which the IMEI No. is clearly deducible as 358008033501066. Ld. Defence Counsel has put the suggestion to the recovery witness i.e PW2 Ct. Omender that this a common mobile and this types of model are easily available in the market, and this suggestion has been admitted by him but it is to be seen that the mobile phones are distinguishable from the IMEI No. and in this case the recovered mobile phone corresponds to the specifications as mentioned in the FIR in question.
The alleged incident took place on 07.01.2010 and the recovery is stated as having been effected on 08.01.2010. There is a presumption as contained in Section 114, illustration (a) of Indian Evidence Act, 1872 which provides as under :
" The Court may presume
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession."
In view of this presumption, it was for the accused Usman @ Chhotu to explain as to how he came into possession of the mobile phone in question but in his statement under Section 313 Cr.P.C, he has merely stated that the mobile has been planted on him and he has FIR No. 09/10 .. 13 of 14 never kept a mobile. This explanation is quite vague and general in nature, and in the absence of any other material brought on record by the accused, same is of no help to the defence of the accused.
7. Considering the above discussion, this Court is of the view that prosecution has proved its case beyond reasonable doubt, hence accused namely Usman @ Chhotu is held guilty and convicted for the offence under section 411 Indian Penal Code.
To come up for arguments/order on point of sentence on 03.12.2014.
Dictated & Announced in the open Court on 27.11.2014 ( SUNIL GUPTA ) METROPOLITAN MAGISTRATE(NE) KKD COURTS, SHAHDARA, DELHI FIR No. 09/10 .. 14 of 14