Delhi District Court
State vs . Muninder & Anr on 3 November, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. MUNINDER & ANR
FIR No. 120/10
U/s : 356/379/411/34 IPC
P.S. : Malviya Nagar
Date of Institution : 10.08.2010
Date on which case reserved for Judgment : 30.10.2018
Date of judgment : 03.11.2018
JUDGMENT
1.FIR No. of the case : 120/10
2.Date of the Commission : 22.03.2010
of the offence
3.Name of the accused : 1. Sunil Dutta @ Sunny,
: S/o Sh. Surender Dutta,
: R/o H. No. K1/113,
: Mohan Garden, Uttam Nagar, UP.
: 2. Muninder
: S/o Sh. Om Pal,
: R/o H. No. R/266,
: Ward No. 2, Mehrauli,
: New Delhi.
4.Name of the complainant : Sh. Punit Mongia,
: S/o Sh. Harish Mongia,
: R/o H. No. C113, MMTC Colony,
: Malviya Nagar, New Delhi.
5.Offence complained of : U/s 356/379/411/34 IPC and Section 174A
: IPC.
6.Plea of accused : Pleaded not guilty
FIR No. 120/10 State Vs. Muninder and Anr. 1/8
7.Final order : Accused persons acquitted for the offences
: U/s 356/379/411/34 IPC and the accused
: Sunil Dutta@ Sunny convicted for the
: offence U/s 174A IPC.
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 22.03.2010 at about 09:40 am at MMTC Road near Community Center, Malviya Nagar, New Delhi within the jurisdiction of PS Malviya Nagar, accused persons Sunil Dutta@Sunny and Muninder in furtherance of their common intention snatched and committed the theft of one mobile phone belonging to complainant Puneet Mongia and same was recovered from the possession of the accused persons which they had retained knowingly or having reasons to believe the same to be stolen property and thus the accused persons committed the offences punishable U/s 356/379/411/34 IPC.
2. FIR No. 120/10 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under sections 356/379/411/34 IPC was filed before the court on 10.08.2010.
4. On the basis of prima facie material available on the record charge for the offences punishable under sections 356/379/411/34 IPC was framed against the accused persons Sunil Dutta@Sunny and Muninder to which the accused persons pleaded not guilty and claimed trial on 19.07.2013 and an additional charge U/s 17A IPC was framed against the accused Sunil Dutta @ Sunny to which the accused pleaded not guilty and claimed trial on 04.04.2018.
FIR No. 120/10 State Vs. Muninder and Anr. 2/8
THE TRIAL PROCEEDINGS:
5. In order to establish its case, the prosecution has examined eleven witnesses.
a) PW1 was the complainant Sh. Puneet Mongia who deposed about the incident. He exhibited his complaint as Ex. PW1/A.
b) PW2 was the Investigating Officer (IO) of the FIR bearing No. 174/10, PS Malviya Nagar namely SI Prem Singh.
c) PW3 was HC Pawan. He exhibited the arrest memo and disclosure statement of accused Sunil Dutta@Sunny as Ex. PW3/A and Ex. PW3/B respectively.
d) PW4 was HC Shishupal who accompanied the IO to the spot.
e) PW5 was the Duty Officer (DO) namely ASI Sudhir Kumar who received the rukka and got the FIR lodged. He exhibited the FIR as Ex. PW5/A, his endorsement on the rukka as Ex. PW5/B and copy of roznamcha as Ex. PW5/C.
f) PW6 was HC Umesh Kumar. He exhibited the arrest memo of accused Muninder as Ex. PW6/A.
g) PW7 was the IO of the present case Retired SI Shri Ram. He exhibited the site plan as Ex. PW7/A and disclosure statements of the accused persons as Ex. PW7/B and Ex. PW7/C respectively.
h) PW8 was Ct. Sumit the process server who was entrusted with process U/s 82 Cr.P.C. qua the accused Sunil Dutta@Sunny.
i) PW9 was HC Rakesh. He exhibited the arrest memo of accused Sunil Dutta as Ex. PW9/A and DD No. 4A as Ex. PW9/B.
j) PW10 and PW11 were HC Yashpal Singh and ASI Devender Singh.
PW11 has exhibited the arrest memo of Sunil Dutta as Ex. PW11/A.
6. Accused persons admitted the factum of recording of their TIP FIR No. 120/10 State Vs. Muninder and Anr. 3/8 proceedings U/s 294 Cr.P.C. on 04.04.2018 and same were exhibited as Ex. X1 and Ex. X2.
7. Prosecution evidence was closed on 13.09.2018. After conclusion of prosecution evidence, the statements of accused persons Sunil Dutta and Muninder (SA) under section 313 r/w section 281 Cr.P.C were recorded on 22.09.2018. Accused Muninder did not seek to lead defence evidence (DE). The accused Sunil Dutta submitted in SA that he wanted to lead DE. However no DE was led by the accused Sunil Dutta and he closed DE on 03.10.2018.
FINAL ARGUMENTS:
8. Upon conclusion of trial, final arguments were advanced by Ld. APP for the State and Ld. counsel for the accused persons. I have heard the arguments and perused the record.
REASONS FOR DECISION:
9. The prosecution's sole eye witness regarding the alleged offence of snatching of the mobile phone and theft thereof was the complainant Sh. Puneet Mongia. No other eye witness of the incident was cited or examined by the prosecution. The testimony of the complainant/PW1 Sh. Puneet Mongia was thus the foundation of the prosecution's case against the accused persons. Although the complainant narrated in evidence about the alleged incident of snatching of his mobile phone by two boys on a scooter and testified that the boy who snatched his mobile phone was of dusty complexion however he failed to identify the accused persons as the assailants. The complainant/PW1 could not identify the accused persons even when Ld. APP for the State while cross examining the complainant/PW1 Sh. Puneet Mongia on this aspect pointed out the accused persons to the witness. The complainant/PW1 denied the suggestions that he had been won FIR No. 120/10 State Vs. Muninder and Anr. 4/8 over by the accused persons or that he was intentionally not identifying them.
10. Furthermore, the complainant/PW1 did not produce the case property i.e. mobile phone in question in the court during trial nor even are the photographs thereof filed on the record. PW1 Sh. Puneet Mongia merely deposed that the mobile phone was used by him and thereafter it was destroyed/disposed off. He did not even mention the make or model number of the mobile phone only mentioning his mobile number. Pertinently, the IO Retired SI Shri Ram/PW7 in his cross examination testified that he did not remember whether he had asked about the invoice of the stolen mobile phone from the complainant and conceded that the invoice of the stolen mobile phone was not placed in the judicial file. PW7 Retd. SI Shri Ram denied the suggestion that the complainant was not the owner of the stolen mobile phone therefore he did not collect the invoice from the complainant. However, in absence of the mobile phone in question being produced during the trial, photographs of the mobile phone not being filed and even the invoice not being collected and adduced in evidence the ownership of the complainant/PW1 over the mobile phone in question does not stand proved. Even the original seizure memo of the mobile phone in question is not on record and the photocopy was marked as Mark A which cannot be said to be validly proved. This is another major defect in the prosecution's case.
11. Next coming to the aspect of the purported recovery proceedings, PW2 SI Prem Singh testified that he went to the house of the accused Sunil Dutta alongwith HC Sanjeev, Ct. Amit and the accused Sunil Dutta where the accused gave one mobile phone make Samsung model no. CE0168 to him. The prosecution has not cited Ct. Amit as a witness in the list of witnesses nor even does the copy of the seizure memo Mark A bear the signatures of Ct. Amit as a witness thereto.
12. Moreover, PW2 SI Prem Singh deposed in chief examination that on FIR No. 120/10 State Vs. Muninder and Anr. 5/8 returning to the police station he recorded the statement of HC Sanjeev but failed to depose that the statement of Ct. Amit was also recorded by him. The IO of the present case PW7/Retired SI Shri Ram also apparently did not choose to record the statement of Ct. Amit U/s 161 Cr.P.C. It is thus doubtful as to whether at all Ct. Amit was a part of the alleged recovery proceedings.
13. Additionally, PW2 SI Prem Singh did not specify in his chief examination that it was in pursuance to the disclosure statement of the accused Sunil Dutta that the recovery was effected from the house of the accused Sunil Dutta. The copy of the disclosure statement of the accused Sunil Dutta purportedly recorded by SI Prem Singh was not sought to be exhibited through SI Prem Singh by the prosecution. Therefore, the fact that it was in pursuance to the confession/disclosure statement of the accused Sunil Dutta that the recovery of the mobile phone in question is also not proved as per law.
14. PW2 SI Prem Singh testified in crossexamination that he did not prepare the site plan of the alleged place of recovery.
15. Further, PW2 SI Prem Singh admitted in his crossexamination that the recovery place was a crowded and residential place yet apparently no efforts to join any public witness to the recovery proceedings were made by him. Although non joining of public witnesses to the recovery proceedings is not of itself fatal to the prosecution's case however in view of the shaky testimony of PW2 SI Prem Singh, it does become another factor compounding the doubt over the prosecution's case regarding the recovery proceedings.
16. In so far as the accused Muninder is concerned, admittedly no recovery was effected from him nor at his instance therefore there is nothing on record to connect the accused Muninder with the offence punishable U/s 411 IPC.
17. The prosecution has failed to establish the guilt of the accused person FIR No. 120/10 State Vs. Muninder and Anr. 6/8 for the offence U/ 411 IPC and the charge for the offences U/s 356/379 IPC against the accused persons also fails completely as the complainant could not even identify the accused persons as the assailants. The accused persons are bound to be acquitted for the offences U/s 379/356/411/34 IPC due to lack of cogent evidence against them.
18. However, in so far as the offence U/s 174A IPC is concerned, the accused Sunil Dutta@ Sunny took the plea in SA that he had changed his address and did not have any information about the court date. He conceded in SA that he did not inform about his fresh address in the Court.
19. The accused Sunil Dutta had entered appearance in person after the summoning order was passed in the present case and participated in the proceedings till 04.02.2012. Thus it is not as if that the accused was not aware about the pendency of the present case. As he did not appear on the next date of hearing fixed after 04.02.2012 i.e. on 18.04.2012 the nonbailable warrants were issued against him and consequently the process U/s 82 Cr.P.C. came to be issued against him.
20. During trial, PW8 Ct. Sumit the process server deposed about the execution of the process U/s 82 Cr.P.C. against the accused Sunil Dutta@Sunny and proved his report as Ex. PW1/1. The fact that statements of public witnesses were not recorded by the process server/PW8 does not invalidate the execution of the process as Section 82 Cr.P.C. does not make it a mandatory requirement for the statements of the witnesses to be recorded nor did the order dated 30.06.2012 passed in the present case vide which the process was ordered to be issued make it a necessary requirement of the process that the statements of public witnesses be recorded.
21. The Court after being satisfied that the accused had absconded and was not traceable, had declared the accused as an absconder on 18.12.2012. Nothing FIR No. 120/10 State Vs. Muninder and Anr. 7/8 favourable to the defence of the accused Sunil@ Dutta@Sunny was elicited in the crossexamination of PW8 Ct. Sumit. The witnesses to the kalandara U/s 41.1(C) Cr.P.C. vide which the accused Sunil Dutta@Sunny was arrested i.e. PW9 HC Rakesh, PW10 HC Yashpal and the IO PW11 ASI Devender Singh corroborated each other on the aspect of the place and manner of arrest of the accused Sunil Duta@Sunny and their testimonies went unrebutted as the accused did not choose to crossexamine them.
22. From the testimonies of the process server PW8 Ct. Sumit and the witnesses to the kalandara the guilt of the accused Sunil Dutta@Sunny for the offence punishable U/s 174A IPC i.e. nonappearance in response to a proclamation U/s 82 Cr.P.C. is proved beyond reasonable doubt and the accused could not give any valid justification for his failure to appear in the Court despite the issuance of the proclamation therefore the accused Sunil Dutta@ Sunny is convicted for the offence U/s 174 IPC.
23. Consequent to the above discussion the accused persons are acquitted for the offences U/s 356/379/411/34 IPC and the accused Sunil Dutta@ Sunny is convicted for the offence U/s 174A IPC. Digitally signed by ANJANI MAHAJAN ANJANI Date:
MAHAJAN 2018.11.05
11:49:34
+0530
Announced in the Court (ANJANI MAHAJAN)
on 03.11.2018 MM02(SD)/03.11.2018
Certified that this judgment contains 8 pages and each page bears my signatures.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date:
2018.11.05
11:49:42 +0530
(ANJANI MAHAJAN)
MM02(SD)/03.11.2018
FIR No. 120/10 State Vs. Muninder and Anr. 8/8