Delhi District Court
3. Title Of The Case : State vs . Kishore on 15 May, 2012
IN THE COURT OF SH. MANISH YADUVANSHI: ACMM-01 (CENTRAL):
TIS HAZARI COURTS, DELHI.
1. Case No : : 0254/P/08
2. Unique I.D. No. : 02401R1045122005
3. Title of the Case : State Vs. Kishore
FIR NO: 399/04
PS : PAHAR GANJ
U/S: 411 IPC
4. Date of Institution : 07.04.2006
5. Date of reserving judgment : 15-05-2012
6. Date of Pronouncement : 15-05-2012
JUDGEMENT :
a) The Sl. No. of the case : 0254/P/08
b) The date of commission of offence : 08.12.2004
c) The name of complainant : Smt. Bimla Tiwari
W/o Sh. Vishambhar Dutt Tiwari
R/o 2205/5, Chuna Mandi, Paharganj,
New Delhi
d) The Name of Accused : Kishore S/o Sh. Umesh Sharma
R/o T-517, D-19, Hil Marg, Baljeet Nagar,
Delhi
e) The offence complained of : U/s 411 IPC
f) The plea of accused : Pleaded not guilty.
g) The final order : Acquitted
h) The date of such order : 15-05-2012
i) Brief facts of the decision of the case: -
FIR No. 399 of 2004 State Vs Kishore Page No. 1 of 7
1. The facts of the prosecution's case are that, on 09.08.2004, Smt. Vimla Tiwari, Complainant/PW-2 came to the Police Station - Paharganj submitting that on 07.08.2004, she was traveling on a bus route No. 753 at about 01.30 PM from Pusa Road to Paharganj in order to reach her residence. She alighted from the bus at MM Chambry in order to proceed towards Mata Mandir and as she alighted from the bus, she noticed that from her bag, one mobile phone make Nokia 1100 having SIM Card connection No. 9899275544 with IMEI No. 352524002382003, one digital diary, cash amount of Rs. 1200/-, one list of IC Centre for Government and sample diary were missing. Statement of the complainant was recorded in the Police Station upon which an FIR (Ex.PW-1/A) was registered. The investigation was handed over to SI R.D.Singh (PW-5) who started investigation and made search of the accused, however, no break-through was achieved. During investigation, IO prepared the site plan (Ex. PW-5/A) at the instance of PW-2.
Subsequently, on 08.12.2004, one SI Antariksh Alok (PW-6) received a secret information regarding the stolen mobile phone from the area of PS Paharganj and he shared this secret information with the IO of this case. Upon receipt of this information, police party comprising of PW-2, PW-6, IO (PW-5) and one Ct. Sanjeev Kumar (PW-4) as well as secret informer reached DBG Road where at the instance of the secret informer, the accused was over powered and on his personal search, one mobile phone was recovered from the right side trouser's pocket of the accused. On investigation, the accused revealed that he had purchased this mobile phone from one passerby at New Delhi Railway Station for a sum of Rs. 500/-. After finding that the aforesaid mobile phone was embossed with IMEI No. 352524002382003 with the SIM Card mobile No. 9810877549, the police party arrested the accused vide arrest memo (Ex. PW-5/B), his personal search was also done vide search memo (Ex. PW-6/A), and mobile phone was seized through seizure memo (Ex. PW-5/A). After conclusion of investigation, charge sheet was filed in the court for commission of offence punishable U/s 411 IPC.
2. On the basis of record, a charge for commission of offence punishable U/s 411 IPC was read out to the accused on 20.02.2007 who pleaded not guilty and claimed trial. Copy of the FIR No. 399 of 2004 State Vs Kishore Page No. 2 of 7 charge sheet was supplied to the accused.
3. The prosecution had furnished list of 9 witnesses including the MHC(M). Out of these witnesses, only 6 PWs were examined. HC Rajender Singh, Smt. Bimla Tiwari (Complainant), Sh. Anuj Bhatia (Nodal Officer, Vodafone ESSAR Mobile Services Ltd.), Ct. Sanjeev Kumar, SI R.D.Singh, SI Antariksh Alok were examined as PW-1, PW-2, PW-3, PW-4, PW-5 & PW-6 respectively. The prosecution did not examine the concerned Nodal Officer, Bharti Cellular Co. to prove the mobile bills of the mobile No. 9810877549. The prosecution also failed to examine one Sumit Sharma towards proof of copy of invoice of purchase of stolen mobile phone which was produced by PW-2 which is marked as 'A'.
4. PW-1 HC Rajender Singh proved copy of FIR (Ex.PW-1/A). PW-2/complainant deposed about the theft of stolen mobile phone from her bag and produced copy of mobile bill which is marked as 'A'. Sh. Anuj Bhatia, Nodal Officer, Vodafone Essar Mobile Services Ltd. produced ownership record of mobile No. 9899275544 submitting that the said connection number was a postpaid connection and later on the aforesaid mobile number was transferred to prepaid connection vide copy of application forms number (Ex.PW3/A & B respectively). The mobile phone aforesaid was issued in the name of the complainant. However, it is observed that the details of IMEI number in respect of mobile phone in which the said connection was being used is not provided in the both Exhibits.
5. PW-4 Ct. Sanjeev Kumar deposed regarding recovery of the stolen mobile phone from the right side trouser's pocket of the accused. PW-5 who is the IO also appeared in the witness box and proved site plan (Ex. PW-5/A) and deposed in respect of the investigation conducted by him and identified stolen mobile phone (Ex.P-1). SI Ankariksh (PW-6) also appeared in the witness box and deposed that the accused was apprehended by him and on his personal search, one mobile phone make Nokia 1100 was recovered from the possession of the accused. As stated earlier, two PWs were never examined.
FIR No. 399 of 2004 State Vs Kishore Page No. 3 of 7
6. The incriminating evidence against the accused was read out to him in his statement U/s 313 Cr.P.C. The accused claimed false implication. Despite option, no evidence was adduced by the defence.
7. I have heard the Ld. APP for State and Sh. V.K.Bajaj, Ld. Counsel for accused. Ld. Counsel for the accused vehemently argued that the prosecution has been unable to produce the original ownership proof of the stolen mobile phone i.e., mark 'X'. The defence has also argued that in the cross examination, PW-5 admitted that he has not made any inquiry regarding IMEI number and the number given in mark 'A' i.e, photocopy of the bill. It is argued that the IO admitted that the IMEI number of stolen mobile phone (Ex.P-1) is 352524002382003 whereas the IMEI number given by the service provider i.e., Bharti Tele Ventures Ltd. is different as 352524002382000. Further, it is argued that in the cross examination of PW-6, he has admitted that he had a list of stolen mobile phones alongwith IMEI numbers of said phones. It is also admitted by the said PW that he had never mentioned the fact that he had not written IMEI number in Ex. PW-5/A after comparing with the list of stolen mobile phones numbers. Further, the witness could not say whether the IMEI number as mentioned in his seizure memo (Ex.PW-5/A) was mentioned in the call details of mobile No.9810877549. Ld. Counsel for accused also argued that the observations of the Hon'ble Sessions Court with regard to IMEI number in order dated 30.05.2007 passed in Criminal Revision 44/07 will not be the final expression on merits of this case as at the relevant time, prosecution was yet to lead its evidence. Conversely, Ld. APP for State has argued that the mere fact that the correct IMEI number is mentioned in the FIR, photocopy of bill Mark as 'A' and the seizure memo (Ex.PW-5/A) is sufficient in order to say that the mobile phone indeed belongs to the complainant and that it was recovered from the possession of the accused. In support of his contention, Ld. APP for State has relied upon observations of the Hon'ble High Court of Delhi in para 39 and 40 of judgement titled "Gajraj Vs State" reported in Manu/DE/1074/2009.
8. I have considered the rivals submissions in the light of the material in hand. The only FIR No. 399 of 2004 State Vs Kishore Page No. 4 of 7 charge against the accused is for retaining stolen property knowing or having reason to believe the same to be the stolen property. There is a long time gap between the alleged theft and the recovery of the stolen mobile phone. Therefore, presumption appended to section 411 Cr.P.C can not be applied to the facts of this case.
9. In the instant case, the original proof of purchase which is marked as 'X' has not seen the light of the day. No reason is on record as to what became of the original thereto. The concerned witness in this regard enlisted in S.No.9 of the list of witnesses has not been examined. The said witness could have deposed the fact that he had sold the mobile phone bearing IMEI No. 352524002382003 to the complainant of this case by proving the photocopy of the bill mark 'A'. Apart from the aforestated, there is no ownership proof of the stolen mobile phone aforesaid. Even furthermore, the prosecution remained lax in not producing the case property Ex. P-1 to the PW-2 at the time of recording of her examination in chief in this court. Thus, there is no formal proof of ownership of the stolen mobile phone. At best, the investigating agency has established ownership of the mobile phone number 9899275544 by examining PW-3 in the wake of Ex. PW-3/A & B respectively. The aspect of indicating the recovery of the stolen property (Ex. P-1) as that of article actually stolen can be therefore established only by relating the IMEI number of the mobile phone aforesaid as provided in the bill Mark 'X', in the FIR and in the seizure memo (Ex.PW-5/A).
10. As stated earlier, all the above three documents are referring to IMEI No. 352524002382003. At the relevant time, it was found to be operated on SIM Card mobile No. 9810877549. It is also observed that the SIM card details of the aforesaid mobile number for the period from 11.01.2004 to 08.12.2004 are on record, however, not duly proved. The said details are referring to the IMEI No.352524002382000. Thus, there is a difference in the co- relation of two IMEI numbers and it was for the prosecution to have established firstly, that the IO had physically verified the IMEI number of Ex. P-1 and secondly, to have actually proved the mobile phone details of the mobile phone No. 9810877549. This is not the case here.
FIR No. 399 of 2004 State Vs Kishore Page No. 5 of 7
11. The aspect aforesaid was taken up by the Hon'ble Sessions Courts in its order dated 30.05.2007. Perusal of the aforesaid order indicates that the Hon'ble Court was of the opinion that IMEI No.352524002382000 & 352524002382003 were two distinctive numbers and the prepaid connection in possession of the accused could have been used on any mobile phone. Subsequent to the passing of the aforesaid order, the prosecution had concluded its evidence and it is in arguments of the APP for the State that the call record of mobile phone number 9810877549 and the concurrent admission in this regard by PW-5 to the effect that the actual IMEI number is 352524002382003 whereas the number provided by the service provider is 352524002382000, is to my mind of extreme importance in order to correlate the recovered mobile phone with the stolen mobile phone.
12. In the instant case, no clarification has been provided by the IO/PW-5 as to why change of one digit was found in both IMEI Numbers. In this regard, I have also referred to the judgement of Gajraj's case (supra). In the instant case, a similar position had arisen wherein there was a difference in the last digit of the IMEI number as noted down in the call details and as embossed on the recovered stolen mobile phone. The said factum was explained to the Hon'ble Court by one PW-78 who was computer engineer working as Manager, SEIMENS. The Hon'ble Court had relied upon the case titled "State (NCT of Delhi) Vs Navjeot Sandhu"
reported in 2005 CLJ 3950.
13. Thus, in the field of mobile telephony, the last one digit of the IMEI Number is considered as a spare digit and this digit, according to GSM specifications should be transmitted by the mobile phone as '0'. Same is the case here. Thus, the discrepancy with respect of the last digit of the IMEI number is of no consequence. However, it was for the prosecution to have conclusively proved that the stolen mobile phone was the recovered phone. In the instant case, mobile phone of same make which was stolen was recovered from the possession of the accused. According to the accused, he had purchased this phone from a passerby at New Delhi Railway Station. The prosecution has not proved original purchase bill of this mobile phone. The complainant has not identified the mobile phone aforesaid in the FIR No. 399 of 2004 State Vs Kishore Page No. 6 of 7 court or in the judicial TIP. There is nothing in the case of the prosecution in order to establish that the accused had dishonestly received the stolen property (Ex. P-1) knowing or having reason to believe that the same was the stolen property.
14. Thus, without any indicia to this effect, any imputation of dishonest intention on the part of the accused would be unjustified.
15. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997(3) Crime 55 the Punjab & Harayana High Court wherein it was observed as under:-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go the accused".
16. Having regard to the aforesaid discussion, it is held that the prosecution has been unable to prove its case against the accused beyond all reasonable doubts and therefore the accused is accordingly acquitted of the charge U/s 411 IPC. His Personal Bond/Surety Bond is extended in compliance of Section 437-A Cr.P.C.
File be consigned to Record Room.
Announced in the open court on 15th May 2012. (MANISH YADUVANSHI) ACMM (CENTRAL-01):DELHI It is certified that this judgment contains 07 (Seven) pages and each page bears my signatures.
(MANISH YADUVANSHI)
ACMM (CENTRAL-01)-1) : DELHI
FIR No. 399 of 2004 State Vs Kishore Page No. 7 of 7