Delhi District Court
State vs . Fardeen Khan on 28 March, 2023
IN THE COURT OF SH. SNEHIL SHARMA
METROPOLITAN MAGISTRATE (SOUTH-EAST) -08
SAKET COURTS : NEW DELHI
State Vs. Fardeen Khan
FIR No. : 578/2016
P. S. : Jamia Nagar
U/s : 411 IPC
A Sl. No. of the case : 5639/2017
B Date of commission : 10.09.2016
C Date of institution of the case : 06.12.2017
D Name of complainant : Arif Zishan
E Name of accused and his : Fadeen Khan, S/o Late Sh. Zafir
parentage. Ahmad, R/o House no. 940, Street
no. 4, Zakir Nagar, New Delhi.
F Offence complained of : 411 IPC.
G Plea of accused : Not guilty
H Orders reserved on : 28.02.2022
I Final order : Accused Fardeen Khan is
acquitted for the offence
punishable u/s 411 IPC.
J Date of judgment : 28.03.2023
JUDGMENT:-
1. Briefly stated, case of the prosecution is that on 10.09.2016, FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 1 of Page 15 from unknown place accused Fardeen Khan got recovered one mobile phone make Samsung belonging to complainant Arif Zishan which accused dishonestly received or retained knowing or having reason to believe that the same to be stolen property. Present FIR was registered on the basis of complaint given by the complainant. After completion of investigation, IO filed the chargesheet for offences punishable u/s 411 IPC.
2. Cognizance was taken in the present matter vide order dated 06.12.2017 and accused was summoned. After compliance of provisions of section 207 Cr.P.C., matter was fixed for consideration on charge. On the basis of material on record, charge u/s 411 IPC was framed upon the accused, to which he pleaded not guilty and claimed trial.
3. In order to establish its case against the accused, prosecution has examined 6 witnesses. PW1/Arif Zishan deposed that PW1 is residing at House no. P-143/5, Batla House, Near Rajdhani Tent House, Jamia Nagar, New Delhi. In year 2016, PW1 was residing at house no. R38, near Hari Masjid, Batla House, Jamia Nagar, New Delhi. On 21.06.2016, PW1 was sleeping in his room and two cell phone make LG Pro 2 and Samsung Guru, cash amount of Rs.45,000/-, debit card bank of India and of SBI, RC bearing no. DL 6SN 1954, PAN Card, Pen drive (having very important data of PW1's project), certain important documents, DL were missing from house of PW1. Thereafter, PW1 made a written complaint Ex. PW1/A bearing signature of PW1 at point A. Accused Fardeen FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 2 of Page 15 Khan, had taken away above said goods of PW1. PW1 had even chased him however he managed to escaped from there. Police prepared the site plan at instance of PW1, Ex.PW1/B.
4. PW1 identified accused. PW1 deposed that does not remember the IMEI number. Ld. APP for the State had put leading question on the aspect of IMEI no. to PW1 and PW1 deposed that it is correct that IMEI no. of PW1's LG phone is 352819061218415 and that IMEI no. of Samsung phone is 358800075107525 and 358800075107523 and PW1 correctly identified Mobile phone Ex.P1.
5. PW2/ ASI Dinesh deposed that on 21.06.2016, PW2 was posted as HC at PS Jamia Nagar, New Delhi. On that day PW2 received DD no. 44 A regarding house theft. PW2 along with Ct. Zuber went to the spot i.e. R 38, Batla House, Near Hari Masjid, and met the complainant. PW2 inquired the complainant who handed over complaint Ex.PW1/A and PW2 prepared the rukka Ex.PW 2/A bearing signatures of PW2 at point and sent Ct. Zuber for registration of FIR. After registration of FIR, IO / HC Narender along with Ct. Zuber reached the spot and PW2 was discharged by the IO.
6. PW2 was cross examined wherein PW2 deposed that PW2 was in the area of Jogabai Extension, Batla House when DD no. 44 A was received by PW2. PW2 was informed about the said DD telephonically. PW2 reached the spot at about 11.15 pm. PW2 only FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 3 of Page 15 met the complainant at his house. PW2 remained at the spot for around 30 minutes. PW2 had read over the complaint Ex.PW1/A. PW2 did not make any investigation from the neighbor of the complainant as the house of said neighbor was locked. PW2 did not record details of the said neighbor on whom complainant had raised suspicion. PW2 is not aware of size of house of complainant. PW2 did not make any site plan. IO/ HC Narender came to the spot at around 11.15 pm. Again said, he came to the spot at around 12.15 am. PW2 denied all suggestions put to him.
7. PW3/ Mohd. Alam, deposed that PW3 do not know anything about the present case. Ld. APP for the State was cross examined wherein PW3 is shown his statement u/s 161 Cr.P.C. Mark A and PW3 denies making the said statement in toto. PW3 admitted that PW3 is in a private job. PW3 denied all the suggestion put to him. PW3 also denied that PW3 have been won over by the accused and that is why PW3 deposing falsely. After specifically pointing out towards the accused, PW3 was asked, if he knows the accused pointed out is accused Fardeen Khan and the PW3 states that PW3 does not know the accused.
8. PW4/ASI Narender Kumar deposed that on 22.06.2016, PW4 was posted as ASI at PS Jamia Nagar, New Delhi. On that day, further investigation in this case was marked to PW4. PW4 went to the spot (New Hair, Batla House, Jamia Nagar, New Delhi) with Ct. Zahir Khan. PW4 met the complainant there and PW4 prepared site FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 4 of Page 15 plan already Ex.PW1/B bearing signatures of PW4 at point A at the instance of complainant. PW4 also recorded statement of complainant u/s 161 Cr.P.C. PW4 requested for surveillance of the mobile phone in question. PW4 was transferred from PS Jamia Nagar, New Delhi, thereafter.
9. PW4 was cross examined by Ld. Counsel for the accused wherein PW4 deposed that PW4 had given request for surveillance of mobile phone on 22.06.2016. PW4 does not remember the exact time. PW4 reached the spot at about 12 mid night. Besides complainant, some other persons were also present there. PW4 does not know their names. PW4 had not recorded their statements. PW4 had recorded statement of complainant only once. PW4 does not remember if PW4 had got signatures of complainant on the site plan. PW4 had not obtained signatures of any other person on statement of complainant. PW4 had not obtained signatures of complainant on his statement u/s 161 Cr.P.C. PW4 had written the said statement in his own handwriting. PW4 does not remember the time when PW4 left the spot.
10. PW5/HC Zubair Khan deposed that on 11.09.2016, PW5 was posted at PS Jamia Nagar as constable. On that day, PW5 joined the investigation with IO/HC Pappu Ram. On that day, accused Fardeen Khan along with his father came at PS and he handed over one mobile phone Samsung Dues to IO. IO seized the same vide seizure memo Ex.PW5/A, bearing signature of PW5 at point A. IO FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 5 of Page 15 also recorded disclosure statement of accused Fardeen vide memo Ex. PW5/B, bearing signature of PW5 at point A. IO also issued notice u/s 41 Cr.P.C. to accused Fardeen and also bounded him down. PW5 has correctly identified the accused and case property i.e., mobile phone Ex.P1. PW5 was cross examined wherein PW5 deposed that PW5 does not remember the time when Fardeen along with his father came at PS. PW5 do not remember if the father of the accused was present at the time of handing over the mobile phone but the accused was present at that time. PW5 denied all suggestions put to him. IO did not call the complainant for identification of the mobile phone in presence of PW5. PW5 admitted that PW5 had personally not verified the IMEI no. of aforesaid mobile phone and that after handing over the mobile phone the IO had sealed the same and that the complainant was not called in presence of PW5. PW5 do not remember if the IO had obtained the signature of the accused on seizure memo of mobile phone. PW5 denied all the suggestions put to him.
11. PW6/ ASI Pappu Ram deposed that the investigation of the present case was done by HC Dinesh Kumar which was later on handed over to HC Narender Kumar and after his transfer the case was marked to PW6 for further investigation. PW6 had put the stolen phone on surveillance. PW6 had also obtained the CAF of the SIM which was in the stolen phone of the complainant. The same is place on record Mark A. The CDR of SIM which was being used in the stolen phone is also on record Mark B (Colly-4 pages). The SIM FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 6 of Page 15 was in the name of friend of the accused. After the phone was traced they went to the house of Alam, who informed that the phone was being used by his friend accused Fardeen Khan. PW6 then went to the house of accused Fardeen Khan along with Ct. Zuber Khan. From there the stolen phone was recovered from the possession of the accused and same was seized by PW6 vide seizure memo Ex.PW 5/A bearing signatures of PW6 at point B. PW6 then recorded disclosure statement of the accused Ex.PW 5/B bearing signatures of PW6 at point B. PW6 had served notice u/s 41 A Cr.P.C. to the accused and released him on personal bonds. After the completion of investigation PW6 recorded statement of relevant witnesses and prepared the chargesheet. Same was filed by PW6 before the court. PW6 has correctly identified the accused and case property Ex.P1.
12. PW6 was cross examined wherein PW6 deposed that the complainant had told his phone was of make Samsung Guru Music. The mobile make mentioned in the seizure memo prepared by PW6 is Samsung Duls. PW6 denied suggestion that the stolen mobile phone as alleged by the complainant is not the same phone which was recovered from the accused. (Vol. PW6 had verified the IMEI Number which was same as stated by the complainant which is unique and the same matches with the phone recovered). The CDR pertains from period 07.01.2016 to 17.07.2016. PW6 had asked for CAF and CDR for the period of 01.07.2015 till date of request. PW6 do not know when the same was requested as same was filed FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 7 of Page 15 by HC Narender. PW6 admitted that as per CAF the SIM form was signed in 2015. PW6 had not taken mobile phone bill from the complainant. PW6 had got the mobile phone identified from the complainant and same was released to him on Superdari. PW6 had not recorded any statement of the complainant pertaining to the identification of the mobile phone. (Vol. Same is not required). PW6 admitted that PW6 had not prepared arrest memo of the accused. (Vol. PW6 had not arrested the accused and served him with notice u/s 41 A Cr.P.C.) PW6 denied all the suggestions put to him.
13. Statement of the accused under section 313 Cr.P.C. was recorded, wherein he deposed that he has been falsely implicated in the present case and that accused had purchased phone for Rs.400/- from unknown person. Accused was playing cricket in Ashoka Park when unknown person contacted accused. The stolen mobile phone was not recovered from possession of accused and recovered mobile phone is different from alleged stolen mobile phone. Accused did not lead any DE. Hence, opportunity to lead DE was closed vide order dated 02.01.2023. Hence, matter was listed for final arguments.
14. It has been argued by Ld. APP for the State that case of the prosecution has been fully proved as all the evidences are in line with the prosecution story. On the other hand, Ld. Counsel for accused has argued that accused has been falsely implicated in the present case and that there is contradiction in the testimony of FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 8 of Page 15 prosecution witnesses and the case property is planted upon the accused and he is bonafide.
15. I have heard Ld. APP for the State and Ld. Defence counsel for accused and considered the respective arguments as well as gone through case file very carefully.
16. Firstly, we want to discuss some basic principals governing criminal law. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the case is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
17. In Rishi Kesh Singh And Ors. vs The State, AIR 1970 All 51, 1970 CriLJ 132 it is reiterated that "It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt".
FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 9 of Page 15
18. From the facts in hand we found that PW1 has deposed that on 21.06.2016 he was sleeping in his room and accused Fardeen Khan had taken away his several documents, money and mobile. PW1 had chased him but accused managed to escape. Here PW1 has deposed that he was sleeping that articles were missing from his house and nowhere deposed that he had seen the accused inside the house or that accused was stealing the said articles or he was awake at the time when accused was committing the theft. It is also not deposed that he has seen the accused while committing the theft. Hence presence of accused is not admitted inside the house by the PW1.
19. PW1 has not deposed that what was the time whether it was day time, evening time or night time when he was sleeping. PW1 did not depose anything that how he came to know the name of the accused. PW1 did not depose anything that how accused managed to escape easily. Prosecution also could not bring any scientific examination like finger expert etc to show that accused has entered in the room of the complainant and has committed theft there.
20. PW2 has deposed that he did not record details of the neighbor on whom complainant had raised suspicion and house of the said neighbor was locked but PW1 has not deposed anything about suspicion on any of the neighbor. PW2 has failed to show any of the circumstances by which he ruled out the suspicion on the neighbor without the investigation. But PW4 has stated that some other person was also present there with complainant, however, he FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 10 of Page 15 does not know their name. Here PW2 and PW4 both are contradicting each other with respect to presence of independent witness at the spot and same could be cured by noting their names, however, same is not followed here. Even it is not explained by PW2 that which house was locked whether it was right side, left side, immediate left, below, above etc, and not a single PW deposed that the accused of this case is the neighbor of the complainant because the address mentioned in the chargesheet of the accused and complainant are of different location.
21. Perusal of testimony of PW3 has shown that he has turned hostile in toto and has not deposed anything and stated that he does not know the accused and present case.
22. Hon'ble supreme court has reiterated in Paulmeli v. State of Tamil Nadu: (2014) 13 SCC 90 that even the testimony of a hostile witness cannot be rejected in toto as the evidentiary value of his testimony is not lost and can be accepted to the extent that the version is found corroborated with other material evidence. It is a settled law that while appreciating the evidence the approach of the court must be integrated and not truncated or isolated and the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion as to the guilt of the accused, the court has to appreciate, analyze and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses.
FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 11 of Page 15
Further, a statement made by any prosecution witness under Section 161 Cr.P.C. is of utmost importance as the same can be used by the defence to contradict such witness with the earlier statement in order to test the credibility and truthfulness of such a witness. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. Here PW3 was the independent public witness who has failed to support the prosecution version and failed to identify the accused.
23. Moreover PW4 has deposed that besides complainant some other persons were also present there but their statement was not recorded. PW5 has deposed that accused along with his father came at the PS and handed over the mobile phone but PW6 has deposed that he went to the house of the accused along with PW5 and mobile was recovered from there after tracing the same through phone surveillance where CAF form is on the name of Alam and not the accused Fardeen Khan. It is also deposed by PW5 in cross examination that he does not remember if the father was present at the time of handing over the mobile phone which is a self contradictory statement. Additionally as per accused his father has expired in year 2012 which means that his father cannot accompany him in the police station. It is also submitted that IO has not called the complainant for identification of the mobile phone. But PW6 has deposed that he had got the mobile phone identified from the complainnant. Moreover PW6 has deposed that mobile phone mentioned in seizure memo is Samsung Duo while phone stolen FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 12 of Page 15 was Samsung Guru Music. However he deposed that the IMEI number is same.
24. Therefore, there are contradiction in the testimony of police witness and same could be cured by joining the independent witness. However, neither any independent witness is brought from the crime spot nor from the arrest spot. I also rely upon observations in case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, by Hon'ble High Court of Punjab & Haryana:
"...It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case". In the absence of any independent witness having been joined in the investigation, possibility of false implication of the accused by the police in the present case cannot be ruled out because the case was based upon the recovery and prosecution could not prove the place of the recovery and moreover no other goods as alleged by complainant is recovered from the possession of the accused. Even the recovery memo does not show the place of recovery.
25. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 13 of Page 15 drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Hence presence of the accused at the crime spot, arrest spot and recovery is not proved beyond reasonable doubt. Moreover accused has himself in statement u/s 313 Cr.P.C. stated that he had purchased said phone from some other person. Same is also reflected from his disclosure. By this way the accused has raised dispute over the title and argued that he has acquired the phone innocently from 3rd person. Also, it is not the case that accused has purchaed the costly phone in very minimal price, because as per argument the original cost of the phone was near Rs.1000/- and accused purchased being it to be 2 nd hand mobile phone.
26. Moreover how police reached to the conclusion that only accused Fardeen Khan used the phone instead of Alam on whose FIR No.578/2016 State Vs Fardeen Khan PS Jamia Nagar Page 14 of Page 15 name CAF form was submitted is also not explained. However it is the duty of the prosecution to bring the guilt of the accused at home and SA recorded u/s 313 Cr.P.C. is only a cementing evidence and cannot be sole basis of the conviction and cannot be at par with the confession.
27. In view of the above discussion, accused Fadeen Khan is hereby acquitted for the offence punishable u/s 411 IPC.
Digitally signed
SNEHIL by SNEHIL
SHARMA
SHARMA Date: 2023.03.28
14:39:18 +0530
Announced in the open (Snehil Sharma)
Court on 28.03.2023 MM-08, (SE) SAKET COURTS,
NEW DELHI
FIR No.578/2016 State Vs Fardeen Khan
PS Jamia Nagar Page 15 of Page 15