Delhi District Court
State vs . : Ankush Bhatti Etc. on 1 December, 2014
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, NEW DELHI
FIR No. : 62/13
U/s : 380/34 IPC
PS : K. M. Pur
State Vs. : Ankush Bhatti etc.
JUDGMENT
a The Sl. No. of the case : 21/1/14
b The date of commission : 06.02.2013
c The date of Institution of the case : 18.05.2013
d The name of complainant : Kinshuk Sobti
e The name of accused : (1) Ankush Bhatti S/o Sh. Sunil
Verma R/o H No. 132, Kartar
Nagar, Ludiyana, Punjab.
(2) Rita Verma w/o Sh. Sunil
Verma R/o H No. 132, Kartar
Nagar, Ludiyana, Punjab.
f The offence complained of : 380/34 IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 01.12.2014
i The final order : Acquitted
j The date of judgment : 01.12.2014
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The aforesaid accused persons have been sent for trial on the allegations that on 06.02.2013 between 6 pm to 7 pm at Tanishq Showroom, G16, South Extension PartI, New Delhi within the jurisdiction of P.S. both the aforesaid accused in furtherance of their common intention committed theft of one diamond FIR No. 62/13 1 of 8 ring and thus thereby committed offence punishable u/s 380/34 IPC. Investigation was conducted and charge sheet was filed in the court on 18.05.2013.
2. Charge u/s 380/34 IPC was framed upon both the accused on 23.07.2013 to which they pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution has examined nine witnesses.
PW1 is Kinshuk Sobti, who is complainant in the present case and has deposed that he was working as Store Manger at Tanishq, South Extension, PartI and on 23.03.2013 during regular stock audit found a fake diamond finger ring in the stock tray and thereafter on 07.03.2013 on seeing CCTV footage found that mother and son i.e. both accused in the present case, came to the abovesaid showroom and inquired for diamond ear and finger rings and same were shown by Mr. Avinish Singh who was deployed there as Retail Sales Officer. PW1 has further deposed that both the accused Ankush Jain during inquiry regarding price of these rings had changed a diamond finger ring from their stock with a fake finger ring and again asked for some Solitaire finger ring. The said employee has brought 23 trays of said rings from the basement and thereafter when the said employee was busy in checking price of such rings again the accused persons have changed that original finger rings of their which they have changed few minutes back with a solitaire finger ring. Thereafter , both the accused left the store after checking few more rings saying that they will come back. Thereafter he lodged the complainant vide Ex. PW1/A, download the incident via DVR, converted into a CD, handed over the same to the police, handed over certificate u/s 65B of Indian Evidence Act vide Ex. PW1/B and PW1/C and also handed over FIR No. 62/13 2 of 8 the fake golden ring to the IO which was seized vide memo Ex. PW1/D. The witness has also stated about the item code of the stolen property i.e. solitaire finger ring as 502112FEDLA137, weight 4.39 gms and its value as Rs. 5,133,45/ and has also correctly identified the case property vide Ex. P1 and P2 when the same were produced before him during recording of his testimony.
PW2 is Ms. Sonam who being employed as Greater at the aforesaid showroom has deposed that on 6.3.13 they have received information about theft of 7 diamond rings from the their office situated at South Extension Branch where Mr. Harish Kumar, Retail Sales officer has attended the accused persons and on seeing both the accused in the CCTV footage he identified both the accused and informed the same to the Manager who called the police at 100 number and handed over both the accused to the police.
PW3 is Harish Kumar, who is employee of aforesaid company deputed at Pitampura Showroom and deposed that on 6.3.2013, both the accused persons whom he correctly identified has visited the said showroom and they were attended by him and on the basis of CCTV footage received from the South Extension Branch regarding theft of 7 diamond rings, he informed about them to Store Manager, who called the police and thereafter both the accused were handed over to the police.
PW4 is SI Nirbhay Kumar, who being accompanied with IO of the case registered at P.S. Preet Vihar has deposed about the investigation done in that case and has also proved the documents Mark PW4/X and Mark PW4/Y being the disclosure statements of both the accused.
FIR No. 62/13 3 of 8 PW5 is W/Ct. Tamanna, who has also accompanied the IO and PW4 SI Nirbhay Kumar posted at PS Preet Vihar during the course of the investigation and has narrated the version as stated by PW4 in his testimony and apart from that she has also proved the arrest memo of both the accused vide Mark 5/X and Mark 5/X1.
PW6 is SI Naveen Kumar, who is the IO of the case registered at P.S. Preet Vihar vide FIR No. 90/13 on the complaint of one one Sh. Gagan Kumar and deposed about the investigation done by him in the said case and has exhibited and proved the documents proved during the course of investigation and in addition to that he has also proved the seizure of diamond rings vide memo Mark 6/A prepared in the said case.
PW7 is Ct. Bhanwar Lal, who deposed about obtaining the case property alongwith road certificate from P.S Preet Vihar on 22.3.2013 and later on deposited the same with MHC(M) P.S. K.M. Pur vide RC Mark A. PW8 is Sh. Deepak Wason, Addl. Sr. Civil Judge, who has deposed about the TIP proceeding of the case property seized in the present case and has exhibited the said proceeding vide Ex. PW8/A. PW9 is SI Sanjeev, who being the IO of the present case has testified about the investigation conducted in the present case and has proved the documents prepared in the present case like Rukka Ex. PW9/A, site plan ex. PW9/B, receiving of DD No. 52B vide Ex. PW9/C, arrest memos of both accused vide Ex. PW9/D & PW9/E, recording their statement vide Ex. P9/R and PW9/G and application for conducting TIP of case property vide Ex. PW9/H. FIR No. 62/13 4 of 8 Both the accused has also admitted the genuineness of the FIR without its content by making statement u/s 294 Cr.P.C read with section 313/281/281 Cr.P.C vide Ex. PA/1.
All the PWs were duly cross examined by LAC Tej Narain on behalf of both accused persons.
4 Statement of both accused was recorded U/s 313 Cr.P.C., wherein accused persons took the plea of false implication and pleaded innocence. Both the accused has denied to lead any defence evidence.
5 I have heard Ld. APP for the State and Ld LAC Sh. Tej Narain for both accused as well as gone through case file very carefully. 6 The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused.
7 Ld. Defence counsel on the other hand has argued that there is no evidence on the file to connect the accused with the offence in question and as such the accused is entitled to acquittal in the present case.
8 I have perused the case file very carefully and have duly considered the respective arguments.
9 After such consideration, I find that the accused persons are entitled for acquittal due to the cumulative effect of the following reasons.
(i) It is stated that the incident is of theft belongs to 23.02.2013 while the CCTV footage which was seen on 7.3.13 by by PW1 complainant, Store Manager at the showroom where theft took place, PW2 Ms. Sonam Greeter at the said showroom and PW3 Harish Kumar working as Retail Sales Officer and complaint FIR No. 62/13 5 of 8 was given in writing on 8.3.2013 which was converted into FIR. However, as per the evidence of the complainant/PW1 Mr. Amit Chauhan who handled the CCTVs and their recording has not been produced to prove the CCTV or that it has not been edited nor his certificate u/s 65B of Evidence Act has been proved. As per the said provision electronic evidence can only be proved in the manner given in Section 65 B of Evidence Act which has not been done. PW1 has clearly deposed that the hard disc containing CCTV footage was not handed over to the IO.
Hence the CCTV footage cannot be relied to prove the presence of accused at the place of incident.
(ii) The accused persons were arrested in FIR 90/13 P.S. Preet Vihar on information given by the Store Manager of Tanshiq showroom at Pitampura who intern was alerted by PW3 PW Harish Kumar on 6.3.2013. On said date Harish Kumar as per his own evidence saw both the accused persons in the said showroom and after realizing that their identity matched with the persons who came at the South Ex. Showroom of Tanshiq on 23.2.13 informed about the same to Store Manager of showroom at Pitampura. Thereafter, the call on 100 number was made and the police team from PS Preet Vihar arrived and arrested the accused in the said case. It is deposed that 7 diamonds rings were recovered from the hand bag of accused Rita Verma and one fake diamond ring was recovered from the pocket of accused Ankush Bhati, other diamonds ring was recovered from his wallet and third diamond was recovered from his hand when the said accused was personally searched. The IO in the present FIR was informed about the arrest FIR No. 62/13 6 of 8 of said accused who arrested the accused persons on 19.3.13 with the permission of the court and the case property diamond ring was seized by the IO/PW9 in present case vide Ex. PW1/D while the original stolen rings were seized by the IO/PW6 of P.S. Preet Vihar vide seizure memo Mark 6/A. PW7 Ct. Bhawar Lal from P.S. K.M. Pur was sent to PS Preet Vihar and returned with the case property in the present case vide road certificate. Said ring is identified as Ex. P1 by PW1 complainant and the police witnesses. However, neither it is disclosed from whose possession the ring Ex. P1 was recovered nor any distinctive mark has been given in the seizure memo Mark 6/A. Also the said seizure memo belongs to only property recovered from Rita Verma and there is nothing in the evidence regarding the seizure memo from the other accused from whose possession also three rings were seized. Also there is nothing in the TIP proceeding Ex. PW8/A as to the reason of identification of Ex. P1 by any distinctive marking. Only thing in the seizure memo is that all the rings were marked with Tanshiq and the witness has not deposed about the same in the TIP Proceedings. This failure to name the distinctive marking is even when there is a code number stated to be engraved on any Tanishq items as stated by PW1 in his cross examination. In this regard the specific statement of PW1 is " It is true that item code number of solitaire ring is not easily visible from naked eye. It requires magnifying glass." Hence, in absence of clear identification of the case property, seizure of Ex. P1 cannot be imputed from the possession of accused persons.
(iii) One material witness Avnish has neither been cited by the IO as witness nor examined and it was it was Avnish who attended the accused persons FIR No. 62/13 7 of 8 in showing the sample pieces of diamond rings while it is alleged that the fake ring was substituted with the original in the tray of the said showroom.
(iv) Also there is no explanation as to why complainant for registration of FIR was not made on 23.02.2013 till 08.03.2013 even though it was realized that the theft has taken place on 23.02.2013 and stolen diamond ring was an expensive item. Also the arrest of the accused become suspicious as they were arrested in the FIR of P.S Preet Vihar on 6.3.2014 on which date it is alleged that Ex. P1 was recovered from their possession and thereafter when FIR was registered on 8.3.14 name of the said accused persons does not found mention in the FIR. The details in the FIR become subject to suspicions when no explanation for the delay has been given nor the missing details regarding the name of the accused.
(v) Lastly it is stated by PW9, IO in present case that the fake ring which was substituted was handed on 26.05.2013 which is a long time gap after the registration of the complainant and arrest of the accused. For said lacuna also no explanation has been given by the prosecution.
10 In view of the cumulative effect of the abovesaid reasons, prosecution has not been able to prove its case against both the accused persons beyond reasonable doubts. Accordingly, accused persons are acquitted of the charge levelled against them. Their bail bond stands discharged. File be consigned to Record Room.
Announced in the open (Ashok Kumar)
Court on 01.12.2014. MM(South East)07,
New Delhi.
FIR No. 62/13 8 of 8