Delhi District Court
State vs . Mohd. Salim on 22 December, 2011
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(CENTRAL)05, DELHI
STATE VS. Mohd. Salim
FIR NO: 241/04
P. S. Kamla Market
Date of institution of case : 15.02.2005
Date on which case reserved for judgment : 16.12.2011
Date of judgment : 22.12.2011
Advocates appearing in the case :
Sh. S.K. Tripathi, Ld. APP for State
Sh. Amresh Kumar, legal aid counsel for accused
JUDGEMENT U/S 355
Cr.P.C
.:
a) Date of offence : 29.05.2004
b) Offence complained of : U/S 379/411 IPC
c) Name of complainant : Sh. Dinesh Duggal
d) Name of accused, his parentage,: Mohd. Salim S/o Sh Mohd. Yamin
local & permanent residence R/o H.No. 2063, Gali Mazar Wali
Kucha Chillan Darya Ganj
Delhi.
e) Plea of accused : He is falsely implicated.
f) Final order : He is acquitted from offence u/s
379 IPC but convicted u/s 411
IPC.
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Brief facts of the case are that the present FIR was lodged on the FIR no. 241/04 ; PS: Kamla Market St vs. Mohd. Salim Page no. 1/6 complaint of complainant Sh. Dinesh Duggal regarding theft of his mobile phone Nokia 2300 from Ajmeri gate bus stand on 29.05.2004 by some unknown person. The first IO was unable to trace the mobile phone despite efforts, hence untraced report was filed. Thereafter, accused Mohd. Salim was arrested by another IO in FIR no. 564/04 u/s 21 NDPS Act and on his personal search, the mobile phone Nokia 2300 IMEI no. 352971001756671 was recovered and it was discovered that FIR no. 241/04 had been lodged regarding theft of said mobile phone. Hence, accused was formally arrested by second IO Inspector Inderpal in this case and after completion of investigation and recording statements of witnesses, charge sheet was filed.
2. On the basis of charge sheet, charge U/s 379/411 IPC was framed against accused Mohd. Salim to which he pleaded not guilty and claimed trial. Prosecution examined six PWs on its behalf to prove its case.
3. PW1 is DO ASI Balbir Singh who exhibited copy of FIR and rukka as Ex.PW1/A and Ex.PW1/B respectively. PW2 is complainant Sh. Dinesh Duggal who reiterated the facts mentioned in his complaint and exhibited his complaint as Ex.PW2/A and identified his mobile phone in court as Ex.P1. He stated in his crossexamination that he had not taken the mobile phone from police since he was not informed about recovery and he had already taken insurance claim from the mobile company.
4. PW3 is Ct. Devi Sahai who had accompanied IO SI Inderpal when accused was arrested on 16.12.2004 in FIR no. 564/04 u/s 27 NDPS Act and the FIR no. 241/04 ; PS: Kamla Market St vs. Mohd. Salim Page no. 2/6 mobile phone was recovered from his personal search and taken into possession vide seizure memo Ex.PW3/A. PW3 exhibited the disclosure statement of accused, pointing out memo, arrest memo and personal search memo from Ex.PW3/B to Ex.PW3/E respectively. In his crossexamination, he admitted that many public persons were present at the spot at Ajmeri Gate Chowk when accused had pointed out the place of theft.
5. PW4 is first IO ASI Ram Phool who stated that on 29.05.2004, he had started investigation and prepared site plan Ex.PW4/A at the instance of complainant, but thereafter, mobile phone was not traced, hence he sent the file as untraced.
6. PW5 is 2nd IO Inspector Inderpal Singh who stated that on 15.12.2004, accused Mohd. Salim was arrested in another case FIR no. 564/04 u/s 21 NDPS Act PS Kamla Market and a mobile phone was recovered from his possession and it was revealed that the mobile phone was stolen one and was wanted in present case, hence he arrested the accused vide memos already Ex.PW3/D and seized the mobile phone IMEI no. 352971001756671 vide Ex.PW3/A and took the accused to the spot of theft where accused pointed out the place of theft vide pointing out memo already Ex.PW3/C and after completion of investigation, chargesheet was filed. In his crossexamination, he denied the suggestion that accused had been falsely implicated in the case.
7. PW6 is Ranjeet Kumar, from Beecham's Press Pvt. Ltd. who brought original record of bill of mobile phone IMEI no. 352971001756671 and FIR no. 241/04 ; PS: Kamla Market St vs. Mohd. Salim Page no. 3/6 exhibited the duplicate receipt as Ex.PW6/A and stated that the mobile bill is in name of complainant Sh. Dinesh Duggal.
8. After closure of PE, statement of accused U/s 313 Cr.P.C. was recorded. Accused did not lead any evidence, hence case was fixed for final arguments. Final arguments were heard on last date and case was fixed for orders for today.
BRIEF REASONS FOR DECISION AND DECISION THEREOF:
During final arguments, Ld. LAC Sh. Amresh Kumar argued that accused was first arrested in NDPS case and mobile phone has falsely been implanted upon him in this case. There is no evidence of theft of mobile phone by accused Mohd. Salim and accused was apprehended after about 6 / 7 months from the date of theft and no TIP was got conducted by IO after arrest of accused, hence, it can not be said that accused is the thief. Therefore, no case u/s 379 IPC is made out against accused, hence, accused is acquitted from offence u/s 379 IPC.
However, from the evidence of PW2 complainant Sh. Dinesh Duggal and PW6 Sh. Ranjeet Kumar, it is clear that the mobile phone Nokia IMEI no. 352971001756671 belonged to complainant and FIR of about theft of the mobile phone had already been lodged on 29.05.2004. It is further clear from the evidence of PW3 Ct. Devi Sahai and PW5 Inspector Inderpal Singh that at the time of arrest and personal search of accused in FIR no. 564/04 on 15.12.2004, it was discovered that mobile phone recovered from personal search of accused FIR no. 241/04 ; PS: Kamla Market St vs. Mohd. Salim Page no. 4/6 was wanted in the list of stolen mobile phones and the present case FIR about its theft was pending in PS Kamla Market. Accused failed to show any proof of ownership / valid legal possession of mobile phone recovered from his personal search. Accused has no where contended that he had purchased the mobile phone from any other person. Hence, reasonable presumption is raised u/s 114
(a) Indian Evidence Act that accused has received the mobile phone having knowledge that it is stolen property. Hence, accused Mohd. Salim stands convicted for offence of receiving stolen property u/s 411 IPC. Fix for hearing on quantum of sentence today itself.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH )
TODAY ON 22nd December, 2011 MM05(CENTRAL),DELHI
FIR no. 241/04 ; PS: Kamla Market
St vs. Mohd. Salim Page no. 5/6
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE (CENTRAL)05, DELHI STATE VS. Mohd. Salim FIR NO: 241/04 P. S. Kamla Market ORDER ON SENTENCE Convict Mohd. Salim has been heard on quantum of sentence.
Convict states that he is a poor person and sole bread earner of the family and having three children and old mother to support and there is nobody to take their care in his absence.
In view of above stated circumstances, convict is sentenced to imprisonment already undergone during J/C. PB and SB of convict stands discharged. Original documents if any be released to the authorised person on proper receipt and endorsement if any be cancelled. Copy of judgement be given free of cost to convict. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH )
TODAY ON 22nd December, 2011 MM05(CENTRAL),DELHI
FIR no. 241/04 ; PS: Kamla Market
St vs. Mohd. Salim Page no. 6/6