Delhi District Court
State vs . : Mohd. Amir, S/O. Mohd. Yasin, on 12 January, 2016
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IN THE COURT OF SH. ARUL VARMA
METROPOLITAN MAGISTRATE10 (CENTRAL)
TIS HAZARI COURTS, DELHI
FIR No. : 238/14
P.S. : Daryaganj
Unique ID No. : 02401R0304372014
State Vs. : Mohd. Amir, S/o. Mohd. Yasin,
R/o. H. No. A2,Masjid 64, Khamba
Mirdard Road, Delhi.
Date of institution of case : 24.06.2014
Date on which case reserved
for judgment : 05.01.2016
Date of pronouncement of judgment : 12.01.2016
JUDGMENT U/s 379/75 INDIAN PENAL CODE
a) Date of offence : 12.05.2014
b) Offence complained of : 379/411/75 IPC
c) Plea of accused : Pleaded not guilty
d) Final Order : Acquittal
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION :
1. Accused has been arraigned for trial on the allegations that on 12.05.2014, the complainant Om Prakash was travelling from Daryaganj to Shadipur in DTC Bus Route No. 753. At around 8:15 pm, the bus stopped at Delhi Gate Red Light, and the accused put his hand in the complainant's right pocket and took out his Samsung Galaxy S2 and started running away. The complainant gave chase and caught the accused after running 5060 steps.
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MISCELLANEOUS PROCEEDINGS :
2. After completion of the investigation, chargesheet was filed implicating the accused. Cognizance of the offence was taken on 24.06.2014. Accused could not furnish bond and he was taken into custody and he has been in JC since 24.06.2014. Copy of the chargesheet and relevant documents were supplied to the accused persons and the matter was listed for arguments on charge.
CHARGE FRAMED AGAINST THE ACCUSED PERSONS:
3. Charge was framed against the accused Mohd. Amir on 05.08.2014 u/s 379/75 IPC. Additionally, the Ld. Predecessor of this Court directed that he shall be liable for enhanced punishment as per section 75 IPC, as the accused was already convicted earlier in FIR No. 30/11 PS Kamla Market for the offence u/s 379/411 IPC on 17.01.2012. Accused did not plead guilty to the offence for which he was charged and claimed trial.
EVIDENCE LED BY THE PROSECUTION :
4. In order to prove its case, the State examined seven witnesses. The succinct testimonies of the witnesses are as under :
a). PW1 Om Prakash Kumar, complainant - He deposed that on 12.05.2014, he boarded the DTC Bus Route No. 753 from the bus stand opposite to Golcha Cinema, Daryaganj. When, at about 8:00 pm, bus reached near Delhi Gate Red Light, the accused inserted his hand in the right side pocket of his pant and took out his mobile phone make Samsung Galaxy and jumped out of the bus. He further FIR No. 238/14 STATE VS. Mohd. Amir 2 of 7 3 deposed that he followed him and after about 5060 steps and recovered his mobile phone from his hand. His statement is Ex.PW1/A, site plan is Ex.PW1/B, Seizure memo is Ex.PW1/C, arrest memo is Ex.PW1/D and personal search memo of accused is Ex.PW1/E.
b). PW2 HC Hemraj, Duty Officer - He deposed that on 12.05.2014, ASI Rajesh produced the rukka prepared by him and on the basis of same, he registered an FIR no. 238/14. FIR is Ex.PW2/A, Certificate u/s 62 B of the IEA is Ex.PW2/B and endorsement on rukka is Ex.PW2/C.
c). PW3 Ct. Yatender - He deposed that on that day, complainant Om Prakash came at the PS holding accused Mohd. Amir. He recorded the statement of the complainant. Thereafter, he went to the spot along with complainant and accused.
He also recorded the disclosure statement of the accused Ex.PW3/A.
d). PW4 HC Anil Kumar MHC(M) Raj Kumar He made the entry of the case property i.e. mobile phone make Samsung Galaxy in the register at S. No. 19. Copy of same is Ex.PW4/A.
e). PW5 Ct. Rakesh - He deposed that IO ASI Rajesh has interrogated the accused in his presence.
f). PW6 ASI Rajesh Kumar, IO - He deposed that on 12.05.2014, he along with Ct. Yatender were present at the interrogation room inside the PS Daryaganj. At about 8:30 pm, complainant Om Prakash produce the accused Mohd. Amir in the PS along with the mobile phone make Samsung Galaxy, which was stolen by the accused from the right side pocket of the pant of the complainant. He further FIR No. 238/14 STATE VS. Mohd. Amir 3 of 7 4 deposed that he seized the mobile phone and recorded the statement of the complainant and thereafter, he prepared a ruka and handed over the same to the Duty Officer for registration of an FIR.
g). PW7 Kamal Kumar, Mauza Clerk, Record Room Criminal, Tis Hazari Court - He brought the judicial record of the case bearing FIR No. 30/11 PS Kamla Market u/s 379/411 IPC and as per the record, accused Mohd. Amir was convicted for the offence u/s 379 IPC, vide order dated 17.01.2012, copy of same is Ex.PW6/D. STATEMENT OF ACCUSED :
4. Statement of accused Mohd. Amir under Section 313 IPC was recorded on 13.07.2015, wherein all the incriminating evidence was put to them. In the said statement, accused remonstrated that it was a false case and that he has been falsely implicated in the present case. Accused did not lead any evidence in his defence.
ARGUMENTS OF LD. APP FOR STATE AND LD. DEFENCE COUNSEL.
5. Ld APP for the State submitted that the accused was caught handed by the complainant at the scene of the crime and has invited the court's attention to the following extracts of the examination in chief of PW1 : "Accused is present in the Court today (correctly identified), was behind me in the bus. When, at about 8:00 pm, the bus reached near Delhi Gate Red Light. The accused inserted his hand into right side pocket of my wearing pant and took out my mobile make Samsung Galaxy and jumped out of the bus and started running the way. I followed him and apprehended him FIR No. 238/14 STATE VS. Mohd. Amir 4 of 7 5 after about 5060 steps and recovered my mobile from his hand. Thereafter, I took the accused to the PS and handed over him to police and got my statement recorded."
6. Percontra, Ld counsel for the accused remonstrated that the perusal of the cross examination of PW1 Om Prakash would reveal that the complainant did not see who took out the mobile phone of the complainant. Further, the statement of the person who saw the mobile phone being stolen from the complainant, was not taken by the police nor was he made a prosecution witness. Further, the complainant saw 23 other persons running along with accused from the bus. Moreover, the complainant saw the accused pick up the mobile phone from the road.
7. After hearing contentions of both sides, the issues that arises for determination are : S. NO. ISSUES FOR DETERMINATION DECISION THEREON
1. Whether the accused Mohd. Amir committed Negative theft of mobile phone of the complainant?
2. Whether the accused Mohd. Amir is liable for Negative enhanced punishment as per Section 75 IPC?
BRIEF STATEMENT OF REASONS FOR THE DECISION :
8. It would be pertinent to peruse the following extracts of statement of PW1 Om Prakash made during his crossexamination. The relevant extract of the cross examination of PW1 Om Prakash is reproduced as under : FIR No. 238/14 STATE VS. Mohd. Amir 5 of 7 6 "At the time of taking out of my mobile phone, I did not see as to who had taken the same I was told by the person, who was behind me that my mobile phone had been stolen. No statement of the person, who informed me was recorded by the police as he had gone with the bus. I followed the accused alone and no other passenger accompanied me. When I followed that accused, I saw that there were 23 persons including accused who were running away from the bus. I was running towards Masjid, there were 23 persons who had apprehended abovesaid 23 persons who were running. It is correct that the accused, present in the court today, pick up the phone from the road and thereafter, I recovered the mobile from his possession. I did not see anyone committing theft of my mobile."
9. A perusal of the aforementioned statement would reveal that the accused was not apprehended while allegedly committing theft. Further, it has been revealed that the accused did not attempt to flee away from the spot and that he had picked up the mobile phone from the road before giving its possession to the complainant. It has also been brought on record that there were 23 persons including the accused who were running away from the spot, and it could have been any one of these who could have possibly committed the theft. It cannot be said that the accused has committed the theft of the mobile phone with certainty.
10. To adjudicate upon the next issue, it would be pertinent to peruse Ex.PW6/D. The said is Order dated 17.01.2012 passed by Ld. MM, Central05, Delhi, in FIR No. 30/11, U/s 379 IPC, PS Kamla Market. Vide the said order, the accused was convicted on his plea of guilt and was sentenced to undergo imprisonment and fine of Rs. 500/, in default, to undergo simple imprisonment for 15 days. The convict had spent 8 days in custody in that case.
FIR No. 238/14 STATE VS. Mohd. Amir 6 of 7 7 Section 75 of the IPC is reproduced as hereunder: "75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction Whoever, having been convicted, (a) by a Court in India, of an offence punishable under Chapter XII or Chapter XVII of this code with imprisonment of either description for a term of three years or upwards, shall be guilty of any offence punishable under either of those chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to [imprisonment for life], or to imprisonment of either description for a term which may extend to ten years.] Thus, the section is applicable if the convict is imprisoned for a term of three years or more. Since the accused was convicted only for a period of 8 days in the earlier FIR, Section 75 of the IPC is not applicable, and he is thus not liable for enhanced punishment.
C ONCLUSION :
11. In view of the facts and circumstances and the foregoing discussion , I am of the considered view that prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, accused Mohd. Amir is hereby acquitted for the offence u/s 379/75 of the Indian Penal Code.
12. File be consigned to the record room.
Judgment dictated and ARUL VARMA
pronounced in the open Court Metropolitan Magistrate - 10
on 12.01.2016 Central / THC / Delhi
12.01.2016
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