Delhi District Court
State vs . Amir on 14 December, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. AMIR
FIR No. 67/17
U/s : 379/411 IPC
P.S. : Malviya Nagar
Date of Institution : 06.01.2018
Date on which case reserved for Judgment : 28.11.2018
Date of judgment : 14.12.2018
JUDGMENT
1.FIR No. of the case : 67/17
2.Date of the Commission : 13.02.2017
of the offence
3.Name of the accused : Amir,
: S/o Md. Khurshid,
: R/o H. No. 776,
: Gali No. 14, near Muslim Fund,
: Ghaziabad, UP.
4.Name of the complainant : Sh. Mukesh Kumar,
: S/o Sh. Rajender Prasad,
: R/o 302A, 2nd floor,
: Sant Nagar, East of Kailash,
: New Delhi.
5.Offence complained of : U/s 379/411 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Convicted for the offence U/s 379 IPC
: and acquitted for the offence U/s 411
: IPC.
FIR No. 67/17 State Vs. Amir 1/7
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 13.02.2017 at about 10:30 pm at the under construction Hauz Khas Metro Station near Sarvapriya Vihar, New Delhi within the jurisdiction of PS Malviya Nagar, accused Amir committed theft of electrical wires of the under construction metro and on the aforesaid date, time and place the accused was found in possession of the stolen electrical wires which the accused retained knowing or having reasons to believe the same to be stolen property and thus the accused committed offences U/s 379/411 IPC.
2. FIR No. 67/17 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under sections 394 IPC was filed before the court on 06.01.2018.
4. On the basis of prima facie material available on the record charge for the offences punishable under section 379/411 IPC was framed against the accused to which the accused pleaded not guilty and claimed trial on 05.04.2018.
THE TRIAL PROCEEDINGS:
5. In order to establish its case, the prosecution has examined five witnesses.
a) PW1 was the complainant namely Sh. Mukesh Kumar. He exhibited his statement/complaint as Ex. PW1/A, site plan as Ex. PW1/B, seizure memo of electrical wire as Ex. PW1/C, arrest memo of the accused as Ex. PW1/D, cutter as Ex. P1 and five bundles of electrical wires as Ex. P2 (colly).
b) PW2 Sh. Dhananjay Kumar was the person who called 100 number and he deposed about the alleged incident.
FIR No. 67/17 State Vs. Amir 2/7
c) PW3 was HC Harish Kumar the police official who accompanied
the IO to the spot.
d) PW4 was the Assistant MHC(M) PS Malviya Nagar namely Ct.
Ajeet who exhibited the relevant entry at Sr. No. 2442 of register no. 19 of the year 2017 regarding deposition of case property i.e. one sealed katta (bag) as Ex. PW4/A.
e) PW5 was the Investigating officer (IO) of the case namely ASI Ram Lal. He exhibited the rukka as Ex. PW5/A.
6. Accused admitted the factum of recording of FIR bearing no. 67/17, PS Malviya Nagar and DD No. 20A dated 14.02.2017 U/s 294 Cr.P.C. on 11.07.2018 and the same were exhibited as Ex. X1 and Ex. X2.
7. Prosecution evidence was closed on 26.10.2018. After conclusion of prosecution evidence, the statement of accused (SA) under section 313 r/w section 281 Cr.P.C was recorded on 02.11.2018. Accused chose to lead defence evidence however no witness was examined by accused and defence evidence was closed on 16.11.2018.
FINAL ARGUMENTS:
8. Thereafter final arguments were advanced by Ld. APP for the State and Ld. counsel for the accused. I have heard the arguments and perused the record.
REASONS FOR DECISION:
9. The prosecution examined the eye witness of the alleged incident of theft Sh. Mukesh Kumar as PW1 and the public witness Sh. Dhananjay Kumar as PW2.
10. PW1/complainant proved his complaint to the police as Ex.
FIR No. 67/17 State Vs. Amir 3/7 PW1/A. He deposed about the incident narrating that he was working as a security guard at the Hauz Khas Metro Station and was on duty on the date of the alleged incident i.e. 13.02.2017 when at about 10:30 pm11:00 pm he noticed the assailant cutting the electrical wire of the platform of the metro station. PW1 testified that he raised an alarm and the offender tried to flee from the spot and he chased the offender and apprehended him. He called the supervisor Sh. Dhananjay/PW2 who came to the spot and called the police on 100 number. PW1/complainant however testified in his chief examination that he could not identify the accused. Ld. APP for the State crossexamined the complainant/PW1 wherein PW1 deposed that after inquiry the name of the accused was revealed as Amir. PW1/complainant admitted that the IO seized the case property i.e. electrical wire in his presence vide the seizure memo Ex. PW1/C which bore his signatures and also admitted that the police officials arrested the accused in his presence vide the arrest memo Ex. PW1/D on which also PW1/complainant identified his signatures. PW1/complainant identified the cutter and five bundles of electrical wire which were exhibited as Ex. P1 and Ex. P2 (colly) respectively.
11. Pertinently, PW1/complainant admitted in the crossexamination conducted by Ld. APP for the State that at the time of the incident only accused Amir was present there. Ultimately, after the sustained crossexamination conducted by Ld. APP for the State, when Ld. APP for the State pointed towards the accused the complainant/PW1 identified the accused as the person who was apprehended by him at the time of the incident.
12. PW2 Sh. Dhananjay Kumar also deposed about the incident, stating during trial that on receiving the call from the security guard regarding a thief FIR No. 67/17 State Vs. Amir 4/7 being apprehended he reached the spot and saw that PW1 Sh. Mukesh Kumar and other security guards had apprehended the assailant with wires and cutter however he failed to identify the accused during trial. Even when Ld. APP for the State pointed out towards the accused PW2 could not identify him but it is noteworthy that PW2 also deposed that after enquiring the name of the offender was revealed as Amir.
13. Ld. Counsel for the accused laid great emphasis on the fact that the complainant/PW1 testified in the crossexamination conducted by the defence that he did not see who was cutting the electrical wire and also the complainant/PW1 deposed that he had apprehended the accused on the basis of suspicion and had not seen who was cutting the electrical wire. However, the fact of the matter is that the accused was caught red handed with the cutter and cut wires at the spot. It may be that the complainant/PW1 had not actually seen the accused while cutting the wires but he most certainly deposed that the person apprehended by him was named Amir and he proved the veracity of the seizure memo of the case property Ex. PW1/C by identifying his signatures thereon and admitting that the same was seized by the IO in his presence. Moreover, PW2 Sh. Dhananjay Kumar also deposed about seeing the assailant being apprehended by the guards with cut wire and cutter which corroborates the prosecution's case against the accused.
14. The police witnesses PW3 HC Harish Kumar and IO/PW5 ASI Ram Lal deposed about reaching the spot after the IO received DD No. 20A, meeting the guard Sh. Mukesh Kumar and his supervisor at the spot and they both testified that the accused had been apprehended the public witnesses who was produced before the IO with the case property. The presence of the police FIR No. 67/17 State Vs. Amir 5/7 witnesses at the spot is substantiated by the documentary evidence in the form of DD No. 20A which is an admitted document. The police witnesses by identifying the accused and deposing that he had been apprehended with the case property further strengthened the case against the accused.
15. As such, a perusal of the statement U/s 313 Cr.P.C. of the accused shows that the accused did not dispute his presence at the spot at the time of the alleged incident and he merely stated that he had been wrongly apprehended by the security guard. He stated that he used to do the work of welding in Hauz Khas Metro and his duty would be over at 06:00 pm and on the day of the incident he had gone to the metro station at about 10:00 pm 11:00 pm to keep the articles i.e. pipe wrench and that the guard came running and raising the alarm of 'thief, thief' and wrongly apprehended him. The accused never put any such suggestion to PW1 or PW2 in this regard nor did he adduce any defence evidence to corroborate his plea that he was working at the metro at the time e.g. identity card issued by the Delhi Metro Rail Corporation or its subcontractor etc.
16. Further, the plea of the accused that he came at 10:0011:00 pm to keep the articles when as per him his duty would be over at 06:00 pm appears to be a sham one, it is unbelievable that the accused would return to the alleged work place four hours after his duty timings were over just to keep the articles. The accused has failed to explain why he was caught carrying a cutter and wires and why he tried to flee when PW1 chased him if he was innocent. The accused has thus failed to raise a plausible defence.
17. The prosecution has proved beyond reasonable doubt through the oral and documentary evidence led that the accused committed the offence of FIR No. 67/17 State Vs. Amir 6/7 theft of electrical wires and that he was caught red handed at the spot.
18. The accused Amir is accordingly convicted for the offence of theft punishable U/s 379 IPC. As a natural corollary, the offence punishable U/s 411 IPC being mutually inconsistent with the offence U/s 379 IPC the accused is acquitted for the offence punishable U/s 411 IPC.
19. Put up for arguments on the quantum of sentence on 18.12.2018.
Digitally signed by ANJANI MAHAJAN ANJANI Date:
MAHAJAN 2018.12.15
14:58:51
+0530
Announced in the Court (ANJANI MAHAJAN)
on 14.12.2018 MM02(SD)/14.12.2018
Certified that this judgment contains 7 pages and each page bears my signatures.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date: 2018.12.15
14:58:58 +0530
(ANJANI MAHAJAN)
MM02(SD)/14.12.2018
FIR No. 67/17 State Vs. Amir 7/7