Delhi District Court
State vs Nadim & Ors on 27 March, 2015
FIR No.436/10
PS Vijay Vihar
U/s 356/379/411/34 IPC
State Vs Nadim & Ors
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE: NORTH WEST04, DELHI
Case ID:- 02404R0074562011
FIR No.436/10
State Vs Nadim & Ors
PS Vijay Vihar
U/s 356/379/411/34 IPC
Date of Institution of case : 11.03.2011
Date of Judgment : 27.03.2015
JUDGMENT:
a) Date of offence : 24.12.2010 b) Offence complained of : U/s 356/379 r.ws 34 IPC & u/s 411 IPC c) Name of Accused, his : 1) Nadeem parentage & residence S/o Sh.Yunesh R/o Suleman Nagar, Near Chottu Masjid, Hari Enclave, PS Aman Vihar, Delhi 2) Samim @ Laala S/o Sh. Abdul Salan R/o B-117, Balbiri Nagar, Near Timber Market, PS Aman Vihar, Delhi. (proceedings abated since accused expired) 3) Sakil @ Illa S/o Sh. Ram Jane 1/10 FIR No.436/10 PS Vijay Vihar U/s 356/379/411/34 IPC State Vs Nadim & Ors R/o Suleman Nagar, Near Mansri Daba Hari Enclave, PS Aman Vihar, Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted u/s 356, 379 & 411 read with Section 34 IPC Convicted u/s 103 D.P.Act 2/10 FIR No.436/10 PS Vijay Vihar U/s 356/379/411/34 IPC State Vs Nadim & Ors BRIEF FACTS AND REASONS FOR DECISION:
Case of the prosecution in brief is as follows:-
1. That on 24.12.2010 at around 2:15 PM on road behind Brahm Shakti Hospital within the jurisdiction of PS Vijay Vihar, accused persons namely Nadeem and Shakeel alongwith other co-accused Shameen @ Lalla (since expired) in furtherance of their common intention assaulted or used criminal force to complainant Sh. Sanjeet Kumar Singh in attempting to commit theft of his cash and mobile phone and snatched the same from his possession and that on 04.01.2011 the mobile phone was got recovered from the house of accused Nadeem. Thus the accused persons committed offences punishable u/s 356/379 read with Section 34 IPC & u/s 411 IPC within the cognizance of the Court.
2. The Court took cognizance of the above-said offences punishable u/s 356/379 read with Section 34 IPC & u/s 411 IPC and charge was accordingly framed against accused persons namely Nadeem for the offence punishable u/s 356/379 r/w section 34 and section 411 IPC and against accused Shakil for the offence punishable u/s 356/379 r/w section 34 IPC to which accused persons pleaded not guilty and claimed trail.
3. In order to prove the guilt of the accused u/s 356 & 379 read with Section 34, the prosecution has to prove the following essential ingredients of the said Sections:
a. Section 356 IPC :- The accused assaulted or used any criminal 3/10 FIR No.436/10 PS Vijay Vihar U/s 356/379/411/34 IPC State Vs Nadim & Ors force to any person, that such person was either wearing or carrying any property and that accused committing such assault in an attempt to commit theft of such property.
b. Section 379 IPC :- The accused removed the movable property and that he removed it out of the possession of another person without his consent with dishonest intention.
c. Section 34 IPC :-
i) That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person.
ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
iii) This Section deals with constructive criminal liability which provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them ....... Nand Kishore v State of M.P (2012) 1 SCC (Cri) 378: (2011) 12 SCC 120;
Brathi v State of Punjab (1991) 1 SCC 519.
d. Section 411 IPC :- That the stolen property was in possession of the accused, that such property was in possession of some other person before the accused got possession of the same, that the accused possessed the property with the knowledge that it was stolen property and that accused got 4/10 FIR No.436/10 PS Vijay Vihar U/s 356/379/411/34 IPC State Vs Nadim & Ors possession of the property dishonestly.
4. It is pertinent to mention that prosecution was launched against three accused persons namely Nadim, Shakil and Shamin out of which accused Shamin expired before the framing of charge and proceedings qua him were abated vide order dated 28.03.2013 passed by the Ld. Predecessor court.
5. To prove its case, prosecution started its evidence with the testimony of prosecution witnesses as per the list.
6. PW-1 HC Subhash deposed that on 24.12.2010, he was posted at PS Vijay Vihar as HC, that on that day, on receipt of DD No. 50B, he alongwith Constable Bharat reached at A-2/36, Budh Vihar, Phase-I, New Delhi where he met complainant Sanjit Kumar Singh, that he recorded statement of Sanjit Kumar Singh which is Ex. PW-1/A bearing his signature at point A duly attested by him at point B, that he prepared rukka Ex. PW-1/B bearing his signature at point A and handed over the same to Constable Bharat for registration of FIR, that Constable Bharat went to the PS and got the FIR registered, that after registration of the FIR, Constable Bharat came back at the spot and handed over the copy of FIR and original rukka to him, that he prepared the site plan Ex. PW-1/C bearing his signature at point A at the instance of complainant Sanjit Kumar Singh, that on 04.01.2011, he received a secret information from a secret informer that one person who may be involved in the present case was present at Rithala Road, Near Braham Shakti Hospital, that he alongwith Constable Subender and Constable Naresh alongwith complainant Sanjit Kumar Singh 5/10 FIR No.436/10 PS Vijay Vihar U/s 356/379/411/34 IPC State Vs Nadim & Ors reached at Rithala Road Near Braham Shakti Hospital and apprehended accused Shakil @ Ela, that complainant Sanjit Kumar identified him, that accused took them to the house of accused Nadim and Shakil @ Ela, that complainant identified both Nadeem and Shakil @ Ela, that he arrested all the three accused persons and also conducted their personal search vide memos Ex. PW-1/D to Ex. PW-1/I bearing his signatures at point A, that he interrogated the accused persons and recorded their disclosure statement Ex. PW-1/J to Ex. PW-1/L, that accused Nadeem got recovered one stolen mobile phone which was identified by the complainant, that the mobile was kept in a white cloth which was converted into a pulinda and same was sealed with the seal of SS, that the mobile phone was taken into possession vide seizure memo Ex. PW-1/M bearing his signature at point A, that at the instance of accused persons, pointing out memos were prepared which are Ex. PW-1/N to Ex. PW-1/P bearing his signatures at point A, that accused persons and case property was brought to PS where accused was put behind the lockup and the case property was deposited in Mallkhana, that later on, complainant Sanjit Kumar handed over to him the photocopy of bill of stolen mobile phone and the same was taken into possession vide seizure memo Ex. PW-1/Q bearing his signature at point A. The photocopy of the bill is placed on record and same is Ex. PW-1/R. The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
7. During the prosecution evidence, it was brought to the notice of this Court by the Ld. Counsel for accused that the complainant Sh.Sanjeet Kumar Singh is not traceable despite best effort as is apparent from the reports 6/10 FIR No.436/10 PS Vijay Vihar U/s 356/379/411/34 IPC State Vs Nadim & Ors mentioned on the processes issued to the said witness through the IO, SHO and DCP concerned nor any other address of the complainant Sh.Sanjeet Kumar Singh is available on record on which process can be sent. It is submitted that the that there is no other eye witness of the incident and there is no circumstance available on record to prove that the accused persons were the assailants who committed the assault and theft. It is further submitted that it is the complainant/ injured who can identify the case property and can prove that the said case property belongs to him which was stolen by the accused persons. It is further stated that in the absence of the complainant the identity of the case property as well as the fact that the said property was stolen property can not be proved by other witnesses cited by the prosecution. It is submitted that no fruitful purpose would be served by continuing the prosecution against the accused qua offence punishable u/s 356/379 read with Section 34 IPC and u/s 411 IPC as remaining witnesses are all police witnesses who are formal in nature and the commission of alleged offences on part of the accused persons which is necessary to bring home the guilt of the accused persons can not be proved at all by the remaining prosecution witnesses.
8. Submission heard on behalf of State and defence. Record perused.
9. It is apparent from record that bailable warrants issued against the complainant through the IO, SHO as well as DCP for various dates have returned unexecuted with the report that the complainant has shifted from the 7/10 FIR No.436/10 PS Vijay Vihar U/s 356/379/411/34 IPC State Vs Nadim & Ors address mentioned in the process and has gone to an unknown place. During the recording of prosecution evidence, it is stated by the IO/ HC Subhash that he has made best efforts to trace the complainant but no avail and that there is no chance of getting the process served upon the complainant. Separate statement of the IO/HC Subhash has been recorded to this effect. Considering the record, the reports on the bailable warrants issued against the complainant for 28.01.2015 & 10.03.2015 as well as the submissions made by the IO/HC Subhash, it is evident that the complainant could not be brought for deposition by the prosecution despite opportunity.
10. Considering the non-availability of the complainant and the nature of allegations which require that the identity of the accused persons as offenders and that of the case property as stolen property must be proved by the complainant for fastening criminal liability, it appears that submissions of the Ld. Counsel for accused are not baseless. Considering the record, the fact that complainant Sh.Sanjeet Kumar Singh is not traceable despite best efforts by the police officials as well as the fact that there is no other eye witness of the incident to establish the identity of the accused persons as offenders and that of the case property as stolen one which is necessary element for completion of offences punishable u/s 356/379 read with Section 34 IPC & u/s 411 IPC, this Court is of the view that no fruitful purpose will be served by continuing the prosecution evidence for said offences. Hence, the prosecution evidence is closed and recording of statement of accused persons is also dispensed with as there is no substantially incriminating circumstance 8/10 FIR No.436/10 PS Vijay Vihar U/s 356/379/411/34 IPC State Vs Nadim & Ors available on record qua the aforesaid offences.
In view of the aforesaid discussion and present circumstances, as no substantially incriminating material is available on record, accused persons namely Nadim and Sakil are hereby acquitted of the charge u/s 356/379 read with Section 34 IPC & u/s 411 IPC levelled against him.
However, bare reading of the unrebutted testimony of IO/ HC Subhash reveals that the factum of recovery of the mobile which was given by accused Shakil to the accused Nadim on his request from the house of the accused Nadim has been proved beyond reasonable doubt. The unrebbuted testimony of IO/ HC Subhash further shows that there are ample reasons to believe that the said mobile has been obtained by the accused persons in a dubious manner indicating that the same may be a stolen property. It is further apparent that the accused persons have failed the account for the possession of the said mobile as the IO was not cross-examined despite opportunity implying that the accused persons have nothing to say about the possession of the said mobile. The aforesaid discussion shows that the alleged mobile was found from the possession of the accused Nadim which was conveyed to him by the accused Shakil after obtaining the same in an illegal manner and that the accused persons have failed to account for the said possession satisfactorily. Hence, both the accused persons are found guilty for the commission of the offence punishable u/s 103 Delhi Police Act for which they are accordingly convicted.
Submission heard on the point of sentence.
It is submitted by the Ld. Counsel for convicts that convicts have been 9/10 FIR No.436/10 PS Vijay Vihar U/s 356/379/411/34 IPC State Vs Nadim & Ors facing trial since the year 2010, that the convicts have spent considerable time in judicial custody, that they belong to poor strata of the society and that their families will be ruined in case of further imprisonment. Ld. Substitute APP for the submits that convicts have been found guilty and that there is no ground for taking a lenient view.
Record perused.
Considering the facts and circumstances as well as the fact that the convicts are facing the trail since 2010, that the convicts have spent considerable time in judicial custody, that they belong to poor strata of the society and that their families will be ruined in case of further imprisonment, both the convicts are hereby sentenced with simple imprisonment till the rising of the Court alongwith a fine of Rs. 100/- each. Fine paid. Convicts are hereby released after completing TRC.
Announced in the Open Court (VIPLAV DABAS)
on 27.03.2015 MM-04/NORTH WEST:DELHI
27.03.2015
10/10