Delhi District Court
State vs . Kunwar Pal @ Anil And Ors on 4 August, 2023
IN THE COURT OF Ms. VIJAYSHREE RATHORE, METROPOLITAN
MAGISTRATE, SOUTH DISTRICT, SAKET COURTS, DELHI
STATE VS. Kunwar Pal @ Anil And Ors
eFIR No. : 000977/2019
PS : Hauz Khas
U/s : 411 IPC
JUDGMENT
A. Sl. No. of the Case 683/2020
B. Date of Commission of offence 08.07.2019
C. Date of FIR 08.07.2019
D. Date of charge-sheet 12.02.2020
E. Name of the complainant Sapna Sood
F. Name of the accused persons, their Vipin @Vinay S/o Rajnath Mishra, R/o
parentage and residence H.No. 9/76, Shyam Block, Behind Sai
Mandir, Gandhi Nagar, Delhi.
G. Offence complained of or proved 411 IPC
H. Date of framing of charges 02.11.2022
I. Date of commencement of evidence 13.07.2023
J. Plea of the accused Pleaded not guilty
K. Date on which judgment is reserved 03.08.2023
L. Final Order Acquitted
M. Date of Judgment 04.08.2023
State Vs. Kunwar Pal @ Anil And Ors eFIR No. :00977/2019 PS Hauz Khas
U/s 411 IPC Page no. 1 of 8
Brief facts of the present case
1. The case of prosecution arises out of e-FIR dated 08.07.2019 of complainant Sapna Sood regarding the theft of one mobile Oppo FIS, IMEI No. 861171034293859. During the investigation IO visited the spot RPCR centre and prepared the site plan at the instance of complainant. Statement of complainant was recorded u/s 161 Cr. PC. On 20.12.2019 after receiving information over telephone from PS Ambedkar Nagar that accused persons Vipin@ Vinay and Mohd Kunwar Pal had been apprehended in Kalandra DD no. 44A u/s 41.1(D) CrPC PS Ambedkar Nagar and also that stolen mobile phone/case property has been recovered from them. IO took the permission of the court on 23.12.2019 for interrogation and formal arrest. After formal arrest of accused persons, they were sent to JC. After completing the investigation, charge-sheet was filed in the case. Accused Kunwarpal was discharged on 02.11.2022 from the case.
Framing of charge
2. After compliance of Section 207 Cr.P.C., vide order dated 02.11.2022 charge was framed against accused Vipin for the offence u/s 411/34 IPC to which the accused pleaded not guilty and claimed trial.
Prosecution Evidence
3. In support of its case, the prosecution had examined two witnesses. PW1 is ASI Jawahar Singh and PW2 is ASI Brahma Nand.
State Vs. Kunwar Pal @ Anil And Ors eFIR No. :00977/2019 PS Hauz Khas
U/s 411 IPC Page no. 2 of 8
4. PW1 ASI Jawahar Singh had deposed in his testimony that on 19.12.2019 he was posted as HC at Special Staff, South District. He had further deposed that on that day he along with Ct. Pradeep, Ct. Anup and Ct. Manoj were on duty and present near Khanpur red light. He received secret information regarding accused involved in many incidents of pick-pocketing and snatching. He had further deposed that on the basis of secret information accused persons were apprehended by him from G Block, Red light, Dakshin Puri, MB Road with assistance of aforesaid staff members. He had further deposed that one of accused revealed his name as Vipin @ Vijay. One Oppo F1 golden color mobile phone was recovered from his possession along with other 5 mobile phones. He had further deposed that all the mobile phones were found stolen. He had further deposed that the aforesaid Oppo F1 mobile phone was found to be the case property of present case. He had further deposed that four stolen mobile phones were also recovered from the possession of the accused Kunwar Pal @ Anil. He had further deposed that he arrested the accused under section 41.1/D Cr.P.C. and prepared Kalandra DD no. 44A dt. 19.12.2019, PS Ambedkar Nagar vide arrest memo which are Ex. PW1/A and Ex.PW1/B. He had further deposed that accused made his disclosure statement which was reduced by him into writing as Ex.PW1/C and Ex.PW1/D. He prepared recovery site plan vide Ex.PW1/E. He had further deposed that he also seized aforesaid mobile phones which were recovered from the possession of accused including the case property of present case vide seizure memo Ex.PW1/F and Ex.PW1/G. Witness had correctly identified accused. Witness had also correctly identified the case property. The same are Ex.P1 (colly).
State Vs. Kunwar Pal @ Anil And Ors eFIR No. :00977/2019 PS Hauz Khas U/s 411 IPC Page no. 3 of 8
5. PW2 ASI Brahma Nand had deposed in his testimony that on 20.12.2019 he was posted as HC at PS Hauz Khas. He had further deposed that on that day he received information that stolen mobile phones (of make Oppo) in case FIR no. 000977/2019 have been recovered by Special Staff, South District, New Delhi. He had further deposed that on 21.12.2019 he had applied for the production warrants of accused. He had further deposed that accused was produced before the Court on 23.12.2019. He formally arrested the accused after due permission of the court vide Ex.PW2/A and Ex.PW2/B. He had further deposed that he recorded disclosure statement of accused persons vide Ex.PW2/C and Ex.PW2/D. Ct. Hari Om was also present at the time of arrest. He had further deposed that he recorded the statements of official staff of Special Staff namely HC Jawahar, Ct. Pradeep and Ct. Anup. He had further deposed that the case property was brought by him to PS Hauz Khas on 30.12.2019 after getting issued a road certificate Mark A. He had further deposed that after concluding the investigation he filed the charge-sheet before the Court. He had further deposed that the aforesaid case property was released to the complainant vide panchnama Ex.PW2/E. Witness had correctly identified the accused. The witness had also correctly identified the case property which is already Ex.P1 (colly).
Statement of accused
6. The examination of accused u/s 313 r/w 281 Cr.P.C. was recorded in which he stated that he is innocent and had been falsely implicated in the present case. Further, nothing was recovered from him and the case property is State Vs. Kunwar Pal @ Anil And Ors eFIR No. :00977/2019 PS Hauz Khas U/s 411 IPC Page no. 4 of 8 planted upon him.
7. Accused did not lead defence evidence. Thereafter matter was fixed for final arguments.
8. Final arguments addressed by the Ld. APP for State and Ld. Counsel for accused were heard and case file was perused.
9. It is argued on behalf of the Ld. APP for the State that there is sufficient material on record that accused had committed theft and further they were found in the possession of the stolen property. Accused had deliberately retained the property knowing the same to be stolen one.
10. It is argued on behalf of accused that the complainant is dropped in the present case and therefore prosecution has failed to prove their case. It is also argued on behalf of accused that the depositions made by PW1 and PW2 are not reliable and not trustworthy.
11. For proving the charge under Section 411 IPC, prosecution had to prove that the stolen mobile phone was recovered from the possession of accused and he knowingly/dishonestly retained or received stolen property in question, belonging to complainant.
12. The case of prosecution is that on 08.07.2019 accused was found in possession of case property/ mobile Oppo FIS, IMEI No. 861171034293859 and the same was retained by him knowing it to be stolen property. It is State Vs. Kunwar Pal @ Anil And Ors eFIR No. :00977/2019 PS Hauz Khas U/s 411 IPC Page no. 5 of 8 pertinent to mention that complainant Sapna Sood is not examined in the present case. Since her presence could not be secured by adopting sufficient means, she was dropped vide order 20.07.2023. Thus, complainant who is the star witness in the case is not examined in the case. As the complainant is not examined in the case, it is not proved that his mobile Oppo FIS, IMEI No. 861171034293859 was stolen from her possession. In the absence of his testimony it could also not been proved that case property belonged to her. Further there is no other witness available on record who had witnessed the incident. Thus, the eye account of incident is also not available. Since the complainant is not examined in the case, it could not be proved in the case that the mobile seized from accused was the one which was stolen from the possession of complainant.
13. In his testimony PW1 ASI Jawahar Singh has stated that he received secret information regarding two persons involved in many incidents of pick pocketing and snatching. On the basis of secret information, he apprehended accused Vipin along with his associate Kunwar Pal and stolen mobile phone/ case property was recovered from their possession. In his cross examination PW1 Jawahar Singh had admitted that the spot was crowded place and public persons were also present there. He further stated that he asked 4-5 public persons to join the investigation but none agreed. He admitted that no written notice was served upon them. He further admitted that no videography or photographs of the case property was taken by him. He also admitted that no fingerprint on the case property was taken by him. It is clear from the testimony State Vs. Kunwar Pal @ Anil And Ors eFIR No. :00977/2019 PS Hauz Khas U/s 411 IPC Page no. 6 of 8 on PW1 Jawahar Singh that he had not joined any public person in the recovery proceeding. PW2 ASI Brahmnanad had merely formally arrested accused after receiving information about the arrest and recovery of case property from special staff PS. Ambedkar Nagar.
14. From the perusal of entire testimony of record, there is no ground to assume that accused Vipin had received the stolen mobile phone oppo FIS knowing that the same was stolen property. The testimony of PW-1 ASI Jawahar Singh shows that seizure memo was prepared after seizing alleged stolen mobile from the accused but there is no evidence of independent witness who was asked to join in the investigation for the recovery of alleged stolen article. In the absence of testimony of independent witness, testimony of PW-1 ASI Jawahar Singh and PW2 Brahma Nand is not sufficient to prove the case of prosecution. Even assuming that accused Vipin was found in possession of stolen mobile, but there is nothing on record to show that it was he who stole the said phone or had received from any person with knowledge that the mobile phone was stolen one. Thus their testimony in itself is not sufficient to corroborate the fact that accused was apprehended with mobile phone.
15. The cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused persons beyond reasonable doubt. This general burden never shifts and it always rests on the prosecution. There is no material on record to assume that accused had stolen the alleged mobile Oppo FIS, IMEI State Vs. Kunwar Pal @ Anil And Ors eFIR No. :00977/2019 PS Hauz Khas U/s 411 IPC Page no. 7 of 8 No. 861171034293859 or had retained the same knowing it to be stolen property. It is apparent from the above discussion that the allegations against accused have not been proved.
Conclusion & Decision
16. From the perusal of the record, there is also no evidence on record to show the that accused had retained the mobile Oppo FIS, IMEI No. 861171034293859 knowing the same to be stolen property. Thus, I am of the considered view that the prosecution has failed to prove its case u/s 411 IPC against the accused Vipin beyond reasonable doubt. Keeping in mind the above-mentioned discussion, accused Vipin is acquitted for the commission of the offence U/s 411 IPC.
Announced in the open court (VIJAYSHREE RATHORE) In Delhi on 04.08.2023 MM-06,SOUTH/SAKET DELHI State Vs. Kunwar Pal @ Anil And Ors eFIR No. :00977/2019 PS Hauz Khas U/s 411 IPC Page no. 8 of 8