Delhi District Court
State vs . Ankur & Anr. on 12 December, 2018
IN THE COURT OF SH. ASHU GARG
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
New Case No. 14082/2018
CNR No. DLCT02-032435-2018
FIR No.: 221/2018
PS: Desh Bandhu Gupta Road
U/s 356/379/411/34IPC
State Vs. Ankur & Anr.
(a) CIS No. of the case : 14082/2018
(b) Name of complainant : Sh. Jigar Baheti
S/o Sh. Rajesh Baheti
R/o A-17, Shashtri Nagar,
Jodhpur, Rajasthan
(c) Date of commission of offence : 20.08.2018
(d) Name of the accused : 1) Ankur,
S/o Sh. Rajesh
R/o 10690, Gali no. 8,
Andha Mugal, Pratap
Nagar, Delhi
2) Ram Lakhan,
S/o Sh. Pooran Chand
R/o 4019/34, Regar Pura,
Karol Bagh, Delhi
(e) Offence complained of : U/s. 379/356/411/34 IPC
Charges framed : U/s. 379/356/411/34 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 12.12.2018
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(h) Final Order : Acquitted.
(i) Date of such order : 12.12.2018
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Accused persons Ankur and Ram Lakhan had been charge- sheeted with the allegations that on 20.08.2018, at about 05.30 am near Kabir Park, Baghraoji, Kishan Ganj, Delhi both of them in furtherance of their common intention had committed theft of mobile phone make One Plus 6 from the possession of the complainant Sh. Jigar Behati, and while doing so, both of them used criminal force upon the complainant. Alternatively, on 20.08.2018, at Ajmal Khan Park, accused Ankur was found in possession of the above-said mobile phone belonging to the complainant Sh. Jigar Behati which he had dishonestly retained or received knowing or having reasons to believe the same to be stolen property.
2. As per the case of the prosecution, on 20.08.2018, at about 05.30 am, the complainant Sh. Jigar Behati de-boarded at Sarai Rohilla Railway Station from Jodhpur-Delhi Superfast Train and came to New Rohtak Road for going to Old Delhi Railway Station in search of a Hotel. When he was booking the Cab through his mobile phone at about 06.00 am, two persons came on a motorcycle and snatched his mobile phone make One Plus 6 from his possession and ran away. The complainant went to the PS and reported the matter. Though the complainant could not note down the number of the motorcycle, he FIR No. 221/2018 P.S. Desh Bandhu Gupta Road Page No. 2 of 8 informed that the assailants were not wearing the helmets, and were of 24-25 years of age and that he could identify them if shown. On the basis of statement of complainant, the present FIR was registered under Section 356/379/34 IPC. Investigation was started and site plan was prepared at his instance. On the same day, some persons outside Ajmal Khan Park were beating one boy. The complainant immediately identified him to be the one who had snatched his mobile phone. At his instance, the said boy (accused Ankur herein) was arrested and from his possession, mobile phone of the complainant was also recovered. Accused Ankur was also found in possession of one stolen motorcycle pertaining to PS Karol Bagh. Accused Ankur accepted his involvement and disclosed the name of his accomplice Ram Lakhan. Accused Ram Lakhan was subsequently arrested on 31.08.2018 and was subjected to judicial TIP proceedings during which the complainant duly identified him on 22.09.2018. Therefore, on the basis of such proceedings, chargesheet was filed against both the accused persons on 18.10.2018 for commission of offence punishable under section 356/379/411/34 IPC.
3. Cognizance of the offence was taken by the Court on 18.10.2018 and charge was framed against them for commission of offence punishable under section 356/379/411/34 IPC on 02.11.2018, to which they pleaded not guilty and claimed trial.
4. At the trial, prosecution examined one witness in its support. However, the sole eye witness/complainant Sh. Jigar Behati did not FIR No. 221/2018 P.S. Desh Bandhu Gupta Road Page No. 3 of 8 support the prosecution case as to identity of the accused persons and therefore, the Court chose to close the prosecution evidence without examination of other witnesses, as that would have been a futile exercise.
5. PW-1 Sh. Jigar Behati was the complainant and forwarded as the sole eye witness of the present case. He deposed that some 04 months back, he had come to Delhi for his office work by Jodhpur- Delhi Superfast Express Train and got down at Sarai Rohilla Railway Station at about 06.00 am. He left the Railway Station and came on the main road to book Ola Cab and when he was booking Cab, some unidentified persons came on bike make Bajaj from his back side and snatched his phone make One Plus 6 (Oppo). He could not see the faces of the offenders as the incident took place in a fraction of second. He could not see if the offenders were wearing helmets or not. He immediately took help from the police officials who were present near a Cinema at the spot. He went to the PS and his statement was recorded Online at the PS on the basis of which the FIR was registered. He then proceeded to his Hotel. He further deposed that after about 30-45 minutes, he received a phone alert/SMS on his other mobile number informing that the stolen number had been started. He again called the police officials upon which he was called at the PS. He was informed on the same day that his phone had been recovered and that the same be released from the Court. He did not identify the accused persons to be the offenders. He was duly cross-examined by the Ld. APP for the State but he denied having deliberately not FIR No. 221/2018 P.S. Desh Bandhu Gupta Road Page No. 4 of 8 identifying the accused persons. He did not identify the accused persons even when pointed out by the Ld. APP.
6. Statements of the accused persons under section 313 CrPC were recorded wherein they denied the allegations and pleaded innocence. They stated that they had never committed any offence and have been falsely implicated by the police. They submitted that nothing had been recovered from their possession. They did not lead any evidence in defence.
7. It is in these circumstances that the Ld. APP has argued that the prosecution has been able to prove its case against the accused persons, primarily on the ground that the accused was apprehended at the instance of complainant himself and the other accused had been identified in judicial TIP proceedings. It is further submitted that the version of the complainant is apparently false in view of his signatures appearing on the documents.
8. On the other hand, Ld. LAC appearing on behalf of accused persons has argued that the prosecution case has to fail because there is no witness who could identify them to be the offenders and that there is no incriminating material against them.
9. I have considered the rival submissions made by the Ld. APP for the State as well as the Ld. Defence counsel for the accused persons, and have perused the record.
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10. A perusal of the evidence would clearly show that the complainant PW1 did not support the prosecution case on any count. Neither he stated that he had seen the faces of the assailants, nor stated that he could have identified them, nor he deposed about apprehension, identification or arrest of accused no. 1 in his presence. He never proved the recovery of his mobile phone from possession of accused no. 1 as per the prosecution case. Though he identified his signatures on the documents on record, yet he denied knowledge of contents thereof and stated that he had signed them at the PS at the instance of the police without going through the same. Similarly, the complainant maintained that he had identified the accused in TIP proceedings, but explained that he had identified only on account of some injury mark on his forehead and he had only vague idea about the offender. Apparently, PW1 stated in the Court that he was unable to identify the accused persons to be the assailants. Clearly, he was the only eye witness on the testimony of whom the prosecution case stood. Other than the evidence of this witness, there is no witness who could have deposed anything with respect to the alleged incident. The other witnesses were not present at the time of snatching and had merely participated in subsequent investigation. Irrespective of the signatures of the complainant on various documents, the fact remains that the identity of any such document, including the complaint, FIR, arrest memo, personal search memo, site plan and seizure memos have not been proved by the sole eye witness PW1. According to him, he has not even witnessed recovery of mobile phone from any accused and he had only told about the recovery of the phone by the police FIR No. 221/2018 P.S. Desh Bandhu Gupta Road Page No. 6 of 8 officials. Such statement coming from the sole eye witness who had no reason not to support the prosecution case or to depose in favour of the accused persons, would go to root of the matter and would be sufficient to create a dent in the prosecution case. The benefit of doubt has to be therefore given to the accused persons.
11. In such a position, there is nothing incriminating against the accused persons. Even if all the other witnesses are examined and their evidence is accepted as it is, it would be a futile exercise as the prosecution would never be able to establish its case that the accused persons were the offenders.
12. In such a position, there has been a serious question mark over the identity of the offenders. There is nothing to show that the accused persons were the two boys who had snatched the mobile phone of the complainant. The burden is always on the prosecution to establish this fact and this burden never shifts on the accused persons to explain that they were not the offenders.
13. In view of the above discussion, it can be said that prosecution has failed to prove its case against the accused persons beyond the shadow of reasonable doubt, primarily due to failure of the complainant PW-1 to identify them. The benefit of this has to go to the accused persons.
14. The accused persons Ankur and Ram Lakhan are therefore FIR No. 221/2018 P.S. Desh Bandhu Gupta Road Page No. 7 of 8 given the benefit of doubt and are acquitted of the charges. They be released from custody if not wanted in any other case.
15. File be consigned to Record Room.
Digitally signed ASHU by ASHU GARG
Date:
Announced in the open Court GARG 2018.12.12
16:39:21 +0530
this 12th Day of December, 2018 (Ashu Garg)
Chief Metropolitan Magistrate (Central)
Tis Hazari Courts, Delhi
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