Delhi District Court
Criminal Case/190/2009 on 5 May, 2010
IN THE COURT OF SH. RAVINDER SINGH : METROPOLITAN
MAGISTRATE: NEW DELHI
FIR No. 334/09
P.S. Saket
U/S 356/379/411/34 I.P.C.
State v. Rakesh Kumar @ Changa & Anr.
JUDGMENT :
a. Sl. No. of the case : 190/2
b. Date of Institution : 17.11.09
c. Date of Commission of Offence : 21.09.09
d. Name of the complainant : Rakesh Kumar
S/o Sh. Balbir Singh
e. Name of the accused, his : (1) Rakesh Kumar @ Changa
parentage and address S/o Sh. Santram
R/o A-491, J J Colony,
Tigri, Khanpur, New Delhi
(2) Mukesh Kumar Sahu
S/o Sh. Chote Lal Sahu
R/o L-Ist, H.No. 2075,
Gali no. 10, Sangam Vihar
New Delhi.
f. Offence complained of : U/S 356/379/411/34 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 28.04.10
i. Final Order : Convicted
j. Date of such order : 05.05.2010
Brief reasons for the decision of the case.
1. The case of the prosecution in brief is that on 21.09.09 complainant Rakesh Kumar came to P.S. and gave a written F.I.R. no. 334/09 Page no. 1 of 11 complaint that while he was moving after purchasing roaster gram in Asian Market, Pushp Vihar two persons snatched his mobile phone and purse. On complaint of Rakesh Kumar a case F.I.R. was registered in P.S. Saket. Statement of witnesses were recorded. Site plan was prepared. Accused Rakesh @ Changa and Mukesh Kumar Sahu were arrested in case F.I.R. 335/09 of P.S. Saket wherein they disclosed commission of offence of the present case. So I.O. /HC Sher Singh got arrested both the accused persons in the present case and also got conducted their judicial T.I.P. in which they refused to take part. Accused Rakesh also got recovered the stolen mobile phone from his residence. After completing the other formal investigation, the challan was presented before the court for trial.
2. Both the accused were produced before the court from Judicial Custody to face trial, so copy of challan as required U/s 207 Cr.P.C. was supplied to them, thereafter case was fixed for consideration of charge.
3. After hearing argument on charge, prima facie case made out against both the accused U/s 379/356/34 IPC whereas offence u/s 411 IPC is made out against accused Rakesh @ Changa only. Accordingly, charge framed against both the accused vide order dated 1.12.09 to which they pleaded not guilty and claimed trial.
4. Prosecution has produced and examined as many as eight F.I.R. no. 334/09 Page no. 2 of 11 witnesses i.e. H.Ct. Surender Mohan as PW1, Rakesh Kumar the complainant as PW2, H.Ct. Ravinder Singh as PW3, Ct. Dinesh Kumar as PW4, Ct. Hafizulla as PW5, S.I. Jitender Kashyap as PW6, H.Ct. Sher Singh as PW7 and Sh. Sanjeev Kumar, Ld. MM as PW8.
4. A. PW1 HC Surender Mohan is the Duty Officer and he testified that he recorded DD entry no. 14A on 21/09/09 and on the basis of same, he recorded FIR Ex. PW1/A and thereafter, he made an endorsement on rukka Ex. PW1/B. Accused did not prefer to cross examine PW 1.
4. B. PW2 Rakesh Kumar the complainant has testified that on 20/09/09, he reached near Asian Market, Pulia, Sector-3, Pushp Vihar and purchased roasted grams and when he was about to leave the rehri at about 9.15 PM, two persons snatched his purse and a mobile carried by him. PW2 further testified that his purse contained Rs.300/- and the make of mobile phone was NKTEL N82i a China set of dual sim. He correctly identified the accused persons. PW3 further testified that he lodged a written complaint on 21/09/09 Ex.PW1/B and he also handed over the copy of bill of above said mobile phone to the I.O. which was seized vide memo Ex. PW 2/A. PW2 further testified that he got released the mobile phone on superdari. PW2 identified the mobile phone Ex. P1.
In cross examination, PW2 testified that he was carrying the mobile phone and purse in his hand and the purse contains Rs. 300/- in the denomination of Rs.100/- each F.I.R. no. 334/09 Page no. 3 of 11 currency notes. He further testified that neither he made any call on 100 number nor he raised alarm.
4. C. PW3 HC Ravinder Singh testified that accused Rakesh and Mukesh were in custody of case FIR No. 335/09, PS Saket U/s 399/402 IPC wherein they made disclosure statement marked as Y1 & Y2 which was recorded by SI Jeetender Kashyap in the presence of HC Sher Singh.
Nothing material came in cross-examination of PW3.
4. D. PW4 Ct. Dinesh Kumar testified that on 22/09/2009, he was present with IO/HC Sher Singh who arrested both the accused persons Rakesh and Mukesh and conducted their personal search vide memo Ex. PW4/A,B,C &D respectively. PW4 identified both the accused persons. He further testified that both accused persons took them to the place where they stole mobile phone and purse so pointing out memo Ex. PW4/E was prepared. PW4 testified that they went to spot in TSR and they were four in number.
Nothing material came in cross-examination of PW4.
4. E. PW5 Ct. Hafizulla testified that on 05/10/09, he came to Patiala House Court alongwith HC Sher Singh, from their accused Rajesh was taken to PS. He further testified that IO Sher Singh recorded the disclosure statement of accused Rajesh vide memo Ex. PW5/A and accused Rajesh took them to his house A-491, Tigri J J Camp and got recovered the mobile phone M82i without SIM card. Mobile phone was seized F.I.R. no. 334/09 Page no. 4 of 11 vide memo Ex. PW5/B. PW5 identified the mobile phone, marked as P1 and also identified the accused Rajesh.
Accused persons did not opt for cross-examination of PW5.
4. F. PW6 SI/Jitender Kashyap testified that on 21/09/2009, Ct. Jaiveer handed over the rukka and copy of FIR No. 335/09 for further investigation so he along with Ct Jaiveer went to the spot where SI Praveen Kumar along with staff including HC Sher Singh, HC Ravinder and Ct. Deepak found present where SI Praveen handed over the accused persons. PW6 further testified that he recorded the disclosure statement of accused Rakesh and Mukesh marked Y1 & Y2 respectively. PW6 further testified that accused Rakesh and Mukesh present in the court disclosed the involvement in the present case so he informed the IO of this case.
Accused persons did not opt for cross-examination of PW6.
4. G. PW7 HC Sher Singh testified that on 21/09/09. He was present at NBCC Plaza, Sector-3, Pushp Vihar during the patrolling, Ct. Manoj who was with complainant Rakesh Kumar handed over the copy of FIR and original rukka he prepared the site plan on the instance of complainant Ex. PW7/A and demanded bill of mobile but complainant said that he will produce the same later on. He further testified that accused Rakesh Kumar @ Changa and Mukesh Kumar were arrested in case FIR 335/09 and they made disclosure statements Mark Y1 F.I.R. no. 334/09 Page no. 5 of 11 and Y2 to SI Jitender Kashyap so he collected all the documents, thereafter on 22/09/09, he interrogated accused Rakesh and Mukesh and arrested them vide memo Ex. PW4/A & B and conducted their personal search vide memo Ex. PW4/C & D respectively. He further testified that he prepared pointing out memo Ex. PW4/E on the instance of accused persons. He further testified that on 03/10/09, Ld MM fixed the TIP of both the accused persons for 05/10/09 wherein both accused persons refused to take participation so on 05/10/09, police custody of accused Rakesh was obtained and on his instance mobile phone NKTEL-N-82i was recovered from his residential juggi. Same was seized vide memo Ex. PW5/B. PW7 identified the mobile phone as Ex.P1.
Nothing material came in cross-examination of PW7.
4. H. PW8 Ld MM Sh Sanjeev Kumar, testified that on 03/10/09, he visited Central Jail for TIP of accused Rakesh and Mukesh who refused to take participation in TIP proceedings. The proceedings of T.I.P. of accused Mukesh Ex. PW8/B and accused Rakesh Ex.PW8/C. Accused persons did not opt to cross examine this witness.
5. After completion of prosecution evidence, statement of accused recorded u/s. 313 r/w. 281 Cr.P.C. wherein both accused persons stated that they were not present at the Asian Market nor they made any disclosure statement to the I.O. who obtained their signatures on blank papers and they have not F.I.R. no. 334/09 Page no. 6 of 11 taken the police to the spot as they does not have any idea of the spot being innocent and that they have been falsely implicated in this case. However, accused did not prefer to lead any evidence in his defence.
6. I have heard the Ld. APP for the state and Ld. Legal Aid Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
7. During the course of arguments, Ld. LAC for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt. Ld. LAC further argued that the testimony of material witnesses i.e. PW2, PW3, PW5, PW6 and PW7 are so much contradictory that no one can be relied upon the same.
8. Contrary to the submissions of Ld. LAC, Ld APP for the state submits that the prosecution has been able to prove its case successfully and minor contradiction bound to be there as only tutored witness can depose a parrot like version. Further the police had no motive to implicate the accused in this case.
9. It is the case of the prosecution that PW 2 the complainant Rakesh Kumar came to the P.S. on 21.09.09 and gave a written complaint Ex. PW 1/B on 20.09.09 that at Asian Market, Sector 3, Pushp Vihar while he was moving after purchasing roaster grams then both the accused persons snatched his purse and mobile phone of NKTEL N821 China set so present case F.I.R. Ex. PW 1/A was got registered and I.O. / F.I.R. no. 334/09 Page no. 7 of 11 PW7 received information of disclosure of both the accused persons in case F.I.R. 335/09 regarding commission of theft of present case so he formally arrested them vide memo Ex. PW 4/A and B. Accused Rakesh @ Changa got recovered the stolen mobile phone at his instance from his residential jhuggi which was seized vide memo Ex. PW 5/B which was later on released on superdari to PW2. PW7 also got conducted judicial T.I.P. of accused persons Ex. PW 8/A and B wherein they refused to take part.
10. To prove its case prosecution has examined as many as eight witnesses. The material witnesses of prosecution are complainant/PW2, H.Ct. Ravinder Singh/PW3, Ct. Dinesh Kumar/PW4, Ct. Hafizulla/PW5, S.I. Jitender Kashyap/PW6 and H.Ct. Sher Singh/PW7 who is I.O. of the case.
11. PW1 /complainant Rakesh Kumar in his examination-in- chief testified that (verbatim):
"...On 20.09.2009, I was working in DTC Depot, Khanpur and after having my dinner was coming towards Asian Market, Pushp Vihar and when I reached near Dipshar Avasiya Gate, I purchased roasted grams from the trolly. When I was about to leave the trolly at about 9.15 PM, two persons snatched my purse and the mobile carried by me in my hand. Both the boys were of age of 20-22 years and height of about 5 ½ foot. Rs. 300/- were in my purse and mobile was Nktel N82I China Set of dual SIM having two mobile numbers. I can identify those two boys who snatched my purse and mobile.
F.I.R. no. 334/09 Page no. 8 of 11 Accused persons are correctly identified by the witness by pointing out who are present in the court..."
12. PW6, PW3 and PW4 all have testified that both accused were arrested in case F.I.R. 335/09 wherein they disclosed about the commission of offence of this case, disclosure statement Mark Y1 and Y2 of accused Rakesh and Mukesh were recorded respectively by PW6. PW3 also confirmed the said fact that disclosure statement of both the accused persons were recorded in his presence by PW6. Later on PW7 the I.O. of this case arrested both the accused persons in the present case in presence of PW4. The fact that PW7/I.O. H.Ct. Sher Singh arrested both the accused persons his presence and also collected their disclosure statement and other documents from PW6/SI Jitender Kashyap also testified by PW4.
13. It is pertinent that H.Ct. Sher Singh/PW7 moved an application for conducting the T.I.P. of accused persons but both the accused persons refused to participate in judicial T.I.P. before PW8/Ld. MM Sanjeev Kumar who recorded the proceedings of T.I.P. in respect of accused Mukesh and Rakesh vide T.I.P. proceedings Ex. PW 8/B and C respectively. Thereafter, PW7 obtained the police custody of accused Rakesh and during PC accused Rakesh got recovered the mobile phone NKTEL M82i of complainant from his jhuggi which was seized vide memo Ex. PW 5/B. This testimony of PW7 regarding recovery of mobile phone from the jhuggi of accused Rakesh is corroborated with PW5 who also testified the same F.I.R. no. 334/09 Page no. 9 of 11 fact. It is pertinent that both the accused persons refused to take part in T.I.P. proceedings before PW8 vide proceedings Ex. PW 8/B and C and complainant/PW2 identified both the accused persons in the court so there is no room for doubt that the accused persons snatched the mobile phone and purse of complainant while he was coming after purchasing roasted grams from a rehri. It is also clear from the testimony of PW7 and PW5 that the accused Rakesh @ Changa got recovered the mobile phone of complainant from his jhuggi during police custody on 5.10.09 in pursuance to his disclosure statement Mark Y1, later on the mobile was released to the complainant on superdari and same has been produced in the court as Ex. P1.
14. Both the accused persons have not led evidence in his defence and there is nothing contrary to show that the accused persons have been falsely implicated in this case and what may be the probable motive etc. of the police to falsely implicate the accused in this offence. Further no reason has been given by the accused why PW2 made the complaint Ex.PW2/A for snatching of his purse and mobile while he was coming after purchasing roasted grams from rehri.
15. The testimony of the PW2, PW3, PW4, PW5, PW6 and PW7 are quite coherent, probable and trustworthy and inspire the confidence of the Court. The conviction can be based on the testimony of single material witness if his testimony is found to be trustworthy but in the present case I found the testimonies F.I.R. no. 334/09 Page no. 10 of 11 of PW2, PW3, PW4, PW 5, PW6 and PW7 are quite probable and trustworthy and inspire the confidence of the Court. It has been proved by the prosecution beyond reasonable doubt that both the accused persons Rakesh @ Changa and Mukesh Kumar Sahu in furtherance of their common intention snatched the mobile phone NKTEL M82i and purse of complainant/PW2 and the said mobile phone was later on recovered from the jhuggi of accused Rakesh @ Changa on his instance in pursuance to his disclosure statement during police custody.
16. In view of aforesaid facts, circumstances and discussion held above, I hold both the accused persons guilty for the offence punishable under section 379/356/34 IPC and convict them thereunder.
Announced in the Open Court
On 05.05.2010 (RAVINDER SINGH)
Metropolitan Magistrate
New Delhi
F.I.R. no. 334/09 Page no. 11 of 11