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Framing of charge

2. After compliance of Section 207 Cr.P.C., vide order dated 20.09.2022 charge was framed against accused for the offence u/s 379/411 IPC to which the accused pleaded not guilty and claimed trial.

Prosecution Evidence

3. In support of its case, the prosecution had examined five witnesses. PW1 is Babudeen, PW2 is ASI Om Prakash, PW3 is HC Jai Narayan, PW4 is SI Rahul Kumar and PW5 is ASI Brhama Nand.

State Vs. Ajit Kumar         FIR No. : 238/2021                     PS Hauz Khas
U/s 379/411 IPC                                                     Page no. 2 of 10

4. PW1 Babudeen Ali had deposed in his testimony that on 16.06.2022 he along with his wife Sona Khatoon and his 4 years child namely Ali came at AIIMS hospital for the medical treatment of his son. He had further deposed that after consulting the doctor of AIIMS, they went to the bus stand of the AIIMS as soon as he along with his family members were boarding on the bus in meantime accused took out his mobile phone make RealMe 5S from his right pocket of pants and tried to run away so he raised an alarm. He had further deposed that he apprehended the accused with the help of other public person and produced before the police officials who were patrolling there. He had further deposed that thereafter, the police officials took cursory search of accused and found 3 mobile phones (including his mobile phone). He had further deposed that thereafter they went to the PS with the police officials and IO recorded his statement which is Ex.PW1/A. He had further deposed that he had shown to the place of incident and IO prepared the site plan at his instance. He had further deposed that IO arrested the accused vide arrest memo which is Ex.PW1/B and also recorded disclosure statement of accused which is Ex.PW1/C. He had further deposed that IO seized the mobile phones in his presence which is Ex.PW1/D, Ex.PW1/E and Ex.PW1/F. Witness had correctly identified the accused. He had further deposed that the mobile phone make of Realme 5S bearing IMEI No. 868734048455815 is Ex.P1.

15. The case of prosecution is that on 16.06.2022 accused stole the mobile phone Redmi 5S violet color from the pocket of complainant's pant State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 7 of 10 when he was boarding the bus. In this regard PW1 complainant had deposed that on 16.06.2022 he alongwith his wife Sona Khatoon and child Ali came at AIIMS hospital for medical treatment of his son. After consulting the doctor they went to bus stand of AIIMS. His mobile phone was stolen from right pocket of his pant and when he apprehended the accused, police officials took cursory search of him and found 3 mobile phones including his phone. The witness had duly identified the accused before the court as the one who had stolen the phone. In his cross-examination PW1 Babbudin had stated that when he was sitting in the bus, in the meantime he checked his mobile phone and he came to know that it was missing and one passenger told him that accused took out his mobile from his pocket. It appears from the testimony of PW1 Babbudin that he was the one who had apprehended accused from the bus alongwith the other public persons. No other public person apart from PW1 Babbudin is examined in the case who was present while witness was boarding the bus. It also appears from his version that he himself had not seen accused stealing the mobile phone. It was only after person sitting inside the bus told that accused had stolen the mobile, thereafter he got to know that his phone went missing. PW2 IO HC Jai Narayan had stated that when he made a cursory search of accused 3 phones were recovered from the possession of accused. He admitted that lot of persons were present when the complainant handed over the custody of accused to him. He further admitted that he did not note down the name of any public persons who were present at the spot. He further admitted that he did not note down the name of public persons who helped complainant to apprehend the accused. He further admitted that he did not prepare any State Vs. Ajit Kumar FIR No. : 238/2021 PS Hauz Khas U/s 379/411 IPC Page no. 8 of 10 document at the spot. The version of PW IO HC Jai Narayan also shows that public persons were present on the spot when the accused was apprehended and also when he made cursory search. There is no reason why he did not interrogate other public persons apart from PW Babbudin at the time the recovery was made from the accused. Thus, in the absence of any other independent person present there, the testimony of PW1 Babbudin does not seem to be reliable. The testimony of PW1 Babbudin is not sufficient to inspire the confidence of the court for proving allegations against the accused. According to PW4 Rahul Nimesh when he met with the accused, the mobile phone was already recovered from the possession of accused. Since he had not seen the case property, his testimony also does not show any incriminating circumstances against the accused.

Conclusion & Decision

18. From the perusal of the record, there is also no evidence on record to show the that accused had retained the stolen property mobile Redmi 5S 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 379/411 IPC against the accused beyond reasonable doubt. Keeping in mind the above-mentioned discussion, accused is acquitted for the commission of the offence U/s 379/411 IPC.