IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE (SOUTH EAST DISTRICT)- 08, SAKET COURTS, DELHI STATE Vs. [ENTITY] FIR No: 273/2009 U/[SECTION] [ACT]. PS : Amar Colony JUDGMENT
a The Sl. No. of the case : [CASE NUMBER] b The date of commission : 06.07.2010 c The date of Institution of the case : 03.09.2010 d The name of complainant : [ENTITY] e The name of accused : [ENTITY] S/o Sh. [ENTITY] R/o H. No. B-1260, Gautampuri, Badarpur, New Delhi f The offence complained of : 380/411 [ACT] g The plea of accused : Pleaded not guilty h Arguments heard on : 16.08.2014 i The final order : Acquittal j The date of judgment : 10.09.2014
Presence : Ld. APP for the [ENTITY], Sh. [ENTITY], Ld. Defence Counsel, Sh. [ENTITY].
BRIEF FACTS :
1. The brief facts of the case are that an information was received on 31.05.2009 vide DD no. 35 at PP Sriniwaspuri regarding theft. [ENTITY] and Ct. [ENTITY] reached the spot i.e. Q 36 Sriniwaspuri, Delhi where complainant [ENTITY] met them and told that on 31.05.2009 at 5 am when he checked his shop, he found that 1. NOKIA 5030 IMEI no. 353197033305704, 2. Samsung B 210 IMEI no.
356591020685275, 3. Samsung B-279 IMEI no. 358725020458295, 4. Spice S 590 IMEI no. 3566210 29075853, 5. Samsung B 279 RSN A 000014853232, 6. [CASE NUMBER] [ENTITY] Vs. [ENTITY] A 9 ED 8 E Sno. P-99 NAB 1833120224 and cash amount of Rs. 5000 were stolen by some unknown person. On the complaint of complainant present case was registered against for offences u/[SECTION] [ACT]. During investigation accused [ENTITY] arrested. Upon conclusion of the investigation, challan was filed against the accused for the offences punishable under [SECTION] [ACT].
Charge framed against the accused:-
2. Upon taking cognizance of the offence by learned predecessor Court and after supply of copies to accused, vide order dated 27.01.2011, charge was framed offence u/[SECTION] [ACT] against the accused to which he pleaded not guilty.
Evidence led by the Prosecution :
3. In order to substantiate its case, the prosecution has examined 08 witnesses which are as under :
4. PW-1 is the complainant Sh. [ENTITY]. He stated that on 31.05.2009, he was running a mobile phone shop in his house. At about 5 am in the morning when he checked his shop he found the articles/ mobile phones (1) Nokia 5030, (2) Samsung B 210, (3) Samsung Guru, (4) Spice S 590 % Samsung B 279 (5) Huawei C 5330, and cash of Rs. 5000/- alongwith some recharge coupons missing from the drawer of the shop. Thereafter he called the PCR. He got his statement Ex.PW 1/A recorded.
5. In his cross examination he deposed that he had told to police that around 20-25 mobile phones were stolen from his shop and coupons worth Rs.
20-25,000/- were stolen. He admitted that the said facts were not mentioned in his complaint. He further submitted that he had not maintained any register [ENTITY] Vs. [ENTITY] for the same. He had seen the case property i.e. one spice mobile S 590 and one Nokia 5030 in the court itself.
6. PW-2 Ct. [ENTITY] deposed that on 31.05.2009, he along with IO [ENTITY] reached the spot i.e. O-36 SN Puri where he met the complainant Sh. [ENTITY]. IO recorded statement of complainant Ex.PW 1/A and prepared rukka Ex.PW 2/A. PW 2 took the rukka and got the FIR registered.
7. In his cross examination PW2 deposed that he reached the spot around 6.30-7 am and left for PS with rukka at around 8 am and during that period complainant's statement was recorded. He denied suggestion that he was not involved in investigation or that IO had prepared all the documents at PS only.
8. PW-3 [ENTITY] deposed that he had purchased mobile phone from one [ENTITY] for Rs. 1800/- and put his SIM no. 9899400136 in that phone. The witness was cross examined by Ld. APP as he was resiling from his earlier statement. During cross examination by Ld. APP he submitted that he does not know if [ENTITY] had got the mobile phone from [ENTITY]. He admitted that he was not provided with cash memo of the mobile phone and had already returned that phone to [ENTITY]. He identified the mobile phone Spice 5890 Ex.P1 in the court .
9. In his cross examination PW 3 deposed that that he used the phone for about 8 months but could not recollect the said period or the date when he returned the said phone.
10. PW-4 [ENTITY] deposed that on 25.06.2010, [ENTITY] arrested [ENTITY] u/[SECTION] [ACT] and during interrogation accused [ENTITY] disclosed that he had committed the theft of a mobile phone and IO had recorded his disclosure statement. PW-4 duly identified the accused.
[ENTITY] Vs. [ENTITY]
11. In his cross examination PW4 deposed that no public person joined the investigation despite request of IO and no mobile phone was recovered from the accused [ENTITY] in his presence.
12. PW 5 [ENTITY] has turned hostile on all material aspects. Nothing material could be extracted from this witness by Ld. APP despite his cross examination.
13. PW-6 [ENTITY] deposed that on 25.06.2010 he had arrested the accused [ENTITY] in DD no. 37 A u/[SECTION]. He had disclosed that he had committed the theft of six mobile phones in the shop at Gurdwara Road, O Block SN Puri after breaking locks. PW-6 recorded his disclosure statement and intimated the concerned officials. Kalanandar and disclosure statements were marked as Mark 6 X.
14. In his cross examination PW 6 deposed that he does not remember the exact time when accused was arrested u/[SECTION] . He was along with HC [ENTITY]. He could not remember whether there were any public persons around or not at the time of incident . He voluntarily said that accused is BC of the area and no one dared to speak against him. They were on patrolling duty. He also admitted that the colony is highly populated.
15. PW-7 ASI [ENTITY] deposed that on 30.05.2009 he was on emergency duty and on the intervening night of 29/30.05.2009, he received DD no. 35 regarding theft. He along with Ct. [ENTITY] went to the spot and recorded statement of the complainant Ex.PW 1/A and prepared rukka. He prepared the site plan Ex.PW 7/A. During investigation it was found that one phone was used by [ENTITY] S/o [ENTITY]. Other phone was used by one person namely [ENTITY] at Nihal Vihar. He contacted [ENTITY] who told that he took the phone from [ENTITY] but he had not got any receipt regarding the sale/ purchase and that he had returned back the phone to [ENTITY] after use. They [ENTITY] Vs. [ENTITY] came to know that [ENTITY] was residing at Badarur Gautam Puri, so they went in search of [ENTITY]. After some days he received information from PS Badapur through DD no. 40 which is mark 7 X that one person namely [ENTITY] was apprehended by them u/[SECTION] and he had disclosed his involvement in the theft committed in FIR no. 273/09.
16. PW-7 obtained warrants and arrested accused after due interrogation. Accused got the mobile phones recovered from his house. Mobile phones were seized after matching IMEI. Accused pointed towards the place of incident. Disclosure statement, pointing out memo, seizure memo, arrest memo are Ex.PW 7/B to Ex.PW 7/E.
17. In his cross examination he deposed that he did not remember the date when he received information regarding call details. Spice mobile was being used with a SIM in the name of [ENTITY]. [ENTITY] told that the SIM was used by his relative [ENTITY] and he had used said phone for 10-15 days. [ENTITY] had given the phone to the broker/ introducer who had helped in the purchase of phone in order to be given back to [ENTITY]. He did not meet the broker. He denied the suggestion that mobile phone was not stolen by [ENTITY] or that nothing was recovered from his possession. He further deposed that [ENTITY] S/o [ENTITY] used the phone for 20-25 days. [ENTITY] who was using the phone was not taken to Gautampuri at the time of recovery. They had taken the accused to the spot where theft was committed at about 5 am where complainant and his family members were present. No public person was joined during recovery.
18. PW 8 Ct. [ENTITY] deposed that on 05.07.2010 he had joined investigation with IO [ENTITY] and arrested accused vide memo Ex.PW 7/E , disclosure statement Ex.PW 7/B, pointing memo Ex.PW 7/C and seizure memo of case property Ex.PW 7/D. [ENTITY] Vs. [ENTITY]
19. In his cross examination PW 8 deposed that on 06.07.2010 he had gone to the house of [ENTITY] with IO but he could not remember the house number. He admitted that disclosure statement was recorded by IO in the court.
[ENTITY]ment of Accused:-
20. [ENTITY]ment of accused u/[SECTION] [ACT] was recorded separately in which he said that he is innocent. He was going to his maternal uncle's house with his friend [ENTITY] where his friend sold the mobile phones to [ENTITY]. He had further submitted that he had been falsely implicated in this case. Nothing was recovered from his possession. He did not lead DE.
Decision and Reasons:-
21. Learned APP for the [ENTITY] and Sh. [ENTITY], Ld. Counsel for the accused heard. The entire judicial record carefully perused.
22. Ld. APP has submitted that prosecution has proved its case beyond reasonable doubt and all the ingredients of the offences stand proved against the accused.
23. The scrutiny of testimonies of prosecution witnesses and charge sheet reveals that in order to convict a person u/[SECTION] [ACT], the prosecution is required to prove beyond reasonable doubt two things:
1. that the property in question should be stolen property.
2. That the same must have been recovered at the instance or from the possession of the accused.
24. The complainant/ PW-1 has submitted that in his cross examination that he had told the police that around 20-25 mobile phones had been stolen from his [ENTITY] Vs. [ENTITY] shop but he admitted that these facts had not been mentioned by him in his complaint. He had also admitted that he had not maintained any register/ inventory for these mobile phones which could have proved that the mobile phones that were 'recovered' from the accused were infact the mobile phones that were stolen from the complainant. Hence, there is nothing on record to prove that mobile phones in question were stolen at all.
25. PW-3 [ENTITY] had deposed that he had received one of the mobile phones claimed to be a stolen mobile phone from one [ENTITY]. He further deposed that he did not know from where the said [ENTITY] bought the mobile phone but that he had purchased it from him for Rs.1800/-. In his cross examination, he deposed that he did not know if [ENTITY] had received the mobile phone in question from accused or not and that PW-3 had returned the mobile phone to [ENTITY]. The said [ENTITY] resides in neighborhood of PW-3 but he was never produced by the prosecution as a witness nor was he ever questioned by the police. Hence, PW-3 did not support the case of the prosecution and the prosecution had failed to prove that the mobile phone received by PW-3 had ever been the one which belonged to the complainant or whether it had been the mobile phone stolen or recovered at the instance of the accused.
26. PW-5 [ENTITY], to whom the accused had allegedly sold the stolen mobile phone before the same was recovered, also failed to support the case of the prosecution. He denied having made the statement under [SECTION] [ACT] to the police and denied the suggestion that he had purchased the mobile phone from accused [ENTITY]. He also denied using the stolen mobile phone.
27. Hence the prosecution has failed to prove that the mobile phones recovered at the instance of accused were infact the mobile phone stolen from the complainant. Hence, as a consequence, the prosecution has failed to prove on record that the case property is infact a 'stolen property'.
[ENTITY] Vs. [ENTITY]
28. PW-4 in his cross examination has admitted that no public persons had joined the investigation despite the request of the IO and also that he had not served any notice to such public persons. He also deposed that no mobile phone was recovered from the possession of accused in his presence.
29. PW-6 in his cross examination deposed that he did not remember whether there was any public person available at that time. But, however, he admitted that "there was crowd. Vol. the accused is BC of the area and no one dare to speak against him". He also admitted that the colony is highly populated. It does not seem plausible that even when the accused was arrested and was in the custody of police, even then no public person dared to speak against him for which reason no public persons joined during the investigation. It appears to be merely an excuse on the part of the police officials for not joining any public witnesses. Even PW-7 admitted during his cross examination that no public person was joined during recovery proceedings.
30. In such circumstances, Court is of the opinion that the public persons present at/around the place of alleged recovery could have been easily joined in the proceedings of the present matter. The police personnels had ample time to make those independent persons understand the nature of proceedings and their role as a witness. The investigating officers, however, failed to act prudently and join those independent public persons as witness to the proceedings of the present matter. This leads to an adverse inference against the entire recovery.
31. It is required to be understood that the recovery and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the local police in the present case cannot be ruled out.
[ENTITY] Vs. [ENTITY]
32. The aforesaid observation of the Court is fortified by following observations in case titled Roop Chand vs. [ENTITY] of Haryana, 1999 (1)C.L.R 69, by Hon'ble High Court of Punjab & Haryana:
" It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful "
33. Similar view was expressed by the Hon'ble Delhi High Court in case titled Nanak Chand vs. The [ENTITY] of Delhi, 1991 JCC 1.
34. The prosecution is required to establish beyond reasonable doubt that the mobile phones so recovered were infact stolen property or that the recovery of the mobile phones was at the instance or from the possession of accused. Some of the Prosecution Witnesses have completely failed to support the [ENTITY] Vs. [ENTITY] prosecution case. The complainant has failed to show any document or any record which could prove that the mobile phones so recovered belonged to him in the first place.
35. However no public witness has been associated with the investigation. No independent witness has been joined at the time of the recovery of the mobile phones. PW4, PW6 and PW7 all in their cross examinations have deposed that though the public persons were requested to join the investigation but none agreed. All the witnesses to the recovery being police officials, such recovery does not inspire confidence. As such, the prosecution is not able to prove all the ingredients of commission of the offence under [SECTION] [ACT], beyond reasonable doubt.
36. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused persons.
37. For the above stated reasons, accused [ENTITY] is acquitted of the offence punishable under [SECTION] [ACT] for which he was charged.
Announced in the open court on 10.09.2014 ([ENTITY]) MM-08 (South-East):Saket Courts: New Delhi [ENTITY] Vs. [ENTITY]