State v. Joshim

Order Accordingly.

SANGITA DHINGRA SEHGAL, J MARCH 29th, 2019 gr//

$ * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgement reserved on: 14th March, 2019 Judgment pronounced on: 29th March, 2019 + STATE ....Appellant Through: Mr. Tarang Srivastava, APP for State with SI Raju Yadav, PS Sultan Puri . Versus JOSHIM ...Respondent Through: Mr. Ashish Dutta, Advocate. CORAM: SANGITA DHINGRA SEHGAL, J. 1. By the present Leave Petition filed under Section 378(1) of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.') the State seeks leave to appeal against the order/judgment dated 27.09.2017 passed by the learned Special Judge (NDPS), North West District, Rohini Courts, in Sessions Case No. 53084/16, whereby the respondent (accused before the Trial Court) was acquitted of the offences punishable under Section 458/380/397/411 read with Section 34 of the Indian Penal Code (hereinafter referred as 'IPC'). 2. Brief facts of the case, as noticed by the learned Trial Court, are as under:- "The FIR has been registered on the complaint of Sanjay Ex.PW1/A wherein, he has alleged that he resides at the address as mentioned in his complaint Ex.PW1/A and he is running a shop of repairing the mobile phone at F-5/133, Sultan Puri, which is situated on the walking distance of two minutes of his house and on 11.12.2015, at about 9.00 PM, he closed his shop and on the intervening night of 11/12.12.2015 at 3.00 AM, owner of his shop had telephonically informed that some noises of breaking were coming out of his shop and the owner of his shop resides at the upper floor of the said shop and this complainant without wasting time had taken his neighbour Sapan with him and arrived at his shop and found that three boys were standing outside of the said shop and they asked to their fourth companion to come out of the said shop and the fourth boy came out from the broken shutter of the said shop and all the four boys ran towards one direction and when, this complainant and his neighbour Sapan tried to apprehend this accused Joshim near Government toilet, this accused took out knife and threatened to kill the complainant and his neighbour, but, anyway, they succeeded in nabbing this accused and on hearing the noise, many people gathered at the spot and this accused, who was apprehended by them, had revealed his name as Joshim, son of Vicky @ Kanatulla R/o F-7/W-49, Jhuggi No. 176, Sultan Puri, Delh and this accused was handed over along with knife recovered from him to police and on searching one mobile phone maker of which Gild of brown colour was recovered from the pocket of his pant and this complainant has also alleged that this mobile phone came to his shop for repairing and also alleged that 25 mobile phones and Rs.20000/- were found to be stolen from the shop of this complainant and all these mobile phones were to be repaired by him and alleged that all the four boys had broken the shutter of his shop and stolen away his 25 mobile phones and Rs.20000/-, and on such complaint FIR No. 1187/2015 was registered under Section 458/360/411/34 of IPC and 27 of Arms Act. The disclosure statement of the accused was also written by the IO, wherein, he has disclosed the name of co-accused Deepak S/o Ramesh R/o F-7, W-49, Jhuggi No. 160, Sultan Puri Kwin @ Manwa S/o Om Prakash R/o F-131, Sultan Puri, Kadu R/o Bengali Park, F Block, Sultan Puri. But none of them was apprehended by the police and the IO had filed the charge sheet under Section 458/380/397/411/34 of IPC against this accused Joshim only." 3. To bring home the guilt of the respondent, the prosecution examined 06 witnesses in all. Statement of the respondent was recorded under Section 313 of Cr.PC by the learned Trial Court wherein he pleaded not guilty and denied all prosecution charges. The respondent did not lead any evidence in his defence. 4. Mr. Tarang Srivastava, APP for State contended that the impugned judgment dated 27.09.2017 is based on conjectures and surmises, the same was against the facts and law and the same be set aside, acquitting the respond