Delhi District Court
State vs . Kuldeep Rai @ Sonu & Ors. on 24 June, 2013
FIR No. 374/97, PS Model Town, U/s 356/379/411/34 IPC. State Vs. Kuldeep Rai @ Sonu & Ors. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATEIV, (DISTRICT NORTH) ROHINI COURTS, DELHI. FIR NO. 374/97 PS. Model Town U/s. 356/379/411/34 IPC. STATE VS. (1) KULDEEP RAI @ SONU (SINCE EXPIRED) (2) SANDEEP KUMAR @ LOVELY (3) NARENDERKUMAR JUDGMENT
A. SL. NO. OF THE CASE : 388/06/97
B. UNIQUE ID NO : 02401R0124651999
C. DATE OF INSTITUTION : 21/09/1999
D. DATE OF OFFENCE : 08/05/1997
E. NAME OF THE : Smt. Santosh Gupta
COMPLAINANT W/o Sh. Ashok Gupta
F. NAME OF THE : (1) Kuldeep Rai @ Sonu
ACCUSED S/o Sh. Baldev Rai (Proceedings
against him were abated vide
order dated 14.12.2012)
(2) Sandeep Kumar @ Lovely
S/o Sh. Surender Kumar
(3) Narender S/o Sh. Kasturi Lal
G. OFFENCE
COMPLAINED OF : U/s 356/379/411/34 IPC
H. PLEA OF ACCUSED : Pleaded not guilty.
I. FINAL ORDER : Acquitted
J. DATE OF SUCH ORDER : 24.06.2013.
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FIR No. 374/97, PS Model Town, U/s 356/379/411/34 IPC. State Vs. Kuldeep Rai @ Sonu & Ors.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as unfolded from the chargesheet are that on 08.05.1997, at about 12:40 pm, in front of H.No. K28, near main road, Model TownIII, Delhi, accused Kuldeep Rai @ Sonu and Sandeep Kumar @ Lovely in furtherance of their common intention used criminal force to commit the theft of the gold chain i.e. movable property belonging to the complainant Smt. Santosh Gupta and committed the theft of the aforesaid chain of the complainant. Thereafter, on the basis of the statement given by the complainant Smt. Santosh Gupta, the present FIR U/s. 374/97, U/s 356/379/34 IPC was registered at PS Model Town, Delhi. Subsequently, on 18.06.1998, at about 5:20 pm, the accused persons namely Sandeep Kumar @ Lovely and Kuldeep Rai @ Sonu were apprehended by the police officials of PS Bara Hindu Rao in case FIR no. 130/98 and FIR No. 131/98 both u/s 25/54/59 Arms Act respectively. Both the said accused persons were interrogated and they disclosed/confessed about the commission of the present offence. They further disclosed that they sold the stolen chain to a person and they can get it recovered from him. Thereafter, on 19.06.1998, the stolen gold chain was recovered from the possession of the accused Narender Kumar, who confessed that the said chain was sold to him by the accused Kuldeep Rai in the month of May, 1997. The said gold chain was seized by the SI Tilak Chand, AATS (North) with the seal of TC. Both the accused persons namely Kuldeep Rai @ Sonu and Sandeep Kumar @ Lovely refused to participate in TIP and therefore, an adverse inference was drawn against both of them that they committed the offence of chain snatching. Thereafter, TIP of the recovered stolen property was conducted on 16.04.1999 and in the said TIP, complainant Smt. Santosh Gupta correctly identified her golden chain. Thereafter, she got the said golden chain released on superdari. On conclusion of investigation, the present challan U/s 356/379/34 IPC was filed in the court.
2. Accused persons were summoned by the court for facing trial under the aforesaid sections. In compliance of Section 207 Cr.P.C., the copy of the challan and the documents annexed therewith were supplied to all Page No. 2 FIR No. 374/97, PS Model Town, U/s 356/379/411/34 IPC. State Vs. Kuldeep Rai @ Sonu & Ors.
the three accused persons. Prima facie charge U/s. 356/379/411/34 IPC was made out against accused persons namely Kuldeep Rai @ Sonu and Sandeep Kumar @ Lovely and charge u/s 411 IPC was made out against the accused Narender Kumar. Accordingly, on 07.01.2012 the charge was framed against all the three accused persons. All the three accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined only one witness.
4. Ct. Pawan Kumar (PW1) has deposed that on 08.05.1997, on receipt of DD no. 7A, he alongwith IO/ASI Robin Toppo reached at the spot i.e. House No. K28, Model TownIII, Delhi and met the complainant Smt. Santosh Gupta. He has further stated that IO recorded her statement. He has further deposed that one lady namely Smt. Nalini Jain also came there and disclosed that two persons have also snatched her gold chain. He has further deposed that IO also recorded her statement. He has further deposed that IO prepared rukka and handed it over to him for the registration of the FIR. He has further deposed that he went to PS and got the FIR registered. He has further deposed that thereafter he returned at the spot and then, the IO prepared site plan at the instance of the complainant.
5. During trial of the present case accused Kuldeep Rai @ Sonu expired on 30.01.2012 and consequently proceedings against him were abated vide order dated 14.12.2012.
6. In the instant case, there is only one alleged eyewitness of the incident of chain snatching and she is the complainant Smt. Santosh Gupta. Further, the stolen property i.e. golden chain was also released on superdari to the said complainant only. Therefore, her examination is necessary for not only proving the theft of the chain but also for producing the stolen golden chain in the court. In her absence, no one else could produce the stolen golden chain in the court. She has remained untraceable and thus, she has failed to enter the witness box for deposition. The prosecution has availed several sufficient opportunities for examining the said witness. The Page No. 3 FIR No. 374/97, PS Model Town, U/s 356/379/411/34 IPC. State Vs. Kuldeep Rai @ Sonu & Ors.
said witness was even summoned through DCP N/W. But it also yielded no fruitful results. It is necessary that the alleged recovered property is proved to be stolen property for indicting the accused persons for criminal liability under Section 411 IPC. In the absence of the statement of the complainant and by non production of the stolen property in the court, it cannot be established that any golden chain was ever stolen or that the alleged recovered golden chain is stolen property of this case. Therefore, the examination of the remaining witnesses would have been a futile exercise. Hence, PE was closed.
7. Statements of both the remaining accused persons U/s 313 Cr.P.C. was separately recorded. All the incriminating evidence against them were put to them for seeking their respective explanations. In the said statements, they have stated that they are innocent and they have been falsely implicated in the present case. However, they preferred not to lead evidence in defence. Thereafter, the matter was listed for final arguments.
8. I have heard Ld. APP for the State and Ld. Counsel for both the accused persons. I have carefully perused the case file.
9. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
10. In order to bring home guilt of the accused persons u/s 356/379/411/34 IPC, the prosecution is required to prove the following ingredients of the said section:
(i) That the accused removed the movable property;
(ii) He removed it out of the possession of another person without his consent;
(iii) He did so with a dishonest intention;
(iv) The accused assaulted or used criminal force in removing the said
movable property;
(v) That the said property is identical with the property said to be stolen;
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FIR No. 374/97, PS Model Town, U/s 356/379/411/34 IPC. State Vs. Kuldeep Rai @ Sonu & Ors.
(vi) That the accused received or retained such property; and
(vii) That the accused while receiving or retaining such property knew or had reason to believe the same to be stolen property.
11. The accused Sandeep Kumar @ Lovely has been charged for the offence punishable u/s 356/379/34 IPC in addition to the offence punishable u/s 411 IPC. As per the case of prosecution, the complainant Smt. Santosh Gupta is the sole eyewitness who had seen the accused committing the offence of chain snatching. However, she has remained untraceable, therefore, her complaint regarding chain snatching and the proof of the identity of the accused has remained unestablished. None of the prosecution witness has identified the accused Sandeep Kumar @ Lovely to be the perpetrator of the present offence. Thus, there is not even an iota of evidence to suggest that the accused Sandeep Kumar @ Lovely committed the offence of chain snatching and so, he is entitled to be acquitted for the offence punishable u/s 356/379/34 IPC. It is pertinent to mention here that the other accused Narender Kumar has not been charged for the offence punishable u/s 356/379/34 IPC.
12. Now, the only offence against the accused persons Sandeep Kumar @ Lovely and Narender Kumar that survives is the offence punishable u/s 411 IPC. The alleged offence of chain snatching took place in the month of May, 1997 and it was allegedly recovered after more than 1 year i.e. in the month of June, 1998. To prove its case u/s 411 IPC against both the accused persons, the prosecution is required to prove that the property recovered from the possession of the accused is a stolen property. In a case titled "Mahabir Vs. State of Bihar, AIR 1972 S.C. 642, the Hon'ble Apex Court has held that : "The essential requirement of the offence of receiving stolen property is that the property seized from the possession of the accused must be proved by the prosecution to be stolen".
In the instant case, the prosecution has alleged that the golden chain was stolen on 08.05.1997 and the present FIR of its theft was lodged by Smt. Santosh Gupta. However, the said complainant Smt. Santosh Page No. 5 FIR No. 374/97, PS Model Town, U/s 356/379/411/34 IPC. State Vs. Kuldeep Rai @ Sonu & Ors.
Gupta never appeared in the court to prove the factum of theft of her golden chain.
Furthermore, the said alleged recovered golden chain never saw light of the day as it was never produced in the court. Besides that, even the photographs of the said golden chain were never produced and shown to the prosecution witnesses/recovery witnesses. Therefore, it has not been established whether any golden chain was ever stolen on the alleged date of incident. In absence of the proof of the theft of the golden chain, there is no possibility of establishing that the alleged recovered golden chain is a stolen property. The guilt of the accused u/s 411 IPC cannot be brought home unless the recovered property is proved to be the stolen property. Thus, one of the most important /essential ingredient is glaringly missing, which has proved fatal to the prosecution case.
13. Moreover, there is reasonable suspicion in the story of prosecution regarding the recovery of the stolen property. The alleged recovery of the golden chain was effected from the accused Narender Kumar on 19.06.1998. The said recovery was allegedly affected from his shop, which is situated in Tilak Nagar, Delhi. It can be safely inferred that many public persons must have been available at the alleged spot of recovery. But despite that, the IO in his wisdom has preferred not to join even a single independent public witness at the time of alleged recovery of the golden chain from the shop of the accused Narender Kumar. This fact itself has further created doubt in the aforesaid story of the prosecution of recovery.
Besides that, if for the sake of arguments, it is presumed that the alleged recovery was affected from the possession of the accused as alleged by the prosecution, in that case also there is no evidence on record to connect /relate the alleged recovered golden chain with the stolen property of this case.
In the wake of above discussion, the prosecution has not only failed to prove the factum of the recovery of stolen golden chain from the accused persons but it has even failed to establish that any golden chain was ever stolen and later, recovered on the respective alleged dates, time and Page No. 6 FIR No. 374/97, PS Model Town, U/s 356/379/411/34 IPC. State Vs. Kuldeep Rai @ Sonu & Ors.
places. Thus, there is no admissible incriminating evidence against either of the accused persons to indict them for their criminal liability u/s 411 IPC and so, both the accused persons are entitled to benefit of doubt.
14. In the light of the above discussion, both the accused persons Sandeep Kumar @ Lovely and Narender Kumar are acquitted for the offence U/s 356/379/411/34 IPC. Both the accused persons are directed to furnish fresh personal bonds in a sum of Rs. 10,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. They have submitted that their respective previous bail bonds and surety bonds be extended for next six months. The said request is allowed and they are accepted for next six months.
File be consigned to record room after due compliance.
ANNOUNCED IN OPEN COURT (DHEERAJ MOR)
Today i.e. 24.06.13. METROPOLITAN MAGISTRATE
ROHINI COURTS: DELHI
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FIR No. 374/97, PS Model Town, U/s 356/379/411/34 IPC. State Vs. Kuldeep Rai @ Sonu & Ors.
FIR NO. 374/97PS. Model Town U/s. 356/379/411/34 IPC.
STATE VS. (1) KULDEEP RAI @ SONU (SINCE EXPIRED)
(2) SANDEEP KUMAR @ LOVELY
(3) NARENDER KUMAR
24.06.2013
Present: Ld. APP for the state.
Accused persons namely Sandeep Kumar @ Lovely and Narender Kumar on bail with their counsel.
No PW is present.
Summons issued to the complainant Smt. Santosh Gupta through D.C.P., N/W, received back with the report that she is not traceable at the given address.
In the instant case, there is only one alleged eyewitness of the incident of chain snatching and she is the complainant Smt. Santosh Gupta. Further, the stolen property i.e. golden chain was also released on superdari to the said complainant only. Therefore, her examination is necessary for not only proving the theft of the chain but also for producing the stolen golden chain in the court. In her absence, no one else can produce the stolen golden chain in the court. She has remained untraceable and thus, she has failed to enter the witness box for deposition. The prosecution has availed several sufficient opportunities for examining the said witness. The said witness was even summoned through DCP N/W. But it also yielded no fruitful results. It is necessary that the alleged recovered property is proved to be stolen property for indicting the accused persons for criminal liability under Section 411 IPC. In the absence of the statement of the complainant and by non production of the stolen property in the court, it cannot be established that any golden chain was ever stolen or that the alleged recovered golden chain is stolen property of this case. Therefore, the examination of the remaining witnesses shall be a futile exercise. Hence, PE stands closed.
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Separate statements u/s 313 Cr.P.C. of both the accused persons namely Sandeep Kumar @ Lovely and Narender Kumar are recorded. They have submitted that they do not want to lead any evidence in defence. Accordingly, DE stands closed.
Final arguments heard. Case file perused.
Vide separate judgment of even date announced in the open Court both the accused persons Sandeep Kumar @ Lovely and Narender Kumar are acquitted for the offence U/s 356/379/411/34 IPC. Both the accused persons are directed to furnish fresh personal bonds in a sum of Rs. 10,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. They have submitted that their respective previous bail bonds and surety bonds be extended for next six months. The said request is allowed and they are accepted for next six months.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi/24.06.2013 Page No. 9