Delhi District Court
State vs . Mamta on 28 July, 2020
IN THE COURT OF SH. ARUN KUMAR GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(SOUTH-WEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs. Mamta
FIR No. 000653/2017
PS : Uttam Nagar
U/s 379 IPC
Date of Institution : 19.02.2018
Date of reserving of order : 03.03.2020
Date of Judgment : 28.07.2020
JUDGMENT
1. Serial No. of the case : 1748/2018
2. Name of the Complainant : Smt. Parul Tyagi W/o Robin Tyagi
3. Date of commission of offence : 28.04.2017
4. Name of accused person : Mamta W/o Sanjay, R/o Farak
Nagar, Rewari, Haryana.
5. Offence charged : U/s 379 IPC
6. Plea of accused : Not guilty
7. Final Order : Acquitted
BRIEF REASONS FOR ORDER:
1. The accused has been chargesheeted for committing the offence punishable under Section 379, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The brief case of the prosecution as per chargesheet is that the present e-FIR has been registered on the complaint of complainant Ms. State Vs. Mamta FIR No. 000653/2017 PS Uttam Nagar Judgment dated 28.07.2020 ARUN Digitally signed by ARUN KUMAR Page 1 of 7 KUMAR GARG Date: 2020.07.28 GARG 18:54:54 +05'30' Parul Tyagi dated 02.05.2017. It has been alleged by the complainant that on 28.04.2017 at about 05.00 pm, she along with her mother in law and her son aged about two years was going to Gupta Jewellers, Uttam Nagar from Dwarka Mor in an e-rickshaw. The complainant had hired a rickshaw for herself. However, after Dwarka Mor, the rickshawala had taken on board the accused, who was holding her daughter aged about six months in her hands. Accused was feeding the child. Near Uttam Nagar Metro Station, the son of complainant suddenly started crying and when the complainant and her mother in law were busy in cheering him, the accused had taken out four gold bangles measuring about 40 grams, her mangalsutra measuring about 20 grams and Rs.37,000/- in cash from the bag of the complainant. When the complainant reached Gupta Jewellers and tried to take out the jewellery from the bag, she found that the chain of the bag was opened and the gold articles as well as the cash were not there. The accused was subsequently apprehended by the complainant herself on 02.05.2017 when she was visiting the police station in order to take a copy of the FIR and she had handed over the accused to the police. It is further the case of the prosecution that despite one day PC remand of the accused, no recovery could be effected from the accused. However, in view of the statement of complainant and her mother in law, the accused was sent for trial of the offence u/s 379 IPC.
3. Cognizance of the offence was taken by learned Predecessor of the Court vide order dated 19.02.2018 and accused was summoned. Subsequently, after compliance with the provisions of Section 207 Cr.P.C, charge u/s 379 IPC was framed against the accused vide order dated 30.06.2018 to which the accused has pleaded not guilty and claimed trial.
4. Prosecution has examined seven witnesses in support of its case.
State Vs. Mamta
FIR No. 000653/2017 PS Uttam Nagar
ARUN Digitally signed
by ARUN
Judgment dated 28.07.2020 KUMAR KUMAR GARG Page 2 of 7
Date: 2020.07.28
GARG 18:55:04 +05'30'
5. Complainant has examined herself as PW1 and has deposed on similar lines on which she has filed the complaint before SHO, PS Uttam Nagar. She has tendered her complaint Ex.PW1/A in her evidence, besides proving the site plan Ex.PW1/B. With the permission of the court, Ld. APP for State has asked one leading question from PW1 regarding the date of recording of statement of the complainant by the police wherein she has admitted that the police has recorded her statement on 02.05.2017 whereas earlier she had denied having given any statement to the police.
6. Smt. Mamta Tyagi, mother in law of the complainant, has been examined by the prosecution as PW2 wherein she has deposed almost on similar lines, on which the complainant has deposed, except minor contradictions as to the place of alighting of Mamta from the e-rickshaw and as to the amount of cash stolen by the accused and the day of reporting of the matter by the complainant to the police. She has proved the arrest memo of the accused Ex.PW2/A and personal search memo of the accused Ex.PW2/B.
7. W/Constable, Poonam who had joined the investigation of the case on 02.05.2017 at the time of arrest and personal search of the accused, has been examined as PW3.
8. SI Rajpal, who had taken one day PC remand of accused Mamta on 03.05.2017 from the Court, has been examined as PW-4.
9. First IO of the case, HC Yad Ram has been examined by the prosecution as PW5 and he has proved the site plan already Ex.PW1/B besides arrest and personal search memo of the accused Ex.PW2/A and Ex.PW2/B. He has also proved the disclosure statement of accused Ex.
PW-5/A.
ARUN Digitally signed
by ARUN
State Vs. Mamta
FIR No. 000653/2017 PS Uttam Nagar
Judgment dated 28.07.2020
KUMAR KUMAR GARG
Date: 2020.07.28 Page 3 of 7
GARG 18:55:15 +05'30'
10. W/Constable Prem Lata, who had joined the investigation with the second IO of the case W/ASI Nimmo on 03.05.2017, has been examined as PW-6 and second IO of the case W/ASI Nimmo has been examined by the prosecution as PW-7.
11. All the aforesaid witnesses, except PW-4 and PW-6, were duly cross examined by learned counsel for accused. PW-4 and PW-6 have not been cross examined on behalf of accused despite opportunity. FIR Ex.AD1 has been admitted by the accused in her statement u/s 294 Cr.P.C on 06.10.2018. No other witness has been examined by the prosecution and hence, the PE was closed vide order dated 25.06.2019.
12. Statement of accused u/s 313 Cr.P.C, after putting the entire incriminating evidence against her, has been recorded on 15.01.2020 wherein she has stated that she has been falsely implicated in the present case and no disclosure statement of the accused was recorded by the IO. She has chosen not to lead any evidence in her defence and accordingly the matter was adjourned for final arguments.
13. Final arguments on behalf of both the parties were thereafter heard prior to the lockdown.
14. It was submitted by learned APP for the state that on the basis of uncontroverted testimonies of PW-1 to PW-7, prosecution has been able to prove its case u/s 379 IPC against the accused beyond reasonable doubts and hence, the accused should be convicted for the aforesaid offence u/s 379 IPC.
15. On the other hand, it is submitted by learned counsel for accused that there is an un-explained delay of almost four days in registration of FIR by the complainant after the alleged day of incident. He submits that there is no date and time on the original tehrir. He further submits that State Vs. Mamta FIR No. 000653/2017 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 28.07.2020 KUMAR KUMAR GARG Date:
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prosecution has failed to examine any eye witness to prove the charge of alleged theft by accused of the articles and cash belonging to complainant, in as much as, admittedly PW-1 and PW-2 had not seen the accused taking out the jewellery articles and money from her bag and no recovery has been effected from the accused by the IO.
16. It is further submitted by him that sturprisingly even after coming to know about the alleged theft, no PCR call was made by the complainant nor had she lodged any police complaint. Subsequently, on 02.05.2017, according to counsel for accused, an empty bag has been planted upon the accused and despite one day PC remand of the accused, the case property could not be recovered. He submits that no CDR/CAF of the accused as well as complainant have been placed on record by the prosecution nor has the prosecution examined the alleged e-rickshaw driver or the jwellery shop where the complainant was allegedly going and had noticed the chain of her bag in open condition. Besides, according to him, the testimony of PW-1 and PW-2 are fraught with contradictions not only as to the amount of cash allegedly stolen by the accused but also about the date of incident as well as the date of reporting of the matter to the police. Under the aforesaid circumstances, according to him, the case of prosecution is shrouded with suspicion and hence, accused should be acquitted of charge u/s 379 IPC.
17. I have heard the submission made on behalf of the parties and have also carefully perused the material available on record.
18. It is well settled legal position that in a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the story of the State Vs. Mamta FIR No. 000653/2017 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 28.07.2020 KUMAR KUMAR GARG Date:
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prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
19. As has already been observed herein above, the accused in the present case has been charged with the offence u/s 379 IPC, on the basis of allegations of complainant that on 28.04.2017 at about 05.00 pm, near Dwarka Mor accused committed theft of four gold bangles, one manglasutra and Rs.37,000/- in cash from the purse of the complainant, when the complainant was busy in cheering up her child. Admittedly, PW- 1 and PW-2 had not seen the accused taking out the aforesaid articles from her purse. In fact the accused has been indicted by the complainant only on the basis of suspicion on seeing that the chain of the bag of the complainant was in open condition after she alighted from the e-rickshaw, wherein, she had been travelling with the accused.
20. The complainant has failed to immediately report the matter to the police and it was only on 02.05.2017 i.e. after a delay of almost four days, an e-FIR was registered by her and on the same day she had handed over the accused to the police. There is no explanation on the part of the complainant as to why she had not made any PCR call immediately after reaching at the shop of Gupta Jwellers, when she first noticed the chain of her bag in open condition or as to why she had not lodged the FIR on the same day. Surprisingly, she kept on looking for the aforesaid lady herself for next two-three days as deposed by her mother-in-law, who has been examined as PW-2. It is further surprising that the complainant herself had apprehended the accused from the same place after about four days and had thereafter handed over her to the police.
21. Despite, one day PC remand of the accused, police could not recover any of the stolen articles either from the possession of the State Vs. Mamta FIR No. 000653/2017 PS Uttam Nagar ARUN Digitally signed by ARUN KUMAR Judgment dated 28.07.2020 KUMAR GARG Page 6 of 7 Date: 2020.07.28 GARG 18:55:54 +05'30' accused or at the instance of the accused.
22. The suspicion, howsoever strong, can not take the place of proof.
23. Thus, in my considered opinion, prosecution has utterly failed to prove its case u/s 379 IPC against the accused by leading any cogent evidence, much less, the prosecution been able to prove its case against the accused beyond reasonable doubts. Accused is thus entitled to acquittal from the charge u/s 379 IPC. She is accordingly acquitted of the charge u/ 379 IPC.
24. Accused has already furnished personal bond and surety bond in sum of Rs.10,000/- each in terms of Section 437-A Cr.P.C on 03.03.2020. The same have already been accepted and shall remain in force for a period of six months from today.
25. Ordered Accordingly.
Pronounced on this 28th day of July, 2020 through VC.
This order consists of 07 digitally signed pages. ARUN Digitally signed
by ARUN KUMAR
KUMAR GARG
Date: 2020.07.28
GARG 18:56:11 +05'30'
(ARUN KUMAR GARG)
Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi State Vs. Mamta FIR No. 000653/2017 PS Uttam Nagar Judgment dated 28.07.2020 Page 7 of 7