Delhi District Court
State ...........Prosecution vs . on 26 April, 2023
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 122/2020
Police Station Jafarpur Kalan
Under Section(s) 379/411/34 IPC
Cr. Case no. 5251/2020
CNR no. DLSW020233962020
IN THE MATTER OF:
State ...........Prosecution
Vs.
1. Ajay
S/o Sumer Singh
R/o Jhuggi Opposite RTRM Hospital,
J. P. Kalan, Delhi
2. Shiv Narayan @ Shibu
S/o Krishan
R/o H. no.52A, Gali no.14, Dabur Enclave,
Rawta Mor, J. P. Kalan, Delhi
3. Manit Kumar @ Veer
S/o Dinesh Kumar
R/o C/o House of Ram Niwas,
PNB Wali Gali, Village Paprawat,
Najafgarh, Delhi ......Accused persons
1. Name of complainant : Mohit
State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.1/10
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2023.04.26
2. Name of accused persons : 1. Ajay
2. Shiv Narayan @ Shibu
3. Manit Kumar @ Veer
3. Offences complained of : Under Section 379/411/34 of
The Indian Penal Code, 1860
4. Plea of accused persons : Not guilty
5. Date of commission of offence : 29.07.2018
6. Date of institution of case : 11.09.2020
7. Date of reserving judgment : 23.03.2023
8. Date of pronouncement : 26.04.2023
9. Final judgment : Acquitted
JUDGMENT:
1. The present case pertains to prosecution of accused persons in respect of offences punishable under Sections 379/411/34 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity).
2. Shorn of unnecessary details, the case of prosecution is that on 29.07.2018, at about 01:54 am, at Main Dhansa Najafgarh road, Surhera Mor Delhi, the accused persons, in furtherance of their common intention, committed theft of one vehicle, i.e. car bearing registration no.HR55AD1319 along with one Samsung mobile phone, Lenovo tablet and cash of Rs.600/ (henceforth, 'case property') belonging to complainant Mohit. Complaint was lodged by complainant and FIR was registered. Thereafter, on 06.07.2019, at House no.52A, Gali no.14, Dabar Enclave J.P.Kalan, accused Shiv Narayan was found in possession of stolen Samsung mobile phone; and, on 06.07.2019, at PNB Bank Gali, Village Paprawat, accused Manit was found in possession State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.2/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 of stolen Lenovo tablet. IO prepared the site plan and recorded the statements of witnesses under Section 161 Cr. P. C. After the culmination of investigation, chargesheet was filed against the accused persons.
3. Cognizance was taken of offences under Sections 379/411/34 of IPC and accused persons were summoned to face trial for the said offences. Upon their appearance, the copy of chargesheet was supplied to them in compliance with Section 207, Criminal Procedure Code (henceforth 'Cr.P.C').
4. Based on the material filed along with chargesheet, charge was framed against accused Ajay for offence u/S 379/34 IPC, and against accused Manit and Shiv Narayan for offences u/S 379/411/34 IPC, to which they pleaded not guilty and claimed trial. The accused persons admitted the genuineness of FIR no.122/18 along with certificate u/S 65B of The Indian Evidence Act as Ex.A1 (colly), DD no.13A dated 29.07.2018 as Ex.A2 and TIP proceedings as Ex.A3, under Section 294 of Cr.
P. C.
5. In the pursuit to prove its case, the prosecution examined four witnesses in all. PW1 Mohit Kumar (complainant) stated that he did not know anything about the present case and he never made any complaint to the police As PW1 did not support the case of prosecution on material facts, the Ld. APP was granted permission to put him questions in the nature of crossexamination, wherein PW1 denied the suggestion that he had given the complaint Ex.PW1/A to police and stated State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.3/10 Digitally signed by BHARTI BHARTI GARG Date: GARG 2023.04.26 14:49:58 that it did not bear his signatures. He refuted the fact that he used to drive the OLA cab bearing registration number HR55AD 1319, which belonged to Harish; that accused Ajay had booked his OLA cab on the date of alleged incident though mobile number 9711362158 and he had picked up the accused persons in his cab; that when he got down from the cab for emergency for a while, accused persons fled away with the car as well as his two mobile phones and Rs.600/ cash which were kept in the car. He further denied that he was deposing falsely as he had been won over by accused persons. He was not crossexamined by accused persons despite opportunity.
6. PW2 Arvind Arya deposed that he was the AR of OLA Fleet Technologies Pvt. Ltd. in 2018 vide authority letter Ex.PW2/A and had got the vehicle released on superdari vide Ex.PW2/B. He identified the vehicle though photographs Ex.PW2/P1. PW4 Pawan Singh deposed that he had replied to notice u/S 91 Cr.P.C vide letter Ex.PW1/A and proved CAF as Ex.PW4/B, certificate U/s 65B of IEA as Ex.PW4/C and CDR Report as Ex.PW4/D.
7. PW3 SI Ram Bhaj (IO) deposed that upon receiving complaint of complainant on 29.07.2018 at about 11:30 am, he prepared rukka and got registered the FIR. He obtained the certificate under Section 65B of Indian Evidence Act Ex.PW3/A and prepared the site plan at the instance of complainant Ex.PW3/B. He tried to trace the accused persons but in vain. On 30.07.2018, he found the stolen vehicle in an abandoned State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.4/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 14:50:08 +0530 condition at Khera Dabur Road which was seized vide seizure memo Ex.PW3/C. He obtained the CAF and CDR of the mobile number 9711362158 which was used by the accused persons to book the cab. The number was issued in the name of accused Ajay. On 06.07.2019, upon the information given by the secret informer, accused Ajay was arrested vide arrest memo Ex.PW3/D, personally searched vide personal search memo Ex.PW3/E and his disclosure statement was recorded as Ex.PW3/F. The accused Ajay produced the OPPO Mobile phone which was used during the incident and the same was seized seizure memo Ex.PW3/G. Thereafter, the accused Ajay led them to the house of accused Shiv Narain where he was interrogated and his disclosure statement was recorded as Ex.PW3/H. The stolen Samsung mobile phone was recovered at the instance of accused Shiv from his house which was seized vide seizure memo Ex.PW3/I. Accused Shiv was arrested vide arrest memo Ex.PW3/J and personally searched vide personal search memo Ex.PW3/K. Thereafter, accused persons Ajay and Shiv Narain led them to the house of coaccused Manit who was arrested vide arrest memo Ex.PW3/L, personally searched vide personal search memo Ex.PW3/M and his disclosure statement was recorded as Ex.PW3/N. The stolen Lenovo tablet was recovered at the instance of accused Manit from his house which was seized vide seizure memo Ex.PW3/O. The seal after use was handed over to Ct. Azad. Thereafter, all the accused persons led them to the spot of incident and pointing out memo Ex.PW3/P was prepared. He prepared the panchnama of the stolen vehicle at the time State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.5/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 Ex.PW3/Q. An application for TIP of the accused persons was moved vide Ex.PW3/R. In his crossexamination, PW3 stated that he did not get the TIP of case property conducted.
8. On account of the admission made by accused persons under Section 294 Cr.P.C qua the genuineness of FIR no.122/18 along with certificate u/S 65B of The Indian Evidence Act as Ex.A1 (colly), DD no.13A dated 29.07.2018 as Ex.A2 and TIP proceedings as Ex.A3, PWs DO/HC Dinesh Kumar and Ms. Tarun Preet Kaur, Ld. MM were dropped from the list of prosecution witnesses and formal proof of these documents was dispensed with. Further, PWs HC Azad and HC Neeraj were dropped upon the submission of Ld. APP that they had merely accompanied the IO during investigation and sufficient evidence had been procured through the testimonies of remaining witnesses. PW Harish was also dropped as he remained unserved despite multiple efforts even through the office of DCP.
9. Thereafter, the prosecution evidence was closed and statements of accused persons were recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against the accused persons in evidence were put to them. The accused controverted all the allegations levelled against them and stated that they had been falsely implicated.
The accused persons opted not to lead evidence in their defence. Thereafter, the defence evidence was closed and the matter was taken up for final arguments.
10. Arguments heard. Record perused. Considered.
State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.6/10 Digitally signed by BHARTI BHARTI GARG GARG Date: 2023.04.26
11. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
12. Before delving into merits, it is pertinent to give a brief outline of the offences alleged against the accused persons. For the offence of theft under Section 379 IPC, it has to be proved that the accused persons moved the case property with intention to dishonestly take it out of the possession of complainant, whereas for Section 411 IPC, it needs to be proved that the accused persons dishonestly received or retained the stolen case property knowing or having reason to believe that it was stolen.
13. At the outset, the entire case framed by prosecution against the accused persons hinges on the testimony of complainant/ PW1 Mohit as the case property is stated to have been stolen from his possession on the date of alleged incident. Nonetheless, as noted hereinabove, PW1 turned voltefaced and did not make even a slight implication against any of the accused State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.7/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 persons. In fact, he stated that nothing was stolen from his possession and he did not give any police complaint in the case. Accordingly, the testimony of said witness accords no support to prosecution case as far as the indictment against accused persons is concerned.
14. Furthermore, no other prosecution witness cited had witnessed the offence of theft as such, or could have deposed regarding theft. It is noteworthy that the vehicle which was allegedly stolen was found in an abandoned condition on 30.07.2018. That is to say, the said vehicle was not recovered from the possession of any of the accused persons. There is no other material on record to indicate that the said vehicle was stolen by any of the accused persons. Moving further, it is alleged that the stolen Samsung mobile phone was recovered at the instance of accused Shiv and stolen Lenovo tablet was recovered at the instance of accused Manit. Now, PW1 was the only witness who could have deposed that the case property was stolen from his possession on the date and from the place as alleged by the prosecution. Likewise, only the complainant could have identified that the property recovered from the possession of accused persons was the one which was stolen as such from his possession.
15. Thus, even if the facts that Samsung mobile phone and Lenovo tablet were recovered from accused Shiv and Manit were assumed to be true, however, in the absence of complainant deposing as to these material particulars, there is nothing to show State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.8/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.26 14:50:40 +0530 that the phone and tablet so seized from the possession of accused persons were the same property which was the subject matter of present FIR. Admittedly, TIP of case property was also not conducted. Having said that, there is no other ocular or documentary evidence to establish the identity of seized property as the stolen property of complainant, which is a prime requisite to prove charges levelled against the accused persons.
16. In other words, there was no other eyewitness/ material on record who/which could establish that some other person had the possession of Samsung mobile phone and Lenovo tablet before the accused persons got possession thereof. Hence, it is not proved that the accused persons had dishonestly received or retained the case property belonging to the complainant at any point in time. The prosecution has the bounden duty to discharge the initial onus before it can shift on to the other party. As the identity of case property being the one which was stolen from complainant has not been proved by prosecution so as to attract the offences of Sections 379/411 IPC, the inescapable conclusion is that the accused persons are entitled to benefit of doubt.
17. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused persons, the accused 1. Ajay S/o Sumer Singh R/o Jhuggi Opposite RTRM Hospital, J. P. Kalan, Delhi, 2. Shiv Narayan @ Shibu S/o Krishan R/o H. no.52A, Gali no.14, Dabur Enclave, Rawta Mor, J. P. Kalan, Delhi and 3. Manit Kumar @ Veer S/o Dinesh Kumar R/o C/o House of Ram Niwas, PNB Wali State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.9/10 Digitally signed by BHARTI BHARTI GARG Date: GARG 2023.04.26 14:50:50 Gali, Village Paprawat, Najafgarh, Delhi are hereby acquitted of the offences punishable under Sections 379/411/34 of The Indian Penal Code, 1860.
Pronounced in open court in the presence of accused persons on 26.04.2023.
Digitally signed by BHARTIBHARTI GARG GARG Date:
2023.04.26 14:50:59 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/26.04.2023 It is certified that this judgment contains ten pages and each page has been signed by the undersigned.Digitally signed
BHARTI by BHARTI
GARG
GARG Date: 2023.04.26
14:51:10 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/26.04.2023
State Vs. Ajay & Ors. CNR no. DLSW020233962020 Page no.10/10