Delhi District Court
State vs . Mohd. Shad on 18 January, 2022
IN THE COURT OF Ms. AKANKSHA GARG, MM03: SE/
SAKET COURT, NEW DELHI
FIR NO.00064/2018
PS H.N.Din
U/s 379/411 IPC
State Vs. Mohd. Shad
JUDGMENT
A. SL. NO. OF THE CASE : 4715/2018
B. DATE OF INSTITUTION : 28.07.2018
C. DATE OF OFFENCE : 25.01.2018 & 21.02.2018
D. NAME OF THE : Faheem Seri
COMPLAINANT S/o Shafiq Ahmad
E. NAME OF THE ACCUSED :(1) Mohd. Shad
S/o Sh. Mohd. Iqrar
R/o Mohalla, Rukmanpur,
Kiratpur Basti, Bijour, UP.
F. OFFENCE : U/s 379/411 IPC
COMPLAINED OF
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal.
I. DATE OF FINAL ORDER : 18.01.2022
AKANKSHA Digitally signed by
AKANKSHA GARG
GARG Date: 2022.01.18 15:21:41
+0530
e-FIR NO.00064/2018 PS-H.N. Din State Vs.Mohd. Shad Page No. 1/10
Brief Statement of Reasons for Decision:
1. The present accused Mohd. Shad is produced before the court to stand trial for the offences punishable under sections 379 and 411 of the Indian Penal Code, 1860 (hereinafter, IPC).
2. Succinctly stated, the facts as alleged by the prosecution are that on 25.01.2018 at about 4.20PM at bus stand H.N. Din, a mobile phone of the make Apple Iphone6 belonging to the complainant Sh. Faheem Sheri was stolen. Thereafter, an FIR was registered regarding the same on the same day. Consequently, on 21.02.2018, the present accused was found in possession of the abovesaid stolen mobile phone belonging to the complainant. Thereafter, the accused was arrested and sent to trial for offences u/s 379/411 IPC.
3. The accused appeared before the court on 28.08.2018 and copy of charge sheet was supplied to him as per section 207 The Code of Criminal Procedure 1973 (herein after Cr.PC). Charge u/s.379/411 IPC was framed against the accused on 28.08.2018 to which accused pleaded not guilty and claimed trial.
4. Vide statements recorded on 13.03.2020 accused admitted genuineness of document i.e EFIR NO.00064/18 admitted as ExP/A/1, Seizure memo of FIR No.37/2018 as ExP/A/2, Arrest memo in case FIR No.0037/2018 as ExP/A/3 & search memo ExP/A/4.
Digitally signed by AKANKSHA AKANKSHA GARG
GARG Date: 2022.01.18
15:21:52 +0530
e-FIR NO.00064/2018 PS-H.N. Din State Vs.Mohd. Shad Page No. 2/10
EVIDENCE OF THE PROSECUTION
1. In order to establish its case the prosecution has examined three witnesses in total. Before proceeding further it would be pertinent at this stage to briefly discuss the testimony of these witnesses.
PW1 Faheem Sheri who is the complainant in the present matter has deposed that on 25.01.2018, his mobile phone was stolen at Nizamuddin Bus stand near ITI while he was boarding the bus to Okhla. He further deposed that he filed an eFIR regarding the incident on the same day itself and his statement was recorded on 02.02.2018 which is ExPW1/A. He further deposed that he got the stolen property released on superdari and the site plan which is ExCW1/B was prepared at his instance. He correctly identified the photographs of the phone ExPH1 (colly.) In his crossexamination, PW has admitted the fact that he did not have an opportunity to see the offender.
PW2 ASI Mange Ram has deposed that accused Mohd. Shad was arrested by him vide arrest memo ExPW2/B and stolen phone IPhone6 was recovered from his possession vide seizure memo ExPW2/A. In his cross examination, PW2 admitted the fact that the public persons were present at the time of recovery but no public persons agreed to join the investigation. PW3 HC Akhilesh who is the IO in the present case has desposed that on 25.01.2018, he received an eFIR No.00064/2018 for investigation. He further deposed that he had prepared site plan ExPW1/B at the instance of the complainant. He further deposed that on 21.02.2018, he received information from ASI Mange Ram regarding recovery of stolen mobile phone and he arrested the accused vide arrest memo already ExPW2/B and AKANKSHA Digitally signed by AKANKSHA GARG GARG Date: 2022.01.18 15:22:02 +0530 e-FIR NO.00064/2018 PS-H.N. Din State Vs.Mohd. Shad Page No. 3/10 recorded disclosure statement of the accused vide ExPW3/A. After examination of the abovesaid witnesses, PE was closed.
STATEMENT / DEFENCE OF THE ACCUSED
5. In his examination under Section 313 CrPC, the accused has denied the entire evidence put to him. Accused opted not to lead DE. Thereafter, DE was closed.
ARGUMENTS
6. Learned APP for the State has argued that the testimonies of all prosecution witnesses have established the guilt on the part of accused and that he be convicted for offence under section 411 IPC.On the other hand, it has been argued by the learned counsel for accused that accused is innocent as there is no evidence, which will prove guilt of accused to the hilt. In order to substantiate his arguments Ld Counsel for the accused has pointed out that though the FIR in the present matter was registered on 25.01.2018, the statement of the complainant was only recorded on 02.02.2018.. Ld counsel further argued that the failure to join public witnesses to the recovery raises a doubt on the said recovery and seizure memo. It is further argued by the Ld counsel that the witnesses to the recovery have not been examined by the prosecution and therefore in the absence of same the alleged recovery remains shrouded with doubt.
ANALYSIS AND FINDINGS
7. I have heard Ld. APP for the State and the Ld. counsel for the accused at length and perused the record carefully.
AKANKSHA Digitally signed by AKANKSHA
GARG
GARG Date: 2022.01.18 15:22:24
+0530
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8. In a criminal trial, the onus remains on the prosecution to prove the guilt of the accused beyond all reasonable doubt. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the case of the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
OFFENCE UNDER SECTION 379 IPC
9. Section 379 IPC lays down the punishment for whoever commits theft. In the facts of the present case on the perusal of the FIR and the testimony of the witnesses it has been established that the mobile phone in question was indeed stolen from the possession of the complainant. However, it has nowhere come in evidence that it was in fact the accused who had stolen the said phone. As apparent from the testimony of the complainant PW1 Faheem Sherri that he did not have the opportunity to see the person who had stolen his mobile phone and consequently the witness could not identify the accused at the trial. Also, apart from the complainant there is no other witness to the said incident of theft. And therefore, in my considered opinion it would not be safe to base conviction when the identity of the accused has not been established. Hence, accused stands acquitted for the offence u/s 379 IPC OFFENCE UNDER SECTION 411 IPC
10. Moving on, Section 411 IPC provides that--
"Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
AKANKSHA Digitally signed by AKANKSHA
GARG
GARG Date: 2022.01.18 15:22:34 +0530
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11. In order to prove the charge under Section 411 IPC against the accused, the prosecution was required to prove that the accused had retained or received possession of the scooty belonging to the complainant in question despite having knowledge or reason to believe that the same was stolen.
12. In order to establish the factum of retention of the property by the accused it is indispensable that the fact that the same was recovered from the possession of the accused must be established. The power of the police officer to seize such property which is suspected to have been stolen is derived from section 102 CrPC. However the same needs to be read with section 100(4) CrPC which has been reproduced below:
"Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend"
(emphasis supplied)
13. Therefore, since section 102 CrPC falls within the same chapter as section 100, it is necessary that an independent witness be joined to attend such a seizure.
Digitally signed by AKANKSHA AKANKSHA GARG
GARG Date: 2022.01.18
15:22:43 +0530
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14. Having discussed the law holding the field of search and seizure it would now be appropriate to appreciate the evidence brought forth by the prosecution. Since the testimony of the recovery witness who effects the seizure of the stolen property is pivotal in deciding the case u/s 411 IPC, the testimony of PW2 ASI Mange Ram requires some attention. In his entire testimony the witness has admitted the fact that an independent public witness was not joined at the time of recovery. Though non joining of public witness is not completely fatal to the case of the prosecution to establish the recovery, however in such cases the evidence of the police witnesses is required to be carefully sifted and the court has to appreciate the circumstances under which an independent witness could not be joined by the police and if such circumstances themselves reasonably explain such failure, the court may still hold such recovery to be legal and reliable. The reliance is hereby placed upon Shyam @ Shyamu & Anr v State Of Delhi 2019 SCC OnLine Del 9187 in which Hon'ble High Court of Delhi after perusing a catena of judgments held that mere nonjoining of public witnesses is not always fatal to the case of the prosecution and observed thus "21. We are thus of the opinion that in the instant case, nonjoining of any public witness at the time of recovering the weapons of offence is not enough reason to doubt the truthfulness of the testimony of the police witnesses on the above aspect or discard their evidence. Their testimony inspires confidence."
15. I may also profitably refer to the case of Baldev Singh v State of Haryana (2015) 17 SCC 554, wherein the Hon'ble Supreme Court held as follows: Digitally signed by AKANKSHA AKANKSHA GARG GARG Date: 2022.01.18 15:22:52 +0530 e-FIR NO.00064/2018 PS-H.N. Din State Vs.Mohd. Shad Page No. 7/10 "10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness." (emphasis supplied)
16. In the facts of the present case it is an admitted fact that there were many public persons present at the place of recovery, however no explanation whatsoever has come forth as to why they were not made the witnesses to the alleged recovery or at least a notice was served upon them. In this regard reliance can be placed on Pradeep Narayana v State of Maharashtra AIR 1995 Supreme Court 1930, wherein it was held that failure of police to join witnesses from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Reliance is also placed on Pawan Kumar v The Delhi Administration, 1987 SCC OnLine Del 290, wherein the Hon'ble High Court of Delhi has observed:
"7. ... Here is a case where no effort was made to join any public witness. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part AKANKSHA Digitally signed by AKANKSHA GARG GARG Date: 2022.01.18 15:23:01 +0530 e-FIR NO.00064/2018 PS-H.N. Din State Vs.Mohd. Shad Page No. 8/10 of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
17. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai v State of Gujarat AIR 1988 SC 696. However, in the present case, apart from nonjoining of public witnesses there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
18. The perusal of seizure memo reveals that the same is signed by Ct . Jagram and Ct. Uday Pal as witnesses to the same. However no effort has been made by the prosecution to call any of them to the trial and get them examined. The only witness examined in this regard is ASI Mange Ram who is himself the informer and the IO who prepared the seizure memo.
19. Also no explanation whatsoever has come on record as to why such important witnesses were not examined by the prosecution. In the absence of their testimony the seizure memo cannot be deemed to be proved merely upon the testimony of the IO who effected the recovery and prepared the seizure memo.
AKANKSHA Digitally signed by
AKANKSHA GARG
GARG Date: 2022.01.18 15:23:09
+0530
e-FIR NO.00064/2018 PS-H.N. Din State Vs.Mohd. Shad Page No. 9/10
Therefore in the light of the above the prosecution has glaringly failed to prove the seizure memo and hence the factum of recovery from the possession of the accused is not at all established, let alone meeting the standards of "beyond reasonable doubt".Therefore, in light of the aforementioned, in my reasoned opinion, the prosecution has failed to establish beyond reasonable doubt the charge under Section 411 I.P.C. against accused. The accused is entitled to the benefit of doubt and to be accordingly acquitted of the offence punishable under Section 411 I.P.C.
CONCLUSION
20. Accordingly, the accused is acquitted of the offences punishable under section 379/ 411 I.P.C.
21. Let a copy of this judgment be provided to accused free of cost and a copy be placed on the district court website.
Announced in VC through CISCO Webex on 18.01.2022.
Digitally signed by AKANKSHA AKANKSHA GARG
GARG Date: 2022.01.18 15:23:16
+0530
(AKANKSHA GARG)
MM03 (SouthEast),
Saket Courts, New Delhi
e-FIR NO.00064/2018 PS-H.N. Din State Vs.Mohd. Shad Page No. 10/10