Delhi District Court
State vs . Sunil Sharma on 22 January, 2008
1
IN THE COURT OF SH. RAJ KUMAR,
METROPOLITAN MAGISTRATE:KARKARDOOMA COURTS:
SHAHDARA, DELHI
FIR NO. : 340/05
P.S. : Farsh Bazar
U/s : 379/411 IPC
State Vs. Sunil Sharma
1. Sl. No. of the case : 47/F
2. Date of institution : 31.01.2006
3. Name of the complainant : Ajay Kumar
4. Date of commission of offence: 14.10.2005 to
28.10.2005
5. Name of accused : i) Sunil Sharma
S/o.Sh.Madan
Sharma,
R/o.Vill.Partapur,
PS Partapur,
Distt. Meerut,
U.P.
6. Offence complained of : 379/411 IPC
or proved
7. Plea of guilt : Accused pleaded
not guilty
8. Date of reserving the order : 21.01.2008
State vs. Sunil Sharma FIR no.340/05
2
7. Final order : Acquittal
8. Date of such Order : 22.01.2008
JUDGEMENT
1. In brief, it is alleged against the accused Sunil Sharma that on 14.10.2005 to 28.10.2005 in front of H. No.261/1, Gali NO.2, Bhola Nath Nagar, Shahdara, Delhi within the jurisdiction of P. S. Farsh Bazar he intended to take dishonestly the moveable property i.e. a Maruti Car bearing no.DL-4CA-2019 belonging to the complainant Ajay Kumar Vij without his consent and that he moved that property for taking such property and thereafter he was found in possession of the said maruti car which has received or retained knowingly and having reasons to believe that such property was stolen property and thereby committed the offences punishable u/s.379/411 IPC within the cognizance of this court.
2. On the above stated story as per the allegations of the prosecution, vide order dt. 17.01.06 charges were framed by Sh.
State vs. Sunil Sharma FIR no.340/05 3 Raj Kumar Tripathi, the then Ld. MM, Karkardooma Courts, Shahdara against the accused Sunil Sharma for the offence punishable u/s.379/411 IPC, to which the accused pleaded not guilty and claimed trial and thus the trial has commenced.
3. For proving its case the prosecution has examined a total number of six prosecution witnesses .
Out of these six prosecution witnesses PW1 Ajay Kumar Vij, being the complainant came to the witness box to prove the complaint regarding the theft of his maruti car bearing no.DL-4CA- 2019 on which the FIR was lodged and also testified that later on his car was recovered which was taken on superdari by him from police station farsh Bazar. Thus, this witness could prove the complaint regarding the theft of vehicle but nothing to say about the occurrence, though, this witness was the material star witness of the prosecution.
Whereas, PW2 ASI Ehatsham Ali was the duty officer in PS State vs. Sunil Sharma FIR no.340/05 4 Farsh Bazar who came to the witness box to authenticate the registration of the case in case FIR NO.340/05 with PS Farsh Bazar on the statement of the complainant Ajay Pal and proved the copy of FIR as Ex.PW2/A. Similarly, PW3 HC Rajender Prasad was the police official who deposed that accused was arrested when he was produced in the court of Sh. Chandra Shekhar, Ld. MM after taking permission of formal arrest and proved the arrest memo. Thus, both these witnesses are formal to the extent for registration of FIR and thene arrest of the accused.
Further, PW4 ASI Afsar Ali was the MHCM who deposed that maruti car bearing no. DL-4CA-2019 was deposited in the malkhana proved the entry in this regard which was written in his own handwriting.
Further, PW5 HC Ajay Pal was the IO of the case who at the instance of the complainant reached at the spot and searched for the accused as well as the case property. However, later on the State vs. Sunil Sharma FIR no.340/05 5 accused was arrested in another case with case property on which he filed an application for production warrants of the accused and thereafter, he took the case property from PS Partapupr and deposited the same in PS Farsh Bazar. Thus, the witness was nothing to say about the occurrence or about the guilt of the accused and also came to the witness box to prove the documents prepared during the course of investigation by him and other proceedings.
Whereas, PW6 SI Tej Bahadur Singh was another police office but was from PS Sahibabad, UP who deposed that when he was posted in PS Pratapur, Meerut he alongwith other police officials on receiving secret information the accused was apprehended, arrested and maruti car pertaining to the present FIR was recovered. Thus was material to the extent of arrest of the accused prior arrest in this case and recovery of case property.
4. During the course of trial number of documents were State vs. Sunil Sharma FIR no.340/05 6 exhibited in the court to prove the documentary evidence. This list includes complaint Ex.PW1/A, seizure memo Ex.PW1/B, FIR Ex. PW2/A & Ex.PW4/B, arrest memo Ex.PW3/A, entry regarding deposit of case property Ex.PW4/A, seizure memo Ex.PW4/C & Site Plan Ex.P5/A etc. That is all for the prosecution evidence.
5. Statement of accused was recorded under section 313 Cr.P.C. wherein when allegations, evidence, ocular as well as documentary evidence on record were put to the accused one by one, he denied all as incorrect and submitted that all the witnesses are interested/official witnesses who deposed falsely and that he was lifted and was falsely implicated by the police officials of PS Farsh Bazar but in defence he did not lead any defence evidence.
6. I have heard the learned APP for the State and learned defence counsel Ms. Sunita Rani, from Legal Aid, for the accused State vs. Sunil Sharma FIR no.340/05 7 Sunil Sharma.
Learned APP has submitted that the accused as well as the case property was properly identified by the witnesses, that the other circumstances in which the accused was apprehended with the case property i.e. car, that the complaint is proved by the complainant and that the case of the prosecution is proved beyond reasonable doubts, with the support of the corroborative testimony of police officials/documents.
Whereas, Ld. defence counsel has vehemently countered the prosecution case on many counts mainly on the ground that no independence witness was joined, that the complainant had not himself seen the accused committing theft, that documents were not prepared at the spot and also on the ground of material discrepancies in the testimony of prosecution witnesses, thus, requested for taking a lenient view in favour of the accused.
7. On appreciation of evidence on record, consisting of ocular State vs. Sunil Sharma FIR no.340/05 8 as well as documentary evidence, in the light of contentions of both the parties, it was observed that the case of the prosecution is basically based on the sole testimony of PW1 Ajay Kumar who was the complainant in this case as per the prosecution version and no independent witness was made witness at any stage in this case.
8. Further, it is observed that during cross-examination the complainant PW1 Ajay Kumar deposed that he had not seen the accused stealing the maruti car and as the original papers of the vehicle were kept in the case and were not found that is why he had not brought the original papers in the court. Similarly, another prosecution witness HC Ajay Pal who investigated the case in hand deposed that no recovery was effected in his presence, meaning thereby they are material to the extent of the complaint and prior investigation only and for the guilt of the accused or recovery thereafter they say nothing.
State vs. Sunil Sharma FIR no.340/05 9
9. Further, it was observed that PW6 SI Tej Bahadur during his examination-in-chief deposed that accused was apprehended on which a case was registered against him in PS Pratapur,U.P. where the aforesaid SI was posted but during his cross-examination he deposed that he did the patrolling duty in the industrial area prior reaching at the spot but he could not tell any particular of person or vehicle which were checked and inquired during patrolling duty. Further, he deposed that the spot was a public area and some public was coming and going at the spot but he did not take any legal action against whom who refused to join the proceedings despite the fact that police officials can use their powers in accordance with law for joining public persons in investigation of any case.
Further, it is observed that this witness deposed that except seizure memo the writing work was done in the police station meaning thereby the defence of the accused that the documents were not prepared at the spot is correct. Also, it is surprised to note State vs. Sunil Sharma FIR no.340/05 10 that this witness also admitted the suggestion of the defence counsel that nothing was recovered from the possession of the accused meaning thereby another defence of the accused that no recovery was effected if correct.
10. Further, it is observed that as per prosecution story the alleged case property i.e. car bearing no.DL-4CA-2019 was recovered from the possession of the accused on 16.10.2005 at about 10.00p.m. whereas, SI Tej Bahadur Singh who apprehended the accused alongwith the said car deposed that the incident took place at about 8.00p.m. having a difference of two hours.
Thus, testimony of the PW6 SI Tej Bahadur Singh creates doubt that either he apprehended the accused or if he was present at the time of apprehension of the accused and recovery also, then proceedings might have done in the PS itself and not at the spot.
11. Thus, on the basis of above observations on law and facts, State vs. Sunil Sharma FIR no.340/05 11 the court is of the considered view that the case of the prosecution is not proved against the accused beyond reasonable doubts for the offences punishable u/s.379/411 IPC and thus, on the basis of principles of criminal justice system, by giving a benefit of doubt to the accused, accused Sunil Sharma is acquitted from the charges levied against him for the offences punishable u/s.379/411 IPC. ANNOUNCED IN THE OPEN COURT ON 22nd Day of January 2008 ( RAJ KUMAR ) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI State vs. Sunil Sharma FIR no.340/05 12 FIR NO. : 340/05 P.S. : Farsh Bazar U/s : 379/411 IPC State Vs. Sunil Sharma 22.01.08 Present : Ld. APP for the state.
Accused Sunil Sharma produced from JC.
Vide separate order/judgment accused Sunil Sharma is acquitted from the charges as levied against him for the offence punishable under section 379/411 IPC. He be released if not required in any other case.
File be consigned to Record Room.
MM/22.01.2008 State vs. Sunil Sharma FIR no.340/05