Delhi District Court
State vs Satish ("Acquitted") Page 1 Of 14 on 10 September, 2013
FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI FIR No.:272/01 PS: DBG Road U/s 379/411 IPC Unique ID No.: 02401R1360962008 J U D G M E N T:
______________________________________________________________
(a) S.No. of the case : 491/2
(b) Name of complainant : Sh. Dambar Bahadur s/o Sh. Dhan Bahadur r/o H. No.10892, Jag Jeevan Niwas, Karol Bagh, Delhi.
(c) Date of commission of offence : 03.11.2001
(d) Name of the accused : Satish
s/o Sh. Gurpati,
r/o Village Vassi, P.S. Vassi,
District Sidharth Nagar, U.P.
Also at :
Thakur STD, 3014/38, Beedan
Pura, H.S. Road, Karol Bagh,
New Delhi.
(e) Offence complained of : U/s 379/411 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 10.09.2013
(h) Final Order : Acquitted
(i) Date of such order : 10.09.2013
State V/s Satish ("Acquitted") Page 1 of 14
FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013
A. BRIEF FACTS & REASONS FOR SUCH DECISION:
The facts of the case in brief are that on 03.11.2001, ASI Rakesh Yadav alongwith Constable Om Pal were on patrolling duty in the area of Ajmal Khan Park and as soon as they reached at the crossing of rad light at DBG Road, they heard noise of 'CHOR CHOR' and noticed that one Chokidar namely Dambar Bahadur was holding one person namely Satish (accused herein) alongwith some pictures. On enquiry, said Chokidar disclosed that accused had committed theft of certain pictures. Chokidar namely Dambar Bahadur gave complaint to ASI Rakesh Yadav in this regard. On the basis of said complaint, FIR in the matter was got registered and after completion of investigation including arrest of accused, preparation of site plan, relevant memos etc., chargesheet in the matter was filed in court through SHO concerned.
Detail of Court Proceedings:
2. After filing of charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C. After hearing arguments on charge, vide order dated 19.11.2004 charge u/s 379/411 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
Evidence Held:
3. In order to bring home the guilt of accused, prosecution examined as many as four witnesses, whereafter the PE in the matter was closed. State V/s Satish ("Acquitted") Page 2 of 14
FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 Thereafter, statement of accused was recorded u/s 313 Cr.P.C, wherein he pleaded innocence and submitted that he has been falsely implicated in the matter. However, he did not lead any evidence in his defense.
4. Before embarking upon appreciating the material available on record, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
5. PW01 HC Om Pal Singh deposed on the lines of prosecution story. He deposed that on 03.11.2001, he alongwith IO ASI Rakesh Yadav were on night patrolling duty in the area of PS DBG Road. As soon as they reached near crossing of red light at DBG Road, they heard the noise of 'Chor Chor' and noticed that one Chowkidar namely Ishwar Bahadur was raising the alarm who produced one person namely Shankar (accused herein) alongwith 17 framed portraits of different Gods to IO which were seized vide memo Ex.PW1/A. IO prepared rukka and got the FIR registered through him. Thereafter, he returned back to the spot with copy of FIR and original rukka. Thereafter, IO prepared site plan and arrested the accused vide memo Ex.PW1/B and conducted personal search of accused vide memo Ex.PW1/C. At the instance of accused, pointing out memo Ex.PW1/D was prepared. Accused made disclosure statement Ex.PW1/E. This witness correctly identified accused as well as case property before the Court.
This witness was extensively cross examined on behalf of State V/s Satish ("Acquitted") Page 3 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 accused wherein he stated that on the day of incident, he was on night checking duty from 12 night to 05:00 AM. He did not remember the number of portraits of each God but they were of Durga, Hamumanji and Bhola Shankar. The same were plastic laminated. The plastic rope used to tie up the bundle was collected at a distance of 100 meters from the spot i.e. near a shop of Baba Glass Store. He visited the shop of Baba Glass Store and noticed the broken showcase of the store hanging outside shutters. He admitted that no instrument, claimed to be used to break the showcase, was recovered from his possession, in his presence. IO offered his search prior to search of accused. He denied the suggestion put by defense being formal in nature.
6. PW2 Sh. Dhambar Bahadur/complainant deposed that around nine to ten years back, he was doing the work of Chowkidar at Desh Bandhu Gupta Road. He reiterated the facts as disclosed by PW1 to the extent of his doing the work of Chowkidar at the given time, date and place and one person committed theft of photo frames of Gods and Goddesses. However, he claimed that the photo frames were 1214 in number and he cannot identify the person who had committed the theft, due to lapse of considerable period. He, however, proved his statement Ex PW2/A made before police and also identified the case property before the Court. However, this witness was declared hostile and cross examined after due permission of the Court.
During cross examination by Ld. APP, he denied that he had stated to the police that name of accused was disclosed as Satish Kumar s/o State V/s Satish ("Acquitted") Page 4 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 Sh. Gurpati. He could not tell if the total number of the photo frames were 17 as he did not count the same. He had handed over accused with plastic bag to the police. He did not identify accused before the Court. He denied the suggestion that all the documents were prepared by police in his presence or that he had not identified accused being won over by him.
This witness was also cross examined on behalf of accused wherein he stated that he had put his signatures on two to three documents. He did not remember if he had signed some blank papers. Shop was closed and the photographs were kept outside the shop in the locked wooden almirah. The lock was not got broken and door was opened with force.
7. PW3 ASI Rajbir Singh was the Duty Officer at the relevant time who proved the factum of registration of FIR in the matter. He proved the copy of FIR as Ex.PW3/A as also the endorsement made by him on rukka Ex.PW3/B. This witness was not at all cross examined despite being afforded opportunity in this regard.
8. PW4 SI Rakesh Yadav, IO of the case deposed on the similar lines as of PW1 HC Om Pal Singh being associated with him during entire investigation. He proved the rukka Ex.PW4/A and site plan Ex.PW4/B, claimed to be prepared at the instance of complainant. This witness correctly identified the accused as well as case property before the Court.
During cross examination, he stated that he had made inquiry State V/s Satish ("Acquitted") Page 5 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 regarding the employment of complainant as Security Guard and he came to know that he was appointed by market association. He had enquired from the President of the Market Association. He did not remember his name. He had not obtained any document to show the employment of complainant as Security Guard/chowkidar. He volunteered that complainant was privately engaged by the association. He had recorded the statement of owner of Baba Glass House. He admitted that no such witness was mentioned in the list of PWs. He did not remember the name of the owner of Baba Glass House. He admitted the fact that he had not mentioned the name of President of Market Association in the list of PWs. He further admitted that the photo frames/portraits seized and produced do not bear any name or mark showing its owner. He denied the suggestion that he had not properly investigated the matter or that accused has been falsely implicated in this case on instance of the complainant or that accused was under the influence of liquor and he was falsely implicated on a theft charge.
9. This is all as far as prosecution evidence in the matter is concerned.
Arguments advanced and case law relied upon.
10. I have heard final arguments advanced by both the sides at length and also perused the entire material available on judicial record.
11. While referring to the testimonies of prosecution witnesses examined State V/s Satish ("Acquitted") Page 6 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 during trial and the documents proved on record, Ld APP has argued that prosecution has been successful in establishing the guilt of accused in respect of offences charged against him. Ld APP vehemently placed reliance upon the testimony of PW2 Sh. Dhamber Bahadur, in support of her contention that the said witness has duly proved on record that accused herein had committed theft of photo frames. She argued that the relevant portion of the testimony of said witness wherein he narrated the relevant facts regarding commission of theft of photo frames of various gods and goddesses, has not been challenged during cross examination and thus, same amounts to admission thereof on the part of accused. Ld APP further submitted that PW1 and PW4 have also corroborated the statement of PW2 regarding apprehension of accused from the spot and seizure of photo frames lying in his possession. Ld APP also referred to the statement U/s 313 Cr.PC of the accused wherein he has admitted that he was present at the spot on the given date and time. Ld APP further argued that the defence raised by accused in his statement U/s 313 Cr.PC, was neither put to the prosecution witnesses during their cross examination nor otherwise proved by him.
12. Per contra, it has been argued on behalf of accused that no evidence has been led by prosecution in order to show that who was the owner of the stolen property without which offence punishable U/s 379 IPC or 411 IPC is not proved. In this regard, Ld defence counsel referred to the provision contained in Section 378 IPC which defines the expression 'Theft'. He also State V/s Satish ("Acquitted") Page 7 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 referred to the illustration provided below the said provision, in order to highlight the fact that the investigating agency did not conduct any enquiry from the shop keeper from whose shop, the photo frames are alleged to have been stolen. He argued that the prosecution has failed to prove the charges levelled against the accused as the star witness of prosecution namely PW2 Sh. Dhamber Bahadur has also not identified the accused during trial to be the person who had committed the offence. Ld defence counsel submitted that the burden of proof is on the prosecution which they have failed to discharge and therefore, accused is entitled to acquitted in the present case.
13. To counter the aforesaid submissions made on behalf of accused, Ld APP argued that PW2 is none else but Chowkidar/Security Guard who was present in the area at the given time. Ld APP submitted that by virtue of his duty as security guard/chowkidar, he is the custodian of properties lying in the said area and thus, he is the person who was in constructive possession of photo frames stolen by the accused. Ld APP also referred to ExplanationV appended below Section 378 IPC, in support of the aforesaid submission.
14. In order to prove the offence of theft punishable U/s 379 IPC, the prosecution was required to prove the following ingredients:
1. That the accused dishonestly removed the photo frames out of the possession of owner;
2. That the accused removed photo frames without consent; and State V/s Satish ("Acquitted") Page 8 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013
3. That the accused had committed the said act with intent to take the photo frames away from their owners.
15. Now, it has to be seen as to whether prosecution has been able to establish the aforesaid ingredients during the course of trial or not. It is quite apparent from the discussion of the testimonies of prosecution witnesses examined in this case that there is no piece of evidence available on record which may show as to who was the owner of photo frames allegedly stolen in the present case. Although, PW4 namely SI Rakesh Yadav(IO) stated during his testimony that photo frames were belonging to M/s Baba Glass House. He also claimed to have recorded the statement of owner of Baba Glass House but when he was confronted with the judicial record, he had to admit that no such witness is even cited in the list of prosecution witnesses filed alongwith the charge sheet.
16. The entire charge sheet is completely silent about the effort if any made investigating agency to join the owner of Baba Glass House during investigation or to collect any document in order to show that photo frames allegedly seized in the case, were actually belonging to M/s. Baba Glass House. No such witness has been cited or examined during trial from the side of prosecution. In this backdrop, there is substance in the argument advanced on behalf of accused that prosecution has failed to prove that photo frames allegedly seized in this case, were actually belonging to any person. There is no force in the contention of Ld APP that chowkidar/security guard State V/s Satish ("Acquitted") Page 9 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 is presumed to be in constructive possession of those photo frames. Firstly, there is no evidence available on record which may show that PW2 namely Sh. Dhamber Bahadur was actually employed as chowkidar/security guard in the given area. In this regard, the relevant portion of the testimony of IO(PW4) is relevant wherein he claimed to have made enquiry from President of Market Association but neither he could disclose the name of said President nor he obtained any document to show that PW2 was actually employed by any such Association. In case, PW4(IO) had made any enquiry from President of Market Association regarding employment of PW2 then said President ought to have been cited as a prosecution witness and examined during trial in order to prove the factum regarding employment of PW2 which has not been done for the reasons best known to the investigating agency. Secondly, even if it is presumed for the sake of argument that PW2 was working as chowkidar/security guard in the given area, still he cannot be said to be in constructive possession of photo frames in question as chowkidar/security guard is supposed to keep vigil over the area in order to ensure safety of the occupants but it would be unfair to stretch the meaning of expression 'constructive possession' to mean that even a Chowkidar would also be said to be in constructive possession of valuable articles belonging to their respective owners in a given locality.
17. It is well settled law that burden to establish the guilt of accused entirely rests upon the prosecution and it is never shifted upon the accused. It State V/s Satish ("Acquitted") Page 10 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 also goes without saying that prosecution has to stand on its own legs and it cannot draw any strength from the weakness in the defence of the accused. Still if any authority is required then reference with advantage can be made to the judgment reported at 1984(4) SCC 116 at 184:(AIR 1984 SC 1622) (at pages 165556) titled as Sharad Birdhichand Sarda v. State of Maharashtra, wherein it was observed that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence and that is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
18. Law is well settled that suspicion however strong cannot take place of proof as held in Parkash Chander vs. State 1994 JCC Delhi: State(N.C.T of Delhi) V. Navjot Sandhu AIR 2005 SUPREME COURT 3820: R. Sai Bharathi V. J. Jayalalitha AIR 2004 SUPREME COURT 692).
In Thakorbhi Viribhai Vasava & others V/s The State of Gujrat Crime, Vol (1) 1987/37 Gujrat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitle the accused to get acquittal.
19. There are several loopholes in the case of prosecution which create reasonable doubt. Firstly, the photo frames are not shown to have been sealed State V/s Satish ("Acquitted") Page 11 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 by the IO immediately after their seizure. Same is quite evident from the testimony of PW1 during whose statement, the photo frames had been produced before the Court in unsealed condition. Thus, there was every possibility of manipulation in the case property on the part of investigating agency. Secondly, there is no evidence available on record which may show that photo frames in question, had actually been taken out of the possession of any person without the consent of such person. Rather, it has been admitted byPW4 that the photo frames in question did not bear any name or any mark showing their ownership. In this backdrop, it would be useful to refer to the Illustration no. (g) appended below Section 378 IPC which clearly shows that whenever a person finds any movable property lying on road which is not shown to be in possession of any person then the act of such person taking away said property, does not amount to theft.
20. The facts of the present case are squarely covered by the aforesaid illustration as the photo frames in question are claimed to have been found in possession of accused on public road. Thirdly, no instrument used in breaking upon the showcase of Baba Glass House, is shown to have been recovered from the possession of accused. It is relevant to note that in case accused had broken the showcase of the shop in order to remove the photo frames which were lying inside there of then he would have used any instrument in order to break open the door of the said showcase for removing photo frames in question. As per the case of prosecution, the accused was State V/s Satish ("Acquitted") Page 12 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 apprehended at the spot itself by PW2 but still, there is nothing on record which may show that IO made any effort to recover the instrument/tool if any used in the commission of offence. (Although, Ld APP while referring to the relevant portion of cross examination of PW2, submitted that lock of the showcase was not got broken as explained by the said witness and therefore, no fault can be found on the part of investigating agency in not making efforts to seize the instrument/tool used in the commission of offence but the said argument does not carry any force for the simple reason that in case door was opened with force and the lock was found intact then it was incumbent on the part of investigating officer to take photographs of the scene of crime and to make them part of the charge sheet which has not been done in the present case. Moreover, none has come forward to lay his/her claim over the photo frames in question till date which in itself goes to show the photo frames in question are unclaimed property not belonging to any person. Fourthly, PW2 who is the only star witness of prosecution, did not identify accused herein to be the person who was apprehended by him alongwith photo frames in question. As per the case of prosecution, PW1 and PW4 had reached the spot only after the accused had been apprehended by PW2. This, it cannot be said that it was the accused and accused alone who was actually involved in the commission of offence in the present case.
21. In the light of aforesaid discussion, Court is of the view that prosecution has not been able to bring home the guilt of accused beyond State V/s Satish ("Acquitted") Page 13 of 14 FIR No. 272/01: PS DBG Road : U/s 379/411 IPC DOD: 10.09.2013 reasonable doubt. Consequently, accused namely Satish stands acquitted by giving him benefit of doubt. His Personal bond stands cancelled. His surety bond shall remain in force for a period of six months in terms of Section 437 A Cr.PC. Original documents be released to its rightful owner after cancellation of necessary endorsement, if any. File be consigned to record room.
Announced in the open court (Vidya Prakash)
on 10.09.2013 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
State V/s Satish ("Acquitted") Page 14 of 14