Delhi District Court
Police Station: Sarita Vihar State vs . Sajid Page No. 1 Of 6 on 20 April, 2015
IN THE COURT OF SHRI ARVIND BANSAL
METROPOLITAN MAGISTRATE (SE) -05
SAKET COURTS : NEW DELHI
JUDGMENT
FIR No.: 664/06 Police Station: Sarita Vihar U/s 379/411/34 IPC I D No. 02403R0111242007 State Versus Sajid s/o Sh. Aas Mohammad r/o New Basti, Old Police Station Kasba Khekra, Distt. Baghpat, Uttar Pradesh.
Sonu s/o Sh. Prabhu Dayal r/o Raja Mohalla, Manender ka Makan, Jasola, New Delhi.
(Since declared Absconder)
.... Accused
(a) Date of Institution: 24.02.2007
(b) Date of Offence: 14.12.2006
(c) Plea of accused: Pleaded not guilty and claimed trial
(d) Argument heard and
reserved for order: Not reserved.
(e) Final Order: Accused Sajid Acquitted
(f) Date of Judgment: 20.04.2015
Brief statement of reasons for decision of the case
1. As stated in the Charge sheet, it is the case of prosecution that on 14.12.2006 at about 07:45 pm at B-433, Madanpur Khadar, New Delhi FIR No. 664/06 Police Station: Sarita Vihar State vs. Sajid Page No. 1 of 6 within the jurisdiction of PS Sarita Vihar, accused Sajid along with his associate namely Sonu (since absconding) committed theft of electricity transformer belonging to complainant company Reliance Power ltd and thereby committed an offence u/s 379 IPC and at the above said date, time and place were found in possession of said transformer knowing or having reason to believe that the same to be a stolen property and thereby committed an offence punishable U/s 411 IPC.
Police apprehended the accused and after interrogation arrested them. The allegedly stolen transformer was also recovered from the possession of accused. During investigation, police also recovered three empty boxes of transformers at the instance of both accused. The said transformer boxes are also stated to be the ones belonging to the same company. The investigation in the case finally culminated into the filing of charge sheet against the accused.
The Court took cognizance of the offence and proceeded against the accused. Upon appearance of accused, copies as required under section 207 Cr. P.C. were supplied and case was fixed for consideration on charge. After hearing arguments and on perusal of record, prima facie case for the offences punishable u/s 379/411/34 IPC was found to be made out against both the accused. Charge was accordingly framed against both the accused to which they pleaded not guilty and claimed trial. Thereafter, case was fixed for prosecution evidence.
During trial, accused Sonu stopped appearing before Court. Court ordered issuance of process u/s 82 Cr.P.C against accused after non execution of warrants of arrest. The proclamation was duly executed. The statement of process server was recorded. Accordingly, accused Sonu was declared Absconder and trial proceeded against accused Sajid.
FIR No. 664/06Police Station: Sarita Vihar State vs. Sajid Page No. 2 of 6
2. In support of its case, prosecution has produced and examined only two witnesses.
PW1 HC Joginder Singh proved the present FIR as Ex. PW1/A and endorsement on Rukka made by him as Ex. PW1/B. PW2 Retd. SI Abdul Quyum testified that on 14.12.06, on receipt of DD No. 18 regarding theft, he along with Ct. Kaptan reached the spot i.e. B-433, Madanpur Khadar, New Delhi where Afzal (JE) and Sanjeev (Chowkidar) met them and handed over custody of accused Sajid & Sonu and one electricity transformer. Afzal gave him a written complaint with respect to theft of electricity transformer which is Ex. PW2/A. He made Rukka Ex. PW2/B on complaint and got FIR registered through Ct. Kaptan. He seized the transformer, one plas and two pane vide seizure memo Ex. PW2/C. Case property was seized from both accused in the presence of complainant Afzal. He arrested and personally searched accused Sonu & Sajid vide memos Ex. PW2/D to Ex. PW2/G. He recorded disclosure statement of both accused Ex. PW2/H & Ex. PW2/I. Accused disclosed that they had stolen more transformers one week ago and had sold the material found inside the transformer and the empty cover / box of the transformers were lying behind the Gas Godown in bushes. Accused took them to said place and pointed out the abovesaid spot. He prepared a pointing out memo of the spot which is Ex. PW2/J. Both the accused got three empty cover / box of transformer recovered. He seized all the three boxes vide seizure memo Ex. PW2/K. He prepared site plan at the instance of complainant Afzal which is Ex. PW2/L. He recorded statement of witnesses and prepared challan and filed the same before Court FIR No. 664/06 Police Station: Sarita Vihar State vs. Sajid Page No. 3 of 6 through SHO concerned. The witness was cross examined by accused.
3. Statement of accused Sajid U/s 313 Cr.PC was duly recorded wherein all the incriminating evidence was put to him. He denied the case of prosecution.
Final arguments advanced by Ld. APP for State and Ld. Counsel for accused heard. Entire judicial record carefully perused.
4. A careful scrutiny of available documents provides that one Afzal (Supervisor / JE) and Sanjeev (Gaurd) have been listed as the complainant and the only eye witnesses to the alleged theft of electricity transformer. The said witnesses could not be served at any of their available addresses despite repeated issuance of the process through various authorities including DCP (SE). The concerned company could also not furnish any record of their present whereabouts despite opportunity. The entire prosecution case for the commission of offence of theft against the accused is based on the statement of complainant Afzal whereby he narrated the incident of theft with dishonest intention of the accused to police authorities. Prosecution case of commission of offence of theft cannot be considered to be standing on its own legs without the testimony of complainant asserting the facts mentioned in his statement / before the police / IO.
In the present matter, the prosecution failed to produce and examine the complainant and other eye witness before Court. Thus, the fact of theft of electricity transformer remains unestablished in the absence of their testimony. Further, the statement of complainant / eye witness recorded by IO U/s 161 Cr.P.C. cannot be considered to be the conclusive FIR No. 664/06 Police Station: Sarita Vihar State vs. Sajid Page No. 4 of 6 proof of the commission of alleged offence. Furthermore, the disclosure statement of the accused regarding the commission said offence cannot be the sole proof of the establishment of the fact of alleged theft. As such, the accused cannot be held guilty on the standard of beyond reasonable doubt for the offence of theft punishable U/s 379 IPC.
As regards, the recovery of three empty boxes of transformers, it is observed that IO failed to collect any document concerning the theft of those transformers from the company. The said transformers could also not be identified by any official of company as the ones stolen from their possession. As such, the theft of those transformers itself is doubtful and therefore, neither the theft nor recovery of those empty boxes can be connected to the accused.
5. The sole testimony of PW2, which is entirely formal in nature, in the aforesaid circumstances, cannot be considered as the proof beyond reasonable doubt to hold the accused guilty of the offence u/s 379/411 IPC. It is so because PW2 was not the witness to the dishonest removal of electricity transformer by accused. The argument of Ld. APP that IO correctly identified the case property in Court, be considered as a sufficient proof for the offence U/s 411 IPC, also cannot be considered. In the opinion of Court, the factum of ownership / possession of case property i.e. electric transformers remained unestablished and thus, the necessary ingredient of the offence of theft remains missing making the circumstances fall short of the standard required for offence U/s 379 r/w 410 IPC. Further, the allegedly recovered transformers were neither produced nor the same were identified by complainant as the stolen property before the Court. Furthermore, it is a settled legal proposition that FIR No. 664/06 Police Station: Sarita Vihar State vs. Sajid Page No. 5 of 6 the case property must fall within the definition of stolen property as defined U/s 410 IPC for making out a case U/s 411 IPC, which is not the fact situation in the present matter. Further more, mere preparation of certain documents by IO including the arrest and personal search memo do not prove the substantive offence against the accused.
6. Since, the prosecution has completely failed to examine the complainant out of whose possession, the accused alleged committed theft of transformers, nothing incriminating to suggest that the accused committed the theft of transformers of complainant, could be brought on record. Thus, the prosecution failed to establish the ingredients of offence alleged against the accused in the present matter beyond reasonable doubt.
7. Accused Sajid, in view of the foregoing discussion, entitles himself to benefit of doubt and is held not guilty of offence u/s 379/411/34 IPC. He is, accordingly, acquitted of the offence u/s 379/411/34 IPC.
Dictated & Announced in open
Court on 20.04.2015 (ARVIND BANSAL)
Metropolitan Magistrate (SE)-05
Saket Court, New Delhi
FIR No. 664/06
Police Station: Sarita Vihar State vs. Sajid Page No. 6 of 6