Delhi District Court
3.Title State vs Manoj Etc on 14 May, 2012
THE COURT OF SHRI SUNIL KUMAR SHARMA :
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 48/10
2.Unique Case ID No. 02401R0423982010
3.Title State Vs.Manoj etc
3(A).Name of complainant Ajay Kumar s/o Sh. Ram Sewak
Poddar, R/o A-648, Camp No.4,
Jawalapuri New Delhi.
3(B).Name of accused 1) Manoj Kumar s/o Sh. Prithvi Raj
R/o B-582, Camp No.4, Jawalapuri,
Delhi.
2) Ashish Kumar s/o Sh.Mahavir
Singh
R/o A-48, Camp No.4, Jawalapuri,
Delhi.
4.Date of institution of challan 27.04.2010
5.Date of Reserving judgment Pronounced on the same day
6.Date of pronouncement 14.05.12
7.Date of commission of offence 26.02.2010
8.Offence complained of Under Section 457/380/511 IPC
9.Offence charged with Under Section 457/380/511 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Acquitted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The case of the prosecution in a narrow compass is that on 26.02.10 at about 3.30 am at A-648, Camp No.4, Jwalapuri, Delhi within the jurisdiction of P.S. Mainwali Nagar, both the accused persons in furtherance of their common intention along with their other accomplices namely Harsh and Chaman both (Juveniles) committed lurking house trespass/house breaking by night into the FIR NO. 48/10 State Vs Manoj Page No.1/7 shop situated at A-648, Camp No.4, Jwalapuri, Delhi belonging to complainant Ajay Kumar with intentions to commit theft and thereby committed the offence punishable u/s 457/34 IPC and in alternatively on the aforesaid date time and place both the aforesaid accused in furtherance of their common intention at the aforesaid shops of the complainant attempted to commit the theft by breaking the lock of the shutter of shop and there by committed the offence punishable u/s 380/511/34 IPC.
2. The Charge sheet was filed in the court and after compliance of Section 207 Cr.P.C and after hearing parties, charge for the offence punishable u/s 457/380/511/34 IPC was framed on 20.12.2010, against both accused to which they pleaded not guilty and claimed trial.
3. Prosecution in order to prove its case against the accused persons in total examined as many as four witnesses i.e. PW-1 Ajay Kumar, PW2 Narender Kumar, PW3 ASI Ravinder and PW4 SI Shyoram.
PW-1 Ajay Kumar,who is the complainant and at whose instance the FIR Ex. PW-3/A was registered has deposed that he is residing at Ist Floor of A-648, Jawlapuri,Delhi and running a computer repair shop on the ground floor of the aforesaid house. The witness further deposed that on the night of incident he was sleeping at his house above his shop and heard some noises on the night on 25.02.10 between 3.00 am to 3.30 am. He immediately informed his brother Narender and came down from the stairs and found all the locks of his shops in broken condition, 3-4 boys were also present inside his FIR NO. 48/10 State Vs Manoj Page No.2/7 shops. He along with his brother managed to apprehend one of the accused namely Chaman @ Ikhlak. The remaining accused managed to run away from the spot. They made a call to the police and handed over the apprehended juvenile Chaman to the police. IO recorded the statement ExPW1/A bearing his signature at point A and got the FIR registered. The broken locks were also produced by them and the same was seized by the IO vide seizure memo ExPW1/B. The witness has proved the complaint lodged by him as Ex.PW-1/A stating that the same was registered on his complaint. The witness had correctly identified the broken locks as ExP1. The witness has categorically stated that he cannot identified any of the accused person present in the court as none of the accused persons present in the court were apprehended in his presence. The witness has also denied the suggestions of the Ld. APP in his cross-examination that he is not intentionally identifying the accused persons and juvenile Harsh was apprehended along with accused Ashish and Manoj upon his identification and in his presence from their respective houses at the instance of juvenile Chaman. The witness has further deposed that arrest memo of accused Manoj ExPW1/C and personal search memo ExPW1/D were signed by him without reading the content of the same. The same is the deposition of the witness regarding his signature on the arrest memo and personal search memo of accused Ashish Kumar ExPW1/E and ExPW1/F respectively. The witness has specifically stated that he never made any supplementary statement to the investigating officer.
PW-2 Narender Kumar, eye witness has deposed that he is residing at Ist Floor of A-648, Jawlapuri,Delhi and his brother Ajay is FIR NO. 48/10 State Vs Manoj Page No.3/7 running a computer repair shop on the ground floor of the aforesaid house. The witness has further deposed that on the night of incident he was sleeping at his aforesaid house and his brother heard some noises at between 3.00 am to 3.30 am on night of 25.02.10. His brother immediately informed him and they came down from the stairs and found that all the locks of their shops in broken condition 3-4 boys were also present inside their shops. He along with his brother managed to apprehend one of the accused namely Chaman @ Ikhlak. The remaining accused managed to run away from the spot. They made a call to the police and handed over the apprehended juvenile Chaman to the police. IO recorded the statement of his brother and got the FIR registered. The broken locks were also produced by them and the same was seized by the IO vide seizure memo already ExPW1/B. The witness had correctly identified the broken locks as ExP1. The witness has categorically stated that he cannot identified any of the accused person present in the court as none of the accused persons present in the court were apprehended in his presence. The witness has also denied the suggestions of the Ld. APP in his cross-examination that he is not intentionally identifying the accused persons and juvenile Harsh was apprehended along with accused Ashish and Manoj upon his identification and presence from their respective houses at the instance of juvenile Chaman.
PW-3 ASI Ravinder, the Duty Officer has proved the FIR recorded by him in this case on 26.02.10 as Ex.PW-3/A bearing his signatures at Point A as he was the duty officer on that day having duty hours from 12.00 midnight to 8.00 am. The witness has further FIR NO. 48/10 State Vs Manoj Page No.4/7 stated that he also made the endorsement on the rukka in his own handwriting which is Ex.PW-3/B. PW-4 SI Shyoram, IO of the case has deposed that on 26.02.10 he received information regarding theft vide DD No.6A. Accordingly, he along with Ct. Narender Kumar went to the place of incident and met complainant Ajay Kumar and also recorded his statement. The juvenile Chaman was produced by the complainant stating that the Chaman along with his companions were attempting to commit the theft in a shop after breaking the locks. He prepared the tehrir ExPW4/A and handed over the same to Ct. Narender for registration of the case. He prepared the site plan ExPW4/B and seized the broken locks vide seizure memo ExPW1/B and recorded the disclosure statement of juvenile Chaman which led to the apprehension of the another juvenile Harsh and the arrest of co-accused Ashish vide arrest memo ExPW1/F and Manoj Kumar vide arrest memo ExPW1/D. The IO has deposed that both the accused were arrested in the presence of complainant Ajay Kumar after signing the arrest memo by the complainant. The IO had deposed regarding the recording of the supplementary statement of the complainant.
4. No other prosecution witness was examined despite ample opportunity and prosecution witness Narender was dropped in the light of testimonies of PW1 & PW2 and being the formal witness of the case. Accused persons were examined u/s 281 read with Section 313 Cr.P.C. On 14.05.12, wherein both the accused persons submits that they are innocent and have been falsely and wrongly implicated in this case. However, they denied to lead any evidence in defence.
5. I have heard the Ld. APP for the state and Ld. counsel for FIR NO. 48/10 State Vs Manoj Page No.5/7 the accused. I have gone through the entire record carefully.
6. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under:-
" 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".
7. Now the stage has been set to appreciate the entire evidence on record in the light of the testimonies of the witnesses.
9. The most essential thing which the prosecution needs to establish for proving the guilt of accused for the offence punishable U/s 457/380/511 IPC is the identity of the accused persons along with the case property allegedly stolen by them. Therefore, evidence of complainant/victim become most vital for determining the guilt of the accused person. But, in the present case, prosecution has failed to prove the same as both the material prosecution witnesses namely PW-1 Ajay Kumar, the Complainant and the PW-2 Narender Kumar, the eye witness have failed to support the prosecution case. None of the witness examined by the prosecution in support of their case particularly PW-1 and PW-2. Who are claimed to be the complainant and eye witness respectively of the case have supported the prosecution case. Rather the witnesses have turned hostile and have categorically stated that both the accused persons present in the Court were never apprehended in their presence and upon their identification at the instance of juvenile Chaman.
FIR NO. 48/10 State Vs Manoj Page No.6/710. In the absence of any incriminating deposition of the complainant and the alleged eye witness regarding the identity of the accused persons. The prosecution cannot be said to her prove its case beyond reasonable doubts merely on the basis of testimonies of the formal prosecution witnesses.
The careful consideration of testimonies of the remaining witnesses examined by the prosecution in support of their case during the trial reveals that all the witnesses examined by the prosecution are more or less formal in nature who are not connected with the facts in issue.
11. Thus, on the basis of the aforesaid findings, this court is of the considered view that since the most material witness of the case i.e. PW-1 Sh.Ajay Kumar complainant and PW-2 Narender Kumar, has failed to identify both the accused persons and have not supported the prosecution case. Ultimately the prosecution has failed to prove its case against both the accused Manoj Kumar and Ashish Kumar.
Accordingly, both the accused Manoj Kumar and Ashish Kumar stands acquitted for the offences punishable U/sec 457/380/511 IPC.
Surety bond discharged, bail bond cancelled.
File be consigned to record room after due compliance.
Announced in the (Sunil Kumar Sharma)
Open Court on 14.05.12 Metropolitan Magistrate
(West-10)-Delhi.
FIR NO. 48/10 State Vs Manoj Page No.7/7
FIR No 48/10
PS Moti Nagar
14.05.12
Present : Ld. APP for the State
Accused Manoj and Ashish Kumar with counsel.
Statement of accused u/s 281 Cr.PC r/w 313 Cr.PC recorded.
Vide separate judgment dictated and announced today in the open court, both accused stands acquitted for the offece u/s457/380/511 IPC.
Sureties bonds discharged, bail bonds cancelled, original documents be returned after cancellation of endorsement if any.
File be consigned to record room after due compliance.
(Sunil Kumar Sharma) Metropolitan Magistrate, Delhi 14.05.12 FIR NO. 48/10 State Vs Manoj Page No.8/7 FIR NO. 48/10 State Vs Manoj Page No.9/7