Delhi District Court
Title State vs . Alam @ Shanay Etc. on 22 March, 2023
IN THE COURT OF MS. HIMANSHI TYAGI,
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
JUDGMENT
FIR No. 130/2011 Police Station Gazipur Unique Case ID No. 1587/2016 Title State Vs. Alam @ Shanay Etc. Name of complainant Prateek Tiwari Name of accused (1) Alam @ Shanay (2) Zafar Alam (Expired on 25.08.2017) Date of institution of challan 05.09.2012 Date of Final arguments 22.03.2023 Date of pronouncement 22.03.2023 Offence complained of 379/411/34 IPC Offence charged with 411/34 IPC Plea of the accused Pleaded not guilty claimed trial Final order Acquitted Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
FIR No. 130/2011 State Vs. Alam Etc. page1 of 10 2023.03.22 18:10:04 +0530 BRIEF REASONS FOR THE DECISION OF THE CASE:-
Succinctly stated facts of the prosecution case are that on 27.04.2011to 28.04. 2011 at about 08:30 p.m. to 5:30 am while the complainant Pratik Tiwari was inside his house, some unknown persons stole the motorcycle bearing no DL 8 SU 6287 of the complainant. With regard to the aforesaid incident, a DD Entry No. 12 A was recorded at police station Ghazipur and the same was assigned to SI Sanjeev Kumar for necessary action. On receipt of the said DD Entry, he went to the spot and recorded the statement of the complainant Smt. Sameena, on the basis whereof, present FIR no 130/2011 PS Ghazipur which is Ex. PW1/A was registered against unknown persons u/s 379 IPC. On 23.06.2011 the IO received DD Entry no 29A to the effect that stolen case property i.e motorcycle bearing no DL-8SU-6287 has been recovered from Alam and Jafar on 23.06.2011 and that they have also suffered disclosure statements regarding their involvement in the present case. Consequently, they were formally arrested by the IO in the present case on 24.06.2011.
02. After completion of the investigation, charge-sheet under section 411/34 IPC was filed before the court. Consequently, accused persons were summoned to face the trial. On their appearance, in the Court, copies of documents, relied upon by the prosecution, were Digitally supplied to them as per norms. signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.03.22 18:10:11 FIR No. 130/2011 State Vs. Alam Etc. page2 of+0530 10
03. Thereafter, charge under sections 411/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial. The accused Jafar expired by suicide in the year 2017 during the pendency trail and proceedings qua him stood abated vide order dated 22.93.2023.
04. With a view to connect the accused persons with the crime, the prosecution has examined only three witnesses, however, it did not include the complainant.
05. PW1/Retd ASI Singh Raj Bhati was the DO who proved FIR the FIR Ex PW 1/A. He was not cross examined by the counsel of the accused despite opportunity.
06. PW2 is W/HC Vikas who deposed that on 23.06.2011, he alongwith HC Sanjay and HC Yashpal was on patrolling duty in the area of Lalita Park, Shakarpur and at about 5.20 p.m. while patrolling, they reached near footover bridge, they saw two boys on a silver colour Pulsar motorcycle under the footover bridge and when they moved towards them, they started the motorcycle and drove it towards the side of Geeta Colony in wrong direction. Finding the same suspicious, they apprehended those boys. alongwith the motorcycle.
The witness did not remember which accused was driving the motorcycle. He deposed that registration number of the motorcycle FIR No. 130/2011 State Vs. Alam Etc. page3 of 10 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.03.22 18:10:16 +0530 was DL-8SU-6287. He deposed that HC Yashpal asked those boys to produce the documents pertaining to motorcycle, but they could not produce the same. and these boys were interrogated and they revealed that they had stolen the motorcycle from the area of PS Gazipur in the month of April 2011. The names of those boys revealed as Zafar and Alam. He further deposed that IO/HC Yashpal had seized the case property vide seizure memo Ex. PW2/A , arrested the accused vide arrest memo Ex. PW2/B and Ex. PW2/C, conducted their personal search vide personal search memo Ex. PW2/D and Ex. PW2/E. He was cross examined by the counsel of the accused.
07. PW3 is HC Ramvir produced the original register no. 19 and proves the entry at serial no. 4531, Ex. PW3/A. He deposed that as per records, on 23.06.2011, case property i.e. motorcycle bearing No. DL-8SU- 6287 Bajaj Pulsar, Silver Colour had been deposited in the Malkhana PS Shakarpur by HC Yashpal in DD entry no. 37-A u/s. 102 Cr.PC and then it was taken by PSI Sanjiv Kumar from PS Gazipur on 01.07.2011 vide RC No. 44/21/11. He was cross examined by the counsel of the accused.
08. The complainant was summoned to testify about the incident. They could not be examined by the prosecution despite availing numerous opportunities. Even their presence could not be secured through the office of concerned DCP. Therefore, considering FIR No. 130/2011 State Vs. Alam Etc. page4 of 10 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.03.22 18:10:22 +0530 the report submitted by the office worthy DCP, they were dropped from the list of witness and PE was closed and request of the learned APP for State to examine all the prosecution witnesses was declined as no useful purpose would be served by examining the rest of the witnesses, who are formal in nature. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that "...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date...........".
09. Moreover, right to speedy trial is constitutionally guaranteed fundamental right of the accused person. It has been held in P. Ramchandra Rao vs. State of Karnataka AIR 2022 SC 1856 that the court should exercise its power available under Criminal Procedure Code to give effect to the right of speedy trial to the accused. Similar observations were made in Pankaj Kumar vs. State of Mahrashtra AIR 2008 SC 3057. Furthermore, in Satish Mehra vs. Delhi Administration & Abr. 1996 JCC 507 Hon'ble Supreme FIR No. 130/2011 State Vs. Alam Etc. page5 of 10Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.03.22 18:10:26 +0530 Court has held that valuable time of the court should not be wasted merely for formal completion of procedure when there is no chance of the trial culminating in conviction.
10. Thereafter, in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded without oath under section 281 read with section 313 CrPC.
In reply, the accused person stated that he has been falsely implicated in the present case. Thereafter, he stated that he does not wish to lead evidence in his defence and the same was closed.
11. I have heard the rival submissions advanced by the learned APP for State and the learned counsel for the accused and have also perused the records very carefully.
ARGUMENTS
12. It is submitted by the learned counsel for the accused persons that the accused persons are charged for the offences punishable under section 411 IPC but the prosecution has failed to examine the complainant despite availing numerous opportunities and in the absence of the testimony of complainant/victim there is nothing on record to establish that alleged offence was committed by accused Digitally signed by FIR No. 130/2011 State Vs. Alam Etc. page6 of 10 HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.03.22 18:10:34 +0530 persons. He, therefore, requested that the accused persons may be acquitted of the charge levelled against them. DECISION AND BRIEF REASONS FOR THE SAME
13. Before I advert to rival submissions made by the learned APP for the State and the learned defence counsel, I to refer to the relevant provisions of IPC.
Section 411 IPC reads as under:
Sec.411- Dishonestly receiving stolen property-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."
The term "stolen property" is defined in section 410 IPC. It reads as under:-
Sec.410. Stolen property-Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which 1[***] criminal breach of trust has been committed, is designated as "stolen property", [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without 3[India]]. But, if such property subsequently comes into the Digitally signed by HIMANSHI FIR No. 130/2011 State Vs. Alam Etc. page7HIMANSHI of 10 TYAGI TYAGI Date:
2023.03.22 18:10:41 +0530 possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
14. In Triambak vs State of MP (AIR 1954 SC 39), the Hon'ble Supreme Court of India while laying down the essential ingredients of the offences u/s 411 IPC held as follows:
"It is the duty of the prosecution in order to bring home the guilt of a person under Section 411, IPC to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. There is no reliable evidence to prove either of these facts."
15. Thus, in every case under section 411 IPC two facts viz. that a theft was committed and certain articles were stolen, and that the stolen articles were recovered from the possession of the accused have to be established by direct evidence. If it is proved that a theft was committed and that soon after it was committed, the stolen property was recovered from the possession of the accused, presumption can be raised under section 114, Illustration (a) of the Indian Evidence Act that the accused is either the thief or the receiver of the property knowing it to be stolen. Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.03.22 FIR No. 130/2011 State Vs. Alam Etc. page8 of 18:10:52 10 +0530 Illustration (a) of section 114, Evidence Act runs as follows:
The Court may presume:
(a) that a man who is in possession of stolen goods, soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
Thus, in order to make out an offence under section 411 IPC, the prosecution is required to establish that the property in question is a stolen property.
16. It is elementary that there can be no offence of dishonestly receiving stolen property unless the property which is alleged to be the subject of such receiving, answers the description of "stolen property" defined under section 410 IPC.
17. To prove its case, prosecution has cited as many as fifteen witnesses. However, the first informant/rightful owner of the property is not examined by the prosecution. Therefore, in the absence of testimony of complainant, the recovery of the stolen article alleged to have been from the accused Alam @ Shanay does not connect him with the crime as no evidence is adduced by the prosecution to show that the motorcycle had, in fact, been stolen from the possession of the complainant or that the same belonged to him. The factum of theft could have been proved only by the complainant. He could not be examined in Court by the prosecution despite giving numerous Digitally signed by HIMANSHI HIMANSHI TYAGI FIR No. 130/2011 State Vs. Alam Etc. page9 of 10 TYAGI Date:
2023.03.22 18:10:58 +0530 opportunities. Even their presence could not be secured through the office of DCP. Further, the case property i.e. the gold chain was also not produced before the court at any point of time.
18. Therefore, I am of the considered opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, accused Alam @ Shanay is acquitted for the offence punishable u/s 411/34 IPC. Accused to furnish bail bonds in compliance of Section 437-A Cr.PC.
Pronounced in open Court on 22.03.2023 The Judgment contains a total of 10 pages and each page has been signed by the undersigned. Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.03.22 18:11:03 +0530 (Himanshi Tyagi) Metropolitan Magistrate-03 (East), Karkardooma Courts, Delhi FIR No. 130/2011 State Vs. Alam Etc. page10 of 10