Delhi District Court
State vs . Ravi. Fir No. 389/11, Ps Model Town, U/S ... on 31 August, 2012
State Vs. Ravi. FIR No. 389/11, PS Model Town, U/s 379/411 IPC IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR NO. 389/11 PS. Model Town U/s. 379/411 IPC. State Vs. Ravi. JUDGMENT
A. SL. NO. OF THE CASE : 136/11
B. DATE OF INSTITUTION : 30.11.2011
C. DATE OF OFFENCE : 05.10.2011
D. NAME OF THE : Sh. Sanni Mattar
COMPLAINANT S/o Sh. Salimuddin
E. NAME OF THE : Ravi
ACCUSED S/o Sh. Sohan Lal
F. OFFENCE
COMPLAINED OF : U/s 379/411 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquitted
I. DATE OF SUCH ORDER : 31.08.2012.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as unfolded from the chargesheet are that on 05.10.2011 at about 9:30 am in front of Chhattershal Stadium, Model Town, Delhi the accused committed theft of one mobile phone make Lava of the complainant Sh. Sanni Mattar, while the complainant was deboarding from the bus. Thereafter, the accused Ravi was apprehended at the spot by the complainant with the help of his friend namely Ansar Alam and the stolen mobile was recovered by them from the right side pocket of the accused Ravi. On the basis of statement of the complainant Sh. Sanni Mattar, present FIR No. 389/11, U/s 379/411 IPC was registered at PS Model Town, Delhi. On conclusion of investigation, the State Vs. Ravi. FIR No. 389/11, PS Model Town, U/s 379/411 IPC present challan U/s 379/411 IPC was filed in the court.
2. In compliance of Section 207 Cr. P. C., the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge U/s.379/411 IPC was made out against the accused Ravi. Accordingly, on 20.01.2012 the charge was framed by this court. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined two witnesses.
4. PW1 Ct. Neeraj has deposed that on 05.10.2011, he was posted as Ct. at PS Model Town, Delhi. He has further deposed that on that day on receipt of a call, he alongwith SI Ramesh Chand reached at the spot i.e. near Metro Pillar 29, Chhatersal Stadium, where they met the complainant Sh. Sanni Mattar and his friend Ansar Alam, who had apprehended the accused Ravi. He has further testified that the complainant narrated the story to the IO that the accused Ravi had stolen his mobile phone and further, told that they apprehended the accused Ravi near pillar no. 29 after chasing him. He has further testified that the complainant told them that they have already recovered the stolen mobile phone from the possession of the accused. He has proved the seizure memo of the mobile phone as Ex. PW1/A. He has further testified that he took the rukka to PS and got the present case registered. He has correctly identified the accused and the case property i.e. mobile phone make Lava that was produced by the MHC(M) during the testimony of the said witness. The said mobile is exhibited as Ex. P1.
5. PW2 HC Bane Singh has testified that on 05.10.2011 he was posted as a duty officer and on that day, he had registered the present FIR. He has proved the said FIR as Ex.PW2/A and the endorsement on the rukka as Ex.PW2/B. He has proved the DD entry no. 15A dt. 05.10.2011 as Ex. PW2/C. State Vs. Ravi. FIR No. 389/11, PS Model Town, U/s 379/411 IPC
6. The prosecution witnesses i.e. complainant Sh. Sanni Mattar and Ansar Alam are the only alleged eyewitnesses of the incident as the incident of theft occurred in their presence, the accused was allegedly apprehended at the spot by them and subsequently, the alleged recovery of the stolen mobile phone from the accused Ravi was also effected in their presence only, before the arrival of the police. However, the said witnesses have remained untraceable, despite several sufficient opportunities afforded by the prosecution. They were even summoned through DCP N/W, but it also yielded no fruitful results. The remaining witnesses are either police officials or formal witnesses, who are admittedly not the eyewitness to the incident and thus, their testimonies were not likely to substantiate the culpability of the accused for the offence u/s 379/411 IPC. Therefore, no fruitful purpose would have been served by examining the said remaining witnesses. Hence, PE was closed.
7. In the case in hand, the prosecution has examined only two witnesses. But the said witnesses have deposed nothing incriminating against the accused. PW1/Ct. Neeraj is merely an hearsay witness and he has deposed only the fact that was conveyed to him by the complainant. Since, there is no admissible incriminating evidence against the accused on record, therefore, the statement of the accused U/s 313 Cr.P.C. was dispensed with. Subsequently, the case was listed for final arguments.
8. I have heard Ld. APP for the state and Ld. counsel for the accused Ravi. I have carefully perused the case file.
9. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
10. In order to substantiate its case the prosecution is required to prove the following ingredients as mentioned U/s 379/411 IPC:
(i) The accused removed the movable property;
(ii) He removed it out of the possession of another person without his State Vs. Ravi. FIR No. 389/11, PS Model Town, U/s 379/411 IPC consent;
(iii) He did so with a dishonest intention; and
(iv)The accused retained or received the stolen property knowing or having reason to believe it to be the stolen property.
11. In the present case, there are two alleged eyewitnesses to the incident i.e. complainant PW/Sh. Sanni Mattar and PW/Sh. Ansar Alam. However, they have remained untraceable even though several sufficient opportunities were given to the prosecution for their examination. They were even summoned through DCP concerned, but it also yielded no fruitful result. The aforesaid witnesses had allegedly seen the accused committing the offence of theft of mobile phone, the said witnesses had only apprehended the accused at the spot and thereafter, they allegedly recovered the said stolen mobile phone from the possession of the accused, even prior to the arrival of any police official. Thus, the said witnesses are vital/material/crucial witnesses for proving the prosecution version as the entire case of the prosecution is based upon the foundation laid down by the statement given by them to the police. The non examination of the said witnesses has proved fatal to the prosecution case as in absence of their indispensable testimonies the prosecution case cannot be substantiated. Therefore, not only the complaint of the complainant Sh. Sanni Mattar, but also the prosecution version has remained unproved.
12. The identity of the accused is a paramount factor in a criminal trial and unless the same is established the accused cannot be convicted for any offence. None of the prosecution witnesses have identified the accused to be the perpetrator of the present criminal offence. Therefore, the essential ingredients of the offence u/s 379/411 IPC have not been established against the accused Ravi.
Thus, there is not even an iota of incriminating evidence against the accused Ravi to fix his liability U/s 379/411 IPC. The prosecution has failed to prove its case by leading convincing and cogent evidence and thus have failed to discharge the onus placed upon it. Hence, the accused is entitled to benefit of doubt.
13. In the light of the above discussion, the accused Ravi is State Vs. Ravi. FIR No. 389/11, PS Model Town, U/s 379/411 IPC acquitted for the offence U/s 379/411 IPC. The accused be released forthwith, if not required in any other case.
File be consigned to record room after due compliance.
ANNOUNCED IN OPEN COURT (DHEERAJ MOR)
Today i.e. 31/08/12. METROPOLITAN MAGISTRATE
ROHINI COURTS: DELHI
State Vs. Ravi. FIR No. 389/11, PS Model Town, U/s 379/411 IPC FIR NO. 389/11 PS. Model Town U/s.379/411 IPC.
Present: Ld. APP for the state.
Accused produced from J/C with counsel.
Summons issued to the complainant Sh. Sanni Mattar and Sh. Ansar Alam through D.C.P., N/W, received back with the report that they are not traceable.
In the instant case, complainant Sh. Sanni Mattar and Sh. Ansar Alam are the only eyewitnesses to the incident and several opportunities have been granted to the prosecution to examine the said witnesses. But they have remained untraceable. This time summons to them were issued through DCP concerned. But it also yielded no fruitful results. Therefore, no fruitful purpose will be served by issuing fresh summon against them at their same respective addresses. The remaining witnesses are admittedly formal witnesses, who are not the eyewitnesses to the alleged incident of theft or the fact regarding the alleged recovery of stolen mobile from the accused. Therefore, they are not likely to substantiate the culpability of the accused for the offence U/s 379/411 IPC. Hence, the examination of the remaining witnesses shall be a futile exercise. Thus, PE stands closed.
In the instant case, there is no incriminating evidence against the accused. Therefore, the statement of the accused U/s 313 Cr. P. C. is dispensed with.
Vide separate judgment of even date announced in the open Court the accused namely Ravi stands acquitted for the offence punishable U/s 379/411 IPC. The accused Ravi be released, if, not required in any another case.
File be consigned to record room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi/31.08.2012