Delhi District Court
State vs Darshan Singh And Ors on 26 September, 2023
IN THE COURT SH. TUSHAR GUPTA
METROPOLITAN MAGISTRATE - 04
NORTH: ROHINI COURT : NEW DELHI
Cr. Case 12048/2022
STATE Vs. DARSHAN SINGH
FIR No. 1060/2005
PS Prashant Vihar
U/s 379/411/34 IPC
JUDGMENT
A Registration Number 12048/2022
B Name of the State
complainant
C Name of the accused & 1. Darshan Singh
his parentage and S/o Sh. Balwant Singh
address R/o A44, A110, Vijay Vihar,
Also, At: B-17, Vijay Vihar Phase-I,
Sec.-4, Rohini,.
And
2. Lalit @ Bunti
S/o Shankar Lal
R/o F6/189, Sector -16, Rohini, Delhi.
D Offence Complained of 379/411/34 IPC
E Date of commission of 15.12.2005
offence.
F Date of Institution 18.01.2006
G Offence Charged 411 IPC
H Plea of the accused Pleaded not guilty.
person
I Order Reserved on Not reserved.
J Date of Pronouncement 26.09.2023
K Final Order ACQUITTED
Vide this judgment, accused Lalit @ Bunti is being acquitted of the offence punishable under Section 411 of Indian Penal Code (hereinafter referred to as "the IPC") in this case FIR No.1060/2005 Police Station Prashant Vihar for the reasons mentioned below:
Cr. Case 12048/2022 STATE Vs. DARSHAN SINGH AND ARN. FIR No.1060/2005 Page 1/91. PROSECUTION'S CASE:
It is the case of the prosecution that on 14.12.2005 at around 10:30 pm, the complainant Raj Kumar Kapoor had parked his motorcycle bearing No. DL 75U 9174 in front of his house i.e. G-1/62, Sector 15, Rohini, Delhi and on the next morning that motorcycle was not found there. Thereafter, he made complaint.
On 15.12.2005 during picket duty at S Block, Ganda Nala, Sultanapuri the above said motorcycle was found in possession of both the accused persons.
That based on these facts, it is the case of the prosecution that the accused persons are stated to have committed an offence u/s. 379/411/34 IPC which led to registration of FIR No. 1060/2005 at PS Prashant Vihar.
2. CHARGE:
In compliance of the procedural mandate u/s. 173 CrPC, charge-sheet against the accused was filed in the present matter, upon completion of investigation.
Accused persons were summoned to face trial and was supplied with the copy of the charge-sheet as per s. 207 CrPC.
Based on the charge-sheet, a charge for the offences punishable u/s. 411 IPC was framed against both the accused persons, to which they pleaded not guilty and claimed trial.
3. PROSECUTION EVIDENCE:
3(a). PW-1 Raj Kumar Kapoor deposed that on the fateful day, he had parked his motorcycle in front of his said house and on the next day in the morning, he found it to be missing. He kept on searching for his motorcycle but could find Cr. Case 12048/2022 STATE Vs. DARSHAN SINGH AND ARN. FIR No.1060/2005 Page 2/9 no clue. He lodged the complaint Ex. PW-1/A and has shown the police the place from where his said motorcycle had been stolen. He was not able to tell the exact number of the motorcycle that had been stolen and subsequently recovered as well as the date of incident as he had suffered a paralytic attack and memory loss due to that. He got released the said motorcycle on super Dari Ex. PW-1/B. He had brought the said motorcycle make Pulsar. Witness had brought the motorcycle bearing No. DL 75U 9174 and he stated that it was the same motorcycle which had been stolen and later got released by him after recovery. Thereafter, he was refreshed his memory and he stated that the date of theft as intervening night as 04/05.12.2005 and FIR was lodged with respected to that on 08.12.2005.
In his cross-examination, he deposed that he does not know who the thieves of his above said motorcycle were.
3.(b) On 05.11.2012, accused Lalit @ Bunti was declared absconder as he stopped appearing before this court. Thereafter, 08.04.2013, accused Darshan pleaded guilty for the offence charged u/s 411 IPC, hence he was convicted.
3(c). The case is at the stage of PE, however, in absence of other testimony of star witnesses regarding offence against the accused persons, the charges against accused persons cannot be proved. The other witnesses have come into picture only after the commission of offence. Hence, recording the statement of remaining formal witnesses would be a futile exercise and wastage of judicial time, resources, and money. Therefore, PE was closed.
3.(d) There was no eyewitness to the incident. There is no other Cr. Case 12048/2022 STATE Vs. DARSHAN SINGH AND ARN. FIR No.1060/2005 Page 3/9 public witness on record except PW-1 Raj Kumar Kapoor who may prove the offence against accused persons. PW-1 turned hostile during deposition of his evidence.
4. The statement of accused persons U/s 313 Cr.P.C is dispensed with.
5. Ld. APP for the State argued that PW-1 has corroborated himself in all material particulars and accused himself could not lead any plausible defense. Hence, accused should be convicted for the charges framed against him.
On the other hand, Counsel for defense has argued that accused has been falsely implicated in the present matter.
This being the factual, evidentiary and the legal position of the present case, let us analyze whether the prosecution has been able to successfully prove the guilt of the accused on the touchstone of "beyond reasonable doubt".
6. APPLICABLE LEGAL PROVISIONS:
At this juncture, it would be pertinent to lay bare the relevant legal principle pertaining to the alleged offence.
• Section 411 IPC: 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 must 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.Cr. Case 12048/2022 STATE Vs. DARSHAN SINGH AND ARN. FIR No.1060/2005 Page 4/9
• 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, to make out an offence under section 411 IPC, the prosecution is required to establish that the property in question is a stolen property.
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 "property" defined under section 410 IPC.
Thus, the prime ingredient, which need to be satisfied, to bring home a charge u/s.411 IPC is that the property must be of nature defined u/s. 410 IPC. The duty cast upon the prosecution was to show that the case property, found in possession of the accused, was obtained by way of theft/extortion etc. In the present case, owing to the nonappearance of complainant and the owner of the case property, the said fact could not be established.
7. APPRECIATION OF EVIDENCE AND MARSHALLING OF THE FACTS In the opinion of the court, this is a fit case to close PE and acquit accused so as to protect his right of speedy justice as incorporated in Article 21 of Indian Constitution. In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to Cr. Case 12048/2022 STATE Vs. DARSHAN SINGH AND ARN. FIR No.1060/2005 Page 5/9 speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. .................. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted."
(Emphasis supplied) "30........................................ In conclusion we hold: -
(1) ....................
(2)......................
(3) ....................
(4) .....................
(5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right "But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date." to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions".
Furthermore, in Satish Mehra v. Delhi Administration & Anr. (1996) 9 Supreme Court Cases 766, it was observed:
"But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date."
8. Now, in the present factual matrix prosecution has examined one witness. For the sake of brevity, the deposition made by the said witnesses, as recorded above, is not being reiterated. PW/ Raj Kumar Kapoor was the one of complainant/public witness in the present case, who turned hostile. It has surfaced in the deposition of PW-1 that in his Cr. Case 12048/2022 STATE Vs. DARSHAN SINGH AND ARN. FIR No.1060/2005 Page 6/9 cross-examination, he failed to identify the accused persons and stated that he does not know who the thieves of his motorcycle were. PW1 has been examined after lapse of almost 3.5 years from the time of the incident. PW-1 had not supported the prosecution case and he completely turned hostile during his evidence. He even failed to identify the accused in the court. Undoubtedly, the testimony of complainant is material one in such cases and non-identification of accused persons by him become fatal to the prosecution case as he was the material witness, who could have proved his statement u/s 161 CrPC, deposed regarding the alleged incident, identify the accused persons in the Court and in such circumstances, allegations against the accused cannot be proved. Other witnesses cited by the prosecution are police officials or Nodal officers who at the most could have deposed regarding the police proceedings, which is not sufficient to bring home the guilt of the accused in the present case. None of them are the eyewitness of the incident in question. In these circumstances, accused is entitled to every benefit of doubt accruing in him favor.
PW-1 has turned hostile and was got the date of incident memorized by Ld. APP for the State.
The upshot of the above discussion is that the prosecution has miserably failed to prove the foundational ingredient of s. 410 IPC i.e., having possession of stolen article, to commit offence by the accused persons. It would be futile exercise to deal with the other ingredients of the offence as the foundational fact for conviction u/s. 410 IPC have not been proved by the prosecution.
The accused were arrested by the police. Search was conducted by the police and the case property was recovered vide seizure memo in presence of the police Cr. Case 12048/2022 STATE Vs. DARSHAN SINGH AND ARN. FIR No.1060/2005 Page 7/9 officials. There is no independent witness to the search memo as the police officials are the witnesses to the seizure memo. Prosecution has failed to clarify as to why no public person was made witness in the seizure memo. In absence of any public witness it cannot be said beyond reasonable doubt that the case property has been recovered from the possession of the accused. The non-joining of the public witness at the time of alleged recovery of the article creates doubt in the story of the prosecution as was held in Pawan Kumar v. Delhi Administration 1987 CC 585 Delhi High Court. In these circumstances, as despite the presence of public persons at/around the place of alleged recovery the investigating officer failed to join independent public persons as witness to the proceedings of the present matter, warrants an adverse inference to be drawn under Section 114 (g) of the Evidence Act that the evidence if produced would have been unfavorable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery from the accused beyond reasonable doubt. Therefore, the ingredients of section 411 IPC has been duly made out..
10. CONCLUSION:
The onus and duty to prove the case against the accused person is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt regarding the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Considering the above discussion, the unequivocal conclusion that comes forth is that the prosecution has failed to prove the case against Cr. Case 12048/2022 STATE Vs. DARSHAN SINGH AND ARN. FIR No.1060/2005 Page 8/9 the accused on the touchstone of "beyond reasonable doubt". To bring home the charge under s. 410 IPC, the onus was on the prosecution to establish the foundational ingredient of the conspiracy, trespass, and theft. Nothing incriminating has come on record which would implicate the accused person under the said provisions for which accused person has been charged. Therefore, the accused Lalit @ Banti is acquitted of offences charged against him.
Copy of this judgment be given dasti to accused.
Digitally signed by
TUSHAR TUSHAR GUPTA
Announced in open. GUPTA Date: 2023.09.26
17:00:26 +0530
court on 26.09.2023 (TUSHAR GUPTA)
MM-04 (North) Rohini Courts
Delhi/26.09.2023
Certified that this judgment contains 09 pages, and each page bears my signature. Digitally signed TUSHAR by TUSHAR GUPTA GUPTA Date: 2023.09.26 17:00:19 +0530 (TUSHAR GUPTA) MM-04 (North) Rohini Courts Delhi/26.09.2023 Cr. Case 12048/2022 STATE Vs. DARSHAN SINGH AND ARN. FIR No.1060/2005 Page 9/9