Delhi District Court
State vs . Devender on 8 December, 2022
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
DLSW020148622019
IN THE MATTER OF :
State Vs. Devender
FIR No. 929/2018
PS : Uttam Nagar
U/s 380/411 IPC
Date of Institution : 29.03.2019
Date of Judgment : 08.12.2022
JUDGMENT
1. Serial No. of the case : 8421/2019
2. Name of the Complainant : Ranjay S/o Satya Narayan, R/o Jhuggi no.2/66, T-Camp, Kali Basti, Uttam Nagar, Delhi.
3. Date of commission of offence : 05.10.2018
4. Name of accused person : Devender S/o Laxmi Chand, State Vs. Devender FIR No. 929/18 P.S. Uttam Nagar Judgment dated 08.12.2022. Page No. 1 of 9 Digitally signed by ALKA ALKA SINGH Date:
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R/o Jhuggi No.55, T-Camp,
Krishna Colony, Kali Basti,
Uttam Nagar, Delhi.
Also at : Village Sikandra Rao,
Hathras, U.P.
5. Offence charged : U/s 380/411 IPC
6. Plea of accused : Not guilty
7. Ld. APP for the State : Sh. Pankaj Gulia
8. Final Order : ACQUITTAL
BRIEF REASONS FOR ORDER:
1. The accused has been charge-sheeted for committing offences punishable under Section 380/411 Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. It has been alleged by the prosecution that on 05.10.2018, at about 08:00 a.m. at Jhuggi no. J-2/66, T Camp, Kali Basti, Uttam Nagar, New Delhi, the accused committed the theft of the mobile phone of the complainant from his house and the same was also recovered from him, thus it is alleged that he committed an offence u/s 380/411 IPC.
3. Thereafter, the present charge-sheet was filed for offence punishable under Sections 380/411 IPC. Cognizance of offences was taken and accused was summoned to face trial. Copy of the charge-
State Vs. Devender
FIR No. 929/18 P.S. Uttam Nagar
Judgment dated 08.12.2022. Page No. 2 of 9
Digitally
signed by
ALKA ALKA SINGH
Date:
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sheet alongwith all annexures were supplied to the accused in terms of Section 207 Cr.P.C.
4. After giving opportunity to state as well as accused for making submissions on charge, a charge for offence u/s 380/411 IPC was framed against the accused on 10.07.2019 to which he pleaded not guilty and claimed trial.
5. In order to prove its case, a total of 3 witnesses were examined on behalf of the prosecution.
6. Complainant Ranjan Kumar was examined as PW-1 who had deposed that on 05.10.2018, while he was sleeping in his house, suddenly woke up and saw that his neighbour namely Devender had taken his mobile phone and cash amount of Rs. 15,000/- from his room, whereafter he raised an alarm and caught him red handed and also made a call at 100 no. It was further deposed that the police arrived after some time and he handed over the custody of the accused and the stolen mobile phone to SI Surender Singh, afterwhich, his statement was recorded and he also gave his complaint Ex.PW-1/A to the SHO. (Accused was present in the court and was correctly identified by the witness). The witness also correctly identified the case property i.e. Jio Mobile Phone produced by the MHC(m). However, the said case property was produced in unsealed condition.
In his cross-examination, it was stated that he is not acquainted with the accused and the incident had taken place at about State Vs. Devender FIR No. 929/18 P.S. Uttam Nagar Judgment dated 08.12.2022. Page No. 3 of 9 Digitally signed by ALKA ALKA SINGH Date:
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08:30 a.m.
7. PW2 HC Parivendra was examined who deposed that on 05.10.2018, DD no. 39A was received by ASI Surender Singh whereafter they both went to the place of incident and met the complainant who had already apprehended the accused and also handed over the mobile phone allegedly stoled by the accused, to them. The witness also correctly identified the accused and also the case property. The witness was not cross-examined by the defence counsel despite opportunity.
8. As PW3 prosecution examined ASI Surender Singh who also deposed the same facts as that of PW-2 and further stated that accused has disclosed his name as Devender and he was arrested vide arrest memo Ex.PW-3/A and his personal search was conducted vide memo Ex.PW-3/B. It was also stated by the witness that he prepared a Tehrir Ex.PW-3/D which was given to HC Parvindra for registration of the FIR and the registration of the FIR HC Parvindra came back and gave him the copy of the FIR and original Tehrir. It was stated that the stolen mobile phone was also seized vide seizure memo Ex.PW-3/E. The witness also correctly identified the accused and the case property which was produced in the unsealed condition and the same was Ex.P-
1. In his cross-examination,he was generally questioned about the distance between the PS and the scene of crime and also about the mode of conveyance which was used for arriving at the spot. It was State Vs. Devender FIR No. 929/18 P.S. Uttam Nagar Judgment dated 08.12.2022. Page No. 4 of 9 Digitally signed by ALKA ALKA SINGH Date:
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also stated that though there were certain public persons present at the spot but none of them joined the investigation and also did not disclose their name and addresses. It was also stated that the complainant had not produced any documents of ownership regarding the stolen mobile phone. All the adverse suggestions were thereafter denied.
9. The record transpires that without admitting the content therein accused admitted the FIR Ex.X-1, Certificate U/s 65B of IEA X-2 and DD no.39A Ex.X-3, in terms of section 294 Cr.P.C. Accordingly, the formal proof of these documents were dispensed with.
10. On 11.10.2022, statement of accused was recorded under Section 313 Cr.P.C. to allow him to explain the incriminating circumstances appearing in evidences against him wherein it was stated that he is innocent and that the complainant is his neighbour and on that particular day, the children of the complainant were playing with his nephew and they had come with the mobile phone of the complainant and had left the mobile phone at his place. He further stated that the also informed his father regarding the same and his father returned the mobile phone to its owner despite that the complainant lodged the FIR against him.
11. Since the accused chose not to lead any evidence in his defence, therefore, the matter was adjourned for final arguments.
12. Final arguments were thereafter heard on behalf of state as well State Vs. Devender FIR No. 929/18 P.S. Uttam Nagar Judgment dated 08.12.2022. Page No. 5 of 9 Digitally signed by ALKA ALKA SINGH Date:
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as the accused on 28.11.2022.
13. I have carefully considered the submissions made on behalf of the parties and have perused the case file meticulously.
14. Now this court shall appreciate the evidences one by one in order to decide whether the prosecution has been successful in proving its case.
15. In the present case the accused was charged U/s 380/411 IPC. The combined effect of first two sections, succinctly would be that whoever, commits theft in any building, house etc used as human dwelling or used for the custody of property and thereafter was found in the possession of the said stolen property shall be punished, if the same was retained with the knowledge that the same is a stolen property.
16. In the case in hand, it is not in dispute that the accused was caught red handed by the complainant, however, as per the oral testimony of the complainant on the date of the alleged incident, he saw that accused i.e. his neigbhour Devender had taken his mobile phone and cash amount of Rs.15000/- from his room and captured him on the spot. However, strangely in his cross-examination which was conducted on the very same day, it was stated by him that he was not acquainted with accused and thereby contradicted his own statement as above i.e. "he saw his neigbhour Devender". Further, even though, it State Vs. Devender FIR No. 929/18 P.S. Uttam Nagar Judgment dated 08.12.2022. Page No. 6 of 9 Digitally signed by ALKA ALKA SINGH Date: SINGH 2022.12.09 11:31:46 +0530 has been claimed by the complainant that accused also took the cash amount of Rs.15,000/- from his room apart from his mobile phone but this fact was not so stated by the complainant in his initial complaint Ex. PW1/A given to the police. Moreover, though the complainant handed over the accused and the mobile phone to the police, after it has arrived on a call made by him at 100 number, however, what is very peculiar here is the fact that there is no mention whatsoever of the fact that the cash amount of Rs.15,000/- at all in any form, i.e. it has nowhere been divulged by the complainant if the said cash amount was also recovered from the possession of the accused or not. If yes, did he not hand over the said amount to the police also, along with the stolen mobile phone and if the same was not recovered from the accused then how could the complainant claim that the said amount was stolen by the said accused because as per his claim he had caught the accused red handed and there was no interregnum period wherein the accused was out of the sight of the complainant or he had any chance of escaping the custody of the complainant till the time he was handed over to the police, in the meantime of which he could have disposed of the said cash amount. Thus, this entire set of facts appear to be an after thought conceived by the complainant for the reasons best known to him and that's why the same facts were not told to the police by him at any point of time during investigation and hence, this obscure conduct of the complainant has made his entire case susceptible to suspicion and consequently unreliable.
17. Even though, there is no bar upon relying on the testimony of the State Vs. Devender FIR No. 929/18 P.S. Uttam Nagar Judgment dated 08.12.2022. Page No. 7 of 9 Digitally signed by ALKA ALKA SINGH Date: SINGH 2022.12.09 11:32:15 +0530 sole witness i.e. the complainant in the present case and also he is the only witness. In the case titled as Kalu @ Amit vs. State of Haryana, 2301 (I) AD SC 641, it was held by the Hon'ble Supreme Court of India that the conviction can be based on the evidence of the sole eye witness if his evidence inspires confidence. However, the said criteria is not fulfilled in the present case i.e. to say that the complainant neither appears to be truthful nor his story sounds believable i.e. his testimony does not inspires the confidence of the court. What is also odd in the present case is that the complainant never got his mobile phone released on Superdari nor any documentary proof was adduced on the record to show that the stolen mobile phone belonged to him.
18. Even the site plan does not depict the clear position of the house of the complainant from which the alleged mobile phone was stolen i.e. the mobile phone was allegedly stolen from the Jhuggi whose position is not clear in the said site plan. Also the complainant has not been made a witness of the site plan which casts doubt on its being authentic. Thus, in view of the above the court is rather inclined to accept the version of the accused as genuine i.e. his statement U/s 313 CrPC wherein it has been claimed by the accused that the said mobile phone left at his place by the kids of the complainant himself.
19. Hence, in view of the aforesaid discussions and reasons, it can conclusively, be held that Prosecution has failed to prove its case against the accused beyond reasonable doubts and therefore, the accused namely Devender S/o Sh. Laxmi Chand is acquitted of the State Vs. Devender FIR No. 929/18 P.S. Uttam Nagar Judgment dated 08.12.2022. Page No. 8 of 9 Digitally signed by ALKA ALKA SINGH Date:
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charge for the offence u/s 380/411 IPC.
20. Ordered Accordingly.
Pronounced in the open court on this Day of 8th December, 2022. This judgment consists of 9 signed pages.
ALKA Digitally signed by ALKA SINGH SINGH Date: 2022.12.09 11:32:31 +0530 (ALKA SINGH) Metropolitan Magistrate-08/ South-West Dwarka Courts: New Delhi State Vs. Devender FIR No. 929/18 P.S. Uttam Nagar Judgment dated 08.12.2022. Page No. 9 of 9