Delhi District Court
State vs . Ghanshyam on 28 January, 2020
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI
FIR No. 201/13
U/s 379/411 IPC
PS: Swaroop Nagar
State vs. Ghanshyam
Date of Institution of case:19.03.2014
Date of Judgment reserved:17.01.2020
Date on which Judgment pronounced:28.01.2020
JUDGMENT
Unique ID no. : 5287731/16 Date of Commission of offence : 14.09.2013 Name of the complainant : Sh. Lakhbir Singh
Name and address of the accused : Ghanshyam S/o Sh. Karam Lal
persons R/o House No. A70, Gali no. 9,
Village Shalimar Bagh, Delhi.
Offence complained of : 379/411 IPC
Plea of accused : Not guilty
Date of order : 28.01.2020
Final Order : Acquitted
State Vs. Ghanshyam
FIR no. 201/13 Page 1 of 10
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:
The case of the prosecution in brief is that 14.09.2013, at about 5.15 am at service road, behind Swaroop Nagar Bus Stand, GTK Road, Near Ganda Nala, accused dishonestly removed 4 cartoons from truck bearing registration No. PB08AR1625 belonging to the complainant Lakhbir Singh without his consent and moved the same and thereby he committed offence of theft punishable u/s 379 IPC. On the same date, time and place accused had received or retained the above said cartoons, knowing or having reason to believe the same to be stolen property and thereby committed an ofence punishable u/s 411 IPC. Hence, the accused has been facing the trial for offences u/s 379/411 IPC.
2. It is noteworthy, that after the investigation, the chargesheet was filed in the Court against the accused for the offences under Section 379/411 IPC. The copies of charge sheet were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.). Charge for the offences u/s 379/411 IPC was framed against him vide order dated 04.12.2014 by Ld. Predecessor of the Court, to which he pleaded not guilty and claimed trial.
State Vs. Ghanshyam FIR no. 201/13 Page 2 of 10
3. To prove its case prosecution has examined as many as five witnesses in all.
4. PW1 Sh. Jasbir Singh. He was the owner of Jagdambay Transport Corporation. He has deposed that on 13.09.2013, they loaded their cartoons in one truck bearing registration no. PB1625 and on 14.09.2013, driver Lakhbir Singh informed him that one person had stolen some cartoons from the truck when it was parked near Swaroop Nagar and he has apprehended the accused. He got released his four cartoons which from the court on superdari vide order dated 31.10.2013 and the same is Ex.PW1/A. He also handed over the copies of the bills of the cartoons is Ex.PW1/B and Ex.PW1/C. He identified the cartoons from the photographs. Photographs are Ex.P1 to P3. He was not cross examined by Ld. Defence Counsel.
5. HC Anand Singh was examined as PW2. He deposed that on 14.09.2013, he was posted at PS Swaroop Nagar as Constable. On that day, one DD no. 11A was marked to the IO at about 05:30 am, upon which he alongwith IO reached near Service Road, Behind Swaroop Nagar Bus Stand, GTK Road, near Ganda Nala, where they met one Brij Mohan alongwith complainant Lakhbir Singh. They had apprehended the accused Ghanshyam at the spot. IO had recorded the statement of complainant Lakhbir Singh. IO prepared the tehrir and handed over the same to him for registration of FIR. At about, 07:15 am, he went to PS and got the FIR registered. After registration of FIR, State Vs. Ghanshyam FIR no. 201/13 Page 3 of 10 he returned at the spot and handed over the copy of FIR and original tehrir to IO. Thereafter, IO prepared one site plan which is Mark SP at the instance of complainant. IO had seized 4 cartoons which contained Kranti Water Meter. IO had also seized one cutter vide memo which is Ex.PW2/B, bearing his signatures at point A. The case property was seized with white plastic katta and sealed with the seal of GSR. Accused was arrested and personally searched in his presence vide memos Ex.PW2/C and Ex.PW2/D respectively, bearing his signatures at point A. IO had recorded the disclosure statement of accused which is Ex.PW2/E, bearing his signatures at point A. Witness correctly identified the accused in the court. This witness was not cross examined by Ld. Defence Counsel.
6. PW3 HC Ajay Kumar has stated that on 13.09.2013, he was posted at PS Swaroop Nagar as a Duty Officer. At about 05:35 am, he received the information via telephone from HC Brij Mohan regarding the theft and apprehension of accused. He entered the same at sr. no. 11A of DD and information of the same was given to SI Govind on telephone and the copy of said DD was sent to SI Govind through Ct. Anand. DD is Ex.PW3/A, bearing his signature at point A. He further deposed that at about 07:30 am, Ct. Anand handed over rukka to him which was sent by SI Govind. He proved the FIR i.e. Ex. PW3/B and endorsement on the rukka which is Ex. PW 3/C. This witness was not cross examined by Ld. Defence Counsel.
State Vs. Ghanshyam FIR no. 201/13 Page 4 of 10
7. ASI Brij Mohan was examined as PW4. He deposed that on 14.09.2013, he was posted at PS Swaroop Nagar as HC and on the night of 13/14.09.2013, from 08:00 pm to 08:00 am, he was on picket duty. At about 05:15 am, he heard hue and cry of a man regarding theft having taken place in his truck parked in the service road near Ganda Nala, behind Swaroop Nagar Bus Stand. He immediately reached there and met the complainant Lakhbir, resident of Jalandhar. He further deposed that IO/SI Govind arrived at the spot alongwith Ct. Anand. IO SI Govind had opened the cartoons and checked them containing Kranti Water Meter. IO had taken cursory search of accused and he found one cutter in the right pocket of the accused. IO had recorded the statement of complainant Lakhbir Singh. IO had seized the 4 cartoons containing Kranti Water Meter already exhibited as Ex.PW2/A, bearing his signatures at point B. IO prepared pullanda of the cutter and sealed with the seal of GSR. The cutter had Natraj written on it. IO had seized the knife (cutter) vide seizure memo already Ex.PW2/B, bearing his signature at point B. IO had also recorded the disclosure statement of the accused already exhibited as Ex.PW2/E, bearing his signature at point B. Accused was arrested and personally searched in his presence vide memos Ex.PW2/C and Ex.PW2/D respectively, bearing his signatures at point B. Witness correctly identified the accused in the court. This witness was also not cross examined by accused despite being given an opportunity for the same.
State Vs. Ghanshyam FIR no. 201/13 Page 5 of 10
8. SI Govind Singh Rawat was examined as PW5. He deposed on the same lines as that of PW2 HC Anand Singh, so his complete testimony is not reetrated in order to avoid repetition and brevity. In addition to this PW5 further deposed that he seized the builty (2 documents) vide seizure memo Ex.PW5/D, bearing his signature at point A. He correctly identified the photographs of the cartoon i.e. Ex. P1 to P3 and also the knife (cutter) and also the builty documents which are ExPW1/B and PW1/C respectively.
9. After conclusion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C on 24.12.2019, wherein the accused pleaded his innocence and stated that he has been falsely implicated in this case. Further, he did not lead any defence evidence.
10. In the light of fact as above it becomes paramount to analyse the testimony of the witnesses examined by the prosecution in detail.
At the outset, it is pertinent to mention that the complainant in the present case is PW Lakhbir Singh but he has not been examined as a prosecution witness, as he never turned up before the court for his evidence. This witness remained unserved and untraceable despite repeatedly issuance of summons and warrants, even through DCP Office. In the light of PW Lakhbir Singh not being examined as a prosecution witness despite being he most vital and crucial witness, it can be safely deduced that the contents of the complaint made by the complainant remains unproved as he never stepped into the witness State Vs. Ghanshyam FIR no. 201/13 Page 6 of 10 box. Thus in the absence of principal complainant and the star witness being examined by the prosecution, it becomes all the more crucial for the prosecution to adduce cogent and convincing testimony to discharge the burden placed upon it.
11. The first witness examined by the prosecution is PW1 i.e. owner of Jagdambay Transport Corporation. It is submitted by PW1 that the driver of the truck on the fateful day was Lakhbir Singh and it is the latter who informed him that one person had stolen some cartoons from the truck, implying thereby that deposition made by PW1 is merely an hearsay evidence as neither did he witness the alleged theft nor has he seen or apprehended the accused and it was only told to him by Lakhbir Singh about the alleged incident. Thus, the entire testimony of PW1 is merely on hearsay evidence and does not have evidentiary value attached to it.
Apart from PW1 another witness examined by prosecution is PW2, who deposed that Lakhbir Singh had apprehended the accused and PW2 had recorded the statement of the complainant i.e. Lakhbir Singh but neither the statement got proved as Lakhbir Singh has not been examined nor does the accused stands identified by the complainant in the court. Further, it is submitted by PW2 in his testimony that IO prepared the site plan at the instance of the complainant but the said fact is contrary to evidence on record as the site plan does not bear the signatures of the complainant and this perse brings the authenticity of the site plan under scanner. State Vs. Ghanshyam FIR no. 201/13 Page 7 of 10
12. PW4 further states that he was also informed by the complainant Lakhbir Singh that the accused had lifted 4 cartoons from truck bearing no. PB08 AR1625, implying thereby that the factum of any such lifting, if at all done by the accused could have only been proved by the complainant himself but at the cost of repetition and brevity it is being stated that the complainant never stepped into the witness box to prove any such averment and in this eventuality, in the absence of the complainant being examined as one of the most crucial and star witness of the prosecution, the factum of theft remains unproved.
At this stage, it becomes necessary to state that as per the definition of theft u/s 378 IPC, the ingredients needed to establish the offence of theft are that there has to be dishonest taking of any movable property, intending to take the same out of the possession of a person without that person's consent and further, the property has to be moved in order to effect such taking. Thus, to establish the offence of theft in the present case, it was incumbent upon the prosecution to have proved firstly, the intention of the accused to dishonestly take the movable property out of the possession of the complainant Lakhbir Singh and further the factum of moving being effected by the accused perse and in the absence of PW Lakhbir singh being examined by the prosecution, no ingredient to establish the offence as define u/s 378 IPC stands established.
State Vs. Ghanshyam FIR no. 201/13 Page 8 of 10
13. In addition to this, the factum of property being received or retained by the accused knowing or having reason to believe the same to be stolen property also remains unproved as it is stated by all the witnesses examined by the prosecution that it was so told to them by Lakhbir Singh only that the accused had stolen the property and the same was found in possession of the accused but this fact also remains unproved as PW Lakhbir Singh has not deposed regarding the same by turning up in the witness box and accordingly ingredients u/s 411 IPC also remains unestablished.
14. At this stage, court deems it fit to state that no doubt, wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused and in the instant case, prosecution has failed to prove its case against accused beyond reasonable doubt.
15. At this stage, court further deems it fit to state that it is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, State Vs. Ghanshyam FIR no. 201/13 Page 9 of 10 reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case, it is pellucid that the case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
16. Therefore, in light of the above observations and finding, it can be safely culled out that case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution and the star witness i.e. the complainant himself remained unexamined.
17. Hence, in view of the aforesaid comprehensive discussion, the prosecution has miserably failed to prove the charges levelled against the accused person and therefore, the accused Ghanshyam is hereby acquitted from the offences u/s 379/411 IPC.
Digitally signed by RICHA SHARMA RICHA Date:
SHARMA 2020.01.29
16:04:18
+0530
Announced in open court today
on 28.01.2020 (Richa Sharma)
Metropolitan Magistrate
North District Court/Delhi
State Vs. Ghanshyam
FIR no. 201/13 Page 10 of 10