Delhi District Court
Criminal Case/126/2010 on 9 July, 2013
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Mahender Singh & Ors.
FIR No. 97/10
PS Jamia Nagar
U/s 380/411/34 IPC
JUDGMENT
C C No. : 126/10/10
Date of Institution : 04.10.2010
Date of Commission of Offence : 28.03.2010
Name of the complainant : Vikky Rai
S/o Mohan Rai
R/o 91-B, Sector-4, Pushp Vihar
Delhi-110017
Office 31-32, Begampur Park
Malviya Nagar, Delhi -110017
Name & address of the accused : A-1 Mahender Singh
S/o Khem Chand
R/o H. No. 97, Village Jasola, Sarita
Vihar, New Delhi
A-2 Rajeev
S/o Devender
R/o H. No. 34, K-Block, Shastri Ngr.
Parvez Vihar, Meerut, UP.
A-3 Wasim
S/o Kasim
R/o Mohalla Lal Mohd. PS Khatoli
behind Kotwali, Khatoli, District
Muzaffar Nagar, UP.
Offence complained of : U/s 380/411/34 IPC
Plea of accused : Pleaded not guilty
State v. Mahender Singh & Ors. U/s 380/411/34 IPC FIR No. 97/10, PS Jamia Nagar 2 Final Order : Acquitted Date of reserve for judgment : 09.07.2013 Date of announcing of judgment : 09.07.2013 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 380/411/34 IPC.
2. The story of the prosecution is that on 28.03.2010 at about 11.30 pm on the roof of house no. 85/A Okhla Village, Jamia Nagar, New Delhi the accused Mahender Singh, Rajeev and Wasim in furtherance of their common intention had commmitted the theft of 13 batteries which were recovered from their possession which belonged to the complainant Vikki Rai and thus are alleged to have committed an offence under Section 380/411/34 IPC. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused persons in the court. Copy of charge-sheet and other scrutable documents were supplied to the accused persons and thereafter charge under Section 380/411/34 IPC was framed against them vide order dated 14.03.2011 to which they pleaded not guilty and claimed trial.
State v. Mahender Singh & Ors. U/s 380/411/34 IPC FIR No. 97/10, PS Jamia Nagar 3
4. In order to prove the charge against the accused, the prosecution examined PW-1/complainant Vikky Rai.
5. PW-1 Vikky Rai deposed that in the year 2010 he was working as controller in prointective security. He was supervising guards and providing guards to the customers. He deposed that on 28.03.2010 phone call of one guard came to him in which he informed him about the incident of theft at the Airtel towers. He informed that incident of theft had happened at Tower situated at house no. 85A . On receiving the said information he came at the roof of house no. 85-A. There was some crowd and one guard met him. PCR van also came at the spot and took him to the PS. He had called his other seniors and after sometime his seniors reached at the police station. Police made him complainant in the present case and he had signed his complaint Ex. PW1/A. He further deposed that nothing more was happened in his presence. He was cross examined by the Ld. APP for State.
6. During cross examination, he deposed that he was working as a controller in the above said company for eight months in the year 2009-2010. He admitted that his company provided security guards at Airtel Towers at that time. He deposed that when he visited the roof of house no. 85-A, one State v. Mahender Singh & Ors. U/s 380/411/34 IPC FIR No. 97/10, PS Jamia Nagar 4 Airtel Tower was situated. He denied the suggestion that he had visited along with one associate Shashi Shekhar who was also controller in the company. He denied the suggestion that he had not visited at the spot at that time voluntarily in compliance of duty. He voluntarily deposed that he had visited at the spot on the phone call of the guard. He deposed that he did not remember the name of guard who met him at the spot. Guard had informed him about the theft of battery from Airtel Tower. He deposed that he did not have any idea about the company of which battery was stolen. He deposed that he did not have any idea of the part available at the tower which might have separated from the tower. He deposed that the battery of the tower was installed near the tower. He deposed that he did not have any idea as to how the battery can be removed. He denied the suggestion that he had made statement to the police which he had signed. He denied the suggestion that during his visit at the spot he had seen one person namely Waseem who had removed the battery of the tower and was managing the batteries in the vehicle. He denied the suggestion that personal namely Mahender and Rajeev were carrying two batteries in their hands and was coming outside from house no. 85A. Witness could not identify the accused persons present in the court despite pointed out by Ld. State v. Mahender Singh & Ors. U/s 380/411/34 IPC FIR No. 97/10, PS Jamia Nagar 5 APP for State. He denied the suggestion that public persons who were gathered at the spot after the incident and had caught hold the accused persons. He denied the suggestion that all the batteries had been recovered from the possession of above said persons. He denied the suggestion that he had called the police. He voluntarily deposed that police was already present at the spot. He admitted his signature appearing on recovery memo of fifteen batteries and one tempo Ex. PW1/B. He admitted his signatures on seizure memo Ex. PW1/C of identity card of accused Mahender. He admitted his signature on arrest memo and personal search memo of accused Mahender, Rajeev and Waseem Ex. PW1/D, Ex. PW1/E, Ex. PW1/F, Ex. PW1/G, Ex. PW1/H and Ex. PW1/I. He admitted his signature on the pointing out memo of place of occurrence prepared at the instance of Mahender, Rajeev and Waseem Ex. PW1/J to PW1/L. He admitted his signature on disclosure statement of the accused persons Ex. PW1/M to Ex. PW1/O. Witness failed to identify the photographs of the case property. He denied the suggestion that he is deposing falsely and deliberately not identifying the photographs of the case property as he has been won over by the accused persons. State v. Mahender Singh & Ors. U/s 380/411/34 IPC FIR No. 97/10, PS Jamia Nagar 6
7. During cross examination by Ld. Defence Counsel, he deposed that police made him complainant in the present case at the instance of his seniors. He deposed that the police had obtained his signatures on some blank documents.
8. PW Shashi Shekhar is unserved even through DCP concerned.
9. As the complainant has turned hostile, denying the entire prosecution story and has been cross examined by the Ld. APP and another public witness Shashi Shekhar is unserved even through DCP concerned, carrying on with further prosecution evidence and recording testimonies of formal witnesses would have become only a futile exercise, and wastage of judicial time, resources and energy. Thus, the PE was closed. Since there is nothing incriminating against the accused persons, recording of statement of accused persons is also dispensed with.
10.I have heard the brief submissions addressed by the Ld APP for state and by Ld. Counsel for the accused persons and carefully perused the documents on record.
11.The essential ingredients to constitute an offence under Section 380 IPC are as follows:-
State v. Mahender Singh & Ors. U/s 380/411/34 IPC FIR No. 97/10, PS Jamia Nagar 7
1. Intention to take dishonestly
2. The property shall be movable property.
3. The property shall be taken out from the possession of any person without his consent.
4. There should be some moving of the said property to such taking.
5. The theft should have been committed in a dwelling house or place used for safe custody of property.
12.The essential ingredients to prove the offence under Section 411 IPC are:-
1. The property should be in possession of the accused.
2. Such property should be 'stolen property' i.e it should have been transfered by theft, extortion or robbery, or which has been criminally misappropriated.
3. The accused received the same knowing or having reason to believe the same to be stolen property.
13.The main witness i.e the complainant has denied the entire prosecution story and complately absolved the accused persons of the allegations against them. The another public witness Shashi Shekhar remained unserved even through DCP concerned and his name was accordingly State v. Mahender Singh & Ors. U/s 380/411/34 IPC FIR No. 97/10, PS Jamia Nagar 8 dropped from the list of witnesses. Since the complainant has practically absolved the accused persons of all charges and another public witness is unserved even through DCP concerned, the court is of the opinion that it could not be proved that the offence under Section 380/411/34 IPC was committed by the accused persons. Accordingly, the guilt of the accused have not been proved and thus they are entitled to be acquitted. Accordingly, accused Mahender Singh, Rajiv and Wasim are acquitted under Section 380/411/34 IPC.
14.As per section 437-A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
15.File be consigned to Record Room.
Announced in the open court (SAUMYA CHAUHAN)
on 09.07.2013 METROPOLITAN MAGISTRATE
SOUTH EAST/SAKET COURT/NEW DELHI
State v. Mahender Singh & Ors. U/s 380/411/34 IPC
FIR No. 97/10, PS Jamia Nagar