Delhi District Court
State vs Rakesh @ Amar on 31 October, 2011
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Rakesh @ Amar
FIR No. 74/11
PS: ASHOK VIHAR
U/s 451/380/411 IPC
JUDGMENT
A) Sr. No. of the Case : 229/2/11
B) The date of commission : 20/03/2011
of offence.
C) Name of the complainant : Sajeev Mittal, S/o. Late Sh. N.C. Mittal.
D) Name of the accused : Rakesh @ Amar, S/o. Krishan.
E) Offence complained of : U/s. 451/380/411 IPC
F) The plea of accused : Pleaded not guilty.
G) Final order : Convicted U/s. 380 IPC & U/s. 451 IPC.
H) The date of such order : 31/10/2011
Date of Institution : 18/05/2011
Judgment reserved on : Not reserved
Judgment announced on : 31/10/2011
FIR No. 74/11 Page No. 1/9
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief the case of the prosecution is that on 20/03/2011 at about 03:00 pm at Factory No. A - 128, WPIA, Ashok Vihar, Delhi, within the jurisdiction of PS Ashok Vihar, accused committed house tress pass by entering into the building mentioned above used as factory in order to committing of theft and committed theft of articles mentioned in seizure memo mark - A and accused was found in possession of said articles and thereby committed an offence punishable U/s. 451/380/411 IPC.
2. After completion of investigation challan was filed by the police U/s. 380/411 IPC of which cognizance was taken by this court.
Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused.
3. Vide order dated 01/06/2011 notice U/s 251 Cr.P.C was served upon the accused Rakesh @ Amar for trial of offences U/s. 451/380/411 IPC by this court to which he pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
4. Prosecution has examined four witnesses to prove the guilt of accused Rakesh @ Amar.
A brief scrutiny of the examined witnesses is as below.
FIR No. 74/11 Page No. 2/9PW-1 HC Amrit Lal proved the FIR as Ex. PW-1/A and endorsement on rukka as Ex. PW-1/B. Complainant Sanjeev Mittal was inadvertently examined as PW-1. He deposed that on 20.03.2011 at around 03:00 pm while working in factory he saw a young boy carrying away one bundle of copper wire from the factory and when he called him he did not pay heed and started running away. He chased him and raised alarm as "chor chor". He with the help of other public persons apprehended him along with bundle of copper wire. He correctly identified the accused. He proved his statement made to the IO as Ex. PW-1/A, site plan as Ex. PW-1/B, seizure memo as Ex. PW-1/C, arrest memo as Ex. Pw-1/D and personal search memo as Ex. PW-1/E. He also correctly identified case property as Ex. P-1.
PW-2 is Ct. Babu Lal who deposed that he was on patrolling with ASI Ved Prakash at industrial area and at around 03:00 pm they reached in front of Factory No. A - 128, WPIA, where complainant handed over them the accused. He proved seizure memo vide which bundle of copper wire was seized as Ex. PW-1/C, arrest memo vide which accused was arrested as Ex. PW-1/D, personal search memo as Ex. PW-1/E, confessional statement made by accused as Ex. PW-1/A. He correctly identified the accused as well as the case property.
PW-4 ASI Ved Prakash, the IO of the case in his deposition deposed about FIR No. 74/11 Page No. 3/9 the steps taken by him during the court of investigation.
He was cross examined by Ld. Defence Counsel.
5. P.E. was closed vide order dated 08.09.2011 and statement of accused U/s. 313 Cr.P.C was recorded on 21.09.2011 to which the accused had denied all the allegation against him but preferred not to lead DE.
6. Thereafter the matter was fixed for arguments.
7. It is submitted by Ld. LAC Sh. B.P. Singh that the accused has been falsely implicated by the complainant. It is further submitted by Ld. LAC that the police did not bother to make any public person to witness the incident despite their being presence of public persons at the spot. Further he has submitted that the prosecution has not been able to prove the ownership of the said case property i.e. copper wires. He has further argued that every factory has a security guard and it is very unlikely that some one may go unnoticed inside the factory.
8. Per contra Ld. APP for the State has submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt and he should be convicted.
FIR No. 74/11 Page No. 4/99. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused and have gone through the evidence and the material available on record.
10. The cardinal principle of criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the 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.
11. In my opinion,the prosecution has successfully discharged the onus of proving the guilt of the accused, beyond any reasonable doubt.
In order to prove the culpability of the accused u/s 380 IPC, the prosecution is required to prove the following ingredients:-
(i) Removal of property of a person out of his possession;
(ii) The removal must be dishonest;
(iii) The property must be movable property;
(iv) The removal must be without the consent of the owner of the property.
(v) The removal must be without the consent of the owner of the property ; and
(vi) The said theft was committed in any building, tent or vessel, which building, FIR No. 74/11 Page No. 5/9 tent or vessel is used as a human dwelling, or used for the custody of property.
12. PW-1 Sajeev Mittal is the complainant in the present case. He has fully supported the prosecution version and has deposed that on 20.03.2011 one bundle of copper wire was stolen by the accused from the factory. The bundle of copper wire has been duly proved in the court as Ex. P1. He has also proved his complaint made to police dated 20.03.2011 as Ex. PW-1/A. There is no discrepancy between his complaint Ex. PW-1/A and the testimony given before the court. Further, the testimony of PW-2 and PW-3, who had apprehended the accused with the stolen bundle of copper wire have also corroborated the testimony of PW-1 Sajeev Mittal. Besides that, the accused has failed to cross- examine the said witnesses. The accused was caught red handed at the spot by PW-2 & PW-3. Therefore, the testimony of prosecution witnesses has remained unchallenged and unrebutted. The statement of all the PWs are consistent and corroborative in the material particulars.
13. Since the accused could not account for his presence at the spot and in view of the fact that he was apprehended red handed by the complainant with the case property i.e. copper wire it can be safely presumed that he had entered the said premises with the intention to commit theft. There is no reason to doubt the veracity of statement given by the prosecution witnesses and ingredients as mentioned in section 451 IPC has been duly satisfied, as it has been established that the theft of the aforesaid bundle of copper wire was committed by the FIR No. 74/11 Page No. 6/9 accused from inside the factory. The said factory comes within the purview of the definition of building that is used as a human dwelling or used for the custody of the property.
14. Further, during his examination u/s 313 Cr.P.C the accused gave evasive answers and did not clarify as to how the said bundle of copper wire was recovered from his possession. Whether the same was planted or otherwise or any enimosity with the complaint or the police officials so that they have any reason to falsely implicate him . No explanation was given regarding recovery of the stolen bundle of copper wire from the possession of the accused.
15. The accused led no defense evidence to prove that the stolen bundle of copper wire was not recovered from his possession. Further neither could he discredit the testimonies of PWs nor accounted for the possession of the stolen bundle of copper wire. The court has no reason to disbelieve the testimonies of the prosecution witnesses who have corroborated each other in all material aspects about recovery of the stolen bundle of copper wire from the person of the accused.
16. The contentions of the the Ld. Defence counsel that no public person as stated by the complainant who were on the spot at the time of alleged incident were made witnesses by the IO at the spot which casts serious FIR No. 74/11 Page No. 7/9 doubts upon the prosecution story does not hold water in my opinion. There was no requirement of the same and absence of any public person(apart from 'interested' witnesses examined) has not affected the prosecution story in any manner. The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) FIR No. 130/99 16/22 CRIMES 63 (SC) . The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
17. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311.
......... The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down.......
In the present matter, the police personnel (PW-2 Ct. Babu Lal and PW-4 ASI Ved Prakash have corroborated the version of complainant Sanjeev Mittal FIR No. 74/11 Page No. 8/9 (PW-1). Their testimony cannot be discarded.
18. The arguments of Ld. LAC that no proof of ownership of the case property i.e. the copper wires has been placed on record by the prosecution do not find any merits since the complainant was never asked to do so. There was no suggestion to this effect that was put to the complainant whether he could produce any ownership proof of the case property. Further the contentions of Ld. LAC that every factory has a security guard do not hold water as it has come no where in the story of the prosecution that any security guard was appointed there.
19. In view of the above discussion, observations and evidence on record, in my opinion the prosecution has successfully proved its case.
20. Therefore I hold accused Rakesh @ Amar guilty of offence u/s 380 IPC & 451 IPC.
21. Now let the matter be listed for arguments on sentence.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on October 31, 2011.
FIR No. 74/11 Page No. 9/9