Delhi District Court
State vs . : Ashish Barua Etc. on 12 November, 2020
IN THE COURT OF AASHISH GUPTA
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. : 36867/17
P.S. : Sunlight Colony
U/s. : 379/411/34 IPC
State Vs. : Ashish Barua Etc.
a. The Sl. No. of the case : 6367/18
b. The date of commission of offence : 19/20.11.2017
c. The date of Institution of the case : 25.09.2018
d. The name of complainant : Gautam Kumar
e. The name of accused : 1. Ashish Barua
S/o Yasin @ Yamin
R/o 696, Near Madar Dairy
Sunlight Colony - II, New
Delhi
And
2. Pankaj Mandal
Subodh Mandal
r/o D - 1 - B/808, Ratiya
Marg, Sangam Vihar, Delhi
f. The offences complained of : 379/411/34 IPC
g. Charge framed under section : 411/34 IPC
h. The plea of accused persons : Pleaded not guilty
i. Arguments heard on : 11.11.2020
j. The final order qua both accused : Acquitted
k. The date of judgment : 12.11.2020
JUDGMENT
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1. In this case, prosecution has alleged theft of a TSR bearing no. DL 1RP 8202 on 19.11.2017 in between 11 pm to 5 am at Shri Ram House, Mathura Road Sunlight Colony New Delhi, within the jurisdiction of PS Sunlight Colony. It is further alleged that the same was recovered on 13.12.2017 at time unknown at plot no. G - 11/6, Ratiya Marg, Sangam Vihar, New Delhi from accused persons which they, in furtherance of their common intention, dishonestly received or retained the same knowing or having reasons to believe the same to be stolen property.
2. Prosecution had charge - sheeted the accused persons for offences made punishable u/s. 379/411/34 IPC but at the stage of framing of charges, section 379 IPC was dropped and thus, accused persons faced trial for offence made punishable u/s. 411/34 IPC.
3. Charge for offence made punishable u/s. 411/34 IPC were framed upon the accused to which they pleaded not guilty and claimed trial.
4. In support of the prosecution's case, the following witnesses were produced by the prosecution:
Sr. Witness Nature of deposition / documents / No Description produced / proved .
i) PW1 He is complainant in the case from whose Gautam possession the TSR in question was stolen.
Thereafter he lodged an online FIR and later gave a written complaint to the police.
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ii) PW2 This witness had come from the court of Sh.
Brij Mohan Vivek Kumar Agarwal, Ld. MM, PS Sangam Bhandari, Vihar, Delhi. He had brought the judicial file Assistant of kalandara having DD no. 60B dated Ahlmad 13.12.2017 PS Sangam Vihar u/s. 41.1D CrPC
iii) PW3 He is the IO of the case who received DD SI Malkhan no. 40 and carried out investigation therein.
Singh
iv) PW4 He is the IO of this case who carried out
HC Yogender investigation in this case and filed charge
Kumar sheet before the court.
5. Prosecution has also relied upon following documents details of which are as under :
Sl. Description of document(s) Exhibit(s) no. number given
1. Copy of online FIR Ex.PW1/A
2. Written complaint Ex.PW1/B
3. 05 photographs of vehicle bearing no. Ex.P1 (colly.) DL 1RP 8202
4. Judicial case file of kalandara having DD Ex.PW2/A to no. 60B dated 13.12.2017 PS Sangam PW2/L Vihar u/s. 41.1D CrPC (all documents are original seen and returned)
5. Site plan Ex.PW4/A
6. Arrest memos Ex.PW4/B and Ex.PW4/C
7. Disclosure statements Ex.PW4/D and Ex.PW4/E FIR No. 36867/17 State V/s. Ashish Barua Etc. 3 of 6
8. Seizure memo of TSR Ex.PW4/F Accused has also admitted the following documents :
1. FIR (without contents) registered in the present case Ex.PW1/A 2.05 photographs of TSR bearing no. DL 1RQ 8202 Ex.P1 (colly.)
3.Superdarinama of vehicle i.e. TSR Ex.PA1
4. DD no. 3B dated 14.12.2017 PS Sunlight Colony Ex.PA 2
6. All the aforesaid witnesses were duly examined on behalf of the State and crossexamined [by the Ld. APP for State, where necessary and also by the counsel for the accused person(s)].
7. After closure of prosecution evidence, separate statement of both the accused persons were recorded u/s. 313 CrPC. It may be noted that in the said statement recorded u/s. 313 CrPC accused had denied all the allegations against him. Both the accused have claimed that they have been arrested by the police from their homes. Both the accused have not availed the opportunity to lead defence evidence. Thereafter, defence evidence stood closed. Hence the matter reached the stage of final arguments.
8. Arguments heard. Record perused.
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9. As per the prosecution's story, both the accused herein were initially arrested on 13.12.2017 at around 7:25 PM in DD no. 60B PS Sangam Vihar. Prosecution claims that a secret informer had informed the officials of PS Sangam Vihar that both the accused are trying to sell TSR bearing no. DL 1RP 8202 at Gali no. 11, G Block, Sangam Vihar, Delhi. Thereafter, police raided plot no. G 11/6, Sangam Vihar, Delhi and found the aforesaid auto (without its rear tyres; battery; and backseat). Both the accused are stated to have been sitting inside the said auto. This led to their arrest and eventually it was found that said auto is required in the present case. Accordingly, officials of PS Sunlight Colony were informed and after due procedure the present challan was filed.
10.Now, it is to be noted that the recovery appears to have been made from a residential colony at around 07:25 PM in the evening. It is not clear why the police did not join any public witness to the said recovery. It was claimed by the IO who carried out the initial recovery that he had asked the public found at the place to join investigation but they did not do so. In my opinion, since no public witness is made party to the recovery in this case; which appears to be a densely populated area; recovery effected by the IO has to be treated with a pinch of salt.
11.Again, it is to be noted that the alleged auto was found without any rear tyres and battery. It means, that the said auto was not in a plyable condition and could not be driven. It appears suspicious that such an FIR No. 36867/17 State V/s. Ashish Barua Etc. 5 of 6 auto which could not have been driven shall be tried to be sold at the said plot by the accused persons as alleged by the police. This is because, as per the police story, accused were sitting inside the auto in question when they were caught. If I take that as correct, going by common sense, a given accused / thief who would try to sell a stolen property shall keep the said property in a plyable state so as to allow him to drive if the need arises. Why would a thief sit inside an auto without tyres in the manner alleged and then, try to sell it in such a state. In my opinion, the story of the prosecution appears to be suspicious and the manner in which the recovery was made of the property in question does not inspire the confidence of this court.
12.Again, it may be recalled that no public witnesses were joined to the recovery of the case property. That coupled with the suspicion as indicated above, calls for giving benefit of doubt to the accused as, possibility of planting of case property on the accused cannot be ruled out in this case. That being the case, both the accused are given benefit of doubt and are acquitted in this case.
Announced in open Aashish Gupta
Court on 12th day of November, 2020 MM (South East)07
Saket, New Delhi
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