Delhi District Court
State vs . Beerbal on 26 July, 2023
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 6060/2022
STATE Vs. BEERBAL
State vs. Beerbal
eFIR No. 0428/2022
Police Station : Saket
Under Section : 411 IPC
Date of institution : 15.09.2022
Date of reserving : Not Reserved
Date of pronouncement : 26.07.2023 (Oral)
JUDGMENT
a) Serial number of the case : 6060/2022 b) Date of commission of offence : 31.07.2022 c) Name of the complainant : Sh. Meghraj Bhandari
d) Name, parentage and address of : Beerbal S/o Sh. Kailash R/o H. No.
accused S-4/79B, Gali No. 2, Old Mahavir
Nagar, Janakpuri, New Delhi
e) Offence complained of : 411 IPC
f) Plea of accused : Accused pleaded not guilty
g) Final order : Acquittal
h) Date of final order : 26.07.2023
State vs. Beerbal
eFIR No. 0428/2022, PS: Saket Page 1 of 6
BRIEF STATEMENT OF FACTS FOR THE DECISION
CASE OF THE PROSECUTION
1. On 31.07.2022, the accused was found in possession of the mobile phone (Make Redmi Note 10T) belonging to the complainant in DD No. 116A dated 30.07.2022 (stolen in the present FIR) which the accused dishonestly received or retained knowing or having reason to believe the same to be a stolen property and thus, the accused committed an offence punishable u/s 411 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC").
CHARGE
2. Vide order dated 04.11.2022, charge for the offence punishable under Sections 411 IPC was framed against the accused, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
3. Vide order dated 13.12.2022, in compliance to the provisions of Section 294 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), the accused was called upon to admit the genuineness of Kalandra vide DD No. 116A dated 30.07.2022 vide Ex A1.
EVIDENCE OF THE PROSECUTION
4. Subsequent to framing of charge, summons was issued to complainant for his testimony. On 06.02.2023, summons to the complainant was received back unserved. On 29.03.2023, summons to the complainant through the office of DCP on the Malviya Nagar address State vs. Beerbal eFIR No. 0428/2022, PS: Saket Page 2 of 6 was received back unserved with the report that the address was incorrect. However, as per one of the reports, the complainant was intimated of the proceedings on his mobile phone and, therefore, separate bailable warrants were issued against the complainant on the Malviya Nagar address as well as Pune address. On 27.05.2023, bailable warrants against the complainant on the Pune address were received back unexecuted and bailable warrants issued on the Malviya Nagar address were not received back. Finally, on 25.07.2023, it was noted that the prosecution was unable to procure the presence of the complainant in the instant case.
5. Keeping in mind the aforesaid reasons, it was observed that recording of prosecution evidence in the present case would amount to waste of judicial time, money and resources and will also cause unnecessary oppression of the accused who has anyhow faced the ordeal of trial in the present case. Thus, the requirement to record the prosecution evidence was dispensed with.
STATEMENT / DEFENCE OF THE ACCUSED
6. In his statement recorded under Section 313 of the Code, the accused stated that he had purchased the phone from a customer who had visited the shop (Super Bazaar, Connaught Place) for Rs.3000/-, as the said customer had stated that he was in need of money. The accused further stated that he was not aware that the phone was stolen and that he is innocent and has been falsely implicated in this case. He did not lead any evidence in his defence.
State vs. Beerbal eFIR No. 0428/2022, PS: Saket Page 3 of 6 ANALYSIS AND FINDINGS
7. The record has thoroughly and carefully been perused. The respective submissions of Ms. Shalini Naval, Ld. Substitute APP for State and Sh. Sanjay Bahuguna, Ld. Counsel for the accused have been considered.
8. It has been submitted that the complainant did not appear for his testimony in the instant case and, therefore, the prosecution case does not survive in his absence.
9. At this juncture, it is pertinent to note that the Hon'ble Supreme Court in Satish Mehra vs. Delhi Administration [1996 9 SCC 766] has held that:
"But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date"
10. It is further pertinent to note that the right to speedy trial is a constitutionally guaranteed fundamental right of the accused. Continuation of trial, even when it is clear that the prosecution cannot prove the case on account of non-appearance of the complainant, would tantamount to violation of right to speedy trial of the accused. It has been held in P. Ramachandra Rao vs. State of Karnataka [AIR 2002 SC 1856] that the court should exercise its powers available under the Code to give effect to the right to speedy trial of the accused. Similar observations were made in Pankaj Kumar vs. State of Maharashtra [AIR 2008 SC 3057].
11. As the complainant did not appear, there is no incriminating State vs. Beerbal eFIR No. 0428/2022, PS: Saket Page 4 of 6 evidence against the accused and hence, the prosecution can never hope to prove the allegations levelled against the accused. Remaining witnesses in the present case are official witnesses whose testimony even if taken together would also be insufficient to prove the allegations against the accused.
12. The complainant has not stood in the witness box and the veracity of his version of the instant complaint has not been tested by way of cross-examination. There are no other witnesses who have witnessed the incident and are material to the case and who could have corroborated the statement of the complainant and established the charge leveled against the accused. Further, the charge framed against the accused under Section 411 IPC cannot be established without the testimony of the complainant.
13. It is elementary that there can be no offence of dishonestly receiving stolen property under Section 411 unless the property which is alleged to be the subject of such receiving, answers the description of "stolen property" defined under section 410 of IPC. Similarly, the fact whether the stolen property has been taken without the consent of the complainant cannot be proved without the testimony of the complainant.
14. In the absence of any incriminating material and evidence, it would not be trite to hold the accused guilty. It has been held by the Hon'ble Supreme Court of India in Dr. S.L. Goswami vs. State of Madhya Pradesh [1972 SCC (Cri.) 258] that the accused is entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution. Since the main eyewitness i.e. the complainant has not deposed in support of the case of the prosecution on State vs. Beerbal eFIR No. 0428/2022, PS: Saket Page 5 of 6 account of his non-appearance, the ingredients of Sections 411 IPC are not proved by the prosecution. Consequently, the accused is acquitted of the offence punishable under Section 411 IPC.
15. In compliance to Section 437A of the Code, the accused is directed to furnish bail bond.
16. File be consigned to Record Room.
Dictated and announced in open Court on 26.07.2023.
Digitally signed by T. T. PRIYADARSHINI
PRIYADARSHINI
Date: 2023.07.27
16:11:18 +0530
(T. Priyadarshini)
Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 26.07.2023 State vs. Beerbal eFIR No. 0428/2022, PS: Saket Page 6 of 6