Delhi District Court
State vs . Surender Kumar on 11 November, 2010
1 of 5
IN THE COURT OF MS. MONA TARDI KERKETTA, MM07 (SE)
SAKET COURTS COMPLEX
STATE VS. SURENDER KUMAR
FIR NO. : 32/95
P.S. : G.KI
U.S. : 379/411 IPC
Date of institution of case : 17.07.1998
Date on which case reserved : 11.11.2010
for judgment
Date of judgment : 11.11.2010
JUDGEMENT U/S 355 Cr.P.C
.:
a) Date of offence : 18.08.1995
b) Offence complained of : U/s 379/411 IPC (charge framed u/s 411 IPC)
c) Name of accused, his : Surender Kumar S/o Sh. Amar
parentage & residence Nath, R/o Chopra Market,
Kichha, PS Kichha, Distt.
Udham Singh Nagar (UP).
d) Plea of accused : He has been falsely implicated.
e) Final order : Acquittal
BRIEF REASONS FOR THE DECISION OF THE CASE:
1.In brief the case of prosecution is that on 18.08.1995, at about 7.30 PM, at crossing By pass, Rudrapur within the jurisdiction of District Haldwani, UP, the accused was found in possession of one Maruti Car belonging to the complainant Dr. Sonia knowingly that the same was stolen property and had committed the offence punishable u/s 411 IPC. The accused was arrested in this case and was later on released on bail by court orders being involved in a non bailable case.
FIR No. 32/95 PS G.KI 2 of 5
2. After completion of investigation, chargesheet was filed against the accused and he was summoned to face trial. Charge for the offence u/s 411 IPC was framed by my Ld. Predecessor on 23.09.2005 to which he pleaded not guilty and claimed trial.
3. In order to substantiate its version, prosecution has examiend only seven witnesses. PW1 ASI Ashok kumar had deposed that on 04.02.1995, he was posted as duty officer at PS G.KI and had proved the carbon copy of the FIR as Ex.PW1/A.
4. PW2 ASI Kaptan Singh had deposed that on 23.08.2001 he was posted at PS G.KI as ASI and the investigation of this case was handed over to him by MHC(R) on 06.04.1998. However, he could not conduct the investigation any further due to the transfer and he had handed over the case file accordingly.
5. PW3 was ASI Zile Singh who had deposed that on 16.05.1997, he had received the file for investigation. On 04.06.1997, he had moved an application for issuance of production warrants of accused and the same were issued by the court for 13.07.1997. In the meantime, he was transferred from the PS and on 03.07.1997, he had returned the case file.
6. PW4 HC Prem Singh, he had deposed that on 12.6.96, he has received the case file on investigation alongwith documents, which were received by the SHO, G.K. I from Udham Singh Nagar (UP). However, he could not conduct the investigation as he was transferred after few days and he had handed over the case file on 15.2.1997. He had deposed that during his investigation he has inquired about the ownership of vehicle from the office of United India Insurance Co. where it was disclosed that the owner of the vehicle had already taken this insurance claim and that the company would left the vehicle transferred from Udham Singh Nagar from where the stolen vehicle was recovered.
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7. PW 5 Dr. Sonia Sharma was the complainant of this case. She had deposed that on 3.2.1995, she had parked her Maruti Car 800 C bearing No. DBG 6759 next to her house on the road at about 8.00 pm. Next morning between 8.30 - 900 am, she found that the car was missing. She had tried to search it but car could not be found. She had further deposed that she had rangup the police at 100 number and within half an hour police had reached her residence. Her statement Ex.PW5/A was recorded. Later on, she obtained the claim from Insurance Company. She had deposed that due to the lapse of time she could not remember the chasis and engine no. of said car, however she had correctly identified the stolen the car Ex. P1.
8. During her cross examination witness had admitted that Ex.P1 was having chasis and engine nos. as 2378821 and C23849 respectively and further admitted that the aforesaid numbers were different as stated by her in the original complaint. She further deposed that she saw the car first time in the court after lodging the complaint and found the car in poor condition without any number plate.
9. PW6 ASI Shabir Ahmed had deposed that the further investigation of the case was handed over to him. He had deposed that he received information about recovery of one stolen car from PS Kichha, U.P. He brought the car and deposited the same with MHCM. He had correctly identified the photos car. Ex.P2 to P5. During cross examination, he admitted it to be correct that no recovery proceedings were conducted in his presence. He deposed that the vehicle in question was taken by the insurance company, hence, no information of recovery of stolen car was given to the complainant. He denied the suggestion that all the proceedings were conducted in PS to fill up the lacuna. He also denied that the Car Ex.P1 was not a stolen car or that accused had been falsely implicated in the case.
10.PW7 ASI Ashok Kumar, had deposed that on 4.02.1995, he was posted at PS GKI. The investigation of this case was assigned to him on 09.02.1996 after registration FIR No. 32/95 PS G.KI 4 of 5 of FIR. He had prepared site plan Ex.PW7/A at the instance of complainant. He searched for the stolen car but the same could not be found out. Finally, he submitted the untrace report on 6.3.1995. He further deposed that on 9.2.1996, he received information about the recovery of aforesaid stolen car from Distt. Udham Nagar, PS Kichha vide letter Ex.PW7/B. Later on, he could not conduct the investigation due to transfer. During cross examination, he had admitted it to be correct that the list of witnesses of present case was not prepared while he was conducting the investigation. He had denied that suggestion that he had no information regarding the case and that he was deposing merely on hearsay.
11.Thereafter, no other witness has ever appeared despite having been given numerous opportunities to the prosecution. Accordingly, PE was closed. Since, nothing incriminating had come against the accused, statement of accused u/s 313 Cr.PC was dispensed with.
12.I have heard Ld. APP as well Ld. Defence counsel and have gone through the entire record.
13.It is pertinent to mention that no other witnesses who could have proved the alleged recovery of stolen car ever appeared despite having been given numerous opportunities. There was no other witness to alleged recovery of stolen vehicle and no other circumstantial evidence to connect the accused with the offence u/s 411 IPC.
14.The perusal of entire record shows that the happening of the very incident had not been made out and therefore, the basic ingredients of section 379/411 IPC are not satisfied. The identity of the accused and the factum of the incident cannot be proved in the absence of complainant. It has been held in the judgment of Joya Ram Vs. State of Haryana that "prosecution is under the legal obligation to prove FIR No. 32/95 PS G.KI 5 of 5 each and every ingredients of the offence beyond any doubt unless otherwise so provided bu the any statue. This burden never shift, it always rest on the prosecution" and also in the case of Jornail Singh Vs. State of Punjab (SC) 1996 (1) RCR (Crl) 465, it was held that " the cardinal principle of criminal jurisprudence is that an accused is presumed to be innocent and burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubts." This Court is of the opinion that accused person namely Surender Kumar be acquitted from the charges against them in this case by giving benefit of doubt as their identity cannot be proved by the prosecution.
15.It is well settled proposition of law that in criminal case, prosecution has to prove its case beyond reasonable doubts. In the present case the most important witness i.e. complainant could not be examined as he was untraceable. I am of the considered view that non examination of complainant is fatal for prosecution case. There is no other evidence on record to connect the accused with offence in question.
16.In view of foregoing reasons, I am of the considered opinion that allegations against the accused persons could not have been proved beyond reasonable doubts. Accused persons are accordingly acquitted from the charge of offence U/s 379/411 IPC.
17.File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ( MONA TARDI KERKETTA )
TODAY ON 11.11.2010 MM07 (SouthEast),
Saket Courts complex,
New Delhi
FIR No. 32/95 PS G.KI