Delhi District Court
State vs . Guddu on 9 November, 2012
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
State Vs. Guddu
FIR No. 16 of 2007
P.S. Kanjhawala
Unique ID No. 02404RO0351782010
Date of institution of case: 05.6.2007
Date of reserving the judgment: 03.11.2012
Date of pronouncement of judgment: 09.11.2012
J U D G M E N T
1. S. No. of the Case : 193/2/07 2. Date of Commission of Offence : 07.1.2007 3. Date of institution of the case : 05.6.2007 4. Name of the complainant : Brij Mohan Luthra
5. Name of the accused,parentage & address: Guddu S/o Sukhlal, R/o Y76, Gali near Prem NagarII, Delhi
6. Offence complained or proved : 379/411 IPC
7. Plea of Accused : "Not Guilty"
8. Final Order : Acquitted
9. Date of Final Order : 09.11.2012 BRIEF FACTS AND REASONS FOR THE DECISION:
1. Succinctly, the facts of the case as per prosecution is that on 07.1.2007 at unknown time at tower No. 178 and 179 of Bawana Najafgarh, village Rani Khera within the jurisdiction of PS Kanjhawala theft of Zebra Electric Conductor FIR No. 16/07 PS Kanjhawala 1 measuring about 150 meters of 220 KV Line ACSR belonging to Delhi Transco Limited took place and on 25.3.2007 accused Guddu was found in possession of the same in his TSR No. DL 1L F 3946 which he kept the same in his possession knowing and having reasons to believe to be the stolen property. Accused was arrested and upon completion of further necessary investigation charge sheet was prepared and was filed in the court for trial.
2. The copies of chargesheet and annexed documents were supplied to accused persons in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, charge for the offence U/s 379/411 was was framed against the accused on 07.2.2008 to which accused pleaded not guilty and claimed trial.
4. In order to prove its case prosecution examined the following witnesses:
5. PW 1 HC Naresh Kumar was posted as MHC(M) in PS Kanjhawala with whom case property was deposited by IO HC Ram Avtar. He proved the relevant entry in this regard in register No. 19 as Ex. PW 1/A.
6. PW 2 Brij Mohan Luthra is the complainant. He deposed that on 07.1.2007 while patrolling in the line due to fault, he observed that some miscreants have stolen the 220 KV line ACSR Zebra conductor about 150 meters from site between tower No. 178 & 179 in the fields of Rani Khera and the same caused loss to DTL and the property material which was worth Rs. 33,000/ and FIR No. 16/07 PS Kanjhawala 2 besides the commercial and restoration charges. He further deposed that on the very same day he had given the compliant to SHO Kanjhawala for lodging the FIR. He proved his statement as Ex. PW 2/A. He further deposed that on 23.1.2007 he was called by the police for the investigation of the case and at his instance site plan Ex. PW 2/B was prepared. This witness was cross examined by Ld. APP and the witness denied the suggestion put by Ld. APP that on .30.4.2007 he was called at PS Bawana for identification of case property. He also denied the statement Ex PW2/C.
7. PW 3 Ct Kuldeep deposed that on 09.4.2007 he alongwith HC Ram Avtar came to Rohini Courts where accused Guddu was produced in some other case and with the permission of court, HC Ram Avtar interrogated and arrested the accused Guddu in the present case and accused disclosed that on 07.1.2007 he has stolen the high tension wire from side between tower No. 178 & 179 in the fields of village Rani Khera. He further deposed that IO took one day police custody remand of accused on 09.4.2007. He further deposed that accused pointed out the place of theft. He proved the arrest memo of accused as Ex. PW 3/A and pointing out memo as Ex. PW 3/B.
8. PW 4 W/HC Sarla was posted as duty officer in PS Kanjhawala and registered the FIR Ex. PW 4/A in the present case. She also proved the endorsement on the complaint as Ex. PW 4/B.
9. PW 5 Kanwar Lal, Assistant Ahlmed from the court of Shri Naveen FIR No. 16/07 PS Kanjhawala 3 Gupta ld. MM, Rohini produced the original file of case FIR 495/07 and proved the copy of the said FIR as Ex. PW 5/A.
10. PW 6 Ct. Devender deposed that on 25.3.2007 he was posted in PS Sultanpuri and on that day he alongwith Ct. Surender was checking the vehicles at Agar Nagar Mor, Prem Nagar and one TSR No. DL 1LF 3946 came and it was stopped and checked. The said TSR was being driven by accused Guddu. Accused tried to run away but was apprehended and one buttondar knife was recovered from his right hand side pant pocket. The TSR was loaded with high tension aluminium wire. Ct Surender gave information of the same to PP and HC Gyan Chand came at the spot who was handed over the accused and recovered case property who seized the same vide memo Ex. PW 6/A. Accused made disclosure statement Ex. PW 1/B and pointing out memo Ex PW 1/C was prepared. The examination in chief of this witness was deferred for want of TSR. This witness was not examined again and thus his testimony could not be concluded.
11. PW 7 HC Gyan Chand deposed that on 25.3.2007, on receipt of DD No. 3 PP Prem Nagar he went to the spot where Ct Surender and Ct. Devender met him who produced accused Guddu and one TSR No. DL 1L F 3946 and one buttondar knife. Thereafter they checked the TSR and it was found to containing electric wire, high tension. Thereafter he recorded statement of Ct Surender which is Ex. PW 2/B. He further deposed that he seized the case property and FIR No. 16/07 PS Kanjhawala 4 TSR vide memo Ex. PW 6/A, prepared rukka and got registered the FIR through Ct. Devender. He further deposed that he prepared site plan Ex. PW 7/A. Thereafter he recorded the disclosure statement of accused which is Ex. PW 1/B. He further deposed that they brought accused to PS Sultanpuri and on the same day produced him in court and was sent to JC. He further deposed that thereafter he came to know that the case property i.e aluminium wire was stolen property of PS Kanjhawala under FIR No. 16/07 and he gave information to PS Kanjhawala through DD No. 18B upon which HC Ram Avtar came at PP. He further deposed that on 28.3.2007 HC Ram Avtar came at PP and he handed over the copy of FIR, copy of statement, rukka and seizure memo. He proved the case property Ex. P1.
12. PW 8 Ct. Surender deposed that on 24.3.2007 he was posted at PP Prem Nagar, PS Sultanpuri and on the intervening night 2425.3.07 he alongwith Ct. Devender was on picket duty at main Mubarakpur Road near Agar Nagar Mor and at about 12:15am one TSR No. DL 1L F 3946 came from the side of Mubarakpur which was being driven by accused Guddu. They signaled to stop him and on seeing them accused stopping the TSR get down and started running and they chased and apprehended him. He further deposed that one buttondar knife was recovered from his possession and they checked the TSR and found aluminium wires in a roll and in pieces. They informed to PS and HC Gyan Chand came at the spot and they handed over accused, TSR and recovered knife FIR No. 16/07 PS Kanjhawala 5 and wire to him. He recorded his statement Ex. PW 7/B. Accused made disclosure that he stolen the wire from the fields of Rani Khera. IO weighed the recovered wire and found total weight of the same as 283 Kgs. Same was seized with TSR vide memo already Ex. PW 6/A. Site plan was also prepared. IO thoroughly interrogated the accused and recorded his disclosure statement Ex. PW 1/B. Accused pointed out the place theft vide memo Ex. PW 1/C. He proved the case property Ex. P1.
13. PW 9 HC Mahavir deposed that on 25.3.2007 was posted in PS Sultanpuri as duty officer who registered the FIR 495/07, Ex. PW 5/A.
14. PW 10 HC Ram Avtar deposed that on 23.1.07 on the instructions of IO he received the complaint already Ex. PW 2/A and copy of FIR already Ex. PW 4/A for investigation, from duty officer. Then he alongwith complainant Shri B.M. Luthra, Assistant Manager, went at the place of theft at near village Rani Khera. There he inspected the spot and prepared site plan already Ex. PW 2/B and recorded his statement. He made efforts to trace the stolen high tension wire and accused but no clue found. He further deposed that on 25.3.07 he received DD No. 18B from PS Sultanpuri to the effect that one accused Guddu has disclosed about the commission of theft in the present case and accordingly on 28.3.07 he went to PS Sultanpuri and obtained relevant documents of case FIR No. 495/07 U/s 25 Arms Act and 411 IPC of PS Sultanpuri from HC Gyan Chand. The documents were site plan already Ex. PW 7/A, seizure memo of FIR No. 16/07 PS Kanjhawala 6 high tension aluminium wire already Ex. PW 6/A, disclosure statement of accused already Ex PW 1/B and pointing out memo of accused already Ex. PW 1/C. He further deposed that on 3.4.07, the recovered high tension aluminium wire was got shifted from PS Sultanpuri to PS Kanjhawala malkhana. He further deposed on 9.4.07 he arrested accused Guddu present in court today after obtaining permission from then concerned court of PS Kanjhawala and prepared arrest memo already Ex. PW 3/A. He thoroughly interrogated him in this case and recorded his disclosure statement Ex PW 10/A. He obtained one day PC remand of accused Guddu to arrest his associates and to recover remaining stolen wire. On the instance of accused they went at the place of theft at near village Rani Khera and he prepared pointing out memo already Ex PW 3/B. He further deposed that he made efforts to trace the co accused persons but no clue found. He further deposed that on the next day accused was sent to JC and after completion of investigation challan of this case was sent to court for trial.
15. Prosecution evidence was closed and thereafter accused was examined U/s 313 Cr.PC on 24.3.2012 wherein he denied all the incriminating material against him on record. He stated that nothing was recovered from him and has been lifted from house and falsely implicated. He opted to not to lead defence evidence.
16. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence legal aid counsel. FIR No. 16/07 PS Kanjhawala 7
17. In the present case, the accused has been charged u/s 379 IPC that he has stolen Zebra conductor measuring 150 meters of 220 KV line ACSR from the possession of Delhi Transco Limited and in the alternative, u/s 411 IPC that he wrongfully retained the aforesaid stolen property knowing it to be stolen.
18. The sections 378/379/411 IPC are reproduced below for reference:
Section 378. Theft Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Section 379. Punishment for theft Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 411. Dishonestly receiving stolen property Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
19. To prove the accused guilty, the prosecution was required to prove the following ingredients:
- That the accused committed theft of Zebra conductor;
- That the accused retained stolen property i.e. Zebra conductor knowing it to be stolen:
FIR No. 16/07 PS Kanjhawala 8
- That the property found in possession of accused is the property stolen from the complainant.
20. In the present case, no eye witness of theft has been examined or cited by the prosecution. The accused is not arrested from the spot of theft or immediately after the theft with stolen property. Thus, there is no particular evidence with respect to the commission of theft by the accused. Thus, section 379 IPC does find applicability to the present case.
21. Now, the other question that arises is whether the accused was found in possession of stolen property i.e. whether the accused retained the stolen property knowing it to be stolen property. First of all, it is conspicuous that the no public witness of arrest and recovery is cited by the prosecution. The case totally rests upon the recovery of stolen property from the accused. The non joining of public witness looses the credibility of prosecution case.
22. The important element that was to be proved by the prosecution was that the property recovered from the possession of accused is the stolen property. The case of the prosecution is that the accused was found in possession of aluminium wires which was in rolls and pieces weighing 283 Kgs. The stolen property in the present case is Zebra conductor measuring 150 meters. The property i.e. aluminium wire alleged recovered from accused is not measured by the IO but weighed. Moreover, there is no evidence on record to connect the property allegedly recovered from the accused to the stolen property. The FIR No. 16/07 PS Kanjhawala 9 complainant PW2 Brij Mohan turned hostile to the point of identification of property. He denied the suggestion of Ld. APP that on 03.04.2007 he was called at PS Bawana for the identification of case property. PW 2 also denied the statement Ex PW2/C dated 03.04.2007 to police. No Test identification parade was got conducted to fix the identity of stolen property. The case property was never sealed. The case property was even not put to the witness during the trial. Thus, there is nothing to establish that the property alleged recovered from accused is the stolen property.
23. It is settled legal proposition that the burden to prove the case against accused beyond reasonable doubt lies on the shoulder of prosecution. The accused has right to maintain silence The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. The benefit of doubt goes in favour of the accused.
24. in the light of above, this court is of the considered view that evidence is insufficient to base the conviction of the accused and the benefit of doubt lies in favour of the accused. The prosecution has failed to prove the case against accused beyond the shadow of reasonable doubt. The accused is entitled to be exonerated on the charges against him in the present case.
25. In view of aforesaid discussion, accused Guddu is hereby acquitted for the offence u/s 379/411 IPC. Bail bonds are cancelled. Surety is discharged. FIR No. 16/07 PS Kanjhawala 10 Documents, if any be returned after cancellation of endorsement on the same.
26. File after necessary compliance be consigned to record room.
Announced in open court ( Sushil Anuj Tyagi )
9th day of November, 2012 Metropolitan Magistrate,
Rohini Courts: Delhi
FIR No. 16/07 PS Kanjhawala 11