Delhi District Court
State vs . Gagan on 4 June, 2022
IN THE COURT OF MS. SHIKHA CHAHAL
METROPOLITAN MAGISTRATE-11 (SOUTH EAST DISTRICT)
SAKET COURTS, NEW DELHI
State Vs. Gagan
FIR No.: 71/2022
PS : Jaitpur
U/s : 379/411 IPC
JUDGMENT
A. Case Identification Number & DLSE02-049191-2019 & Cr. CASE Number 553/2022 B. Name of the Complainant Brijesh Morya C. Name of the accused & his Gagan S/o Sh. Gulab parentage and address R/o Jhuggi No. 161, Subhash Camp, Badarpur, New Delhi D. Offence complained of u/s 379/411 IPC E. Date of commission of offence 18.01.2022 F. Date of Institution 03.02.2022 G. Offence Charged u/s 379/411 IPC H. Plea of accused Pleaded not guilty I. Order Reserved on 02.06.2022 J. Date of Pronouncement 04.06.2022 K. Final Order Acquittal BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE.
1. Briefly stated, the prosecution story is that complainant made a complaint in PS Jaitpur that on 17.01.2022 at 11:50 pm, at Meethapur Chowk, New Delhi State Vs. Gagan FIR No. : 71/2022 PS Jaitpur U/s 379/411 IPC Page no.1 of 7 within the jurisdiction of PS Jaitpur, accused committed theft of a mobile phone (Make Infinix, colour Purple, IMEI No.356432223401402 & 356432223401410 (having SIM Card bearing No.6393493177) which the complainant was carrying and the said mobile phone was recovered from right pocket of the pant of accused and thereafter, FIR was registered against the accused.
2. After registration of FIR, the investigation was carried out by police officials of PS Jaitpur and after completion of investigation, charge-sheet was filed against the accused.
3. After taking cognizance of offence and compliance of Section 207 Cr.P.C., charge was framed against accused for the offence u/s 379/411 IPC to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution had examined three witnesses, namely, Brijesh Maurya as PW-1, HC Jagjeet as PW-2 and Ct. Sachin as PW3.
5. PW-1 Brijesh Maurya was the complainant who deposed on 17.01.2022 while he was returning from work at 11:50 pm, one boy stole his mobile phone (make Infinix of purple colour) and deboarded the auto and started running. He caught the accused and took him to police station. He proved his statement Ex.PW1/A which was recorded by police, site plan Ex.PW1/B, seizure memo Ex.PW1/C, arrest memo Ex.PW1/D and personal search memo of accused Ex.PW1/E. Case property was identified by the witness. Witness was duly cross-examined by learned legal aid counsel.
6. PW-2 HC Jagjeet deposed that on 18.01.2022 complainant Brijesh Maurya came to police station and produced the accused alleging that accused had State Vs. Gagan FIR No. : 71/2022 PS Jaitpur U/s 379/411 IPC Page no.2 of 7 stolen his mobile phone. PW-2 recorded statement of complainant, prepared rukka Ex.PW2/A and got the FIR registered. He prepared site plan Ex.PW1/B, arrested and conducted personal search of accused vide memos Ex.PW1/D & Ex.PW1/E respectively and thereafter case property was deposited in malkhana. He submitted the charge-sheet after completion of investigation. He was cross- examined by learned legal aid counsel.
7. PW-3 Constable Sachin deposed similarly to PW-2. He deposed that his statement U/s 161 Cr.P.C. was recorded by IO. He identified the case property.
8. Accused vide his statement recorded U/s 294 Cr.P.C, aadmitted the genuineness of FIR No. 71/2022 P.S. Jaitpur as Ex. P1, Endorsement on rukka as Ex.P2 and G. D. No. 6A dated 18.01.2022 as Ex.P3 respectively and did not press for formal proof of these documents and thus, examination of one witness was dispensed with.
9. After examining aforesaid witnesses, prosecution closed its evidence.
10. Thereafter, evidence against the accused was put to him under Section 313 Cr.P.C and his statement was recorded. He denied the evidence against him in entirety and stated that he was falsely implicated in the present case. He further stated that on the date of incident, he was was sleeping near a "pul", K. M. Pur, police officials came and woke him up and took him to the police station on the instance that they want to speak and wrongly implicated him in the present case. Accused chose to not lead defence evidence. Consequently, the matter was posted for final arguments.
11. Final arguments addressed by the Ld. APP for State and Ld. Legal aid Counsel for accused were heard and case file was perused.
State Vs. Gagan FIR No. : 71/2022 PS Jaitpur U/s 379/411 IPC Page no.3 of 7
12. Ld. APP for State argued that prosecution with the help of the witnesses examined in this case have proved that accused has committed theft of mobile phone from complainant and was caught on the spot. It was argued that version of PW-1 was corroborated by PW-2 and PW-3 and all the prosecution witnesses have stood the test of cross examination. Accused did not lead any evidence to disprove the case of the prosecution while the prosecution has proved its case beyond reasonable doubt.
13. Ld. LAC for accused argued that there are major contradictions in the testimonies of PWs examined by the prosecution The prosecution story is not trustworthy as complainant has not even proved the ownership of the phone. There were no public persons at the time of recovery of mobile phone from the accused. The accused is falsely implicated in this case by picking him from a "pul" K. M. Pur. Therefore, accused be acquitted in this case as prosecution has not proved its case beyond reasonable doubts.
14. Before appreciating evidence, I must mention the cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. This general burden never shifts and it always rests on the prosecution. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
State Vs. Gagan FIR No. : 71/2022 PS Jaitpur U/s 379/411 IPC Page no.4 of 7
15. Section 379 defines 'Theft'. The main ingredients of theft are that one should intend to take dishonestly any movable property out of the possession of any person, without that person's consent. Offender should also move the property in order to take it. For proving the charge under Section 411 IPC, prosecution had to prove that the stolen mobile phone was recovered from the possession of accused and he knowingly/dishonestly retained or received stolen property in question, belonging to complainant.
16. Keeping in mind the broad dictum of law, I am proceeding further to appreciate evidence. Prosecution examined three witnesses. PW-1 Brijesh Maurya was the complainant in this case. It was he, who had alleged that his mobile phone make Infinix of purple colour, was stolen on 17.01.2022 by the accused while he was in auto, as he was going from Okhla after work towards his home. Once he had claimed that he was owner of the said mobile phone, he should have furnished ownership documents of the said mobile phone, to the police. Complainant himself, during investigation and during trial, failed to furnish his ownership documents with regard to said mobile phone, which was a material shortcoming in prosecution case. Further, complainant failed to prove the fact that alleged mobile phone was in his possession, when it was allegedly stolen. Testimony of complainant, therefore was not trustworthy, in the absence of ownership documents of said stolen mobile phone. Coupled with the same, PW- 1 couldn't identify the accused as PW-1 deposed in cross-examination that he cannot properly say that accused stole the mobile phone as he had seen him once vaguely and at the time of incident there was not much light. In the statement of PW-1 (Ex. PW1/A), complainant has only mentioned that he caught the accused at the spot after accused stole his mobile phone from his State Vs. Gagan FIR No. : 71/2022 PS Jaitpur U/s 379/411 IPC Page no.5 of 7 pocket and took him to the police station whereas, in examination-in-chief, PW- 1 deposed that accused snatched the mobile phone and deboarded the auto and started running. PW-1 caught him at the spot and took accused to the police station. Thus, there is a material contradiction in the testimony of PW-1. Further, PW-1 was made the witness at the time of arrest, personal search of the accused then the version of PW-1 that he had seen the accused once vaguely is contradictory. Thus, as the PW-1 failed to identify the accused and has material contradictions in his statements, his testimony is discarded being untrustworthy and unreliable.
17. PW-2 had apprehended accused on the basis of suspicion and the fact that complainant brought the accused to Police Station alleging that he had stolen his mobile phone. PW-2/IO did not explain the basis of said suspicion and didn't do any investigation as regards the allegations of complainant. IO believed the version of complainant as gospel truth and didn't even verify the ownership documents of mobile phone. It is the version of prosecution that the accused did not try to flee away and complainant easily took him to the police station with him. The said conduct only indicated, lack of malafide on the part of accused, which did not help the cause of prosecution. No investigation was done at the spot by IO and no effort was made to join any public person to the investigation for the purpose of transparency. The driver of the auto was not examined as a witness to corroborate the version of complainant that accused deboarded the auto and ran. The testimony of PW-2 and PW-3 merely proves the preparation of various memos during investigation and there is no independent witness joined in the investigation. Thus, testimony of PW-2 and PW-3 do not prove the case of prosecution. Accused had raised the plea of State Vs. Gagan FIR No. : 71/2022 PS Jaitpur U/s 379/411 IPC Page no.6 of 7 innocence and false implication, during trial. That plea appeared to be probable as investigation was done in a hurried manner. I conclude that investigation was based on execution of various memos, which were self serving documents for the police. Those documents therefore, did not inspire my confidence.
18. The site plan Ex.PW1/B, pertains to the place from where recovery was done but it was bereft of any measurements and details of the residential area. Therefore, it was inconsequential.
19. There was no eye witness to the incident of theft or any other evidence to prove that accused committed the theft of said mobile phone of complainant The net result is that this case basically hinged on the disclosure statement of accused which is not a piece of admissible evidence.
20. In the case at hand, all the lapses in investigation casts a doubt on the very recovery of the said stolen mobile phone from the possession of the accused. It raises doubt that that the entire paper work was done by the police officials at the PS itself. It further strengthens the doubt of false implication of the accused. There are material contradictions in the testimonies of witnesses examined. Thus, I find that the prosecution has failed to prove its case u/s 379/411 IPC against the accused Gagan beyond reasonable doubt.
21. Keeping in mind the above-mentioned discussion, accused Gagan is acquitted for the commission of the offence U/s 379/411 IPC.
Announced in the Open (SHIKHA CHAHAL)
Court on 04.06.2022 MM-11/SED/New Delhi
04.06.2022
State Vs. Gagan FIR No. : 71/2022 PS Jaitpur
U/s 379/411 IPC Page no.7 of 7