Delhi District Court
State vs . Khurshid on 7 June, 2019
IN THE COURT OF MS. RICHA GUSAIN SOLANKI, METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI. FIR No. : 210/17 U/s : 380/411 IPC P.S : BHD Nagar State Vs. Khurshid Date of Institution of case: 07.11.2017 Date of Judgment reserved: 07.06.2019 Date on which Judgment pronounced: 07.06.2019 JUDGMENT
Unique ID no. : 8400/17
Date of Commission of offence : 10.10.2017
Name of the complainant : Rajesh
s/o Sh. Shree Om
r/o RZ77B, Aggarwal Colony, near
Anaj Mandi, Najafgarh, New Delhi.
Name and address of the accused : Khurshid
persons s/o Sh. Sharajuddin
r/o RZ17, Dharampura, BlockA3,
Gali no. 2, Najafgarh, Delhi.
Offence complained of : 380/411 IPC
Plea of accused : Not guilty
Date of order : 07.06.2019
Final Order : Accused is acquitted for all offences
BRIEF REASONS FOR DECISION:
1. The case of the prosecution in brief is that on 10.10.2017 ASI Krishan Kumar received DD no. 26A upon which he alongwith Ct. Sunil went to the spot and recorded statement of complainant Sh. Rajesh. Complainant gave his statement FIR No. : 210/17 P.S : BHD Nagar U/s : 380/411 IPC State Vs. Khurshid Page 1 of 5 that on that day he was at his electric motor welding shop. He stated that at around 1.30 pm he left his shop open and went to a nearby shop to get his phone recharged. He stated that when he returned after 5 minutes he found that one old blue coloured motor of Jyoti company, of one HP alongwith pump was missing. He stated that this motor had been brought to his shop for repair. He stated that he raised alarm and one passerby told him that one old water motor was being taken by a boy on his shoulder towards the bus terminal. He stated that he ran towards the terminal and saw accused Khurshid carrying the stolen motor on his shoulder. He stated that he apprehended him and made call at 100 number.
On the basis of aforesaid facts, present case FIR No.210/17, P.S. BHD Nagar was lodged for the offences under Section 380/411 IPC.
2. Arguments were heard and charge for the offences u/s 380/411 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. Prosecution examined four witnesses in its support:
3.1. PW1 Rajesh entered the witness box on 07.02.2018 and deposed that he runs a shop of electric motor winding. He stated that on 10.10.2017 he went to a nearby shop to recharge his mobile and when he came back at 1.30 pm, he found one water motor of Jyoti company missing. He stated that he asked a neighbour about it but the neighbour denied. He stated that he started looking in the area and one keeper of a shop near the terminal told him that he had seen one person carrying a motor. He stated that he went to the street behind the terminal and saw accused carrying a water motor on his shoulder. He stated that he was on motorcycle and apprehended the accused. He stated that public persons also gathered at the spot and then he made call at 100 number. He stated that he made statement Ex. PW1/A and that site plan Ex. PW1/B was made at his instance. He stated that the water motor Ex. P1 was seized by the police vide memo Ex. PW1/C. He stated that accused was arrested vide memo FIR No. : 210/17 P.S : BHD Nagar U/s : 380/411 IPC State Vs. Khurshid Page 2 of 5 Ex. PW1/D and his personal search memo is Ex. PW1/E. In his cross examination, he stated that he had did not issue any receipt to the owner of water motor because he looks after the electric work for that person. He stated that within half an hour IO prepared the site plan and recorded his statement.
3.2. PW2 Azad entered the witness box on 26.06.2018 and deposed that he had given his electric water motor for repair at the shop of Rajesh. He identified the water motor Ex. P1.
In his cross examination, he stated that he had given his water motor for the first time to Rajesh.
3.3. PW3 ASI Krishna Kumar entered the witness box on 30.10.2018 and deposed on the lines of chargesheet. He stated that he prepared rukka Ex. PW 3/B and prepared site plan Ex. PW3/C. In his cross examination, he stated that the distance between the place of shop and the place of arrest was about 500 metres. He stated that he did not examine any public witness. He admitted that motors like Ex. P1 were easily available in the market.
3.4. PW4 Ct. Sunil, entered the witness box on 30.03.2019 and deposed on the lines of chargesheet.
In his cross examination, he stated that the distance between the shop and place of arrest was 100 metres to 150 metres. He stated that he did not go to the shop of complainant. He stated that IO did not make inquiry from the person who told about the motor to complainant. He admitted that accused was apprehended at a public place.
4. Statement of accused u/s 294 Cr.PC was recorded wherein he admitted the genuineness of registration of present FIR as Ex X1 and its certificate u/s 65 B Indian Evidence Act as Ex. X2.
FIR No. : 210/17 P.S : BHD Nagar
U/s : 380/411 IPC
State Vs. Khurshid Page 3 of 5
5. Statement of the accused was recorded u/s 281 r/w 313 CrPC wherein he denied all the allegations made against him. He chose not to lead evidence in defence.
6. I have heard both the sides and perused the record.
7. To prove offence u/s 380/411 IPC prosecution had to prove that accused committed theft of motor Ex P1 in the shop of complainant and that he was found in possession of same knowing the same to be a stolen property.
8. It is the case of prosecution that complainant found his motor missing and he raised alarm after which one passerby told him that it was being taken by a boy towards the bus terminal. However, PW1 stated that after his neighbours did not tell him anything, he started looking in the area and reached near the terminal where he met one shopkeeper who told him that he had seen one person carrying a motor. Whether this person was a passerby or whether he was a shopkeeper is not clear since the IO has not made any enquiries from such person.
9. The case of prosecution was that complainant ran towards the terminal and saw accused but PW1 stated that he went to the terminal on his motorcycle. Further PW1 stated that he found accused with motor on the street behind the terminal but the site plan Ex PW3/C shows the place of apprehension as the main road in front of the terminal.
10.Interestingly, PW4, who was with IO during investigation, says that he never visited the shop of complainant. Even the testimony of PW3/IO is silent about going to the actual place of incident, that is, the shop. PW3 did not say that he ever visited the shop where theft was committed. Both PW3 and PW4 were asked how far the shop was from the place of apprehension and they gave very different answers. PW3 said it was 500 meters and PW4 said it was 150200 meters. This implies that IO never visited the shop of complainant. One fails to understand how IO/PW3 drew the shop on the site plan Ex PW3/C without even visiting it.
Once it appears that IO did not even care to visit the shop where theft had taken place, the entire prosecution's case comes under a shadow of doubt.
FIR No. : 210/17 P.S : BHD Nagar
U/s : 380/411 IPC
State Vs. Khurshid Page 4 of 5
11. Further, PW3 and PW4 both admit that no public person was asked to join investigation. There is no explanation why IO did not do so. It would have been one thing to say that IO asked but people refused but to say that IO did not even ask anyone casts a very serious doubt on the genuineness of the seziure memo Ex PW1/C. IO ought to have joined public persons in the investigation.
12. Therefore, prosecution has not been able to prove beyond reasonable doubt that accused committed theft of motor Ex P1 and was found in possession of the same.
13. Accordingly, accused Khurshid acquitted for offences u/s 380/411 IPC.
Announced in open court today (Richa Gusain Solanki)
on 7th of June 2019 Metropolitan Magistrate07
Dwarka District Court/Delhi
Digitally signed
by RICHA
RICHA GUSAIN
GUSAIN SOLANKI
Date:
SOLANKI 2019.06.07
17:29:03 +0530
FIR No. : 210/17 P.S : BHD Nagar
U/s : 380/411 IPC
State Vs. Khurshid Page 5 of 5