Delhi District Court
Hon'Ble Delhi High Court Observed In ... vs State 23 (1983) Dlt on 19 August, 2015
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
FIR No. : 679/00
P.S. : Shalimar Bagh
Unique ID No. : 02401R0397972002
State
Vs.
Sunil Kumar @ Rahul
S/o Sukh Pal
R/o House no. A-3/120,
Sultan Puri, Delhi.
Date of institution of case : 04.01.2002
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 19.08.2015
JUDGMENT
1. S. No. of the Case: 113/2/SB 2. Date of Commission of Offence: 13.12.2000 3. Date of institution of the case: 04.01.2002 4. Name of the complainant: Kaptan Singh 5. Name of the accused: Sunil Kumar 6. Offence complained or proved: 411 IPC 7. Plea of Accused : "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 19.08.2015 FIR No. 679/00 PS Shalimar Bagh Page 1 of 9 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Succinctly, the facts of the case as per prosecution are that on 13.12.2000, accused Sunil Kumar @ Rahul was found in possession of one scooter bearing no. DL-6SC-3756, bearing a fake no. plate number DL-8SB-6258 which was stolen from the area of PS Shalimar Bagh. It is alleged that the accused dishonestly received or retained the aforesaid scooter, knowing or having reasons to believe the same to be stolen property, belonging to complainant Kaptan Singh. Accused was arrested and upon completion of investigation, challan was prepared u/s 411/482 IPC and filed in court for trial.
2. The copies of charge sheet and annexed documents were supplied to the accused in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, charge for offence U/s 411/482 IPC was framed against the accused on 11.08.2005 to which he pleaded not guilty and claimed trial and the case was adjourned for recording of prosecution evidence.
4. In order to prove its case, prosecution has examined the following witnesses:-
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PW-1 ASI Rajinder was the duty officer who proved the FIR Ex. PW 1/A and endorsement upon the rukka as Ex. PW 1/B
5. The main eye witness i.e. complainant namely Kaptan Singh on whose statement the complaint was registered, had expired on 29.06.2007 and death verification report has already been received from the SHO PS Shalimar Bagh. The remaining examined or unexamined witnesses are either police officials or formal witness who are not complainant and cannot prove theft of the motorcycle. Thus, the prosecution evidence was closed. Nothing incriminating was found on record against the accused which could warrant examination of accused U/s 313 Cr.P.C., accordingly it was dispensed with.
6. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
7. In the present case, the accused Sunil Kumar is charge sheeted u/s 411/482 IPC on the allegations that 13.12.2000, he was found in possession of one stolen scooter bearing no. DL-6SC-3756, bearing a fake no. plate number DL-8SB-6258, belonging to complainant Kaptan Singh.
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8. The very first ingredient of section 411 IPC is that property retained or received should be a "stolen property". The words stolen property is defined in section 410 IPC as follows:
Section 410. Stolen property.--
Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without [India]]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property. 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 FIR No. 679/00 PS Shalimar Bagh Page 4 of 9 Section 482. Punishment for using a false property mark.-
Whoever uses any false property mark shall, unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both
9. The prosecution was under obligation to prove the following ingredients:
-That the accused received/retained scooter bearing no. DL-6SC-3756, bearing a fake no. plate number DL-8SB-6258 knowing it to be stolen;
-That the aforesaid motorcycle was stolen property of complainant Kaptan Singh.
10. The prosecution examined only one witness i.e. PW-1 ASI Rajender who had registered the FIR in the present case. The main witness and the complainant in the present case remained unexamined as he expired during the trial of the case.
11. No other eye witness could prove the fact of theft and that the case property allegedly recovered from the accused is the "stolen property". The accused is charged for the offence under section 411/482 for allegedly receiving or retaining stolen property with false property mark. The important ingredient to FIR No. 679/00 PS Shalimar Bagh Page 5 of 9 be proved is that the accused was found in possession of "stolen property" which was stolen from the complainant. The prosecution was under bounden duty to prove the fact of theft at the outset and also that the property stolen is the same property which is allegedly recovered from the possession of the accused. Only the complainant could prove the fact that the same property was stolen from his possession but the complainant has remained untraceable. In these circumstances, no fruitful purpose could be served by examining the other witnesses who could not prove the fact of theft from complainant. The original complaint remains not proved. In absence of complainant, the basic ingredient of the case remains unproved. The fact of theft and stolen property remains unestablished and as such the factum of alleged recovery of a property from accused has no meaning. The Hon'ble Delhi High Court observed in Rajinder Kumar vs State 23 (1983) DLT 42 that:
"16.....Rattan Lal cannot be held guilty of receiving stolen property. It is the duty of prosecution in order to bring home the guilt of the person under section 411 Indian Penal Code to prove (i) that the stolen property was in the possession of the accused, (ii) that some person other than the accused had possession of the property before the accused got possession of it, and (iii) that the accused had FIR No. 679/00 PS Shalimar Bagh Page 6 of 9 knowledge that the property was a stolen property. (Trimbak v. State of M.P. ). None of these elements have been proved. It has not been proved that it was the stolen property which was in the possession of the appellant Rattan Lal. Nor has it been proved' that any of the three other accused persons had possession of the property before Rattan Lal got possession of it...."
12. In Bighnaraj Tripathy vs State Of Orissa 1992 CriLJ 2276, it was observed as follows:
"4. Stolen property is defined under Section 410, IPC. The onus lies on the prosecution to bring home guilt of a person under Section 411, IPC and in order to secure conviction, it has to be proved that (i) property in question was stolen property within the meaning of Section 410, IPC; (ii) the same was in possession of accused; and (iii) some other person other than accused had possession of property before accused got possession of the same, and accused had knowledge or reason to believe that property was stolen property and with such knowledge or belief, dishonestly received it or dishonestly retained it. (See Trimbak v. The State of Madhya Pradesh : AIR 1954 SC 39). Offences for receiving and retaining stolen property are contextually different. Use of alternative expression 'dishonestly receives or retains' in one and the same section, requires prosecutor FIR No. 679/00 PS Shalimar Bagh Page 7 of 9 to prove that accused either received or retained property, of course dishonestly. The prosecutor need not prove that it was dishonestly received as distinct from dishonestly retained, or dishonestly retained as distinct from dishonestly received. It is enough to prove the facts to justify inference that accused either dishonestly received or retained the property. Prosecution has to establish that property in question was stolen property and there was either dishonest receipt or dishonest retention....."
13. It is well settled law that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused has a right to maintain silence in the trial. Every accused is to be presumed innocent until proved guilty. The burden of proof on the prosecution is to prove the case by leading cogent, convincing and reliable evidence to prove the guilt of accused beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave cannot take place of proof. No evidence has come on record to prove the culpability on the part of accused. The prosecution has failed to prove the case against the accused and therefore, the accused is entitled to be exonerated.
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14. In the light of above discussion and observations, the accused Sunil Kumar is hereby acquitted for the offences u/s 411/482 IPC in the present case. Bail bonds are cancelled and sureties are discharged. Documents, if any be returned after cancellation of endorsement on the same.
15. File after necessary compliance be consigned to record room.
Announced in open court ( SUSHIL ANUJ TYAGI )
18th day of August 2015 Metropolitan Magistrate,
Rohini Courts: Delhi
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