Delhi District Court
State vs . Parveen @ Golu. on 18 October, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE08,
PATIALA HOUSE COURTS, NEW DELHI.
Presided by: Sh. Tushar Gupta
EFIR No. 324/2021
PS: Naraina
U/s 380/411 IPC
State vs. Parveen @ Golu.
JUDGMENT
a) ID No. of the case : 10509/2021
b) Date of Commission of : 0607.11.2021
offence
c) Name of complainant/ : Pushpa Devi
informant
d) Name of the Accused & his : Parveen @ Golu
parentage S/o Sh. Ajit Sharma
R/o WZH2A,
Village Naraina, Delhi.
e) Offences complained of : U/s 380/411 of IPC
f) Plea of the Accused : Pleaded not guilty
g) Final Order : Acquitted u/s 380 IPC
& convicted u/s 411 IPC
h) Date of such order : 18.10.2022
State Vs. Parveen @ Golu e-FIR No. 0324/2021 PS Naraina Page No. 1/9
Statement of facts and reason for decision:
1. Briefly stating, prosecution case is that on 0607.11.2021 at around 11:00 pm to 06:00 am, the accused Parveen @ Golu committed theft of water motor ( herein after referred as the case property) make of Okasa and on 07.11.2021 at about 12:15 pm, near C Block community centre, Naraina Vihar accused Parveen @Golu got recovered the stolen water motor which he retained with him knowing or having reason to believe the same to be stolen property thus the instant case eFIR No. 0324/2021, u/s 380/411 IPC, PS Naraina was registered. After completion of investigation, Charge Sheet (Final Report, u/s 173 of Criminal Procedure Code, 1973, in short 'Cr.PC') for commission of offences punishable u/s 380/411 of IPC was filed in the court.
2. On 04.12.2021, final report was filed in the court. After completion of procedural requirement, matter was listed for charge.
3. Vide order dated 28.03.2022, charge for commission of offences punishable u/s 380/411 of IPC was framed against accused. Accused pleaded not guilty and claimed trial. Accordingly, matter was listed for examination of prosecution witnesses (in short 'PE').
4. The prosecution examined 04 witnesses in its favour.
PW1 Complainant Smt. Pushpa deposed that in the intervening night of 0607.11.2021 at WZ - C 572, vilalge Naraina Pushpanjali Apartment. Her house was there on ground floor. When she checked in the morning, she saw that two water motors made of OKASA were not there and she lodged eFIR in this regard. Thereafter, on 07.11.2021, accused was arrested and water State Vs. Parveen @ Golu e-FIR No. 0324/2021 PS Naraina Page No. 2/9 motors were recovered from his possession and her statement u/s 161 CrPC which is exhibited as Ex.PW1/A. Her supplementary statement Ex. PW1/B. Witness had correctly identified the accused who was present in the Court.
PW2 Ct. Deepak deposed that on 07.11.2021, she was posted at Police Station Naraina as constable. On that day, she was on emergency and area patrolling duty along with ASI Sushil Kumar. Thereafter, investigation had been marked to the IO and she reached the place of incident i.e. WZ - C 572, village Naraina Pushpanjali Apartment where Ms. Pushpa Devi had met and on her instance site plan was prepared and his statement u/s 161 CrPC was recorded. Thereafter, they went at C Block, Community Center Naraina Vihar, one person Parveen was present there and from his possession water motors were recovered. Seizure memo of water motors were prepared which is exhibited as Ex.PW2/A. Thereafter, pointing out memo of place of incident was prepared which is exhibited as Ex.PW2/B. Thereafter, accused was arrested vide arrest memo which is exhibited as Ex.PW2/C. Personal search memo was prepared vide memo which is exhibited as Ex.PW2/D. Disclosure statement was recorded which is exhibited as Ex.PW2/E. His statement u/s 161 CrPC was recorded which is exhibited as Ex.PW2/F. Witness had correctly identified the accused who was present in the Court.
PW3 ASI Sushil Kumar deposed that on 07.11.2021, she was posted as ASI in Police Station Naraina. On that day, she was on night emergency patrolling duty along with Ct. Deepak. An EFIR had been registered by complainant Pushpa of a theft and the investigation of the same was handed over to him. Thereafter, he went to the house of the complainant i.e. spot. On her instance, site plan was prepared which is exhibited as Ex.PW3/A. Thereafter they started search for the accused and case property. When they State Vs. Parveen @ Golu e-FIR No. 0324/2021 PS Naraina Page No. 3/9 reached near C block, Community Center, Naraina Vihar, where they saw one person was there who was two motors. On suspicion, they apprehended the accused and he had disclosed that he had stolen both the motors. Seizure memo of both the motors were prepared which is exhibited as Ex.PW2/A. Site plan of recovery was also prepared which is exhibited as Ex.PW3/B. Pointing out memo on the instance of accused was made which is exhibited as Ex.PW2/B where complainant also met them and she had correctly identified the case property. Disclosure statement of the accused was which is exhibited as Ex.PW2/E. Accused was arrested vide arrest memo which is exhibited as Ex.PW2/C and his personal search memo was prepared which is exhibited as Ex.PW2/D. Witness was shown the photographs of the case property which he had correctly identified and exhibited as Ex.PW3/C. Statement u/s 161 CrPC was recorded. Witness has correctly identified the accused who was present in the Court.
PW4 MHC(M) HC Amit deposed brought the register no. 19 of year 2021 and at serial No 247 (which is exhibited as Ex.PW4/A OSR) on the register the entries of the stolen property i.e. water motor which was seized in this FIR is there and the said case property was released to the rightful owner by the order of Hon'ble Court.
5. Vide order dated 12.09.2022, Court closed the PE and listed the matter for examination of accused.
6. On 13.09.2022, statement of accused was recorded u/s 313 of Code of Criminal Procedure,1973 (hereinafter referred as Cr.PC). The accused denied entire allegations of the prosecution. In his statement accused stated that One Batua brought the water motors to him and thereafter the same was handed State Vs. Parveen @ Golu e-FIR No. 0324/2021 PS Naraina Page No. 4/9 over to police. He stated that he was falsely implicated by the police. The accused did not press for leading defence evidence. Accordingly, matter was listed for final arguments.
7. During course of argument, Ld. APP argument that offence u/s 379 of IPC is clearly made out and that offence u/s 411 of IPC is also proved as the case property was duly recovered from the accused. On the other hand learned counsel for accused has argued that the accused is innocent and has been falsely implicated in the present case.
8. Since, the accused is facing trial for commission of offences punishable u/s 379/411 of IPC, it is necessity to determine following facts: a. Whether the accused has committed offence of theft as defined u/s 378 of IPC, punishable u/s 379 of IPC.
b. Whether the accused was in possession of a stolen property as defined u/s 410 of IPC, punishable u/s 411 of IPC.
9. Before addressing the aforesaid questions, it would be appropriate to discuss in brief what constitute the offences u/s 378 and 411 of IPC To constitute an offence of theft, following ingredients must be satisfied: a. Taking of a property with dishonest intention.
b. The property must be movable property.
c. The property must be taken out of the possession of another person.
d. The property must be taken without consent of that person.
State Vs. Parveen @ Golu e-FIR No. 0324/2021 PS Naraina Page No. 5/9e. There must be some movement in order to affect taking of the property.
Offence of theft is punishable u/s 379 of IPC.
Section 411 of IPC lays down punishment for dishonest receiving or retaining any stolen property. Expression 'stolen property' has been defined u/s 410 of IPC.
"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".
From plain reading of the section, it is clear that to describe any property as stolen property, there must be transfer of possession of the property by way of theft, extortion or robbery or criminal misappropriation or criminal breach of trust.
10. To answer the aforesaid issues, it is necessary to analyse evidence on record oral and documentary.
State Vs. Parveen @ Golu e-FIR No. 0324/2021 PS Naraina Page No. 6/911. The final report (chargesheet) reveals that the instant FIR case was registered on the basis of written statement of complainant given to the police. Prosecution has failed to prove all the abovesaid ingredient necessary to prove the guilt for the offense of theft. There is no eye witness to the present case. Further the complainant had himself not seen the committing of offense. As per the deposition of the complainant she had not seen the accused stealing her property. There is no direct evidence to the fact that the accused has taken the property out of the possession of the complainant. Complainant was the best person to prove the fact of taking out of property from the possession. In absence of any evidence the guilt of accused u/s 379 has not been proved beyond all the reasonable doubt. Merely because the property recovered from the possession of the accused( which is also not yet proved) does not implies that accused has stolen the property from the complainant. Thus, without any cogent evidence it can not be said that accused has stolen the property from the complainant. Testimony of PW1, Smt. Pushpa is limited to the extent that the FIR, had been registered regarding theft of the water motors. His testimony is silent about recovery of the case property.
12. Coming to the offense u/s 411 IPC, it is the case of the prosecution that the stolen property i.e. two water motors have been recovered from the possession of the accused. The case property was recovered and seized by the IO as per memo Ex. PW2/A. There is no independent witness to the seizure memo of the case property and the same was seized by the IO in presence of the one police official namely Ct. Deepak. In absence of any public witness it cannot be straight away said that the case property was duly recovered from the possession of the accused person. Prosecution has failed to establish as to why the public persons were not joined the investigation despite the fact that public persons were present on the spot. However, the accused in his State Vs. Parveen @ Golu e-FIR No. 0324/2021 PS Naraina Page No. 7/9 statement u/s 313 Cr.PC has categorically admitted that he was having the possession of two water motors as one person had bring the motors to him and thereafter were handed over to the police. The accused himself is not denying the fact of having possession of two water motors. Further accused has not bring any witness to the fact that some person had handed over the case property to him. Therefore, when the accused himself is not denying the fact of having possession of the case property no further discussion is required and it can be very well said that the accused was having the possession of the case property. Further the dishonest intention of the accused can be ascertained from the fact that the accused kept the possession of the case property despite the knowledge that the same does not belongs to him.
13. It is settled preposition that the prosecution has to prove the guilt of accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind.
14. In the backdrop of aforesaid discussion, facts and circumstances and material available on record, the prosecution has proved the charges u/s 411 IPC against the accused Parveen @Golu beyond reasonable doubts. Accordingly, accused Parveen @Golu is hereby convicted for the offenses u/s 411 IPC and acquitted u/s 379 IPC.
15. Let the copy of judgment be given free of cost to the convict.
State Vs. Parveen @ Golu e-FIR No. 0324/2021 PS Naraina Page No. 8/916. Let convict be heard on quantum of sentence.
Pronounced in open court today i.e., 18.10.2022. (TUSHAR GUPTA) MM08/Patiala House Court New Delhi/18.10.2022 State Vs. Parveen @ Golu e-FIR No. 0324/2021 PS Naraina Page No. 9/9