Delhi District Court
State vs Samir on 21 August, 2024
IN THE COURT OF MS. PADMA LADOL
JUDICIAL MAGISTRATE FIRST CLASS-04,
NEW DELHI, PATIALA HOUSE COURTS, NEW DELHI
FIR No. 01/2020
PS Supreme Court Metro Station
U/S : 379/511 IPC, 1860
State V/s Samir
Cr.C No. 3358/2020
CNR No. DLND020104352020
Date of Institution 22.08.2020
Complainant Amrik Singh
S/o Sh. Surjeet Singh
R/o B-39/40, Chandra Vihar, New
Delhi
Name, parentage and address of the Samir
accused S/o Sh. Abdul Jalil
R/o H. No. 632, Gali no. 12, Prem
Nagar, IInd Nangloi, Delhi
Offence complained off Section 379/511 Indian Penal Code
Plea of Accused Not Guilty
Final Order Acquitted
Date of Judgment 21.08.2024
-------------------------------------------------------------------------------
Argued by: Ms. Shruti Singhal, Ld. APP for the State.
Sh. Sandeep Verma, Ld. LAC for accused.
Digitally
signed by
PADMA
PADMA LANDOL
FIR No.01/2020 LANDOL Date:
2024.08.21
State Vs. Samir 04:12:28 Page 1 of 12
+0300
JUDGMENT
1. The SHO, Police Station Supreme Court Metro Station has presented this charge-sheet against above named accused for initiation of trial U/s. 379/511 Indian Penal Code, 1860 (for short "IPC").
FACTUAL MATRIX
2. In a nutshell, the case of the prosecution is that on 06.01.2020, the complainant Amrik Singh had de boarded at Mandi House Metro Station and was coming up on the escalators when an unknown person standing behind him attempted to commit theft by opening the zip of the complainant's bag which he was carrying on his back. The unknown person revealed his name as Samir S/o Sh. Abdul Jalil R/o H. No. 632, Gali no. 12 Prem Nagar, 2 nd Nangloi Delhi. The complainant along with a co-passenger namely Netrapal Singh apprehended the accused and produced at Police Station. During further investigation, witnesses were examined and their statement u/s. 161 CrPC were recorded. Thereafter, on completion of investigation, final report was presented for trial against accused Samir.
COGNIZANCE, COMPLIANCE OF SECTION 207 CRPC AND PLEA OF ACCUSED
3. After presentation of charge-sheet, accused were summoned by the Ld. Predecessor of this Court. Copy of the charge- sheet was supplied to accused u/s. 207 of Code of Criminal Procedure, 1973 (for short "CrPC"). Thereafter, charge u/s.
Digitally
FIR No.01/2020 signed by
PADMA
State Vs. Samir PADMA LANDOL Page 2 of 12
LANDOL Date:
2024.08.21
04:12:41
+0300
379/511 IPC was framed against the accused on 21.02.2024 to which he pleaded not guilty and opted to contest.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution examined three witnesses and relied upon following evidence -
Witness exhibiting Identification Description
PW-1 Sh. Amrik Singh Ex. PW-1/A Written complaint/tehrir
PW-2 Sh. Netrapal Ex. PW-2/A Statement u/s. 161
Singh Cr.PC
PW-3 ASI Uday Pal Ex. PW-3/A Rukka
Ex. PW-3/B Disclosure Statement of
Accused
Admitted Document Ex. A1 FIR along with
certificate u/s. 65-B
IEA
5. PW-1 Sh. Amrik Singh, deposed that he does not remember the exact date, however, it is the incident of two years back. He further deposed that on that day at about 10:30 to 11:00 A.M when he was going from Mandi House Metro Station to Laxmi Nagar, while he was on escalator of Mandi House he was told by someone that one person had tried to open the zip of his bag. He has further deposed that he did not rely on his statement and the accused was handed over to CRPF. That he does not know anything else. Then, Ld. APP for the State sought permission of the court to cross examine the witness as he is stated to be resiling from his statement as he is unable to disclose the complete facts of the present FIR No.01/2020 Digitally State Vs. Samir signed by PADMA Page 3 of 12 PADMA LANDOL LANDOL Date:
2024.08.21 04:12:48 +0300 case. It was allowed. Then in the cross-examination by Ld. APP, PW-1 deposed that he cannot tell if the date of incident was 06.01.2020. He denied the suggestion that when the accused was handed over to CRPF official, his name was disclosed and he came to know that his name was Sameer. However, witness admitted that one co-passenger namely Netra Pal Singh who was travelling at the time of incident had told him about Sameer that he had attempted to commit theft from his bag by opening the zip of his bag. PW-1 also admitted that accused was caught by Netrapal Singh and was taken to PS. That his statement was recorded by the police officials. The same is at Ex-PW1/A bearing his signatures at point A. Upon putting a specific question as to whether he can identify the accused, PW-1 categorically deposed that he cannot. PW-1 failed to identify the accused in Court despite being pointed out. Witness further denied the suggestion that he is purposely not disclosing the facts against the accused as he has been won over by the accused. In his cross-examination by Ld. LAC for accused, PW-1 admitted that he cannot tell if his statement was recorded by police officials or not. That he was never called to PS with regard to the investigation of the present case. That he was never called by the police on the spot to join the investigation of the present case. PW-1 admitted that no statement of any other witness was recorded in his presence by the police officials. He further admitted that no CCTV footage was preserved by the police officials in his presence.
Digitally
signed by
PADMA
PADMA LANDOL
FIR No.01/2020 LANDOL Date:
2024.08.21
State Vs. Samir 04:12:54 Page 4 of 12
+0300
6. PW-2: Sh. Netrapal Singh deposed that on 06.01.2020 at about 01:30 P.M while he was at Mandi House Metro Station escalator he had seen that one person was trying to open bag zip of one co-passenger and he informed to that co-passenger about the same. Then they caught the said boy, who revealed his name as Sameer and the name of co-
passenger was Amrik Singh. Thereafter, they handed over the said boy to the CRPF official, who was deputed at metro station. That the said boy tried to commit theft by opening the zip of bag of his co-passenger Amrik Singh. PW-2 correctly identified the accused in Court. PW-2 further deposed that he gave his statement to the police officials at PS Pragati Maidan. The same is at Ex-PW2/A bearing his name at point A. In his cross-examination by Ld. LAC for accused, PW-2 deposed that the incident took place at about 01:00 P.M. He gave his statement Ex-PW2/A at PS Pragati Maidan. Witness admitted that the statement only bears his name and not his signatures and that according to the statement he was climbing the stairs and not getting down. He further admitted that the spot of occurrence is a public place and public persons were present at that time. PW-2 also deposed that despite being the availability no public person was examined by the police official. He denied the suggestion that he is deposing falsely as accused has not committed the above mentioned offence and that he has wrongly identified the accused at the instructions of the IO.
Digitally
signed by
FIR No.01/2020 PADMA
PADMA LANDOL
State Vs. Samir LANDOL Date: Page 5 of 12
2024.08.21
04:12:59
+0300
7. PW-3: ASI Uday Pal deposed that on 06.01.2020 he was posted at PS Pragati Maidan as ASI. On that day at about 01:30 PM, the complainant along with one person and accused came to PS and they both informed him that while the complainant and other person were climbing the stairs of Mandi House, the accused opened the zip of the bag of the complainant with intention to commit theft from the said bag. Thereafter, the statement of the complainant was recorded. On his statement, the rukka was prepared, which is at Ex-PW3/A bearing his signatures at point A. FIR was then registered. After the registration of FIR, the disclosure statement of the accused recorded which is at Ex-PW3/B bearing his signatures at point A. He further deposed that accused was bound down by issuing notice U/s 41A Cr.PC. The chargesheet was prepared and filed before the court. PW-3 correctly identified the accused in Court. In his cross-examination by Ld. LAC for accused, PW-3 admitted that the investigation has been taken place while sitting at PS. He also admitted that he never visited the spot of occurrence and that no site plan was prepared in this regard. Witness further conceded that accused was not arrested in the present case and that no CCTV footage was obtained from Metro Station to corroborate the fact that accused has attempted to commit theft by opening the zip of the bag of complainant. PW-3 further admitted that no public person was examined and neither they were cited as witness at the time of recording of the disclosure statement.
Digitally
FIR No.01/2020 signed by
PADMA
State Vs. Samir PADMA LANDOL Page 6 of 12
LANDOL Date:
2024.08.21
04:13:05
+0300
However, he denied the suggestion that accused is falsely implicated in the present matter and that he is deposing falsely.
8. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded on 28.05.2024 and he was put all the incriminating circumstances, appearing against him in the prosecution evidence. The accused pleaded innocent, however, chose not to lead DE.
CONTENTIONS OF THE PARTIES
9. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by examining all the material witnesses who have supported the prosecution version in material aspects. Prosecution has relied on the testimony of complainant/victim as well as one eye-witness who has successfully stood the test of cross-examination. All the PWs have successfully proved the ingredients of the provisions and to show that there is nothing to suggest otherwise in the present case than the commission of the offence u/s. 379/511 IPC by the accused. Accordingly, conviction of the accused was prayed.
10. Per contra, Ld. Legal Aid Counsel for the accused argued that the complainant has failed to identify the accused and he is not even an eye-witness. It is also contended that Digitally FIR No.01/2020 signed by PADMA State Vs. Samir PADMA LANDOL Page 7 of 12 LANDOL Date:
2024.08.21 04:13:12 +0300 though the prosecution has examined one eye-witness/PW-2 to the alleged offence, however, he has categorically admitted that the statement at Ex. PW-2/A does not bear his signature. It is also argued that PW-1 has narrated the time of incident as 10.30 to 11 AM whereas, PW-2 has narrated the same as 01.30 PM, hence there is a contradiction in both the testimonies. Ld. Counsel has further argued that the IO has not prepared the site plan or procured CCTV footage and admittedly he never visited the spot of occurrence. It is lastly argued that prosecution has failed to prove its case beyond all reasonable shadow of doubts. Hence, case is liable to be dismissed and the accused deserves to be acquitted of the present offence.
POINTS OF DETERMINATION
11. After giving anxious consideration to the rival contentions and perusing the case file meticulously, this court is of the opinion that at the heart of the matter is a determination as to whether the accused Samir has attempted to commit theft by opening the bag of complainant on 06.01.2020 at Mandi House Metro station?
FINDINGS AND ANALYSIS:
12. At the outset, it would be beneficial to peruse Sections 378 of IPC which defines 'Theft'. The provision read as follows:
Further Sec. 378 IPC defines "Theft" as:
Digitally signed by FIR No.01/2020 PADMA PADMA LANDOL State Vs. Samir LANDOL Date: Page 8 of 12 2024.08.21 04:13:19 +0300 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. Hence, in order to attract the wrath of provisions u/s. 379 IPC, the following ingredients are essential:
i) The property is movable in nature;
ii) The property is taken out from the possession of a person without his consent;
iii) Such taking of property must be with a dishonest intention.
13. At the onset, it is pertinent to note that complainant/victim is not the eye witness to the alleged offence of attempt to theft. He has in fact given a hearsay evidence that PW-2 had told him that accused was trying to commit theft from his bag. He has also not identified the accused in Court even after being pointed out. Hence, he has not supported the case of prosecution on any material aspect.
14. The ocular testimony in support of prosecution is by way of PW-2/Netrapal Singh who was a co-passenger at the spot of incident. PW-2 has categorically deposed that on the date of incident when he was on the escalator at Mandi House Metro Station, he had seen one person on the escalator trying to open zip of a bag of one co-passenger and then he informed about the same to the co-passenger. He has further deposed that the person revealed his name as Samir and that Digitally signed by FIR No.01/2020 PADMA PADMA LANDOL State Vs. Samir LANDOL Date: Page 9 of 12 2024.08.21 04:13:26 +0300 of co-passenger as Amrik Singh. Thereafter they handed over the accused to a CRPF official deputed at metro station.
15. It is trite law as also held in Bhimappa Chandappa v. State of Karnataka (2006) 11 SCC 323 that testimony of a solitary witness can be made the basis of conviction provided the same is of sterling quality. Also, the pre-requisite is that the credibility of such a witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the Court as natural, wholly truthful and so convincing that the Court has no hesitation in recording a conviction solely on his uncorroborated testimony. In the case in hand, as already noted above the complainant/victim has not supported the prosecution case on material aspects and there is no other eye-witness to the incident in question. Now the question for determination is whether the uncorroborated testimony of PW-2/sole eye-witness is of a sterling quality on whose basis the Court can convict the accused without a speck of hesitation.
16. In order to decide the said question, it is pertinent to discuss the other attending circumstances of the case. It is pertinent to note that the manner of investigation carried out by the IO is highly objectionable and is unacceptable by any standards. This Court is cognizant of the settled law that mere defective investigation is not a sole ground for FIR No.01/2020 Digitally State Vs. Samir signed by PADMA Page 10 of 12 PADMA LANDOL LANDOL Date:
2024.08.21 04:13:44 +0300 acquittal of accused provided rest of the evidence on record are clinching and of sterling quality. In the case in hand, PW-3/IO has admittedly never visited the spot of occurrence. He has further admitted in his cross- examination that investigation was carried out by sitting in the police station. Apparently, he was under a delusion that work assigned to him in this case was solely an arm-chair based writing work. He has not even prepared the site plan or procured the bag of complainant which is an important piece of evidence. Complainant/victim has also categorically deposed that he was never called by IO either at the spot or Police Station for the purpose of investigation. Hence, it is clear that IO has prepared the chargesheet in a perfunctory manner without involving the complainant at all. There is nothing on record except for the deposition of PW-2. Even the complainant/victim has denied to identify the accused in Court despite being pointed out. Complainant was not even sure if his statement was recorded by IO as he has categorically admitted the same in his cross- examination. He has also admitted in his cross-examination that IO did not record statement of any other witness in his presence. This raises serious doubts on the statement of PW-
2. IO has also not procured any CCTV footage despite their availability at Metro Stations and has also not examined any public witness despite their availability. The entire process of investigation raises serious doubts so much so that it goes to the roots of the case of prosecution and the benefit of the same, has to be given to the accused. The testimony of PW-
Digitally FIR No.01/2020 signed by PADMA State Vs. Samir PADMA LANDOL Page 11 of 12 LANDOL Date:
2024.08.21 04:13:50 +0300 2 is not corroborated by a single evidence, whatsoever.
Furthermore, there is not an iota of evidence which points towards the dishonest intention of accused. Hence, considering the overall attending circumstances, the benefit of doubt has to be given to accused.
17. Considering the present circumstances, the inevitable conclusion is that the prosecution has failed to bring home the charge u/s. 379/511 IPC against the accused. In such circumstances, the benefit of doubt undoubtedly has to go to the accused. Hence, prosecution has failed to prove its case beyond reasonable doubt.
FINAL ORDER
18. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to proved its case beyond reasonable doubt. Accordingly, accused Samir is hereby acquitted of offence punishable u/s. 379/511 IPC. Digitally signed PADMA by PADMA LANDOL LANDOL Date: 2024.08.21 04:12:09 +0300 Announced in the Open Court (PADMA LADOL) on this 21st August, 2024 JMFC-04: New Delhi: PHC Certified that this judgment contains 12 pages and each page bears Digitally signed by PADMA my signatures. PADMA LANDOL LANDOL Date:
2024.08.21 04:12:17 +0300 (PADMA LADOL) JMFC-04: New Delhi: PHC FIR No.01/2020 State Vs. Samir Page 12 of 12