Delhi District Court
State vs . Ajay Kumar on 28 June, 2018
IN THE COURT OF SH. AMIT ARORA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 333/12
PS : New Ashok Nagar
U/s : 380/411/34 IPC
STATE VS. AJAY KUMAR
JUDGMENT
A Number of the case 6389/16 B Name of the complainant Sh. Sudhir Mishra C Name of the accused & Ajay Kumar s/o Sh. Kishan Lal R/o 50B, his parentage and Pocket B-5, Janta Flats, Mayur Vihar address Phase-3, Delhi.
D Offence Complained of U/s 380/411//34 IPC E Date of commission of 20.12.2012 offence.
F Date of Institution 02.07.2013
G Offence Charged U/s 411 IPC
H Plea of the accused Pleaded not guilty
I Order Reserved on 28.06.2018
J Date of Pronouncement 28.06.2018
K Final Order Acquitted of offence u/s 411 IPC
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The story of the prosecution is as under:
2 On 19.10.2012 complainant Sudhir Mishra visited PS New Ashok State Vs. Ajay Kumar FIR No. 333/12 Page No. 1/5 Nagar and reported complaint of theft of various articles which were stolen from his house on the intervening night of 18.10.2012 / 19.10.2012. as per his version, at around 3 am in the night, he heard some noise coming from his home. He noticed that some person was stealing some articles from his room. On finding that the complainant has woken up the said person ran away. Complainant found that two rings, three mobile phones i.e. make Samsung Galaxy A Plus and two Micromax mobile phones were also missing. On the basis of this complaint, FIR was registered u/s 380 IPC. Investigation was made however, no clue regarding the culprits could be made and accordingly, on 06.12.2012 an untraced report was prepared. However, later on 20.12.2012 HC Sandeep apprehended accused Ajay Kumar on the basis of mobile tracing and one mobile phone make Samsung was recovered from him which accused was using. Investigation was reopened. SI Kuldeep Singh interrogated the accuse who informed that he has purchased the mobile phone from one Rinku at throwaway prices.
3 Later on 31.01.2013 on the basis of secret information, accused Rinku was arrested who admitted his involvement in the theft and further confirm that he has sold the mobile to Ajay Kumar. Efforts were made to trace out the remaining case property however, the other co- accused Banti could not be arrested nor the case property could be recovered.
4 On completion of investigation challan u/s 380/411/34 IPC was filed against the accused persons. Both the accused were summoned State Vs. Ajay Kumar FIR No. 333/12 Page No. 2/5 however, before the trial could proceed, accused Rinku got expired and vide order dt.29.09.2013 proceedings against him were dropped as abated.
5 On the basis of the charge-sheet and after compliance of Sec. 207 Cr.P.C. a charge was framed against the accused Ajay Kumar for the offence punishable under section 411 IPC and read out to him to which he pleaded not guilty and claimed trial.
6 To bring home the guilt against the accused, prosecution in the first place was required to examine the complainant Sudhir Mishra as he was the owner of the mobile phone which was allegedly recovered from accused Ajay. It is pertinent to note here that matter is at the stage of prosecution evidence since 03.04.2014. PW Sudhir Mishra was summoned however, a report was received that he was gone to Australia. Again the witness was summoned through DCP however, a similar report was received and thus he was dropped from the list of witness on 23.12.2014. Thereafter, on 18.07.2017 Ld. APP again sought the opportunity to summon the witness however, despite repeated attemps he could not be served. Time and again requests were received stating that the witness is in Australia. The brother of the complainant was also summoned however, he had also not appeared. Thus, despite sufficient number of opportunity the prosecution has failed to produce the witness. A question arises as to whether charges can be proved against an accused u/s 411 IPC in the absence/non-examination of complainant.
State Vs. Ajay Kumar FIR No. 333/12 Page No. 3/57 In the present case accused has been charge for the offence u/s 411 IPC for being in possession of a stolen mobile belonging to complainant.
8 As per section 411 IPC, a person is liable for punishment under the said section if following conditions are satisfied:
(i) he dishonestly
(ii) a) Receives or b) Retains
(iii) Any stolen property
(iv) a) knowing or b) having reason to believe it to be a stolen property.
9 To prove the offence u/s 411 IPC, it has to be proved firstly, that an article was recovered from the accused and secondly, the article was in fact stolen and the accused had dishonestly retained it. Thus, it has to be proved that the article is a stolen property. It is the complainant only who could have proved regarding the incident of theft of the mobile phone in question. In his absence the prosecution has failed to prove at the first instance that the mobile phone recovered from the accused (though not so proved) was a stolen property. Even if for the sake of argument by examining the remaining prosecution witnesses, the prosecution is able to prove the recovery of the mobile phone from the possession of the accused, there is no presumption in law that the said mobile phone was stolen. At the first instance prosecution was required to prove that the mobile phone recovered from the accused was a stolen property and it is only the complainant being the owner of the mobile phone who could have deposed regarding the same. Thus, State Vs. Ajay Kumar FIR No. 333/12 Page No. 4/5 this itself creates a serious dent in the prosecution case.
10 The non examination of the complainant is fatal to the case of prosecution and even by examination of remaining witnesses prosecution will be unable to prove the offence u/s 411 IPC against the accused. Hence, recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.
11 In the opinion of the court, this is a fit case to close PE and acquit the accused person so as to protect their right of speedy justice as incorporated in Article 21 of Indian Constitution. Accordingly, PE stands closed, SA dispensed with and accused is acquitted of offence u/s 411 IPC.
12 As per section 437-A of the Cr. P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, accused person are directed to file fresh personal bond and the surety bond, which shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 28.06.2018 (AMIT ARORA) ACMM (EAST)/KKD/28.06.2018 Certified that this judgment contains 5 pages and each page AMIT Digitally signed by AMIT ARORA bears my signatures. DN: c=IN, o=OFFICE OF THE DISTRICT AND SESSIONS JUDGE....., 2.5.4.20=5d03bd2902bae524e472 081070b034ee609e5ec0ad1936d9 ARORA 3a0429d51816814c, ou=HIGH COURT,CID - 6309251, (AMIT ARORA) postalCode=110092, st=Delhi, cn=AMIT ARORA Date: 2018.06.28 17:08:40 +05'30' ACMM (EAST)/KKD/28.06.2018 State Vs. Ajay Kumar FIR No. 333/12 Page No. 5/5