Delhi District Court
3.Title State vs . Waseem on 12 May, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1. E-FIR No. 000299/21
2.Unique Case no. 1024/21
3.Title State Vs. Waseem
3(A).Name of complainant Sh. Akash
S/o Sh. Moti Ram
R/o H. No. F-152, Gali no. 10, Khajuri
Khas, Delhi
3(B).Name of accused Sh. Waseem
S/o Salim
R/o H.No. B 391, Gali no. 16, Shri Ram
Colony, Rajiv Vihar Khajuri khas
4.Date of institution of chargesheet 19.03.2021
5.Date of Reserving judgment 12.05.2023
6.Date of pronouncement 12.05.2023
7.Date of commission of offence 28.02.2021
8.Offence complained of U/s 379 IPC
9.Offence charged with U/s 379/411 IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Accused Waseem is acquitted U/s 379/411
IPC
12. Date of receiving of judicial file 19.03.2021
in this court
Argued by :- 1. Ms. Deepika Singh, Ld. APP for the State.
2. Sh. Himalaya Gupta, Remand Advocate for accused.
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, namely, Akash stating that on 28.02.2021 at about 07.30 p.m. his mobile phone Samsung A 10 (Blue Colour) IMEI No. 358787104932926, 358787104932924 was removed from his left pocket. On the basis of said complaint, E FIR bearing no.000299/21 , PS Bhajanpura was registered in the present matter. After completion of investigation, State Vs. Waseem Page 1 of 3 FIR No. : 000299/21 chargesheet was filed u/s 379/411 IPC against the accused as the recovery of mobile was stated to be effected from the accused on 01.03.2021.
2. On 19.03.2021, cognizance was taken and accused Waseem was summoned. Thereafter, on 22.03.2022, charge was framed against the accused for the offence punishable u/s 379/411 IPC to which he pleaded not guilty and claimed trial.
3. Prosecution had named 7 witnesses in total. Complainant Akash was examined as PW1. However, the complainant/PW 1 Akash remained untraceable and State was unable to secure his presence. In the absence of the testimony of the complainant, there is nothing incriminating on record against the accused persons. Without the testimony of the complainant, the State fails to establish the identity of accused as well as the incident dt. 28.02.2021. Original complaint remains unproved. In the absence of original complaint, it cannot be held that the mobile phone stated to be recovered from the accused is stolen property. The remaining prosecution witnesses are witnesses of formal nature who mainly prove the registration of FIR, apprehension of the accused persons, investigation conducted and filing of the charge sheet. None of them establish the identity of the accused. Testimonies of these witnesses is not going to change the result of the case. Thus there are important missing links in the chain of circumstances which create holes in the prosecution story. Further, the recovery has not been made in pursuance of disclosure statement. Rather, the recovery was already effected when the disclosure statement of the accused was recorded. Hence, the disclosure statement is hit by Section 25 of Indian Evidence Act. State also cannot rely upon Section 27 of the Indian Evidence Act since the recovery was not made in pursuance of the disclosure statement. Further, no public witness of the recovery has been cited. Hence, no purpose would be served by examining the remaining witnesses as the material circumstances shall remain unproved in the absence of testimony of complainant.
4. The Hon'ble Supreme Court in Satish Mehra v. Delhi Administration and others 1996 JCC 507 had held that "in a case where, there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a State Vs. Waseem Page 2 of 3 FIR No. : 000299/21 future date".
5. Considering the same, the prosecution evidence was closed vide separate order of even date. The recording of statement of the accused under Sec. 313 CrPC was dispensed with for want of incriminating evidence against the accused.
6. It is the cardinal principle of criminal law that the accused persons are presumed to be innocent until proved guilty. It is further rule of Evidence in Criminal law that the prosecution has to prove its case beyond reasonable doubt. In the present case, the story of the prosecution cannot be proved beyond reasonable doubt, in the absence of testimony of complainant.
7. Hence, in view of the above, accused Waseem S/o Salim is hereby acquitted for the offences punishable U/s 379/411 IPC as the State fails to establish that identity of the accused as well as the original incident since State failed to secure the presence of complainant. His surety is hereby discharged. Documents, if any, be returned after cancellation of endorsement. Superdarinama, if any, stands cancelled. File be consigned to the Record Room as per rules. RUPINDER Digitally signed by RUPINDER SINGH SINGH DHIMAN Date: 2023.05.12 DHIMAN 15:14:13 +0530 Announced in the (RUPINDER SINGH DHIMAN) Open Court on 12.05.2023 Metropolitan Magistrate-01 KKD Courts, Delhi It is certified that this judgment contains three (3) pages and each page bears my signature. Digitally signed RUPINDER by RUPINDER SINGH SINGH DHIMAN Date: 2023.05.12 DHIMAN 15:14:20 +0530 (RUPINDER SINGH DHIMAN) Metropolitan Magistrate-01 NE/KKD Courts, Delhi 12.05.2023 State Vs. Waseem Page 3 of 3 FIR No. : 000299/21