Delhi District Court
State vs . Ganesh Ps Hari Nagar Fir No. 157/17 on 20 February, 2020
State Vs. Ganesh PS Hari Nagar FIR No. 157/17
IN THE COURT OF MS. BABITA PUNIYA: M.M.-06, WEST DISTRICT,
TIS HAZARI COURT, DELHI
State vs. Ganesh
FIR No. 157/17
U/sec. 411 IPC
PS: Mundka
Date of institution of the case: 04.08.2017
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 20.02.2020
Unique I. D. No. 5054/2017
JUDGMENT
a) Date of commission of the offence : 21.04.2017
b) Name of the complainant : Akash Kumar Prasad
c) Name of the accused and his parentage : Ganesh S/o. Sh. Shiv Lal R/o. RG-247, Tanki Wali Gali, Jhuggi, Raghubir Nagar, Delhi
d) Offence complained of or proved : Sec. 411 IPC
e) Plea of the accused : Pleaded not guilty
f) Final order : Acquitted
g) Date of such order : 20.02.2020 Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 21.04.2017 at about 8.30 PM, while the complainant was talking on his mobile, two persons came on a motorcycle and snatched his mobile and ran away. On this, the present FIR was registered against unknown persons at police station Hari Nagar Under Sections 1 of 10 State Vs. Ganesh PS Hari Nagar FIR No. 157/17 356/379/34 IPC.
On 18.05.2017, accused Ganesh and Raju @ Kala were apprehended by Head Constable Manjeet and the stolen mobile was recovered from the possession of accused Ganesh. The accused persons, whilst in police custody, made disclosure statements regarding their involvement in the present case. Consequently, they were arrested by the IO in the present case and an application was moved for holding Test Identification Parade (TIP) however, the complainant could not identify them.
Vide order dated 29.07.2017, accused Raju was released by the learned predecessor Judge for want of any evidence against him.
After completion of the investigation, charge-sheet under section 411 IPC was filed before the court against accused Ganesh. Consequently, accused was summoned to face the trial. On his appearance in the Court, the copies of documents, relied upon by the prosecution, were supplied to him as per norms.
Vide order dated 23.02.2018, charge under section 411 IPC was framed against the accused Ganesh to which he pleaded not guilty and claimed trial.
To bring home the guilt of the accused, prosecution has examined only one witness namely ASI Vinod Kumar as PW1. He testified that on 17.05.2017, he apprehended the accused on the basis of secret information and on his cursory search, the stolen mobile phone was recovered.
During the course of trial, summons sent to complainant/owner of the mobile phone received back un-served. Thereafter, summons were issued to her through the DCP concerned, however, the same also received back un-served. Therefore, he was dropped from the list of witnesses by the learned predecessor Judge.
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Since the complainant was not traceable as per the report submitted on behalf of the worthy DCP, PE was closed by the order of the court and request of the learned APP for State to examine remaining prosecution witnesses was declined as no useful purpose would be served by examining the rest of the witnesses, who are formal in nature. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that "...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
As no incriminating evidence has come on record against the accused, recording of his statement under section 313 of the Code was also dispensed with.
I have heard the arguments and perused the file very carefully.
Arguments It is submitted by the learned defence counsel that the accused has been charged for the offences punishable under section 411 IPC but the prosecution has failed to examine the complainant/owner of the alleged stolen property despite availing numerous opportunities and in the absence of the testimony of complainant/owner of the property, there is nothing on record to connect the accused with the offences charged with.
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State Vs. Ganesh PS Hari Nagar FIR No. 157/17
He placed reliance on a judgment passed by a Division Bench of Hon'ble High Court of Delhi in the case of State (Delhi Adminsitration) vs. Ravinder Kumar @ Ravi 1995II AD (Delhi) 6 wherein it was held as under:-
"..Further, Major Chakarvarty alone could have testified whether scooter Ex. P-1 was the one which belonged to him and was stolen. He has not been produced and examined as a witness in the case. Thus, the best evidence for establishing identity of the recovered property and the stolen property was not produced".
He submitted that in the present case also the best evidence i.e. the complainant and the mobile phone was not produced before the court. He, therefore, requested that the accused may be acquitted of the charge leveled against him.
Per contra, it was argued by the learned APP for the State that accused was found in possession of a mobile phone and if a person is found in possession of property recently stolen, and of which he can give no reasonable account, court can presume that he is a thief.
According to the learned APP for the State recent unexplained possession alone may be sufficient to raise a permissible inference of guilt.
Issue
1. Whether the accused has committed theft of mobile phone belonging to the complainant?
2. Whether the accused received this stolen property i.e. mobile phone "knowing or having reason to believe the same to be stolen property"?
Decision and brief reasons for the same
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State Vs. Ganesh PS Hari Nagar FIR No. 157/17
It is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove his guilt beyond a reasonable doubt. Therefore, the prosecution is under legal obligation, to prove each and every ingredient of the offence beyond any reasonable doubt. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution can succeed only on discharging its burden of proving the case against the accused. Strongest of suspicion, does not constitute the proof required. Keeping in view the principle of law laid down in cateena of judgments by the superior courts, now let us see, as to whether the prosecution has been able to prove its case, against the accused, beyond a reasonable doubt.
To bring home the guilt of the accused persons, the prosecution has cited as many as fourteen witnesses in the list of witnesses annexed with the charge-sheet. Out of these fourteen witnesses, Shri Aakash Kumar was the complainant as well as the owner of the property allegedly stolen. Rest witnesses are formal in nature.
It is the case of the prosecution that Shri Aakash Kumar had lodged a complaint on 22 April 2013 regarding theft/snatching of his mobile phone.
Later on, a Mobile Phone was recovered at the instance of the accused Ganesh.
Now, I take up the issues one by one.
Issue No.1 It was argued on behalf of the State that if a person is found in possession of property recently stolen, and of which he can give no reasonable account, court can presume that he is a thief.
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State Vs. Ganesh PS Hari Nagar FIR No. 157/17
According to the learned APP for the State recent unexplained possession alone may be sufficient to raise a permissible inference of guilt.
Per contra, it was argued on behalf of the accused that presumption under the aforesaid section does not arise unless ownership of articles, theft and recent possession are established by the prosecution. He submitted that before a presumption under section 114, Illustration (a) Indian Evidence Act can arise, it must be proved that the goods found in possession of the accused have been stolen. The onus of proof regarding these aspects never shifts, it lies on the prosecution.
He submitted that since the ownership and theft of the mobile phone have not been proved by the prosecution, the presumption under illustration (a) to section 114 of the Evidence Act is not available.
Now, I will deal with the issue whether a presumption should be drawn under illustration (a) of section 114 Evidence Act?
For deciding this issue, it would be advantageous to refer section 378 and 379 IPC. Section 378 IPC defines theft. It reads as under:-
378. Theft.--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.
Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which affects the severance may be a theft.
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Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by sepa- rating it from any other thing, as well as by actually moving it.
Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.
Section 379 IPC provides for punishment for theft. It reads as under:-
379. Punishment for theft.--whoever commits theft shall be pun-
ished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Let us see if prosecution has been able to prove beyond reasonable doubt that theft was committed and the mobile phone was stolen from the possession of the complainant?
For establishing the ingredients of the offence for theft under section 379 IPC, the prosecution must prove beyond reasonable doubt that the accused had dishonestly moved the mobile phone of the complainant from his possession without his consent.
However, despite availing numerous opportunities, prosecution has neither examined the owner of the alleged stolen property nor produced the case property during the course of investigation or trial. Thus, nothing has come on record to prove that the accused had dishonestly taken away the mobile phone out of the possession of complainant without his consent.
As far as presumption under section 114 of the Act is concerned, I am of the 7 of 10 State Vs. Ganesh PS Hari Nagar FIR No. 157/17 considered opinion that the presumption permitted by section 114 of the Act does not arise until the prosecution has established three facts; namely, the ownership of the articles in question, the theft of those articles, and their recent possession by the accused.
However, in the case in hand, the prosecution has miserably failed to prove that the mobile phone was missing from the custody of complainant. Thus, neither the ownership of the mobile phone nor its theft was established.
Issue no. 2 Before I advert to rival submissions made by the learned APP for the State and the learned defence counsel regarding the second issue, I again propose to refer to certain relevant provisions of IPC.
Section 411 IPC reads as under:
Sec.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."
The term "stolen property" is defined in section 410 IPC. It reads as under:-
Sec.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 1[***] 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 3[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.
8 of 10 State Vs. Ganesh PS Hari Nagar FIR No. 157/17 In every case under section 411 IPC two facts viz. that a theft was committed and certain articles were stolen, and that the stolen articles were recovered from the possession of the accused have to be established by direct evidence. If it is proved that a theft was committed and that soon after it was committed, the stolen property was recovered from the possession of the accused, presumption can be raised under section 114, Illustration (a) of the Indian Evidence Act that the accused is either the thief or the receiver of the property knowing it to be stolen.
Illustration (a) of section 114, Evidence Act runs as follows:
The Court may presume:
(a) that a man who is in possession of stolen goods, soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
Thus, in order to make out an offence under section 411 IPC, the prosecution is required to establish that the property in question is a stolen property.
It is elementary that there can be no offence of dishonestly receiving stolen property unless the property which is alleged to be the subject of such receiving, answers the description of "stolen property" defined under section 410 IPC.
To prove its case, prosecution has cited as many as fourteen witnesses. However, the first informant/owner of the property is reportedly not traceable as per the report submitted by the office of worthy DCP. Therefore, the recovery of the stolen article alleged to have been made from the possession of the accused does not connect him with the crime as no evidence is adduced by the prosecution to show that the mobile phone had, in fact, been stolen from the possession of the complainant or that the same belonged to him. The factum of theft could have been proved only by the complainant, who has not been examined in Court by the prosecution despite giving numerous opportunities. On every occasion, summons received back un-served. Even 9 of 10 State Vs. Ganesh PS Hari Nagar FIR No. 157/17 the summons upon him could not be served through the office of the concerned DCP. Even the case property i.e. the mobile phone was not produced before the court at any point of time. Therefore, I am of the considered opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt.
Result The theft of the mobile phone itself has not been proved due to non-examination of complainant. Obviously in such a scenario the mobile phone allegedly recovered from the possession of accused Ganesh is not proved to be a stolen property as defined under section 410 IPC. Until and unless the case property is proved to be stolen property which is a basic requirement, offence punishable under section 411 IPC is not made out.
Therefore, keeping in view the overall conspectus of the case, I am of the considered view that the prosecution has miserably failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused. Therefore, I give benefit of doubt to the accused and accordingly, accused GANESH is acquitted of the charge levelled against him.
Digitally
File be consigned to record room after due compliance. signed by
BABITA
BABITA PUNIYA
PUNIYA Date:
2020.02.20
Announced in open 16:45:01
+0530
Court on 20th day of February, 2020
(Babita Puniya)
MM-06, West District,
Tis Hazari Courts/ Delhi/20.02.2020
This judgment contains 10 pages and each page bears my signature.
(Babita Puniya)
MM-06, West District,
Tis Hazari Courts/ Delhi/20.02.2020
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State Vs. Ganesh PS Hari Nagar FIR No. 157/17
State vs. Ganesh
FIR No. 157/2017
PS: Hari Nagar
20.02.2020
Present: Learned APP for the State.
Accused on bail with counsel.
PW1/ASI Vinod Kumar has been examined.
No other PW is present today.
File perused. Perusal of the file reveals that PW/complainant has already been dropped from the list of witnesses by the learned predecessor Judge vide order dated 28.06.2019.
At this stage, it is submitted by the learned counsel for the accused that continuance of the prosecution as against him would not serve any useful purpose and would be a sheer waste of time as the complainant has already been dropped from the list of witnesses by the learned predecessor Judge vide order dated 28.06.2019. He, therefore, requested that PE may be closed and the accused may be acquitted of the charge leveled against him as nothing incriminating has come on record against him.
Per contra, it is submitted by the learned APP for the State that opportunity may be given to the State to examine all the witnesses.
I have heard the learned APP for the State and the learned defence counsel. I have also perused the file very carefully.
The prosecution has cited as many as fourteen (14) witnesses in the list of witnesses annexed with the charge-sheet. Out of these fourteen witnesses, Shri Aakash was the complainant as well as the owner of the property allegedly stolen. Rest witnesses are formal in nature. As per the reports furnished by the DCP, the complainant is not traceable. Therefore, I am of the considered opinion that no useful purpose would be 11 of 10 State Vs. Ganesh PS Hari Nagar FIR No. 157/17 served by examining the rest of the witnesses, who are formal in nature. No prejudice will be caused to the prosecution if the evidence is closed as there are no chances of successful prosecution in view of paucity of evidence to prove the charges. Therefore, in view of the above, PE stands closed and request of the learned APP for the State to examine remaining witnesses is declined. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held as under:
"...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
As no incriminating evidence has come on record against the accused, recording of his statement under section 313 of the Code is also dispensed with.
Final arguments heard. File perused.
Vide separate judgment of even date, accused GANESH is acquitted of the charge leveled against him.
At request, his earlier bail bond is treated as one under section 437-A of the Code. However, he is directed to affix his latest passport size photograph on the same. Photograph affixed.
File be consigned to record room after due compliance.
(Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/20.02.2020 12 of 10