Delhi District Court
State vs . Vishal Singh on 15 May, 2019
IN THE COURT OF VIJETA SINGH RAWAT,
METROPOLITAN MAGISTRATE - 06 (SOUTH),
SAKET COURTS, NEW DELHI
FIR No. 257/11
PS - Hauz Khas
U/s - 356/379/411 IPC
State Vs. Vishal Singh
JUDGMENT
Part A - The lis at a glance A. Serial No. of the Case: 2035793/16 B. Date of Commission: 26.07.2011 C. Name of the Complainant: Smt. Moushmee Jha W/o. Sh. Arvind Kha, R/o. A-111, Belvedere Towers DLF Phase-2, Gurgaon-122002, Haryana.
D. Name of Accused: Vishal Singh S/o. Anand Singh, R/o.
D-129, Sector-4, Pushp Vihar, New Delhi-110016.
Permanent Address: - Village
Katurdhaar, PS Kotdwar, Paudhi
Garhwal, U.K.
E. Offence complained of: 356/379/411 IPC
F. Plea of the accused : Pleaded not guilty.
G. Final Order: Acquitted
H. Date of such order: 15.05.2019
I. Date of Institution of Case: 12.09.2011
J. Judgment reserved on: 15.05.2019
Part B - A brief statement of reasons for the decision (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.) FIR No. :257/11 State Vs. Vishal Singh 1/7
1. It is the case of the prosecution that on 26.07.2011 at about 12.10 P.M. at Hauz Khas Market Road, Near NIFT, falling within the jurisdiction of PS Hauz Khas, accused Vishal (hereinafter, referred to as 'the accused') with dishonest intention snatched the gold chain of the complainant Mausamee Jha (hereinafter, referred to as 'the complainant'), without her consent and thus, committed offences punishable under Section 379/356 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). Further on 02.08.2011, across the railway gate, New Palam Vihar, Gurgaon, the accused got recovered the aforesaid gold chain which was buried in the ground and which he had retained dishonestly knowing or having reason to believe that it was a stolen property and thus committed offence punishable under Section 411 IPC.
2. On completion of investigation, charge sheet was filed on 12.09.2011 against the accused for offences punishable u/s 356/379 of IPC. Ld. Predecessor of this Court, took cognizance of the aforesaid offences. Copies of charge sheet and documents were furnished to the accused on 24.02.2012.
3. Since Ld. Predecessor of this Court, was of the prima facie opinion that offence punishable u/s 356/379 IPC were made out, charge under the aforesaid Sections was framed on 12.04.2012 against the accused to which he pleaded not guilty and claimed trial. Subsequently, vide order dated 09.05.2014, the aforesaid charge was amended and Section 411 IPC was added to it.
PROSEUCTION EVIDENCE
4. Thereafter, prosecution examined the following witnesses and in support of its case:
(1) PW1 Sh. Moushmee Jha /the complainant who interalia stated that on 26.07.2011 at about 12.00 (Noon), she had parked her vehicle HR -26A-1280 and was coming from the side of NIFT, Hauz Khas Market after picking some food items; that she was carrying food in one hand and mobile in the other; that as she reached near Dr. Dang's Clinic, two people came on a motorcycle bearing No. 3962 FIR No. :257/11 State Vs. Vishal Singh 2/7 and slowed their motorcycle pointing towards her; that the pillion rider quickly leaned forward and snatched her chain; that in the process the chain broke and she saw the pillion rider collect it in his hand; that she saw the pillion rider as even though he was wearing a helmet, his face was exposed as it was not covered; that thereafter, they fled;
that as she was scared and traumatized, she went home and after counseling of her family members filed her complaint Ex.PW-1/A on the next day; she rlied upon site plan Ex.PW-1/B and identified the chain as Ex.P-1. She also identified the motorcylce as Ex.P-2. She was duly cross-examined.
(2) PW2 Ct. Kuldeep, who stated that accused got the gold chain recovered near a railway Fatak, New Palam Vihar, Gurgaon on 02.08.2011 and the same was seized vide Ex.PW-2/A. He also stated that it was sealed in a match box with the seal of 'NC'. He was cross- examined by the State during which he also admitted to the execution of following documents: -
i) Recovery memo : Ex.PW-2/A
ii) Personal Search Memo of the accused : Ex.PW-2/C
He was duly cross-examined by the defence.
(3) PW3 Sh. Amir Hasan/registered owner deposed that he got
his motorcycle bearing registration NO. DL-3SBX-3962 released on superdari. He correctly identified his vehicle and the same was proved as Ex.P-1.
(4) PW-4 Retd. SI Nihal Chand/Investigating Officer, who proved various stages of investigation carried out by him and he tendered the following documents in evidence: -
a) Endorsement on complaint : Ex.PW-4/A
b) Spot Map : Ex.PW-4/B
FIR No. :257/11 State Vs. Vishal Singh 3/7
c) Disclosure statement of accused Vishal : Ex.PW-4/D
d) Arrest Memo of accused Vishal : Ex.PW-4/F
e) Identification proceedings of
the case property. : Ex.PW-4/G
f) Seizure Memo of motorcycle
bearing No. DL-3S-BX-3962 : Ex.PW-4/H
He was duly cross examined.
(5) PW5 Ct. Surender whose testimony is similar to that of PW-2. He was duly cross-examined.
5. Vide a separate statement under Section 294 Cr.P.C., accused has admitted the genuineness of recording of FIR and TIP proceedings conducted by Ld. MMs Ms. Charu Gupta and Sh. Sanjeev Kumar and the same were exhibited as Ex.X-1 to Ex. X-3 respectively.
6. Prosecution evidence was closed vide order dated 31.08.2018
7. Statement of accused U/s. 313 read with Section 281 Cr.P.C. was recorded by this Court on 05.02.2019. Accused did not wish to lead defence evidence.
8. Final arguments were heard today. Material on record has been considered.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. The essential ingredients required to be proved for conviction u/s 356 IPC are as under:
a. That the accused assaulted or used criminal force to any person b. In attempting to commit theft.
c. or any property which that person is wearing or carrying.
FIR No. :257/11 State Vs. Vishal Singh 4/7
10. For conviction of accused u/s 379 of the Code, the prosecution is required to establish beyond reasonable doubts, the following ingredients:
a. Dishonest intention to take property;
b. the property must be moveable;
c. it should be taken out of possession of another
person;
d. it should be taken out without consent of that
person; and
e. there must be some moving of the property in
order to accomplish the taking of it.
11. The essential ingredients required to be proved for conviction u/s 411 IPC are as under:
a. That accused dishonestly received or retained any stolen property;
b. Knowing or having reason to believe the same to be stolen property.
12. Further, before a conviction can be recorded under Section 411 IPC, the identity of the stolen property has to be established. Reliance is placed upon State Vs. Mahabir Sao 1972 Crl. L.J. 458 (SC).
13. Since the matter pertains to criminal prosecution, the prosecution has to prove the essentials of the offences beyond reasonable doubts and has to stands on its own feet. Further, weakness in the defence raised does not absolve the prosecution of the burden of proof beyond reasonable doubts. "Reasonable doubt"
has been defined by the Apex Court in Latesh @ Dadu Baburao Karlekar Vs The State of Maharashtra (2018) 3 SCC 66 as "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis." It has been held in Sheila Sebastian Vs R. Jawaharraj, Criminal Appeal Nos. 359-360 of 2010 decided on 11.05.2018 by the Apex Court that "...The standard of proof in a FIR No. :257/11 State Vs. Vishal Singh 5/7 criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability." The prosecution has to stand on its own feet. The defence is only required to stand the test of preponderance of probability.
14. After perusal of the material on record, this Court is of the considered view that the prosecution has failed to prove its case beyond reasonable doubts due to following reasons.
a) Material contradiction has arisen in the statements of PW-1 and PW-4 regarding CC TV Footage at the spot. PW-1 has stated during cross-examination that on the day of the incident, she was shown CC TV Footage by the police officials. However, the IO has denied that any CC TV footage of the place of incident existed.
b) Recovery of the case property at the instance of the accused is shrouded in doubt as the IO has admitted to the presence public near the place of recovery however, none from the public have been joined and no compliance under Section 100 Cr.P.C. has been shown. Further, even at the time of arrest of accused from the park, despite presence, no public person has been joined in investigation. Material contradiction is also visible regarding the place of recovery from the testimonies of PW-5, PW-2 and PW-4. PW-5 has stated that the place of recovery was not residential and was infact a Jungle in contradiction to the testimonies of PW- 2 &PW-4, who claimed that the place of recovery was 40-50 meters from the residential area.
c) The identity of the chain has not been established. PW-1 stated that the chain had broken when it was snatched. PW-4 stated that the chain recovered was intact and not broken. Ex.P-1 produced before the Court was also intact. Therefore, a contradiction has arisen which goes to the root of the matter.
FIR No. :257/11 State Vs. Vishal Singh 6/7
15. In view of the above discussion, the accused is acquitted of the offences charged with. Bail bond is cancelled and surety is discharged. Original documents be returned to rightful claimants after cancellation of endorsements.
16. After compliance of Section 437A, file be consigned to record room.
Announced in the open Court (Ms. VIJETA SINGH RAWAT)
on 15.05.2019 MM-06 (South) /Saket Courts:
New Delhi: 15.05.2019
FIR No. :257/11 State Vs. Vishal Singh 7/7