Delhi District Court
State vs . Sagar Nepali on 30 May, 2022
DLWT 02-009760-2019
IN THE COURT OF SH. KAPIL KUMAR
CHIEF METROPOLITAN MAGISTRATE- WEST
TIS HAZARI COURTS, DELHI
CNR No. DLWT 02-009760-2019
CIS No. 5015/2019
State Vs. Sagar Nepali
FIR No. 177/2019
PS : Kirti Nagar.
U/s. 411 IPC.
JUDGMENT
1) The date of commission of offence : 08.04.2019
2) The name of the complainant : Sh. Sitaram S/o Sh. Neberlal
3) The name & parentage of accused : Sagar Nepali S/o Sh. Gokul
4) Offence complained of : U/s. 411 IPC.
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 30.05.2022
Date of Institution : 24.06.2019
Judgment reserved on : 28.05.2022
Judgment announced on : 30.05.2022
CIS No.5015/2019; State Vs Sagar Nepali; FIR No. 177/2019; PS :Kirti Nagar; U/s. 411 IPC 1/5
DLWT 02-009760-2019
BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution against the accused is that on
08.04.2019 at A-20, Narayana Vihar, he was found in the possession of one mobile phone make Redmi C-A which was seized vide seizure memo A-6, belonging to the complainant Sh. Sita Ram knowing or having reason to believe to be the stolen property. On these allegations, the accused was charged for the offence U/s 411 IPC.
2) After investigation, charge-sheet was filed against the accused. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 411 IPC to which he pleaded not guilty and claimed trial.
3) In support of its version, prosecution has examined three witnesses. Accused admitted the execution of certain documents u/s 294 Cr. P. C during trial without admitting the contents of the same. After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any defence evidence.
4) I have heard Ld. APP for State and LAC for accused. I have also perused the record carefully.
5) The testimonies of prosecution witnesses are hereby discussed, in brief, as follows:-
5.1) PW 1 ASI Sushil Kumar deposed that on 08.04.2019 he received a PCR call regarding theft at A-20 Narayan Vihar for which he went to the spot and met a PCR caller namely Balram and his two friends namely Vijay and Khumma. He deposed that it was found that the mobile phones of Vijay and Khumma were stolen and those person produced accused Sagar Nepali to him. He deposed that from the search from the accused one mobile phone make MI Redmi was recovered from the possession of the accused which was seized vide seizure memo Ex. A-6 and accused was arrested. He deposed that it CIS No.5015/2019; State Vs Sagar Nepali; FIR No. 177/2019; PS :Kirti Nagar; U/s. 411 IPC 2/5 DLWT 02-009760-2019 came out in the inquiry that mobile phone make Redmi was stolen for which the present FIR no. 177/2019 was registered in PS Kirti Nagar.
He deposed that on 15.04.2019, the mobile phone was transferred to PS Kirti Nagar vide RC No. 12/21/19. He correctly identified the accused.
5.2) PW2 Ct. Rajender deposed that on 08.04.2019, he was posted at PS Narayan as constable. He deposed on the lines of PW-1 as to the recovery of mobile phone from the accused.
5.3) PW3 HC Mujbir Singh proved RC No.12/21/19 as Ex.PW3/B.
6) It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
7) The case of the prosecution against the accused was dependent upon the testimony of complainant Sita Ram. This is because of the fact that the accused has been charged for the offence U/s 411 IPC for which the prime requirement was to prove that the mobile phone was a stolen property as per Section 410 IPC, which inturns requires that the alleged offence of theft was required to be proved by the prosecution. It was mandatory for the prosecution to lead positive evidence to prove the alleged offence of theft. The FIR was against unknown person which was registered via online by the complainant. Thereafter, during the investigation, supplementary statement of the complainant was recorded. It was the complainant only who could prove the alleged offence of theft. In other words, the factum of alleged offence of theft was entirely dependent upon the testimony of the complainant. The complainant was dropped from the list of witnesses on 11.03.2022 as he remained unserved even through DCP.
CIS No.5015/2019; State Vs Sagar Nepali; FIR No. 177/2019; PS :Kirti Nagar; U/s. 411 IPC 3/5 DLWT 02-009760-2019
8) Without proving the offence of theft, there cannot be the identification of the mobile phone in question as stolen property U/s 410 IPC. The recovery of mobile phone from the accused in itself will not prove the offence U/s 411 IPC since it is not proved that the mobile phone was stolen one.
9) It is not proved by the prosecution that the mobile phone was stolen from the possession of complainant Sita Ram, there is no evidence to this effect. There is no charge U/s 103 Delhi Police Act against the accused. When the accused admitted the prepartion of some documents as per Section 294 Cr.P.C, he did not admit the contents of the same. These documents in itself is not sufficient for proving the case of prosecution U/s 411 IPC when the complainanat could not be examined.
10) In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
CIS No.5015/2019; State Vs Sagar Nepali; FIR No. 177/2019; PS :Kirti Nagar; U/s. 411 IPC 4/5 DLWT 02-009760-2019
11) The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
12) In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Sagar Nepali S/o Sh. Gokul of the charges framed in the present case. Case property be confiscated to the State. Same be destroyed. File be consigned to Record Room after due compliance after compliance of u/s 437 A Cr. P. C. Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.05.30 15:44:38 +0400 Announced in the open court (KAPIL KUMAR) on 30.05.2022 Chief Metropolitan Magistrate West District, Tis Hazari Courts/Delhi CIS No.5015/2019; State Vs Sagar Nepali; FIR No. 177/2019; PS :Kirti Nagar; U/s. 411 IPC 5/5