Delhi District Court
State vs . Saddam on 12 February, 2016
IN THE COURT OF MS. NEHA: METROPOLITAN
MAGISTRATE03 : (SOUTH EAST) DELHI
STATE Vs. Saddam
FIR No: 736 of 2015
P. S. Jaitpur
Date of Institution of Case : 03.12.2015
Date on which case reserved : 10.02.2016
for Judgment
Date of Judgment : 12.02.2016
JUDGMENT :
a) Date of offence : 04/05.10.2015 b) Offence complained of : 457/380/411 IPC c) Name of complainant : Pawan Sharma d) Name of accused, : Saddam his parentage and residence S/o Shri Rahees Sheikh R/o Muneem Bhati Ki Juggi, Hari Nagar, PartII, New Delhi e) Plea of accused : Not guilty f) Final order : Convicted FIR no. 736 of 2015 State Vs. Saddam PS Jaitpur 1 of 10 Counsels for the Parties: Sh. Arun Kumar Singh, Ld. APP for the State.
Sh. Tej Narain, Ld. Counsel for accused from Legal Aid. BRIEF FACTS AND REASONS FOR DECISION:
The case of prosecution in brief is that on intervening night of 04.10.201505.10.2015 between 9.00 pm to 9.00 am at E91, Hari Nagar, Part2, New Delhi, accused Saddam with his associates committed theft of many articles from the aforesaid shop belonging to complainant.
Complainant Pawan Sharma made a complaint regarding this. Accordingly, FIR No. 736 of 2015 u/s 457/380 of Indian Penal Code ('hereinafter referred as IPC') was registered at PS Jaitpur. It is also alleged that on 05.10.2015, accused got recovered battery belonging to complainant from his juggi and thereafter, accused was arrested in this case.
2. After the completion of the investigation, charge sheet for offence u/s 457/380/411 IPC was filed against accused Saddam. Cognizance of the offence was taken. Copy of charge sheet was supplied to the accused. After hearing the parties, charge for the offence u/s 380/411 IPC was framed against accused, to which he pleaded not guilty and FIR no. 736 of 2015 State Vs. Saddam PS Jaitpur 2 of 10 claimed trial.
3. Prosecution in order to prove its case has examined three witnesses.
4. PW1 Pawan Sharma is the complainant in this case. He has deposed that he has a car repairing shop situated at EBlock, near Lohia Pul, Meethapur. On 04.10.2015, he went to his home after closing shop at about 09.00 pm. On 05.10.2015, when he went to his shop for re opening at about 09.00 am, he found that the door of his shop was broken. When he entered inside his shop, he found that many articles of his shop were stolen. He called PCR. Police came and inspected his shop. Thereafter, he gave a written complaint regarding theft which is Ex.PW1/A. Police investigated the matter.
5. Complainant has further deposed that accused Saddam was arrested in this case from Jhuggi which was at some distance from the shop vide Ex.PW1/B. They had suspicion over the accused and accused had accepted his guilt in his presence before the police officials. Prior to this theft also, theft took place in his shop and in the CCTV footage, the accused was found. On suspicion, the accused was apprehended and he accepted that he was standing outside the shop and his associates went FIR no. 736 of 2015 State Vs. Saddam PS Jaitpur 3 of 10 inside the shop in order to commit theft. His associates were appearing in the CCTV footage but they could not be apprehended. The accused got recovered one inverter battery and one battery of four wheeler and some kabada. The police had seized the recovered articles vide memo Ex.PW1/C. Remaining articles were not recovered. IO has also prepared pointing out memo which is Ex.PW1/D. Police had prepared site plan at his instruction which is Ex.PW1/E.
6. PW2 Ct. Jagram is the witness who joined proceedings with IO during investigation and recovery.
7. PW3 HC Harbir Singh is the IO of this case. He had deposed that on 05.10.2015, he was on emergency duty. His duty hour was from 8.00 am to 8.00 pm. He had received DD no. 20A regarding theft. He alongwith Ct. Jagram went to the spot i.e. Yash Motors, Hari Nagar, Service Road, where complainant Pawan Sharma met him. He narrated the incident of theft and gave written complaint vide Ex.PW1/A. He prepared rukka Ex.PW3/A and handed over the same to Ct. Jagram for registration of FIR. After registration of FIR, he prepared site plan at the instance of complainant vide Ex.PW1/E. He had also taken photographs of the gate which was broken by accused.
FIR no. 736 of 2015 State Vs. Saddam PS Jaitpur 4 of 10
8. IO has further deposed that on the same day, one secret informer met and informed complainant that one person was trying to sell the battery. Thereafter, complainant informed him about the same. He alongwith Ct. Jagram and complainant and 12 Constables of the beat went to the juggi near Munim Bhati Office. Accused Saddam was bargaining with some persons regarding the sale of battery. He apprehended accused Saddam. Accused disclosed that he has stolen the two batteries from the shop and had kept batteries in his juggi. Thereafter, they went to juggi and recovered two batteries at the instance of accused. He prepared pointing out memo and seizure memo vide Ex.PW1/C. He recorded disclosure statement of accused Saddam vide memo Ex.PW3/B. He prepared pointing out memo vide Ex.PW1/D. Accused Saddam was arrested vide memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW3/C. Case property was deposited into malkhana. Accused was sent to lock up after medical examination. During investigation, he recorded statement of witnesses u/s 161 Cr.PC. After completion of investigation, he prepared charge sheet.
9. During trial, accused submitted that he did not dispute registration of FIR by duty officer and register no. 19 of MHCM. In view of the FIR no. 736 of 2015 State Vs. Saddam PS Jaitpur 5 of 10 submission, examination of Duty officer and MHCM was dispensed with vide order dated 01.02.2016. PE was closed vide order dated 01.02.2016.
10. After PE, accused was examined under Section 313 Cr. P.C and his statement was recorded separately, wherein he denied all the incriminating evidence put to him. On an option being given, accused did not examine any witness in defence. Thereafter, the matter was fixed for final arguments.
11. Final arguments were addressed on behalf of Ld. Defence Counsel and Ld. APP for the State.
12. Ld. APP for the State has argued that the prosecution has been able to prove its case beyond reasonable doubt. The complainant and other prosecution witnesses have proved that the accused with his associates had committed theft in the shop and thereafter, stolen battery was recovered from the possession of accused. It is also argued on behalf of State that the testimony of prosecution witnesses leaves no doubt that the accused had committed the offence with which he has been charged.
13. On the other hand, Ld. Counsel for accused has argued that the FIR no. 736 of 2015 State Vs. Saddam PS Jaitpur 6 of 10 prosecution has failed to prove its case beyond reasonable doubts. Ld. Counsel has also argued that no public witness had joined the proceedings/recovery. Therefore, benefit of doubt may be given to accused and he may be acquitted.
14. I have carefully perused the material on record and considered the submissions of Ld. APP for the State and Ld. Counsel for the accused.
15. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the story of prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily has to go to the accused.
16. PW1/complainant Pawan Sharma is an eyewitness to the alleged recovery effected from the accused immediately after the theft. Complainant Pawan Sharma has categorically stated that on suspicion, accused Saddam was apprehended and he accepted in his presence before the police officials that he was standing outside the shop and his associates went inside the shop in order to commit theft.
17. The witness has been cross examined by Ld. Defence Counsel and FIR no. 736 of 2015 State Vs. Saddam PS Jaitpur 7 of 10 during cross examination, PW1 Pawan Sharma has stated that the police arrested accused Saddam. Witness has denied that the battery was not recovered from residence of accused.
18. The complainant during his testimony has specifically stated that accused got recovered one inverter battery and one battery of four wheeler and some kabada in his presence, which was seized by the police vide Ex.PW1/C.
19. The accused during statement u/s 313 Cr.PC has stated that the police officials has apprehended him while he was going towards his jhuggi. The police took him stating that they would make some inquiry.
20. Ld. Counsel for accused has argued that the complainant is an interested witness and his testimony can not be relied upon to convict the accused.
21. I do not agree with the contention of Ld. Defence Counsel. I do not find any material contradiction in the testimony of prosecution witnesses. Complainant Pawan Sharma as well as witness Ct. Jagram and HC Harbir have categorically stated that stolen battery was recovered from the juggi of accused.
22. As per law, testimony of a single witness is sufficient to prove a FIR no. 736 of 2015 State Vs. Saddam PS Jaitpur 8 of 10 fact if there are no reasons to disbelieve it. I do not find any contradiction in the testimony of the complainant to make his testimony untrustworthy.
23. There is no reason for complainant to implicate the accused falsely. Although the accused has claimed that he has been implicated falsely by the police officials and complainant. However, no suggestion is given by Ld. Defence counsel during crossexamination of witnesses, suggesting as to what could have been the possible motive for those witnesses to falsely implicate the accused. No such reason is given by the accused in his statement under section 313 Cr.P.C.
24. The statement of complainant cannot be brushed aside lightly. No material contradictions or discrepancy is found in his statement so as to make his testimony unreliable or untrustworthy. I find the statement of complainant Pawan Sharma trustworthy and believable. PW2 Ct. Jagram and PW3 HC Harbir have also corroborated the testimony of complainant Pawan Sharma. Merely because no independent public person has been made a prosecution witness does not create any doubt in the testimony of complainant. Non examination of public witness by itself does not give rise to an adverse inference against the prosecution.
FIR no. 736 of 2015 State Vs. Saddam PS Jaitpur 9 of 10
25. In view of discussion herein above, this Court holds that the prosecution has proved beyond reasonable doubt that accused Saddam was found in possession of stolen batteries belonging to complainant. The accused was found in possession of stolen batteries immediately after theft .i.e. on next day of theft. There is presumption of law that accused was involved in the theft committed at the shop of complainant. Therefore, this Court holds that prosecution has proved beyond reasonable doubts that accused had committed theft of batteries from the shop of complainant and immediately after theft, he got recovered the stolen batteries from his jhuggi. It is settled that a thief can not be separately convicted for offence of receiving or retaining stolen property. Therefore, accused is convicted for offence u/s 380 IPC. Let he be separately heard on the quantum of sentence. Copy of this judgment be given dasti to accused.
Pronounced in the open Court (Neha)
today on 12th February 2016 MM03 (South East)
Saket, New Delhi
FIR no. 736 of 2015 State Vs. Saddam
PS Jaitpur 10 of 10