Delhi District Court
State vs Mahesh Shah & Ors. on 13 January, 2016
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IN THE COURT OF SHRI PAWAN KUMAR: METROPOLITAN
MAGISTRATE01 (SOUTHEAST), SAKET COURTS:NEW DELHI
State V/s Mahesh Shah & Ors.
FIR No.15/11
U/s 380/34 IPC
P.S. Lodhi Colony
1.Serial No. of the Case : 773/12
2. Unique Identification No. : 02406R0302552011
3. Date of Institution : 28.11.2011
4. Date on which case reserved for
judgment : 13.01.2016
5. Date of judgment : 13.01.2016
6. Name of the complainant : Neetu Pandey
D/o Sh. R.R. Pandey
R/o 17/948, Lodhi Colony,
New Delhi
7. Date of the commission of offence :02.02.2011
8. Name of accused : 1. Mahesh Shah
S/o Sh. Ajab Lal
R/o H.No. 17, B Block
Bank vali Gali, Gali No. 1/1,
New Rajeev Public School,
Rajeev Nagar, Delhi.
2. Mustkeen
S/o Sh. Abdul Gafar
R/o B1/155, Nand Nagari,
FIR No.15/11
State V/s Mahesh Shah & Ors.
P.S. Lodhi Colony Page No.1 of 7
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New Delhi.
3. Neeraj Kumar Saha
S/o Sh. Narayan Saha
4. Kailash Saha
S/o Sh. Mukesh Saha
(Accused no. 3 and 4 are
already declared absconder
vide order dated
16.04.2013)
5. Deepak Kumar
S/o Sh. Binod Saha
(already declared
absconder vide order dated
24.07.2014)
9. Offence complained of : U/s 380/34 IPC
10. Offence charged of : U/s 380/34 IPC
11. Plea of the accused :Pleaded not guilty.
12. Final order :Acquitted
1. The accused Mahesh Shah and Mustkeen are facing the trial for commission of offences U/s 380/34 IPC. The present case FIR was registered on the statement of Ms. Neetu Pandey ( hereinafter to be referred as the complainant). It is the case of the prosecution that on 02.02.2011 two boys entered into the house of the complainant and told her that they are selling the FIR No.15/11 State V/s Mahesh Shah & Ors.
P.S. Lodhi Colony Page No.2 of 7 3powder to clean the gold articles. Both the boys asked the complainant to give her gold 'kade'. They put the kade in the mixture of the powder in boiling water. In the course of cleaning they took away two gold kade of the complainant and ran away from her house. All the accused were arrested in P.S. Saket and disclosed their involvement in the present case. Both the accused refused to participate in the TIP proceeding.
2. On conclusion of investigation, chargesheet was filed under Section 173 Cr.P.C. The copy of the challan was supplied to both the accused in compliance of provision under Section 207 Cr.P.C.
3. On the basis of the contents of the chargesheet and after hearing both the parties, the charge was framed against both the accused for the offences under Section 380/34 IPC. Thereafter the matter was put for prosecution evidence.
4. In order to establish the charge against the accused the prosecution has examined only three (3) witness.
PW1 ASI Om Prakash was the duty officer and he deposed that on 02.02.2011 he received one rukka through Ct. Krishan Mohan sent by ASI Devender. The copy of FIR is FIR No.15/11 State V/s Mahesh Shah & Ors.
P.S. Lodhi Colony Page No.3 of 7 4Ex.PW1/A and endorsement on rukka is Ex.PW1/B. PW2 SI Devender Kumar deposed that on 02.02.2011 on receiving DD no. 6A he along with Ct. Krishan Kumar went to the house of the complainant. The complainant gave a written complaint and the IO made the endorsement on it. He got the FIR registered by sending the rukka through Ct. Krishan Kumar. The witness prepared the site plan Ex.PW2/B. The IO got prepared the sketch of the suspected person. On 29.09.2011 an information was received regarding the arrest of the five accused person from Police station Saket. The IO arrested all the accused with the permission of the court vide memo Ex.PW2/C to PW2/G. The IO also recorded the disclosure statement of all the accused which are Ex.PW2/H to PW2/L. The witness got conducted the TIP of the accused Mahesh wherein he refused to participate.
PW3 ASI Anand Bala recorded the DD no. 7 dated 29.09.2011 and the true copy of the same is Ex. PW3/A.
5. The complainant Ms. Neetu Pandey was reported to be untraceable and he could not be examined and vide order dated 13.01.2016 the witness was struck off from the list of prosecution witnesses. In the present case the complainant is the only eye witness of the incident. In the absence of the complainant there FIR No.15/11 State V/s Mahesh Shah & Ors.
P.S. Lodhi Colony Page No.4 of 7 5was no other witness to prove the factum of theft. There is no other eye witness who can identify the accused person. Since the complainant was the only material witness and the remaining witnesses were formal in nature, therefore, the remaining witnesses were also dropped and PE was closed by the court order.
6. Statement of both the accused under Section 313 r/w 281 Cr.P.C was recorded. The accused persons opted not to lead defence evidence.
7. In the case in hand the complainant was the sole eye witness of the incident. The complainant was the only witness who had seen the accused person. Since the complainant was reported to be unserved and could not be examined, therefore, the other witnesses were also not examined being formal in nature. The complainant was the only material witness cited by the prosecution. She was reported to be untraceable. Hence, there was no evidence to prove the commission of theft and the identity of the accused person. It is the settled proposition that identification of the accused in the court is a substantive piece of evidence. It is equally settled that the identification of the accused for the first time in the court is of no value only FIR No.15/11 State V/s Mahesh Shah & Ors.
P.S. Lodhi Colony Page No.5 of 7 6supported by any prior identification like TIP. The substantive evidence, however, is the identification made by a witness in the Court. It has been authoritatively held that this evidence of identification required corroboration which should be made in the form of an earlier identification proceedings. Therefore, in a case where no such earlier test identification parade was held, but for the first time a witness identified the culprit in Court it would be unsafe to rely upon such evidence to hold the accused guilty. Since the complainant did not appear in the witness box and the accused were not identified in the court, therefore, no adverse inference can be taken against the accused for the reason of refusal to participate in the TIP.
8. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that if any doubt exists, benefit of that doubt goes in favour of the accused. Thus, this court is of the considered view that the benefit of doubt in the present case be given to both the accused and they are entitled to be exonerated on the charges against them in the present case.
FIR No.15/11State V/s Mahesh Shah & Ors.
P.S. Lodhi Colony Page No.6 of 7 79. There is no incriminating evidence on record against both the accused. In the absence of incriminating evidence, the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, both the accused namely Mahesh Shah and Muskeen are acquitted of the offences punishable U/s 380/34 IPC.
10. File be consigned to Record Room after due compliance.
Pronounced in open court (PAWAN KUMAR) on 13th January, 2016 MM01 (SouthEast): Saket Courts:
New Delhi:13.01.2016 FIR No.15/11 State V/s Mahesh Shah & Ors.P.S. Lodhi Colony Page No.7 of 7