Delhi District Court
State vs Sonu @ Rishi on 7 April, 2014
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATE -04, ROOM NO.212
DWARKA, DELHI
STATE versus Sonu @ Rishi
FIR No. 162/13
PS: Dwarka South
U/s-380/411 IPC
1. Serial No. of the case : 0240 5R 0300412013
2. Date of commission of offence : 01.06.2013
3. Name of the complainant : Sh. Jai Kochhar s/o Sh. K.C. Kochhar
4. Name of the accused, and his : Sonu @ Rishi
Parentage & residence s/o Shri Hanumant
r/o C-2/10, Bhagwati Garden, Uttam Nagar,
New Delhi
5. Date of Reserving Judgment : 31.03.2014
6. Date when judgment was : 07.04.2014
pronounced
7. Offence Complained of : Section 380/411 IPC
8. Plea of accused : Pleaded not guilty.
9. Final Order : Acquittal
10. Date of Order : 07.04.2014
JUDGMENT
Brief Statement of the reasons for the decision of the case
1. Succinctly, the facts of the present case against the accused are that on 01.06.2013 between 01.00 pm to 2.30 pm, at chamber no. 444, Dwarka Court Complex, the accused stole the laptop of the complainant Sh. Jai Kochhar. Same was allegedly surrendered by the accused before the Hon'ble High Court of Delhi in W.P. (Crl.) no. 971/2013 on 04.06.2013. Therefore, it is alleged that the accused have committed the offences under Section 380/411 Indian Penal Code 1860 (hereinafter referred to as IPC).
2. Cognizance was taken and provisions of Section 207, CrPC were complied with. Arguments were heard on charge. Accordingly, a charge under Section 380/411 IPC, in the State v. Sonu @ Rishi FIR no. 162/13 PS Dwarka South Page 1 of 6 alternative was framed against the accused on 10.10.2013 to which he pleaded not guilty and claimed trial. Thereafter, the matter was listed for Prosecution Evidence. The prosecution examined 7 witnesses. PW1 Ct. Satpal is witness to the arrest of the accused. PW2 Sh. H.C. Suri, Registrar-cum-Secretary to the Hon'ble Chief Justice of the Hon'ble High Court of Delhi proved the record of production of the case property before the Hon'ble High Court of Delhi. PW3 ASI Manjeet is the Duty officer. PW4 SI Kishore Pandey is the second IO. PW5 Surender Kumar is the eye witness. PW6 HC Ram Avtar is the first IO. PW7 Jai Kochhar is the complainant. Prosecution evidence was closed vide order dated 16.01.2014. Statement of the accused was recorded under Section 313, CrPC on 17.01.2014 whereby he pleaded false implication. The accused did not any lead defence evidence. Hence, DE was closed on 28.02.2014. Thereafter, matter was listed for final arguments. On 14.03.2014, the complainant appeared and moved an application under Section 311, CrPC for his examination. The same was allowed. Complainant Jai Kochhar was examined as PW7 and discharged. A supplementary statement of the accused under Section 313, CrPC was recorded on 27.03.2014. The accused was given a fresh opportunity to lead DE. However, he chose not to do so. Hence, final arguments were advanced by the Ld. APP and the Ld. Counsel for the accused and thereafter, the matter was reserved for orders.
3. The accused has been charged for the offences under Section 380/411 IPC. Section 380, IPC provides for the punishment for committing theft in a dwelling house. The provision is reproduced as under:
"Theft in dwelling house, etc.-- Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
4. Hence, to bring home the charge under Section 380, IPC, the prosecution must prove the following that:
a) the accused has committed theft;
b) the theft is committed in a building, tent or vessel used as human dwelling or for the custody of property.
State v. Sonu @ Rishi FIR no. 162/13 PS Dwarka South Page 2 of 6
5. Therefore, first and foremost, the prosecution must prove that the accused have committed theft, which is defined under Section 378, IPC as under:
"Theft.--Whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft."
6. Hence, to prove that the accused have committed the offence of theft, the prosecution must prove that:
a) the accused moved a movable property
b) out of the possession of a person
c) such moving was done with a dishonest intention to take away that property
d) such moving was done without the consent of the person from whose possession the property was moved.
7. It is the case case of the prosecution that the accused committed theft of the complainant's laptop on 01.06.2013 between 01.00 pm to 2.30 pm, at chamber no. 444, Dwarka Court Complex by taking the same from the possession of the complainant without his consent. To prove this fact, the prosecution relied upon the testimony of PW7 Jai Kochhar, who stated that on 01.06.2013, at about 1 pm, he went to the concerned chamber and left his laptop there. Thereafter, he left the chamber with his counsel Sh. Arun Sharma. When he returned in the chamber at abut 2.30 pm, he found his laptop missing. He found PW5 Surender in the chamber who informed him that the accused had taken the laptop. Ld. Counsel for the accused has argued that the testimony of PW7 Jai Kochhar is merely hearsay. He did not witness the said incident. He submits that his testimony to be relevant and admissible must be corroborated with the testimony of PW5 Surender, which is not so in the present case as he stated on oath that he did not have any knowledge of the facts of the case. He was duly cross-examined by the Ld. APP but he remained firm on his testimony. Hence, it is submitted that the testimony of PW7 Jai Kochhar is of no relevance.
8. Ld. APP submits that even though the same may be true, but the accused has admitted to have stolen the laptop in his statement under Section 313, CrPC. Hence, it is submitted that the State v. Sonu @ Rishi FIR no. 162/13 PS Dwarka South Page 3 of 6 offence is proved. Also, Ld. APP submits that the case property was surrendered by the accused before the Hon'ble High Court of Delhi in W.P. (Crl.) no. 971/2013 on 04.06.2013 through one Sh. Chetan Prakash Sharma, a fact which is again admitted by the accused in his statement under Section 313, CrPC. Hence, in view of the same, Ld. APP submits that the prosecution has proved the commission of the offence beyond reasonable doubts and hence the accused may be convicted of the said offence.
9. The court is in agreement with the argument put forth by the Ld. Counsel for the accused. The star witness PW5 Surender, who allegedly saw the accused steal the laptop turned completely hostile. Hence, the testimony of PW7 Jai Kochhar is of no relevance, being merely hearsay, being dependent on the testimony of PW5 Surender. Now, the prosecution has alleged that as the accused admitted the commission of the offence in his statement under Section 313, CrPC, he is liable to be convicted for the said offence. In this regard, it is essential to refer to the case titled as Narain Singh v. State of Punjab, (1963) 3 SCR 678 decided by the Hon'ble Supreme Court of India. In this case where the accused was being tried for the offence under Section 302, IPC, the star witnesses turned hostile and their testimonies were discarded by the Ld. Trial Court. However, the accused was convicted on the basis of his statement under Section 342, CrPC (as per the old Code. Section 313 is the parallel provision in the new Code). The accused, in his statement, admitted to have caused injuries to the deceased but took the plea of self defence. The Ld. Trial Court, in view of the admission of causing the injuries, convicted the accused. In this regard, the Hon'ble Apex Court that:
"In finding Narain Singh guilty of the offence under s. 304 Part II for causing injuries to the victim Bachan Singh with a kirpan the Court of Session and the High Court have accepted a case which was not the case of the prosecution, but have relied only upon the statement Narain Singh made in his defence. Under s. 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under s. 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version State v. Sonu @ Rishi FIR no. 162/13 PS Dwarka South Page 4 of 6 or explanation - if any, of the incident which forms the subject-matter of the charge and his defence. By sub-s. (3), the answers given by the accused may "be taken into consideration" at the enquiry or the trial. If the accused person in his examination under s. 342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It is not open to the Court to dissect the statement and to pick out a part of the statement which may be in criminative and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation.
...The prosecution case, however, did not by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. His responsibility, if any, arose only out of the plea raised by him : if the plea amounted to a confession of guilt the court could convict him relying upon that plea, but if it amounted to admission of facts and raised a plea of justification, the court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification."
10. In view of the same, as held by Ld. Apex Court, the statement under Section 313 CrPC can be taken into consideration and the admissions made by the accused can also be relied upon. However, only in case where the same is in corroboration with the prosecution evidence or where certain clarifications were required in the prosecution evidence, the statement of accused can be used to complete the chain of events. However, it has been very clearly held by the Hon'ble Court that in case there is no prosecution evidence on a fact, then the conviction cannot be based solely upon the statement of accused, more so when the admission so made is explanatory in nature. It has been held that the statement has to be read as a whole and cannot be segregated to the prejudice of the accused. In the present case also, there is no evidence on the basis of which, it cannot be proved that the accused had actually stolen the laptop. Hence, his admission under Section 313, CrPC cannot be considered to be akin to a confession. It cannot be used as a basis State v. Sonu @ Rishi FIR no. 162/13 PS Dwarka South Page 5 of 6 for conviction.
11. Furthermore, the accused has alleged that when he turned the laptop on, he saw some footage against the government and he took the laptop to take appropriate action against the erring officials. The laptop was then surrendered by the accused before the Hon'ble High Court of Delhi in W.P. (Crl.) no. 971/2013 on 04.06.2013 through one Sh. Chetan Prakash Sharma. The record of the writ petition is on record. The writ petition supports the averment of the accused. The Hon'ble High Court of Delhi vide its order dated 24.07.2013 released a copy of the hard disk to the CBI for investigation. In view of the same, in the opinion of the court, even if it is deemed to be proved that the accused did take the laptop out of the possession of the complainant without his consent, the element of 'dishonest intention' seems to be missing. The laptop was taken by the accused for a noble cause, for taking action against erring officials. In fact the intention of the accused must be applauded. Hence, the court is of the opinion that the accused has not committed the offence under Section 380, IPC.
12. In view of the above discussion, as the offence of theft has not been committed by the accused, the case property ceases to be a stolen property. Hence, the offence under Section 411, IPC is not attracted. Hence, the accused is acquitted for both the offences. He be released from J/C forthwith, if not wanted in any other case.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 07.04.2014 (RUCHIKA SINGLA) METROPOLITAN MAGISTRATE-04 DWARKA COURTS, DELHI State v. Sonu @ Rishi FIR no. 162/13 PS Dwarka South Page 6 of 6