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Delhi District Court

State vs . Tinku on 6 March, 2023

          IN THE COURT OF SWATI SHARMA : ACMM-II :
NEW DELHI DISTRICT : PATIALA HOUSE COURT : NEW DELHI

Cr Cases 10242/2017
STATE Vs. TINKU
171 /2017 (R.K. Puram)



              1. Case No. of the case              :   10242/2017
              2. The date of offence               :   25.05.2017
              3. The name of the complainant       :   Sh. Rama Shanker
              4. The name of the accused           :   Tinku
                                                       s/o.Sh. Jagdish Ram
                                                       (R/o. Jhuggi No. 347,
                                                       Hanuman Camp, Sec-1,
                                                       R.K. Puram, ND)
              5. The offence complained            :   u/s 380/411 IPC
              6. The plea of the accused           :   Pleaded not guilty
              7. Date of Institution of the case   :   03.08.2017
              8. The final order                   :   Acquitted
              9. Date of such order                :   06.03.2023




Cr Cases 10242/2017
STATE Vs. TINKU
171 /2017 (R.K. Puram)                                         Page No. 1 of 6
                                  JUDGMENT

Version of Prosecution

1. Vide this judgment this court shall decide the present case under Section 380/411 Indian Penal Code 1860.

2. The story of the prosecution is that on 26.05.2017, on receiving DD No. 27A regarding theft, W/SI Neeru reached at the spot i.e. Sec-2, R.K. Puram, ND where she met with complainant and complainant gave his complaint that his neighbour Tinku had stolen his articles like two gas cylinder, 20 meter electric wire, Kadhai etc. During investigation, on 26.05.2017, many articles like two gas cylinders, Kadhai etc as mentioned in seizure memo Mark X were recovered from house of accused at Jhuggi No. 347, Hanuman Camp, Sector-1, R.K. Puram, which were belonging to complainant Rama Shankar and were stolen on 25.05.2017 from Jhuggi No. 348 Bangali Colony near Durga Mandir, Sector-2, R.K. Puram which accused retained dishonestly knowing or having reasons to believe the same to be stolen. Thus, accused Tinku S/o. Sh. Jagdish Ram is alleged to have committed an offence under Section 380/411 IPC.

Charge

3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter on 27.06.2019, charge under Section 380/411 IPC was framed against the accused, to which accused pleaded not guilty and claimed trial.

Prosecution Evidence

4. In order to prove the charge against the accused, prosecution had Cr Cases 10242/2017 STATE Vs. TINKU 171 /2017 (R.K. Puram) Page No. 2 of 6 summoned the complainant Sh. Rama Shanker. However, the complainant and the sole eye witness Sh. Rama Shanker has remained unserved even through DCP concerned. He was also the superdar of the case property. As the eye witness/complainant Sh. Rama Shanker has remained unserved, carrying on with further prosecution evidence and recording testimonies of formal witnesses would have become only a futile exercise, and wastage of judicial time, resources and energy. The prosecution can never successfully prove that the present case was a result of an act of accused. The testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused for offences under Section 380/411 IPC.

5. It was held by Hon'ble Supreme Court of India in case titled Satish Mehra vs. Delhi Administration & Anrs. reported as 1996 JCC 507, that:-

"In cases where there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on the future date".

6. Hence, Prosecution Evidence was closed. Since nothing incriminating has come on record against the accused, recording of statement of accused was also dispensed with.

Discussion

7. I have heard the brief submissions addressed by the Learned APP for state and the Learned Counsel for accused and carefully perused the documents on record.

STATE Vs. TINKU 171 /2017 (R.K. Puram) Page No. 3 of 6

8. Let us first examine the provisions of law relevant for the purpose of this case.

The essential ingredients to prove an offence under Section 380 IPC as follows:-.

1. The subject matter of theft is immovable property.

2. It was in possession of a person.

3. The intention of the accused was to move it dishonestly.

4. The accused did so without the consent of the person or the person did not have knowledge of it.

5. The accused did so with an intention of taking it out of the person's possession.

6. The property so stolen was from a building, tent or vessel used as a dwelling-house or for the custody of the property.

The essential ingredients to prove an offence under Section 411 IPC as follows:-.

1. That the stolen property was in the possession of accused.

2. Some person other than the accused had possession of the property before the accused got possession.

3. That the accused had knowledge that the property is a stolen property.

9. In the case at hand, the complainant Sh. Rama Shanker has remained unserved even through the concerned DCP. In absence of his testimony, the prosecution has failed to prove that the accused had stolen his articles from his home. The prosecution's case is further weakened by the non-

STATE Vs. TINKU 171 /2017 (R.K. Puram) Page No. 4 of 6 production of the case property by the superdar, who is the complainant himself. The Court observed that status of allegedly recovered case property as 'stolen property' could be proved only through the positive testimony of complainant Sh. Rama Shanker. Since he failed to appear to depose before the Court, the proof of recovery from the present accused shall serve no meaningful purpose to the case of prosecution and examination of recovery witnesses shall waste valuable judicial time. Further, the statement of complainant recorded by IO U/s 161 Cr.P.C cannot be considered to be the conclusive proof of commission of alleged offence of theft. Furthermore, the disclosure statement of the accused regarding commission of said offence cannot be the sole proof of the establishment of the fact of alleged theft.

Conclusion

10. In the opinion of Court, the factum of ownership / possession of case property remained unestablished and thus, the necessary ingredient of the offence of theft remains missing making the circumstances fall short of the standard required for offence U/s 380 r/w 410 IPC. Furthermore, it is a settled legal proposition that the case property must fall within the definition of stolen property as defined U/s 410 IPC for making out a case U/s 411 IPC, which is not the fact situation in the present matter. Furthermore, mere preparation of some documents by IO including the arrest and personal search memo do not prove the substantive offence against the accused.

11. It is also observed that the Court cannot jump to a conclusion of Cr Cases 10242/2017 STATE Vs. TINKU 171 /2017 (R.K. Puram) Page No. 5 of 6 alleged recovery from the possession of accused without fulfillment of the basis ingredient of the offence i.e the theft of allegedly recovered articles. The factum of theft remained unproved due to absence of the complainant and the case property and thus, the proof of recovery of 'those stolen articles' remained elusive from the case of prosecution.

12. In view of the above discussion, the court is of the opinion that the charges against the accused have not been proved. Accordingly, the guilt of the accused has not been proved and thus he is entitled to be acquitted. Accordingly, accused Tinku, S/o Sh. Jagdish Ram stands acquitted under Section 380 IPC read with Section 411 Indian Penal Code.

Announced in the open court on 06.03.2023 (SWATI SHARMA) ACMM-II/PHC/ND/06.03.2023 Cr Cases 10242/2017 STATE Vs. TINKU 171 /2017 (R.K. Puram) Page No. 6 of 6