Delhi District Court
State vs . Mohd. Anis Alam @ Bachchhu on 7 April, 2015
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST): SAKET
COURTS:NEW DELHI
FIR No. 50/2007
U/s 379/407 IPC
P.S. Greater KailashI
State Vs. Mohd. Anis Alam @ Bachchhu
J U D G M E N T
Serial No. of the Case : 219/2/14
Unique Identification No. : 02406R1022102007
Date of Institution : 28.02.2007
Date on which case reserved for
judgment : 06.04.2015
Date of judgment : 07.04.2015
Name of the complainant : Ms. Arti Chadha
d/o Shri A. K. Chadha
r/o E367/B, Ground Floor,
G.K.II, New Delhi
FIR No. 50/2007
P.S. Greater KailashI Page No.1 of 13
Date of the commission of offence : 30.12.2006
Name of accused : Mohd. Anis Alam @
Bachchu
s/o Shri Mohd. Majeed Alam
r/o House No.G16, 40 Foota
Road, Jagatpuri, Delhi
Offence complained of : U/s 379/407 IPC
Offence charged of : U/s 379/407 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 28.02.2007
Date on which case reserved
for judgment : 06.04.2015
Date of judgment : 07.04.2015
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint of the complainant stating that at the time of FIR No. 50/2007 P.S. Greater KailashI Page No.2 of 13 incident she was working as Product Manager with her company at Noida. On 30.12.2006 at around 04:00PM from NBlock, G.K.1 she hired an auto bearing registration No.DL1RE7268 and had kept her luggage along with laptop back. She had kept her laptop bag on the backside of the auto which she hired till OkhlaPhaseIII and got down from auto/TSR she had taken out all her stuff/luggage but her laptop back which was on the back side of auto, left inside the auto as the auto driver did not give her chance to do. Thereafter she returned back to the NBlock Market, G.K.1 to search the auto driver from the auto drivers who were standing at the auto stand who informed the complainant that she should not worry as laptop would be with the TSR driver. Later when she asked, the auto driver gave the number of aforesaid TSR driver to return her laptop bag, the TSR driver, namely, Mohd. Anis Alam @ Bachchu gave her number and told her that laptop was with another lady who was from NDTV had stolen the same. Thereafter, complainant went to police station at 11:30 PM in the night to lodge complaint and filed her written complaint on the next date.
2. On the basis of the above mentioned complaint, the present FIR was registered on 07.02.2006. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the FIR No. 50/2007 P.S. Greater KailashI Page No.3 of 13 chargesheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge for the offences punishable U/s 379/407 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. It is evident to discuss the testimonies of all the prosecution witnesses. In the present matter, prosecution examined as many as six (6) witnesses in order to prove its case.
PW1 Ms. Aarti Chddha deposed that on 30.12.2006 between 04:0005:00PM she hired an auto bearing registration No.DL7268 (the number of which she did not remember) for going to OkhlaIII from G.K.1 N Block auto stand. Thereafter the complainant identified the accused and further stated that during investigation the name of accused was revealed to her, as Mohd. Anis Alamd. After reaching OkhlaPhaseIII, she spared the auto as there was much luggage and had taken all her luggage of auto but could not take her laptop as the auto driver moved. She returned back to N Block Auto Stand from where she had hired auto. The auto driver could not be found. Therefore she inquired about him from the drivers who informed her FIR No. 50/2007 P.S. Greater KailashI Page No.4 of 13 that she should not worry as laptop was with the accused and whenever the accused comes, he will return the auto stand. They told her that the name of accused was Bacchu and his mobile number is 9891711821 and she could directly coordinate to him (accused). Thereafter she called the accused who told her that some female had stolen the laptop and thereafter upon asking of complainant, the accused gave her contact number of the lady. PW1 asked the accused to give number of lady but he (accused) could not give contact number and she filed the present complaint Ex.PW1/A. Thereafter on 06/07th (she could not remember the date exactly) she received call from the police to help the police in investigation. Thereafter the TSR was seized in her presence vide memo Ex.PW1/B and arrest memo was prepared vide Ex.PW1/C. Personal search of accused was conducted vide Ex.PW1/D. During the crossexamination by learned Counsel for accused, PW1 stated that the auto hired by her was not prepaid. She had to pay after reaching the destination. She could not pay the accused as he escaped from the spot. She did not call the police immediately but firstly reached the auto stand from where she hired auto. Auto driver had dropped the complainant within 1520 minutes. She waited for 23 hours and remained till late evening at that auto stand but she could not tell exact distance between auto stand and P.S. G.K.1 but stated that it might take 10 FIR No. 50/2007 P.S. Greater KailashI Page No.5 of 13 minutes. She did not remember if there was any police personnel near the vicinity and she had not made any complaint regarding the theft of her laptop on 30.12.2006 and had only informed verbally to the police. The accused had come in the evening on 30.12.2006. She had not taken the accused to the police station on 30.12.2006. She accepted that the accused and herself were called by the police in the police station on the next date and the police had made inquires from the accused on 31.12.2006.
PW2 Shri Sudhir deposed that he did not remember the exact date and month but approximately the incident happened about one and half months back. The same had happened in the evening and he had seen the accused with the laptop. Accused moved with the laptop from the auto stand. He could not say what did he (accused) do with the laptop. Accused had told that said laptop belonged to some passenger.
During the crossexamination by learned Counsel for accused, PW2 stated that he cannot remember the exact time when accused came back but he had seen the laptop of black colour with the accused. In the meantime, accused moved again with some other passenger.
PW3 Shri Sanjay Kumar deposed that on 30.12.2006 at about 07:0007:30PM accused showed him a black bag containing laptop and told him that it was left by a lady passenger and in that evening a lady searching FIR No. 50/2007 P.S. Greater KailashI Page No.6 of 13 for a laptop came to auto stand. He (PW3) made her know that laptop was with the accused. Later the accused got another passenger and went away.
During the crossexamination by learned Counsel for accused, PW3 stated that he had seen only bag and did not see what was in the bag. After an hour since the accused informed him about the bag, lady came who was later taken to India Gate and even that lady had also seen the accused putting the same in auto.
PW4 HC Suresh Kumar proved the present FIR Ex.PW4/A and rukka Ex.PW4/B. PW5 Constable Vinodan. E deposed that on 07.02.2007 he was posted as constable at P.S.GK.1 and was patrolling duty along with W/SI Rita. During that time met the complainant who informed that she (complainant) hired an auto bearing No.DL7268 for going to Okhla PhaseIII from G.K.1, NBlock auto stand and on reaching Okhla PhaseIII, she spared the auto. PW5 further deposed that she also informed them that she was having heavy luggage with her so she placed her laptop on the backside of the auto. On getting down of the auto, she took her luggage from the auto but the auto driver moved the auto and she could not take her laptop from there. Thereafter, she came back to NBlock auto stand from where she hired the auto and after making search there, she approached them. SI Rita FIR No. 50/2007 P.S. Greater KailashI Page No.7 of 13 recorded the statement of the complainant Ex.PW1/A and PW5 had taken the rukka to P.S.G.K.1 for registration of FIR. After registration of FIR he returned to the spot and handed over rukka and copy of FIR to IO. In the meantime, accused also came to the auto stand and complainant identified him and upon whose identification accused was arrested vide memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D. IO prepared seizure memo of the auto vide memo Ex.PW1/B. IO recorded disclosure statement Ex.PW5/A. PW6 W/SI Rita deposed that on 07.02.2007 he was posted as SI and on that day the complainant R. P. Chadda (wrongly mentioned by witness) came to the police station regarding theft of laptop by the accused in his TSR and was recorded her statement Ex.PW1/A and she (PW6) endorsed the same Ex.PW6/A and got the present FIR registered and subsequently went to the spot along with complainant and prepared site plan Ex.PW6/B at her instance. TSR was seized vide memo Ex.PW1/B and was sent for mechanical inspection vide Ex.PW6/C. Accused was arrested at the pointing out of the complainant and thereafter she (PW6) recorded disclosure statement of accused Ex.PW5/A. PW6 recorded statements of all witnesses and completed investigation.
During the crossexamination by learned Counsel for FIR No. 50/2007 P.S. Greater KailashI Page No.8 of 13 accused, PW6 stated that she recorded statement of complainant on 07.02.2007 regarding the present incident. However, she accepted that no case property was recovered in the present matter.
Vide statement dated 28.11.2014, the accused admitted the factum of mechanical inspection U/s 294 Cr.P.C.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 Cr.P.C was recorded.
6. No defence witness was examined on behalf of the accused.
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
Section 379 IPC reads as under:
Punishment for theft--Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.FIR No. 50/2007 P.S. Greater KailashI Page No.9 of 13
Section 407 reads as under : Criminal breach of trust by carrier, etc. Whoever, being entrusted with property as a carrier, wharfinger or warehouse keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for term which may extend to seven years, and shall also be liable to fine.
8. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record.
9. In the present case, the accused has been charged for the offences punishable U/s 379/407 IPC. However, if we consider the provisions of Section 379 IPC and Section 407 IPC are not of the same kind and cannot coexist. Section 379 IPC defines the punishment for the offence of theft and to bring home the guilt of the accused for the ofence punishable U/s 379 IPC, prosecution was required to prove that the property in question was moveable property and such property was in the possession of the person/complainant and that the accused had moved such property from the possession of the complainant without consent with wrongful intention and to cause wrongful FIR No. 50/2007 P.S. Greater KailashI Page No.10 of 13 loss to the complainant and wrongful gain to himself.
10. On the other hand, to constitute the offence punishable U/s 407 IPC, prosecution was required to prove that the accused being a carrier wharfinger or being warehousekeeper were entrusted with some property and have committed criminal breach of trust in respect of the same.
To my mind, the offence of theft cannot be corelated to criminal breach of trust as for the offence punishable U/s 379 IPC, the intention of the accused being dishonest from the beginning, should be to commit theft. But to constitute offence punishable U/s 407 IPC, prima facie requirement as per provisions is entrustment .
11. In the aforesaid facts and circumstances where to constitute the offence punishable U/s 379 IPC, it was also required that the stolen/property/article was recovered from the possession of the accused but the same has not been proved by the prosecution as the alleged stolen property i.e. laptop of the complainant was never recovered from the possession of the accused.
12. On the other hand, the prosecution has failed to prove the basic FIR No. 50/2007 P.S. Greater KailashI Page No.11 of 13 ingredient of entrustment as required U/s 407 IPC as the complainant/PW1 has no where stated in her complaint or during her examinationinchief that she had entrusted laptop to the auto driver/accused and in fact, she had stated that in her complaint that she did not get chance to take her laptop kept in TSR of the accused. Lastly, in the present matter even delay in registration of FIR has not been explained. As the complaint Ex.PW1/A is stated to have been made on the next date, the FIR was only registered on 07.02.2006. However, if we peruse testimony of PW1, she had stated that on 06th or 07th of the month she received a call from the police to join the investigation and that is only when the accused was apprehended. On the other hand, story of the prosecution seems to be unbelievable as PW5 has stated that on 07.02.2007 he was on patrolling duty with PW6 IO W/SI Rita when during patrolling the complainant came to them and lodged the present complaint that is when the date of incident is allegedly 30.12.2006 and on the contrary PW6 SI Rita deposed that while she was posted at police station G.K.1 on 07.02.2007, the complainant had come to police station to register the case of theft of laptop by the accused.
13. In view of abovesaid facts and circumstances and considering the contradictory statement given by prosecution witnesses, charges alleged FIR No. 50/2007 P.S. Greater KailashI Page No.12 of 13 against accused does not stand prove. Accordingly, the accused is Mohd. Anis Alam @ Bachchu s/o Shri Mohd. Majeed Alam of the offences punishable U/s 379/407 IPC.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 07.04.2015 MM10 (SouthEast): Saket Courts:
New Delhi:07.04.2015
FIR No. 50/2007
P.S. Greater KailashI Page No.13 of 13