Delhi District Court
State vs Ajay Kumar & Etc. U/S. 379/411 Ipc on 10 June, 2016
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE-07, WEST, THC NEW DELHI
State V. Ajay Kumar
FIR No. 1035/06
PS Paschim Vihar
U/s 379/411 IPC
JUDGMENT
C C No. : 311A/2/10
Date of Institution : 20.02.2008
Date of Commission of Offence : 28.09.2006
Name of the complainant : Prabhat Kumar Sharma
S/o Sh. Suresh Chand
R/o H. No. C-263, Lajpat Nagar,
New Delhi
Name & address of the accused : Ajay Kumar
S/o Mehar Singh
R/o D-3 Pitam Pura, Police Line,
Delhi-34
Offence complained of : U/s 379/411 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date on which reserved for judgment : 02.06.2016
Date of announcing of judgment : 10.06.2016
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. By this statement the court shall decide the present matter under Section 379/411 Indian Penal Code.
2. The briefly stated prosecution story is that on 28.09.2006 at about 02.55 pm at State vs Ajay Kumar & etc. U/s. 379/411 IPC FIR No.1035/06 1 /8 Reliance Store, opposite A-1, Paschim Vihar, Delhi, the complainant Prabhat Kumar Sharma, who was working as the store officer at the said Reliance store, apprehended the accused with 2 plastic kattas containing Brass Glands of Reliance Company. On basis of the complaint filed by Prabhat Kumar Sharma, FIR was registered. After completing the formalities, investigation was conducted.
3. The charge sheet was filed against the accused under Section 379/411 IPC. Copy of charge-sheet and other scruttable documents were supplied to him under Section 207 Cr.P.C. Charge was framed against the accused for offence under Section 379 IPC and in alternative under Section 411 IPC vide order dated 21.04.2011, to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined four witnesses namely (1) Krishan Kumar, (2) HC Prakash Chand, (3) SI Naresh Kumar and (4) SI Jai Singh.
5. PW-1 Krishan Kumar deposed that on the date of incident, he was working in Reliance Energy Ltd. Sector 24, Noida UP as Store Officer. On that day, he received a call from Paschim Vihar office of the company that a theft had taken place at the said office. He alongwith Prabhat Sharma, store officer went there. No one was present there except a guard. They called at the police station and got the case registered. Police recorded their statement. He did not remember anything more about the present case.
6. The witness was declared to be hostile by the prosecution and was cross State vs Ajay Kumar & etc. U/s. 379/411 IPC FIR No.1035/06 2 /8 examined by Ld. APP. During cross examination, he admitted that he was also looking after the Paschim Vihar office of the company as store officer at the relevant time. He admitted that the incident had taken place on 28.09.2006. However, he denied the suggestion that on that day he alongwith Prabhat Kumar were coming to Paschim Vihar from Noida and that they had seen the accused Ajay, the field officer of security guard, carrying two heavy kattas on his motor cycle no. DL-4SBH-0581. He denied having stopped the accused and checking the kattas, which were found containing Gl gland made of brass of Reliance company. He denied the suggestion that they handed over the accused alongwith stolen GL glands to HC Naresh. He denied the suggestion that the police seized the recovered case property after sealing it with the seal of JS. He denied the suggestion that the accused was arrested and his personal search was carried out in his presence. He denied the suggestion that he could identify the accused as he had caught him red handed. He admitted that the seizure memos, arrest memo and personal search memo Ex.PW1/A to Ex.PW1/D respectively bears his signature but stated that he signed the same at the police station at the instance of the police officials. He denied the suggestion that he had signed the documents during the investigation conducted in his presence. He denied the suggestion that he signed the aforesaid documents after going through the same. The witness denied having given the statement Mark X to the police.
7. During cross examination by the defence counsel, he admitted that he was no State vs Ajay Kumar & etc. U/s. 379/411 IPC FIR No.1035/06 3 /8 longer working in the said company. He denied the suggestion that he was deposing falsely.
8. PW-2 HC Prakash Chand was posted as duty officer on 28.09.2006. He had recorded the FIR no.1035/06 on basis of the rukka sent by ASI Jai Singh through HC Naresh. Carbon copy of the FIR is Ex.PW2/A and endorsement of the witness on the rukka is Ex.PW2/B. He was not cross examined by the accused despite opportunity.
9. PW-3 SI Naresh Kumar deposed that on 28.09.2006 at about 3.10 pm he alongwith ASI Jai Singh were on patrolling duty at A-1 Block, Paschim Vihar near Reliance Store. The guard of Reliance Store had beckoned them and handed over to them the accused Ajay Kumar alongwith one motorcycle bearing no. DL-4SBH-0581 and two kattas containing brass (pital) glands. ASI Jai Singh prepared a rukka and directed to him to get the FIR registered. After the FIR was registered, he returned to the spot alongwith original rukka and copy of FIR and handed it over to the IO. IO seized the case property and the motorcycle. IO arrested the accused and conducted his personal search. Thereafter they returned to the PS and deposited the case property in the malkhana. IO recorded his statement. The case property i.e one katta sealed with an illegible seal and in torn condition were produced. It was observed that Brass glands could be easily taken out and put back in the katta without opening its mouth. The case property is Ex.P1.
10.During cross examination, PW-3 stated that they left the police station for State vs Ajay Kumar & etc. U/s. 379/411 IPC FIR No.1035/06 4 /8 patrolling at about 2.50 pm. He had not made any departure entry. They were patrolling on foot. Only two guards were present at the spot. IO had recorded statement of the guard at the spot. IO prepared the documents at the spot. He denied the suggestion that nothing incriminating was recovered from the possession of the accused or that accused has been falsely implicated in the present case or that recovery is a planted one.
11.PW-4 ASI Jai Singh deposed that on 28.09.2006 he and HC Naresh were on patrolling in the area of A Block, Paschim Vihar. When they reached near Reliance Store, two persons namely Prabhat and Krishan Kumar met them at the main gate of the said store. Complainant told him that accused Ajay was carrying some articles from the store on his motorcycle. The accused, the two plastic kattas and the motorcycle were handed over to him. He checked the said kattas and found brass glands in the same. He recorded the statement of complainant which is Ex.PW4/A. Thereafter he prepared a rukka and handed over the same to HC Naresh for registration of FIR. He prepared the site plan at the instance of the complainant which is Ex.PW4/B. He seized the kattas and motorcycle and arrested the accused. He also recorded the disclosure statement of the accused which is Ex.PW4/C. After completing the investigation, he filed the charge-sheet in the Hon'ble court.
12.During cross examination, PW-4 stated that the said incident took place at about 3.00 pm. He had left the PS at about 10.00-11.00 am on his scooter. He denied that public persons were frequenting the spot from where the accused State vs Ajay Kumar & etc. U/s. 379/411 IPC FIR No.1035/06 5 /8 was arrested. He had requested 3-4 public persons to join the investigation but none agreed. He admitted that he had not checked the stock register from the complainant nor had he collected any documents regarding ownership of the case property. He remained at the spot for about 2-2½ hours.
13.After the prosecution evidence was closed, statement of the accused was recorded under Section 313 Cr.P.C. The accused denied all the allegations and pleaded innocence.
14.I have heard the submissions made by Learned Counsel for accused and by Learned APP for State and perused the record carefully.
15.The Counsel for the accused has submitted that the prosecution has not been able to prove its case beyond reasonable doubts. The eye witness i.e PW-1 Krishan Kumar has failed to support the prosecution story and the complainant Prabhat Kumar Sharma has not been examined at all.
16.Per contra, the APP has submitted that the prosecution has proved the recovery of stolen articles and accused is liable to be convicted.
17.Let us first discuss the relevant provisions of law for the purpose of the present case. The essential ingredients to prove an offence under Section 379 IPC are as follows:-
1. Accused had taken the movable property dishonestly.
2. Property was taken out of the possession of complainant.
3. Property was taken out without consent of complainant.
4. The property was moved to such taking.
State vs Ajay Kumar & etc. U/s. 379/411 IPC FIR No.1035/06 6 /8
18. The essential ingredients to prove an offence under Section 411 IPC are:-
1. The property should be in possession of the accused.
2. Such property should be 'stolen property' i.e it should have been transferred by theft, extortion or robbery, or which has been criminally misappropriated.
3. The accused received the same knowing or having reason to believe the same to be stolen property.
19.In the case at hand, complainant Prabhat Kumar Sharma has remained unserved even through DCP concerned. Accordingly, his name was dropped from the list of witnesses vide order dated 25.02.2015. The second eye witness i.e PW-1 Krishan Kumar had failed to support the story of the prosecution and was declared to be hostile by the prosecution. He has failed to identify the accused and the case property and has absolved the accused of all charges.
20.It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reason doubt in the prosecution case entitles the accused to acquittal.
State vs Ajay Kumar & etc. U/s. 379/411 IPC FIR No.1035/06 7 /8
21.In view of the above discussion, the court is of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt. Thus, the accused is entitled to be acquitted. Accordingly, accused Ajay Kumar s/o Mehar Singh is acquitted of charge under Section 379/411 Indian Penal Code.
22.As per Section 437-A Cr.P.C, the accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/- with one surety of like amount. ANNOUNCED IN THE OPEN COURT ON 10.06.2016 (SAUMYA CHAUHAN) MM-07 (West) THC, Delhi State vs Ajay Kumar & etc. U/s. 379/411 IPC FIR No.1035/06 8 /8