Delhi District Court
State vs Sanjay Kumar on 17 April, 2018
State v. Sanjay Kumar
IN THE COURT OF SH. VAIBHAV MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Sanjay Kumar
FIR No. 26/11
PS Mehrauli
U/s- 379 IPC
JUDGMENT
1 Serial No. of the case : 2037834/2016
2 Date of commission : 14.10.2010
3 Date of institution of the case : 05.04.2011
4 Name of complainant : Sh. Mohan Singh
5 Name of accused : Sanjay Kumar S/o Lt. Sh.
Laxmi Narain, R/o. Village
Anangpur Dairy, Sector-37,
Faridabad, Haryana
(Prakash Chand Pardhan
Ka Makaan)
6 Offence complained of : U/s. 379 IPC
7 Plea of accused : Pleaded not guilty
8 Arguments heard on : 09.04.2018
9 Final order : Acquitted
10 Date of judgment : 17.04.2018
BRIEF FACTS AND REASONS FOR DECISION
1 The brief facts of the case of prosecution are that on 14.10.2010,
between 02.05 pm and 06.30 p.m., at H. No. 298, Khasra No. 166, FIR No. 26/2011, PS: Mehrauli 1 of 11 State v. Sanjay Kumar
Rajpur Khurd, New Delhi, accused Sanjay Kumar dishonestly took away DRU of Airtel from the possession of its owner without its consent. Accordingly, the FIR u/s. 379 IPC was registered.
CHARGE 2 Prima facie case of commission of offence under Section 379 IPC was made out against accused Sanjay Kumar. Charge u/s. 379 IPC was framed upon the accused on 18.02.2013. He pleaded not guilty and claimed trial.
ADMISSION U/S 294 Cr.PC 3 During the course of evidence, statement of accused was recorded under section 294 Cr.P.C. on 20.11.2017 wherein he did not dispute the genuineness of FIR bearing No. 26/2011 dated 17.01.2011 and admitted the same as Ex.A-1.
EVIDENCE LED BY THE PROSECUTION 4 The prosecution has examined six witnesses in all.
PROSECUTION WITNESS
Srl. PW Name Designation
No. Nos.
1 PW-1 Sh. Mohan Singh Complainant
2 PW-2 Sh. Satpal Technician in Shivam
Infocom Pvt. Ltd.
FIR No. 26/2011, PS: Mehrauli 2 of 11
State v. Sanjay Kumar
3 PW-3 Sh. Bhupender Singh (Rtd. Chief Security Officer
Captain)
4 PW-4 Sh. Munish Kumar Singla Ericson Airtel Vendor
5 PW-5 Retd. HC Roop Ram IO of the case
6 PW-6 Ct. Ramavtar Singh Assisted the IO
5 Prosecution has relied upon the following documents:-
Srl. Exhibited by Contents Exhibits
Nos.
1 PW-1 Sh. Complaint Ex.PW-1/A
Mohan Singh
2 PW-3 Sh. Copy of DRU alarm/door Ex.PW-3/A
Bhupender open
Singh (Retd.
Captain)
3 PW-5 Retd. HC Rukka/Tehrir Ex.PW-5/A
Roop Ram Site Plan Ex.PW-5/B
documents regarding Ex.PW-5/C
closing & opening of the
gate and other mails
Arrest Memo Ex.PW-5/D
Personal Search Memo Ex.PW-5/E
disclosure statement of Ex.PW-5/F
accused Sanjay Kumar
Copy of DRU Bill Ex.PW-5/G
6 PW1 Sh. Mohan Singh deposed that he was working as a
security officer with Indus Tower Ltd. at the relevant time and on 14.10.2010, he was informed by the technician Satpal that one DRU is FIR No. 26/2011, PS: Mehrauli 3 of 11 State v. Sanjay Kumar missing and the matter came to the notice of Engineer Manish as call missing report was received at the site and thereafter, both Manish and Satpal went to visit the site and found one DRU was missing and Satpal informed him about the missing of DRU. PW-1 deposed that he went to the site and perused the record and found that the accused Sanjay Kumar had left the site on 14.10.2010 at about 06:43 pm and DRU missing report was found at about 06:30 pm and so the DRU had been misplaced during the duty hour of accused Sanjay Kumar and matter was reported to the police. PW-1 further deposed that he gave a written complaint to the police regarding missing of DRU, proved as Ex. PW-1/A and stated that at the time of missing of DRU, only the accused was working at site. PW-1 correctly identified the accused in the court.
7 PW-2 Sh. Satpal deposed that he was working as a technician with Shivam Infocom Pvt. Ltd. and on 14.10.2010, the accused namely Sanjay Kumar came to work at the site and the key of the site was handed over to the accused Sanjay by him and stated that the accused Sanjay Kumar worked at the site till 06:45 pm and thereafter, accused informed him that he has finished his work and called him for taking the key of the site but as he was busy at another site, the key of the site was handed over to one technician namely Virender who was working at Andheria Mor. PW-2 further stated that on the next day, he alongwith one Engineer namely Manish who was working with Airtel went to the site and Engineer Manish checked the site from the laptop and one DRU was found missing, which after checking was found missing at 06:30 pm on 14.10.2010 and the door of the site was closed at about 06:43 pm. FIR No. 26/2011, PS: Mehrauli 4 of 11 State v. Sanjay Kumar PW-2 deposed that only accused Sanjay was working at the site at the respective time when the DRU was reported to be missing. PW-2 correctly identified the accused Sanjay Kumar in the court.
8 PW-3 Chief Security Officer Mr. Bhupender Singh (Retd. Captain) deposed that he was working as Chief Security officer in Indus Tower Pvt Ltd. and on 14.10.2010 Sanjay, the Technician of Reliance came to H No 298, Rajpur Khurd to check some instruments over there at around 2:00 pm. and on 15.10.10 at about 12 noon, one Engineer from Airtel came on site and informed that one DOL receiving unit (DRU) was missing. PW-3 stated that the company Indus Tower had directed him to investigate as to how DRU was missing so he collected the alarm of DRU from the office of Airtel, the copy of DRU alarm/door open proved as Ex.PW3/A (colly) (running into four pages) and on the basis of door open record, it was found that Sanjay was the person to close the door at last. PW-3 deposed that accused Sanjay accepted that he has taken the DRU and asked for sometime to return the DRU within 10-12 days but then, Sanjay refused to return DRU and later he was arrested by police.
9 PW-4 Sh. Munish Kumar deposed that on 14.10.2010, he was working with Ericson Airtel vendor and on that day the site server was down so on 15.10.2010, he alongwith Indus Technician, Satpal went to the site i.e. Rajpur Khurd and on reaching there, they found that DRU (electrical equipment) were missing. PW-4 stated that thereafter, he inquired from his Laptop with BTS log as to who was on duty at the FIR No. 26/2011, PS: Mehrauli 5 of 11 State v. Sanjay Kumar relevant time and as per record, he found that at the time of the incident Reliance Technician, Sanjay was on duty at the spot. He correctly identified the accused Sanjay in the present case.
10 PW-5 Retd. HC Roop Ram deposed that on 17.01.2011, he was posted as HC at PS Mehrauli and on that day, complainant Mohan Singh came to PS and handed over him a complaint regarding DRU theft in tower installed by Indus Tower Company at 298, Rajpur Khurd, New Delhi and on the basis of said complaint, he had prepared rukka/tehrir, which proved as Ex.PW-5/A after which, he got registered the present FIR. PW-5 stated that he alongwith Ct. Ram Avtar went to the spot and prepared the site plan at the instance of complainant Mohan Singh, which stands proved as Ex.PW-5/B and stated that Captain Bhupender Singh was also present at the spot, who produced documents regarding the closing and opening of the gate and other mails and he seized the same vide memo Ex.PW-5/C. PW-5 further deposed that Satpal (PW-2) was also present at the spot and he enquired from him and was informed that the keys were handed over to accused Sanjay at the time of incident and other things, after which, he recorded the statement of Satpal and later arrested the accused Sanjay vide memo Ex.PW -5/D and conducted his personal search vide memo Ex.PW-5/E and also recorded his disclosure statement Ex.PW-5/F. PW-5 then stated that PW-3 Sh. Bhupender Singh produced the copy of DRU Bill and he seized the same vide memo Ex.PW-5/G and also recorded the statements of witnesses and searched for the stolen property but the same could not be recovered. PW-5 correctly identified the accused in FIR No. 26/2011, PS: Mehrauli 6 of 11 State v. Sanjay Kumar the court.
11 PW-6 Ct. Ramavtar Singh deposed that on 17.01.2011, he was posted at PS Mehrauli and on that day, he joined investigation of the present case with IO/HC Roop Ram. PW-6 deposed on the same lines as PW-5.
12 Thereafter, PE was closed on 12.03.2018.
EXAMINATION OF ACCUSED U/S 313 Cr.P.C.
13 Statement of accused u/s 313 Cr.PC was recorded on 27.03.2018. He opted not to lead evidence in his defence and the matter was listed for final arguments on 09.04.2018.
LEGAL PROVISIONS 14 Section 378 IPC defines theft as :- whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Explanation 1 - A thing so long as it is attached to the earth, no being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
FIR No. 26/2011, PS: Mehrauli 7 of 11 State v. Sanjay Kumar Explanation 2 - A moving effected by the same act which affects the severance may be a theft. Explanation 3 - A person is said to cause a thing to move by removing
an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4- A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5- The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.
Section 379 IPC defines 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.
FINAL ARGUMENTS 15 Ld. APP for the State argued that the testimony of prosecution witnesses are consistent and corroborate each other and are sufficient to seal the case of the prosecution and therefore, the accused is liable to be convicted.
FIR No. 26/2011, PS: Mehrauli 8 of 11
State v. Sanjay Kumar
The counsel for the accused argued that the testimony of the
prosecution witnesses are not sufficient to convict the accused as none of the prosecution witnesses saw the accused committing the offence and therefore, the accused should be given the benefit of doubt as the prosecution has failed to discharge the burden of proof that lay on them.
COURT OBSERVATIONS 16 I have considered the submissions of Ld. APP for the State and of ld. Defence counsel. I have also gone through the evidence on record very carefully and after assessing it the court makes the following observations:
(a) The accused has been charged for the offence of theft U/s. 379 IPC. In order to convict the accused U/s. 379 IPC, the prosecution has to fulfill the following ingredients:
(i) that the property in question is movable property;
(ii) that such property was in the possession of a person;
(iii) that the accused moved such property whilst in the prosecution of that person ;
(iv) that he did so without the consent of that person;
(v) that he did so in order to take the same out of the possession of that person;
(vi) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
FIR No. 26/2011, PS: Mehrauli 9 of 11 State v. Sanjay Kumar (b) The prosecution must prove that the accused took the movable
property from the possession of another with dishonest intention.
Intention is the gist of the offence. It is the intention of the taker which must determine whether the taking or moving of a thing is theft. The intention to take dishonestly exists when the taker intends to cause wrongful gain to one person or wrongful loss to another person.
The intention to take dishonestly must exist at the time of the moving of the property. This is known as animus furandi. If the act done is not done animo furandi, it will not amount to theft.
(c) In the present case, no dishonest intention can be attributed to the accused Sanjay. Moreover, not even a single prosecution witness saw the accused taking the DRU, let alone taking it with dishonest intention.
(d) The prosecution has examined six witnesses. However, none of the witnesses saw the accused taking or carrying the DRU from the site. Nothing was recovered from the possession of the accused. No CC TV Cameras were installed at the site, which could have linked the accused with the offence in question.
(e) The prosecution witnesses have only stated that accused Sanjay Kumar was the last person at the site before the missing of the DRU was reported. This alone is not sufficient to prove the guilty of accused Sanjay Kumar.
(f) The prosecution has not been able to established even the first FIR No. 26/2011, PS: Mehrauli 10 of 11 State v. Sanjay Kumar
ingredient of theft i.e. taking of movable property. Therefore, this Court is of the opinion that the prosecution has miserably failed to prove the guilty of the accused beyond doubt.
17 Therefore the initial burden of proof was on the prosecution that the accused had committed the offence. The prosecution has failed to discharge that burden in light of testimony of prosecution witnesses. For these reasons this court is of the view that prosecution has failed to prove guilt of accused Sanjay Kumar beyond reasonable doubt and so acquits the accused under section 379 IPC.
18 Accused Sanjay is directed to furnish bail bonds and surety bonds u/s 437-A Cr.PC.
Announced in the open (VAIBHAV MEHTA)
court on 17.04.2018 MM-5 (South), Saket Courts
New Delhi
FIR No. 26/2011, PS: Mehrauli 11 of 11