Delhi District Court
State vs . Raja on 16 April, 2022
FIR No. 368/2007
State Vs. Raja
PS Vivek Vihar
U/s 379/427/34 IPC
IN THE COURT OF VIPLAV DABAS, CHIEF METROPOLITAN MAGISTRATE,
SHAHDARA DISTRICT, KARKARDOOMA COURT, DELHI.
JUDGMENT
(a) Sr. No. of the Case 82663/2016
b) Date of offence 16.09.2007
(c) Name, Parentage and Raja S/o. Sh. Sohan Pal R/o. Village
address of the accused. Zahid Pur, Hapur Road, PS
Kharkhoda, District Meerut, U.P.
(d) Offence 379/427/34/174-A IPC
(e) Plea of accused Pleaded Not guilty
(f) Final Order Acquitted U/s 379/427/34 IPC
and convicted under Section 174-
A IPC.
(g) Date of Institution 04.03.2011
(h) Date of reserving 16.04.2022
judgment
(i) Date of judgment 16.04.2022
FIR No. 368/2077 PS Vivek Vihar State Vs. Raja Page No.1 of 6
FIR No. 368/2007
State Vs. Raja
PS Vivek Vihar
U/s 379/427/34 IPC
BRIEF FACTS AND REASONS FOR DECISION:-
FACTUAL MATRIX
1. On 16.09.2007, at around 1:30 am, in front of G-54 and B-122, Vivek Vihar, Phae-I, Delhi, within the jurisdiction of PS Vivek Vihar, accused Raja along with co-accused persons Javed, Israr, and Kamal (since not arrested) in furtherance of their common intention had broken the window glasses of a Wagon R Car bearing registration no. DL- 7CD-2877, Indica Car bearing registration no. DL-3C-AC-5472 and Hyundai Accent Car bearing registration no. DL-2C-AD-4218 belonging to Sh. Ashwani Kaushik, Sh. Vipul Bansal and Sh. Gaurav Jain respectively and had also committed theft of Stereos installed in the aforesaid cars belonging to aforesaid complainants. On the basis of the said allegations, present FIR was registered and a charge-sheet for offences punishable u/s 427/379/34 IPC was filed after usual investigation.
COURT PROCEEDINGS
2. The Court took cognizance of the alleged offences and provision of Section 207 Cr.P.C was complied. After hearing arguments, as a prime facie case was made out against the accused Raja for offences punishable u/s 427/379/34 IPC, charge was accordingly framed against him to which accused pleaded not guilty and claimed trail.
3. It is pertinent to mention that the during the trial of the present case accused was declared proclaimed offender vide order dated 28.04.2018 passed by Sh. Ajay Garg, the then Ld. CMM. So, additional charge under Section 174-A IPC was also framed against the accused on 04.04.2022 to which the accused pleaded guilty and did not claim trial for said offence. Thereafter, the matter was proceeded further for Prosecution Evidence.
FIR No. 368/2077 PS Vivek Vihar State Vs. Raja Page No.2 of 6 FIR No. 368/2007 State Vs. Raja PS Vivek Vihar U/s 379/427/34 IPC
4. In order to prove the guilt of the accused u/s 379 & 427 IPC, read with 34 IPC, the prosecution has to prove the following essential ingredients of the said Sections:-
a. Section 379 IPC:- The accused removed the movable property and that he removed it out of the possession of another person without his consent with dishonest intention.
b. Section 427 IPC:- That accused with intent to cause or knowing that he is likely to cause wrongful loss or damage to public property or to any person, caused destruction of any property and such mischief caused loss or damage amounting to not less than Rs. 50.
d. Section 34 IPC :-
i) That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more than one person.
ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
PROSECUTION EVIDENCE
5. To prove its case, prosecution started its evidence with the testimony of prosecution witnesses as per the list.
6. PW-1/Ashwani Kaushik (one of the Complainant) deposed that on 15.09.2017, he parked his vehicle i.e. Wagon R car bearing registration no. DL-7CD-2877 in front of his House No. C-54, Main Road, Vivek Vihar, Delhi. He further deposed that FIR No. 368/2077 PS Vivek Vihar State Vs. Raja Page No.3 of 6 FIR No. 368/2007 State Vs. Raja PS Vivek Vihar U/s 379/427/34 IPC window glass of his vehicle was found broken and car stereo was found missing from the car and that police officials recorded his statement. The case property i.e. Wagon R Car (through photographs) was duly identified by the witness during examination and the same is Ex. P-1 to P-2.
During the cross examination conducted on behalf of accused, PW-1 admitted that he had not seen the accused while committing of aforesaid offence/breaking of window glass of the car and that he cannot identity the accused/person who had broken the window glass of his car and stolen stereo from his car.
7. During the prosecution evidence, it was brought to the notice of this Court by the Ld. Counsel for accused that the complainants/Witnesses namely Gaurav Jain, Nikunj and Vipul are not traceable despite best effort as is apparent from the reports mentioned on the processes issued to the said witnesses through the DCP concerned. It is further stated by the Ld. Counsel for accused that no other addresses of the Complainants / witnesses are available on record on which process can be sent. He further argued that one of complainant/ star witness PW-1/Ashwani Kaushik had not supported the case of prosecution as during cross examination he admitted that he had not seen the accused while committing of aforesaid offence/broking of Window of the Car and that he cannot identify the accused who had broken the window of his car and had stolen stereo from his car. It is submitted that there is no other eye witness of the incident and there is no circumstance available on record to prove that accused had broken the window glass of the cars of the complainants/Owner of Case Properties and also committed theft of Stereos from their cars.
It is further submitted that no fruitful purpose would be served by continuing the prosecution against the accused as remaining witnesses are all police witnesses who are formal in nature and the establishment of identity of the accused as offender beyond all shadows of reasonable doubt which is necessary to bring home the guilt of the accused, can FIR No. 368/2077 PS Vivek Vihar State Vs. Raja Page No.4 of 6 FIR No. 368/2007 State Vs. Raja PS Vivek Vihar U/s 379/427/34 IPC not be proved at all by the remaining prosecution witnesses. So, the prosecution evidence be closed and accused be acquitted.
FINAL ARGUMENTS/DEFENCE OF ACCUSED
8. Submission of Ld. APP for the State and defence Counsel are heard. Record perused.
APPRECIATION OF FACTS/CONTENTIONS/EVIDENCE AND FINDINGS:-
9. Perusal of the record reveals that submissions of the Ld. Counsel for accused are not baseless. Record shows that the complainant/Owner of Case properties/Witnesses namely Gaurav Jain, Nikunj and Vipul are not traceable despite best effort as is apparent from the reports mentioned on the processes issued to the said witnesses through the DCP concerned. No other addresses of the Complainant / Owner of Case Property/witnesses are available on record on which process can be sent. Furthermore, one of complainant/ star witness PW-1/Ashwani Kaushik had not supported the case of prosecution as during cross examination he admitted that he had not seen the accused while breaking the window glass of the Car and that he cannot identify the accused who had broken the window glass of his car and had stolen stereo from his car. Moreover, remaining witnesses are merely formal/ police witnesses who were not witnesses of the incident and had conducted the usual procedural investigation. So, they can neither establish the identity of accused actually involved in alleged offences nor bring any other incriminating circumstance on record to connect the present accused with the alleged offences. Considering the aforesaid observations and that establishment of identity of accused as offender is necessary element for completion of offences u/s 427 & 379 read with 34 IPC, this Court is of the view that no fruitful purpose will be served by continuing the prosecution evidence. Accordingly, the FIR No. 368/2077 PS Vivek Vihar State Vs. Raja Page No.5 of 6 FIR No. 368/2007 State Vs. Raja PS Vivek Vihar U/s 379/427/34 IPC prosecution evidence is closed and recording of statement of accused is also dispensed with as there is no substantially incriminating circumstance available on record.
10. In view of the aforesaid discussion and the present circumstances, as no substantially incriminating material is available on record, accused Raja is hereby acquitted of the charge u/s 427 & 379 read with 34 IPC levelled against him. With respect to the charge under Section 174-A IPC, record shows that accused has voluntarily admitted all the allegations levelled by the prosecution for the offence punishable under Section 174-A IPC. Accordingly, the accused Raja is hereby convicted for the offence punishable under Section 174-A IPC. After hearing arguments on the point of sentence, convict is sentenced to simple imprisonment for a period already undergone and to pay fine of Rs. 3,000/-. Fine not paid.
11. Time granted to the accused for compliance of Section 437-A Cr.P.C and payment of fine, as requested.
12. Separate parcha/ miscellaneous file be put up before the court with bail bonds under Section 437-A Cr.P.C as well as for deposition of fine of Rs. 3,000/- imposed upon the convict and for further proceedings as per law on 18.04.2022. Copy of this judgment be also annexed with the parcha.
13. File be consigned to Record Room after due compliance.
Digitally signed by VIPLAV VIPLAV DABASS
Location: Shahdara District,
Court NO.59, Karkardooma
Announced in the Open Court
DABASS
(VIPLAV DABAS)
Courts, Delhi
Date: 2022.04.16 16:06:06
+0530
on 16.04.2022 Chief Metropolitan Magistrate,
Shahdara District, Karkardooma
Courts, Delhi 16.04.2022
FIR No. 368/2077 PS Vivek Vihar State Vs. Raja Page No.6 of 6