IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS HARI OM AND ORS. F.I.R. No: 731/00 U/[SECTION] [ACT] P.S. Defence Colony Date of Institution of Case : 11.10.2001 Judgment Reserved for : 13.07.2012 Date of Judgment : 13.07.2012 JUDGMENT:
(a) The serial no. of the case : 151/2/01 (b) The date of commission of offence : 1/2102000 (c) The name of complainant : Sh. [ENTITY], R/o 119, Gautam Nagar, New Delhi.
(d) The name, parentage, of accused : 1. [ENTITY] s/o Sh.
[ENTITY], R/o O14, Baani Vihar, Uttam Nagar, New Delhi.
2. [ENTITY] s/o late Sh.
[ENTITY], R/o House no.
225, Hastsal Vill. P.S. FIR No. 731/00 State Vs.[ENTITY] and ors 1/11 Vikaspuri, New Delhi. 3. [ENTITY] s/o Sh. [ENTITY], vill. [ENTITY], P.S. Narnaul, Haryana. Present Address : As above (e) The offence complained of : U/[SECTION] [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : All three Accused Acquitted (h) The date of such order : 13.07.2012 Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on the intervening night of 1/2102000 at room no. 199, [ENTITY], Gautam Nagar, New Delhi within the jurisdiction of police station Defence Colony all three accused persons in furtherance of their common intention committed lurking house tress pass by night in order to commit an offence of theft and they committed theft of a colour TV of BPL of 25" from the room of [ENTITY] in the [ENTITY] and thus thereby accused persons committed an offence punishable under [SECTION] [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] FIR No. 731/00 State Vs.[ENTITY] and ors 2/11 [ACT] accused persons were supplied the documents. Thereafter vide order dated 21.04.2004 charge u/[SECTION] [ACT] was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined two witnesses so far.
A brief scrutiny of the evidence recorded in the matter is as under:
4. PW1 SI [ENTITY] deposed that on 02.10.2000 he was posted as DO at PS Defence Colony and on that day he recorded FIR No. 731/00 vide Ex. PW1/A and made endorsement on the rukka vide Ex. PW1/B.
5. PW2 [ENTITY] deposed that in the year 2000 he was residing with his Guruji at Gautam Nagar and his guruji had gone to Bombay and on the date of incident he was sleeping in the varandah and in the morning at about 04.00 a.m, he found that TV BPL of 25 inches was not in the room of guruji and the same had been stolen by someone. He deposed that he called the police and police came there and recorded his statement Ex. PW2/A. He deposed that after about one month he received information from PS Defence Colony that the TV of his guruji had been recovered. He deposed that he went to police station and identified the TV and he received the same on superdari. He deposed that it was FIR No. 731/00 State Vs.[ENTITY] and ors 3/11 the same TV which was stolen by someone and later on recovered by the police. The TV is Ex. P1.
6. This witness was crossexamined by the Ld. APP and during his cross examination he admitted that he made his complaint on 02.10.2000. He admitted that IO prepared the site plan at his instance. He admitted that documents Ex. PW2/B arrest memo of accused [ENTITY], arrest memo of accused [ENTITY] Ex. PW2/C and arrest memo of accused [ENTITY] is Ex. PW2/D. He stated that personal search memos of accused [ENTITY], [ENTITY] and [ENTITY] are Ex. PW2/E, F and G respectively, seizure memo of TV is Ex. PW2/H, seizure memo of remort is Ex. PW2/I, disclosure statements of all accused are Ex. PW2/J, K and L, pointing out memos are Ex. PW2/M and N bears his signatures. He stated that he has not given any supplementary statement Mark X to the IO. Thereafter statement Mark X is read over to the witness to which he denied having made any such statement to the police. He denied the suggestion that he heard talking taking place between [ENTITY] and [ENTITY] regarding selling of alleged stolen TV in the sum of Rs. 7000/. He denied the suggestion that the alleged TV was got recovered by all the three accused persons present in the court from house no. O14, Bali Bihar, Uttam Nagar, Delhi. He denied the suggestion that he has been won over by the accused persons as such he was deposing falsely in order to save them. He FIR No. 731/00 State Vs.[ENTITY] and ors 4/11 admitted that the remote of the TV was also stolen but he denied the suggestion that the same was recovered from the room of accused [ENTITY] under pillow on the bed. He denied the suggestion that all the accused persons were arrested by the IO in his presence and their personal searches were taken and they also made their disclosure statement voluntarily. He denied the suggestion that he has signed all the documents as exhibited above after reading over the same. He voluntarily added that he has signed all the documents at the instance of the police.
7. This so far is the prosecution evidence in the matter. Today the matter was listed for PE however no PW was present.
8. Record reveals that prosecution proposed to examine 7 witnesses in all which included complainant [ENTITY] and public witness [ENTITY]. As far as witness [ENTITY] is concerned he could not be brought to the witness box by the prosecution despite ample opportunities. The charge in the present matter in the year 2004 and since then repeated processes were issued against PW [ENTITY] however prosecution could not procure his presence during the trial. As per report on processes issued against the said witness since the framing of charge he remained not traceable. The processes were got executed through DCP/SHO/IO and detailed report was also FIR No. 731/00 State Vs.[ENTITY] and ors 5/11 called vide orders dated 20.01.2012, 09.12.2011, 20.10.2011, 08.09.2011 etc. In fact witness [ENTITY] is son of accused [ENTITY] and vide proceedings dated 20.01.2012 Smt. [ENTITY] wife of witness [ENTITY] made a statement on oath that her husband drowned while taking bath in Ganga river and his body could not be recovered.
9. As far as the complainant is concerned as it is evident from his deposition he turned hostile and did not support the prosecution story on material particulars. The witness during his testimony disowned his statement Mark X and categorically denied the recovery of stolen TV and its remote from the accused persons. The relevant portion of his deposition is reproduced hereunder:
" It is wrong to suggest that I heard talking taking place between [ENTITY] and [ENTITY] regarding selling of alleged stolen TV in the sum of Rs. 7000/. It is also wrong to suggest that the alleged TV was got recovered by all the three accused persons present in the court from house no. O14, Bali Bihar, Uttam Nagar, Delhi "
" It is correct that the remote of the TV was also stolen but it is wrong to suggest that the same was recovered from the room of accused [ENTITY] under the pillo on the bed "
" It is wrong to suggest that all the accused persons were arrested by the IO in my presence and their personal searches were taken FIR No. 731/00 State Vs.[ENTITY] and ors 6/11 and they also made their disclosure statements voluntarily. It is also wrong to suggest that I have signed all the documents as exhibited about after reading over the same. Vol. I have signed all the documents at the instance of the police."
10. Hence PW2 i.e. complainant [ENTITY] did not support the prosecution story on the point of recovery of the stolen articles from the accused persons thereby rendering the entire recovery proceedings unreliable and untrustworthy. Once serious doubts were created about the recover y of the stolen articles i.e. TV and remote from the accused persons by the sole independent person who is none another than the complainant, in my opinion the prosecution story was lend a fatal blow. PW2 who was the star/material witness and his deposition was sine qua non for establishing the charges against the accused persons and his turning hostile proved fatal and sounded death knell for the prosecution case.
11. Apart from PW2 turning hostile the prosecution story suffered from various other loopholes/contradictions. They are discussed hereunder:
12. Firstly, though the accused persons were sent to face trial for having committed offence u/[SECTION] r/[SECTION] [ACT] however admittedly there is no eye witness of the incident of tress pass or of theft i.e. the prosecution could not FIR No. 731/00 State Vs.[ENTITY] and ors 7/11 bring on record any witness who could prove that he had seen the accused persons committing tress pass by entering the premises in question and removing the TV and the remote. In the absence of an eye witness the prosecution cannot even distantly/remotely establish a case either u/[SECTION] or [SECTION] [ACT]. Moreover, as discussed above, as far as the recovery is concerned the same was rendered highly doubtful in view of the deposition of PW2.
13. Secondly, I have gone through complaint i.e. Ex. PW2/A which had formed the basis of present FIR. In the complaint name of the accused persons does not appear anywhere and in fact the complainant did not lay any needle of suspicion on anyone leave apart the accused persons.
14. Thirdly, the TV allegedly belonged to the [ENTITY] of the [ENTITY]. However the [ENTITY] was never joined in the investigation. Being the owner the TV/being the occupier of the room from where the TV was stolen he was a material witness and ought to have been joined in the investigation. Failure on the part of the IO to do so is unjustified and not explained in the charge sheet by the IO.
15. Fourthly, not only the [ENTITY] was not joined in the investigation but even the documents pertaining to the alleged stolen TV i.e. bills, receipts etc. were not seized during the investigation. The documents were essential so as to connect FIR No. 731/00 State Vs.[ENTITY] and ors 8/11 the stolen property to the complainant party.
16. Fifthly, the TV and the remote are shown to have been recovered from house no. O14, Vani Vihar, Uttam Nagar, Delhi. However the IO has not placed any document on record to connect the accused persons with the above house/premises i.e. whether the accused persons owned the same or were a tenant therein. No statement of the owner of the premises or the neighborers has been recorded as they were not joined in the investigation. Failure on the part of the IO to do so casts further doubt upon the entire recovery proceedings.
17. Sixthly, IO of the case i.e. [ENTITY] expired during the trial (on 08.11.2007 as reported by SHO P.S. Defence Colony) which further weakened the prosecution story.
18. Hence further continuation of trial shall be a exercise in futility with no prospect of a result in favour of the prosecution. SA is also dispensed with as prosecution could not bring any worthy incriminating material on record against the accused persons.
19. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true"
FIR No. 731/00 State Vs.[ENTITY] and ors 9/11 and "must be true".
20. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( [PRECEDENT]).
21. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in [PRECEDENT] that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In [PRECEDENT] it was again held that in criminal cases burden is always is on prosecution and never shifts. In [PRECEDENT] and Jarnail Singh v. State of Punjab, FIR No. 731/00 State Vs.[ENTITY] and ors 10/11 (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. ([PRECEDENT] relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
22. Prosecution has failed to discharge its onus. Accordingly, all three accused persons entitled to acquittal.
23. I order accordingly.
Announced in the open ([ENTITY]) Court on 13.07.2012 MM (SD)/Delhi FIR No. 731/00 State Vs.[ENTITY] and ors 11/11 F.I.R. No: 731/00 U/[SECTION] [ACT] P.S. Defence Colony 13.07.2012 Pr: Ld. APP for state. All three accused persons present on bail today. No PW is present.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Fresh bail bonds u/[SECTION] [ACT] furnished, considered and accpeted. File be consigned to Record Room.
([ENTITY]) MM (SD)/Delhi 13.07.2012 FIR No. 731/00 State Vs.[ENTITY] and ors 12/11