IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS RAMENDER SINGH ETC. F.I.R. No: 76/01 U/[SECTION] [ACT] P.S. Defence Colony Date of Institution of Case : 27.10.2004 Judgment Reserved for : 07.02.2013 Date of Judgment : 07.02.2013 JUDGMENT:
(a) The serial no. of the case : 102/2/2001 (b) The date of commission of offence : 11.09.2001 (c) The name of complainant : Sh. [ENTITY] s/o Sh. [ENTITY], R/o 16, DDA Flats, Lado Sarai, New Delhi.
(d) The name, parentage, of accused : 1. [ENTITY] s/o [ENTITY], R/o Vill.
Modi, P.s. Salempur, Disttl.
[ENTITY], UP
2. [ENTITY] s/o [ENTITY], R/o Vill.
Kauhara, P.s. Ahmed Nagar, Distt. [ENTITY], UP Present Address : As above. FIR No. [PRECEDENT]. 1/6 (e) The offence complained of : U/[SECTION] [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Both Accused persons Acquitted (h) The date of such order : 07.02.2013
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 11.09.2001 at about 05.15 p.m. at Jahangira Park bypass Chowk Shikar Pur, [ENTITY] accused [ENTITY] and [ENTITY] in furtherance of their common intention were found in possession of a stolen vehicle i.e. Tata Sumo bearing registration number DL3CJ5472 which they received/retained knowingly or having reasons to believe that it to be a stolen property as theft of same had taken place on
03.02.2001 from 486A, Hardev Puri. Furthermore at the time of recovery they were using a false number plate i.e. UP81E 3862 as genuine on the above vehicle and thus thereby accused persons committed offence punishable u/[SECTION] [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] [ACT] accused was supplied the documents. Thereafter vide orders dated 13.09.2006 charge u/[SECTION] was framed against the accused persons to which they pleaded not guilty and claimed trial.
FIR No. [PRECEDENT]. 2/6
3. In order to prove the charges against the accused, prosecution examined one witness so far.
A brief scrutiny of the evidence recorded in the matter is as under:
4. PW1 SI [ENTITY] deposed that on 03.02.2001 he was posted as DO at PS Defence Colony and on that day on receipt of rukka from Constable [ENTITY] sent by HC [ENTITY] he recorded FIR No. 71/01 vide Ex. PW1/A and his endorsement on the rukka is Ex. PW1/B.
5. This so far is the prosecution evidence in the matter. Today the matter was listed for PE however no PW was present apart from IO ASI [ENTITY].
6. Record reveals that prosecution proposed to examine 11 witnesses in all which included complainant [ENTITY] at whose instance/on whose complaint the present FIR was registered at PS Defence Colony. However he could not be brought to the witness box despite ample/repeated opportunities. Though charge was framed in the year 2006 and repeated processes were issued against him however prosecution could not procure his presence during the trial. As per report on processes issued against the said witness/complainant which were got executed through DCP/SHO/IO he remained not traceable. Today separate statement of ASI [ENTITY] regarding the non traceability of the complainant has been recorded.
FIR No. [PRECEDENT]. 3/6
7. Complainant [ENTITY] was the star/material prosecution witness and his deposition was sine qua non for establishing the charges against the accused/ bringing on surface the exact facts and circumstances of the case and the genesis of incident dated 03.02.2001. His non availability seriously prejudiced the prosecution case and in fact proved fatal and sounded death knell for the prosecution story.
8. Apart from non availability of the complainant the prosecution also failed to bring on record the case property i.e. stolen Tata Sumo car. IO vide his separate statement today stated that even the vehicle is not traceable as the same was released on superdari and presently its whereabouts are not known. Non production of the case property is a further missing link in the prosecution case which creates further doubt upon the prosecution story. Apart from the above there are other loopholes/lacuna in the prosecution story. For example as per the allegations the vehicle was stolen from the outside of house no. 486A, Hardev Puri. It is alleged that the complainant had parked his vehicle there at 07.45 and after 10 minutes i.e. at 07.55 when he came back to his vehicle he could not find the same. If these indeed are the sequence of events then at the time when the IO recorded the complaint/FIR was registered he ought to have seized the original keys of the car from the complainant but he did not do so for reasons best known to him. Non seizure of the keys of the car further casts doubt upon the prosecution story. In fact not only did the IO seize the car keys during the course of investigation he did not even bother to seize any document FIR No. [PRECEDENT]. 4/6 of the car in question to connect the same with the complainant. All these inconsistencies coupled with the absence of public witnesses in the investigation/at the time of the recovery creates grave doubt upon the prosecution story.
9. Accordingly, no purpose shall be served with further continuation of trial. Hence PE stands closed and recording of SA is dispensed with as same shall be an empty formality as prosecution could not bring any worthy incriminating material on record against the accused persons.
10. 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]).
11. 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 [PRECEDENT] 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.
12. Prosecution has failed to discharge its onus. Accordingly, all accused persons are entitled to acquittal.
13. I order accordingly.
Announced in the open ([ENTITY]) Court on 07.02.2013 [PRECEDENT] 07.02.2013 Pr: Ld. APP for state. Both accused are on bail present today.
IO ASI [ENTITY] is present along with his report regarding the process as was issued against the complainant and the case property Vide my separate judgment announced today in the open court, accused persons have 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 accepted. File be consigned to Record Room.
([ENTITY]) MM (SD)/Delhi 07.02.2013 FIR No. [PRECEDENT]. 7/6