IN THE COURT OF MS. [ENTITY] METROPOLITAN MAGISTERATE01, SOUTH, SAKET COURT State v. [ENTITY] FIR No.81/09 PS SJ Enclave U/[SECTION] [ACT] JUDGMENT
Date of Institution : 22.02.2010 Date of commission of offence : 23/24.12.2009 Name of the complainant : [ENTITY] Name & address of the accused : [ENTITY] S/o Sh.Babu R/o H. No.38, Gali No.1, Vishnu Enclave, Govindpuram, Ghaziabad, Uttar Pradesh Offence complained of : 379/411 [ACT] Plea of accused : Pleaded not guilty Final Order : Acquitted Date of reserve for judgment : 30.03.2013 Date of announcing of judgment : 06.04.2013 Briefly stated the facts of the case are :
1. The story of prosecution in the intervening period of 23/24/12.2009 pen drive of complainant [ENTITY] was stolen dishonestly from his possession without his consent and the same was later on found State v. [ENTITY] Page 1 FIR No.81/09 PS SJ Enclave Judgment in the possession of accused [ENTITY] on 01.01.2010.
2. The FIR in the present case was registered u/[SECTION] [ACT]. During investigation, the site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completion of investigation, challan was filed before the court.
3. Arguments were heard on charge. Prima facie charge u/[SECTION] [ACT] or in [SECTION] [ACT] was framed against the accused on 19.11.2010 to which accused pleaded not guilty and claimed trial.
4. To prove its case the prosecution has examined twelve witnesses as under :
(i) PW1 [ENTITY] was complainant who deposed that on 24.12.2009 at around 4.15 am he heard the alarm system of his car bearing no.DL8CK7239. He got the keys to balcony and saw white car going away. He switched off the alarm of his car and went to sleep. In the morning car cleaner informed him that left hand side window has been broken and stereo system of Pioneer make model KEH 8950 had been stolen. He made complaint to the police. Police came and inspected the site.
The car stereo could not be recovered.
In his cross examination by Ld. Defence counsel it is stated by witness that cleaner informed him about the theft in the morning at State v. [ENTITY] Page 2 FIR No.81/09 PS SJ Enclave Judgment 7.15 am.
(ii) PW2 Smt. [ENTITY] deposed that on 24.12.2009 she found that the window of her car bearing no.DL3CBH0813 was found broken and stereo system of Kenwood, Pen Drive (black colour) and other accessories had been stolen. She made a complaint to the SHO. Police came and inspected the site.
In her cross examination by ld. Defence counsel it is stated by witness that she had not seen the accused committing the theft.
(iii) PW3 [ENTITY] deposed before the court that on 24.12.2009 he found that the window of his cars bearing no.DL4CAE2062 and WB02K1433 were found broken and accessories of the car as per seizure memo Ex.PW3/A had been stolen. He made a complaint to the police. Police came and inspected the site.
Accused did not prefer to cross examine the witness.
(iv) PW4 Ct. [ENTITY] deposed before the court that on 24.12.2009 upon receipt of DD No.6A he along with HC [ENTITY] reached at the spot where [ENTITY], [ENTITY] and [ENTITY] met them and IO recorded their statements/complaints and returned back to PS. Two other persons namely [ENTITY] and [ENTITY] also State v. [ENTITY] Page 3 FIR No.81/09 PS SJ Enclave Judgment came at PS and gave their written statement. IO prepared the rukka and got the FIR registered. IO recorded his statement and he was discharged.
In his cross examination by ld. Defence counsel it is stated by witness that he returned back at PS at 12.30 pm. He saw the broken window glasses at the spot. It is admitted by witness that none of the complainant knows the exact time of theft. The two other persons reached at PS after five minutes of his entry.
(v) PW5 [ENTITY] deposed before the court that on 24.12.2009 upon receipt of DD No.6A he along with Ct. [ENTITY] reached at the spot where [ENTITY], [ENTITY] and [ENTITY] met them and he recorded their statements/complaints and returned back to PS. Two other persons namely [ENTITY] and [ENTITY] also came at PS and gave their written statement. He prepared the rukka and got the FIR registered. Further investigation of the case was marked to [ENTITY].
In his cross examination by ld. Defence counsel it is stated by witness that DD was received at about 6 am. He left the spot at about 12.15 pm. It is stated by witness that he saw the broken window glasses. It is admitted by witness that none of the complainant knows the exact time of theft.
(vi) PW6 ASI [ENTITY] deposed that on 17.12.2009 was arrested State v. [ENTITY] Page 4 FIR No.81/09 PS SJ Enclave Judgment under case FIR No.431/09 PS Hauz Khas by IO SI [ENTITY]. He along with Ct.[ENTITY] joined the investigation. On interrogation accused disclosed that he had stolen one pen drive from the area of Green Park, SJ Enclave. His disclosure statement was recorded. Thereafter, accused got recovered the said Pen Drive from a car bearing no. DL4CAC2639 parked near his house.
In his cross examination by ld. Defence counsel it is stated by witness that he did not remember whether there were 18 FIR's pending against the accused at PS Hauz Khas u/[SECTION] [ACT]. It is denied that accused was falsely implicated in the present case.
(vii) PW7 was Inspector [ENTITY] who deposed that on 28.12.2009 accused [ENTITY] was arrested by him in case FIR No.431/09 PS Hauz Khas. The disclosure of the accused was recorded. He admitted the involvement in theft committed at SJ Enclave. Later on 4GB pen drive of Kingston was got recovered by accused from the car parked at his residence at UP. Same was seized and PC remand of the accused in FIR No.431/09 was obtained. The concerned PS was informed. Case property was deposited in malkhana. Photocopy of disclosure statement and seizure memo was handed over in the present case.
In his cross examination by ld. Defence counsel it is stated by witness that he did not remember the exact time of arrest of accused. The accused was arrested upon the secret information by State v. [ENTITY] Page 5 FIR No.81/09 PS SJ Enclave Judgment secret informer. [ENTITY], Ct. [ENTITY], Ct. [ENTITY] and HC [ENTITY] were accompanying him. No public person was present at the time of arrest of accused. It is admitted that the place of arrest was a residential area.
(viii) PW8 Ct. [ENTITY] deposed before the court that on 28.12.2009 accused was arrested by SI [ENTITY] in case bearing FIR No.431/09 PS Hauz Khas. Disclosure of accused was recorded. Accused admitted his involvement in theft of stolen pen drive from the area of Green Park, SJ Enclave. Later on, pen drive was got recovered by accused. IO seized the pen drive. Concerned PS was informed regarding the recovery. IO of the present case recorded his statement.
In his cross examination by ld. Defence counsel it is stated by witness that no public person was present at the time of arrest of accused. IO had called the public persons to join the investigation but none agreed.
(ix) PW9 ASI [ENTITY] deposed before the court that on 24.12.2009 he received call from PS SJ Enclave to visit the place of occurrence for taking chance print. He reached at the spot and after inspection prepared the inspection report. After lifting chance print the same was sent to finger print bureau for matching purpose. IO recorded his statement to this effect u/[SECTION] [ACT].
State v. [ENTITY] Page 6 FIR No.81/09 PS SJ Enclave Judgment
Accused did not prefer to cross examine the witness.
(x) PW10 Ct. [ENTITY] deposed before the court that on 01.01.2010 he joined the investigation of present case and went to PS Hauz Khas along with HC [ENTITY] and SI [ENTITY] met them who handed over relevant papers i.e. disclosure statement of accused, seizure memo etc for FIR No.431/09. Accused was formally arrested and one day PC remand was obtained from the hon'ble court. Accused took them to place of occurrence and pointed out the same. IO recorded his statement u/[SECTION] [ACT].
In his cross examination by ld. Defence counsel it is denied by witness that accused never pointed out the place of occurrence or no disclosure statement was given by accused.
(xi) PW11 [ENTITY] deposed before the court that on 24.12.2009 further investigation of the present case was handed over to him. He received the copy of FIR and original rukka from concerned duty officer. He along with Ct.[ENTITY] reached at the spot where six cars were found with broken glass and broken window panes. He prepared the site plan. IO interrogated the complainant/ owners of said six cars and thereafter they came back to PS. On 01.01.2010 he received the information from PS Hauz Khas regarding accused and disclosure made by him about the theft committed at SJ Enclave area and recovery of one pen drive.
State v. [ENTITY] Page 7 FIR No.81/09 PS SJ Enclave Judgment
Thereafter, he along with Ct. [ENTITY] reached at PS Hauz Khas and collected the relevant documents of case FIR No.431/09. He interrogated the accused, recorded his disclosure and formally arrested him. Statement of witnesses were recorded. Accused was produced at PHC and one day PC remand was taken. Accused took them to Green Park Extn and Bhajanpura but to no avail. Thereafter, accused was sent for medical examination. The recovered pen drive was collected from PS Hauz Khas vide RC and the same was deposited in malkhana. Statement of witnesses were recorded and after completion of investigation challan was filed before the court.
In his cross examination by ld. Defence counsel it is admitted by witness that the only pen drive worth Rs.500/ was recovered from the accused and the stolen pen drive was identified by the complainant.
(xii) PW12 [ENTITY] was duty officer who proved the FIR vide memo Ex.PW12/A. Accused did not prefer to cross examine the witness.
5. Thereafter, the prosecution evidence was closed. After closing of prosecution evidence, statement of accused was recorded U/[SECTION] of [ACT]. In his statement, accused denied the version of prosecution.
6. Arguments address by ld. APP for the state and counsel for accused. I have heard the arguments and gone through the documents on State v. [ENTITY] Page 8 FIR No.81/09 PS SJ Enclave Judgment record.
7. The [SECTION] [ACT] reads as follows : "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 theft".
8. The [SECTION] [ACT] reads as follows : "whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property".
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated on in respect of which criminal breach of trust has been committed, is designated as stolen property".
Therefore, the main ingredients for commission of the offence u/[SECTION] [ACT] are as follows : "The property should be a stolen property.
The person receiving it should have the knowledge or reason to believe that that the same is a stolen property.
9. There are many discrepancies between the statement of witnesses. The story of the prosecution is not collaborated with the statement of witnesses.
1) There is no eye witness to the offence. There is no direct evidence State v. [ENTITY] Page 9 FIR No.81/09 PS SJ Enclave Judgment brought on record for the commission of offence U/[SECTION] [ACT] by the prosecution. There is no eye witness to the theft neither any circumstantial evidence to that effect. Therefore, as argued by Ld. APP the prosecution prays for conviction u/[SECTION] [ACT] only on the ground that the accused was found in possession of the stolen property and a presumption can be raised u/[SECTION] of [ACT] that he is indeed the thief. For this arguments, Ld. APP relies upon illustration (a) appended to [SECTION] of [ACT]. By virtue of this illustration a man who is in possession of stolen articles soon after the theft is either the thief or has received the articles knowing them to be stolen, unless he can account for his possession. In the present case the pen drive is alleged to have been stolen in the month of December 2009 and recovered in January 2010 i.e. after a gap of one month. I am unable to understand that by what stretch of imagination a period of one month can fall in the category of 'soon after the theft'.
2) Now coming to the second requirement of possession. The prosecution is also required to prove the ingredients for the offence u/[SECTION] [ACT] i.e. the accused had dishonestly retained the stolen property knowing or having reason to believe it to be stolen for bringing it within the ambit of aforesaid illustration. Therefore, coming to the examination of evidence on this point. Now it is to be considered that this recovery was made when the accused was in police custody. Therefore, while the confession made by him State v. [ENTITY] Page 10 FIR No.81/09 PS SJ Enclave Judgment regarding the theft of the stolen pen drive is inadmissible in evidence as per 25 of [ACT]. However, the recovery of stolen pen drive would be admissible in evidence by virtue of [SECTION] of [ACT] for it could have amounted as a fact discovered in consequence of information received from the accused in the custody of police.
3) Further, no public person was cited or examined as witness to the fact of recovery which is essential in such cases where recovery in itself form the sole ground for conviction of the accused.
4) Further, there is contradiction between the statement of PW3 and PW7. On the one hand PW3 stated that he has taken the pen drive from the police station directly without any superdari orders from the court whereas the pen drive which has produced from malkhana subsequently belongs to the complainant who has not been called to identify the pen drive produced from Malkhana.
5) The complaint of [ENTITY] upon which the FIR was registered does not mentioned there was any theft of pen drive. In fact he has mentioned the fact of the theft of stereo which has not been recovered. The entire proceedings have taken place with respect to pen drive with respect to which no complaint was made or FIR was registered.
6) There is contradiction with respect to the date of arrest of accused in FIR No.431/09 PS Hauz Khas. As per statement of PW6 [ENTITY] it is 17.12.2009 and as per PW7 Inspector [ENTITY] State v. [ENTITY] Page 11 FIR No.81/09 PS SJ Enclave Judgment it is 28.12.2009. The said contradiction cast doubts on the prosecution story.
7) It is highlighted that IO has not joined any public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completing the formalities but none of them was even requested to become a witness. This casts doubt about the sincere efforts made by the IO to join independent witnesses. In [PRECEDENT], it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of [PRECEDENT], it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly held in the case [PRECEDENT] and [PRECEDENT], it is settled law that whenever any recovery in connection with the place of the commission of offence is made, public person must be made witness. The [SECTION] [ACT] provided that "before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a State v. [ENTITY] Page 12 FIR No.81/09 PS SJ Enclave Judgment witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do". The IO have failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation.
10.In the present case the factum of knowledge that the pen drive was stolen property has not been proved by the prosecution and no chain has been established to prove the theft.
11.All these infirmities in the prosecution case make the same doubtful and the benefit of which must be given to the accused.
12.In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused [ENTITY] is acquitted for the offence punishable U/[SECTION] [ACT].
File be consigned to Record Room.
Announced in the open court ([ENTITY]) on 6th April 2013 [PRECEDENT] State v. [ENTITY] Page 13 FIR No.81/09 PS SJ Enclave Judgment