IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT State v. [ENTITY] FIR No. 245/05 PS Paschim Vihar U/[SECTION] [ACT] JUDGMENT
[CASE NUMBER] Date of Institution : 24.06.2005 Date of Commission of Offence : 03.04.2005 Name of the complainant : [ENTITY] S/o [ENTITY] R/o GH-5 & 7, House no.618 Paschim Vihar, Delhi Name & address of the accused : [ENTITY] S/o Gopal Dass R/o C-112, Relief Camp, Peeragarhi, Delhi Offence complained of : 457/380/411 [ACT] Plea of accused : Pleaded not guilty Final Order : Acquittal Date of reserve for judgment : 25.05.2015 Date of announcing of judgment : 29.05.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case u/[SECTION] [ACT].
FIR No. 245/05 PS Paschim Vihar
2. The briefly stated story of the prosecution is that the complainant [ENTITY] was living with his family on the address GH-5 and 7/618, First Floor, Paschim Vihar, New Delhi. His ready made Garments shop is situated at WZ- 56, Saraswati Niwas, Ground Floor Jawalaheri Market, Paschim Vihar. On 03.04.2005 he received a message that the locks of his above-said shop have been broken and the store is opened. He came to his shop immediately and found that the articles were scattered here and there. The Galla was also open and Rs.1,885/- were missing from the same. Some clothes/garments were also missing. When the complainant was going towards the police station to get the complaint registered, he met SI [ENTITY] on way, who had apprehended two persons. SI [ENTITY] showed a plastic bag to the complainant in which there were 5 jeans and 3 tops. 1 Peck-kus and Rs.1,885/- were also recovered from the accused persons. Thus the accused persons are alleged to have committed an offence under [SECTION] [ACT]. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused under [SECTION] [ACT] Notice under [SECTION] [ACT] for offence under [SECTION] [ACT] was framed against him by the Ld. Predecessor vide order dated 26.10.2010 to which he pleaded not guilty and claimed trial.
4. The accused [ENTITY] was declared to be a juvenile and was sent to the JJB. In FIR No. 245/05 PS Paschim Vihar order to prove the case against the accused, the prosecution has examined only one witness i.e ASI [ENTITY].
5. PW-1 ASI [ENTITY] who had recorded the FIR on basis of the rukka brought by Ct. [ENTITY]. The FIR is Ex.PW1/A and endorsement on rukka is PW1/B.
6. The complainant [ENTITY] could not be examined as he remained unserved even through DCP concerned. Accordingly, his name was dropped from the list of witnesses. As the complainant remained unserved even through DCP concerned, carrying on with further prosecution evidence and recording testimonies of formal witnesses would have become only a futile exercise, and wastage of judicial time, resources and energy. In the absence of the complainant, the prosecution can never successfully prove that the present case was a result of an act of accused. The testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/[SECTION] [ACT].
7. It was held by Hon'ble Supreme Court of India in case titled "[PRECEDENT], that "In case where there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date". Thus, PE was closed. Since nothing incriminating has come on record against the accused, as such, recording of statement of accused is also FIR No. 245/05 PS Paschim Vihar dispensed with.
8. I have heard the brief submissions addressed by the Ld APP for state and by the accused himself and carefully perused the documents on record.
9. [SECTION] [ACT] prescribes punishment for theft in a dwelling house. The theft is defined under [SECTION] [ACT] and the essential ingredients to constitute an offence under [SECTION] [ACT] are as follows:-
1. Intention to take dishonestly
2. The property shall be movable property.
3. The property shall be taken out from the possession of any person without his consent.
4. There should be some moving of the said property to such taking.
5. The theft should have been committed in a dwelling house or place used for safe custody of property.
10. The essential ingredients to prove an offence under [SECTION] [ACT] are:-
1. The property should be in possession of the accused.
2. Such property should be 'stolen property' i.e it should have been transferred by theft, extortion or robbery, or which has been criminally misappropriated.
3. The accused received the same knowing or having reason to believe the same to be stolen property. FIR No. 245/05 PS Paschim Vihar
11. [SECTION] [ACT] prescribes punishment for lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment. The essential ingredients to constitute this offence are:-
1. The accused should have entered into the property which is in possession of another.
2. An intention to commit an offence on part of the accused.
3. Such property should be any building / tent/ vessel used for human dwelling on place for worship or for custody of property.
4. Entry into the house should have been effected by the accused in any one of the six ways as defined under [SECTION] [ACT].
12. In the case at hand, the owner of the stolen articles has remained unserved even through DCP concerned. In absence of his testimony it can never be proved that the stolen articles belonged to him or that it was the shop of the complainant which the accused persons had broken into and had committed the theft. The prosecution has not sited any person as witness who had given the information of the theft to the complainant.
13. It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and FIR No. 245/05 PS Paschim Vihar convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such reason doubt in the prosecution case entitles the accused to acquittal.
14. In view of the above discussion and in light of the aforesaid case-laws, court is of the considered opinion that the prosecution has failed to prove the charges against the accused. Accordingly, accused [ENTITY] stands acquitted.
15. Accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/-
with one surety of like amount.
ANNOUNCED IN THE OPEN COURT ON 29.05.2015.
([ENTITY]) MM-07(West)/THC/29.05.2015 FIR No. 245/05 PS Paschim Vihar