THE COURT OF SH. SUNIL KUMAR SHARMA : METROPOLITAN MAGISTRATE TIS HAZARI COURTS : DELHI 1.
FIR No. 300/2001 2.Unique Case ID No. 02401R025532003 3.Title State Vs. [ENTITY] 3(A).Name of complainant Smt. [ENTITY] w/o Sh. [ENTITY] r/o H.no. 21/969, [ENTITY], Diggi Bazar, Ajmer, Rajasthan. 3(B).Name of accused [ENTITY] s/o Sh. [ENTITY] r/o Jhuggi no. WZ241, Sudama Puri, Moti Nagar, New Delhi. 4.Date of institution of challan 19. .2001. 5.Date of Reserving judgment Pronounced on the same day 6.Date of hearing the final arguments 17.01.2013. 7.Date of pronouncement 17.01.2013 8.Date of commission of offence 01.07.2001 9.Offence complained of Under [SECTION] [ACT] 10.Offence charged with Under [SECTION] [ACT] 11.Plea of the accused Pleaded not guilty 12.Final order Accused Acquitted U/[SECTION] [ACT]
13. Date of receiving of judicial file in this 17.03.2011 court BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The matrix of the prosecution case in a narrow compass is that on 01.07.2001 at about 10.23 AM at T.B. Hospital, Moti Nagar, New Delhi within the jurisdiction of PS Moti Nagar, the accused [ENTITY] had dishonestly and without the consent of complainant Smt. [ENTITY] removed a purse containing Rs. 150/, one silver Paajeb and one silver Raakhi from her possession further the aforesaid articles were recovered from the possession of the accused on the aforesaid date, time and place which were retained by the accused with the knowledge or having the reason to believe the same to be stolen property and thereby committed an offence punishable u/[SECTION] [ACT].
2. Accordingly, charge sheet was filed, copies were supplied to the accused in compliance of [SECTION] [ACT] and on the basis of the material on record, the charge for the offence punishable u/[SECTION] [ACT] was framed against the accused on 08.02.2005, to which he pleaded not guilty and claimed trial.
3. Prosecution for proving its case against the accused persons could examine only four witnesses.
1. PW1 [ENTITY], Duty Officer.
2. PW2 Smt. [ENTITY], Complainant.
3. PW3 [ENTITY], Investigation witness.
4. PW4 SI [ENTITY], Investigating officer. PW1 [ENTITY] is the duty officer and has proved the copy of FIR Ex. PW1/A. PW2 Smt. [ENTITY] is the complainant and has deposed that on 01.07.2001 she was going towards her house. When she reached near T.B. Hospital one person snatched her mehroon colour purse containing Rs. 150/, one silver pajeb, one silver rakhi and one ticket of DTC bus. The police was called on the spot. The accused was personally searched and arrested vide memo Ex. PW2/C and PW2/D respectively. The purse was seized vide memo Ex. PW2/C. The witness has expressed her inability to identify the accused person or state the name of the accused. The witness had identified the case property as Ex.P1, P2, P3, P4, P5 and P6.
The witness was declared hostile by the prosecution and was cross examined at length regarding the identity of the accused but the witness categorically deposed that she could not identify the accused and she never made the complaint Ex. PW2/A from portion A to A to the police.
The witness in her cross examination by the Ld. Counsel for the accused had deposed that she signed the document prepared by the police including her statement without reading their contents. The witness had further deposed that she never got an opportunity to saw the accused at the time of the incident or thereafter.
PW3 [ENTITY] is the Investigating witness and has deposed that on 01.07.2001 he along with SI [ENTITY] on receipt of DD no. 11B went to the TB Hospital, Moti Nagar and met with [ENTITY] who produced the accused [ENTITY] stating that the said [ENTITY] had snatched the purse from the possession of the complainant [ENTITY]. The purse recovered from the possession of the accused was handed over to the IO and the same found containing Rs. 150/, one silver anklet, one silver rakhi, one slip and two bus tickets. IO recorded the statement of said [ENTITY] and complainant [ENTITY] and sealed the recovered purse along with its articles with the seal of JS. IO prepared the rukka and directed him to got the FIR registered. FIR was accordingly registered. The accused was arrested vide arrest memo Ex. PW2/D. IO prepared the site plan.
The witness was cross examined at length by the Ld. Counsel for the accused.
PW4 SI [ENTITY] is the Investigating Officer and has deposed that on 01.07.2001 he along with [ENTITY] on receipt of DD no. 11B went to the TB Hospital, Moti Nagar and met with [ENTITY] and [ENTITY] who produced the accused [ENTITY] stating that the accused had snatched the purse of [ENTITY]. The statement of the complainant already Ex. PW2/A was recorded. The purse was checked and found containing Ex. P1 to P5. The purse is Ex. P6 and the same was seized vide Ex. PW2/C. The same was signed by [ENTITY] and the complainant [ENTITY]. Rukka was prepared and the FIR was got registered. Site plan was prepared. The accused was arrested. The statement of [ENTITY], [ENTITY] and the complainant was recorded. It is also deposed by the IO that the eye witness [ENTITY] could not be traced as the witness was found to be not residing at the available address and has left for some unknown place.
The witness was cross examined at length by the Ld. Counsel for the accused.
4. No other prosecution witness was examined and the prosecution evidence was closed. Accused was examined u/[SECTION] [ACT] on 17.01.2013 wherein the accused submit that he is innocent and has been falsely and wrongly implicated in this case. However, he denied to lead any evidence in defence.
5. Here it would be appropriate to refer the case law reported as "[PRECEDENT] the Punjab & Haryana High Court wherein it was observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
6. Now the stage has been set to appreciate the entire evidence on record in the light of essential ingredients of offence of theft defined in [SECTION] [ACT] and punishable u/[SECTION] [ACT] alleged to be committed by the accused and the testimonies of the prosecution witnesses. The essential ingredients of offence of theft punishable u/[SECTION] [ACT] are laid down in [SECTION] [ACT] as
(a) A person moves any movable property.
(b) Such person intend to take such property dishonestly.
(c) The property is moved out of the possession of any person.
(d) The such moving is in order to take the said property dishonestly.
(e) The person out of whose possession, the property is moved has not consented.
The word dishonestly is further defined in [SECTION] of [ACT] as whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly.
The word wrongful gain is defind u/[SECTION] [ACT] as wrongful gain it is gain by unlawful means of the property to which the person gaining is not legally entitled.
Wrongful loss it is loss by unlawful means of the property to which the person losing is legally entitled.
Gaining wrongfully, Losing wrongfully A person is said to gain wrongfully when such person retains wrongfully as well as when such persons acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of any property.
7. The accused in the present case is also charged for the offence punishable u/[SECTION] [ACT]. In [PRECEDENT] the Hon'ble Supreme Court held that the prosecution had to prove the following facts in order to bring home the guilt of the accused persons namely:
1. That the stolen property was in possession of the accused,
2. That the some person other than the accused was possessing the same before the possession of the same by the accused,
3. That the accused had the knowledge that the said property was the stolen property.
8. The term stolen property is defined u/[SECTION] [ACT] being the property the possession whereof has been transfered by theft, or by extortion or by robbery and property which has been criminally misappropriated or in respect of which the criminal breach of the trust has been committed. [SECTION] [ACT] provides for the punishment for possessing the stolen property.
9. Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidence on record which warrant the conviction of the accused on the touch stone of the golden principle of criminal jurisprudence that the guilt of the accused has to be proved beyond reasonable doubt.
10. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully.
11. To prove the offence punishable u/[SECTION] [ACT] the prosecution was required to prove that the certain property was dishonestly removed from the possession of the complainant without her consent and the same was retained or received by the accused knowing or having the reasons to believe the same to be the stolen property.
12. The prosecution has examined four witnesses in support of its case against the accused person but the prosecution could not produce the eye witness [ENTITY] who is stated to have apprehended the accused [ENTITY] along with the case property. Although the complainant [ENTITY] was examined as PW2 but the said complainant/victim had failed to identify the accused [ENTITY] rather had stated that the she signed the documents including Ex. PW2/A without reading their contents. This witness had further deposed that she had never seen the accused person. The witness had failed to support the prosecution case despite her cross examination by the Ld. Prosecutor and had categorically deposed that the accused was never seen by her. The remaining witnesses examined by the prosecution are of formal nature and are the witnesses of the investigation only as none of them had seen the commission of the offence. The material prosecution witness i.e. the eye witness [ENTITY] has not appeared in the court for deposition and the PW2 the complainant [ENTITY] has failed to support the prosecution case regarding the commission of the offence by the accused [ENTITY] and has failed to identify him in the Court.
13. Moreover, it is admitted by the IO PW4 SI [ENTITY] in his cross examination that the incident took place at about 10.30 AM in the morning near T.B. Hospital and many public persons were present at the time of the incident but none of them was joined in the investigation. The IO had further admitted that the complainant and the alleged eye witness [ENTITY] met him inside the main entrance of the hospital and no incident took place in his presence.
14. Considering the peculiar facts of the case particularly in view of the hostility of PW2 complainant towards the prosecution case and non appearance of the alleged eye witness [ENTITY] for deposition in the Court coupled with the fact that the IO has not requested any other public persons despite their availability for joining the investigation casts a shadow on the case of the prosecution. In my opinion the absence of the corroboration from the independent public witnesses the case of the prosecution should not be delayed. The reliance is placed on [PRECEDENT] and "[PRECEDENT].
15. The remaining witnesses examined by the prosecution are more or less formal in nature who are not connected with the facts in issue.
16. In view of the aforesaid findings the Court is of the considered view that the prosecution has miserably failed to prove its case against the accused [ENTITY] beyond the shadow of the doubt.
17. Accordingly, the accused [ENTITY] s/o Sh. [ENTITY] stands acquitted for the offence punishable u/[SECTION] [ACT].
18. Surety bond discharged, bail bond canceled.
19. File be consigned to record room after due compliance.
Announced in the ([ENTITY]) Open Court on 17.01.2013 Metropolitan Magistrate (West10), THC,Delhi
It is certified that this judgment contains 11 (eleven) pages and each page bears my signature.
([ENTITY]) Metropolitan Magistrate (West10), THC,Delhi 17.01.2013 PS Moti Nagar U/[SECTION] [ACT] 17.01.2013 Present : Ld. APP for the State Accused in person with counsel.
PW4 present, examined, cross examined and discharged. Statement of the accused recorded separately wherein it is submitted by the accused that she does not want to lead any evidence in her defence.
Final arguments heard today.
Vide separate judgment dictated and pronounced today in the open Court, accused stands acquitted for the offence punishable U/[SECTION] [ACT].
Surety bonds discharged, bail bonds cancelled.
File be consigned to record room after due compliance.
([ENTITY]) Metropolitan Magistrate (West10), THC,Delhi 17.01.2013