IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS RAHUL YADAV F.I.R. No: 377/06 U/[SECTION] [ACT] P.S. Defence Colony Date of Institution of Case : 11.09.2006 Judgment Reserved for : 14.12.2012 Date of Judgment : 14.12.2012 JUDGMENT:
(a) The serial no. of the case : 430/5/06 (b) The date of commission of offence : 21.04.2006 (c) The name of complainant : Sh. [ENTITY] s/o Sh. [ENTITY], R/o A47, South Extension II, New Delhi. (d) The name, parentage, of accused : [ENTITY] s/o Sh. [ENTITY], R/o C291, Mangol Puri, New Delhi. Present Address : As above. (e) The offence complained of : U/[SECTION] [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 14.12.2012 FIR No. 377/06 St. Vs. [ENTITY] Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 21.04.2006 at about 06. p.m. at A47, South ExtensionII, New Delhi within the jurisdiction of PS Defence Colony accused committed theft of Nokia 9500 mobile phone bearing IMEI No. 354306000948235 along with cash of Rs. 80,000/ belonging to complainant [ENTITY] from his premises used for human dwelling and thus thereby the accused 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 05.03.2009 charge u/[SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
3. So far prosecution examined only two witnesses.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 [ENTITY] deposed that on 18.05.2006 he was working as DO at PS Defence Colony and at about 04.50 p.m. a complaint was marked to him for registration of FIR by the SHO and on the basis of which he recorded present FIR i.e. Ex. PW1/A, his endorsement on the rukka is Ex. PW1/B. FIR No. 377/06 St. Vs. [ENTITY]
5. PW2 Sh. [ENTITY] deposed that as the matter is 56 years old, he does not remember the exact date but around 56 years back he had given an advertisement in the newspaper to sell his Fiat Palio car and as per the invitation in the newspaper for the purchase of car, the accused came to his house with a proposal to buy the car. He deposed that he took him inside his house and made him sit in his drawing room. He deposed that at that time, accused pretended that his cell phone battery was low so he asked a charger from him and at this, he offered his mobile to him for making a call and in the meanwhile he got a call on his landline number and he rushed to pick the phone which was inside his house and when he came back after attending the call, he found that accused had left the place alongwith his mobile. He deposed that he also noticed that cash of Rs.80,000/ which was kept in the drawer of the study table by him was also missing. He deposed that the said cash had been just handed over to him by his employee Mr. [ENTITY] in the presence of the accused and he had kept it in the drawer of the study table. He deposed that he rushed out and search for the accused but he could not be found. He deposed that on the next day, he had to leave for Rajasthan urgently as some important work was pending over there and he came back after 1520 days. He deposed that thereafter, he moved a complaint before the PS Defence Colony on 18.05.2006 i.e. Ex.PW2/A. He deposed that the IO had called him for investigation several times. He deposed that he had once also called him for TIP of the accused however, the accused refused to take part in the same. He deposed that nevertheless he had identified him before the IO. He deposed that in fact, he had also seen the accused on FIR No. 377/06 St. Vs. [ENTITY] T.V. i.e. Channel Star News programme 'Sansani' wherein the accused and his modus operandi of committing the crime was shown. He deposed that he had told the police after the above programme that accused [ENTITY] is the same person who had stolen his phone and the cash.
6. During cross examination he admitted that he did not hand over any bill pertaining to his mobile phone in question to the police and he also did not hand over either the phone bills or purchase bill regarding the phone in question. He denied the suggestion that he had never owned/possess the Nokia mobile phone in question. He denied the suggestion that he was deposing falsely. He stated that he cannot tell the name of his employee who had allegedly brought the cash of Rs. 80,000/ on the day of incident and that he cannot give details of the alleged cash i.e. how he received it. He admitted that neither the phone nor the cash was recovered and that he had given his complaint to the police after a delay of almost 3 weeks. He stated that he did not give the complaint immediately as he was busy with his business work and was out of Delhi. He denied the suggestion that he did not give the complaint immediately after the alleged incident as it is a false and fabricated case. He denied the suggestion that he was deposing falsely. He admitted that he had not accompanied the police anywhere during the course of investigation of present matter and that apart from his complaint Ex. PW2/A he did not give any other statement to the police. He admitted that the name and other particulars i.e. descriptions etc of the alleged person who committed theft of his phone and cash are missing from the FIR No. 377/06 St. Vs. [ENTITY] complaint Ex. PW2/A and that he merely suspected that the person who had come to his house to buy his car might have also stolen his phone. He admitted that he was not 100% sure. He stated that he had identified the accused after seeing him on TV in a Crime Programme and that he was not 100% sure whether he is the same person who had committed the theft. He stated that he might be or might not be the same person who had committed the theft. He voluntarily stated that he had seen the programme after long time i.e. after many days of the incident hence he was not sure whether the accused is the same person or not. He stated that he had not seen the accused anywhere else apart from seeing him for the first time in the court on 10.09.2012. He denied the suggestion that he was deposing falsely or that he had given a false complaint regarding theft of his articles i.e. phone and cash.
7. This witness was cross examined by Ld. APP on account of the contrary statement given by him during his examination and cross examination. He admitted that his statement was recorded on 10.09.2012 and that he had stated in his statement that accused was the same person who had come to his house with intentions to buy his car. He voluntarily stated that he was not 100% sure whether he is the same person or not. He stated that he might be the one who had stolen his phone and cash but he was not 100% sure. He stated that after seeing the programme on TV he had thought that the person shown on the TV looked alike/similar to the one who had come to his house with intention to buy his car. He denied the suggestion that he was deposing falsely as he had been FIR No. 377/06 St. Vs. [ENTITY] won over by the accused or that on account of settlement he was making a false statement before the court. He denied the suggestion that he was deposing falsely. He voluntarily stated that he had no reasons to lie.
8. This so far is the prosecution evidence in the matter.
9. I have perused the records carefully. In my opinion in view of deposition of PW2 no purpose shall be served with further continuation of trial as in all likelihood the prosecution story shall fall flat.
10. Complainant [ENTITY] was star/material prosecution witness however his deposition proved to be of no help for the prosecution, instead it created serious/grave doubts upon the prosecution case. In fact it will not be wrong to say that deposition of complainant [ENTITY] (PW2) proved fatal and sounded death knell for the prosecution case.
11. He took contrary stands during his examination in chief and his cross examination and in fact his cross examination casted serious doubts upon the demeanor of the witness rendered him highly unreliable. He retracted from his statement as made during the examination in chief thereby casting serious doubts upon his claims. The relevant portion of testimony of PW2 (complainant [ENTITY]) which created serious doubts upon the prosecution story and rendered it unreliable are reproduced hereunder:
FIR No. 377/06 St. Vs. [ENTITY] " It is correct that I merely suspected that the person who had come to my house to buy my car might have also stolen my phone. It is correct that I am not 100% sure. I had identified the accused after seeing him on TV in a Crime Programme. I am not 100% sure whether he is the same person who had committed the theft. He might be or might not be the same person who had committed the theft. Vol. I had seen the programme after long time i.e. after many days of the incident hence I am not sure whether the accused is the same person or not. I had not seen the accused anywhere else apart from seeing him for the first time in the court on 10.09.2012.
During his crossexamination by Ld. APP he stated as under:
"I Vol. I am not 100% sure whether he is the same person or not. He might be the one who had stolen my phone and cash but I am not 100% sure. After seeing the programme on TV I thought that the person shown on the TV looked alike/similar to the one who had come to my house with intention to buy my car."
12. Hence his above testimony created serious doubts regarding the involvement of the accused in the alleged incident dated 21.04.2006. The testimony of PW2 cannot be formed the basis of convicting the accused/no conviction can be based on such testimony.
Apart from PW2 turning hostile on the identity of the accused there were other FIR No. 377/06 St. Vs. [ENTITY] part of his testimony which created serious doubts upon the entire prosecution story. Though in his examination in chief he had claimed that his employee Mr. [ENTITY] had brought the cash which was stolen by the accused from his residence however during his cross examination he stated that he cannot tell the name of employee who had brought the cash on the day of incident.
13. Furthermore there were other inconsistencies/loopholes in the prosecution story which rendered it unreliable for example prosecution failed to bring the the independent witnesses Sh. [ENTITY] and [ENTITY] in the witness box. They remained not traceable during the trial. Their absence further casted doubt upon the prosecution case. Admittedly the mobile phone in question or the cash were never recovered during the entire investigation. Their non recovery is an important missing link in the prosecution case more so when admittedly the complainant did not hand over any documents regarding the phone in question or furnish the details of the amount i.e. how he received etc either to the IO or during his testimony. This inconsistency is itself fatal for the prosecution case. Similarly there is delay of almost 4 weeks in the registration FIR. The incident allegedly occurred on 21.04.2006 however the complaint was made to police only on 18.05.2006. The reasons for the delay as furnished by the complainant were to the effect that he had gone out of Delhi for his business. However this does not inspire confidence as a man whose mobile phone and cash of around Rs. 80,000/ is stolen would not have waited for such long period to set the police machinery in motion and thereby almost negating the chances of the culprit being FIR No. 377/06 St. Vs. [ENTITY] caught and the stolen articles being recovered. The reasons for delay as explained by the complainant does not inspire confidence.
14. In the case at hand prosecution had proposed to examine 7 witnesses in all. Remaining witnesses examined and proposed to be examined are police officials only and their testimony in view of the complainant turning hostile and other eye witnesses being not traceable shall not be sufficient to bring home the guilt against the accused.
15. In these facts and circumstances, continuation of trial shall be an exercise in futility as in all likelihood the prosecution story shall fall flat. PE stands accordingly closed. SA is dispensed with as no worthy incriminating material has been brought forward against the accused.
16. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true"
and "must be true".
17. 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 FIR No. 377/06 St. Vs. [ENTITY] the prosecution. ( [PRECEDENT]).
18. 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.
19. Prosecution has failed to discharge its onus. Accordingly, accused is FIR No. 377/06 St. Vs. [ENTITY] entitled to acquittal.
20. I order accordingly.
Announced in the open ([ENTITY]) Court on 14.12.2012 MM (SD)/Delhi FIR No. 377/06 St. Vs. [ENTITY] F.I.R. No: 377/06 P.S. Defence Colony 14.12.2012 Pr: Ld. APP for state. Accused is on bail present today.
PW2 [ENTITY] is present and he has been cross examined and discharged.
No other 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.
Bail bonds u/[SECTION] [ACT] furnished, considered and accepted. File be consigned to Record Room.
([ENTITY]) MM (SD)/Delhi.
14.12.2012 FIR No. 377/06 St. Vs. [ENTITY]