JANKIPUAM, UTTAR PRADESH

Registration No. ………

CNR No..……...
Police Station: Jankipuram
Date of institution: …………..
State of Uttar Pradesh, through SHO,
Police Station, Jankipuram
Uttar Pradesh

…. Prosecution
Versus
B, s/o - ….
Age – ……
R/o – ……...

Police station – Jankipuram

……accused person

CHARGE
I,…Judicial Magistrate First Class Jankipuram, UTTAR PRADESH, charge Jatin, the accused s/o…… as
follows:

That on 7 July at midnight, the accused committed the offence of Theft for stealing a bike punishable under
section 379 of the Indian Penal Code with imprisonment, which may extend to 3 years or fine or both and is
within the cognizance of this court.

And I hereby direct that the accused person be tried by this court for the above-framed charges.

Date: Sign and seal

Place: Jankipuram Judicial Magistrate First Class,
C.G.
 PLEA OF ACCUSED

The charges were read over and explained to the accused, to which he pleaded as follows:

“Argued that witnesses Nakul and Samaksh were independent witnesses, but they did

not support the prosecution inspire that if the accused is held guilty, he being a student aged 18

years should be allowed benefit under probation law because this is his first offence, and his

conduct except this case was always remained good.”

Sign and Seal

Judicial Magistrate First Class
C.G.
 THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
Jankipuram,
UTTAR PRADESH
(Presided by ….)
Uttar Pradesh v. Jatin
Registration No. ………
CNR No..……...
Police Station: Jankipuram
Date of institution: …………..
State of Uttar Pradesh, through SHO,
Police Station, Jankipuram
Uttar Pradesh

…. Prosecution
Versus
B, s/o - ….
Age – ……
R/o – ……...

Police station – Jankipuram

……accused person
Present Counsel:
Shri …. ADPO for the Prosecution
Shri ……. Advocate for the Defence
 JUDGEMENT

a) Date of offence : 07/07/2023 or 08/07/2023

b) Offence complained of : Under section 378 IPC (Theft)
c) Name of complainant : Tanish
d) Name of accused : Jatin
e) Plea of accused : Pleaded not guilty
f) Final order : Acquitted

Brief facts as transpired from the record are as follows:

Tanish, a resident of Jankipuram, Lucknow, had his house broken into on 07.07.2023 while he was
attending a marriage ceremony in a neighbouring colony. Tanish discovered upon returning home at
01:00 AM that his new bike, 'Passion' No. A-7777 had been stolen after the lock of his house was
broken. Tanish promptly reported the theft to the police and lodged an FIR. Sub-Inspector Rachit
investigated the case and received information implicating Jatin. Jatin, when taken into custody,
confessed to having Tanish's bike in his possession and provided information leading to the recovery
of the bike from his room. The bike was recovered in the presence of witnesses Nakul and Samaksh,
as documented by S.I. Rachit. The recovered bike was sent to an Executive Magistrate for
identification, and Tanish later identified it as his own during an identification parade.

Issues:

 Whether the breaking of Tanish's house lock and the subsequent theft of his bike constitute
the criminal offences of burglary and theft under relevant sections of the Indian Penal Code.
 Whether witnesses Nakul and Samaksh, who were present during the recovery of the bike
from Jatin's room, have any legal liability or role in the offence.
 The admissibility and legal implications of Jatin's memorandum statement confessing to the
possession of Tanish's bike.
 The legality and procedural correctness of the seizure of the bike from Jatin's room by S.I.
Rachit and subsequent documentation.
 Whether Tanish's identification of the recovered bike during the identification parade is
admissible as credible evidence in court proceedings.
  The sufficiency of evidence presented by the police to support the charges against accused
Jatin and the subsequent trial proceedings in court.

Analysis And Findings:

1. Memorandum statement: The memorandum statement given by Jatin to the sub-inspector “Rachit”
during custody is inadmissible in the court. It contravenes the Code of Criminal Procedure (CrPC)
Sections 25 and 26.1 It mentions that the confessions made during police custody are irrelevant in
criminal proceedings. A memorandum can only be given before a magistrate, as implied under
Section 164 of CrPC. A statement under this section cannot be used as substantive evidence, but a
confession can.2 Further, the manner of the memorandum has to be by Section 281 (5), where the
statement/ confession has to be recorded in the presence of a magistrate and then sent to the
concerned magistrate authorised to handle the case.3

2. Hostile witnesses Nakul and Samaksh: During the custody of the accused, the sub-inspector prepared
the memorandum, which was signed by two witnesses, Nakul and Samaksh. During the witness's
examination, Nakal and Samaksh were produced to prove the memo and the seizure, but they did not
do so, citing threats from the accused. This weakens the entire reliability of their testimony under
Section 155 of the Indian Evidence Act.4 In such a case, the witness may be cross-examined, and his
answers cannot be contradicted, though if they are false, he may be charged with providing false
evidence. For example, in the contentious case of Sohrabuddin Sheikh and his Wife's extrajudicial
execution, more than ninety witnesses became antagonistic since the accused included individuals
with significant political experience.
In the case Neeraj Dutta v. State (Govt. of NCT of Delhi), the honourable Supreme Court observed:
“The Supreme Court has observed that there is no legal bar to raise a conviction upon a "hostile
witness" testimony if corroborated by other reliable evidence. The Court noted that the fact that a
witness has been declared "hostile" does not result in an automatic rejection of his evidence. The
Court further added that even the evidence of a "hostile witness" if it finds corroboration from the
facts of the case may be taken into account while judging the guilt of the accused.”

3. Motive in circumstantial evidence and relevancy of motive: In this case, Jatin, who was found near
Tanish's house at the date of the incident, is circumstantial evidence. In the case of circumstantial
evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable, and

1
Code of Criminal Procedure, 1973, s. 25 and 26
2
Code of Criminal Procedure,1973 s. 164
3
Code of Criminal Procedure,1973 s. 281
4
Indian Evidence Act, 1872 s. 155
 the role of motive for committing a crime becomes essential. If a motive is proven, the prosecution
case becomes more accessible to connect to the alleged incident, but if proven, a motive cannot
replace conclusive proof. A motive may not be required to be confirmed if the ocular evidence is
clear, which isn’t in this case: Munish Mubar v. State of Haryana, AIR 2013 SC 912.5
In appreciating a case of circumstantial evidence, one circumstance may not unerringly point to the
guilt of the accused. Still, the chain or cumulative result of many circumstantial incidences could
matter (Gade Lakshmi Mangraju v. State of A.P. AIR 2001 SC 2677). Here, Jatin was seen near the
house at the date of the incident, which is the first evidence (Also, when Tanish had returned to his
home at 1 a.m., the crime had been committed coinciding with the timing at which Jatin was seen
near the house that is in the midnight). Then the bike ‘Passion’ No. A-7777 was recovered from his
room. Considering these points, the prosecution's case seems to have substantial evidence linking
Jatin to the crime. However, legal nuances, such as the admissibility of the memorandum statement
and the credibility of witnesses (Swaranjeet, Nakul and Samaksh), will have to be proven true to hold
Jatin liable beyond a reasonable doubt.

4. It is obligatory on the part of the accused, while being cross-examined under Section 313 CrPC, to
explain the incriminating circumstances associated with him. The Court must take note of such
explanation, even in a case of circumstantial evidence, to decide whether or not the chain of
circumstances is complete; Musheer Khan v. State of M.P., (2010) 2 SCC.
On being examined under section 313 CrPC, the accused stated that he was falsely implicated due to
old enmity. During the identification parade, the accused did not explain the bike's recovery from his
room.

5. In India, possessing stolen goods is not enough to make it a culpable offence. The prosecution must
prove that the accused had a dishonest intention to commit the crime. However, suppose the stolen
property is recovered from the accused's possession soon after the theft. In that case, it may be
presumed that the accused is the thief or receiver of the property, knowing it to be stolen under
section 114 of the Indian Evidence Act.

6. The accused took the defence of false implication by the plaintiff on account of strain terms.
However, the accused could not provide any evidence for the same or that there is a substance to his
claim. On cross-examination of the witness under Section 138 of the Indian Evidence Act, the sub-
inspector Rachit denied the suggestion of false implication by the complainant.

CONCLUSION
5
Indian Evidence Act, 1872 s.8
7. In view of the above discussion, in the considered opinion of the court, the accused stands guilty
under section 379 of the Indian Penal Code. The accused is presumed to have stolen the bike under
section 114 of the Indian Evidence Act, as he could not prove otherwise. Further, he could not
explain the recovery of the bike from his room on cross-examination under section 313 CrPC.
During the cross-examination, the defence of false implication taken by the accused also came out to
be false.

8. The prosecution and the defence side were heard on the matter of sentence. The prosecution argued
that from the evidence given, the charges against the accused were proven. The defence argued that
witnesses Nakul and Samaksh were independent and did not support the prosecution. Despite this, if
the accused is being held guilty, he prayed for leniency as a student aged 18, considering his good
conduct. Considering the nature of the crime committed, this court finds the present case to be a
proper one to exercise its discretion to grant the benefit of probation to the accused under sections
360 of Cr.P.C. or sections 3, 4 and 6 of the Probation of Offenders Act. The offender has not been
previously convicted for the same offence, is less than 21 years of age, is punishable for theft for
imprisonment not more than two years, and keeping in view his good conduct, this decision has been
reached after due consideration. Hence, keeping in view all the relevant facts and circumstances, this
court acquits the accused, Jatin.

9. Copy of the judgement shall be given to the accused free of cost as per section 363 of CrPC.

Judgement is being
Signed and pronounced
In an open court 20/08/2023

Sign
Judicial Magistrate First Class
…………., Uttar Pradesh