Delhi District Court
State vs . Guddu on 15 December, 2022
IN THE COURT OF SHRI SHUBHAM DEVADIYA,
METROPOLITAN MAGISTRATE-05, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
FIR No. 391/2015
PS Anand Parbat
Cr. Case No. 60882/2016
State Vs. Guddu
CNR No. DLWT02-000839-2015
JUDGMENT
(a) Sr. No. of the case 60882/2016 (b) Date of offence June 2015 (c) Complainant Sanjay Sharma (d) Accused persons Guddu (e) Offences U/s 381/411 IPC (f) Plea of accused Pleaded not guilty (g) Final Order Acquittal. (h) Date of institution 2107.2015 (i) Date of judgment 15.12.2022 BRIEF FACTS AND REASONS FOR DECISION
1. The case of prosecution is that in the month of June, 2015 accused being the servant of complainant Sanjay Sharma committed theft of aluminium plates / silli belonging to complainant from the factory No. S-
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8A, Gali No. 12, Industrial Area, Anand Parbat as mentioned in complaint Mark A. Secondly, on 08.06.2015 House No. 4/22, Gali Kunwa wali, Harijan Basti, New Rohtak Road, Delhi at your instance 05 aluminium plates were recovered as per seizure memo Mark B, which accused had received or retained, knew or having reasons to believe to be the stolen property, belonging to complainant Sh. Sanjay Sharma stolen from the area of justisdiction of PS Anand Parbat.
2. After investigation, Chargesheet were filed in the Court for commission of offences under Section 381/411 IPC. Cognizance of the matter was taken and there upon compliance of Section 207 Cr.P.C was completed and charges for offences punishable under Section 381/411 IPC were framed against accused on 15.12.2015 to which they pleaded not guilty and claimed trial. Thereafter, the matter proceeded for prosecution evidence accordingly.
3. In prosecution evidence, the prosecution has examined 08 witnesses. The testimony of the witnesses in a nutshell are as below:
PW1 HC Deepak Rana. He deposed that on 07.06.2015 he was posted at PS Anand Parbat as Duty Officer and on that day SI Vidyakar Pathak handed over to him rukka and on the basis of which he recorded the present case FIR and after registration of FIR, he handed over copy of FIR with original rukka to HC Lokender for making further investigation.
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Fir is Ex.PW1/A. He deposed that he made endorsement on rukka which is Ex.PW1/B and the certificate u/s 65B of Evidence Act is Ex.PW1/C. PW2 ASI Raj Kumar. He deposed that on 07.06.2015 he was posted at PS Anand Parbat as MHC(M) and on that day HC Lokender deposited one DVR on which House 264 DVR CPS Network and the said DVR was sealed in white cloth with the seal of APRVT-II and form M-29 and he deposited the same vide entry No. 2300 in register No. 19 which is Ex.PW2/A. He deposed that on same date, HC Lokender had also deposited two plastic katta containing aluminium plates sealed with seal of APRVT-II. He deposed that he had also deposited form M-29 and seizure memok of same and he deposited same vide entry No. 2301 in register No. 19 and said entry is Ex.PW2/B. He deposed that on 14.07.2015 the following articles were sent to FSL Rohini through Const.
Anand Singh vide RC No. 50/21/15 Ex.PW2/C: (1) one saled pulinda sealed with seal of APRVT-II containing DVR with hard disk, 2) one New blank Toshiba Hard disk of 500 G.B. storage, 3) one new HP pendrive of 32 G.B. storage and 4) three photographs of accused Guddu marked as A in an envelope. He deposed that the same in Excise Lab and handed over him the receiving copy of RC and copy of entry No. 2300 and 2301 of register No. 19 is Ex.PW2/A and Ex.PW2/B (OSR) and case property and samples were reamined intact till they were in his possession.
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PW3 Sh. Sanjay Sharma. He deposed that he is running factory at Industrial Area, Anand Parbat and he deals in making aluminum parts at his factory situated at S-8A, Gali no.12, Industrial Area, Anand Parbat and accused Guddu was working as a labourer in the factory since 2009. He deposed that he was having impression that somebody were stealing his aluminum parts from the factory from the past 4-5 months and thereafter, he check the CCTV footage from the camera installed in the street and found that accused Guddu was supplying aluminum plate to one scrape dealer and thereafter, he made complaint to police official on 07.06.2015 which is Ex.PW3/A and police official inquired from accused Guddu and accused Guddu confessed to his crime and stated that some of the aluminum plates were lying in his house. He deposed that thereafter, he alongwith police official went to his house and recovered five aluminum plates and the same were seized by the police official vide memo Ex.PW3/B. During cross examination by Ld. APP for the State, PW3 admitted that police officials prepared site plan at his instance which is Ex.PW3/C. He admitted that police officials seized ESI Register and the DVR vide seizure memo Ex.PW3/D and Ex.PW3/E. He admitted that he handed over the bill of the aluminium plates to IO and the same were seized by him vide seizure memo Ex.PW3/F. He admitted that accused Guddu was working in his factory at the time of the incident. He admitted that he produced accused Guddu before police officials. He admitted that police officials arrested and personally searched Guddu vide memos FIR No. 391/15 State v. Guddu 4 of 22 PS Anand Parbat Ex.PW3/G and Ex.PW3/H. He admitted that police officials recorded disclosure statement of accused Guddu which is Ex.PW3/I. He admitted that accused Guddu led them to his house, i.e., House No. 4/22, Kuan Wali Gali, Harijan Basti, New Rohtan Road and got recovered five aluminium plates. He deposed that he identified the same and the same was put in the white katta and sealed with the seal of "APRVT-II" and seized the same vide seizure memo Ex.PW3/B. During cross examination by Ld. Defence Counsel, PW3 deposed that factory situated at S-8A, Gali No. 12, Industrial Area, Anand Parbat is a proprietorship firm in the name of Shri Balaji Dye Casting. He deposed that he is the proprietor of the above stated factory. He deposed that he have handed over the documents regarding the proprietorship to the IO. He deposed that he does not know whether he placed the same on record or not. He deposed that he have handed over the sales tax document to the IO. He deposed that he does not remember whether IO obtained his signature while handing over the above stated document and at the time of incident, 5-6 workers were working in his factory. He deposed that they used to purchase aluminium plates from Mundka at that time from Arihant Metals. He deposed that he does not remember whether he handed over the documents regarding the purchase of the aluminium plates to the IO or not and after going through the judicial file, the photocopy of bill of the aluminium plates are already on record. He deposed that since the record is 3-4 years old, therefore, he have to confirm from his accountant whether the original documents are FIR No. 391/15 State v. Guddu 5 of 22 PS Anand Parbat available or not. He deposed that on 07.06.2015, he have lodged his complaint to the Police Station after showing the footage on CCTV and the said footage is with the IO and the CCTV camera was placed near his factory which is at a distance of 20-25 steps from his factory. He deposed that no statement was recorded in his presence of Ram Avtar by the IO. He deposed that the DVR was seized in his presence by the IO. He deposed that firstly, he visited the police station after seeing the CCTV footage and his statement was recorded in the police station and he remained in the police station for about half an hour and after recording the statement in the police station, he came back to his factory and on the same day in the evening, police officials came to his factory and inquired from him regarding the incident. He deposed that the stolen property was recovered from the house of the accused in his presence. He deposed that he does not remember the house number of the accused but his house is situated in Kuan Wali Gali in Harijan Basti and the house might be in an area of 15-20 square yards and the accused himself pointed out the place where he had hidden the case property. He deposed that no statement of public persons was recorded by the police in his presence at that time. He deposed that he alongwith accused and one Constable went to the house of accused and remained there for 10-15 minutes. He deposed that no documents were prepared by the IO at there and after 15-20 minutes, he came back to his factory and accused was taken away by the police officials. He deposed that the seizure memo was prepared at the place of recovery in his presence and the case property was taken into a plastic FIR No. 391/15 State v. Guddu 6 of 22 PS Anand Parbat katta. He deposed that he does not remember whether IO put his seal on the same or not. He deposed that the weight of the recovered case property was about 30-35 kilograms and no other person signed the seizure memo in his presence. He deposed that he does not remember on how many documents he had signed on the said day. He deposed that he did not file any police complaint against the accused prior to 07.06.2015. He deposed that accused was working in his factory for at least 6-7 years. He denied the suggestion that when accused demanded his salary and after that he falsely implicated him in the present case. He denied the suggestion that case property was not recovered from the possession of accused from his house. He admitted that there is no specific marking or sign on the recovered case property. He denied the suggestion that all the paper work was done while sitting in the police station or that recovery is planted upon the accused or that he is deposing falsely.
PW4 SI Vidyakar Pathak. He deposed that on 07.06.2015 he was posted at PS Anand Parbat as Sub Inspector and on that day complainant Sanjay Sharma came at PS and gave his statement to him and he recorded his statement Ex.PW3/A and thereafter, he prepared tehreer Ex.PW4/A and handed over same to Duty Officer for registration of FIR and thereafter, further investigation was handed over to HC Lokender.
During cross examination, PW4 deposed that he had not visited the spot at any point of time and he had not searched accused FIR No. 391/15 State v. Guddu 7 of 22 PS Anand Parbat Guddu. He deposed that complaiannt did not give any receipt / bill of the stolen articles to him.
PW5 HC Lokender. He deposed that on 07.06.2015 he was posted at PS Anand Parbat as HC and on that day, further investigation of present case was marked to him and Duty Officer handed over copy of FIR and original tehreer to him and thereafter, he alongwith Const. Dharmender and the complainant went to the spot i.e. Factory No. S-8A, Gali No. 12, Industrial Area, Anand Parbat. He deposed that he prepared site plan at the instance of complainant which is Ex.PW3/C and thereafter, he checked the ESI register in the office of complainant and complainant Sanjay Sharma handed over self attested photocopy of the ESI register to him and same was seized by him vide seizure memo Ex.PW3/D and thereafter, he checked the CCTV footage and on seeing the CCTV footage, the complainant had pointed out towards accused Guddu in the CCTV footage and thereafter, he seized the said DVR which is Ex.PW3/E and thereafter, accused Guddu was arrested from the spot i.e. Factory No. S-8A, Gali No. 12, Industrial Area, Anand Parbat vide arrest memo Ex.PW3/G. He deposed that accused was also personally searched vide personal search memo Ex.PW3/H and he had also recorded disclosure statement of accused which is Ex.PW3/I and as per the disclosure statement of accused, he had sold some of the aluminium plates to one scrap dealer and some of the aluminium plates were kept by him in his house. He deposed that thereafter, accused Guddu lead them to FIR No. 391/15 State v. Guddu 8 of 22 PS Anand Parbat his house situated at House No. 4/22, Kunwe Wali gali, Harijan Basti, New Rohtak Road, Delhi and got recovered 05 aluminium plates and on seeing the aluminium plates, the complainant correctly identified the same. He deposed that thereafter, he kept the 05 aluminium plates in one katta and sealed the same with seal of APRVT-II and thereafter seized the same vide seizure memo Ex.PW3/B and thereafter, he recorded supplementary statement of complainant and thereafter, case property i.e. DVR, aluminium plates were deposited in the malkhana. He deposed that thereafter, accused was produced before the Court and he obtained one day PC remand of accused and they made search of scrap dealer and other co-accused persons but no clue was found and thereafter, on the next day accused was produced before the Court and from there he was sent to JC. He deposed that during investigation, the complainant has also produced attendance register and bill / invoice of aluminium plates and same was seized by him vide seizure memo Ex.PW3/F and later on, the DVR alongwith photographs were sent to FSL for examination and thereafter, he prepared the chargesheet and submitted before the Court.
During cross examination, PW5 deposed that he reached at the spot alongwith complainant and Const. Dharmender at around 10:00 P.M. He deposed that 2-3 persons were also present in the factory except the complainant and the accused and there is a CCTV camera installed in the factory i.e. spot. He deposed that he had not checked the CCTV cameras installed inside the factory and he had not recorded supplementary statement of complainant in the factory. He deposed that FIR No. 391/15 State v. Guddu 9 of 22 PS Anand Parbat he had not checked the stock in the factory and the complainant had given the photocopy of the invoice / bill to him. He deposed that he had verbally asked the complainant to produce the original invoice / bill before the Court as and when required. He deposed that he have not served notice u/s 91 CrPC to the complainant for production of original bill / invoice. He deposed that he had filed the chargesheet on 15.07.2015. He deposed that IO had shown the original attendance register to him and thereafter, he had collected the photocopy of that original attendance register. He admitted that there are photocopy of the bill / invoice in the judicial file. He admitted that there is nowhere written on the photocopy of documents that it is seen and returned. He deposed that he had not asked the person present in the factory to join the investigation in the present case and the distance between the spot and the place from where the case property was recovered was around half a kilometer and there is one room in the house of accused. He deposed that he does not remember the area of the house of accused. He deposed that accused was living as a tenant in the abovesaid property and the house of accused was locked at the time when he reached there. He admitted that the room was opened by accused himself. He deposed that there was no public persons present at the place of the accused from where case property was recovered. He deposed that he had not clicked the photographs of place from where the case property was recovered. He deposed that he was having smartphone. He deposed that the aluminium plate was around 07 kg as told by the complainant. He deposed that he FIR No. 391/15 State v. Guddu 10 of 22 PS Anand Parbat was not carrying any weighing machine at the time when they reached at the house of accused. He admitted that accused was employee of the factory of complainant. He denied the suggestion that nothing was recovered from the accused. He denied the suggestion that case property is planted upon the accused in order to implicate him in this false case. He denied the suggestion that accused had not committed any theft while working in the factory of complainant. He denied the suggestion that the complainant had falsely implicated accused in the present case so that the remaining salary of accused could not be released to him.
PW6 ASI Anand Singh. He deposed that on 14.07.2015 he was posted as Const. at PS Anand Parbat and on that day, he received forwarding letter from MHC(M) ASI Raj Kumar for FSL Rohini which contained 1) One sealed pulinda sealed with the seal of APRVT-II containing DVR with Hard Disk, 2) One new blank Toshiba Hard Disk of 500 G.B. storage, 3) One new HP Pendrive of 32 G.B. storage and 4) Three photographs of accused namely Guddu. He deposed that same were deposited by him at FSL Rohini vide RC No. 50/21/15 which is Ex.PW2/C and received the acknowledgment slip from the FSL which is Ex.PW6/A. He deposed that thereafter, he came back at PS. He handed over the copy of RC and acknowledgment slip to the IO / HC Lokender and IO recorded his statement u/s 161 CrPC.
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During cross examination, PW6 denied the suggestion that the case property was planted upon the accused. He denied the suggestion that the case property was tampered during his custody.
PW7 ASI Amit Kumar. He deposed that on 08.06.2015, he was posted at PS Anand Parbat as Const. and on that day, he alongwith IO HC Lokender took the custody of the accused from the lockup of PS Patel Nagar, thereafter, dossier cell of accused was prepared at PS Kamla Market and produced the accused before the Ld. MM in Tis Hazari Court. He deposed that IO took the one day PC of accused from Ld. MM, Tis Hazari Court and thereafter, he alongwith IO and accused went to the Lady Hardinge Medical College where the medical examination of accused was conducted and thereafter, they came back at PS Anand Parbat. He deposed that he alongwith IO and accused, went to the Beat area i.e. the shop of Monu kabari and Sonu kabari and accused refused to identify both of them. He deposed that they took the accused to the Gali No. 10 and Gali No. 11, Anand Parbat and searched for other kabaris also but no one was found and thereafter, the accused was put behind the lockup at PS Patel Nagar.
During cross examination PW7 admitted that no recovery was effected from the possession of accused in his presence during PC remand.
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PW8 Const. Dharmender. He deposed that on 07.06.2015, he was posted at PS Anand Parbat as Const. and on that day, he alongwith IO / HC Lokender and the complainant went to the spot i.e. Factory No. S-8A, Gali No. 12, Industrial Area, Anand Parbat. He deposed that IO prepared site plan at the instance of complainant which is Ex.PW3/C in his presence and thereafter, IO checked the ESI register in the office of complainant. He deposed that complainant Sanjay Sharma handed over self attested photocopy of ESI register to IO and same was seized by IO vide seizure memo Ex.PW3/D in his presence and thereafter, IO checked the CCTV footage and on seeing the footage, the complainant had pointed out towards accused Guddu in the CCTV footage and thereafter, IO seized the said DVR in his presence which is Ex.PW3/E and thereafter, accused Guddu was arrested in his presence from the spot i.e. Factory No. S-8A, Gali No. 12, Industrial Area, Anand Parbat vide arrest memo Ex.PW3/G. He deposed that accused was also personally searched vide personal search memo in his presence vide memo Ex.PW3/H and IO recorded disclosure statement of accused in his presence which is Ex.PW3/I and as per the disclosure statement of accused he had sold some of the aluminium plates to one scrap dealer and some of the aluminium plates were kept by him in his house. He deposed that thereafter, accused Guddu lead them to his house situated at House No. 4/22, Kunwe Wali Gali, Harijan Basti, New Rohtak Road, Delhi and got recovered 05 aluminium plates and on seeing the aluminium plates, the complainant correctly identified the same and thereafter, IO kept the 05 FIR No. 391/15 State v. Guddu 13 of 22 PS Anand Parbat aluminium plates in a katta and sealed the same with seal of APRVT-II and seized in his presence vide seizure memo Ex.PW3/B and thereafter, IO recorded the supplementary statement of complainant and thereafter, he took accused to the Lady Hardinge Medical College alongwith the IO where medical examination of accused got conducted and thereafter, accused was put behind the lockup at PS Patel Nagar.
During cross examination, PW8 deposed that they reached at the spot between 10:00 - 10:15 P.M. He deposed that there were 04 other persons were present at the spot when they reached at the spot. He deposed that CCTV camera was installed inside and outside the factory but he cannot tell the exact place where the cameras were installed inside the factory. He deposed that he had not checked the stock in the factory. He deposed that complainant shown the original bills to the IO. He deposed that they reached at the house of accused at late night but cannot tell the exact time and there was a one room set at ground floor. He deposed that he cannot tell whether the photographs of the house of accused was taken by IO or not during the investigation. He deposed that the room of the house of accused was locked when they reached there and he cannot tell whether the seizure memo of the key of the lock which was present on the gate of house of accused was prepared or not. He depsoed that the measurement of the aluminium plates was done by the IO. He deposed that he does not know whether IO was carrying the scale or not during the preparation of the seizure memo. He deposed that he alongwith complainant and IO / HC Lokender went to the house of FIR No. 391/15 State v. Guddu 14 of 22 PS Anand Parbat accused. He denied the suggestion that nothing was recovered from the accused. He denied the suggestion that case property is planted upon accused in order to implicate him in this false case. He denied the suggestion that accused had not committed any theft while working in the factory of complainant. He denied the suggestion that complainant had falsely implicated accused in the present case so that the remaining salary of accused could not be released to him.
4. No other PW was examined by prosecution. Thereafter, statement of accused u/s 313 CrPC was recorded on 06.08.2022. Accused denied all the allegations against him. He stated that he has been falsely implicated in the present case. Accused opted not to lead defence evidence.
5. This Court has carefully perused the case record and have heard arguments advanced by Ld. APP for the State as well as by Ld. Defence Counsel. Ld. APP for state has argued that eye witness/victim has supported the prosecution and his testimony has remained unrebutted. That the testimonies of all the prosecution witnesses have been consistent and accordingly, accused deserves to be convicted in the present case. Per contra, Ld. Counsel for accused had argued that accused has been falsely implicated in present case as he had demanded his salary from complainant who was his employer and instead of paying the same he has been implicated in the present case so as to avoid paying the dues of salary. He argued that the witnesses in the present case have been FIR No. 391/15 State v. Guddu 15 of 22 PS Anand Parbat inconsistent and there are various material inconsistencies in the documents prepared by the IO which clearly points that a forged and fabricated case has been registered against accused. Accordingly, he argued that accused deserves to be acquitted.
ANALYSIS , APPRECIATION OF EVIDENCE AND FINDING
6. Before proceeding with the appreciation of evidences, it is imperative to refer the definition of the offences charged against the accused. For better understanding section 381/411 IPC are reproduced as follow:
Section 381 IPC. Theft by clerk or servant of property in possession of master.
Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
411 IPC. Dishonestly receiving stolen property. --Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
7. In a criminal case, prosecution is required to prove the case beyond reasonable doubt. Punishment of an accused person on the basis of suspicion alone has been held to be not permissible. Suspicion cannot FIR No. 391/15 State v. Guddu 16 of 22 PS Anand Parbat give probative value to testimony which in itself is insufficient to establish or justify an inference of a particular fact. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence which inspires confidence into the story of the prosecution. In order to prove its case, prosecution is supposed to stand on its own legs and it cannot drive any benefit, whatsoever, from the weakness, if any, in the defense of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and its never shifts to the accused and the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubts entitles the accused to acquittal.
8. In order to bring charge under the section 381/411 IPC, the prosecution was supposed to bring home the following ingredients-:
Removal of property by the accused with a dishonest intention from the possession of his master or employer.
Further, in order to prove the charges under section 411 IPC the prosecution had to prove that the accused persons had dishonestly received or retained stolen property, with intention or reasons to believe or knowledge that it's a stolen property, and that the property was recovered from the possession of the accused persons.
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9. In the case in hand, PW3 Sh. Sanjay Sharma is the complainant who had deposed that he is running a factory at Industrial Area Anand Parbat and he deals in making aluminium parts at his factory wherein the accused Guddu was working as a labourer since 2009. The said witness had deposed that he had a suspicion regarding the theft of aluminium parts from his factory and therefore, he checked the CCTV footage from the camera installed in the street and found that accused Guddu was supplying aluminium plates to one scrap dealer and accordingly on 07.06.2015 he had made a complaint to police official which is Ex.PW3/A. The said witness also deposed that after inquiry by the police officials the accused Guddu confessed his crime and got recovered 05 aluminium plates and the same were seized vide seizure memo Ex.PW3/B. The said witness was cross examined by Ld.APP for the State and depoed that site plan was prepared at his instance which is Ex.PW3/C and that ESI register and DVR were seized by police officials vide seizure memo Ex.PW3/D and Ex.PW3/E. He deposed that he had handed over the bills of aluminium plates to the IO and same were seized by him vide memo Ex.PW3/F. The said witness also deposed that police officials had arrested and personally searched accused vide memos Ex.PW3/G and Ex.PW3/H and the accused had made a disclosure statement which is Ex.PW3/I. The said witness was duly cross examined by Ld. Defence counsel and during cross examination the said witness deposed that he had lodged his complaint before the police officials on 07.06.2015 and after recording of his statement at PS he came back to his FIR No. 391/15 State v. Guddu 18 of 22 PS Anand Parbat factory and on the same day in the evening the police officials had came to his factory and conducted inquiry regarding the incident and recovered the stolen property from the house of accused in his presence. During cross examination the said PW deposed that no document was prepared by the IO at the time of recovery. However, he later on stated that the seizure memo was prepared at the place of recovery in his presence but no other person signed on the seizure memo in his presence. The said witness denied the suggestion of Ld. Defence counsel that he has falsely implicated the accused in the present case and that the case property was planted upon the accused person.
10. The Prosecution had then examined PW5 HC Lokender and PW8 Const. Dharmender. PW5 HC Lokender is the IO and Const. Dharmender had accompanied the IO for the purpose of investigation on the alleged date and time. The testimony of PW5 and PW8 is not being reproduced again for the sake of brevity.
11. PW1 HC Deepak Rana, PW2 ASI Raj Kumar, PW4 SI Vidyakar Pathak, PW6 ASI Anand Singh, PW7 ASI Amit Kumar are merely formal witnesses and their testimony in itself is not sufficient enough to prove the guilt of the accused.
12. On the combined reading of testimony of PW3, PW5 and PW8 it can be seen that the complaint by the complainant PW3 Sh. Sanjay Sharma was made on 07.06.2015 and thereafter the investigation was FIR No. 391/15 State v. Guddu 19 of 22 PS Anand Parbat taken up by PW5 and PW8 and brought to an end by apprehending the accused and seizing the case property etc. in the present case on the very same date.
13. From the perusal of testimony of complainant / PW3 Sh. Sanjay Sharma it is noticed that the complainant had deposed that he had made a complaint to the police officials on 07.06.2015 which is Ex.PW3/A. The said witness had corroborated his statement made before the police officials. However, the said witness in his statement u/s 161 CrPC dated 08.06.2015 had stated that the IO had prepared the site plan at his instance and seized the ESI register as well as DVR machine on the said date. It is also noticed that in the abovesaid statement the PW Sanjay Sharma had produced the accused before the police officials and after interrogation he was arrested in the present case and he made a disclosure statement regarding the offence of present case and later on got recovered the stolen aluminium plates from his house and which was seized by the IO and other police officials. However, from the perusal of seizure memo of ESI register and DVR machine Ex.PW3/D and Ex.PW3/E it can be seen that said memos were prepared on 07.06.2015, however, the complainant in his statement u/s 161 CrPC dated 08.06.2015 states that the said ESI register and DVR machine were seized on 08.06.2015. There appears to be an inconsistency in the fact of recovery of ESI register and DVR machine and the same has not been explained by the Prosecution.
Further, the complainat / PW3 states in his statement u/s 161 CrPC that the accused was arrested on 08.06.2015 and same is corroborated by the FIR No. 391/15 State v. Guddu 20 of 22 PS Anand Parbat arrest memo of accused which is Ex.PW3/G wherein it is written that accused was arrested on 08.06.2015 at about 12:45 AM, however, the perusal of personal search memo of the accused which is Ex.PW3/H reflected that said documenet is dated 07.06.2015 and again an inconsistency appears in abovesaid documents and the same has not been explained by the Prosecution. Moreover, the material evidence i.e. seizure memo of aluminium plates Ex.PW3/B also reflects that said memo was prepared on 08.06.2015, however, the date of said memo is not consistent with the dates of other memos i.e. seizure memo of ESI Register Ex.PW3/D and seizure memo of DVR Ex.PW3/E. Again the documents of recovery of various case properties in the present case shows material inconsistency in their formation and owing to the same the arguments of Ld. Defence counsel that the case property in the present case has been planted upon the accused as the complainant / PW3 Sanjay Sharma wanted to get rid of him in order to avoid the payment of salary dues cannot be ruled out. Lastly, to give a final blow to the whole case of Prosecution, the perusal of testimony of PW2 ASI Raj Kumar who was the MHC(M) on 07.06.2015 reflects that on that day the IO / PW5 HC Lokender had deposited 02 plastic kattas containing aluminium plates sealed with the seal of APRVT-II vide entry No. 2301 in the register No. 19 and said entry is Ex.PW2/B. Accordingly, this Court finds it strange that when the case property in itself was recovered from the possession of accused on 08.06.2015 vide seizure memo Ex.PW3/B then how can the said case property be deposited in the malkhana on a date FIR No. 391/15 State v. Guddu 21 of 22 PS Anand Parbat earlier to the date of recovery. This inconsistency in the Prosecution's case becomes fatal to the case of the Prosecution as the arguments of forged and fabricated case as well as planting of case property upon the accused cannot be ruled out and the benefit of doubt of the same has to be given to the accused person. The present case is a classic example of misuse of power and procedure by the investigation agency and it appears that the arguments of the Ld. Defence Counsel qua the false implication and planting of case property upon the accused finds substance and the same cannot be ruled out for the reasons as discussed above.
14. In view of the above discussion, this Court finds that there are many loopholes in the case of the Prosecution and the fact of theft as well as recovery of stolen property from the possession of accused Guddu, does not appear to have been made out by the prosecution witnesses. Moreover, there are material inconsistencies in the case of the prosecution and therefore, the benefit of doubt is being given to the accused. Therefore, for the reasons mentioned above, the accused Guddu stands acquitted of charges u/s 381/411 IPC.
Announced in open Court (Shubham Devadiya)
on 15th day of December 2022 Metropolitan Magistrate
West-05, Delhi
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