Delhi District Court
State vs . : Ravi @ Dabba on 11 November, 2021
IN THE COURT OF RISHABH KAPOOR:
METROPOLITAN MAGISTRATE - 03 (CENTRAL)
TIS HAZARI COURTS: DELHI
State Vs. : Ravi @ Dabba
FIR No : 84/21
U/s : 380/454/411 IPC
P.S. : Rajinder Nagar
JUDGMENT:
1. Criminal Case No. : 6695/2021 2. Date of commission of offence : 09.05.2021 3. Date of institution of the case : 30.06.2021 4. Name of the complainant : State 5. Name of accused, parentage & : Ravi @ Dabba S/o Sh. Rameshwar 6. Offense complained or proved : 380/411 IPC 7. Plea of the accused : Pleaded not guilty 8. Date on which order was reserved : 28.10.2021 9. Final order : Acquitted 10. Date of final order : 11.11.2021 1 The accused is facing trial for offences u/s 380/454/411 IPC. The genesis of the
prosecution story is that on 09.05.2021, pursuant to receipt of information vide DD No.10A dated 09.05.2021 PS Rajender Nagar, the team of police reached the spot of alleged occurrence at H.No. 16/11, Top Floor, Old Rajender Nagar, Delhi and they were informed that an unknown person has trespassed into the house of complainant through balcony. Thereafter, the police entered into the house through balcony and found that the almirah was opened and the things were lying in a scattered condition. Allegedly, it was also perceived that the accused was hiding himself in the bathroom pursuant to which the police barged into the bathroom and apprehended the accused. The mobile phone of complainant was recovered by the police from the possession of accused. Pursuant to statement of complainant Manish Walhe, the criminal was set into motion vide registration of the present case FIR against accused. As per the allegations, on 09.05.2021 at around 09:26 am, accused Ravi @ Dabba had trespassed into house of complainant by entering through balcony in order to commit theft of mobile phone of complainant and he was apprehended from the bathroom of the complainant's house alongwith the stolen mobile phone. After completion of investigation, the present chargesheet for trial of accused Ravi @ Dabba for the alleged offences was submitted in the Court.
2. Thereafter, the cognizance of the offences was taken by the Court and on the basis of material available on record, charges for offences u/s 380/454 IPC and alternatively for offence u/s 411 IPC were framed against accused to which he pleaded not guilty and claimed trial.
3. In order to establish guilt of the accused, the prosecution has examined three witnesses in all. The accused also admitted certain formal documents u/s 294 Cr.P.C. After prosecution evidence, the statement of accused u/s 313 Cr.P.C was recorded wherein all the incriminating circumstances were put to the accused. The accused did not lead any evidence in his defence.
4. Ld. APP for State has contended that the prosecution has established the guilt of the accused beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses, therefore, the accused deserves to be convicted for the alleged offences.
5. Per contra, Ld. LAC for accused has contended that the accused has been falsely implicated in the present case by the complainant and police agency has acted in connivance with the complainant. It is also contended that the fact the police has failed to join in any public person during investigation of the case is self explanatory that the accused has been falsely implicated in the present case. With these submissions, prayer has been made for acquittal of accused in the present case.
6. Prior to delving into the merits of contentions advanced on behalf of parties, let us briefly discuss the testimonies of the material witnesses in brief. PW-1 Dr. Manish Walhe is the complainant in the present case. He deposed that on 09.05.2021 at about 09:15 am when, he returned at his room after attending online classes from the room of his friend at the first floor of the house, he saw that the main gate of the room was locked from inside and the window of bathroom was broken. He heard noise from inside the room and noticed that some person was there pursuant to which he made a PCR call and police reached the spot. He further deposed that the police officials entered inside the room through back door via balcony of H.No. 16/12, Old Rajender Nagar and he also accompanied the police. He further deposed that the almirah of room was opened and the goods were lying scattered on floor. He further deposed that accused Ravi @ Dabba was apprehended by the police from the bathroom and upon his search, the mobile phone make Nokia alongwith pair of artificial ear rings was recovered from his trouser which were seized by police vide seizure memo Ex.PW1/A. He further deposed that his statement Ex.PW1/B was also recorded by police and site plan Ex.PW1/C was prepared after inspection of the site. He deposed that the photographs of the goods scattered in the room and the broken window of the bathroom were also taken into possession by police after which the accused was arrested vide arrest memo Ex.PW1/D. He deposed that the bill of mobile phone Ex.PW1/E was also seized by police vide seizure memo Ex.PW1/F and the mobile phone Ex.P-1 and earings Ex.P-2 were released in his favour vide superdarinama Ex.PW1/G. In his cross examination, he stated that police arrived at his room at around 09:30 am and remained there till 01:30 pm and during that time no neighbour arrived at the room nor any person from other floors of the house or his friend from first floor, was called there. He also stated that the police did not call any public persons from any of the floor of said house nor any chance prints were obtained from the spot. He denied that the accused was not arrested from his house nor any recovery was effected from him.
PW-2 Ct. Hottam Singh is the police official who accompanied IO to the house of complainant. He stated that accused Ravi @ Dabba was apprehended by him along with IO/SI Vinod Kumar from the bathroom of complainant's house and the recovery of mobile phone make Nokia and one pair of artificial earings was effected from the pocket of trouser of accused. He deposed that the recovered articles were seized vide seizure memo Ex.PW1/A. He further deposed that after recording statement of complainant, rukka was prepared by IO and same was handed over for registration of FIR, whereafter he got registered the case FIR and handed over its copy alongwith rukka to the IO. He further deposed that the accused was also interrogated by the IO and had made disclosure statement Ex.PW2/B. In his cross examination, he deposed of being present at spot from 10:00 am to 01:45 pm. He stated that no public persons were present at the spot and that IO had asked the residents of building to join the proceedings but no one came forward. He stated that the IO did not record names and addresses of those residents of the building nor did he lift any chance prints from the spot. He denied that the accused was not apprehended from the house of the complainant or that no recovery was effected from him.
PW-3 SI Vinod Kumar is the IO of the present case. He stated that accused Ravi @ Dabba was apprehended by him along with PW Ct. Hottam from the bathroom of complainant's house and the recovery of mobile phone make Nokia and one pair of artificial earings was effected from the pocket of trouser of accused. He deposed that the recovered articles were seized vide seizure memo Ex.PW1/A. He further deposed that after recording statement of complainant, rukka vide endorsement Ex.PW3/A was prepared and same was handed over to Ct. Hottam for registration of FIR, whereafter he got registered the case FIR and handed over its copy alongwith rukka to him. He deposed that after arrest of accused vide arrest memo PW1/D, his personal search was conducted and personal search memo Ex.PW2/A was prepared. He further deposed that the accused was also interrogated by him and had made disclosure statement Ex.PW2/B. He further deposed that the copy of bill of mobile phone Ex.PW1/E was also taken into possession vide seizure memo Ex.PW1/F and photographs Ex.P-3 (colly.) were taken during the investigation. In his cross examination, he deposed of being present at spot from 10:05 am to 02:00 pm. He stated to have asked the residents of building to join the proceedings but no one came forward. He stated that the he did not record names and addresses of those residents of the building nor did he lift any chance prints from the spot. He denied that the accused was not apprehended from the house of the complainant or that no recovery was effected from him.
7. The accused also admitted the contents of DD No.10A dated 09.05.2021 Ex.A- 1, FIR No. 84/21 Ex.A-2 and certificate u/s 65B Indian Evidence Act Ex.A-3 vide his statement u/s 294 Cr.P.C.
This is the entire evidence on the case record.
8. The allegations against accused are that on 09.05.2021 at around 09:26 am, accused Ravi @ Dabba trespassed into house of complainant by entering through balcony in order to commit theft of the mobile phone belonging to complainant. It is also in the allegations that the accused was apprehended at the spot by the police and the recovery of mobile phone of complainant was effected from him.
9. The mere perusal of the chargesheet filed by the police would reflect that police had reached the spot after receiving information vide DD No. 10A dated 09.05.2021. The perusal of DD No.10A dated 09.05.2021 would reflect that said DD entry was recorded regarding the receipt of information with respect to entry of a thief inside the house of neighbour of PCR caller. The contents of chargesheet would also reflect that accused Ravi @ Dabba was caught by the police from inside the bathroom of complainant's house. Therefore, it was incumbent on the part of IO to join the said PCR caller/neighbour of the complainant in the investigation of the case but surprisingly, no such person was associated in the investigation, for the reasons unexplained. The testimony of all the PWs reflects that the place of alleged occurrence is a multi-storey building with the persons residing on different floors but no such person was associated in the investigation of the case for the reasons unexplained. It also perceives that the IO had remained present at the spot for a period of almost four hours but surprisingly during aforesaid period, no public persons were associated in the investigation of the case. IO has though tried to justify that the neighbors of complainant refused to join the proceedings of investigation but this justification given by the IO does not appear to be plausible. In case of refusal of public persons to join the investigation, IO was having remedies available in law to proceed against said public persons but such course has not been adopted by the IO for the reasons best known to him. The mere perusal of DD No.10A dated 09.05.2021 would reflect that PCR call was made by a public person but no investigation was made to ascertain his details nor he has been cited as witness in the present case. The above discrepancies pointed out in the versions of prosecution witnesses coupled with the omissions on the part of IO, casts doubts on the fairness of the investigation conducted by the police and gives strength to the version of the accused that he has been falsely implicated in the present case. The omission to associate the PCR caller in the investigation of the case also casts reasonable doubts on the version put forth by the prosecution and gives strength to the version of accused. Even though it has been stated that the recovery of alleged stolen mobile and artificial earrings was effected by the IO from the trouser of the accused but no independent witness to establish such recovery was examined in the present case. In these given circumstances, it was incumbent on the part of prosecution to establish the recovery of the mobile phone and artificial earrings of complainant from the possession of accused Ravi @ Dabba with some cogent and reliable evidence so as to fix the liability of accused for the alleged offences. It is worthwhile to mention that no independent public persons were cited as witnesses to the alleged recovery of stolen phone and artificial earrings from the possession of accused Ravi @ Dabba. Section 100(4) Cr.P.C. casts a duty upon the police to call upon two or more independent public persons of the locality in which the place of search is situated. It is also incumbent on the part of police to make such independent public persons a witness to the search which has to be conducted by the police. The police has however, failed to join upon the independent public persons at the time when the search of accused was made, despite availability of said public persons on the spot. These facts further casts serious doubts on the version of prosecution and also create doubts on the credence of the search proceedings of accused during which the recovery of alleged mobile phone and artificial earrings belonging to complainant has been stated to be effected.
10. In view of the discussion made above, this Court is of the considered view that the prosecution has failed to establish beyond all reasonable doubts that on the given date, time and place accused Ravi @ Dabba had trespassed into the house of complainant by entering through balcony for committing theft of mobile phone of complainant, therefore, the accused deserves to be acquitted for offences u/s 380/454 IPC. The prosecution has also failed to prove beyond all reasonable doubts that after apprehension of accused from the spot, he has was found in possession of the alleged stolen mobile phone belonging to complainant which was dishonestly received or retained by him knowingly that same was a stolen property. Therefore, accused also deserves to be acquitted for offence u/s 411 IPC. The accused is accordingly is acquitted for offences u/s 380/454/411 IPC.
11. The bail bonds, if any furnished by accused at the time of commencement of trail stands canceled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands canceled. Case property if any, shall be disposed off after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
Announced in the open court on 11th day of November, 2021 (Rishabh Kapoor) MM-03 (Central), THC, Delhi