Delhi District Court
) Fsl Report Was Obtained. As Per Fsl ... vs State Of Maharashtra Reported Air 1995 on 3 May, 2013
IN THE COURT OF MS. PURVA SAREEN
METROPOLITAN MAGISTERATE01, SOUTH, SAKET COURT
State v. Mohd. Shahid
FIR No.55/09
PS SJ Enclave
U/s 457/380/411 IPC
JUDGMENT
Date of Institution : 30.03.2010
Date of commission of offence : Intervening night of 25/26.11.2009
Name of the complainant : Vinay Singhal
Name & address of the accused :Mohd. Shahid S/o Mohd. Yasin
R/o New Abadi, Daulatram Market
Kathera Road, Dadri, Distt Gautambudh
Nagar, Uttar Pradesh
Offence complained of : 457/380/411 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 01.05.2013
Date of announcing of judgment : 03.05.2013
Briefly stated the facts of the case are :
1. The story of prosecution is that in the intervening night of 25/26.11.2009 between 11 pm to 11 am at House No.K39, Hauz Khas accused Mohd. Shahid committed house breaking in the night State v. Mohd. Shahid Page 1 FIR No.55/09 PS SJ Encalve and committed the theft of two mobile phones (HTC and Blackberry), two purses containing Rs.20,000/, 40 American Dollar, one TV (Samsung), one DVD player and some documents belonging to complainant Vinay Singhal.
2. The FIR in the present case was registered u/s 457/380/411 IPC. On 27.11.2009 accused was arrested. Investigation was done. Statement of witnesses were recorded. Accused was arrested and after completion of investigation, challan was filed before the court.
3. Prima facie charge u/s 457/380 IPC was framed against the accused on 21.03.2011 by. Ld. Predecessor Court to which accused pleaded not guilty and claimed trial.
4. To prove its case the prosecution has examined eight witnesses as under :
(i) PW1 Vinay Singhal was complainant who deposed that on 26.11.2009 he had got up at about 11 am and found that household articles were in scattered condition and two mobile phones, two purses containing Rs.20,000/, 40 American Dollar, one TV, one DVD player and some other documents were missing. The window glass of the drawing room was found deattached. Complaint was made to the police. Site plan was prepared at his instance. One khurpa lying near the window was seized by the police. Crime team also visited his State v. Mohd. Shahid Page 2 FIR No.55/09 PS SJ Encalve house. On 298.11.2009 he identified the accused as accused has been working in his house as carpenter. Accused pointed out the place of commission of offence. Police informed that cash of Rs.12,000/ and articles were recovered. The case property was later on got released on superdari by him.
Accused did not prefer to cross examine the witness.
(ii) PW2 HC Bhagwan Singh deposed before the court that on 26.11.2009 on receipt of call from South District Control Room he reached at the spot and remained there from 5 pm to 6 pm and checked the window glass already removed from the window widing. The receipt with respect to the same Ex.PW2/A. Accused did not prefer to cross examine the witness.
(iii) PW3 SI Chander Shekhar deposed before the court that on 27.11.2009 he was on patrolling duty along with SI Jai Veer Singh, HC Stephen Timma and Ct. Baldev Singh near Syndicate Bank, Hauz Khas. At about 11 pm they saw accused with a TV and DVD player who came out from an empty place near Syndicate Bank. On suspicion he was inquired but he could not answer satisfactory. On cursory search two mobile phones, two purses were recovered from him. On interrogation he disclosed that articles were stolen by him from K39, Hauz Khas Enclave where he was working as a carpenter. The entire articles were seized. Rukka was prepared and FIR bearing No.406/09 at PS Hauz Khas u/s 411 IPC was got registered. Accused was arrested and case property was deposited into malkhana of PS State v. Mohd. Shahid Page 3 FIR No.55/09 PS SJ Encalve Hauz Khas. Disclosure statement of accused was recorded. Information was sent to PS SJ Enclave and copy of proceedings were handed over to IO/HC Ram Singh. IO recorded his statement.
In leading question by Ld. APP for the state witness stated that two mobile phones (HTC touch screen and Blackberry of black colour), Rs.12,000/, 14 American Dollar were recovered from the right pocket of the pant of the accused and one iron punch was recovered from his left pocket and two black purse containing three ATMs belonging to Vinay Singhal. Witness admitted that one DVD player of LG and TV (Samsung) recovered from the accused.
In his cross examination by ld. Defence counsel it is stated by witness that no public person was present at the spot. It is further stated by witness that he did not remember the denomination of currency recovered from the accused. No mark was put on the currency notes. He had sealed the recovered items.
(iv) PW4 Ct. Baldev Singh deposed before the court that on 28.11.2009 he along with SI Chander Shekhar produced the accused Mohd. Shahid in the court of Duty MM at PHC regarding case bearing FIR No.406/09, u/s 41 IPC registered at PS Hauz Khas and accused was formally arrested by HC Ram Singh, PS SJ Enclave.
Accused did not prefer to cross examine the witness.
(v) PW5 HC Satish Kumar was duty officer who proved the FIR vide memo Ex.PW5/A and endorsement vide memo Ex.PW5/B. Accused did not prefer to cross examine the witness.
State v. Mohd. Shahid Page 4
FIR No.55/09 PS SJ Encalve
(vi) PW6 Ct. Jaipal Singh deposed that on 26.11.2009 he along with HC Ram Singh joined the investigation of the present case and went to the spot and found household articles were scattered. IO recorded the statement of complainant, prepared rukka and get the FIR registered through him. He returned back at the spot and handed over original rukka and copy of FIR to IO. Crime Brach also visited the spot. Glass of window and one khurpa was found lying there. Same were seized. IO recorded his statement.
In his cross examination by ld. Defence counsel it is stated by witness that he had made the departure entry. He went to PS along with rukka at about 12.30 pm and returned back with copy of FIR after 45 minutes. They finally left the spot at 3 pm.
(vii) PW7 HC Ram Singh deposed before the court that on 26.11.2009 complainant Vinay Kumar came to PS with complaint. Thereafter, he along with complaint went to the spot i.e. K39, Hauz Khas and inspected the spot and found that the household articles were scattered here and there. One glass of one window like path was found removed and kept in the drawing room. One iron made article i.e. Khurpa was placed near the glass. Rukka was prepared by him and go the FIR registered through Ct.Jai Pal Singh. He came back at the spot after getting the FIR registered with the copy of FIR and original rukka. Crime team was also called. He inquired from the nearby people but nobody told him about the incident of theft. Crime team obtained chance prints from five places. He recorded the State v. Mohd. Shahid Page 5 FIR No.55/09 PS SJ Encalve statement of crime team members and they left the spot. Thereafter he came back to PS. On 28.11.2009 one DD No.35B was received regarding arrest of one person namely Mohd. Shahid who had confessed about the theft committed in the present case and got recovered articles stolen. Thereafter he along with Ct.Suresh and SI Jai Prakash went to PHC where accused was interrogated and his disclosure statement was recorded. Thereafter the accused was arrested. One day PC remand of accused was obtained. Accused was taken to the spot of incident. Accused stated that he had kept/hidden the stolen articles in the bushes which was later on recovered by SI Chander Sekhar. Thereafter they came back at the PS. Accused was sent to custody. Case property was deposited in the malkhana. Statement of witnesses were recorded. Charge sheet was prepared and filed before the court.
In his cross examination by ld. Defence counsel it is admitted by witness that when he received the complaint on 26.11.2009, he did not have the details and particulars of identification like IMEI number of mobile or any serial number of the stolen articles. No photographs were taken to show that articles were scattered in the house and window was removed from the window pane. It is further admitted by witness that the complainant Vinay Kumar Singhal never gave the description of the important documents lost during the alleged theft. It is further stated by witness that he could not verify the ownership of the alleged stolen articles as State v. Mohd. Shahid Page 6 FIR No.55/09 PS SJ Encalve the documents of ownership had been lost by the complainant and he could not produce the same before me. Again said bills of old articles were not with the complainant but other bills were given by him to him. It is further stated that he did not recover any stolen article from the accused and all the recovery was made by SI Chander Shekhar.
(viii) PW8 HC Ram Singh deposed that on 27.11.2009 he was working as MHCM at PS SJ Enclave and on that day SI Chander Shekhar brought certain articles vide RC No.133/21 dt.02.12.2009 and deposited the same vide entry No.2104 in register no.19.
Accused did not prefer to cross examine the witness.
5. Thereafter, the prosecution evidence was closed. After closing of prosecution evidence, statement of accused was recorded U/s 313 of CrPC. In his statement, accused denied the version of prosecution.
6. Arguments address by ld. APP for the state and counsel for accused. I have heard the arguments and gone through the documents on record.
7. There are many discrepancies between the statement of witnesses. The story of the prosecution is not collaborated with the statement of witnesses.
1) FSL report was obtained. As per FSL report, neither the chance State v. Mohd. Shahid Page 7 FIR No.55/09 PS SJ Encalve print could be identified nor matched with the finger prints of the accused which were obtained from the spot.
2) It is highlighted that IO has not joined any public witness. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completing the formalities but none of them was even requested to become a witness. This casts doubt about the sincere efforts made by the IO to join independent witnesses. In Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly held in the case Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, it is settled law that whenever any recovery in connection with the place of the commission of offence is made, public person must be made witness. The section 100(4) CrPC provided that "before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to State v. Mohd. Shahid Page 8 FIR No.55/09 PS SJ Encalve attend the witness the search and may issued an order in writing to them or any of them so to do". The IO have failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation.
8. All these infirmities in the prosecution case make the same doubtful and the benefit of which must be given to the accused.
9. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Istaq @ Sukka is acquitted for the offence punishable U/s 457/380 IPC.
10.Bail bond to remain in force for a period of one month u/s 437A CrPC.
File be consigned to Record Room.
Announced in the open court (PURVA SAREEN)
on 3rd May 2013 METROPOLITAN MAGISTERATE01
SOUTH, SAKET COURT, NEW DELHI
State v. Mohd. Shahid Page 9
FIR No.55/09 PS SJ Encalve