Delhi District Court
3.Title State vs . Khalid on 27 January, 2014
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
1.FIR No. 366/2001
2.Unique Case ID No. 02402R0296602003
3.Title State Vs. Khalid
3(A).Name of complainant Lali @ Roshni, C/o Sh. Tilak Raj, R/o
A-72/4, West Vinod Nagar,
Mandawali, Delhi.
3(B).Name of accused (1) Khalid, S/o Mohd. Qamar, R/o
179, Basti Mohd. Nizamuddin,
Delhi.
(2) Asif, S/o Sh. Maroof, R/o
E-83/A Shaheen Bagh, Okhla,
Abu Fazal Enclave, Delhi.
4.Date of institution of challan 03/01/02
5.Date of Reserving judgment 18/01/2014
6.Date of pronouncement 27/01/2014
7.Date of commission of offence 04/11/01
8.Offence complained of Under Section 380/457/34 IPC
9.Offence charged with Under Section 380/457/411/34 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Convicted U/s 411/34 IPC
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. Briefly the case of the prosecution is that on 4.11.2001 in between 3.00am to 3.30am at third floor in H.No. A-72/4, West Vinod Nagar, accused Khalid and Asif committed theft by way of lurking house tress pass in the house of the complainant Lali @ Roshni (Eunuch) of Rs. 1,75,000/-, 25 tolas of gold jewellery and 30--35 tolas of silver jewellery. Subsequently on the same date from H.No. 179, Mohalla Basti Nizamuddin, cash amounting to Rs. 91,790/- alongwith gold and silver jewellery as per list Mark A was recovered from the possession accused FIR No. 366/2001 State Vs Khalid 1 of 22 Khalid which was the property stolen from the house of Lali @ Roshni.
2. In this case charge sheet was filed by the IO under the provisions of Section 380/457/34 IPC on 3.1.2002 and the cognizance for the offence was taken on the very same date by the Ld. Predecessor of this Court. Thereafter, the copy of the documents were supplied to the accused persons and after the compliance of the provisions of Section 207 Cr.P.C and after hearing parties, charge for the offence punishable 380/457/411/34 IPC was framed against accused Khalid and charge for the offence punishable U/s 380/457/34 IPC was framed against accused Asif on 29.4.2002, to which they pleaded not guilty and claimed trial.
3. Thereafter, matter was fixed for prosecution evidence.
Prosecution in order to prove its case against the accused persons in total has examined as many as 7 witnesses namely PW-1 Ms. Lali @ Roshni (Complainant), PW-2 Ms. Payal @ Seema, PW-3 Sh. Sanjay Kumar, PW-4 ASI Sherpal Singh: Duty Officer, PW-5 HC Inderpal, PW-6 SI D.K. Tejwan, PW-7 Ct. Jitender.
4. In the present matter accused Asif was declared PO and during the period when he was declared proclaimed offender evidence of Duty Officer, PW-4 ASI Sherpal Singh was recorded. However, on 18.1.2014, it was submitted by accused Asif that he wishes to admit the factum of registration of FIR, denying the contents therein and therefore, the registration of FIR was considered as admitted on behalf of accused Asif .
FIR No. 366/2001 State Vs Khalid 2 of 22
5. PW-1 Ms. Lali @ Roshni is the complainant in the present matter and has deposed that on 4.11.2001 at about 3.30am when she came back to her house she found that the main door of her house was open and after entering the house she found that her almirah, which was kept in one room was broken and the articles were scattered in the room and jewelery and cash were missing. It was further deposed by the witness that meanwhile her driver Sanjay also came and told her that he had seen one Asif roaming around the house at about 3.00am and thereafter she informed the police.
6. It was further deposed by the witness that she found that her gold mangal sutra, one gold jewellery set, 2-3 silver jewellery sets, 2-3 gold gent rings, 3-4 gold ladies rings, 2-3 gold chains, 1 gold pendant, 3 pairs of gold tops, 2 pairs of pajeb, 2 chutki of silver and Rs. 1.75 lacs cash was missing from the house. It was deposed by the witness that the finger prints were lifted from her house by the police and other investigation was done and thereafter her statement was recorded by the police Ex. PW-1/A bearing her signatures at point A.
7. It was further deposed by the witness that she told police that Asif resides at Nizamuddin area and thereafter she accompanied the police to that place and when they were passing through the road near Nizamuddin Railway Station, she spotted accused Asif and pointed out towards him. The witness correctly identified accused Asif present before the court.
8. It was further deposed by the witness that accused Asif started running on seeing them and after chasing was apprehended by the police and was arrested thereafter and his FIR No. 366/2001 State Vs Khalid 3 of 22 personal search was conducted vide personal search memo Ex. PW-1/B. It was further deposed by the witness that on enquiry Asif told that one Khalid was also involved in the theft and he can get him arrested and thereafter accused Asif led them to the house of Khalid which was situated in the area of Nizamuddin where Khalid was found sleeping on the ground floor of the house. It was further deposed by the witness that thereafter accused Khalid was interrogated by the police. The witness correctly identified accused Khalid present before the court.
9. It was further deposed by the witness that accused Khalid got recovered one bag from the body of the television kept in his house and the said bag was containing some of the stolen jewellery belonging to the witness i.e. one gold jewellery set, one gold mangal sutra, two pair of gold tops, one pair of silver pajeb, one pair of silver chutki, three gold ladies rings, two gold gent rings, three silver jewellery sets with gold polish and cash amounting approximately, Rs. 91,700/-. It was deposed by the witness that police took into possession all the recovered articles vide seizure memo Ex. PW-1/C bearing her signatures at point A and B. Thereafter, the police kept the recovered articles in a cloth piece and sealed the same and again recorded her statement. Accused Khalid was also arrested and he was personally searched vide personal search memo Ex. PW-1/D bearing her signatures at point A.
10. It was further deposed by the witness that accused Asif was known to her prior to the date of incident as she also used to reside in the area of Nizamuddin.
11. As the currency notes were released on superdari, FIR No. 366/2001 State Vs Khalid 4 of 22 photocopy of the currency notes were produced by the MHC(M) and the witness correctly identified the photocopies and the same were exhibited as Ex. P-1 colly. The witness also identified the case property i.e. golden mangal sutra as Ex. P-2, one gold gent ring Ex. P-3, two golden ladies ring Ex. P-4 (Colly.), one pair of golden tops Ex. P-5 (colly.), one golden set Ex. P-6, one golden locket Ex. P-7, three silver jewellery sets with golden polish Ex. P-8 (Colly.), one pair of silver pajeb Ex. P-9 (Colly.), two silver chutkis Ex. P-10 (Colly.), one gent ring (Gold colour) Ex. P-11, one broken gent ring (Gold Colour) Ex P-12, one golden colour gent ring having one white colour gem Ex. P-13, One golden colour ladies ring having green gems Ex. P-14, one pair of golden colour tops Ex. P-15, one pair of silver colour pajeb Ex. P-16, one metal statue of lord Ganesh, one metal statue of goddess Laxmi, two metal statues of Lord Laxmi and Ganesh, Ex. P-17 Colly.
12. The witness was cross examined by the Ld. APP for State with the permission of Court on the fact of recovery of case property and it was admitted by the witness that the property was recovered from one locker/tijori kept in the room of accused Khalid.
13. In the cross examination by Ld. Counsel for accused it was deposed by the witness that on the date of incident she alongwith Payal and her other associates left the house for the function at about 11.00-11.30pm and her driver Sanjay had not accompanied her and the house was locked. It was further deposed that one key of the house was in her custody and another key was in custody of driver Sanjay. It was further deposed that police was informed after about 15-20 minutes of FIR No. 366/2001 State Vs Khalid 5 of 22 reaching home by her.
14. It was further admitted by the witness in her cross examination that accused Asif used to visit her house for seeking work if any. It was further admitted that she does not possess any purchase receipt of the jewellery produced by her in the court. It was further admitted that she has not seen any of the accused persons roaming around her house prior to the time when she has left her house.
15. PW-2 Payal @ Seema has deposed that on 3.11.2001 she alongwith her friend Lali i.e. the complainant has left their house at about 9.00pm for attending a function at Mehrauli and when she alongwith complainant came back to their house at about 3.00-4.00am, they found that the main door of the house was open and after entering the house they found that the almirah was also open and on checking Lali told that her precious jewellery and cash were missing from the almirah and thereafter police was informed about the incident. It was further deposed by the witness that meanwhile Sanjay also came and told them that he had seen Asif and Khalid roaming around the house in the same night.
16. It was deposed by the witness that accused Asif was known to her prior to the date of incident. Thereafter she alongwith the complainant accompanied the police to Nizamuddin area where accused Asif and Khalid used to reside and when they reached near Nizamuddin Railway Station, they spotted accused Asif and at their instance accused Asif was apprehended by the police. It was further deposed by the witness that on enquiry accused Asif told that one Khalid was also involved in the theft and he can get him arrested and FIR No. 366/2001 State Vs Khalid 6 of 22 thereafter accused Asif led them to the house of Khalid at around 6.00-7.00am and there they found that the main gate of the house of accused Khalid was open. It was further deposed by the witness that when they entered into the house, Khalid was found sleeping in the right hand side room of the house. It was however, further deposed by the witness that the police has asked accused Asif to knock the door and accused Khalid has opened the door.
17. It was further deposed by the witness that thereafter accused Khalid was manhandled by the police for the purpose of investigation and there was a showcase type almirah kept in the room in which one locker was there from where accused Khalid got recovered cash and jewellery which was identified by Lali @ Roshni, as stolen property.
18. It was further deposed by the witness that police took into possession all the articles vide seizure memo Ex. PW-1/C bearing her signatures at point C and D. It was deposed by the witness that about Rs. 91,700/- were recovered from the possession of Khalid and her statement was recorded by police and they remained present at the house of Khalid till 10.00-11.00am. The witness correctly identified both the accused persons present before the court. The witness further correctly identified the photocopy of currency notes and the case property.
19. As despite opportunity the witness was not cross examined by the counsels for the accused, the witness was discharged from the matter, however, on the submissions of Ld. Counsel from Legal Aid the witness was recalled vide order of the court dated 19.8.2013 for the purpose of cross FIR No. 366/2001 State Vs Khalid 7 of 22 examination.
20. In the cross examination it was deposed by the witness that she had not seen any person entering or coming out from the house or breaking the lock of the house or committing theft in the house. It was further deposed by the witness that the driver had not come upstairs and was at the ground floor and they had came back at about 1.00am. It was further deposed that when they have earlier left for Mehrauli, Asif has also left the house just before them, however accused Asif or any other person was not seen at the house when they came back.
21. It was further deposed by the witness that the documents were prepared by the police after recovery and she does not remember how many documents were signed by her. Finger prints were also lifted from the house.
22. It was further deposed that the seal was used by the police only once in her presence and the house of Khalid was bolted from inside and was opened by Khalid.
23. PW-3 Sanjay Kumar has deposed that at the time of the incident he was employed as a driver in van of the complainant and on the day of incident was present in Vinod Nagar. It was further deposed by the witness that at around 3.00am when he locked the house of Lali and came down stairs he saw Asif and Khalid going towards temple and when returned back at around 3.30am he saw that the almirahs were broken and jewellery and other articles were missing and stolen. It was further deposed by him that he had joined investigation of the present case and had gone alongwith police to Nizamuddin and near Nizamuddin he saw Asif and accused Asif was also identified by Lali and was subsequently apprehended and interrogated by FIR No. 366/2001 State Vs Khalid 8 of 22 police. The accused Asif disclosed that he alongwith Khalid had comitted theft in the house of Lali and he is about to meet other accused Khalid at 12.00noon.
24. It was further deposed by the witness that thereafter a raid was carried at Nizamuddin basti on the ground floor of the house of Khalid and the stolen articles were recovered in a Tijori kept by Khalid and accused Khalid had produced the stolen articles from Tijori and these articles were identified by the complainant and cash amounting to Rs. 91,000/- approximately was also recovered. Thereafter, IO prepared two pulanadas and sealed them with the seal of DKT and the case property was also seized vide seizure memo Ex. PW-1/C. The witness correctly identified bundle of photocopy of currency notes Ex. P-1 (Colly.) and the case property Ex. P-1 to Ex. P-17.
25. As despite opportunity the witness was not cross examined by the counsels for the accused, the witness was discharged from the matter, however, on the submissions of Ld. Counsel from Legal Aid the witness was recalled vide order of the court dated 19.8.2013 for the purpose of cross examination.
26. In his cross examination, it was deposed by the witness that he had not seen any accused person while committing theft or breaking lock of the house of the complainant. It was however deposed by the witness that he had seen accused Asif while he was coming out of the house of Lali. However, he had not told the same in his previous statement recorded by the police. It was further deposed by the witness that no document was prepared in his presence by the police officials. It was further deposed by the witness that besides Khalid his sister FIR No. 366/2001 State Vs Khalid 9 of 22 was present in the house who opened the door. Thereafter sister of Khalid made a complaint at PS Nizamuddin and thereafter, police officials of Nizamuddin also came there. It was further deposed by the witness that in his presence the police officers had not handed over seal to any public person.
27. PW-4 ASI Sher Pal Singh, is the duty officer in the present matter and has proved before the court his endorsement upon rukka Ex. PW-4/A bearing his signatures at point A and registration of FIR bearing no. 366/2001 Ex. PW-4/B bearing his signatures at point A, on the basis of the said rukka.
28. PW-5 HC Inderpal has deposed that on 4.11.2001, he alongwith IO/SI D.K. Tejwan and the complainant went in search of accused Asif towards Nizamuddin Basti from where accused Asif was arrested at the instance of the complainant and his personal search was conducted vide memo Ex. PW-1/B bearing the signature of the witness at point B and the disclosure statement of accused Asif was recorded which is Ex. PW-5/A bearing the signature of the witness at point A. It was further deposed by the witness that after apprehension of accused Asif all of them went to H.No. 179, Nizamuddin Basti from where other accused Khalid was apprehended and thereafter accused Khalid was arrested and his personal search was conducted vide memo Ex. PW-1/D bearing the signature of the witness at point B and his disclosure statement was recorded Ex. PW-5/B bearing the signatures of the witness at point A.
29. It was further deposed by the witness that the IO searched the room of accused Khalid and at the instance of accused Khalid jewellery and cash were recovered which were FIR No. 366/2001 State Vs Khalid 10 of 22 seized vide memo Ex. PW-1/C bearing the signatures of the witness at point F. It was further deposed that one rod was also recovered which was seized vide memo Ex. PW-5/C bearing signatures of the witness at point A. It was further deposed that thereafter, IO prepared the sketch of the rod which is Ex. PW-5/D bearing signatures of the witness at point A. It was further deposed by him that thereafter IO recorded his statement.
30. The witness correctly identified both the accused present before the court and also identified the photocopies of the currency notes Ex. P-1 (Colly.), and the unsealed rod Ex. P-11. As the case property was already produced by the superdar and was exhibited as Ex. P-2 to Ex. P-10, the production of the case property was dispensed with at the time of deposition of PW-5.
31. In his cross examination it was deposed by the witness that IO has not offered his personal search to the accused prior to the search of the accused and further the IO has not requested any public person to join the proceedings prior to conducting the search of the accused.
32. PW-6 SI D.K. Tejwan is the IO of the present matter and has deposed that on 3 /4 November 2001, he received a call from PCR at about 3.30am regarding theft and thereafter, he alongwith Ct. Inderpal and Ct. Jitender reached at the spot at H.No. 72/4 West Vinod Nagar, Delhi, third floor where he found that the flat was open the goods were lying inside the flat in scattered condition and the lockers of the almirah were also open. Thereafter, he recorded the statement of complainant regarding theft Ex. PW-1/A bearing his signatures at point B. Then he informed the crime team and thereafter he prepared FIR No. 366/2001 State Vs Khalid 11 of 22 rukka Ex. PW-6/A bearing his signatures at point A and got the case registered through Ct. Jitender, who inturn went to the PS, got the case registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to the witness.
33. It was further deposed by the witness that meanwhile he prepared site plan of the spot at the instance of the complainant Ex. PW-6/B and the same bears his signatures at point A. Crime team also reached the spot and took photographs of the spot and lifted chance prints from the spot.
34. It was further deposed by the witness that thereafter he enquired from the servant of Lali about the incident and recorded his statement and also made enquiry from the neighbours, as per which it was disclosed by them that Mohd. Asif had been seen walking near the spot on the night of the incident.
35. It was further deposed by the witness that thereafter he alongwith complainant, servant of Lali namely Sanjay and Ct. Inderpal, Ct. Jitender, and 2-3 friends of Lali reached at Nizamuddin Railway Station where Lali pointed out towards Mohd. Asif and thereafter Asif was apprehended. The witness correctly identified accused Asif present before the court.
36. It was further deposed by the witness that after apprehension accused Asif was interrogated and during interrogation he confessed his guilt and also submitted that accused Khalid was also involved. The disclosure statement of accused Asif was recorded Ex. PW-5/A bearing signatures of the witness at point B. Thereafter, accused Asif was arrested and his personal search was conducted vide memo Ex. PW-1/B FIR No. 366/2001 State Vs Khalid 12 of 22 which bears the signature of the witness at point C.
37. It was further deposed by the witness that pursuant to his disclosure statement accused Asif got recovered one iron rod used in the offence from the naala situated at the corner of Gopalji Store and the same was seized vide seizure memo Ex. PW-5/C and he prepared its sketch Ex. PW-5/D bearing his signatures at point B.
38. It was further deposed by the witness that thereafter accused Asif took them to the house of accused Khalid where at the instance of accused Asif, accused Khalid was apprehended. The witness correctly identified accused Khalid present before the court. It was deposed by the witness that thereafter he interrogated Khalid and recorded his disclosure statement Ex. PW-5/B bearing his signatures at point B. Thereafter, accused Khalid was arrested and his personal search was conducted vide memo already exhibited as Ex. PW-1/D bearing signatures of the witness at point C.
39. It was further deposed by the witness that in pursuance of his disclosure statement accused Mohd. Khalid got recovered Rs. 91,790/- and the jewelleries belonging to the complainant from an iron Tijori lying in the house of Khalid. The said cash and jewellery was seized vide seizure memo Ex. PW-1/C bearing signatures of the witness at point F. It was further deposed that thereafter he prepared the cloth pulanda of the above said cash and jewelleries and sealed them with the seal of DKT and the seal after use was handed over to the complainant Lali. It was further deposed that the complainant identified the case property at the spot. Thereafter, he recorded the statement of the witnesses U/s 161 Cr.P.C. and deposited the case property FIR No. 366/2001 State Vs Khalid 13 of 22 in the Malkhana. The accused were sent to judicial custody and after preparing charge sheet he filed the charge sheet in the court.
40. The witness identified the photocopies of the currency notes Ex. P-1 (Colly.), and the unsealed rod Ex. P-11. As the case property was already produced by the superdar and was exhibited as Ex. P-2 to Ex. P-10, the production of the case property was dispensed with at the time of deposition of PW-6.
41. In his cross examination it was deposed by the witness that the recovery was conducted at about 12.00pm to 1.00pm on 4.11.2001 and no site plan was prepared of the place of recovery. It was further deposed that no neighbour was ready to give statement. It was further admitted by the witness that he had not seized the box in which yellow polythene was kept.
42. PW-7 Ct. Jitender has deposed that on 4.11.2001 on receipt of DD No. 10A, he alongwith IO/SI D.K. Tejwan and Ct. Inderpal reached at the spot where they saw that the locker of the almirah was broken and articles were lying in scattered condition. IO recorded the statement of complainant and prepared rukka and handed over the same to him for the purpose of registration of FIR. Thereafter he alongwith copy of FIR and original rukka came back to the spot and handed over the same to the IO.
43. In his cross examination it was deposed by the witness that they reached the spot at around 3.00am and in his presence the statement of the complainant was recorded only once.
44. Prosecution evidence was closed in the present matter vide order dated 11.11.2013 and the matter was fixed for FIR No. 366/2001 State Vs Khalid 14 of 22 statement of accused. Statement of accused persons were recorded on 29.11.2013, however, as it was submitted by the accused persons that they do not wish to lead any evidence in their defence, the matter was fixed for final arguments.
45. Final arguments are heard as advanced by Ld. APP for State and the Ld. Counsel for accused persons.
46. It is a settled legal principle that the prosecution has to prove its case against the accused persons beyond the shadow of all reasonable doubts and has to stand upon its own legs. The prosecution cannot draw any strength from the weakness of the case of the accused. It is also a settled proposition in the criminal law that the accused had a pious right of not to be convicted for an offence which is not established beyond reasonable doubts by the prosecution. The burden of proof in a criminal trial always rest upon the prosecution and the same never shifts on accused.
47. The accused persons in the present case have been charged for the offence punishable U/s 380/457/34 IPC and accused Khalid has also been charged for the offence U/s 411 IPC.
Section 380 IPC reads as under:-
Theft in dwelling house, etc.:-Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
FIR No. 366/2001 State Vs Khalid 15 of 22
Section 411 IPC reads as under:-
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.
Section 457 IPC reads as under:-
Lurking house-tresspass or house
breaking by night in order to commit
offence punishable with
imprisonment:- Whoever commits
lurking house-tresspass by night, or house breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine , and if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
Section 34 IPC reads as under:-
Acts done by several persons in furtherance of common intention :-
When a criminal act is done by several FIR No. 366/2001 State Vs Khalid 16 of 22 persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
48. In the present matter the accused persons are charged for the offence U/s 380/457/34 IPC and accused Khalid is charged in the alternative for the offence U/s 411 IPC. In order to constitute the offence of theft in dwelling house, it is necessary for the prosecution to prove before the court that the theft has been committed by the accused persons and that the same has been committed in a building used as human dwelling.
49. Further, in order to constitute the offence punishable U/s 457 IPC it is necessary to prove before the court that the said theft was committed after committing lurking house tress pass or house breaking by night.
50. In the present matter perusal of the testimonies of the prosecution witnesses in their entirety reveals that chance prints were obtained from the spot by the crime team as it is deposed by PW-1 that finger prints were lifted from her house by the police and it is further deposed by PW-6 i.e IO that crime team has reached the spot and has taken photographs of the spot and has lifted chance prints from the spot. However, nothing has come on record which can show before the court that the finger prints of the accused persons are matching with the chance prints lifted from the house of the complainant. No scientific report or expert report has been placed on record.
51. It is only deposed by the witnesses that PW-3 Sanjay, has seen the accused persons at around 3.00am near thehouse of FIR No. 366/2001 State Vs Khalid 17 of 22 the complainant, however, PW-2 Payal has deposed in her cross examination that when she alongwith the complainant had earlier left the house for Mehrauli, accused Asif has left the house sometime before them. It was further deposed by the witness that when they came back they had not Asif or any other person near the house. PW-3 Sanjay also in his cross examination has deposed that he had not seen the accused persons committing the theft or breaking open the lock of the house of the complainant.
52. In view of deposition of PW-3, though it is proved that the accused persons were seen near the house of the complainant around the time of the incident, however, the presence of the accused persons near the spot of the occurrence is a circumstantial evidence against them. But the chain of circumstantial evidence does not get completed as the chance prints lifted from the house of the complainant does not match with the prints of the accused, and the same can be inferred as no evidence with respect to their matching/non-matching is placed on record. In the absence of matching of prints and in the absence of any direct testimony that somebody had seen the accused persons committing theft by way of lurking house tress pass, accused persons cannot be held guilty for the offence punishable U/s 380 or 457 IPC. The essential ingredients for attraction of these offences are not proved before the court.
53. However, in the present matter the perusal of the testimony of the complainant, shows that the complainant has deposed before the court that accused Asif has disclosed in her presence that co-accused Khalid was involved in theft and he FIR No. 366/2001 State Vs Khalid 18 of 22 led the complainant, her associates alongwith police officials to the house of Khalid. It was further deposed by the complainant that in her presence the case property was recovered from the possession of accused Khalid and was seized vide seizure memo Ex. PW-1/C bearing her signatures at points A and B. PW-2 Payal, has also deposed on the same lines and has deposed that the seizure memo bears her signatures at points C and D. It was also deposed by PW-2 that Asif has told in her presence that Khalid was also involved and the case property thereafter, in her presence was recovered from possession of accused Khalid. PW-3 Sanjay, has also deposed on the same lines.
54. Though there is discrepancy in the testimony of the complainant regarding the place of recovery of the stolen property as earlier it is deposed by the complainant that the same was recovered from the body of television and later on she is deposing that the same was recovered from the locker/tijori. However, reading her testimony in entirety coupled with testimony of PW-2 and PW-3, as PW-2 and PW-3 have deposed that the property was recovered from the tijori in the room, shows that the same is a minor contradiction which can occur due to lapse of time and mathematical precision in deposition cannot be expected from witnesses when they depose before the court after considerable lapse of time.
55. Thus in the present matter, the case property as mentioned in seizure memo Mark A was subsequently exhibited as Ex. PW-1/C and it has been proved before the court in view of the deposition of prosecution witnesses that the same was found in the possession of accused Khalid and was found FIR No. 366/2001 State Vs Khalid 19 of 22 subsequent to the disclosure made by co-accused Asif. The disclosure statement of co-accused Asif is also exhibited as Ex.
PW-5/A. The seizure memo Ex. PW-1/C has been exhibited before the court by the complainant and PW-2 and PW-3 as well as PW-5 in the present matter coupled with IO.
56. In order to constitute the offence punishable U/s 411 IPC, the prosecution has to prove before the court that the stolen property was received or retained knowing or having reasons to believe that the same was the stolen property. Section 114 illustration (a) of the Indian Evidence Act, states that the court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.
57. In the present matter the complainant has identified her property before the court, she has also stood as a witness to the seizure memo which was prepared after the property was recovered from the possession of accused Khalid at the instance of accused Asif. Nothing has come in the cross examination which can assail the credibility of the witness before the court regarding the ownership of the property and regarding the fact that the property was recovered from the accused persons. PW-2 Payal and PW-3 Sanjay have also deposed on the same lines.
58. In the present matter though there are some discrepancies in the testimony of the witnesses regarding the time when the complainant alongwith PW-2 reached back her house from Mehrauli as it is deposed by PW-2 that they have came back at around 1.00am whereas it is deposed by PW-1 FIR No. 366/2001 State Vs Khalid 20 of 22 and PW-3 that they have came back at around 3.30am and there is discrepancy in the testimony of PW-5 HC Inderpal and PW-6 SI D.K. Tejwan regarding place of recovery of rod and from whose possession the rod was recovered, however, these are minor contradictions which does not strike at the root of the prosecution case and are of such a nature which are bound to occur in testimony of witnesses when they depose before the court after a long period of time. The court cannot insist on mathematical precision in the testimony of the witnesses. The witnesses before the court have corroborated each other in material particulars. Nothing has come before the court which can assail the credibility of their testimony before the court.
59. In view of the same as pursuant to the disclosure of accused Asif, stolen property was recovered from the possession of accused Khalid, both accused are held guilty for the offence punishable U/s 411 IPC read with section 34 IPC as the act was done in pursuance of their common intention by both the accused persons.
60. Complete convincing and unflinching evidence has come on record against accused persons for the offence U/s 411 IPC read with Section 34 IPC. There is direct testimony with respect to recovery of case property from the possession of accused Khalid and with respect to disclosure of accused Asif before the court, in the shape of testimonies of PW-1, PW-2 and PW-3.
61. In view of the above said discussions and findings the prosecution has been able to prove the guilt of the accused persons beyond the shadow of all reasonable doubts for the offence U/s 411/34 IPC. However, no evidence has come on record against accused persons with respect to the offence FIR No. 366/2001 State Vs Khalid 21 of 22 punishable U/s 380/457 IPC.
62. In view of the same both accused Asif and Khalid are convicted for the offence punishable U/s 411/34 IPC, though they are acquitted for the offence punishable U/s 380/457/34 IPC
63. Let the Convicts be heard separately on the quantum of sentence.
64. Copy of judgment be supplied to the convicts free of cost.
Announced in the (Neha Paliwal)
Open Court on 27.1.2014 Metropolitan Magistrate
KKD,-Delhi
It is certified that this judgment contains 22 pages and each page bears my signature.
Neha Paliwal)
Metropolitan Magistrate
KKD,-Delhi
FIR No. 366/2001 State Vs Khalid 22 of 22
FIR No. 366/2001 State Vs Khalid 23 of 22