Delhi District Court
State vs . Danish @ Juneid on 30 June, 2022
IN THE COURT OF SH. SNEHIL SHARMA, METROPOLITAN
MAGISTRATE-08, SOUTH EAST DISTRICT, SAKET COURTS,
SAKET, NEW DELHI
JUDGMENT
STATE VS. Danish @ Juneid FIR NO: 374 /2021 P. S. Jamia Nagar U/s 380/411 IPC a Sl. No. of the case : 7652/2021 b Date of commission : 19.08.2021 c Date of institution of the case : 24.09.2021 d Name of the complainant : Usman
e Name of the accused and his : Danish @ Juneid, S/o Sh. Barkat Ali, R/o House no. S-H/9, Batla parentage House, Pehalwan Chowk, Jamia Nagar, New Delhi.
f Offence complained of : 380/411 IPC g Plea of accused : Not guilty h Orders reserved on : 23.05.2022 i Final order : Accused Danish @ Juneid is acquitted for the offences punishable under sections 380/411 IPC. j Date of judgment : 30.06.2022
1. Briefly stated, case of the prosecution is that on 19.08.2021, at about 7.30 pm, near S-9/10, 4th Floor, Jogbai Extension, Batla House, FIR No. 374 /2021 PS Jamia Nagar PAGE 1 OF PAGE 13 Jamia Nagar, New Delhi, accused Danish @ Jueid took away one LED TV, Setup box, cash of Rs. 39,000/-, one car keys and one purse containing Rs.250/- from the house of the complainant Usman. It is further the case of the prosecution that on 20.08.2021, accused was found in possession of above mentioned LED TV, setup box, ladies purse and one central lock key, were recovered from the possession of the accused after he was apprehended at the spot. Present FIR was lodged against the accused on the basis of complaint given by the complainant. After completion of investigation in the present case, charge sheet was filed for the offences punishable under sections 380/411 IPC.
2. Cognizance in the present matter was taken vide order dated 24.09.2021 and accused was summoned. On the basis of material on record, prima facie offence was made out against accused under section 380/411 IPC and charge was accordingly framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to establish its case against the accused, prosecution has examined 3 witnesses. PW1 was the complainant Usman, who stated that on 19.08.2021, he had come down from his house to purchase few goods and had closed the door of flat from outside. After purchasing goods from the market when he returned to his flat after about half an hour. He found that door of the flat was closed. He opened the door and went inside the flat and his wife was in one of the room of one of the flat which was closed from outside and his FIR No. 374 /2021 PS Jamia Nagar PAGE 2 OF PAGE 13 wife was screaming to open the door. PW1 opened the door of his room. PW1 became suspicious and checked the flat and came to know that one LED with settop up box, hand purse of his wife containing Rs.250/-, cards, Rs. 39,000/- which were in pant's pocket of PW1, keys of his house/ vehicle/car were missing. Thereafter, PW1 went to PS. Police officials instructed him to file online FIR. PW1 got registered online FIR about the same. PW1 alongwith his brother-in-law went to police station and gave written complaint Ex.PW 1/A. PW1 got suspicious about accused Danish @ Juneid and told the police. On the next day morning PW1 received a call from IO asking him to come to Pehalwan Chowk to identify Danish @ Juneid. Thereafter, PW1 went to Pehalwan Chowk and met IO. PW1 stood near one pole alongwith IO, accused Danish @ Juneid was coming from the side of Batla House, Jamia Nagar, New Delhi. IO chased accused Danish @ Juneid, who went towards S-9/10 ground floor parking, where one sofa was lying and accused was trying to take out some articles from behind the said sofa. IO overpowered the accused. PW1 also reached in the aforesaid parking. IO took the accused to PS. IO prepared the site plan Ex.PW 1/B, arrested the accused vide memo Ex.PW1/C, conducted personal search of the accused vide memo Ex.PW 1/D, articles i.e. LED, Settop box, etc., were seized by the IO vide memo Ex.PW 1/E. PW1 correctly identified the accused and grey/brown ladies purse (containing Rs. 114/-, 1 key, photocopy of aadhar Card of Ishrat), one set top box and one LED as Ex. P-1 (Colly).
FIR No. 374 /2021PS Jamia Nagar PAGE 3 OF PAGE 13
4. PW2/Harinder Kumar, who stated that on 19.08.2021, his duty hours were from 8 pm to 8 am and at about 8.20 pm, he received DD no. 62 A regarding theft in house situated at S-9/10, 4 th floor, Jogabai Extension, near Pehalwan Chowk, Batla House, Jamia Nagar, New Delhi. IO recorded his statement Ex.PW 1/A. IO endorsed the same and prepared rukka, Ex.PW 2/A. PW2 sent HC Bhajan Lal with the rukka to PS for registration of FIR. PW2 along with the complainant searched for accused and case property. HC Bhajan Lal came back to the spot after about 1 hour with copy of FIR and original rukka. They again searched for the accused and at around 12.30 am, they saw one person coming on foot from the side of Yamuna Pusta and upon seeing, he started to run in the opposite direction. Thereafter, they ran after him and apprehended him. Said person disclosed his name to be Danish @ Junaid. PW2 recorded his disclosure statement Ex.PW 2/B and arrested him vide memo Ex.PW1/C and also conducted his personal search vide memo Ex.PW 1/D. PW2 had also prepared site plan vide memo Ex.PW 1/B. PW2 went back to the spot with the accused, where accused disclosed the exact location where he had hidden the case property in the parking of ground floor. Upon search, PW2 found LED, Set top box with charger, one flat keys, one ladies purse containing Rs.108/- there. PW2 seized the said articles vide memo Ex.PW 1/E. PW2 then took the accused and seized articles to the PS. PW2 recorded statement of witnesses u/s 161 Cr.P.C. and prepared and filed the charge-sheet. PW2 identified the accused and the case property which was recovered from the accused which is Ex. P-1 (Colly).
FIR No. 374 /2021PS Jamia Nagar PAGE 4 OF PAGE 13
5. PW3/ HC Bhajan Lal, stated that on 19.08.2021, he was on emergency duty with HC Harinder and his duty hours were from 8 pm to 8 am and had received PCR call regarding theft at S-9/10, Batla House, Jamia Nagar, New Delhi. Thereafter, PW3 along with HC Harinder reached the spot, where we met the complainant Usman. Usman gave his written complaint Ex.PW 1/A. Thereafter, IO/ HC Harinder endorsed the same and prepared rukka Ex.PW 2/A. PW3 took the rukka and went to the PS and got the present FIR registered and returned to the spot along with copy of FIR and original complaint and handed over the same to the IO. Complainant told them that he can identify the person who had committed theft and he pointed out towards the accused who was present in the ground floor parking and stated that accused is the person who had committed theft. Thereafter, IO interrogated the accused, who got recovered one LED make INTEX with cracked screen from one corner in the parking, one ladies purse containing Rs. 208/- and set of house keys and some documents. IO seized the same vide seizure memo Ex.PW1/E, arrested the accused vide arrest memo Ex.PW1/C, conducted personal search vide memo Ex.PW 1/D and also prepared site plan at the instance of complainant Ex.PW 1/B. PW3 identified the accused and case property which was recovered from the accused Ex. P-1 (Colly).
6. Vide order dated 17.11.2021, PW at sr. no.4 was dropped from the list of witnesses and after conclusion of prosecution witnesses, prosecution evidence was closed. Thereafter, statement of the FIR No. 374 /2021 PS Jamia Nagar PAGE 5 OF PAGE 13 accused u/s 313 Cr.P.C. was recorded, wherein it was stated by the accused that he has been falsely implicated in this case and he further stated that complainant had suspected him and thereafter implicated him in this case. He further stated that he reside in the same building as that of complainant and was present in the parking, from where he was arrested on the basis of suspicion. He further stated that no articles were recovered from his possession and case property has been falsely planted upon him. Accused stated that he did not wish to lead any evidence in his defence. Hence, defence evidence was closed and final arguments were heard.
7. It has been argued by Ld. APP for the State that recovery was effected from the accused and that testimony of PW1, PW2 and PW3 proves the same and hence, accused must be convicted. On the other hand, Ld. Counsel for accused has argued that accused has been falsely implicated in this case and that prosecution has not been able to prove its case beyond reasonable doubt against the accused as there are several discrepancies in the testimony of witnesses.
8. I have heard Ld. APP for the State and Ld. Defence counsel for accused & considered the respective arguments as well as gone through case file very carefully.
9. As per the case of the prosecution, accused Danish @ Jueid, has been charged for offence u/s 380/ 411 IPC. Now we discuss the FIR No. 374 /2021 PS Jamia Nagar PAGE 6 OF PAGE 13 offence u/s 380 IPC against the accused. Here, perusal of the disclosure statement of the accused and also in the defence, it is found (Ex.PW2/B) that accused and the complainant are the residents of the same building and as per the accused, he has a parking issue in the said building with the complainant and hence complainant has filed this case against him. It is pertinent to mention here that none of the PWs have seen the accused committing the offence. Moreover, the accused was not carrying the property when it was recovered. Further the prosecution case does not clarify how the accused effected the theft and was able to bring / carry the property i.e. one LED TV, Settop box, cash of Rs. 39,000/-, one car keys and one purse containing Rs.250/- from the house of the complainant to the public parking area without being seen by any of the persons residing in the building or in parking area or corridor etc and nothing on CCTV was ever produced. Moreover, the wife of the complainant was never made witness, who might have seen the accused. Moreover, PW1 nowhere specifies in his testimony as to how he reached at the conclusion that accused might be the person who had committed the offence. Further PW1 in his statement deposed that he did not saw the accused while committing theft and even he was not present at that time but PW3 in his statement recorded deposed that complainant told them that he can identify the person who had committed theft i.e. he nowhere discharge his burden w.r.t. reason of suspicion on accused. Though he was arrested with property soon after the arrest but it is also matter of trial whether section 411 IPC is attracted or not and only if court might FIR No. 374 /2021 PS Jamia Nagar PAGE 7 OF PAGE 13 decide whether to take presumtion for section 380 IPC or not. Hence, the charges levelled against the accused u/s 380 IPC do not hold ground.
10. For the offence u/s 411 IPC, the prosecution case is based on the case property recovered from accused Danish @ Juneid. To constitute an offence under section 411 IPC:
1. the stolen property must be found in possession of the accused;
2. the accused must dishonestly receive it, or must dishonestly retain it, knowing, or having reason to believe, that the said property is stolen property.
11. In addition to this, it is admitted that no recovery of goods have been effected from the house of the accused or from the place which the accused was having the exclusive knowledge of. Here, as per record and PWs the case property was found in the parking premises which is a public place and not private or part of property portion which belongs exclusively to the accused. Though the case property is identified by the complainant but mere identification is not enough to prove conviction against the accused. Here there is contradiction in the statement of PW1, PW2 and PW3. It is pertient to note here that place of recovery is a common public parking area where every one has access (it includes accused as well as complainant who are the residents of the same building) and the recovery area is not a place which is exclusively in the knowledge of FIR No. 374 /2021 PS Jamia Nagar PAGE 8 OF PAGE 13 the accused only and for conviction, chances of plantation of the case property should be ruled out which is not the case here. I rely upon the test laid down in the below mentioned judgments:
In Para 53 of In State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370, the Supreme Court considered the argument with regard to recovery of an object from a place "open or accessible to others". The Supreme Court explained that what is important is not whether the place is accessible to others but whether the object was ordinarily visible to others. If it is not, then whether the place from which it was recovered is accessible to others or not is not material. This is what the Supreme Court had to say There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or FIR No. 374 /2021 PS Jamia Nagar PAGE 9 OF PAGE 13 not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others. It is in this context that decisions regarding recovery of an object from an open and accessible place have to be considered. In Trimbak v. State of Madhya Pradesh(1953), the Supreme Court considered the recovery of ornaments from an open field accessible to all and applied the "compatibility cum knowledge test" namely that the fact of recovery by the accused should be compatible with the circumstance of somebody else having placed the articles in the open field and of the accused somehow acquiring knowledge about their whereabouts. In para 5. We are satisfied that this was not the correct way of approaching the decision of a case under Section 411, I.P.C.
It is the duty of the prosecution in order to bring home the guilt of a person under Section 411, I.P.C. to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. There is no reliable evidence to prove either of these facts. In Para 6. When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in FIR No. 374 /2021 PS Jamia Nagar PAGE 10 OF PAGE 13 possession of these articles.
12. Moreover, as per PW1, even if the property is recovered at the instance of accused from behind the sofa, even then as per PW1, it was morning time and hence public had enough opportunity to see the property or plant the property. If we believe the version of PW2 for the recovery, he only mentioned that accused disclosed the exact location where he had hidden the case property in parking (public parking) and PW2 no where mention the said 'behind the sofa' in his statement, even the site plan does not shows specifically the said location of 'behind the sofa' and in absence of the specific recovery location, which can only be in knowledge of the accused, recovery from parking (public) is not sufficient to prove the guilt. Now we cosider statement of PW3, wherein he stated that case property is recovered from one corner of the parking. He has also not mentioned anything about the said sofa. Further recovery memo also nowhere mention the said specific location which was only in the exclusive knowledge of the accused i.e. 'behind the sofa'. In totality of facts, considering the contradictions in prosecution story, the evidences are not sufficient to prove the conviction beyond reasonable doubt. Moreover, there is contradiction with respect to the fact that how the accused was traced. PW1 in his statement submits that IO chased accused Danish and Danish entered the ground floor parking and try to take out the stolen articles from 'behind the sofa' which is not acceptable for a reasonable man as to why the accused will go to the place of recovery if police is chasing him and why he will try take FIR No. 374 /2021 PS Jamia Nagar PAGE 11 OF PAGE 13 out articles behind the sofa. Moreover, PW2 submits that upon seeing them, accused started to run in opposite direction. Further PW3 submits that PW1 himself pointed out towards accused, who was already present in ground floor parking. So, both the connecting portion of the prosecution story i.e. how the accused is apprehended and how the case property is recovered are contradictory to each other. Moreover, the time of recovery and time of arrest of the accused is also contradictory in the statement of witnesses where as time of arrest of accused as shown in arrest memo is 20.04.2021 at 4.30 am. But PW1 in his statement mentions that on the next day morning he received a call from the IO to reach at Pahalwan Chowk to identify the accused Danish and thereafter IO arrested him. While PW2 submits that he at around 12.30 am apprehended the accused Danish @ Juned and PW3 has not mentioned any time. Moreover, prosecution did not provide even a single reason of suspicion against the accused on the basis of which PW1 or PW2 reached at the conclusion that accused is the one who committed the theft. Neither PW2 nor PW3 asked the reason for suspicion on accused from PW1 and even if PW1 had suspicion then why he did not raid/ searched the house of the accused first, who is the resident of the same building. In addition to this, PW2 in his statement mentioned that accused was arrested by chance at around 12.30 am when he was coming from this side of Yamuna Pusta. Further, the fact that no public witness ever joined the investigation at the time of recovery would be material one considering the place of recovery being a public parking. Moreover, PW1 in his cross examination had FIR No. 374 /2021 PS Jamia Nagar PAGE 12 OF PAGE 13 deposed that IO had not recorded statement of any public persons nor he requested any public person to join the proceedings. Hence, these many contradictions raise a doubt against the recovery and theft. Hence, storty of prosecution does not discharge its burden during this whole trial. Therefore, charge u/s 411 IPC is also not attracted and hence there is no need to take presumption of offence punishable section 380 IPC also.
13. In view of above discussion, I am of the considered view that prosecution has not been able to prove its case beyond reasonable doubt against the accused. Accused Danish @ Juneid is, thus, hereby acquitted for the offences punishable under sections 380/411 IPC.
Announced in the open court
on 30.06.2022 (Snehil Sharma)
MM-08 (SE): Saket Courts
New Delhi: 30.06.2022
FIR No. 374 /2021
PS Jamia Nagar
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