Delhi District Court
State vs Dharamvir @ Bandar on 28 April, 2015
FIR No.03/2004
PS Keshav Puram
U/s 392/34 IPC
State Vs Dharamvir @ Bandar
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE: NORTH WEST-04, DELHI
Case ID:-02401R5873502004
FIR No.03/2004
PS Keshav Puram
U/s 392/34 IPC
State Vs Dharamvir @ Bandar
Date of Institution of case : 08.11.2004
Date of Judgment : 28.04.2015
JUDGMENT:
a) Date of offence : 03.01.2004 b) Offence complained of : U/s 392/34 IPC c) Name of Accused, his : 1) Dharamvir @ Bandar parentage & residence S/o Sh. Sahab Singh R/o Jhuggi No. 101, Balmiki Camp, Keshav Puram, Delhi. 2) Bishan (Already discharged) S/o Sh. Kishan R/o Jhuggi No. CN-47 Balmiki Camp, Lawrence Road, Delhi 3) Vijay Kumar (Already discharged) S/o Sh. Shyam Lal, R/o Jhuggi No. CN-70, Balmiki Camp, Lawrence Road, Delhi d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted 1/13 FIR No.03/2004 PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar BRIEF FACTS AND REASONS FOR DECISION: Case of the prosecution in brief is as follows:-
1. That on 03.01.2004 at about 2:00 p.m at B-19, Lawrence Road Industrial Area, Delhi within the jurisdiction of PS Keshav Puram, accused Dharamvir @ Bandar alongwith his two accomplices namely Bishan and Vijay Kumar in furtherance of their common intention committed theft of Rs. 24,000/
-- 25,000/- belonging to the complainant Dinesh Kumar Aggarwal and in committing the theft the accused persons voluntarily confined nine labours and supervisor Lalu Prasad in hall. Thus the accused persons committed an offence punishable u/s 392 read with Section 34 IPC within the cognizance of this Court.
2. The Court took cognizance of the abovesaid offence u/s 392 read with Section 34 IPC. After hearing the arguments on point of charge prime facie case was made out against the accused Dharamvir @ Bandar for offence punishable u/s 392 read with Section 34 IPC, charge was accordingly framed against him to which accused pleaded not guilty and claimed trail whereas the accused persons namely Bishan and Vijay Kumar were discharged vide order dated 08.10.2009 passed by Ld. Predecessor Court.
3. In order to prove the guilt of the accused u/s 392 read with Section 34 IPC, the prosecution has to prove the following essential ingredients of the said Sections:
a) Section 392 : The subject matter of the offence is a movable 2/13 FIR No.03/2004 PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar property, that it was moved out of the possession of any person without his consent and with dishonest intention, that the accused caused or attempted to cause death, hurt or wrongful restraint or fear of death or of instant hurt or of instant wrongful restraint to any person in committing theft or in order to commit theft or in carrying away or attempting to carry way the property obtained by such theft.
b) Section 34 IPC:-
i) That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person.
ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
iii) This Section deals with constructive criminal liability which provides that where a criminal act is done by several 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 was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them ....... Nand Kishore v State of M.P (2012) 1 SCC (Cri) 378: (2011) 12 SCC 120; Brathi v State of Punjab (1991) 1 SCC 519.
4. To prove its case, prosecution examined eleven witnesses to prove its case.
5. PW-1 Sh.Dinesh Kumar Aggarwal deposed that on 03.012004 he received a call from his factory Supervisor namely Naveen that all the night workers at factory were detained in the factory by some unknown persons and the locks of the office was broken, that he went to the factory and lock of the room where night workers were detained was broken and workers were released, that he inspected his office and found that the safe was tried to be 3/13 FIR No.03/2004 PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar broken by the culprits and the handle of the safe was broken and it appeared that same was broken with a hammer, that PCR call was made at 100 number and PCR officials reached at the spot, that he does not remember if the night workers were released by them or by police officials by breaking the lock of the room, that the statement of Supervisor Lalu Prasad was recorded by the police officials, same is exhibited as Ex. PW-1/A bearing his signature at point A, that he found the cash amounting to Rs. 20,000/- to Rs. 25,000/- was stolen from the drawer of the table, that he does not remember if anything was taken into possession from the spot by the police and that he does not remember anything else.
The witness was permitted to refresh his memory by going through his statement as the incident happened about six years ago and the witness deposed that he found that a bag of black colour was also lying which was left by the culprits and that the police took into possession the broken locks and bag vide seizure memos Ex. PW-1/B and Ex. PW-1/C respectively bearing his signature at point A. During the examination in chief the MHC(M) produced one black colour bag containing the currency notes amounting to Rs. 54 out of which 24 notes were of rupees one denomination, one of rupee ten denomination, one of rupee twenty denomination, two broken locks of Link's make which were shown to the witness and the witness stated that he is unable to identify the same.
Ld. APP for the State was permitted to cross examine the witness as he was suppressing some facts and the witness deposed that he made the call to the police and police had already reached at the spot before his arrival at the factory and the witness again said that he does not remember if the police 4/13 FIR No.03/2004 PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar officials had already reached there. Confronted with portion A to A of the statement Ex. PW-1/A and the witness admitted the same. The witness further deposed that a site plan was prepared by police in his presence, that he is unable to identify the case property as it has already lapsed about six years since incident.
During the cross examination the witness denied the suggestion that he did not go to his factory, that no such incident took place as deposed by him, that he has deposed falsely and that no site plan was prepared at his instance.
6. PW-2 Sh. Lalu Prasad S/o Sh. Baldev deposed that in the year 2004 he was working at Factory No. B-19, Lawrence Road Industrial Area, Delhi, that he was taking rest alongwith the workers after having lunch, that someone thrashed him from behind due to which he fell down from the chair on which he was taking rest and thereafter shutter was closed, that he could not observe as to how many culprits were there, that someone extended the threat from outside of the room " Agar Kisi Ne Shutter Kholney Ke Koshish Ki to Jaan Say Maar Dunga", that he and other workers got scared due to which they did not raise the noise and remained inside the room, that on the next morning Supervisor of the factory Naveen Kumar came there and called them on which he narrated the incident to him from inside the room and made request to call the owner of the factory Sh. Om Prakash and Dinesh Kumar, that later on he came to know that some culprits were apprehended by the police and he was called at Tihar Jail to identify that person and that he denied to identify the person as he did not see the face of any of the culprits.
5/13 FIR No.03/2004PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar Ld. APP for the State was permitted to cross examine the witness and the witness denied the suggestion that he mentioned to police about the description of the person who thrashed him and that he identified that person when he was called for the identification.
The witness further deposed that he can not identify the culprits as he did not see them at the spot. The witness further denied the suggestion that he is deposing falsely as he has been won over by the accused.
During the cross examination the witness denied the suggestion that he was present at the factory, that no such incident took place as deposed by him and that he has deposed falsely.
7. PW-3 Constable Pramod Kumar deposed that on 03.01.2004 DD No. 2A was received by him regarding the theft in a factory, that he alongwith IO SI Yash Pal went to the spot i.e Factory No. D-19, Lawrence Road, that IO recorded the statement of Sh. Dinesh who met there, that they also found that some labourers were locked inside the factory and they rescued them, that IO prepared rukka on the statement of Dinesh and handed over to him, that he went to PS Keshav Puram and registered the FIR and that two locks and one bag were found lying near the gate of the office and same were taken into police possession by IO vide seizure memo Ex. PW-1/B, Ex. PW-1/C and Ex. PW-1/D bearing his signatures at point B. The case property i.e racksin bag is Ex. P-1 and both broken locks are Ex. PW-2 (colly).
During the cross examination the witness denied the suggestion that he did not join the investigation nor he was on duty on the day of incident as 6/13 FIR No.03/2004 PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar deposed by him, that nothing was recovered in his presence and he has deposed falsely being the police official at the instance of his seniors.
8. PW-4 HC Dinesh Kumar proved the registration of the FIR exhibited as Ex. PW-4/A in the present case bearing his signature at point A. The endorsement on rukka is Ex. PW-4/B. The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
9. PW-5 HC Chaman Pal proved the arrest memos exhibited as Ex. PW-5/A and Ex. PW-5/B and disclosure statement exhibited as Ex. PW-5/C and Ex. PW-5/D all bearing his signatures at point A. The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
10. PW-6 Constable Dharamvir Singh deposed that on 28.06.2004 he apprehended the accused Dharambir @ Bandar and arrested him in the present case, that accused Dharambir was arrested as he was a proclaimed offender and that IO was informed about the arrest The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
11. PW-7 Sh. Naveen S/o Sh. Deep Chand deposed that in the year 2001 he used to work as Supervisor in Factory No. B-19, Lawrence Road, that he does not remember the exact date and month of the incident due to lapse of 7/13 FIR No.03/2004 PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar longtime, that he came to know a theft took place in the factory during night time, that he does not know what articles were stolen by thieves and whether the locks of the shutter were lying broken, that the thieves had locked him in one room and thereafter they committed theft and that he informed the incident to the owner of the factory namely Mr. Om Prakash Aggarwal.
During the cross examination the witness denied the suggestion that he never visited the factory and he has deposed falsely at the instructions of his employer.
12. PW-8 Retired SI Shiv Raj Singh deposed that on 17.01.2014 he arrested two persons namely Bishan and Vijay Kumar in case FIR No. 27/04 and he recorded their disclosure statement regarding their involvement in the present case exhibited as Ex. PW-8/A and Ex. PW-8/B bearing his signatures at point A, that he gave intimation in this regard to SI Yashpal who arrested the accused persons in this case and that he can identify both the accused persons if shown to him.
The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
13. PW-9 Dr. Archana Sinha, ADJ, Central Tis Hazari, Delhi proved the TIP proceedings of accused Dharamvir @ Bander conducted at Tihar Jail, Delhi. TIP proceedings is exhibited as Ex. PW-9/A bearing her signature at point A. The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
8/13 FIR No.03/2004PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar
14. PW-10 Inspector Yashpal Singh No. D-3180 PS I.P. Esate, Delhi deposed that he is the first IO of the case, that on 03.01.2014 he alongwith Ct. Parmod reached at B-19, Lawrence Road and met Sh. Dinesh Kumar Aggrawal at the spot where he found that the office lock and one Chakki lock were broken, that he recorded the statement of Sh. Dinesh Kumar Aggarwal which is already Ex. PW1/A bears his signature at point X, that on the basis of complaint he prepared a Rukka and at about 10:00 am Ct. Parmod was sent to PS for registration of FIR, that crime team and dog squad were also called at the spot by him, that he prepared the site plan at the spot which is Ex. PW10/A bearing his signature at point X, that crime team inspected the spot and handed over the inspection report to him and that two locks and one raksin bag containing Rs. 54 in denomination (1x24,10x1 & 20x1) were taken into possession vide separate seizure memos already Ex. PW1/B, PW1/C and PW1/D respectively.
PW-10 Inspector Yashpal Singh further deposed that on 17.01.04, SI Shivraj Singh of PS Keshav Puram recorded disclosure statement in case FIR No. 27/04 dated 17.01.04 and handed over him the disclosure statement which is already Ex. PW8/A and Ex.PW-8/B of accused Bishan and Vijay who disclosed the involvement in case FIR No. 03/04, that he interrogated both the accused and formally arrested in the case vide arrest memo already Ex.PW5/A and PW5/B bear his signature at point X, that the disclosure statements of both the accused have been recorded by him which are already Ex. PW5/C and PW5/D bears his signatures at point X, that he produced both the accused persons before the concerned court and requested for one day PC for the arrest of accused Dharamvir @ Bandar and that thereafter he was 9/13 FIR No.03/2004 PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar transferred from the PS and the case file was handed over to MHC(R).
The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
15. PW-11 SI Rajbir Singh deposed that on 12.02.20004, the case file of the present FIR was marked to him for further investigation and he collected the file from MHC(R), that he had gone through the file and found two accused persons namely Bishan and Vijay were already arrested and third accused Dharamvir (present before the court) had remained absconding, that he searched the accused but all is vain, that on 12.04.2004, he moved the application for NBW of accused Dharamvir exhibited as Ex.PW11/A bearing his signatures at point A, that during NBW the accused did not meet at his address, that on 22.04.2004, he moved the application for execution of process 82/83 Cr.PC against him, that during the proceedings he executed process 82 Cr.PC and that on 26.06.2004, accused was declared proclaimed offender. PW-11 SI Rajbir Singh further deposed that on 12.10.2004, he received DD no. 19-A regarding arrest of accused in PS Model Town as PO, that on next day accused was produced before the concerned court and he moved the application regarding interrogation and arrest of the accused, that he interrogated the accused and recorded his disclosure statement Ex.PW1/B which bears his signatures at point A, that he arrested the accused and conducted personal search which is Ex.PW11/C & Ex. PW-11/D both bearing his signatures at point A, that he recorded the statement of witnesses, that he also moved the application for TIP of the accused and same was fixed for 26.10.2004 and on 26.10.2004, he alongwith eye-witness Lalu Prasad went to 10/13 FIR No.03/2004 PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar Tihar Jail where accused refused to join the TIP proceedings, that he recorded the statements of witnesses, that he also collected the copy of TIP refusal which is kept on file and that after completion of the investigation, he prepared the challan and filed it before the court.
During the cross examination the witness denied the suggestion that he had not conducted the investigation of the present case or that he had never visited the house of the accused during the execution of the process and that accused was not arrested by him or that he is deposing falsely.
16. Vide order dated 07.04.2015 passed by this Court, the prosecution evidence was closed and matter was listed for recording of statement of accused as no more material PWs were left to be examined.
17. On 24.04.2015, statement of accused was recorded and all the incriminating evidence was put to the accused u/s 313 / 281 of code of criminal procedure in which accused denied all the allegations made against him and stated that no such incident ever occurred and that he has been falsely implicated in this case by the complainant in connivance with police officials. Accused chose not to lead any defence evidence.
18. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued by Ld. Defence Counsel on behalf of accused that he is innocent, that he has been falsely implicated in this case by the complainant in connivance with the 11/13 FIR No.03/2004 PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar police officials.
19. In order to fasten the criminal liability for the offence punishable u/s 392 IPC, it is imperative for the prosecution to establish the identity of the accused as the offender. Perusal of the record shows that prosecution has examined three public witnesses out of which PW-2 Lalu Prasad is the only eye witness and the remaining two witnesses have deposed about the facts and circumstances happening after the commission of the offence. It is further evident from the testimony of PW-2 that the said witness has failed to identify the accused in the Court despite being cross examined by the Ld. APP for the State. The testimony of PW-1 Sh. Dinesh Kumar Aggarwal and PW-3 Naveen did not suggest anything about the identity of the accused as the offender as they did not state even a signal word to the effect that they have seen the offenders during the incident. It is also apparent from the testimony of PW-1 that he failed to identify even the black bag and the currency notes which were allegedly left by the offenders in the office of the PW-1 while running away after commission of the alleged offence which creates doubt on the aforesaid prosecution version regarding the said bag. Record further shows that nothing was recovered or discovered at the instance of the accused and the only evidence available on record against him was the adverse inference arising out of his refusal to join the TIP which is also of no consequence in view of failure of the PW-2 the eyewitness to identify the accused in the Court as it is settled law that identification in the Court during trail is substantive piece of evidence and the identification during the investigation is merely corroborative in nature.
12/13 FIR No.03/2004PS Keshav Puram U/s 392/34 IPC State Vs Dharamvir @ Bandar
20. Considering the record, the aforesaid observations, the fact that nothing has been recovered or discovered at the instance of accused, that the failure to identify the accused in Court washes off the adverse inference arising out of refusal to join the TIP, that there is no other evidence ocular or scientific to connect the accused with the present offence and the only eye witness has failed to identify the accused in the Court and that there is no other eye witness of the incident to establish the element of commission of theft by the accused by putting the complainant's staff and PW-2 in fear of injury, instant hurt or death which is a necessary ingredient for completion of offence u/s 392 read with Section 34 IPC, this Court is of the view that prosecution has failed to establish the guilt of the accused.
In view of aforesaid discussion and the present circumstances, as nothing substantially incriminating is available on record, accused person namely Dharmbir @ Bandar is hereby acquitted of the charge u/s 392 read with Section 34 IPC levelled against him.
Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABAS)
on 28.04.2015 MM-04/NORTH WEST:DELHI
28.04.2015
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