Delhi District Court
State vs . Kalu @ Kalyan @ Kailash on 5 April, 2011
1 FIR No:826/1997
State Vs. Kalu @ Kalyan @ Kailash
IN THE COURT OF Dr. JAGMINDER SINGH: METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI
FIR NO: 826/1997
PS: Dabri
U/s 457/511 IPC
State V. Kalu @ Kalyan @ Kailash
Date of institution of the case : 05/12/2000
Date on which Judgment was reserved : 05/04/2011
JUDGMENT
a) S. No. of the case : 230/2
b) Date of commission of offence : 03/12/1997
c) Name of the Complainant : SI Om Prakash
PS: Dabri, New Delhi.
d) Name of accused and address : 1) Kalu @ Kalyan @
Kailash
S/o Sh. Roshania
R/o Village Dibru, PS:
Toda, Distt. Tonk,
Rajasthan
2) Rakesh (Since Expired)
e) Offence complained of : U/s 457/380/511 IPC
2 FIR No:826/1997
State Vs. Kalu @ Kalyan @ Kailash
f) Plea of accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 05/04/2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :-
1. The present case was registered against the accused persons on the allegations that on 03.12.1997 when complainant SI Om Prakash along with Ct. Ombir was coming from Madhu Vihar towards Dabri pul on patrolling then at about 1.30 am (night), they saw two persons hitting the locks on the closed shutter of C-88, Rohit General Store with rods. They were apprehended while they tried to run and on inquiry one person having about 1 feet. 9 inch rod told his name Kalu @ Kailash @ Kalyan and second having 1 feet 3 inch rod told his name as Rakesh. On checking one thaila was 3 FIR No:826/1997 State Vs. Kalu @ Kalyan @ Kailash recovered from Rakesh containing 26 wrist watches 2 calculators, 4 photo cameras regarding which no satisfactory answer was given by the accused persons and it appeared that those things may be stolen property. The FIR u/s 457/380/511 IPC was registered against accused persons and after investigation challan was filed against both accused persons.
2. After taking cognizance accused persons were summoned and before framing charge accused Rakesh expired and proceedings against him abated vide order dt.24.02.2005. Then thereafter, charge u/s 457/511 ICP was framed against accused Kalu @ Kalyan @ Kailash to which he pleaded not guilty and claimed trial and trial started.
3. Prosecution has filed list of Four witnesses and has examined Three witnesses.
4. PW-1 HC Ombir stated that on 03.12.1997 at about 1.30 4 FIR No:826/1997 State Vs. Kalu @ Kalyan @ Kailash am when he was on patrolling with SI Om Prakash they found two accused persons breaking the locks of Shops with an iron rod. Both were apprehended and two iron rods were recovered from the possession of accused persons vide memo Ex.PW1/A. IO prepared rukka which he took to PS and got the FIR registered. 26 watches, 4 cameras, 2 calculators and other articles seized from accused Rakesh vide memo Ex.PW1/B.
5. PW-2 HC Braham Prakash stated that on 03.12.1997 he recorded the FIR of the present case. Copy of which is Ex.PW2/A and endorsement on rukka in this regard is Ex.PW2/B.
6. PW-3 SI Om Parkash stated that on 03.12.1997 at about 1.30 am he along with Ct. Ombir while on patrolling saw accused persons trying to break open the lock of door of the shop with an iron rod at Sita Puri Part-I. On search a bag was recovered from the possession of accused Rakesh containing 26 watches, 4 cameras and two calculators. The articles were seized vide memo Ex.PW1/B. Iron 5 FIR No:826/1997 State Vs. Kalu @ Kalyan @ Kailash rod were seized vide memo Ex.PW1/A. He prepared rukka Ex.PW3/E and got the FIR registered. He recorded disclosure statement of both accused persons Ex.PW3/A. Personal search memo of accused Kalu is Ex.PW3/B and accused Rakesh is Ex.PW3/C. Site plan is Ex.PW3/D. Pointing out memo of accused persons are Ex.Z-1 to Z-14.
7. No other witness was examined by the prosecution and PE closed. Statement of the accused recorded u/s 313 Cr.P.C. in which he stated that he do not want to lead any evidence in his defence.
8. I have heard the arguments of both the parties. Ld. APP for the State has argued that the case is totally proved against the accused and he be given maximum punishment. Ld. Counsel for the accused stated that prosecution cannot prove any ingredients of the offence against accused. Accused is falsely implicated in the present case and is liable to be acquitted. I have gone through the oral and documentary evidence on record and analyzed the statement of 6 FIR No:826/1997 State Vs. Kalu @ Kalyan @ Kailash witnesses.
9. In this case to prove the allegations against the accused the statement of witnesses must be reliable and corroborative. Regarding stolen articles, there is no any complaint from the owner of that articles or any TIP is on record. No public witness is joined in investigation by the IO. PW-1 who is eye witness stated that the rod recovered from possession of Kalu was shorter than the rod recovered from Rakesh (since deceased), whereas as per the complaint Ex.PW3/E the rod recovered from accused Rakesh was shorter than rod recovered from accused Kalu. As per PW-3/E and statement of PW-3 from the possession of Rakesh yellow bag containing 26 watches, 4 cameras and 2 calculators was recovered which was seized vide memo Ex.PW1/B. Whereas PW-1 in his statement stated that 26 watches, 4 cameras and 2 calculators and other articles seized from accused Rakesh vide memo Ex.PW1/B. But when we see Ex.PW1/B there is no other article is shown except the 26 watches, 4 cameras and 2 calculators. PW-3 not stated the name of the shop at 7 FIR No:826/1997 State Vs. Kalu @ Kalyan @ Kailash which accused persons were breaking open the lock. PW-3 also not stated the length of rods recovered from accused persons as that is written in rukka Ex.PW3/E.
10. The case property when produced before the court was in unsealed condition. The MHC(M) to whom the case property was deposited was also not examined. Nothing stated by any of the witness regarding sealing of case property. It makes the doubtful to the proper custody and recovery of case property. As far as attempt to commit the offence u/s 457 IPC is concerned, the law which was attempted by the accused to break with the attach of iron rods was neither seized nor produced before the court. It is alleged that accused persons tried to break open the lock of shutter of Rohit General Store but no owner / proprietor of the said general store was examined by the prosecution as witness. Therefore, there is break in the chain of evidence.
11. Keeping in view the above said discussion court thinks 8 FIR No:826/1997 State Vs. Kalu @ Kalyan @ Kailash that because of lack of evidence and contradictory statement of witnesses, case of prosecution becomes doubtful and benefit of which goes to accused as per principles of criminal law. The prosecution cannot establish its case against the accused beyond reasonable doubt. Hence, the accused Kalu @ Kalyan @ Kailash S/o Sh. Roshania is acquitted for the offence u/s 457/511 IPC. Bail bond stands cancelled and surety stands discharged. File be consigned to record room after due compliance. Announced in the open court on this 05th day of April' 2011 (Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI 9 FIR No:826/1997 State Vs. Kalu @ Kalyan @ Kailash FIR NO: 826/1997 PS: Dabri U/s 457/511 IPC State V. Kalu @ Kalyan @ Kailash 05/04/2011 Present: APP for the State.
Accused Kalu @ Kalyan @ Kailash is present on bail. Final arguments heard.
Vide separate judgment pronounced and dictated in the open court, accused Kalu @ Kalyan @ Kailash is acquitted for the offence u/s 457/511 IPC. Bail bond stands cancelled and surety stands discharged. Document, if any, of surety be returned. Endorsement, if any, be also cancelled. File be consigned to record room after due compliance.
(Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI