Delhi District Court
State vs Rajesh Kumar Bindal on 21 January, 2026
State Vs. Rajesh Kumar Bindal FIR No.120/2014
IN THE COURT OF MS. UDITA JAIN GARG, ACJM, WEST,
TIS HAZARI COURT, DELHI
State v. Rajesh Kumar Bindal
FIR No. 120/2014
u/s 380/411 IPC
PS: Ranjit Nagar
CNR No.DLWT02-005470-2019
Serial No. of the case 2910/2019
Date of commission of 28.02.2014
offence
Date of institution of case 02.04.2019
Name of the complainant Smt. Parmeshwari W/o Late
Sh. Nafe Singh.
Name of Accused, Rajesh Kumar Bindal, S/o
parentage & Address Late Sh. Pashe Lal, R/o
House No. 139, Gali No.4,
Islam Nagar, Maliyana,
Distt- Meerut, U.P.
Offence complained Under Section 380/411 IPC
Plea of Accused Pleaded not guilty
Date on which judgment 07.01.2026.
was reserved
Final Order Acquittal
Date of Judgment 21.01.2026.
JUDGMENT
1. Vide this judgment, this court shall dispose of the present case FIR registered under Section 380/411 of Indian Penal Code, 1860 at PS- Ranjit Nagar.
UDITA
Page No.1 of 24 JAIN GARG
Digitally signed by
UDITA JAIN GARG
Date: 2026.01.21
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State Vs. Rajesh Kumar Bindal FIR No.120/2014
2. The case of the prosecution, in a nutshell, is that on 28.02.2014, at around 12:15 PM at WZ-115, Shadipur, Main Bazar, Delhi, accused went to the house of the complainant and asked for vacant room for the purpose of a rented accommodation. Complainant had shown him a room beside her room and the toilet attached with it. The accused, then, asked to see the roof of the building and the Complainant took him there. Thereafter, the accused went downstairs to call his friend and did not return back. The complainant was then told by her daughter that her mobile phone is missing. When the Complainant called on the mobile number, a boy picked up the call whose voice was similar to that of the accused, who had visited her for a rented accommodation. The complainant and her daughter went to the PS and statement of complainant was recorded by the police official. FIR was registered and matter was investigated into. Thereafter, the mobile phone of the Complainant was traced and the mobile number of one Pappu Saini was found active in the same. The said Pappu Saini informed the police officials that he had taken the mobile phone of his neighbour i.e the accused for using the same and then returned it to the accused. The mobile phone was then recovered from the accused at the instance of the above mentioned Pappu Saini and his disclosure statement was recorded. After about six months, complainant was called to PS to identify the accused. She went to the police station and identified the accused in the presence of the IO. She was also informed regarding the recovery of her mobile phone. The accused, however, refused his TIP stating that he was shown to the Complainant in the police station. After investigation, a Page No.2 of 24 Digitally signed by UDITA UDITA GARG JAIN JAIN Date:
GARG 2026.01.21 16:07:23 +0530 State Vs. Rajesh Kumar Bindal FIR No.120/2014 final report u/S. 173 of the Code of Criminal Procedure Code, 1963 was filed on 02.04.2019.
3. After taking cognizance of the offence complained of in the instant case FIR, the accused was summoned vide order dated 02.04.2019. Pursuant to his appearance, copy of chargesheet along with accompanying documents was supplied to the Accused in compliance of the provisions of Section 207 of the Code of Criminal Procedure, 1973.
4. Subsequently, on 22.12.2022 alternative charge for the offences punishable under Section 380/411 of IPC was framed against accused to which he pleaded not guilty and claimed trial.
5. In order to prove the case against the accused, prosecution examined as many as 5 witnesses in its favour.
6. PW HC Dinesh Kumar was examined as PW-1. He deposed that on 28.02.2014, he was posted as Constable at PS Ranjit Nagar.
On that day, he along with SI Kamlesh was on emergency duty at PS. During his duty, IO SI Kamlesh received DD no.24A regarding theft of mobile phone. Thereafter, he along with IO SI Kamlesh went to the spot i.e. WZ-112, Shadipur, main Bazar, Delhi where they met with complainant Parmeshwari Devi who narrated the incident to the IO. Thereafter, IO recorded the statement of the complainant and prepared a tehrir upon it. The tehrir was handed over to him for registration of FIR. He got the FIR registered and returned to the spot and handed over the original rukka and copy of FIR to the IO. IO Digitally signed by Page No.3 of 24 UDITA UDITA JAIN GARG JAIN Date:
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made enquiry regarding the accused but he was untraceable. Thereafter, they returned to the PS and his statement was recorded by the IO.
7. He was cross examined by Ld. counsel for accused. During the course of his cross-examination, PW1 replied that he was posted at PS Ranjit Nagar since 2012-13. He stated that he along with IO left the PS at about 12:00-12:30PM on the personal bike of the IO. He did not remember who rode the said bike to the spot and the spot was situated in a Gali. The complainant was present in her house when they reached at the spot. He could not tell the number of floors of the aforesaid property however, he deposed that it was certainly a three floor building. He could not tell the front direction of the said property. It took about 10 minutes to reach the spot from PS. He further stated that he also went inside the property with the IO and that the offence of theft was committed at the third floor. He did not remember how many rooms were there at the ground, first and second floor. When they reached at the third floor of the property, complainant alone was present. He went to PS with rukka on the bike of IO and he remained at the spot for about 30 minutes before taking the rukka to the PS. He further stated that he handed over the rukka at PS to W/ASI Suresh. He remained at the PS for about 30 minutes after handing over the rukka to duty officer. He returned to the spot after registration of the FIR at about 1:30PM and they finally left the spot at about 1:40 PM. He stated that the Site plan was not prepared by the IO in his presence. He further stated that the distance between the spot Digitally Page No.4 of 24 signed by UDITA UDITA JAIN GARG JAIN Date:
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and the PS was about 01 KM. He did not remember the registration number and make of the bike of the IO.
7.1. PW1 denied the suggestions put forth by Ld. counsel for the accused namely;- that he never joined the investigation in the present case and that he never visited spot and IO had done all the investigation while sitting at the PS.
8. HC Vikas was examined as PW2 by the prosecution. He deposed that on 11.05.2014, he was posted as HC at PS Ranjit Nagar. On that day, he was joined in the investigation by IO/SI Kamlesh. Thereafter, he alongwith IO went to Seva Nagar, Ghaziabad to search for the stolen mobile phone and accused, where, they did not find the accused and on inquiry, they found that the accused lives in Maliyana, Meerut. When they went to Maliyana, Meerut, they found Pappu Saini at that address who stated that he was using his neighbour Rajesh Bindal's phone for sometime and that he had handed over the phone to Rajesh Bindal. Pappu Saini then took them to Rajesh Bindal's house where the accused Rajesh Bindal admitted his offence and got recovered the mobile phone make LAVA (colour black) from his almirah. IO conducted the personal search of the accused and arrested him. Thereafter, IO prepared the arrest memo of the accused, Ex.PW-2/A. IO also prepared the personal search memo of the accused, Ex.PW-2/B. The seizure memo of the aforesaid mobile phone, Ex.PW-2/C was also prepared by the IO. Disclosure statement, Ex.PW-2/D of the accused was also recorded by the IO in his presence. IO informed about the arrest of the accused to his family Page No.5 of 24 Digitally signed UDITA by UDITA JAIN GARG JAIN Date:
2026.01.21 GARG 16:07:32 +0530 State Vs. Rajesh Kumar Bindal FIR No.120/2014 members & local police station and thereafter, they took the accused to PS Ranjit Nagar alongwith the case property. Case property was deposited in malkhana and accused was put in the lockup after his medical examination. He correctly identified the accused in the court.
8.1. PW2 was cross examined at length by Ld. counsel for accused. During the course of his cross-examination, PW2 stated that on the day he joined the investigation, he was on beat duty and his duty was started from 08:00 AM. At 10:00 AM, IO called them in PS and he alongwith SI Kamlesh and SI Naresh left PS after 10:00 AM, but he did not remember the exact time. He deposed that either SI Kamlesh or SI Naresh did entry in the Rojnamcha register about their ravangi for Ghaziabad. They reached Ghaziabad by car, but he did not remember in which car and he did not know who was the owner of the abovesaid car. He admitted that no arrival entry was made in any local PS of Ghaziabad, UP. He further admitted that they had visited the address of the Pappu Saini and that they went to the Ghaziabad in search of Pappu Saini, however, he was not traceable at that time.
They made the efforts to trace Pappu Saini but he could not say if IO had recorded statement of any person there. He could not remember who told the address of Meerut to the IO. They reached Meerut at the address of Pappu Saini without informing the local police. They found Pappu Saini at his address in Meerut and IO recorded his statement at same time. He further deposed that the colour of the mobile was black and the mobile was having a camera. He denied the suggestion that the mobile was was recovered from Pappu Saini.
Digitally
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UDITA UDITA
JAIN GARG
JAIN Date:
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9. The prosecution examined complainant Smt. Parmeshwari Devi as PW3. She deposed that she did not remember the exact date and month of the incident, however, the same had occurred in the year 2014 at about 01:00 pm when the accused came to her house and asked for a vacant room for the purpose of rented accommodation. She had shown him the 2 floor of her building in which they were nd living at that time. When she was showing him kitchen area of the same floor, accused took the mobile phone of her daughter from a box, upon which it was lying. Thereafter, accused suddenly went to the roof of the house and she followed him to the roof. The accused went downstairs to call his friend but he did not return. Thereafter, her daughter told her that her mobile phone was missing. On suspicion, she made a call on the mobile phone of her daughter, which was picked up by the accused. The accused asked them to come to the Metro Station to collect the mobile phone. She alongwith her daughter went to the Metro Station but they did not find the accused there. Thereafter, they went to the police station and her statement was recorded by the police, which was Ex.PW-3/A. After about six months, police official called her to PS to identify the accused. She went to the police station and identified the accused by herself in the presence of the IO. She also got the information from the police regarding the recovery of her mobile phone after which she got the mobile phone released by the order of the Court from police station. She correctly identified the accused in the court. She also correctly identified the case property i.e. mobile phone make of Lava in the court.
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JAIN
JAIN GARG
Date:
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9.1. PW3 was cross examined at length by Ld. counsel for accused. During the course of her cross-examination, PW3 stated that her house is a three storey building and first and second floors were given on rent. At the time of incident, the tenants of both the floors were not present as they had left for their respective offices in the morning. Her complaint was recorded by the police at PS on the same day i.e. 28.02.2014. She deposed that the police did not come to her house on the day of incident and volunteered about being informed that the mobile phone has been put on tracing and she will be informed when its recovered.
9.2. PW3 denied the suggestions put forth by Ld. counsel for the accused namely;- that her phone got lost outside her house and same was not stolen; that she identified the accused at the instance of police official at PS; that she had falsely implicated the accused in the present case at the instance of IO and she identified the accused at his instance at PS. She, however, admitted that she identified the accused in the PS.
10. Sh. Maninder Singh, Alternate Nodal Officer, Vodafone Idea Ltd. was examined as PW4 by the prosecution. He deposed that he was working as alternate Nodal Officer in Vodafone Idea Ltd. since 18.10.2021. He further deposed that the electronic e-mail copy dated 29.03.2014 was sent by their Company for the details of IMEI No.911329252783220 & mobile no.9540063076. Copy of same was Mark PW-4/A. The uncertified copy of CDR was Mark PW-4/B (colly.) (running into two pages). He further deposed that he had not brought the Page No.8 of 24 UDITA JAIN GARG Digitally signed by UDITA JAIN GARG Date: 2026.01.21 State Vs. Rajesh Kumar Bindal FIR No.120/2014 certified copy of the CDR of the abovesaid mobile number and IMEI due to the reason that the CDR was more than two years old and as per the guidelines/circular of the DOT Govt. of India, the CDR of more than two years was destroyed. Copy of circular was Mark PW-4/C. 10.1. PW4 was cross examined by Ld. counsel for accused. During the course of his cross-examination, PW4 admitted that as per the requisition made by SHO, PS Ranjit Nagar, the details of CDR which was asked from the Company was of IMEI no.911329252783221 & 911329252833778. Requisition was Ex.PW-4/X. As per the CDR, the details of 22.02.2014 to 25.03.2014 were provided.
11. IO/SI Kamlesh Kumar was examined as PW5. He deposed that on 28.02.2014, he was posted as SI PS Ranjeet Nagar. On that day, he was on day emergency duty. He received information through DD NO. 24A regarding theft in a house and thereafter, he went to the spot i.e. Shadikhampur Village. At the spot, he met complainant Parmeshwari Devi, aged about 50 years. On inquiry she told him that a boy, who came for rented accommodation had committed theft of her mobile phone. Thereafter, he recorded her statement and prepared a tehrir upon it. Tehrir was already Ex.PW3/A from X to X1. He further deposed that he handed over the tehrir to Ct. Dinesh for registration of FIR. After registration of FIR, Ct. Dinesh returned at the spot and handed over original tehrir and copy of FIR. Thereafter, he prepared the site plant at the spot at the instance of the complainant which was Ex.PW5/A. He collected the bill of stolen mobile from the complainant. He further deposed that he searched for the accused, but Digitally Page No.9 of 24 UDITA signed by UDITA JAIN GARG JAIN Date:
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he was untraceable. Thereafter, he recorded the supplementary statement of the complainant. He returned to the PS and placed the IMEI Number of the stolen mobile phone under surveillance. After about 01 and half month, the IMEI number was found in use with a new mobile number. He obtained the details qua the said mobile number and same was found registered in the name of Pappu Saini. Pappu Saini was interrogated and he told him that he had taken the mobile phone from his neighbour namely Rajesh Kumar Bindal and after one week of use, he returned the same to him. Thereafter, at the instance of Pappu Saini, Rajesh Kumar Bindal was apprehended. Upon inquiry, accused Rajesh Kumar Bindal produced the stolen mobile phone. He recorded the statement of Pappu Saini. He seized the mobile vide memo already Ex.PW2/C. He arrested the accused vide memo already Ex.PW2/A. Personal search of the accused was conducted vide memo already Ex.PW2/B. He recorded the disclosure statement of accused and same was already Ex.PW2/D. He also moved application for judicial TIP of accused. Accused was sent to JC and TIP of accused was conducted at Tihar Jail. After the TIP, he obtained the copy of TIP and tagged it with the case file. He recorded the statements of police witnesses and prepared the chargesheet. He correctly identified the accused in the court.
11.1. PW5 was cross examined by Ld. counsel for accused. During the course of his cross-examination, PW5 stated that he was present at the PS when he received DD No. 24A and he received the information at about 12:30 PM. He left the PS within 05 minutes after receiving Digitally signed by Page No.10 of 24 UDITA UDITA JAIN GARG JAIN Date:
GARG 2026.01.21 16:07:52 +0530 State Vs. Rajesh Kumar Bindal FIR No.120/2014 information alongwith Ct. Dinesh. They left on foot and reached at the spot. No separate departure entry was made before departure from the PS. The distance between the PS and spot is about 500 meters. He failed to remember if he checked that any tenant was living with the complainant in her property. He did not make any inquiry with regard to the tenants or from the tenants. He had asked the local residents to join the investigation, but since no eye witness was found, he had not recorded any statement. He reached the spot at about 12:40 pm. Ct. Dinesh left the spot with tehrir at about 01:30 PM. He did not remember the date when he sent the IMEI number of the mobile phone for tracing but he received a reply at end of the month of April 2014. He admitted that the number which was found in the stolen mobile phone was in the name of Pappu Saini. He went on 11.05.2014 at about 10:00 AM alongwith SI Naresh Kumar and HC Vikas in a car for inquiry with Pappu Saini. The car belongs to SI Naresh. He had not traced the location of Pappu Saini. He had made the departure entry before leaving the PS, but he did not remember the DD number. They left for Ghaziabad as the address of Pappu Saini was of Ghaziabad. He took help from the local police, but he did not remember the name of the PS. He further stated that he reached at the address of Pappu Saini with the help of the local police. Pappu Saini was using another mobile phone with different number at that time. He did not remember whether he had mentioned the other mobile number of Pappu Saini which was used by him at that time. He further deposed that he made inquiry from Pappu Saini regarding the sim card which was found running in the stolen mobile phone, but he did Digitally signed by Page No.11 of 24 UDITA UDITA JAIN GARG JAIN Date:
GARG 2026.01.21 16:07:56 +0530 State Vs. Rajesh Kumar Bindal FIR No.120/2014 not remember what he had stated regarding the said fact. He had not seized the sim card of Pappu Saini which he used in the stolen mobile phone. He had not taken the help of local police of Merut before visiting the address of the accused. He further deposed that statement of Pappu Saini was recorded at his residence. PW5 denied the suggestions put forth by Ld. counsel for the accused namely;- that the stolen mobile phone was recovered from Pappu Saini and that he had deliberately not made the said Pappu Saini an accused in the present case; that accused has been falsely implicated in the present case at the instance of Pappu Saini; he had deliberately not seized the sim card which was used by Pappu Saini; that statement of local police was not recorded as he had not joined any local police, so he did not remember the name of the PS; that accused was seen by the complainant at PS during investigation before TIP; that nothing was recovered from the accused and he was falsely implicated in the present case; that case property is falsely planted upon the accused at the instance of the Pappu Saini; that Pappu Saini was using the stolen mobile phone or that he was deposing falsely.
12. On 22.12.2022, accused admitted the genuineness of FIR bearing No. 120/2014 dated 28.02.2014, PS- Ranjit Nagar, Ex. A1, Certificate u/s 65B of Indian Evidence Act, Ex. A2 and TIP proceedings dated 13.05.2014 under Section 294 of Cr.PC. Consequently, the examination of PW W/ASI Suresh and Ms. Colette Rashmi Kujur, Ld. MM was dispensed with.
Digitally
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UDITA UDITA
JAIN GARG
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13. It is pertinent to mention that vide order dated 15.01.2024, PW Pappu Lal Saini was dropped from the list of witnesses as he had passed away.
14. Thereafter PE was closed vide order dated 14.05.2024 and accused was examined in the exercise of power under section 313 of the Code of Criminal Procedure, 1973 on 27.07.2024 wherein, he pleaded innocence and claimed that he had been falsely implicated in this case. He stated that police officials picked him from his house and the stolen mobile phone was not recovered from his possession. Accused chose to not lead DE and accordingly, DE was closed.
15. Final arguments were heard on behalf of accused as well as Ld. APP for State.
16. During the course of final arguments, it was submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubt and all the ingredients of the offences punishable under section 380/411 of IPC are made out therefore, finding of guilt be returned against the accused.
17. On the other hand, Ld. Counsel for the accused argued that the prosecution has not been able to establish its case beyond reasonable doubt therefore, the benefit of doubt must inure to the accused. Ld. for the accused averred that no independent public person has been examined as a witness by the prosecution and the Complainant never saw the accused committing the alleged offence. The recovery was planted upon the accused and even the seizure Digitally signed by Page No.13 of 24 UDITA UDITA JAIN GARG JAIN Date:
GARG 2026.01.21 16:08:05 +0530 State Vs. Rajesh Kumar Bindal FIR No.120/2014 memo of the mobile phone does not mention any independent witness despite availability. It is urged that the complainant during her deposition in court herself admitted that after about six months of the incident, she was called by the police officials to the police station to identify the accused and it was in the police station that she identified the accused in presence of the IO. It is submitted that it was due to the said reason that the accused refused to participate in the TIP proceedings. Ld. counsel for the accused pointed out the contradictions in the testimony of the witnesses to argue that prosecution has failed to prove its case beyond reasonable doubt.
18. Before sifting and weighing the competing submissions in the light of the evidence tendered on record, it is deemed germane to reproduce the applicable provisions of the Indian Penal Code, 1860 namely:
Section 380 IPC provides penalty for Theft in dwelling house, etc. It provides that:-
"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."
Section 378 IPC defines theft. It reads as under:-
"378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable Digitally Page No.14 of 24 signed by UDITA UDITA JAIN GARG JAIN Date:
GARG 2026.01.21 16:08:10 +0530 State Vs. Rajesh Kumar Bindal FIR No.120/2014 of being the subject of theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which affects the severance may be a theft.
Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
Section 411 IPC reads as under:
"Sec.411- 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."
Decision and brief reasons for the same
19. The rule that every accused person is presumed innocent until he is proved guilty and that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt is fundamen- tal to the system of justice practiced in this country and in several other countries. Indeed it is entrenched in the Constitution that every Digitally signed by Page No.15 of 24 UDITA UDITA JAIN GARG JAIN Date:
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person charged with a criminal offence shall be presumed to be inno- cent until he is proved or has pleaded guilty.
Now, I will decide if the testimony proffered by the prosecution was credible and reliable?
20. Contradictions between the complainant's oral evidence and the written statement he made to the police after the incident.
For establishing the ingredients of the offence for theft under section 380 IPC, the prosecution must prove beyond reasonable doubt that the accused had dishonestly moved the articles of the complainant from her possession, from her house/ human dwelling without her consent.
In the case at hand, the key witness for the prosecution is the complainant Smt. Parmeshwari Devi whose testimony in essence is as follows:- "I do not remember the exact date and month of the incident, however, the same had occurred in the year 2014 at about 01:00 pm, accused (present in the court today and correctly identified by the witness) came to my house and asked for the vacant room for the purpose of rented accommodation. I had shown him the 2nd floor of my building in which we were living at that time. When I was showing him kitchen area of the same floor, accused took a mobile phone of my daughter from a box, upon which it was lying. Thereafter, accused suddenly went to the roof of the house and I also went to the roof. Thereafter, accused went to downstairs to call his friend but he did not return. Thereafter, my daughter told me that her mobile phone was missing. On suspicion, I made a call on the mobile Digitally signed by Page No.16 of 24 UDITA UDITA JAIN JAIN GARG Date:
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phone of my daughter, which was picked up by the accused. The accused asked us to come at Metro Station to collect the mobile phone. Thereafter, I alongwith my daughter went to the Metro Station but we did not find the accused there."
20.1. It is argued on behalf of the accused that the complainant at no point of time, either during her written statement Ex.PW3/A made before the police or during her deposition in Court, has submitted that she saw the accused taking the mobile phone of her daughter from her house. It is averred that the statement Ex.PW3/A not even mentions where the mobile phone of the daughter of the complainant was kept when the accused had visited the house of the complainant. In fact, in the statement Ex. PW3/A, the allegations are simply that after the accused had left from the house of the complainant, she was told by her daughter that her mobile phone was missing. When she called the mobile number, she merely felt that the voice of the receiver was similar to the voice of the accused, who had visited her for rental accommodation. It is further urged that while in her evidence before the Court, the complainant submits that she had shown the 2nd floor of building to the accused, in her cross-examination, she has very categorically stated that the first and second floors of three storey building where she resides were already given on rent.
20.2. Pertinently, the contradictions in the statement of the Complainant made to the police and in court does not make it clear where the stolen mobile phone was kept, when the accused had visited the house of the Complainant and if the accused had ever Digitally signed by Page No.17 of 24 UDITA UDITA JAIN JAIN GARG Date:
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visited that part of the house, while the Complainant was showing him the same for rent. In her statement Ex. PW3/A the Complainant states that she had shown her adjacent room to the accused, in her deposition before the court she submits that she had shown him the 2nd floor of her building. The Complainant, then in her cross- examination avers that 1st and the 2nd floor of the building were already given on rent. Even the witness PW-1 HC Dinesh, who accompanied the IO on the date of the incident replied during his cross- examination that the offence was committed on the third floor of the building. Further, strangely, even though, it is stated in her deposition that the accused took the mobile phone of her daughter from a box, the Complainant, clearly, did not raise any objections to the same. Furthermore, statement Ex.PW3/A clearly shows that the allegations against the accused were based on pure conjecture and the complainant never saw the accused removing the mobile phone of her daughter from her house. It is thus clear that the star prosecution witness contradicted herself when testifying in the court which goes to the root of the matter.
20.3. Even the stolen property was not recovered from the possession of the accused "soon after the theft" and the same was allegedly recovered on 11.05.2014 i.e., approximately three months after the alleged theft. Now, if it is proved that a theft was committed and that soon after it was committed, the stolen property was recovered from the possession of the accused, presumption can be raised under section 114, Illustration (a) of the Indian Evidence Act Digitally signed by UDITA Page No.18 of 24 UDITA JAIN JAIN GARG Date:
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that the accused is either the thief or the receiver of the property knowing it to be stolen.
Illustration (a) of section 114, Evidence Act runs as follows:
The Court may presume:
(a) 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.
20.4. Therefore, this Court, in the facts of the present case, cannot even presume that the accused had committed the theft of the mobile phone belonging to the complainant as the stolen mobile phone was not recovered from him "soon after the theft".
Recovery of stolen goods doubtful
21. It is the case of the prosecution that the case property i.e. the mobile phone was recovered from the accused on 11.05.2014. The story of the prosecution is that the surveillance of the IMEI number of the Complainant's mobile phone led them to one Pappu Saini (since deceased), who was found in Meerut and whose mobile number was found active in the stolen mobile phone. The said Pappu Saini then told them that he had taken the alleged mobile phone from the accused, his neighbour for some time and then returned it back. He, then, got the same recovered from the house of the accused. First of all, it is pertinent to mention here that nowhere during the deposition of the witnesses it has come on record as to how the police officials traced the said Pappu Saini in Meerut, when the surveillance led them only till Ghaziabad. Now, even if the said story is presumed to be true, Digitally signed by Page No.19 of 24 UDITA UDITA JAIN GARG JAIN Date:
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pertinently, the seizure memo of the stolen mobile phone Ex. PW 2/C or the arrest memo of the accused Ex. PW 2/A nowhere mentions the abovementioned Pappu Saini as a witness despite his availability.
21.1. Thus, it is clear that the State's version regarding the sequence of how accused was apprehended and how the stolen mobile phone was recovered is riddled with doubts which go to the heart of the case.
No arrival and departure entry
22. As per prosecution version, when IO/SI Kamlesh Kumar and HC Vikas first went to Ghaziabad and then to Meerut where they apprehended the accused along-with the stolen mobile phone.
22.1. It was argued on behalf of the accused that prosecution has not proved the departure and arrival entries to prove that PW1 and PW2 actually left for Ghaziabad and Meerut at the relevant time. He further contended that had this been true, there ought to have been some DD entry in the Register. He stated that in the absence of DD Entry, it cannot be said that PW1 and PW2 were actually present at the alleged spot at the relevant date and time.
22.2. To appreciate the argument advanced on behalf of the accused, it would be advantageous to refer to clause (c) of Rule 22.49 Chapter 22 Punjab Police Rules which reads as under:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police sta-
tion or elsewhere, with a statement of the nature of Digitally signed by Page No.20 of 24 UDITA UDITA JAIN JAIN GARG Date:
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their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter per- sonally by signature or seal.
22.3. From the reading of the above mentioned rule, it is evident that all police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office.
22.4. At this stage, it would be advantageous to refer to the judgment of the Hon'ble Delhi High Court passed in the case of the case of Rattan Lal vs State 32 (1987) DLT 1=1987 (2) Crimes 29 wherein it was observed as under:
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach, their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
22.5. During cross-examination, despite specific query being made by the defence, no departure or arrival entry has been exhibited in evidence by the prosecution.
22.6. In view of the above, I am of the considered view that the failure by the prosecution to bring on record the DD entries concerning the departure of the police official for Ghaziabad/ Meerut casts a shadow of doubt on the prosecution case regarding the presence of police officials at the spot at the time.
Conclusion
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23. It was argued on behalf of State that evaluating her evidence as a whole, PW3 was a credible and reliable witness who told the truth. In support of his arguments, learned APP for the State relied on the evidence of PW1/HC Dinesh, PW2/HC Vikas and PW5/SI Kamlesh Kumar as sufficient corroboration of the complainant's evidence. I do not agree. The complainant completely contradicted herself during her testimony in court. In view of the conflicting testimony of PW1 and PW3, the place where the stolen mobile phone was kept and theft was committed is also not clear. Even the recovery of the stolen property is doubtful in light of the fact that the sole independent witness was not made a witness to either the seizure memo or the arrest memo, despite availability.
Result
24. Suspicion, no matter how strong cannot take the place of legal proof.
The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of Digitally signed by UDITA Page No.22 of 24 UDITA JAIN JAIN GARG Date:
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clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide:
Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).
25. When considering and evaluating the contradictory version on a holistic basis, I am of the view that the prosecution's evidence was unsatisfactory and that the contradictions affected its witnesses' reliability and credibility.
26. In the circumstances, I am of the view that prosecution has failed to establish the guilt of accused beyond reasonable doubt.
27. Consequently, accused RAJESH KUMAR BINDAL is ACQUITTED of the crime charged.
Announced in open court on this 21st day of January 2026 (This judgment contains 24 pages Digitally signed by Page No.23 of 24 UDITA UDITA JAIN GARG JAIN Date:
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Digitally
and each page is signed by me) UDITA signed by
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(Udita Jain Garg)
Additional Chief Judicial Magistrate (West)/THC/Delhi 21.01.2026 Page No.24 of 24