Delhi District Court
State vs . on 18 August, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 6755/2019
Unique Case ID No. -: DLSW020084262019
FIR No. -: 172/2004
Police Station -: Uttam Nagar
Section(s) -: 380/457/34/174A IPC
In the matter of -
STATE
VS.
1.SALVA KUMAR @ VIJAY KUMAR S/o Sh. Ramanujam, R/o E-94, J.J. Colony, Bindapur, Uttam Nagar, New Delhi.
2. DHARAMPAL @ RAJU (ABATED) S/o Sh. Haridev, R/o H. No. 25, Street No. 3, Harijan Basti, Bindapur, Uttam Nagar, New Delhi.
.... Accused
1. Name of Complainant : Parvinder Kumar
2. Name of Accused : Salva Kumar Offence complained of or
3. : 380/457/34/174A IPC proved
4. Plea of Accused : Not guilty Date of commission of
5. : 25.02.2004 & 29.10.2021 offence
6. Date of Filing of case : 21.09.2004
7. Date of Reserving Order : 08.08.2022
8. Date of Pronouncement : 18.08.2022 Convicted under Section 380/457/34 IPC
9. Final Order :
Acquitted under Section 174A IPC Cr. Case No. 6755/2019 State vs. Salva Kumar Page 1 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2022.08.18 11:22:25 +0530 Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Rajbir Yadav, Ld. LAC for the accused.
INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2-3
2. Investigation and appearance of accused 3
3. Prosecution Evidence 3-7
4. Statement of accused and defence evidence 7
5. Arguments 7-8
6. Ingredients of the offence 8-9
7. Appreciation of evidence 9-13
8. Section 174A IPC 13-15
9. Conclusion 15-16
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that the complainant runs a tailoring shop. On 25.02.2004, he was asleep in his house and around 03:15 am, he heard some noises. He woke up and came outside, where he witnessed that three persons were loading his sewing/over locking machines, which were kept in his shop, in a van parked in front of his shop. He raised hue and cry and caught the accused Salva Kumar on the spot. The remaining two persons managed to flee the spot. The articles of the complainant as well as the van being used for the commission of the crime were also recovered at the spot. As such, it is alleged that the accused committed the offences punishable under Section 380/411/457/34 of Digitally the Indian Penal Code (hereinafter, "IPC"), for which FIR No. signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2022.08.18 11:22:32 +0530 Cr. Case No. 6755/2019 State vs. Salva Kumar Page 2 of 16 172/2004 was registered at the Police Station Uttam Nagar, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the two accused persons was filed. One co-accused Rampal @ Raju was never traced. After taking cognizance of the offence, the accused persons were summoned to face trial.
3. On their appearance, a copy of charge-sheet was supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Section 380/457/34 IPC was framed against accused Salva Kumar and Dharampal. The accused persons pleaded not guilty and claimed trial. During the trial of the case, accused Dharampal expired and the proceedings against him were abated in terms of order dated 03.08.2007. Further, on account of non-appearance during the trial, warrants were issued against accused Salva Kumar. Pursuant thereto, he was declared a proclaimed person after issuing proclamation in terms of Section 82 CrPC. After his apprehension, additional charge under Section 174A IPC was framed against accused Salva Kumar. He pleaded not guilty to the said charge and claimed trial.
Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2022.08.18 PROSECUTION EVIDENCE - 11:22:42 +0530
4. During the trial, the prosecution led the following oral Cr. Case No. 6755/2019 State vs. Salva Kumar Page 3 of 16 and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : ASI Ramesh Chander (duty officer) PW-2 : Parvinder Kumar (complainant) PW-3 : Gulshan Kumar (eye-witness) PW-4 : ASI Mahavir Singh (arrest witness) PW-5 : Leela Devi (owner of van) PW-6 : HC Om Prakash (accompanied IO) ASI Suresh Kumar (filed supplementary PW-7 :
report)
PW-8 : SI Jai Prakash (IO)
PW-9 : HC Pradeep (arrested accused)
PW-10 : HC Hariom (process server)
DOCUMENTARY EVIDENCE
Ex. PW1/A : FIR
Ex. PW1/B : Endorsement on rukka
Ex. PW2/A : Statement of complainant
Ex. PW2/B : Seizure memo of van
Ex. PW2/C : Seizure memo of documents
Ex. PW2/D : Arrest memo of accused Salva Kumar
Ex. PW2/E : Personal search of accused Salva Kumar
Ex. PW2/F : Arrest memo of accused Dharampal
Ex. PW2/G : Personal search of accused Dharampal
Ex. PW2/H : Superdarinama
Ex. P1 : Sewing machine
Ex. P2 : Inter locking machine
Ex. P3 : Photographs
Ex. PW4/A : Seizure memo of wheels
Ex. PW5/A : Superdarinama
Ex. PW6/A : Seizure memo of sewing machines
Ex. PW6/B : Disclosure statement of Salva Kumar Digitally
signed by DEV
Ex. PW8/A : DD No. 39A DEV
CHAUDHARY
CHAUDHARY Date:
Ex. PW8/B : DD No. 40 2022.08.18
11:22:55
+0530
Cr. Case No. 6755/2019 State vs. Salva Kumar Page 4 of 16
Ex. PW8/C : Tehrir
Ex. PW8/D : Site plan
Ex. PW8/E : Disclosure statement of Dharampal
Ex. PW9/A : Arrest memo of Salva Kumar
Ex. PW9/B : Personal search memo of Salva Kumar
Ex. P1 : Report of process server
5. Parvinder Kumar (PW2) is the star witness of the prosecution, being the complainant and eye witness. He stated on oath that he used to run a tailoring shop at 25 foota road, Chanakya place. On 25.02.2004, he had gone to sleep after locking his shop.
He heard some noise around 03:00 am and came out of his room. He saw three persons stealing his machines, which were inside his shop, and loading them in a Maruti van bearing no. 2094. He raised hue and cry and apprehended accused Salva Kumar on the spot. The other accused fled away. Neighbours came to the spot. Police was called. He then deposed about the investigation done. 5.1. In cross-examination, Parvinder Kumar (PW2) admitted that public had gathered on the spot. He stated that his statement was recorded at the police station and further stated that the police reached the spot after 30-40 minutes. He stated that police had recorded statements of public persons in his presence.
6. Gulshan Kumar (PW3) is the eye witness to the incident. He stated that the complainant is his friend, who informed him about the theft. He went to the shop and found that the machines were missing. Thereafter, when they were looking for the machines, they found them inside a blue Maruti van. A person was standing next to the van. He failed to recognise the accused from the dock stating that 15 years have passed away since the incident. Digitally signed by DEV CHAUDHARY DEV Cr. Case No. 6755/2019 State vs. Salva Kumar Page 5 of 16 CHAUDHARY Date:
2022.08.18 11:23:39 +0530 6.1. In cross-examination, Gulshan Kumar (PW2) stated that the van was found stationed near a school. He stated that 5-10 other persons were present at the spot, when he reached there. He stated that he remained at the spot for around half an hour and no police official came to the spot during that period.
7. SI Jai Prakash (PW8) is the IO of the case. He stated on oath that he went to the spot with Ct. Om Prakash, after receipt of information. He found the complainant, who handed over the accused Salva Kumar to them, alongwith a Maruti van and the stolen property. He stated that he recorded statement of the complainant, got the FIR registered, prepared the site plan, seized the articles, arrested the accused etc. He took police remand of the accused from Court and nabbed co-accused Dharampal. He recorded statement of witnesses during the investigation.
7.1. In cross-examination, SI Jai Prakash (PW8) admitted that 5-10 public persons were present at the spot and he only recorded statement of Gulshan Kumar. He admitted that Gulshan Kumar was neighbour/friend of the complainant. He stated that although he had prepared the site plan at the instance of the complainant, he had not obtained the signatures of the complainant on the said document. Thereafter, he stated that the complainant used to reside on the first floor of the building and the shop was situated on the ground floor of the said premises. He admitted that accused Salva Kumar and Dharampal were not registered owner of the van.
8. HC Hariom (PW10) is the process server who served the process under Section 82 CrPC. He stated on oath that he was Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
entrusted with the process under Section 82 CrPC on 18.09.2021. 2022.08.18 11:24:10 +0530 Cr. Case No. 6755/2019 State vs. Salva Kumar Page 6 of 16 He went to the house of the accused Salva Kumar, where a person met him and told him that he does not know the accused. No one could tell about the whereabouts of the accused and no one gave their statements. He pasted a copy on the main gate of the address of the accused and took a photograph. He then informed the public persons about the process against the accused and pasted a copy of the proclamation on the notice board of the Court. 8.1. In cross-examination, HC Hariom (PW10) admitted that he did not make any departure or arrival entry regarding the execution of the process. Further, he stated that he had not made any announcement with drum beat and stated that he had loudly informed the public. He admitted that he did not produce the photographs on record and stated that he did not record statement of any persons on the spot.
9. Rest of the prosecution witnesses supported the case of the prosecution. They have proved the documents mentioned in the Table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
10. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. He stated that he is innocent and has been falsely implicated in the present case. Pursuant thereto, he stated that does not wish to lead any defence evidence. Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2022.08.18 11:24:15 ARGUMENTS - +0530 Cr. Case No. 6755/2019 State vs. Salva Kumar Page 7 of 16
11. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
12. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the accused was caught red handed by the complainant and all the other ocular evidence points towards the guilt of the accused. He contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
13. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel has argued that despite acceptance of the fact by the prosecution witnesses that public persons were present at the spot, no public person has been brought to the stand. He has argued that the independent person brought to the stand is the friend of the complainant, who has failed to identify the accused. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE -
14. The accused has been charged with the offence of theft from a dwelling house (S. 380 IPC), lurking house trespass/house breaking by night in order to commit theft {S. 457 (II) IPC} and non-appearance in response to proclamation (S. 174A IPC). In order to prove offence under Section 380 IPC, theft in terms of Section Digitally signed by DEV CHAUDHARY 378 IPC is to be proved to be committed from any building, tent or DEV CHAUDHARY Date:
2022.08.18 11:24:23 Cr. Case No. 6755/2019 State vs. Salva Kumar Page 8 of 16 +0530 vessel, which is used for human dwelling or custody of property. Further, in order to prove the second part of the offence under Section 457 IPC, the prosecution has the burden to prove that lurking house trespass (S. 443 IPC) or house breaking (S. 445 IPC) was committed by the accused in order to and with the intent to commit theft.
15. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE -
16. The case of the prosecution hinges upon the testimony of the star witness, i.e. the complainant PW2. On appreciation of the same, it stands proved that the shop of the complainant was locked by him on the fateful day. He has stated that he slept after locking the shop and shuttering the same. He woke up from his sleep in the wee hours. He has stated that the incident took place around 03:00 am, i.e. during the night. When he came outside, he saw three persons loading his machines in a van. He raised noise and one of the thieves was caught on the spot. The testimony of the complainant proves that the incident took place at night. It further proves that the shop was locked so the theft could not have taken place unless house breaking was involved. It further proves that three persons were taking away his property. He has categorically Digitally signed by DEV DEV CHAUDHARY stated that his sewing machine and interlocking machine were kept CHAUDHARY Date:
2022.08.18 11:24:28 Cr. Case No. 6755/2019 State vs. Salva Kumar Page 9 of 16 +0530 inside his shop. These were being taken away by loading in a vehicle, which was parked outside the shop. The complainant nabbed the present accused, Salva Kumar, at the spot, while committing the crime. He has correctly identified the accused from the dock and thus it also stands proved that the accused was involved in the crime. The testimony of the complainant on the material points regarding the incident has remained unshaken.
17. During cross examination, the defence has elicited from the complainant that his statement was recorded in the police station. However, in his examination-in-chief, he has stated that the same was recorded on the spot. The inconsistency in his version regarding the place where his statement was recorded is minor, considering the fact that the complainant was examined after around 12 years since the incident and was cross examined after a further period of around 7 more years since his examination-in-chief. After the passage of more than one and a half decade, it cannot be expected that the witness would remember every minute detail about the incident. There is no other circumstance from the testimony of the complainant which would render the same unreliable.
18. Learned counsel for the accused has laid great stress on the point that no public witness was brought to the stand during the trial. Apart from the complainant, the prosecution has brought PW3 to the stand. The witness, who is admittedly a friend and neighbour of the complainant, has deposed about the incident. He has stated that the sewing and interlocking machines of the complainant, which were kept in his shop, were stolen. He was called and they Digitally signed by DEV both found the machines kept in a van. Although he could not DEV CHAUDHARY CHAUDHARY Date:
2022.08.18 Cr. Case No. 6755/2019 State vs. Salva Kumar Page 10 of 16 11:24:33 +0530 identify the accused from the dock, he has duly explained the reason for not doing so. He was examined after a passage of more than 15 years after the incident. His testimony to the extent that the incident took place is corroborative to the case of the prosecution. At the time the complainant saw the accused persons, he was alone. It was late into the night when he woke up. It is unreasonable to expect that any other public persons would have witnessed the incident.
19. Although from the cross examination of witnesses, it has been brought to fore that other public persons came to the spot later on, non-production of such persons in the witness box does not hamper the case of the prosecution. The testimony of the complainant inspires confidence and only if the same would have been doubtful, evidence of any other person would have assumed significance. PW3 has been brought to the stand by the prosecution and his testimony is generally corroborative to the case of the prosecution. Merely because he was the friend and neighbour of the complainant, his testimony cannot be doubted. In such a circumstance, the first reaction of any prudent person is to call their near and dear ones. Being the neighbour, the fact that PW3 came immediately to help the complainant, cannot be used against him to say that he is an interested witness. He does not derive any personal benefit if the accused is convicted. Further, it is settled law that evidence is to be weighed and not counted. Section 134 of the Indian Evidence Act, 1872 enshrines this principle. The direct evidence of the complainant cannot be faulted with for want of any other witnesses to the incident.
20. During his testimony, the complainant has correctly Digitally signed by DEV DEV CHAUDHARY identified the case property Ex. P1 and P2. Learned counsel for the CHAUDHARY Date:
2022.08.18 11:24:37 Cr. Case No. 6755/2019 State vs. Salva Kumar Page 11 of 16 +0530 accused has argued that the prosecution did not produce the van during the trial. However, the said circumstance cannot solely discredit the whole case of the prosecution. From the evidence, it has come out that a van bearing no. 2094 was used by the accused persons. The said van was seized by the police from the spot, vide seizure memo Ex. PW2/B. The documents of the vehicle were also seized vide seizure memo Ex. PW2/C. PW5 is the registered owner of the vehicle, who deposed that she is the owner of the van bearing registration no. DL 2CE 2094 and she had sold the same to the accused Dharampal, prior to the incident. However, the RC was not transferred. She got the vehicle released from Court vide memo Ex. PW5/A and stated that she had handed over the car to accused Dharamapal after getting it released. The seizure memo of the documents pertaining to the vehicle Ex. PW2/C also mentions the fact that a Form 29, Form 30 and cash receipt was recovered from the vehicle, as per which, the same was sold to accused Dharampal. Therefore, the non-production of the vehicle has been duly explained as the accused Dharampal expired during the trial and his LRs could not be traced. The fact that the vehicle belonged to the co-accused, even if not on papers, is a circumstance which only goes against, and not in favour, of the accused.
21. The shop of the complainant was used for the custody of property, like his machines, which were used by him for his business. Thus, the shop falls within the definition of Section 380 IPC as it is a building used for custody of property. The complainant has deposed that the machines were inside the shop and the shop was locked. Further, house breaking is done in six ways mentioned Digitally signed by under Section 445 IPC. The accused persons entered into the shop, DEV DEV CHAUDHARY CHAUDHARY Date:
Cr. Case No. 6755/2019 State vs. Salva Kumar Page 12 of 16 2022.08.18 11:24:42 +0530 which is covered under the first clause of Section 445 IPC. Moreover, they entered into the shop with the intent of committing theft, which is evident from their subsequent conduct, as they took the machines of the complainant with them, out of the shop. Thus, the second part of Section 457 IPC is made out in the present case. Before they could run away with the stolen articles, the complainant woke up and apprehended the accused, whose identity has been established during the trial.
22. The documentary evidence on record has also remained unchallenged. Merely because the site plan does not contain the signatures of the complainant, it cannot be doubted as the complainant has deposed about the preparation of site plan in his testimony. In his statement recorded under Section 313 CrPC, the accused has merely taken the defence that he has been falsely implicated in the present case. No further elaboration has been offered. There is no material on record to suggest that the complainant and accused had any prior enmity. There is no material to suggest that the IO had falsely implicated the accused. The testimony of the police witnesses, PW4, PW6 and the IO PW8 corroborate each other and augment the case of the prosecution.
Thus, the ingredients of the offence under Section 380/457/34 IPC are established beyond any doubt.
SECTION 174A IPC -
23. Apart from the main offences, accused Salva Kumar has been charged with the offence under Section 174A IPC. The offence under Section 174A IPC pertains to non-appearance in Digitally signed by DEV DEV CHAUDHARY pursuance of a proclamation issued under Section 82 of the CrPC. CHAUDHARY Date:
2022.08.18 11:24:47 Cr. Case No. 6755/2019 State vs. Salva Kumar Page 13 of 16 +0530 Failure to appear constitutes the offence. Under Section 82 of the CrPC, whenever the Court comes to a conclusion that a person has absconded or concealed himself, despite issuance of warrants, a written proclamation is issued to require him to appear before the Court. In order to ensure publication of the proclamation, certain requirements, as stipulated in the provision, are to be met. The proclamation is to be publicly read in some conspicuous place of the town/village, it has to be affixed at the house or homestead of the person and a copy of the same is to be affixed in the Court house. A clear period of 30 days from the date of publication is to be given to the accused to appear before the court.
24. In order to prove the offence under the said provision, the prosecution has examined two witnesses. The first and the crucial witness is PW10 HC Hariom. He has entered the witness box as PW25 to depose that he was deputed to serve the process under Section 82 CrPC and he affixed a copy of the same on main gate of the house of the accused. He informed the persons about the requirement of the presence of the accused before the Court. A copy was also affixed on the notice board of the court.
25. Learned counsel for the accused has argued that mandatory requirements of the provision have not been complied with. Per contra, learned APP submits that the offence is cogently proved as against the accused.
26. In this regard, it is seen that during his cross examination, the witness PW10 has admitted that he did not make any arrival or departure entry while executing the process. No explanation has been offered as to why such entry was not made. Digitally signed by DEV CHAUDHARY DEV The departure/arrival entry in the Daily Diary would have been a CHAUDHARY Date:
2022.08.18 11:24:52 +0530 Cr. Case No. 6755/2019 State vs. Salva Kumar Page 14 of 16 substantial piece of evidence to corroborate the version of the witness. It is pertinent to mention here that the duty to record the departure and arrival is mandatory for the police officials, as per Rule 49, Chapter 22 of the Punjab Police Rules, 1934. Further, the witness has stated in his examination-in-chief that he clicked a photograph of the process that he had pasted on the house of the accused. However, he admitted that he has not produced the photograph on record. No explanation has been given for the same. Further, the witness did not record statements of any persons at the spot, in order to prove that he had executed the process. Therefore, in such circumstances, the execution of process cannot be said to be proved beyond reasonable doubt and it cannot be said with certainty that the process, if at all executed, was done at the house of the accused. Therefore, the provision of Section 82(3) CrPC, is also not attracted. The testimony of the other witnesses PW7 and PW9 is of no help to the prosecution. Thus, the accused is entitled to benefit of doubt for commission of offence under Section 174A IPC.
CONCLUSION -
27. To recapitulate the above discussion, the prosecution was required to prove the ingredients of the offences beyond reasonable doubt. The testimony of the star witness of the prosecution, the complainant, inspires confidence and cogently implicates the accused person. The other prosecution witnesses have corroborated the case set up by the prosecution and the documentary evidence on record has proved the offences under Section 380/457/34 IPC beyond reasonable doubt. The inconsistencies Digitally signed by brought out by the accused in the case of the prosecution are minor DEV DEV CHAUDHARY CHAUDHARY Date:
Cr. Case No. 6755/2019 State vs. Salva Kumar Page 15 of 16 2022.08.18 11:24:58 +0530 and do not go to the root of the matter. The defence of the accused of false implication remains unproved. However, the prosecution has failed to prove the additional offence under Section 174A IPC beyond reasonable doubt, owing to the unreliable testimony of the process server, who is the main witness of the offence.
28. Resultantly, the accused Salva Kumar @ Vijay Kumar s/o Sh. Ramanujam is hereby found guilty and is convicted of the offences under Sections 380/457/34 of the Indian Penal Code, 1860.
29. However, the accused Salva Kumar is entitled to benefit of doubt and is acquitted of the offence under Section 174A of the Indian Penal Code, 1860.
30. Copy of the judgment be provided free of cost to the convict, forthwith. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2022.08.18 11:25:05 +0530 Announced in Open (DEV CHAUDHARY) Court in presence of accused.
Metropolitan Magistrate - 07
South-West District, Dwarka
This judgment New Delhi, 18.08.2022
contains 16 signed
pages.
Cr. Case No. 6755/2019 State vs. Salva Kumar Page 16 of 16