Delhi District Court
State vs . Dulal Dass Etc. on 12 May, 2020
IN THE COURT OF MS. GURMOHINA KAUR
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 231/10
PS : C.R. Park
U/s : 381/411/34 IPC
State Vs. Dulal Dass etc.
Case No. : 93097/16
Date of institution of case : 21.12.2011
Date of reserving the judgment : 12.03.2020
Date of pronouncement of judgment : 12.05.2020
JUDGMENT
1. S. No. of the Case : 93097/16 2. Date of Commission of Offence : 24.05.2011 3. Name of the complainant : Smt. Vileena Kukreja,
4. Name,parentage & address of accused : 1.Dulal Dass, W/o Late Surender Dass, R/o 21/680, DDA Flats, Kalkaji, New Delhi.
(Declared PO)
2. Aayada @ Pinki @ Seema, d/o Salim, R/o. Village Chapali, PS - Gymkhana, District 24 Pargana, Kolkata, West Bengal.
3. Manik Gharai, S/o Baneswar Gharai, R/o H. No. 248, Gali no. 1, Tughlakabad Extn. N.D.
5. Offence complained of : 381/411/34 IPC
6. Plea of Accused : Pleaded not guilty FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 1
7. Final Order : Accused Azida @ Seema (Acquittal) Accused Manik Gharai (Convicted) Case of the Prosecution
1. Briefly stated, the case of the prosecution is that the complainant Smt. Villena Kukreja kept a maid servant namely Seema on 10.04.2011, who had told her that she was residing in Govind Puri and was sent by the ironing lady (dhoban) who used to work behind the house of the complainant. It is further stated that by the complainant as per the charge sheet that when she and her husband came back home from the work, on enquiring about the new maid, the old maid told them that she was gone to toilet on the terrace but not returned back and she found that the new maid was also missing and her jewellery, cash was missing from the cupboard and that during investigation on the basis of secret information received by Ct. Vishwajit on 24.05.2011, the stolen property of present case would be sold by one Dulal Dass @ Bappa Dass in the area of DDA Flats, Kalkaji, Central Market, Delhi. On the basis of this secret information, a raiding team was constituted and at about 03:35 p.m. at Sai Temple, Central Market, Kalkaji, DDA Flats, New Delhi, accused Dulal Dass was apprehended. Accused Dulal Dass revealed that during investigation, accused Seema @ Zaida had sold him yellow colour bangles (golden) and two of the gold bangles were recovered from the possession of accused Manik Gharai who had also mortgaged the stolen dimaond necklace with Gold Smith jewellery at I2, Central Market, Lajpat Nagar, Part II, New Delhi and the owner of the shop namely Sudhir Mehra produced the Gold embedded diamond Necklace from the safe of the shop FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 2 which was mortgaged by accused Manik Gharai with him for Rs.1,75,000/. During investigation of the case, disclosure statement of accused persons namely Dulal Das and Manik Gharai were recorded and process u/s 82 Cr.P.C was initiated against accused Seema @ Zaida and on completion of investigation charge sheet was filed against accused Manik Gharai and Dulal Dass on 21.12.2011.
2. Cognizance of the offfence was taken and accused persons were summoned. On appearing before the court, copy of chargesheet and documents were supplied to accused persons namely Dulal Das and Manik Gharai in compliance of Section 207 Cr.P.C.
3. Charges were framed against the accused persons Dulal Das and Manik Gharai under Section 411 IPC on 03.12.2012 and charges were framed against Azida @ Pinki @ Seema under Section 381 IPC on 22.11.2013 and Sec. 174 A IPC on 09.01.2019 after she was produced before the court on being arrested u/s 41.4(d) Cr.P.C and she was further admitted to bail.
4. Accused Dulal Das was declared proclaimed offender vide order dated 09.01.2018.
5. In order to substantiate and prove the charges against the accused persons, the prosecution examined as many as 7 witnesses.
6. PW1 Smt. Vileena Kukreja deposed on 27.07.2013, that about 2 years back in the Month of October November, 1 or 2 days prior to Diwali, FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 3 the exact date of which she did not remember, she was looking for a substitute maid since her permanent maid had left for her native village, a lady visited her giving reference of the Ironing lady (Dhoban) and she asked her to come the next day on believing her words. She further deposed that the next morning the lady come for work and also asked her to remove all other domestic helps as she was capable of doing all household works and PW1 further deposed that she instructed the lady about the work and left for lunch with the family. PW1 further added that since one of the keys of the locker was missing since the two days, she asked her maid Saloni to properly bolt her room and to ensure that no one enters her room in her absence. She added that when she came back to her house after two hours, she could not find the new maid and when she asked her maid Saloni, she was told that the new maid had gone to take a bath on the terrace but had not returned for the last two hours. PW1 added that she immediately checked her room and found that the doors of the almirah were open and the locker was also found open and from which one Gold embedded diamond set, six thin gold bangles, two thick gold bangles, one Gold embedded diamond bracelet, some cash and few pounds, which her sister had brought from London and gifted to her children, were found missing. PW1 further deposed during her deposition that he immediately searched for the newly employed maid but the Dhoban denied any previous acquaintance with the lady. She added that her complaint made at the police station regarding the incident was Ex.PW1/A. She deposed that when all were efforts went in vain, she visited the placement agency, where she met accused standing in court with dark complexion (pointing towards accused Dulal Das (PO)) who was the owner of the placement agency. She added that accused Dulal Das accompanied her on the pretext of finding the girl but no fruitful result came out. She further FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 4 added that after about 1 year, the local police informed her that the other accused (accused pointed towards accused Manik Gharai) who was a Gold Smith by profession and that the police had recovered one of her Gold embedded diamond necklace and the six thin gold bangles and remaining articles could not be traced. She added that she had appeared before Ld. MM to identify her jewellery and had also participated in a TIP proceedings and had identified her articles, which was later released to her on superdari by Court vide Superdarinama, copy of the same was Ex.PW1/B. The witness produced one Gold embedded diamond necklace and six gold bangles, Ex.P1 to Ex.P7. The witness was crossexamined by Ld. APP for the State as she was not disclosing the facts completely and correctly and during her crossexamination by Ld. APP for the State, she admitted that the incident had taken place on 04.11.2010 and further added that the name of the girl was Seema and that she had stated herself to be a resident of Govindpuri. She further admitted that in her complaint she had also mentioned a cash amount of Rs. 8000/ along with 150 British Pounds, which were also missing along with the jewellery articles.
During her crossexamination by Ld. Counsels for accused Dulal Das and Manik Gharai, she stated that she had never met with accused Dulal Das before employing the maid at her placement agency. She added that the said maid had not made any mention of the placement of agency of Dulal Das at the time when she visited her and that the police had accompanied her to the placement agency after a few days of her lodging the complaint. She further stated that accused Dulal Das had shown her the register in which he was maintaining the records for girls of his placement agency but she could not find any record pertaining to the said maid in the register. She added that she was in a state of shock and therefore she did not mention FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 5 about her two thick bangles in her complaint Ex.PW1/A. She further stated that no recovery from either of the accused persons was made in her presence but she was informed by the police officials in this regard.
PW1 was examined again on 09.01.2019 and she stated that during her examination in chief that in the Month of October November 2011, the exact date of which she was not remember but it was near Diwali, she was in search of a maid and accused Seema (pointing out in the court by the witness) came to her and informed her that she was sent by Dhoban who used to work behind her house. She added that accused also told her to remove her old maid Saloni as she could manage all the household work. PW1 further added that her locker keys were lost for two three days and she could not find them and on that day she has to go for a Diwali party with her kids in the afternoon and had asked her old maid Saloni to lock her room and keep the keys with her. She further deposed that when she came back in the evening, she inquired about Seema from her old maid Saloni, she informed her that Seema had gone to terrace for toilet and had not come down for the last two hours. The witness during deposition was allowed to refresh her memory. She thereafter added that her husband checked the Cupboard and found the Gold embedded diamond set, Gold embedded diamond earing, cash worth Rs. 70008000/, six gold bangles and 150 pounds were missing. She added that she further realized that one more earring and a Gold embedded diamond bracelet was also missing and they lodged a complaint in the police station. She added that the maid who used to work on the first floor had told to Saloni that she had seen Seema in one of the parks near Govindpuri. She added that she had also made inquiry from the Dhoban, who told her that Seema had come to her but she had no idea, where Seema had gone and added that Seema was only worked for one day and that since the FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 6 date of incident, she never returned for work.
During her crossexamination by Ld. Counsel for accused Azida @ Seema and Manik Gharai, she stated that the name of the Dhoban was Malti and added that the IO did not inquire from Malti in her presence and though she had informed the police about the Dhoban. She added that she had made a complaint to the police on 04.11.2010 but did not know when the FIR was registered by the police officials. She added that police had also investigated from her old maid Saloni, but she could not tell whether her statement was recorded by the police officials or not. She added that the police had also inquired from her husband but she could not tell whether the statement of her husband was recorded or not. She admitted that police had prepared the site plan on her instance but she did not remember whether she had signed the site plan or not. She further stated that she had not obtained any ID proof regarding a new maid/accused and she has also not taken any photograph of new maid. She was confronted with her statement U/Sec. 161 Cr.P.C and she admitted that in the same, it had not been stated that her locker keys were missing from last two three days. She added that after the arrest of the accused, she was called to the police station, where she was shown two accused persons and her jewellery. She stated that she was also shown accused Dulal Das in the police station by the IO and added that she did not remember the year but she had identified her jewellery at the police station. She added that she along with the police had remained at the placement agency and IO could not find any photograph of Seema in the file and she could tell if IO on that day had recorded the statement of the maid working on the first floor of the building and added that later on that the photograph of Seema was found by the IO. She also stated that she did not remember whether she had stated to the police in her statement under FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 7 Section 161 Cr.P.C that she had to go for a Diwali party with her kids in the afternoon and so she told her old maid to locked her room and keep the keys with her. She added that she did not remember whether she had informed the IO the name of the shop from where she had purchased the said jewellery. She denied the suggestion that she never employed Seema with her as her maid or that the old maid Saloni might have stolen her jewellery from her house being the caretaker of the house and keeping the keys with her.
7. PW2 ASI Dharampal deposed that on 10.11.2010, he was posted as PS C.R. Park as ASI and on that day, one complaint, Ex.PW1/A of complainant Vileena Kukreja was marked to him by the SHO, he made endorsement on the same Ex.PW2/A and got registered the FIR. He added that he got prepared a portrait of the accused lady at the instance of complainant. During cross examination conducted by counsel for accused persons, he stated that the complaint was of 04.11.2010 and it was marked to him on 10.11.2010.
8. PW3 Sh. Sudhir Mehra deposed that he ran a jewelery shop in the name and style of "Gold Smith's Jewelery" at I2, Central Market, Lajpat Nagar II, Opposite Aggarwal Sweets, Lajpat Nagar, New Delhi from year 2000 till 2013 and thereafter he had shifted his shop at I93, Central Market, Lajpat Nagar II, New Delhi. He added that he knew accused Manik Gharai (correctly identified) and stated that for about 1011 years as accused Manik Gharai was working as a Gold Smith who occasionally used to be give work of preparing jewelery at his shop and on 06.03.2011, accused Manik Gharai had brought a gold necklace set in which Gold embedded diamonds were FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 8 embedded and told him that he wanted to mortgage (pawn) the same as he required money and on enquiry he told him that the said gold necklace set belong to one of his known person who urgently required money and who wanted to pawn the said necklace set for money through him. He deposed that believing his words, he gave Rs.1,75,000/ cash to accused Manik Gharai and kept the said necklace set as security. He further added that he also got executed an instrument for pawning the abovesaid necklace set by accused for Rs.1.7 lacs on the interest of 3% per month and on 24.05.2011, police alongwith accused Manik Gharai reached his shop I 2, Central Market, Lajpat Nagar II, New Delhi on asking of police he took the abovesaid gold necklace set pawn by accused with him and handed over the same to police which police had seized vide seizure memo Ex.PW3/A after sealing the same with the seal of SG. He deposed that he also handed over the police the document vide which accused Manik Gharai pawned with him the said necklace set and took Rs.1.75 lacs which was Ex.PW3/B and signature of accused Manik Gharai at point B. He further added that police enquired him and recorded his statement to the abovesaid effect. This witness was not cross examined by the ld. Counsel for accused persons.
9. PW4 HC Kailash Chand deposed that on 24.05.2011, he was posted as HC at AATS (Crime Branch) Garhi Chowki and on that day he joined the investigation along with IO HC Sunil Gaur, Constable Vishwajeet Kumar and Constable Ravinder. He added that Constable Vishwajeet Kumar had received secret information that accused involved in the present case would come at Central Market, DDA Flats, Kalkaji, Delhi, for the purpose of selling stolen articles and therefore, under HC Sunil Gaur a raid team was formed constituting of all the aforementioned officials including himself and they FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 9 reached Central Market, DDA Flats, Kalkaji, Delhi. He added that HC Sunil Gaur requested 45 public persons/passerby to join investigation after briefing them about reception of secret information but none of them agreed and left without disclosing their names and identities. He further stated that at about 03.35 pm, a secret informer pointed towards a person, coming towards the market, who was apprehended by HC Sunil Gaur, who disclosed his name as Dulal Das and on personally search, four golden bangles were recovered from the right side of his pocket of the wearing pants. He added that during interrogation accused Dulal Das disclosed that about 6 ½ months back coaccused Azida @ Seema stole the same from the house IBlock, C.R Park and sold it to him. The same was seized by the IO vide seizure memo Ex.PW4/A, after sealing them with the seal SG in a plastic box. He added that the arrest memo and the personal search memo of accused Dulal Das were Ex.PW4/B and Ex.PW4/C respectively. The disclosure statement of accused Dulal Das was Ex.PW4/D and that as per information given by accused Dulal Das about accused Manik Gharai, a notice was issued to accused Manik Gharai to appear before HC Sunil Gaur at their office at 05.00 pm and his disclosure statement was recorded Ex.PW4/E. He added that the accused Manik Gharai had stated in his disclosure statement that he had pawned one gold necklace set at the shop of Gold Smith Jewellery, I2, Central Market, Lajpat NagarII, Delhi and had kept two gold bangles with him at his house. Pursuant to the same accused Manik Gharai lead to the shop of Gold Smith Jewellery, I2, Central Market, Lajpat NagarII, Delhi and the shop owner Sudhir Mehra produced one gold necklace set embedded with Gold embedded diamond which was already seized vide seizure memo Ex.PW3/A. He added the pawn letter already Ex.PW3/B was seized vide seizure memo Ex.PW4/F and added that accused Manik Gharai led them to FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 10 his house at H. No. 248, Gali No. 1, Tuglakabad Extension, New Delhi from where he got recovered two gold bangles from an iron almirah kept inside his room, which was seized vide seizure memo Ex.PW4/G. He identified accused Manik Gharai present in the court. During his crossexamination by Ld. Counsel for accused Azida, he stated that IO Constable Vishwajeet did not produced into writing the secret information received from informer in his presence and also did not communicate the secret information to the higher officials in his presence. He added that IO also did not made any departure/arrival entry in his presence and did not record the names and address of public persons, who had refused to join the investigation. He added that the secret informer was about 2025 years of age and had accompanied them. He also stated that IO had recorded the disclosure statement of accused Dulal Das and Manik Gharai. He further stated that before starting the process of sealing, IO did not ask any public person to join the investigation be a witness to the sealing process. He further stated that on 24.05.2011 at 04.30 pm they went to the house of accused Manik Gharai at H. No. 248, Gali No. 1, Tuglakabad Extension, New Delhi and IO did not ask any public person to be a witness to the proceedings at that spot. He added that the disclosure statement of accused Manik Gharai was recorded in the office of AATS on 24.05.2011 at 5.00 5.30 pm and accused Manik Gharai had come to the office itself. He added that he had visited the house of accused Manik Gharai at 09.00 pm but did not remember whether any family member of accused Manik Gharai was there or not. He further stated that the house of accused Manik Gharai was a tenanted room from where two bangles were recovered from the wooden almirah. He added that IO had prepared the site plan of the place of recovery in his presence and his statement was recorded by the IO on the same day at about 11.00 pm. He FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 11 denied the suggestion that he never join investigation in the present case on 24.05.2011 or at any point of time.
The aforesaid crossexamination of this witness was adopted by accused Manik Gharai.
10. PW5 SI Mukesh Kumar, No. D4243, PS PTC Jhadoda Kalan, deposed that on 23.01.2011 he was posted as SI at PS C.R Park and further investigation of the present case was handed over to him. He further added that despite his efforts accused persons and case property, could not be traced and therefore he prepared the untrace report Ex.PW5/A in the present case. This witness was not crossexamined by any of the accused persons.
11. PW6 ASI Sunil Gaur deposed that on 20.05.2011, he was posted as HC at AATS South East District and on that day he was handed over the investigation of the case after the reopening of the case. He added that after investigation on 24.05.2011, a secret information was received by Constable Vishwajeet, who was also posted at AATS South East District, that the stolen property of the present case would be sold by one Dulal Das in the area of DDA Flats, Central Market, Kalkaji and he informed to senior officer/Inspector AATS, who directed him to conduct the raid. He added that he formed a raiding party constituting HC Kailash and Constable Ravinder and they left for DDA Flats along with secret informer. He added that he requested 45 public persons to join the investigation but none of them agreed and at about 03.45 pm on the point out of secret informer, accused Dulal Das was apprehended near Sai Temple, Central Market, Kalkaji, DDA Flats. He further deposed on the similar lines as deposed by PW4 HC Kailash Chand and added that at FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 12 the instance and identification of accused Dulal Das, accused Manik Gharai was arrested in the present case after due interrogation vide memo Ex.PW 6/A and his personal search memo was Ex.PW6/B. He further stated that the accused Manik Gharai had pointed out towards the owner of the shop of Gold Smith Jeweller namely Sudhir Mehra, who produced him one Gold embedded diamond necklace from the safe of his shop and told him that the accused Manik Gharai had mortgaged the said necklace with him for Rs. 1,75,000/. He further stated that on completion of investigation he prepared the chargesheet and filed before the court and had searched for accused Azida @ Seema but could not trace her and he got process under Section 82 Cr.P.C against her. During his crossexamination by Ld. Counsel for both accused persons Azida and Manik Gharai, he admitted that in his final report under Section 171 Cr.P.C, he had mentioned that the complainant had made written complaint to SHO on 10.11.2011. He added that he had recorded the statement of complainant once and complainant did not produce any ownership document/receipt of alleged stolen articles. He added that he did not remember whether he had directed the complainant to produce the ownership documents of her stolen articles. He added that he had not inquired from the complainant in details where the stolen articles were kept and he had not prepared any site plan in the present case. He further stated that there was no separate written order of the handing over of the investigation of the present case by the concerned Inspector AATS. He denied the suggestion that he did not take any action against Sudhir Mehra, from whom the necklace in question was recovered for ulterior motive. He added that he did not ask Sudhir Mehra about the person whose writing appeared on Ex.PW3/B. He denied the suggestion that he had falsely prepared Ex.PW3/B in order to save Sudhir Mehra. He added that he did FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 13 not remember whether he had reduced the secret information in writing and had informed Inspector B.K Barola, Incharge AATS about the reception of secret information verbally. He added that no written order was received by Inspector B.K Barola to conduct raid and he did not remember the DD entry regarding their departure for investigation and the same has not been filed on record. He added that they visited the spot by private Scorpio Car but he did not remember his registration number. He added that no written notice was given to public persons who refused to join the investigation. He added that he had issued notice to accused Manik Gharai on 24.05.2011 in person at about 04.00 am and again added that the notice was issued to him outside his house. He added that Ex.PW3/B was a complete letter from point X to Y and he had not seized any mortgaged register from Sudhir Mehra.
12. PW7 ASI Rameshwar Prasad, No. 401/PCR South East Range, Delhi. He added that he was a duty officer on 10.11.2010 from 04.00 pm to 12.00 midnight. He added that he received rukka from ASI Dharampal at about 07.40 pm and had recorded the FIR Ex.PW7/A and added that the endorsement on the rukka was Ex.PW7/B. During his crossexamination by both the accused persons, he admitted that he did not have any personal knowledge of the case.
13. Both the accused persons admitted the TIP proceedings of case property under Section 294 Cr.P.C during prosecution evidence.
14. Thereafter, PE was closed at the request of prosecution and statement of both the accused persons were recorded u/s 313 Cr.PC on 04.02.2020, FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 14 wherein both the accused persons Azida @ Seema and Manik Gharai denied all the evidence put to them and added that they have been falsely implicated in the present case. Both accused persons opted to lead Defence Evidence and examined Ms. Azida Khatoon/accused as DW1 on 26.02.2020.
15. DW1 Ms. Azida Khatoon deposed that she was married to Mr. Mehtab on 05.02.2012 and her name Azida Khatoon and she never known by the name Seema and has been falsely implicated in the present case. During her crossexamination by Ld. APP for the State, she stated that she was about 30 years of age and around 1516 years ago she came to Delhi as her mother was living in Delhi. She added that she stayed in Delhi for 1½ months and returned to Kolkata with her mother. She added that her marriage took place in 2012 and denied that she had been working in the house of complainant Vileena Kukreja in different name Pinki @ Seema. She denied that on 04.11.2012 she had committed theft.
16. Thereafter, the matter was fixed for final arguments.
17. It was argued on behalf of Ld. APP for State that there was sufficient evidence on record to prima facie establish the guilt of all the accused persons.
18. Per contra, it has been argued on behalf of Ld. Counsel for accused persons that there were material contradiction in the deposition of the witnesses and even the ownership of the alleged stolen articles was not proved during trial and that the accused persons had been falsely implicated.
FIR No. 231/10
PS : C.R. Park
State Vs. Dulal Dass etc. Page no. 15
19. Arguments heard. Record perused and considered.
20. Perusal of the record shows that accused Manik Gharai has been charged for the offence punishable under Section 411 IPC. It has been held in the judgment of Rajinder Kumar Vs. State (Delhi Administration) (1983) CrLJ 3695 (P&H) that it is the duty of the prosecution, in order to bring home the guilt of the person under Section 411 of India Penal Code, 1860 to prove
(i) that the stolen property was in possession of the accused (ii) that some person, other that the accused, had the possession of the property was before the accused got possession of it and (iii) that the accused had knowledge that the property was a stolen property. If none of these elements have been proved, the accused cannot be convicted of an offence under Section 411 IPC.
21. The prosecution version in the present case is that two gold bangles were recovered from the third floor of his house at H. No. 248, Gali No. 1, Tuglakabad Extension on 24.05.2011. Apart from the aforesaid, it has been also stated in the chargesheet that accused Manik Gharai had mortgaged a Gold embedded diamond necklace set from the alleged stolen articles to Gold Smith Jeweller at Lajpat Nagar for Rs. 1,75,000/ and even a mortgaged agreement on a piece of paper was Ex.PW3/B was executed between the parties. It is pertinent to mention at this stage that the alleged two gold bangles were recovered also from accused Manik Gharai after almost six months from the date of the alleged theft. As per the chargesheet, a secret information was received and accused Dulal Das (PO) was arrested and on his disclosure statement, a notice was issued to accused Manik Gharai, who appeared before the office of Crime Branch and was interrogated and on his FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 16 disclosure statement the aforesaid alleged stolen articles were recovered from both his residence as well as the shop at Lajpat Nagar, Delhi. From the house of accused Manik Gharai, two gold bangles were recovered and from the shop of Gold Smith Jeweller, Lajpat Nagar, one Gold embedded diamond set was recovered and it is pertinent to mention that both these articles were duly identified by the complainant in TIP proceedings before Ld. Magistrate vide proceedings Ex.P1. Merely taking the plea at the time of final arguments that the complainant was shown the jewellery prior to the TIP proceedings at the police station does not support the defence of the accused as both the accused persons namely Manik Gharai as well as Azida @ Seema admitted the TIP proceedings Ex.P1 under Section 294 Cr.P.C during trial. It further requires mentioning that the accused persons have not disputed the ownership of the alleged stolen articles recovered from accused Manik Gharai to be that of the complainant Ms. Vileena Kukreja. In fact, the only question was put to the complainant during her crossexamination as PW1 was that whether she had provided the receipts of the alleged stolen jewellery to the IO during investigation. Furthermore, even the complainant has identified the impugned stolen articles as her jewellery during trial and this fact has also not been disputed at any time during trial. The case property was duly produced before the court during trial and has been identified by the complainant as well as the concerned officials who were present at the time of recovery of stolen jewellery from the possession of accused Manik Gharai. The accused Manik Gharai has also not able to explain how he came into possession of the alleged stolen articles belonging to complainant Ms. Vileena Kukreja in his defence. In the present case the recovery of the stolen articles is not in dispute and they were duly identified by the complainant in TIP proceedings.
FIR No. 231/10
PS : C.R. Park
State Vs. Dulal Dass etc. Page no. 17
22. Further, the prosecution has also examined PW3 Sudhir Mehra in support of its case who has proved the mortgage/pawn agreement Ex.PW 3/B, which was executed between him and accused Manik Gharai on 06.03.2011, wherein the gold embedded diamond necklace was mortgaged for Rs. 1,75,000/ at the interest of 3% per month and was stated by accused Manik Gharai to be belonging to some known person of accused Manik Gharai to Sh. Sudhir Mehra at the time of mortgage. In fact PW3 Sudhir Mehra was never crossexamined by accused Manik Gharai despite being given opportunity. Who was the known person to whom the gold embedded diamond necklace belonged was never explained during trial by accused Manik Gharai nor did he lead any evidence to show that he did not know that same was a stolen property. Further, no evidence has been produced by accused Manik Gharai to show that he did not have knowledge that the alleged jewellery articles were stolen. No defence has been lead by accused Manik Gharai in the present case.
23. In the present case the prosecution has been able to prove the guilt of accused Manik Gharai under Section 411 IPC beyond reasonable doubts as discussed above. Accordingly, accused Manik Gharai is convicted for the offence punishable under Section 411 IPC.
24. Qua accused Azida @ Seema, it is pertinent to mention that prosecution did not examine any witness to prove the charges under Section 174 A IPC during trial. Accused Azida @ Seema was arrested during trial after being arrested under Section 41(d) Cr.P.C, and no additional list of witnesses was filed on behalf of IO qua accused Azida @ Seema to prove the charges under Section 174 A IPC, which were framed against accused FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 18 Azida @ Seema vide order dated 09.01.2019. Accordingly, accused Azida @ Seema is hereby acquitted for offence under Section 174 A IPC.
25. Accused Azida @ Seema was also charged for the offence punishable under Section 381 IPC for theft in the house of complainant Vileena Kukreja of jewellery which included one gold embedded diamond set, 6 gold bangles, Rs. 8000/ and 150 British Pounds on 04.11.2010. The complainant PW1 Ms.Vileena Kukreja was stated during her deposition that she had employed accused Azida @ Seema for one day only. She had further stated during her deposition that Azida @ Seema had informed her that she was sent by the Dhoban who was working in the colony to her house and she had kept her for employment without any verification and any details. However, PW1 in her deposition has stated that she had locked her room while leaving her house at the date of incident and had handed over the keys to her old maid Saloni as she had gone out in the afternoon with her kids for a Diwali party and that when she returned, she had found the room and the cupboard open and her articles were missing from the cupboard. The complainant has also stated in her testimony that she was informed by her old maid that Azida @ Seema had gone to the terrace for a bath and had not returned from the last two hours and was thereafter missing. However, during the entire trial Saloni was not examined as was the person to whom admittedly the keys of the room were handed over by the complainant herself and neither Saloni was made a witness nor arrayed as an accused in the present case. Furthermore, the maid of the first floor who had alleged told about the whereabouts of accused Azida @ Seema has also not been made as a witness in the present case and neither has the Dhoban, who is stated to be a person who had sent Azida @ Seema to the house of complainant Ms. Vileena Kukreja arrayed as FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 19 a witness as per the chargesheet. These persons were important and crucial to establish the chain of events and the linkage between the accused Azida @ Seema and the complainant and no evidence has been brought forth qua accused Azida @ Seema as the material witness have not been examine during trial in the present case. There is no eye witness in the present case, who could establish that it was accused Azida @ Seema who had committed the theft in the house of the complainant. Even the arrest of accused Azida @ Seema has not been proved and nothing has come on record to establish how and when she was arrested and neither her arrest memo nor her personal search memo have been proved during trial. The only person stated to be present along with her was Saloni, the old maid of complainant Vileena Kukreja but as discussed earlier, she has not been examined nor her role in the present case has been brought forth by the IO despite the fact that the complainant has stated during her deposition that Saloni was examined by the IO in her presence during the investigation of the present case. Nothing has also been recovered from accused Azida @ Seema during investigation. It is further pertinent to mention that though accused Azida @ Seema examined herself as DW1 but no written application under Section 315 Cr.P.C was moved on behalf of the accused, accordingly, her deposition under Section 315 Cr.P.C cannot be read in evidence. Even otherwise the deposition of accused as DW1 does not support her defence or the defence of accused Manik Gharai in any manner.
26. In the present case there is no eye witness who had seen Azida @ Seema committing the offence of theft, either by breaking the door of the room, the door of the cupboard, how the jewellery was carried away and where it was kept etc. All these questions which are important and material to FIR No. 231/10 PS : C.R. Park State Vs. Dulal Dass etc. Page no. 20 establish the chain of events have remained unanswered by the concerned police officials and the chargesheet is silent to his effect. There is also no recovery from accused Azida @ Seema. No conclusive and corroborative evidence has been produced during trial to establish the allegations of theft in the house of complainant by accused Azida @ Seema being the servant of the complainant.
27. In view of the aforeasiad facts, in the considered opinion of this court, the investigation was not done in a proper manner and even the material persons were not examined or cited as witness in the present case to prove that accused Azida @ Seema had committed the offence of theft punishable under Section 381 IPC. Accused, Azida @ Seema is entitled to benefit of doubt.
28. Accordingly, in view of the aforesaid facts and discussions, the charge of Section 381 IPC as framed against accused has not been proved beyond reasonable doubts qua accused Azida @ Seema. Therefore, accused Azida @ Seema is held "not guilty" and is accordingly acquitted of all the offences.
Announced in the open Court
Today on 12.05.2020
(Gurmohina Kaur)
Digitally signed CMM/SE/District Court, Saket
by GURMOHINA New Delhi/12.05.2020
GURMOHINA KAUR
KAUR Date: 2020.05.12
17:06:28 +0530
FIR No. 231/10
PS : C.R. Park
State Vs. Dulal Dass etc. Page no. 21