Delhi District Court
State vs . Raju Etc on 25 October, 2018
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 698/06
PS : Kalyanpuri
u/s : 380/411/34 IPC
STATE Vs. RAJU ETC
JUDGMENT
A Unique ID No. of the New No. 11348/16 case Name of the complainant Ashok Nagar s/o Late Sh. Charan Singh
C Name of the accused & (1) Raju S/o Sh. Mangat Ram R/o H. his parentage and No. 360/2, Village Gazipur, Delhi. address (2) Raj Kumar S/o Sh. Jitender Prasad R/o Gali No. 3, village Gazipur, Delhi.
(since PO) (3) Jitender @ Jeetu S/o Sh. Dheer Singh R/o Akbarpur, Bachhrampur Gaziabad, UP. Permanent resident :
Gawdi, PS Mawana, Distt. Meerut, UP.
(since deceased) And (4) Raju @ Gaurav S/o Sh. Mehram Singh R/o H. No. 131, Gopal Gali, Vill.
Gazipur, Delhi.
D Offence Complained of 380/411/34 IPC E Date of commission of 01.12.2006 offence. F Date of Institution 16.05.2007 G Offence Charged 380/411/34 IPC State Vs. RAJU ETC FIR No. 698/06 PS Kalyanpuri No.1/7 H Plea of the accused Pleded not guilty I Order Reserved on 23.10.2018 J Date of Pronouncement 25.10.2018 K Final Order Accused Raju S/o Mangat Ram and Raju @ Gaurav are acquitted for offence under U/s 411 IPC.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The story of the prosecution is that on 01.12.2006 at unknown time at H. No. 34, Gazipur Village, within the jurisdiction of PS Kalyanpuri, a theft was commited of one brown purse containing Rs. 300/ and I card of Anuk Kumar of Kirorimal College and three passport size photographs and other items belonging to complainant Ashok Nagar. 2 On the same day, accused Raj Kumar (since PO) was apprehended near Gazipur petrol pump and from his possession, brown coloured purse containing Rs. 3000/, Icard of Anuj Kumar and three passport size photographs were recovered from his possession. 3 Thereafter, on 31.01.2007, from accused Jitender @ Jeetu (since deceased) near bucharkhana Gazipur near Khatta, two gas cylinder of Indane make being stolen property were recovered. 4 On 22.02.2007, from accused Raju @ Gaurav at Sabzi Mandi Road, between Maruti Competent and DSIDC complex open plot near bushes, one drum being stolen property and belonging to complainant Ashok Nagar was recovered.
State Vs. RAJU ETC FIR No. 698/06 PS Kalyanpuri No.2/7 5 On 22.04.2007, from accused Raju S/o Mangat Ram, one gas cylinder make Indane being stolen property belonging to Ashok Nagar was recovered. Thereby accused persons are alleged to have committed offence u/s 380/41/34 IPC FIR 6 On the basis of the complaint of complainant Ashok Nagar present FIR Ex. PW2/A was lodged on 01.12.2006.
CHARGE 7 After investigation, chargesheet under section 173 Cr. P.C was filed on 16.05.2007.
8 On the basis of the chargesheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable under section 380/34 IPC and Section 411 IPC was framed against the accused Raj Kumar while separate charges u/s 411 IPC were framed against accused Jitender, Raju @ Gaurav and Raju S/o Mangat Ram and read out to them, to which they pleaded not guilty and claimed trial on 04.06.2017.
9 During trial accused Raj Kumar was declared proclaimed offender vide order dated 28.03.2014.
10 In the meanwhile, accused Jitender @ Jeetu expired and proceedings qua him were abated vide order dated 07.07.2015. PROSECUTION EVIDENCE 11 To bring home the guilt against the accused prosecution has examined 6 witnesses in all:
12 PW1 is the complainant Ashok Nagar who deposed on 01.12.2006 at about 5:30 pm, he woke up and found that some articles including his State Vs. RAJU ETC FIR No. 698/06 PS Kalyanpuri No.3/7 7 cylinders out of which two were commerical and five domestic, milk drum used to boiling, a mobile phone, Icard of his son Anuj and Rs. 300/ were found missing. He made search of the nearby area. On the same day, he went to Gazipur Petrol Pump where he saw accused Raj Kumar (since PO) carrying a cycle rickshaw and on seeing him he became afraid. He apprehended him and searched him and found the Icard of his son and Rs. 300/ from his possession. He called the police at 100 number. Accused was taken to the police station where he disclosed the name of his coaccused persons. Investigation was carried out and at the instance of the accused Raj Kumar (since PO), two cylinders were recovered. He identified his signatures on the arrest and personal search memo of accused Raj Kumar (since PO) and his disclousre statement which is Ex. PW1/D1 to D3. He also stated that site plan was preapred at his instance and the articles recovered from accused Raj Kumar (since PO) were seized vide memo Ex. PW1/D4. He produced the ICard of his son and the purse which is Ex. P5 and P6 and also produced two gas cylinder and one drum which are Ex. P1 to P3.
13 The examination of this witness is incomplete as he was never subjected to crossexamination. He was repeatedly summoned for his crossexamination but he did not appear for the same. Summons were also sent at the address given by him during examinationin chief but the report was recived that he was not residing at the said address.
14 PW2 HC Shiv Murti is a formal witness being Duty Officer who proved the registration of the FIR as Ex. PW2/A. 15 PW3 Ct. Rakesh Kumar is a formal witness being the witness to the State Vs. RAJU ETC FIR No. 698/06 PS Kalyanpuri No.4/7 arrest of accused Jitender (since decesed).
16 PW4 ASI Mohd. Khalid deposed that on 22.02.2007, he had joined the investigation. On that day, accused Raju @ Gaurav S/o Mehram Singh had given his disclosure statement Ex. PW4/A pursuant to which the pointing out memo of the place of occurrence Ex. PW4/B was prepared and at his instance from Sabzi Mandi Road near Maruti Competent Show Room from an empty plot behind the bushes one drum was recovered which was seized vide memo Ex. PW4/C. He identified the accused Raju S/o Mangat Ram.
17 PW5 Ct. Rajesh deposed that on 21.02.2007 accused Raju @ Gaurav S/o Mehram Singh had surrended in the court and he was arrested and personally searched vide memo Ex. PW5/A and PW5/B. Thereafter, IO took his one day PC remand. His deposition regarding the recovery effected at his instance on 22.02.2007 is in consonance with that of PW4.
STATEMENT OF ACCUSED 18 Statement of accused Raju S/o Mangat Ram and Raju @ Gaurav were recorded u/s. 313 Cr.P.C. on 08.10.2018 wherein the entire incriminating evidence proved on record against them was put to them. They stated that they have been falsely implicated in the present case and no recovery was effected from them. DEFENCE EVIDENCE 19 The accused did not examine any witness in their defence. 20 Final arguments have been heard and record carefully perused. JUDICIAL RESOLUTION 21 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The State Vs. RAJU ETC FIR No. 698/06 PS Kalyanpuri No.5/7 case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal. 22 In the present case, the factum of theft in itself has not been duly proved on record as the complainant/PW1 has not been completely examined. He was never subjected to cross-examination and accordingly, his incomplete testimony cannot be read to the detriment of the accused persons.
23 Moreover, no witness has been examined to prove any recovery from accused Raju S/o Mangat Ram. Although, three witness i.e. PW4, 5 and 6 have deposed about the recovery of milk drum at the instance of accused Raju @ Gaurav. However, in the absence of complete testimony of the complainant who would have identified the said milk drum as his stolen property, it is very difficult to convict him for offence u/s 411 IPC as charged against him. Moreover, the recovery was never effected in the presence of complainant nor any TIP of the recovereed case property was conducted by the IO.
Accordingly, there is nothing on record to connect the allegedly recovered case property with the present case. 24 In these circumstances I have no hesitation in holding that the prosecution has miserably failed to prove the offfence u/s 411 IPC as charged against accused Raju S/o Mangat Ram and Raju @ Gaurav. The evidence brought on record is highly insufficient for convicting the said accused persons for the offence charged. 25 In view of the above discussion and evidence on record accused Raju S/o Mangat Ram and Raju @ Gaurav are acquitted for offence State Vs. RAJU ETC FIR No. 698/06 PS Kalyanpuri No.6/7 under U/s 411 IPC as charged against them. 26 Since accused Raj Kumar is a PO, file be consigned to record room u/s 299 Cr.P.C.
Digitally signed by SHIVALI ANNOUNCED IN THE OPEN COURT SHIVALI SHARMA ON 25.10.2018 SHARMA Date: 2018.10.25 17:03:59 +0530 (SHIVALI SHARMA) CMM (EAST)/KKD/ 25.10.2018
Certified that this judgement contains 7 pages and each page bears my signature.
(SHIVALI SHARMA) CMM (EAST)/KKD/25.10.2018 State Vs. RAJU ETC FIR No. 698/06 PS Kalyanpuri No.7/7