Delhi District Court
State vs . Jaswant Singh on 3 October, 2013
State vs. Jaswant Singh
IN THE COURT OF SH ANUJ AGARWAL: MM01(SE)/
SAKET COURT: DELHI
State vs. Jaswant Singh
FIR NO. : 325/01
U/S : 457/380/511/34 IPC
PS : Badarpur
JUDGMENT
a) Sl. No. of the case : 3565/2
b) Date of institution of the case : 29.06.01
c) Date of commission of offence : 16.06.01
d) Name of the complainant : SI Vijay Kumar
e) Name & address of the 1. Jaswant Singh S/o Durg Singh accused persons R/O Village - Dhoklawas, PS Surir, Distt. Mathura, U.P.
2. Salim Khan S/o Sube Khan R/o Village - Paroli, PS - Salem pur, Distt. Bullandsher, U.P.
3. Virender S/o Ram Chander R/o Village - Aterna, PS - Pahasu, Distt. Bullandsher, U.P.
4. Surender S/o Than Singh R/o Village - Aterna, PS - Pahasu, Distt. Bullandsher, U.P. FIR No. 325/01 PS Badarpur 1 of 9 State vs. Jaswant Singh
5. Hem Raj S/o Mahender R/o Village - Aterna, PS - Pahasu, Distt. Bullandsher, U.P.
f) Offence complained off : 457/380/511/34 IPC
g) Plea of the accused persons : Pleaded not guilty.
h) Arguments heard on : 03.10.13
i) Final order : Acquitted
j) Date of Judgment : 03.10.13
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, the case of prosecution is that the on
17.06.2001, four police officials of PS Badarpur were on patrolling duty in the night time and at around 2.50 AM, they found accused persons (namely Jaswant Singh, Salim Khan, Virender, Surender Singh and Hem Raj) attempting to break lock of shutter of Shika Cosmetics & General Store at B4 Ismilepur road, within the jurisdiction of PS Badarpur. The accused were alleged to have been apprehended at the spot.
2. FIR was registered U/sec. 457/380/511/34 IPC and matter was entrusted to IO/SI K.P. Malik for investigation. Upon completion of investigation, charge sheet was filed on behalf of the IO and the FIR No. 325/01 PS Badarpur 2 of 9 State vs. Jaswant Singh accused persons were consequently summoned. A formal charge U/s 457/34 and 380/511/34 IPC was framed against the accused persons by my Ld. Predecessor to which they pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, four witness have been examined on behalf of the prosecution. The relevant and material extract of their testimony is as under:
4. PW1 is SI Vijay Kumar who deposed as under : On the intervening night of 16/1762001 I was posted as SI PS Badar Pur and during night patrolling on that day HC Karam Chand, Ct. Ravinder, Ct. Pappu Singh and Ct. Ranvir joined me at Jaitpur chowk. At about 2.50 AM while we were on patrolling and were in the area of Ismilepur road, Jaitpur found five accused persons attempting to break lock of shutter of Shikha Cosmetic General Store, all were apprehended. I prepared rukka Ex.PW 1/A and got registered case FIR No. 325/01 through Ct. Ranvir. The names of accused persons revealed as Jaswant, Salim Khan, Surender, Virender and Hem Raj. A Deshi Katta was recovered from the possession of accused Jaswant from left dubh. Sketch of Katta was prepared which is Ex.PW 2/A. It was sealed in pullanda with the seal of V.K. Seizure memo is Ex.PW 2/B. I prepared the rukka and got registered case FIR NO. 326/01 through Ct. Pappu. My rukka is Ex.PW1/B in that case. Further investigation of both the case was assigned to different IOs namely SI K.P Singh and another IO. Site Plan is Ex.PW 1/C. One iron plas was recovered from the possession of accused Salim vide seizure memo Ex.PW 1/D. One screw driver and torch was recovered from accused Hem Ram vide memo Ex.PW 1/E and one Summi with pin edge was seized from accused Surender vide memo Ex.PW 1/F. Their disclosure statement Ex.PW 1/G. One illegal knife was recovered from the possession of accused Virender for which a separate case was registered. I identify all the accused persons present in the case".
During crossexamination by Ld. defence counsel he deposed FIR No. 325/01 PS Badarpur 3 of 9 State vs. Jaswant Singh he cannot say as to whether any attempt was made by the IO to serve the notice to owner of Shikha Cosmetic and General Store. He denied the suggestion that accused persons were falsely implicated.
5. PW2 HC Harinder Kumar is is the duty officer who recorded the formal FIR. He proved copy of FIR as Ex.PW 2/A and his endorsement on rukka as Ex.PW2/B.
6. PW3 is HC Karan Chand who deposed as under : "On 16/17.06.01 in night I alongwith SI Vijay Kumar, Ct. Pappu Rathi, Ct. Ranbir and Ct. Ravinder were on patrolling duty. We reached at Ismilepur road Jaitpur we saw that 5 accused persons were breaking the lock of Shikha Cosmetic General Store. We apprehended them thereafter, we searched 5 accused persons. A knife was found in the possession of accused Virender, one Katta was found in the possession of Jaswant and one rod was found in possession of some other accused person whose name I forget. One petchcuse (screw driver) was found in the possession of accused Saleem Khan. A torch and plass was found in the possession of accused Hem Raj. Thereafter, rukka was sent to IO/SI Vijay Kumar to register the FIR through Ct. Ranvir at PS. Again said Ct. Pappu Rathi. The accused persons are present in the court today".
7. PW4 is Insp. K.P. Malik is the IO who deposed as under : "On 17.06.01 I was posted at SI in PS Badarpur. On that day at about 4.45 AM I received a copy of FIR alongwith original rukka and thereafter went to spot i.e. chemist & cosmetic shop, Ismilepur road, alongwith Ct. Ranbir Singh who had handed over the rukka and copy of FIR to me. At the spot I met with SI Vijay Kumar and other police officials who had handed over me five accused persons and the recovered items i.e. one iron rod, one plier, one screw driver and one small torch. I prepared the site plan already Ex.PW1/C at instance of SI Vijay Kumar. Thereafter I seized all three articles vide seizure memo already Ex.PW1/D, E and F. Thereafter I formally arrested all the five accused and conducted personal search vide memos Ex.PW4/A to Ex.PW4/J bearing my FIR No. 325/01 PS Badarpur 4 of 9 State vs. Jaswant Singh signatures at pointX respectively. All the accused persons are present in the court today (witness correctly identifies the accused persons)".
8. PE was closed by order of this court on 13.09.13.
Memorandum of statement of accused persons U/sec. 313 Cr.P.C r/w sec. 281 Cr.PC was recorded wherein they refuted the allegations levelled against them in toto and submitted that they have been falsely implicated. Accused persons chose not to lead any defence evidence in their favour.
9. I have heard the arguments as advanced by the Ld. APP for the State and perused the record.
10. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
11. In the present case, the accused has been charged for committing house breaking by night and attempt to commit theft in Shikha Cosmetics and General Store. However, as per the testimony of eye witnesses i.e. PW1 SI Vijay Kumar and PW3 HC Karan Chand, FIR No. 325/01 PS Badarpur 5 of 9 State vs. Jaswant Singh the accused were caught while attempting to break the locks of Shikha Cosmetic and General Store. Therefore, even if whole case of prosecution is taken as gospel truth, then also, only a case for attempting to commit house breaking by night is made out against accused and there is nothing on record to suggest even remotely that accused had attempted to commit theft from the said store. Therefore, all the accused stand acquitted of offence U/sec. 380/511/34 IPC.
12. The accused persons though have been charged for committing house breaking by night punishable U/sec. 457 IPC r/w sec. 34 IPC, however, as discussed above, even as per the version of prosecution, the accused persons were caught while they were attempting to break lock of shutter of the Shikha Cosmetic and General Store. Therefore the charges against accused make a case of attempt to commit house breaking by night punishable U/sec.457 /511 IPC. However it is evident from record that the person who was in possession of said Shikha Cosmetic and General Store was not joined by police in the investigation. The offence of committing house breaking by night (or its attempt) is an extended form of offence of criminal trespass which is essentially an offence against possession.
FIR No. 325/01 PS Badarpur 6 of 9
State vs. Jaswant Singh
Therefore the person who is in possession of the premises, which are alleged to have been trespassed, is a material witness and non joining of the same in the investigation is a serious lacuna on the part of prosecution. Regretfully the whole case of prosecution is completely silent qua the person who was in possession of the premises in question i.e. Shikha Cosmetics and General Store and reason for non joining of former in the investigation has not been explained by prosecution.
13. Be that as it may, chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal FIR No. 325/01 PS Badarpur 7 of 9 State vs. Jaswant Singh Vs. State 1987 (2) Crimes 29.
14. Therefore, considering the above mentioned lacuna in the prosecution case coupled with the fact that the person who was in possession of the premises alleged to be broken by accused was never joined in the investigation by the police makes the case of prosecution doubtful thereby making the defence of accused (of false implication) probable.
15. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, Apex court observed (Para12):
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
16. The evidence brought in present case is not of unimpeachable quality so as to result in conviction of accused person. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
FIR No. 325/01 PS Badarpur 8 of 9
State vs. Jaswant Singh
17. As a cumulative effect of all the points discussed above, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, the accused persons Jaswant Singh, Salim Khan, Virender, Surender Singh and Hem Raj are hereby acquitted of offence U/sec. 457/380/511/34 IPC. Ordered accordingly.
Announced in the open court (Anuj Agarwal) on 03.10.13 M01(SE)/Delhi /03.10.13 FIR No. 325/01 PS Badarpur 9 of 9