Delhi District Court
State vs Dalip on 11 November, 2024
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts,
Delhi
State Vs. Dalip
FIR No. 157/18
U/sec.380/427/511 IPC
PS: Karawal Nagar
Date of institution of the case:25.07.2018
Date for final arguments:11.11.2024
Date on which judgment is delivered: 11.11.2024
CNR No. DLNE02-002552-2018
JUDGMENT
a) Sr. No. of the case : 1989/2018
b) Date of commission of the offence : 07.04.2018
c) Name of the complainant : Shiv Kumar
d) Name of the accused and his parentage : Dalip S/o Late SH. Vijay R/o B-
272, Gali No. 2 Ram Market,
Chatru Ka Gher, Karawal Nagar,
Delhi
e) Offence complained of : Section 380/427/511 IPC
f) Offence charged of : Section 380/427/511 IPC
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date of such order : 11.11.2024
Brief facts of the case
1. Succinctly stated the facts discernible from the present complaint are that the complainant namely ASI Shiv Kumar was on duty on 7.04.2018. His duty hours were Digitally signed by ISRA ISRA ZAIDI Date:
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from 8 PM to 8 AM. At about 1:10 AM when he was patrolling at new Chauhanpur main Road, Bhajanpura, Karawal Nagar area, near a liquor shop, he saw one person who held a screwdriver and wire cutter in his hand. He was opening the ATM machine of axis Bank ATM. ASI Shiv Kumar grabbed that person inside the ATM. He disclosed his name as Dilip (here in after referred to as the accused). ASI Shiv Kumar has further stated in the complaint that the crime team was called and the photographs of the spot were clicked. The screwdriver and wire cutter were seized. Thereafter, the present FIR was registered against the accused under section 380/427/511 IPC,1860.
Court Proceedings
2. After completion of the investigation, charge-sheet under sections 380/427/511 IPC was filed before the court against the accused. The then Learned Magistrate took cognizance on 25.07.2018 and the accused was summoned to face the trial. On his appearance in the Court, copies of documents, relied upon by the prosecution were supplied to him as per norms. Thereafter, vide order dated 23.03.2022 charges under sections 380/427/511 IPC were framed by the then Learned CMM against accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE.
Prosecution Evidence
3. In order to prove and substantiate its case, the prosecution has examined six witnesses.
Prosecution Witnesses S. No. Designation and Role in the present case name of witnesses
1. PW1 Retd. ASI Shiv Kumar
2. PW2 HC Boby Singh
3. PW3 ASI Kewal Singh Digitally
4. PW4 HC Shyambir Singh signed by ISRA ISRA ZAIDI Date:
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Documents relied upon by the prosecution
S. No. Exhibit/Mark Nature of documents
1. Ex. PW1/A Statement
2. Ex. PW1/B Seizure memo
3. Ex. PW1/C and Arrest and personally searched
Ex. PW1/D memos
4. Ex. PW1/E Disclosure
5. Ex. 1/F Case property
6. Ex. PW2/A Site plan
Statement of the Accused u/s 313 Cr.P.C
4. The accused stated that he is innocent and have been falsely implicated in the present case.
Evidence of the Defence
5. No defence evidence was led by the accused despite granting him an opportunity.
Final Arguments
6. The court heard final arguments on behalf of the both the parties today. Ld. Counsel for the accused submitted that the case against the accused is false and frivolous and has prayed that accused be acquitted of the offence charged. He pointed out various discrepancies in the version of the prosecution witness. Learned APP for the state submitted that accused be convicted of the offence under the above- mentioned sections as there is sufficient evidence on record to convict the accused. I have heard the submissions of Ld. APP for the State and Ld. Counsel for the accused. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record. Digitally signed ISRA by ISRA ZAIDI Date:
2024.11.11 ZAIDI 15:44:01 FIR No.157/18 Page No. 3/12 State Vs. Dalip +0530 Brief reasons for the just decision of the case:
7. In order to bring home the guilt of the accused persons, prosecution had to prove the following ingredients of the said Section 380/511/427 IPC against accused.
a) Section 380 IPC: - Theft in dwelling house, etc. Whoever commits theft in any building, tent or vessel, which building, tent orvessel 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.
b) Section 511 IPC: - Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.
Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
c) Section 427 IPC: - Mischief causing damage to the amount of fifty rupees Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both.
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.
Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating evidence of the witnesses. The Hon'ble Delhi High Digitally signed ISRA by ISRA ZAIDI Date: 2024.11.11 FIR No.157/18 Page No. 4/12 ZAIDI State Vs. Dalip 15:44:05 +0530 Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
8. As far as the identity of the accused is concerned the same is not disputed. All the prosecution witnesses have correctly identified the accused persons. The identity of the accused persons stands established.
9. PW1 deposed in his examination in chief that on 74 2018 at about 1:10 AM when he was on patrolling duty in Karawal Nagar area in front of Sadarpur wine shop, where axis Bank ATM was located, he saw that one person went inside the ATM with a screwdriver and wire cutter. He went inside and grabbed him. Thereafter Digitally signed ISRA by ISRA ZAIDI Date:
2024.11.11 ZAIDI 15:44:11 FIR No.157/18 Page No. 5/12 State Vs. Dalip +0530 the he informed at the PS and a constable came on the spot. He called the crime team and his statement was recorded. The case property was seized and the accused was arrested, the four photographs were shown to the witness, which were identified by him marked as A(Colly). He correctly identified the case property that is a yellow colour screwdriver and wire cutter. He testified in his cross examination that when he apprehended the accused inside the ATM, he was alone. There was no security guard in the ATM or nearby shops were also closed at that time. He further testified that he did not know whether the CCTV cameras were installed near the ATM. He did not know if any public persons were present on the spot. He also admitted that the place of incident is the main road and that is busy. He further testified that he did not know whether accused was plumber or not. He did not take into custody, the ATM machine, he denied to the other suggestions put to him by the defence counsel.
10. PW2 is head constable Bobby who was posted at Karawal Nagar on 7.4.2018. He deposed in his examination in chief that why did Number 3B received a call at around 1:20 PM he along with head constable cable sign went to the place of incident that is a team of axis bank at new Chauhan, Bhajanpura, Karawal Nagar at the spot, he met ASI Shiv Kumar, who had to court the accused in the matter. Thereafter the photographs of the crime scene were taken and was registered against the accused person. He testified in his cross examination that ATM is situated at the main market place. He for the testified that when he reached to the place of incident, there was no guard standing in the ATM. CCTV camera was installed in the ATM. He further testified in his cross examination that ATM machine was at its place. However, some portion was protruding outside as it was in a broken condition. He also admitted that the front portion was open, but no money was taken out from it. This Court fails to understand as to why the ATM Machine was not seized by the IO.
11. PW3 ASI Keval Singh deposed in his examination in chief that he received DD number 3 regarding the ATM thereafter, he along with constable, Bobby went to the Digitally signed ISRA by ISRA ZAIDI Date:
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place of incident and met ASI Shiv Kumar, who had caught and controlled the accused in the present matter. Thereafter, the crime team was called, which took photographs of the scene.
12. From the possession of accused one screwdriver and wire cutter were found, which was seized vide seizure memo Ex. PW1/B. He correctly identified the case property. He testified in his cross examination that when he reached the place of incident, he met SI Shiv Kumar produced the accused to him. There was no public witness present at the spot. No watchman was found to be at the place of incident. He also testified that CCTV camera was installed at the ATM. However, the same was switched off. He further testified that he could not tell if it was switched off by the accused.
13. He further testified that he called the ATM staff to check the CCTV footage to obtain the photograph of the said incident, but CCTV footage was not available. However, the said person from the ATM staff was not examined as a witness by the prosecution. He further testified in his cross examination that he could not tell whether he took any written documents from the staff of the ATM. He did not record the statement of the ATM staff.
14. He also admitted in his cross examination that the screw which was recovered from the possession of the accused was very small, and the nob was broken and same was not usable. The wire was also very small, which was not in a condition to be used. He also testified that ASI Shiv Kumar handed over him the accused and told that he was breaking the ATM alone. He denied other other suggestions for him by the learned defence counsel.
15. In his original complaint Ex. PW1/A complainant stated that that whenDigitally he bywas signed ISRA Date:
ISRA ZAIDI ZAIDI 2024.11.11 15:44:21 +0530 FIR No.157/18 Page No. 7/12 State Vs. Dalip patrolling at Karawal Nagar near new Chauhan, Sadarpur he saw that one person was opening axis Bank ATM machine and he grabbed the accused who disclosed his name as Dalip. But in his examination, he deposed that when he was patrolling in Karawal Nagar area, where axis bank was located, one person went inside the ATM with a screwdriver and wire cutter key he followed him and grabbed him and informed the PS. This appears to be a material inconsistency because as per the examination in chief the accused went inside the ATM with a screwdriver and wire cutter, the complainant followed him and grabbed him. If the event was so much contemporaneous in nature that accused went inside the ATM, the complainant saw him going inside the ATM and complainant grabbed him with the screwdriver and wire cutter then, assuming this version to be true and gospel truth the question as to how did the accused get so much time to open the ATM when he was grabbed by the complainant soon after the accused when inside the ATM remains unanswered. There appears to be material improvement in the testimony of PW1. In the case of Rai Sandeep @ Deepu v. State (2012)8 SCC the Hon'ble Supreme Court of India had the attributes of a sterling witness.
"The court held to test the quality of such a witness the status of a witness would be immaterial and what would be relevant would-be truthfulness of the statement made by such a witness. What would be relevant would-be consistency of the statement right from the starting point till the end, namely at the time when witness made the initial statement and ultimately before the court. It must be natural and consistent with the case of prosecution qua the accused. There must not be any prevarication in the version of such a witness. The witness should be in a position to withstand the test of cross examination of any length howsoever strenuous it may be and under no circumstance should give any room for any doubt as to the factum of occurrence, the persons involved and the sequence of it..."
Digitally signed by ISRA ISRA ZAIDI ZAIDI Date:
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16. Complainant deposed in his examination in chief that there was no security guard in the ATM or nearby shop were closed at that time. He did not know if any cameras were installed near the ATM. PW2 testified that his TV cameras were installed in the ATM. PW3 testified that he called the crime team spot, and the photographs of the scene were clicked but neither the original photographs, nor the negatives were placed on record, by the prosecution as a part of charge sheet. The photographs which are relied by the prosecution are merely photocopies . At the stage it is relevant to mention section.61, 62 and 63 of the Indian Evidence Act Section 61 Proof of contents of documents- The contents of documents may be proved either by primary or by secondary evidence. Section 62. Primary evidence- primary evidence mans the document itself produced for the inspection of the court.
Section 63. Secondary evidence.- Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from a compared with original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen.
17. The photocopies are not admissible evidence. Neither the photographs were placed on record, nor they were original seen and returned by the court.
18. PW3, also testified in his cross examination that CCTV camera was installed in the ATM, but they were switched off. The same has not been deposed by PW2 that they were switched off. In his cross examination, PW3 testified that he called the Digitally signed ISRA by ISRA ZAIDI Date: ZAIDI 2024.11.11 15:44:35 +0530 FIR No.157/18 Page No. 9/12 State Vs. Dalip ATM staff to check the CCTV camera to obtain the photograph of the incident, but there was no footage in the camera. The staff was not examined as a witness by the prosecution. As per the other witnesses examined by the prosecution, no witness was present on the spot, but as per the IO, he called the staff to check the CCTV camera. There appear to be the inter se inconsistencies between the version of the prostitution witnesses. From the perusal of the testimonies of PW1, PW2 and PW3, it appears that they had not deposed in line with each other. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to the case of "Joseph v. State of Kerala (2003) 1 SCC".
19. ATM staff, which examined camera for CCTV footage was not examined by prosecution. CCTV footage was clinching evidence in the present case but not produced by the prosecution. In this case without CCTV footage the complicity of the accused in the crime could not have been ascertained.
20. As per the version of PW 1 in his examination in chief, he went inside the ATM, the accused held a screwdriver and wire cutter. He followed the accused and grabbed him and informed PS. PW3 testified in his cross examination that screw driver was broken and was not usable condition, and the wire cutter was also small and was in usable condition, and at the same time he testified that some part of ATM was separated from the machine by the accused. This court fails to understand if the screwdriver and wire cutter was not in a usable condition then how he separated the part of the machine as per the version of prosecution.
21. There appears to be a material improvement in the testimony of PW3. It is also very unusual that the guard of the ATM was not present on the Axis Bank ATM and no efforts were made by the investigating officer to check on the guard , whose duty Digitally signed by ISRA ISRA ZAIDI Date:
ZAIDI 2024.11.11 15:44:40 +0530 FIR No.157/18 Page No. 10/12 State Vs. Dalip was there in that night at the ATM. In case of Pradeep Narayan State of Maharashtra AIR 1995 SC 1930 held that failure of police to join witness from locality during search creates doubt about fairness of investigation, benefit of which has to go to the accused.
22. No plausible reason has been put forth by the prosecution to explain why CCTV footage of the incident could not be procured . The testimonies of witness PW2 and PW3 also differs on that point. PW1 testified in his cross examination that he was not aware if the CCTV cameras were installed at the ATM.PW2 testified that CCTV cameras were installed in the ATM. PW3 testified in his cross examination that CCTV cameras were installed at the ATM. However, the same were switched off. No investigation was done by the investigating officer as to how they were switched off. He also testified that he called the staff to check the CCTV camera to obtain the photographs of the incident, but there was no footage in the camera, no statement of the ATM staff was recorded by the IO as to the fact that CCTV camera was not in a working condition.
23. No cogent evidence has been put forth by the prosecution to substantiate the fact that accused was inside the ATM machine, and he opened it by using screwdriver and wire cutter. The defence which has been put forth by the accused is that he was a plumber and he sat for rest in front of the ATM. Screw driver and wire cutter are generally tools for any daily wager.
24. The clinching evidence in this case was CCTV footage of the ATM and the photographs of the incident, but they were not relied upon by the prosecution. The case of the prosecution appears to be flawed as no proper investigation has been done by the IO. There is no cogent evidence on record to indicate the complicity of accused in the crime. Also, from the photographs mark A (colly) which have been Digitally signed ISRA by ISRA ZAIDI Date: ZAIDI 2024.11.11 15:44:43 +0530 FIR No.157/18 Page No. 11/12 State Vs. Dalip relied upon by the prosecution. It is not clear that the said photographs belong to the same axis bank ATM where the alleged incident happened to have occurred.
25. It is an adage that law works on the wheels of evidence. Every criminal trial is a journey of discovery and unfolding the truth. But in the present case no sufficient evidence is there on record to warrant the conviction of the accused person. In the case of Prem Singh Yadav Vs. CBI 178 (2011) DLT 529. It was held that where it is possible to have both views one in favor of prosecution and one in favor of accused, the later one should prevail. Prosecution could not prove beyond reasonable doubt complicity of accused. In a criminal case the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts.
26. An accused enjoys the presumption of innocence. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt. A Court cannot draw an inference of guilt from mere suspicion.
27. For the reasons which I have outlined above, I am of the considered opinion that the prosecution has failed to discharge the heavy burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused.
28. Consequently, accused Dalip S/o Late Sh. Vijay of the crime charged.
29. File be consigned to record room after due compliance of Section 437A.
Cr.P.C. (Isra
ISRA Zaidi) Digitally signed by
ISRA ZAIDI
ZAIDI
JMFC-04/NE/KKD/Delhi
Date: 2024.11.11
15:44:57 +0530
11.11.2024Digitally
signed by
ISRA
This judgment contains 12 pages and each page bears my signature. ISRA ZAIDI
ZAIDI Date:
2024.11.11
15:45:02
(Isra Zaidi)+0530
JMFC-04/NE/KKD/Delhi
11.11.2024
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