Delhi District Court
State vs Kallu Etc on 25 January, 2024
CNR no. DLWT02-004778-2015
IN THE COURT OF MS. SONAM GUPTA
METROPOLITAN MAGISTRATE-07, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR no. DLCT02-004778-2015
CIS No. 66452/2016
State Vs Kallu and Others
FIR No. 111/2015
PS. Kirti Nagar
U/s. 380/411/34 IPC
JUDGMENT
1) The date of commission of offence : 12.02.2015
2) The name of the complainant : Sh. Ghanpat Gujjar, S/o Chanda Ram, R/o B-89, WHS, Kirti Nagar, New Delhi.
3) The name & parentage of accused : 1. Kallu S/o Sh. Mukim
2. Sheesh Ram S/o Sh. Bhagwati
4) Offence complained of : 380/411/34 IPC
5) The plea of accused : Pleaded not guilty.
6) Final order : Acquittal
7) The date of such order : 25.01.2024 Date of Institution : 13.04.2015 Judgment reserved on : 25.01.2024 Judgment announced on : 25.01.2024 State Vs. Kallu and others; CIS No. 66452/2016; FIR No. 111/15; PS Kirti Nagar; U/s. 457/380/411/34 IPC 1/7 CNR no. DLWT02-004778-2015 THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused persons is that on 12.02.2015 at about 03.30 AM at B-89, WHS, Kirti Nagar, Delhi, accused persons in furtherance of their common intention committed house breaking by night in order to commit theft in the premises of the complainant Sh. Ganpat Gujjar and committed theft of the properties of the complainant ie 64 pieces of wooden ply, which were loaded in a Mahindra Champion bearing no. DL-
1LL-5507 and the said stolen 64 pieces of wooden ply were found in their possession, which both of them received or retained knowingly or having reason to be believe to be the stolen property.
2) After completion of investigation, charge sheet was filed against the accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused. Arguments on point of charge were heard. Vide order dated 09.07.2016 passed by Ld Predecessor, a charge u/s. 457/380/411/34 IPC was framed upon both the accused persons, to which they pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined six witnesses i.e. PW 1 ASI Padam Singh who has proved the entry no.19 vide SI. No.2134 dated 12.02.2015 regarding the deposition of case property in the malkhana, PW 2 Sh. Ghanpat Gujjar (complainant in the present case), PW 3 HC Anil Kumar (second IO of the present case), PW4 Mohd. Imran (public witness), PW 5 Mohd. Isha (public witness) and PW 6 ASI Jeet Ram (first IO of the present case). After the conclusion of prosecution evidence, statement U/s 313 Cr.P.C of accused persons were recorded. The accused persons denied all the allegations and opted not to lead State Vs. Kallu and others; CIS No. 66452/2016; FIR No. 111/15; PS Kirti Nagar; U/s. 457/380/411/34 IPC 2/7 CNR no. DLWT02-004778-2015 defence evidence.
4) I have heard the arguments of Ld. APP for the State and Ld. LAC for accused. I have also perused the record carefully.
5) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
6) The crucial witness of the present case is the complainant Sh. Ghanpat Gujjar who was examined as PW2 by the prosecution. It is stated by the complainant in his examination in chief that on the day of incident, at about 03.30 am in the midnight, he received a call that theft had taken place at his shop. After receiving the call, the complainant had reached at the shop and he found that Champion car which was loaded with plywood. It is further stated by the complainant in his examination in chief that the accused persons were apprehended by the police officials who were responsible for this theft. The complainant failed to identify the accused persons in the court and also turned hostile.
7) A Perusal of examination-in-chief of complainant reveals that he deposed on the lines of the complaint but he failed to identify the accused persons in the court and stated that he was not present on the day of the incident at the spot. He was cross- examined by Ld. APP for the State on the aspect of identification of the accused but of no avail. During the cross-examination, a positive suggestion was given to the witness that accused persons are the person who committed theft in his shop but the same was denied by the complainant specifically. He denied the suggestion State Vs. Kallu and others; CIS No. 66452/2016; FIR No. 111/15; PS Kirti Nagar; U/s. 457/380/411/34 IPC 3/7 CNR no. DLWT02-004778-2015 that he intentionally was not identifying the accused persons or he has been won over by the accused persons.
8) Thereafter the complainant was cross-examination by Ld. Defence Counsel of accused persons in which the complainant stated that he had not given any written complaint to the police. He affirmed that he never visited the police station after the registration of the FIR. He further stated in his cross examination that he had never joined any investigation of the present case.
9) The complainant did not the support the case of the prosecution at all as far as the same relates to the identification of the accused persons. In the examination-in-chief the witness deposed that he cannot identify the accused persons. The case of prosecution suffered huge blow on the aspect of identification of the accused persons in examination of the complainant. There is no other person who could prove the identification of the accused persons being offender in the present case. The police officials who affected the arrest of the accused persons are not the eye witness and they performed procedural formalities on the complaint given by the complainant. Since the complainant has not supported his complaint at all as far as the identification of the accused persons are concerned, the testimony of police officials would be of no avail and that would be hearsay only qua the identification of the accused, as the same is dependent through the knowledge gained by them through the complainant.
10) PW 4 Mohd. Imran is the very vital witness of the present case to describe the recovery of the alleged stolen articles and it is evident from the testimony of PW4 Mohd. Imran that the recovery was effected from a public place but he was also not present at the State Vs. Kallu and others; CIS No. 66452/2016; FIR No. 111/15; PS Kirti Nagar; U/s. 457/380/411/34 IPC 4/7 CNR no. DLWT02-004778-2015 spot at the time of theft. He admitted in his examination that the place from where the recovery was effected was accessible to general public. During his examination in chief, he deposed that he cannot identify the accused persons. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws
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In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
11) The testimony of police officials who have been examined qua the arrest/personal search/disclosure of the accused persons in the present case is of no consequence a far as the aspect of identification of accused persons is concerned. The entire State Vs. Kallu and others; CIS No. 66452/2016; FIR No. 111/15; PS Kirti Nagar; U/s. 457/380/411/34 IPC 5/7 CNR no. DLWT02-004778-2015 proceedings as to the recovery was conducted in a callous manner. The alleged fact that the recovery has been effected from the accused persons is not sufficient for the conviction of the accused persons in the absence of specific identification of the accused persons by the complainant in the court. Since the complainant is not able to identify the accused persons, the identity of the accused persons being offender stands not proved and the case of the prosecution is bound to fail.
12) In view of the above-discussion following facts are proved on record-
a) The complainant failed to identify the accused persons in the court;
b) The averment of the IO that the complainant identified the accused persons at the time of incident proved to be false; and
c) The alleged recovery of the wooden ply from the possession of the accused persons is doubtful.
13) In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when State Vs. Kallu and others; CIS No. 66452/2016; FIR No. 111/15; PS Kirti Nagar; U/s. 457/380/411/34 IPC 6/7 CNR no. DLWT02-004778-2015 this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution ..........................."
14) Accordingly, in view of above discussion, prosecution is not able to discharge its burden of proof against the accused persons. Accused persons namely Kallu and Sheesh Ram is hereby acquitted from the present case. File be consigned to Record Room after due compliance subject to compliance of section 437 A Cr.PC. Digitally signed SONAM by SONAM GUPTA GUPTA 16:50:05 Date: 2024.01.25 +0530 Announced in open court (SONAM GUPTA) on 25.01.2024 Chief Metropolitan MagistrateWest THC/25.01.2024 State Vs. Kallu and others; CIS No. 66452/2016; FIR No. 111/15; PS Kirti Nagar; U/s. 457/380/411/34 IPC 7/7