Delhi District Court
State vs . Jai Prakash on 27 April, 2018
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IN THE COURT OF MS. NEETI SURI MISHRA: METROPOLITAN
MAGISTRATE02 (CENTRAL), TIS HAZARI COURTS:DELHI
State Vs. Jai Prakash
FIR No. 229/2013
U/s: 381/411/34 IPC
P.S. Timar Pur
Unique Identification No. : 297687/16
Date of Institution : 15.02.2014
Date on which case reserved for
judgment : 24.04.2018
Date of judgment : 27.04.2018
Name of the complainant : Sh. Devi Singh
Date of the commission of :
offence. 29.09.2013
Name of accused persons : (1)Jai Parkash s/o Sh. Vijay Pal
r/o 1777, Sanjay Basti, Timar Pur
Delhi.
(2)Rahul s/o Sh. Mahavir Prasad
r/o gali no. 3, Shiv Mandir,
Wazirabad, Delhi.
Offence complained of : u/s 381/411/34 IPC
Offence charged of : U/s 381/411/34 IPC
Plea of the accused : Pleaded not guilty.
Persons.
Final order : Acquitted.
FIR No. 229/2013 State v. Jai Prakash
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1.Brief facts of the case shorn of unnecessary details are that on 28.09.2013 at about 12:45 pm, at DRDO, INMAS, Lucknow Road, both the accused persons were working as Sweepers and had committed theft of some yellow colour metal rods (hereinafter to be referred as "case property") from the premises of DRDO. It is alleged by the prosecution that the accused Jai Prakash committed theft of 13 yellow colour metal rods and accused Rahul stole 12 yellow colour metal rods and both of them were caught redhanded by the guard/watchman stationed at the entry/exit gate of the premises. On the basis of the aforesaid allegations, the present case FIR was registered and investigation was conducted.
2. On conclusion of the investigation, chargesheet was filed in terms of Section 173 Cr.P.C. for the offences under Section 381/411/34/ IPC. The court took cognizance of the offences and the copy of the challan was supplied to the accused persons in compliance with the provision under Section 207 Cr.P.C.
3. On the basis of the contents of the chargesheet and after hearing both the parties, prima facie case against both the accused persons was made out and accordingly, charge for the commission of offences u/s 381/411/34 IPC was framed against them, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined five witnesses.
FIR No. 229/2013 State v. Jai Prakash 3 PW1 Sh. Devi Singh deposed that on 28.09.2013, he was working as a security supervisor at DRDO INMASS , Timar Pur and at about 12.30/12.45 pm, one security guard namely Pushkar Singh had apprehended two sweepers namely Jai Prakash and Rahul along with two cloth bags containing metal rods. PW1 informed the SO Ashish Gaur regarding the apprehension of two sweepers and the SO then called number 100 upon which SI Md. Yamin reached at the spot. IO recorded statement of witness which is EX.PW1/A and prepared seizure memo of aforesaid recovered case property, EX PW1/B & PW1/C. IO also recorded disclosure statement and pointing out memo of both accused persons as EXPW1/D & PW1/E. IO also prepared arrest memo and personal search memos of both accused persons as EXPW1/F and EXPW1/G. IO also recorded the supplementary statement of the witness. The witness also identified both the accused persons in the court. He also identified the case property which was produced in two pulandas by the MHCM which were duly sealed with the seal of MY. Pulanda 1 was opened and found containing 13 yellow colour metal rods and pulanda 2 was found containing 12 yellow colour metal rods. The entire case property was identified by PW1 and was also exhibited as EX.P1(colly.). Thereafter, PW1 was examined by the Ld. APP for State where he denied that he had apprehended both the accused persons with the case property. Even though he was confronted with his statement EX.PW1/A, he denied that on the instructions of Pushkar Singh, he had checked the bags of both the accused persons.
PW2 ASI Gajender Tyagi deposed that on 28.09.2013, he registered FIR No. 229/2013 State v. Jai Prakash 4 the FIR on receiving the rukka brought by Ct. Deshraj and sent by IO SI Mohd Yameen. The carbon copy of FIR is EX.PW2/A and his endorsement on rukka EX.PW2/B. PW3 Sh. Pushkar Singh deposed that on 28.09.2013, he was working as a Guard at DRDO INMASS and his duty was at the gate from 8 am to 4 pm and his supervisor was also there. At about 12.45 pm, when the sweepers approached the gate to leave the DRDO after completion of their duty, his supervisor Devi asked him to check the bags of Jai Prakash and Rahul. He checked the bags of Jai Prakash and Rahul and found copper pieces. On checking, in one bag there were 12 pieces and in another bag there were 13 pieces. Devi Ram called Ashish Gaur to make the call at 100 number. Police came to the spot and took both the boys to the PS and the witness also went to the PS. The witness identified both the accused in court and also the case property which is already EX.P1(colly.).
PW4 Sh Ashish Gour deposed that he was working as Chief Admin officer at Inmas Hospital in the year 2013 and during that period, one Mahavir was the supervisor of contractual staff. During the office hours, the witness received a telephonic call from the security officer main gate and he informed him that contractual staff has been stopped at the gate while leaving the premises and they were found in possession of Brass bars. The witness called at number 100 and went to the spot and found 34 boys being stopped. He again said that there were 23 boys who were stopped. There was a bag having rods weighing 34 kgs. After some time, FIR No. 229/2013 State v. Jai Prakash 5 police came to the gate and took away those boys and the rods with them. The police seized the case property in plastic bags. The witness clearly deposed that he can not identify the boys due to lapse of time.
PW5 SI Mohd Yamin deposed that on 28.09.2013 on receiving DD No. 22A regarding apprehension of two accused persons at DRDO Inmas Hospital. The complainant Devi Singh met at the main gate of the hospital and handed over the accused Jai Prakash and Rahul. IO recorded the statement of complainant Devi Singh Ex PW 1/A and prepared the rukka Ex PW 5/A and got the FIR registered. On checking, IO found 13 small pieces of brass rods in one bag kept by the accused Jai Prakash in his right hand and white bag which was kept by accused Rahul in his right hand was found containing 12 small pieces of brass rods. IO seized the case property vide seizure memo Ex PW 1/B and Ex PW1/C and sealed the same with the seal of MY. In the meantime, Ct. Deshraj came back along with copy of the FIR. IO recorded the disclosure statement of both the accused Ex PW 1/D and Ex PW 1/E. IO arrested both the accused vide memos Ex PW 1/F and Ex PW 1/G and conducted their personal search vide memos Ex PW 5/B and Ex PW 5/C. IO deposited the case property in malkhana and after closure the investigation, filed the chargesheet.
5. On completion of prosecution evidence, all the incriminating facts and evidence were put to all the accused persons, as per the mandate of Section 313 r/w Section 281 Cr.P.C. and their statement were recorded without oath. Accused persons refused to lead defence evidence.
FIR No. 229/2013 State v. Jai Prakash 6
6. I have heard arguments on behalf of both the parties and have also perused the record of the case thoroughly.
7. Ld. APP submits that both the accused persons were caught red handed while they were trying to escape with the case property. Therefore, they have rightly been charged for the offences punishable u/s 381/411/34 IPC as they were working as servants in the premises of the DRDO INMASS, hence they deserve conviction in the present case.
8. Ld. Counsel for the accused persons submits that the prosecution has failed to make out a case of conviction against the accused persons because of numerous inherent loopholes in the story of the prosecution.
9. It is alleged by the prosecution that on 28.09.2013 at about 12:45 pm at DRDO, INMAS, Lucknow Road, both the accused persons were working as Sweepers and had committed theft of yellow colour metal rods (herinafter to be referred as "case property") from the premises of DRDO. It is alleged by the prosecution that the accused Jai Prakash committed theft of 13 yellow colour metal rods and accused Rahul stole 12 yellow colour metal rods and both of them were caught redhanded by the guard/watchman stationed at the entry/exit gate of the premises. Therefore, it is alleged that they committed offence punishable u/s 381/411/34 IPC.
10. In the present case, it is essential to note that the accused persons have been chargesheeted u/s 381 IPC. Sec. 381 IPC would apply to a person who has worked either as a clerk or a servant of his employer.
FIR No. 229/2013 State v. Jai Prakash 7 Although, it has been alleged that both the accused persons were working as servants but not even a single documentary proof was placed on record by the prosecution to show that they were ever employed by the DRDO INMAS or were working on contractual basis with the DRDO INMAS. Further, it has been alleged that PW1 and PW3 were the two material witnesses who intercepted the accused persons while they were trying to run away with the stolen property. As per the statement given by PW1 which is Ex.PW1/A when he saw the accused persons leaving the premises of the institution with the bags containing the stolen property, he asked the guard namely Pushkar Singh i.e. PW3 to check the bags of both accused persons. However, during his crossexamination PW1 completely denied that he had ever asked Pushkar Singh to check the bags of the accused persons. Further, contrary to this, PW3 categorically deposed that there were instructions given to him by PW1 to apprehend the accused persons with their bags and to check their bags. This being a major contradiction in the testimony of two material witnesses of the prosecution creates a serious doubt in the story of the prosecution.
11. Further, the prosecution has failed to exhibit any document pertaining to the attendance of the two security guards on the date of the incident. Other than this, both PW1 and PW3 have testified that after the apprehension of the accused persons, PW1 called the SO Ashish Gaur and informed him about the whole incident. PW4 Ashish Gaur although admitted to have seen the accused persons on the date of the incident but failed to identify them in the court. In view of the above mentioned facts and circumstances of the case, the prosecution failed to FIR No. 229/2013 State v. Jai Prakash 8 complete the chain of incriminatory circumstances against both the accused persons. The court therefore, does not think is fit and proper to convict the accused Jai Prakash and Rahul for the offences punishable under Section 381/411/34 IPC. They are thus acquitted in the present case.
12. As per the mandate of Hon'ble High Court of Delhi in "State Vs. Virender Yadav", decided on 22.10.2013, the accused persons have been directed to furnish bail bond u/s 437 A Cr.P.C which has been duly accepted and the said bonds shall remain in force for a period of six months and the guidelines given in the said decision have been complied with.
Pronounced in open court (NEETI SURI MISHRA) on 27.04.2018. MM02 (Central): Tis Hazari Courts:
New Delhi: 27.04.2018.
(This judgment contain 8 pages and all the pages are signed by me).
FIR No. 229/2013 State v. Jai Prakash