Delhi District Court
25 Pm She Along With Hc Dinesh Tyagi And ... vs State Of Punjab on 14 March, 2014
IN THE COURT OF MS. PURVA SAREEN,
METROPOLITAN MAGISTERATE01, SOUTH, SAKET COURT
State v. Jagwati etc
FIR No.391/12
PS SJ Enclave
U/s 457/380/411 IPC
JUDGMENT
Date of Institution : 14.01.2013
Date of commission of offence : Intervening night of 11/12.11.2012
Name of the complainant : Gaurav Gupta s/o Sh. Madan Lal
Name & address of the accused : (i) Jagwati w/o Sh.Sher Singh
R/o Jhuggi Bada Nala, Mohalla Chorama,
Sadar Bazar, Distt Mathura, UP.
(ii) Kamal Devi w/o Sh.Kishan Pal
R/o Village Dulera, PS Sikandarabad,
Distt Bulandshahar, UP.
Offence complained of : 457/380/411 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of reserve for judgment : 10.03.2014
Date of announcing of judgment : 14.03.2014
State v. Jagwati etc Page 1
FIR No.391/12, PS SJ Enclave
Briefly stated the facts of the case are :
1. The story of prosecution is that on the intervening night of 11/12.11.2012 between 10.15 pm to 10 am at C3, SDA Market, New Delhi accused Jagwati and Kamal along with two other companions (who could not be arrested during investigation) in furtherance of their common intention broke open the lock of main door of said shop after sunset and committed theft and moved a sum of Rs.65,000/, one idol of goddess Laxmi, and Lord Ganesha (silver), two mobile phones (Motorola and Nokia), one corporate card of HDFC Bank and few visiting cards lying in said shop and on 15.11.2012 at unknown time accused Jagwati was found in possession of Rs.5,000/, mobile phone of Motorola, Silver Idol of Laxmi and Ganesh, Corporate card of HDFC Bank and three visiting cards of shop in question, and on the same day at H.No.1208, Pocket 4, Sector 6, Narela accused Kamal was found in possession of Rs.2500/, one mobile phone of Nokia and two visiting cards which they dishonestly received or retained knowing or having reason that the same were stolen property and thereby committed an offence punishable u/s 457/380/411/34 IPC.
2. The FIR in the present case was registered u/s 457/380/411/34 IPC. Accused persons were arrested. Investigation was done. Statement of State v. Jagwati etc Page 2 FIR No.391/12, PS SJ Enclave witnesses were recorded. After completion of investigation, challan was prepared and filed before the court.
3. Prima facie charge u/s 457/380/411/34 IPC was framed against the both the accused persons on 08.02.2014 by. Ld. Predecessor Court to which both the accused pleaded not guilty and claimed trial. However, accused Jagwati pleaded guilty voluntarily on the next date of framing of charge. Her plea of guilt was recorded and was listed for consideration and the matter was fixed for prosecution evidence.
4. To prove its case the prosecution has examined eight witnesses as under :
(i) PW1 Gaurav Gupta was complainant who deposed before the court that on the day of Dhanteras i.e. two days before Diwali in the year 2012 at around 8.45 am Incharge of his shop told him on telephone regarding theft committed at his shop. Witness further stated that Incharge further told him that cash upto Rs.70,000/ from 'galla' had been stolen. A metal (silver) 'murti' of Laxmi & Ganesh, one or two mobile phones had also been stolen. The concerned CCTV person was called and entire footage was seen. Police was also called form police booth. CCTV footage was State v. Jagwati etc Page 3 FIR No.391/12, PS SJ Enclave handed over to the police. After one or two days he gave his complaint to the police. Site plan was prepared by police at his instance. IO called him after two days and showed some recovery articles effected from accused persons. Witness correctly identified the case property before the court.
Witness further stated that seizure memos were prepared in his presence. The pointing out memos of recovery and offence were prepared in his presence. Both accused persons were arrested and their personal search was conducted in his presence. The disclosure of accused persons were recorded in his presence.
(ii) PW2 HC Bhagwan Singh deposed before the court that he was working as accountant and computer Incharge at wine shop of Jain Departmental Store, SDA Market, New Delhi in the shop no.C3. He had prepared a CD from the computer of the said shop which contained CCTV footage of dated 11/12.11.2012 at the request of Gaurav Gupta, owner of the shop. On 14.11.2012 he handed over the video CD prepared by him to Mr.Gaurav Gupta. No alteration was made during preparation of said CD. He had given certificate u/s 65B of Evidence Act regarding the same to police official. He had also prepared two photographs from the said CCTV footage which is Ex.P1 and P2.
Witness correctly identified the CD attached to judicial file State v. Jagwati etc Page 4 FIR No.391/12, PS SJ Enclave In his cross examination by ld. Defence counsel for accused Jagwati it is stated by witness that he was working at the above said shop since two years. It is denied by witness that alteration was made in the CD with the connivance with owner of the wine shop. The photographs were prepared showing the contents of CCTV footage. The certificate u/s 65 Evidence Act was given by him on the request of IO.
Ld. Counsel for accused Kamal adopted the cross examination of ld. Defence counsel for accused Jagwati.
(iii) PW3 HC Dinesh Tyagi deposed before the court that on 15.11.2012 he joined the investigation of present case. On that day he along with IO and complainant Gaurav Gupta and one lady constable Kavita went to place of occurrence at about 1.35 pm. IO prepared the site plan at the instance of the complainant. Complainant produced one CD of CCTV's footage lying inside and outside the shop which was seized. IO tried to trace the accused and case property. Meanwhile, one security guard Paramjit who was on duty at Gate of Union Bank situated near the said wine shop on the date of incident, was called by IO and inquiry was made from him. His statement was recorded. Paramjit told in his statement that he had seen four ladies sleeping in front of the shutter of the wine shop and he tried to remove them from there. They quarreled with him. Thereafter, he along State v. Jagwati etc Page 5 FIR No.391/12, PS SJ Enclave with IO, complainant and Paramjit went to Raj Nagar Flyover to trace the accused persons where Pramajit pointed out towards one lady. The lady tried to run away but she was apprehended with the help of lady Ct.Kavita at the distance of 1015 paces. After inquiry her name was revealed as Jagwati. IO interrogated her and recorded her disclosure statement. She was arrested and her personal search was conducted by lady constable. She further got recovered one cloth pullanda beneath the pillar of Raj Nagar flyover. Same was opened and found containing Rs.5,000/ (50X100), one silver statue of Laxmi and Ganesha, one card of HDFC Bank and three visiting cards of the said wine shop belonging to complainant, one mobile phone (motorola black colour) which were identified by complainant. Same were seized and sealed with the seal of RM. Pointing out memo of place of recovery was prepared. Thereafter, accused Jagwati pointed out towards the wine shop from where she along with other co accused Kamal Devi committed the theft. Pointing out memo in this regard was prepared. Thereafter, she took them at the residence of Kamal Devi at H.No.1208, Pocket 4, Sector 6, Narela where accused Kamal Devi was arrested at the instance of accused Jagwati. Her personal search was got conducted through lady constable. IO interrogated accused Kamal and her disclosure statement was recorded.
State v. Jagwati etc Page 6
FIR No.391/12, PS SJ Enclave
Thereafter, accused Kamal got recovered Rs.2500/ (10x100 and 100x15), one mobile phone (Nokia black colour), two visiting cards of wine shop belonging to complainant from red bucket kept in the corner of room. Same were correctly identified by complainant. Thereafter, the same was put into plastic box and taped with the doctor tape and sealed with the seal of RM which were seized vide seizure memo Ex.PW1/D. Seal after use was handed over to him. Pointing out memo of place of recovery was prepared. Case property was deposited into malkahana and accused persons were sent to lock up after their medical examination. He along with IO tried to search for other accused persons namely Billo and Omwati but it was of no avail. IO recorded his statement.
The identity of case property was not disputed.
In his cross examination by ld. Defence counsel for accused persons it is stated by witness that the footage was given by complainant to IO on 15.11.2012. The certificate of footage was given by the person of complainant whose name he did not remember. Security Guard Paramjit did not make any call to police about the quarrel with those ladies. At about 3.45 pm they reached at near flyover pillar along with Paramjit. 1015 persons were present there at that time. They went to Narela in personal vehicle of IO and reached there at about 6 pm. There were two State v. Jagwati etc Page 7 FIR No.391/12, PS SJ Enclave rooms in raw condition at Kamal Devi's house. The gate of the house was already opened. The bucket in which the stolen articles were lying was put in the back room of the house. IO did not prepare site plan of the house from where the stolen articles were recovered from the possession of Kamal Devi.
(iv) PW4 HC Yadvir was duty officer who proved the FIR vide memo Ex.PW4/A and endorsement thereupon vide memo Ex.PW4/B. Accused persons did not prefer to cross examine the witness.
(v) PW5 W/Ct. Kavita deposed before the court that on 15.11.2012 he joined the investigation of present case with IO SI Rajneesh. At around 1.25 pm she along with HC Dinesh Tyagi and complainant Gaurav Gupta and IO reached at the spot where at the instance of complainant IO prepared site plan. Complainant Gaurav Gupta handed over one CD of the CCTV recording of his shop for the relevant time to the IO which was seized. During investigation IO inquired one security guard namely Paramjit posted at the duty at the Gate of Union Bank situated near wine shop of complainant. IO recorded his statement. Thereafter, she along with IO complainant HC Dinesh Tyagi and witness Paramjit reached under Raj Nagar Flyover to search the accused persons disclosed by witness Paramjit. There, witness Paramjit pointed out towards one lady whom he State v. Jagwati etc Page 8 FIR No.391/12, PS SJ Enclave had seen lying near the spot on the date of incident. After seeing the police party, said lady started fleeing from the spot. She chased and apprehended her. On inquiry, she disclosed her name as Jagwati. IO interrogated her and recorded her disclosure statement. Accused Jagwati was arrested and her personal search was conducted by her. Thereafter, accused Jagwati got recovered one cloth packet near the pillar of Raj Nagar Flyover. The said packet was found containing Rs.5000/ (denomination 50X100), one silver statue of Laxmi and Ganesha, one HDFC Bank Car, 3 visiting cards of the wine shop of complainant, one black colour motorolla mobile phone. The said phone was identified by complainant belonging to him. IO seized the case property after sealing the same with the seal of RM. Accused Jagwati also disclosed that she committed the theft at the wine shop of complainant in association with another lady Kamal Devi. After that accused Jagwati led them to the house of accused Kamal Devi at Narela. At the instance of Jagwati, accused Kamal was arrested and her personal search was conducted. IO inquired accused Kamal and recorded her disclosure statement. After that, accused Kamal got recovered Rs.2500/ (denomination 100X15), one black colour Nokia phone, two visiting cards of wine shop of complainant, all concealed in a red colour bucket kept in the room of accused Kamal.
State v. Jagwati etc Page 9
FIR No.391/12, PS SJ Enclave
Complainant duly identified the case property as belonging to him. Thereafter, IO seized the case property after sealing the same with the seal of RM. After use seal was handed over to HC Dinesh Tyagi. Thereafter, accused persons were taken to PS. IO deposited the case property in Malkhana and accused persons were committed to custody after medical examination.
Accused did not prefer to cross examine the witness.
(vi) PW6 Yogender Singh was Area Manager for Fireball Securities & Consultants P. Ltd. He received the notice u/s 91 CrPC from SI Rajneesh Ray and in reply of which he sent application form for employment of Paramjit along with matriculation certificate, salary receipt and duty roaster.
Accused persons did not prefer to cross examine the witness.
(vii) PW7 Paramjit Rai deposed before the court that on he was working as security guard in the company of Firewall Security Company. On the intervening night of 11/12.11.2012 he was on duty as security guard at ATM of Union Bank of India at Arvindo Marg. At about 4 am he heard the dog's barking. He came out from the ATM booth and found three ladies were lying in front of the shutter of liquor shop situated adjacent to said ATM booth. He heard the sound of shutter of liquor shop after which he State v. Jagwati etc Page 10 FIR No.391/12, PS SJ Enclave returned back in front of liquor and saw threefour ladies were passing over some polythene bag to each other. On suspicion he inquired them and told to leave the place to which they abused him and left the spot after 10 minutes. On 15.11.2012 he came to know that a theft was committed in above said liquor shop on the said intervening night. Police official inquired him about the incident and recorded his statement. On 15.11.2012 he had joined the investigation of present case along with police and tried to search the accused persons. When they reached at Raj Nagar Flyover Ring Road, he saw one lady who was washing some clothes under the flyover. On seeing, he identified her and pointed out towards her to the police officials after which she tried to run away after seeing them. After some distance police officials apprehended her and her name was revealed as Jagwati. She was arrested in his and her personal search was conducted. Police interrogated her and recorded her disclosure statement. Accused handed over one polythene bag at PS containing Rs.5,000/, one mobile phone (Motorolla), one Laxmi Ganesh statue (silver colour) and some visiting cards. Complainant Gaurav accompanied them and correctly identified his articles which were handed over to police official by him. Articles were seized. Thereafter, accused Jagwati took them in front of liquor shop SDA market and pointed out State v. Jagwati etc Page 11 FIR No.391/12, PS SJ Enclave towards the liquor shop from where she along with co accused persons committed theft. Thereafter she took them to residence of her sister at Narayana where one lady met them whose name was revealed as Kamal who was involved and standing in front of liquor shop on the day of incident. IO recorded his statement.
In his cross examination by ld. Defence counsel it is stated by witness that it took 45 minutes to cross liquor shop where three four ladies were lying, for nature's call and coming back there. He had heard only sound of shutter but not seen to enter those women inside shop. There were other shops also having iron shutters. It is admitted by witness that he had never seen any lady inside the said liquor shop nor breaking of lock of shutter of said shop during entire incident. It is admitted that nothing had recovered from accused Jagwati at the time of her apprehension under flyover. No documentation had done by the IO at the spot of arrest of accused Jagwati. He along with complainant was outside of the residence of sister of accused Jagwati. IO never asked any public person in his presence to become witness at the place of arresting of both the accused.
(viii) PW8 SI Rajnish deposed before the court that on 15.11.12 at about 12.30 pm complainant Gaurav Gupta came at PS and gave his statement State v. Jagwati etc Page 12 FIR No.391/12, PS SJ Enclave regarding burglary in his wine shop. His statement was recorded as complaint. Rukka was prepared. He alongwith HC Dinesh Tyagi, WC Kavita and complainant went to the spot and prepared site plan at the instance of complainant. One CD of CC TV footage installed in his shop was collected & seized. Aforesaid CD was checked by him in which one lady was shown as stealing articles inside the wine shop. After inquiry it was revealed that on the day of incident one guard namely Paramjit was on duty at ATM booth of Union Bank in SDA market. He was inquired on 15.11.12 and his statement was recorded u/s 161 CrPC. Thereafter, he along with eye witness Paramjit tried to trace the accused. At the instance of eye witness Paramjit one lady Jagwati was arrested under flyover Raj Nagar near Trauma Center and her personal search was conducted by WC Kavita. Accused Jagwati was interrogated and her disclosure statement was recorded. Accused Jagwati took them under Raj nagar flyover near a pillar and got recovered a silver idol of Laxmi Devi and Ganeshji, Rs.5000/ cash, one mobile phone and Corporate card of HDFC Bank and some visiting cards which were seized after correctly identified by complainant. Thereafter accused Jagwati took them to Narela and got arrested other coaccused Kamal. Her personal search was conducted by WC Kavita. She was interrogated and her disclosure State v. Jagwati etc Page 13 FIR No.391/12, PS SJ Enclave statement was recorded. Accused Kamal got recovered Rs.2500/ cash, one phone make Nokia colour black and some visiting cards from her house in a balti in a polythene which were seized. Pointing out memo of place of recovery were prepared. Thereafter accused Kamal and accused Jagwati had pointed out towards the wine shop from where they along with two other ladies committed theft vide pointing out memo. He tried to search other case property but to no avail. Accused persons were sent to lock up after their medical examination. Notice u/s 91 of Indian Evidence act was given to Incharge of Fire Ball Security and collected relevant document regarding employment & duty roaster of eye witness Paramjeet. He collected certificate u/s 65B of Indian Evidence Act from Lalit Kumar, who prepared the CD. He recorded statement of witnesses. He tried to trace tow other coaccused but to no avail. After completion of investigation challan was prepared and filed before Hon'bel Court.
In his cross examination by ld. Defence counsel it is stated by witness that the CD and the developed photographs were given to him by the owner of the shop Sh Gaurav Gupta. He did play the CD before seizing it. As per his knowledge and the dossiers there was no previous criminal record of the accused persons. It is admitted that Jagwati was arrested at the instance of Paramjeet. At the time of arresting accused State v. Jagwati etc Page 14 FIR No.391/12, PS SJ Enclave Kamal eye witness Paramjeet was not with them. The second lock was lying on the shutter of the shop. It is admitted that they did not seize the same. He had inquired about broken lock from accused person & they said that the same was thrown away by other coaccused. He tried to search other accused persons under the flyover near SDA , Vasant Vihar etc. The tools to break the locks were carried by other coaccused persons.
5. Thereafter, the prosecution evidence was closed. After framing of charge at the stage of prosecution evidence, accused Jagwati had pleaded guilty for the alleged offence. After closing of prosecution evidence, statement of accused Kamal Devi was recorded U/s 313 of CrPC. In her statement, accused Kamal Devi denied the version of prosecution. However, she did not prefer to lead DE.
6. Arguments address by ld. APP for the state and ld. counsel for accused persons. I have heard the arguments and gone through the documents on record.
7. As per section 457 IPC, the basic ingredients required for the completion State v. Jagwati etc Page 15 FIR No.391/12, PS SJ Enclave of offence are as follows:
(i) There should be house trespass.
(ii) it should be for the purpose of commission of an offence.
8. In the present case it has been argued by ld. Counsel for accused that there is no eye witness to the offence of house trespass as nobody saw accused persons breaking open the shop for committing theft. There is only recovery of the case property and mere recovery can only be the ground for conviction u/s 411 IPC and not u/s 457/380 IPC.
On the other hand ld. APP for the state has argued that CCTV footage on record as well as the recovery immediately after the crime is sufficient to connect the accused with the said crime. After hearing of arguments of both the parties, I am convinced that whereas the theft took place on 11.11.2012 to 12.11.2012, the recovery was effected on 15.11.2012 i.e. within three days of the crime. To my opinion not much time is elapsed and moreover the photographs of CCTV footage on record as well as statement of PW7 Paramjit Rai who saw accused persons lying outside the liquor shop of the complainant in the middle of the night completes the chain of circumstances and is sufficient to convict the accused persons u/s 357/380 IPC.
State v. Jagwati etc Page 16
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9. Hence, both the ingredients of section 457 IPC have been satisfied. As far as section 380 IPC is concerned, it is a species of section 457 IPC wherein theft has also been committed along with house trespass. Hence, I need not to convict the accused persons u/s 380 IPC separately when I am convicting them u/s 457 IPC.
10.The recovery has been effected from both the accused persons and in the presence of witnesses. Hence, there is sufficient material on record to convict the accused persons u/s 411 IPC.
11. Further, testimony of the complainant and eye witnesses have efficacy and relevancy. They have no reasons to omit real culprit and implicate falsely the accused. It is a well settled law that once the eye version is given particularly by the complainant herself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements. (Balbir Singh V. State of Punjab, (P&H) 2003 Cri.L.J. 3148).
12.The Court while appreciating the evidence must not attach undue State v. Jagwati etc Page 17 FIR No.391/12, PS SJ Enclave importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance.
13.In case State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) Cri.L.J. 2531 it was observed that while appreciating evidence of the witnesses it has to be kept in mind that their presence at the time and place of the occurrence cannot be doubted. They do not have any reason to omit real culprits and implicate falsely the accused persons.
14.The identity of the accused has been duly established and the eye witness Pramajit has supported the prosecution story. The accused persons were caught at his instance and pointing out. The articles were taken into possession which was later on taken on superdari and brought by the complainant in the court which has been correctly identified by the complainant as well as other witnesses in the Court. FIR has been proved and all the other documents have also been proved by the formal/police witnesses. Nothing has come on record to disbelieve the testimonies of State v. Jagwati etc Page 18 FIR No.391/12, PS SJ Enclave witnesses. All the witnesses examined by the prosecution are found to be cogent and coherent.
15.In view of above discussion I am of the view that prosecution proved its case beyond reasonable doubt against accused Kamal Devi. Hence, the accused Kamal Devi is convicted for the offence punishable u/s 457/411/34 IPC.
16.Further, accused Jagwati has already pleaded guilty vide her separate plea of guilt dated 23.02.2013. In view of her plea of guilt, she is convicted u/s 457/411/34 IPC.
17. Now to come up for hearing on the point of sentence on 27.03.2014.
Announced in the open court (PURVA SAREEN)
th
on 14 March 2014 METROPOLITAN MAGISTERATE01
SOUTH, SAKET COURT, NEW DELHI
State v. Jagwati etc Page 19
FIR No.391/12, PS SJ Enclave