Delhi District Court
State vs . Ashok Topchi @ Pappu on 26 March, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05
SOUTH EAST DISTRICT: SAKET COURTS: NEW DELHI
JUDGMENT
STATE VS. ASHOK TOPCHI @ PAPPU FIR No. : 276/08 U/s. 411/380/454 IPC PS : Sarita Vihar A. Cr No. : 89793/2016 B. Date of Institution : 17.09.2008 C. Date of Commission of Offence : 04.08.2008 D. Name of the complainant : Neeraj Sharma E. Name of the Accused : Ashok Topchi @ Pappu S/o Sh. Chhida Singh R/o Rajini Vihar, Near Sabzi Mandi, Pilkhwa, Dist, Hapur, U. P. F. Offences complained of : 411/380/454 IPC (Charge framed by Ld. Predecessor Court for offence U/s 411/380/354 IPC) G. Plea of the Accused : Pleaded not guilty H. Order reserved on : Not reserved I. Final order : Acquitted J. Date of such order : 26.03.2018 FIR No. 276/08, PS-Sarita Vihar State Vs Ashok Topchi @ Pappu Page no. 1 of 7 Brief Facts :-
1. It is the case of the prosecution that accused had committed house breaking and theft from the house No. C-270, Sarita Vihar of complainant on 12.05.2008 which were subsequently recovered from his house in pursuance of his disclosure statement. Thus, accused was alleged to have committed offences punishable U/s 411/380/454 IPC.
2. Cognizance was taken by Ld. Predecessor Court. The accused was supplied with the copy of challan and documents in compliance of section 207 Cr.P.C and thereafter, the matter was listed for arguments on charge. After scrutiny of documents, parties were heard on charge.
Prima facie an offence punishable U/s 411/380/354 IPC was found to made out against the accused. Charge u/s 251 CrPC was framed by Ld. Predecessor Court and explained to accused to which he pleaded not guilty and claimed trial.
3. To bring home the guilt of accused, prosecution examined seven witnesses and the accused admitted the genuineness of TIP proceedings of case property conducted by Sh. Ajay Garg, Ld. MM, Patiala House Courts, New Delhi on 22.08.2008 as Ex-A-1 U/s 294 CrPC. Thereafter, PE was closed.
4. In his statement recorded u/s 313 Cr.PC, accused denied the prosecution case and pleaded innocence. He stated that he is innocent and Police has falsely implicated him to solve the case. However, he did not lead any independent evidence in his defence.
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5. The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused.
6. Ld. Defence counsel on the other hand has argued that the accused has been wrongly associated with the offence in question and as such the accused is entitled to acquittal in the present case.
7. I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file very carefully.
Relevant Law:-
It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Overall context of the case is to be seen.
It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that Courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of FIR No. 276/08, PS-Sarita Vihar State Vs Ashok Topchi @ Pappu Page no. 3 of 7 the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Discussion on merits :
8. PW-1 Sh. Neeraj Sharma is the complainant in the present case and has deposed that on 12.05.2008 when he alongwith his wife returned from his office at around 07:45 PM, thus found that lock of their house i.e C-270 Sarita Vihar was broken and jewellery of his wife and some other items were also missing. He called at number 100 and police reached the spot within 1 hour. IO recorded his statement vide Ex-PW-1/A. IO seized the broken lock vide seizure memo vide Ex-PW- 1/B. On 13.05.2008. IO visited the spot and prepared the site plan and got the spot photographed. IO recorded his supplementary statement. On 14.05.2008, he had handed over a list of the stolen articles to the police which is Ex-PW-1/C. IO recorded his supplementary statement on 14.05.2008. His wife Niti also deposed on same lines and corroborated him in her deposition.
9. (IO) PW-6 Retired SI Tika Ram was the IO of the case. On the date of the incident, complainant Neeraj Sharma came at Police Station and got recorded his statement. He prepared Rukka Ex. PW1/A and handed it over to Duty Officer HC Kailash Chander who recorded present FIR. IO went to spot along with complainant Neeraj. He prepared site plan Ex. PW6/A at the instance of complainant. IO seized broken lock of main gate H. No. C-217, Sarita Vihar, vide seizure memo Ex. PW2/B. He made a call to Crime Team who inspected the spot and prepared a crime report and handed it over to FIR No. 276/08, PS-Sarita Vihar State Vs Ashok Topchi @ Pappu Page no. 4 of 7 him which was Mark D. He recorded statement of Niti Sharma, who gave him a list of stolen articles, Ex. PW1/C.
10. Initially, untraced report was filed. However, on 04.08.2008, Sub Inspector P. S. Rana arrested the accused in case FIR No. 275/08, PS Sarita Vihar in which accused disclosed that he was involved in present case. Accused got recovered stolen jewellery articles which were seized by SI P.S. Rana vide seizure memo Ex. PW3/B. After seizure, present case was handed over to the IO.
11. IO moved TIP application of case property before Court of Sh.
Ajay Garg, the then Ld. MM. During TIP proceedings of case property, wife of complainant correctly identified the case property. TIP proceedings Ex. A1 were admitted by the accused U/s 294 CrPC. Photographs of spot i.e., Ex. P1 & P2 were identified by the IO in the Court.
Qua offence U/s 354 IPC:
12. There is no allegation or evidence on record to show that the accused outraged the modesty of any woman. In the absence of any allegation or evidence, the accused cannot be convicted for offence U/s 354 IPC and is accordingly acquitted qua this offence.
Qua offence U/s 380/411 IPC:
13. The IO had admitted in his evidence that he had arrested the accused solely on the basis of his disclosure statement. The entire case is based on the alleged recovery made at the instance of accused.
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14. The accused was arrested by SI P.S Rana in case FIR No. 275/08. While interrogating the accused in that FIR, he is alleged to have made disclosure statement about his involvement in the present case and subsequently certain articles were recovered. The disclosure statement was made while the concerned accused was in Police custody. Thus, the same is inadmissible in evidence in view of Section 27 Indian Evidence Act except to the extent where it leads to recovery.
15. The complainant and his wife are the sole witness in the present case. None of these witnesses claimed to have seen the accused committing the alleged offence. There is no eye witness to the commission of theft. IO had deposed that Crime Team was called at the spot after the incident, however, no such witness was named or examined by the prosecution. No finger prints allegedly lifted from the crime scene were matched with the finger prints of the accused. This was a vital piece of evidence which was necessary to link the accused with the alleged crime and the absence thereof goes to the root of the case. Further, there is nothing on record to show that SI P. S Rana had informed the SHO or the Court about the alleged recoveries in compliance of Section 102 CrPC.
16. The case property was Ordered by the Ld. Predecessor Court to be released subject to certain directions including taking of photographs of the case property and placing them on the File. However, in the present case, the IO failed to file the photographs of the case property on the Court file. There is nothing on record to show that IO even clicked the photographs of the case property or not. The superdar also failed to produce the case property in the Court. The entire case is based on the alleged recovery made at the instance of FIR No. 276/08, PS-Sarita Vihar State Vs Ashok Topchi @ Pappu Page no. 6 of 7 accused which has also not been duly proved. There is no evidence to link the accused with the theft. Stolen property which was allegedly recovered was never produced before the Court. Except the disclosure statement, there is nothing on record against the accused. The disclosure itself is inadmissible in evidence and as observed above, there are glaring loopholes in the evidence put forth qua the alleged recovery. In the given circumstances and material contradiction pointed out above, it is held that Prosecution could not discharge the necessary burden as mandated by law. In view of the aforesaid discussion, Court is of the opinion that there are reasonable doubts in the case put forth by the prosecution and it cannot in any manner be said to have been proved beyond reasonable doubt.
17. Hence, the accused Ashok @ Topchi @ Pappu held not guilty and is acquitted of the offence punishable U/s 380/411 IPC and U/s 354 IPC.
Now to come up for compliance of Section 437A CrPC.
Announced in the open Court on 26.03.2018 (SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS NEW DELHI FIR No. 276/08, PS-Sarita Vihar State Vs Ashok Topchi @ Pappu Page no. 7 of 7