Delhi District Court
State vs Subhash Giri Etc. on 23 March, 2013
IN THE COURT OF SH. SANJAY JINDAL
CHIEF METROPOLITAN MAGISTRATE
NORTHWEST DISTRICT : ROHINI COURTS : DELHI
Unique Case ID No. : 02401R0052581998
STATE VS SUBHASH GIRI ETC.
FIR NO. 827/97
P.S. : ASHOK VIHAR
U/S : 380/448/34 IPC
J U D G M E N T
a)Serial No. of the case : 322/2/98
b)Date of commission of offence : 16.10.97 & 21.10.97
c) Name of the complainant : Sh. Radhey Shyam
d)Name, parentage and address of : (1) Subhash Giri
accused S/o Late Sh. Mangal Giri
R/o : 63, Sawan Park Extn
Ashok Vihar, Delhi.
(since expired)
(2) Hans Raj Giri
S/o Late Sh. Mangal Giri
R/o : 63, Sawan Park Extn
Ashok Vihar, Delhi.
(3) Saroj Giri
W/o Late Sh Subhash Giri
R/o : 63, Sawan Park Extn
Ashok Vihar, Delhi.
(4)Ram Bachan Yadav
S/o Sh Muneshwar Yadav
Case No. 322/2/98 State Vs. Subhash Giri Etc. 1/11
R/o : 26, Sawan Park Extn
Ashok Vihar, Delhi.
e)Offences complained of : U/s 380/448/34 IPC
f)Plea of accused : Pleaded not guilty
g)Final Order : Acquitted
h)Date of order : 23.03.2013
i)Date of conclusion of : 23.03.2013
final arguments
BRIEF FACTS AND REASONS FOR DECISION :
1 Brief facts, as per case of the prosecution, are that on
16.10.1997 and 21.10.1997, all ther accused persons namely Subhash Giri, Hans Raj Giri, Saroj Giri and Ram Bachan criminally trespassed H. No. 26, Sawan Park Extn. and also committed theft of household goods like rescile gadda, utensils, TV stand, ceiling fan, Table and clothes belonging to the complainant. All the accused persons were arrested and after investigation, they were duly chargesheeted to the Court.
2 Copies of the relevant documents were supplied to all the accused persons. Charge for the offences U/s 380/448/34 IPC was framed against all the four accused persons on 05.12.1998 to which they pleaded not guilty and claimed trial.
Case No. 322/2/98 State Vs. Subhash Giri Etc. 2/11 3 At the time of trial, prosecution examined the following PW's: PW1 Sh. Radhey Shyam, PW2 Sh. Hukam Chand, PW3 Sh. Ritesh Kumar, PW4 Sh. Desh Raj, PW5 Sh. Devender Kumar, PW6 HC Satyavir Singh, PW7 Sh. Prem Shankar, PW8 Sh. Surender Pal, PW9 Sh. Rajiv Arora, PW10 Sh. Ishwar Giri, PW11 Sh. Keshav Gupta, PW12 Sh. Shiv Badan, PW13 WSI Usha Rani, PW14 HC Satpal, PW15 SI R.D. Singh, PW15 SI R.K. Pant (Should be PW16), PW16 HC Ranpal (Should be PW17) PW17 HC Bijender (Should be PW18) PW18 Ex. Ct. Shiv Charan (Should be PW19) Case No. 322/2/98 State Vs. Subhash Giri Etc. 3/11 PW19 HC Dalel Singh (Should be PW20) PW20 ASI Raj Singh (Should be PW21) PW21 HC Gain Chand (Should be PW22), and PW22 HC Subhash (Should be PW23). 5 After conclusion of the prosecution evidence, all the
incriminating evidence was put to all the accused persons and their statements under Section 313 Cr.P.C were recorded separately. They denied the allegations and claimed false implication. They opted to lead evidence in their defence and examined DW1 Sh. Bhanwar Singh.
6 After recording of the statements U/s 313 Cr.P.C and during the course of subsequent proceedings, accused Subhash Giri expired and vide order dated 02.02.2013, proceedings against him stood abated. 7 I have heard Ld. APP for the State and counsel for the accused persons. During the course of arguments, it is submitted on behalf of the State that the case of the prosecution stands duly proved on record and that the accused persons are liable to be convicted. On the other Case No. 322/2/98 State Vs. Subhash Giri Etc. 4/11 hand, the counsel for the accused persons has argued that the case of the prosecution is full of presumption. He has further contended that there is no evidence at all against the accused persons facing trial and that there are vague allegations against the accused persons and that the accused persons are entitled for acquittal. The counsel for the accused has relied upon the Judgment of the Hon'ble Supreme Court in 'Brathi alias Sukhdev Singh v. State of Punjab, AIR 1991 SC 318'. 8 I have perused the record carefully in the light of the submissions made before me.
9 So far as the witnesses examined by the prosecution are concerned, PW1 Sh. Radhey Shyam is the complainant in this case. He has deposed as per his complaint to some extent. PW2 Sh. Hukam Chand deposed about the fact that the complainant and one Prem were residing as a tenant in the premises of the accused persons. PW3 Sh. Ritesh was running a shop of Electronics from where the complainant purchased TV. PW4 Sh. Desh Raj used to manufacture keys for the locks and on asking of accused Subhash Giri, he opened the lock of two rooms of his house and handed over the keys to accused Subhash Case No. 322/2/98 State Vs. Subhash Giri Etc. 5/11 Giri. PW5 Sh. Devender Kumar has not supported the case of the prosecution and was cross examined by the Ld. APP for the State. PW6 HC Satyavir Singh deposed that on 21.10.1997, he was posted at P.S. Ashok Vihar as Beat Officer when the complainant and Prem Kumar came to him and narrated the incident and also visited the spot. PW7 Sh. Prem Shankar is also one of the victims who lodged the complaint with the police. PW8 Sh. Surenderpal has deposed that complainant and Prem were residents of H. No.26, Sawan Park belonging to the accused and that the complainant told him about locking of the house and stealing of utensils. PW9 Sh. Rajiv Arora was running an electric shop from where the complainant purchased a ceiling fan. PW10 Sh. Ishwar Giri is the witness to arrest memo and personal search of accused Subhash Giri and Ram Bachan Yadav vide Ex.PW10/A to Ex.PW10/D respectively. PW11 Sh. Keshav Gupta and PW12 Sh. Shiv Badan have not supported the case of the prosecution and they were cross examined by the Ld. APP for the State. PW13 WSI Usha Rani was marked a complaint for inquiry by the ACP and after inquiry he prepared a report Ex.PW13/A which was put before Inspector Vigilance Raj Kumari. PW14 HC Satpal is the witness to whom DD No.24A was marked pursuant to which he Case No. 322/2/98 State Vs. Subhash Giri Etc. 6/11 visited the spot. PW15 SI R.D. Singh joined the investigation with IO ASI RK Pant vide Ex.PW15/A and Ex.PW15/B. PW15 SI R.K. Pant (Should be PW16) is the IO in this case who has detailed the proceedings conducted by him during investigation of this case. PW16 HC Ranpal is the Duty Officer who recorded FIR Ex.PW16/A and made endorsement Ex.PW16/B on the ruqqa. PW17 HC Bijender, PW18 Ex. Ct. Shiv Charan, PW19 HC Dalel Singh and PW20 ASI Raj Singh joined the investigation with the IO during arrest and other proceedings of this case. PW21 HC Gain Chand and PW22 HC Subhash were with PW6 HC Satyavir when complainant Radhey Shyam and Prem came to Beat and narrated the incident. 9 The present case was registered on the complaint of PW1 Sh. Radhey Shyam and PW7 Sh. Prem Shankar is the co complainant. In addition to these witnesses, there are several other public/ independent witnesses examined on behalf of the prosecution. But the testimonies of all the public witnesses are formal in nature as there is no direct evidence qua the allegations against the accused. None of the witnesses has witnessed the alleged act of the accused persons. Even PW1 and PW7 had not seen the alleged act. Mere allegations on the Case No. 322/2/98 State Vs. Subhash Giri Etc. 7/11 basis of presumption cannot be taken as granted during the course of criminal proceedings. The allegations must based on cogent, reasonable and plausible testamentary and/or documentary evidence. 10 So far as the testimonies of PW5 Sh. Devender Kumar, PW11 Sh. Keshav Gupta and PW12 Sh. Shiv Badan are concerned, they have not supported the case of the prosecution and they were cross examined by the Ld. APP for the State. PW5, during the course of his cross examination by the Ld. APP for the State, denied that he had stated to the polcie that Radhey Shyam and Prem were residing as tenants at House No.26 of Subhash Giri for the last about three years . It was further denied that he came to know that in absence of Prem and Radhey Shyam, accused Subhash Giri, Hans Raj Giri and their family members had forcibly taken the possession by breaking open the lock. During the course of cross examination by the Ld. APP for the State, PW11 Sh. Keshav Gupta testified that he did not know whether Prem and Radhey Shyam were tenants in the house of Subhash Giri in H. No.26 for the last three years; and that he did not know who was residing at H. No.26. He denied that Prem and Radhey Shyam were residing in H.No.26 or that he was deposing falsely. He Case No. 322/2/98 State Vs. Subhash Giri Etc. 8/11 has further denied that he came to know that on 21.10.1997, Subhash Giri had broken the locks of the house of Prem and Radhey Shyam or put his own lock. Likewise, PW12 Sh. Shiv Badan, during the course of cross examination by the Ld. APP for the State, testified that he did not know on 20.10.1997 in the absence of Prem and Radhey, accused Subhash Giri, Hans Raj Giri, Ram Bachan and Saroj Giri got broken the lock of the room of Prem and Radhey and removed goods and articles from the room and put their locks. There is no reason to disbelieve the testimonies of these witnesses. Thus these witnesses have falsified the case of the prosecution in toto. PW10 Sh. Ishwar Giri is also not helpful as he is a formal witness to whom information regarding arrest of accused Subhash Giri (since deceased) and Ram Bachan Yadav was given and their personal search were conducted. The testimony of this witness is also of not much use as he is merely a signatory witness.
11 The case of the prosecution is that the accused persons had allegedly stolen the articles like TV, fan, stove, quilt, gadda, utensils, suitcase and other household articles of the complainant from his room. But none of the abovesaid articles have been recovered during Case No. 322/2/98 State Vs. Subhash Giri Etc. 9/11 the course of investigation. Furthermore, none of the witnesses has deposed about the stealing or recovery or putting their own articles by the accused persons in the room of the complainant. In such circumstances, the allegations in this regard have not been established on record. There must be corroboration from the independent source. Mere allegations do not suffice to hold that the accused persons have committed the alleged act.
12 It is further to be noted that it is the case of the prosecution that the accused persons dispossessed the complainant from the alleged room but there is no proof of possession of any of the accused persons after the alleged incident. So no presumption can be drawn in this regard. The Judgment relied upon by the counsel for the accused persons are helpful in this case.
13 Some of the witnesses have deposed against accused Subhash Giri to some extent but as observed hereinabove, the said accused has already expired and proceedings against him stand abated. 14 In view of the above discussions, I am of the considered view Case No. 322/2/98 State Vs. Subhash Giri Etc. 10/11 that the prosecution has failed to prove the allegations against the accused persons. Hence, the accused persons namely Ram Bachan, Hans Raj Giri and Saroj Giri are acquitted. They are on bail in this case. Their bonds stand cancelled. Sureties are discharged. Original documents, if any be returned to the rightful owner against proper receipt and after cancellation of endorsement, if any thereon. The case property, if any be released to the rightful owner against proper receipt. The file be consigned to the Record Room. Announced in open Court Today on this 23rd Day of March, 2013.
(SANJAY JINDAL) CMM : NORTHWEST DISTRICT ROHINI : DELHI Case No. 322/2/98 State Vs. Subhash Giri Etc. 11/11