Delhi District Court
State vs Ganesh on 2 September, 2023
THE COURT OF SH. UDBHAV KUMAR JAIN, MM-04,
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
STATE v. GANESH
FIR No. -: 177/2021
Police Station -: Madhu Vihar
Section(s) -: 380/411 IPC
Cr. Case No. -: 5190/2021
1 DLSH020075822021
CIS number
2 Virender
Name of the complainant
S/o Late Sh. Lakhmi
R/o H.No.A-157,
Gali No.9, Chander Vihar,
Mandawali, Madhu Vihar,
East Delhi
3 Ganesh
Name of the accused,
parentage & residential S/o Rameshwar
address R/o Vogabond Noida MD Pul,
Akshardham, Delhi,
Gautam Buddha Nagar, U.P.
4 Offence complained of or Under Section 380/411 of Indian Penal
proved Code
5 Date of commission of 11.07.2021
offence
6 Plea of the accused Pleaded not guilty and claimed trial
7 Final Judgment Acquittal
8 Date of judgment/order 02.09.2023
Date of Institution: 13.09.2021
Date of Reserving Judgment: 11.08.2023
Date of Pronouncement of Judgment: 02.09.2023
Duration: 1 years, 11 months,
19 days
UDBHAV Digitally signed
by UDBHAV
KUMAR Date: 2023.09.02
KUMAR JAIN
JAIN 17:44:52 +0530
FIR No. 177/2021 State vs. Ganesh Page no.1 of 11
JUDGMENT
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution against the accused is that on 10.07.2021 at around 10 p.m. complainant was sleeping in his room in the house bearing no. A-157, Street No. 9, Chander Vihar, Mandawali and kept the door of his room open due to hot weather. When complainant woke up at around 3 a.m. on 11.07.2021, he saw that his Kurta in which he had kept Rs. 3,000/- was lying on the gate and said amount was not there in the Kurta. He further saw that almirah kept inside the room was found open. Gold and silver ornaments/articles along with cash of Rs.85,000/-, bank cheque book, LIC Bond were stolen from the said Almirah by someone. As such, an offence under section 380 of the Indian Penal Code, 1860 (hereinafter, "IPC"), was alleged to have been committed for which FIR No. 177/2021 was registered at Police Station Madhu Vihar, Delhi against unknown person.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of FIR, the investigating officer (hereinafter 'IO') conducted investigation and accused Ganesh was arrested in the present matter. On culmination of the investigation, chargesheet against the present accused namely Ganesh was filed u/s 380/411 IPC. Ld. Predecessor of this Court took the cognizance of the offences u/s 380/411 IPC vide order dated 13.09.2021. After taking cognizance of the offences, accused was produced from judicial custody to face trial. Accused was produced in court and he was supplied the copy of documents relied upon in the charge sheet in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC").
Digitally signedUDBHAV by UDBHAV KUMAR JAIN KUMAR Date:
JAIN 2023.09.02 17:45:01 +0530 FIR No. 177/2021 State vs. Ganesh Page no.1 of 11
3. Since prima facie offences against the accused were made out, Ld. Predecessor of this Court vide order dated 12.11.2021 framed charge against accused Ganesh of the offences punishable u/s 380/411 IPC, to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 Virender (Complainant) PW2 Ct. Suresh PW3 ASI Sunil Kumar (IO) PW4 Ct. Karan PW5 HC Rakesh DOCUMENTARY EVIDENCE Ex.PW1/A Statement of Complainant Ex. P1 to Photographs Ex. P5 Ex.P6 Currency Notes Ex. P7 Clothes of accused Ex.PW2/A Arrest Memo Ex.PW2/B Disclosure statement Ex.PW2/C Seizure Memo for case property Ex.PW2/D Seizure Memo for clothes Ex.PW3/A Rukka Ex.PW3/B Site Plan Ex.PW3/C Personal Search Memo Ex.PW3/D Supplementary Disclosure Statement Ex.PW3/E Site Plan of recovery site Ex.PW5/A Photocopy of entry no. 2150/21 in Register no. 19 Digitally signed UDBHAV by UDBHAV KUMAR JAIN FIR No. 177/2021 State vs. Ganesh KUMAR Date: Page no.2 of 11 2023.09.02 JAIN 17:45:24 +0530 ADMITTED DOCUMENTS U/S 294 CrPC Ex. P1 FIR No.177/2021
5. Virender (PW-1), who is the complainant, in his examination-in-chief deposed that on 10.07.2021 he was sleeping in his house on the ground floor and did not lock the door from inside and kept the door of his room slightly open due to summer season. When he woke up at around 3 a.m., he saw that his Kurta, in which he had kept Rs. 3,000/- to Rs. 4,500/-, was lying on the gate and the said amount was not there in the Kurta. He further saw that almirah kept inside the room was found open and some documents were lying on the floor. On checking the almirah, three bags containing cash of Rs.70,000/-, passbook, bank cheque book, LIC documents and Rs. 10,000/- currency notes in a room of his house were found stolen. When police arrived at the spot, he gave his statement and next morning on checking the CCTV footage installed in front of his house, he saw the accused roaming around and entering his house. He took out the bags from his room and was seen counting the cash stolen from his house. Face of accused was visible in the CCTV footage. On 16.07.2021, when he went to the PS for inquiring about the status of his case, he saw the accused present in the P.S., and he immediately identified the accused as he was the same person as seen in the CCTV footage. Photographs Ex. P1 to Ex. P5, currency notes Ex. P6 (colly) and clothes of accused Ex. P7 (colly) were correctly identified by the witness. Accused was also correctly identified by the witness in Court when he was recalled for examination on 20.05.2023 by virtue of Section 311 CrPC.
5.1. In his cross-examination, witness admitted that the face of the accused in photograph Ex. P-2 is blurred and deposed that he had the CCTV footage and the same was also handed over to the police although the CCTV footage was not placed on record. He denied that face of Digitally signed by UDBHAV FIR No. 177/2021 State vs. Ganesh UDBHAV KUMAR JAINPage no.3 of 11 KUMAR Date:
2023.09.02 JAIN 17:46:07 +0530 accused is not visible in the video. He further deposed that he had not made any initial or identification mark on the cash placed in his house and all the currency notes of Rs. 500/- are identical.
6. Ct. Suresh (PW-2) in his examination-in-chief deposed that on 13.07.2021, he was posted at PS Madhu Vihar, as Constable. On that day, he along with ASI Sunil were searching for accused involved in the present case and when they reached near Manglam Traffic Signal, one secret informer met ASI Sunil who informed him that accused wanted in the present case is presently available at Noida Flyover and he could be apprehended if raided immediately. Thereafter, they immediately reached on the spot where secret informer pointed towards a person Ganesh involved in the present case. The said person was apprehended, and he disclosed that he had committed the offence and transferred/sold the case property to a scrap vendor at Yamuna bridge. Thereafter the accused was arrested, and arrest memo was prepared. His disclosure statement was also recorded. Later, they went to Yamuna bridge along with accused but no one was found there. On 16.07.2021, witness again joined the investigation along with ASI Sunil Kumar and visited Noida Mod for the recovery of cash where the accused got recovered Rs.2,000/- cash which was lying in a polythene bag laying in a garbage dump. Thereafter, the case property was seized vide seizure memo. IO prepared the site plan from where the recovery of the stolen property was made at the instance of accused. The accused was personally searched in his presence by the IO and the personal search memo was prepared. A supplementary disclosure statement of the accused was also recorded. Witness identified the accused correctly in the Court.
6.1. In his cross-examination, witness could not say whether the secret informer had disclosed to the IO details regarding the appearance of the accused. Witness could not remember the time when the secret informer had shared Digitally signed by UDBHAV UDBHAV KUMAR JAIN KUMAR Date:
FIR No. 177/2021 State vs. Ganesh JAIN 2023.09.02 Page no.4 of 11 17:46:18 +0530 the information regarding the presence of accused at Noida Flyover. Witness was not able to tell whether IO made any departure entry while leaving the PS. Witness admitted that IO did not call any public person to join the investigation at the time of recovery and IO did not give any specific identification mark on the currency note recovered from the accused.
7. ASI Sunil Kumar (PW-3) in his examination-in-chief deposed that on 10.07.2021 he was posted at PS Madhu Vihar as ASI and had emergency duty from 8.00 pm to 8.00 am. On 11.07.2021, DD No.14A was marked to him at about 05-5.30 am by the DO for investigation. Thereafter he went to the spot of commission of offence along with Ct. Karan. Upon reaching there he met complainant Virender. Thereafter Crime Team came to the spot and checked the place of incident and gave NIL report as no fingerprint/chance print was found. Thereafter he recorded the statement of complainant and prepared rukka, which he handed over to Ct. Karan at about 12.10 pm for registration of FIR. Thereafter Ct. Karan went to the PS and got the FIR registered. Later, Ct. Karan came back to the spot alongwith the copy of FIR and original rukka and handed over the same to him and he prepared the site plan at the instance of complainant. When witness perused the CCTV footage, he saw that one person was leaving the said house with two bags in his hand. He took the video of the CCTV footage on his mobile phone and showed the same to complainant. On 13.07.2021 he was standing at Mangalam Red Light along with Ct. Suresh when secret informer came and stated that the accused who is wanted in the present case is standing near Akshardham Flyover. When the witness requested 4-5 public persons to join the investigation, they refused citing their genuine problems. Thereafter witness along with Ct. Suresh and informer went to the Akshardham flyover where secret informer pointed towards the accused. Thereafter he with the help of Ct. Suresh apprehended Digitally signed by UDBHAV UDBHAV KUMAR JAIN FIR No. 177/2021 State vs. Ganesh KUMAR Date: Page no.5 of 11 JAIN 2023.09.02 17:46:27 +0530 that person and on asking his name, he stated himself to be Ganesh. Accused Ganesh was arrested as per arrest memo and personally searched as per personal search memo. Disclosure statement of witness was also recorded wherein he disclosed that he had sold the articles stolen from complainant's house to one Guddu Kabadi. When said Guddu Kabadi was not found even after obtaining police custody remand of accused, he informed that due to fear he had stated the name of Guddu Kabadi and also stated that the case property is in his possession, and he had spent some amount. Supplementary disclosure statement of accused was recorded in that regard. Thereafter, accused led them to Noida Mod and beneath the flyover he got recovered one plastic bag from which few documents and four currency notes of denomination of Rs.500/- were recovered. The same was seized vide seizure memo. Thereafter the clothes which accused was seen wearing in the CCTV footage were also recovered. Witness also prepared the site plan of the recovery site. For inquiry of status of his case complainant had visited PS where he saw the accused in the PS and immediately identified him as the same person who was seen in CCTV footage and had committed theft in his house. On 17.07.2021 complainant came to the PS and informed that the jewelry which he had stated to be stolen was not stolen and the same was kept by his daughter-in-law and statement of complainant to that regard was also recorded. After completion of investigation, charge-sheet was prepared and same was filed in the court. Witness identified the accused correctly in the Court.
7.1. In his cross-examination, witness could not tell the exact time when he reached at the spot. Witness admitted that when he along with Ct. Karan reached at the spot, they met the complainant and 10-15 public persons, but he did not record the statement of any public person. Witness also admitted that the face of accused in the photographs Ex. P1 to Ex. P3 is blur. Although witness voluntarily stated that the face of accused is clear in the Digitally signed by UDBHAV UDBHAV KUMAR FIR No. 177/2021 State vs. Ganesh KUMAR JAIN Page no.6 of 11 JAIN Date:
2023.09.02 17:46:36 +0530 CCTV footage, but he admitted that he did not place the CCTV footage of the incident on the record. Witness voluntarily stated that he requested to provide CCTV WiFi Lok Nirman Vibhag vide letter Ex.PW3/X. Witness also admitted that all the currency notes of Rs.500/- are in similar appearance and complainant did not tell him about any specific mark on the currency notes of Rs.500/- for the identification. Witness admitted that the colour of the t-shirt of accused is not visible in the photographs Ex. P1 to Ex. P3.
8. Ct. Karan (PW-4) in his examination-in-chief deposed that on 11.07.2021 he was posted at PS Madhu Vihar as Constable and on 10.07.2021 he was on emergency duty from 8.00 pm to 8.00 am and was present at the PS. One PCR call was received regarding theft at Gali No.9, Chander Vihar, Mandawali, Delhi and he alongwith ASI Sunil Kumar went to spot, where ASI Sunil recorded statement and tahrir of the complainant and handed over the same to him to get FIR registered at the PS. He went to the PS and got the FIR registered and returned to the spot alongwith copy of FIR and original rukka and handed over the same to ASI sunil Kumar. They searched for the stolen property and the accused, but no one was found, and they returned to the PS, where his statement was recorded by ASI Sunil Kumar.
8.1. In his cross-examination, witness could not tell the time when they left the PS to reach the spot and what was the stolen property of the complainant.
9. HC Rakesh (PW-5) brought the Register No. 19 i.e., the Malkhana register of the year 2021 and deposed that on 16.07.2021, ASI Sunil Kumar deposited the case property of the present FIR duly recorded vide Sr. No. 2150/21 in register 19 of Malkhana Register. The photocopy of entry No.2150/21 in register no.19 was taken on record.
UDBHAV Digitally
by UDBHAV
signed
KUMAR KUMAR JAIN
Date: 2023.09.02
JAIN 17:46:52 +0530
FIR No. 177/2021 State vs. Ganesh Page no.7 of 11
10.Thereafter, prosecution evidence (PE) was closed as there was no witness left in PE.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
11.Statement of accused u/s 313 CrPC was recorded after putting all the incriminating evidence before the accused to which he stated that he has not committed any such offence. He used to go daily from that place to nearby mandi and the cash of Rs. 2,000/- was his own. He claimed to be innocent and stated that this is a false case against him. Accused chose not to lead defence evidence.
12.Final submissions from Ld. APP for the State and Ld. Counsel for the accused were heard.
POINT OF DETERMINATION
13.After going through the record and considering the material appearing on record, there are two points of determination:
a. Whether the prosecution has proven the guilt of accused beyond reasonable doubt; and b. Whether accused has committed both or any of the offence under Section 380 IPC or Section 411 IPC.
REASONS FOR DECISION OF THE CASE Offence u/s 380 IPC
14.It is not the case that accused was caught on the spot rather the accused was arrested in the present matter based on a secret information on 13.07.2021. Interestingly, it was only on 16.07.2021 when PW-1 complainant visited the Police Station that he identified the accused based on the clothes he wore as seen in the CCTV footage. It is an admitted fact that the face of accused is blur in photograph Ex. P2. In such situation, the material evidence was the Digitally signed by UDBHAV UDBHAV KUMAR JAIN KUMAR JAIN Date: 2023.09.02 17:47:20 +0530 FIR No. 177/2021 State vs. Ganesh Page no.8 of 11 CCTV footage based on which identity of the accused and presence of accused on the spot was sought to be confirmed by the complainant and IO however, the CCTV footage was not placed on record. Although PW-3 IO in his cross-examination tried to explain the reason for not placing on record the CCTV footage but the reason was not satisfactory. The reason so given seems to be an afterthought covering his own lacunae in not placing the same on record.
15.Further, although complainant as PW-1 deposed that he has the video in his possession and showed the same to defence counsel during his cross-examination but even then, the prosecution did not place the same on record by invoking appropriate provision of law.
16.If for once, it is believed that it is the accused only who is present in the video then PW-3 has deposed that no chance prints were found on the spot by the crime team which creates a doubt on the presence of accused on the spot as even in the photograph it is not visible whether the accused was wearing any gloves. Hence, on the basis of material available on record and testimony of all the witness, commission of alleged offence u/s 380 IPC by the accused is doubtful and is not proved beyond reasonable doubt.
Offence u/s 411 IPC
17.As regards the offence u/s 411 IPC, PW-3 deposed that after accused was arrested he got recovered the case property. If the seizure memo Ex. PW2/C is seen, then only four currency notes of Rs. 500/- were recovered from the possession of accused. It is an admitted fact that there was no initials or identification marks on the currency notes stolen from the house of complainant. Nothing else was recovered from the possession of accused belonging to the complainant. It cannot be held without conviction that the currency notes so recovered Digitally signed UDBHAV by UDBHAV FIR No. 177/2021 State vs. Ganesh KUMAR JAIN KUMAR Date: Page no.9 of 11 JAIN 2023.09.02 17:47:34 +0530 from the possession of accused as per his disclosure belonged to the complainant. Had there been some other document recovered, as informed by complainant to be stolen, the case would have been different. That, however, is not the case. Therefore, even for the offence u/s 411 IPC there is no cogent evidence on record against the accused which proves the guilt of accused beyond reasonable doubt.
18.Furthermore, it has been held by Hon'ble Supreme Court in Dr. S.L Goswami vs. State of Madhya Pradesh 197 SCC (Crl.) 258 that the accused person is entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution. In the present case, as already noted above, the prosecution could not discharge the onus proving the ingredients as well as commission of offence and thus, the accused is entitled to benefit of doubt. The same view was reiterated by the Hon'ble Apex Court recently in Nanjundappa & Anr. Vs. The State of Karnataka 2022 SCC OnLine SC 628.
19.In view of the above discussion, accused Ganesh is hereby found not guilty as prosecution has failed to prove the guilt of accused beyond reasonable doubt. Accused Ganesh S/o Sh. Rameshwar is hereby acquitted of the offences under section 380/411 IPC.
File be consigned to record room after due compliance.
Announced in open court today i.e., 02.09.2023.
Digitally signedUDBHAV by UDBHAV KUMAR JAIN KUMAR Date:
JAIN 2023.09.02 17:47:42 +0530 (UDBHAV KUMAR JAIN) MM-04:SHD:KKD This judgment contains 11 pages all signed by the presiding officer.
FIR No. 177/2021 State vs. Ganesh Page no.10 of 11