Delhi District Court
State vs . Ram Pal Singh on 22 January, 2015
IN THE COURT OF SH. TARUN YOGESH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
State Vs. Ram Pal Singh
FIR No: 112/08
PS: Saket
U/s: 381 & 174A IPC
JUDGMENT
1. S. No. / ID No. of the Case : 3RO274592010
2. Date of Commission of Offence : Intervening night of 1112.12.2008
3. Date of institution of the case : 07.08.2010
4. Name of the complainant : Sh. Laurent Guiraud,
General Manager,
Manre Restaurant, MGF Mall,
Saket, New Delhi.
5. Name of accused, parentage : Ram Pal Singh
S/o Sh. Gopi Singh
R/o Vill Nagnla Devi, PS Onchha
Dist. Mainpuri, U.P.
6. Offence complained or proved : U/s 381 & 174A IPC
7. Plea of Accused : Pleaded Not Guilty.
FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 1 of 13
8. Final Order : Convicted U/s 174A IPC.
9. Date of Final Order : 22.01.2015
BRIEF REASONS FOR SUCH DECISION :
01. Accused Ram Pal Singh S/o Sh. Gopi Singh has been charged for offence U/s 381 IPC upon allegation of having committed theft of cash Rs. 4,57,000/ kept in the safe of Manre Restaurant, MGF, Metropolitan Mall, Saket, New Delhi in the intervening night of 11/12.12.2008. Additionally, he has been also charged for offence U/s 174A IPC, having been declared absconder on 28.06.2010, upon his failure to appear in court despite execution of proceedings U/s 82 & 83 Cr.P.C.
02. Prosecution's case in brief reveals that a written complaint dated 13.12.2008 of Sh. Laurent Guiraud, General Manager, Manre Restaurant, addressed to SHO, PS Saket was received wherein he alleged about theft of Rs. 4,57,000/ kept in safe make "SAFE WELL Model EQK25" operated with digital coded keyboard. Besides other informations, names and addresses of guards on duty in the night of 11/12.12.2008 was also mentioned in the complaint. SI Praveen Kumar (IO) made his endorsement upon the complaint and FIR for FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 2 of 13 offence U/s 381 IPC was got registered.
03. During investigation, SI Praveen Kumar (IO) prepared site plan at the instance of complainant and recorded statements U/s 161 Cr.PC of witnesses. Duty (attendance) register, photocopy of application of accused for seeking employment and sale details of 11.12.2008 were collected, but accused was not found. NBW against accused Ram Pal Singh was obtained from court on 03.09.2009, but he continued to evade his arrest and also failed to appear in court despite execution of proclamation U/s 82 Cr.P.C at his native village. Finally, process U/s 83 Cr. PC for attaching agricultural land of accused was obtained from court which was executed through District Magistrate, Mainpuri, UP and his share of agricultural land in joint family property bearing khata khatauni, serial no. 00052, khasra No. 33, 43, 214, 215 was attached through tehsildar, Mainpuri, UP. After conclusion of investigation, chargesheet for offence U/s 381 IPC was prepared and filed in court on 07.08.2010 mentioning the accused as proclaimed person (absconder).
04. Cognizance of offence U/s 381 IPC was taken by court and matter was adjourned for recording PE U/s 299 Cr.P.C. Accused Ram Pal Singh was however arrested upon kalandara U/s 41.1 Cr.P.C on 27.04.2011, produced in court and thereafter admitted to bail on 05.05.2011. Supplementary charge FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 3 of 13 sheet against accused for offence U/s 174A IPC was filed on 30.07.2011 and after compliance of section 207 Cr.P.C., accused was charged for offences U/s 381 & 174A IPC on 09.07.2012 to which he pleaded not guilty and claimed trial.
05. Prosecution has adduced its evidence by examining complainant Sh. Laurent Guiraud, General Manager, Manre Restaurant as PW01. Police witnesses namely ASI Ravinder Singh, HC Vikram Singh and SI Virender Singh have testified as PW02, PW03 and PW04 and Inspector Praveen Kumar (IO) has deposed as PW05. Accused Ram Pal Singh was called upon to admit documents mentioned in the list filed by prosecution U/s 294 Cr.P.C. and did not dispute attachment proceedings of tehsildar, Mainpuri, UP and statement of Sh. Virender Kumar S/o Sh. S.R. Chaudhary, Liaison Officer, Manre Restaurant regarding seizure of Duty (attendance) register, photocopy of his application for employment and sale details of 11.12.2008
06. After closure of prosecution evidence, accused was examined under section 313 Cr.P.C. and despite admitting his employment as guard at Manre Restaurant, MGF, Metropolitan Mall, Saket, he could not remember being on duty in the intervening night of 11/12.12.2008. Accused also denied the allegation of theft of Rs. 4,57,000/ and disputed the testimony of complainant Sh. Laurent Guiraud besides declining to comment upon depositions of police FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 4 of 13 witnesses in respect of proceedings U/s 82 and 83 Cr.P.C. for want of knowledge.
07. Final arguments were addressed by Ld. APP for State and Adv. Sh. S. S. Yadav, ld. defence counsel for accused.
08. Ld. APP for the State has adverted to testimonies of complainant Sh. Laurent Guiraud (PW01) and IO / Insp. Praveen Kumar (PW05) for seeking conviction of accused for offence U/s 381 IPC. He has similarly alluded to testimonies of PW02, PW03 & PW04 besides referring to the statement of accused recorded U/s 294 Cr.P.C. for seeking his conviction for offence U/s 174 A IPC.
09. Ld. defence counsel Sh. S. S. Yadav per contra has argued for acquittal of accused by adverting to crossexamination of PW01 wherein complainant has admitted to have checked the CCTV footage, but did not see accused taking out the cashbox. Ld. defence counsel has also drawn court's attention to the crossexamination of Insp. Praveen Kumar (PW05) wherein IO has testified of neither being sure about the weight of 'safe' nor could he remember of having taken any photograph of the place or whether the 'safe' was attached / bolted to any permanent fixture. As regards offence U/s 174A IPC, ld. defence counsel has alluded to order dated 21.12.2011 of the court for FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 5 of 13 contending that since accused had no knowledge about proclamation & attachment proceedings, hence he could not appear in court.
10. Having heard their rival submissions, it would be prudent to advert to testimonies of witnesses examined on judicial record for adjudicating upon the guilt or innocence of accused.
11. Complainant Sh. Laurent Guiraud in his deposition recorded during his examinationinchief has testified to have worked as General Manager, Manre Restaurant, MGF Mall, Saket since four and a half years before the incident. He has also deposed of being informed about theft of 'safe' by his employee in the morning of 12.12.2008 and to have reached the restaurant to find the cabin of cashier open and 'cashsafe' fixed in wooden cabinet missing. Upon inquiry, Rs. 4.75 lakhs/ (Rs.4,57,000/ as per the case of prosecution) was found missing and the other guard on duty informed that accused Ram Pal Singh had left at around 5:005:30 AM. Thereafter, a complaint in writing was given to police which is Ex. PW 1/A and police inquired from him during investigation. Complainant has correctly identified accused Ram Pal Singh as the guard on duty on the fateful night who had gone missing.
12. However, upon being subjected to crossexamination, complainant (PW01) claimed to have called police on 12.12.2008 and could not remember FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 6 of 13 the name of the employee who had called him from restaurant for informing about theft. He also admitted that 'cashsafe' was having digital lock and deposed about its being installed in wooden cabinet. Complainant Sh. Laurent Guiraud also testified to have checked the CCTV footage and found that though accused Ram Pal Singh could be seen moving, but there was no picture of his taking out any cashbox.
13. The other witness of offence U/s 381 IPC is IO / Insp. Praveen Kumar (PW05) who has deposed of having received complaint regarding theft of safe containing Rs. 4,57,000/ on 13.12.2008 and proved his endorsement / 'rukka' as Ex. PW 5/A. Siteplan has been proved as Ex. PW 5/B and seizure memo of 'Dutyregister', photocopy of application for employment and sale details of 11.12.2008 have been proved as Ex. PW 5/C. However, during his crossexamination by defence, IO admitted of being not sure about the weight of the safe and could not remember of having taken any photograph of the place from where the safe was stolen.
14. However, except for his attendance on duty on 11.12.2008, recorded in the 'Duty Register' of Manre Restaurant at serial no. 3 against his signature, no direct incriminating evidence has been led against accused on judicial record so as to prove theft of 'cashsafe' from Manre Restaurant.
FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 7 of 13 Testimony of PW01 Sh. Laurent Guiraud (complainant) is inadmissible in evidence being 'hearsay' as it is based upon information revealed to him by some other employee whose name he could not recollect during his cross examination and further he has admitted of having not seen accused carrying any cashbox in the CCTV footage. Investigation conducted by SI Praveen Kumar (IO) is too pathetic to say the least as he has neither got any chanceprint lifted from the spot of crime nor taken any photograph of the place from where the 'safe' was stolen. Therefore, in the absence of any direct evidence or testimonies of other guards, on duty, whose presence could not be secured despite direction for effecting service of process through DCP, South District, no incriminating evidence regarding theft of 'cashsafe' by accused has been led on judicial record so as to bring home guilt of accused Ram Pal Singh for offence U/s 381 IPC. Accordingly, in the absence of any evidence of theft of 'cashsafe' from Manre Restaurant, MGF Mall, Saket, accused Ram Pal Singh stands acquitted for offence U/s 381 IPC.
15. As regards offence U/s 174A IPC, ASI Ravinder Singh (PW02) has deposed of having visited village Nangla Devi, PS Oncha, Dist Mainpuri, UP on 21.01.2010 where he was informed about agricultural land of accused from the office of Tehsildar, Dist Mainpuri, UP. He has further deposed to have FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 8 of 13 obtained process U/s 83 Cr.P.C. which he handed over to concerned District Magistrate and the process was executed through tehsildar, Mainpuri by attaching the agricultural land in the name of accused. Copy of proceedings U/s 83 Cr.P.C. have been referred as Ex. CW 2/A and his report upon process U/s 83 Cr.P.C. has been proved as Ex. CW 2/B. PW02 was subjected to cross examination by defence and testified to have made his departure and arrival entry at local police station, Oncha besides denying the suggestion of having never visited the house of accused.
16. HC Vikram Singh (PW 03) and SI Virender Singh (PW04) are formal witness who have deposed to have apprehended accused Ram Pal Singh on 27.04.2011 and have proved kalandara U/s 41.1 Cr.P.C. as Ex. PW 3/A. Arrest memos, personal search memo, disclosure statement and pointing out memo have been proved as Ex. PW 3/B to Ex. PW 3/F and both witnesses have further deposed to have gone to the house of accused at villageNangala Devi, PS Onchha, Dist Mainpuri, during his one day police custody, but no recovery could be effected from his house. During their crossexamination, both police witnesses have denied the suggestion of having not visited house of accused.
17. Though, defence has contended of having no knowledge about proclamation & attachment proceedings, but, record keeper, DistMainpuri Tehsil FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 9 of 13 was dropped from the list of witnesses upon statement of accused recorded U/s 294 Cr.P.C. as he did not dispute the authenticity of report. Copy of execution proceedings filed in court have been proved by ASI Ravinder Singh (PW02) as Ex. CW 2/A and the testimony of witness has remained unscathed despite being subjected to crossexamination by ld. defence counsel. Statement of Ct. Ram Avtar qua proclamation U/s 82 Cr.P.C. was recorded on 28.06.2010 and his report has been proved as Ex. CW 1/A. Accused Ram Pal Singh was declared absconder (proclaimed person) by court vide order dated 28.06.2010 upon statement of Ct. Ram Avtar and DD entry recorded at PS Onchha, Dist Mainpuri.
18. Therefore, considering the statement of processserver Ct. Ram Avtar and deposition of ASI Ravinder Singh (PW02) who has proved execution proceedings U/s 83 Cr.P.C. as Ex. PW 2/A, prosecution has successfully proved its allegation qua offence U/s 174A IPC against accused Ram Pal Singh as he failed to appear in court on 07.11.2009 and thereafter despite execution of proclamation U/s 82 Cr.P.C. on 05.10.2009 and proceeding U/s 83 Cr.P.C. being executed by tehsildar for attaching his share of agricultural land in joint family property.
19. Though, Adv. Sh. S. S. Yadav has adverted to order dated FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 10 of 13 21.12.2011 for submitting about satisfaction of court regarding accused having not deliberately evaded execution of warrant and having no knowledge about proclamation proceedings. However, such observation of court recorded in its order dated 21.12.2011 has to be read in the limited context of disposal of application for restoration of property as no trial for offence U/s 174A IPC had ensued and no evidence was led on record by prosecution, so as to record any such observation. The submissions of ld. defence counsel does not satisfy the court as accused has maintained stoic silence regarding proclamation and attachment proceedings by claiming ignorance about any such proceedings. However his silence does not cut any ice as accused has failed to lead any defence evidence in support of his contention of being employed with Shift Marshal Security Service, Kanpur, UP. The fact of his employment at Kanpur being especially within his knowledge, burden of proving his employment with Shift Marshal Security Service, Kanpur, UP, lies upon accused which he has failed to discharge as per section 106 of Indian Evidence Act, 1872.
20. It is also pertinent to note that statement of Sh. Rajender Singh (elder brother of accused) was recorded by police during course of investigation wherein the brother claimed that accused and his family members were not present in his house and would be informed upon his return. Therefore, FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 11 of 13 considering that share of accused in joint agricultural land with his siblings was attached U/s 83 Cr.P.C. by court's order, yet accused did not appear in court himself, but was produced subsequent to his arrest by police upon kalandara U/s 41.1 Cr.P.C., his application for seeking restoration of attached property cannot be cited as defence on the ground of ignorance about proclamation and attachment proceedings. At this stage, it is necessary to refer to the conduct of accused Ram Pal Singh for adjudicating upon his guilt for offence U/s 174A IPC. Illustration (i) of Section 8 of Indian Evidence Act, 1872 is reproduced below for reference : Illustration (i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession of property of the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.
21. Therefore, considering execution of proclamation U/s 82 Cr.P.C. on 05.10.2009, attachment of his share in joint agricultural land U/s 83 Cr.P.C. and accused Ram Pal Singh being declared absconder by court on 28.06.2010, prosecution has successfully proved its allegation against accused for offence U/s 174A IPC. Accused Ram Pal Singh S/o Sh. Gopi Singh therefore stands FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 12 of 13 convicted for offence U/s 174A IPC.
22. Matter be now listed on 27.01.2015 for submissions and order on question of sentence.
ANNOUNCED IN THE OPEN COURT DATED: 22nd January, 2015 (TARUN YOGESH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI FIR No. 112/08 , PS Saket State Vs. Ram Pal Singh 13 of 13