Delhi District Court
State vs . : Rajbir on 26 August, 2011
IN THE COURT OF SH. CHANDER JIT SINGH : MM: ROHINI : DELHI
State Vs. : Rajbir
FIR No. : 49/95
U/s : 447/380/411 IPC
PS : SP Badli
JUDGEMENT
A. Sl. No. of the case 157/2
B. Offence complained of
or proved U/s 447/380/411/34 IPC
C. Date of Offence 31.01.1995
D. Name of the complainant Shri Raj Sharma
S/o Late Sh.Moti Ram Sharma
R/o House No. C-3/45, Ashok Vihar,
IInd Phase, Delhi.
E. Name of the accused Rajbir Singh
S/o Sh. Ram Sanehi
R/o Village Tikait Pura,
PS Raja ka Rampur,
Distt. Etah, UP.
F. Plea of the accused Pleaded not guilty.
G. Final order Acquitted
H. Date of Order 26.08.2011
Brief reasons for the decision:
1. The accused has been forwarded for trial of offences under Section FIR No. 49/95 State Vs. Rajbir 1of 7 447/380/411/34 IPC. The brief facts of the prosecution case are that between the period 26.01.1995 to 31.01.1995 the godown in the house of complainant Randhir Singh at House No.7, Teacher's Colony, Samay Pur was broken upon and 235 bags of plastic dana were stolen by the accused. The complainant lodged his complaint with PS, Samay Pur Badli. On the basis of which the FIR was registered. The IO initiated the investigation who prepared the site plan and later accused Mohd. Akil, Surender, Saraf Raj, Mazhar Hussain and Rajbir were arrested, who disclosed about the commission of the offence disclosing that 100 bags of the stolen property had been sold to Ishwar Sharma while 50 bags were sold to Ramesh Chand. Both the said persons were also arrested and the said case property was recovered from their premises. Accused Saraf Raj and Surender got recovered 17 stolen bags from Jhuggi No. 279, Shahbad Dairy from their joint possession while Mazbar Hussain and Rajbir got recovered 18 such bags from their house No. 893 Shahbad village from their joint possession. The case property was seized and after completion of investigation the challan was filed.
2. On appearance, all the accused persons were supplied with the copies under Section 207 Cr.PC. Thereafter accused Surender Kumar S/o Jagdish FIR No. 49/95 State Vs. Rajbir 2of 7 expired and the case was abated against him. Since prima-facie was made out against the accused Mohd. Akil, Saraf Raj, Surender S/o Rajesh, Mazhar Hussain and Rajbir were charged for the offence under Section 380/34 IPC and 447/34 IPC also. Accused Ishwar Sharma, Surender Kumar S/o Jagish and Suresh Chand and Ramesh Chand were all charged for the offence under Section 411/34 IPC. All the said accused persons pleaded not guilty to the said charges and claimed trial.
3. The prosecution has examined six witnesses to prove its case. HC Vidya was examined as PW-1 who proved the fact of registration of FIR and copy of same as Ex.PW-1/A. He was not cross examined despite opportunity. HC Rishi Pal was examined as PW-2 whose examination-in-chief was deferred for the want of case property. Om Prakash was examined as PW-3 who deposed that on intervening night of 04.10.1994 and 12.10.1994, 150 bags were stolen from his godown. Police came after 3-4 months alongwith 4 accused persons to his factory who pointed the place from where they had stolen 150 bags of plastic dana. Two bags were recovered at the instance of accused Sat Pal. He proved memo as Ex.P1. He was duly cross examined wherein, inter-alia, he stated that case property was not recovered from accused in his presence. Retired SI Virender Singh was FIR No. 49/95 State Vs. Rajbir 3of 7 examined as PW-4. He deposed that Mohd. Akil was arrested and his disclosure statement was recorded. After that, Ishwar Sharma, Suresh, Surender and Hari Om was arrested at his instance. 50 kattas were recovered at the instance of these four accused persons. After that, Saraf Raj was also arrested at the instance of Mohd. Akil. At instance of Saraf Raj, Babloo @ Mohd. Hussain was arrested and at their disclosure, 17 kattas were recovered from house of Saraf Raj. 17 kattas were recovered at the instance of Saraf Raj and Surender. Later, Ramesh was arrested and at his instance 50 kattas were recovered. 18 kattas were recovered at the instance of Rajbir, Surender, Saraf Raj and Babloo @ Mohd. Hussain. He was not cross examined despite opportunity. HC Dilbagh Singh was examined as PW-5. He deposed that on 31.01.1995, vide Entry No.1425 case property was deposited and copy of same is Ex.PW-5/A. He was also not cross examined despite opportunity. Ct. Rajender was examined as PW-6 who deposed on the lines of prosecution and his examination was deferred for the want of case property. No other PW was examined.
5. After conclusion of evidence, statement of accused was recorded under Section 313 Cr. PC wherein accused pleaded innocence and stated that he has been falsely implicated in the present case, however, he FIR No. 49/95 State Vs. Rajbir 4of 7 preferred not to lead any DE.
6. I have heard the rival contentions of both the parties and carefully perused the record. Against accused Rajbir 3 allegations have been made. Firstly, under Section 447/34 IPC. Secondly, under Section 380/34 IPC and thirdly, retaining 18 bags alongwith accused Mohd. Hussain. Evidence is evaluated for charge under Section 447/34 IPC and under Section 380/34 separately and for retaining 18 bags alongwith Mohd. Hussain separately. Section 447 IPC reads Punishment for criminal trespass as Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both and Section 380 reads Theft in dwelling house, etc, as Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. To prove charge under these offences, no eye witness is produced to prove the fact of commission of theft and house trespass by accused Rajbir. Even in the chargesheet it is mentioned that complainant has hold these unknown persons broke the lock and FIR No. 49/95 State Vs. Rajbir 5of 7 committed theft. PW-3 has identified the accused Rajbir in Court and has also submitted that 4 persons came with police and pointed the place of theft in factory but IO has not mentioned the accused Rajbir as one of those person who pointed out the place of theft. Otherwise also, no witness has been examined deposing have seen committing the offence of house trespass and theft nor the circumstantial evidence is adduced pointing to hypothesis of guilt of accused only and none else. Therefore, prosecution could not prove its case qua charge under Section 447/34 IPC and 380/34 IPC.
Regarding recovery and retaining of 18 bags by accused Rajbir alongwith Saraf Raj, only testimony of PW-4 and PW-6 is on record. Testimony of PW-6 cannot be read as it is not complete. PW-4, IO in this case, has deposed that 18 kattas were recovered at the instance of Rajbir, Surender, Saraf Raj and Babloo. The fact of seizure of the property was never proved. The bags were recovered from village Shahbad which means that it is residential area but there is not even whisper about the fact public person even asked to join the recovery or proceedings. Further, since seizure is neither stated to be prepared nor has been proved, it is not clear that whether the property so recovered was sealed or not. The accumulative effect of evaluation of the evidence adduced by prosecution, FIR No. 49/95 State Vs. Rajbir 6of 7 in light of above discussion, is that the allegation of recovery of 18 bags from Rajbir alongwith other accused (already acquitted) remains doubtful and could not be proved beyond reasonable doubt. Hence, extending the benefit of doubt to accused, he is acquitted of the offence under Section 447/34, 380/34 and recovery of 18 bags.
Announced in open Court (Chander Jit Singh)
on this day of 26th August, 2011 Metropolitan Magistrate
Rohini Courts, Delhi
FIR No. 49/95 State Vs. Rajbir 7of 7