Delhi District Court
State vs . Suraj & Ors on 6 March, 2020
IN THE COURT OF
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(WEST DISTT), TIS HAZARI COURTS, DELHI
PRESIDING OFFICER: NEHA, DJS.
IN THE MATTER OF :
State Vs. Suraj & Ors
FIR No. 137/2018
PS Patel Nagar
U/s. 380/411/34 IPC
Date of Institution of Case : 20.07.2018
Date reserved for Judgment : 04.03.2020
Date of Judgment : 06.03.2020
JUDGMENT :
a) Date of offence 13.05.2018 b) Offence complained of 380/411/34 IPC c) Name of complainant Ms. Meenakshi d) Name of accused 1)Suraj their parentage and residence s/o. Late Sh Babu Lal r/o. H. No. A69 Baba Faridpuri Delhi 2) Aslam s/o. Sh Md Nizam r/o. H NO I8, Gali No 22 Baljeet Nagar Delhi. 3)Ajay Patwa s/o. Sh Lakhan Patwa r/o. Vegabond Delhi FIR No. 137 of 2018 State Vs. Suraj & Ors PS Patel Nagar Page No. 1 of 9 4)Rajender s/o. Sh Mangal Ram r/o. WZ110 DDA Flats Dashghara, PS Inderpuri Delhi e)Offence charged 411/414/34 IPC f)Plea of accused Not guilty g)Final order Acquitted Counsels for the Parties: Sh. Piyush Bhadu, Ld. APP for the State.
Sh Nitin Arora, Ld Legal Aid Counsel for all the accused.
BRIEF FACTS AND REASONS FOR DECISION:
1. Accused namely Suraj, Aslam, Ajay Patwa and Rajender have been chargesheeted for committing offences punishable under Section 380/411/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). Brief allegations of the prosecution are that on 13.05.2018, the complainant alongwith her friend Siba had gone to sleep at about 3.00 AM after filling water without locking the door.
When they woke up in the morning, they found that one laptop of DELL, 4 wrist watches, mobile phone Mi3 and cash Rs. 1500/ missing. The complainant called at 100 number and lodged her complaint.
2. On the basis of the complaint, the present FIR was registered. After registration of the FIR, accused Suraj, Aslam, Ajay Patwa and FIR No. 137 of 2018 State Vs. Suraj & Ors PS Patel Nagar Page No. 2 of 9 Rajender were arrested and they allegedly got recovered the stolen articles. After the completion of the investigation, charge sheet for offences punishable u/s. 380/411/34 IPC was filed against accused Suraj, Aslam, Ajay Patwa and Rajender. Cognizance of the offence was taken and the accused persons were summoned. Copy of charge sheet was supplied to the accused persons.
3. After hearing the parties, charge for the offence punishable u/s. 411 IPC was framed against accused Aslam and Rajender and separate charge for offence punishable u/s. 414/34 was framed against against accused Suraj and Ajay Patwa to which they pleaded not guilty and claimed trial.
4. Prosecution witnesses have been summoned for evidence and 5 prosecution witnesses have been examined to prove the case of the prosecution against the accused persons.
5. PW1 Ms Meeakshi Sharma is the complainant. She has deposed that on 13.05.2018, she and her friend Siba Nizam went to sleep at about 3.00 AM without locking the main door as they forgot to do it. When they woke up in the morning, they noticed that one laptop of DELL; 4 watches; one mobile phone of Mi3 and cash Rs. 1500/ were missing from the room. She called at 100 number. She narrated the incident and her statement Ex. PW1/A was recorded. IO prepared site plan Ex. PW1/B at her instance. She handed over the FIR No. 137 of 2018 State Vs. Suraj & Ors PS Patel Nagar Page No. 3 of 9 bills of the stolen articles to the IO. After sometime, the police officials informed about recovery of the stolen articles .i.e Dell Laptop and one Titan Fossil Watch which she got released.
6. PW2 Ms Siba Nizam is the friend of the complainant. She has deposed on the lines of PW1.
7. PW3 ASI Noor Hassan is the IO of the case. He has deposed that on 13.05.2018, the investigation of the case was marked to him. He prepared the site plan at the instance of the complainant. He made efforts to search the accused persons and the stolen articles but in vain. Thereafter on 18.05.2018, SI Satbir informed him regarding arrest of the accused persons in FIR No 108/18 and their involvement in present case. On 20.05.2018, accused Suraj, Ajay Patwwa and Aslam were arrested vide Ex. PW3/A to Ex. PW3/C. The disclosure statement of accused persons Ex. PW3/D to Ex. PW3/F was also recorded in which they disclosed about having committed theft at the place of the complainant with other accused namely Rajender. He prepared pointing out memo of the house of complainant at instance of accused Ajay, Suraj and Aslam which is Ex. PW3/G.
8. PW3 has further deposed that on 22.05.2018, accused Rajender was arrested from near Pusa Chambry vide Ex. PW3/H at the instance of the accused persons. Disclosure statement of Rajender was recorded which is Ex. PW3/J. Thereafter, 2 laptop of DELL; 3 mobile phones(i FIR No. 137 of 2018 State Vs. Suraj & Ors PS Patel Nagar Page No. 4 of 9 phone, 4S, Motorola); one laptop charger were recovered at the instance of the accused persons from near Pusa Chambry beneath the bedding where the accused persons used to live. The articles were seized vide Ex. PW3/K. Thereafter, the case property was deposited in the malkhana and the accused persons were sent to JC. Some stolen articles were recovered by SI Satbir.
9. PW4 Ct Amit Kumar is the police official who has joined the investigation with PW3/IO.
10. PW5 SI Satyabir Singh is the IO of the FIR NO 108/18. He has deposed that on 18.05.2018, accused Suraj was arrested in FIR NO 108/18 and he disclosed involvement in this case. His disclosure Ex. PW5/A was recorded. He also got arrested accused Ajay Patwa and Ajay Patwa also disclosed involvement in theft. His disclosure Ex. PW5/B was recorded. Thereafter at the instance of accused Suraj and Ajay Patwa, accused Aslam was apprehended and some stolen articles were recovered from his room which was seized vide Mark X. The recovery site plan Ex. PW5/C was also prepared. Disclosure statement of Aslam Ex. PW5/D was recorded. Thereafter the IO of the present case arrested Rajender and recovered some stolen articles.
11. All the witnesses were cross examined. PE was closed vide order dated 25.02.2020. Thereafter, the accused persons were examined under Section 313 Cr.P.C. read with section 281 Cr.P.C, FIR No. 137 of 2018 State Vs. Suraj & Ors PS Patel Nagar Page No. 5 of 9 wherein they denied all the incriminating evidence against them. The accused persons chose not to lead evidence in their defence.
12. Final arguments were addressed on behalf of Ld. Legal Aid Counsel and Ld. APP for the State.
13. Ld. APP for the State has argued that the prosecution has been able to prove its case beyond reasonable doubt. The prosecution witnesses have proved that the accused persons had committed theft of the articles and they deliberately concealed the stolen articles and some of the stolen articles were recovered at the instance of the accused persons. It is further argued that the prosecution has proved beyond reasonable doubt that the accused persons had committed the offences with which they have been charged.
14. Per Contra Ld. Legal Aid Counsel for the accused has argued that the prosecution has failed to prove its case beyond reasonable doubts. It is also argued that no independent/ public witness was joined in the investigation of this case and the factum of recovery is doubtful. It is also argued that the prosecution has miserably failed to prove its case against the accused persons and the accused may be acquitted.
15. This court has considered the submissions of Ld counsel(s) for the parties and perused the record.
FIR No. 137 of 2018 State Vs. Suraj & Ors PS Patel Nagar Page No. 6 of 9
16. The prosecution has alleged that accused Suraj and Ajay had concealed the stolen articles. Admitted no stolen article involved in this case was recovered from accused Suraj or Ajay Patwa. None of the witness examined by the prosecution has deposed that the accused person had concealed any stolen articles.
17. The prosecution has further alleged that accused Aslam and Rajender were found in possession of stolen articles.
18. The recovery allegedly effected from Aslam was made by SI Satyaveer Singh during proceedings of FIR no. 145/18. Perusal of the record would show that the original seizure memo has not been placed on record. The photocopy of the seizure memo is not admissible in evidence.
19. The record would further show that no sincere effort was made by the police officials to join public persons in the recovery proceedings. PW3 ASI Noor Hasan has deposed that no public person or complainant were joined at the time of recovery of the alleged stolen articles. He has also admitted that place of recovery is a public place where usually public persons could be found. PW4 Ct. Amit has also admitted in the cross examination that no public person was asked by the IO to join the investigation. PW5 SI Satyaveer has also admitted that at the time of recovery from the house of accused Aslam, they did not ask his neighbours to join the investigation FIR No. 137 of 2018 State Vs. Suraj & Ors PS Patel Nagar Page No. 7 of 9 proceedings and no independent public person was cited as witness.
20. It is settled position of law that where public witnesses are available easily and they are not joined without any justified reason, the statement of police witnesses only cannot be relied upon.
21. In the matter of Anoop Joshi Vs. State, 1992(2) C.C. Cases 314(HC) Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
22. In the present case, the testimonies of prosecution witnesses is clear that no effort was made to join public witnesses in the recovery proceedings. There was sufficient opportunity to the IO to join public witnesses/ landlord / family members in the recovery proceedings. Therefore, adverse inference is to be drawn against the case of the prosecution.
FIR No. 137 of 2018 State Vs. Suraj & Ors PS Patel Nagar Page No. 8 of 9
23. In the light of the discussion hereinabove, this Court holds that that reasonable doubts have been raised by the defence on the case of the prosecution. The state has failed to prove its case beyond reasonable doubts. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out. The accused are therefore entitled to the benefit of reasonable doubts. The Digitally accused are hereby acquitted. signed by NEHA NEHA Date:
2020.03.06 16:26:14 NEHA +0530 ACMM(W):THC: DELHI Pronounced in the open court today on 6th of March, 2020 FIR No. 137 of 2018 State Vs. Suraj & Ors PS Patel Nagar Page No. 9 of 9