Delhi District Court
State vs . Tek Chand Etc. on 8 November, 2017
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
UID No.58011/2016
FIR No. 375/2005
U/S 395/411/34 IPC
P S Nangloi
State Vs. Tek Chand Etc.
J U D G M E N T
1 Sl. No. of the case 58011/2016
2 Date of Committal to Sessions 07.10.2014
3 Name of the complainant Sh. Hans Raj Chaudhary
4 Date of commission of offence 20.04.2005
5 Name and Parentage of 1. Balwan Singh S/o Sh. Ran
accused Singh, R/o House no. 594,
Village Mundka, Delhi
2. Tejbir S/o Shri Krishan R/o D
80, Friends Enclave, Mundka,
Delhi. (abated)
3. Tek Chand S/o Sh.Ram Babu
R/oB241, Prem Nagar, Nangloi,
Delhi.
4. Raj Kumar S/o Lallan Parsad
R/o Village Usina Raga, P S
Vaishali, P O Baluika Ram,
District Vaishali, Bihar. (abated)
5. Ashok S/o Sh. Hem Chand
R/o Village & Post Office
Jharoda, Teh. Bahadurgarh,
District Jhajjar, Haryana
FIR no.58011/16 State Vs Tek Chand Etc 1 of 21
(abated)
6. Parmod S/o Sh. Nain Singh
R/o S238, Prem NagarII,
Kiirari Suleman, Delhi. (abated)
7. Bir Pal S/o Sohan Pal R/o
House no. 332, Ghevra Village,
opposite FCI Godown, New
Delhi.
6 Offence complained of U/s 395/411/34 IPC
7 Offence charged U/s 395/411/34 IPC
8 Plea of guilt Pleaded not guilty and claimed
trial
9 Final order Acquitted
10 Date on which order reserved 08.11.2017
11 Date on which order 08.11.2017
announced
STORY OF PROSECUTION
1.The present FIR bearing no. 375/05 was registered in the Police Station Nangloi for commission of the offence punishable under Sections 458/380/34 IPC. The FIR was got registered on the complaint lodged by complainant Sh. Hans Raj Chaudhary, owner of godown. It is alleged by the complainant that he is having an Iron/Steel/goods godown in the name of FIR no.58011/16 State Vs Tek Chand Etc 2 of 21 New Capital Tradman, plot no. 558, Mundka, Delhi. It is alleged by the complainant that the watchman/guard Sh. Harinder Parsad deputed on the said godown was attacked at 2.30 AM by 5/6 persons in 20042005. It is alleged that the said 5/6 persons have beaten the guard Sh. Harinder Parsad and ran away after committing the theft of 125 alloy steel pipes and one generator in Tempo TATA 407.
2. The police after registration of the case conducted the investigation. The accused persons were arrested in another case FIR no. 680/05, under Section 399/402 IPC and 25 Arms Act, PS Nangloi, Delhi on 09.07.2005. Thereafter, on the basis of the disclosure statement of the accused persons in the said case, regarding the commission of the offence in present case, the investigating officer has arrested all of them. A part of the stolen case property was got recovered at the instance of the accused persons from the shop of a Kabadiwala namely Veerpal. The remaining case property could not be found.
3. The police after completion of the investigation filed the FIR no.58011/16 State Vs Tek Chand Etc 3 of 21 chargesheet.
4. It is pertinent to mention that during the proceedings accused persons Ashok, Tejbir, Raj Kumar and Parmod have expired and proceedings stands abated against them.
5. It is also pertinent to mention that prosecution has filed the chargesheet for commission of the offence punishable under Section 458/380/411/34 IPC. However, the concerned Ld. Metropolitan Magistrate at the time of arguments on the point of charge has observed that there is enough material against accused Tek Chand and Parmod for the commission of the offence punishable under Section 395/34 IPC. Therefore, the case was committed to the Sessions Court for trial.
6. On 09.02.2017, the charge for the commission of the offence punishable under Section 395/34 IPC was framed against accused Tek Chand and Parmod, to which they pleaded not guilty and claimed trial. Charge for the commission of the offence punishable under Section 411/34 IPC was framed upon the accused Tek Chand, Parmod, Balwan and Vir Pal, to which FIR no.58011/16 State Vs Tek Chand Etc 4 of 21 they pleaded not guilty and claimed trial.
7. The prosecution in the list of witnesses has cited 14 witnesses to prove the case. However, during the trial only 7 witnesses namely PW1 Sh. Harender Prasad, PW2 Sh. Hans Raj Chaudhary, PW3 Inspector Lalit Kumar, PW4 ASI Balwan Singh, PW5 Sh. Ashok, PW6 Retired SI Rajbala, PW7 Retired SI Raghubir Singh were examined. The remaining witnesses have been dropped by the Ld. Addl. P.P. for the State. The statement of the accused persons were recorded under Section 313 Cr.P.C. The accused persons denied all the allegations levelled by the prosecution against them. It is submitted by the accused persons that they are innocent and has been falsely implicated in the present case. The accused persons did not led any defence evidence.
8. I have carefully perused the material on record and gone through the submissions of Sh. Parvesh Ranga, Ld. Addl. P.P. for the State for the State and Sh. Yogesh Dagar, Ld. Counsel for all the accused persons.
FIR no.58011/16 State Vs Tek Chand Etc 5 of 21
9. It is submitted by the Ld. Addl. P.P. for the State that there is sufficient material on record to convict the accused persons for commission of the alleged offence. It is prayed that the accused persons may kindly be convicted for the charge framed.
10. On the other hand, it is submitted by the Ld. Counsel for the accused persons that there is no material on record to convict the accused persons for commission of the alleged offence.
11. The relevant and material extract of the evidence produced by the prosecution is as under:
12. PW1 Sh. Harinder Prasad is the eye witness of the incident. PW1 Sh. Harender Prasad has deposed that in the year 2005, he was working as watchman in the godown of New Capital Tradman, Mundka, Delhi. PW1 deposed that on 20.04.2005, at about 2.30 midnight when he went in the backside of the godown to attend the nature call, one person grabbed him from behind and wrapped his face with cloth.
FIR no.58011/16 State Vs Tek Chand Etc 6 of 21 PW1 was made to lie on the ground and his hand were tied. 5/6 persons attacked him and inflicted injuries on his head and other parts of the body. The said 5/6 persons put heavy weight iron strip on his body and snatched the keys of the godown from him. The said person have stolen the goods from the godown and left. PW1 dragged himself towards the gate in the same position and cried for help. On hearing the cries, one neighbour came to help and untied him. On checking it is found that one generator, one fan, one weighing machine and other iron goods lying have been stolen. Thereafter, owner of the godown was informed who reached at the spot. The police was also informed. PW1 has deposed that he has not seen the faces of the accused persons. Therefore, he cannot identify any of them. PW1 also went to the Jail for identification of the accused persons but could not identify any of the accused persons in the jail. The Ld. Addl. P.P. for the State has cross examined the witness on the point of identification of the accused persons but even in cross examination, the PW1 expressed his inability to FIR no.58011/16 State Vs Tek Chand Etc 7 of 21 identify any of the accused persons.
13. PW2 Sh. Hans Raj Chaudhary, is the owner of the godown in which the alleged theft has taken place. PW2 had reached at the spot on receipt of the call from the PW1 Sh. Harender Parsad. The PW2 has proved the complaint lodged with the police as Ex. PW2/A on the basis of which the FIR was registered. PW2 deposed that after 2/3 months of the incident on receipt of telephone call from the police officials regarding recovery of the part of the stolen property, he went to the Police Station. Thereafter, he along with police officials went to shop of Junk Dealer and two steel piece out of the stolen articles, were shown to him which was identified by him. PW 2 deposed that he do not know the name of the Junk dealer. PW2 further deposed that besides police officials there were no other person. PW2 was cross examined by the Ld. Addl. P.P. for the State. During cross examination PW2 denied the suggestion that at the time of recovery of the part of the stolen articles, the accused Pramod, Tek Chand, Balwan, Tejbir, Ashok and Raj Kumar FIR no.58011/16 State Vs Tek Chand Etc 8 of 21 also accompanied the police and name of the junk dealer was Veer Pal. The Ld. Addl. P.P. for the State also pointed towards the accused persons specifically but even then the witness expressed his inability to identify any of them.
14. PW3 Inspector Lalit Kumar, is the Investigating Officer of the case in which the accused persons were arrested for the commission of the offence punishable under Section 399/402 IPC and made disclosure statement regarding the commission of the present case.
15. PW4 ASI Balwan Singh joined the investigation along with the IO. PW4 deposed that the accused persons led them to Rani Khera Road bus stand and at their instance TEMPO TATA 407 was taken into possession vide seizure memo Ex. Pw4/A. The pointing out memo prepared at the instance of the accused persons are proved as Ex. PW4/B1 to Ex. PW4/B5. PW4 deposed that the accused persons led the police team to Rani Khera Road at the shop of Junk Dealer and two iron strip were recovered from there which were seized vide memo Ex. PW2/B. FIR no.58011/16 State Vs Tek Chand Etc 9 of 21 PW4 during his cross examination admitted that the site plan of the place of recovery is not prepared in his presence. The description of the iron strip was not mentioned by the owner of the same. It is also admitted that the owner of the strip did not point out any specific mark of identification on the same. PW4 did not remember whether the IO measured the iron strip. The iron strip was not weighed by the IO. He did not know whether any stock register was checked by the IO.
16. PW5 Sh. Ashok is the owner of the TATA 407 DL 1 L B 3408 but he did not support the story of prosecution. The Ld. Addl. P.P. for the State has cross examined the PW5 Sh. Ashok who even during his cross examination did not support the story of the prosecution.
17. PW6 Retired SI Rajbala is the Duty Officer, who recorded the FIR on the basis of rukka sent by SI Raghubir Singh. Copy of the FIR is proved as Ex. PW6/A.
18. PW 7 SI Raghubir Singh is the IO of the case. PW7 deposed that he recorded the statement of the complainant Ex. FIR no.58011/16 State Vs Tek Chand Etc 10 of 21 PW2/A and made the endorsement on the same and got the case FIR registered. PW7 further deposed that he went to the spot and recorded the statement of victim Sh. Harender. Thereafter, victim Sh. Harender was medically examined in the hospital. Site plan is proved as Ex. PW7/C. PW7 further deposed that on receipt of the information regarding disclosure statement of the accused persons on 09.7.2005 in case FIR no. 680/05, under Section 399/402 IPC, the accused Balwan Singh and Tek Chand were arrested along with co accused persons. The disclosure statement of the accused persons were recorded. Pw7 deposed that during police custody remand, the accused persons led him to the recovery of the tempo which was seized vide seizure memo Ex. PW4/A. PW7 further deposed that the accused persons also led him to Mundka Ghevra Road at the godown of the accused Veerpal from where two alloy steel pieces were recovered by the accused persons which were seized vide seizure memo Ex. PW2/B. PW7 further deposed that he moved an application for conducting the TIP of the accused persons. FIR no.58011/16 State Vs Tek Chand Etc 11 of 21 The accused Tek Chand refused to participate in the TIP proceedings. PW7collected the relevant documents and filed the chargesheet. During cross examination PW7 admitted that he never checked the stock register and he had not asked for the description of the iron strips. Pw7 further deposed that he along with Ct. Balwan Singh, all accused persons and owner of the godown went to the spot for recovery. It is admitted that the complainant Sh. Harender Parsad had not identified the accused Tejpal and Veerpal.
19. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal. Reliance can be placed upon the case titled as Sadhu Singh Vs State of Punjab 1997 (3) Crimes 55. FIR no.58011/16 State Vs Tek Chand Etc 12 of 21
20. The accused persons are charged with commission of the offence punishable under Section 395/34 IPC on the allegations that on 20.04.2005, in furtherance of their common intention all accused persons committed dacoity of 120 Alloy Steel Pieces and one Generator by overpowering the chowkidar Harinder Parsad. The prosecution to prove this charge has relied upon the testimony of PW1 Sh. Harender Prasad eye witness/victim of the incident and PW2 Sh. Hans Raj Chaudhary.
21. PW1 Sh. Harender Prasad did not support the story of the prosecution on identification of accused persons. PW1 is the eye witness of the incident and did not connect the accused persons with the commission for the alleged offence punishable under Section 395 IPC. PW1 Sh. Harender Parsad has specifically deposed that he cannot identify any of the accused persons because he had not seen the faces of the accused persons. PW1 Sh. Harender Parsad could not identify any of the accused persons. Ld. Addl. P.P. for the State has also cross examined the PW1 at length on the point of identity but even FIR no.58011/16 State Vs Tek Chand Etc 13 of 21 after that PW1 Sh. Harender Parsad expressed his inability to identify the accused persons.
22. PW2 Sh. Hans Raj Chaudahry is the owner of the godown in which the alleged incident has taken place. The testimony of PW2 regarding the offence under Section 395 IPC is hearsay. PW2 is not the witness to the incident and he came to know about the same only on the next day when the guard made a telephone call to him. There is no other witness to connect the accused persons with the commission for the alleged offence punishable under Section 395 IPC. There is not an iota of the evidence against the accused persons to prove this charge. The prosecution neither by way of direct evidence nor by way of circumstantial evidence is able to substantiate the charge for commission of the offence punishable under Section 395 IPC. Therefore, in the absence of any incriminating evidence to connect the accused persons with commission of the offence punishable under Section 395 IPC, they are liable to be acquitted for the charge framed in this regard. FIR no.58011/16 State Vs Tek Chand Etc 14 of 21
23. The prosecution has also charged the accused persons for commission of the offence punishable under Section 411/34 IPC. There are allegations against the accused persons that on the basis of their disclosure two alloy steel pieces out of 125 alloy steel pieces stolen from the godown were recovered from the shop of the accused Veerpal situated at Rani Khera Road, Delhi. The prosecution to prove the recovery of the stolen case property from the possession of the accused persons on the basis of the disclosure statement has relied upon the testimony of the PW2 Sh. Hans Raj, PW4 ASI Balwn Singh and PW7 SI Raghubir Singh IO of the case.
24. The prosecution has also relied upon the disclosure statement of the accused persons made by them in case FIR no. 680/05, under Section 399/402 read with Section 25 Arms Act. Section 25 of the Indian Evidence Act prohibits the courts from placing reliance upon the confessional statement made by the accused person in police custody or made to the police officer. In view of the bar created under Section 25 of the Indian FIR no.58011/16 State Vs Tek Chand Etc 15 of 21 Evidence Act, no reliance can be placed upon the disclosure statement made by the accused persons in the police custody.
25. The prosecution has attempted to take shelter under Section 27 of the Indian Evidence Act to rely upon the disclosure statement of the accused persons. It is submitted by the Ld. Addl. P.P. for the State that on the basis of the disclosure statement of the accused persons two iron strip pieces out of the stolen property were got recovered, therefore, their disclosure statement to that extent is admissible. It is no doubt true that Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26 of Indian Evidence Act, and statement of confession made in the police custody may be admissible, if fact is actually discovered on the basis of the disclosure statement made by the accused in the police custody or to the police officer and such part of the confessional statement shall be admissible. The prosecution has to prove the recovery of the stolen articles on the basis of the disclosure statement to bring the case within purview of Section 27 of the Indian Evidence FIR no.58011/16 State Vs Tek Chand Etc 16 of 21 Act.
26. In the present case, the prosecution has claimed that the recovery of the stolen goods were effected in the presence of the complainant Sh. Hans Raj Choudhary. However, the complainant Sh. Hans Raj Choudhary (PW2) did not support the story of the prosecution in this regard. PW2 has specifically deposed that at the time of recovery the accused persons were not present. PW2 during his cross examination by the Ld. Addl. P.P. for the State has reaffirmed his deposition.
27. The Ld. Addl. PP for the State has submitted that PW2 Sh. Hans Raj Choudhary in his depositon before the court has admitted his signature on the seizure memo Ex. PW2/B. Therefore, ;the court may rely upon the story of the prosecution regarding the recovery of the case property at the instance of the accused persons vide seizure memo Ex. PW2/B. The PW2 has not disputed his signature on the seizure memo Ex. PW2/B but the witness has specifically deposed that the accused persons did not accompanied the police official at the time of recovery. FIR no.58011/16 State Vs Tek Chand Etc 17 of 21 The deposition of PW2 Sh. Hans Raj Chaudhary is crystal clear. The prosecution fails to establish that the witness has been won over by the accused persons. PW2 has given natural version of the proceedings taken palce in the present case. Therefore, there is no occasion before this court to discard the testimony of PW2 in this regard. Hence, I am not inclined to accept the arguments advanced by the Ld. Addl. P.P. for the State in this regard.
28. The prosecution has also examined PW4 ASI Balwan Singh and PW7 SI Retired SI Raghubir Singh, IO of the case to prove the recovery of the stolen case property at the instance of the accused persons. The prosecution has sought to prove the case of recovery of the stolen case property at the instances of 6 accused persons. There prosecution has nowhere explained which accused has specifically led them to the shop of the Junk dealer/Kabadi. The PW4 and PW7 in their deposition have admitted that the description of the iron strip was not mentioned by the owner. The IO had not measured the case property at the FIR no.58011/16 State Vs Tek Chand Etc 18 of 21 time of recovery. The case property was not sealed by the IO at the spot nor any specific identification mark was pointed out by the owner. In view of the denial of the presence of the accused persons at the time of recovery, by the complainant PW2 Sh. Hans Raj Chaudahry and the material discrepancies in the testimony of the PW4 ASI Balwan Singh and PW7 SI Raghubir Singh, I am not inclined to rely upon the testimony of PW4 ASI Balwant Singh and PW7 SI Raghubir Singh regarding recovery of part stolen case property.
29. Thus, the cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu Vs Public Prosecutor High Court of A.P. (SC) 2009 (1|) R.C.R. (Criminal 290 : 2009 (1) R.A.J. :
2008 (150 Scale 212, the Hon'ble Supreme Court observed as under: "A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard FIR no.58011/16 State Vs Tek Chand Etc 19 of 21 is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case .... Doubts would called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
30. In the criminal jurisprudence, the prosecution has to prove its case beyond reasonable doubt. The prosecution has to make a water tight case against the accused to secure the conviction of the accused.
31. In view of the above discussions, I am of the considered opinion that the prosecution has miserably failed to prove its case for the commission of the offence under Section 395/411/34 IPC by the accused persons. Accordingly, the accused namely Balwan Singh, Tek Chand and Veer Pal are FIR no.58011/16 State Vs Tek Chand Etc 20 of 21 acquitted for commission of the offence punishable under Section 395/411/34 IPC.
32. The personal bond and surety bond of accused persons Tek Chand, Balwan Singh and Veerpal are extended for a period of six month under Section 437A Cr.P.C.
33. File be consigned to record room after completion of necessary formalities.
Announced in the open court today i.e. 08th November, 2017 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI FIR no.58011/16 State Vs Tek Chand Etc 21 of 21