Delhi District Court
State vs Raj Kishor @ Raju & Etc. on 18 July, 2014
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATE -04, ROOM NO.212
DWARKA, DELHI
STATE versus Raj Kishor @ Raju & etc.
FIR No. 105/10
PS: Kapashera
U/s-457/380/411/34 IPC
1. Serial No. of the case : 0240 5R 067452010
2. Date of commission of offence : 05.06.2010
3. Name of the complainant : Sh. Arvinder Singh s/o Sh. I.B. Singh
4. Name of the accused, and his : 1. Rajinder s/o Sh. Siya Ram
parentage and residence R/o Shani Mandir, Jhuggi, Kapashera, New Delhi
2. Rahis Khan, s/o Sh. Salim Khan
R/o Jangra Market, Holi Chock, Dunda
Hera, Haryana
5. Date of Reserving Judgment : 04.07.2014
6. Offence Complained of : Section 457/380/411/34 IPC.
7. Plea of accused : Pleaded not guilty.
8. Final Order : Acquittal.
9. Date of Order : 18.07.2014
JUDGMENT
Brief Statement of the reasons for the decision of the case
1. Briefly stated, it is the case of the prosecution that on 05-06-2010 between 08:00 PM to 09:00 PM at E-18, Pushapanjali Farm, Bijwasan, New Delhi, the complainant Sh. Arvinder Singh's house was broken into and several articles were stolen from his premises. During investigation, the accused persons namely Raj Kishor (since PO), Rajinder and Rahis Khan were arrested who disclosed there involvement in the said offence. Certain case property was recovered from each of the accused persons. Hence, they are facing the trial for the offence under Section 457/380/411/34 Indian Penal Code, 1860 (hereinafter referred to as IPC).
State v. Raj Kishore@ Raju & etc. FIR no. 105/10 PS Kapashera Page 1 of 4
2. The investigation was concluded and the charge sheet was filed against the accused persons on 10.09.2010. All the three accused persons were summoned for trial. After hearing arguments, a Charge for the offence under Section 457/380/411/34 IPC was framed on 24.09.2010 against the accused to which they pleaded not guilty and claimed trial. Accused Rahis was also charged for the offence under Section 25, Arms Act as allegedly a country made pistol was recovered from his possession. Thereafter, the matter was put up for prosecution evidence. Before commencement of the prosecution evidence, the accused Raj Kishore stopped appearing in the court. All efforts were made to ensure his appearance in the court. Ultimately, proceedings under Section 82 CrPC were carried out against him and he was declared "absconder" vide order dated 16.12.2013. The other accused persons, namely Rajinder and Rahis are facing the trial for the offences under Section 457/380/34 IPC, on the one hand, and in the alternative for the offence under Section 411 IPC. A charge under Section 25, Arms Act is also framed against accused Rahis.
3. Prosecution has examined 10 witnesses namely PW1 Sh. Sudhir Kumar Vats, in whose presence the accused Raj Kishore was allegedly arrested. PW2 is Ct. Surender, PW5 Ct. Vinod Kumar, PW6 Ct. Jagdish Chand and PW9 Ct. Rajeev Kumar aided the IO in the investigation of the present case. PW3 Ct. Naresh Kumar, is the DO. PW4 Sh. Awanindra Singh is the complainant. PW7 Sh. R.K. Mehra is the member of the Crime Team who lifted the finger prints from the spot. PW8 ASI Rajender Singh is the IO. PW10 HC Birender Kumar is the MHCM. The evidence of each of PWs is very relevant and the same is analyzed and discussed later on at appropriate places. Statement of Accused was recorded and all the incriminating evidence was put to them on 06.06.2014, wherein the accused pleaded false implication. The accused did not lead any defence evidence. Thereafter, the final arguments were heard on 06.06.2014.
4. The court shall first examine if the offences U/S 457/380/34 IPC are made out against the accused persons or not. Both the offences read together imply that the accused persons have allegedly committed theft in a dwelling house by house breaking in night. In this regard, the prosecution has relied upon the testimony of PW4 Avninder Singh who is the complainant in the present matter. He deposed on oath that on 05-06-2011 between 08:00 PM to 09:30 PM, his house was robbed. Thereafter, on 29-06-2010, one of his stolen property i.e. Rifle was recovered from the possession of accused Raj Kishor who disclosed his involvement in the present offence alongwith co-accused State v. Raj Kishore@ Raju & etc. FIR no. 105/10 PS Kapashera Page 2 of 4 Rajinder and Rahis. Ld. Counsel's for the accused persons have argued that this is the only evidence against the accused persons for proving the above mentioned offences. But the same is not sufficient to warrant a conviction. It is submitted that the PW4 is not an eye-witness to the alleged incident. No finger prints were recovered from the spot which were matched with the finger prints of the accused persons. Hence, this offence is not made out.
5. In the opinion of the Court also, the prosecution has failed to established the offences under Section 457/380/34 IPC against the accused persons. The complainant suspected accused Raj Kishor as he was working in his Farm House. The involvement of the other accused persons who are facing the present trial was disclosed by accused Raj Kishor to the police. Though the alleged disclosure statement has been made by accused Raj Kishor in the presence of the complainant, yet the same is not admissible in evidence being hit by Section 25 of the Indian Evidence Act. As mentioned by the Ld. Counsel, apart from this disclosure statement, there is no evidence against the accused persons to prove that they have committed the offences under Section 457/380/34 IPC. Hence, they are acquitted of the said offence.
6. The accused persons have been charged for the offence U/S 411 IPC in the alternative which deals with the punishment for dishonestly receiving stolen property. To prove this offence, the prosecution has again relied upon the statement of PW4 Avninder Singh and also on the statements of PW2 Ct. Surender, PW8 ASI Rajinder Singh and PW9 Ct. Rajeev Kumar. These witnesses disposed that on the disclosure of accused Raj Kishor, accused Rajinder and Rahis were arrested and at their instance the case property i.e. Two Gold Ruby Earrings and some Dollars were recovered from the possession of the accused persons respectively. Ld. APP has submitted that the recovery has been effected in the presence of the complainant which leaves no room for doubt in the prosecution case. It is submitted that the argument of the accused persons that they have been falsely implicated in the case or the recovery has been planted upon them does not stand. Hence, Ld. APP prays for their conviction.
7. Ld. Counsels for the accused persons, on the other hand, have submitted that even if it is deemed to be proved that the alleged articles were recovered from the possession of the accused persons, yet the offence U/S 411 IPC is not made out, in as much as the articles which were recovered have not been reported to be stolen from the complainant. Ld. Counsels have, in this regard, placed State v. Raj Kishore@ Raju & etc. FIR no. 105/10 PS Kapashera Page 3 of 4 reliance on the statement of the complainant recorded by the IO at the first instance which is Ex. PW4/A. It is submitted that this fact has been admitted by PW4 Avninder Singh also that no complaint recording the recovered articles was filed by him. Also there is not list of additional stolen articles given on a subsequent date on record. Hence, till the time this is proved that these articles were actually stolen from the complainant, they shall not form 'stolen property' and hence Section 411 IPC is not applicable.
8. The Court is in agreement that the arguments put forth by the Ld. Counsel. Admittedly, there is nothing on record to suggest that the recovered articles were ever stolen from the complainant. In the complaint Ex.PW4/A, the complainant mentioned that one rifle, its 100 rounds, 60 rifle cartridges, 40 round pistol and some cash rupees were stolen. He does not mention any jewellery articles or dollars to have been stolen. Further, as pointed out by the Ld. Counsel for the accused, there is no additional list of articles alleged to have been stolen from the house of the complainant. Hence, there is nothing on record to show that the alleged recovered articles are stolen property. Hence, in the opinion of the Court, the offence under Section 411, IPC is not made out. Hence, the accused persons are acquitted of this offence also.
9. Accused Rahis has also been charged for the offence under Section 25 Arms Act on the allegation that at the time when the alleged recovery was effected, one country made pistol with a live cartridge was recovered from his possession. For prosecution under this offence, a sanction under Section 39 Arms Act is mandatory to be taken from the District Magistrate. No such sanction has been placed or proved on record. Hence, in view of the Section 39 Arms Act, he could not have been prosecuted for the offence U/S 25 Arms Act. Hence, he is acquitted of this offence also. In view of the above mentioned discussion, the accused Rajinder and Rahis are acquitted off all offences for which they had been charged in this case.
ANNOUNCED IN THE OPEN COURT ON 18.07.2014 (RUCHIKA SINGLA) METROPOLITAN MAGISTRATE-04 DWARKA COURTS, DELHI State v. Raj Kishore@ Raju & etc. FIR no. 105/10 PS Kapashera Page 4 of 4