Delhi District Court
State vs . Rakesh & Anr. on 27 May, 2016
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST):
SAKET COURTS:NEW DELHI
State Vs. Rakesh & Anr.
FIR No. 79/08
U/s 380/457/511/34 IPC
P.S. G.K. I
J U D G M E N T
Serial No. of the Case : 412/1/14
Unique Identification No. : 02403R1022432008
Date of Institution : 25.10.2008
Date on which case reserved for
judgment : 19.05.2016
Date of judgment : 27.05.2016
Name of the complainant : Amarjeet Singh
s/o Shri Shamsher Singh
r/o H.No. 47B, DDA flats
Masjid Moth, G.K.I
New Delhi
FIR No. 79/08
P.S. G.K. I Page No.1 of 14
Date of the commission of offence : 12.06.2008
Name of accused :1. Rakesh S/o Gajadhar
R/o Village Arkha, PO Arkha,
PS Unchahar, Distt. Rai Bareily
U.P.
2. Rakesh S/o Mohan Lal
R/o Village Arkha, PO Arkha,
PS Unchahar, Distt. Rai Bareily
U.P.
Offence complained of : U/s 380/457/511/34 IPC
Offence charged of : U/s 380/457/511/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 25.10.2008
Date on which case reserved
for judgment : 19.05.2016
Date of judgment : 27.05.2016
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was FIR No. 79/08 P.S. G.K. I Page No.2 of 14 registered on a complaint of complainant Amarjeet Singh wherein he stated that he was residing at H.No. 47B, DDA flats, Masjid Moth, G.K.I and was employed in a private firm and used to be out for business. That on 12.06.2008 at around 1.45 am in the night when he was present in his house he could feel some commotion outside his house and thereafter he saw that one person from his balcony was trying to get on the floor above his house by a stair. Thereafter he called up his neighbour namely Pramod and also informed regarding same to his neighbours. After some time some of his neighbours alongwith the guard of the area reached at the spot and he with the help of his neighbours found that the said person was trying to open H. No. 37C which was locked. Upon seeing the complainant and other persons the aforesaid persons who were trying to break lock ran towards the terrace and thereafter complainant and his neigbours caught hold of them who revealed their name as Rakesh S/o Gajadhar and Rakesh S/o Mohan Lal.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
FIR No. 79/08 P.S. G.K. I Page No.3 of 14
3. On the basis of material placed on record, charge was framed against the accused under Section 380/457/511/34 IPC to which they pleaded not guilty and claimed trial.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, prosecution examined as many as nine witnesses in order to prove its case.
PW1 Amarjeet Singh (complainant) deposed that on 12.06.2008 at around 1.45 am he was present in his house and that time heard some noise from outside. Thereafter he came out in his balcony and saw that accused person were trying to climb stair from his balcony to the upper floor i.e. at H.No. 47C, Masjid Moth, DDA Flat. Thereafter, he immediately called up his neighbourer namely Parmod and also called up some more neighbourers and after sometime all they gathered alongwith two watchman of the area and surrounded the building. Thereafter they called the police and police reached the spot after half an hour. Thereafter they went upstair at H.No. 47C which was found locked. Thereafter searched for accused persons were made and accused persons were apprehended from the terrace of the building with the help of police personal. Thereafter police recorded his statement vide Ex.PW1/A and thereafter accused persons FIR No. 79/08 P.S. G.K. I Page No.4 of 14 were arrested vide Ex.PW1/B and Ex.PW1/C and their personal search was conducted vide Ex.PW1/D and Ex.PW1/E. The accused persons were correctly identified by witness.
During the crossexamination, PW1 stated that Sh. A.D. Gandhi was his neighbourer and was living down stairs and had given a calls at 100 number. Police reached on the spot between 3.00 to 3.30 am and remained there for 1 ½ hours. In his presence the police had not recorded the statement of any other public witness on the spot. Police had only recorded his statement and the statement of one Sh. Balbir Singh who was the secretary of RWA. He was not sure if the police had arrested the accused persons on the spot and he had remained at police station for about ½ hour. He did not remember if police had obtained his signatures on blank documents at the police station. It was correct that accept apprehension and arrest of the accused police did not do any other investigation on the spot. Further, he had made a call to Sh. Pramod from his mobile phone and it was correct that any person had given a call at 100 number apart from him. Further there were four guards in the locality and complainant alongwith other locality member did not reach at the top floor. Police had arrested the accused persons between 4.30 to 5.00 pm and police had recorded his statement at the police station.
FIR No. 79/08 P.S. G.K. I Page No.5 of 14
During reexamination on behalf of Ld. APP for the State PW1 stated that he was not present when the accused was apprehended by police.
PW2 P.K. Marwah(eye witness) deposed that on 12.06.2008 he received the call around 2.00 to 3.00 am from his senior college who was also a friend namely Sh. Anil Pawar and had informed PW2 that he was at Bombay and that two accused persons caught red handed from his residence i.e. H. No. 47C which was across the road from his residence. Thereafter he immediately rushed at the spot and found Amarjeet Singh and other residents who had collected around that house. Thereafter he came to know about the facts that a beat constable had apprehended the accused persons and thereafter he alongwith complainant Amar jeet Singh, police and the accused reached at PS G.KI thereafter police recorded the statement of complainant vide Ex.PW1/A and on the basis of same the FIR was registered. Police also recorded his statement.
Thereafter, PW1 was crossexamined by Ld. APP for the State as PW 2 was resiling from his statement earlier made to police u/s. 161 Cr.PC.
During crossexamination on Behalf of Ld. APP the State PW2 deposed that he alongwith complainant went to PS in his own car while the FIR No. 79/08 P.S. G.K. I Page No.6 of 14 accused persons reached the police station in a police station and the incident had occurred at night and many persons were present on the spot and thereafter there was confusion as to who had apprehended the accused persons. Police had shown him the accused person and he was not able to identify the accused persons due to lapse of time but the accused persons were apprehended PW2 identified them.
During the crossexamination on behalf of accused, PW2 stated it was correct that his statement as well the statement of the complainant was recorded at the police station and it was correct that all the investigation proceedings were conducted a the police station.
PW3 Anil Panwar deposed that on 12.06.2008 he had gone to Bombay for some official and around 1.30 to 2.00 received a call from his neighbour namely Amarjeet Singh who informed his that the lock of his room was broken and somebody had entered into his house and neighbours had surrounded the building and police had been called. On the next day morning he reached back and saw the lock broken in the stairs and door lock was probably attempted to open. Thereafter he was informed by his neighborers that two had been caught and FIR has been registered. Upon checking no articles from his house missing During the crossexamination, PW3 stated, police had FIR No. 79/08 P.S. G.K. I Page No.7 of 14 enquired from him but he had not signed any documents.
PW4 HC Pooran Singh deposed that 12.06.2008 he was posted as HC at PS G.K. I and was on emergency duty from 8.00 PM to 8.0 am and upon receiving DD No. 23, he alongwith HC Devender reached at the spot and met one Amarjeet. Many persons had also gathered on the spot and the crow had caught the accused persons and accused Rakesh son of Mohan Lal was having a screw driver in his possession. Amarjeet had given his complainant to the IO and IO prepared the rukka and haded over the same to him for registration of FIR and he got registered FIR and came back to the spot and handed over the copy of FIR and original rukka to the IO. The screw driver were sealed in a pullanda with seal of pullanda vide seizue memo Ex.PW4/A. Both the accused were arrested and their personal search was conduct. The case property was exhibited P1.
During the crossexamination, PW4 stated, he alongwith IO reached the spot on motorcycle at around 2.25 am and there were about 2025 persons who had gathered at the spot. IO had given him a rukka at around 4.30 am. He had gone to police station by foot and after registration of FIR reached at the spot at around 5.00 am. He did not remember as to how many statements were recorded by IO except that of one Amarjeet and one Mr. Marwah. Pullanda was prepared at the spot and he did not remember if FIR No. 79/08 P.S. G.K. I Page No.8 of 14 any public persons had accompanied the accused persons to police station. No screw driver was recovered from the possession of accused persons. Lastly no chance print or photographs were taken from H. No. 47C.
PW5 Ct. Ram Avtar deposed that on 12.06.2008 he was posted at PS G.K. I and were from petrolling from 10 pm to 5 am. At about 2.00 am while he was on patrolling duty he alongwith Ct. Tarkeshwar reached near DDA flats, Masjid Moth and found many public persons gathered at spot and thereafter two public persons namely Amerjeet Singh and P.K. Marwah produced two persons i.e. accused in the present matter and narrated the incident. Further flat No. 47C was found locked and IO reached the spot and arrested the accused persons and recorded the statement of aforesaid witnesses.
During the crossexamination, PW5 stated, accused persons were brought down from the terrace in his presence and IO reached at the spot after 25 minutes and the accused persons were on the ground floor when IO reached. No statement of accused persons were recorded in his presence and IO had prepared the site plan of the terrace from where the accused persons were apprehended. IO did not sign the site plan and the same was prepared after the arrest of accused persons. Personal search of the accused persons was not conducted in his presence and he had signed FIR No. 79/08 P.S. G.K. I Page No.9 of 14 certain documents but he did not remember the nature of those documents. IO remained at the spot for about 1520 minutes and had not sent any persons.
PW6 SI Ichha Ram deposed that on 01.07.2008 he was posted at PS G.K. I and had gone to verify Parcha 12 of the accused persons and submitted his report.
During the crossexamination, PW6 stated, that it was incorrect that he had not joined the investigation and had not gone to verify the addresses of accused persons.
PW7 Ct. Tarkeshwar deposed that on the lines of PW5 and therefore the same is not repeated for the sake of brevity.
During the crossexamination, PW7 stated, that is was correct that statement of witnesses was not recorded in his presence. Further that IO remained at the spot for 15 minutes.
PW8 HC Prithvi Raj (duty officer) deposed that on 12.06.08 he was the duty officer and upon receiving rukka Ex.PW8/A the present FIR was registered vide Ex.PW8/B. PW9 HC Devender Kumar (IO) deposed that on the intervening night of 11/12.06.2008 he was posted at PS G.K. I and was on emergency duty. At around 1.45 AM he received DD No. 23A regarding theft FIR No. 79/08 P.S. G.K. I Page No.10 of 14 at H.No. 47 DDA flats Masjid Moth and thereafter he alongwith Ct. Pooran reached the spot met complainant Amarjeet Singh and one person namely P.K. Marwah and other public persons who had apprehended the accused persons. Thereafter he recorded the statement of complainant vide Ex.PW1/A and prepared the rukka vide Ex.PW9/A and sent Ct. Pooran for registration of FIR the police station. After registration of FIR Ct. Pooran handed over to him the copy for FIR and original rukka and thereafter he prepared the sit plan at the instance of complainant vide Ex.PW9/B. One screw driver was recovered from the possession of accused Rakesh s/o Mohan Lal which was used by him to break the lock and the same was sealed with the seal of D.K. And seized vide Ex.PW4/A. Both accused person were arrested and their personal search was conducted and he recorded the statement of witnesses and after completion of investigation prepared the challan.
During the crossexamination, PW9 stated, he did not remember whether the public persons present at the spot belonged to RWA or not. Further he remained at the spot for about 1 ½ hour and it was correct the screw driver easily available in the market.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section FIR No. 79/08 P.S. G.K. I Page No.11 of 14 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. No defence witness was examined on behalf of the accused.
7. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that the accused persons had attempted to commit the theft by entering the premises and by breaking open the lock of the premises and therefore are liable to be convicted. He has further argued that there is no material contradiction in the testimony of the witnesses and the accused persons are liable for the offence.
8. On the other hand, The Ld. Counsel for the accused has argued that the prosecution has failed to establish its case since the prosecution witnesses in their crossexamination has deposed contradictory to each other and the complainant i.e. PW1 and an eye witness i.e. PW2 have been already crossexamined by the prosecution and have not supported the story of prosecution and therefore accused persons are liable to be acquitted. FIR No. 79/08 P.S. G.K. I Page No.12 of 14
9. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record.
10. In my considered view the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. In the present matter the complainant i.e. PW1 Amarjeet Singh was the star witness of the prosecution who has deposed in his examination in chief that when he alongwith other public persons reached house No.47C, Masjid Moth, DDA flat the same was found locked that is when the police officials have deposed that the premises were found opened and the lock was broken which is itself contradictory to each other. Further PW1 has already been crossexamined by prosecution as he did not support the story of prosecution. PW2 is merely a heresay witness as he has deposed that he reached the spot after the accused persons were apprehended and the entire fact was narrated to him by the complainant and was declared hostile by the prosecution. PW3 who was the owner of the premises has deposed that when he reached he saw that the lock of the house is broken and was found in the stair and the door was attempted to be opened and none of his belonging were found missing FIR No. 79/08 P.S. G.K. I Page No.13 of 14 which again is contradictory to the statement of IO. Further PW5 Const. Ram Avtar has also deposed in his examination in chief that when the IO reached the spot the the premises was found locked. Lastly, the IO did not examine the watchman of the area and other residents who had been allegedly involved in the apprehension of the accused and therefore in my considered view both accused are liable to be acquitted.
11. 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 Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
12. In view of above discussion, both the accused are acquitted of offence punishable U/s 380/457/511/34 IPC.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 27.05.2016 MM10 (SouthEast): Saket Courts:
New Delhi:27.05.2016
FIR No. 79/08
P.S. G.K. I Page No.14 of 14