Delhi District Court
State vs Shahnawaz & Ors. on 29 June, 2007
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IN THE COURT OF SH. RAVINDER SINGH: METROPOLITAN
MAGISTRATE: KARKARDOOMA : SHAHDARA : DELHI.
State V/s Shahnawaz & Ors.
FIR No. 50/06
PS Shakarpur
U/s 380/411/34 IPC
JUDGMENT:
a Sl No of the Case : 54/06
b Date of Commission of Offence : 21.1.06
c Name of the complainant : Sh. Vishwajeet Pathak S/o Sh. Janardan
Pathak, R/o H.No. 65, Room No. 110,
Avtar Hostel, Vijay Chowk, Laxmi
Nagar, Delhi
d Name of the Accused & his : 1. Shahnawaz S/o Mohd. Shakil parantage & address R/o 64/4, Gali No. 1, Shakarpur, Delhi
2. Sumer Singh S/o Man Singh R/o Awara Gard e Offence complained of : U/s 380/411/34 IPC e Plea of the Accused : Pleaded not guilty f Final order : Acquitted g Date of such order : 29.6.07 BRIFE STATEMENT FOR THE REASONS FOR DECISION:
1. The case of the prosecution is that complainant Vishwajeet Pathak made a complaint in PS on 20.1.06 alleging therein that he was sleeping in his room on 19.1.06 by opening the door and in the morning he noticed that his blue colour jacket and some documents were missing from the room. He also found that the suitcase of his friend Ashish Gupta was also missing from his room. The FIR bearing No. 50/06 u/s 380 IPC was registered. Investigation of the case carried out. The accused persons were arrested as they were found in possession of articles belonging to the complainant Vishwajeet Pathak on 22.1.06. Statement of witnesses were recorded, site plan was prepared. After completion of all necessary investigation challan U/s 173 Cr. P.C was presented in the court for trial against accused for the offences punishable U/S 380/411/34 IPC.-2-
2. Both the accused appeared before court so copies as required under section 207 Cr. PC, were supplied to him. Thereafter case was fixed for consideration of charge.
3. After hearing arguments and on perusal of record, prima facie charge for the offence punishable under Section 411 IPC was made out against accused persons. Charge was framed accordingly against them on 28.7.06. Thereafter case was fixed for prosecution evidence for trial.
4. In support of its case prosecution has produced and examined seven witnesses. PW1 HC Madan Pal, PW2 Ct. Zaheer Khan, PW3 Vishwajit Pathak, PW4 HC Jagdish, PW5 ASI Ravinder Kumar, PW6 Ct. Pramod Kumar and PW7 ASI Rajbir Singh.
4A PW1 HC Madan Pal Duty Officer has testified that on 20.1.06 he received a rukka from Ct. Jagat Pal sent by ASI Rajbir Singh so he recorded FIR No. 50/06. The copy of the same is Ex.PW1/A and the endorsement made on the rukka is Ex.PW1/B. 4B PW2 Ct. Zaheer Khan has testified that on 21.1.06 he was on patrolling duty at Thomson Road and about 8.35 PM they saw that two boys were coming from the side of Kashmiri Gate and on seeing the police party they turned back and on suspicion Ct. Jagdish apprehended the accused present in the Court. He further testified that mobile phone and purse were recovered from the pocket of Shahnawaz which was stolen by them from Shakarpur and on opening the purse three notes of Rs. 1000/- and two notes of Rs. 500/- denomination were recovered. He further testified D/L of Mr. Anurag Gupta was aslo in the purse. He further testified that the recovered mobile phones, purse alongwith Rs.4000/- and D/L of Anurag Gupta were seized and sealed with the seal of RK and was given to HC Jagdish Prasad. He further testified that case was registered in PS Kamla Market vide FIR bearing NO. 35/06 u/s 411/34 IPC. He further testified that disclosure statement of the accused Shahnawaz Ex.PW2/A was recorded.
-3-4C PW3 Vishwajit Pathak the complainant has testified that on 19.1.06 his room partner left Delhi without informing him. He further testified that he waited for him in the room till 11.30 PM and thereafter he took medicine and went to sleep but he did not lock the door from inside. He further testified that when he woke up in the morning he found that the door of his room was locked from outside and he was not able to move out so he telephonically called his friend who was living in another room in the hostel who came and opened the door from outside. He further testified that his jacket was missing and thereafter he went for his morning walk. Thereafter he searched his room and found that suitcase of his room partner was missing. He further testified that he also found that his purse was missing. He further testified that his purse containing 3 ATMs, Rs.400/- and one I card. He further testified that he informed the police who recorded his statement Ex.PW3/A. PW3 further testified that he came to know that his articles were recovered by the police officials of Kamla Market. He further testified that he alongwith his room partner went to PS Kamla Market where police officials showed them the articles and they identified the same. He took the articles on superdari vide superdginama Ex.PW6/A. PW3 produced the suitcase Ex.P1, lady wrist watch Ex.P2, jacket Ex.P3, mobile charger Ex,P4, empty purse Ex.P5 and clothes collectively Ex.P6, ear phone Ex.P7 and writing pad Ex.P8.
4D PW4HC Jagdish also deposed the same facts which have been deposed by PW2. PW4 also testified that on next date both the accused took them to 64/4, Gali No. 1 and got recovered one suit case of blue colour and three other bags containing clothes and two mobile phones. Accused also pointed out the place where he committed theft. He further testified that recovered articles were seized vide memo Ex.PW4/A and B (both are same) and disclosure statement of accused Sumer is Ex.PW4/C. In cross examination PW4 admitted that no notice was served upon any person and he did not remember how many storeyed of building where the recovery has been effected. He further testified that mother of the accused was present at the spot.
4E PW5 ASI Ravinder Kumar testified the same facts as testified by -4- PW4.
4F PW6 Ct. Pramod testified that he was on patrolling duty alongwith ASI Ravinder Kumar and Ct. Jagdish Prasad on 21.1.06 when the accused was apprehended with mobile and purse.
4E PW7 ASI Rajbir is the IO of the case and deposed on the investigation aspect. He testified that on 20.1.07 on receipt of DD No. 27A he alongwith Ct. Jagat Pal went to H-65, Laxmi Nagar where the complainant Vishwajeet Pathak met and gave his statement Ex.PW3/A regarding theft. He further testified that he put endorsement Ex.PW7/A on the statement and got the case registered through Ct. Jagat Pal. He further testified that he prepared the site plan Ex.PW7/B at the instance of the complainant. He further testified that on 22.1.06 information was received from PS Kamla Market that the accused persons have been apprehended alongwith case property so PW7 went to PS Kamla Market and obtained obtained seizure memo Ex.PW4/A and B, copy of disclosure Ex.PW4/C and Ex.PW2/A. Thereafter he moved an application before the Court for production of accused and accused persons were formally arrested by him in the Court. PW7 admitted that he had not got judicial TIP of case property.
5. After completion of the prosecution evidence statement of both accused recorded U/S 281 Cr. P. C wherein they denied the allegations of the prosecution and they stated nothing have been recovered from their possession and they are innocent and have been falsely implicated by the police in the present case. However he did not lead any defence witness.
6. I have heard the Ld.APP for the state and the accused and have also carefully perused the entire record and the relevant provisions of the law.
7. During the course of arguments, Ld defence counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt.
Ld Defence counsel further argued that the testimony of PW2, PW4, PW5 and -5- PW6 so much contradictory that no one can rely upon the same.
8. Contrary to the submissions of Ld. Defence counsel, Ld APP for the state submits that the prosecution has been able to prove its case successfully and minor contradiction bound to be there as only tutored witness can depose a parrot like version. Further the police had no motive to implicate the accused in this case.
9. The case of the prosecution is that the various articles of the complainant and his friend Ashish Gupta were stolen from the room of the complainant/PW3 in the intervening night of 19/20.1.06. The accused persons were arrested on 21.1.06 in case FIR No. 35/06 of PS Kamla Market where they disclosed about the commission of crime of this case and in pursuance of their disclosure statement some of the stolen articles were recovered from the house of accused Shahnawaz on 22.1.06.
10. From evidence on record the accused persons were apprehended by PW2, PW4 and PW5 alongwithn mobile phone and purse on 21.1.07 within the jurisdiction of PS Kamla Market. Therefore a FIR No. 35/06 was registered in PS Kamla Market u/s 411 IPC. Thereafter both the accused persons were interrogated by the IO of the said case and both accused made the disclosure of the commission of offence of this case in that case. So the disclosure statement of accused Sumer Ex.PW4/C and Shahnawaz Ex.PW2/A was recorded.
11. The complainant/PW3 in his complaint Ex.PW3/A mentioned the items which were stolen by unknown person from his room. The complainant/PW3 produced the items/articles which had been recovered from the possession of -6- accused Shahnawaz in the Court i.e. produced the suitcase Ex.P1, lady wrist watch Ex.P2, jacket Ex.P3, mobile charger Ex,P4, empty purse Ex.P5 and clothes collectively Ex.P6, ear phone Ex.P7 and writing pad Ex.P8. But except suitcase none of the articles were mentioned in seizure memo Ex.PW4/A. It is further relevant that a lady wrist watch make Omex was recovered from the accused. But in the complaint Ex. PW3/A the watch is of Titan.
12 Further all the articles recovered from the house of accused Shahnawaz belonged to Ashish Gupta but the said Ashish Gupta has not appeared before the Court. Even he is not cited as witness in this case. Further the judicial TIP of the articles were not done. It is further relevant that PW3 and his friend Ashish Gupta went to PS Kamla Market as and when they received the information about recovery. But prosecution has failed to examine the witnesses who informed the complainant about the recovery of stolen articles in PS Kamla Market. This linking evidence is missing so it creates doubt about the recovery of stolen articles from the house of accused Shahnawaz.
13. During the investigation of the case no public witnesses were joined nor seems to be any sincere efforts made in this regard, when it was possible to do so as the alleged recovery has been effected from the house of accused Shahnawaz this makes the case of the prosecution weak and suspicious. In State of Punjab Vs. Gurmel Singh 1991 (2) Recent Criminal Reporters 361 Hon'ble Court held that:-
" Where there were 20 shops nearby and the investigating officer had ample opportunity to join independent witness statement of official witnesses would not be sufficient to convict the accused. Contention of the prosecution that the police officials had no ill will to involve the accused in false case was repelled."-7-
14. In the circumstances, the testimony of the prosecution witnesses do not inspire confidence.
15. Apart from this, the presence of PW2, PW4, PW5 and PW6 at the spot is not proved. If they had departed from PS for patrolling duty the entry to this effect must exist in the Roznamcha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act and if the said Roznamcha had been produced it would have not shown their departure as all.
16. It is true evidence it to be weighted and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused. In view of this I am fortified with the observations made in the case State of Rajasthan V/s Daulat Ram 1980 CAR 169 (SC) where it was held that prosecution failed to proved all the links. Accused was acquitted.
17. In view of above discussion the prosecution has failed to prove its case beyond reasonable doubt against the accused persons and accordingly both the accused persons are acquitted for the charge punishable u/s 411/34 IPC.
Announced in the open Court on 29.6.07 (Ravinder Singh) Metropolitan Magistrate, KKD Courts, Delhi -8-