Delhi District Court
State vs . Suraj & Ors. on 2 March, 2021
In the Court of Ms. Shefali Barnala Tandon,
Additional Chief Metropolitan Magistrate (West),
Tis Hazari Courts, Delhi
FIR No. 183/2018
Under Section : 380/411/34 IPC
PS : Patel Nagar
State Vs. Suraj & Ors.
JUDGMENT
1. CIS number of the case : 4978/2018
2. CNR No. : DLWT02-009754/2018
3. The date of commission of offence : 13.05.2018
4. The name of the complainant : Shri Sanjeev Kumar
5. The name and address of accused : i) Suraj
S/o Shri Babu Lal
R/o A-69, Baba Faridpuri,
Near Gopal Dairy, Delhi
ii) Jai Prakash
S/o Shri Kartar Singh
R/o C-2, Hari Enclave,
Aman Vihar,
Karan Public School,
Delhi.
iii) Ajay Patwa
S/o Shri Lakhan Patwa
R/o Vegabond
6. Offence under which charge has been : U/s. 411/414/34 IPC
framed
FIR No. 183/2018 1 of 12
State Vs. Suraj & Ors.
7. The plea of accused persons : Pleaded not guilty
8. Final Order : Acquitted for the offence under
Section 411/414/34 IPC
Date of Institution : 16.07.2018
Judgment reserved on : 23.02.2021
Judgment announced on : 02.03.2021
JUDGMENT
1. The brief and necessary facts, to be noticed for the disposal of the present case are that on 13.05.2018 at about 08:00 a.m., the complainant/ Shri Sanjeev Kumar went to coaching centre for an exam leaving his cousin namely Vivek at home, while he was sleeping and asked him to lock the premises from inside but he did not lock the premises . When the complainant returned at about 2:00 p.m., he found that his laptop make HCL, mobile phone HTC Dezire having Sim of Airtel No. 9936273516, Laptop Bag and purse of his brother containing Voter I-Card, PAN Card, Aadhar Card, DL and Rs.300/- were missing. Accordingly, the complainant lodged an e-FIR regarding theft of articles.
2. During investigation, Suraj, who was accused in case FIR No. 143/2018 under Section 380/411 IPC disclosed that 4-5 days ago, he entered into a premises of F-Block, West Patel Nagar, Second Floor and stole Laptop Make HCL and Mobile Phone Make HTC, which he sold to one Sunny at Tank Road, Karol Bagh, New Delhi for Rs.8,000/-. However, during further FIR No. 183/2018 2 of 12 State Vs. Suraj & Ors.
investigation, accused Suraj disclosed that in order to save co-accused Ajay Patwa, he gave wrong statement earlier and disclosed that he along with co- accused Ajay Patwa committed the theft. At his instance, co-accused persons namely, Ajay and Jai Prakash were arrested and recovery was made.
3. On completion of the investigation, charge-sheet was filed against accused Suraj, Jai Prakash and Ajay Patwa for the offence under Section 380/411/34 of the Indian Penal Code (hereinafter referred to as 'IPC'). Vide order dated 10.09.2018, charge under Section 414/34 of IPC was framed against accused Suraj and Ajay Patwa and charge under Section 411 of IPC was framed against accused Jai Prakash, to which they pleaded not guilty and claimed trial.
4. To bring home the guilt of the accused, the prosecution examined as many as eight witnesses. Relevant portions of their testimonies are reproduced hereinbelow.
The complainant Sanjeev Kumar was examined as PW-1, deposed that on 13.05.2018, he had gone to Caching Center for an exam leaving his cousin Vivek at home and when he returned at about 2:00 p.m. did not find his Laptop Make HCL, mobile phone HTC Dezire having SIM of Airtel No. 9936273516, Laptop Bag and purse of his brother containing Voter I-Card, PAN Card, Aadhar Card, DL and Rs.300/-. He lodged an e-FIR for theft of said articles. He further deposed that on 14.05.2018, police officials FIR No. 183/2018 3 of 12 State Vs. Suraj & Ors.
contacted him and recorded his statement Ex.PW-1/A and site plan Ex.PW-1/B was prepared at his instance and he handed over self attested photocopy of stolen laptop. He further deposed that on 20.05.2018, police officials informed him regarding recovery of stolen laptop and mobile phone, which was released to him through Court.
During his cross examination by defence, he admitted that he was not present at the time of commission of theft of his laptop and mobile phone, hence, he cannot identify the accused persons. He further admitted that the bill of the laptop was not in his name and the recovery of his laptop was not made in his presence.
5. Shri Vivek Singh was examined as PW-3 and deposed that on 13.05.2018, his younger brother Sanjeev Singh went to Karol Bagh for his exam between 8:00 a.m. to 2:00 p.m. and he mistakenly kept the door of room open. When his brother returned at 2:00 p.m., found his laptop and other documents missing and informed him that someone had stolen his laptop bag containing his laptop Make HP, one mobile phone HTC and one wallet containing Voter I-Card, PAN Card, Aadhar Card, DL and Rs.300/- cash. Thereafter, he registered an e-FIR for the theft and IO recorded his statement During cross examination, witness admitted that he neither saw the theft committed by the accused nor can identify the accused persons.
6. Ct. Mahender Kumar was examined as PW-4 who deposed that on FIR No. 183/2018 4 of 12 State Vs. Suraj & Ors.
18.05.2018, he joined the investigation with ASI Rajesh Kumar and disclosure statement of accused Suraj Ex.PW4/A was recorded in his presence alongwith pointing out memo Ex.PW4/B and he was arrested vide Arrest Memo Ex.PW4/C. He further deposed that on 20.05.2018, accused Ajay Patwa was apprehended and his disclosure statement Ex.PW4/D was recorded. Thereafter, at the instance of accused Suraj and Ajay Patwa, they went to H. No. 2, C-Block, Aman Vihar where accused Jai Prakash met and took out two laptop make Apple and HLC and one mobile phone make HTC from his bed. HTC mobile phone and HLC Laptop were found to be the case property of the present case. Articles were seized vide memo Ex.PW4/E and disclosure statement of accused Jai Prakash Ex.PW4/F was recorded. Accused Ajay Patwa and Jai Prakash were arrested vide memo Ex.PW4/G and Ex.PW4/H and their disclosure statement Ex.PW4/I and Ex.PW4/H were recorded. Accused persons were correctly identified by the witness.
During his cross examination by defence, th e witness admitted that IO did not inquire /ask any public person to join the investigation. He also admitted that there is no eye witness in the present matter.
7. Ct. Amit was examined as PW-5 who deposed that on 20.05.2018, he was on night duty with Ct. Mahender and SI Satbir and accused Suraj, who was already arrested in case FIR No. 108/2018, disclosed that his associate Ajay FIR No. 183/2018 5 of 12 State Vs. Suraj & Ors.
Patwa can be apprehended near Pusa Chambry. They went to Pusa Chambry where accused Ajay Patwa was arrested and disclosed that the stolen property was kept with Aslam, who is residing at Gali No. 22, Baljeet Nagar, Delhi. On reaching there, accused Aslam was arrested and four laptops, four mobile phones and six watches were recovered from accused Aslam. Cusody of accused Aslam was handed over to ASI Noor Hasan. During interrogation, accused disclosed that they can get recover the stolen article, which was lying with Jai Prakash. Thereafter, accused Suraj and Ajay Patwa took them to house of Jai Prakash at Aman Vihar, where two laptops and one phone were recovered. He also relied upon the documents already exhibited.
During his cross examination by defence, he admitted that IO did not inquired/asked any public person to join the investigation. He also admitted that there is no eye witness in the present matter.
8. Investigating Officer ASI Rajesh was examined as PW-6 and deposed that on 13.05.2018, investigation of e-FIR regarding theft of mobile, laptop and some other articles were marked to him. On 14.05.2018, he recorded the statement of complainant Ex.PW1/A and prepared site plan Ex.PW1/B at the instance of complainant.. He further deposed that on 18.05.2018, HC Vinod intimated him that Suraj had made a disclosure statement wherein he confessed of having committed theft along with his associates of the articles FIR No. 183/2018 6 of 12 State Vs. Suraj & Ors.
of the complainant in the present case and accused Suraj was arrested vide arrest memo Ex.PW4/C and his disclosure statement Ex.PW4/A and point out memo Ex.PW4/B was prepared at the instance of accused Suraj. He further deposed that at the instance of accused Suraj, co-accused Ajay Patwa was arrested from a structure near Pusa Chambry. At the instance of accused Suraj and Ajay Patwa, accused Jai Prakash was apprehended from Hari Enclave, Aman Vihar. Two laptops and one mobile phone including some other articles were recovered from accused Jai Prakash and the same were seized vide seizure memo Ex.PW4/E. Thereafter, accused Ajay Patwa and Jai Prakash were arrested vide arrest memo Ex.PW4/G and Ex.PW4/H and their detailed disclosure statements Ex.PW4/I and Ex.PW4/J were recorded and pointing out memo Ex.PW6/A was prepared at the instance of accused Ajay Patwa and Jai Prakash. Witness identified all accused persons in Court.
During cross examination, this witness admitted that though recovery was effected in his presence, but he did not sign the seizure memo. He further admitted that he did not inquire regarding tenancy/ownership of house of accused Jai Prakash when he was apprehended from his house.
9. SI Satyabir was examined as PW-7 and deposed that on 20.05.2018, accused Suraj, who was in PC Remand took them to Pusa Chambery where accused Ajay Patwa was apprehended at the instance of accused Suraj.
FIR No. 183/2018 7 of 12
State Vs. Suraj & Ors.
Thereafter, disclosure statement of accused Ajay Patwa recorded and accused Suraj Patwa took them to Hari Enclave where accused Jai Prakash was apprehended, two laptops and one mobile phone was recovered from accused Jai Prakash and the same was seized vide memo Ex.PW4/B. On inquiry, one laptop and one mobile were found to be the case property of present case. Disclosure statements of all accused persons Ex.PW4/F, Ex.PW4/D and Ex.PW5/A were recorded. Witness identified all accused persons in Court.
During cross examination, Investigating Officer admitted that accused Suraj took them to Pusa Chambry which is surrounded by heavy traffic. He further admitted that he neither asked any neighbourer to join the investigation before the entering the house of accused Jai Prakash nor made any investigation regarding ownership of property from where accused Jai Prakash was apprehended. He further admitted that signatures of ASI Rajesh were not obtained on the seizure memo of the articles allegedly recovered from Jai Prakash.
10. HC Vinod was examined as PW8 and deposed that on 17.05.2018, on receiving the PCR call he went to the spot where accused Suraj was already apprehended. He further deposed that accused disclosed that 4-5 days ago, he committed the theft of Laptop (HCL) and mobile (HTC) from F-Block, Second Floor, Patel Nagar, Delhi and sold the same to one Sunny at Tank FIR No. 183/2018 8 of 12 State Vs. Suraj & Ors.
Road, Karol Bagh for Rs.8,000/-.
During cross examination, this witness admitted that though disclosure statement of accused was recorded in his presence, the IO did not obtained his signatures of the same. He further admitted that case property of the present case was not recovered in his presence.
11. Thereafter, statements of accused person were recorded under Section 313 of Code of Criminal Procedure (hereinafter referred to as 'Cr.PC') wherein incriminating circumstances against the accused persons were put to them and they reiterated their innocence, denied all the allegations levelled against him and took a plea that they have been falsely implicated by the police and no recovery has ever been effected from them and the alleged articles were planted by the police officials.
12. Final arguments have been heard during which, learned APP for the State vehemently argued that the prosecution has been successfully able to prove its case beyond reasonable doubt. He further added that the accused persons are habitual offender and there are sufficient material available on record to convict them for the charged offences.
13. Refuting the arguments addressed on behalf of learned Prosecutor, learned LAC for the accused persons submitted that the accused persons have been falsely implicated in the present case; that prosecution failed to bring on record any independent witness in support of the alleged recovery of stolen FIR No. 183/2018 9 of 12 State Vs. Suraj & Ors.
property from the possession of the accused persons. He further contended that the testimony of police officials cannot be relied upon being doubtful, improbable and biased.
14. This Court heard the rival submission advanced on behalf of the prosecution as well as learned counsel for the accused persons and carefully examined the entire material available on record.
15. The case of the prosecution against accused Suraj and Ajay Patwa is that they assisted in concealment of stolen property as per Section 414 of IPC and accused Jai Prakash dishonestly received/retained the stolen property under Section 411 of IPC.
16. To bring the accused within the ambit of Section 411 of IPC, the prosecution is required to prove the ingredients of Section 411 of IPC that the accused had dishonestly retained the stolen property knowing or having reason to believe it to be stolen. The main ingredients for commission of offence under Section 411 IPC are that i) The property should be a stolen property;
ii) The person receiving it should have knowledge or reason to believe that the same is a stolen property.
17. As per the law of land, any confession made in police custody is inadmissible under Section 25 of the Indian Evidence Act. However, so much of the recovery which is on the basis of disclosure would be admissible under Section 27 of the Indian Evidence Act but in such cases FIR No. 183/2018 10 of 12 State Vs. Suraj & Ors.
where recovery forms the sole ground for conviction of the accused, it becomes essential for investigating agency to make an independent or public witness as per the law.
18. Undoubtedly, conviction can be based on the testimony of police officials but subject to condition that the same inspires confidence and found to be trustworthy & reliable and the absence of any independent witness to lend corroboration, does not in any way affect the creditworthiness of the case of the prosecution.
19. However, in the present case the alleged recoveries were made during police custody in absence of independent witness and the investigating agency failed to make any sincere efforts to join any public person during recovery proceedings in disobedience of the law laid under Section 100 (4) of Cr.PC , which is evident from the testimony of PW-2 Ct. Mahender Kumar, PW-3 Ct. Amit as well as of the Investigating Officer. Such failure on the part of the investigating agency casts serious doubt upon the prosecution story.
20. Further, all the police officials (PW-4 Ct. Mahender Kumar, PW-5 Ct.
Amit, PW-6 ASI Rajesh) failed to depose before the Court the description of the property and the location from where the alleged recovery of articles were made, casts serious doubt on the story set up by the prosecution.
21. In view of the facts and circumstances of the case, it is crystal clear that the prosecution has failed to prove its case beyond the shadow of reasonable FIR No. 183/2018 11 of 12 State Vs. Suraj & Ors.
doubt, as the prosecution story is highly doubtful and the benefit of doubt is the right of the accused. It is also an established law of the land that the accused should not be convicted in doubtful circumstances. Consequently, accused Suraj and Ajay Patwa are acquitted for the charge under Section 414/34 of IPC and accused Jai Prakash for the charge offence under Section 411 of IPC in the present FIR.
Announced in open Court (Shefali Barnala Tandon)
today i.e. on 02.03.2021 ACMM (West)/THC/Delhi
(The judgment contains 12 pages in all )
FIR No. 183/2018 12 of 12
State Vs. Suraj & Ors.