Delhi District Court
State vs Dipender Singh on 7 May, 2024
Page 1 of 19
IN THE COURT OF ASHISH KUMAR MEENA
MM-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.: 46/2011
PS: MEHRAULI
U/S: 454/380 IPC
CR. CASE NO. 2034030/2016
STATE
VS.
DEEPENDER SINGH @ DIPPEY
S/o LATE SH. CHANDAN SINGH
H. NO. 345, VILLAGE IGNOU ROAD
CHANDAN SINGH MARKET
SAIDULAJAB VILLAGE, NEW DELHI ...... ACCUSED
1. Sl. No. of the case : 2034030/2016
2. The date of offence : December 2010
3. The name of the complainant : Shish Ram
4. The plea of the accused : Not Guilty
5. Argument heard on : 09.04.2024
6. The date of order : 07.05.2024
7. The final order : ACQUITTAL
JUDGMENT
1. Briefly stated, the complainant Shish Ram filed a complaint submitted that his son namely Late Sh. Sonu ("Deceased") was murdered on 08.12.2009 in the shop bearing property no. 9, Chandan Singh Market, IGNOU road, Saidulajab, New Delhi ("Shop"). Accordingly, FIR No 640/2009 PS Mehrauli ("Previous FIR") was registered u/s 302 IPC. During investigation, the said property in question was sealed by the IO of case FIR No 640/2009 Digitally signed ASHISH by ASHISH KUMAR MEENA FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR Date:
2024.05.07 MEENA 16:39:09 +05'30' Page 2 of 19 as the same being site of offence and goods of deceased were lying inside the shop. However, the complainant noticed that the said shop was opened and it was being white-washed. At instance of IO of case F.I.R no 640/2009, the complainant filed present complaint with PS Mehrauli on apprehension that the said shop has been opened under the influence of the Landlord i.e. accused. Hence, the accused is facing trial on the allegations that in somewhere in the month of December, 2010 the accused committed house breaking by breaking open the lock of the shop in order to commit the offence of theft and dishonestly took away the foods of deceased Sonu lying in the said shop which was used for custody of property without the consent of the owner of the goods Sonu. Thus, the accused is booked under the Section 380/454 IPC.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C was filed on behalf of the IO. Consequently, accused was summoned after taking cognizance of offence. The accused was charged u/s 380/454 IPC and accordingly, the charge was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined seven witnesses. The complainant Shish Ram is examined as PW-1, who has deposed that his son namely Late Sh. Sony was running a shop in the name of Sonu Electronics which was situated at Chandan Singh Market, in front of Hanuman Dharam Kanta, IGNOU Road, Saidulajab, New Delhi on rent in the house of accused Deepender Singh. On 08.12.2009, his son was murdered inside the shop. Thereafter, the said shop was sealed by the police alongwith articles of the shop. However, after four FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:39:28 +05'30' Page 3 of 19 months of sealing of shop, he found the shop was opened and it was being white-washed. The articles lying inside the shop were also not present. Thereafter, at the instance of Police, he filed a complaint vide Ex. PW1/A. Later, he got to know that accused Deepender Singh has rented out the shop to third person.
4. PW-2 Pawan Kumar is the person to whom the accused allegedly rented out the premises. PW-2 has deposed that in 2011 he taken the shop in question on rent from the accused on monthly rent of Rs. 10,000/-. However, after 15 days of starting his shop the same got sealed by police officials vide Ex. PW2/A. During his examination, the witness correctly identified the accused.
5. PW-3 HC Raj Kumar has deposed that he joined the investigation alongwith SI Praveen Kumar. The IO arrested the accused vide Ex. PW3/A and conducted his personal search Ex. PW3/B. IO recorded disclosure statement of accused vide Ex. PW3/C.
6. PW-4 ASI Madan Lal is a formal witness. He has deposed that on 27.01.2011, Inspector Rajiv Kumar handed over rukka to him for registration of case. Thereafter, to brought rukka to police station and got FIR registered and handed over the same to IO to Praveen Kumar.
7. PW-5 ASI Abhay Raj has deposed that on 31.01.2011 he joined the investigation alongwith SI Praveen. On routing patrolling, he met SI Praveen and one person namely Pawan. The said shop was sealed by SI Praveen with lock & white cloth with the seal of "PK" and handed over the seal to him and prepared the memo.
ASHISH Digitally signed KUMA byKUMAR ASHISH MEENA FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey R Date: 2024.05.07 16:39:36 +05'30' MEENA Page 4 of 19
8. PW-6 Inspector Rajeev Kumar has deposed that he is the investigating officer of murder case FIR No. 640/2009 PS Mehrauli. As per the said FIR, a murder took place on 08.12.2009 in Shop No. 9m IGNOU Road, Saidulajab, New Delhi and deceased Sonu was the tenant of the Shop. Close relative of the landlord of the shop were arrested and charge sheeted by him. During investigation of murder case, the shop in question was locked by him for preservation of the scene of crime and safety of the items lying in the shop as well as because of no claimant came forward for the shop at that time. After some days, father of the deceased had filed an application for seeking status of shop with regard to opening thereof. On enquiry, it was found that the lock put up by him on the shop had been removed and possession thereof was with some other person. Accordingly, he made an endorsement on the said application and prepared rukka vide Ex. PW6/A and got registered present FIR. The investigation of present matter was marked to IO SI Praveen Kumar. During investigation, he handed over documents pertaining to FIR No. 640/2009 PS Mehrauli vide memo Ex. PW6/B. He also handed over the key of lock, which was earlier put by him on the said shop vide memo Ex. PW6/C. IO also prepared site plan at his instance.
9. PW-7 IO/Inspector Praveen Kumar (the then Sub-Inspector) has deposed that present matter was marked to him for investigation. He reached at the spot and prepared site plan at the instance of Inspector Rajeev Kumar vide Ex, PW7/A. Similarly, Inspector Rajeev Kumar handed him over documents pertaining to FIR No. 640/2009 PS Mehrauli. Further, as per directions of the then Ld. Additional Sessions Judge, he went to the spot on 31.01.2011 and found that Pawan is in the possession of the ASHISH Digitally by ASHISH signed FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:39:42 +05'30' Page 5 of 19 property. Upon examining, he told him that accused Deepender has rented the shop to him on monthly rent of Rs. 10,000/-. Thereafter, IO took photographs of the shop vide Ex. PW7/B (supported with certificated u/s 65B IEA vide Ex. PW7/C) and sealed the property vide sealing memo Ex, PW2/A and also seized the keys to the previous lock vide Ex, PW6/C. Thereafter, he arrested the accused, conducted his personal search and recorded his disclosure statement.
10. On completion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C, wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused chose to not to lead defence evidence.
11. Final arguments heard. Case file perused.
12. Short point for determination before this court is as under:
'' Whether on somewhere in the month of December, 2010 the accused committed house breaking by breaking open the lock of the shop in order to commit the offence of theft and dishonestly took away the foods of deceased Sonu lying in the said shop which was used for custody of property without the consent of the owner of the goods Sonu. Thus committed an offence u/s 380/454 IPC''
13. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the ASHISH Digitally signed by ASHISH FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:39:54 +05'30' Page 6 of 19 accused and hence prayed for conviction of accused as per the evidence produced by the prosecution witnesses.
14. It is argued by the Ld. Counsel for the accused that the accused is innocent and falsely implicated in the present matter. It is submitted the IO of previous FIR had no power to seal the property as the being immovable property. It is argued that no immovable property cannot be attached or sealed without prior approval of concerned Court. Ld. Counsel for accused has placed his reliance on Nevada Properties Pvt. Ltd. Through Its Directors vs The State of Maharashtra & Anr. AIR 2019 Supreme Court 4554. It is further submitted that there is no stolen article were recovered from the possession of the accused. Thus, no case is made out against the accused and he is liable to get acquittal.
15. In the present case accused is charged under Section 380/454 IPC.
16. Section 454 states that "Whoever commits lurking house- trespass or house-breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to ten years". Thus, in order to prove ingredient of Section 454 IPC, the prosecution must prove that the accused has committed lurking house trespass or house breaking in order to commit any offence. Further, a person is said to have committed house breaking if he affects his entrance into the house or any part thereof or affect his exist in any of the six ways described in the section 445 IPC. The six ways given in the said Section are as ASHIS Digitally signed by H ASHISH KUMAR FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMA MEENA Date:
R 2024.05.07
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follows: -
i. If he enters or quits through a passage by himself or by any abettor to commit house trespass.
ii. If he enters or quits through any passage not intended by any person other than himself or the abettor for human entrance; or through any passage to which he had obtained by scaling or climbing over any wall or building.
iii.If he enters or quits through any passage which he or any abettor has opened which passage is not intended by the occupier of the house to be opened.
iv.If he enters or quits by opening any lock to commit house trespass.
v.If he effects his entrance by using criminal force or committing assault or any by threating a person with assault.
vi.If he enters or quits by any passage which he knows to have been fastened against such entrance or departure and he had unfastened the same.
17. Section 380 IPC prescribes punishment for theft in a dwelling house. The offence theft is defined under Section 378 IPC and the essential ingredients to constitute an offence under Section 380 IPC are i. Intention to take dishonestly Digitally signed ii. The property shall be movable property. ASHISH by ASHISH KUMAR MEENA FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR Date:
2024.05.07 MEENA 16:40:11 +05'30' Page 8 of 19 iii. The property shall be taken out from the possession of any person without his consent.
iv. There should be some moving of the said property to such taking.
v. The theft should have been committed in a dwelling house or place used for safe custody of property.
18. In case at hand, as alleged, the deceased Sonu was a tenant of the said shop. Allegedly, he was murdered inside the said shop.
Thus, previous FIR No. 640/2009 was lodged at PS Mehrauli. Previous FIR was marked to Inspector Rajeev Kumar for investigation. During investigation, IO of previous FIR sealed the said shop for preservation of the scene of crime and safety of the items lying in the shop. However, during investigation, father of the deceased informed Inspector Rajeev Kumar that lock put up by him has been removed and possession of the shop was with some other person. He noticed that the articles lying inside the shop were not present. Father of deceased also notice that shop was being white-washed. Thus, at instance of IO/ Inspector Rajeev Kumar, father of the deceased gave a formal complaint to PS Mehrauli. Hence, present FIR was registered and the same was marked to Inspector Praveen Kumar (the then Sub-Inspector).
19. In view of preceding para, the prosecution was required to prove that the accused has removed the locks and took away articles lying inside the shop in order to rent out the said premises thereby committed offence punishable u/s 380/454 IPC. It is a matter of record that there is no eye-witness to present case. Thus, ASHISH Digitally signed by ASHISH FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ DippeyKUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:40:18 +05'30' Page 9 of 19 the prosecution case is mainly rests upon circumstantial evidences as there are no eye witness to the incident. Direct evidence is evidence which explicitly establishes a fact or proves any assertions made by the party and does not require supplementation and interference to form a connection between various facts. In very few cases direct evidence of facts is available. In other case main event has to be reconstructed before the Court with the help of the surrounding circumstances. The concept of circumstantial evidence has evolved through the interplay between statutes and judicial interpretation. Circumstantial evidence, also known as indirect evidence, is an unrelated chain of events which when put together formulates circumstances leading to the commission of the crime and can be used to derive a conclusion. In this regard, Hon'ble Supreme Court in Sharad Birdhichand Sarda V State of Maharashtra, AIR 1984 SC 1622, while dealing with circumstantial evidence held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence must be fully established. The said condition precedents are:
i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or should' and not `may be' established;
ii. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; ASHISH Digitally signed by ASHISH FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:40:25 +05'30' Page 10 of 19 iii. The circumstances should be of a conclusive nature and tendency;
iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
20. A similar view was re-iterated in State of UP V Satish, (2005) 3 SCC 114 and Pawan V State of Uttaranchal, (2009) 15 SCC 259. In Ashok Kumar V State of Madhya Pradesh, AIR 1989 SC 1890 the Hon'ble Supreme Court held that for circumstantial evidence to sustain conviction, the chain of events should be complete and should establish the guilt of the accused without probability of any other alternative. The evidence should be cogently and firmly established. Further, in the case of Bodh Raj V State of Jammu & Kashmir, AIR 2002 SC 316 the Hon'ble Supreme Court held that that for a conviction to be solely based on circumstantial evidence following conditions are required to be met:
i. Circumstances from which guilt is established are required to be proved and impenetrable ii. Circumstances should be conclusive in nature and should form a link between the criminal and commission of the offence ASHISH Digitally signed by ASHISH FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:40:32 +05'30' Page 11 of 19 iii. Circumstances should retain moral certainty and there should be no scope for any other hypothesis.
iv. All other hypothesis should be excluded except that one that is required to be proved
21. In Krishnan V State represented by Inspector of Police, (2008) 15 SCC 430 the Hon'ble Supreme Court after considering earlier judgments observed that (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii)those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
22. In present case, PW-1 has deposed that after four month of murder incident, he was passing in front of his shop in his vehicle and found that the shop was opened and being white-washed. Articles lying inside the shop were not present. Thus, he reported the matter to IO of previous FIR. However, in cross-examination, he deposed that he did not see accused inside the shop. He does not know who opened the said shop. In contradiction, he deposed that his son was getting the said shop white-washed. He further admitted that earlier statement regarding shop being white-washed after murder incident is incorrect. In view of this Court, the State Vs. Deepender Singh @ Dippey ASHISH Digitally signed FIR No: 46/2011 PS: Mehrauli by ASHISH KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:40:38 +05'30' Page 12 of 19 complainant did not see the accused opening the locks. Further, contradictory statement makes his version less reliable.
23. PW-6 Inspector Rajeev Kumar, IO of previous FIR, has also deposed that during investigation of murder case, the shop in question was locked by him. After some days, father of the deceased had filed an application for seeking status of shop with regard to opening thereof. On enquiry, it was found that the lock put up by him on the shop had been removed and possession thereof was with some other person. Accordingly, he made an endorsement on the said application and prepared rukka vide Ex. PW6/A and got registered present FIR. The investigation of present matter was marked to IO SI Praveen Kumar. During investigation, he handed over documents pertaining to FIR No. 640/2009 PS Mehrauli vide memo Ex. PW6/B. He also handed over the key of lock, which was earlier put by him on the said shop vide memo Ex. PW6/C. IO also prepared site plan at his instance. However, it is important to note that PW-6 has not produced any document reflecting list of articles lying inside the shop. PW-6 has not placed any document to show that he affixed any notice at outer door or conspicuous part of the shop in order to prove that the said shop is case property/crime scene of the case. There is no document on record which shows that the IO of previous case- initiated prosecution under section 201 IPC against the murder accused for destruction of evidence lying inside the shop. It is pertinent to mention that there is no recovery effected from the possession of the accused. The prosecution, in order to prove section 380 IPC, must show that list of articles alleged to be stolen from the shop in question. However, no such evidence has been tendered in evidence, which proves to be fatal to the case of FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:40:47 +05'30' Page 13 of 19 prosecution.
24. Furthermore, PW-7 IO/Inspector Praveen Kumar has deposed that present matter was marked to him for investigation. Inspector Rajeev Kumar handed him over documents pertaining to FIR No. 640/2009 PS Mehrauli. Further, as per directions of the then Ld. Additional Sessions Judge, he went to the spot on 31.01.2011 and found that Pawan is in the possession of the property. Upon examining, he told him that accused Deepender has rented the shop to him on monthly rent of Rs. 10,000/-. Thereafter, IO took photographs of the shop vide Ex. PW7/B (supported with certificated u/s 65B IEA vide Ex. PW7/C) and sealed the property vide sealing memo Ex, PW2/A and also seized the keys to the previous lock vide Ex, PW6/C. Thereafter, he arrested the accused, conducted his personal search and recorded his disclosure statement. PW-7 is strongly relying on the photograph of the crime scene/shop which shows that there are some articles lying inside the shop. However, in view of this Court, IO of this case did not make any effort to procure the list of articles lying inside the said shop from Inspector Rajeev Kumar. PW-7 did not make any effort to trace out the stolen property. Further, during cross-examination, PW-7 has deposed that he could not recover any articles or goods as stated by the father of the deceased. Merely by showing photographs of crime scene/shop cannot be only basis to convict the accused for offence punishable u/s 380 IPC. The prosecution has failed to link the chain of evidence to prove that the accused has committed theft of articles allegedly lying inside the said shop. Thus, no offence punishable u/s 380 IPC is made out against the accused.
25. As far as charge u/s 454 IPC is concerned, it very important FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey ASHISH Digitally by ASHISH signed KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:40:55 +05'30' Page 14 of 19 for prosecution to prove that the accused has committed offence of house-breaking. In order to prove house breaking, the prosecution must prove essential ingredient of criminal trespass. Section 441 IPC defines "Criminal-trespass" as "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass". Thus, before proving one of the six ways as described u/s 445 IPC, the prosecution, firstly, must prove that the accused had entered into property with intention to commit an offence or to intimidate, insult or annoy any person. It is to be noted that qualifying term of Section 441 IPC is "Intention to".
26. Ld. Counsel for the accused has strongly argued that the IO had no authority to seal the immovable property i.e the shop in question. It is argued that the accused always had the authority to enter into the premises of the shop. Hence, having the said authority, the accused cannot be held liable for house breaking. In support his argument, Ld. Counsel has placed his reliance on Nevada Properties Pvt. Ltd. Through Its Directors vs The State of Maharashtra & Anr.
27. Though, it is proved by the prosecution that deceased Sonu was tenant of the accused and the accused subsequently tenanted the said shop to Sh. Pawan Kumar during the course of investigation of previous FIR No. 640/2009 PS Mehrauli, but the point of contention before this Court is that whether IO of previous case was justified to seize the shop in question and if the accused ASHISH Digitally by ASHISH signed FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR Date: 2024.05.07 KUMAR MEENA MEENA 16:41:05 +05'30' Page 15 of 19 intentionally committed criminal trespass. In this regard, in Nevada properties case (supra), Hon'ble Supreme Court of India has specifically held that Investigating officer under Section 102 of the Cr.P.C can seize any property, which may be found under circumstances that create suspicion of the commission of any offence. However, "any property" would not include the power to attach, seize and seal an immovable property. Hon'ble Supreme Court has clarified that there is no bar or prohibition on the police officer from seizing documents/ papers of title relating to immovable property, as it is distinct and different from seizure of immovable property. Hon'ble Supreme Court observed as following:
"Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word 'seize' would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power ASHISH Digitally signed by ASHISH FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:41:12 +05'30' Page 16 of 19 under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure. Equally important, for the purpose of interpretation is the scope and object of Section 102 of the Code, which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge complained of and set up in the charge sheet. The Section is a part of the provisions concerning investigation undertaken by the police officer. After the charge sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102, use of the words in the Section and the scope and ambit of the power conferred on the Criminal Court vide Sections 451 to 459 of the Code."
"The word 'suspicion' is a weaker and a broader expression than 'reasonable belief' or 'satisfaction'. The police officer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences. In case and if we allow the police officer to 'seize' immovable property on a mere 'suspicion of the commission of any offence', it would mean and imply ASHISH Digitally signed by ASHISH FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:41:19 +05'30' Page 17 of 19 giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised."
28. As mentioned above, it is contended by the prosecution that the accused has committed house breaking by removing locks put up IO of previous FIR. It is contended that the previous FIR IO sealed the case property for preservation of site and evidence. However, IO/ Inspector Rajeev Kumar has deposed a different version. PW-6 Inspector Rajeev Kumar has deposed that during investigation of previous FIR, he locked the premises for perseveration of the scene of crime and for safety the items lying in the shop. He has specifically deposed that he never seized the shop in question. During cross-examination he stated that "I had not seized the shop, in fact, I had locked it. I had not recorded the statement of any public witness in regard thereof. (Vol- However, I had tried for the same, but no one came forward.) I did not obtain any acknowledgement/receipt for depositing of key of aforesaid lock in the malkhana, PS Mehrauli in case FIR No. 640/2009.". As per deposition of PW6, it is clear that he formally did not seize the shop. PW-6 has not tendered any memo in evidence to prove that he locked the premises for preservation of crime scene. Prosecution has not filed any document/memo prepared by previous IO so as to justify the act of locking the premises for indefinite period. Though, IO wanted to preserve the evidence available at crime scene, but IO do not have power to seize the immovable property for indefinite period. The act of seizure of immovable property by putting a lock is in violation of law laid down by Hon'ble Supreme Court in Nevada Properties ASHISH Digitally by ASHISH signed FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey KUMAR KUMAR Date:
MEENA 2024.05.07 MEENA 16:41:27 +05'30' Page 18 of 19 case. Further, it is correct the act of IO sealing the shop may not be legal, but no person has right to interfere or hinder in the investigation. The relief of de-sealing of the immovable property can only be granted by the concerned Court. A person is prohibited and not expected to take law into his/her own hand. The act of removing lock, put up by IO of previous FIR, is not correct way of retaining the possession of the shop, but the same cannot be disregarded by any person without obtaining proper order of concerned Court. However, there is no evidence available on record to prove that the accused intentionally removed the locks in order to commit any offence or to insult, intimidate or annoy any person. There is no evidence available on record which proves that accused entered into the premises to commit an offence of theft and or intentionally rented out the said premises to some other person in order to insult, annoy or intimidated. Furthermore, Section 441 IPC also states that the act must be done qua the person who is in the possession of the premises. However, in present case, the property in question was sealed and seized by the IO of previous FIR. Therefore, the complainant cannot be said to be in the possession of the shop. Furthermore, as discussed above, the act of sealing of the property in question is also doubtful. Moreover, the prosecution has failed to prove the charge punishable u/s 380 IPC against the accused. Thus, the case of accused entering into the shop with intention to commit an offence is not made out. Evidence tendered on behalf of prosecution does not form complete chain of evidence to show that the accused himself broke opened the locks in order to illegally regain the possession of the said shop. Thus, in view of the said discussion, no offence punishable u/s 454 IPC is made out against the accused. In view of this Court, IO of previous of this case should have FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2024.05.07 MEENA 16:41:36 +05'30' Page 19 of 19 initiated prosecution punishable u/s 201 IPC against the person who opened the shop and removed evidence of murder case lying inside the shop. However, as per available record, the previous IO did not investigate the matter u/s 201 IPC rather he got another FIR registered u/s 380/454 IPC.
29. Thus, in view of aforesaid discussion, it is very clear that the manner in which the investigation has been conducted on the spot, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
30. Hence, accused Sh. Dipender Singh @ Dippey S/o Late Sh. Chandan Singh stands acquitted of the offence under section 380/454 IPC, he has been charged with. Ordered accordingly.
ANNOUNCED IN THE OPEN COURT ON 07.05.2024. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO NINETEEN PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED.
Digitally signed by ASHISH ASHISH KUMAR MEENA
KUMAR MEENA Date: 2024.05.07 16:41:44
+05'30'
(ASHISH KUMAR MEENA)
MM-01/SAKET COURT(SOUTH),
NEW DELHI/ 07.05.2024
FIR No: 46/2011 PS: Mehrauli State Vs. Deepender Singh @ Dippey