Delhi District Court
State vs Rajesh Etc on 6 March, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
WEST DISTRICT, TIS HAZARI COURTS
DELHI
Presided over by- Mr. Milan Goel, DJS
Cr. Case No.65677/16
FIR No. 296/12
PS Rajouri Garden
Cr. Case No. : 65677/16
FIR NO. : 296/12
Police Station : Rajouri Garden
Date of commission of offence : 01.08.2012
Date of institution of the case : 26.09.2012
Name of the complainant/ : Sh. Ravi Bindra S/o Late Sh. Satpal Bindra,
informant H.No. 242 B Green MIG, DDA Flat,
Rajouri Garden, Delhi
Name of accused and address : 1. Rajesh S/o Devi Dass R/o H.No. 28, 12.5
Gaj Raghubir Nagar, Delhi.
2. Raju S/o Kamlesh R/o H.No.C-193 Jain
Colony, Mangal Bazar, Uttam Nagar, Delhi
Offence complained of or proved : U/s 380, 457, 411/34 Indian Penal Code
(hereinafter referred to as IPC)
Plea of the accused : Pleaded not guilty
Final order : CONVICTION u/s 457 & 411 IPC
ACQUITTAL u/s 380 IPC
Date of judgment : 06.03.2024.
State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 1/11
Digitally signed
by MILAN
MILAN GOEL
GOEL Date:
2024.03.06
17:36:55 +0530
BRIEF STATEMENT OF REASONS FOR DECISION: -
1.Briefly stated, case of the prosecution is that on 01.08.2012 at about 06:15 AM at House No. 242 B, DDA Flat, Green MIG, Rajouri Garden Delhi both accused persons in furtherance of their common intention committed lurking house trespass at night and committed theft of geysers and other house hold items, and further the stolen property was recovered from the possession of the accused persons and thereby committed an offence punishable u/s 380/457/411/34 IPC, for which a FIR was lodged in PS Rajouri Garden.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). Relevant record was collected. Final report under section 173 CrPC, was prepared against the abovenamed accused persons and chalan was presented in the court on 26.09.2012. After taking cognizance of the offence, the accused persons were summoned to face trial.
3. On their appearance, a copy of chargesheet was supplied to them in terms of section 207 of CrPC. On finding a prima facie case against the accused persons, charge under section 380/457/411/34 IPC was framed against the accused persons for which the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial for the offence u/s 380/457/411/34 IPC, prosecution led the following oral and documentary evidence against the Accused persons to prove its case beyond reasonable doubt:
State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 2/11 Digitally signedMILAN by MILAN GOEL Date:
GOEL 2024.03.06 17:37:04 +0530 ORAL EVIDENCE PW1 :- Ravi Bindra (Complainant in the present case) PW2 :- HC Ram Sahai (Duty Officer) PW3 :- Ct. Vijender Kumar (IO Accompanying witness in the present case) PW4 :- HC Charan Singh (MHC(M) in the present case) PW5 :- Sh. Sachin Bindra (eye witness in the present case) PW6 :- ASI Heera Lal (IO in the present case) DOCUMENTARY EVIDENCE Ex. PW-1/A :- Complaint of Complainant Ex. PW1/B :- Seizure memo of bathroom fittings Ex. P-1 :- Case property Mark. PH1 :- Photograph of broken rear door of the flat Mark PH2 :- Photographs of the spot from where case property was removed.
Ex. PW 1/D :- Arrest memo of the accused persons and Ex.
PW1/E Ex. PW 1/F :- Site Plan Ex. PW 2/A :- Copy of FIR Ex. PW 2/B :- Endorsement on rukka Ex.PW3/A :- Personal Search Memo of the accused and Ex. persons PW3/B Ex.PW-4/A :- Entry No. 4192 in Register No.19 (OSR) Ex. PW-6/A :- Tehrir Ex. PW -6/B :- Disclosure statement of the accused persons and Ex.
PW6/C
5. PW-1/Ravi Bindra deposed that on 01.08.2012 in the morning at about 05:00 or 05:30 am, he received a phone call from Dr. Mehrotra who informed him State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 3/11 Digitally signed MILAN by MILAN GOEL GOEL Date:
2024.03.06 17:37:11 +0530 that some theft had taken place in his house. After receiving the information, he along with his wife and nephew went to H. No. 242, DDA flats, Rajouri Garden. PCR Van had already arrived there. He noticed that the back entrance door of his flat was broken open by breaking open the lower wooden portion of the door. The front entrance gate was having the lock intact. The lock was opened and he went inside. All the almirahs were found being broken open, valuable articles including geysers, bathroom fittings, kitchen fittings, TV set and Medals and Trophies were found stolen. Two persons were found hiding behind double bed and police apprehended them. Police recorded his statement which is Ex. PW1/A, some bathroom fittings were recovered from the accused persons which were seized vide seizure memo Ex. PW1/B. The accused persons were arrested vide memos Ex. PW-1/D and PW-1/E. The witness identified the recovered bathroom fittings and geyser pipe as the property which was stolen from his house, and the said case property is Ex. P1. Photographs of the spot were identified by the witness and the same were Ex. PH1. The accused persons and case property were correctly identified by the witness. The witness was not cross examined despite opportunity by the accused persons.
6. PW-2/HC Ram Sahai is the duty officer who deposed about the registration of FIR. The witness was not cross examined despite opportunity.
7. PW-3/Ct. Vijender Kumar deposed that he was posted as Ct. at PS Rajouri Garden. On that day at about 07:00 Am on receipt of DD No.8, he along with IO HC Hira Lal went to the spot where two persons namely Ravi Bindra and Sachin met them and they produced two thieves. One accused Rajesh was carrying two water taps with pipe. Thereafter, IO recorded the statement of the complainant. On instruction of IO, he took rukka to the PS and got the FIR registered. He again came to the spot with copy of FIR. The recovered taps State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 4/11 Digitally signed MILAN by MILAN GOEL GOEL Date:
2024.03.06 17:37:19 +0530 were taken into possession vide seizure memo PW-1/B. The accused persons were arrested vide memos Ex. PW-1/D and PW-1/E. The accused persons were personally searched vide memos Ex. PW-3/A and PW-3/B. Thereafter, one purse and one mobile phone were recovered from the possession of the accused Rajesh during his personal search. Thereafter, they brought both the accused persons and recovered case property to the PS. The witness correctly identified the accused persons. The witness was duly cross examined by Ld. Counsel wherein he stated that Complainant met them at the front of the gate of his flat; no security guard was present there; and no identification mark was printed on the water tap and pipe.
8. PW-4/HC Charan Singh brought the original register No. 19 wherein vide Sr. No.4192, HC Heera Lal had deposited the case property which is Ex. PW-4/A (OSR). The witness was not cross examined despite opportunity by the accused persons.
9. PW-5/Sh. Sachin Bindra deposed that on 01.08.2012 he along with his chacha/Complainant had gone to his house i.e. H. No. 242 DDA flat, Rajouri Garden. They noticed that back entrance door of the said flat was broken open by breaking the lower portion of the door and the front entrance door was having lock intact. When they went inside the accused persons were breaking the sanitary fitting of the bathroom and were apprehended by them. The accused persons and case property were correctly identified by the witness. The witness was not cross examined despite opportunity by the accused persons.
10.PW-6/ASI Heera Lal submits that on 01.08.2012 he was posted as HC at PP MIG Flats in the area of PS Rajouri Garden. He received the information of this case vide DD No. 8A. Thereafter, He along with Ct. Bijender reached at State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 5/11 Digitally signed by MILAN MILAN GOEL GOEL Date:
2024.03.06 17:37:27 +0530 the spot i.e. H. No. 242B Green MIG DDA Flats Rajouri Garden, New Delhi where he met complainant Sh. Ravi Bindra and his nephew Sachin Bindra and he narrated the entire incident to him. Both Ravi Bindra and Sachin Bindra had already apprehended two persons and handed over the custody of both these persons to him along with two geysers Plastic pipe and two totti. Thereafter, he recorded the statement of the complainant Ravi Bindra which is Ex. PW-1/A. Both accused disclosed their name as Rajesh and Raju. Case property was seized vide seizure memo Ex PW1/B. Thereafter, he prepared tehrir Ex. PW- 6/A and same was handed over to Ct. Bijender for registration of FIR. Site plan was prepared at the instance of the complainant Ex. PW-1/F. He recorded disclosure statement of the accused Ex. PW-6/B and Ex. PW-6/C. Accused were arrested vide memos Ex. PW-1/D and Ex. PW-1/E. He conducted personal search of the accused vide memos Ex. PW-3/A and Ex. PW-3/B. The witness correctly identifies the accused and the case property. The witness was duly cross examined by the counsel for the accused in which he submits that 5-7 public persons were present at the spot but they went away without disclosing their names and denied the suggestion that accused persons have been falsely implicated in the present case.
STATEMENT OF ACCUSED PERSONS
11.Examination of the accused persons u/s 313 CrPC was recorded on 22.09.2022. Accused persons stated that they have been falsely implicated in this case and wished to lead defence evidence. However, despite opportunity, no Defence Evidence was led and the matter was then listed for final arguments.
ARGUMENTS AND ANALYSIS
12.I have heard Sh. Chetan Mittal, Ld. APP for the state and Ld. Counsel for the accused persons at length. I have also given my thoughtful consideration to the material appearing on record.
State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 6/11Digitally signed by MILAN MILAN Date:
GOEL GOEL 2024.03.06 17:37:37 +0530
13.It is argued by the Ld. APP for the state that there is sufficient material on record to convict the Accused persons for the said offences.
14.Per contra, the Ld. Counsel for the accused has argued that the state has failed to establish its case beyond reasonable doubt and there are several contradictions in the case of the prosecution. Hence, nothing has come on record against the Accused persons. As such, it is prayed that the Accused persons be acquitted for the said offence.
15.Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the Accused has to be rebutted by the prosecution by reducing cogent evidence that points towards the guilt of the Accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
16.For proving its case, the prosecution was required to establish that the accused persons had entered into the property with intent to commit an offence punishable with imprisonment at night after having made preparations to conceal their trespass in the property from the owner/possessor of the property. Further, it was also required to be established that the accused persons intending to take dishonestly the stolen items out of the possession of the complainant and without the consent of the complainant had moved it in order to such taking from the said house. Further, the prosecution was required to prove that the Accused persons were found in possession of stolen property, having knowledge or reason to believe that the property was stolen.
State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 7/11MILAN Digitally signed by MILAN GOEL GOEL Date: 2024.03.06 17:37:46 +0530
17. The star witnesses in the present case were PW-1/Ravi Bindra and PW- 5/Sachin Bindra. Both the witnesses have deposed that they had gone to the premises in question on 01.08.2012 in the morning after receiving news of theft in the premises and upon reaching the premises, the back door of the house was found to be broken and once they went inside the Accused persons were found in possession of bathroom fittings and geyser pipes. They both have also consistently deposed that the said property was seized by the IO in their presence from the accused persons at the spot. Further, the witnesses have identified correctly the recovered case property and the photographs of the spot of incident, including the spot from which the back door of the house was broken and the spot from which the bathroom fittings were broken and stolen. It is pertinent to note that both PW-1 and PW-5 have not been cross-examined by the Accused persons despite opportunity. In view of the categorical deposition of both PW-1 and PW-5, it is proved that the accused persons had entered into the house of the complainant without consent (which is proven by the broken back door); at night (since as per testimony of PW-1, the phone call of theft by Mr. Mehrotra was received at around 5:30 am, i.e., before sunrise); after having made preparations to conceal the trespass from the owner/possessor of the property (which is evident from the fact of trespass having been done at night and through the back door of the house, leaving the front lock intact and the accused persons having been found hiding behind the double bed at the time of apprehension). Therefore, the offence punishable under Section 457 IPC, stands duly proved.
18.As far as the offence punishable u/s 380 IPC is concerned, it is seen that while PW-1 has deposed that when they entered the house, the accused persons were found hiding behind the double bed, PW-5 has deposed that the accused persons were found removing the bathroom fittings. PW-1 had in his initial State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 8/11Digitally signed MILAN by MILAN GOEL Date:
GOEL 2024.03.06 17:37:56 +0530 complaint, Ex. PW1/A stated that when he entered the house, the Accused persons were found removing the bathroom fittings, however, in his examination in chief he has deposed that they were found hiding behind the double bed. Despite this change in stance, the prosecution has not cross- examined him. Further, PW-1/Complainant has deposed that several valuable articles went missing including geysers, trophies, TV etc, however, neither the list of such articles has been furnished by him conclusively, nor have the said articles been recovered or found at the spot. In fact, PW-1 has in his examination in chief deposed that it appeared that one companion of the Accused persons had already run away from the spot with the valuable articles. The IO has not got the spot inspected by the crime team or gotten the finger prints lifted. There is no unequivocal ocular evidence that the accused persons were seen committing the theft. The Accused persons have not been found to be in possession of the entire inventory of stolen articles. The PCR caller has not been identified or examined, as PW-1 has only deposed that when they reached the spot, the PCR van was already there. There is admittedly no CCTV footage covering the incident. In these circumstances, it cannot be stated that prosecution has proved beyond all reasonable doubt that the accused persons had committed the theft of the articles.
19.However, as far as the offence punishable u/s 411 IPC is concerned, it is proved by the prosecution beyond all reasonable doubt that there was a stolen property, as the same stands proved from the testimony of PW-1 and the photograph of spot of incident, Mark PH-2. Further, from the unequivocal and unchallenged testimony of PW-1 and PW-5, it is also proved that the accused persons were found in possession of a part of the stolen property, i.e., two geyser pipes and two tap fittings. The seizure memo, Ex. PW1/B also bears the signature of PW-1, who has identified the same as well. Further, from the State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 9/11Digitally signed by MILAN MILAN GOEL Date:
GOEL 2024.03.06
17:38:06
+0530
circumstances surrounding the recovery, i.e., the presence of the accused persons in the house of the complainant shortly after the commission of the offence of theft, with part of the stolen property, hiding behind the double bed, it can be safely deduced that the accused persons were having knowledge that the said property was stolen. PW-1 and PW-5, who are the public witnesses to recovery have not been cross-examined by the Accused persons despite opportunity. Further, throughout the trial, no explanation has been offered by the Accused persons for their presence at the spot with the property. In these circumstances, the offence under Section 411 IPC stands duly proved.
20.Ld. Counsel for the accused has taken the defence that no other public witness has been examined by the prosecution to corroborate the testimony of the complainant/PW-1 and his relative/PW-5; despite the IO stating in his cross- examination that there were other public witnesses present at the spot. Hence, reasonable doubt has been raised in their testimony.
21. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of a victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is a victim of the offence is well settled. The testimony of a victim stands on a higher footing. For appreciating the evidence of a victim, the Court has to see that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence was committed by the accused. Being the victim of the crime, he would be most keen to ensure that State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 10/11 MILAN Digitally signed by MILAN GOEL GOEL Date: 2024.03.06 17:38:13 +0530 the real culprit does not go scott free. The testimony of PW1 is cogent and convincing and is supported in material particulars by the testimony of PW-5. I do not find any material contradiction in the testimony of PW1 and PW-5 with other material on record.
22.In view of the above said discussion, I am of the conclusion that the prosecution has been able to prove its case successfully beyond reasonable doubt against the accused Rajesh and Raju for the offence punishable under Sec. 457 & Sec. 411 IPC. They are therefore convicted for the offences punishable u/s 457 & 411 IPC. However, the prosecution has not been able to prove the commission of offence u/s 380 IPC against the accused persons and hence, they are acquitted of the offence u/s 380 IPC. Ordered accordingly.
Announced in open court on 06.03.2024 in the presence of the accused persons.
The judgment contains 11 pages and each page have been signed by the undersigned. Digitally signed by MILAN Date:
MILAN GOEL GOEL 2024.03.06 17:38:22 +0530 (Milan Goel) MM-02/West/Delhi 06.03.2024 State v. Rajesh & Anr FIR No.296/12 PS Rajouri Garden Page No. 11/11