Delhi District Court
State vs . Javed Page No.1 Of 14 on 16 October, 2020
State Vs. Javed Page No.1 of 14
IN THE COURT OF DR.JAGMINDER SINGH:
CHIEF METROPOLITAN MAGISTRATE (WEST DISTRICT)
TIS HAZARI COURTS: DELHI
State Vs. Javed
FIR No : 281/2016
U/s : 381/411 IPC
P.S. : Kirti Nagar
JUDGEMENT
1. Sl. No. of the Case : 76450/2016
2. Date of commission of offence : 19.07.2016
3. Date of institution of the case : 03.12.2016
4. Name of the complainant : Sh. Durgesh Dwivedi
5. Name of accused, parentage & : Javed
Address S/o Sh. Mohd. Kashim
R/o Village Guhigara Bhat
Gaon, PS Galgaliya, Distt.
Kishan Ganj, Bihar.
6. Offence complained off : u/s 381/411 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved: Not reserved
9. Final order : Acquitted
10. Date of final order : 16.10.2020
Brief statement of reasons for decision :
1. In the present case, the allegations against the accused are that FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.2 of 14 on 19.07.2016 between 02:00 pm to 04:00 PM at H. No. B62, Second Floor, Mansarovar Garden, Delhi, he being the servant of the complainant Sh.Durgesh Dwivedi, committed theft of one laptop, one mobile phone, one tablet Samsung, Rs.2 lacs, one gold chain with locket, original marksheets, RC of car no.MP09CS8564 and Axis Bank Cheque book belonging to complainant Sh.Durgesh Dwivedi from the aforementioned property and on 09.09.2016, aforesaid stolen laptop, tablet, mobile phone, election ID, cheque book of Axis Bank were found from his house which he possessed knowingly and having reason to believe the same to be the stolen property. At the complaint of complainant, Sh.Durgesh Dwivedi, the present case was registered and after completion of investigation, chargesheet was filed against the accused for the offence punishable under section 381/411 IPC.
2. After taking cognizance, accused was summoned. Copy of charge sheet was supplied to him. On the basis of primafacie evidence, charge framed against the accused for the offence punishable under Section 381/411 IPC, to which he pleaded not guilty and claimed trial.
3. Prosecution has filed the list of 13 witnesses and examined 08 witnesses.
4. PW1 Sh. Sunil Paswan stated that he is Sarpanch of village Nimu Guri. He had gone to PS Galgaliya for some work, where he met with some police officials of Delhi police. He signed one document in respect of bag recovered by Delhi police officials. One person namely Kasim brought FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.3 of 14 the bag to PS Galgaliya. He do not remember the exact date and what was inside the bag.
5. PW2 Sh. Durgesh Dwivedi stated that on 19.07.2016, he was residing at B62/2nd Floor, Mansarovar Garden, Near Bharat Dharam Kanta, Kirti Nagar, Delhi. He was residing on the above said address since 20.04.2016. He is residing in Delhi since the year 201314 and since then, he had employed one servant namely Javed on permanent basis, who was also residing inside his house with him. He have to travel a lot due to his business and accused Javed always used to go with him whenever he was travelling. Accused Javed was also living with him at B62/2nd Floor, Mansarovar Garden, Near Bharat Dharam Kanta, Kirti Nagar, Delhi. On 19.07.2016, some of his friends had come to his house. On the said date, at about 01:30 or 02:00 pm, he along with his friends went to market leaving behind his servant Javed at home. When he came back at about 04:00 pm, he found that his house was locked. One of the key of the house used to be with him and other used to be with accused Javed. He opened his house with his key and went inside. There he found that his laptop whose make he do not remember along with its accessories and bag, Tablet make Samsung, Nokia Mobile phone, cash of Rs.2 lacs, one gold chain with locket, his original certificates of Senior Secondary and graduation and RC of his car were missing and other documents of his Axis Bank were also missing. His servant accused Javed was also not found at home. On not FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.4 of 14 founding accused/servant Javed at home, he called the accused but mobile phone of accused was switched off. He called at 100 Number from his other mobile phone. After about 10 minutes, police arrived at his home. Police officials searched the accused and case property in the nearby area but to no avail. Thereafter, police official recorded his statement Ex.PW2/A. He went in the search of accused Javed along with police officials but he do not remember the place of search. The site plan is Ex.PW2/B, however, he do not remember when and where the said document was prepared. After 23 days, he handed over copy of bills of laptop and tab to police officials which were seized vide seizure memo Ex.PW2/C, however, it does not bear his signature. The photocopy of bills of laptop and tab are marked P1 and P2. He identified the accused before the Court. He identified the recovered case property through photographs i.e. laptop bag, laptop make HP, mobile phone make Nokia, mouse, charger, keys, photocopy of voter ID and PAN card and Samsung Tablet as Ex.P2 Colly.
6. PW3 HC Ram Niwas stated that on 19.07.2016, he was on beat duty within the area of PS. He received one call regarding an incident of theft at B62, 2nd Floor, Mansarovar Garden. Upon the said call, he reached at the above said spot where he met HC Jai Parkash who handed over him the original Tehrir to get the FIR registered. He went to PS Kirti Nagar and got the FIR registered and returned back to the spot along with copy of FIR and original tehrir and handed over the same to HC Jai Parkash.
FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.5 of 14 Thereafter, he along with IO and complainant went in search of accused to Gamdi at House No.130, Gali No.13. The said address was found to be incorrect, thereafter despite efforts they could not locate accused Javed. Thereafter, they returned back to the PS. His statement under Section 161 Cr.P.C was recorded by the IO.
7. PW4 Mohd. Ishaq stated that presently he is involved in agriculture work. He do not know anything about the present case. He identified the accused Javed before the Court during evidence. He further stated that his signatures were taken on blank papers.
8. PW5 Mohd. Hasmuddin stated that presently, he is working as social worker in Panchayat Samiti. He do not remember the exact date, however it was somewhere in year 2016, some officials of Delhi Police came to his above said village. He was called to join the proceedings by the local police officials. He along with officials of Delhi Police went in search of accused Javed Khan to his house located in their village. Accused Javed Khan could not be found at the house, after some pursuation, father of accused Javed Khan produced one black colour bag. Upon checking the said bag, one laptop make HP, charger and some mobile phones and a key was taken out. There were some other documents as well which he do not remember due to lapse of time. The said articles and the bag were taken into police possession by the police officials and the pullinda was also sealed vide seizure memo Ex.PW1/B. He identified the bag, laptop, mobile FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.6 of 14 phone and other articles recovered from the bag through photographs Ex.P1 & P2.
9. PW6 ASI Sachidanand (inadvertently mentioned as PW3) stated that on 09.09.2016, he was posted at PS Galgaliya, District Kishanganj, Bihar. On that day, police officials of Delhi Police came to PS Galgaliya. He along with police officials of Delhi Police went to village Bhat Gaon, Guhi Gara, Block Thakurganj, District Kishanganj, Bihar for the search of accused Javed but accused was not found at the house. They met Sh. Kasim who is father of accused Jawed at the house. Sh. Kasim handed over one black bag to delhi police officials containing HP Laptop, Charger of Laptop, Samsung Tablet, Nokia Mobile Phone, Bunch of Keys, one paper having account number of axis bank, Statement of Durgesh. Aforesaid articles were seized by Delhi police vide seizure memo already Ex.PW1/B. He identified case property Ex.P1 & PW2 (Colly).
10. PW7 Ct. Vinod Kumar (inadvertently mentioned as PW6) stated that on 09.09.2016, he had joined the investigation of present case. He along with IO/HC Jai Prakash went to village Kishanganj, Bihar, in search of accused Mohd. Jawed. Upon reaching the said village, they went to the local police officials and from there, they went to house of accused Jawed. Accused Jawed could not be found over there. There they met Mohd. Kasim who was father of accused Jawed. Said Kasim informed that accused Jawed had gone to Delhi about one and half month ago and FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.7 of 14 thereafter, returned back to the house and after about 34 days, accused went to Mumbai. One black colour bag was left over by accused Javed at the house. Kasim produced the said bag, upon checking the same, one laptop make HP, charger, mouse, one samsung tablet, nokia mobile phone, key rings and Identity documents of one Durgesh Kumar and statement of account of Durgesh Kumar were found in said bag. The said bag was seized by IO by preparing a Pullanda and sealed with the seal of JP vide seizure memo Ex.PW1/B. Thereafter, his statement was recorded u/s 161 Cr.P.C. and they returned back to Delhi and case property was deposited in Malkhana. He identified the recovered case property through photographs i.e. Ex.P1 to Ex.P2 (Colly).
11. PW8 HC Anand MHC(M), PS Kirti Nagar (inadvertently mentioned as PW7) stated that on 13.09.2016, HC Jai Prakash deposited in the Malkhana of PS one sealed black colour bag duly sealed with the seal of JP. He recorded the fact of said depositing of case property in register no.19 of PS vide entry no.2262. Copy of said entry is Ex.PW7/A. He had also produced original register no.19 of 13.09.2016 in the Court. On 08.10.2016, the seized articles were released to one Durgesh Kumar Dwivedi vide order of Court.
12. Therefore, no other witness was examined by the witness. The accused had admitted certain documents i.e. Copy of FIR Ex.A1, DD No. 32A Ex.A2, TIP Proceedings Ex.A3, CDR of Vodafore Ex.A4, CDR of Airtel FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.8 of 14 Ex.A5. Thereafter, PE was closed. Statement of the accused Javed was recorded under section 313 Cr.P.C. Accused did not opt for defence evidence. Thereafter, final arguments heard.
13. Ld. APP for the State argued that the prosecution has proved its case against the accused Javed beyond reasonable doubt. The witnesses have given corroborative statements. Some of the witnesses deliberately turned hostile and not supported the prosecution case. The statements of official witnesses as well as public witnesses are sufficient to convict the accused. On the other hand, Ld. Counsel for accused stated that he is innocent. He had not committed any offence. The alleged recovery of stolen articles is planted upon him. Accused had neither committed any offence nor any alleged stolen articles recovered from possession of accused. Witnesses had given false & contradictory statements. Public witnesses had not supported the prosecution case because they were planted witnesses. Accused has been implicated falsely in this case. He is facing the trial of this false case since last about four year. Therefore, he is liable to be acquitted.
14. I have considered the submissions of both parties. I have also gone through the statements of witnesses and documents placed on record by the prosecution. Charge against the accused is that on 19.08.2016, he had committed theft in the house of the complainant and thereafter, on 09.09.2016 during investigation, the stolen articles of the complainant were recovered from the house of the accused which were allegedly put by the FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.9 of 14 accused in his house after committing the theft.
15. During trial, regarding theft, prosecution had examined the complainant as PW2 Sh. Durgesh Dwivedi. In his examinationinchief, he had stated that he along with his friends went to market leaving behind his servant i.e. accused Javed and when he came back at about 04:00 PM, he found his house was locked and after opening the house, he came to know about the theft in question. Neither in complaint Ex.PW2/A nor in his statement before the Court, PW2/complainant had stated name of any of his friend who came to his house on that day. In statement Ex.PW2/A complainant had stated that one key of main gate of his house used to remain with his servant. However, in his statement before the Court, he had stated that one of the key of the house used to be remained with accused. As PW2 he had not clarified that whether there was only one gate from where the theft was occurred or there were separate locks of the said room and main gate. During investigation, IO had neither seized the said lock which was allegedly opened by the accused with the second key nor IO had confirmed this fact from the keys allegedly recovered from house of accused that whether there was any key by which the lock of house of complainant can be opened. It is also not stated that by the complainant either in his statement Ex.PW2/A or in his statement before the Court that there was no any third key of the said lock. During crossexamination, PW2 had admitted that the theft did not take place in his presence. He had also admitted that FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.10 of 14 recovery from accused also not effected in his presence. Prosecution had not placed on record any other eye witness, scientific or circumstantial evidence to show that the theft in question was committed by the accused.
16. To prove the recovery, prosecution had examined five recovery witnesses. Out of these witnesses, PW1 is Sunil Paswan. As per prosecution story, the recovery of stolen articles was effected from the house of the accused in presence of the aforementioned recovery witnesses and seized vide seizure memo Ex.PW1/B. During examination, PW1 had not supported the prosecution case and only stated that he had signed one document in respect of bag recovered by Delhi police and one person namely Kasim brought the bag to PS Gargallia. He could not tell what was inside the bag. During crossexamination by Ld.APP, he had specifically denied the suggestion that he went to the house of accused with police officials where father of accused got recovered one bag from his house stating that same was brought by the accused. As per prosecution version, said bag was recovered from house of the accused but as per PW1, same was brought by one person namely Kasim to PS Galgaliya. During crossexamination on behalf of accused also PW1 had stated that all the writing work was done at PS Galgaliya.
17. Another witness of recovery is ASI Sachidanand from Bihar Police who was posted at PS Galgaliya on the date of recovery. He had stated that on the date of incident, he along with Delhi Police officials went FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.11 of 14 to the house of accused, where father of accused handed over one bag containing stolen articles. During crossexamination, he had stated that he cannot produced any document to show that he was posted at PS Galgaliya on the date of recovery. He further stated that mother & sister of accused were present at house of the accused at that time. However, this fact is neither mentioned in the recovery memo nor their name or signature are there on the recovery memo Ex.PW1/B. During chiefexamination, he had only stated that father of accused, Sh. Kasim handed over the said stolen bag but he had not stated anywhere that father of accused told to the police that the said bag was brought by the accused to his house.
18. Other recovery witness is Mohd. Ishaq. During examination, he was turned hostile and nothing stated against the accused. He had further stated that his signature were taken by the police on blank papers and he do not know anything about the case. During his crossexamination by Ld. APP, he had denied the suggestion that in his presence, father of accused informed the IO that accused came to village with the black colour bag in question. The witness had admitted his signature on seizure memo Ex.PW1/B but denied the fact that any article mentioned in seizure memo was recovered in his presence or the seizure memo was prepared in his presence and stated that when he had signed this document, it was blank.
19. Mohd. Hasmuddin is another public witness of recovery examined by prosecution. In his examinationinchief, he had stated that he FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.12 of 14 had joined the investigation with the police and father of accused produced one black colour bag containing stolen articles which was seized by the police vide seizure memo Ex.PW1/B bearing his signatures. During cross examination, he had stated that only one laptop was recovered and he had not mentioned the make of the same as HP. However, during his examinationinchief, he had stated names of articles i.e. one laptop make HP, charge, some mobile phones, a key and some documents. Therefore, this witness had given contradictory statement regarding the articles of recovery in his chief and cross examination.
20. Ct. Vinod Kumar is official witness from Delhi police who is a witness of recovery produced by prosecution. As per his statement, he along with IO/HC Jai Prakash went to the house of accused in Bihar in his village, where father of accused met them and produced one black colour bag containing stolen articles which was left there by the accused. During cross examination, he had admitted that at the time of recovery accused was not present there and no recovery took place from accused Javed in regard to present case.
21. No any other witness of recovery was produced by prosecution. The admitted documents Ex.A1 to A5 are formal, procedural documents and they are not sufficient to connect the accused with the alleged theft or recovery. Admittedly, all the recovery witnesses had stated that the alleged recovery was effected from house of accused where father of the accused FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.13 of 14 had produced the bag in question containing stolen articles and handed over the same to the police. Therefore, it is the case of the prosecution itself as also admitted by the witnesses, that recovery of the stolen articles was neither effected from possession of accused nor at the instance of the accused Javed. Prosecution had not examined any witness who had seen the accused leaving the alleged stolen bag/articles in his house. This fact is stated by the prosecution witnesses as told to them by father of the accused who has not been examined. Therefore, the fact that accused had left the stolen articles/bag in his house, is only a 'hearsay' in view of the evidence produced by prosecution. Therefore, it cannot be presumed that accused had left the said stolen articles in his house in absence of any other evidence to this fact. It is also held by Hon'ble High Court of Delhi in State Vs. Dharmender Singh Mehta and anr. 2012 V AD (Delhi) 108 that "it is now very well established that in all criminal cases, the prosecution has to establish the guilt of the accused beyond reasonable doubt through unimpeachable evidence".
22. Therefore, in view of the aforesaid discussion the Court comes at the conclusion that the prosecution had failed to establish its case against the accused beyond reasonable doubts. The benefit of doubt goes to accused as per principles of criminal justice. Accused Javed S/o Mohd. Kashim stands acquitted for the offence punishable u/s 381/411 in present case FIR No.281/2016 PS Kirti Nagar.
FIR No. 281/2016 PS : Kirti Nagar State Vs. Javed Page No.14 of 14
23. Accused is directed to furnish bail bond and surety bond under Section 437A Cr.P.C. and is also directed to furnish his latest passport size photographs as well as of his surety alongwith their latest residential proof. Digitally signed by JAGMINDER
JAGMINDER SINGH
SINGH Date: 2020.10.16
16:07:13 +0400
Announced in the open court (Dr. Jagminder Singh)
on 16.10.2020 Chief Metropolitan Magistrate,West District,
Tis Hazari Courts, Delhi.
Certified that this Judgment contains eight (14) pages and each page is signed by me. Digitally signed by JAGMINDER JAGMINDER SINGH SINGH Date: 2020.10.16 16:07:20 +0400 (Dr. Jagminder Singh) Chief Metropolitan Magistrate,West District, Tis Hazari Courts, Delhi.
FIR No. 281/2016 PS : Kirti Nagar