Delhi District Court
State vs . Dinesh Singh on 7 August, 2018
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
State Vs. Dinesh Singh
FIR No. 71/13 Digitally
signed by
PS : OIA ANUBHAV
ANUBHAV JAIN
U/s. 380/411 IPC JAIN Date:
2018.08.08
22:11:07
+0530
JUDGMENT
A. SL. NO. OF THE CASE : 140/2/13 (87739/16)
B. DATE OF INSTITUTION : 06.06.2013
C. DATE OF OFFENCE : 04.02.2013
D. NAME OF THE COMPLAINANT : Sh. Dhyan Singh Negi
S/o Sh. K. S. Negi
E. NAME OF THE ACCUSED : Dinesh Singh
S/o Sh. Munshi Lal
F. OFFENCE COMPLAINED OF : U/s 379/411 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 07.08.2018
Brief Statement of Reasons for Decision :
1. Accused person is produced before the Court to stand trial for the offences punishable u/s 379/411 IPC.
2. In brief, facts of the case as per prosecution are that on 04.02.2013 HC Rajesh Kumar received a DD no. 20A upon which HC Rajesh Kumar along with Ct. Yogesh Kumar reached the factory at 2 DSIDC, Shed NO. 221, OIA, PhaseI, New Delhi where they met with complainant namely D.S. Negi who got his statement recorded. It is stated by the complainant that on 04.02.2013 at about 6:20 pm he was inspecting the workers of the factory at the lawn of the factory when he noticed one person carrying white colour plastic bag upon his shoulder at some distance from the factory and he was moving at a fast pace. It is further stated by the complainant that he stopped him and upon checking some plastic bags were found in the possession of the said person which belongs to the company of the complainant. It is further stated that said person admit his involvement in the said case and informed his name as Dinesh Singh. Complainant further stated that the said person was previously working as guard in the company of complainant however he was subsequently expelled from the company. It is further stated that CCTV footage of the accused is available with complainant.
Upon the said complaint, FIR was lodged and the plastic bags were seized by the IO. IO recorded the disclosure statement of the accused and prepared the site plan and after completion of investigation charge sheet was filed in the court.
3. Accused appeared before the court on 09.12.2013 and copy of chargesheet was supplied to him as per section 207 of Cr.P.C. Accused was charged u/s 379/411 of IPC by the Ld. Predecessor court on 28.08.2014 to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case prosecution has examined following witnesses :
4.1 PW1 D.S. Negi who deposed that on 04.02.2013 he was 3 working as manager in the company Sai Enterprises at 221, DSIDC OIA Phase1, New Delhi and on that day at about 6.20 pm about 810 plastic kattas containing poly bags, weighing around 20 kgs were kept near factory gate for their dispatch. He further deposed that when he came outside from the factory he saw that one person was going with a plastic katta and on suspicion he stopped that person and checked him and found said plastic katta. He further deposed that he called at 100 number and police officers came at the spot and recorded his statement Ex.
PW1/A. He further deposed that police officials also took the accused to PS and IO seized the katta of poly bag vide Ex. PW1/B and recorded disclosure statement of accused vide Ex. PW1/C. He further deposed that thereafter IO checked CCTV footage and found that the accused Dinesh was stealing on previous occasions also. He further deposed that IO arrested the accused Ex. PW1/E and conducted his personal search vide Ex. PW1/D. He further deposed that IO also seized CD of CCTV footage Ex. X1 and photographs of CCTV footage. He correctly identified the accused and case property in the court.
4.2 PW2 HC Yogesh Kumar deposed that on 04.02.2013, he was posted at PSOIA as Constable and on that day, at about 06:30 pm, HC Rajesh had received DD no.20A regarding apprehension of thief upon which he alongwith HC Rajesh went to the spot i.e DSIDC, Shed no.221, OIA, PhaseI, New Delhi. He further deposed that at the spot complainant D.S Negi met them who produced accused namely Dinesh Singh in whose hand white colour plastic katta, containing stolen articles was recovered. He further deposed that katta was opened and checked and poly bags weighing 20.5 kg were found. He further deposed that mouth of katta was tied with a white cloth and sealed with the seal of RK 4 and IO inquired complainant Dhyan singh Negi and recorded his statement Ex.PW1/A. He further deposed that IO prepared the rukka and handed over the same to him for registration of FIR.
4.3 PW3 HC Rajesh deposed that on 04.02.2013, he was posted as HC at PSOIA and on that day, he received a DD no.20A regarding theft upon which he alongwith Ct. Yogesh went to factory no.221, DSIDC Shed, Okhla PhaseI, New Delhi, where they met with complainant Dhyan Singh Negi, who handed over accused Dinesh Singh and plastic katta which is filled with the polythene bags. He further deposed that he weighted the alleged plastic katta filled with the polythene bags which were handed over to him and the weight of said plastic katta was 20.05 kgs in total. He further deposed that he prepared a pullanda and sealed it with the seal of R.K. and handed over it to the Ct. Yogesh. He further deposed that he inquired with the accused and came to know the name of the accused as Dinesh Singh s/o Munsi Ram. He further deposed that he seized the plastic katta vide seizure memo Ex.PW1/B and he prepared a rukka Ex.PW3/A and got the FIR registered through Ct. Yogesh. He further deposed that after registration of the case, Ct. Yogesh returned and handed over the copy of FIR and original rukka to him. He further deposed that he requested the other public persons, present at the spot to join the investigation but none agreed and left the spot without disclosing their names and address. He further deposed that he took the disclosure statement of the accused exhibited Ex.PW1/C and arrested the accused and carried out his personal search vide memos Ex.PW1/E and Ex.PW1/D. He further deposed that at the instance of the complainant, he prepared the site plan Ex.PW3/B and took the accused for his medical examination and 5 after that, he kept the accused in police lock up at PSOIA and deposited the case property in malkhana at PSOIA. He further deposed that on the next day, he produced the accused before the court and during the course of investigation, complainant has handed over one CD alongwith the photographs to him. He further deposed that the said CD of CCTV footage is Ex.X1 and the photographs are marked as Mark A to E. He further deposed that he prepared the chargesheet/challan. He correctly identified the accused and case property in the court.
4.4 PW4 SI Rakesh Kumar proved the FIR Ex. PW4/A.
5. After completion of PE, statement of accused u/s 313 C.r.P.C. was recorded on 17.11.2017 to which the accused denied all the allegations as levelled upon him by the prosecution and stated that he has been falsely implicated in the present case.
6. Further accused has examined one Sh. Dilip Kumar Akhil Bhartiya Karamchari Trade Union (Reg.) as DW1 who deposed that accused was the member of union and accused approached him on 22.01.2013 and narrated that his service has been terminated by the management. He further deposed that in this regard he had filed a complaint Ex. DW1/A against the management before Labour Department on 23.01.2013 and issued demand notice to the management on 31.01.2013. He further deposed that accused also filed a complaint against the management on 23.01.2013 which has been drafted by him Ex. DW1/B. He further deposed that on 04.02.2013 at about 3.00 to 4.00 pm the accused was present in their office, one HC Rajesh came at office and told that a complaint has been lodged against the accused by the management and 6 that he is required to be taken for interrogation. He further deposed that he asked the HC to accompany the accused, however he refused and thereafter accused was taken by HC Rajesh. He further deposed that when the accused could not come, he enquired about the accused from PS and thereafter came to know that the accused was implicated in the present case. He further deposed that accused was innocent and he has been taken by the police of PS from his office.
Accused has further examined Ct. Asim as DW2 who has proved that complaint was registered by accused at PS vide DD No. 12B.
7. Thereafter, complainant closed his defence evidence and the matter was listed for final arguments.
8. I have heard the Ld. APP for State and counsel for accused and perused the case file carefully.
9. It is argued by the Ld. APP for the State that the accused was apprehended along with stolen property and the same has been identified by PW1 during the course of his testimony. It is further argued that the accused was identified by the witness and prosecution has further placed on record the CCTV footage and as such prosecution has able to prove its case beyond reasonable doubt and accused is liable to be convicted in the present case.
10. On the other hand, it is argued by the ld. counsel for accused that accused has already lodged the complaint at PS OIA against the complainant prior to the alleged date of incident. It is further argued that the CCTV footage on 02.02.2013 although the alleged incident was on 7 04.02.2013 and further IO has not placed on record FSL document to show that the said footage is authenticity. It is further argued that prosecution has failed to prove its case beyond reasonable doubts and accused persons are entitled to be acquitted in the present case.
11. It is settled proposition of law that burden lies upon the prosecution to prove its case beyond reasonable doubts. It is the case of prosecution that complainant spotted the accused while he was trying to run away with plastic katta from the factory of the complainant.
12. Prosecution in order to prove its case has examined complainant as PW1. Complainant deposed that at about 6.20 pm about 810 plastic katta containing poly bags were kept near factory gate and when he come outside he saw one persons going with plastic katta and he apprehended him and called the police. During the course of cross examination it is stated by complainant that he apprehended accused alongwith other workmen of factory and police recorded his statement, statement of owner of factory and 23 workmen of factory at that time.
On the other hand, HC Yogesh Kumar who deposed as PW2 during the course of his cross examination have stated that there was no poly bag / katta available except the alleged case property. He further stated that no other person except the complainant discloses that accused was taking katta and neither he nor IO recorded statement of any person except that of complainant.
Further IO / ASI Rajesh who deposed as PW3 have stated during the course of his cross examination at no plastic katta was lying outside the gate. He further stated that no recovery of stolen goods was effected 8 in his presence and he just seized the case property produced by the complainant. He further stated that few public persons were present at the spot, however they refused to join investigation. He further stated that he did not record statement of owner of factory.
13. Perusal of deposition of witnesses of prosecution reveals that there are contradictions qua the joining of investigation by any independent witness. While complainant in his cross examination has stated that IO recorded statement of owner of factory and other factory worker, HC Yogesh Kumar and IO denied the said fact. It is further clear from the testimony of prosecution witnesses that IO has merely seized the items produced by owner of factory and has not recovered the alleged stolen items from possession of accused.
14. At this stage, it is relevant to state in here that admittedly accused was working in the factory of the complainant and has been expelled by the complainant. In this regard, accused has also filed a complaint with Labour Officer as well as complaint before SHO, PSOIA vide DD No. 12B. The said DD number was proved by DW2. As per the documents produced by DW2 the said complaint was made on 23.01.2013 i.e. prior to the alleged incident. In such circumstances, it cannot be discarded that relations between the complainant and the accused were not cordial.
15. Coming back to the present case in hand, although it is stated by all the witnesses of prosecution that there were certain other persons present at the spot at the time of alleged seizure and arrest made by the IO, however no public person was made a witness by the IO for the 9 reasons best known to him. Making a public person as a witness of arrest and seizure is more imperative in circumstances where it appears from the record that the relation between the complainant and the accused were not cordial. Further it would be gainful to rely upon the judgment passed by Hon'ble High Court of Delhi in Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506, it was observed by Hon'ble High Court of Delhi:
77. The arrests of the accused were all in public places and yet none of the arrests were in the presence of independent public witnesses. Parrot like statements to the effect that passersby were asked but declined to join are given by the IOs in the present case. This does not convince the Court.
In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC.
Repelling this contention, the Supreme Court observed:
"It may be as technically argued by the learned Additional Solicitor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal Search. But it is wellknown that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so 10 that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this accused is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
78. In the present case every arrest is on the basis of both information provided by and identification by a secret informer who is not produced as a PW. Most arrests have taken place from open public places and during times when there is a lot of movement of the public. It is therefore difficult to accept that in every such instance, no independent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
16. It is further pertinent to state in here that as per the testimony of IO, he seized the plastic katta Ex. PW1/B and thereafter prepared the rukka for the registration of FIR. As such the seizure memo was prepared by the IO prior to lodging of FIR. Perusal of Ex. PW1/B reveals that same bears the FIR number, although the said document was prepared prior to lodging of FIR. Said fact further casts serious doubts upon the recovery of the case property. For the same I may rely upon the judgment passed 11 by Hon'ble High Court of Delhi in Pradeep Saini v. State 2009 SCC OnLine Del 2803 :
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex.PW3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW2/B. Surprisingly, sketch Ex.PW3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise to two inferences; either the FIR Ex. PW2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the knife in the manner alleged by the prosecution.
17. As discussed above, there are several contradictions between the testimony of the prosecution witnesses which are further fatal to the case of prosecution. As per the statement of complainant there were other bags / katta lying near the gate at the time of alleged incident and the IO has recorded the statement of owner of factory as well as three other workmen, however as per the IO no plastic katta was lying outside the factory and that he did not record statement of any other person except that of complainant.
18. Further prosecution has further relied upon the video stated to be 12 of the alleged incident. The prosecution has further placed on record certain photographs in order to corroborate the facts stated by him in the charge sheet. It is pertinent to state in here that as per the charge sheet incident took place on 04.02.2013 at about 6.20 pm while the plastic kattas were lying outside the factory gate, however the photographs so placed on record by the prosecution are of 02.02.2013 at about 11.18 pm. Further the said photographs are not supported by the negatives or certificate u/s 65B Indian Evidence Act and as such same cannot be considered in evidence.
19. Furthermore there is nothing on record to show that complainant was owner of the alleged stolen plastic katta or that complainant has nay right, title or interest over said plastice katta.
20. Considering the abovesaid facts and circumstances, prosecution has failed to prove its case beyond reasonable doubts and accused Dinesh Singh is acquitted for the offence punishable u/s 379/411 IPC.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 07.08.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 12 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI