Delhi District Court
State vs : Mohd. Laddan Fakrey on 10 May, 2014
IN THE COURT OF SH. SUDHANSHU KAUSHIK, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE-01 : CENTRAL DISTRICT
TIS HAZARI COURTS : DELHI.
State Vs : Mohd. Laddan Fakrey
FIR No. : 616/04
U/s : 408/381 IPC
PS : Paharganj
Date of Institution : 21.03.2006
Date of Judgment reserved on : 10.05.2014
Date of Judgment : 10.05.2014
Unique ID : 02401R0228532006.
Brief details of the case
A. Sl. no. of the case 17P/08
B. Offence complained of
or proved U/s 408/381 IPC.
C. Date of Offence 07.12.2004.
D. Name of complainant Raj Kumar Chaudhary,
W/o Sh. Sh. Afroz Alam,
R/o 3422, Gali Hari Mandir,
Dariba Pan, Paharganj, Delhi.
E. Name of accused Mohd. Laddan Fakrey.
S/o Sh. Mohd. Murtaza Hassan,
R/o Village Kheri Banga
District Visfi, District
Madhubani, Bihar
F. Plea of accused Pleaded not guilty.
G. Final order Acquitted.
H. Date of Order 10.05.2014.
Judgment
On the accusation of committing theft of a briefcase containing
currency amount of Rs.1.75 lakhs while being employed as a waiter at Love
Palace Hotel, Paharganj (hereafter referred to as ' the hotel' ), accused Mohd.
Laddan Fakrey was sent up for trial for committing offences punishable under
FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 1/12
Section 408/381 IPC.
Brief facts as unfolded during the trial
2. The case of the prosecution is that the accused used to work as a
waiter at the hotel which was owned by PW-3 Smt. Raj Kumar Chaudhary
(hereinafter referred to as ' the complainant' ). In the afternoon of 07.05.2004,
accused committed theft of a briefcase from the room of complainant and
disappeared from the hotel. It was revealed that the briefcase was containing
cash amount of Rs. 1,75,000/-(One Lac Seventy Five Thousand only) and
personal documents of the complainant. It was further revealed that accused
had also stolen a mobile phone make Nokia 6100 of a guest of the Hotel. Matter
was reported to the police and present FIR bearing No.616/04 was registered
under Section 381 IPC at PS Paharganj. Efforts were made to apprehend the
accused and recover the stolen articles but no clue could be found. It is the
prosecution's case that after about five months of the alleged offence, on
05.05.2005, on the basis of a secret information, accused was apprehended from Kasheruwalan Chowk. Police custody of accused was obtained but neither the stolen currency nor the mobile phone could be recovered. PW-5 HC Satish Kumar concluded the investigation and submitted charge sheet.
3. Copies of charge-sheet were supplied to the accused and on the basis of the same, charge under Section 381/408 IPC was framed against him to which he pleaded ' not guilty' and claimed trial.
Witnesses examined
4. Five prosecution witnesses were examined.
FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 2/12 Complainant
PW-3 Smt. Raj Kumari Chaudhary (owner of the Hotel) mentioned about the theft committed by the accused. She stated that at the time of joining service, accused deliberately submitted a blurred copy of his identification proof. She mentioned that accused fled away after committing theft of the briefcase and at that time, she was sitting along with her husband in the reception area. She stated that accused was taking out the luggage of the guests, who were checking out from the hotel. She gave a description of the briefcase and mentioned that it was containing about 100 currency notes in the denomination of Rs.1000/- and 150 currency notes in the denomination of Rs. 500/-.
Formal Witnesses PW-1 Ct. Ranbir Singh (witness of arrest) stated that accused was arrested on 05.05.2005 vide arrest memo Ex.PW-1/A. PW-2 ASI Leelu Ram (Duty Officer) mentioned about registration of the FIR. The copy of FIR is Ex. PW 2/A. PW-4 Ct. Sunil Kumar (police official) took rukka from the Police Post Sangatrashan to PS Paharganj. He mentioned that he handed over the rukka to the Duty Officer and present FIR was registered. Investigating Officer PW-5/HC Satish Kumar justified the investigation carried out by him. The site plan prepared by him is Ex.PW-5/B. He mentioned that accused was arrested on 05.05.2005 from Kasheruwalan Chowk. He stated that he made FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 3/12 efforts to recover the stolen article but it did not yield any result.
5. Statement of accused was recorded under Section 313 Cr.PC wherein he denied all the incriminating evidence and took defence of false implication. Although, he admitted that he was working as a waiter at the hotel but denied having committed theft. It was his version that arrears of his salary were due but instead of paying the arrears, complainant falsely implicated in the present case. No defence witness was examined.
Arguments
6. I have heard the rival arguments advanced at bar by Ld. APP for State and Ld. Defence Counsel.
7. Ld APP has argued that prosecution' s case has been established to the hilt. He contended that there is overwhelming evidence on record to establish that accused committed theft from the hotel while he was employed as a waiter. He mentioned that although recovery has not been effected but the testimony of complainant is more than sufficient to establish charge under section 408/381 IPC. He stated that testimony of complainant has remained un- controverted.
8. On the other hand, ld defence Counsel argued that there are improvements and contradictions in the testimony of complainant. He has contended that no independent witness was joined during investigation despite availability and no plausible explanation has been tendered for the said failure. He has argued that accused cannot be convicted for committing the alleged theft as nothing has been recovered from his possession.
FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 4/12
9. I have perused the record in the light of respective arguments.
Brief reasons for the decision
10. In order to establish charge under Section 381 IPC, prosecution has to establish that accused while being employed as a waiter at the Hotel committed theft of briefcase containing cash amount of Rs.1,75,000/- (Rupees One Lakh and Seventy-Five Thousands only) and personal belongings of the complainant. The prosecution has to establish that ingredients of Section 381 IPC are established by leading independent and cogent evidence. For establishing charge under Section 408 IPC, it must be established that accused, while being employed as servant by the complainant, committed criminal breach of trust in respect of a property which was entrusted to him in the capacity of a servant. It is an admitted fact that the accused was employed as a waiter at the hotel. Accused has not disputed the said fact. He admitted in his statement recorded under section 313 Cr.P.C. that he was working at the hotel. Moreover, the line of defence taken by him also suggests that he has admitted that he was working as a waiter at the hotel.
11. In order to prove its case, prosecution has relied upon the sole testimony of complainant. The customer N.Khanan whose mobile phone was stolen by the accused was not traceable. Summons issued to this witness were repeatedly received back with report that he was not traceable. Summons issued through concerned DCP were also received back with similar report. Keeping in view the said fact, the prosecution evidence was closed. Therefore, the entire case of prosecution rests upon the testimony of complainant. Let us peruse her FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 5/12 statement.
12. Smt. Raj Kumari (PW-3) gave a detailed account of the incident. She mentioned that accused was working as a waiter at her hotel. She stated about the theft of briefcase. She mentioned that in the guise of putting out the briefcases of the guest who were checking out from the hotel, accused committed theft of the briefcase and disappeared from the spot. She stated that the briefcase was containing 100 currency notes in the denomination of Rs. 1000/- and 150 currency notes in the denomination of Rs. 500/-. She mentioned that the briefcase was also containing her personal documents and two mobile phones. She mentioned about the lodging of FIR with the police. She stated during her cross examination that apart from her two mobile phones, the mobile phone of one of the guest was also stolen by the accused.
13. Ld. defence counsel has vehemently argued that there are improvements and contradictions in the testimony of complainant. He has contended that the testimony of complainant is not reliable and it cannot form the basis of conviction. It has also been pointed out by the counsel that there is delay in registration of FIR. He has argued that the unexplained delay in lodging the report creates doubt and the benefit ought to be given to the accused. On the other hand, ld. APP for State has argued that the testimony of complainant is unblemished. He has submitted that there are minor contradictions in the testimony of complainant which are inconsequential. Let us examine the testimony of complainant and other material on record in the light these respective submissions.
FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 6/12
14. Admittedly, there is a delay in registration of FIR. It is the prosecution's own case that the incident took place in the afternoon of 07.12.2004 and the matter was reported to the police only in the midnight of 08.12.2004 at around 12.50 am. The endorsement on the rukka also suggests so. Complainant admitted in her cross examination that she was not prompt in informing the police about the alleged theft at her hotel. She stated in her examination in chief that she made efforts to trace the accused on her own and when she failed, the present FIR was lodged by her. This conduct of complainant is unusual and it cannot be categorized as the conduct of an ordinary prudent man. It is expected from a person to immediately inform the police about theft as soon as it is discovered by him. Theft took place in the afternoon of 07.12.2004 and instead of making a phone call at 100 number, complainant kept waiting till the midnight. The DD No.4A demonstrates that the information reached police station Paharganj only at 1.10 am as there is an endorsement to the said effect on the rukka. However, this DD entry has not been proved. Thus, it is apparent that there is an inordinate delay in reporting the matter with the police which has not been explained and the said delay creates doubt.
15. I have perused the statement of complainant. On perusal of her statement, I find force in the submissions of Ld. Defence counsel that there are improvements and contradictions in the statement. Complainant stated in her examination-in-chief that accused approached her seeking employment in her hotel and at that time, he handed over his photograph for the purpose of FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 7/12 verification. She stated that when the accused was asked to produce his identification proof, he only gave a blurred photocopy of his identification document. It appears that witness is trying to suggest that this blurred photocopy was deliberately given by the accused to ensure that his verification is not possible. Surprisingly, none of these facts were mentioned by the complainant in her earlier statement given to the police. This improvement creates suspicion about the veracity of this witness. She deposed further that apart from the currency notes and personal documents, the stolen briefcase was also containing her two mobile phones. She mentioned that one of the phone was gifted to her by her husband and the other one was purchased by her. She stated that apart from these two phones, the mobile phone of one of the guests was also stolen by the accused. These facts have been introduced by the complainant only for the first time during her examination in the court. In her statement given to the police, she did not make any reference to the alleged fact that the briefcase was containing her two mobile phones. There are glaring contradictions in her statement made in the court and the one recorded by the police. In her earlier statement made to the police, she mentioned about the theft of only one mobile set while in her statement before the court, she stated about theft of three mobile phones. This contradiction puts a further question mark over the credibility of this witness.
16. Complainant admitted in her cross examination that the bills of the mobile phones were not handed over to the police officials. She stated that accused was apprehended after the stolen mobile phone of the customer was FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 8/12 traced by the police. It seems that the witness is suggesting that police officials traced the mobile phone when it was being used by the accused but the record does not suggest so. IO HC Satish Kumar (PW-5) has categorically stated accused was arrested on 05.05.2005 on the basis of secret information received by him. These contradictions demonstrate that either complainant is not aware about the investigation or she has not spoken truth. In both cases, benefit has to be given to the accused.
17. Contradictory versions have also come on record about the cash which was lying in the briefcase. Complainant stated that she has made a withdrawal of Rs. 9 lakhs from the bank but no documentary proof was placed on record. It appears that she is suggesting that the currency of Rs. 1,75,000/- which was lying in the stolen briefcase was part of cash which was withdrawn by her. However, there is a different version of the IO about the currency lying in the briefcase. He stated in his cross examination that he investigated the source of cash and came to know that the amount was taken as loan by the complainant from some bank located at South Delhi. It is not possible to reconcile these contradictory statements.
18. Complainant has deposed that on her request, the SIM numbers of stolen mobile phones were blocked by the service provider but she did not give any proof of the same to the police. As observed earlier, in the initial statement recorded by the police, she did not even mention about the theft of her mobile phones. She subsequently stepped into the witness box and stated that the mobile phones were carrying SIM card which were blocked by her but FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 9/12 remained absolutely silent about the SIM numbers. Complainant stated that at the time of seeking employment, accused submitted blurred proof of his identity but the alleged proof has not been seized by the Investigating Officer. An unsigned application Ex.PW3/D1 purportedly made by the accused for securing the job with the complainant has been forwarded alongwith the charge sheet. The said application contains the address of the native place of accused and his photograph has also been affixed thereon. However, no investigation to apprehend the accused was made after his alleged disappearance on 07.12.2004. IO/ HC Satish Kumar has remained absolutely silent about making any efforts to trace the accused at his native address. He has not even whispered that he visited the address of accused allegedly mentioned on the application form submitted by him. The said inaction also raises doubts about the fairness of investigation.
19. No public witness was joined during investigation. Complainant has deposed that apart from accused, another waiter was working at the hotel. She has stated that 10-11 staff members were present at the hotel at the time of alleged theft. Surprisingly, not even a single staff member of the hotel has been cited or examined as a witness. IO/HC Satish Kumar (PW-5) has given a contradictory version mentioning that at the time of theft, there were 5-6 employees working at the hotel. He mentioned that he interrogated those employees during investigation. In case,he has interrogated those employees then why they have not been cited as witnesses. He has not even noted down the name of the staff members who were examined by him. His bald statement FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 10/12 which finds no corroboration lacks credibility. It is evident that he is speaking lie to cover up the infirmities and lapses in investigation.
20. No independent witness has been examined to corroborate the statement of complainant. It is correct that conviction can be based even upon the sole testimony of a witness but for that the testimony must be impeccable and beyond criticism. The testimony of complainant contains number of improvements and contradictions which have been discussed in preceding paras and it is not safe to place reliance upon her statement in the absence of corroboration from an independent source. N.Kanan who was the guest whose mobile phone was stolen has not been examined. Summons issued to him were repeatedly received back with report that he is not traceable and finally after granting repeated opportunities to the prosecution, the evidence of this witness was closed. Thus, there is no material on record to corroborate the testimony of complainant.
21. Moreover, none of the stolen articles have been recovered from the possession of accused. Ld. APP has argued that the chances of effecting recovery were remote as accused was arrested after about five months of the alleged theft. He has contended that non-recovery of the stolen articles cannot give any advantage to the accused. I agree with the submissions of Ld. APP for the State that the benefit of non-recovery of articles cannot be extended to the accused. However, the prosecution is duty bound to establish its case either by direct or circumstantial evidence. Even if the statement of complainant is taken to be absolutely correct, still, it cannot be said that charges under section FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 11/12 408/381 IPC stand established because of her said statement. The statement of complainant at best proves one of the circumstances that on 07.12.2004, accused disappeared from the hotel with briefcase containing currency amount. In order to prove, the complete chain of circumstantial evidence, it was necessary for the prosecution to prove recovery of atleast some of the stolen articles. The net effect of the absence of recovery is that the chain of circumstantial evidence remains incomplete. In the absence of recovery, the disclosure statement of the accused is inadmissible and it falls within the mischief forbidden by section 25 and 26 of the Indian Evidence Act, 1872.
22. In view of the above said discussion, I have reached a conclusion that prosecution has miserably failed to establish charges under section 381/408 IPC. The testimony of complainant containing number of improvements and contradictions is not reliable. There is no independent source to corroborate her testimony. None of available staff of the hotel was examined during investigation. The allegedly stolen articles have not been recovered. The result is obvious. Accused is acquitted of the charges punishable under section 408/381 IPC.
Announced in open Court (Sudhanshu Kaushik)
on 10.05.2014 Addl. Chief Metropolitan Magistrate-01,
Central District,Tis Hazari Courts,Delhi.
It is certified that this judgement contains 12 (Twelve) pages and each page bears my signature.
(Sudhanshu Kaushik)
Addl. Chief Metropolitan Magistrate-01,
Central District, Tis Hazari Courts, Delhi
FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 12/12
FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 13/12
FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 14/12
FIR No. 616/04 State Vs. Mohd. Ladden Fakrey 15/12