Delhi District Court
Cr. Case/10076/2020 on 22 January, 2022
1 of 21
IN THE COURT OF ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No.342/2020
PS Timarpur
U/s 454/380/34/411 IPC
State v. Shibbu @ Nagar
CNR No. DLCT02-018461-2020
Date of institution of case: 16.12.2020
Date when judgment reserved: 15.01.2022
Date when judgment pronounced: 22.01.2022
JUDGMENT
Unique ID no. of the case : 10076/2020
Date of commission of offence : 13.10.2020 to 15.10.2020
Name of complainant : Satpal Singh s/o Bakshish Singh
R/o First Floor, Plot No. 42,
Yog Raj Colony, Timarpur, Delhi.
Name and address of accused : Shibbu @ Nagar s/o Sher Bahadur
R/o Vagabond, Yog Raj Colony, Delhi.
Offence complained of : U/s 454/380/34/411 IPC
Plea of accused : Not guilty
Date of order : 22.01.2022
Final order : Acquitted
BRIEF REASONS FOR DECISION OF THE CASE
1. The case of the prosecution in brief is that some time between 09:00 a.m on 13.10.2020 and 05:00 a.m on 15.10.2020 at Satpal Singh's house situated at First Floor, Plot no. 42, Yog Raj colony, Delhi within the jurisdiction of PS Timarpur, accused Shibbu @ Nagar along with his associate Sonu (not yet apprehended) in furtherance of their common intention broke open the lock of door and took away cash Rs.5000/-, two silver finger rings, two gold ear rings, one silver bracelet of child and one silver anklet of child thereby committing offence punishable u/s 454/380/34 of The Indian Penal Code, 1860 (hereinafter ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:49:13 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 2 of 21 referred to as IPC) and alternatively on 15.10.2020 Rs.1500/- cash, one silver colour finger ring, one silver colour anklet and one silver colour baby bangle/bracelet stolen from the house of the complainant were recovered from Shibbu @ Nagar which the accused received or retained knowingly or having reason to believe that the same was stolen property and thereby committed offence punishable u/s 411 IPC.
2. Upon conclusion of investigation, final report was filed against accused. Cognizance of offence punishable u/s 454/380/34/411 IPC was taken. Upon appearance of accused, the copy of charge sheet was supplied to him in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, charge for offence punishable u/s 454/380/34/411 IPC was framed against accused Shibbu @ Nagar on 12.02.2021 to which he pleaded not guilty and claimed trial.
3. Thereafter, the prosecution was given opportunity to substantiate the allegations against the accused. The prosecution examined five witnesses in support of its case:-
PW-1 Satpal Singh testified that he was doing the work of welding. On 12.10.2020 his wife Kavita gave birth to their son at Dr. Hedgewar Hospital, Karkardooma, Delhi. Before delivery, he was in the hospital for four to five days. Thereafter, on 13.10.2020, he came to his house for collecting clothes and returned to hospital after locking the house. Further on 15.10.2020, he got a call from his immediate neighbour regarding theft at his house. When he rushed to his house, he saw that the lock of the main door was broken and articles were found scattered. On checking, Rs.5,000/- cash, two silver finger rings, two gold ear-rings, one silver baby bangle and one silver anklet of child were found missing. After that he called at 100 number. Police came at his ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:49:44 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 3 of 21 house and recorded his statement which was Ex.PW1/A bearing his signature at point A. On the same day i.e. 15.10.2020 he received a call from police regrading recovery of his articles. After that he went to PS Timarpur and police showed him the recovered articles i.e. one silver colour finger ring, one silver colour anklet, one silver colour bangle of child, and Rs. 1500 cash and he identified the same. Police prepared seizure memo of the recovered case property which was Ex.PW1/B bearing his signature at point A. He did not remember whether police prepared site plan at his instance due to paucity of time, however, it bears his signature at point A which was Ex.PW1/C. At that stage, MHC(M) produced one white pullanda bearing the particulars of the case sealed with the seal of 'BS'. The seal was broken with the permission of the court. Pullanda was found containing one silver colour finger ring, one silver colour anklet, one silver colour bangle/bracelet of child, and Rs. 1500 cash. Witness identified one silver colour ring and cash of Rs. 1500/-, however, he could not identify one silver colour anklet and one silver colour bangle/bracelet of child. The case property was Ex.P. 1 to Ex.P.4. Thereafter, Ld. APP sought permission to cross-examine the witness which was duly granted.
During cross-examination by the Ld. APP for State, the witness stated that the case property i.e. one silver colour anklet and one silver colour bangle of child did not belong to him. He denied the suggestion that he was not identifying the case property stolen from his house only to help the accused in his case. During cross-examination by the Ld. defence counsel, he stated that last time prior to the date of theft, he visited his house on 11/12.10.2020. Their neighbour Shilpa telephonically informed him at 5 a.m on 15.10.2020 at his number 8826972291 about theft at his house. The phone number of Shilpa he did not remember on that day. He at the time of receiving the phone was at Shahdara at his brother's home. After receiving the phone, he came to his house ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:50:08 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 4 of 21 and reached by about 6 a.m. When he reached his house, the door was open and the lock was missing. At that time, he did not take photographs of his house. When he reached his home, Shilpa and her mother were already present there, however, he did not call any other neighbour at the spot. He did not open any door or almirah etc. before the police arrived at the spot. He knew himself about some of the stolen articles and their location in his house, regarding the remaining stolen articles, his wife told him. Before arrival of police, he had telephoned his wife and she told him about the remaining stolen articles. The entire stolen amount was in Rs. 500/- denomination currency notes. He had not told the police that the money stolen from his house was withdrawn from bank. The police reached at the spot between 6:30-7:00 a.m. The call at 100 number was made from his phone. He made the call to police after about 30-45 minutes of reaching his home. Police had inquired from the neighbours about the incident. Police recorded the statements of Shilpa, her sister and her mother. The entire paper work was done at PS and even the statements were recorded at PS. He had signed on about 2 or 3 papers at the PS, something was written on those papers but he did not know the contents of those papers. No blank papers were signed by him. 6-7 policemen came in response to the 100 number call. Some of them went back and three of them stayed at the spot. Then they all along with those three policemen came to the PS. He remained in the PS for about 1 hour. However, the exact time when he left the PS he did not remember but he admitted that it was morning hours. He again visited the PS on that day at 2-3 p.m. Somebody had called him from the PS but he did not remember the name of the caller from the PS. He met two-three police officials at PS whose names he did not remember on that day. He remained in the PS again for about one hour and he left the PS at about 4 p.m. That time he had not signed any document and no statement of his was recorded at the PS. One silver ring belonging to him was recovered from the accused. Only one ring was shown to ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:50:29 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 5 of 21 him. He did not remember the name of police official who showed him that ring. That ring remained in possession of police and no pullanda was prepared in his presence. No cash was recovered at that time. He was called again to the PS to join investigation but he could not go due to personal exigency. He did not remember whether the site plan Ex.PW1/C and seizure memo Ex.PW1/B were prepared in his presence or not. He did not know when his statement Ex.PW1/A was recorded. He denied the suggestion that nothing was recovered from the accused in his presence. He also denied the suggestion that the accused had been falsely implicated in the matter. No CCTV camera was installed at his house or in their locality at the time of the incident of theft. He had not produced bill of his stolen jewellery before the police. He denied the suggestion that the bills were not produced by him before the police because he never purchased the jewellery that was allegedly stolen from his house.
4. PW-2 Ct. Ram Mehar Singh deposed that he was posted at PS Timarpur as a Head Constable. On 15.10.2020, he was with SI Lalit Chauhan and they were trying to trace the culprits and to recover the stolen property. They reached at Gandhi Vihar where secret informer met them and he informed them that the thief who committed theft previous night in Yog Raj colony was sitting on the bridge (pulia) of Yog Raj colony and he could be nabbed. They accompanied the secret informer to the pulia in private car of SI Lalit and the secret informer pointed out towards a person sitting on the pulia as the thief who had committed the theft at night at Yog Raj colony. Secret informer left the spot. He apprehended the person sitting on the pulia. The accused disclosed about the commission of theft at night at Yog Raj colony. He carried out a cursory search of the accused and from the pocket of pant of the person, one silver colour ring studded with stone and one silver colour bangle (kadda) and one silver colour anklet (panjeb) and Rs.1,500/- in cash were recovered. The seizure memo ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:50:52 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 6 of 21 regarding the seizure of aforementioned articles was already Ex.PW1/B bearing his signature at point B. The disclosure statement of the accused was Ex.PW2/A bearing his signature at point A. The accused told them that they had stolen Rs.5,000/- in cash out of which, he received Rs.2,500/- as his share of the theft and he had spent Rs.1,000/-. SI Lalit arrested the accused and prepared the corresponding arrest memo Ex.PW2/B bearing his signature at point A. IO SI Lalit Chauhan prepared a white cloth pullanda and the recovered articles and money were kept in the pullanda and pullanda was sealed with the seal of 'BS'. Seal after use was given to him by SI Lalit Chauhan. SI Lalit Chauhan interrogated the accused. The accused disclosed about his associate Sonu who came in DDA Park, Gandhi Vihar who he could get apprehended. Then they proceeded to DDA Park, Gandhi Vihar, in order to nab Sonu. They searched for Sonu but he was not found there. Medical examination of the accused was got conducted by him at Aruna Asaf Ali Hospital and thereafter, the accused was brought to the PS. IO relieved him from the investigation. His statement was recorded by the IO. The accused present in the court on that day was correctly identified by the witness.
During cross-examination by ld. Counsel for the accused, he revealed that his statement was recorded by SI Lalit but he did not remember the date and time when the statement was recorded. He had not signed his statement. He had signed arrest memo, seizure memo and the other documents, he did not remember. Secret informer met them at Tara Chowk Road, Gandhi Vihar. He admitted the suggestion that he had not mentioned in his examination in chief about Tara Chowk where secret informer met them. He did not remember the date on which information was given to them by secret informer. The information given by secret informer was not reduced into writing. No DD entry was recorded regarding the information given by secret informer. He and SI Lalit left the PS at about 10 a.m on 15.10.2020 to arrest the accused. He did ANURAG Digitally signed by ANURAG THAKUR THAKUR 19:51:14 Date: 2022.01.22 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 7 of 21 not remember whether their departure entry from PS was made or not. He voluntarily stated that the departure entry was made by the IO. He did not remember the registration number of private car of SI Lalit. SI Lalit was driving the car. They reached at the spot at about 10:15 a.m. The distance between the spot and the PS was about 4 km. He did not remember whether there was any red light on the way or not. No public person or beat constable were present on the spot. They did not stop any passer-by and asked him to join the investigation. There was no shop in the vicinity of the area. He did not know whether the information was discussed with senior officers or not and stated that IO would know about the same. No written order was received from any superior to go to the spot. There was no CCTV camera near the spot as it was in isolated area. He apprehended the accused at around 10:15 a.m. He could not tell about the type of clothes that the accused was wearing at that time. The car was parked about 150 meters away from the place where the accused was sitting. When they apprehended the accused, they were wearing uniform. He apprehended accused, thereafter, SI Lalit approached to apprehend the accused. There was no public witness when they arrested the accused. He could not tell from which pocket of accused stolen articles were recovered. He could not tell first what documents or sequence of documents was prepared by the IO. He could not tell the exact number of document prepared by the IO. He could not tell as to how much time was taken by the IO for preparing the documents. He along with IO and accused left the spot but he could not tell the exact time when they left. The informer was not with them when they left the spot. When they approached to apprehend the accused, only IO and he were present. He could not tell when they arrived at the PS. He did not remember whether any DD entry was made or not regarding their arrival in the PS. Thereafter, they left for search of accused Sonu and the accused accompanied them. He did not remember whether any DD entry was made regarding their ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:51:33 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 8 of 21 departure for apprehending Sonu. He did not remember the exact denomination of the currency notes recovered from the accused. There was no specific mark or seal on the silver colour articles recovered from accused. No handing over memo of seal was prepared. He did not remember till what time they remained at DDA Park for search of Sonu. He did not remember the exact time when he reached AAA Hospital for medical examination of accused and at what time they came back to PS thereafter. He did not make any entry at PS regarding their arrival after medical examination of accused. He denied the suggestion that nothing was recovered from accused Shibbu and the case property had been planted upon him. He also denied the suggestion that the accused had been falsely implicated in the matter and all the proceedings were conducted while sitting at PS or that he was deposing falsely at the instance of the IO.
5. PW-3 SI Lalit Chauhan testified that around 14/15.10.2020 he was on night emergency duty. Around 7.30 a.m dated 15.10.2020, he got information DD No. 9 of theft. He alongwith Ct. Pankaj No. 2762/N, reached the spot at Plot No. 42, First Floor, Yog Raj Colony, where there was a broken lock, the seizure memo of broken lock had been prepared at the instance which was exhibited as Ex.PW3/C bearing his signature at point A and complainant Satpal was present there. They asked him about the incident and he told them about theft. Then they wrote his statement and also made tehrir. Tehrir was handed over to Ct. Pankaj at 9:30 a.m and also sent him for registration of the FIR to the PS. After sometime, Ct. Pankaj alongwith HC Parmod reached the spot alongwith tehrir and FIR. HC Parmod made a pullanda (broken lock) and sealed with seal of 'BS' and seized the lock through seizure memo. Thereafter, his statement was recorded and he had left the spot. On the same day in the evening, they were tracing the accused. They reached the Yog Raj colony where they met secret informer. He told them about the accused who had committed the theft on the ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:51:54 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 9 of 21 last night. The secret informer told them that accused was sitting on the bridge (pulia) of Ganda Nala at Yog Raj colony. The secret informer pointed out towards accused then they apprehended and interrogate him and he also admitted his crime. Then the accused from his pant took out the stolen articles i.e. one silver colour ring studded with stone and one silver colour bracelet and one silver colour anklet (panjeb) and Rs.1,500/-. Thereafter, they arrested the accused and corresponding arrest memo already exhibited as Ex.PW2/B bearing his signature at point B was prepared. Thereafter, personal search of the accused was conducted and personal search memo Ex.PW3/A bearing his signature at point A was prepared. Accused present in the court on that day was correctly identified by the witness. On the same time, complainant had reached where the accused was arrested and complainant identified the stolen articles. Thereafter, the IO made a white cloth pullanda of recovered stolen articles and also sealed the pullanda with the seal of 'BS'. Thereafter, the seal was handed over to Ct. Ram Mehar. Thereafter, disclosure statement of accused was recorded which was already exhibited as Ex.PW2/A bearing his signature at point 'B'. The accused told that the remaining stolen property was in possession of his associate Sonu who used to meet him at DDA Ground, Gandhi Vihar. Thereafter, the pointing out memo was prepared at the instance of accused which was Ex.PW3/A bearing his signature at point A. Thereafter, efforts were made to nab Sonu at DDA Ground, Gandhi Vihar but he was not found there. Thereafter, IO, he, Ct. Ram Mehar and accused came back to PS. Thereafter, IO relieved him from the investigation.
During cross-examination by Ld. LAC for the accused, he revealed that his duty hours started from 8 p.m on 14.10.2020 to 8 a.m on 15.10.2020. He got the information of DD No. 9 from the Duty Officer. He did not remember the name of Duty officer who gave the information of DD No. 9. He left the PS at about 7:35 a.m. He alongwith Ct. Pankaj left the PS on his private vehicle.
ANURAG Digitally signed by
ANURAG THAKUR
THAKUR Date: 2022.01.22
19:52:16 +05'30'
FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur
10 of 21
They reached at the spot at about 7:45 a.m. He did not remember whether complainant Satpal was informed by any neighbour or not, regarding the theft. He did not make any inquiry from the neighbours of the complainant. No CCTV camera were installed in the vicinity of the place of theft. He had given the tehrir at 9:30 a.m. IO reached at the spot at about 10:30 a.m and they left the spot at about 11 a.m. He did not remember the make of the broken lock. The complainant did not give detailed description about the stolen articles or the denomination of notes of money stolen. The statement was recorded at the spot by the IO. Secret information was not reduced into writing. Secret informer met them at Yog Raj olony. At the time when secret information was given, he, IO and Ct. Ram Mehar were present. They all were present when information was disclosed by the secret informer. It was in the evening, the exact time, he did not remember. He did not know whether IO apprised the senior officers about the secret information received. The secret informer accompanied them. All three police officials made efforts and approached the pulia to apprehend the accused. All police officials were in uniform. He did not know whether IO asked any public person to join the investigation but he certainly did not do so. From about 50-100 meters the secret informer pointed towards the accused. All of them approached from the same direction to apprehend the accused. He did not remember the description of clothes worn by the accused. All the recovered case properties were handed over by the accused to the IO but he did not specifically remember what was taken out from which pocket. No inquiry was made by IO from complainant in his presence regarding the purchase etc. of stolen articles. They left the spot i.e. Pulia at about one a half to two hours after reaching the spot, the exact time, he did not remember. From pulia they proceeded to DDA Ground, Gandhi Vihar in search of co-accused Sonu. he, IO, Ct. Ram Mehar and accused went to DDA Ground, Gandhi Vihar. It took them five minute from pulia to reach DDA ANURAG Digitally signed by ANURAG THAKUR THAKUR 19:52:37 Date: 2022.01.22 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 11 of 21 Ground but he did not remember the exact time when they reached there. They came back to the PS late in the night but the exact time he did not recall. He did not take the accused for medical examination nor was any person deputed in his presence for medical examination of the accused. No handing over memo of seal after use was prepared. After that day i.e. 15.10.2020, he was never part of investigation of the case. No crime team was called at the place of theft in his presence. He denied the suggestion that nothing was recovered from the accused in the matter or that the accused had been falsely implicated or that the recovery had been planted upon the accused. He denied that he was deposing falsely at the instance of the IO.
6. PW-4 Ct. Pankaj Tomar had testified that on 15.10.2020 he was posted at PS Timarpur and was on his emergency duty from 8 p.m to 8 a.m. In the morning 6 a.m, he was informed by the DO ASI Rajesh that a theft had taken place in Yog Raj colony and a DD No. 9A had been marked to SI Lalit and was asked to accompany SI Lalit to the spot. He alongwith SI Lalit reached the spot and met complainant Satpal, where he saw the broken lock was lying on the floor and the door was open. Complainant Satpal told that theft had taken place in his house. Thereafter, SI Lalit recorded a tehrir and the same was handed over to him to get an FIR registered at PS Timarpur. He reached PS Timarpur and met DO ASI Rajesh in the DO room. Thereafter, he got the FIR registered and returned to the spot alongwith original tehrir and the copy of FIR. There he met HC Pramod who had also reached the spot in the meanwhile. Thereafter, he was discharged from the investigation and he left the spot.
During cross-examination by Ld. LAC for the accused, he stated that he did not make any arrival entry while joining the duty in night on 15.10.2020. Duty Officer informed him regarding the same incident in morning, however, he did not remember the time. The duty officer had told him about the incident ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:52:58 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 12 of 21 telephonically. The call was received at 9149231406 but he did not remember the number from which the call was made. They left the PS in the morning between 7:30-8:00. Only he and SI Lalit proceeded towards the spot. They reached at the spot within ten minutes. When they reached at the spot, the articles were scattered here and there and the lock was broken. The lock was given to him by the complainant. No photograph were taken in his presence at the spot. Statement of none of the neighbours were recorded in his presence. The crime team had filled their form at the spot in his presence. Statement of complainant was also recorded in his presence at the spot. Site plan was also prepared in his presence by HC Parmod. The documents were not prepared in the same sequence in which he had deposed. He could not tell the sequence of preparation of aforesaid documents. He denied the suggestion that he was unable to tell the sequence of preparation of documents as he never was part of the investigation on that day and no such documents were prepared at the spot. He did not remember the time when crime team reached the spot and he did not recall the names of the persons who were part of that team. He left the spot with the rukka at about 9:20-9:25 a.m. When they reached the spot, HC Parmod, SI Lalit and complainant were on spot. He reached at the spot at about 10-10:15 a.m. No CCTV camera was installed at the spot. He left the spot and went to his home as his duty hours were over. No entry was made by him at the time of leaving the spot for home. He denied the suggestion that he was deposing falsely at the instance of IO.
7. PW-5 HC Parmod Kumar had testified that on 15.10.2020 he was posted at PS Timarpur and was on his beat duty at Beat no. 9 & 10. At about 6:30 a.m in the morning, he received a call from DO PS Timarpur that a FIR No. 342/2020 had been marked to him. He reached the spot of incident alongwith Ct. Ram Mehar where he met SI Lalit and Ct. Pankaj alongwith the complainant Satpal Singh.
ANURAG Digitally signed by
ANURAG THAKUR
THAKUR Date: 2022.01.22
19:53:42 +05'30'
FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur
13 of 21
Thereafter, SI Lalit produced the original tehrir along with copy of FIR No. 342/2020. Thereafter, he proceeded with the investigation and found that the door was open and a lock in broken state was lying on the floor. Thereafter, he prepared the site plan at the instance of complainant Satpal Singh which was already exhibited as Ex.PW1/C bearing his signature at point A. Thereafter, he seized the broken lock and prepared a seizure memo which was already exhibited as Ex.PW3/C which bear his signature at point B. Thereafter, the whole day, he spent in search of the accused alongwith Ct. Ram Mehar and SI Lalit. Ct. Pankaj was discharged from the investigation after recording his statement u/s 161 Cr.P.C. Thereafter, in the night at about 8 p.m one secret informer informed him that the person who had committed theft in the morning was seen near the bridge in front of the Yog Raj colony, Dheerpur. Thereafter, he along with Ct. Ram Mehar and SI Lalit reached the place as indicated by the secret informer. There they met the secret informer who indicated towards the accused who was sitting on the boundary wall of the bridge. He along with Ct. Ram Mehar and SI Lalit caught hold of the accused. Personal search was conducted of the accused and a personal search memo was prepared which was already exhibited as Ex.PW3/A which bear his signature at point B. Thereafter, the accused was arrested and arrest memo was prepared which was already Ex. PW.2/B which bear his signature at point C. Thereafter, the accused was inquired and his disclosure statement was recorded by him. The disclosure statement was already exhibited as Ex.PW2/A which bear his signature at point C. The accused disclosed that he committed the theft in the morning alongwith one Sonu and they both divided the Rs. 5,000/- between them. He also told that one silver bangle, one silver anklet and one silver ring along with Rs.2500/- were in his possession, out of which Rs.1,000/- he had spent already. Thereafter, at the instance of the accused, the silver anklet, silver ring and silver bangle and Rs.1,500/- cash were recovered from his possession which ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:54:04 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 14 of 21 were seized and the pullanda of white cloth was prepared containing the seized articles and the cash and was sealed with seal 'BS' and the seizure memo was prepared which was already Ex.PW2/A bearing his signature at point C. The place where the accused produced the stolen articles was near the place of incident. Ct. Ram Mehar called the complainant and asked him to identify the seized articles and the cash. Thereafter, the accused was taken at the spot of incident and pointing out memo of the place of incident was prepared which was already exhibited as Ex.PW3/A which bear his signature at point B. Thereafter, at the spot of incident, statement of Ct. Ram Mehar, SI Lalit and the supplementary statement of the complainant Satpal Singh was recorded u/s 161 Cr.P.C. Thereafter, the accused was taken to PS Timarpur from where Ct. Ram Mehar took him for getting his medical examination conducted at Aruna Asaf Ali Hospital. The accused was produced before the Ld. MM on the next date where he was remanded to JC. Thereafter, investigation was completed and the charge sheet was prepared and filed before the court.
During cross-examination by Ld. LAC for the accused, he stated that on 15.10.2020 at 7:30 a.m, he got information to investigate the matter as upon registration of FIR, the same was marked to him by the SHO. The information to him was given by the DO. He left the PS for investigating the matter at about 9:00 a.m. When he received the case, statement of none of the persons had been recorded till then. There was only the Tehrir and the FIR. No departure entry was made at 9:00 a.m while leaving the PS for investigation. He met SI Lalit at about 9:15 a.m. The crime team was not called at the spot and the photographs of the spot were also not taken. The statements of none of the neighbours were recorded. No notice was given to any neighbour to join the investigation. The house of the complainant was at first floor and comprised of an area of 30-40 square yards. The description of the house where the theft was committed was not mentioned in the site plan. He prepared ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:54:25 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 15 of 21 the site plan, however, the exact time of preparing the same he did not remember but it was in the forenoon. Chance prints were not taken from the spot. The entry of the house of complainant was towards the west. He did not remember the colour of white wash of house of complainant. He denied the suggestion that he did not remember the colour of walls of complainant's house because he never visited his house. He prepared only site plan at the spot. He left the spot at 10:00 a.m. he, Ct. Ram Mehar and SI Lalit together left the spot. No arrival entry was made at the PS at that time. He was the beat officer of the area where the theft was committed and he made entries in the case diary regarding the efforts made to apprehend the accused. He recorded the statements of Ct. Pankaj, Ct. Ram Mehar and SI Lalit at the PS. The time of recording of their statements, he did not recall but it was on 15.10.2020. He did not remember whether those statements were recorded in evening or at night. These statements were recorded after receiving the secret information from the informer. The information given by secret informer was not reduced into writing. He briefed the SHO about the secret information at about 5:30-5:45 p.m. The secret informer accompanied us till Yograj colony. The secret informer left the investigation at about 8:00-8:15 p.m. No CCTV cameras were installed in the vicinity of the house of complainant, however, CCTV cameras was installed at a distance of 200-300 yards. He had not collected the CCTV footage of that camera. He denied the suggestion that he had deliberately not collected that CCTV footage because the same could have proved the innocence of the accused. Request was made to public persons to join the raiding party but they refused. He could not tell the names, addresses etc of persons who were requested to be part of the raiding party. There was no camera in the vicinity of the place from where the accused was apprehended. He denied the suggestion that numerous cameras were installed in the vicinity of the place from where the accused was arrested. He physically apprehended ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:54:42 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 16 of 21 the accused at about 8:15 p.m. The accused was wearing a T-Shirt and Jeans Pant. The pant was of blue colour but the colour of T-Shirt, he did not remember. One ring, one pair child anklets, one child's bangle (kada) and Rs. 1500/- in cash were recovered upon the personal search of accused. All the jewellery was of silver colour but he did not know the metal from which the same were made. There was no mark or seal etc of any jeweller on the recovered articles. He asked the complainant for the bills of stolen articles but none were available with him. He did not take statement of any person from whom the complainant had purchased stolen articles. He did not remember whether the complainant told him the denomination of the currency notes stolen from his house. The complainant did not disclose the denomination of currency notes. He had not recorded the statement of anyone regarding the efforts made by him to nab the accused. The pullanda of recovered articles was prepared at the spot. No public person was joined at the time of preparation of pullanda. No police personnel had signed on the pullanda. Seal after use was kept by him. The distance between the house of complainant and the place of recovery was about 150 yards. They had asked the neighbours and the public persons to join investigation at the place of recovery but none agreed. No site plan of the place of recovery was prepared. No site plan of the place of arrest was filed in the charge sheet, though the same was prepared. They left the spot after recovery at about 9:15 p.m and went to hospital. He and Ct. Ram Mehar had gone to hospital and upon return to the PS, the DD entry of arrival was made. The TIP proceedings of the recovered articles were not conducted. He denied the suggestion that the investigation was not done property and nothing was recovered from the possession of the accused. He also denied that all the proceedings were conducted while sitting at the PS and the accused was apprehended from his house at Yog Raj colony or that he was deposing falsely.
Digitally signed
ANURAG by ANURAG
THAKUR
THAKUR Date: 2022.01.22
19:55:00 +05'30'
FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur
17 of 21
8. During his statement u/s 294 Cr.P.C, the accused voluntarily admitted the factum of registration of FIR No. 342/20 PS Timarpur without admitting the contents thereof. He also admitted the preparation and genuineness of DD No. 9A and 71A both dated 15.10.2020 PS Timarpur without admitting the contents of the DD entries. He did not dispute the aforementioned admitted documents during trial. The copy of FIR was Ex.PA1 & DD entry 9A was Ex.PA2 whereas DD entry no. 17A was Ex.PA3. The prosecution evidence was closed on 07.12.2021 and the statement of the accused was recorded under section 313 read with section 281 Cr.P.C. on 15.12.2021, wherein he pleaded his innocence and stated that he had been falsely implicated. The accused elected not to lead defence evidence. Final arguments in the case were concluded on 15.01.2022.
9. I have cogitated over the submissions made by ld. APP for the state and ld. legal aid counsel for the accused. At this juncture, it is prudent to discuss the penal provisions involved in the case for arriving at just decision. The penal provisions are reproduced in verbatim:-
380. Theft in dwelling house, etc.-Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
454. Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment.-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.
34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
411. Dishonestly receiving stolen property.-Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:55:20 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 18 of 21 with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence to successfully bring home the guilt of the accused. Further, it cannot derive any benefit whatsoever from the weakness, if any, in the defence of the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reasonable doubt in the prosecution case entitles the accused to acquittal. My observations on the evidence led at the trial are delineated hereinafter.
10.Firstly, no one saw the accused breaking open the lock of the door of house of the complainant Satpal Singh. Furthermore, the accused was not seen entering or exiting the house of the complainant. No neighbour or other public person residing or working in the vicinity of house of the complainant has been examined as a witness by the prosecution in order to prove that the accused committed theft at house of complainant. No one saw the accused taking away the stolen articles from the house of complainant. No one had deposed that the accused was even seen near the house of the complainant between 13.10.2020 and 15.10.2020 i.e. the alleged dates of commission of theft. No chance prints were taken from the place of incident in order to match the same with the finger prints of the accused in order to lend some credibility to the allegations made. The complainant reached his house only after his neighbour Shilpa telephoned him about the broken lock of his house. Shilpa has not been examined as a witness by the prosecution. There is no CCTV footage etc. of the place and time of incident. The accomplice of the accused namely Sonu could not be apprehended. There is not even an iota of evidence on record to show that the accused committed theft at the house of the complainant after ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:55:40 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 19 of 21 breaking open the lock. The prosecution has miserably failed to prove the allegations of house breaking and theft against the accused Shibbu @ Nagar, so he is acquitted of the offence u/s 454/380/34 IPC.
11.As regards the allegation of commission of offence u/s 411 IPC are concerned, the prosecution tendered evidence to show that Rs.1500/- in cash, one stone studded silver finger ring, one silver colour anklet and one silver colour bangle/bracelet of child were recovered from accused. It is the case of the prosecution that all these recovered articles were stolen from the house of Satpal Singh. All the allegedly recovered articles were shown to Satpal Singh during trial who identified only two of them (cash Rs.1500/- and one silver finger ring) as his articles but he did not identify silver colour anklet and silver colour bracelet/bangle to be the articles stolen from his house. Even when he was cross-examined on this aspect by the ld. APP for state, he remained firm that the silver colour anklet and silver colour child bracelet did not belong to him. The complainant did identify Rs.1500/- in cash to be the same currency notes which were stolen from his house but importantly, the complainant in his initial statement had neither told the police about the denomination of currency notes stolen from his house nor did he tell the police about the number of each currency note stolen. How the complainant identified the currency notes to be the same notes as stolen from his house is not known. The witness did not mention any special mark or feature on the notes which helped him in concluding that the currency notes were his property. Ordinarily, it is next to impossible for a person to merely look at a currency note and tell whether the same belongs to him or not especially when the same is one of several notes of same denomination kept at his house. Neither any photographs nor bills of stolen articles were provided by the complainant to the police. There is no way to independently ascertain that the silver ring identified by the complainant ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:56:17 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 20 of 21 indeed belonged to him and was actually stolen from his house.
12.The recovery of the stolen property (identified by the complainant) is not beyond suspicion. Complainant testified that on 15.10.2020 at about 3 p.m he went to PS where one silver ring recovered from the accused was shown to him and no pullanda was prepared. He categorically stated that cash or other stolen articles were not recovered from the accused. However, as per the statements of police witnesses viz. PW-2 Ct. Ram Mehar, PW-3 SI Lalit Chauhan and PW- 5 HC Parmod Kumar, the recovery was made from the accused in one go and that too at Pulia (bridge) of Yog Raj colony. The statement made by complainant regarding recovery of stolen property also raises questions on the seizure memo of recovered articles which bears the signature of complainant. The seizure memo shows that the three jewellery articles and cash were recovered simultaneously but this is incongruous to the statement made by the complainant. Moreover, the complainant stated that at 3 p.m one silver ring had already been recovered from the accused but as per the statement of PW-5 IO HC Parmod Kumar, the secret informer informed him only at 8 p.m that the person who committed the theft at house of complainant was sitting on pulia of Yog Raj colony. How the recovery was made at 3 p.m when the accused was apprehended only after 8 p.m is beyond the comprehension of this court. The entire testimony of PW-2 is at odds with the testimonies of PW-3 and PW-5 in as much as it does not even mention the presence of IO PW-5 at the spot. The benefit of these inconsistencies and contradictions in the testimonies of the witnesses shall accrue to the accused.
13.There is a question mark even on the site plan as the complainant testified that he could not say whether the site plan was prepared at his instance or not. Moreover, the IO in his cross-examination stated that public persons were ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2022.01.22 19:56:38 +05'30' FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur 21 of 21 asked to join the raiding party but all of them refused and left. The IO failed to tell the names and addresses of the public persons who were requested to join the raiding party. In Roop Chand v. State of Haryana 1990 (1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. Further, in Passi @ Prakash v. State of Haryana 2001 (1) RCR 435, it was held that whenever any recovery in connection with the place of the commission of the offence is made, public persons must be made witnesses. Also, in Pawan Kumar v. Delhi Administration 1989 Cri. L.J. 127, it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused. The non-joining of independent persons in investigation (though available at the spot) coupled with the inconsistencies in statements of prosecution witnesses regarding the time and place of recovery as well as the number of articles recovered lead to the conclusion that the recovery of stolen properties from the accused has not been conclusively established. It cannot be stated with certitude that the stolen case properties were recovered from the accused and the chance of false implication can not be ruled out especially when the accused was not given the opportunity to first conduct the search of raiding party. Reliance is placed upon the Orissa High Court judgment in the case of Rabindernath Prusty v. State of Orissa, 1984 CriLJ 1392 in this regard. Accordingly, the accused Shibbu @ Nagar is also acquitted of the offence u/s 411 IPC as the case against him is not proved beyond reasonable doubt.
Announced in the open court ANURAG Digitally signed by
ANURAG THAKUR
on 22nd January, 2022 THAKUR Date: 2022.01.22
19:57:13 +05'30'
(ANURAG THAKUR)
METROPOLITAN MAGISTRATE -02
TIS HAZARI COURTS, DELHI
This judgment consists of 21 pages
and each and every page of this
judgment is signed by me.
FIR no. 342/20 State v. Shibbu @ Nagar PS Timarpur