Delhi District Court
State ...........Prosecution vs . on 23 January, 2023
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 32/2018
Police Station Domestic Airport
Under Section(s) 380 IPC
Cr. Case no. 604/2019
CNR no. DLSW020025762019
IN THE MATTER OF:
State ...........Prosecution
Vs.
Vijender Singh Meena @ Ajay Raj Meena
S/o Kirori Lal Meena
R/o VPO Pilauda, Tehsil Gangapur City,
District Sawai Madhopur, Rajasthan ............Accused
1. Name of complainant : Somnath Pandit
2. Name of accused : Vijender Singh Meena @
Ajay Raj Meena
3. Offences complained of : Under Section 380 of The
Indian Penal Code, 1860
4. Plea of accused : Not guilty
5. Date of commission of offence : 03.12.2017
6. Date of institution of case : 16.01.2019
7. Date of reserving judgment : 05.12.2022
8. Date of pronouncement : 23.01.2023
9. Final judgment : Acquitted
JUDGMENT:
1. The present case pertains to prosecution of accused in State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.1/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.01.23 15:31:45 +0530 respect of offence punishable under Section 380 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity).
2. Shorn of unnecessary details, the case of prosecution is that on 03.12.2017 at unknown time at The Cellar Shop (a unit of Buddy Retail Pvt. Ltd.) located at T1C Arrivals, Domestic Airport, New Delhi (henceforth, 'Store'), the accused committed theft of a liquor bottle make Michter's Small Batch (Bournbon Whiskey) from the said Store. On the written complaint of complainant, the FIR was registered and investigation was undertaken by IO. He then recorded the statements of witnesses under Section 161 Cr. P. C. and collected CCTV footage along with certificate under Section 65B of Indian Evidence Act. The accused was arrested and later on released on bail. After the culmination of investigation, chargesheet was filed against the accused.
3. Cognizance was taken of offence under Section 380 of IPC and accused was summoned to face trial for the said offence. Upon the appearance of accused, the copy of chargesheet was supplied to him in compliance with Section 207, Criminal Procedure Code (henceforth 'Cr.P.C').
4. On the basis of material filed along with chargesheet, charge was framed against accused for offence u/S 380 IPC to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of FIR along with certificate U/s 65B Indian Evidence Act as Ex.A1 (colly), DD no.17 dated 06.03.2018 as Ex.A2 and statement of Ct. Ravinder Kumar as State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.2/13 Digitally signed BHARTI by BHARTI GARG GARG Date: 2023.01.23 15:32:00 +0530 Ex.A3, under Section 294 of Cr. P. C.
5. In the pursuit to prove its case, the prosecution examined nine witnesses in all. PW1 Somnath Pandit (complainant) deposed that on 03.12.2017, he was working as Floor Manager at the Store and on that day, the accused lifted a liquor bottle make Michter's small batch (Bourbon Whiskey) 750m1 worth Rs.9,645/ approximately from the Store without billing and hid it in his jacket. The incident came to his notice on 04.12.2017 when upon checking the inventory, he found the aforesaid bottle missing from the Store whereafter, he checked the CCTV footage installed at the Store. He informed about the incident to his superior Sh. Pintu Singh. After few days, he along with Pintu Singh went to police station and lodged complaint Ex.PW1/1. Upon playing the CD Ex.P1, one person wearing a blue jacket, identified by the witness as the accused, was seen entering the liquor store and picking a liquor bottle. Thereafter, he went inside and hid himself behind the cartons and then came outside empty handed and went out of the Store.
6. In his crossexamination, PW1 stated that he did not give the inventory to police nor the police had asked for the same. The complaint was lodged by him after about 712 days. During that period, they had conducted an inquiry. They also informed about the incident to their higher authority Ashwani Bhatia. He admitted that all the documents of said inquiry were given by him to the IO along with complaint. He did not give the bills of the sale which happened on the day of incident to the IO State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.3/13 BHARTI Digitally signed by BHARTI GARG GARG Date: 2023.01.23 15:32:14 +0530 nor the IO had asked for the same. He admitted that the liquor bottles which were kept in their store bore respective bar codes and holograms. He had shown to the IO similar bottle as the missing bottle for the purpose of verifying that one of such bottles was stolen. He did not provide any document on which the peculiar bar code of the missing bottle was mentioned and he also did not provide any purchase document/bill of the said bottle to the IO. He did not sign any document during investigation except giving his complaint.
7. PW2 Roshan Kumar stated that he had written a letter to the SHO Domestic Airport Ex.PW2/A whereby he had disclosed that he had given his mobile SIM bearing no.8368069048 to his colleague Avnish Kumar and the said SIM was later on used by one Vinay Kumar to book flight ticket. PW3 Vinay Kumar deposed that on 03.12.2017, he was coming back from Ahmedabad after taking an exam and one person namely Yogender Meena had come to him to help him book his ticket from Ahmedabad to Delhi as he was not having internet access and further that he booked his ticket from his mobile phone. He could not identify the accused due to lapse of time. As PW3 resiled from his previous statement, the Ld, APP was granted permission to put him questions in the nature of cross examination, wherein he admitted that the sim though which he booked the tickets was given to him by his friend Roshan Kumar. He denied the suggestion that accused had gone inside the Store and shoplifted a liquor bottle, which fact was disclosed by the State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.4/13 BHARTI Digitally signed by BHARTI GARG GARG Date: 2023.01.23 15:32:24 +0530 accused to him.
8. PW4 Pradeep Kumar stated that the CD containing CCTV footage of the incident was seized by IO from him vide seizure memo Ex.PW4/A. In his crossexamination, the witness admitted that the time shown in the CCTV footage 23.04.34 had immediately jumped to 23.04.44. Similarly, the time 23.04.49 had immediately jumped to 23.05.03 and the time 23.05.09 had immediately jumped to 23.05.22. He clarified that this time gap had occurred as the cameras were motion sensing cameras, meaning thereby that they would record only when there is movement/motion of anything or any person in front of the cameras.
9. PW5 Vijay Kumar tendered in evidence the seizure memo as Ex.PW5/A vide which his reply to the notice under Section 91 Cr. P. C. and the requisite documents/flight manifest of flight no.SG194 and SG912 dated 03.12.2017 along with certificate under Section 65B of Indian Evidence Act were seized by the IO. He further tendered his reply as Ex.PW5/B, the flight manifest as Ex.PW5/C and certificate under Section 65B of Indian Evidence Act as Ex.PW5/D. PW7 Parveen Kumar tendered the CAF of Roshan Kumar as Ex.PW7/A along with certificate under Section 65B of Indian Evidence Act as Ex.PW7/B and reply dated 31.12.2018 to the notice under Section 91 Cr. P. C as Ex.PW7/C by identifying thereon the signatures of Kamal Kumar as he had seen him writing and signing during the regular course of his duties.
State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.5/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.01.23 15:32:34 +0530
10. PW6 R. K. Mandal, SI CISF tendered the CD containing CCTV footage of the incident as Ex.P2, the supporting certificate under Section 65B of Indian Evidence Act as Ex.PW6/A and the covering letter as Ex.PW6/B by identifying thereon the signatures of Krishan Prakash as he had seen him writing and signing during his regular course of duties. Upon playing the said CD, one person in navy blue sweatshirt could be seen going out of terminal and holding one white coloured box under his right arm. In his crossexamination, the witness stated that he could not identify the said person.
11. PW9 Inspector Dinesh Kumar (first IO) deposed that on receipt of complaint vide DD no.27 dated 23.12.2017, he prepared the tehrir Ex.PW9/A and got the present FIR registered. Thereafter, he was transferred from the police station. In his crossexamination, he denied the suggestion that there was unnecessary delay in lodging the FIR.
12. PW8 ASI Rajesh Kumar (second IO) deposed regarding the further investigation conducted by him. He stated that a secret informer had informed him that the accused seen in the footage was lodged in Jaipur Jail. He proved the notice U/s 91 Cr.P.C. regarding the flight manifest as Ex.PW8/A, the request for preserving the CCTV Footage of the incident in the CD as Ex.PW8/B, notice U/s 160 Cr.P.C. upon Roshan Kumar as Ex.PW8/B1, notice U/s 91 Cr.P.C regarding CCTV footage as Ex.PW8/B2, request letter regarding the CAF as Ex.PW8/B3, application for issuance of production warrant of the accused as State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.6/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.01.23 15:32:45 +0530 Ex.PW8/C, arrest memo of accused as Ex.PW8/D and disclosure statement of accused as Ex.PW8/E. In his crossexamination, PW8 could not recall if he had asked for any bill (proof of ownership) from the complainant/staff members. He admitted that in the CCTV footage, only one box could be seen in the hand of accused. He admitted that the complainant did not state that the stolen liquor bottle was kept in any box. He had not inquired about the time gap which can be observed in the CCTV footage during investigation.
13. On account of the admission made by accused under Section 294 Cr.P.C qua the genuineness of FIR along with certificate U/s 65B Indian Evidence Act as Ex.A1 (colly), DD no.17 dated 06.03.2018 as Ex.A2 and statement of Ct. Ravinder Kumar as Ex.A3, PW WSI Munni Devi and Ct. Ravinder were dropped from the list of prosecution witnesses and their examination in that regard was dispensed with.
14. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against the accused in evidence were put to him. The accused controverted all the allegations levelled against him and stated that he has been falsely implicated. He additionally stated that he had merely gone to that shop for purchasing items and that he was informed about the present incident after eight months. The accused opted to not lead evidence in his defence. Thus, the defence evidence was closed and the matter was taken up for State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.7/13 Digitally signed BHARTI by BHARTI GARG GARG Date: 2023.01.23 15:32:58 +0530 final arguments.
15. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The testimonies of prosecution witnesses have remained unshaken on the point that the accused had stolen the bottle of liquor. It is further corroborated by the documentary evidence on record. Therefore, it is prayed that the accused be convicted of alleged offences.
16. The accused failed to address final arguments despite sufficient opportunities and thus, his right to address arguments was closed. Arguments heard. Record perused. Considered.
17. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
18. Before delving into merits, it is pertinent to give a brief outline of the offence alleged against the accused. For the offence of theft under Section 380 IPC, it has to be proved that the accused moved the liquor bottle from the Store with intention to State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.8/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.01.23 15:33:13 +0530 dishonestly take it out of the possession of its owner. At the outset, the accused has not disputed his presence at the Store on the relevant date. His statement under Section 281 r/w 313 Cr.P.C that he had gone to the Store to make purchase is corroborated by the CCTV footages on record Ex.P1 and Ex.P2.
19. The core indictment against the accused is that of shop lifting. It is imperative to note that there neither there is any eye witness to the incident nor the stolen liquor bottle was recovered from the accused. Having said that, the veracity of entire prosecution case primarily hinges on the events which have transpired in the CCTV footages Ex.P1 and Ex.P2. Now, a cumulative analysis of both these footages reveals that the accused, wearing a blue jacket/hoodie, first went inside the liquor store and picked up a liquor bottle; he then proceeded inside a room at the store and moved behind the cartons; he then came outside of the room empty handed and left the store;
outside the store, he held a white colored box and then went away in an autorickshaw.
20. While it is true that the accused had picked up a liquor bottle when he went inside, however, that fact is of little consequence as the place of incident is a liquor shop and it is ordinary for the customers to exhibit such conduct of picking items at the shop without ending up buying the same. It is amply clear that nowhere in the CCTV footage it is seen that the accused was carrying any liquor bottle when he left the Store. Likewise, the fact that the accused was carrying a white box State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.9/13 Digitally signed BHARTI by BHARTI GARG GARG Date: 2023.01.23 15:34:28 +0530 before he took the autorickshaw does not necessarily imply that it had contained the stolen bottle as it is not the case of prosecution that the liquor bottle was kept in any such box.
21. Merely because the accused took the bottle inside a room at the Store and moved behind the cartons, is not sufficient to prove beyond all reasonable doubts that he had hidden the liquor bottle inside his jacket. Notably, the said bottle was not visible to be in his possession when he came outside the room and the Store. In these circumstances, the possibility that the accused left the bottle behind the cartons cannot be ruled out. The conduct of accused, at the most, might seem to be suspicious but there is no gainsaying that in a criminal case, suspicion cannot take the place of proof.
22. The cloud of suspicion, in fact, becomes denser as the IO seems to have relied merely upon the bald statement of complainant in concluding that the stolen bottle was missing from the inventory of 03.12.2017 and did not himself make any effort to gather corroborative material during investigation. The IO did not verify the said fact from any source, whatsoever. He did not enquire the complainant about the documents pertaining to the inventory and sales of relevant date. As per the complaint Ex.PW1/A, it was the store manager who had first found out about the missing bottle, nonetheless, the IO did not even examine the store manager who first learnt about the commission of alleged offence.
23. Furthermore, PW1 admitted in his crossexamination State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.10/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.01.23 15:34:37 +0530 that all the liquor bottles at their Store bore respective barcodes and holograms for the purpose of identification. However, the IO did not even obtain these details to verify the identity of stolen bottle. The document of purchase/bill of the said bottle is also not brought on record. As such, there is no corroborative evidence on record to indicate that the any liquor bottle was stolen from the Store in the first place.
24. In addition to this, there has been an unexplained delay in registering the FIR in present case. According to the statement of complainant, he got to know about the missing bottle on the next day, i.e. on 04.12.2017. Nevertheless, the police complaint was made only on 23.12.2017, on which basis the FIR was registered on that day. There was a delay of about nineteen days in registering the FIR from the date of knowledge of complainant. Now, it is wellsettled that no hard and fast rule can be applied to determine the effect of delay in filing the FIR and the court would see whether the explanation afforded is plausible enough in the given facts and circumstances. In Ram Jag Vs. State of U.P (1974) 4 SCC 201, it was held by Hon'ble Supreme Court that: "Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution."
State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.11/13 Digitally signed BHARTI by BHARTI GARG GARG Date: 2023.01.23 15:34:47 +0530
25. Adverting to present case, the complainant stated in his crossexamination that they had conducted an internal inquiry before lodging the complaint whereby they checked the CCTV footage. However, the documents qua the said inquiry are not there on record. Even if some amount of delay is accepted on account of said inquiry, that of nineteen days still remains inexplicable as checking the CCTV footages would not ordinarily consume so much of time. In these circumstances, the delay in lodging the police complaint has not been sufficiently explained by the prosecution. In other words, as the FIR was not promptly registered, there was ample opportunity to concoct and deliberate with the complainant to file an embellished report. One cannot deny that the that the accused was roped in merely because of his suspicious conduct at the Store when the real culprit could not be located which eventually led to delayed FIR. On that touchstone, it would be unsafe to accept the recitals of FIR to be truthful version of the incident and the possibility of complainant conniving with investigation agency to falsely implicate the accused cannot be overlooked.
26. The upshot of foregoing discussion is that the primary circumstances on which the prosecution laid the foundation of its case are insufficient to constitute a cogent chain linking the accused with alleged offence. No direct evidence has emerged against the accused and the circumstantial evidences are not of conclusive nature so as to be consistent with the only hypothesis of the guilt of accused. The deposition of complainant is shrouded with material inconsistencies and is not corroborated by State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.12/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.01.23 any other evidence. The prosecution has miserably failed to establish that the accused had moved the liquor bottle from the Store with intention to dishonestly take it out of the possession of its owner. The investigation undertaken by IO is below par, thereby leading to the irresistible conclusion that the accused is entitled to benefit of doubt.
27. Resultantly, since the prosecution has failed in proving the charge against the accused beyond the shadow of all reasonable doubts, the accused Vijender Singh Meena @ Ajay Raj Meena S/o Kirori Lal Meena R/o VPO Pilauda, Tehsil Gangapur City, District Sawai Madhopur, Rajasthan is held not guilty and hereby acquitted of the offence punishable under Section 380 of The Indian Penal Code, 1860.
Pronounced in open court in the Digitally signed by BHARTI presence of accused on 23.01.2023. BHARTI GARG Date:
GARG 2023.01.23
15:35:02 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/23.01.2023
It is certified that this judgment contains thirteen pages and each page has been signed by the undersigned.
Digitally signed BHARTI by BHARTI
GARG
GARG Date: 2023.01.23
15:35:08 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/23.01.2023
State Vs. Vijender Singh Meena @ Ajay Raj Meena DLSW020025762019 Page no.13/13