Delhi District Court
State vs . Rahul on 18 April, 2019
1
IN THE COURT OF MS. NEETI SURI MISHRA: METROPOLITAN MAGISTRATE02
(CENTRAL), TIS HAZARI COURTS:DELHI
State Vs. Rahul
FIR No. 04/11
U/s: 379/411/34 IPC
P.S. Timar Pur
CNR No. DLCT020024752012
J U D G M E N T
Unique Identification No. : 300485/16 Date of Institution : 02.01.2012 Date on which case reserved for judgment : 18.04.2019 Date of judgment : 18.04.2019 Name of the complainant : Bheem Chand Date of the commission of offence : 08.01.2011 Name of accused : Rahul, S/o Sh. Chandar Bhan @ Chand, R/o.Jhuggi Ambedker Basti Akhara,Shiv Mandir, Wazirabad, Delhi. Offence complained of : U/s 379/411/34 IPC Offence charged of : U/s 379/411/34 IPC Plea of the accused : Pleaded not guilty. Final order : Acquittal FIR No .04/11, State vs. Rahul 2
1. Brief facts of the case as per prosecution are, that on 08.01.2011 at about 4.45 am, at Yamuna Vihar near Surghat Wazirabad within jurisdiction of PS. Timarpur, the accused along with few others persons/coaccused in furtherance of their common intention stole the iron chains installed at the iron bridge meant for the support of the iron grills and allegedly committed offence punishable u/s 379/411/34 IPC. It is alleged that the accused was apprehended at the spot and was found in possession of the abovementioned articles, FIR in the present case was registered against the accused.
2. The information about the incident of theft was stated to have been received at PS. Timarpur vide DD no. 7A which was recorded at 5.10 am and the said DD was marked to ASI Shyam Singh who headed to the spot of incident. It is alleged that the accused was apprehended at the spot by two public persons namely Bheem Chand and Jitender Kumar and subsequently, FIR was got registered by the IO against the accused. Thereafter, investigation in terms of the allegations was conducted by the IO and on completion of investigation charge sheet was filed in the court. After the filing of charge sheet, the court took cognizance of the offence and summoned the accused and on the appearance of the accused, he was supplied with the copy of charge sheet. Charge was thereafter, framed against the accused u/s 379/411/34 IPC. Prosecution evidence thereafter commenced and prosecution examined in total 7 witnesses to prove the guilt of the accused.
PW1 Sh. Bhim Chand deposed that he is running a tea shop at Yamuna bridge at Wazirabad. The witness further deposed that on 08.01.2011 at about 4:30 to 4:45 pm he was arranging his tea shop and heard loud noise of breaking something "DhadamDhadam" coming from the side of Sur Ghat and at that time one Jitender was also taking tea in his shop. The witness further deposed that after FIR No .04/11, State vs. Rahul 3 hearing the said noise he alongwith Jitender went towards the side from where the said noise was coming to look into the matter and found five to six boys were present there and having iron angles. The witness further deposed that after seeing them, they started running and fled away from there and witness informed the police officials. The witness further deposed that police came on the spot and had taken the iron angles with them and no boy was caught at that time. The witness further deposed that on the next day, he was called in Police Station to identify the three to four boys who had already been caught by police officials but witness was unable to identify any of them as he had not seen the face of any boy from them. The witness further deposed that no one from those boys is present in the court but witness correctly identified the case property i.e. 13 small angles and 20 long angles.
PW2 Sh. Jitender Kumar deposed that on 08.01.2011 at about 4:45 am he was present on the back side of Sur Yamuna Bridge, Wazirabad for catching fish. The witness further deposed that he was taking tea at the shop of one Bhim Chand/PW1 and heard loud noise of breaking something from the side of Sur Ghat. The witness further deposed that he alongwith Bhim Chand reached on the back side of Sur Yamun Ghat and found some pieces of iron rod scattered there. The witness further deposed that 45 persons were also standing nearby the spot and when witness called them, they all tried to flee away from there but witness with Bhim Chand followed the aforementioned persons and apprehended one person and rest of the persons successfully fled away from there and Bhim Chand informed the police officials at 100 number. The witness further deposed that police came on the spot and they had handed over the aforementioned apprehended persons to them. The witness further deposed that police officials inquired him regarding the incident. The witness was unable to identify the accused in the court despite specific attention of the witness drawn towards accused Rahul by the Ld. APP for State as the person who was apprehended by them on the date of incident owing to the FIR No .04/11, State vs. Rahul 4 reason that it was dark at that time. The witness correctly identified the case property in the photographs.
PW3 HC Ram Niwas deposed that he was working as MHC(M) at PS Timar Pur. The witness further deposed that in view of guidelines of Hon'ble High Court of Delhi, photographs of the case property pertaining to present case were taken in his presence and panchnama EXPW3/A was prepared. Photograph of the case property is EXPW3/B. PW4 Sh. K.K.Prasad deposed that he was working as Junior Engineer at PWD and was Incharge of Wazirabad bridge. The witness further deposed that after recovery of stolen angles which were stolen from Wazirabad bridge on 08.01.2011 he visited Police Station Timar Pur where he had identified those angles.
PW 5 HC Harender Singh was the duty officer on 08.01.2011. He stated that on that day, he recorded DD No. 7A which is EXPW5/A on the basis of information received from control room and he handed over the said DD to ASI Shyam Singh for further investigation. The witness further deposed that he registered FIR EXPW5/B(OSR)on the basis of Tehrir brought by Ct. Kamal Kant. The endorsement on Tehrir is EXPW5/C. PW6 Ct. Kamal Kant deposed that on 08.01.2011, he was posted as Constable at Police Station Timar Pur and on that day, he was on night emergency duty and his duty hours were from 8:00 pm to 8:00 am. The witness further deposed that on that day, ASI Shyam Singh received a DD number 7A regarding theft at about 5:00 am and he along with IO went to the spot i.e. Yamuna bridge, Surghat. The witness further deposed that on reaching there, complainant namely Bheem Chand along with one more person met them and the complainant caught the FIR No .04/11, State vs. Rahul 5 accused while committing theft. The witness further deposed that they told them that the accused broke the angles i.e. 20 in big size with measurement around 6 feet and 13 in small size with measurement of 2 feet of the Yamuna Bridge. The witness further deposed that thereafter, complainant handed over the accused and the angles to the IO ASI Shyam Singh. The witness further deposed that thereafter, IO prepared the seizure memo of the case property which is already EX.PW1/C bearing my signature at point C. The witness further deposed that IO recorded the statement of the complainant and prepared the rukka and handed over the same to him for the registration of FIR and witness went to the PS and got the FIR registered and came back to the spot along with copy of FIR and original tehrir and handed over the same to the IO. The witness further deposed that IO recorded the disclosure statement of the accused EX.PW1/F and prepared pointing out memo EX.PW1/G. IO arrested the accused and conducted his personal search vide memos already EX.PW1/D and EX.PW1/E. Witness correctly identified the accused and the case property in the court.
PW7 Inspector Arun Kumar deposed that on 08.01.2011, he was posted as SI at PS. Timar Pur. The witness further deposed that on that day, he was directed by the SHO to go to attend the call of IO ASI Sham Singh who was present at Ambedkar Basti, Shiv Mandir, Timar Pur as one juvenile was to be apprehended there as he was Juvenile Welfare Officer at that time. The witness further deposed that IO went to the aforementioned spot and met IO ASI Sham Singh and accused Rahul. The witness further deposed that at the instance of accused Rahul, IO ASI Sham Singh and himself apprehended CCL Umesh. The witness further deposed that he recorded the version of CCL Umesh and after recording the version of aforementioned CCL he was handed over to his parents. The witness further deposed that thereafter, he was discharged from the case.
FIR No .04/11, State vs. Rahul 6
3. On completion of prosecution evidence, all the incriminating facts and evidence were put to the accused, as per the mandate of Section 313 r/w Section 281 Cr.P.C. and his statement was recorded without oath. Accused refused to lead defence evidence.
4. The matter was thereafter fixed for final arguments. Final arguments were heard and record of the case was thoroughly perused.
5. It is the case of prosecution that on 08.01.2011, at about 4.45 a.m., near Surghat at Yamuna River, two persons namely Bheem Chand and Jitender Kumar were present on the backside of the Yamuna Bridge when they heard loud noise of something being broken. Following the noise they reached at the side of Surghat and found 56 boys having iron angles in their hands, but on seeing both the above said persons they started running away and finally they fled from the spot. It has been alleged by the prosecution that one of the boys was apprehended at the spot and he was handed over to the police who was identified as Rahul, the accused in the present case. Prosecution therefore, has alleged that the accused Rahul in furtherance of his common intention with few other boys who were not apprehended during investigation by police committed the offence of theft of the iron chains from the Yamuna Bridge.
6. In order to establish the allegations against the accused, prosecution examined both the abovestated material witnesses namely Bheem Chand and Jitender Kumar. I have carefully examined the testimonies of both the witnesses who were examined as PW1 and PW2 respectively. PW1 in his examination in chief completely denied the apprehension of any thief on the date of incident and clearly admitted that all the five/six boys ran away from the spot. The witness further denied the suggestion given by the Ld. APP for the state that he along with PW2 FIR No .04/11, State vs. Rahul 7 Jitender had caught one boy namely Rahul and handed him over to the police when police reached at the spot. The witness also refused to identify the accused Rahul in the court and apparently has not supported the case of prosecution at all.
7. It is pertinent to note, that PW1 has admitted the presence of PW2 Jitender at the spot. PW2 Jitender too has admitted that he was having tea at the tea stall of PW1 and together they heard the noise simultaneously, pursuant to which they followed the sound and reached near the Yamuna Bridge. This implies that both, are eyewitnesses of the incident and should be corroborating each other's testimony. But there are conspicuous contradictions in their deposition. Where on one hand PW1 has denied apprehension of any thief at the spot, PW2 has testified that accused Rahul was apprehended at the spot by both PW1 and PW2. Where on one hand PW1 has failed to the identify the accused, PW2 had identified him to be the thief who was caught at the spot. There is also confusion with regard to the property that was subject matter of theft and the property that was allegedly recovered from the accused at the spot. In the statement of complainant, proved as Ex.P1(Colly.), it is recorded that theft of iron chains took place, but during the evidence of PW1 and PW2 iron angles have been exhibited.
8. Furthermore, not only can discrepancy be noted in the testimonies of PW1 and PW2, but also in the testimonies of PW1 and PW6. PW6 being a police witness has deposed that accused Rahul was admitted at the spot, but PW1 denied the same.
9. Having regard to the foregoing discussion, I am of the opinion that prosecution has failed to establish the charge under Section 379 IPC against the accused. Coming now to the allegations of Section 411 IPC for which too, the accused has been charged, there is apparently no evidence to prove the same as the entire case of prosecution is that the accused was apprehended from the spot while FIR No .04/11, State vs. Rahul 8 committing theft. Therefore, for complete lack of evidence to prove charge under Section 411 IPC, it is held that the accused cannot be convicted even under the abovestated provision.
10. It is settled position of law that prosecution has to prove the case against accused beyond all reasonable doubt as the initial onus is on the prosecution. But in the present case, the prosecution having failed to prove the charges against him as per the requisite standards, so, accused Rahul is acquitted in the present case for charges u/s 379/411 IPC.
11. Bail bond in compliance of Section 437 A Cr.P.C was directed to be furnished.
Digitally signed by NEETI SURI NEETI SURI MISHRA MISHRA Date: 2019.04.30 22:33:27 +0530 Pronounced in open court (NEETI SURI MISHRA) on 18.04.2019 MM02 (Central): Tis Hazari Courts Courts:Delhi:/18.04.2019 (This Judgment contains 8 pages and all pages are signed by me) FIR No .04/11, State vs. Rahul