Delhi District Court
Harish Chand Jain vs State on 3 June, 2025
IN THE COURT OF SHRI KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
Cr. Appeal No. 72/2024
CNR No. DLSH01-002586-2024
HARISH CHAND JAIN,
S/o Sh. Roop Chand Jain,
R/o 139, Choudhary Bharam Singh Marg,
Old Maujpur, Delhi-110053. ...Appellant
Vs.
1. STATE (NCT OF DELHI)
2. MEENA SHARMA,
W/o Lt. Sh. Parmanand Sharma,
H. No. 121, Main Road Maujpur,
Delhi-110053.
...Respondents
Present:- Sh. C M Bhardwaj., Ld. LAC for appellant along
with appellant.
Sh. Sobit, Ld. Addl.PP for the State/R1.
Sh. R K Mishra and Ms. Kavika, Ld. Counsels for
R2.
JUDGMENT
1. It is submitted by Ld. LAC for the appellant that he has challenged the impugned judgment dt. 15.02.2024 in FIR No. 53/2009, PS Jafrabad passed by Ld. ACMM, Shahdara District, KKD Courts, Delhi thereby acquitting the accused Meena Sharma.
2. It is submitted by Ld. LAC for appellant that the said impugned judgment is illogical, unjust, biased and based on conjectures and surmises and deserves to be set aside. The Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 1 Of 15 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.06.03 16:12:09 +0530 judgment is based on the testimony of PW1 Liyakat Ali, who turned hostile and DW1 accused Meena Sharma deposed in her cross-examination that she knew Liyakat Ali, who was her tenant for last 50 years and as such PW1 was an interested witness and to remain in good books of landlady Meena Sharma, he turned hostile and his testimony cannot be relied upon. PW1 stated in his deposition that complainant vacated the premises in 2008, but Meena Sharma in her statement u/s 313 Cr.P.C. stated that complainant vacated the premises in April-May, 2009, which are contradictory. Ld. Trial Court closed the opportunity to cross- examine the complainant Harish Chand Jain considering his conduct of seeking adjournment and did not consider that he was 70 years old and his examination in chief was recorded on various dates and then matter was transferred to other ACMM, but complainant could not be examined and his testimony would have been completed, if the Ld. Trial Court allowed his evidence post lunch on previous dates and it was misconceived that appellant did not examined himself.
3. It is further submitted that on 30.06.2023, his examination in chief was completed and he was exhausted and cross was adjourned for next date on 20.07.2023 and the appellant came, but went to the dispensary due to ill health and he was referred to hospital and marked his attendance post lunch, which was ignored by the Ld. Trial Court and his cross- examination was not allowed in which he could have explained his position and the judgment was passed due to which appellant was prejudiced. The complainant did not file any application u/s 311 Cr.P.C. and such application by Ld. APP was dismissed by Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 2 Of 15 KUMAR Digitally signed by KUMAR RAJAT RAJAT 16:12:15 +0530 Date: 2025.06.03 the Court and later, complainant filed an application u/s 311 Cr.P.C. dated 09.02.2024, which was dismissed by the Ld. Trial Court without going through the factual details. The appellant did not vacate the shop in April-May, 2019 and he occasionally visited the shop during that period because of his father's illness and no notice of vacation was served and later, accused sent legal notice dated 06.11.2009 as an afterthought, which was never received by complainant and he came to know about it in Court. PW4 IO admitted the collected list of stolen articles and also he collected the rent receipts from the complainant.
4. It is further submitted that Ld. Trial Court acquitted accused Meena Sharma on the ground that sole eye-witness of prosecution supported the accused and there was no recovery of stolen items and that complainant vacated the property on his own and the co-accused Vijay Gujjar expired during trial.
5. Ld. Addl. PP for the State/R1 submits that the State has not filed any appeal and the appeal may be decided as per the facts and circumstances/evidence brought on record before the Ld. Trial Court.
6. Ld. Counsel for R2 accused Meena Sharma opposed the complaint/appeal and submitted that Judgment of Ld. Trial Court was a judicious and legally sound one, which was passed after hearing both the sides and appreciating the evidence brought on record. R2 has filed the written submissions and denied the contents of the present appeal being not maintainable and that Ld. Trial Court gave ample opportunities to appellant, who intentionally and deliberately and with motive to harass R2 did not support the Ld. Trial Court nor participated in filing the Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 3 Of 15 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.06.03 16:12:20 +0530 original documents and always linger on the proceedings and R2 defended the case for 15 years and the only eye witness Liyakat Ali turned hostile and stated that appellant is habitual litigant, who has filed many cases of similar nature against his landlords to extort money. It is also submitted that there was an unexplained delay of 24 days in lodging the FIR and appellant himself vacated the tenanted premises without clearing the arrears of rent and then, R2 served him legal notice and as a counter-blast, he filed the present FIR to escape liability of rent of Rs. 26,400/- and there is no document on record regarding the incident of 18.11.2009. The appellant deliberately did not bring original documents to delay the proceedings and his right to be cross-examined was rightly closed and the complainant was habitual of filing the transfer petition just to delay the matter and appellant had not preferred any revision/appeal against the order dated 20.07.2023 and the application of Ld. APP under 311 Cr.P.C. was rightly dismissed by Ld. Trial Court and it was the complainant, who did not make himself available for his cross- examination and as such the said judgment does not need any interference.
7. I have heard the submissions and perused the record.
8. As per the case of prosecution, on 27.11.2009, ASI Dinesh Bhargav received the complaint of Harish Chand Jain and he reached the spot at Main Maujpur Road, New Titiksha Public School, Shop No. 121. Complainant alleged that on 01.01.2005, he rented a shop at Property No. 121 situated at Abadi Main Road, Maujpur from one Parmanand Sharma at a monthly rent of Rs. 2,200/- and he ran a firm M/s. Shilpi Enterprises where the Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 4 Of 15 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.06.03 printing ink and printing material was kept. After death of Parmanand Sharma, Smt. Meena Sharma started taking rent, but did not issue the receipt and the father of complainant got ill and he had to look after him at the hospital and could not visit the said shop and on 03.11.2009, Meena Sharma had broken open the lock of the shop and took away the said material/articles worth Rs. 1 Lakh and increased the shutter to some extent and she did not give any notice to him and handed over the possession of said shop to one Raj Kumar and when he complained to the police, one Vijay Gujjar of Maujpur village used to threaten him by visiting his house and to withdraw the complaint and on 18.11.2009, Vijay Gujjar threatened him and when he refused to withdraw the complaint, he and his 3-4 associates had started beating him and they all are associates of Meena Sharma, who had helped her in breaking the lock and got his articles disappeared.
9. On the said complaint, an FIR No. 53/2009, u/s 448/380/34 IPC dated 27.11.2009, Ex.A1 was registered at PS Jafrabad against Meena Sharma and Vijay Gujjar. After investigation, charge-sheet was filed against both the accused u/s 448/380/323/506/34 IPC. Then, charge was framed u/s 454/380/34 IPC against the accused persons on 19.03.2012 by Ld. Trial Court and additional charge u/s 323/506 IPC was framed against accused Vijay Gujjar. The case against co-accused Vijay Gujjar abated vide order dated 01.08.2019 as he had expired.
10. The prosecution examined five witnesses to prove the case. PW1 Liyakat Ali deposed that he was resident of Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 5 Of 15 KUMAR Digitally signed by KUMAR RAJAT RAJAT Date: 2025.06.03 16:12:32 +0530 Mohanpuri, Delhi and was working as Carpenter in Shop No. 121, Purani Abadi, Main Road Maujpur, Delhi for the last 38 years and Harish Chand Jain had taken the shop on rent from Parmanand, which was adjacent to his shop and Harish Chand Jain was doing the work of printing press there and also used to sell ink etc. used in printing press and he vacated the said shop in 2008 by delivering keys to Meena, who was wife of Parmanand in his presence and also took his belongings from the said shop when it was vacated.
11. PW1 was declared hostile and during the cross- examination of Ld. APP, he denied the contents of his statement u/s 161 Cr.P.C., Mark A and denied that he had not seen Harish Chand vacating the shop on his own and it was informed to him by someone and he also denied that he had not seen complainant handing over keys to Meena Sharma and he had not seen complainant taking away his belongings from the said shop and also denied that he was deposing falsely at the instance of Meena Sharma, being lady.
12. PW1 was not properly cross-examined by Ld. APP and in his cross-examination, it is not mentioned that said facts were recorded in his statement u/s 161 Cr.P.C., which were denied by him and he was confronted with the same. Further, in his cross-examination on behalf of accused, PW1 admitted that police had not recorded his statement as per his version and he also admitted the suggestion that complainant had filed several cases against landlords in relation to the premises in which he worked/resided as a tenant and further stated that he was of quarrelsome nature.
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13. PW2 Harish Chand Jain deposed that he took the said Shop No. 121 at Main Maujpur Road, New Titiksha Public School on the rent of Rs. 2,200/- pm from Parmanand Sharma along with Rs. 5 per unit electricity charge and landlord gave him receipts of rent, Ex.P1 (OSR) and Ex.P2 (OSR) and the security receipt, Ex.P3 (OSR) and on 06.04.2006, he registered his shop at EDMC, Mark P4. On 03.11.2009 in his absence, accused Meena Sharma broke the lock of shutter of said shop and had stolen the articles of his shop i.e. printing ink and printing material an he made complaint to the police, but no action was taken and in the meanwhile, accused Meena Sharma and Vijay @ Gujjar pressurized and threatened him to withdraw the complaint. On 18.11.2009 at about 10 PM, Vijay Gujjar and his associates gave beatings to him and threatened to withdraw his complaint and he was medically examined and Kalandara u/s 107/151 Cr.P.C. was booked and on 27.11.2009, he made complaint, Ex.PW2/A as accused persons had stolen the article worth Rs. 1 Lakh and he never received any legal notice to vacate the said shop and he brought the original documents, Ex.PW2/B to Ex.PW2/Z1 and Mark X1 to Mark X9, which are bills.
14. PW2 had not brought the originals of all the documents and despite giving opportunity, he did not bring the same on the next dates and either he was absent or appeared late or did not bring the documents required and on 12.04.2023, Ld. Trial Court gave last and final opportunity to prosecution to examine all the witnesses and issued fresh notice to PW2 Harish Chand Jain through DCP and on 01.06.2023, he appeared but did not bring the required documents and on 30.06.2023 also, he did Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 7 Of 15 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.06.03 16:12:42 +0530 not bring any original document and he could not explain why he did not bring the original documents and why he did not hand over the same to the IO during investigation and he could not give any satisfactory reply and the documents produced by PW2 were marked i.e. Mark X1 to Mark X9 and Ld. APP was allowed to ask some leading question to the witness wherein he admitted that he was running the said shop in the name of M/s Shilpi Enterprises and his printing ink and printing material was there in the shop and he used to pay the rent to Meena Sharma after death of Parmanand Sharma and he could not visit the said shop due to illness of his father and on 03.11.2009, Meena Sharma had broken open the lock and shutter of said shop and took the said articles worth Rs. 1 Lakh and did not inform him and handed over possession to one Raj Kumar and on 18.11.2019, Vijay Gujjar with his associates threatened him to withdraw his complaint and on refusal he was beaten and accused persons forcefully dispossessed him from the said shop and her cross- examination was deferred at his own request on 03.06.2023 and on next date i.e. 20.07.2023, the complainant did not appear nor his counsel appear despite repeated calls and it is mentioned in the order-sheet dated 20.07.2023 that complainant was trying to avoid to get his evidence completed and sought adjournments and was not present for his cross and Ld. Trial Court considering the conduct of complainant (PW2) closed the right of prosecution to lead complainant Harish Chand Jain.
15. It is submitted by the appellant that the application u/s 311 Cr.P.C. was filed by Ld. APP and appellant himself, which were dismissed. Neither said order was challenged by Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 8 Of 15 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.06.03 16:12:47 +0530 State or appellant and the trial proceeded. The State or the appellant had to challenge the said orders of dismissal of application u/s 311 Cr.P.C. by Ld. Trial Court.
16. It is settled law that cross-examination is an extension of examination in chief and accused should be given a right to cross-examine and only then, when the cross- examination is complete, the testimony of a witness can be read into evidence, but in this case, since cross of PW2 was not completed, his testimony cannot be read in evidence.
17. PW1 has categorically deposed that the complainant Harish Chand Jain had taken his belongings from the said shop when he vacated the same in the year 2008 and handed over keys to accused Meena Sharma, in his presence. Thus, he is an eye- witness of vacation of said shop as well as taking away of articles by complainant on his own and his testimony seriously affect the case of prosecution as he also disowned his statement u/s 161 Cr.P.C., Mark A and as per admission of PW1, complainant is habitual of filing of such complaint against landlord and his two statements were not recorded by the IO. It is not in dispute that Harish Chand Jain was not the tenant of said Parmanand Sharma, but there is no agreement of tenancy between Meena Sharma and the complainant proved on record and the defence of accused Meena Sharma was that complainant vacated the premises on his own and took away his articles, which is corroborated by the prosecution's own witness PW1. No explanation is given by complainant for not challenging the dismissal orders of application u/s 311 Cr.P.C.
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18. There is no eye-witness examined by the prosecution, who had seen accused breaking open the locks and taking away the articles of the complainant and there is no CCTV footage of the incident brought on record. Also, there is no CDR of the accused showing her presence at the spot or her conspiracy with others to get the said theft done at the said shop.
19. PW3 Anita Yadav is a witness of seizure of one affidavit and advance receipt vide memo, Ex.PW3/A and that accused Meena Sharma was arrested vide arrest memo, Ex.PW3/B, but PW3 failed to identify accused Meena Sharma, which raises serious question on her testimony and PW3 identified accused during cross-examination of Ld. APP when leading question was put.
20. PW4 ACP Ved Prakash proved the seizure of two rent receipts, Ex.P1 and Ex.P2 issued by Parmanand Sharma and Meena Sharma to Harish Chand Jain, which were seized vide seizure memo, Ex.PW2/ZJ and also proved the seizure memo, Ex.PW3/A and also the other document, Ex.PW2/B to Ex.PW2/ZS and Mark X1 to Mark X9 and other bills received by PW4, Mark 2/X1. PW4 has not deposed that he had truly recorded the version of PW1 during investigation as per the statement given by him, rather only deposed that he recorded the statement of Liyakat Ali, but said PW1 Liyakat Ali turned hostile. PW4 proved the arrest of accused Vijay Gujjar, but he has already expired. PW4 admitted in his cross-examination that nothing was recovered from the possession of accused persons in the present matter nor any broken locks were recovered.
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21. PW5 proved the rukka, Ex.PW5/A on the basis of which FIR, Ex.A1 was registered and PW5 prepared site plan at the instance of complainant, Ex.PW5/B, but the same is not corroborated by PW2 complainant.
22. In her SA, accused denied the incriminating evidence put to her and stated that complainant Harish Chand Jain was tenant in her property and vacated the same in April- May, 2009 and property was handed over to her vacant and no goods of complainant were lying there and her version is supported by PW1 Liyakat Ali and she was falsely implicated by complainant.
23. The accused admitted the MLC of complainant, Ex.A2 and the injury is simple in nature and the charges for the same were framed against accused Vijay Gujjar, who has expired. The affidavit, Ex.P4/PW2/A is of complainant, but that is of year 2006 and is not much relevant. Nothing has been recovered from the personal search of accused persons.
Accused examined herself as DW1 and exhibited the rent agreement dated 07.02.2025 between Parmanand Sharma and Harish Chand Jain, Ex.DW1/A and tenancy was from 01.01.2005 for a period of 3 years i.e. it expired on 01.01.2008 and there is no rent agreement of continuation of the tenancy and DW1 also proved the legal notice sent to complainant dated 06.11.2009, Ex.DW1/B that he did not pay rent for 1 year of the tenanted shop, which shows that Meena Sharma had continued the tenancy of complainant, but the same was revoked for non payment of arrears of Rs. 26,400/-. DW1 gave one complaint to Commissioner of Police dated 17.11.2009, Ex.DW1/C against Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 11 Of 15 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.06.03 16:13:04 +0530 complainant that complainant had gone somewhere after vacating the shop No. 121, Main Maujpur Road, New Titiksha Public School, Delhi and did not pay the rent and was in arrears of Rs. 26,400/- and threatened to kill her and her children and 6 months back, he had taken all his articles and he wants to grab her shop. One such complaint was given to the ACP concerned, Ex.DW1/6 and the photographs of the shop were produced, Ex.DW1/E, but the same were not proved as per law. She got exhibited one Kalandara, Mark DW1/X. In the cross-examination of DW1, she did not give any satisfactory reply nor proved the said documents as per law as there is no certificate u/s 65B of Indian Evidence Act to prove, Ex.DW1/E, but no suggestion is given to DW1 that no such complaint, Ex.DW1/C was made to the police nor it was objected to by the State.
24. In Ramesh & Anr Vs. State of Karnataka, 2024 [4] JCC 2701, Hon'ble Supreme Court of India relied upon the judgment of Chandrappa and Others Vs. State of Karanataka, 2007 (4) SCC 415 wherein general principles culled out by Hon'ble Supreme Court regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal have been mentioned. The principles read thus:
(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) XXXXXXXXXXX Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 12 Of 15 KUMAR Digitally signed by KUMAR RAJAT RAJAT 16:13:09 +0530 Date: 2025.06.03 (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
25. In Kailash Gour and Ors. Vs. State of Assam reported in MANU/SC/1505/2011, Apex Court has observed that an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar or inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution.
26. In Subramanya Vs. State of Karnataka, dt. 13.10.2022, in Crl. Appeal No. 242/2022, Hon'ble Supreme Court of India has held that it is settled principle of law that when two views are possible from the prosecution evidence, the one which is favourable to the accused shall have to be taken and the benefit of doubt shall have to be given to the accused.
27. The Hon'ble Supreme Court has time and again held that onus and duty to prove the case against the accused is upon the prosecution and prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 13 Of 15 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.06.03 16:13:14 +0530 jurisprudence that if there is a reasonable doubt with regard to the accused, the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may be made to the Judgments titled as 'Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur', reported as VIII (2007) SLT 454 (SC) in this respect. Reference may also be made to the Judgment titled as 'Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan', reported as (2013) 5 SCC 722, wherein it was held that the large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied and the Court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused persons.
28. Thus, the prosecution could not prove beyond reasonable doubt that it was the accused Meena Sharma, who had broken open the locks of Shop No. 121, Main Road, Maujpur, Delhi and took away the printing ink and material of the complainant and also no recovery from the accused could be proved or that she acted in furtherance of common intention with co-accused Vijay Gujjar (abated) and PW1 Liyakat Ali turned hostile in favour of complainant. consequently the charge u/s 454/380/34 IPC could not be proved.
CONCLUSION
29. Considering the above facts, this Court does not find any infirmity in the order of Ld. Trial Court dated 15.02.2024 and accordingly, the present appeal of the appellant is dismissed.
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The appeal file be consigned to Record Room after necessary compliance. KUMAR Digitally signed by KUMAR RAJAT RAJAT Date: 2025.06.03 16:13:23 +0530 (Kumar Rajat) ASJ-07/SHD/KKD Courts/Delhi 03.06.2025 Cr. Appeal No. 72/2024 Harish Chand Jain Vs. State of NCT of Delhi & Anr. Page 15 Of 15