Delhi District Court
Fir No.50/2005, Ps : Rmd State vs Shamshad & Ors. on 2 July, 2019
FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Shamsad & Ors.
FIR No. 50/2005
PS : Railway Main Delhi
U/s 379/41/34 IPC
Date of Institution : 27.05.2006
Date of reserving of order : 02.07.2019
Date of Judgment : Oral
JUDGMENT
CNR No. DLCT020004832006
1. Serial No. of the case : 294537/2016
2. Name of the Complainant : Manjeet Singh
3. Date of incident : 05.03.2005
4. Name of accused person :
(1) Shamshad S/o Sharif R/o H. No. 28, chankaya Place, Janakpuri, C1, Delhi (2)Sachin S/o Sh. Gopal Singh R/o H. No. 238, Nangla Bhatoo, Prabhat Nagar, Meerut, U.P. (3) Nizam S/o Md. Zuber R/o H. No. 1056, Gali No. 13, Road No. Page 1 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
4, Mahipalpur, New Delhi37
5. Offence for which chargesheet was filed : S. 379/411/34 IPC
6. Offence for which charge has been framed :
Shamshad S. 411 IPC Sachin and Nizam S. 379/411 IPC 7. Plea of accused : Not guilty 8. Final Order : Acquitted 9. Date of Judgment :02.07.2019 BRIEF REASONS FOR ORDER:
1. Mr. Shamshad, Mr. Sachin and Mr. Nizam, the accused herein, have been chargesheeted for committing offences punishable under Section 379/411/34 IPC.
2. The case of the prosecution is that accused Nizam, Sachin and some other persons had been working in the store of Divine Electricals at Old Delhi Railway Station. During the night of 05.03.2015 accused Nizam and Sachin had committed theft of various articles from the said godown. The watchman had informed the complainant Manjeet Singh, Manager of the firm. On the Page 2 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
basis of complaint abovementioned FIR was registered. During investigation the accused persons were arrested and recovery was effected at their instance. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and accused Shashad, Sachin, Nizam and Md. Anis were charge sheeted for the offence punishable under Section 379/411/34 IPC.
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, Md. Anis was discharged vide order dated 07.02.2008. Charge for the offences punishable under Section 379 IPC and alternatively under Section 411 IPC was framed against accused Sachin and Nizam. Charge for the offence punishable under Section 411 IPC was framed against accused Shamshad. The charge was read over to them to which they pleaded not guilty and claimed trial.
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4. The prosecution has examined as many as 09 witnesses to prove its case against the accused.
5. PW1 Manjeet Singh is the complainant. He has deposed that on 05.03.2005 at about 67 p.m., he received a telephone call from his watchman Sharma Kumar who was posted at RRI Cabin where they were having store. He informed that Nizam and Sachin who were working as their employees had taken some material to be installed at station. The said material included 10 feeder pillars, 10 percolling points and 35 stands. He informed that such material could not have been required at the same time. He reached Delhi. He tried to contact Nizam and Sachin but their phones were switched off. In the morning they checked the material on the station but the same was not found. The matter was reported to the police. Police reached at the spot. His statement was recorded which is Ex.PW1/A. FIR was registered. On next day he alongwith the police official went to the village of accused person in Delhi Cant area. Sachin was found in his rented accommodation. Some switches and MCBs were recovered at his instance from his house. After two days Page 4 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
he alongwith police team went to a village in Samastipur, Bihar. Local Police was informed. Accused Nizam was found in vegetable market. He was arrested and brought to Delhi. He disclosed the name of Shamshad who was a junk dealer. Switches and MCBs were recovered from his shop. He was also arrested. They also disclosed about involvement of one more person but he could not be located. The witness admitted his signature on seizure memo Ex. PW1/B and Ex.PW1/C, pointing out memo Ex. PW1/D, disclosure statements Ex. PW1/E, Ex. PW1/F and Ex. PW1/G, arrest memos Ex. PW1/H, Ex. PW1/I and Ex. PW1/J, personal search memos Ex. PW1/K, Ex. PW1/L and Ex. PW1/M. The case property was released on superdari vide superdarinama Ex. PW1/N. The case property is Ex. P1 (colly).
6. PW2 Harpal Singh is the landlord of accused Nizam. He has deposed that on 11.03.2005, police official had come to his home to inquire about accused Nizam. He had told the native address of the accused to the police official as Nizam had left for his native place.
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7. PW3 Ram Lal is the police official who had joined the investigation with the IO. He has deposed that on 06.03.2015 he alongwith HC Ashok Kumar and the complainant reached at house no. 103, Jhareda Village Delhi Cantt. Before leaving for the village, the IO had asked 45 public persons to join the investigation, however, none agreed and they left the spot without disclosing their names and addresses. When they reached there, the complainant pointed towards accused Sachin. He was apprehended. The accused confessed the crime. A search was made at the house of the accused. Four standard switches and 14 fittings bus bars were recovered from his house. They were seized vide memo Ex. PW1/B. The accused had disclosed that he had sold some stolen goods to Shamshad Kabari at Sadar Bazar. Accused Sachin was arrested vide memo Ex. PW1/H. His personal search was conducted vide memo Ex. PW1/K. His disclosure statement was recorded which is Ex. PW1/E. Thereafter, they left for Sadar Bazar. Accused Sachin pointed towards accused Shamshad and he was apprehended. During search of his shop, 8 standard switches and 16 fitting bus Page 6 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
bars were recovered. They were seized vide memo Ex. PW1/C. Accused Shamshad was arrested vide memo Ex. PW1/I. His personal search was conducted vide memo Ex. PW1/C. His disclosure statement was recorded which is Ex. PW 1/F. The witness identified both the accused persons in the Court. He also identified the case property in the Court.
8. PW4 SI Harjender is the DO. He has proved the FIR which is Ex.PW4/B and his endorsement on rukka which is Ex. PW4/A.
9. PW5 HC Eshwar Prasad is the MHC (M) of the PS RMD/ODRS. He has deposed that on 06.03.2005 HC Ashok had presented and deposited one seizure memo and case property in unsealed condition. The entry of said item is Ex. PW5/A (OSR). The case property was released on superdari vide endorsement at point "B".
10. PW6 Harvinder Singh is the proprietor of the firm. He has deposed that on 05.03.2005 he had received information through telephone from Manager Manjeet Singh regarding theft at ODRS. He was also informed that accused Sachin and Nizam had committed the theft. He Page 7 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
had visited the spot on next day and instructed the complainant to lodge the complaint.
11. PW7 HC Rajbir Singh is the police official who had joined the investigation with IO on 09.04.2005. He has deposed that on 09.04.2005, he alongwith IO had gone to PS : Ujjiarpur, District Samastipur, Bihar. With the help of local police official ASI B.K. Mishra accused Nizam was apprehended from his native place. Accused Nizam had taken tenanted house at village Jhareda Delhi Cant and got recovered 54 pieces of MCBs which were seized by the IO vide memo Ex. PW1/D.
12. PW8 ASI Ashok Kumar is the IO. He has deposed on 06.03.2005 complainant had come to PS and informed him that a theft had taken place at RR Cabin. He recorded his statement which is Ex. PW1/A. He endorsed the same at point "B" and got the FIR registered. He alongwth complainant went to the spot. He prepared the site plan which is Ex. PW8/A. He came to know from the guard that a theft had been committed by accused Sachin and Nizam. Thereafter, they went to village Jhareda from where accused Sachin was found. From the house of Page 8 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
Sachin four standard switches and 14 fitting bus bars were recovered. He seized the same vide memo Ex.PW1/B. He arrested the accused Sachin vide memo Ex.PW1/H. His personal search was conducted vide memo Ex. PW1/K. He also recorded disclosure statement of accused Sachin vide memo Ex. PW1/E wherein he disclosed that he had sold the stolen articles to accused Shamshad . Thereafter, they went to Delhi Cantt from where accused Shamshad was apprehended. From the possession of accused Shamshad, 8 standard switches and 16 fittings bus bars were recovered. He seized the same vide memo Ex. PW1/C. He arrested accused Shamshhad vide memo Ex. PW1/I. Personal search of accused Shamshad was conducted vide memo Ex. PW1/L. Disclosure statement of accused Shamshad was recorded vide memo Ex. PW1/F wherein he disclosed that he had sold some articles to one Hafiz. They went to Mayapuri but Hafiz could not be found. On 08.04.2005, accused Nizam was arrested vide memo Ex. PW1/J. Personal search of accused Nizam was conducted vide memo Ex. PW1/M. He also arrested accused Mohd. Anish @ Hafiz on 26.08.2005 vide arrest memo Ex. Ex. PW8/B. Page 9 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
He recorded the statement of the witnesses. After completion of investigation, he filed the chargesheet. He has identified the case property Ex. P1 (colly).
13. PW9 Retd. SI B.K. Mishra was the police official of Bihar Police who had participated in the investigation with IO and helped the police in apprehension of accused Md. Nizam. He would state that had met with an accident in year 2011 and suffered injury on his head. Since then his memory is very weak and therefore he was unable to reccall anything.
14. Ld. APP crossexamined the witness with the permission of the Court. During his crossexamination, PW9 admitted that on 08.04.2005, he was posted at PS :
Ujiarpur District Samastipur, Bihar. He also admitted that on that day accused Md. Nizam was arrested in his presence and that he had prepared the arrest memo which is Ex.PW9/A. He admitted that the police official had brought accused Nizam to Delhi. However, he failed to identify accused Nizam in the Court.
15. The witnesses were crossexamined. The prosecution evidence was closed. Accused persons were Page 10 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
examined under Section 313 Cr.P.C r/w Section 281 Cr.P.C. Substance of incriminating evidence was put to them. They denied all the incriminating evidence. They would state that there were innocent and falsely implicated in this case by the police officials. Accused Nizam would state that Harvinder Singh had issued a cheque to him for the work done by him for him. The cheque was dishonored. There was an altercation between them due to said reason. Harvinder Singh had to pay Rs.8,00,000/ to him. He had demanded money from Harvinder Singh. Therefore, he was falsely implicated. Accused Sachin would pray that he was apprehended from Meerut. Nothing was recovered from his possession. Accused Shamshad would state that nothing was recovered from his possession.
16. Accused Shamshad moved an application under Section 315 Cr.P.C., and examined himself as DW1 in defence. He would state that in the year 2004 he was working as Subcontractor with Divine Electricals, owned by Harvinder Singh @ Nippy. The work was to install security lights, panel board and point wirings from NDRS Page 11 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
to Kurukshetra Railway Station. He had been working with 4243 workers. They had been working during entire night to complete the work. He had asked Harvinder Singh to make some payment as salary was to be paid to the workers. He handed over two cheques of Rs.20,000/ and Rs.50,000/ each. He had also paid Rs.10,000/ cash. The cheques were however dishonored. When he was informed, he asked to present the cheques again. The cheques were again presented. However, they again got dishonoured. Thereafter, he informed the Divisional Engineer Railways at DRM office and informed him about the facts. The officer called Harvinder Singh and discussed the matter with him. Thereafter, Harvinder Singh refused to make the payment and threatened to falsely implicate him. After 45 days of the said incident, he made a false complaint. It was not possible to steal any material from the godown. Every time anything was taken from the godown, a gate was issued which was valid only after it was signed by the DRM and having his stamp thereon. A Chowkidar was always in duty. No material was stolen. False allegations were made. The witness would state that Page 12 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
he had filed a complaint before the Labour Commissioner at Curzon Road. All the original documents were filed with the said complaint, therefore, he did not have any original documents with him. He had called a witness from the Office of Labour Commissioner to produce the record. However, the report was given that the record was not traceable. The letter is Mark D1. The witness produced the copy of receiving his complaint at the Office of Labour Commissioner which is Ex.D1/A.
17. The witness was crossexamined by the Ld. APP. No other witness was examined in defence. Therefore, DE was closed and matter was fixed for final arguments.
18. Ld. APP for the State would argue that the prosecution has proved all the ingredients of the offence against the accused beyond reasonable doubts. It has been proved that a theft had been committed of the property belonging to the complainant. Part of the stolen property had been recovered from the possession of the accused persons. Hence, the guilt of the accused persons has been Page 13 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
proved beyond reasonable doubts and therefore and therefore, accused may be convicted.
19. Ld. defence counsel, on the other hand, would argue that the accused persons have been falsely implicated on the basis of a false complaint. No recovery had been made from any of the accused. Alleged items had been planted upon them to create false evidence. There was a dispute between accused Nizam and Harvinder who was owner of M/s Divine Electricals where the complainant was working as Manager. The accused had demanded his money and Mr. Harvinder did not want to make the payment. Therefore by using his influence, he had got registered a false FIR and implicated the accused persons. No independent public person was ever joined by the IO during the investigation. The complainant is an interested witness. His testimony should not be believed without corroboration. There are various contractions in his testimony. There are also contradictions in the testimonies of other prosecution witnesses. It has been prayed that the benefits of reasonable doubts may be given to the accused and they may be acquitted.
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20. I have heard the rival submissions and carefully perused the material available on record.
21. In a criminal case the initial burden is on the prosecution to prove the guilt of the accused beyond reasonable doubts before the accused is asked to prove his defence. It is also settled proposition of law that whenever there are two views possible, the view which favours innocence of the accused is to be accepted by the Court.
22. In the present case, the accused Sachin and Nizam have been charged for committing offences punishable U/s 379 IPC and alternatively for offence punishable under Section 411 IPC. Accused Shamshad has been charged with the offence punisable under Section 411 IPC.
23. Section 379 IPC provides punishment for committing theft as defined under Section 378 IPC. Section 378 IPC defines theft as moving any moveable property with an intention to take it dishonestly out of the possession of a person without consent of such person. Section 411 IPC provides punishment for dishonestly receiving or retaining any property which the accused Page 15 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
knows or has reason to believe to be stolen property. Section 34, IPC provides that 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.
24. In the present case PW1 complainant Manjeet Singh has stated in his examination that he was informed by the Care Taker that accused Nizam and Sachin had come at the godown/store and they had taken 10 feeder pillars, 10 precooling points and 35 stands. Admittedly, the complainant himself had not seen any of the accused taking any material from the store. However, the said caretaker was not made a witness in the present case. There is no explanation as to why the only eye witness of the alleged theft was not made a witness in the present case. The IO thus withheld the best evidence. It creates reasonable doubts on the case as projected in the challan. There is no eye witness examined by the prosecution to show that on 05.03.2005 accused Sachin or accused Nizam had removed any material from the store as alleged by the prosecution.
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25. Further, PW1 has stated in his examination that on the next day of the registration of FIR alongwith the police officials had reached at the house of Sachin and got recovered four standard switches and 14 fitting bus bars. He has also deposed that at the instance of accused Nizam, the police team had got recovered 54 switches of MCB switches and one switch of 125 AMP. Similarly, he has deposed that switches and MCBs were recovered from the shop of Shamshad in his presence. Thus, the PW1 has stated in his examination that switches and MCBs and fitting bus bars were recovered at the instance of the accused persons at different times. However, in his complaint and his testimonies he has stated that the Care Taker had told him that the accused persons had taken feeder pillar, precooling points and stands. None of these items is shown to be recovered from the possession of any of the accused or at their instance.
26. DW1 in his examination has stated that there was a dispute with the owner of the firm regarding the payment of the amount for the work done by the accused. DW1 has stated that a false complaint was made after he Page 17 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
had demanded his money from the owner of the firm. In such circumstances, it is primafacie shown that the complainant was an interested witness. There is nothing on Court record to show that the IO had made any efforts to join any independent public persons during the apprehension of the accused persons and at the time of alleged recovery at their instances. Non joining of independent public person at the time of alleged recovery violates the mandate of Section 100 Cr. P.C. Section 100 (4) Cr.P.C., provides that before making a search under the said Chapter of Cr.P.C., the Officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search. Section 100 (5) Cr.P.C., provides that the search has to be made in the presence of such witnesses and the list of things seized in the Course of such search has to be signed by such witnesses. In the present case, no such procedure has shown to be followed by the IO. No explanation is provided for not following the Page 18 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
said procedure. In his crossexamination the IO has admitted that he did not join any public person during the recovery proceedings. All these circumstances create reasonable doubts on the case of the prosecution regarding the recovery at the instance of the accused persons.
27. Further, admittedly, the accused Sachin and Nizam had been working with the firm of the complainant. DW1 in his examination has stated that he had been working Subcontractor with the firm of the complainant. His work was to install security lights, panel board and point wiring from NDRS to Kurkshetra Railway Station. Therefore, it was in the ordinary course of the work of the accused persons to be in possession of MCBs, Switches and Bus bars etc. There is nothing on Court record to prove beyond reasonable doubts that the items allegedly recovered at the instance of the accused persons belonged to the firm of the complainant and that they were part of the stolen property. No bill/invoice, stock register of the material available in the store of the complainant at the relevant time has been brought on the record. There is nothing on Court record to show even primafacie that any Page 19 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
such items as alleged by the complainant to be stolen were available in the store of the complainant at the relevant time. Considering the nature of the work of accused Sachin and Shamshad, it is quite possible that they were having at their home, MCBs, switches etc for work purpose. Therefore even if it is presumed that the recovery of those items were effected from their houses, it can not be said with certainty that those items were stolen property or part of the stolen property as alleged by the complainant. Similarly, reasonable doubts have been raised in relation to alleged recovery from accused Shamshad also for the abovesaid reason.
28. In the light of the discussions herein above, I hold that the prosecution has failed to prove beyond reasonable doubts that any theft was committed by accused Sachin and Nizam from the store of the firm of the complainant. The prosecution has also failed to prove beyond reasonable doubts any recovery from the possession or at the instance of any of the accused beyond reasonable doubts. In any case, the prosecution has failed to prove beyond reasonable doubts that any material Page 20 of 21 MM08(Central)/THC/Delhi/02/07/2019 FIR No.50/2005, PS : RMD State Vs Shamshad & Ors.
belonging to the firm of the complainant was recovery from the possession or at the instance of any of the accused. It is settled proposition of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court. In the present case also, reasonable doubts have been raised by the defence on the case of the prosecution. The accused persons are entitled to the benefit of those reasonable doubts. They are therefore acquitted.
29. The accused have already furnished bonds under Section 437A, with one surety along with photographs and copies of address proof.
Digitally signed by DINESHDINESH KUMAR Date: KUMAR 2019.07.02 17:31:14 +0530 Pronounced in the open Court on (Dinesh Kumar) this 2ndday of July 2019 MM08 (Central) Tis Hazari Courts Delhi. Page 21 of 21 MM08(Central)/THC/Delhi/02/07/2019