Delhi District Court
State vs Rajesh Prashad on 20 October, 2023
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-003315-2015
Cr. Case 425210/2016
STATE Vs. RAJESH PRASHAD
FIR No. 577/2014
P.S Kapashera
20.10.2023
JUDGMENT
Case No. : 425210/2016
Date of commission of offence : 03.12.2014
Date of institution of the case : 13.03.2015
Name of the complainant : Sh. Dalip Jha
Name of accused and address : Rajesh Prashad
S/o Sh. Durjan
Prashad
R/o Village
Arazinobrar
Kharkhiya Kita-1,
PS Ronapar, District
Azamgarh, U.P.
Offence complained of or proved : U/s 380/411 IPC Plea of the accused : Pleaded not guilty Final order : Acquitted Date of judgment : 20.10.2023 State Vs. Rajesh Prashad Page No.1 / 21 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused Rajesh Prashad (hereinafter referred to as the accused), pursuant to charge sheet filed qua him under Section 380 of the Indian Penal Code, 1860 (hereinafter IPC), subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 577/2014.
2. It is the case of the prosecution that on 03.12.2014, at about 03.00 PM, at plot no. 457, H. No. 5, near Ice Factory, Kapashera, within the jurisdiction of PS Kapashera, the accused committed theft of Rs. 12.50 Lacs, ear rings and five silver glasses at the above-mentioned address from the possession of complainant Sh. Dalip Kumar Jha. Further, that on 05.01.2015 and 10.01.2015 at unknown time, at Kashi Gomati Samyut Gramin Bank, Chalak Pur and Union Bank of India, Azamgarh, U.P, the accused deposited Rs. 25,000/- and Rs. 49,000/- in his bank account, respectively, the same being part of the stolen case property as mentioned above, which the accused had dishonestly retained knowing or having reason to believe the same to be stolen property. After investigation, the police filed the present charge sheet against the accused for commission of offence punishable u/s 380 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, charge for offence punishable u/s 380/411 IPC was framed qua the accused to which he pleaded not guilty and claimed trial.
State Vs. Rajesh Prashad Page No.2 / 21MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined eleven witnesses in total.
5. PW-1 was ASI Inderjeet, who deposed that on 14.12.2014, at about 5.00 PM, rukka was handed over to him by SI Praveen for registration of FIR. After handing over the rukka, SI Praveen proceeded to the spot. Thereafter, the said PW registered the present FIR. Through him, copy of FIR was exhibited as Ex. PW1/A and endorsement on rukka was exhibited as Ex. PW1/B.
6. PW-2 was Sh. Dalip Kumar Jha, who was the complainant in the case and who deposed that on 03.12.2014 at about 4.00 PM, he received a phone call from one Sudershan Jha who was his cousin brother (Chachera Bhai) and informed him that accused Rajesh Prasad had fled away with his bag containing cash worth Rs. 12.50 Lakhs, one gold earring and five silver glasses. He also informed the said PW that the accused might have given alcohol to him. At the time of incident, the said PW, his cousin namely Sudershan Jha and accused Rajesh Prasad were living together at the same place. The said PW left for his office at about 10.00 AM. He then immediately made a phone call to accused and told him that he was making phone call to police upon which, the accused asked the said PW to not make any call to police and assured him that he was coming back to the house alongwith bag. PW2 again called the accused but his phone was switched off. The said PW then waited and tried to State Vs. Rajesh Prashad Page No.3 / 21 trace the accused and his brother. On 04.12.2014, the said PW went to the office of his brother where he was not present. Thereafter, he went to HR department of the office of the accused and inquired about him on 04.12.2014. The HR official there said that the accused and his brother used to work there but they had left now. They searched for the ID proof of both of them but was able to found ID proof of brother of accused namely Umesh, only and copy of the ID proof was handed over to the said PW. Thereafter, on 05.12.2014, PW2 left for Mumbai for some official work and returned on 12.12.2014. On 14.12.2014, the said PW went to PS Kapashera for registration of FIR where the police official asked him to call Sudershan Jha. Thereafter, the said PW called him and he came at PS after 10 minutes. He then deposed with respect to the investigation proceedings carried out in the present case. Through him, written compliant was exhibited as Ex. PW2/A, site plan was exhibited as Ex. PW2/B, arrest memo was exhibited as Ex. PW2/C and personal search memo was exhibited as Ex. PW2/D.
7. PW-3 was Sh. Nagender, who deposed that on 03.12.2014, at about 3.00-3.30 PM, while he was going to his house from his shop (rehri) and reached at Gali adjacent to his house, he saw that accused was carrying two bags, one of blue colour and another of green colour. He stopped him and asked the accused where he was going. That, the accused replied that complainant Dalip Jha had called him at the Airport. Then, the said PW asked him where Sudershan Jha was to which, he did not reply anything and fled away from there. Thereafter, the said PW went to the house of the complainant and found that it was State Vs. Rajesh Prashad Page No.4 / 21 locked from outside. Then he saw from window inside the room to find out whether the cousin brother of the complainant was there or not. He saw that cousin brother of the complainant was sleeping and tried to wake him up, but he did not wake up. The said PW then called 3-4 people and when they came there, they all tried to wake him up by shouting and knocking/beating the door. Hearing this, cousin brother of the complainant woke up. Thereafter, they broke open the lock and the cousin brother of the complainant came out of the room and asked them where the accused had gone after locking him inside. Thereafter, he called his brother i.e. complainant and informed about the whole incident. The said PW then went to his shop (rehri).
8. PW-4 was Sh. Sudarshan Jha, who deposed that in the month of October, 2014, he was residing alongwith his cousin brother namely Dalip Jha at H. No. 20, Gali No. 4, near Ice Cream Mill, Kapashera. In the month of November, 2014, accused Rajesh contacted with his cousin brother for residing for sometime at the abovesaid address through phone and thereafter, he came at their aforesaid room and started residing with them. On 02.12.2014, Dalip was talking with his father regarding purchase of flat in presence of accused Rajesh and had collected money from his friend, brother and jija and kept the same in the said room. On the next day, Dalip went for his duty at Mahavir Enclave and as per instructions, the said PW remained at the said room. Accused Rajesh also remained at the said room stating that he was suffering from loose motion and stomach pain. On 03.12.2014, in the noon time, he alongwith accused Rajesh were taking lunch and were drinking liquor. Thereafter, Rajesh slept State Vs. Rajesh Prashad Page No.5 / 21 before him. After about 2.30-3.00 PM, the said PW also slept off. At about 4.30-5.00 PM, when one person namely, Nagender knocked the door, he woke up and saw that his door was locked from outside and the bag containing Rs. 12.5 Lakh, four silver glass, one earing (jhumka) and his mobile, make Nokia of black colour, were missing and Rajesh was not present in the room. Nagender, who was known to them, saw the accused Rajesh, who was going with the said bag and his own bag and when Nagender asked him as to who told that he was called by Dalip at the Airport, the accused ran away. Thereafter, the said PW tried to search for accused Rajesh in the direction where he had reportedly gone but could not find him,. After this, he informed Dalip by mobile phone of a guard of a company, situated near their room and in turn, Dalip told that he had gone to Mumbai for office work. Thereafter, Dalip called accused Rajesh who told that he would return to the room after about 30 minutes but Rajesh never returned at their room and switched off his phone and also switched off the phone of the said PW. PW4 then deposed that Dalip told him that when he would come to Delhi, he would take action against the accused. After one week, Dalip returned back. Thereafter, he alongwith Dalip and Nagender went to PS Kapashera, where Dalip lodged a complaint against the accused and got the FIR registered. Thereafter, police recorded his statement and that of Nagender. After about 15 days from the date of FIR and about 30 days from the date of incident, he alongwith the brother of complainant Dalip and police staff went to Azamgarh, i.e., the house of accused, but due to late night time, they could not go to his house. On the next morning, police staff took the local police personnel and they went to the house of State Vs. Rajesh Prashad Page No.6 / 21 accused, where construction material was lying at his house for construction of house. Police personnel entered into his house but the accused hid himself from them. Thereafter, when accused came out from the house and started running, the said PW apprehended him and in the meantime, police personnel also reached there and he identified the accused before the police. Thereafter, they went to the police station nearest to the house of accused and complainant Dalip and IO also came at the said PS, where police asked about the incident from the accused. Thereafter, accused firstly disclosed that he took Rs. 5 Lakh, but then Giri Raj strictly asked from him in this regard and the accused thereafter disclosed that he had taken all the money i.e. Rs. 12.5 Lakh. The next day, when police alongwith Dalip went to the house of accused, they came to know that the brother of accused had run away with the remaining money and case property. Thereafter, they returned to Delhi alongwith the accused.
9. PW-5 was Ct. Sarvan, who deposed that on 15.01.2015, he joined the investigation with SI Parveen. Thereafter, he alongwith SI Parveen and accused Rajesh Prasad reached at Plot No. 357, near Ice Factory, Kapashera where he pointed out the room from which the accused had stolen the bag containing Rs. 12,50,000/-, earring, 5 silver glasses and mobile phone. Thereafter, the said PW deposed with respect to the investigation carried out by the IO in the present case. Through him, pointing out memo was exhibited as Ex. PW5/A and supplementary disclosure statement was exhibited as Ex. PW5/B. State Vs. Rajesh Prashad Page No.7 / 21
10. PW-6 was Ct. Shiv Shankar, who deposed on 10.01.2015, he alongwith HC Gajraj went to Azamgarh. On 12.01.2015, SI Parveen alongwith complainant Dalip Jha met them at Railway Station of Azamgarh and on 13.01.2015, he alongwith SI Parveen and HC Giriraj and staff of the PS Ronapur, Azamgarh went to the village of accused Rajesh Parshad. The said PW thereafter deposed with respect to the proceedings carried out against the accused at Azamgarh. Through him, disclosure statement of accused Rajesh was exhibited as Ex. PW6/A.
11. PW-7 was SI Parveen, who was the IO in the present case and who deposed with respect to the investigation carried out by him in the case. Through him, complaint was exhibited as Ex. PW7/A, disclosure statement of accused was exhibited as Ex. PW7/B, receiving of written applications were exhibited as Ex. PW7/C and Ex. PW7/D.
12. PW-8 was ASI Gajraj, who deposed that on 10.01.2015, he alongwith Ct. Shiv Shankar went to Ajamgarh for investigation in case FIR No. 214/12, u/s 302 IPC. On 12.01.2015 at 09.00 PM, SI Parveen alongwith complainant Dalip Jha met him and Ct. Shiv Shankar at Ajamgarh Railway Station. On 13.01.2015, he alongwith Ct. Shiv Shankar joined the investigation with SI Praveen in case FIR No. 577/14, u/s 380 IPC. Thereafter, the said PW deposed with respect to the proceedings carried out by them against the accused at Azamgarh.
State Vs. Rajesh Prashad Page No.8 / 2113. PW-9 was ASI Naresh Kumar, who deposed that on 17.01.2015, he alongwith Ct. Ravinder, SI Praveen and accused Rajesh Prashad went out-station from Delhi to Gorakhpur. After reaching Gorakhpur, medical examination of accused was conducted. Thereafter, they stayed for the night at the retiring room. On 19.01.2015, they all went to the village of accused i.e. Arazia Nobrar Khirkiya Kita. After reaching the village of accused they went to his house, which was found closed and after inquiry they got to know that family members of accused have left the house 3-4 days ago and locked the said house. Thereafter they went to the house of Pradhan and inquired about family members of accused. Thereafter they went to the accused's brother-in-law's house i.e. in Harkhoi Village. Thereafter, bank account statement of accused pertaining to Gramin Bank was obtained from the bank and they then returned to Ajamgarh Railway station. They also got the medical examination of accused conducted at a local government hospital. Thereafter after staying the night at hotel near the Railway Station, they returned to Delhi by train.
14. PW-10 was Sh. Parveen Kumar, who had brought the account statement for period 14.12.2014 to 19.01.2015 of account number 459302010700989 in the name of Rajesh Prashad S/o Sh. Durjan alongwith certificate u/s 65B of Indian Evidence Act. Through him, account statement was exhibited as Ex. PW10/A and certificate u/s 65B of IEA was exhibited as Ex. PW10/B. State Vs. Rajesh Prashad Page No.9 / 21
15. PW-11 was Sh. Satya Ram, who had brought the account statement for period 27.01.2014 to 19.01.2015 of account number 111552010212527 in the name of Rajesh Prashad S/o Sh. Durjan alongwith certificate u/s 65B of Indian Evidence Act. Through him, account statement was exhibited as Ex. PW11/A and certificate u/s 65B of IEA was exhibited as Ex. PW11/B.
16. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
17. Statement of the accused u/s 281 Cr.P.C read with section 313 Cr.P.C was recorded separately in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him and stated that he had been falsely implicated in the case. He further stated that he and Dalip used to reside in Kapashera area and he was his neighbour. That he had kept some of his articles at the house of Dalip and when he went there to ask for his articles, Dalip refused to give the same and rather implicated him in this false case. He also stated that the cash amount deposited in his bank account to the tune of ₹49,000/- and ₹25,000/-, was his own money which was received from his employees and some was part of his savings. Accused further opted to not lead evidence in his defence, hence, DE was closed.
State Vs. Rajesh Prashad Page No.10 / 21FINAL ARGUMENTS:
18. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 380/411 IPC has been proved beyond doubt.
19. Per contra, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the complainant. It has also been argued that there are material contradictions and lacunae/inconsistencies in the version of the prosecution due to which the prosecution has not been able to prove its case beyond reasonable doubt against the accused. It is also argued that due to the lacunae and incoherency in the story of the prosecution, accused be given the benefit of doubt and is therefore, entitled to be acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
20. Arguments adduced by Ld. APP for State and Ld. Counsel for accused have been heard. The evidence and documents on record have been carefully perused.
21. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Rajesh State Vs. Rajesh Prashad Page No.11 / 21 Prashad has been indicted for the offence u/s 380 / 411 IPC. Section 380 IPC provides for offence of theft committed in any building, tent or vessel which is used as human dwelling or for custody of property. Further, section 411 IPC provides punishment for dishonestly receiving/retaining stolen property.
22. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. However, a careful reading of testimonies of various prosecution witnesses, primarily that of public witnesses PW2, PW3 and PW4, brings to light certain glaring inconsistencies and lacunae in the prosecution case, as discussed hereinafter.
(a). First and foremost, it is pertinent to note that there is a delay of about twelve days in registration of FIR in the present case as the date of incident is reported to be 03.12.2014, while the complaint for purpose of registration of FIR, was filed by the complainant only on 14.12.2014. Now, the complainant has stated that the incident in question occurred on 03.12.2014 on which day, he had called the accused and told him that he was about to inform the police about the theft, however, the accused asked the complainant to not call the police and assured that he would come back to the house along with the bag. The complainant thereafter deposed that when he again called the State Vs. Rajesh Prashad Page No.12 / 21 accused, his phone remained switched off and he could not be traced. The complainant has stated that on 04.12.2014, he went to the office of the brother of the accused and enquired about his whereabouts however, no clue could be gathered about the accused and his brother at the time. The complainant then stated that on 05.12.2014 he left for Mumbai for some official work and returned on 12.12.2014. It was then on 14.12.2014 that he went to the police station for registration of FIR. This version given by the complainant brings to light an abnormal conduct on his part as, if the incident of theft had occurred on 03.12.2014 and the accused was not traceable till the next day on 04.12.2014, what prohibited the complainant from registering a complaint at the police station on 04.12.2014 itself, is unclear. It is also unnatural on part of the complainant to have had left for his official work on 05.12.2014 without making any police complaint against the accused with respect to the alleged incident of theft. It is not even evident from the testimony of the complainant that the work was of such urgent nature that the complainant could not cull out even a few minutes of his time prior to 05.12.2014 to register a police complaint. Furthermore, even after returning from his official work trip to Mumbai on 12.12.2014, the complainant waited until 14.12.2014 to file a police complaint against the accused, the reason for which too, has remained unexplained by the complainant. At this juncture, it would be apposite to refer to the following observations of the Hon'ble Supreme Court in case titled as Dilawar Singh vs State Of Delhi (2007 SC):
"8. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes State Vs. Rajesh Prashad Page No.13 / 21 affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case."
(b). Further, careful scrutiny of the evidence placed on record brings to light the fact that only PW3 Nagender had apparently witnessed the accused carrying the alleged bag containing ₹12.5 lakhs, silver glasses and earrings out of the room of the complainant. Evidently, complainant/PW2 and PW4 Sudarshan were not eyewitnesses to the incident of theft in question. However, testimony of the said Nagender is fraught with multiple lacunae and inconsistencies, rendering his version dubitable. First and foremost, it is difficult to comprehend as to how the said PW came to know in the first place that the bag being carried away by the accused did not belong to the accused and in fact belonged to the complainant. It is not his version that the complainant had at any point in time prior to the incident told him about the said bag and its contents or that he had seen the complainant put those articles in the bag. Moreover, though during his cross-examination, PW3 deposed that on 03.12.14 he was residing in the same house where the complainant and the accused resided, the said fact is not in consonance with the depositions of PW4 and PW2 on this aspect, in as much as PW4 State Vs. Rajesh Prashad Page No.14 / 21 deposed that in the month of October 2014, he was residing along with his brother/complainant Dalip at the house in question and in the month of November 2014, accused also came and started residing with them there. Even complainant/PW2 during his testimony deposed that at the time of the incident, he along with his cousin/PW4 and the accused were living together in the same place, with no mention whatsoever of PW3 also residing with them at the given time. Again, while, PW3 in his cross- examination deposed that he knew the fact that complainant had kept money and other articles in a bag, PW2 as well as PW4 in their cross-examination, to the contrary, stated that Nagendra did not know that the complainant had kept money in the bag. Further, PW3 deposed that he had broken open the door lock of the room of the complainant where Sudarshan was sleeping, after calling 3-4 people at the spot, which statement of the said PW is again in contrast with that of PW4 who had deposed in his testimony that at about 4:30-5:00 PM, one person namely Nagender knocked at his door and he woke up and saw that his door was locked and further stated that their landlord had also reached at the spot after which the lock of the door was broken open. PW4 did not depose about the presence of any other person outside his room along with Nagender. Not only this, during his cross-examination, PW3 deposed that on 03.12.14, at about 9 AM, PW4 Sudarshan had informed him that he had the money which was to be given at the Airport to someone, on which aspect again, testimony of PW4 is silent. Furthermore, there is also discrepancy with respect to the place where PW3 had spotted the accused carrying the two bags. On one hand, in his examination- in-chief PW3 deposed that he had seen the accused carrying the State Vs. Rajesh Prashad Page No.15 / 21 bags in the street adjacent to the house of PW3 and had then stopped the accused and asked him where he was going. On the other hand, during his cross-examination, the said PW deposed that he had seen the accused with the bag at the gate of the plot where the room of the complainant was located. Last but not the least, PW3 has surprisingly deposed that he had given the statement to the police on the same day when the incident in question had occurred and police had also reached the spot on that day at about 6 PM. This fact is not only uncorroborated by any other prosecution witness, but is also in stark contrast to the overall case of the prosecution as the FIR in the case came to be registered upon the complaint of the complainant which was given by him only on 14.12.2014. In fact, it is the admitted version of the complainant that he had not made any complaint to the police officials between 03.12.2014 to 05.12.2014, after which he had gone to Mumbai for official work and had returned only on 12.12.2014. Such incongruous statements of PW3 cast clouds of suspicion over his testimony and render the said PW unworthy of credit.
(c). Moving on, multiple discrepancies have also crept in the testimony of PW4 Sudarshan, who had informed the complainant about the incident in question. At the very outset, it is pertinent to note that PW4 was not an eye witness to the incident in question. Now, it is the case of the prosecution that accused had committed theft of ₹12.5 lakhs, earrings and five silver glasses. PW4 deposed that when he woke up, he saw that the bag containing ₹12.5 lakhs, four silver glasses, one earring and his own Nokia mobile phone were missing. Furthermore, State Vs. Rajesh Prashad Page No.16 / 21 PW4 deposed that after he could not trace Rajesh after the occurrence of the alleged offence, he had informed the complainant through mobile phone of a guard of a company situated near their house, which guard had told him that the complainant had gone off to Mumbai for office work. In fact, during his cross-examination he admitted the fact that the complainant had gone to Mumbai for office work on the day of the incident itself. This statement of PW4 is again in contrast with that of PW4 in as much as PW2/complainant deposed that it was only on 05.12.2014 that he had left for Mumbai for official work and he was in fact searching for the accused prior to that. Moreover, PW4 also deposed that when the complainant returned from Mumbai, he along with Nagender and the complainant had gone to the police station PS Kapashera where the complainant lodged a complaint against accused and got the FIR registered. However, as opposed to this statement of PW4, complainant/PW2 stated in his testimony that on 14.12.2014, he had gone to PS Kapsahera for registration of FIR where the police officials had asked him to call Sudershan, i.e., PW4. Further more, PW4 also deposed that the IO had recorded his statement once after 2 to 4 days of the incident in question, which again is inconsistent with the overall case of the prosecution as the complainant for the first time made complaint at the PS only on 14.12.2014. In addition to the above, PW4 deposed that after 15 days of the date of registration of FIR, he along with the brother of complainant and police officials had gone to Azamgarh to search for the accused and that when they reached the house of the accused, he tried to flee away and was apprehended by the said PW, followed by the police officials.
State Vs. Rajesh Prashad Page No.17 / 21However, testimony of no police official corroborates this version of PW4 on the aspect that he had accompanied them to Azamgarh for search of the accused and it is not even remotely reflected in the testimony of any other prosecution witness that PW4 had also accompanied the police officials along with the complainant to Azamgarh for search of the accused.
(d). Further discrepancy in the prosecution case is apparent with respect to the fact that while various police witnesses deposed that they had gone to Azamgarh in search for the accused along with the complainant, there is not an iota of evidence on record to establish the said fact. The complainant, in his testimony, did not even faintly whisper about this visit made by him along with the police officials to Azamgarh. Not even a single document has been placed on record to portray the said fact, thus casting clouds of doubts over the veracity of the same.
(e). Additionally, it is an admitted case of the prosecution that apart from the bank account deposit of Rs. 25,000/- and Rs. 49,000/- made by the accused in his bank account on two different occasions, no recovery in the form of any bag or any other article kept inside the stolen bag of the complainant has been effected from the accused. PW7 in his cross-examination explicitly deposed that only on the basis of the disclosure statement of the accused was it established that the money deposited by the accused in his bank account was part of stolen property and that he had not made any further investigation in this regard. However, the fact that some cash amount was deposited by the accused in his bank account cannot, State Vs. Rajesh Prashad Page No.18 / 21 in isolation, raise presumption of the same being part of stolen property, in light of absence of any other proof in this regard. It is not even the case that the said amount was deposited by the accused on the very same day when the alleged offence was said to have been committed or any time soon thereafter. Rather, the same appear to be have been deposited approximately after more than a month from the date of the occurrence of the alleged incident. Moreover, bearing note of the value of cash amount of the complainant alleged to have been stolen, the bank account deposit made by the accused in his bank account is not of such immense value as would per se raise suspicion qua the accused in this regard. Apart from this, no description whatsoever of the bag containing the stolen articles is forthcoming on behalf of any of the public witnesses examined on behalf of the prosecution. Furthermore, the complainant did not even furnish on record the source of procurement of his stolen cash amount of ₹12.5 lakhs or any bill/ownership document of the silver glasses and earrings qua which theft is alleged to have been committed.
23. To further add to the woes of the prosecution, the IO failed to join any independent public person as a witness in the present case. During his testimony, PW7 admitted that he had enquired from other residents of the house but nobody disclosed having any knowledge about the alleged incident. He however admitted that he had not recorded the statement of any such neighbour or owner of the house in question. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v.
State Vs. Rajesh Prashad Page No.19 / 21State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the aforesaid witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above.
24. It has been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
25. The aforementioned lacunae in the story of the prosecution render the version of the complainant / prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence u/s 380/411 IPC beyond reasonable State Vs. Rajesh Prashad Page No.20 / 21 doubt, thus, entitling the accused person to benefit of doubt and acquittal for the said offence.
26. Accordingly, this Court hereby accords the benefit of doubt to the accused for the offence u/s 380/411 IPC and holds the accused not guilty of commission of the said offence. Accused Rajesh Prashad is thus, acquitted of the offence u/s 380/411 IPC.
27. Copy of this judgment be given free of cost to the accused.
Announced in open court Digitally signed
by APOORVA
on 20.10.2023 in presence of APOORVA RANA
accused and Ld. Counsel RANA Date:
2023.10.20
for accused. 16:38:20 +0530
(APOORVA RANA)
M.M-10/Dwarka Courts/20.10.2023
It is certified that this judgment contains 21 pages, all signed by the undersigned. Digitally signed APOORVA by APOORVA RANA RANA Date: 2023.10.20 16:38:36 +0530 (APOORVA RANA) M.M-10/Dwarka Courts/20.10.2023 State Vs. Rajesh Prashad Page No.21 / 21