Delhi District Court
State vs . Gagan & Ors. on 25 March, 2015
IN THE COURT OF SH. SACHIN GUPTA
METROPOLITAN MAGISTRATE05, NORTH, ROHINI
COURTS,DELHI
State Vs. Gagan & Ors.
FIR No. 480/06
PS. Bawana
Case ID No. 02404R0047342007
JUDGMENT
1) SI No. of the case : 157/12
2) The date of commission : 07.12.2006
of offence
3) The name of the complainant : ASI Madan Lal
4) The name & parentage of accused : 1) Gagan
S/o Sh. Kailash
Mandal
2) Rajesh
S/o Sh. Ajay Paswan
3) Dharmesh
S/o Sh. Rajinder
Mandal
FIR No. 480/06 PS. Bawana 1/19
State Vs. Gagan & Ors.
5) Offence involved : U/s. 457/380/411/34 IPC
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 25.03.2015
Date of Institution : 01.02.2007
Judgment reserved on : 25.03.2015
Judgment announced on : 25.03.2015
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that on 07.12.2006 at about 9.20pm at A17, Naya Shahbad Dairy within the jurisdiction of PS. Bawana, accused persons namely Gagan, Rajesh, Dharmesh and Pintoo Paswan in furtherance of their common intention committed lurking house tresspass and committed theft of articles i.e parts of old electric motor and electric copper wire from the house of Noor Mohd and all the accused persons were apprehended immediately thereafter, alongwith the stolen articles belonging to Noor Mohd, and thereby all the accused persons have committed an offence punishable u/s 457/380/411/34 IPC. FIR No. 480/06 PS. Bawana 2/19 State Vs. Gagan & Ors.
2. After complying with the provisions of Sec. 207 Cr. P.C, arguments on charge were heard and vide order dated 01.03.2007 passed by Ld. Predecessor, accused persons were charged for offence u/s 457/380/34 IPC and alternatively for offence u/s. 411/34 IPC to which they pleaded not guilty and claimed trial.
3. During the course of trial, accused Pintoo Paswan absconded and he was declared proclaimed offender vide order dated 21.07.2009 passed by Ld. Predecessor.
4. In prosecution evidence, prosecution got examined eight witnesses. PW1 Balbeer Singh, stated that on 07.12.2006 police official called him and he reached at house no. A17, Naya Shahbad Dairy where he took photographs of the house and the locks of the door in broken condition. He further stated that thereafter he developed the photographs and negatives which are collectively Ex.P1.
5. PW2 ASI Om Parkash, stated that on 07.12.2006, at about 10.50pm he received a rukka through Ct. Mandeep which was sent by ASI Madan Lal. He further stated that on the basis of the same he registered the present case FIR, computerized copy of the same is EX. PW2/A and also made endorsement on rukka from point X to Y Ex. PW2/B. He further stated that he handed over the copy of FIR and FIR No. 480/06 PS. Bawana 3/19 State Vs. Gagan & Ors.
original rukka to Ct. Mandeep for giving it to IO.
6. PW3 HC Vinod Kumar, stated that on 07.12.2006, at about 9.20pm he received information via telephone from some public person that thieves had been apprehended at H. No. A17, Shahbad Dairy and some officers be sent at the spot. He further stated that he reduced the same into writing as DD no. 31PP and the same is Ex. PW3/A. He further stated that the same was handed over to ASI Madan Lal for investigation.
7. PW4 Noor Mohd stated that on 07.12.2006, he had gone out with his family and in the evening at about 9.30pm, when he returned he found that the lock of his house was broken. He further stated police was also present at his house and they were getting some photographs clicked of his house. He further stated that he went inside and found that some of the old motor parts and copper wires were stolen from his house. He further stated that he narrated this fact to the IO. He further stated that on the next date he went to PP where he found one TSR parked in the PP premises. He further stated that there were four persons also present whom he came to know that they had committed theft at his premises and from their possession his stolen articles were also recovered. He further stated that he immediately stated to the IO that the said articles belonged FIR No. 480/06 PS. Bawana 4/19 State Vs. Gagan & Ors.
to him. He further stated that his statement was recorded by the IO. He further stated that accused persons were present in the court were the persons who were present in the PP on 08.12.2006.
8. The said witness was cross examined by Ld. APP of State on the ground that the said witness was resiling from his previous statement given to the police. During his cross examination, PW 4 Noor Mohd admitted that arrest and personal search memos of accused persons Ex. PW4/A to Ex. PW4/H and the seizure memo of TSR and recovered articles Ex. PW4/I, bears his signatures at point A. He further stated that however the accused persons were not arrested in his presence. He denied to the suggestion that the accused persons were found outside his house on 07.12.2006. He further stated that he saw them first time at the PP on 08.12.2006. He denied to the suggestion that the TSR containing his stolen articles was found parked outside his house. He stated that he saw it for the first time at the PP on 08.12.2006. The said witness was confronted with his statement u/s 161 Cr.P.C marked P from point A to B where it is so recorded. He denied to the suggestion that he deposing falsely to save the skin of accused persons or he has been won over by them. He denied to the suggestion that he deposing falsely. The said witness was not cross examined by the accused persons despite grant of FIR No. 480/06 PS. Bawana 5/19 State Vs. Gagan & Ors.
opportunity.
9. PW5 Ct. Raninder Singh, stated that on the receipt of DD no. 31, he alongwith IO/ASI Madan Lal, HC Shamsher, HC Subhash and Ct. Mandeep reached at A17, Naya Shahbad Dairy, Delhi. He further stated that there they found one TSR bearing no. DL 1RG 4866 parked outside the above said house and four persons who were putting the stolen articles i.e old electric motors parts in the said TSR and upon seeing them they suddenly turned and tried to flew away from the spot. He further stated that they were apprehended by them who disclosed their name as Rajesh, Gagan, Pintooo and Darmesh. He further stated that upon the casual search of accused persons one buttondar knife was recovered from accused Gagan and one country made pistol was recovered from the possession of accused Pintoo for offence u/s 25 Arms Act. He further stated that separate proceedings were initiated against accused Gagan and Pintoo for offence under Arms Act. He further stated that the TSR and said stolen property was seized by the IO vide seizure memo Ex. PW4/I, thereafter IO prepared the rukka and sent to Ct. Mandeep to PS for getting the FIR registered. He further stated that after some time Ct. Mandeep returned back at the spot and handed over the original rukka and copy of FIR to the IO. He further stated that FIR No. 480/06 PS. Bawana 6/19 State Vs. Gagan & Ors.
thereafter IO arrested and personally search the accused persons in his presence vide memos Ex. PW4/A to Ex. PW4/H. He further stated that the stolen property was duly identified by the complainant Noor Mohd as belonging to him.
10. During cross examination, PW5 stated that he did not know who had lodged the complaint to the police regarding the theft. He further stated that DD entry was received at about 9.20pm. He further stated that he accompanied the IO on the scooter but he does not remember the scooter number. He further stated that no public person was made witness as when they reached at the spot no public person was present. He further stated that IO had asked the neighbours to join the investigation but they refused. He further stated that he did not know the name of any public person/neighbours who refused to join the investigation. He denied to the suggestion that since no offence has alleged taken place so no public person was joined the investigation. He further stated that he did not know when Ct. Mandeep took the rukka and returned with the copy of FIR. He denied to the suggestion that accused persons were not arrested at the spot as alleged or that all the paper work was done while sitting at the PS or the he deposing falsely.
11. PW6 SI Madan Lal, stated that on the receipt of DD no. 31, he FIR No. 480/06 PS. Bawana 7/19 State Vs. Gagan & Ors.
alongwith Ct. Rajinder, HC Shamsher, HC Subhash and Ct. Mandeep reached at A17, Naya Shahbad Dairy, Delhi. He further stated that there they found one TSR bearing no. DL 1RG 4866 parked outside the above said house and four persons who were putting the stolen articles i.e old electric motors parts in the said TSR and upon seeing them they suddenly turned and tried to flew away from the spot. He further stated that they were apprehended by them who disclosed their name as Rajesh, Gagan, Pintoo and Darmesh. He further stated that upon the casual search of accused persons on buttondar knife was recovered from accused Gagan and one country made pistol was recovered from the possession of accused Pintoo. He further stated that separate proceeding were in initiated against accused Gagan and Pintoo for offence under Arms Act. He further stated that the TSR and said stolen property was seized by him vide seizure memo Ex. PW4/I. He further stated that thereafter he prepared rukka Ex. PW6/A and sent Ct. Mandeep to PS for getting the FIR registered. He further stated that after some time Ct. Mandeep returned back at the spot and handed over the original rukka and copy of FIR to him. He further stated that thereafter he prepared site plan Ex. PW6/B at the instance of complainant. He further stated that thereafter he arrested and personally search the accused person vide memos Ex. FIR No. 480/06 PS. Bawana 8/19 State Vs. Gagan & Ors.
PW4/A to Ex. PW4/H. He further stated that the stolen property was duly identified by the complainant Noor Mohd as belonging to him. He further stated that during investigation he recorded the statement of various PWs and after completion of investigation he filed the present challan before the Hon'ble Court.
12. During examination of PW6, he stated that he does not know who had lodged the complaint to the police regarding the theft. He further stated that DD entry was received at about 9.20pm. He further stated that he and Ct. Mandeep went to his own scooter bearing no. UP 14G 8394. He further stated that no public person was made witness as when they reached at the spot no public person was present. He further stated that the area where the alleged theft had taken place was a residential area i.e JJ Cluster. He further stated that he has asked the neighbours to join the investigation but they refused. He further stated that he does not know the name of any public person/neighbours who refused to join the investigation. He further stated that the TSR owner Ajay was not present at the spot. He denied to the suggestion that since no offence has alleged taken place so no public person was joined the investigation. He further stated that Ct. Mandeep took the rukka at about 10.30pm and returned with the copy of FIR at about 11.15pm. He denied to the suggestion that FIR No. 480/06 PS. Bawana 9/19 State Vs. Gagan & Ors.
the accused persons had not committed any theft. He further denied to the suggestion that accused persons were not arrested at the spot as alleged or that the paper work was done while sitting at the PS or that he was deposing falsely.
13. PW7 Ct. Mandeep, stated that on the receipt of DD no. 31 by IO/ASI Madan Lal, he alongwith ASI Madan Lal, Ct. Rajinder, HC Shamsher and HC Subhash reached at A17, Naya Shahbad Dairy, Delhi. He further stated that there they found one TSR bearing no. DK 1RG 4866 parked outside the above said house and four persons who were putting the stolen articles i.e old electric motors parts in the said TSR and upon seeing them they suddenly turned and tried to flew away from the spot. He further stated that they were apprehended by them who disclosed their name as Rajesh, Gagan, Pintoo and Darmesh. He further stated that upon the casual search of accused persons one buttondar knife was recovered from accused Gagan and one country made pistol was recovered from the possession of accused Pintoo. He further stated that the TSR and said stolen property was seized by IO/ASI Madan Lal vide seizure memo Ex. PW4/I. He further stated that thereafter IO prepared the rukka already Ex. PW6/A and handed over the same to him for getting the FIR registered. He further stated that after getting the FIR No. 480/06 PS. Bawana 10/19 State Vs. Gagan & Ors.
case registered he returned back at the spot and handed over the original rukka and copy of FIR to IO. He further stated that thereafter IO arrested and personally searched the accused persons. He further stated that the stolen property was duly identified by the complainant Noor Mohd at the spot as belonging to him. He further stated that his statement was recorded by the IO.
14. During cross examination, he stated that he does not know who had lodge the complaint to the police regarding the theft of the case property. He further stated that DD entry was received at about 9.15pm, he alongwith the other members of raiding party went to the spot on private vehicle i.e two wheelers. He further stated that he alongwith ASI Madan Lal went on the spot on a scooter but he does not remember the registration number of said scooter. He admitted that the spot was a public place and several public persons were moving here and there. He also admitted that several vehicles were also plying on the road. He further stated that IO ASI Madan Lal tried to join some public persons in the investigation but none agreed. He further stated that no notice was served upon those public persons who refused to join the investigation. He further stated that the owner of the abovesaid TSR was not present at the spot when they reached there. He further stated that arrest memo and FIR No. 480/06 PS. Bawana 11/19 State Vs. Gagan & Ors.
personal search memo were prepared at the spot at about 10.15pm alongwith the Tehrir for getting the case registered. He further stated that he does not remember the name of the duty officer who was present at PS on that day. He further stated that the distance between the spot and the PS is about 810 km. He further stated that he went to the PS on the scooter of IO ASI Madan Lal, after getting the case registered he returned to the spot at about 11/11.50pm. He denied to the suggestion that he was not a member of the raiding party and that is why signatures are not present on any of the memo allegedly prepared by the IO. He further stated that the personal search of the accused persons was done prior to registration of the FIR. He further stated that that he does not remember whether any other articles except the knife and katta were found from the possession of accused persons. He further stated that he can not say whether parcels were prepared and duly sealed at the time of seizing the case property. He further stated that complainant Noor Mohd also reached at the spot after their arrival. He further stated that he does not remember on which vehicle the complainant reached at the spot. He further stated that he also does not remember who had called the complainant at the spot. He denied to the suggestion that he never went to the spot or that no recovery, as alleged, was effected from the accused FIR No. 480/06 PS. Bawana 12/19 State Vs. Gagan & Ors.
persons. He also denied to the suggestion that accused persons are falsely implicated in the present case by planting the case property upon them or that he deposing falsely.
15. PW8 Ajay Kumar, stated that on 15.12.2006 he had taken the said vehicle on superdari vide superdarinama Ex. PW8/A. He further stated that he also handed over the copies of documents RC and route permit of his said vehicle to the IO which were taken into possession by him in this case.
16. During cross examination, PW8 stated that he gave his abovesaid TSR to one person whose name he does not remember today on rent for two months i.e November and December 2006. He further stated that he does not take any proof of regarding the rent from that person nor he executed any document regarding the renting of his TSR. He admitted that he did not personally know that person. He further stated that his vehicle was not stolen during that period of year 2006. He further stated that he did not know any of the accused persons who are present in the court today. He also admitted that he never given his vehicle on rent to any of these accused persons. He further stated that he came to know about the seizure of his vehicle by the police from the person to whom he gave his vehicle on rent. He further stated that he did not have any FIR No. 480/06 PS. Bawana 13/19 State Vs. Gagan & Ors.
personal knowledge about the facts of this case.
17. Statement of accused persons Gagan, Rajesh and Dharmesh u/s. 313 r/w section 281 Cr. P.C was recorded in which they have submitted that they are innocent and have been falsely implicated in the present case. Accused persons further submitted that they do not wish to lead defence evidence.
18. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
19. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
20. As per the case of prosecution, on 07.12.2006, at 9.20PM, a DD entry vide DD no. 31 PP S.B Dairy was recorded upon the telephone call of unknown person that some thieves have entered into house no. A17, Shahbad Dairy and pursuant to which ASI Madan Lal alongwith other police officials went at the spot there they found one TSR no. DL 1RG 4866 was parked outside the said house and accused persons were putting stolen articles i.e old electric motor parts etc. in the said TSR , who were FIR No. 480/06 PS. Bawana 14/19 State Vs. Gagan & Ors.
apprehended by the police officials, Noor Mohd also reached at the spot at whose instance site plan was also prepared by the IO apart from preparation of other documents/memos i.e seizure memo, arrest memo, personal search memo of accused persons and the said Noor Mohd also identified case property at the spot on 07.12.2006 itself. In order to prove the charges levelled against the accused persons, prosecution has to prove that on 07.12.2006, at about 9.20PM, A17, Naya Shahbad Dairy, accused persons in furtherance of their common intention committed lurking house trespass at the house of Noor Mohd, committed theft of his articles i.e parts of old electric motor and electric copper wire from his house and all the accused persons were apprehended immediately thereafter, along with the stolen articles.
21. In the present case, testimony of PW Noor Mohd is material one in order to bring home guilt of accused persons. The said PW Noor Mohd is stated to be victim in the present case in whose house, accused persons allegedly committed lurking house trespass and theft of articles. The said witness is also stated to be present at the spot on 07.12.2006, in whose presence, accused were allegedly arrested, personally searched and case property was also allegedly identified by the Noor Mohd at the spot on 07.12.2006 apart from preparation of various documents i.e seizure FIR No. 480/06 PS. Bawana 15/19 State Vs. Gagan & Ors.
memo, site plan, arrest memos, personal search memos of accused persons etc by the IO. Hence the testimony of the said witness needs to be scrutinized with greatest care and circumspection.
22. However, from the careful perusal of testimony of PW Noor Mohd, it is revealed that the said witness has miserably failed to support prosecution case. PW4, Noor Mohd deposed that on 07.12.2006, when he returned back his home, he found police was present at his house and some of the old motor parts and copper wire were stolen from his house. He deposed that on the next date, he went to the Police Post where he found one TSR parked in the PP premises and four persons were also present there about whom he came to know that they had committed theft in his house.
23. During his cross examination by Ld. APP for State, he stated that accused persons were not arrested in his presence and he also denied that accused persons were found outside his house on 07.12.2006. Rather he stated that he saw accused persons first time in the Police Post on 08.12.2006. He also denied that TSR containing his stolen articles was found parked outside his house. Rather he stated that he saw it for the first time at the PP on 08.12.2006. This become fatal to the prosecution case. The said witness has completely falsified the story of the FIR No. 480/06 PS. Bawana 16/19 State Vs. Gagan & Ors.
prosecution in the present case. He denied witnessing of arrest of accused persons on 07.12.2006 and also denied presence of any TSR containing stolen articles outside his house on 07.12.2006 at the spot, contrary to the case of prosecution.
24. Testimony of the said witness also cast serious doubt over the veracity of various documents prepared by the IO i.e seizure memo of case property and TSR, site plan, arrest memo of accused persons, their personal search memo etc. It also made recovery of case property from the accused persons very doubtful and accused persons are entitled to every benefit of doubt accruing in their favour. During the testimony of said PW Noor Mohd, he was not even made to identify the case property as the same articles which was stolen from his house on 07.12.2006. There is nothing on record as to who made the call at police station on the date of alleged incident. No efforts are shown to have been made to know about the whereabouts of the said persons who made a call at PP Shahbad Dairy on 07.12.2006. No notice was given to any public person who refused to join the investigation for the reasons best known to the IO. Documents/memos i.e seizure memo, arrest memo, personal search memo, site plan, all are dated 07.12.2006 bearing signatures of Noor Mohd while the said Noor Mohd clearly deposed that accused were not FIR No. 480/06 PS. Bawana 17/19 State Vs. Gagan & Ors.
arrested in his presence, no TSR containing stolen property was parked outside his house on 07.12.2006 and he saw accused persons and TSR first time on 08.12.2006, when he visited Police Post. Meaning thereby that neither case property was recovered from the accused persons in the presence of Noor Mohd nor accused persons were arrested in his presence. In these circumstances, possibility of false implication of the accused persons can not be ruled out. There is no cogent evidence on record to bring home guilt of the accused persons in the present case and in these circumstances, accused persons are entitled to the benefit of doubt.
25. It is settled preposition that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused persons are entitled to the benefit of a reasonable doubt, are to be borne in mind.
26. In view of the above said discussion, the prosecution has failed to prove the charges u/s 457/380/411/34 IPC against the accused Gagan, FIR No. 480/06 PS. Bawana 18/19 State Vs. Gagan & Ors.
Rajesh and Dharmesh. Accordingly, benefit of doubt is given to accused Gagan, Rajesh and Dharmesh and they are acquitted of the said offences U/s.457/380/411/34 IPC. File be consigned to record room after due compliance.
Announced in open court (SACHIN GUPTA)
on 25th day of March, 2015 MM/ROHINI COURTS
DELHI, 25.03.2015
FIR No. 480/06 PS. Bawana 19/19
State Vs. Gagan & Ors.