Delhi District Court
State vs . Sanjeev Kumar & Anr. on 13 May, 2014
IN THE COURT OF SHRI SUNIL KUMAR, METROPOLITAN
MAGISTRATE, ROHINI DISTRICT COURTS, DELHI.
State Vs. Sanjeev Kumar & Anr.
FIR No. 695/04
U/s 380/454/411/34 IPC
PS Jahangirpuri
The date of institution of case: 20.12.2004
The date of reserving the order : 13.05.2014
The date on which Judgment pronounced: 13.05.2014
JUDGMENT
Unique Identification No. : 02401R6040332004 Date of commission of offence : 22.09.2004 Name of the complainant : Smt. Anita Name & address of accused : 1. Sanjeev Kumar @ Sunny S/o. Sh. Ashok Kumar, R/o. C40, DDA Flats, Jahangirpuri, Delhi.
2. Kuldeep @ Rinku, S/o. Shri Subhash Chand, R/o. A1597, Jahangirpuri, Delhi.
Offence complained of : U/s. 380/454/411/34 IPC.
Final order : Acquitted Date of order : 13.05.2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1 The story of the prosecution in brief are that on 22.09.2004 from 12:00 noon to 1:00 PM at H. No. 1597A Block, First Floor, Jahangirpuri, Delhi, the accused persons in furtherance of their common intention committed the offence of lurking house trespass by entering at the aforesaid premises used for human dwelling house in the possession of complainant Smt. Anita, in order to commit theft State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.1/10 and committed theft in the said house used for the custody of the property belonging to the complainant and on 29.10.2004 at A Block, Bada Park, Jhangirpuri, Delhi, the accused persons got recovered the stolen jewellery articles including gold bangle, necklace, ear rings, rings and cash of Rs.750/ as mentioned in the seizure memo Ex.PW5/C, which both of you stolen from the possession of the complainant Anita and which both of you retained knowing or having reasons to believe the same to be a stolen property. On the basis of the statement given by the complainant Smt. Anita, the present FIR U/s 380/454/411/34 IPC was registered at PS Jahangirpuri. On conclusion of investigation, the challan under the aforesaid sections was filed in the court.
2 The accused persons were summoned by the court for facing trial for the aforesaid offences. In compliance of Section 207 Cr.PC.
the copy of the challan and the documents annexed therewith were supplied to them. Primafacie a charge U/s 380/454/34 IPC were made out against the accused persons and accordingly, on 15.01.2007, the Ld. Predecessor of this Court framed charge against them. The accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, Ld. APP for State has moved an application u /s. 216 Cr.P.C for alteration of charge, which was allowed and accordingly, on 25.04.2013, an altered charge u/s. 411/34 IPC was framed against both the accused persons, to which, they pleaded not guilty and claimed trial. Thereafter, the case proceeded for prosecution evidence.
State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.2/10 3 In support of its version, the prosecution has examined six witnesses.
4 PW1HC Govind Singh has proved the rukka Ex.PW1/A on the basis of which, FIR was registered. Thereafter, endorsement was made upon the rukka as Ex.PW1/B. This witness was not cross examined by ld. Defence counsel despite giving an opportunity in this regard.
5. PW2 Ms. Anita has been examined being the complainant. She has proved her statement made by her, on the basis of which, FIR was registered as Ex.PW2/A. She further proved the superdarinama vide which, she took her stolen jewellery on superdari as Ex.PW2/B. She has also duly identified the case property after producing the same in the court. The abovesaid witness was crossexamined by Ld. APP for State on certain points as she resiled from her earlier statement and during that she admitted that she did not read her statement Ex.PW2/A prior to the signing of the same and also did not state the name of the accused persons Kuldeep and Sanjeev to the police and did not raise suspicion over them. This witness was confronted with the statement Ex.PW2/A from portion A1 to A2. She further stated that she do not remember the accused Kuldeep and Sanjeev used to live near her house in Delhi, as she had shifted from Jahangirpuri prior to 2/3 years from the date of incident. She further denied that recovery of jewellery and cash was effected in her presence during investigation at the instance of the accused persons. She also denied making statement Mark X to the police, however, she admitted her State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.3/10 signatures at point A on the recovery memo Mark A. She further stated that she did not know the contents of the recovery memo. This witness was not crossexamined by ld. Defence counsel despite giving an opportunity in this regard.
6. PW3 Deepak has been examined being the husband of the complainant. He deposed that he was not present in his house on the day of incident. He deposed that he do not know as to how and from whom recovery was effected. This witness was crossexamined by Ld. APP for State on certain points however, nothing fruitful has come on record, as he became hostile on the same lines as PW2. This witness was not crossexamined by ld. Defence counsel despite giving an opportunity in this regard.
7. PW4 HC Jagjeet Kaur has been examined by the prosecution being the wireless operator who had informed regarding the theft at the house of complainant, which was recorded vide DD No.45. The copy of the DD has been proved as Ex.PW4/A. This witness was not crossexamined by ld. Defence counsel despite giving an opportunity in this regard.
8. PW5 SI Dharampal has been examined being the IO of the case. He has proved all the proceedings carried out by him alongwith Ct. Dharmender Kumar by going to the spot i.e. house of the complainant and recording her statement. He has proved rukka as Ex.PW5/A, site plan as Ex.PW5/B, seizure of recovered articles as Ex.PW5/C, arrest memo and personal search memos of accused State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.4/10 persons as Ex.PW5/D1 to Ex.PW5/D4, pointing out memos as Ex.PW5/E & Ex.PW5/F. This witness was crossexamined by Ld. Defence counsel.
9. PW6 Ct. Dharmender. He has deposed on similar lines as that of PW5 IO/SI Dharampal. Therefore, his testimony is not repeated herein for the sake of brevity and to avoid prolixity/verbosity. This witness has also proved the same documents which have already been proved by PW5/ IO. This witness was crossexamined by Ld. Defence counsel. Thereafter, PE stands closed.
10. Thereafter, statement of accused persons u/s. 313 Cr.P.C have been recorded today. They opted to lead evidence in their defence. Therefore, matter was adjourned for DE. In DE, the accused Kuldeep examined her mother as DW1 Smt. Ved Kumari and she was duly crossexamined by the Ld. APP for State. Accused Sanjeev has also examined his mother as DW2 Smt. Veena. Thereafter, matter was adjourned for Final Arguments.
11 I have heard the arguments advanced by Ld. APP for the State, Ld. Defence counsel and perused the record.
12 In the present case, the accused persons have been charged with for the offences under Section 380/454/411/34 IPC and to connect the accused persons with the offences, all the ingredients of the abovesaid offences have to be proved. The prosecution has to prove that accused persons in furtherance of their common intention State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.5/10 committed lurking house trespass in the house of complainant Smt. Anita and thereafter, stolen the gold jewellery articles alongwith cash of Rs.740/. Further, the prosecution has to prove that the accused persons were found in possession of stolen property, as alleged against them.
13 Ld. Counsel for the accused persons have submitted that the accused persons have been falsely implicated in this case by the police officials. He further argued that the material public witness/complainant i.e. PW2 Anita and PW3 Deepak have turned hostile and did not support the prosecution case. Nothing substantial and convincing has come on record against the accused persons, which could inculpate them in the present offence. The Prosecution has completely failed to prove the case against the accused persons beyond reasonable doubt. It is further argued that nothing was recovered from the possession of the accused persons and the recovery, if any, is the planted one upon them. It is further argued that the Prosecution has also failed to prove the case against the accused persons beyond reasonable doubt. It if further argued that since the Prosecution could not establish the case against the accused persons for the alleged offence beyond shadow of doubt, it is, therefore, prayed that the accused persons may be acquitted of the alleged offence.
14 On the contrary, Ld. APP for the State has submitted that every discrepancy in statements of the witnesses could not be fatal to the Prosecution case. It is further argued that the discrepancies which State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.6/10 does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/contradictions in the Prosecution case. It is further argued that the prosecution has successfully established its case against the accused persons. He has further submitted that the accused persons may be convicted for the alleged offence as the public witness is procured hostile.
15 In the present case, the complainant/main witness is PW2 Smt. Anita and PW3 Deepak, whose above mentioned articles were stolen by the accused persons and as per prosecution version, the same were recovered from the possession of the accused persons in the presence of PW2 & PW3, but, the said witnesses have failed to identify the accused persons before this court at the time of his deposition. Further as per statement of PW2 & PW3, it is found that the recovery memo was not prepared in their presence however, the same bears their signatures.
16 I have given my thoughtful consideration to the testimonies of the witnesses and found that the sole star witness i.e. the Complainant PW2 Anita and PW3 Deepak turned hostile in this case and did not support the prosecution case at all. These witnesses have been cross examined by Ld. APP for the State but nothing substantial and convincing against the accused persons has come in his testimony despite cross examination by Ld. APP for the State.
In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under: State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.7/10 "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks "credibility, the benefits of doubt necessarily has to go to the accused".
In the present case also the word credibility as mentioned in the above mentioned case law is found lacking on behalf of the Prosecution. Remaining officials are the police officials who came into picture only after occurrence of the incident and the conviction can not be based on the sole testimony of the police officials as the further corroboration is not found supporting on behalf of the public witness who had allegedly been stated to be present with the police officials throughout the proceedings as per the testimony of the police officials. In absence of the corroboration of the evidences and support on behalf of the public witness, the case of the prosecution has weakened.
The Hon'ble High Court of Delhi in 2005 (1) LRC 294 (Del) (DB), Narain Singh @ Lala V/s State of Delhi has also ruled that:
"There must be a chain of evidence so complete as to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
The Hon'ble Supreme Court of India in 2008 (2) Crimes 314 State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.8/10 (SC) has also ruled that:
"Criminal trial benefit of doubt when on the basis of the evidence appearing on record, two views are possible, accused is entitled to benefit of doubt."
17 In view of the facts and circumstances of the case, it is crystal clear that the Prosecution has failed to prove its case beyond the shadow of reasonable doubts against the accused persons for the alleged offence. There is no convincing evidence on the record which could substantiate any charge upon the accused persons. The prosecution has failed to prove its case against the accused persons as the complainant has failed to identify the accused persons, the identity of the accused persons remained unestablished and accordingly, the recovery of gold jewellery articles from the possession of the accused persons also remains unestablished.
18 Under the aforesaid discussion, it can safely be concluded that in the present case the evidence on the record is not at all sufficient to hold the accused persons guilty of the alleged offence, as the Prosecution story is highly doubtful and the benefit of doubt is the right of the accused persons. It is also an established law of the land that the accused should not be convicted in doubtful circumstances. Even, if there are two views possible, the view favourable to the accused has to be accepted. Since, the Prosecution has failed to establish a case against the accused persons for the alleged offences beyond reasonable doubt, I am also not inclined to convict the accused persons in doubtful circumstances. Consequently, after giving the benefit of doubt, I hereby acquit the accused persons Sanjeev State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.9/10 Kumar @ Sunny and Kuldeep Singh @ Rinku for the offences punishable U/s 380/454/411/34 IPC.
19 Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
20 The file be consigned to record room.
Announced and dictated in the open court today i.e. on 13.05.2014 (SUNIL KUMAR) MM/Rohini Courts Delhi State Vs. Sanjeev Kumar & Anr., FIR No.659/04, PS Jahangiruri Page no.10/10