Delhi District Court
) The Present Fir Was Registered On The ... vs State Of Ap & Ors on 24 November, 2014
IN THE COURT OF MS.PURVA SAREEN, METROPOLITAN MAGISTERATE01, SOUTH, SAKET COURT, NEW DELHI State v. Madhu FIR No.217/11 PS Safdarjang Enclave U/s 381/411 IPC JUDGMENT
Date of Institution : 02.06.2012
Date of Commission of offence : July 2010 to 28.02.2011
Name of the complainant : Sudha Sood W/o Lt. Col. S.K. Sood
Name & address of the accused : Madhu D/o Sh. Sodam Singh
R/o H.No. E91, Aya Nagar, Phase V,
Mehrauli, New Delhi
Offence complained of : 381/411 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of reserve for orders : 18.11.2014
Date of announcing of orders : 24.11.2014
Briefly stated the facts of the case are :
1) The present FIR was registered on the complaint made by complainant Sudha Sood. It is stated by complainant in her complaint that her maid State v. Madhu Page 1 FIR No.217/11, PS Safdarjang Enclave Madhu committed theft in her house during the period July 2010 to 28.02.2011. The theft was detected on 01.0.32011. Complainant made a complaint before the police and got the FIR registered. Accused was searched and apprehended. Investigation was done. Statement of witnesses were recorded. Charge sheet was prepared u/s 381/411 IPC against the accused. After completion of investigation charge sheet was filed before the court.
2) Accused was summoned. Accused made an appearance before the court. Documents were supplied to the accused. Accused conceded to the framing of charge. Accordingly, charge U/s 381/411 IPC was framed against the accused to which the accused pleaded not guilty and claimed trial and thereafter the matter was fixed for prosecution evidence.
3) In order to prove the charge against accused, the prosecution examined five witnesses as under :
(i) Prosecution firstly examined the complainant/PW1 Sudha Sood who deposed before the court that she had employed one maid Madhu @ Urmila in year 2010. In December 2010 her mother was admitted in hospital. Her maid continued to come at her house for domestic work. In the end of February, 2011 she started realising that some of her house hold things had State v. Madhu Page 2 FIR No.217/11, PS Safdarjang Enclave started missing. Some kitchen articles were also missing and she also noticed that some artificial jewellery, some cosmetic items, some gifts items and other small things were missing. On one occasion she witnessed her maid opening her purse and taking out money from it. She immediately caught hold of her and inquired to which she answered that she was just opening her purse out of anxiety. She warned her and fired her immediately from the job and asked her to come only to take the salary in the end of month. Then she checked her locker and other places where she used to keep her expensive items and that is when she realised that a number of her precious jewellery items and clothings were missing. She made several complaints to police but no action was taken. Finally in July 2011 she made a complaint to DCP and SHO again and FIR was then registered. She identified her articles in TIP proceedings.
Witness correctly identified the case property and accused before the court.
In her cross examination by learned defence counsel it is admitted by witness that she did not mention in her written complaint the fact that her mother was admitted in Primus Hospital in December 2012. She did not remember the exact date when she had given first complaint to PS. Witness further admitted that the first complaint was not on record. She had not called at 100 number regarding aforesaid theft. She further admitted that State v. Madhu Page 3 FIR No.217/11, PS Safdarjang Enclave she had called 100 number on 01.03.2011 regarding theft after which police official came at her house. Some articles were recovered by police from the house of accused. Wrist watch which had been produced before the court was recovered on 01.03.2011. She used to give her Rs.1500/ as salary. It has been further admitted she had to pay Rs.9000/ to the accused and accused had come to collect her salary as she had called her. Witness denied that Madhu did not want to work with her as she was not paying her salary. Vol. stated that she had caught her stealing so she wanted to leave the job. Witness further admitted that accused was taken to PS from her house on 01.03.2011. She visited the PS many times during the intervening period but she did not remember the exact dates. Police officials recorded her statement but she did not remember when and where it was recorded. Witness also admitted that she had not mentioned in her complaint regarding any specific identification mark on the currency note which were stolen from her house, however, she had identified the said currency notes as they were bearing signature of her husband on it. Witness further admitted that she had not mentioned in her written complaint that she had caught accused red handed.
(ii) PW2 Ct. Saleem Khan deposed before the court that on 26.09.2011 he had accompanied IO/SI Pawan Tomar and W/Ct. Vishali to DPPS School. The FIR had already been registered against the accused and when he had State v. Madhu Page 4 FIR No.217/11, PS Safdarjang Enclave gone along with IO SI Pawan Tomar. On being told by the secret informer they stopped a lady coming on the road beside the DPPS School from Arjun Nagar. On inquiry they came to know that her name was Madhu. On inquiry she confessed that she had committed theft of articles from one house. She also told that she was residing at E91, Aya Nagar, Phase V, Mehrauli. She said that she was working with one Ms. Sudha Sood r/o B26, SJ Enclave as a domestic servant. She was arrested and her personal search was taken by the lady constable. She was taken into police custody and he along with IO and W/Ct. Vaishali went to her house and found one bag containing one pressure cooker, spoons, ladies suits and kurtas. IO seized the case property in his. IO prepared site plan. Accused was taken to PS and her medical examination was got conducted. His statement was recorded by IO.
Witness correctly identified the case property and accused before the court.
In his cross examination by learned defence counsel it is stated by witness that he did not know whether departure entry was made or not. They left the PS at about 2.25 pm and we went to DPPS School in personal vehicle of IO. He did not remember its particulars. Inquiry was made from the accused Madhu and her cursory search was conducted. He did not remember the direction of main gate of house of accused. One black colour bag was found from the house of accused kept in the room. He did not State v. Madhu Page 5 FIR No.217/11, PS Safdarjang Enclave remember how many rooms were there in the house of accused. The transparent bag was found from Almirah of another room. The arrest of accused was done on the spot at about 2.40 pm.
(iii) PW3 W/Ct Vaishali deposed before the court that on 26.09.2011 she had joined the investigation of present case along with IO/SI Pawan Tomar and Ct. Saleem and went near DDPS School where at the instance of secret informer accused Madhu was apprehended. Her disclosure statement was recorded. She was arrested and her personal search was conducted. Thereafter, accused took them to her house and got recovered the case property. Case properties were sealed with the seal of PT and same were seized. IO recorded here statement.
Witness correctly identified the case property and accused before the court.
In her cross examination by learned defence counsel witness stated that she left PS for joining investigation at about 2:30 pm. IO briefed secret information to her at PS before leaving PS. She had no personal knowledge about whether said secret information was got recorded or not. She reached at the spot in private vehicle. The vehicle was being driven by the IO. Ct.Saleem was sitting on front seat beside IO. They reached at the spot around 2:30 pm. Witness denied that no secret informer was present there. She did not remember the colour and make of the door of main gate of State v. Madhu Page 6 FIR No.217/11, PS Safdarjang Enclave accused's residence and how many other persons were present the place of recovery. IO requested 23 near by residence to join the investigation but they refused to do it. She did not remember the exact time of reaching at residence of accused. Seizure memo was prepared by IO at spot. Medical examination of accused was got conducted by her.
(iv) PW4 SI Pawan Tomar deposed before the court that on 18.08.2011 complaint of Mrs. Sudha Sood was assigned to him. FIR was got registered and further investigation was marked to him. He along with Ct. Saleem and complainant reached at the spot and prepared site plan at the instance of complainant and started the search of the accused. On 26.09.2011 on the basis of secret information received to him, he constituted a raiding party consisting of W/Ct. Vaishali and Ct. Saleem and reached at the house of the accused where accused was found present. She was interrogated and subsequently she was arrested and her personal search was conducted by W/Ct. Vaishali. Disclosure statement of accused was recorded. On the basis of disclosure statement stolen cash of Rs.2350/ and some old house hold articles and cloths etc were recovered and seized at the instance of accused. Pointing out memo of recovered articles was also prepared. Thereafter, accused was brought to PS. Investigation was done. Statement of witnesses were recorded. Case property was deposited into malkhana. Accused was produced before the court. Further investigation was marked State v. Madhu Page 7 FIR No.217/11, PS Safdarjang Enclave to another IO.
In his cross examination by learned defence counsel it is stated by witness that he joined PS SJ Enclave in the month of January 2011. he had gone through the complaint. Witness admitted that it was mentioned in the complaint that there was continuous thefts in the house of complainant for about 9 months prior to said complaint. He did not demand the receipt of articles from the complainant as most of the alleged articles qua which offence had been committed were old household articles. He firstly met the complainant on the day of registration of FIR at PS. He did not remember if any complaint dated 01.03.2011 was made by the complainant. Witness denied that he had called the accused at PS 45 times at the instance of complainant or that he had full knowledge regarding the previous complaint and he intentionally misplaced it. He had visited the house of complainant on 18.08.2011. He met only husband of the complainant at her house. He had not inquired about the salary of accused persons from the complainant. He did not remember at what time the accused left the job from the house of the complainant. The area where the accused was residing was sparsely populated area. There was no construction at one side of the house of the accused. He tried to make the public witnesses to participate in the investigation but none agreed and left the spot. He investigated the matter from 18.08.2011 till 09.10.2011. he had received the secret information State v. Madhu Page 8 FIR No.217/11, PS Safdarjang Enclave verbally at PS from the secret information. On 26.09.2011 he left the PS at about 10 am. DD entry regarding the same was made. No DD entry regarding departure at about 10 am from PS is on record. They had gone to the house of accused in personal vehicle. He did not remember the exact time when he reached at the house of the accused. They left the house of the accused at about 4 to 4.30 pm. Vol. stated that they left the locality of the accused at about 4 to 4.30 pm. Arrest memo was prepared at the spot. He did not not remember if he had taken signature of complainant on the arrest memo of accused. He did not remember if Sudha Sood had also reached at the house of the accused. Accused was detained at her house at Aya Nagar at the instance of secret informer. Accused was never called at PS prior to 26.09.2011. He had not examined any public witness except complainant.
(v) PW5 SI Rajneesh deposed before the court that on 26.10.2011 he had received the present case file at the instruction of SHO as further investigation was marked to him. On 25.02.2012 TIP of case property was got conducted. Copy of the same was attached with case file. Supplementary statement of complainant was recorded. After completion of investigation challan was prepared and filed before the court.
In his cross examination by learned defence counsel it is stated by witness that no complaint of March 2011 was handed over to him by the State v. Madhu Page 9 FIR No.217/11, PS Safdarjang Enclave previous IO. He did not inquire about the same from SI Pawan Tomar. Witness admitted that investigation was complete when file was handed over to him. Only TIP was remaining.
4) Thereafter, PE was closed. Statement of accused was recorded u/s 313 CrPC wherein she stated herself to be innocent. However, she did not lead any defence evidence.
5) After hearing the arguments by ld. Counsel for accused and ld. APP for the state and carefully gone through the evidence recorded and perused the documents placed on record by the prosecution in this case, I have to the following conclusions.
6) After going through the material on record and evidence of the witnesses, it is clear that all the prosecution witnesses have supported the case of prosecution. The deposition of every witness is corroborated with each other. The prosecution story is absolutely consistent regarding the time of incident, regarding statement of complainant and subsequent registration of FIR.
7) As per section 381 IPC :
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"whoever being a clerk or servant, or being employed in a capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer ....".
There are two ingredients of section 381 IPC (i) the accused should be the servant or employee and (ii) theft should have been committed.
8) As per section 411 IPC : "whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property....".
9) In Bhagat Ram v. State of Punjab, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. In C. Chenga Reddy & Ors v. State of AP, it has been observed thus "in a case based on circumstantial evidence, the settled law is that circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent State v. Madhu Page 11 FIR No.217/11, PS Safdarjang Enclave with his innocence ...."
10)In Padala Veera Reddy V. State of AP & Ors, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
(i) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established ;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ;
(iii) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else ; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
11)In Sharad Birdhichand Sarda v. State of Maharashtra therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by the false defence or plea. The conditions State v. Madhu Page 12 FIR No.217/11, PS Safdarjang Enclave precedent in the words of Apex Court, before conviction could be based on circumstantial evidence, must be fully established. They are :
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ' must' or 'should' and not 'may be' established ;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on nay other hypothesis except that the accused is guilty ;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved ; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must shows that in all human probability the act must have been done by the accused.
12) Further, it is a well settled law that once the eye version is given particularly by the complainant himself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements. (Balbir Singh V. State of Punjab, (P&H) 2003 Cri.L.J. 3148).
State v. Madhu Page 13 FIR No.217/11, PS Safdarjang Enclave
13)The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance.
14)In case titled as State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) Cri.L.J. 2531 it was observed that while appreciating evidence of the witnesses it has to be kept in mind that their presence at the time and place of the occurrence cannot be doubted. They do not have any reason to omit real culprits and implicate falsely the accused persons.
15)In the case of Appabhai v. State of Gujarat, AIR 1988 SC 696 the Supreme Court has succinctly dealt with this aspect. The Court has held that the complainant should be considered to be the best eyewitness to the incident and the discrepancy in his evidence which does not shake the basic version of the prosecution case may be discarded.
16)In the present case, the complainant saw the accused opening the purse of State v. Madhu Page 14 FIR No.217/11, PS Safdarjang Enclave the complainant on one occasion and she fired her on the same day. Later on, she realized that many of her household items were also missing. The main contentions of the counsel for the accused is that firstly the complaint dated 01.03.2011 is not on record and secondly the complainant did not eye witness the accused committing the theft of the articles. But the chain of circumstances is complete and unbroken at any point as the discovery of theft was there immediately after the accused was fired from the job and there was subsequent recovery of the goods from her possession and further the complainant had seen the accused opening her purse.
17)In view of the above discussion, I am of the opinion that prosecution has proved the guilt of the accused that she has committed the theft.
Accordingly the accused Madhu is held guilty and convicted U/s 381/411 IPC in the present matter.
The matter is now listed on point of sentence on 04.12.2014.
Announced in the open court (PURVA SAREEN)
th
on 24 November 2014 MM01/SOUTH/SAKET COURT
NEW DELHI
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