Delhi District Court
State vs Vikki on 8 November, 2023
IN THE COURT OF MS. HIMANSHI TYAGI,
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
FIR No. 130/2021
Police Station Mandawali
Unique Case ID No. 2034/21
Title State Vs. Vikki
Name of complainant Sh. Rajveer Singh.
Name of accused Vikki
S/o Sh. Ram Chand
R/o H. No. 213, Javar Mohalla,
Shashi Garden, Patparganj, Delhi.
Date of institution of challan 08.04.2021
Date of Final arguments 31.10.2023
Date of pronouncement 08.11.2023
Offence complained of Under Section 457/380/511 IPC
Offence charged with Under Section 457/380/511 IPC
Plea of the accused Pleaded not guilty
Final order Acquitted
JUDGMENT
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The facts of the case in brief are that on 27.03.2021, the complainant namely Rajvir Singh Bhati, was sleeping in room at Ist Floor of house at 648, Pandit Mohalla, Mandawali, Delhi and at about FIR No. 130/21 State Vs. Vikki page 1 of 11 04:50 a.m., he heard some noise upon which he woke up and saw that one boy was attempting to commit theft in his room. Meanwhile, other family persons also woke up and he caught the said boy and upon the complaint, ASI Deshraj alongwith Ct Nekiram reached at the spot.
The present case was registered and investigation of the case commenced. After the investigation, the police filed the chargesheet against the accused for the offences punishable u/s 457/380/511 IPC. The prosecution has thus alleged that the accused committed house breaking by night with an intent to commit theft and had attempted to commit theft in the house of complainant.
2. The Court had taken cognizance of offence under 457/380/511 IPC and issued process to the accused. Upon appearance of the accused, complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offences punishable under section 457/380/511 IPC was framed against the accused by the Ld. Predecessor, to which he pleaded not guilty and claimed trial.
3. The prosecution had cited total 04 witnesses in the present matter in support of its case. In view of the statement of the accused u/s 294 CrPC, PW Duty officer/ASI Shalini was dropped from the list of the witnesses. The prosecution examined 03 witnesses.
FIR No. 130/21 State Vs. Vikki page 2 of 11 EVIDENCE OF THE PROSECUTION IN BRIEF:
4. PW 1 is Rajbir Singh who deposed that on 27.03.2021, he was sleeping at his room at Ist Floor of the above said building/ house and at about 04:50 a.m., he heard some noise upon which he woke up and saw that one boy was attempting to commit theft in his room. Meanwhile, other family persons also woke up and he caught the said boy and upon inquiry, the said boy revealed his name as Vikky @ Vikram S/o Ram Chandra R/o 213, Jawahar Mohalla, Shashi Garden, Patparganj, Delhi. He further deposed that he called the police and police reached at the spot, he handed over the accuse to the police at the ground floor, police took the accused at the PS and he made a complaint to the police and had pointed out the place of incident to the police. He was cross examined at length by the Ld LAC for the accused.
5. PW2 is HC Neki Ram who deposed that on 27.03.2021 he alongwith IO/SI Desh Raj was on emergency duty and IO received a call regarding the theft, therefore, he alongwith IO reached at the spot in the area of Pandit Chowk, Mandawali, where public persons and complainant Rajvir Singh had apprehended one boy and they handed over his custody to IO. Thereafter, IO has prepared rukka and he took the rukka to PS for registration of FIR, after registration of FIR, he came back at the spot alongwith copy of FIR and original rukka and FIR No. 130/21 State Vs. Vikki page 3 of 11 handed it over to the IO. Ld. APP had put some leading questions from the witness as witness was not disclosing the complete facts, after permission from the court. He admitted the suggestion that the spot is H. No. 648, near Pandit Chowk, Mandawali and that after interrogation, accused disclosed his name as Vickey and IO also recorded the statement of the complainant. He also admitted the suggestion that IO had arrested the accused vide arrest. EX. PW1/B and had recorded the disclosure statement of accused vide disclosure statement Mark 2-A. He was cross examined at length by the Ld LAC for the accused.
6. PW3 is Retd. SI Deshraj who deposed that on 27.03.2021, he was on emergency duty from 08:00 pm to 08:00 am, att about 05:40 am(next day) he had received the DD No. 28A regarding the apprehension of one thief and he alongwith Ct. Nekiram reached at the spot ie. H.No. 648, near Pandit Chowk, Mandawali, Delhi, where complainant namely Rajveer Singh Bhati met with us and had produced one boy. He further deposed that he had interrogated the complainant and recorded his statement, prepared the rukka Ex. PW 3/A, handed it over the rukka to Ct. Nekiram for registration of FIR and after registration of FIR, Ct Nekiram handed over original rukka to him. He further deposed that he had prepared the site plan of the spot at the instance of the complainant, had arrested and personally searched the accused Vikram, recorded the disclosure statement of the FIR No. 130/21 State Vs. Vikki page 4 of 11 accused, got conducted medical examination of the accused and produced him before the concerned court. He then deposed that he recorded supplementary statement of the complainant and Ct Nekirama and after completion of investigation he prepared the chargesheet and filed the same in the court. He was cross examined at length by the Ld LAC for the accused.
STATEMENT OF ACCUSED:-
7. Statement of accused was recorded U/s 313 r/w 281 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to him to which he pleaded innocence and stated he is innocent and have been falsely implicated in the present matter, he has not done any act against the complainant, he was outside the house the house under the influence of alcohol, puked in front of the house of the complainant, asked water to him, instead the complainant took him to the police station and got him implicated in the present case with connivance of the police. He did not lead any evidence in his defence.
ARGUMENTS:
8. I have heard Sh. Satish Shukla, Ld. APP for State and Ld LAC, Sh Rubal Sharma for the accused. It was argued by the Ld. APP for the State that prosecution witnesses have successfully proved the factum of commission of offence by the accused, beyond reasonable FIR No. 130/21 State Vs. Vikki page 5 of 11 doubt. He further stated that all the witnesses have supported the case of the prosecution and hence, the accused is liable to be convicted and punished as per law.
9. On the other hand, Ld. LAC for the accused argued that the accused was falsely implicated in the case as there are several discrepancies and material contradictions in the deposition of the prosecution witnesses which create grave suspicion about the prosecution's case.
FINDINGS AND REASONS THEREOF:
10. I have gone through the materials on record and heard the arguments. accused has been indicted for the offences u/s 380/457/511 IPC.
11. It is a well settled legal principle that the prosecution has to prove its case beyond all reasonable doubts & has to stand upon its own legs. The prosecution cannot draw any strength from the case of the accused howsoever weak it may be. It is also a well settled principle of law that the burden of proof in a criminal trial always rests upon the prosecution & the same never shifts on the accused.
12. It is the case of the prosecution that the accused secretly FIR No. 130/21 State Vs. Vikki page 6 of 11 entered into the room situated on the first floor of the house of the complainant by scaling the wall of the neighbour of the complainant and had attempted to commit theft in the room of the complainant. The complainant has been examined as PW1 and he had deposed that he woke upon some noise and he found the accused in his room who was trying to commit theft in his room. In his cross examination he then stated as follows: " The accused was trying to open the almirah. When I woke up, I found the almirah in open condition". Firstly, trying to open an almirah and almirah being already in open condition are two completely different circumstances stated to be seen by the complianant. It is evident from the record that no photographs of the said room or the almirah at the spot had been taken by the IO. From the entire perusal of the testimony of PW1, the act that the accused did upon the entry into the room of the complainant, which can constitute an an attempt to commit theft so as to attract offences u/s 380/511 is not clear. The statement of the complainant is vague in this regard and even suffers from contradictions and improvements. In his examination in chief, he had only deposed that accused was trying to commit theft in his room and in his cross examination he then stated that he was trying to open the almirah and further stated that he found the almirah in open condition. Even to hold the accused liable for an an attempt to commit theft, the prosecution had to show theft of what objects did the accused intended to commit. No where the complainant has stated as to what were the object(s) inside the almirah FIR No. 130/21 State Vs. Vikki page 7 of 11 which accused could have taken away. In these circumstances, at the best, the act of the accused can only fall under preparations to commit an offence and not an attempt to commit theft. Mere preparation to commit an offence is not punishable under law.
13. Further, PW1 has deposed that his family members who were present in the house had also seen the accused near the almirah. However, the IO did not interrogate them and the prosecution gave no explanation, whatsoever, for this omission. Moreover, PW1 had also deposed that the public persons had gathered near his house when he took the accused in the gali. Again, none of these public persons had been examined by the IO. These lacunas dents the case of the prosecution and depreciates the veracity of the case of the prosecution.
14. Further, apart from the complainant, the prosecution has examined the IO and the police persons who had accompanied the IO, Ct Nekiram as PW3 and PW2 respectively. The juxtaposition of the testimony of both these witnesses shows some contradictions on material aspects. PW3/IO has deposed that he found the accused inside the room on the first floor of the house of the complainant. Whereas, PW2 deposed that they found the complainant and the accused outside the house of the complainant and there the complainant handed over the accused to them. Infact, from the testimony of PW1 it seems that he took the accused outside his house FIR No. 130/21 State Vs. Vikki page 8 of 11 and there the public persons had gathered. Moreover, PW2 deposed that he went to PS for registration of FIR at 4:30-5:00 pm whereas PW 3 have categorically deposed that Ct Nekiram went to PS with rukka at 09:00 am. Thus, the testimony of the prosecution witnesses suffers from contradictions including the aspect of the place of the presence where accused was first seen/found by the police on their arrival at the house of the complainant.
15. Further, the prosecution has not placed on record the departure entry of the PW2 and PW3 so as to establish their presence at the spot. Both these witness have not made any entries of their departure from as well as arrival at the PS on the date of incident. Therefore, there is no entry on record to establish the presence of the PWs at the spot.Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as follows:
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the office concerned and shall be attested by the latter personality by signature or seal. Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is FIR No. 130/21 State Vs. Vikki page 9 of 11 maintained."
16. Therefore, it is incumbent upon a police official that whenever he leaves the police station, he is required to make a departure entry in the Daily Diary Register as per Punjab Police Rules, 1934. In the instant case, there is no documentary evidence which can prove the presence of the police witnesses at the date, time and place of alleged incident. The prosecution was under obligation to prove the presence of police officials at the date, time and place of incident but nothing has been placed on record by the prosecution to show the presence of the recovery witnesses at the site on the date and time of incident.
17. In the present case, no public witness has been joined by the investigating agency at the stage of investigation despite the fact that the alleged incident took place at a residential place. It has been admitted by PW1, PW2 and PW3 in their depositions that no public witness joined the investigation & no notice was served upon any of them for the said purposes. In view of the same, the lack of any effort to join any public witness cast a serious dent on the reliability of the prosecution's story and creates a doubt in the mind of the Court as to the truthfulness of the case of the prosecution. Thus, the story of the prosecution regarding presence of the acused inside the house of the complainant is not trustworthy.
FIR No. 130/21 State Vs. Vikki page 10 of 11
18. To sum up the above discussion, the testimonies of the prosecution witnesses is grossly insufficient to prove that the accused entered inside the room of the first floor of the complainant and also made attempt to commit theft. The prosecution could neither establish the mode of the entry of the accused nor the act of the attempt of theft and the entire case of the prosecution is filled with unexplained discrepancies and lacunas.
19. Therefore, in the light of the aforesaid facts & circumstances, the Court is of the considered opinion that the prosecution has failed to prove its case against the accused beyond all reasonable doubts. Consequently, accused Vikki Kumar is entitled to the benefit of doubt & is hereby acquitted of the offences punishable U/Sec. 380/457/511 IPC.
20. Accused to furnish bail bonds in compliance of Section 437-A Cr.PC.
Pronounced in open Court on 08.11.2023.
The Judgement contains 11 pages and each page has been signed by the undersigned. HIMANSHI Digitally signed by HIMANSHI TYAGI TYAGI Date: 2023.11.08 16:22:39 -
0800 (Himanshi Tyagi) Metropolitan Magistrate-03 (East), Karkardooma Courts, Delhi FIR No. 130/21 State Vs. Vikki page 11 of 11