Delhi District Court
State vs . Sanjay & Anr. on 30 July, 2015
IN THE COURT OF MS. SWATI KATIYAR : MM05: KKD: DELHI
State Vs. Sanjay & Anr.
FIR No. : 206/2000
P.S. : Mayur Vihar
U/Sec. : 457/380 IPC
JUDGMENT
a) Srl. No. of the case 473/15
b) Date of institution 15.12.2000
c) Date of commission of offence 03.09.2000
d) Name of the complainant Sh. Suresh Kumar
e) Name of the accused 1. Sanjay @ Deepak
S/o Videshi
R/o 15/358, Trilokpuri, Delhi.
2. Rajendra
S/o Meer Chand
R/o 15/366, Trilokpuri, Delhi.
f) Nature of offence complained of 457/380/34 IPC
g)Plea of the accused person Accused persons pleaded
not guilty
h)Date reserved for order 21.07.2015
i) Final Order Acquitted
j) Date of order 30.07.2015
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. Accused Sanjay @ Deepak and Rajender are facing trial in the present case for the offences punishable under section FIR No. 206/2000 State Vs. Sanjay and anr. Page 1 of 24 457/380/34 IPC on the allegations that on 03.09.2000 in between 2 am to 3 am at 23/161, Trilokpuri, Delhi both the accused persons in furtherance of their common intention, committed house breaking by night by entering into shop of complainant Suresh Kumar and committed theft of 185 audio cassettes and Rs. 1,700/ cash.
2. After completion of investigation, challan was filed on 15.12.2000. Copies were supplied to accused persons and charge under section 457/380/34 IPC was framed upon the accused persons on 11.02.2002, to which, the accused persons pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined seven witnesses. PW1 is ASI Vijay Pal who deposed that on 03.09.2000, he was working as duty officer at PS Mayur Vihar from 12 midnight to 08:00 am and he had registered FIR Ex. PW1/A and made endorsement on rukka Ex. PW1/B.
4. PW2 is Babloo who deposed that in the year of 2000 he was working as electric contractor and on the intervening night of incident, he returned back at his house after completion of his duty at about 01:00 am (night) and at about 02:00/02:30 am, he was going towards nala of 15 block for nature's call and after easing myself, he FIR No. 206/2000 State Vs. Sanjay and anr. Page 2 of 24 returned back to his house. He deposed that he saw that shutter of the shop situated at 23 block, Trilokpuri in front of Shiv Mandir was open and he waited there. He deposed that in the meantime watchman of 23 block came there during patrolling and he informed him about the opening of shutter of the shop. He deposed that he knew that the owner of said shop was Suresh and hence, he alongwith watchman went to the house of Suresh, situated at 15 block. He deposed that he gave him information that the lock of the shutter was broken and same was lying near the open shutter of shop. He further deposed that when they were returning from the shop of Suresh, they saw a police gypsy patrolling there and they informed police about the incident. He further deposed that police of PS Mayur Vihar also came at the spot and IO of case recorded statement of Suresh regarding incident and prepared site plan at the spot. PW2 further deposed that his statement was also recorded by IO and he came to know that some cassettes were stolen from the said shop as it was a cassettes and CDs shop. During cross examination by Ld. Counsel for accused persons, PW2 deposed that he is a drug addict and his medical treatment is going on in Lady Harding Hospital under Nasha Mukti Vibhag. He deposed that he is a drug addict for last 12 years and he did not see any persons committing theft FIR No. 206/2000 State Vs. Sanjay and anr. Page 3 of 24 at the shop of complainant. He further deposed that he remained with Suresh on date of incident till 22:30 am and he does not know about any identification mark of any cassette. He deposed that he saw the lock of Suresh broken at about 12 midnight and he went for easing near nala. He deposed that he did not go near the shop of complainant at about 12 midnight or for easing. He deposed that he did not know if any lock belonging to Suresh were taken in possession by police or not. He deposed that police did not obtain his signatures on any paper and writing work was done while sitting at beetal shop.
5. PW3 is Suresh who deposed that about four years ago in the year 2000, he was running a shop in the name of OM AUDIO VIDEO CORNER at house no. 23/161 and he was selling cassettes. He deposed that at about 10:00/10:30 pm, he locked his shop and went to his house. PW3 deposed that about Rs. 1600/ or Rs. 1700/ were kept in cash at his shop and at about 03:00 am night, one Babloo who used to reside in 23 block came to his house alongwith watchman and informed him about the breaking of lock of his shop. He deposed that Babloo disclosed the name of persons who had broken the lock of his shop as Rajender and Sanjay and told that they had stolen cassettes in a polythene bag. PW3 deposed that he was surprised and that he knew FIR No. 206/2000 State Vs. Sanjay and anr. Page 4 of 24 Rajender and Sanjay prior to the day of incident. The deposed that thereafter he alongwith his younger brother Umesh went to his shop and checked his shop where he found 185 audio cassettes missing. He deposed that audio cassettes were of different companies. He further deposed that he checked his cash box and found all currency notes missing and only some coins were in the cash box. He deposed that one note of Rs. 500/, 10 notes of Rs. 100/ and two notes of Rs. 50/ were missing from his cash box. He deposed that when he was going towards police station, PCR met him on the way and he informed him regarding the incident. He deposed that PCR police informed to the PS and police of PS also came to the spot and inspected the same. He further deposed that he went to PS alongwith IO where IO recorded his statement Ex. PW3/A and prepared site plan Ex. PW3/B. He deposed that accused persons were searched but they were not found at their residence. He further stated that parents of accused were called to police station by IO. PW3 further deposed that when they alongwith parents of both the accused reached police station, within tentwenty minutes, patrolling police brought accused namely Rajender and Sachin in the police station alongwith two bags recovered from them containing cassettes. He further deposed that he identified both the accused FIR No. 206/2000 State Vs. Sanjay and anr. Page 5 of 24 persons and police counted cassettes of both the bags and total 185 cassettes were recovered from the said two bags. PW3 deposed that IO arrested both the accused vide arrest memo Ex. PW3/C and Ex. PW3/D bearing his signatures at point A. He deposed that IO also seized the case property and prepared pullandas in white cloth and sealed the same. He further deposed that Rs. 1600/ in cash were recovered from both the accused persons and he identified the currency notes to be the same as belonging to him. He further stated that IO kept the same in envelope and sealed the same and IO prepared seizure memo of envelope and cassettes vide memo Ex. PW3/E. PW3 further deposed that at the time of inspection of shop, police seized two broken locks of make HARISON vide memo Ex. PW3/F. He further deposed that IO inquired from both the accused persons and they pointed out shop of complainant and IO prepared pointing out memo Ex. PW3/G and Ex. PW3/H. He identified the accused persons in the Court and the case property as Ex. P1 to Ex. P4. He deposed that his supplementary statement was recorded by IO. The further examination of witness was deferred for want of remaining case property. However, PW3 failed to reappear for his further examination and crossexamination despite repeated efforts. Thus, his deposition remained incomplete. FIR No. 206/2000 State Vs. Sanjay and anr. Page 6 of 24
6. PW4 is HC Fakhre Alam who deposed that on 03.09.2000, he was posted in PS Mayur Vihar and on that day at about 03:55 am, on receiving DD no. 37A, he alongwith SI Ajay Kumar reached at the spot i.e. shop no. 23/161, Trilokpuri. He deposed that there the complainant Suresh met them alongwith two persons namely Bablu and Umesh and IO SI Ajay Kumar recorded the statement of Suresh regarding theft, prepared rukka and handed over the same to PW4 for registration of FIR. He deposed that he went to PS and got the FIR registered and came back to the spot with copy of FIR and original rukka. He further deposed that thereafter he came back to above said shop where he did not meet SI Ajay and he was informed by the public persons present there that SI Ajay Kumar alongwith staff had proceeded towards 13 block, Mother Dairy, Trilokpuri. He deposed that he reached 13 Block, Mother Dairy and handed over copy of FIR and original rukka to SI Ajay Kumar who was present there alongwith Ct. Bachan Singh and Ct. Ravinder, the complainant and two accused persons. He further deposed that IO arrested the accused. PW4 identified the accused persons in the Court.
7. During crossexamination by Ld. Counsel for accused persons, PW4 deposed that on 02.09.2000, he was on emergency duty FIR No. 206/2000 State Vs. Sanjay and anr. Page 7 of 24 and his duty hours were from 8 pm to 8 am and he was on patrolling duty from 12 midnight till morning. He further deposed that shop no. 23/161 was of audio and video cassettes and had sign board of M/s. Om Videos. He deposed that shutter of shop was half open. PW4 was not able to recollect as to where was the lock of shop. He further deposed that Suresh and Bablu had met them on spot. PW4 stated that Suresh, Umesh and Bablu were present at the spot when they reached. He further deposed that they did not enter inside the shop and he went with rukka at police station at about 04:30 am and returned back at 23/161 at about 05:30 am but police official were not present there and public persons told him that his staff had proceeded towards mother dairy and he accordingly went towards mother dairy. He further deposed that distance between mother dairy and shop no. 23/161 is about 250 kilometers and mother dairy is situated near block no. 13 and
27. PW4 could not recollect whether Suresh had given any list of 185 stolen cassettes or whether Suresh had told about cassettes of which company. He deposed that PW4 reached at 27 block, mother dairy on foot at about 05:45 am and place of incident is situated between the residential and commercial premises. He could not recollect as to whether lock was seized by IO or not. He deposed that he had not FIR No. 206/2000 State Vs. Sanjay and anr. Page 8 of 24 signed on any seizure memo and while he reached at mother dairy SI Ajay, Ct. Bachan, Ct. Ravinder, Suresh, Bablu and Umesh were there besides the accused persons. PW4 further deposed that accused persons were in custody of Ct. Bachan and Ct. Ravinder. He further deposed that IO had recorded statement of Umesh. He denied the suggestion that no statement of Umesh was recorded by IO or that no person namely Umesh was present during the whole investigation. He deposed that accused persons were not searched in his presence. PW4 was not able to recollect as to where his statement was reduced into writing by IO, however, he deposed that it was recorded at the same time. PW4 deposed that place from where the accused persons were apprehended is residential area and in his presence, no public person was called by IO. He deposed that pullandas were in sealed condition when he joined the proceedings. He could not remember the time for which he remained at the place of apprehending however, he deposed that they reached at police station after completing proceedings at 08:00 am. He deposed that IO had recorded statement of all witnesses in his presence including himself, Ct. Bachan, Ct. Ravinder and Umesh. He deposed that accused were taken to police station on foot. He denied the suggestion that he was deposing falsely. FIR No. 206/2000 State Vs. Sanjay and anr. Page 9 of 24
8. PW5 is Ct. Bachan Singh who deposed that on 03.09.2000, he was posted at PS Mayur Vihar and on that day, he was on patrolling alongwith Ct. Ravinder at 13 block, Trilokpuri, Delhi and at about 03:55 am, they heard a wireless message regarding a theft at 23/161, Trilokpuri. He deposed that he alongwith Ct. Ravinder reached at spot where SI Ajay Kumar and Ct. Fakre Alam met them. He deposed that one Suresh owner of 23/161 met them and informed regarding the theft. He deposed that SI Ajay Kumar recorded his statement, prepared the rukka and handed over the same to Ct. Fakre Alam. He further deposed that SI Ajay Kumar prepared site plan and thereafter PW5 alongwith Ct. Ravinder, SI Ajay and complainant went for search of accused persons named by Suresh. PW5 further stated that at about 05:30 am, when they reached near Mother Dairy, 13 block, Trilokpuri, they saw both the accused persons coming on road. He deposed that both were carrying one bag each and on seeing them, they tried to move away from the spot but they chased them and apprehended them. PW5 deposed that they disclosed their names as Rajinder and Sanjay and on search of accused Rajinder, he was found in possession of one plastic bag containing 52 cassettes and Rs. 1600/. He deposed that accused Sanjay was having one bag FIR No. 206/2000 State Vs. Sanjay and anr. Page 10 of 24 containing 133 cassettes. He deposed that complainant identified the cassettes which were stolen from 23/161. PW5 further stated that SI Ajay Kumar took into possession 52 audio cassettes alongwith polythene bag in a cloth pullanda and sealed the same with the seal of AK. He further stated that IO also kept 133 cassettes in a cloth pullanda and sealed the same with seal of AK. He further stated that IO kept Rs. 600/ recovered from accused Rajinder in an envelope and also sealed it with seal of AK. PW5 further stated that SI Ajay Kumar took into possession all the case properties vide seizure memo Ex. PW3/E. He deposed that in the meanwhile, Ct. Fakhre Alam also reached at the spot and handed over copy of FIR and original rukka to SI Ajay Kumar. He deposed that accused persons were personally searched and arrested vide memos Ex. PW5/A and Ex. PW5/B and Ex. PW3/C and Ex. PW3/D. He deposed that thereafter both the accused took them to the place of theft and pointed out towards the same and IO prepared pointing out memo Ex. PW3/G and Ex. PW3/H. Witness identified the accused persons and case property as Ex. P1 to Ex. P4 before the Court.
9. During crossexamination by Ld. Defence Counsel, PW5 deposed that he was on patrolling duty from 12 midnight to 05:00 am. FIR No. 206/2000 State Vs. Sanjay and anr. Page 11 of 24 He could not recall the DD number vide which he left the police station or the name of official who made the entry. PW5 deposed that they were in uniform and patrolling on foot and they reached at 1314 block through 2425 block, Trilokpuri. He deposed that they reached at 13 block at about 33:15 am. PW5 further deposed that the place of incident was situated at 23 block and they reached at 23 block after receiving the information at wireless set. PW5 deposed that Ct. Ravinder was having the wireless set. He deposed that fact of handing over of wireless set was mentioned in their departure entry. He deposed that there were other shops situated adjacent to shop of complainant. He deposed that there was a house behind the shop no. 23/161 and when they reached at the spot, the shutter of the shop was partially open and its lock was found broken. He further deposed that Suresh was found outside the shop when they reached and IO made enquiry from one boy who was with complainant in his presence and no other residents of the area were enquired. He deposed that broken lock was found lying at the spot and said lock was taken into possession by the IO. He further deposed that he did not sign on the seizure memo as it was not prepared in his presence. PW5 deposed that there was no light outside the abovesaid shop. He deposed that there was no electric pole FIR No. 206/2000 State Vs. Sanjay and anr. Page 12 of 24 near the shop and statement of Suresh was recorded outside the shop and his statement was recorded at about 44:15 am. He deposed that he could not remember the time when Ct. Fakre Alam left the spot alongwith rukka or when they left the spot for search of accused persons. He deposed that they searched at 15, 23, 24, 25 blocks before reaching at 13 block and he could not remember when they reached at 13 block. He deposed that accused persons were apprehended at about 05:30 am. He further deposed that complainant remained present with them till they again went to the place of theft for pointing out but he could not remember the time. He deposed that they were searching for the accused on foot. He deposed that Suresh did not hand over any list or bills of the cassettes stolen from his shop to the IO but IO did not put any identification mark on the recovered cassettes. He deposed that cassettes were of different companies but he had not stated regarding the company and titles of the cassettes in his statement to the IO. He admitted that recovered cassettes are easily available in the market. He deposed that his statement was recorded only once at shop no. 23/161. He could not remember the time when the same was recorded and seal was handed over to Ct. Ravinder after use and pullandas were sealed at the place of apprehension of accused FIR No. 206/2000 State Vs. Sanjay and anr. Page 13 of 24 persons. He could not remember as to which Constable brought back the pullandas to the police station or whether the complainant also visited the police station at that time or not. He could not remember whether the person who was present with the complainant at the shop when they first reached there was also there at the place of apprehension of accused persons or not. He deposed that seizure memos were prepared at the spot of apprehension of accused while standing on footpath. He deposed that place of apprehension is situated at a distance of 75100 yards from the residential area. He denied the suggestion that accused persons were not arrested in his presence or that nothing was recovered from their possession or that he was not part of investigation or that he was deposing falsely. He deposed that green colour bag in which 133 cassettes were produced in the Court was not the same bag which was recovered from the possession of accused. He stated that cassettes recovered from the possession of accused were kept in green colour bag. He deposed that IO wrote the FIR number on recovered bag. He admitted that particulars of the case were not written on the bag however the same were written on the white cloth sewed on the top of the bag. He deposed that white cloth from which pullanda was made was kept in the IO kit. He denied FIR No. 206/2000 State Vs. Sanjay and anr. Page 14 of 24 the suggestion that case property has been planted upon the accused in collusion with the complainant or that he put his signatures on the documents at police station.
10. PW6 is Ct. Ravinder who deposed in his examination on the same lines as PW5 Ct. Bachan. During crossexamination, PW6 deposed that he was on patrolling duty from 11:00 pm to 05:00 am. He could not remember the DD no. vide which he left for patrolling or the name of duty officer. He deposed that he made departure entry at 11:00 pm. He deposed that they first went to 13,14,15,23,24,25 block of Trilokpuri. He deposed that they checked one or two suspicious persons at 13 and 24 block. He deposed that he was not aware of the names of accused persons before their apprehension. He deposed that when the accused persons were apprehended the mother dairy booth was closed. He deposed that place of apprehension of accused is situated in a residential area and none of the house owners were called by the IO. He could not remember the name of companies printed upon the recovered cassettes and at the time when IO recorded his statement, he could not remember the name of companies. He deposed that he had not stated name of any company or film in his statement. PW6 deposed that he returned back the seal to IO on the next day and they FIR No. 206/2000 State Vs. Sanjay and anr. Page 15 of 24 remained at place of apprehension of accused till 6:30 7:00am. He deposed that complainant did not tell the names of companies or films to the IO in his presence. He deposed that complainant also did not hand over any ownership proof regarding cassettes in his presence. He could not remember whether IO recorded names of companies or films in any document or not. He deposed that he had put his signatures upon document Ex. PW3/E after reading the same. He admitted that names of companies and films are not mentioned in the seizure memo. He was not able to state as to whether IO had put any identification mark or serial no. on the recovered cassettes. He deposed that IO did the writing work while sitting on the stair case of a house under the street light. He was not able to state as to whether IO recorded the number of recovered currency or notes or whether IO had put any identification mark on the currency notes or not. He deposed that after the arrest of accused persons, they were brought back to the police station from the place of their apprehension. He deposed that complainant did not accompany them to the police station. PW6 further deposed that rukka was handed over by IO to Ct. Fakre Alam at about 04:15 am. He stated that Ct. Fakre Alam came back alongwith copy of FIR at about 06:30 am at the place where the accused persons were FIR No. 206/2000 State Vs. Sanjay and anr. Page 16 of 24 apprehended. He deposed that distance between the place of apprehension of accused and shop of complainant is about 1.5 furlong. He deposed that initially they reached at the shop of complainant at 03:45 am. He deposed that he had not seen any external lock upon the shutter of the shop. He could not remember whether the complainant handed over any lock to the IO in his presence or not. He deposed that there were one or two shops situated near the shop of complainant. He could not remember whether the cassettes were lying in the shop of the complainant or not. He deposed that he had not seen the cash box of the shop. He further stated that his statement was recorded at the place of apprehension of accused. He deposed that they took the accused persons to police station on foot. He could not remember as to who carried pullanda to the police station but that it was in the hand of one of the Constable, whom he could not remember. He denied the suggestion that nothing was recovered from the possession of accused persons or that they were not arrested in the manner, time and place as narrated by him. He denied the suggestion that he was deposing falsely.
11. PW7 is SI Ajay Kumar who deposed that in the intervening night of 2/3092000, he was posted at PS Mayur Vihar and on that day, FIR No. 206/2000 State Vs. Sanjay and anr. Page 17 of 24 on receiving DD no. 37A he reached at 23/161, Trilokpuri alongwith Ct. Fakre Alam where complainant met them and informed regarding the incident. He deposed that he prepared the rukka and handed over the same to Ct. Fakre Alam for registration of FIR, who came back and handed over copy of FIR and original rukka to him. He deposed that at that time, Ct. Bachan Singh and Ct. Ravinder were also present. He deposed that he prepared site plan Ex. PW3/B. He further deposed that they went for the search of accused persons and at about 05:30 am when they reached near mother dairy 13 block, Trilokpuri, Delhi, they saw that accused persons were coming while carrying one bag each. The bag carried by accused Rajinder was found containing 52 cassettes and the bag carried by accused Sanjay was found containing 133 cassettes. He deposed that accused Rajinder was also found in possession of Rs. 1600/. PW7 deposed that he sealed the cassettes and currency notes separately and prepared seizure memo Ex. PW3/E. He deposed that accused persons were arrested vide memos Ex. PW3/C and Ex. PW3/D and personally searched vide memos Ex. PW5/A and Ex. PW5/B. He identified the accused persons in the Court.
12. During crossexamination by Ld. Defence Counsel, PW7 deposed that he could not remember what was the week day on FIR No. 206/2000 State Vs. Sanjay and anr. Page 18 of 24 03.09.2000. He deposed that he left for patrolling at about 12 midnight. He deposed that departure entry was made by duty officer and he could not remember the name of duty officer. He admitted that he had not placed the DD entry of his departure alongwith chargesheet. He deposed that he was in uniform while patrolling on motorcycle and that he patrolled the complete area of police station Mayur Vihar, but could not remember by which block, he started or in which area he patrolled before coming to the spot. He deposed that he reached at 23/161 Trilokpuri at about 3.00 a.m and at that time, shutter of the shop was open. He deposed that Suresh was standing outside the shop alongwith one or two persons and he recorded their statements, but could not recollect their names. He deposed that he recorded the statement of Suresh while standing on road outside the shop. He deposed that he found the lock of the shutter and part of shutter broken, but the lock was not recovered. He deposed that he had not seen any cassettes in the shop, however, few cassettes were lying there and that he had not prepared any inventory of those cassettes. He deposed that Suresh had not handed over any purchase receipt or bill of the cassettes, nor had he given any description of the stolen cassettes, however, he told that the same were audio cassettes. PW7 further FIR No. 206/2000 State Vs. Sanjay and anr. Page 19 of 24 deposed that he had not called the crime team at the spot to trace any chance prints at the shop. He could not recollect that time when he recorded the statement of Suresh. He deposed that Ct. Fakre Alam came back at the place apprehension of accused persons alongwith copy of FIR and original rukka at about 5.30 a.m on motorcycle. He could not remember the number of motorcycle. He admitted that he had not mentioned the description of audio cassettes in the seizure memo or anywhere else in the charge sheet. He stated that he remained present at the shop of Suresh for about one hour, but could not recollect when Ct. Bacchan and Ct. Ravinder came at the shop of Suresh. He stated that both were in foot and in uniform and from the shop of Suresh, they went to 13 block, Trilokpuri on foot, which was at a distance of about 400 meters from the shop. He stated that they reached at 13 block, at about 5.255.30 a.m., and at that time no public persons were passing through the area. He deposed that he remained present at Mother Dairy of 13 Block for about 11.5 hours and that place of apprehension of accused persons is situated in a residential area. He deposed that he had not called any resident of the area from his house and no other public person was present there. He deposed that he made one single pullanda by keeping two pullandas together and FIR No. 206/2000 State Vs. Sanjay and anr. Page 20 of 24 deposited the same after writing case particulars on both the bags. He deposed that one bag was of green colour and other was of white colour. He further stated that complainant had not given any list of cassettes mentioning their description and that complainant told him that cassettes of different companies were missing but he did not tell the title and make of each cassettes. He deposed that lock was found lying broken near the shop. He further stated that he was not handed over to him by the complainant and he could not recollect as to how many places, there was provision for installation of lock in the shutter of shop. He deposed that he did not examine the complainant regarding the key of lock as the same was open. He admitted that there was no external damage on the lock Ex. P5. He voluntarily added that there was internal damage. He deposed that he had not sent the lock for examination by FSL as it was not required and no documentary proof was provided by the complainant. He deposed that he did not mention the name of company or name of movie anywhere in the seizure memo. He deposed that he had not mentioned name of cassettes and their make in any statement of witnesses, however, he had mentioned that cassettes of different companies were seized from the accused persons. He deposed that no judicial TIP of recovered case property FIR No. 206/2000 State Vs. Sanjay and anr. Page 21 of 24 was got conducted as complainant had identified them at the time of seizure. He deposed that seal of AK affixed on the seizure memo was handed over to Ct. Bacchan, who did not return the same to him, but deposited it in Malkhana. He could not tell as to when the seal was deposited. PW7 deposed that he had recorded statement of Ct. Bacchan to this effect on 03.09.2000. He admitted that he had mentioned in statement of Ct. Bacchan that seal after use was given to Ct. Ravinder, however, it is not mentioned in the statement of Ct. Ravinder that seal was deposited by him in Malkhana. He deposed that he had not recorded any other supplementary statement of Ct. Ravinder, nor had he recorded denomination of currency notes recovered from accused in seizure memo Ex. PW3/E, nor did he record any statement of witnesses.
13. During further crossexamination, PW7 admitted that he had not put any particular identification mark/serial on the currency note at the time of its seizure. He admitted that he had not mentioned currency notes numbers in recovery memo Ex. PW3/E. He deposed that he could identify the currency notes, if mixed with other currency notes. He stated that seal of AK was deposited with MHC(M) on the same day, when he deposited the case property with him. He denied FIR No. 206/2000 State Vs. Sanjay and anr. Page 22 of 24 the suggestion that he had not deposited seal of AK in Malkhana, or that he had not investigated the case fairly and properly or that accused persons have been falsely implicated or that no cassette or currency note was recovered from possession of accused persons or that he was deposing falsely. No further witness was examined by the prosecution.
14. Statement of accused persons was recorded on 21.07.2015, wherein they denied the entire case of prosecution. They explained that they were innocent and have been falsely implicated. However, they declined to lead any evidence in defence.
15. Final arguments were advanced at length by Ld. APP for the State and by accused persons. I have considered the submissions and perused the record carefully.
16. In the present case to bring home the guilt of the accused persons, prosecution was required to prove beyond reasonable doubt that accused persons had committed housebreaking by night in order to commit theft and they had committed theft of case property in question. To prove its case, prosecution has examined seven witnesses out of which PW1 and PW4 to PW7 are formal/police witnesses and had not seen the incident in question. PW2 is the sole eyewitness to the incident in question, however, during examination, he resiled from FIR No. 206/2000 State Vs. Sanjay and anr. Page 23 of 24 his previous statement and failed to prove the case of prosecution. PW2 categorically deposed in his crossexamination that he had not seen any person committing theft in the shop of complainant and that he had only seen that lock of shop of Suresh had been broken. PW2 has not deposed anything about recovery of stolen cassettes from accused persons. PW3 Sh. Suresh who was the owner of shop in which house breaking and theft was committed appeared before the Court and deposed in favour of prosecution. However, his examination was deferred for want of case property and thereafter, PW3 failed to reappear before the Court despite repeated efforts made by prosecution. This witness was also not crossexamined and thus, his deposition remained incomplete and cannot be relied upon.
17. There is no other witness on record who could prove the alleged housebreaking and theft of cassettes by accused persons. Thus, due to lack of evidence, benefit of doubt is extended in favour of the accused persons and they are acquitted of offences punishable under Section 457/380/34 IPC.
File be consigned to Record Room.
(Announced in open
Court on 30.07.2015) (Swati Katiyar)
MM/KKD/East,Delhi
FIR No. 206/2000 State Vs. Sanjay and anr. Page 24 of 24