Delhi District Court
State vs Bhaskar Malik on 25 April, 2025
IN THE COURT OF METROPOLITAN MAGISTRATE-09,
SOUTH-EAST, SAKET COURTS, DELHI
presided over by Ms. SEEMA NIRMAL
Cr CASES 91142/2016
STATE Vs. BHASKAR MALIK
FIR NO. 360/2014 (GreaterKailash)
u/s 381/411 IPC
JUDGMENT
(a) C.N.R No. DLSE020034562014
(b) Name of the Complainant Ms. Archana Maggu w/o Rajesh
Maggu, R/o H.no.A-17, Pamposh
Enclave, 3rd floor GK-I, New Delhi.
(c) Name of accused persons Bhaskar Malik S/o Gajender Malik,
R/o Villagw Bhimei, PS Nilgiri,
Balasore Orissa.
(d) Offence charged U/s 381/411 IPC
(e) Date of commission of Unknown date and time in 2014
offence
(f) Date of Institution 21.10.2014
(g) Plea of accused pleaded not guilty and claimed trial
(h) Order Reserved on 02.04.2025
(i) Date of judgment 25.04.2025
(j) Final Order Aquittal
Cr CASES 91142/2016 PAGE 1 OF 15
STATE Vs. BHASKAR MALIK
FIR NO. 360/2014 (GreaterKailash)
u/s 381/411 IPC
SEEMA Digitally signed by
SEEMA NIRMAL
NIRMAL Date: 2025.04.25
13:06:00 +0530
Present: Ld. APP for the State.
Sh. Pawan Kumar, Ld. counsel for the accused along with accused.
BRIEF FACTS AND REASONS FOR DECISION:
1. The Brief case of the prosecution is that on unknown date and time at A-17, Pamposh enclave, GK-I, New Delhi accused Bhaskar Malik committed theft of some Gold (1.5 KG), 4000-5000 Dollars, some precious cutlery items and Rs. 1.5 lakh to Rs. 2 lakhs belonging to complainant, Archana Magu, and thus there by committed offence under section 381IPC.
Alternatively, on 28.04.2014 at village Bhimei, PS Nilgiri, district, Balasore, Odisha accused was found in position of above set cutlery items which he had received or retained, knowing or having reason to believe the same was stolen property and there by committed in offence punishable under section 411 IPC.
2. Present complaint is registered on complaint filed by Smt. Archana Maggu, (hereinafter referred "complainant"), in which she has stated that she along with her family was residing at the given address for last three months on rent. On 21.08.2014 when she checked her locker, she realised that some gold (1.5 KG) 4000-5000 dollars, and ₹1.5-2 lakh cash was missing. After sometime, her son received a call on mobile number 9910699933 from 7377685155, and the person who called, told her son that Bhaskar (her servant who was working with her for one month and had asked for leave period of 15 days on 30th of July and had not returned since Cr CASES 91142/2016 PAGE 2 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) u/s 381/411 IPC SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.04.25 13:06:15 +0530 then) had stolen some cash, foreign currency and gold from her house. The person on the phone also told her son that he was from Bhaskar's village and also gave him Bhaskar's address, which was district, Balasore, PS Ishwaripur, village Bhimei, Orissa. Hence, the the complaint was made in FIR was registered.
3. After registration of FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused were summoned on to face trial.
4. On his appearance, a copy of charge-sheet was supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charges under Section 381 IPC and alternatively 411 IPC were framed against the accused Bhaskar Malik to which he pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case against the accused beyond all reasonable doubts, examined the following witnesses; viz.
i) PW-1 Sh. Archana Maggu (complainant/Victim),
ii) PW-1 HC Parveen Kumar (police witness/ recovery witness) (inadvertently also given Sr. no. as PW1 during evidence),
iii) PW-2 Dr. ASI Veer Singh (Police witness) and
iv) PW-3 SI Ramdev (2nd IO) Cr CASES 91142/2016 PAGE 3 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) Digitally signed u/s 381/411 IPC SEEMA by SEEMA NIRMAL NIRMAL Date: 2025.04.25 13:06:24 +0530
v) PW-4 SI Pawan Kumar (police witness/1st IO)
vi) PW-5 Rishav Maggu (son of complainant)
vii) PW-6 ASI Pramod Kumar (MHCM)
viii) PW-7 Sh. Ajay Kumar (witness to prove CDR)
6. In addition to the above-mentioned witnesses, the accused also admitted TIP proceedings of the case property dated 03.09.2014 Ex. AX-1 in terms of Section 294 Cr.P.C vide order dated 19.02.2015, hence, the said witness was dropped on the submissions of Ld. APP for State.
7. The prosecution, in order to prove its case against the accused beyond all reasonable doubts, also relied upon the following documents:
i) Complaint of complainant/injured Archana Maggu as Ex.
PW1/A and TIP proceedings along with statement of witnesses Ex. PW1/B,
ii) Search memo of the house of the accused as Ex. PW1/W, Arrest memo Ex. PW1/X and personal search of accused as Ex. PW1/Y, disclosure statement of the accused Ex. PW1/Z
iii) Endorsement on Rukka as Ex. PW2/A (OSR) and Copy of FIR as Ex. PW2/B,
iv) application for seeking transit remand from local court in Orissa Ex. PW3/A, certified copy of the order of the transit remand Ex. PW3/B
v) Rukka Ex. PW4/A, site plan at the instance of the complainant Cr CASES 91142/2016 PAGE 4 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) u/s 381/411 IPC SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.04.25 13:06:32 +0530 Ex. PW4/B
vi) Copy of the of the Register no. 19 of the year 2016 to prove the record of the record of stolen articles Ex. PW6/A.
vii) CDR Ex. PW7/A, CAF Ex. PW7/B alongwith certificate u/s 65B of the IEA Ex. PW7/C for mobile number 9910699933.
8. After prosecution evidence, statement of accused Bhaskar Malik was recorded u/s 313 Cr.P.C on 11.02.2025 wherein all incriminating circumstances led against him during the trial by the prosecution witnesses were put to him, affording him an opportunity to give his explanation, if any. Accused pleaded innocence and claimed that he has been falsely implicated in the present case. The accused preferred to lead defence evidence. Accordingly, the matter was posted for defence evidence. However, despite opportunities, accused did not lead any defence evidence and vide separate statement of accused, DE was closed. Thereafter, the matter was posted for final arguments.
9. I have heard the Ld. APP for the State and the Ld. counsel for the accused and gone through the case file carefully and minutely. I have heard the Ld. APP for the State and the Ld. counsel for the accused and gone through the case file carefully and minutely. After hearing the arguments advanced by the Ld. APP for the state and Ld. counsel for defence, I am of the considered view that the prosecution has not been able to prove its case against the accused beyond reasonable doubts for the reasons as discussed Cr CASES 91142/2016 PAGE 5 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) u/s 381/411 IPC SEEMA Digitally signed by SEEMA NIRMAL NIRMAL 13:06:36 +0530 Date: 2025.04.25 below:
10. Section 381 IPC prescribes punishment for theft by clerk or servant who commits theft of property in possession of master. The theft is defined under Section 378 IPC. The essential ingredients to constitute an offence under Section 381 IPC are as follows:-
(a) Intention to take dishonestly
(b) The property shall be movable property.
(c) The property shall be taken out from the possession of any person without his consent.
(d) There should be some moving of the said property to such taking.
(e) The theft should have been committed in a dwelling house or place used for safe custody of property.
11. In the present case, firstly there is no dispute that the accused/ Bhaskar Malik had been employed as a servant with the complainant/ Archana Maggu. Although there is no formal employment agreement on record but accused has admitted his employment with the complainant by putting suggestions to PW-1/complainant in her cross-examination, which were accepted by by him, such as "...It is correct that I did not get the police verification of Bhaskar done before employing him."
12. In order to prove the allegations, the complainant Archana Cr CASES 91142/2016 PAGE 6 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) Digitally signed u/s 381/411 IPC SEEMA by SEEMA NIRMAL NIRMAL Date: 2025.04.25 13:06:45 +0530 Maggu appeared in the witness box as PW-1. However, in her cross- examination she has clearly stated that when she checked the locker the above mentioned items were found missing. In her complaint Ex.PW-1/A also it is written that on 21.08.2014 she realized that the said articles were found missing from her locker. The son of the complainant namely Rishav Maggu also while appearing as PW-5 clearly stated in his cross-examination that it is correct that they had got registered the FIR after they received the call about the stolen items. Meaning thereby, they had not seen the accused committing theft of the alleged articles.
13. Further, there are several contradictions in the statement of the complainant. In her complaint Ex.PW-1/A, the complainant has mentioned that cash about Rs.1.5 to 2 lacs was found missing whereas in her cross- examination as PW-1 she has mentioned about missing of cash around Rs.2 to 2.5 lacs. Further, in her complaint Ex.PW-1/A she has mentioned about theft of 1.5 Kg gold, 4000-5000 dollars and Rs.1.5-2 lacs cash from her locker. However, only some cutlery items have been allegedly recovered from the accused but there was no mention of these cutlery items in the complaint Ex.PW-1/A. PW-6 Rishav Maggu has stated in his cross- examinantion "it is correct that except jewellary items and some cash there was nothing else stolen from my house to my knowledge." Further, complainant has stated in her cross-examination that the key of the locker used to be with her husband in his bag. Further, admittedly the locker was not broken. To this she has stated that the key was smartly taken out and put Cr CASES 91142/2016 PAGE 7 OF 15 STATE Vs. BHASKAR MALIK Digitally signed FIR NO. 360/2014 (GreaterKailash) SEEMA by SEEMA NIRMAL u/s 381/411 IPC NIRMAL Date: 2025.04.25 13:06:49 +0530 back by the accused in the bag after stealing the alleged articles. However, in the considered view of this court, it is highly improbable, that the key was smartly taken out and put back by the accused in the bag after stealing the alleged articles, in the absence of direct evidence regarding the theft specially when her husband has not been examined. Further, in the complaint Ex.PW-1/A it is mentioned that the complainant came to know about the theft when a phone call was received by them from mobile no.7377685155 and the caller disclosed himself to be co-villager of the accused. Complainant in her testimony in court has deposed this person to be cousin of the accused and son of complainant PW-5 has stated him to be relative of the accused in his testimony in court. However, despite full identity the said caller was not joined in the investigation by the IO who happened to be the best witness. Further, the complainant admitted in her cross-examination that one girl named Santoshi used to work with her during the relevant time but she was removed but she also stated that she does not remember whether the said girl was removed earlier to or later than the accused Bhaskar. However, perusal of the case file shows that said Santoshi was not joined in the investigation. Thus, it might be possible that the alleged stolen articles were stolen by said Santoshi and not the accused Bhaskar. Further, the complainant in her examination in chief has deposed that she alongwith her son, his friend Kapil Mukhi and two police officials went to the native place of accused Bhaskar and he was apprehended at his residence. However, on the other hand, HC Parveen Kumar while appearing as PW-1 deposed in his examination in chief that on 22.08.2014 he went to Cr CASES 91142/2016 PAGE 8 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) u/s 381/411 IPC SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.04.25 13:06:58 +0530 apprehend accused in his native village alongwith the complainant but he was not found and then the complainant returned back to Delhi and on 24.08.2014 he alongwith the IO and local police went there again and accused was apprehended. In his cross-examination also he has clearly admitted that the complainant was not with them on 24.08.2014. PW-3 SI Ramdev also admitted that the complainant was not with them on 24.08.2014. Further, PW-3 SI Ramdev stated that he had recorded the statement of public persons in whose presence the recovery was effected, however, he also admitted that the statements of those persons is not on the file. Moreover, he also admitted that there is no permission from the department to go to Orissa on the file and as such it is also not clear that they had gone to Orissa and apprehended the accused and recovered the stolen articles as stated by the witnesses. Thus, these are the contradictions in the testimony of the complainant as well as official witnesses which goes to the root of the case and benefit of which must go to the accused.
14. Moreover, there is no evidence on the file to prove that the alleged stolen articles belong to the complainant. The complainant also stated in her cross-examination that she did not hand over any bills or receipts of her gold to the IO. There is no document on the file to prove the ownership/possession of the alleged articles in the name of the complainant. On this score also, the accused is entitled to benefit of doubt. Reliance in this regard can be placed on Manjinder Singh Vs State of Punjab, (P&H) 2009(4) R.C.R. (Criminal) 919 and Babu Vs The State of Punjab 1977 Cr CASES 91142/2016 PAGE 9 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) SEEMA Digitally signed by SEEMA NIRMAL u/s 381/411 IPC NIRMAL Date: 2025.04.25 13:07:03 +0530 CLR 142.
15. In Trimbak Vs. State of M.P., AIR 1954 SC 39, the Hon'ble Supreme Court has held that:
It is the duty of the prosecution in order to bring home the guilt of a person under Section 411 Indian Penal Code to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property.
16. Case property not produced in Court: The entire case property has not been recovered in the present case and as such was not produced before the court as admitted by the prosecution witnesses. The articles which were allegedly stolen by the accused i.e. 1.5 Kg gold, 4000- 5000 dollars and Rs.1.5-2 lacs cash were never recovered from the accused person as discussed above rather some cutlery has been stated to have been allegedly recovered from the accused but same was not mentioned in the initial complaint Ex.PW-1/A. Moreover, cutlery items are easily available in the market and as such could have been planted easily. There is also anomaly in number of case property produced in court i.e cutlery items that Cr CASES 91142/2016 PAGE 10 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) SEEMA Digitally signed by SEEMA NIRMAL u/s 381/411 IPC NIRMAL 13:07:11 +0530 Date: 2025.04.25 are five spoons, six forks and four knives, and the property produced before Ld. MM who conducted TIP proceedings four spoons ,five forks and five knives thus benefit of the same has to be given to the accused specially when there no mention of missing cutlery articles in original complaint Ex.PW1/A. Also, production of case property in the court is a corroborative piece of evidence and its non-production causes a serious prejudice to the accused and as such benefit of the same shall go to the accused.
17. No independent witness joined: As per the story of prosecution, the recovery was effected on the basis of disclosure statement of the accused. Meaning thereby, the investigating agency had sufficient opportunity to join independent witnesses. Moreover, PW-3 SI Ramdev stated in his cross-examination that he had recorded the statement of the public persons in whose presence the recovery was effected but at the same time he also admitted that statement of public persons are not on the file. Thus, all of this goes to show that no independent witness was joined in the investigation. It creates doubt on the prosecution story. In Jeet Singh Vs. State of Punjab, 1998(3) R.C.R.(Criminal) 274, the Hon'ble Punjab & Haryana High Court has held that:
"5. In the opinion of this Court, this revision should succeed on the short ground that there was a legal infirmity in the investigation. It is the case of the prosecution that HC Lekh Raj received the secret information when he was at a public place. The police party was going on patrol. In these Cr CASES 91142/2016 PAGE 11 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) u/s 381/411 IPC SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.04.25 13:07:55 +0530 circumstances it was mandatory on the part of the Head Constable to associate the independent witness when he could associate it without any difficulty or inconvenience. There is no cogent evidence why the independent witness has not been associated. In these circumstances, to base the conviction of the petitioner solely relying upon the statements of two police officials would be unfair..."
18. In addition to that, the case of the prosecution is solely based upon the disclosure statement of the accused suffered by him confessing his guilt in this case. Perusal of the same reveals that when the said statement was suffered by the accused, admittedly, he was in police custody. No effective recovery had been made as per disclosure statement made by the accused as admitted by the prosecution witnesses. It is well settled that the disclosure statements are not admissible in evidence as per Section 25 and 26 of the Indian Evidence Act subject to the exception as per Section 27 of the Indian Evidence Act but even though the exception have not been proved by the prosecution as admittedly no recovery was effected in pursuance of disclosure statement. No independent witness was joined by the prosecution at the time of making disclosure statement. So, the disclosure statement is not admissible and does not prove the case of the prosecution against the accused.
19. Further, the complaint was given on dated 21.08.2024. As per Cr CASES 91142/2016 PAGE 12 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) u/s 381/411 IPC SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.04.25 13:07:59 +0530 the contents of the complaint the incident took place around 30.07.2014 when the servant/accused went on leave for 15 days and the complaint saw the alleged stolen articles missing on dated 21.08.2014 but she has stated that after 10 Days of leaving of her servant Bhaskar she checked her locker and found out about missing some gold (1.5 KG) 4000-5000 dollars, and ₹1.5-2 lakh and as such there is delay of around 11 days in filing of FIR/complaint which has not been explained by the prosecution and as such concoction and false implication on the part of the complainant cannot be ruled out and thus benefit of the same should be given to the accused. Reliance in this regard may be placed on Ajay Kumar Jain & Anr. v. State (Delhi) 2013(7) R.C.R.(Criminal) 159, it has been held as follows:-
"10. The incident of complainant's abduction took place on 17th August, 1997 and the complainant was released also by the appellants same day but the FIR was lodged on 19th August, 1997 and that delay had not been explained satisfactorily by the prosecution. To the police he did not given any reason as to why he had not reported the incident on the date of his abduction itself or even next morning. However, in Court during his evidence he stated that he did not lodge the report with the police same day as he was terrified and that explanation has been accepted by the learned trial Court but in fact that explanation does not inspire confidence since he did not even claim to have informed anyone about the incident nor did he go to any Cr CASES 91142/2016 PAGE 13 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) u/s 381/411 IPC SEEMA Digitally signed by SEEMA NIRMAL NIRMAL 13:08:09 +0530 Date: 2025.04.25 doctor also despite the fact that he had sustained grievous injuries and he claimed that his two teeth had been broken. It is not acceptable that a person who has suffered grievous injuries would not even go to some doctor. And when he was examined by the doctor after he had lodged the FIR on 19.08.1997 PW-8 Dr. A.K. Khare, dental surgeon, had opined the injuries to be fresh and he also clarified that by fresh injuries he meant the injuries to be 2/3 hours duration. That statement of the prosecution's own medical witness also renders the complainant's version that he was abducted by the appellants on 17.08.1997 and thereafter was badly beaten also during the period of his confinement highly doubtful. In these circumstances, the delay in lodging of the FIR assumes more significance. So, the prosecution case was doubtful and the plea of false implication taken by the appellants because the complainant owed money to them became probable since the complainant himself had admitted in his evidence that he owed money to them and he did not claim that he had paid the money as was claimed by him in his complaint to the police."
20. Further, it is well settled that suspicion, however strong, cannot take the place of proof. Clear and unimpeachable evidence is necessary to convict a person. This court finds that such evidence is absent in this case.
Cr CASES 91142/2016 PAGE 14 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) Digitally signed u/s 381/411 IPC SEEMA by SEEMA NIRMAL NIRMAL 13:08:14 Date: 2025.04.25 +0530
Reliance in this regard can be placed on 'Anil s/o Shamrao Sute & Anr. Vs. State of Maharashtra 2013(2) R.C.R. (Criminal) 541'.
21. In the instant case, prosecution has failed to prove its case against the accused beyond reasonable doubts and so he is entitled to benefit of doubt. So, by extending the benefit of doubt to the accused, he is acquitted of the charges framed upon him in this case. Case property, if any, be disposed of as per rules after expiry of period of appeal/revision. File be consigned to the record room after due compliance.
SEEMA Digitally signed by
SEEMA NIRMAL
NIRMAL 13:08:19 +0530
Date: 2025.04.25
Announced in the Open (SEEMA NIRMAL)
On 25.04.2025 JMFC-09/ SED/ Saket Courts,
New Delhi
It is certified by me that this judgment contains 15 pages and each page is signed by me personally. Digitally signed SEEMA by SEEMA NIRMAL NIRMAL 13:08:24 Date: 2025.04.25 +0530 (SEEMA NIRMAL) JMFC-09/ SED/ Saket Courts, New Delhi/25.04.2025 Cr CASES 91142/2016 PAGE 15 OF 15 STATE Vs. BHASKAR MALIK FIR NO. 360/2014 (GreaterKailash) u/s 381/411 IPC