Delhi District Court
State vs . Ravinder & Ors. on 10 February, 2016
IN THE COURT OF SH. SACHIN GUPTA
METROPOLITAN MAGISTRATE05, NORTH, ROHINI
COURTS,DELHI
State Vs. Ravinder & Ors.
FIR No. 119/01
PS. Bawana
U/s. 380/457/411/34 IPC
Case ID No. 02401R0110542001
JUDGMENT
1) SI No. of the case : 522/12
2) The date of commission of offence : 045.04.2001
3) The name of the complainant : Anoop Singh
4) The name & parentage of accused : 1) Ravinder @ Lalla
S/o Sh. Anokhelal
2) Devender Kumar
S/o Sh. Ram Sewak
3) Mahavir
S/o Ram Parkash
4) Dhiraj Kumar
S/o Sh. Ram Avtar
(proceeding abated)
FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 1/29
5) Offence complained of : 380/457/411/34 IPC
6) The plea of accused : Pleaded not guilty
7) Final order : Accused Ravinder,
Devender and Mahavir
acquitted for offence u/s
457/380/34 IPC.
Accused Ravinder and
Devender are convicted
for offence u/s 411 IPC
8) The date of such order : 10.02.2016
Date of Institution : 02.06.2001
Judgment reserved on : 10.02.2016
Judgment announced on : 10.02.2016
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that on the intervening night of 0405.04.2001 between 12:00 midnight to 1:15 a.m at Chemical godown, Kali Mata Mandir, village Prahlad Pur, Delhi, accused Ravinder @ lalla , Dhiraj Kumar, Devender Kumar and Mahavir in furtherance of their common intention committed lurking house trespass by night by entering into the building(chemical factory) in possession of FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 2/29 Sh. Rishi Pal Gupta, after sunset and before sunrise and all of them in furtherance of their common intention committed theft of bags containing chemical powder from the aforesaid factory. It is further the case of the prosecution that on 05.04.2001, accused Ravinder, Devender and Dhiraj Kumar were found in possession of stolen chemical bags which they dishonestly retained, knowing or having reason to believe the same to be stolen property.
2. After completion of investigation, charge sheet was prepared and filed in the court against the accused persons whereupon cognizance was taken. After complying with the provisions of Sec. 207 Cr. P.C, arguments on charge were heard and Charge was framed against all the accused persons Ravinder, Dhiraj Kumar, Devender Kumar and Mahavir for offence u/s. 380/457/34 IPC, while accused Ravinder, Devender and Dhiraj Kumar were also charged for offence u/s 411 IPC, to which they pleaded not guilty and claimed trial.
3. During the course of trial, accused Dhiraj was reportedly expired and proceedings against the accused Dhiraj was abated vide order dated 17.10.2007 passed by Ld. Predecessor. In Prosecution evidence, the prosecution got examined 13 witnesses. PW1 Mujhafar Khan stated that in year 2000 he had purchased a TSR bearing no. HR 38C 1069 and in FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 3/29 early 2011 sold the same to one Ram Avtar.
4. PW2 ASI Chandan Singh, Duty Officer stated that on 05.04.2001, he registered the FIR in the present case, copy of the same is Ex PW2/A and he also made endorsement on the rukka.
5. PW3 Sh Rishipal Gupta deposed that he owned a godown at village Prahladpur where he used to store chemicals used in manufacturing of fevicol/adhesive. He further stated that on the night of 04.04.01, he received a telephonic information from his employee Anoop Kumar that theft has been committed at his godown; he immediately reached at his godown where he found that locks of the shutter of the godown were broken and shutter was opened. He further stated that the door of the room in which chemical bags were kept was also opened. He further stated that Anoop Kumar had already informed the police and police was already present at his godown when he reached there. He further stated that he along with he police tried to search his stolen chemical bags. He further stated that after about one and a half hour police told him that they had received a secret information that PCR officials had apprehended two autos loaded with some stolen articles. He further stated that he accompanied the police to the spot where two autos were apprehended by PCR officials. He further stated that PCR FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 4/29 officials had also apprehended three persons whose name he did not remember. Witness identified accused Devender and Ravinder and stated that these were the persons who were apprehended by PCR officials alongwith autos in which chemical bags stolen from his godown were loaded. He identified the chemical bags as stolen bags from his godown. He further stated that all the three accused persons were arrested by the police; he handed over bills to the police to prove his ownership regarding chemical bags and bills are collectively Ex.P1. He further stated that 119 chemicals bags were stolen from his godown and all the chemicals bags were recovered from the possession of accused persons on the same night. Witness identified the chemical bags which are produced in the court and also photographs of the chemical bags Ex.P2.
6. During his cross examination by counsel for accused, he stated that on the night of incident, about 400 bags were kept in his godown. He stated that he has not submitted any specific proof to the police regarding number of chemical bags kept in his godown on the date of incident. He admitted that no records were being maintained regarding sale purchase of chemical bag. He stated that Anoop Kumar was labourer in his godown who used to stay in the godown and used to sleep on the roof of the godown. He stated that he used to visit his godown occasionally. He FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 5/29 stated that keys of the premises from where bags were stolen, were with the godown incharge. He stated that police officials had not completed any legal proceedings at the place of recovery of autos alongwith the material. He stated that he did not remember whether police officials have recorded his statement or not. He denied to the suggestion that accused had not committed theft in his godown. He denied to the suggestion that no chemical bags were stolen from his godown or that he is giving statement at the instance of police officials.
7. PW4 Ct. Bharat Singh deposed that on 04.05.2001 he along with HC Rajender were on emergency duty and at about 10:40 p.m, Ct. Om Prakash gave DD no. 36 and after receiving the said DD they went to village Prahladur, Kali Mata Mandir, where they met Chowkidar Anoop Singh and owner of the chemical godown and SI Parvinder Singh. He further stated that they saw the locks of the godowns were in broken condition, thereafter IO seized the broken lock and SI Parvinder Singh recorded the statement of chowkidar Anoop. He further stated that IO prepared a rukka and handed over the same to him for the registration of FIR, he went to PS and got the case registered and came back at the spot with original rukka and copy of FIR and handed over the same to the IO. He further stated that PCR officials of Sultan Puri called the IO SI FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 6/29 Parvinder Singh and told him regarding the apprehension of two TSRs with bags of chemicals and three boys at G Block, Sultanpuri where PCR officials handed over two TSRs out of which one TSR bearing registration no. HR38 C 1069 which was containing 61 bags of the chemicals and other TSR No. DL1C 5132 was containing 58 chemicals bags. He further stated that thereafter IO arrested the accused persons, recorded the disclosure statements of all accused persons, arrested the accused persons vide memos Ex. PW 4/A to Ex. PW 4/C respectively and conducted their personal search vide memos Ex. PW 4/D to Ex. PW 4/F respectively. He further stated that thereafter, IO recorded the statements of all the witnesses.
8. During his cross examination by counsel for accused, PW4 stated that they went to the spot on two wheeler whose registration number he did not remember. He further stated that nothing was found at the spot except the broken lock. He further stated that IO enquired about incident with owner about 1015 minutes thereafter he went to the PS for registration of the case. He further stated that some public persons employed in nearby factories were gathered there. He further stated that he did not remember whether statement was recorded of any public persons, who were gathered at the spot or not. He further stated that he FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 7/29 remained at PS for about 1520 minutes and thereafter he came back to the spot and in the meantime, PCR officials called to the IO regarding the apprehension of two TSR's with chemical bags upon which, they went to GBlock, Sultanpuri. He further stated that the owner and chowkidar of the godown were present with them. He further stated that the owner did not tell the quantity of the chemical bags but only told regarding theft of the chemical bags. He denied to the suggestion that he is deposing falsely or that accused persons have been falsely implicated in the present case.
9. PW5 HC Rajender Singh, deposed that on 0405.04.2001, he alongwith Ct. Bharat Singh were on emergency duty and on receipt of DD no. 36 regarding theft at village Prahlad Pur, Kali Mata Mandir, he alongwith Ct. Bharat went to village Prahladpur Kali Mata Mandir where they met SI Parvinder Singh, Anoop Kumar and Rishi Pal Gupta and they found that the locks of the chemical godown were broken. He further stated that thereafter, IO seized the broken locks vide seizure memo Ex. PW5/A. He further stated that SI Pravinder Singh recorded the statement of chowkidar namely Anoop Kumar and prepared rukka and handed over the same to Ct. Bharat Singh for getting the FIR registered who went to PS, got the FIR registered and returned back at the spot with copy of FIR and original rukka and handed over the same to IO SI Parvinder Singh. FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 8/29 He further stated that IO SI Parvinder Singh received information from PCR officials regarding apprehension of two Vikram TSR loaded with chemical bags and three boys at GBlock, Sultan Puri. He further stated that he alongwith IO/SI Parvinder Singh, Ct. Bharat Singh and Anoop Kumar reached at the spot where PCR officials handed over two TSR bearing no. DL 1C 5132 which contains 58 bags of chemical & HR 38C 1069 containing 61 bags of chemical alongwith one iron hamper and iron rod alongwith three accused persons namely Ravinder, Dheeraj (since expired) and Devender.
10. PW 5 HC Rajender Singh, deposed that thereafter, IO seized the case property and both the TSR vide seizure memo Ex. PW5/B. He further stated that thereafter, IO recorded the disclosure statement of accused persons which are Ex. PW5/C, Ex. PW5/D and Ex. PW5/E respectively and also recorded the supplementary disclosure statement of accused Dheeraj which is Ex. PW 5/F. He further stated that thereafter, accused persons pointed out towards the place where the theft was committed vide pointing out memo Ex. PW5/G. He further stated that IO arrested the accused vide arrest memo already Ex. PW4/A, Ex. PW4/B and Ex. PW4/ C and conducted their personal search vide memos already Ex. PW4/D, Ex. PW4/E and Ex. PW4/F respectively. He further stated FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 9/29 that they brought accused persons alongwith case property to PS and case property was deposited in malkhana. He further stated that accused persons were sent to lockup and IO recorded his statement. He further stated that on 19.05.2001, he again joined the investigation with SI Parvinder Singh and reached at Tis Hazari Court and after taking the permission of the court, accused Mahavir was interrogated and recorded his disclosure statement. He further stated that accused Mahavir was formally arrested. He further stated that the accused Mahabir pointed out the place of occurrence and in this regard a pointing out memo was prepared which is Ex. PW5/H.
11. PW6 HC Surender Kumar has deposed that on 11.05.2001 he alongwith SI Parmender went to Tis Hazari court to arrest the accused and after due permission of the court, IO interrogated the accused Mahavir in his presence and disclosure statement of accused Mahavir is Ex.PW6/A and arrest memo is Ex.PW6/B.
12. During his cross examination, PW6 stated that he did not remember whether the accused was produced in the court with muffled face. He sated that he did not remember regarding the proceedings of TIP. He denied to the suggestion that accused was not arrested in his presence. He admitted that nothing was recovered from accused Mahavir in his FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 10/29 presence.
13. PW7 HC Om Parkash deposed that on 05.04.2001 he was posted at P.P. Shahabad Dairy at P.S. Bawana as constable and at about 1.35a.m. (night) DD writer Ct. Abdul Shakur handed over him a copy of DD No.36 to deliver the same to IO HC Rajender. He further stated that he handed over the copy of DD to IO at near Chopal, S.B. Dairy and IO recorded his statement.
14. PW8 ASI Om Prakash deposed that on the intervening night of 0405.04.2001 at about 1.30a.m, he received a call about the theft at Godown near Rohit Chemical Factory near Kali Mandir and he reduced the information in the form and handed over the same to the wireless operator. He stated that concerned IO had not recorded his statement in his presence nor enquired from him. During his cross examination by Ld. APP for State, he stated that he did not remember whether the concerned IO met him with respect to present case due to the lapse of 10 years.
15. PW9 HC Virender Singh deposed that on 05.04.2001 he was posted at PCR as IC man and he was present alongwith his staff i.e. one gunman and driver near Jalebi Chowk Sultan Puri. He further stated that at about 3.00a.m, he received a call from the head quarter that two vehicles i.e. TSR covered body were loaded with stolen property i.e. Kattas of FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 11/29 chemicals which were stolen from Prahaladpur and were going towards Sultanpuri. He further stated that thereafter, they started checking the vehicles at GBlock, Sultanpuri and at about 3.30 a.m. two TSR reached there. They were signaled to stop, immediately two persons came out of the TSR and fled away from the spot and three persons were apprehended on the spot with the help of the staff. He further stated that on checking the two TSR bearing No. 5132 and 1068, it was found containing kattas of chemicals. He further stated that apprehended persons disclosed their names as Ravinder, Devender and Dhiraj. Witness identified accused Ravinder and Devender in the court. He further deposed that he informed about the apprehension of the accused through wireless and IO reached at the spot to whom he handed over the custody of the accused persons alongwith the two TSR.
16. During his cross examination by counsel for accused, PW9 stated that he apprehended accused Ravinder and Devender. He stated that he did not check any document of the TSR. He stated that he did not remember the brand/company of the chemical kattas loaded in the TSR. He denied to the suggestion that nothing was recovered from the possession of accused or that he did not joined the investigation or that accused have been falsely implicated in the present case or that he was FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 12/29 deposing falsely.
17. PW10 Sh. Anoop Singh deposed that during the year 2001 he was working as Security Guard at the Godown of Sh. Rishi Pal Gupta at village Prahalad Pur. He further stated that he used to sleep in the godown itself, however on the date of theft he went to sleep at the factory/ godown situated in front of their godown as there was no electricity at their godown and mosquitoes were creating trouble for him. He further stated that at about 1.00 a.m, he got up and noticed that the main shutter of their godown was opened which meant that someone had entered in the godown and he immediately informed the owner. He further stated that after about 12 hours, police arrived at the spot and recorded his statement. He further stated that he had not seen the thieves nor he can tell how much material was stolen from the godown. He further stated that he can not identify any of the accused present in the court.
18. The said witness PW10 Anoop Singh was cross examined by Ld. APP for State on the ground that he was resiling from his previous statement given to the police. During his cross examination, PW10 Anoop Singh stated that he can not say if the incident took place in the night of 0405.04.2001. He denied to the suggestion that he got up from the noise of three wheelers. He denied to the suggestion that when he checked he FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 13/29 found two Vikram tempos in the gali. He denied to the suggestion that he had seen the accused persons when they were sitting in the tempos. He also denied that he stated to the IO that he can identify them, if produced before him. He denied to the suggestion that on 05.04.2001, when accused persons were apprehended by the IO, he pointed out to the IO that these were the same persons whom he had seen in the night time outside their godown and who ran away from the spot in the said tempos. He denied to the suggestion that he is intentionally nor identifying the accused persons or deposing falsely.
19. PW11 HC Satish Kumar deposed that on the intervening night of 0405.04.2001 at about 1.45 AM, they received a wireless message that two TSRs red and green colour were coming to Sultan Puri from Prahalad Pur alongwith the stolen property. He further stated that at about 3.15 AM, two TSRs bearing No. DL 1LC 5132 and HR 38C 1069 were seen at G Block, Sultan Puri and both were stopped. He further stated that total 5 persons were found sitting in the said TSRs and three of them namely Dheeraj, Ravinder and Dharmender were apprehended at the spot and two managed to escape from the spot. He further stated that after some time, local police came at the spot and all the three persons along with case property were handed over to them. He identified accused Ravinder and FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 14/29 Devender in the court. Witness also identified accused Mahavir in the court who is stated to have been fled away from the spot. He further stated that total 119 kattas were found loaded in the said TSRs after sometime local police arrived at the spot and they handed over accused with case property to the IO.
20. During his cross examination, PW11 admitted that figure of 119 bags is not mentioned in his statement recorded u/s 161 Cr.P.C. He stated that he remember that there were 119 bags. He further stated that after handed over the accused persons and TSRs, they left the spot. He denied to the suggestion that he was not present at the spot or case property was planted upon the accused persons or that he was deposing falsely.
21. PW12 ASI Suresh who is stated to be on duty on the date of incident at PCR van alongwith HC Virender and Ct. Satish, also deposed on the similar lines as deposed by PW11 HC Satish Kumar regarding the apprehension of accused persons alongwith stolen chemical bags. He also identified accused persons in the court. During his cross examination by counsel for accused, he stated that he was inside the van when the accused were apprehended by the gunman and incharge, PCR van. He stated that accused Devender, Ravinder and Dhiraj were apprehended at the spot. He FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 15/29 stated that he had seen the chemical bags loaded in the TSR. He denied to the suggestion that he was not present at the spot or case property was planted upon the accused persons or that he was deposing falsely.
22. PW13 Inspector Parminder Singh deposed that on 05.04.2001 on receipt of DD No.36 Ex.PW13/A, he alongwith HC Rajinder and Ct. Bharat reached at the spot i.e. Chemical Godown, Prahladpur near Kali Mata Mandir. He further deposed that there he found that the Kunda and the lock of the shutter of the godown were broken. He further stated that he met the chowkidar Sh Anoop at the spot who informed that the godown belongs to one Rishipal Gupta and he recorded the statement of Sh. Anoop and made endorsement on the same which is Ex. PW13/A. He further stated that he handed over rukka to Ct. Bharat who got the FIR registered and he prepared the site plan Ex PW13/B and also seized the broken lock alongwith kunda vide seizure memo which is already Ex. PW5/A. He further deposed that on 5.04.2001 at about 3:30 am, on receipt of information that two TSR alongwith 3 persons have been apprehended by the PCR officials in the area of PS Sultanpuri, he alongwith HC Rajinder, Ct. Bharat, complainant Anoop and owner Rishipal reached Sultanpuri and met PCR officials who handed over him two TSRs bearing registration number DL1LC5132 and HR38C1069 loaded with stolen FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 16/29 bags. He stated that 58 bags were recovered from TSR bearing no. DL1LC5132 and 61 bags were recovered from TSR bearing no. HR38C1069 which were taken into possession with TSR vide seizure memo already Ex. PW5/B. He stated that he made enquiries from the accused persons and their names were later on revealed as Ravinder, Dheeraj and Devender. He stated that all the accused persons were arrested and their personal search was conducted vide separate arrest memos Ex. PW4/A to Ex. PW4/C and personal search memos Ex. PW4/D to Ex. PW4/F. He further stated that accused persons led him to the spot and pointing out memo was prepared which is Ex. PW5/G. He stated that he recorded the statement of all the witnesses.
23. PW13 Inspector Parminder Singh deposed that he obtained the documentary proof of case property from Rishipal Gupta on 08.04.2001 and he seized the same vide seizure memo Ex. PW13/C and the documents collectively are Ex PW13/D. He further stated that accused Mahavir surrendered before the court and after the permission of the court, accused Mahavir was arrested vide arrest memo already Ex. PW4/B. He further stated that when he was taking the accused, complainant Anoop met him at the court and Anoop identified the accused Mahavir.
24. During his cross examination, PW13 admitted that no recovery FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 17/29 of chemical bags was effected from accused Mahavir. He further admitted that the name of Mahvir was disclosed by accused persons in their disclosure statement. He further stated that no public person was present at the spot. He further deposed that there were residential houses at some distance. He deposed that he had not called the persons from the said houses to join the investigation as it was odd hours. He further deposed that he had made inquiries from the nearby persons of the godown regarding the incident. He stated that he had not seized stock register from the owner. He denied to the suggestion that no recovery was affected from the accused persons or no theft was taken place in the godown of Rishipal.
25. After prosecution witness statement of accused Ravinder, Devender and Mahavir were recorded u/s 313 Cr.P.C. Accused persons pleaded innocence and false implication in the present case. They stated that they were lifted from their houses and later on falsely implicated and arrested in the present case. They stated that nothing was recovered from their possession or at their instance. However, the accused persons opted not to lead any defence evidence.
26. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully. FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 18/29
27. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. It is well settled that the prosecution has to prove the guilt of the accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused are entitled to the benefit of every doubt occurring in the prosecution case.
28. In "Kali Ram Vs. State of Himachal Pradesh, MANU/SC/0121/1973", Hon'ble Supreme Court held as under:
"Para 26. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 19/29 that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt......"
29. In the presence case, accused Ravinder, Devender, Dhiraj and Mahavir were charged for offence u/s 457/380/34 IPC while accused Ravinder, Devender and Dhiraj were also charged for offence u/s 411 IPC. During the course of trial, accused Dhiraj was reportedly expired and vide order dated 17.10.2007 passed by Ld. Predecessor, proceedings against the accused Dhiraj was abated. In order to prove charges u/s 457/380/34 IPC against the remaining accused persons Ravinder, Devender and Mahavir, prosecution has to prove that on the intervening night of 0405.04.2001, all of them in furtherance of their common intention committed lurking house trespass by night in the factory of Rishi Pal Gupta and thereafter committed theft of chemical bags lying in the said factory.
30. In order to prove the charges u/s 457/380/34 IPC against the accused persons, Prosecution examined one eyewitness i.e. complainant PW10 Sh. Anoop Singh. He is the most material witness for the prosecution being the only eye witness who was stated to be present at the spot at the time of incident in question being the security guard employed in the said factory. The testimony of said witness is required to be scrutinized with greatest care and circumspection in order to arrive at the FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 20/29 conclusion whether the same is clear, cogent and reliable to bring home guilt of the accused in the present case. Being the only eye witness present at the spot at the time of alleged house trespass and theft, he could have identified the culprits who committed offence and also could have deposed about the incident and means of transport used by the culprits for transporting the stolen chemical bags. However, the said witness PW10 Anoop Singh failed to support prosecution case who stated that he had not seen the thieves and he can not identify any one of them. He also stated that he can not say if the incident took place in the night of 0405.04.2001. The said witness also did not utter anything in his examination in chief about the manner in which, incident in question occurred or about the means of transport used by culprits for transporting stolen chemical bags from the factory.
31. The said witness PW10 Anoop Singh was also cross examined by the Ld. APP for State, however, nothing material elicited from his cross examination which would bring home guilt of accused persons for offence u/s 457/380/34 IPC. Rather during his cross examination, PW10 Anoop Singh denied that he had seen the accused persons when they were sitting in the tempos. He also denied of stating to the IO that he can identify the culprits if produced before him. He denied that he got up from the noise of FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 21/29 three wheelers and when he checked, he found two Vikram tempos in the gali. He also denied that on 05.04.2001, when accused persons were apprehended by the IO, he pointed out to the IO that these were the same persons whom he had seen in the night time outside godown and who ran away from the spot. This became fatal to the prosecution case. The only eye witness of the incident in question failed to identify the accused persons in the court. Rather he denied of the identification of the accused persons by him on 05.04.2001 when they were apprehended by the IO.
32. There is even no test identification parade(TIP) of the accused persons is conducted in the present case to afford an opportunity to the complainant to identify them after the incident. The other witnesses cited by the prosecution are the witnesses of alleged recovery of chemical bags from the possession of accused persons. None of them had seen any of the accused committing house trespass by night in the factory to commit theft of chemical bags lying there. It is well settled that accused are entitled of benefit of every doubt occurring in the prosecution case. There is no cogent evidence available on record to prove that accused persons committed house trespass by night in the aforesaid factory in the intervening night of 0405.04.2001 or committed theft of chemical bags lying in the said factory. Material available on record is not sufficient to FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 22/29 record finding of guilt of accused persons Ravinder, Devender and Mahavir for the offences u/s 457/380/34 IPC in the present case.
33. Accused Mahavir has not been charged for offence u/s 411 IPC. Even otherwise, there is no recovery of any stolen chemical bags effected from his possession. Accused Mahavir stated to have fled away from the spot when other three accused namely Ravinder, Devender and Dhiraj were allegedly apprehended in the late night along with stolen chemical bags. Accused Mahavir was not even subjected to TIP proceedings by the PCR officials and his identification by the PWs i.e. PCR officials for the first time in the Court without prior TIP is also not sufficient to bring home guilt of accused Mahavir in the present case.
34. It has transpired from the testimony of prosecution witnesses that accused Ravinder, Devender and Dhiraj were apprehended by PCR officials on 05.04.2001 with stolen chemical bags. Proceedings against the accused Dhiraj has been abated after his death. So far as, Charges for offence u/s 411 IPC against the accused namely Ravinder and Devender are concerned, there is sufficient evidence available on record to prove that aforesaid accused persons were found in possession of stolen chemical bags on 05.04.2001, which belonged to factory owner Rishi Pal Gupta. PW3 Rishi Pal Gupta identified accused Ravinder and Devender FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 23/29 and deposed that these were the same persons who were apprehended by the PCR officials alongwith autos in which chemical bags stolen from his godown were loaded. He also identified his chemical bags recovered from the possession of said accused persons. PW4 Ct. Bharat, PW5 HC Rajender Singh and IO PW13 Inspector Parminder Singh who went at the spot where accused Devender, Ravinder and Dhiraj (since expired) were apprehended by PCR officials alongwith stolen chemical bags loaded in two autos, deposed regarding the police proceedings i.e. seizure of case property i.e stolen chemical bags loaded in two TSRs bearing no. HR 38C 1069 and DL1C 5132, vide seizure memo Ex. PW5/B, from the possession of accused Ravinder and Devender, arrest of accused persons vide arrest memo Ex. PW4/A to Ex. PW4/C, their personal search and other police proceedings.
35. Prosecution also got examined PCR officials i.e PW 9 HC Virender Singh, PW11 HC Satish Kumar and PW12 ASI Suresh who categorically deposed regarding the apprehension of accused persons namely Ravinder and Devender alongwith stolen chemical bags which were loaded in two autos TSRs bearing no. DL 1C 5132 and HR 38 C 1069. On the basis of the evidence available on record, recovery of stolen chemical bags is duly proved from the possession of accused Devender FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 24/29 and Ravinder. There is presumption u/s 114 (a) of Indian Evidence Act and accused Devender Kumar and Ravinder have failed to account for their possession of the recovered stolen chemical bags. Hence it is proved beyond doubt that accused Ravinder and Devender Kumar were found in possession of stolen chemical bags which they retained knowing or having reason to believe the same to be stolen property. Therefore, charge u/s 411 IPC against the accused Ravinder and Devender Kumar are duly proved by prosecution beyond any reasonable doubt.
36. In the backdrop of forgoing discussion, accused Ravinder, Devender Kumar and Mahavir are acquitted of the offences u/s. 457/380/34 IPC. As prosecution successfully proved charge u/s 411 IPC against the accused Ravinder and Devender Kumar beyond any reasonable doubt, therefore, I hereby hold the accused Ravinder and Devender Kumar guilty for the offence u/s. 411 IPC and convict them for the offence u/s 411 IPC. Order on sentence shall be announced after hearing the accused persons.
Announced in open court (SACHIN GUPTA)
on 10th day of February, 2016 MM5/North/Rohini Courts
Delhi,10.02.2016
FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 25/29
IN THE COURT OF SH. SACHIN GUPTA
METROPOLITAN MAGISTRATE05(NORTH),
ROHINI COURTS,DELHI
State Vs. Ravinder & Ors.
FIR No. 119/01
PS. Bawana
U/s. 380/457/411/34 IPC
Case ID No. 02401R0110542001
ORDER ON SENTENCE
10.02.2016 At 2.00PM
Present: Ld APP for State.
Convicts Ravinder and Devender Kumar with Ld.
Counsel Sh. Manish Malik.
1. Arguments on the point of sentence heard. Record perused. It is argued by the Counsel for the convicts that the convict Ravinder is a young man of 40 years of age who is having family to support consisting of his wife, three minor children and widow mother and he is the sole bread earner in his family. It is further stated that the convict Devender is a young man of 35 years of age who is having family to support consisting of his wife, three minor daughters and old aged parents and he is the sole bread earner in his family. It is further stated that convicts are remorseful FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 26/29 who undertake not to repeat the offence in future and wish to become good citizen. Counsel for convicts further argued that both the convicts have clean past antecedents who never involved in any other criminal case in the past and this is the only case against them. It is further stated that accused Ravinder already remained in judicial custody in the present case during the course of investigation/trial from 05.04.2001 to 19.09.2001, for a period of five months and 14 days, while accused Devender Kumar already remained in judicial custody in the present case during the course of investigation/trial from 05.04.2001 to 15.05.2001, for a period of one month and 10 days. It is further stated that sentencing convicts for further imprisonment will ruin their carrier and family life with request to take lenient view against the convicts.
2. It is submitted by the Ld. APP for state that accused Ravainder and Devender Kumar have been convicted for offence 411 IPC and convicts must be subject to maximum punishment. It is further stated that as per records, accused Ravinder remained in judicial custody in the present case during the course of investigation/trial from 05.04.2001 to 19.09.2001, for a period of five months and 14 days, and accused Devender Kumar remained in judicial custody in the present case during the course of investigation/trial from 05.04.2001 to 15.05.2001, for a FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 27/29 period of one month and 10 days.
3. I have heard both the parties and perused the record. In the present case, accused Ravinder and Devender Kumar have been convicted for offence u/s. 411 IPC. Both the convicts are stated to be young persons who are having family to support consisting of minor children and convicts are stated to be the sole bread earners in their families respectively. There is no previous involvement of the convicts in any other case is brought on record. Both the convicts have shown zeal to become good person in life. Keeping in view totality of circumstances and submissions made by Ld. APP for State and Ld. counsel for convicts, convict Ravinder is sentenced to imprisonment for the period already undergone by him in judicial custody in the present case and also sentenced to pay fine of Rs. 5,000/ for the offence U/s. 411 IPC. In default of payment of fine, convict to further undergo simple imprisonment for three month. Convict Devender Kumar is also sentenced to imprisonment for the period already undergone by him in judicial custody in the present case and also sentenced to pay fine of Rs. 5,000/ for the offence U/s. 411 IPC. In default of payment of fine, convict to further undergo simple imprisonment for three month. Benefit of section 428 Cr.P.C is given to the convicts. Both the convicts deposited FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 28/29 fine amount of Rs. 5,000/ each.
File be consigned to Record Room after due compliance. Copy of Judgment and order on sentence be provided to the convict free of cost.
Announced in open court (SACHIN GUPTA)
on 10th day of February, 2016 Metropolitan Magistrate 05
North District/Rohini Courts, Delhi
10.02.2016
FIR No. 119/01 PS Bawana State Vs. Ravinder & Ors. 29/29