Delhi District Court
State vs Dharmender Kumar on 8 May, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presided over by - Ms. Medha Arya, DJS
Cr. Case No. : 2034374/2016
FIR No. : 390/2009
Police Station : Saket
Section(s) : 457/380/411/34 IPC
In the matter of -
STATE
Vs.
i) Ravinder Rana
S/o Sh. Chatar Singh
R/o Village Tinha, Post Balkurupi
PS Lamba Village, Tehsil Jaisinghpur
District Kangra (HP)
ii) Mithilesh Kumar Yadav @ Mithun
S/o Sh. Subhit Yadav @ Suresh Yadav
R/o Village Miliki Jurari,
Post Mushkipur, Asarganj
PS Tarapur, District Munger (Bihar) .... Accused
1. Name of Complainant : Sh. Vipin Kumar Tiwari
i) Accused Dharmender
was declared PO
2. Name of Accused : ii) Ravinder Rana
iii) Mithilesh Kumar Yadav
@ Mithun
3. Offence complained of or proved : 457/380/411/34 IPC
4. Plea of Accused : Not guilty
th
5. Date of commission of offence : Intervening night of 16 &
State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 1 of 42
17th November 2009
6. Date of Filing of case : 02.03.2010
7. Date of Reserving Order : 19.03.2025
8. Date of Pronouncement : 08.05.2025
Accused Mithilesh kumar
9. Final Order : Yadav and Ravinder Rana
are acquitted
Argued by - Ld. APP for the State.
Ld. Counsel for both accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION
FACTUAL MATRIX -
"(After counsel produce conflicting accounts) Judge: Am I never to hear the truth?
Counsel: No my lord, merely the evidence."
The prosecution alleged that the accused, in conspiracy with each other, committed a heist in the office of victim company. However, neither cogent direct nor circumstantial evidence was brought on record by it to support its case. As such, the accused are acquitted of the charges levelled against them.
1. In the intervening night of 16th & 17th November 2009, at the office of Ahluwalia Contracts (India) Limited, a theft of a sum of Rs.2.45 crores took place, which was discovered in the next morning by one of the security guards, Mr. Vijay Singh, who duly informed Mr. Vipin Kumar Tiwari of the fact that the thieves had broken the door of the first floor as well as the door of the Accounts Department and the lockers to commit the theft. The CCTV cameras at the basement as well as the first floor of the office of Ahluwalia State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 2 of 42Contracts (India) Ltd. were also found to be broken. Complaint reporting the theft was made at the PS concerned by Mr. Vipin Kumar Tiwari on 17.11.2009, after which the subject FIR was registered, and investigation into the offence commenced. Investigation was marked to IO SI Gagan Bhaskar, who visited the spot of the incident, prepared the site plan, and called the crime team, which lifted chance prints from the spot of crime. The investigation was then taken over by IO SI Parveen Kumar. During the course of investigation, special staff of West District arrested accused Dharmender and CCL "K" on 02.01.2010, and some cash as well as jewellery and property papers etc. connected with the offence were allegedly recovered from them. Both of the aforesaid were formally arrested with respect to the subject FIR on 03.01.2010, and their PC remand was obtained. On the basis of the disclosure statements of the aforesaid Dharmender and CCL "K", accused Sushil Thakur and Ravinder Rana were also arrested on 10.01.2010. During interrogation, it came to fore that accused Dharmender used to work as a guard at M-1, Saket office of the complainant company, and was aware that huge cash transactions used to take place at its office, and he also knew of the place where the cash used to be kept. It also came to fore that he discussed the said fact with his accomplices accused Mithilesh kumar and Sushil Thakur, and all of them together hatched a plan to commit a theft at the office. Accused Sushil Thakur also disclosed these facts to accused Ravinder Rana, and included him in the plan. CCL "K" also became a part of the conspiracy, while he was still a juvenile. The conspiracy was accordingly acted upon in the intervening night of 16th & 17th November 2009, when accused Dharmender, Mithilesh, Sushil, and Ravinder Rana went to M-1, Saket in a State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 3 of 42WagonR Taxi bearing registration no. DL1T6682, owned by accused Sushil Thakur, and committed the crime alleged. Thereafter, all of them came back to the accommodation of Sushil Thakur at RK Puram, and distributed the looted amount amongst themselves by dividing the money in four equal parts, though without actually counting it. Later, accused Dharmender, Sushil Thakur, and Ravinder Rana found themselves to be in possession of Rs.45.00 lakh each approximately. Since CCL "K" also knew of the plan, he received Rs.1.09 lakh from Sushil Thakur, and Rs.1.00 lakh from accused Mithilesh Kumar. Cash to the tune of Rs.14.05 lakh, 3 FDRs of Rs.1.00 lakh each in the name of accused Sushil, his wife Meena, and his son Rajneesh, papers of a plot of land being an apple orchard amounting to Rs.15.00 lakh, and jewellery purchased out of the stolen money were recovered from accused Sushil Thakur. Cash amounting to Rs.31.05 lakh, one FDR of Rs.1.00 lakh, and some jewellery was recovered from accused Ravinder Rana. Cash amounting to Rs.29.26 lakh, papers of a house purchased for a sum of Rs.8.37 lakh in Agra, UP, and a sum of Rs.45,500/- which were deposited by him in his bank account were recovered from accused Dharmender, besides an Activa scooty, which he had purchased for around Rs.45,000/- after the alleged incident. Rs.60,000/- in cash were recovered at the instance of CCL "K" out of the stolen money. The fingerprints of all the accused persons were taken and were sent ahead for forensic examination, and in the meanwhile, the subject charge sheet was filed against the accused persons for the offences punishable u/s 457/380/411/34 Indian Penal Code, 1860 (hereinafter, the "IPC").
2. Cognizance of the offences as disclosed in the charge sheet was State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 4 of 42taken, and the accused were summoned to face trial. Copy of the charge sheet was supplied to them in compliance of Section 207 CrPC. Thereafter, formal charge for the offences punishable u/s 457/380/411/34 IPC was framed against them. All the accused pleaded not guilty thereto, and claimed trial.
3. Subsequently, a supplementary charge sheet was filed after accused Mithilesh Rana was also apprehended. As per the same, accused Mithilesh Rana had received Rs.80.00 lakhs out of the stolen money, and he had disclosed these facts to his father Sujit Yadav and his brothers Naveen Yadav and Parveen Yadav. It is the case of prosecution that accused Mithilesh Rana used this stolen money to purchase some land in Village Banka in his name and his father's name, and after retaining Rs.2.00 lakhs with him, gave the remaining amount to his father. It is the case of prosecution that he also purchased two motorcycles and built a house at their Village Milkhi, Jurari, out of the looted amount, gave Rs.3.00 lakh to his brother Parveen, who also built a room at his Village Milki Jurari with the aforesaid sum, gave Rs.1.00 lakh to his brother Naveen, who purchased an old motorcycle with it, and also used a part of the money to repair his house in Delhi. PC remand of accused Mithilesh was also obtained, and during the same, a life insurance policy's proposal receipt for a sum of Rs.15,000/- as well as documents of two motorcycles, one in the name of accused himself and the other in the name of Manoj Yadav, the brother-in- law of his brother Parveen, were recovered from him. As per the case of prosecution, the motorcycles were purchased on cash payment of Rs.62,250/- and Rs.44,350/- respectively, which cash amount was a part of State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 5 of 42the stolen money. Investigation revealed that these motorcycles were picked up as unclaimed from near accused Mihilesh's house on 04.06.2010 by the local police of Tarapur police station vide DD no. 65.
4. Subsequent to the filing of the charge sheets, the report of FSL regarding the fingerprint examination of the chance prints lifted from the spot also came to be filed, as per which one of the chance prints lifted from the scene of crime was found to be identical with the right thumb impression of suspect Rajkishore Singh S/o Bindeshwar Singh, and the remaining chance prints were found to be unfit for comparison style search, being partial and smudged. Pertinently, no efforts were made to trace the said suspect, for reasons best known to the Investigation Officer(s).
5. After the apprehension of accused Mithilesh, charge for the offence punishable u/s 457/380/411/34 IPC was framed against the said accused as well, and he also pleaded not guilty thereto and claimed trial. Thereafter, proceedings progressed to the stage of recording of PE.
6. At the stage of PE, the prosecution has examined 24 witnesses:
PW Name of PW Nature of Testimony
PW1 Sh. Harlal Meena He proved the account statement of
(Branch Manager, account bearing no. 1262035812 of
Central Bank of India, accused Dharmender, being Ex PW1/A, Belanganj) as well as the attested copy thereof, Ex PW1/B. He deposed that the accused had State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 6 of 42 deposited Rs.45,000/- in his bank
account on 19.12.2009.
PW2 Ct. Mahipal Singh He testified that the DO had handed over
(Formal witness) to him the copy of the subject FIR as well as rukka, and he had brought over the same to IO SI Gagan Bhaskar at the spot. He testified that the IO had made the site plan in his presence, and had also called the crime team to the spot in his presence.
PW3 Pawan Kumar He proved the invoice bearing number 0109IN01249 Ex PW3/A, vide which one Honda Activa scooter, black in colour, was sold to Dharmender Kumar on 22.12.2009, the insurance policy of the said vehicle Mark X1, and the copy of the registration number of the above vehicle, Mark X2. He deposed that the accused had submitted the copy of the registry and copy of central bank account passbook as a proof of his residence, being Mark X3 and X4 respectively.
PW4 Vipin Kumar Tiwari He testified that he was an employee of (Complainant) M/s Ahluwalia Contracts (India) Ltd. He testified qua the facts of the case leading State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 7 of 42to the discovery of the theft, as per the prosecution story. He also proved his complaints dated 17.11.2009 and 18.11.2009, Ex PW4/A and Ex PW4/B respectively. He also proved the certificate of the Chartered Accountant of the complainant company regarding the computation of cash amount, Ex PW4/C. He proved the copy of the cash book Y1 to Y 12, as well as documents pertaining to employment of accused Dharmender with the company, Y 13-Y 16. The witness also relied upon the computerized output of cash book of the company for the period 1.11.2009- 17.11.2009 Ex PW4/F1 to F9, and the certified copy of the account statement of the company's account Ex PW4/H in his testimony.
PW5 Pankaj Saxena He proved the copy of the Sale Deed of (Registration Clerk, the land bearing no. 42A, Basera Sub Register-1, Agra, Enclave, Mauja Jaganpur, Agra, which UP) was registered on 18.12.2000 in the name of Smt. Sunita Devi, wife of accused Dharmender Kumar for a consideration of Rs.8.35 lakh, Ex PW5/A1 to A14, and State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 8 of 42thumb impression register, Ex PW5/A15 and A16 (OSR).
PW6 Ct. Giriraj He proved the registration of the subject (Duty Officer) FIREx PW6/A, as well as the endorsement made on the rukka, Ex PW6/B. PW7 ASI Ved Prakash He testified that he was part of the raiding team and arrested accused Dharmender and CCL "K" on 02.01.2010. He proved the disclosure statement of accused Dharmender, Ex PW7/A and the disclosure statement of CCL "K", Mark X. He also proved the seizure memo Ex PW7/B and PW7/C of the cash as well as gold articles and bank account, and passbook of Central Bank of India recovered from the house of accused Dharmender. He proved the arrest memo of the accused Ex PW7/E, as well as his personal search memo Ex PW7/F, and the arrest memo of CCL "K"
Mark A2.
PW8 Navinder Singh He proved the Sale Deed w.r.t. property (Registration Clerk, bearing Khasra no. 725/12063135, and Sub-Registrar Office, deposed that as per the sale deed register State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 9 of 42
Kullu, Himachal Ex PW8/A, the same was purchased by
Pradesh) Sushil Kumar on 02.01.2010.
PW9 Devraj He proved the revenue record of Hadbast
(Patwari, Settlement number 25 of 47/2001 at serial/khata no. Sultanpur, Kullu) 725, Khatauni 1206, Ex PW9/8.
PW10 Inspector Dalip Kumar He proved the arrest of accused Sushil Kumar Thakur from his residence at H. no. 1032, Sector 2, RK Puram vide arrest memo Ex PW10/A. His personal search memo Ex PW10/B, and his disclosure statement Ex PW10/C. He testified that Rs.5.00 lakh was recovered from the accused in the denomination of Rs. 500/-
seized vide seizure memo Ex PW10/D. He also testified that at the instance of accused Dharmender and accused Sushil Kumar, accused Ravinder was also arrested vide arrest memo Ex PW10/E. He approved the personal search memo as well as the disclosure statement of the said accused, being Ex PW10/F and PW10/G. He also testified that one bag containing Rs.10.00 lakh having currency notes of Rs.1000 each was recovered from the said accused, which was seized vide seizure memo Ex PW10/H. He also State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 10 of 42testified that on 15.01.2010, at the instance of accused Sushil Thakur, some jewellery and three FDRs of Rs.1.00 lakh each were also recovered, which were seized vide seizure memo Ex PW10/J, and cash of Rs.9.05 lakh was also seized vide seizure memo Ex PW10/K. He also proved the seizure memo Ex PW10/L regarding the recovery of jewellery from the house of accused Ravinder Rana as well as an FDR of Rs.1.00 lakh, and cash of Rs.21.05 lakh, which was seized vide seizure memo Ex PW10/M. He testified that he also seized the taxi bearing registration no. DL1T6682 vide seizure memo Ex PW10/N. PW11 SI Charan Singh He testified that he was also part of the raiding team that had apprehended accused Dharmender and CCL "K" on 02.01.2010. He testified that Ex PW11/1 and Ex PW11/2 is the original passbook of Central Bank of India in the name of accused Dharmender, and the original papers in the name of his wife Sunita respectively, which were recovered from his house. He also identified Ex PW11/3 State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 11 of 42(colly) to be the gold articles that were recovered from accused Dharmender at his instance.
PW12 ASI Devender He testified that on receipt of information that accused Dharmender and CCL "K"
had been arrested by the special staff of West District under DD no. 5A on 02.01.2010. He deposed that he, along with IO SI Praveen, reached the spot and the IO arrested accused Dharmender vide arrest memo Ex PW11/A in his presence.
He also proved the seizure memo Mark X11/1 by which a sum of Rs.50,000/-
was recovered from Kalu Sarai at the instance of CCL "K". The seizure memo Ex PW11/B vide which accused Dharmender had withdrawn a sum of Rs.45,500/- from his bank account and seizure memo Ex PW11/C vide which one scooty which accused Dharmender allegedly purchased out of the looted amount was recovered. The witness also proved the documents Ex P1, P2, P3, P4 being the original delivery chalan and money receipt in the name of accused Mithilesh Kumar, retail invoice of State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 12 of 42vehicle in his name, sales certificate, as well as delivery chalan/money receipt in the name of Manoj Kumar/the brother-in-
law of accused Mithilesh.
PW13 ASI Ravinder He testified that he was part of the raiding party that had gone to Kullu Tehsil and collected the documents by which accused Sushil Kumar Thakur had purchased a plot of land with the stolen money. He also testified that in his presence an amount of Rs.21.05 lakh was recovered from the possession of accused Ravinder Rana by SI Dilip Kumar. He also testified that SI Dilip Kumar recovered one small jewellery pouch containing one golden colour gents chain bearing no. 916 and one gold colour bracelet bearing stamp of KDM, one golden lady's ring, and one FD of Rs.1.00 lakh. He testified that the aforesaid were seized by the IO vide seizure memos Ex PW10/A and Ex PW10/M. He also testified that in his presence, the IO recovered Rs.9.05 lakh from the house of accused Sushil Kumar Thakur situated at District Kangra, HP. He also approved State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 13 of 42the seizure memos Ex PW10/J and PW10/K vide which the IO seized one maroon and cream color golden jewellery pouch containing one golden color gents chain bearing 916 no., one golden bracelet of bearing stamp of KDM, one golden color ladies set consisting of one necklace and earrings, two FDRs of Rs.1.00 lakh each, in the name of accused Sushil Kumar and his son, Rajesh Sepahia. He also proved the seizure memo Ex PW10/N vide which the WagonR car bearing no. DL1T6682 was recovered by the IO at the instance of accused Sushil Kumar Thakur. He also testified that IO SI Jitender had apprehended accused Mithilesh Rana on 06.06.2010 in his presence at the tip of secret informer from Shardanand Colony, Bhalaswa Dairy, Delhi.
PW14 ASI Pradeep Kumar He testified regarding the arrest and personal search of accused Sushil Kumar from his residence by IO SI Dilip, in his presence vide memos Ex PW10/A and Ex PW10/B, and recording of his disclosure statement Ex PW10/C by the IO State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 14 of 42subsequently. He also proved the seizure memo Ex PW10/D regarding the money that was recovered from the house of accused Sushil. He also proved that SI Dilip then arrested accused Ravinder Rana upon the pointing out of accused Sushil vide arrest memo Ex PW10/E. He testified that his personal search was conducted vide memo Ex PW10/F and his disclosure statement Ex PW10/G was then recorded by the IO. He also proved the seizure memo Ex PW10/H by which the sum of Rs.10.00 lakh was recovered from the house of accused Ravinder Rana.
PW15 Retired SI Veerpal He testified that he was also part of the Singh raiding party that had arrested accused Dharmender and CCL "K". In his testimony, he relied upon the disclosure statement Ex PW7/A and Mark X of the accused as well as their personal search and arrest memos Ex PW7/E and Ex PW7/F, and Mark A2 and A3 respectively. He also proved the seizure memo Ex PW7/B and Ex PW7/C vide which the cash as well as jewellery State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 15 of 42articles, documents of land and pass book, etc. were seized from accused Dharmender. He also proved the pointing out memo Ex PW7/D as per which the accused had pointed out the place from where they had committed the theft.
PW16 SI Jitendra Kashyap He testified that he arrested and personally searched accused Mithilesh Kumar Yadav vide memos Ex PW 15/A and 15/B, and recorded his disclosure statement vide memo Ex PW15/C. PW17 Deepak Kumar He testified that he had sold a motorcycle Mandal bearing registration no. BR10K1362 of the make Hero Honda CBZ Extreme for a sum of Rs.62,150/- to accused Mithilesh Kumar. He proved the delivery chalan dated 04.12.2009, retail invoice no. 405 dated 06.12.2009 and sales certificate dated 06.122009 Ex PW16/A (Colly), the copy of RC of the motorcycle Ex PW16/B (OSR) and insurance cover of the motorcycle Ex PW16/C. He also proved the receipts of payment of road tax of the vehicle, Mark X1 (Colly). He also testified that he sold a motorcycle of the make Splendor NXG State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 16 of 42to Manoj Kumar Yadav for a sum of Rs.44,350/-, and the delivery challan thereof is Ex PW16/D. PW18 Rajendra Prasad Singh He proved the RC register Ex PW17/A, (Record Clerk, as per which accused Mithilesh Kumar is Bhagalpur Transport the owner of bike bearing registration no. Authority, Bihar) BR10K1362.
PW19 Abhay Ranjan Jha, He proved the documents Ex PW18/B Senior UDC, District (Colly) to 18/D (Colly) pertaining to Registry Office, letter no. 343 dated 11.06.2010 issued by Banka, Bihar District Sub-Registrar, Banka, Ex PW18/A (OSR).
PW20 Raju Bose, Assistant He proved the clarification letter Ex Manager, M/s Golden PW19/B as well as the receipt Ex 19/C, Enterprises as per which the insurance charge of Rs.10,000/- was paid by accused Mitesh Kumar to Bajaj Alliance Life Insurance Company.
PW21 Inspector Gagan He proved the site plan Ex PW4/D and
Bhaskar the complaint Ex PW4/B regarding the
alleged incident of theft of Rs.2.45 crore.
PW22 Inspector Praveen IO. He supported the prosecution version
Kumar qua the apprehension of the accused
(NHRC, Delhi) persons, and the recoveries effected from
them.
State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 17 of 42
PW23 Sikander Paswan He proved the conveyance documents Ex
(Record Keeper, Sub- PW22/B to Ex PW22/D (OSR)
Registrar Office, pertaining to the property purchased by Banka, District Banka, accused Mithilesh Yadav on 30.12.2009.
Bihar)
PW24 ASI Arvind Kumar He proved the original register
Soren containing police station diary entry for
the period 16.05.2010 to 15.07.2010
containing application made by SI
Praveen Kumar, police official of PS
Saket, New Delhi to SHO PS Tarapur
regarding his arrival and departure report,
and record of DD no. 65B dated
04.06.2010 regarding deposition of
motorcycle bearing engine no.
HAXXX00418 in Malkhana, PS,
Tarapur. Application dated 04.06.2010
and entry no. 65B dated 04.06.2010 were
also proved by him, being Ex PW23/A
(OSR) and Ex PW23/B (OSR).
PW25 Himanshu Aggarwal He proved the insurance policy of the
(Assistant Manager, vehicle purchased by accused Mithilesh National Insurance Co. Kumar, Ex PW16/C. Ltd.)
7. No other witnesses were examined by the prosecution, and PE was State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 18 of 42closed thereafter. Pertinently, during the pendency of trial, accused Dharmender was declared an absconder, and accused Sushil Thakur expired. Trial continued qua the remaining two accused.
8. In order to accord an opportunity to accused Mithilesh Kumar and Ravinder Rana to explain the incriminating circumstances appearing against them at trial, their statements were recorded u/s 313 CrPC. Both the accused denied their involvement in the case. They denied the recovery of cash amounts from them. They stated that the recovery of jewellery or other articles that were affected from them respectively were of properties of which they were the rightful owners, and they have no complicity in the offence as alleged. Both of them stated that they have been falsely implicated in the case. Upon specific query, both of them opted not to lead DE in the affirmative. Proceedings then progressed to the stage of final arguments.
9. Final arguments heard. Record perused. Considered.
10. The prosecution has alleged commission of offences punishable u/s 457/380/34 against the accused. Section 457 IPC provides for the offence of lurking house trespass, or house breaking by night, for the purpose of committing an offence. It provides for a punishment of five years and fine, and also provides that if the intended offence for the purpose of which house. Breaking is committed is theft, the term of imprisonment can extend to fourteen years. Section 380 IPC provides for an aggravated form of offence of theft, when it is committed in a dwelling house, or a building used for safe custody of a property. Section 34 IPC makes a person acting in State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 19 of 42concert with another liable jointly for the offence, which was done in furtherance of common intention of the accused persons. In the alternate, the accused have also been charged for the offence punishable u/s 411 IPC, which provides for the offence of receiving or retaining stolen property, with the knowledge that it is stolen. The element of knowledge regarding the property being stolen is a sine-qua-non for the offence, as is the dishonest intention of the person retaining such property. Further, there is no gainsaying that a person can either be charged for stealing a property, or for retaining it. The charge for offence punishable u/s 411 IPC was thus framed in the alternate against the accused persons.
11. The proceedings instant were set in motion on the basis of complaint of Vipin Kumar Tiwari, and as such his testimony shall be scrutinized first. In his testimony, he stated that he was employed with M/s Ahluwalia Contracts (India) Ltd. and he was informed of the theft in the morning of 17.11.2009. He stated that when he reached the office, he found that the entry door as well as the door of the account branch and lockers were all broken. He testified that he then informed the same to his CMD, Vikramjeet Aluwalia. He stated that he found that CCTV cameras installed at the basement as well as the first floor were also broken, and one door of the basement was also found to be damaged. He stated that he gave his complaint Ex PW4/A to the police officials as also the copy of the certificate issued by CA Sunil K Gupta and Associates being Ex PW4/C, along with cash account books for the relevant period, Mark Y1 to Y8 and Y9 to Y12. He testified that accused Dharmender used to work as a security guard at the office of M/s Ahluwalia Contracts (India) Ltd., and he was State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 20 of 42hired through M/s Scanner India Group. He stated that he had pointed out the place of theft to the police as well, and the site plan Ex PW4/D was prepared at his instance. He stated that the cash that was recovered from various accused was released on the application Ex PW4/E, which also bears his signatures at point A. He also proved the certified copy of the account statement of M/s Ahluwalia Contracts (India) Ltd. for the period 01.11.2009 to 21.11.2009 Ex PW4/H. In his entire examination in chief, the witness nowhere stated that he had in any manner witnessed the theft himself, or that he was told by any other guard who was posted around the office of M/s Ahluwalia Contracts (India) Ltd. that accused Dharmender who was also posted as a guard at the same place, was in any way responsible for committing the theft. While he stated that a sum of Rs.2.45 crore had been stolen from the office, he did not mention the denomination of the currency notes which were so stolen. No evidence to this effect came on record. In his cross examination, the witness testified that he had given the particulars of the two guards who were on duty in the intervening night of 16-17.11.2009 when the alleged incident had taken place. It is a matter of record that the said two guards were never examined by the prosecution on record. This is a gap in the case of prosecution. Moving ahead, the witness also stated that there is only one main gate for entrance to the building, and a guard was deployed at the said gate. He also testified that there are two other gates, but they are always closed, and no people can enter the building from the said gates. From the testimony of the witness, it is amply clear that the accused could have entered the building through the said gates only, and in this context, the non-examination of the guards so deployed at the building is a material dent in the case of prosecution. Be that as it may, from State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 21 of 42the testimony of PW4, the prosecution could at best establish that a theft of Rs.2.45 had taken place from the office of the company. However, the testimony of the witness does not in any manner establish that the accused were complicit in commission of the side offence.
12. Scrutiny of the evidence led by the prosecution on the record shows that the prosecution has not been able to bring on record any direct evidence against the accused persons. That is to say, the prosecution has not examined any eyewitnesses to the alleged incident. As discussed above, PW1 is not an eye-witness, and potential witnesses such as the guards on duty on the day of incident have not been examined. No other eye-witnesses have been traced either. Further, no evidence such as the CDR or CAF details of the accused persons showing their presence at the spot of the incident has also been brought on record by the prosecution. The report of the fingerprint expert also shows that none of the fingerprints could be found tallying with the fingerprints of the accused persons. In fact, as per the record, the chance print lifted from the spot of the incident matches that of one of the suspects mentioned along with the list, but whether any investigation at all was carried out with the said suspect is also not clear
13. Now, it shall be examined if the prosecution has been able to prove its case against the accused persons on the basis of circumstantial evidence. The principles qua appreciation of circumstantial evidence have been enunciated by the Hon'ble Apex Court in the landmark judgment titled Sharad Birdhi Chand Sarda vs State of Maharashtra, 1984 AIR 1622, State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 22 of 42"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
14. With the aforesaid principles in mind, the remaining evidence led on record by the prosecution shall be examined. Qua accused Dharmender, PW1 Harlal Meena from Central Bank of India proved the bank account statement of accused Dharmender. PW3 Pawan Kumar proved that accused Dharmender had purchased a Honda Activa two wheeler scooter on 22.12.2009 from M/s Shri Masha Autos. In his cross examination, the witness testified that the accused had made a payment of Rs.41,500/- in cash towards the sale consideration of the vehicle as well as the insurance policy that he had purchased along with the vehicle.PW5 Pankaj Saxena from the office of Sub-Register, Agra, UP testified that as per the record being the copy of the sale deed Ex PW5/A1 to A14 and the thumb impression register Ex PW5/A15 to and A16, the wife of accused Sunita Devi had purchased a plot of land and measuring 100 square yards for a total consideration of Rs.8.35 lakh on 18.12.2009. The said witness was not cross examined by accused Dharmender, who had already been declared a PO by the time the witness was examined.
FIR No. 390/2009, PS: Saket Page 23 of 4215. PW7 ASI Ved Prakash and PW14 Retired ASI Veerpal Singh both testified, in tandem with each other, that they were part of the raiding party which had apprehended accused Dharmender as well as the CCL 'K' on 02.01.2010. Both of them testified that after the aforesaid two were arrested and their disclosure statements were recorded, a sum of Rs.29.26 lakh in cash was recovered from accused Dharmender, besides some gold jewellery as well as his bank passbook and documents of a plot purchased by him in the name of his wife at Agra. Both of them testified that accused Dharmender had also pointed out vide memo Ex PW7/D the place from which they had committed the theft. They also testified qua the recovery effected from CCL ''K''. Since accused Dharmender had already been declared an absconder before the testimonies of two witnesses were recorded, their testimonies remained unrebutted on the record. Similar is the case with the testimony of PW SI Charan Singh, who also testified that he was part of the raiding party that had formed a trap and had apprehended accused Dharmender as well as CCL ''K'' on 02.01.2010. He also testified that as per the disclosure statement of accused Dharmender, a sum of Rs.29.26 lakh in cash was recovered from the accused vide memo Ex PW7/E besides one passbook, one gold chain, one pair of gold earrings, one gold ladies ring, which was seized by seizure memo Ex PW7/C, and certain original property documents in the name of the wife of accused Dharmender were also recovered along with his original bank passbook of Central Bank of India, being Ex PW11/1 and Ex PW11/2. The testimony of this witness also remained unrebutted similarly.
FIR No. 390/2009, PS: Saket Page 24 of 4216. PW ASI Devinder Singh testified that on 03.01.2010, he was posted at PS Saket as HC, and on that day, vide DD no. 5, information was received by SI Praveen Kumar regarding the arrest of two accused of the present case by them. He testified that he then reached the spot at Raja Garden, Special Staff Office with SI Praveen where they met the IO of the Kalandra. He testified that the accused were then produced before court, and accused Dharmender was then formally arrested in Court vide arrest memo Ex PW11/A. He testified that on 15.01.2010, as per the disclosure statement of accused Dharmender, he along with the IO and other staff members reached Agra where the accused withdrew Rs.45,500/- from the bank, which he had deposited out of the stolen amount in his bank account. He also testified that they then carried out verification regarding the property purchased by accused Dharmender at Agra, and also seized one scooty from his house situated at Lalbagh Colony in Agra vide seizure memo Ex PW11/C. In his examination in chief, he also testified that on 11.06.2010, he had accompanied the IO to Munger District, PS Tarapur, where after seeking assistance of the local PS, they reached the house of accused Mithilesh, which was then under construction, and from where papers of two motorcycles and papers of some property were recovered. In his cross examination by ld. counsel for accused Mithilesh and Ravinder, he testified that the supplementary disclosure statement of CCL ''K'' and accused Dharmender were recorded at PS Saket in his presence. He admitted that in his presence, no photograph of the 'under construction' or 'fully constructed' house of accused Mithilesh was taken.
17. Since accused Dharmender has been declared a PO already, the State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 25 of 42evidence on record against him regarding the recovery allegedly effected from him or at his instance does not deserve scrutiny at this stage. The testimonies of the police witnesses regarding the disclosure statement made by the accused shall only be considered, for it relates to the other co- accused as well.
18. The aforesaid witnesses have testified in their uncontroverted testimonies that accused Dharmender disclosed the complicity of other co- accused in his disclosure statement, Ex PW7/A. The disclosure statement can be accepted as correct. However, the same doesn't further the cause of prosecution still. Perusal of the disclosure statement reveals that accused Dharmender has merely disclosed the names of other co-accused therein, and has not stated their exact addresses or other details regarding them such as their paternity etc. As such, it is clear from the perusal of the disclosure statement Ex PW7/A that the fact of complicity of the other accused persons was already in the knowledge of the police officials, and the said fact did not come to light merely on the basis of the said disclosure statement. Now, Section 27 of the Indian Evidence Act, 1872 provides that such information given to the police officers by the accused that directly leads to discovery of a fact is relevant. However, in the case at hand, since the information given by accused Dharmender did not lead to discovery of the fact of the complicity of other co-accused, the same cannot be considered to be relevant. In fact, PW11 SI Charan Singh testified that on 02.01.2010, he had already received secret information regarding the accused persons who committed the offence of burglary at Saket, and a raiding party was formed which fixed a trap in the area, leading to the State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 26 of 42apprehension of co-accused Dharmender and CCL "K". On perusal of the testimony of this witness also, it is clear that the fact of complicity of the other co-accused persons was not discovered in pursuance of any disclosure statement of co-accused Dharmender, and was already in the knowledge of the police officials. As such, the disclosure statement of co-accused Dharmender cannot be relied upon to reach the inference that the accused persons were acting in conspiracy with each other.
19. It is pertinent to mention at this juncture that no other evidence has been brought on record by the prosecution to establish that the accused persons were so acting in conspiracy with each other. That is to say, no call detail records saying that the accused were in contact with each other at any time prior to the incident have been placed on record, and no witnesses have been examined by the prosecution to show that the accused were acting in collusion with each other either. Furthermore, not even an iota of evidence has been brought on record by the prosecution to prove that the accused persons had been earlier involved in some offence or incident together, and therefore, were known to each other.
20. Qua accused Mithilesh, PW SI Jitendra Kashyap testified that on 06.06.2010, the investigation of the case was marked to him, upon which he went to Bhalsawa Dairy, Delhi along with HC Ravindar for investigating the matter. He testified that there they met a secret informer at whose pointing out, accused Mithilesh Kumar was arrested vide arrest memo Ex PW15/A and personally search vide memo Ex 15/B. He also testified that he recorded the disclosure statement of the accused Ex 15/C. The testimony State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 27 of 42of this witness also makes it lucid that accused Mithilesh Kumar was arrested at the instance of a secret informer, and not on the basis of any disclosure of co-accused Dharmender. Therefore, at the cost of reiteration, the said disclosure statement of the accused cannot serve as any evidence for conspiracy between the accused persons inter se.
21. Now, PW15 in his cross examination stated that from the person of the accused a wallet containing Rs.240/- cash was recovered. The witness was asked to explain the area at which the accused was so apprehended, to which he replied that the accused was apprehended in a Gali which was around 10 feet, but he does not remember the direction of the said Gali. Given the fact that the testimony of the witness was recorded after over six years since the date of the arrest of the accused, his testimony cannot be disregarded merely because the witness was unable to describe properly the area at which he had arrested the accused. From the testimony of the witness, it stands established that accused Mithilesh was arrested as per the arrest memo Ex PW15/A, proved by the witness.PW 21 Inspector Praveen Kumar also testified that accused Mithilesh was arrested on 06.06.2010 by ASI Jitender Kashyap vide arrest memo Ex PW15/A. He testified that thereafter, he interrogated the accused and recorded his disclosure statement Ex PW21/B. He testified that the accused then took them to his native village where the receipt of a Bajaj Alliance Life Insurance Company in the name of the said accused was recovered at his instance, being Ex PW19/D, which was seized by him vide seizure memo Ex PW21/C. He also testified that he recovered the documents of two other motorcycles which were purchased by the accused with the stolen money, the documents of which State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 28 of 42are already Ex PW16/A (Colly), and PW16/C and PW16/D. He also testified that they had made an application before PS Tarapur, Munger, Bihar, as the said motorcycles were already deposited as unclaimed, requesting the SHO to not release the motorcycles without prior approval of the Trial Court in Delhi, being Ex PW21/F. He testified that the documents of Sub-Registrar, Banka Ex PW22/B, Ex PW22/C and Ex PW22/D were also seized by him. He testified that he then tried to search the family members of accused Mithilesh Kumar, but could not find them. He testified that he then prepared the supplementary challan against accused Mithilesh Kumar Yadav. In his testimony, the witness correctly identified the said accused. In his cross examination, the witness admitted that he has not filed on record any DD entry reflecting the departure from the police station for the house of Mithilesh. He accepted as correct the suggestion that he had made an application to his senior officers, seeking permission to go out of station to Bihar to the house of Mithilesh, but even the copy of said application has not been filed by him on record. In his cross examination, he stated that a team of around 8-10 police officials had reached Sultan Ganj, Bihar for the purpose of effecting recovery from accused Mithilesh, but he does not remember the exact date of the travel from Delhi to Bihar, nor the date of the hotel where the police party had stayed. He stated that all of them had reached the house of accused Mithilesh by local transport, and he had made departure and arrival entries at PS Tarapur regarding the said visit, but the same has not been filed along with the charge sheet. He also stated that he was the IO leading the team which had gone for recovery. He also stated that he had gone to the house of accused Mithilesh twice. He further testified that in his second visit, he was accompanied by 7-8 police State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 29 of 42officials besides certain local officials. He also stated that accused Mithilesh had accompanied them to the village during the second visit. In his examination in chief, the witness had not stated that he had gone to the house of accused Mithilesh twice, but in his cross examination, he admitted the said fact and also stated that accused Mithilesh had accompanied the police officials only on the second visit. This puts under a shadow of doubt the case of the prosecution regarding any recovery effected from the house of accused Mithilesh. Moving ahead, in his cross examination, the witness testified that two motorcycles were recovered from the residence of accused Mithilesh. He testified that he had requested local police persons to join the investigation, but they did not join the investigation. He further accepted as correct the suggestion that the motorcycle that was recovered was not in the name of accused Mithilesh and volunteered that the accused had purchased the motorcycle in the name of his relatives. He further stated that no cash was recovered from the possession of accused Mithilesh.
22. On similar lines as the above witness, PW12 ASI Devender Singh also testified that he had joined the investigation of the case on 11.06.2010, when he had gone to Munger District, PS Tarapur, during which time accused Mithilesh was in police custody. He testified that when they had reached the house of accused Mithilesh, it was found to be under construction, and the papers of two motorcycles, and papers of some property were recovered therefrom. In his cross examination, the witness testified that certain logistic support was provided by the local police station to the IO at the time when they had all gone to the house of accused Mithilesh. He testified that he cannot specify if any local neighbours or State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 30 of 42local panchayat persons were asked to join the investigation.
23. The case property in the instant case is cash, and same has not been recovered from the accused Mithilesh. The recovery made by the IO of the motorcycles is itself suspect in view of the fact that despite easy availability, no public witnesses were joined to the recovery proceedings. Even if the said objection is set aside, and the recovery is considered to have been genuinely effected by the IO as per the version stated by him, it is seen that at best, the case of prosecution is that after about six months of the day of incident, two motorcycles and documents of certain property were recovered from accused Mithilesh. The fact that the accused had gone to purchase a motorcycle with his relative doesn't prove the money paid for the vehicle was his. Even otherwise, the prosecution has not got on record any evidence to show that the standard of life of accused Mithilesh was such that he could not have afforded even two motorcycles, or some property, if he had not committed the theft. As such, a lot of loose ends remained untied in the case of prosecution. Recovery of two motorcycles, which are not even in the name of accused Mithilesh, after about six months since the date of the alleged incident cannot in any manner be said to be connected with the alleged incident of theft, given the nature of the recovery and the lapse of time after which it was affected. Similarly, the accused can not be burdened with the guilt of the offence alleged, for he was re-constructing his house at the time of his arrest, or because his brother was also reconstructing his house.
24. Further, PW16 Deepak Kumar Mandal testified that one Manoj State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 31 of 42Kumar had purchased a motorcycle of the Make Splendor NXG for a total consideration of Rs.44,350/- on 29.01.2010, and the vehicle was delivered to him vide challan, Ex PW16/D. In his cross examination, he stated that he had seen accused Mithilesh at the time of purchasing of the said vehicle, but in the later portion of his testament, he stated that he does not remember the name or face of the person who had purchased the motorcycle from the showroom where he used to work due to the lapse of five years since the date of sale of the said motorcycle. As such, the testimony of the witness is not very reliable. Yet, if contradiction in the same is even ignored, at best it proves that accused Mithilesh had accompanied his relative Manoj Kumar Yadav for the purpose of purchasing a bike on 29.01.2010, and not that the money used for purchase was that of accsued Mithilesh, and if that be so, that it was part of the stolen money itself.
25. PW17 Rajendra Prasad, Record Clerk, Bhagalpur Transport Authority proved the RC Register, Ex PW17/A, as per which accused Mithilesh Kumar Yadav had purchased the vehicle i.e. Hero Honda bearing registration number BR10K1362. In his cross examination, the witness admitted that in the said register, the photographs of all the purchasers of the motorcycles are pasted in compliance with Central Motorcycle Vehicle Rules, 1989, except for the motorcycle which was allegedly purchased by accused Mithilesh. This creates a major gap in the case of prosecution and shows that the register brought on record by the witness contains a false entry. There is no other explanation on record as to why the photograph of every other purchaser of the vehicle, especially the one preceding and succeeding the alleged purchase made by accused Mithilesh Kumar is State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 32 of 42substantiated by the photograph of the owner, but not the one that was purchased by Mithilesh Kumar Yadav. Even if the said discrepancy is set aside, the testimony of the witness at best proves that one vehicle was purchased by accused Mithilesh, but does not in any way prove that the vehicle was purchased out of the stolen money.
26. PW18 Abhiranjan Jha, Senior UDC, District Registry Office, Banka proved the documents Ex PW18/B to Ex PW18/D (Colly) vide which accused Mithilesh purchased an immovable property on 30.12.2009 for a total sum of Rs.3.69 lakh. The said witness was not cross examined despite opportunity.PW19 Raju Ghosh, Assistant Manager, M/s Golden Enterprises proved that accused Mithilesh Kumar had purchased an insurance policy against payment of an amount of Rs.10,000/- on 14.12.2010, and exhibited the record in this regard, being Ex PW19/B and Ex PW19/C. He testified that the provisional money received against the payment made by accused Mithilesh Kumar is Ex PW19/D. PW22 Sikandar Paswan, Record Keeper, Sub-Registrar Office, Banka District, Bihar proved the documents Ex PW22/C (Colly), and document Ex PW22/D. His testimony was not discredited by the accused in any effective manner during the cross examination. PW23 ASI Arvind Kumar Soren brought on record the original register containing the police station diary entry for the period 16.05.2010 to 15.07.2010 pertaining to PS Tarapur containing the application made by SI Praveen regarding his arrival and departure at PS Tarapur as well as DD record of DD no. 65 dated 04.06.2010 regarding deposition of motorcycle in Malkhana at PS Tarapur, Ex PW23/A and Ex PW23/B. The witness stated that he does not know in whose handwriting State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 33 of 42the document is in, or the name of the person who had prepared the said document. Since it is the cardinal rule of law that every document has to be proved by the author thereof, the said witness could not cogently prove the document Ex PW23/A and PW23/B.PW24 Himanshu Agarwal, Assistant Manager, National Insurance Co. proved the insurance policy Ex PW16/C of the motorcycle, and stated that the policy was issued under the name of accused Mithilesh Kumar. Even if all the lacunae pointed out in the cross examination of the various witnesses is set aside, and the case of prosecution is considered at its face value, at best, it is seen that the prosecution has been able to prove that accused Mithilesh had purchased one vehicle, an insurance policy, and a piece of land. Again, at the cost of reiteration, no evidence was brought on record by the prosecution to prove that accused Mithilesh could not have made these purchases but for the stolen money, and the prosecution also failed to bring on record categorical evidence that it is the stolen money that was used by accused Mithilesh to purchase the said properties.
27. The prosecution having failed to specify the serial numbers of the currency notes stolen from the office of complainant company, or even the denominations in which the total cash amount was stored thereat, ought to have atleast proved, by way of proximity in the time of the recovery, that money recovered from accused is the case property, or that the accused had indeed received the case property, and then converted it to their use. Given the nature of the case property, and the easy convertibility of the same, time was of the essence. The fact that accused made some purchases, after a considerable time from the theft, with no evidence regarding the financial State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 34 of 42status of the accused prior to the theft, which would have made it possible to negate the hypothesis that the property was purchased by him of his own funds, is not sufficient to convict him. The recovery can neither form the basis for the offence of theft, nor for the offence of retaining or receiving stolen property. At this juncture, reliance can be placed on the pronouncement of Hon'ble Apex Court titled Bijender @ Mandar vs. State of Haryana dated 08.11.2021 in Crl. Appeal No. 2438/2010 wherein it was held, "16. We have implored ourselves with abounding pronouncements of this Court on this point. It may be true that at times the Court can convict an accused exclu- sively on the basis of his disclosure statement and the resultant recovery of incul- patory material. However, in order to sustain the guilt of such accused, the recov- ery should be unimpeachable and not be shrouded with elements of doubt. We may hasten to add that circumstances such as (i) the period of interval between the malfeasance and the disclosure; (ii) commonality of the recovered object and its availability in the market; (iii) nature of the object and its relevance to the crime; (iv) ease of transferability of the object; (v) the testimony and trustworthi- ness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. (See: Tulsiram Kanu vs. The State2; Pancho vs. State of Haryana3; State of Rajasthan vs. Talevar & Anr 4 and Bharama Parasram Kudhachkar vs. State of Karnataka5)
17. Incontrovertibly, where the prosecution fails to inspire confidence in the man- ner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. Its nearly three cen- turies old cardinal principle of criminal jurisprudence that "it is better that ten guilty persons escape, than that one innocent suffer". The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that "the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent".
28. Now, PW10 Inspector Dilip Kumar testified that at the behest of accused Dharmender, accused Sushil Kumar was arrested from Delhi vide State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 35 of 42arrest memo Ex PW10/E. He testified that the disclosure statement of the said accused Ex PW10/C was recorded, and thereafter, the accused produced one bag containing Rs.5.00 lakh in Rs.500x500 denomination, which were seized by him vide seizure memo Ex PW10/D. PW10 testified that the witness disclosed that he can get co-accused Ravinder Kumar also arrested and led them to Bindapur DDA Flats where the said accused Ravinder was also arrested vide arrest memo Ex PW10/E. The witness stated that he recorded the disclosure statement Ex PW10/G, and from the said witness, a bag containing Rs.10.00 lakh was recovered, having currency notes of Rs1,000x1,000 denomination, which was seized vide seizure memo Ex PW10/H. The witness testified that on 11.062010, both the accused were taken on PC remand, and the police party went to District Kullu, Himachal Pradesh to find out the land which was bought by accused Sushil Kumar with the stolen money. He testified that upon reaching the spot, it came to fore that the mutation of the land had not been done, and thereafter, he directed the concerned official to not carry out the mutation in favour of the accused vide his application Ex PW10/I. The witness testified that on 15.01.2010, both the accused persons led the police party to their houses in District Kangra, from where accused Sushil Kumar got recovered some jewellery, and three FDRs of Rs.1.00 lakh each ,seized vide seizure memo Ex PW10/J, and that Rs.9.50 lakh was also recovered and seized vide seizure memo Ex PW10/K. He testified that accused Ravinder Rana also got recovered from his house some jewellery and one FD of Rs.1.00 lakh, seized vide seizure memo Ex PW10/M. He testified that he also seized one taxi bearing registration no. DL1TD6682 vide seizure memo, Ex PW10/N, which the accused had used in committing the theft. In his cross State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 36 of 42examination, the witness admitted that during local enquiry from the relative of accused Sushil at Kullu, the police came to know that accused had purchased some land, and had perhaps returned to his native village. He further deposed that the accused was not found in his local village, and secret enquiry then revealed that the accused had returned back to Delhi. From this testimony of the witness, it is amply clear that neither the fact of purchasing of the land by accused Sushil Thakur was discovered in consequence to his disclosure, nor the whereabouts of accused Sushil Kumar were disclosed to him by accused Dharmender. The whereabouts of accused Ravinder are also seen to be known to the police officers prior at hand qua the arrest of said accused. PW10 testified in his cross examination that the said accused was apprehended at his residence, and his brother in law was also present at the time his arrest was made, although his signatures were not obtained on any of the documents prepared at the time of the arrest of the accused. It begs the question why his signatures were not obtained by the police officials, or why residents of the locality were not joined to the investigation despite easy availability. It is seen that the IO did not take sufficient precautions to join public witnesses to the investigation despite easy availability of the same. Further, in his cross examination, the IO stated that before conducting recovery proceedings in the house of accused of Ravinder Rana at his native village, the local PS was not informed. This again dents the prosecution version and creates a reasonable doubt as to the version of prosecution regarding any recovery being indeed made at the house of accused Ravinder Rana. Further, the witness admitted that neither any villager nor any sarpanch of the area was joined to the investigation, and no police party was sent by him to call such neutral State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 37 of 42witnesses to be made as witness to the recovery. This is again an irreparable blow to the case of prosecution. In his cross examination, the witness also stated that certain jewellery and FDRs were recovered from the accused. Pertinently, only gold jewellery was recovered by the IO, but not the bills/invoices of the said jewellery. Therefore, there is no evidence on record to prove that the jewellery was purchased by accused Ravinder Rana after the incident of theft that took place. Even as regards the FDR, there is no type of evidence on record to suggest that the said FD was made by accused Ravinder Rana in the bank out of the stolen money, and that he had no funds otherwise to make such a deposit.
29. PW ASI Ravinder corroborated the testimony of PW10 SI Dilip as regards the recovery of Rs.21.05 lakh from accused Ravindar at his residence at Kullu, and also corroborated his version regarding the recovery of jewellery articles from the said accused. On similar lines, PW13 ASI Pradeep also testified that he had accompanied PW10 to the house of accused Ravinder at Bindapur, from where a sum of Rs.10.00 lakh was recovered from him. There is a slight discrepancy in the version of the witnesses in as much as PW10 had stated that at the house of accused Ravinder Rana, his brother in law was also present, whereas PW13 ASI Pradeep testified that no other person was found in the house. Irrespective of the same, even if the discrepancies are set aside, and it is overlooked that the IO chose to not join any public witnesses to the investigation despite easy availability of the same, given the nature of the recovery as well as the ease of transferability of the money, the recovery cannot be considered to be unimpeachable. Furthermore, the theft is stated to have taken place on State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 38 of 4229.11.2009, and the alleged recovery from accused Ravinder Rana of the sum of Rs.10.00 lakh at his house is seen to have been made on 10.06.2010. The lapse of time between the alleged incident and the recovery also is a gap in the case of prosecution, and it can not be held that any money, if at all recovered from the said accused, was the money stolen by them from the theft. Even if it is considered to be true that such recovery was effected from the accused, the burden was upon the prosecution to prove that the recovery of money that was made from accused Ravinder Rana was of the same amount that was stolen from the complainant. Recovery of an amount of money, however significant, effected from accused Ravinder, after about the lapse of over a month since the day of the theft ,can in no way be said to be connected to the incident of theft as complained of in the subject FIR merely because the accused offered on record no alternate explanation as to how they could have been in possession of such a sum of money. At the cost of reiteration, it was upon the prosecution to traverse the distance between 'may have' and to 'must have', and the prosecution was required to prove beyond reasonable doubt that the money that was recovered from the accused person was the same money that was stolen from the office of the complainant. Whether the accused got the money through means honest or dishonest is not pertinent, and the burden the prosecution was required to discharge was of proving that the money recovered is the stolen cash amount in the subject FIR. Neither the recovery was made within a reasonable time of the theft, nor the prosecution could prove that currency notes of the same denomination or series that were stolen from the possession of the complainant were later recovered from the possession of the accused persons. In the absence of such evidence, the prosecution case State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 39 of 42is liable to fail.
30. In so far as the testimonies of PW8 Navinder Singh (Registration Clerk, Sub-Registrar Office, Kullu, Himachal Pradesh), PW9 Devraj (Patwari, Settlement, Sultanpur Kullu), PW10 Inspector Dalip Kumar, PW12 ASI Ravindar, and PW13 ASI Pradeep relate to various recoveries allegedly effected from accused Sushil, or the property purchased by accused Sushil from the stolen money allegedly is considered, their testimonies need not be discussed as accused Sushil has since met his maker.
31. The remaining prosecution witnesses have also not brought on record anything inculpatory against the accused persons. PW2 Ct. Mahipal Singh merely proved that he had handed over the copy of the FIR and rukka to IO SI Gagan Bhaskar at M-1, Saket, and in his presence, the IO had called the crime team, and had prepared the site plan. PW6 HC Giriraj proved the registration of the subject FIR on the basis of the rukka Ex PW4/A, and as well as the endorsement on the rukka Ex PW6/B, being Ex PW6/A. PW20 Inspector Gagan Bhaskar, the first IO of the case, testified that he had gone to the place of the incident after the investigation was marked to him, prepared the site plan Ex PW4/D, and called the crime team. He testified that thereafter, the investigation was marked to IO SI Praveen. The testimonies of the three witnesses are completely formal in nature, and do not further the cause of prosecution
32. To sum up, the prosecution could successfully prove that a theft of State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 40 of 42Rs.2.45 crore had taken place in the office of complainant in the intervening night of 16/17.11.2009. It could also prove that certain recovery of money was effected from accused Dharmender, who is since declared a PO. However, no other material facts could be proved by it. The prosecution case that recovery of certain money and jewellery articles was made from accused Mithilesh and Ravindra Rana, and that the said accused had also purchased certain articles like motorbikes and insurance policies, is shrouded in doubt. Even otherwise, even if the case of prosecution is believed to be true on the face value, arguendo, the prosecution can be held at best to prove the recovery of certain articles and cash from the said accused, but not to link the said recovery to the stolen money. Neither any evidence of conspiracy between the accused persons has been brought on record by the prosecution, nor the prosecution has brought on record evidence of clinching nature to suggest that the recovery of cash and the other articles that was made from the accused persons was unimpeachably linked to the case property. The circumstantial evidence brought on record by the prosecution is not of such a nature as would point only towards the guilt of the accused.
33. As such, the accused are entitled to the benefit of reasonable doubt for the offences punishable u/s 457/380/34 IPC. Even as regards the offemce punishable u/s 411 IPC, since the recovery itself from the two accused is doubtful, and the recovered articles could not be connected to the stolen property, the ingredients of said offence also remained not proved. As such, accused Ravinder Rana S/o Sh. Chatar Singh and Mithilesh Kumar Yadav @ Mithun S/o Sh. Subhit Yadav @ Suresh Yadav stand acquitted of State vs. Dharmender & Ors.
FIR No. 390/2009, PS: Saket Page 41 of 42all the charges levelled against them.
34. File be consigned to Record Room after due compliance with Section 437A CrPC.
Pronounced in open Court on Digitally signed by 08.05.2025 in the presence Medha Medha Arya Date: of accused. Arya 2025.05.08 16:17:02 +0530 (Medha Arya) Additional Chief Judicial Magistrate South District, Saket Courts, New Delhi 08.05.2025 State vs. Dharmender & Ors. FIR No. 390/2009, PS: Saket Page 42 of 42