Delhi District Court
State vs Kawaliya @ Kali Charan on 10 November, 2025
IN THE COURT OF DR. NEHA KHERIA, JMFC-02, NORTH : ROHINI
COURTS/DELHI.
State Vs. Kawaliya @ Kali Charan & Ors.
New No. R-5282572/16.
FIR No. 306/2010.
PS: S.P. Badli
U/S: 379/411/34 IPC
JUDGMENT
ID number of the case : R-5282572/16
Date of commission of offence : 27.09.2010
Date of institution of the case : 12.11.2010
Name of the complainant : Iqbal S/o Islam R/o Village Akera, Distt. Mewat,
Haryana
Name of accused persons and : 1. Kawaliya @ Kali Charan S/o Munni Lal R/o addresses Makola, Anchal Haweli, Khadakur, Distt.
Munger, Bihar (proceedings abated on
27.01.2016)
2. Ramesh @ Sunny S/o Mishri Lal R/o Gali No.
2, Pakki Khazuri, Delhi (declared absconder on
17.03.2016)
3. Sameer @ Sonu S/o Shakil R/o Gali No. 2,
Pakki Khazuri, Delhi.
Offence complained of or proved : 411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 10.11.2025
State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 1 of 13
BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is, that on 28.09.2010, at an unknown time, at Hero Honda Showroom, Pandav Nagar, Opposite Park, Near Gate at Patri, Delhi, accused Sameer @ Sonu alongwith his associates Ramesh @ Sunny (since absconder) and Kawalia @ Kali Charan (since deceased) were found in possession of 15 plastic kattas containing 100 Kg Saunf, 30 Kg Ajwain and 15 Kg Jeera vide seizure memo Mark A which you had received or retained knowing or having reason to believe the same to be stolen property belonging to future agrovet Ltd., the theft of which took place on 27.09.2010 at an unknown time from truck bearing no. MP09HG1606 Shiv Dharamkanta, Near Shamshan Ghat, Libaspur, Delhi within the jurisdiction of PS SP Badli and thus accused committed an offence u/s 411/34 IPC. Hence, the present case. Investigation
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [ For brevity, hereinafter referred as Cr.P.C.]. The accused persons were arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused persons and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused persons free of cost as envisaged under Section 207 of Cr.P.C.
Charge
4. A prima facie case under Sections 411/34 IPC, was found to be made out against State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 2 of 13 accused namely Sameer @ Sonu. charge u/s 411/34 IPC was framed against the accused Sameer @ Sonu vide order dated 10.01.2017 to which he pleaded not guilty and claimed trial. It is pertinent to mention that proceedings against accused no 1 namely Kawaliya @ Kali Charan abated vide order dated 27.01.2016 and accused no. 2 Ramesh @ Sunny was declared absconder vide order dated 17.03.2016. Hence, charge against them could not be framed.
5. In order to prove the case, the prosecution examined five witnesses.
PW-1 Iqbal was the complainant who stated that on date 29 and year 2010 (month he did not remember) he was working as driver in Delhi in Golden Transport Service. At around 6 am, he saw that Kiriyana material i.e. gram, grain, moong daal, jeera, ajwain had been stolen. He did not remember the weight of these items due to lapse of time. The items were jeera, gehu (murka wheat sihore). He telephoned to Surjeet who was the owner of vehicle i.e. Tata Teri bearing no. MP 09HG 1606. Thereafter, owner of vehicle came to PS and got registered the FIR with respect to theft. PW1 deposed further that he came to know about the theft as it was told to him by rehri person. He stated that he was sleeping when the theft was committed. His statement is Ex. PW1/B. Thereafter, Ld. APP for State sought permission of the Court to cross examine the witness as he was not disclosing the complete facts. The same was allowed. In such cross examination, witness admitted that he had departed from Indore on the date of incident. He could not say whether the actual date was 26 or 29 and the month was September. He denied the suggestion that he was intentionally not disclosing the correct month. He admitted that when he State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 3 of 13 checked the vehicle he found the rope tied outside the vehicle was opened and the material was found to be less than what it was, when it was departed. He admitted that all the stolen material was labeled with the Mark A. He did not remember the actual weight of stolen material as they were packed inside the katta. He admitted that the site plan was prepared by IO at his instance which is Ex. PW1/A. In his cross examination, he stated that the material was properly measured when it was departed. He did not know the exact quantity of material which was stolen as it was known by the party for whom it was loaded. He stated that they were two persons sleeping in the vehicle. He denied the suggestion that he was deposing falsely. PW1 was cross-examined by Ld. Counsel for accused.
PW-2 ASI Suresh Kumar deposed that on 27.09.2010, he was posted as Head Constable and his duty hours were from 4 pm to 12 am. At around 8.20 pm, he received rukka by SI Gaurav Kumar on durpeshgi. He made endorsement upon that rukka which is Ex. PW2/A and registered the FIR Ex. PW2/B. During cross examination, he denied the suggestion that the FIR is ante dated and anti timed. He also denied the suggestion that FIR is manipulated and not original.
PW-3 Ct Rajender deposed that on 30.09.2010, he was posted at PS SP Badli as constable and on that day, he joined the investigation alongwith IO SI Gaurav and Ct. Naresh. On that day, SI Gaurav after getting the permission of the court had formally arrested accused Ramesh and Sameer vide arrest memo Ex. PW3/A and Ex. PW3/B and obtained one day PC remand of accused State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 4 of 13 Sameer and Ramesh. He correctly identified accused Sameer in the court. The medical examination of both accused persons was got conducted and thereafter, both accused led them to Shiv Dharm Kanta, near Samshan Ghat, Libaspur, Delhi where IO prepared pointing out memo at the instance of both accused persons vide memo Ex. PW3/C and Ex. PW3/D. Thereafter, they all went to Bhalaswa Dairy, Delhi in search of accused Shamsuddin but in vain. Thereafter, they went to Khajuri, Delhi at the respective houses of accused Sameer and Ramesh, however, no recovery was effected from there thereafter they returned to PS. He further deposed that on the next day, he alongwith Ct. Naresh, IO SI Gaurav and both accused went to Shahbad Dairy in search of accused Shamsuddin but he was not found there. Medical examination of accused Ramesh and Sameer was got conducted and they were produced before court and they were sent to JC. He further deposed that on that day i.e. 01.10.2010, one day PC remand of accused Kawaliya (since expired) was obtained by IO SI Gaurav and his medical examination was got conducted. Thereafter accused Kawaliya @ Kali Charan led them to Shiv Dharam Kanta, Libaspur, Delhi where IO prepared pointing out memo at his instance Ex. PW3/E. Thereafter, he alongwith Ct. Naresh, IO SI Gaurav and accused Kawaliya went to Shahbad Dairy in search of accused Shamsuddin but in vain hence, they returned to PS. The next day i.e. 02.10.2020, he alongwith IO SI Gaurav and accused Kawaliya again went to Shahbad Dairy in search of accused Shamsuddin but again in vain. The medical examination of accused Kawaliya was got conducted and he was produced before court who sent him State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 5 of 13 to JC. On 22.10.2010, the panchnama of recovered articles was prepared at PS in presence of Mukesh Dixit, MHCM Pramod Kumar, SI Gaurav and him which is Ex. PW3/F. In his cross examination, he denied the suggestion that present FIR is ante dated and ante time or that the FIR is manipulated. He also denied the suggestion that he had not joined the investigation or that he had signed all the documents while sitting at PS. He also denied the suggestion that he was deposing falsely at the instance of IO. PW3 was cross-examined by Ld. Counsel for accused.
PW-4 Inspector Nalin Verma deposed that on 28.09.10, he was posted at AATS as Sub Inspector. On that day, on receipt of secret information, he arrested Sunny @ Ramesh, Sameer @ Sonu and Kawaliya @ Kali Charan vide DD no. 44A u/s 41.1 CrPC vide arrest memo and personal search memos Ex. PW4/A to Ex. PW4/F. He correctly identified accused Sameer @ Sonu. He recorded disclosure statement of accused persons vide memos Ex. PW4/G to Ex. PW4/I. He deposed that the recovery effected from the accused persons as they were traveling in a tempo and recovered articles were kept on road side on patri / footpath and waiting for their associate. The seizure memo is Ex. PW4/J. The kalandara proceedings are Ex PW4/K. The accused was sent to JC after production before court and the case property was deposited with MHM thereafter he informed PS SP Badli vide DD no. 19B dated 29.09.2010. He further deposed that IO SI Gaurav Kumar came to meet him on 30.09.2010 and obtained relevant documents from him. Thereafter, MHCM submitted that case property was perishable in nature and accordingly, was released on State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 6 of 13 superdari by the orders of Court. The witness correctly identified accused Sameer @ Sonu in the court. In his cross examination, he stated that on that day, he received secret information when he was present in AATS Office, Mayur Vihar. He did not remember whether he informed his senior officials regarding secret information. He did not remember whether he made departure entry before leaving PS. He admitted that the place of recovery was a busy place and some shops as well as houses were situated nearby. He did not remember by which vehicle they reached on spot. He did not serve notice to any public person who refused to join investigation. He did not remember how many kattas he recovered. He denied the suggestion that nothing was recovered from the possession of accused or that he alongwith police staff falsely implicated accused persons or that he did not receive any secret information or that accused were arrested while sitting in PS. PW2 was cross-examined by Ld. Counsel for accused.
PW-5 Inspector Gaurav Kumar deposed that on 27.09.2010, he was posted in PS SP Badli as SI. On that day, he received DD No. 37B on which he alongwith Ct. Aji VK reached the spot i.e. near Shiv Dharamakanta Libaspur Delhi where complainant Iqbal met them. Iqbal said that he is checking his stock and can inform the value of stolen property after some time and will give statement with the information of stolen property. Thereafter, they came back to PS. In the evening, complainant visited PS where he recorded his statement which is already Ex.PW1/B bearing his signature at point B. He prepared rukka which is Ex.PW5/A bearing his signature at point A and produced before Duty State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 7 of 13 Officer where FIR got registered. He along with the complainant reached on the spot where he prepared site plan which is Ex.PW1/A bearing his signature at point A. Truck owner Gurmeet Singh produced photocopy of bilti of articles which he seized vide seizure memo Ex.PW5/B bearing his signature at point A. Bilti is marked as Mark A. Thereafter, Narender Sharda produced list of articles which he seized vide seizure memo Ex.PW5/C bearing his signature at point A. Copy of list of articles and other documents is marked as Mark B (colly). On 29.09.2010, he was informed by duty officer that accused persons of present case were by AATS East District. On 30.09.2010, he obtained Police custody remand of accused Sameer and Ramesh at the direction of Hon'ble Court. He alongwith Ct. Rajender and Ct. Naresh having custody of both the accused persons reached on the spot where accused persons pointed towards the place they committed offence. He prepared pointing out memo which is Ex.PW3/C and Ex.PW3/D both bearing his signatures at point B. On 01.10.2010, he obtained custody of accused Kawaliya at the direction of Hon'ble Court and prepared pointing out memo at his instance which is already Ex.PW3/E bearing his signature at point B. On 22.10.2010, he prepared panchnama of recovered case property and handed over to owner as per direction of Hon'ble court. Panchanama is Ex.PW3/F bearing his signature at point B. Accused Sameer was correctly identified by the witness. PW5 was cross-examined by Ld. Counsel for accused during which he admitted that nothing was recovered in his presence.
6. Thereafter, prosecution evidence was closed vide order dated 02.05.2025. State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 8 of 13
7. After completion of prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded separately. All incriminating material brought on record were put to the accused persons, to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case and the case property had been planted upon him. Accused did not opt to lead any evidence in his defence and the same was closed.
8. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Fur- ther, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution has to stand on its own legs and it cannot derive any ben- efits whatsoever from the weakness, if any, in the defence of the accused. Accused is enti- tled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
9. It is apposite to mention that prosecution has cited PW Narender Sharda (Assistant Purchase Manager), PW Gurmeet (the owner of Truck from which the spices were stolen) and PW Mukesh (released the case property on superdari) as prosecution witnesses how- ever, to the dismay of the prosecution, the said witnesses had to be dropped from the list of Prosecution witnesses as they were untraceable even while summoning through DCP concerned.
10. It is pertinent to mention that PW1 who is allegedly the complainant in the present case is not the eye witness of theft or recovery. During examination in chief, he could not State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 9 of 13 state the date of alleged incident he could not even tell the weight/quantity of material that had been stolen. He further stated that he came to know about the theft as it was told to him by Rehri person. It is pertinent to mention that the said statement of the complainant is contradictory to the statement given by him during investigation which Ex.PW1/B wherein he has stated that he noticed that rope tied with truck were opened when he checked the material in the morning at 07:00 am.
11. It is further pertinent to mention that PW1 during his cross-examination by Ld. Counsel for accused has stated that one more person was sleeping with him however in- vestigation is completely silent about the said person.
12. Further, from the overall testimony of the PW4, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127. The failure on the part of the police person- nel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 10 of 13 Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as un- der;
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincereefforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recov-
ery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
It is noteworthy to mention here that in the present case despite availability of indepen- dent person, no person was asked to join investigation when the alleged recovery was made from the accused.
State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 11 of 13
13. Further, the prosecution did not even bring on record necessary DD entries to prove departure/arrival of the police officials from/at the police station. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
14. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 12 of 13 prosecution."
15. It is significant to mention here that PW4 during cross examination stated that he does not remember how many kattas he recovered and PW 5 during cross-examination stated that nothing was recovered from accused persons in his presence. Further, as PW Narender Sharda remained untraceable prosecution could not examine him. Hence, no prosecution witness has been examined by the prosecution to verify that the alleged recov- ered spices were belonged to future agrovet Ltd. which got stolen from the truck bearing no. MP 09HG 1606. Hence, prosecution has not brought anything on record to prove re- covery of stolen property being made from the accused Sameer.
16. Keeping in view the overall conspectus of the case, this court is of the consid- ered view that the prosecution has miserably failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the ac- cused. Therefore, accused Sameer @ Sonu is given benefit of doubt and accordingly, accused Sameer @ Sonu is acquitted of the charge framed u/s 411/34 of IPC.
Digitally
signed by
Dictated directly into the computer NEHA
NEHA
KHERIA
and announced in the open Court, KHERIA Date:
2025.11.10
On 10th November, 2025.
17:33:33
+0530
(DR. NEHA KHERIA)
JMFC-02, North Rohini
10.11.2025
It is certified that this judgment contains 13 pages and each page bears my signatures.
Digitally signed by NEHA NEHA Date:
KHERIA KHERIA 2025.11.10 17:33:41 (DR. NEHA +0530 KHERIA) JMFC-02, North Rohini 10.11.2025 State Vs. Kawaliya @ Kali Charan & Ors. FIR No. 306/2010 Page no. 13 of 13