Delhi District Court
Criminal Case/75/2009 on 5 September, 2009
1
IN THE COURT OF SH. RAVINDER SINGH : MM :
NEW DELHI
FIR No. 10/09
P.S. Saket
U/s 457/380/411/34 I.P.C.
and U/s. 103 D.P. Act
State v. Anil Kumar & Ors.
JUDGMENT :
a. Srl. No. of the case : 75/09
b. Date of Institution : 04.04.09
c. Date of Commission of Offence : 7/8012009
d. Name of the complainant : Shyam Kumar
S/o Ramesh Chande.
e.Name of the accused and his
parentage and address : (1) Anil Kumar,
S/o Lt. Sh. Dayanand,
R/o H.No. 1112,
Sector 3, Pushp Vihar,
New Delhi
(2) Arjun Singh
S/o Sh. Suresh Chand
R/o H.No. 523,
Sector 3, Pushp Vihar
New Delhi.
(3) Sanjeev
S/o Sh. Roop Chand
R/o H.No. 688
Sector 3, Pushp Vihar
New Delhi.
f. Offence complained of : U/s 457/380/411/34 IPC
and U/s. 103 D.P. Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 04.09.09
i. Final Order : Acquitted
j. Date of such order : 05.09.09
Brief reasons for the decision of the case:
1. The case of the prosecution in brief is that on 2 08.01.09 on receipt of DD No. 19 B, I.O. /HC Manvir Singh along with Ct. Surender reached at the spot where complainant Shyam Kumar gave his complaint in writing regarding theft. On his complaint, case FIR 10/09 was registered in PS Saket, U/S 380 IPC. It is further alleged that during remand in case F.I.R. 42/09 of P.S. Saket accused Anil and Arjun disclosed about the commission of the offence of this case so they were arrested in this case and they got recovered the case property, thereafter accused Sanjeev was was arrested in this case and police got recovered the articles on his instance also. I.O. got conducted the T.I.P. of case property wherein complainant identified his articles except one pair of silver paijeb and thereafter challan was filed for trial of accused persons.
2. All the accused appeared before the court to face the trial so copy of challan as required U/s 207 Cr.P.C., was supplied to them. Thereafter, case was fixed for consideration of charge.
3. On hearing arguments and on perusal of record, prima facie charge for the offence U/s 457/380/411/34 IPC made out against all the accused persons besides charge U/s. 103 D.P. Act against the accused Anil. Accordingly charge was framed against all the accused persons vide order dated 01.05.09. Thereafter case was fixed for prosecution evidence.
4. In support of its case prosecution has produced 3 and examined eight witnesses namely Shyam Kumar the complainant as PW1, Ct. Surender as PW2, Mrs. Renu, the wife of complainant as PW3, Kuldeep Singh as PW4, H.C. Rameshwar as PW5, Ld. MM Sh. Sanjeev Kumar as PW6, A.S.I. Virender Singh as PW7 and H.C. Manvir Singh as PW8.
4. A. PW1 Shyam Kumar, the complainant has testified that on 08.01.09 he received a called from his neighbor regarding opening of door at the back of the house so he along with his wife came there and found his house ransacked and almirahs opened. Police came and lifted the finger prints from the spot. His statement Ex. PW 1/A was recorded. PW 1 further testified that he gave a list of stolen articles in the complaint itself. He further testified that he received information that his articles were recovered so he along with his wife came to the court for identification of their articles and thereafter he got released the stolen property on superdari. PW 1 identified the articles as Ex. P1 to P7.
During cross examination PW 1 testified that no articles were recovered in his presence. He and his wife checked the articles which were stolen from his house. He further testified that he did not give any separate list of stolen articles. He further testified that he was not shown the recovered articles by the police in the P.S.
4. B. PW 2 Ct. Surender testified that on 8.02.09 accused Arjun and Anil took H.C. Manvir and him to house no. 20/12, Pushp Vihar. He further testified that accused persons 4 revealed that they kept the stolen articles in garage no. 949, Sector 7, Pushp Vihar. They all went there and accused persons got recovered stolen articles kept in 2 wooden boxes. The recovered articles were seized vide seizure memo Ex. PW 2/A and B. The jewellery items were sealed in the pulanda with seal MS. He further testified that pointing out memo Ex. PW 2/D1 to D3 was prepared and the lock and key were also seized vide memo Ex. PW 2/E. PW 2 was cross examined by Ld. APP in length as he resiled from his earlier statement.
4. C. PW 3 Mrs. Renu, the wife of PW 1 also testified the same facts as deposed by PW 1.
4. D. PW 4 Kuldeep Singh testified that on 8.1.09 he found door of house no. 139C opened when Shyam Kumar, the owner of house had gone to Mandangir so he informed Shyam Kumar regarding theft in his house who came there and called the police.
4. E. PW 5 H.C. Rameshwar testified that he recorded F.I.R. 10.09 on 08.01.09 being duty officer in PS. Copy of F.I.R. is Ex PW 5/A and he put his endorsement on rukka Ex. PW 5/B.
4. F. PW 6 Ld. MM, Sh. Sanjeev Kumar testified that on 17.03.09 he conducted the T.I.P. proceedings of case property Ex. PW 6/B wherein witness correctly identified her case property except one silver paijeb. Application for T.I.P. 5 is Ex. PW 6/A and application for supply of copy of T.I.P. proceedings is Ex. PW 9/C.
4. G. PW 7 S.I. Virender Singh testified that on 5.02.09 arrested the accused Arjun and Anil in case F.I.R. 42/09 and during their custody both accused made disclosure statement Ex. PW 7/A and B. He further testified that he handed over the disclosure statement to I.O. of this case.
During cross examination PW 7 testified that the disclosure statement was recorded in P.S. but he do not remember whose statement was recorded first. PW 7 denied the suggestion to the effect that he himself recorded the disclosure statement of accused or that they did not make any disclosure statement.
4. H. PW 8 H.C. Manvir Singh, the I.O. of case testified that on 8.01.09 on receipt of DD No. 19B he along with Ct. Surender went to the spot where complainant Shyam Kumar met so he recorded his statement Ex. PW 1/A on which he made endorsement Ex. PW 5/B and prepared rukka.
Thereafter he handed over the rukka to Ct. Surender for registration of F.I.R., in the meantime he prepared site plan at the instance of complainant. PW 8 further testified that on 6.2.09 A.S.I. Virender Singh informed him about disclosure statement of accused Arjun and Anil. He obtained the copy of disclosure statement from A.S.I. Virender. Thereafter he arrested both the accused vide memo Ex. PW 2/F1 and F2. PW 8 further testified that on 7.2.09 he obtained police 6 remand of accused and during police remand; disclosure statement of accused Arjun and Anil were recorded Ex. PW 2/G1 to G4. Thereafter both accused took them to Garage 949, Sector 7, Pushp Vihar and on their instance several case properties were recovered which were seized by him U/s. 102 Cr.P.C. vide memo Ex. 2/A and B. Lock and key of garage were also seized vide memo Ex. PW 2/E. PW 8 further testified that on 9.2.09 accued Sanjeev was arrested on instance of accused Anil and Arjun from his house vide memo Ex. PW 2/H1, thereafter he recorded his disclosure statement Ex. PW 2/H3 and on the instance of accused Sanjeev, stolen jewellery was also recovered from his house and same was seized vide memo Ex. PW 2/C. The case property was kept in pulanda which was sealed with the seal of MS. PW 8 further testified that he got conducted judicial T.I.P. of case property wherein wife of complainant identified the jewellery.
During cross examination PW 8 testified that complainant gave a separate list of stolen articles to him after his written complaint. He recorded the disclosure statement of accused Arjun and Anil on 8.02.09 in P.S. PW 8 denied the suggestion to the effect that seizure memos were prepared by him and A.S.I. Virender in P.S. PW 8 further denied the suggestion to the effect that a false case is made out against the accused persons in connivance with A.S.I. Virender. He denied the suggestion to the effect that nothing was recovered on the instance of the accused persons and the case property was falsely planted upon the accused 7 persons. PW8 further denied the suggestion to the effect that case property was shown to the witness prior to its judicial T.I.P.
5. After completion of prosecution evidence statement of all the accused persons were recorded U/s 313 r/w. 281 Cr.P.C., wherein all the accused persons stated that no recovery has been effected from their instance and that they are innocent and have been falsely implicated in this case by the police official. However all the accused persons did not prefer to lead any evidence in his defence.
6. I have heard the ld. APP for the State and Ld. Legal Aid Counsel for all the accused persons and have also carefully perused the entire record and the relevant provisions of the law.
7. It is the case of the prosecution that PW 7 arrested the accused Anil and Arjun in case F.I.R. 42/09 and recorded their disclosure statement Ex. PW 7/A and B and same were handed over to I.O. /PW 8 who obtained the police remand of accused on 7.02.09 and got recovered articles on the instance of accused Arjun and Anil, same were seized vide memo Ex. PW 2/A and B. Further on 09.02.09 both accused Anil and Arjun got arrested accused Sanjeev vide memo Ex. PW 2/H3 whose disclosure statement was also recorded and on his instance some recovery has been effected which were seized vide memo Ex. PW 2/C. 8
8. To prove its case prosecution has examined as many as 8 witnesses. The material witnesses of the prosecution are PW 1/ complainant and PW 8/H.C. Manvir Singh, the I.O. of case.
9. PW 1 has categorically testified in examinationin chief that he gave the list of stolen articles in his complaint Ex. PW 1/A and he has not given any other separate list of stolen articles. It is clear from the testimony of PW 1 that no separate list was given to PW 8. PW 1 in his complaint gave details of articles which were stolen from his house, same are as under:
(1) Necklace (gold) (2) Hath ke kade (4 gold) (3) Hath ki chudi (4 gold) (4) Kan ke topas (2 pair gold) (5) Chotte bacche ki ring (3 gold) (6) Chote bacche ki chain (2 gold) (7) OM (2 gold) (8) Chandi ki pajeb (9) 4000 Rs.
10. PW 8 moved an application Ex. PW 6/A for conducting T.I.P. of articles recovered from the possession of accused persons. The T.I.P. has been conducted by PW 6 vide its proceedings Ex. PW 6/B. It reveals that PW 8 produced the case property in a pullanda and the articles taken out after opening of pullanda are as under:
(1) one locket of children in which three piece of bundes in golden color are fitted. (2) one pair of ear ring in golden color. (3) one pair of paizeb of silver color. (4) another pair of silver color paizeb fitted with bunde of multi colors. (5) one tagri of silver color.9
(6) one hair pin in silver color. (7) two pair of kade of silver colors (8) four pair of chutke /buchhu
11. Except silver color paijeb all other articles which were put for identification by PW 8 are not matched with the list of stolen articles given by PW 1 in his complaint Ex. PW 1/A but interestingly PW 3, the wife PW1 did not identify the silver color paijeb whereas she identified all other articles before PW 6 which were not in the list Ex. PW 1/A. It is clear from Ex. PW 1/A and Ex. PW 6/B that PW 3 identified those articles which were not belong to her and her husband.
12. PW 8 denied the suggestion to the effect that he had shown the articles before the T.I.P to PW3. PW 3 identified those articles which were not of her. It suggest that PW 8 shown the articles to PW 3 before conducting the T.I.P. by PW 6. In view of this, the articles recovered from the possession of accused persons does not belong to the PW
1. Accordingly, prosecution has failed to prove that accused persons found in possession of stolen property which belong to PW 1.
13. Further all accused persons are charged in this case as they were found in possession of stolen articles of complainant. As prosecution has failed to prove that accused persons were found in possession of stolen property so charges U/s. 457/380/34 I.P.C. are also not proved against them.
1014. In view of above discussion, all accused persons are acquitted for the offence punishable U/s. 380/457/411/ 34 I.P.C. for which they stands charges. Further accused Anil is also acquitted for the offence U/s. 103 D.P. Act.
Announced in the Open Court
On 05.09.09 (RAVINDER SINGH)
Metropolitan Magistrate:
New Delhi.