Delhi District Court
State vs Balalji And Ors on 28 August, 2023
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IN THE COURT OF SHRI YASHDEEP CHAHAL
Metropolitan Magistrate01 : New Delhi District : PHC : New Delhi.
FIR No.13/2017
P.S. : Connaught Place
Under Section : 454, 380, 411, 34 IPC
State Vs. Balaji & Jitender Yadav
JUDGMENT
ID number of the case : New No. 1250/2017
DLND020069442017
Date of commission of offence : 21.01.2017.
Date of institution of the case : 18.03.2017.
Name of the complainant : Mr. Alok Bhatnagar, S/o Mr. O.S.
Bhatnagar, R/o D23, Palika Milan,
Sardar Patel Marg, Chankya Puri,
New Delhi.
Name of accused and address : (1) Balaji, S/o Shri Himmat Rao,
R/o Rain Basera No. 12, Geeta Ghat,
Kashmiri Gate, Delhi & Village
Jadavasi, P.S. Naga Monda, District
Aurangabad, Maharashtra
(Proclaimed Offender).
(2) Jitender Yadav, S/o Shri Radha
Krishan, R/o Rain Basera No. 12,
Geeta Ghat, Kashmiri Gate, Delhi
And Village Satti, Tehsil Bhawani
Pur, District Kanpur, UttarPradesh.
Offence Complained of : Under Section : 380, 411, 454 & 34
Or Proved of the
Indian Penal Code, 1860.
Offence charged of : Under Section : 380, 411, 454 & 34
of the
Indian Penal Code, 1860.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date of judgment : 28.08.2023.
FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav
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BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. By this judgment, this Court shall decide/disposeof case of the prosecution filed against accused Balaji (Absconder) and Jitender Yadav, for having committed the offence punishable under Section 380, 411, 454 & 34 of Indian Penal Code, 1860 IPC (hereinafter referred as "IPC").
2. It is the case of the prosecution that on 21.01.2017 at about 2:30 p.m. near Lady Harding Medical Hospital, Shahid Bhagat Singh Marg, Connaught Place within the jurisdiction of Police Station Connaught Place, New Delhi, accused Balaji and Jitender Yadav in furtherance of their common intention trespassed in hotel 'The Connaught' and committed theft of three LCD TVs and subsequently, they were apprehended possessing aforesaid three LCD TVs which they had dishonestly received or retained, knowingly or having reasons to believe the same to be a stolen property. Thus, they both committed offences punishable under Section 380, 411, 454 & 34 of the Indian Penal Code, 1860.
3. Upon completion of investigation, charge sheet was filed against both the accused persons. Subsequently, charge under Section 380, 411, 454 & 34 of the Indian Penal Code, 1860 were framed against them on 13.04.2017 to which both the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence, wherein the prosecution examined nine witnesses.
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4. During pendency of the case, accused Balaji was declared proclaimed offender (Absconder).
5. The prosecution firstly examined PW1 Shri Alok Bhatnagar, S/o Late O.S. Bhatnagar, R/o D23, Palika Milan, Sardar Patel Marg, Chanakya Puri, New Delhi110021, who deposed on oath that on 24.01.2017, he was present in Palika Kendra, Connaught Place and was working as Head Assistant, EstateI Department, NDMC where he received a telephonic call at around 2:30 p.m. from Shri Kuldeep Singh, Junior Engineer, Civil Department regarding theft of some articles from hotel 'The Connaught'. Within 1520 minutes he reached there where he met staff security supervisor Chhote Lal and security guard Anand Mishra etc. and accused Balaji and Jitender Yadav who were caught red handed by the security team. He also saw three LCD TVs in possession of accused Jitender and miscellaneous sanitary, light fittings and some tools used for breaking open the locks and hand bags in possession of accused Balaji, who was in injured condition. The security staff narrated him whole story of theft and thereafter, he called at 100 number and police reached there within 30 minutes. Local Police inquired him about the incident and also called crime branch team which came at the spot at around 07:00 p.m. After that he made a complaint in police station, which is Ex. PW1/A, bearing his signatures at point A. Thereafter, he handed over both the accused persons along with recovered stolen articles which were covered in white colour sheet from their possession to the police. The LCDs and white sheet was duly seized by the police officials vide seizure memo Ex. PW FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 4 1/B. The tools were seized separately vide seizure memo Ex. PW1/C, bearing his signature at point A. The police also prepared site plan at his instance, which is Ex. PW1/D. Thereafter, police officials made inquiry from both the accused persons. Subsequently, accused Balaji was arrested vide arrest memo Ex. PW1/E and his personal search was conducted vide personal search memo Ex. PW1/F, both bearing his signatures at point A respectively. Accused Jitender was arrested vide arrest memo Ex. PW1/G and his personal search was conduced vide personal search memo Ex. PW 1/H, both bearing his signatures at point A respectively. During the course of investigation his statement was recorded by the police under Section 161 of Cr.PC. Meanwhile, he was given notices under Section 91 and 160 of Cr.PC to provide record of goods/articles which were stolen. Subsequently, he filed reply to the notice under Section 160 of Cr.PC to the SHO, P.S. Connaught Place on 15.02.2017 vide reference No. D586/SO(Estate I)/2017 and dated 10.03.2017 vide reference No. D645/(EstateI)/2017, the same are Ex. PW1/I and Ex. PW1/J, both bearing his signatures at point A respectively. PW1 correctly identified both the accused in the Court. He also correctly identified case property (Three LCD TVs Make Haier Black Colour and one white sheet, two door handles, one lock fitting, one mug and one set top box Make Tata Sky and one empty small quarter bottle) as Ex. P1 (Collectively).
6. During his crossexamination, PW1 Alok Bhatnagar deposed that he had been working in NDMC since May, 1982. He further deposed that he work in the office and if required or instructed by superiors, he goes FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 5 for inspection purpose in the field/NDMC Area as per situation in respect of the cases related to his seat. However, no time is specified to carry out the inspection as it depends on the situation and instructions of superiors. He could not say as to how many security guards remained present on the site at the given point of time as security department of NDMC could better explain the same. He did not discuss with the security officials about the security of the building in routine. He came to know about the theft of number of LED in the Hotel, which is having around 103 rooms, when he inspected the premises after the theft on the relevant date. He further deposed that out of those missing LEDs, three were found in possession of accused Jitender Yadav. The rooms were inspected immediately after the incident in question by the security staff and police officials. He did not know the exact number of people who had inspected the rooms but they were more than five. The inspection continued till the Crime Branch Team arrived at the spot between 5:00 p.m. to 6:00 p.m. However, prior to inspection carried on the date of incident, the premises were inspected by him and Mr. Kuldeep, Junior Engineer, Civil Department, NDMC on 30.08.2016. When they went for inspection on 30.08.2016, there were 23 security guards at the main gate of the premises and there were three gates. These guards only take care of the security of the premises as all the gates remain locked. He could not say about the height of boundary walls of the premises. He affirmed that he had seen accused stealing the case property. He further deposed that he along with Shri Kuldeep and some other security staff went to Police Station at about 4:00 p.m. to 5:00 p.m. The accused persons were in the custody of police at that time. He further FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 6 deposed that when he reached on the spot, police official and security guards were there. He did not remember as to when the police official took the accused persons in the Police Station. He did not call the police. The police was called by the security guard. PW1 denied the suggestion that he did not go to the spot or that he has deposed falsely.
7. PW1 Shri Alok Bhatnagar was not crossexamined by Ld. Counsel for accused Balaji despite opportunity.
8. Assistant SubInspector Narender Singh, No. 1531/ND, Posted in Police Station Parliament Street, New Delhi was examined as PW2. He deposed on oath that on 21.01.2017 on receipt of D.D. No. 22A, he reached Hotel Connaught at Shaheed Bhagat Singh Marg, New Delhi where he met complainant, namely, Alok Bhatnagar along with security guard, namely, Anand Mishra, Chhote Lal and Junior Engineer Kuldeep. They handed over him two accused persons, namely, Balaji and Jitender. PW2 correctly identified accused Jitender in the Court. PW2 further deposed that complainant also handed over him three LCDs which were covered in a white colour sheet and one bag having some tools. Thereafter, he recorded statement of complainant, already Ex. PW1/A. After that he prepared rukka/tehrir of the present case, Ex. PW2/A, bearing his signature at point A. Subsequently, he handed over the rukka to Head Constable Raj Kumar for registration of FIR. Head Constable Raj Kumar went to Police Station Connaught Place and got registered the present FIR. Thereafter, Head Constable Raj Kumar returned back at the spot and FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 7 handed over copy of FIR and original rukka to him. Thereafter, he prepared site plan, already Ex. PW1/D, bearing his signature at point B. After that he seized the LCDs and white colour sheet, which were recovered from the accused Jitender vide Ex. PW1/B, bearing his signature at point B. The tools which were recovered from the possession of accused Balaji were duly seized vide seizure memo Ex. PW1/C, bearing his signature at point B. Thereafter, accused Balaji was arrested vide arrest memo, already Ex. PW1/E, bearing his signature at point B. Personal search of accused Balaji was conducted vide personal search memo Ex. PW1/F, bearing his signature at point B. Accused Jitender Yadav was arrested vide arrest memo Ex. PW1/G, bearing his signature at point B. Personal search of accused Jitender Yadav was conducted vide personal search memo Ex. PW1/H, bearing his signature at point B. Thereafter, disclosure statement of accused Jitender Yadav was recorded vide memo, Ex. PW2/B, bearing his signature at point A. Disclosure statement of accused Balaji was recorded vide memo Ex. PW2/C, bearing my signature at point A. Thereafter, he called the crime team for inspection of the spot but inspection could not be conducted due to the fact that power supply was off/disconnected. Thereafter, both the accused persons were medically examined at Ram Manohar Lohia Hospital, New Delhi. Thereafter, constable Ajit took the blood sample of accused Balaji and sample seal from the hospital and handed over to him which was seized vide seizure memo Ex. PW2/D, bearing his signature at point A. Thereafter, he produced both the accused persons in the Court on 22.01.2017 and obtained one day police custody remand of accused Jitender Yadav.
FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 8 Subsequently, he also obtained judicial remand of accused Balaji. PW2 further deposed that he tried to trace coaccused Anil but he could not be found. Thereafter, on 23.01.2017, accused Jitender Yadav was sent to judicial custody. On 23.01.2017, he again called the Crime Team for inspection of the spot and crime team collected blood lying on the ground, set up box, door lock etc. They also took photographs of the spot. The crime team handed over to him shoe footprint which were seized vide seizure memo Ex. PW2/E, bearing his signature at point A. The crime team also handed over him articles i.e. set up box of Tata Sky, door lock, LCD bracket, coffee mugs, empty quarter bottle of whiskey which were seized vide seizure memo Ex. PW2/F, bearing his signature at point A. The crime team also handed over him blood sample in white colour plastic bottle which was found from the spot and the same was seized by him in white colour cloth and sealed with the seal of N.S. vide seizure memo Ex. PW2/G, bearing his signature at point A. During investigation, he had served notice under Section 160 Cr.PC to complainant Ashok Bhatnagar for production of the list of stolen articles which are Ex. PW1/I and Ex. PW1/J respectively. He had also sent blood sample of accused Balaji which were collected from the hospital and the blood sample collected by the Crime Team to FSL, Chanakya Puri. He had also collected FSL report of the same, which is Ex. PW2/H (Collectively running into four pages). He had also recorded statement of witnesses under Section 161 of Cr.PC.
FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 9
9. Despite opportunity, PW2 Assistant SubInspector Narender Singh was not crossexamined by Ld. Counsel for both the accused persons.
10. Shri Kuldeep Singh, S/o Shri Rishipal Singh, R/o J.E. Civil BMPK, NDMC, Delhi was examined as PW3. He deposed on oath that on 21.01.2017, he had received a call from Junior Engineer Roshan Lal regarding theft in hotel 'The Connaught' situated at Bhagat Singh Marg. Thereafter, he made a call to Shri Alok Bhatnagar, Head Assistant, EstateI, NDMC, and informed him about the incident that security guard had caught two thieves. After sometime, he along with Ashok Bhatnagar and NDMC staff reached at the spot where supervisor Chhotey Lal along with security guards was already present there. Security guard told him that they had caught two persons and recovered three LCD TVs and some tools etc. When he reached at the spot, he saw both the accused persons. PW3 correctly identified both the accused persons in the Court. He further deposed that police officials seized tools vide seizure memo, already Ex. PW1/C. Police also seized LCD TVs and white bed sheet vide memo already Ex. PW1/B, both bearing his signatures at point A respectively. Thereafter, police arrested both the accused persons vide arrest memos, already Ex. PW1/E and Ex. PW1/G, both bearing his signatures at point C respectively. Subsequently, both the accused persons were personally searched vide personal search memos Ex. PW1/H & Ex. PW1/F, both bearing his signatures at point C respectively.
FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 10
11. During his crossexamination PW3 deposed that he had not seen the accused stealing the case property. He denied the suggestion that he did not know what was stolen. He further deposed that Chhotey Lal and Alok Bhatnagar informed him that accused persons have committed theft, therefore, they were apprehended. He denied the suggestion that he has deposed falsely.
12. Crossexamination of PW3 was not conducted on behalf of accused Balaji despite opportunity.
13. Head Constable Raj Kumar, No. 723/ND, (wrongly numbered as PW3), Posted at Police Station Connaught Place, New Delhi was examined as PW4. He deposed on oath that on 21.01.2017, I.O./Assistant SubInspector Narender Singh telephonically called him at Connaught Hotel, Shaheed Bhagat Singh Marg, New Delhi where NDMC staff had caught accused Jitender Yadav and Balaji. Both accused, Jitender Yadav and Balaji were correctly identified by PW4 in the Court. He further deposed that ASI Narender Singh prepared a rukka (tehrir) and handed over to him for registration of FIR. After registration of FIR, he (PW4) handed over the copy of FIR and original rukka to ASI Narender Singh. Thereafter, I.O. arrested accused Balaji vide arrest memo, already Ex. PW1/E, bearing his signature at point B. Thereafter, I.O. personally searched accused Jitender and Balaji vide personal search memos, already Ex. PW1/H & Ex. PW1/F, both bearing his signatures at point D respectively. Thereafter, I.O. recorded statement of both the accused FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 11 persons vide memos, already Ex. PW2/B and Ex. PW2/C, both bearing his signatures at point B respectively. Subsequently, I.O. seized the tools vide seizure memo Ex. PW1/C, bearing his signature at point D. I.O. also seized three LED and one white bed sheet vide memo, already Ex. PW 1/B, bearing his signature at point D. After that I.O. recorded his statement.
14. During his crossexamination, PW4 Head Constable Raj Kumar deposed that he reached at the spot at about 2:15 p.m. 2:30 p.m. where ASI Narender Kumar, NDMC Staff and two accused persons were present there. Thereafter, they along with both accused persons reached at Police Station at about 07:30 p.m. to 07:45 p.m. PW4 denied the suggestion that he did not go at the spot. He further denied the suggestion that accused was arrested by the I.O. in Police Station or that he has deposed falsely.
15. Despite opportunity, PW4 Head Constable Raj Kumar was not crossexamined by Ld. Counsel for accused Balaji or Jitender Yadav. However, with the permission of Court, Ld. APP reexamined the witness.
16. During his reexamination by Ld. APP for State, PW4 Head Constable Raj Kumar correctly identified both the accused persons in the Court. Since, the case property was already identified by PW1 Alok Bhatnagar as Ex. P1 collectively, reproduction of same was dispensed with.
FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 12
17. Chhote Lal, S/o Nathu Ram, R/o B571, Sunder Nagri, New Delhi was examined as PW5 (wrongly numbered as PW4). He deposed on oath that on 21.01.2017, while he was working as Supervisor in Bimla Security and checking the security guards, one of the security guards, namely, Anand Mishra (since deceased) called him and when he reached there, he found two persons (accused Balaji and Jitender Yadav) present there. One of them was caught by security guard Anand Mishra (since deceased) and another was also present there. He also saw three LEDs wrapped in white bed sheet (case property was already identified by PW1 Alok Bhatnagar, hence production of case property was dispensed with). Thereafter, security guard Anand Mishra made a call to the police. After sometime, police came at the spot and found some articles regarding theft. During this, NDMC Officials, namely, Bhatnagar and Kuldeep also reached there. Thereafter, he handed over accused, aforesaid articles and LEDs to NDMC Officials. Thereafter, I.O. arrested accused persons, namely, Balaji and Jitender Yadav vide arrest memos, already Ex. PW1/E and Ex. PW1/G, both bearing his signatures at point D respectively. Subsequently, both the accused persons were personally searched vide memos, already Ex. PW1/H and Ex. PW1/F, both bearing his signatures at point E. PW5 Chhote Lal correctly identified both the accused persons in the Court.
18. During his crossexamination by Ld. Counsel for accused Jitender Yadav, PW5 Chhote Lal deposed that his duty hours were from 2:00 p.m. to 10:00 p.m. and he was working along with seven security FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 13 guards. However, other security guards did not know about the incident at the same time. He further deposed that duty hours of security guard Anand Mishra were the same. The length of wall was about 10 feet. Only one security guard stayed at Connaught Hotel and other security guards were working in Shivaji Stadium. Prior to incident he had never seen stolen LEDs. He further deposed that guard Anand Mishra had caught both accused persons along with LEDs and on the basis of that incident he could say that LEDs belonged to hotel 'The Connaught'. PW5 Chhote Lal further deposed that Alok Bhatnagar reached at the spot at about 2:30 p.m. and opened the door at about 2:35 p.m. and checked the room. He found that LEDs were not there and then Alok Bhatnagar told that stolen LEDs were the same which were stolen from the rooms. After some time, police came at the spot at about 2:40 p.m. PW5 Chhote Lal denied the suggestion that he has deposed falsely.
19. Despite opportunity, PW5 Chhote Lal was not cross examined by Ld. Counsel for accused Balaji.
20. Assistant SubInspector Deepak, No. 2385/D, Posted in New Delhi District Mobile Crime Team was examined as PW6 (wrongly numbered as PW5). He deposed on oath that on 23.01.2017, he along with Assistant SubInspector Hem Chand and Constable Matadeen reached hotel 'The Connaught' at Connaught Place and at the instance of I.O., he along with team members inspected the scene of crime. Thereafter, crime team seized the articles mentioned in scene of crime report Ex. PW5/A, FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 14 bearing his signature at point A, and same was handed over to I.O. Thereafter, I.O. seized the articles, as mentioned in the report, vide seizure memo, already Ex. PW2/F, bearing his signature at point B. He also produced one white cloth which was seized by the I.O. vide seizure memo, already Ex. PW2/E, bearing his signature at point B.
21. Despite opportunity, PW6 Assistant SubInspector Deepak was not crossexamined by Ld. Counsel for accused persons.
22. Assistant SubInspector Hem Chander, No. 3075/D, Posted in Police Family Welfare Society, 5, Rajpur Road, Old Police Line, Delhi was examined as PW7 (wrongly numbered as PW6). He deposed on oath that on 23.01.2017, he along with Assistant SubInspector Deepak and Constable Matadeen (Photographer) had reached hotel 'The Connaught' at Shahid Bhagat Singh Marg, Connaught Place, New Delhi for inspection of crime scene where they met I.O./Assistant SubInspector Narender along with other police staff. Thereafter, they inspected the crime scene and clicked photographs of the spot. Assistant SubInspector Deepak also obtained the finger print marks which were available at the spot. He also took blood stains which were available on the ground with the help of cotton cloth. He placed the same in one small plastic pot and he (PW6) handed over the same to Assistant SubInspector Narender. Thereafter, I.O./ Assistant SubInspector Narender prepared a pulanda of the pot with the help of cloth and sealed the same with the seal of N.S. Subsequently, FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 15 I.O. seized the same vide seizure memo, already Ex. PW2/G, bearing his signature at point A. Thereafter, I.O. recorded his statement.
23. During his crossexamination by Ld. Counsel for accused Jitender Yadav, PW7 Assistant SubInspector Hem Chander denied the suggestion that he had not collected any blood stains from the spot and the same were planted by the I.O or that he has deposed falsely.
24. Despite opportunity, PW7 Assistant SubInspector Hem Chander was not crossexamined by Ld. Counsel for accused Balaji.
25. Constable Matadeen, No. 683/ND, Posted in Mobile Crime Team, New Delhi District, Police Station Mandir Marg, New Delhi was examined as PW8 (wrongly numbered as PW7). He deposed on oath that on 23.01.2017, while he was posted as Photographer in Crime Team, on receiving a call, he had joined investigation in the present case along with crime team members Assistant SubInspector Hem Chand & Assistant SubInspector Deepak and taken photographs of the crime scene with different angles. PW8 Constable Matadeen correctly identified photographs (54 photographs contained in six white envelopes), which were taken by him, as Ex. P1 collectively and negatives thereof (180 negatives) as Ex P2 collectively.
26. During his crossexamination PW8 Constable Matadeen deposed that he had taken the abovesaid photographs along with negatives.
FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 16 He denied the suggestion that he did not join the investigation and did not take photographs on the aforesaid address or that he has deposed falsely.
27. Constable Ajit Singh, No. 1095/ND, Posted in Police Station Connaught Place, New Delhi was examined as PW9 (wrongly numbered as PW8). He deposed on oath that on 21.01.2017, he was joined in the investigation by the I.O. and had taken blood samples of accused Balaji in one sample bottle as well as sample seal. He further deposed that he had taken approximately half an hour for the same process. PW9 Constable Ajit Singh denied the suggestion that accused did not take any food or drink during that period.
28. Constable Ashok Kumar, No. 634/ND, Posted in Prosecution Branch, Patiala House Courts, New Delhi was examined as PW10 (wrongly numbered as PW9). He deposed on oath that on 22.01.2017, he had joined investigation in the present case along with I.O./Assistant Sub Inspector Narender Singh and had gone to Rain Basera, Geeta Ghat, Kashmiri Gate, Delhi in search of one associate (coaccused), namely, Anil Kumar but could not succeed. Thereafter, they returned back to the Police Station and I.O. recorded his statement. PW10 Constable Ashok Kumar correctly identified accused persons in the Court.
29. During his crossexamination PW10 Constable Ashok Kumar deposed that he did not know if I.O. had made any departure or arrival entry in the Police Station or not as the same was not made by him.
FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 17 He further deposed that they left the Police Station at about 1:30 p.m. and reached the Rain Basera, Geeta Ghat, Kashmiri Gate, Delhi at about 2:30 p.m. through ARV Gypsy. He further deposed that the said Gypsy was driven by the private driver but he did not know his name. He further deposed that I.O. had not recorded statement of any inhabitant of Rain Basera, Geeta Ghat, Kashmiri Gate, Delhi. PW10 Constable Ashok Kumar denied the suggestion that he was not the part of investigation or that he has deposed falsely at the instance of I.O.
30. In his statement recorded under Section 294 Cr.PC, accused Balaji, S/o Himmat Rao and Jitender Yadav, S/o Radha Krishan admitted registration of FIR No.13/2017 at Police Station Connaught Place, New Delhi as Ex. P1 without admitting contents thereof.
31. After completion of evidence of all the PWs, P.E. was closed.
32. Statement of accused Jitender Yadav was recorded under Section 281 read with Section 313 of the Cr.PC on 29.07.2022, wherein all the incriminating evidence was put to him to which he replied that he has been falsely implicated and wrongly arrested by the I.O. in the present case.
33. Thereafter, the matter was fixed for final arguments.
34. Final arguments were advanced by both the parties. FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 18
35. Ld. APP for the State submitted that the prosecution has proved its case beyond reasonable doubt and all the witnesses have invariably supported the case of the prosecution. Arguments were also advanced by Ld. Counsel on behalf of NDMC to the effect that all the ingredients of the offences in question have been duly proved.
36. Per contra, it was submitted by Ld. Counsel for the accused that the story of the prosecution suffers from material inconsistencies and the case has not been proved beyond reasonable doubt.
37. The fundamental rule of criminal law postulates that the burden of proving the case rests on the shoulders of the prosecution. The case of the prosecution is that on 21.01.2017 at about 2:30 p.m. near Lady Harding Medical Hospital, Shahid Bhagat Singh Marg, Connaught Place within the jurisdiction of Police Station Connaught Place, New Delhi, accused Balaji and Jitender Yadav in furtherance of their common intention, trespassed in hotel 'The Connaught' and committed theft of three LCD TVs and subsequently, they were apprehended in possession of three LCD TVs which they had dishonestly received or retained, knowingly or having reasons to believe the same to be a stolen property. Thus, they both committed offences punishable under Section 380, 411, 454 & 34 of the Indian Penal Code, 1860.
38. I may briefly lay down the ingredients required for proving the offences under question. For bringing home the charge under Section 379 of IPC, it is essential that -
FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav
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(a) The accused must have moved the property out of
possession of any person;
(b) Such act of moving must have been committed with the
intention to take the property out of possession of any person in a dishonest manner.
39. Section380 IPC is an aggravated form of theft and provides for the offence of theft in a dwelling house. It is attracted when theft is committed from a building which is used for human dwelling or for custody of property. In this case, the Hotel in question falls squarely within the meaning of Section380.
40. For proving the offence under Section 411 of IPC, it is essential to prove that the accused had dishonestly received or retained any stolen property despite knowledge or reason to believe that the property was stolen. It is clarified under Section 410 of IPC that a property whose possession is secured as a result of theft, qualifies as stolen property within the meaning of Section 411 of IPC. Furthermore, for proving the offence under Section454 IPC, it is essential to prove that the accused effected his entry or was attempting to exit in any of the ways specified in Section445 IPC.
41. It is the foremost requirement of criminal law that the prosecution must establish three essential attributes - actus reus, mens rea and causal link between the crime and accused on trial. FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 20
42. The prosecution has examined nine witnesses in this case. The foremost requirement for proving the offence in question is that the accused had moved the stolen property out of possession of the premises belonging to the complainant and such act of moving was to take the property out of possession in a dishonest manner. The act of moving is an essential ingredient for proving the offence under Section 379 IPC. PW1 has deposed that he was called at the spot by his security supervisors Mr. Chhote Lal (examined as PW4) and Mr. Anand Mishra (could not be examined during the trial being deceased). It is deposed by PW1 that he was called by the security personnel, who had apprehended the accused persons along with three LCDs and miscellaneous objects including various tools used for breaking the locks. The LCDs were recovered from accused Jitender Yadav. He further deposed that thereafter, a seizure memo was prepared which is Ex. PW1/B and which bears his signatures at point A. The tools seized from the accused were recorded by a separate seizure memo Ex. PW1/C, bearing his signatures at point A. PW1 also confirmed that the site plan was prepared at his instance. The case property was opened during the examination and PW1 correctly identified the case property along with the tools and objects recovered from a separate bag carried by the accused. During crossexamination, PW1 confirmed that the recovery of LCDs was made from accused Jitender Yadav. He further deposed that he had not seen the accused stealing the property. PW2 primarily deposed regarding the preparation of seizure memo, site plan etc. and corroborated the course of action indicated in the testimony of PW1. The apprehension of the two accused FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 21 persons has been confirmed by PW3, who had correctly identified the accused in the Court. During his examination, PW4 Shri Chhote Lal deposed that on the date of incident, he was called by another Security Guard, namely, Anand Mishra who had apprehended the accused persons along with the LCDs, which were wrapped in a white bed sheet. The accused persons were correctly identified by PW4 in the Court. He further deposed that PW1 Alok Bhatnagar had inspected the rooms from which the LCDs were stolen and he confirmed the LCDs to be the stolen property.
43. PW1 also exhibited two crucial documents, Ex. PW1/I and Ex. PW1/J. PW1/I is a reply to the notice under Section 160 Cr.PC, wherein PW1 has stated that there were a total of 90 LCDs from ground floor to seventh floor of the hotel from which the LCDs were stolen. It further states that three LCDs were found with the accused persons, who were caught red handed in the hotel premises by the security staff. He also stated in his reply that the door locks of the hotel rooms were broken, sanitary fittings were missing from most of the bathrooms. He also stated that remaining 87 LCDs were also missing from the hotel. Since, the three LCDs recovered from the accused form a part of the total lot of 90 LCDs, the same have been identified by PW1 and there is no doubt that the recovered LCDs formed a part of the LCDs belonging to the hotel. The accused persons were apprehended within the premises of hotel and the fact of apprehension has been proved by PW4, PW1 and other police witnesses, who had reached the place of incident after FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 22 receiving a call on 100 number. The seizure memos prepared by I.O. are crucial for the case of the prosecution. The seizure memos bear the signatures of independent witnesses and the witnesses have testified about the same. The seizure memos categorically indicate that the property was recovered from the accused persons and the same was also identified by PW1 and PW4 during evidence. So far as the allegation under Section 411 of IPC is concerned, it is clearly established that the accused was found to be in possession of property which was the result of theft i.e. stolen property. So far as the charge under Section 379 IPC is concerned, it may be noted that the act of moving the property out of possession of the rightful owner or of any person is essential to be proved. In this case, it is established that the accused was apprehended along with case property while attempting to exit the premises of the hotel. For the commission of theft, it is not essential to prove that the initial moving of the property was committed by the accused. Rather, what is essential is that the accused had moved the property with the intention of taking it out of possession. The very fact that the accused persons were apprehended along with case property in the premises of the hotel, while attempting to exit, is in itself sufficient to show that the property was indeed moved by the accused. The act of moving is implicit in the circumstances of the case. No doubt, since the property was wrapped in white cloth and other objects were kept in a black bag, the intention was to take the property out of possession of the hotel, since they had no consent to do so. It is also noteworthy that Ex. PW1/J indicates that the Hotel premises was closed for a considerable period of FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 23 time due to Court orders. Therefore, circumstantial evidence indicates that the property could not have been moved by any other person and the act of moving was also committed by the accused from whose possession the property was recovered. It is also notable that the accused was apprehended within the premises of the hotel and thus, the act of moving was not over and the accused was apprehended during the act of moving.
44. Even otherwise, I may refer to Section 114 of the Indian Evidence Act, which enables the Court to raise certain presumptions with respect to the common course of natural events. The property in question was seized from the accused by way of an unrebutted seizure memo and after apprehension of the accused by security guards at the hotel, including PW4. The hotel was in a sealed condition and except the security guards, no one was occupying the building. In such a scenario, the Court has to be guided by the principles of circumstantial evidence, which require that for proving the guilt of an accused, all the circumstances must invariably point in the direction of guilt of the accused. There is ample material on the record to indicate that the act of moving as well as the act of retention of the property were attributable to the accused.
45. Even during the crossexamination, no suggestion was put by the accused to the effect that the case property was planted in any manner or that the apprehension was not justified. Even regarding the act FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 24 of moving, there is no material to go against the circumstantial evidence. All the circumstances point in the same direction.
46. The act of theft was committed in a dwelling house and thus, the offence committed by the accused falls within the meaning of Section380 IPC. So far as the offence under Section454 IPC is concerned, I am of the considered opinion that the prosecution has failed to prove its case against the accused for the commission of the said offence. It is so because the only witness who could have deposed regarding the manner of entry or exit of the accused from the premises was the first security guard Anand Mishra. The said guard could not be examined as a witness as he passed away before the trial could begin. Therefore, there is no witness on record to testify regarding the manner of exit of the accused. No doubt, it is highly likely that the accused must have managed entry either by climbing the wall or by using an entry point not meant for entry. However, mere likelihood cannot take the place of formal proof and the burden upon the prosecution is to prove the case beyond reasonable doubt and not on a preponderance of probabilities. Accordingly, the accused stands acquitted of the charge under Section454 IPC.
47. In view of the aforesaid discussion, I am of the considered view that the prosecution has successfully proved the guilt of the accused beyond reasonable doubt for the commission of offences under Sections 380 and 411 IPC. The essential ingredients of moving of property, dishonest intention to take it out of possession of the holder thereof and FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav 25 retention of the stolen property are duly proved by the prosecution on the basis of cogent, reliable and unrebutted evidence. Accordingly, accused Jitender Yadav is convicted for the commission of offences punishable under Sections 380 & 411 of the Indian Penal Code, 1860.
48. Let convict Jitender Yadav be heard on the point of sentence.
49. This judgment is contained in 25 pages and all pages have been signed by me at the bottom. A copy of this judgment has been provided to the convict free of cost.
YASHDEEP Digitally signed by YASHDEEP
CHAHAL
CHAHAL Date: 2023.08.28 05:00:43 +0530
Announced in the open Court (YASHDEEP CHAHAL)
th
On 28 August, 2023. Metropolitan Magistrate01 : New Delhi District Patiala House Courts, New Delhi.
FIR No. 13/2017 State Vs. Balaji (Proclaimed Offender) & Jitender Yadav