Delhi District Court
State vs Jitender Majhi. on 4 March, 2008
1
IN THE COURT OF SH KULDEEP NARAYAN M.M. PHC NEW DELHI
STATE Vs.Jitender Majhi.
FIR no. 224/07
PS Inderpuri.
U/S 380/411 IPC
JUDGMENT
a. Sl. NO. of the case : 481/1
b. Date of commission of offence: 27.8.2007
c. Date of institution : 23.10.07
d. Name of the complainant : Tara Chand Garg
e. Name of the accused. : Jitender Majhi, S/o Sh.
Nagender Majhi, R/o Vill. Ekma
PS Daudpur,Distt. Gorakhpur, U.P.
f.. The offence complained of : 380//411/34 IPC
g. The plea of the accused : Pleaded not guilty
h. Order reserved on ; Not reserved.
i Final order : Acquitted
j. Date of order : 04.03.08.
Brief statement of the reasons for the decision:
1. The brief facts of the prosecution case are that on 27.08.07 at about 1.30 pm, at EA1/72, Inderpuri accused Jitender Majhi entered in the house of complainant Tara Chand Garg with dishonest intention moved electric wires and was found in possession of stolen property knowing or having reasons to believe that such property was stolen and as such committed offence punishable u/s 380/411 IPC. On the basis of complaint made by complainant FIR was registered in 2 PS Inderpuri and case was investigated. After completion of investigation charge sheet was submitted and the accused Jitender Majhi was made to face trial.
2. On the basis of investigation conducted by the police, charge against accused Jitender Majhi was framed U/S 380/411 IPC stated and explained to him to which he had pleaded not guilty and claimed trial. Therefore, the case was fixed for PE.
3. In order to prove its case, prosecution examined PW1 Pappu Lal, PW2 Tara Chand Garg, PW 3 Ct. Lakhvinder, PW4 Sanjiv Mittal, PW5 SI Md. Yaseen Khan and PW6 WHC Kusum in all
4. The statement of the accused Jitender U/s 281 r/w 313 Cr.P.C was recorded in which the accused stated that he has n ot committed any theft. He further denied that he was caught red handed by PW2 Tara Chand or he was seen and apprehdned by PW1 Pappu Lal. He has taken the plea that he was working in the house of PW2 as labourer and he has been falsely implicated by PW2 Tara Chand Garg to avoid making payment to him.
5. I have heard Ld. APP and Ld. LAC and have also gone through the case file carefully.
6. In the present case prosecution got examined Tara Chand Garg as PW2 who is the complainant in the present case. PW 2 3 deposed that on 27.8.07 at about 1.30 pm accused had entered in his house and committed theft of electrical wires who was caught red handed by him. He further deposed that his guard namely Pappu Lal was also present at the time and he had also apprehended the accused. The PW2 proved the complaint made to the police as Ex. PW2/A.
7. Further a perusal of EXPW2/A reveals that it is not mentioned therein that the complainant had come to the roof of his house which was under construction and had noticed one boy. The complainant PW2 raised a voice of ''chor chor'' and thereafter his guard namely Pappu Lal had apprehended that boy, the accused in the present case. It is clear that in his statement Ex. PW2/A, PW2 had stated that he merely raised voice of chor chor and accused was apprehended by his guard Pappu Lal whereas in his examination in chief he stated that he had caught the accused red handed. This is a material contraction in the testimony of PW2 and his statement Ex. PW2/A .
8. Further, during his cross examination PW2 also stated that few labourers were also present at the spot whose name he could not recollect. He further stated that the police remained at the spot for about half an hour. However as per the testimony of PW 5 SI Md. Yaseen Khan, he remained at the spot for about 2/3 hours. PW5 also deposed that he had seen only one or two lady workers alongwith complainant Tara Chand and Pappu Lal who had showed their 4 ignorance about the incident. Then prosecution got examined PW1 Pappu Lal who deposed that he had caught the accused red handed. In his examination he also admitted that some public persons were also residing in nearby locality but no such person was called by the IO to join the investigation. He further admitted that the case property was not in sealed condition and the IO had not sealed it in his presence. PW 5 also deposed to this effect that the case property i.e. pilas (wire cutting instrument) was seized but it was not sealed. He also admitted that the type of wire which are the case property are available in the market and can be procured by any person. There was also no identification mark put on the case property.
9. Prosecution got examined Ct Lakhvinder as PW3 who deposed that the case property i.e wires are scrap and were hardly of a value of Rs.50/ or Rs.100/. He categorically stated that the IO did not invite any public witness in his presence except the two, that is complainant and Pappu Lal who are interested party. Similarly, PW4 Mr. Sanjiv Mittal was also examined who failed to remember at what point of time the wire of the case property were sold to the complainant. PW6 WHC Kusum only proved the copy of FIR Ex. PW6/A and her endorsement on rukka Ex. PW6/B but mere factum of registration of FIR is not sufficient to impute criminality to the accused.
10. In his statement recorded u/s 313 r/w 281 Cr.p.c accused took a defence that he was doing labour work in the house of PW2 Tara Chand and had gone to demand his due money but instead he was 5 falsely implicated in the present case.
11 Taking into consideration the testimony of entire prosecution witnesses, a reasonable doubt has been created with regard to the apprehension of the accused while committing theft in the house of PW2 Mr. Tara Chand Garg. There are material contradiction in the testimonies of PW1 and PW2 with respect to apprehending the accused red handed at the spot. There is also a doubt regarding the presence of the other persons at the spot. Further the presence of the police officials and the duration of their stay is also not beyond doubts. On the one hand PW2 stated that the police remained for about half an hour whereas PW5 categorically deposed that he remained at the spot for about 2/3 hours. No other person except PW1 Pappu Lal, guard of the complainant was joined in the investigation. Though it has come on record that some labourer were also present at that time. It is also not in dispute that the value of the case properties i.e. pieces of the wire of around one to two feet or three to four feet was around Rs.50/ to Rs.100/. The time of the incident as alleged is 1.30 pm during day hours and it is most unlikely that any person will took or will dare to attempt such an heinous crime for such paltry sum of rupees.
12. In the given circumstances, it is clear that the prosecution has failed to bring home the charge U/s 380/411 IPC to the accused beyond reasonable doubt. The contradictions in the testimonies of prosecution witnesses are material which goes to the root of the case. The defence taken by the accused appears to be a reasonable and 6 plausible. Be that as it may, it is plain and simple that the prosecution has failed to bring home the charge U/S 380/411 IPC to the accused beyond all reasonable doubt. Accordingly I extend the benefit of doubt to the accused and acquit him. Accused is acquitted.
13. B/B of accused is cancelled and surety discharged. 14 File be consigned to Records.
Pronounced in open court (KULDEEP NARYANA) Dt.04.03.08. M.M, PHC,New Delhi