Delhi District Court
State vs . Suraj, Etc. on 31 January, 2012
1/16 FIR No.655/2006
IN THE COURT OF ANKUR JAIN
METROPOLITAN MAGISTRATE
KARKARDOOMA COURT, DELHI
FIR No.655/2006
State Vs. Suraj, etc.
U/s. 457/380/411/34 IPC
PS Welcome
1. Sl. No. of the case 677/2007 dated 16.11.2007
2. Date of commission of offence 28/29.08.2006
3. Date of Institution 17.11.2006
4. Name of the complainant Sh. Deepak Gupta S/o Sh. Raj
Kumar Gupta, R/o H.No.954E, 100
Foota Road, Babar Pur, Shahdara,
Delhi.
5. Name of the accused 1. Suraj S/o Ram Adhar R/o
H.No.B2/145, Nand Nagari, Delhi.
2. Pappu Yadav @ Santosh S/o
Sita Ram R/o B2/399, Nand
Nagari, Delhi.
3. Sudhir Pandey S/o Parmatma
Pandey R/o B2/448, Nand Nagari,
Delhi. (Since P.O.).
6. Offence Complained or proved U/s 457/380/411/34 IPC
7. Plea of the accused Pleaded not guilty
8. Arguments heard /Order reserved on 17.01.2012
9. Date of such order 31.01.2012
10. Final Order Acquitted
2/16 FIR No.655/2006
J U D G M E N T
1. Brief facts of the prosecution case are that DD NO.6A was recorded at P.S. Welcome regarding a theft and a copy of the same was handed over to ASI Surender Pandey, IO for investigation. But the same was kept pending enquiry. On 30.08.2006 complainant Deepak Gupta came in the P.S. and gave his statement to the IO to the effect that he was running a shop of selling of Inverters and Battery. On 28.08.2006 he closed his shop at about 8 PM and went to his house. On the next day, when he came at his shop and opened his shop, he saw lock of the drawer of counter was broken and amount of Rs.3,00,000/, one idle of Mata Sherawali and one Titan Watch were missing. Someone had stolen his above said articles. On this statement of Deepak Gupta, IO prepared rukka and handed over to Duty Officer who recorded FIR No.655/2006 U/s 380 IPC. IO along with complainant went to the spot and at the instance of complainant he prepared site plan. IO called Crime Team through Wireless. Crime Team came at the spot and enquired the mater but no clue was found. IO searched for the accused but in vain. During investigation, IO arrested all the three accused persons and part recoveries of the stolen money were effected from their houses. Accused Suraj got recovered Rs.99,000/ from his house. Accused Pappu got recovered Rs.21,500/ and one driving licence of R.K. Gupta from his house and accused Sudhir Pandey got recovered 3/16 FIR No.655/2006 Rs.15,200/ and one cheque book of Syndicate Bank from his house and same were seized by IO. After completion of investigation, charge sheet U/s 457/380/411/34 IPC was submitted against accused persons in this court for trial. Accused Sudhir Pandey was declared Proclaimed Offender during trial of the case.
2. Accused persons put their appearance in the court. Copies of challan were supplied to them. After hearing, charge U/s 457/380/411 IPC was framed on 09.02.2010 against accused persons to which they pleaded not guilty and claimed trial.
3. Prosecution examined 5 witnesses in support of its case. PW2 is ASI Vijay Pal Singh, Duty Officer who recorded and proved FIR No.655/2006 copy of which is Ex.P.W.2/A.
4. P.W.1. is Deepak Gupta, complainant who has stated that he was running a shop of selling of Inverters and Battery. On 28.08.2006 he closed his shop at about 8 PM and went to his house. On the next day, when he came at his shop and opened his shop, he saw lock of the drawer of counter was broken and amount of Rs.3,00,000/, one idle of Mata Sherawali and one Titan Watch were missing. Someone had stolen his above said articles. He made a call to the police and police came on the spot. Police recorded his statement on 30.08.2006 which is Ex. PW 1/A on the basis of which FIR was registered. One of his employees namely Pappu did not come after above said incident and it created a suspicion and 4/16 FIR No.655/2006 sketch of the Pappu was got prepared and his biodata was verified and it was found fake. Accused Suraj was arrested vide personal search and arrest memo Ex. P.W.1/B and Ex.P.W.1/C. Accused Suraj made disclosure statement Ex.P.W.1/D and he got recovered Rs.99,000/ and passbook of Syndicate Bank from an iron box kept in his house. The above said amount and passbook was seized by IO vide seizure memo Ex. P.W.1/E. Accused Pappu was arrested vide personal search and arrest memo Ex.P.W.1/F and Ex.P.W.1/G. Accused Pappu got recovered Rs.21,500/ and one driving licence from his house. The amount and D.L. was seized by IO vide seizure memo Ex.P.W.1/H. On 14.09.2006, accused Sudhir was arrested vide personal search and arrest memos Ex.P.W.1/I and Ex.P.W.1/J. Accused Sudhir made disclosure statement Ex.P.W.1/K. On 15.09.2006 he got recovered Rs.15,200/ from his house. The said amount was seized by IO vide seizure memo Ex.P.W.1/L. Memos regarding identification of spot are Ex.P.W.1/M to Ex.P.W.1/O. The said amount was obtained on superdari vide executing superdarinama Ex.P.W.1/P. He identified the photocopies of currency notes recovered from the accused as collectively Ex. P1. I identified passbook of syndicate bank and DL which were recovered from the accused and the same are Ex.P2 and P3. He also identified photocopy of the Cheque book as Mark A. in crossexamination he stated that accused persons were arrested on 11.09.2006 and on 5/16 FIR No.655/2006 13.09.2006. He did not know where the accused persons were arrested. He admitted that disclosure statements of accused were recorded in his presence and that the recovery of the above said amount was effected in his presence from their respective houses. He admitted that in his initial complaint, he did not disclose the name of the accused person. He stated that suspicion arose against accused Pappu as he has stopped coming to my shop. The denominations of currency notes which were stolen were of different amount. The amount of Rs.3,00,000/ which were stolen was to be deposited in the Bank. The same was received by selling the Inverter Battery. He had signed the seizure memo with respect to the recovery. Entire amount of three lakhs was not recovered. He stated that he had seen accused Suraj for the first time when he was arrested. He had gone to the house of accused at Nand Nagari when recovery was effected. The amount was recovered from the iron box of the house of accused. He had not mentioned in his complaint made to the police the denominations of currency stolen. He did not remember whether IO had recorded statement of any other witness in his presence. Two police officials were present when he visited the house of accused.
5. PW3 is ASI Surender Pandey, IO who has stated that on 29.08.2006 on receipt of DD NO.6A regarding a theft, he went to the spot, i.e. Shop at 100 foota Road, Babar Pur, Shahdara where brother of complainant met him and stated that complainant Deepak had gone 6/16 FIR No.655/2006 somewhere and he would give his statement later on. On 30.08.2006 complainant Deepak came in the P.S. and gave his statement regarding theft of Rs.3,00,000/, one photo of Mata and one Titan watch from his shop. He recorded statement Ex.P.W.1/A of Deepak Gupta and prepared rukka Ex.P.W.3/A and handed over to Duty Officer for registration of FIR. Thereafter he along with complainant went to the spot and prepared Site Plan Ex.P.W.3/B at the instance of complainant. He called Crime Team through Wireless and searched for the accused but in vain. Crime Team came at the spot and enquired the matter but no clue was found. He further stated that on 11.09.2006 on secret information he along with Ct. Brij Pal, complainant and secret informer went to Nand Nagari in the park and apprehended accused Suraj. He interrogated the accused who made a disclosure statement Ex.P.W.1/B that he along with accused Pappu and Sudhir Pandey had committed theft in the showroom at E950, Baber Pur, 100 Foota Road. Accused took them to his house at Nand Nagari and got recovered Rs.99,000/ from the iron box along with one pass book of Syndicate Bank and the same were seized vide seizure memo Ex.P.W.1/E. Slip of Syndicate Bank was affixed on the currency notes. Accused Pappu surrendered in the court and he arrested him vide arrest and personal search memos Ex.P.W.1/F and Ex.P.W.1/G. Accused Pappu made a disclosure statement Ex.P.W.2/A On 13.09.2006 he along with Ct. Sanjeev, complainant 7/16 FIR No.655/2006 and accused Pappu went to B2 Block, Nand Nagari where accused Pappu got recovered Rs.21,500/ from his house and also produced one Pass Book of Canara Bank which were seized vide memo already Ex.P.W.1/H. On 14.09.2006 on secret information IO arrested accused Sudhir Pandey from his house at Nand Nagari vide personal search and arrest memos Ex.P.W.1/J and Ex.P.W.1/I. Accused Sudhir Pandey made a disclosure statement Ex.P.W.1/K and got recovered Rs.15,200/ and one cheque book and driving licence of Deepak Gupta and same were seized vide memo Ex.P.W.1/L. All the accused pointed out place of occurrence vide pointing out memos. He identified photo copies of currency notes recovered from the accused as Ex.P1, pass book of Syndicate Bank as Ex.P2, driving licence as Ex.P3 and photo copy of cheque book as Mark A. He was cross examined by learned APP on the point of recovery and in cross examination he admitted that accused Pappu did not produce pass book of Canara Bank but he got recovered driving licence of complainant Deepak Gupta which was seized on 13.09.2006. He admitted that accused Sudhir Pandey had not got recovered D.L. from his house and he had only got recovered the cheque book and Rs.15,200/ from his house on 15.09.2006. He mistakenly deposed regarding recovery of D.L. from accused Sudhir pandey as long time had been elapsed. In the crossexamination by counsel for accused he has stated that on 29.08.2006 at about 10/10.15 am. on receipt of 8/16 FIR No.655/2006 DD No.6A he reached the spot within 10 minutes. He was alone at that time and saw servants of the shop and elder brother of the complainant. He did not prepare police party. Firstly, accused Suraj was arrested on 11.09.2006 at about 34 p.m. Thereafter, accused Pappu was arrested on 13.09.2006 at about 56 p.m. At the time of arrest of accused Suraj, Deepak Gupta, informer and Ct. Brij Pal were with him. At the time of arrest of accused Pappu, Ct. Sanjeev was present with him. He could not tell the number of currency notes. He stated that currency notes were of denominations of Rs.500/, Rs.100/, Rs.50/ and Rs.10/ but he could not tell their number. He stated that he conducted investigations in 150/200 matters.
6. P.W.4 is Ct. Brij Pal who has stated that on 11.09.2006 he joined the investigation with ASI Satender Pandey (actually Surender Pandey), IO and he along with ASI Satender Pandey, secret informer and complainant Deepak Gupta went to bus stand of route no.212, Nand Nagari and accused Suraj was apprehended. IO interrogated accused Suraj who made a disclosure statement Ex.P.W.1/B and thereafter pointed out the place of occurrence vide pointing out memo Ex.P.W.1/A. Accused took them to his house at B2/145, Nand Nagari and got recovered Rs.99,000/ from the iron box kept in his house along with one pass book of Syndicate Bank which were seized vide seizure memo Ex.P.W.1/E. He further stated 9/16 FIR No.655/2006 that on 15.09.2006 he joined investigation with ASI Surendery Pandey and they arrested accused Sudhir Pandey vide personal search and arrest memos Ex.P.W.1/J and Ex.P.W.1/I. Accused Sudhir Pandey got recovered Rs.15,200/ and one cheque book of Syndicate Bank from his house which were seized vide memo Ex.P.W.1/L. He identified photo copies of currency notes recovered from accused persons as Ex.P1 collectively, Pass book of Syndicate Bank as Ex.P2 and photo copy of cheque book as Mark A. In crossexamination, he stated that he did not remember the time when they reached at the house of accused Suraj. Disclosure statement of accused Suraj was recorded by IO at the spot but he did not remember the time. Currency notes recovered from house of accused Suraj consisted of 100 notes of Rs.500/, 79 notes of Rs.100/, and 27 notes were of Rs.20/ and one note was of Rs.10/ and remaining notes were of Rs.50/. They remained at the house of the accused for about two hours. The IO also recovered a pass word from the house of accused but he could not remember the name of the account holder. But he could not tell how much amount was in the account of passbook. The amount of Rs.99,000/ was recovered on the instance of accused from the iron box but the said iron box was not seized by the IO. Complainant identified the said amount as his own. IO did not write down the secret information in any document. He did not know whether IO disclosed secret information to higher officials. There 10/16 FIR No.655/2006 were public persons present at the spot at the time of alleged recovery from accused Suraj. But none was joined in this case.
7. P.W.5 is HC Sanjeev who has stated that on 12.09.2006 he along with ASI Surender Pandey came to Karkardooma Court Complex where accused Pappu Yadav had surrendered and he was arrested by IO with the permission of the court vide personal search and arrest memos Ex.P.W.1/F and Ex.P.W.1/G. Accused Pappu Yadav made disclosure statement vide already Ex.P.W.2/A. Pointing out memo of accused Pappu is Ex.P.W.1/N. On the same day, they went to Nand Nagari Colony where accused Pappu got recovered Rs.21,500/ and same was seized vide memo Ex.P.W.1/H.
8. Thereafter vide order dated 18.10.2011 prosecution evidence was closed as all the material witnesses as per prosecution list stood examined.
9. I have heard Ld. APP, Sh. S.C. Goutam, learned counsel counsel for the accused and perused the entire evidence on record.
10. Before adverting to the factual matrix, it is important to discuss the legal requirements of Section 457 IPC and Section 380 IPC. In order to prove the case U/s 457 IPC, it is the duty of the prosecution, in order to bring home the guilty of the accused, to prove :
(a) that a person commits lurking housetrespass by night or house breaking by night 11/16 FIR No.655/2006
(b) He does so in order to the commission of an offence punishable with imprisonment.
Similarly, in order to prove the case U/s 380 IPC, it is the duty of the prosecution, in order to bring home the guilt of the accused person under section 411 IPC, to prove :
(a) that a person commits theft
(b) that the theft is committed in any building, tent or vessel ( c) that the building, tent or vessel is used as a human dwelling or used for the custody of property.
11. Applying the above principles of law, firstly it is to be seen whether the prosecution has been able to prove its case that accused persons had committed lurking house trespass by night and dishonestly removed Rs.3,00,000/ and other articles from the shop of complainant. In the present case, P.W.1 Deepak Gupta is the complainant who has simply stated about the theft of Rs.3,00,000/, one idol of Mata Sherawali and one Titan Watch from his shop on the night of 28.08.2006 after close of the shop. There is not even an iota of evidence on record to prove the charges U/s 457/380/34 IPC. No eye witness has been cited by the prosecution to prove that any of the accused had ever committed lurking house trespass by night at the said shop of complainant and removed Rs.3,00,000/, idol of Mata Sherawali and one Titan Watch. None of the accused has been named 12/16 FIR No.655/2006 in the statement Ex.P.W.1/A of complainant which is the basis of registration of the FIR in the present case. The complainant has not expressed even a doubt on any one in the said statement. Though a part of the stolen amount had been recovered by the police in the presence of complainant but the said recovery is under cloud of doubt. The complainant has stated that the amount of Rs.3,00,000/ was the sale proceeds of Inverter Batteries of the said day. But no documentary proof, i.e., the bill book or cash receipts book or any rough written account has been produced on record to prove that the said amount was the sale proceeds of the said day on the shop. No separate identification mark was put any of the recovered money from the accused persons. Further, only part of amounts have been recovered from each of the accused from their houses at Nand Nagari but no independent witness has been joined by the IO to lend creditability to the recoveries. IO has even not prepared any site plan of places of recoveries to exactly pinpoint the places of recoveries and to lend creditability to the recoveries. Further, there is no mention of any DL, Passbook of Syndicate Bank or photo copy of cheque book recovered from the accused persons in the statement Ex.P.W.1/A of the complainant which the very basis of the FIR nor there is any supplementary statement of the complainant that his DL, passport or cheque book was also missing. Hence possibility of false plantation of these documents upon the accused persons cannot be 13/16 FIR No.655/2006 ruled out. Complainant in his crossexamination has stated that he did not know where the accused persons were arrested. But the arrest memos Ex.P.W.1/C and Ex.P.W.1/J bears the signatures of complainant. Further, there is a delay on the part of the complainant in lodging the FIR. The incident had occurred on the night of 28.08.2006 and complainant came to to P.S. on 30.08.2006 and at about 5.20 p.m. FIR was lodged by complainant. Theft of huge amount of Rs.3,00,000/ was committed in the shop of complainant but he did not immediately gave his statement to the police for the reason best known to him. On receipt of DD No.6A, when IO reached at the shop of complainant, he was not available and DD No.6A was kept pending enquiry. No plausible reason for delay in lodging the FIR has been given either by the complainant or by the prosecution. Hence, evidence of complainant is unbelievable. Thus, the evidence of complainant cannot be relied upon to convict the accused persons under any of the charges framed against the accused persons.
12. In order to prove the case U/s 411 IPC, it is the duty of the prosecution in order to bring home the guilt of the person under section 411 IPC to prove that:
a) that the stolen property was in the possession of the accused.
b) that some person other than the accused had possession 14/16 FIR No.655/2006 of the property before the accused got possession of it and
(c) that the accused had knowledge that the property was a stolen property.
13. Applying the above principle of law, it is to be seen whether the prosecution has been able to prove the recoveries from the accused persons. In the present case, P.W.1 Deepak Gupta, P.W.3 ASI Surender Pandey, IO and P.W.4 Ct. Brij Pal are the witnesses of recovery. Evidence of P.W.1 has been discussed above which is unbelievable. There are material loopholes and contradictions in the statements of P.W.3 and P.W.4 which creates a serious doubt in the recovery. The IO has not seized any bill book or cash receipts book or any kachha account work to prove on record that the said amount was the sale proceeds of the said day on the shop of the complainant. Both the officials witnesses could not tell the number of currency notes of different denominations recovered from each of the accused persons. Further, only part of amounts have been recovered from each of the accused from their houses at Nand Nagari but IO did not try to join any independent public witness in the recoveries effected from the accused persons. IO has even not prepared any site plan of places of recoveries to exactly pinpoint the places of recoveries and to lend creditability to the recoveries. Further, there is no mention of any DL, Passbook of Syndicate Bank 15/16 FIR No.655/2006 or photo copy of cheque book recovered from the accused persons in the statement Ex.P.W.1/A of the complainant which is the very basis of the FIR or in his supplementary statement recorded by IO. Though IO has received secret information in advance before recovery but the said information was not noted down in any document. Nor any independent witness was joined in the raiding party despite prior secret information.
14. Further, there is a delay in lodging the FIR and no plausible reason has been given by the prosecution. As per the case of the prosecution, intimation in the P.S. was received on 29.08.2006 and DD entry was made which is DD No.6A. In statement of P.W.3 it has come on record that pursuant to that DD P.W.3 had gone to place of occurrence, where he met with brother of complainant who did not give any explaination as to why the complainant was not present apart from giving a vague answer and that complainant had gone somewhere. It is highly unlikely that a person whose amount of Rs.3,00,000/ is stolen would roam around and would not give the statement to police. It is only on next day, complainant gave a statement and in that statement nowhere it is mentioned that his D.L., passbook or any other document was missing. The prosecution has failed to explain the delay. The benefit undoubtedly would go to the accused. Secondly, DD No.6A has not been proved on record. The IO has failed to annex the copy thereof or cite any witness who could 16/16 FIR No.655/2006 have proved the D.D. No.6A which is a clear lapse on the part of the prosecution. Thus, the evidence of official witnesses cannot be relied upon to convict any of the accused persons U/s 411 IPC in view of the contradictions.
15. Keeping in view all these facts, I am of the view that prosecution has failed to prove all the ingredients of Section 457/380 IPC or U/s 411 IPC i.e. it has not been proved on record that the accused persons had in furtherance of common intention committed lurking house trespass and dishonestly removed Rs.3,00,000/ and other articles belonging to complainant or that accused persons got recovered part of the recovered amounts which they dishonestly received or retained knowing or having reason to believe the same to be stolen property. The recovery of knife is not beyond cloud of doubt. Hence, I have no hesitation to hold that prosecution has failed to prove its case U/s 457/380/34 IPC or U/s 411 IPC against the accused beyond reasonable doubt and accordingly the accused persons are acquitted of the offence charged with. Bail bonds and sureties of accused are treated as the ones U/s 437A Cr.P.C. File be consigned to Record Room.
ANNOUNCED IN THE OPEN
COURT ON 31.01.2012 (ANKUR JAIN)
METROPOLITAN MAGISTRATE,
KARKARDOOMA COURT DELHI