Delhi District Court
State vs Santosh on 13 September, 2013
IN THE COURT OF MS.CHHAVI KAPOOR
METROPOLITAN MAGISTRATE-13:
CENTRAL DISTRICT, TIS HAZARI COURTS
DELHI
FIR No.257/04
State V/s Santosh
U/S 380/411 IPC
PS Civil Lines
CC No. 280/2C
U. ID No.0240IR00395402005
Date of Institution :25.01.2006
Date of commission of offence :Between 28.08.2004 to 30.08.2004
Name of the complainant :Sh.Rajesh Sankhla S/o Sh Partap
SinghSankhla
Name and address of accused : Santosh Kumar Gautam S/o Sh.
Radhey Shyam Gautam, R/o Vill
Gurjan Guria PS Ghonda Distt. Aligargh
UP.
Offence charged with :411 IPC
Plea of guilt : Pleaded not guilty.
Final Order : Acquitted
Date on which order has been reserved : 12.08.2013
Date of pronouncement of Judgment :13.09.2013
JUDGMENT
1 Prosecution had filed a charge sheet against the accused Santosh Kumar Gautam S/o Radhey Shyam Gautam u/s 380/411 IPC. The story set out in the FIR No.257/04, PS Civil Lines State Vs Santosh 1/6 charge sheet is as under:-
2 On 02.09.2004, a complaint vide DD No. 30 A dated 02.09.2004 was received by SI Samar Pal. Upon the aforesaid complaint, action was initiated and statement of complainant Rajesh Sankhla was recorded on 06.09.2004 by SI Samar Pal, on the basis of which, the present FIR was registered against the accused at PS Civil Lines. In his complaint, complainant Rajesh Sankhala alleged that he was engaged in the business of cooperate dairy products and was running a milk parlour / milk booth at Transport Department, 5/9 Under Hill Road in the name of Jaipur Dairy since the last one month. He further alleged that milk products were being stored by him in a deep freezer. He stated that on 28.08.2004, at around 6.00pm , he had instructed his employee Sunil to lock the booth whereafter, the booth was locked and was reopened on 30.08.2004 at 10.00 AM. On opening the booth, the deep freezer was found to be missing by employee Sunil, who thereafter called the complainant. The complainant himself made enquiries and tried to trace out the missing deep freezer but to no avail. He suspected that his earlier temporary employee namely Santosh Kumar Gautam had stolen the deep freezer and hence, he gave a complaint against him at PS Civil Lines.
3 Upon the aforesaid complaint of the complainant, a rukka was prepared by SI Samar Pal. Further investigation in the matter was entrusted to SI Samar Pal, who during the course of investigation questioned the accused and made attempts to trace out the missing case property/ stolen articles. The deep freezer was recovered at the instance of the accused on 06.09.2004 from his rented accommodation at Amar Colony, East Gokul Puri,Delhi. Statement of witnesses was recorded by the IO during investigation and after completing the investigation , a charge sheet was filed against the accused in court. 4 During prosecution evidence, three witnesses were examined by the State. PW 1 ASI Mangal Ram was the duty officer at PS Civil Lines from 4 pm till 12 midnight on the date on which, the FIR was registered i.e. 06.09.2004. This FIR No.257/04, PS Civil Lines State Vs Santosh 2/6 witness proved that the FIR was registered by him, on the basis of rukka prepared by SI Samar Pal . PW 2 Uday Singh was the landlord of accused Santosh in the year 2004. He testified in court that on 06.09.2004, the accused was brought by the police at his house and enquiries were made from him. However, the witness failed to support the case of the prosecution as he deposed that no recovery of any article or fridge was made by the police in his presence. He even denied making any statement to the IO on 06.09.2004 that the accused had brought a deep freezer to his tenanted premises and had claimed that he had purchased the same. PW 3 SI Samar Pal (investigating officer) stated in his testimony that after conducting preliminary enquiry on the initial complaint of the complainant, he had recorded his statement on 06.09.2004and had got the present FIR registered at PS Civil Lines. He further testified that he prepared the site plan of the place of the incident at the instance of the complainant, who handed over the lock of the booth, from which the fridge was stolen . He stated that the accused Santosh Kumar was interrogated , who disclosed about his involvement in the case and claimed that he would get the stolen articles recovered from his rented accommodation at Gokul Puri,Delhi. Witness further deposed that at the instance of the accused, the stolen article i.e. deep freezer make Voltas was recovered from the rented accommodation of the accused, which was identified by the complainant to be his . Witness also stated that during the personal search of the accused, a key to the lock handed over by the complainant to the IO was also recovered. IO stated that the deep freezer was seized by him and deposited in the malkhana during investigation.
It is worthwhile to mention that during the course of prosecution evidence, the deep freezer i.e. the stolen article was not produced before the court for identification by even one of the prosecution witnesses. Even otherwise, the complainant Rajesh Sankhla was not examined by the prosecution in its evidence at any point of time. Even public witness Sunil Kumar, who as per the story set out in the charge sheet had found the deep freezer missing on opening FIR No.257/04, PS Civil Lines State Vs Santosh 3/6 of the milk booth on 30.08.2004 was not examined in prosecution evidence as he expired before his testimony could be recorded.
5 After conclusion of prosecution evidence, statement of the accused u/s 313 was recorded by the court in which the accused claimed that he had been falsely implicated by the police in connivance with the complainant i.e. his employer who had refused to pay him his legally due salary for five months.Accused further claimed that no deep freezer was ever recovered at his instance or from his possession from his rented accommodation and this was the reason why the case property was never produced by the state in prosecution evidence. He claimed that he had never given any disclosure statement to the IO or had pointed out the place from where the deep freezer was stolen , allegedly by him. He also claimed that the entry to the place where the booth was situated at the transport authority office was a restricted one and access was guarded by way of a gate pass and police had collected no evidence to show that he had access to the milk booth or had gone to the milk booth on the date of the incident. He also stated that the key , shown to have been recovered from him was planted by the IO in connivance with the complainant, with whom the IO had friendly relations. Accused examined one Defence Witness i.e. Vivek Kumar , who claimed himself to be an ex employee of the complainant at the milk booth situated at Ttransport Authority, Civil Lines. This witness stated that the keys of the booth , where the incident took place were always kept in the custody of Sunil, who used to report with the cash collection of the day to the owner Rajesh at all times. He claimed that the entry or exit of the Transport Authority was gated and the deep freezer could never have been transferred out of the milk booth without the previous permission or the knowledge of the owner or other officials. Infact it was stated by the defence witness that a similar case had been filed by the complainant against another ex employee who had demanded his salary/dues from the owner. 6 Arguments on the merits of the case were heard by the court.
FIR No.257/04, PS Civil Lines State Vs Santosh 4/6 7 The accused was facing trial u/s 411 IPC as a charge was framed
against him on 08.08.2007 on the allegations that on 06.09.2004, he had got recovered one deep freezer (make Voltas) belonging to the complainant from his possession at C 145, Amar Colony, East Gokul Puri, Delhi, which stolen article , he had retained or received, knowing or having reason to believe the same to be stolen property or unlawfully obtained. Strangely, the prosecution failed to examine the owner of the said stolen property and further failed to produce the stolen property before the court in its evidence. In circumstances of the case, the two complaints given by the complainant Rajesh Sankhla to the police remained unproved. Even otherwise, on the basis of the investigation conducted by the IO in this case, court was unable to gauge the grounds on which, the complainant had raised suspicion upon the accused in his complaint recorded on 06.09.2004. Prosecution was not able to prove that any recovery was made from the accused as the only public witness examined by it in prosecution evidence , denied having witnessed any recovery of any deep freezer from the accused in his presence. During cross examination, IO conceded that he had not enquired into the role of employee Sunil with regard to the facts of the case and had never recorded his statement during investigation. He also admitted that the identity card or the employment details of the accused were not shown to him by complainant and thus were not seized by him during investigation. He also admitted that the lock and key produced in the court appeared to be new and further that the other key of the lock was never seized by him during investigation. All these circumstances,coupled with non production of the case property in court raise serious doubts over the truthfulness of the recoveries allegedly made from the accused. On the other hand, accused had raised a plausible defence, whereby he had suggested that the complainant had falsely implicated him in this case in connivance with the police. Infact, it has come on record that the entry and exit to the transport authority office was guarded . Investigation conducted by the IO was silent on the fact as to whether the FIR No.257/04, PS Civil Lines State Vs Santosh 5/6 guards sitting at the gate had ever noticed any suspicious activity around the milk booth at the hands of the accused around the time of the incident. In addition to this, the mere mentioning of the name of the accused by the complainant in his complaint , thereby raising suspicion without giving any reason for his said opinion /suspicion tends to create holes in the veracity of the prosecution case. The inability of the prosecution to produce the complainant before the court for deposing in evidence further strengthen the plea of the accused that the complainant was in a habit of filing false cases against his ex employees on their demand for clearance of their salary dues. The case made out by the prosecution against the accused appears to be totally false and baseless. Prosecution has led no evidence against the accused to prove him guilty as charged with. Accused is accordingly acquitted in this case.
Announced in the open court Today on September 13, 2013 (Chhavi Kapoor) Metropolitan Magistrate-13(Central) Tis Hazari Courts, Delhi FIR No.257/04, PS Civil Lines State Vs Santosh 6/6 FIR No.257/04, PS Civil Lines State Vs Santosh 7/6