Delhi District Court
State vs Sagir @ Kalia on 1 September, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 121/2005
PS Kanjhawala
State Vs Sagir @ Kalia
Date of Institution: 28.01.2006
Date of Judgment: 01.09.2018
JUDGMENT
(a) Serial Number of the case : 546826/2016
(b) Date of commission of offence : between 26.04.2005 to 27.04.2005
and on 03.06.2005
(c) Name of the complainant : Abdul Hai
(d) Name of Accused, his : Sagir @ Kalia,
parentage & residence S/o Sh. Naseer Khan
R/o H.No. B-112, Meer Vihar, Delhi
(e) Offence complained of : Under Section 457/380/411 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final arguments heard on : 25.08.2018
(h) Final order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The accused Sagir @ Kalia has been sent to face trial for the commission of offences under Section 457/380/411 of the Indian Penal Code on the allegations that on 26.04.2005 to 27.04.2005 at about 11.15 pm at C-5, Meer Vihar, Mubrakpur Dabas, Delhi he alongwith Mohd. Ali @ Bhullar and Mohd. Amir S/o. Rahisuddin (both FIR No. 121/2005 PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 1 of 13 juvenile) had committed house breaking into the house of complainant Abdul Hai after sunset and before sunrise by entering into the said dweling and on the said date and time, he had also committed theft with the above said persons of one colour T.V., one VIP suitcase containing clothes and cash of Rs. 15,000/- and some college certificates. It has been further alleged against the accused that on 03.06.2005, at B-112, Meer Vihar, Kanjhawala, he got one Samsung TV recovered which he received or retained knowing or having reason to believe that it belonged to the complainant Abdul Hai and was stolen property.
2) After completion of the investigation, chargesheet was filed in Court against the accused Sagir @ Kalia and cognizance of the offence was duly taken by the Ld Predecessor who also summoned the accused. After the accused entered appearance, copy of the chargesheet along with the documents was supplied to him in compliance of Section 207 of the Code of Criminal Procedure.
3) After consideration of the arguments on charge, charge was framed against the accused Sagir @ Kalia for offences under Section 380/ 457/ 411 IPC to which he pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 07 witness.
5) PW1 W/HC Saroj Bala being the Duty Officer proved the factum of registration of FIR Ex.PW-1/A on 27.04.2005 the basis of rukka received from Ct. Bhoop Singh at 1.20pm sent by HC Dharampal.
FIR No. 121/2005PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 2 of 13 She also proved her endorsement on the rukka at point A. She was not cross-examined by the Ld. Counsel for the accused despite opportunity.
6) PW2 Ct Bhoop Singh testified as to having went with HC Dharampal on 27.04.2005 to C-5, Meer Vihar, Mubarakpur, Delhi, on receipt of DD No. 28B regarding theft, where they met the complainant Abdul Hai whose room was in disturbed condition with articles lying scattered. He further testified as to the IO having recorded the statement of complainant Ex. PW2/A, as to the IO having seized the broken lock which was produced by the complainant, as to the IO having prepared the rukka Ex. PW2/B and as to IO having got the FIR registered through PW2 who returned to the spot and handed over the copy of FIR and original rukka to the IO. He was also not cross- examined on behalf of the accused despite opportunity.
7) PW3 ASI Dharampal Singh being the first Investigating Officer testified as to having gone with PW2 Ct Bhoop Singh on 27.04.2005 to C-5, Meer Vihar, Mubarakpur, Delhi, on receipt of DD No. 28B Ex PW3/A where they met the complainant Abdul Hai and PW3 recorded the statement of complainant Ex PW2/A. He also identified his signatures on statement of the complainant Ex. PW2/A and rukka Ex PW2/B testifying as to having got the FIR registered through PW2. He further testified as to the further investigation having been marked to SI Hans Raj. He was also not cross-examined on behalf of the accused despite opportunity.
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8) PW4 Dr. Sanjay Kumar Jain proved X-ray reports done in respect of the MLC No. 1609 of Amir Ex. PW4/A and MLC no. 1610 of Mohd Ali Ex. PW4/B prepared by Dr. R. K. Mishra, identifying the handwriting and signatures of Dr R K Mishra. He was also not cross- examined on behalf of the accused despite opportunity.
9) PW-5 HC Dalbir Singh testified as to having joined the investigation with IO ASI Hans Raj on 03.06.2005 and as to having gone into the field behind Meer Vihar Colony, Near Madanpur village where three boys were sitting under neem tree who had committed theft some days ago as per information given to IO by secret informer. He further testified that all the three boys were apprehended and arrested vide memo EX. PW5/A to PW5/C and IO recorded the disclosure statement of accused Sagir, Mohd. Ali @ Bhullar and Aamir Ex. P1 to P3 identifying his signatures thereon. He further testified as to the accused Sagir having led them to his house and as to one Samsung colour TV with remote having been recovered at his instance which was seized vide memo Ex. P4. He further testified as to one Canon camera being recovered at the instance of Mohd. Ali seized vide memo Ex. P5 and one exhaust fan without its blade being recovered from Aamir which was seized vide memo Ex. P6. He correctly identified the accused in the Court and also correctly identified his signatures on the document. He was duly cross-examined at length on behalf of the accused upon an application under Section 311 of the Code of Criminal Procedure.
10) PW6 Abdul Hai, being the complainant herein testified as to FIR No. 121/2005 PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 4 of 13 having gone to Jamia Millia Islamia on 26.04.2005 at about 11.30 am after having locked his house and as to returning on the next day, at about 11.15 am when he found that lock of his house was broken and one 14" colour Samsung T.V. one VIP suitcase containing his clothes, one Canon camera, one exhaust fan, cash of Rs. 15,000/- and some other articles were missing upon which he called at 100 number. He further testified as to the police having come to the spot and having recorded his statement Ex. PW2/A and seized the bill of the T.V. Ex. PW6/A. He further testified as to having got his articles released from Court later on supardarinama Ex. PW6/B. He correctly identified the case property Ex P1 to Ex P3 in the Court as well as his signatures on the documents. He was duly cross examined on behalf of the accused.
11) PW7 Inspector Hansraj being the second investigating officer testified on similar lines as PW5. He also testified as to having prepared the site plan at the instance of the complainant Ex PW7/A. He went on to testify as to having arrested and personally searched Mohd. Sagir, Mohd. Ali and Mohd. Amir vide memo Ex. PW7/A to PW7/E, as to having recorded their disclosure statements Ex P1 to P3 and as to having prepared the pointing out memo of the spot at the instance of accused Ex. PW7/B. He also testified on similar lines as PW5 as to recovery of the case property correctly identifying the accused as also the recovered case property Ex. P1 to P3 in the Court. He also testified as to having deposited the case property in the malkhana and as to the bill of the TV Ex PW6/A having been seized by him. He also correctly identified his signatures on the FIR No. 121/2005 PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 5 of 13 documents and was duly cross examined on behalf of the accused on an application under Section 311 of the Code of Criminal Procedure.
12)After prosecution evidence was closed, the statement of accused was recorded under Section 313 of the Code of Criminal Procedure by the Ld Predecessor wherein the entire incriminating evidence was put to the accused who maintained his innocence and chose not to lead any defence evidence.
13)Final arguments as advanced by Sh Vikas Ld. APP for the State and by Sh B.P.Singh Ld. Legal Aid Counsel for the accused have been carefully considered along with the evidence on record.
14)It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
15)The accused has been charged for the commission of the offence under Section 457 of the Indian Penal Code which prescribes punishment for lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment. To prove the same, it was for the prosecution to prove that the accused had entered into the property which was in possession of another; that FIR No. 121/2005 PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 6 of 13 there was an intention to commit an offence on part of the accused; that such property was any building / tent/ vessel used for human dwelling on place for worship or for custody of property and entry into the house had been effected by the accused in any one of the six ways as defined under Section 454 of the Indian Penal Code.
16)To prove the offence under Section 380 of the Indian Penal Code which prescribes punishment for theft in a dwelling house, it was essential for the prosecution to prove the factum of theft as defined under Section 378 of the Indian Penal Code. Hence it was for the prosecution to prove that there was the intention to take dishonestly; that the property was movable property; that the property was taken out from the possession of any person without his consent; that there was some moving of the said property to such taking and that the theft was committed in a dwelling house or place used for safe custody of property.
17)To prove the offence under Section 411 of the Indian Penal Code, it was for the prosecution to also prove that the property was in possession of the accused; that such property was 'stolen property' i.e it had been transferred by theft, extortion or robbery, or had been criminally misappropriated and that the accused received the same knowing or having reason to believe the same to be stolen property.
18) In the case at the hand, the accused has not been arrested from the place of the incident itself. No eye-witness has been cited or examined by the prosecution who had seen the accused entering the FIR No. 121/2005 PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 7 of 13 house of the complainant/PW6. Even the complainant PW6 has himself testified that the theft took place in his absence between 26.04.2005 at about 11.30 am to 11.15 am on the next day when he had gone to the College after locking his house. During his cross- examination, he has himself admitted that he did not know who had committed the theft. No CCTV footage or any other evidence by way of any chance finger print lifted from the spot etc. has been proved by the prosecution by which the presence of the accused at the place of the incident at the time of the alleged theft/house trespass can be established. Hence, not even an iota of evidence has been brought on record by the prosecution to prove the commission of offence either under Section 457 or 380 of the Indian Penal Code.
19)In respect of the offence under Section 411 of the Indian Penal Code, it was imperative for the prosecution to prove the factum of recovery of the stolen property from the accused. To prove the recovery, the testimony of PW5 HC Dalbir Singh and PW7 Inspector Hansraj are material as both these witnesses have testified that the accused had been apprehended on 03.06.2005 upon information given by a secret informer and after the disclosure statement of the accused Sagir had been recorded, the accused led them to his house and got the Samsung TV recovered which was seized vide Ex P4. The prosecution has relied on the disclosure statement of the accused Ex P1 but in view of Section 27 of the Indian Evidence Act, only the portion as to the accused being able to get the TV recovered is relevant.
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20) However, the factum of the recovery of the stolen property itself has remained unproved as no independent witness has been joined in the investigation at the time of the alleged recovery as is evident from the perusal of the seizure memo Ex P4 (pertaining to the Samsung TV) which does not bear the signatures of any public witnesses and bears only the signatures of PW5 HC Dalbir and the IO/PW7 Inspector Hansraj. Though PW7 Inspector Hansraj has testified that he had asked the mother and brother of the accused Sagir to join investigation at the time of recovery but they refused, he went on to admit that he had not asked any other public person to join investigation despite there being some other houses adjoining the house of the accused. No explanation has been furnished by any of the prosecution witnesses as to why two or more respectable persons of the locality were not joined in the investigation at the time of the recovery as required under Section 100 of the Code of Criminal Procedure. The failure of the investigating agency to join witnesses from the public especially when they are available or their presence can reasonably be secured with minimum efforts casts a doubt as to the authenticity of the version being put forth by the investigating agency. (Reference made to Nanak Chand v The State of Delhi, 1991 JCC 1 decided by Hon'ble Delhi High Court). The omission to join independent witnesses, thus warrant an adverse inference to be drawn under Section 114 (g) of the Evidence Act that the evidence if produced would have been unfavorable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery of the stolen property from the accused beyond reasonable doubt.
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21) Be that as it may, even if it is assumed that the stolen Samsung TV had infact been recovered from the house of the accused, the same cannot be said to have been recovered from a place within the exclusive knowledge of the accused so as to link the accused with the commission of the offence under Section 411 IPC in as much as both PW5 HC Dalibir and PW7 Inspector Hansraj have testified in their cross-examination that they had not entered into the house of the accused from where the accused handed over the TV to them. The prosecution evidence as led is conspicuously silent as to the exact place in the house of the accused from where he brought the TV. It is thus possible that the TV was in an area/place which belonged to the family of the accused comprising of atleast his mother and brother and it was thus possible for the accused to have knowledge of the place where the TV was kept without him himself being guilty for any offence and hence the mere recovery is not sufficient to justify a conviction under Section 411 of the IPC.
22) Be that as it may, the prosecution has also failed to prove any De-
parture entry as regards duty of the PW5 HC Dalibir and PW7 Inspec- tor Hansraj as also the factum of their availability at the place of ar- rest/recovery in contravention of the provisions of the Punjab Police Rules as per which an entry is required to be made as regards the hour of arrival and departure of police personnel on duty.
23) Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as un- der:
FIR No. 121/2005PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 10 of 13 ''22.49 Matters to be entered in Register No. II. The following matters shall, amongst others, be entered : ...........
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
24) In the absence of any DD entries having been proved by the prose-
cution vide which PW5 HC Dalibir and PW7 Inspector Hansraj had left the Police Station/joined investigation in the case and thereafter re- turned, the factum of availability of these two witnesses at the place of alleged recovery from the accused comes under suspicion. It cannot be gain said that if the investigating agency deliberately ignores to comply with the provisions of the Act, a suspicions arises as to the ac- tions having been done with oblique motives. Thus the failure to bring the DD entries on record gives rise to a reasonable suspicion in re- spect of authenticity of the version being put forth by the prosecution as also to the factum of the recovery of the case property from the ac- cused.
25) It is also pertinent to note herein that the testimony of PW5 HC Dali-
bir and PW7 Inspector Hansraj are also inconsistent in some material particulars which raise further suspicion as to the version being put forth by them. For instance, two versions have come on record as to FIR No. 121/2005 PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 11 of 13 the manner in which the accused has been arrested with PW5 HC Dalbir testifying in his cross-examination that none of the accused had tried to flee from the spot and were apprehended by the IO easily, whereas PW7 Inspector Hansraj in his cross-examination has stated that accused had tried to run away from the spot but the accused Sa- gir was overpowered by him which other two accused were overpow- ered by PW5 HC Dalbir. The prosecution did not lead any further evi- dence to prove which of the two versions was correct and the failure of the prosecution to do so, adversely affects the credibility of the un- corroborated inconsistent testimony of these witnesses.
26) Now the factum of such an inconsistency might not ordinarily be of much significance, however, in the present case, it is important as the testimony of PW5 HC Dalibir and PW7 Inspector Hansraj is inconsis- tent even in respect of the time-line of the alleged investigation. For instance, PW5 HC Dalbir has testified that he had joined investigation on 03.06.2005 at about 10.00am and by 11.30-11.35 am they had reached the PS alongwith the accused. It must be recollected here that the case of the prosecution is that it was after secret informer had informed the IO about the accused that the accused were appre- hended. This implies that as per the testimony of PW5 HC Dalbir, the information must have already been given by the secret informer to the IO prior to 11.30 am. However, the testimony is completely incon- sistent with the testimony of the IO who has testified that the secret in- formation ad been received on 03.06.2005 at about 5.15pm. There is no material on record, to prefer one testimony over the other and con- sequently, a doubt arises as to the manner in which the investigation FIR No. 121/2005 PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 12 of 13 has been carried out and the possibility of there being manipulation cannot be ruled out.
27) Thus, in view of the above discussion, the prosecution case can not be said to be free from reasonable doubt. The accused is thus entitled to be given the benefit of the doubt as the prosecution has failed to discharge the onus placed upon it and hence accused Sagir @ Kalia, S/o Naseer Khan is acquitted for the offence under Section 457/ 380/ 411 IPC in FIR No. 121/2005 PS Kanjhawala .
28) The accused is directed to furnish fresh personal bond in a sum of Rs. 10,000/- with one surety in like amount in compliance of provi- sions of Section 437A of the Code of Criminal Procedure and is di- rected to be present before the Ld. Appellate Court as and when no- tice is served upon him.
29) File be consigned to the Record Room after necessary compliance.
Announced in the Open Court
on 01.09.2018 Digitally signed by
POOJA POOJA AGGARWAL
AGGARWAL Date: 2018.09.01
12:42:13 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 13 pages and each page bears my signature. Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2018.09.01 12:42:24 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 121/2005 PS Kanjhawala U/s 457/380/411 IPC State Vs Sagir @ Kalia Page No. 13 of 13