Delhi District Court
State vs . Dalip Singh & Ors on 27 April, 2018
IN THE COURT OF SH. DEEPAK KUMAR II, METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI.
FIR No. 166/13
PS. Dwarka North
U/s. 380/411/457/34 IPC
State Vs. Dalip Singh & Ors
JUDGMENT
A. SL. NO. OF THE CASE : 422466/16.
B. DATE OF INSTITUTION : 25.07.2013.
C. DATE OF OFFENCE : 2526.05.2013.
D. NAME OF THE : Sh. Heera Singh
COMPLAINANT S/o Sardar Narayan Singh
E. NAME OF THE : 1) Dalip Singh S/o Sh.
ACCUSED S/o Sh. Gurbachan Singh
2) Gurmukh Singh S/o Sh.
Santok Singh
3) Dalip Singh S/o Sh. Bindu
Singh.
F. OFFENCE
COMPLAINED OF : 380/411/457/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Accused Dalip Singh S/o
Sh.Gurbachan Singh stands
convicted of the offence
punishable under section
411 IPC.
All the three accused
persons are acquitted of the
offences punishable under
section 380/457/34 IPC
FIR No. 166/13
PS. Dwarka North
U/s. 380/411/457/34 IPC
State Vs. Dalip Singh & Ors Page No. 1/19
I. DATE OF SUCH ORDER : 27.04.2018.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution are that on 26.05.2013 a PCR call was received vide DD No. 15A In pursuance of which SI Girdhari Lal went to the spot where he met the complainant Heera Singh whose statement was recorded by SI Girdhari Lal wherein it was alleged that during the intervening night of 2526.05.2013 all the accused persons namely Dalip Singh S/o Sh. Gurbachan Singh, Gurmukh Singh S/o Sh. Santok Singh and Dalip Singh S/o Sh. Bindu Singh in furtherance of their common intention had committed house breaking by breaking the locks of the store room and committed the theft of Rs. 9 lacs and 45 tolas of gold jewellery items at Gurudwara Hari Rai Sahib, Hari Vihar, Kakrola, New Delhi. During the course of investigation part case property i.e. the gold chain and a sum of Rs. 1,10,000/ was recovered from the possession of accused Dalip Singh S/o Sh. Gurbachan Singh and statement of witnesses were recorded, site plan was prepared and other steps were taken towards the completion of investigation. On conclusion of the investigation, the challan under Sections 380/411/457/34 IPC against the accused persons was filed in the court.
2. Thereafter, the accused persons were summoned by the learned predecessor of this court for facing trial under the aforesaid sections. In compliance of Section 207 CrPC, the copy of the challan and the documents annexed therewith were supplied to the accused persons. Prima facie charge under Section 380/457/34 IPC was made out against all the FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 2/19 accused persons and for the offence punishable under section 411 IPC against accused Dalip Singh S/o Sh. Gurbachan Singh. On 14.08.2013 the charges were framed against the accused persons by the Ld. Predecessor of this court. The accused persons pleaded not guilty and claimed trial to the said charges. Thereafter, the case proceeded for prosecution evidence.
3. In the instant case, the prosecution has examined thirteen witnesses in support of its case.
4. PW1 HC Jai Prakash deposed that on 26.05.2013 at about 2:45 Pm on the basis of rukka brought by Ct. Vishal; he registered FIR No. 166/13 and the same was exhibited as Ex.PW1/A; he proved the endorsement made on the rukka as Ex.PW1/B. The examination of this witness remained inconclusive till date.
5. PW2 Hira Singh deposed that he is the pradhan of Gurudwara Committee of Hari Rai Sahib Gurudwara, Hari Vihar' on the day of incident he was present at his house and at about 10:00 AM he received a phone call from one Manmohan Singh that Hindi translation of the Gutkas are required for Paath; he went to Gurudwara and reached there at about 10:30 AM and found that the lock of the store was broken and when he entered the store he found that the law of the shelf (almirah) was also broken and money and gold articles lying in that shelf (almirah) were also missing; on checking they found that Rs. 9 lacs and 45 tolas of gold articles were missing; he immediately called the sevadars, sangat also gathered over there; thereafter police was also called who after their arrival inquired the matter from him and also saw the site; his statement was recorded by the police which is Ex.PW2/A;
FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 3/19
thereafter the police starting inquiring from each person separately when the turn of Dalip Singh came, he got very nervous and upon very strict investigation by the police accused Dalip Singh admitted that he had committed theft alongwith three more persons who were named as Gurmukh Singh, one Dalip Singh, one more person and one tala chabi wala; thereafter he disclosed that money and one gold chain which came into his share was lying into his room in Gurudwara; thereafter accused Dalip Singh led them as well as police to his room and from behind the almirah there was one foam pasted on it in which the money was taken out and one small gold chain of which is used for wearing on the ear was recovered; the money was in two packets having the title of Gurudwara Sahib; the money which was recovered was in the following denomination : one stack of Rs. 500/ totaling Rs. 50,000/, one stack was having 46 currency notes of Rs. 1,000/, 25 currency notes of Rs. 500/ and 15 currency notes of Rs. 100/; after calculating the money it was put in the same packets and then packed in a plastic box; the gold chain was put in a match box and then packed in a white cloth and were sealed with the seal of police and put in the same plastic box; the seizure memo of the money and the gold chain proved as Ex.PW2/B; the site plan was also prepared after inquiring from him and observing the site; the accused Dalip Singh was also arrested by the police vide arrest memo Ex.PW2/C; during the investigation the receipts of various donations received by the Gurudwara were also taken by the police.
6. In his further cross examination the case property was produced and the same was found exactly in the condition as deposed by PW2; PW2 also correctly identified the case property i.e. money and gold chain which was recovered from the accused Dalip and seized by IO during the FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 4/19 investigation; the money was collectively Ex.P1 and gold chain was Ex.P2.
7. PW2 in his cross examination deposed that on the 1 st floor of the Gurudwara there are sevadar rooms; the sevadar used to reside on those room i.e. on 1st and 2nd floor each; the witness denied the suggestion that Sangat used to reside in those rooms also; the seven cameras are installed inside and outside of the Gurudwara complex but they are not working as the wires are broken since one and a half year because they were burnt due to short circuit; in Darshan Hall there is also a camera installed; the cameras were not working on the date of incident; the record of movement inside and outside of Gurudwara on the date of incident were not captured by the camera and stored in the computer; on the date of incident the store was locked under four locks, two were hanging locks and two were inbuilt locks; the store was used to keep miscellaneous articles, daily used articles of Gurudwara and cash and valuables; every lock was having two keys; all the keys were with him and the store room used to remain locked; whenever there was a requirement to open the store, he alongwith committee members used to come and open the same after completion of work and the same was used to be closed in their presence; there was no specific member in whose presence he used to open the door and who was available at the time of requirement used to come; on the day of incident he was with two three members namely Manmohan Singh, Bhagwan Singh and Sh. Satvinder Singh who is of head of pathi. In his further cross examination PW2 Hira Singh deposed that on the date of incident there was about Rs. 9 lac cash in Gurudwara; the witness voluntarily deposed that in every month there are two Dasvis and Sangat used to come there to offer prayers and also used to give money to Gurudwara, on 20.05.2013 there was a Dasvi; he do not remember FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 5/19 the amount collected on 20.05.2013 but the receipt had been given to the police and the donation was announced on 20.05.2013, which was collected till 22.05.2013; he did not remember how many receipts dated 20.05.2013 had been given to the police; he was unable to tell as to how much cash was there in the Gurudwara prior to 20.05.2013, but there was cash also pertaining to 20.05.2013; he had not taken money exclusively; there is a duty given to the sevadar/ members/ cashier; the account is maintained about the donation and it is correct that the expenditures of the gurudwaras are also accounted; the police had not called the account register from them, only receipt were taken by the police; the 56 tolas jewellery was there in the gurudwara; the parchis showing description of the gold jewellery were also prepared and given to the police; there were three shelfs in the almirah which were broken by the accused; in one shelf there was money, in other files and in third some articles and things primarily; he opened the almirah and shelfs with other sangat and Manmohan Singh and one other sikh gentlemen Satvinder Singh when he found the theft; the police had also taken Dalip S/o Sh. Gurbachan Singh to almirah from where the theft was committed; all the police persons came together and all the sevadar used to clean the Gurudwara premises including the room where the theft was committed; he do not know as to whether police had taken the photographs where the theft was committed; the police took him to the sevadar room where Dalip used to reside alongwith other sevadar; the room was not locked; the shelf shown in Mark DX1 was the shelf of the Dalip's room and there was no other shelfs or almirah or furniture present in Dalip's room and that almirah shown in Mark DX1 was not having any lock facility; the police seized the broken locks of almirah/ shelf/ room; the witness denied the suggestion that the room of Dalip was not locked therefore, anyone could have accessed his room and FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 6/19 voluntarily deposed that there is no permission to enter into rooms of sevadar except sevadar themselves as the chowkidar sits on the ground floor who never permit any other person to visit the room of the sevadar; the chowkidars are the sevadar themselves who sit on rotation.
8. PW3 Ct. Vishal majorly deposed about the investigation carried out in the matter as on the date of incident, he alongwith IO/SI Girdhari Lal after receipt of call had reached the Gurudwara Hari Rai Sahib, Hari Vihar where they met the complainant whose statement was recorded; thereafter IO prepared the rukka and handed over to him; he went to PS, got the case registered, return to the spot and handed over the copy of FIR and original rukka to the IO; thereafter IO had interrogated the accused Dalip Singh who was the Sevadar of the abovesaid Gurudwara and accepted his involvement in the crime and he proved the disclosure statement of Dalip Singh as Ex.PW3/A; thereafter accused Dalip Singh led them to his room on the 1 st floor of the Gurudwara from where behind he almirah there was a foam pasted there from which two packets were taken out alongwith one small gold chain; the case property consisted of currency notes of various denomination and the gold chain which were sealed with the seal of GLK after covering it with the white cloth and the gold chain was kept in a plastic box and was covered with the help of doctor tape and was then sealed with the seal of GLK; thereafter accused was arrested by the IO vide Ex.PW2/C; personal search of the accused was conducted vide Ex.PW3/B; IO prepared the site plan; other accused were also searched but could not be found the accused and the case property were brought to the PS and the case property was deposited in the Malkahana. On 07.06.2013 he alongwith IO reached the Dwarka Court where two coaccused had surrendered; after taking FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 7/19 permission from the court they were interrogated and their disclosure statements were recorded vide Ex.PW3/C and Ex.PW3/D; thereafter they were arrested vide Ex.PW3/E and Ex.PW3/F respectively; personal search of them were conducted vide Ex.PW3/G and Ex.PW3/H respectively; the witness correctly identified the case property which was already exhibited as Ex.P1 and Ex.P2 respectively.
9. In his cross examination PW3 deposed that they reached Gurudwara after 1520 minutes after receiving the call i.e. at 1:25 PM; 1012 persons were there when they reached the spot; besides Hira Singh, Rajender Singh, Satwant Singh and Manmohan Singh were present among those 1012 persons; he went back to the PS with rukka at about 10:45 PM and returned to Gurudwara at about 3:45 PM; IO inquired from the accused Dalip Singh S/o Sh. Gurbachan Singh after my arrival at the Gurudwara to the PS; those 1012 persons were also present there when the interrogation was conducted; the accused was arrested after about an hour of interrogation; again said he was arrested at about 6:00 PM; the recovery was effected before arrest; he cannot tell as to how many locks were broken but there were more than one; IO did not seized locks from there; he did not go inside the store rooms nor he knows if IO had gone there or not; no other articles were seized by the IO except the case property identified by me; the recovery was affected from the back side of the almirah; we opened the almirah to check the other case property; no other place was searched in that room by the IO; except Hira Singh; there was no other person in that room with us when the recovery was effected from the accused; IO had not called any other person in the room to witness the recovery; his statement was recorded twice by the IO; he remained with the IO in this case only on 26.05.2013 and FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 8/19 07.06.2013.
10. PW4 Jugal Kishore deposed that on 25.05.2013 he was present at his shop and was preparing the sweets for an order on the next day; at about 9:00 Pm one person whose name is Gurmukh, who is a frequent visitor to the Gurudwara (at this stage witness points towards accused Gurmukh correctly identified) came to his shop and ate some matthi and laddu thereafter he went to the gate of Gurudwara and knocked the gate on which Dalip Singh who is also the sevadar of the Gurudwara (at this stage witness points towards the accused Dalip, correctly identified) opened the door and Gurmukh went inside. Thereafter about one hour later one Indica car came in front of the Gurudwara Gate from which one young male Sardar (at this stage witness pointed towards the accused Dalip Singh, correctly identified) alighted with one person who was having some tools with him, apparently he was looking like a tala chabi wala and both of them went inside thereafter the young male sardar came back and took the vehicle towards the backside of Gurudwara; thereafter on the second day he came to know that a theft had occurred in the Gurudwara; witness deposed that Gurmukh is known to him as he used to go to Gurudwara and accused Gurmukh also used to come to his shop for mobile recharge for recharge
11. In his cross examination PW4 deposed that he had stated to the police that accused Gurmukh used to come to his mobile recharge shop for recharge; he came to know about the incident after 23 days and he did not tell anybody about Gurmukh as nobody had inquired from him.
12. PW5 Ct. Praveen Kumar deposed that on 08.06.2013 he was FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 9/19 posted at PS Dwarka North and on that day IO alongwith two accused namely Gurmukh and Dalip came to PS; thereafter they led them to the Gurudwara Sahib at Hari Vihar, where pointing out memo were prepared and the disclosure of the accused persons were recorded which are Ex.PW5/A and Ex.PW5/B respectively; pointing out memo is Ex.PW5/C. In the cross examination this witness nothing material came on record.
13. PW6 Manmohan Singh deposed that he is a sevadar in Gurudwara Shri Guru Hari Rai, Hari Vihar on 26.05.2013 he was present in the Gurudwara as Sukhmani Sahib paath was going; sangat was also present; few persons demanded Hindi gutka of Sukhmani Sahib, he found 23 gutka were present in the stores; thereafter he called the Pradhan Sh. Hira Singh and requested him to come to Gurudwara to take out more gutkas from the other stores; after some time Sh. Hira Singh came in Gurudwara and then he alongwith Hira Singh and Satvinder Singh went to the store where they found that the lock of the door of the store was broken; they found that 4 5 tolas of gold articles as well as Rs. 9 lacs in cash was stolen from there; the cash was put in the safe 45 days back as the donation had come because of Dasvi festival as well as for construction of sarai in Amritsar; police was called and after interrogating the matter from all the sevadar accused Dalip admitted his involvement; thereafter police took him to his room on the second floor alongwith Pradhan Hira Singh and the police came down alongwith Hira Singh and accused and told them that they had recovered Rs. 1,10,000/ and one gold chain from the accused and police arrested the accused; accused Dalip Singh was correctly identified by the witness.
14. In his cross examination PW6 deposed that 45 days prior to the FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 10/19 incident he alongwith 45 persons of the management had prepared the accounts of the donation given on Dasvi; about Rs. 45 lacs was collected on Dasvi; receipts were also issued to the person giving donation; he had not handed over the said receipts to the police nor any account register; the key of the store was with Pradhan and whenever the store was to be opened 34 persons of the Gurudwara used to be present there; they all three checked the store and safe Dalip was not called at that time.
15. PW7 Rajender Kumar deposed that Gurudwara Shri Hari Rai is near to his house as the back of the Gurudwara is in front of his house and there is a Gali between his house and Gurudwara; on 25.05.2013 he was present in his house and the time would have been 11:3012:00PM, when he smelt some smoke from his cooler went outside to check the same and found that the cooler was working properly; at that time he saw one car the ignition of which was on but the same was in stationary condition; one sikh person was present there on the driver seat; one Gurmukh who used to come to Gurudwara also came there with one more person and asked the person who was on the driver seat "Dalip gadi ko dhakka marna hai kya to which the person on the driver seat replied in no; thereafter he went inside his house; he knew Gurmukh prior to incident as he had seen him in the Gurudwara number of times as he also used to go to the Gurudwara on occasions and also perform seva; later on he came to know that a theft have been committed on that night; after few days he also went to PS alongwith Hira Singh and other persons and found that Gurmukh and Dalip present at the PS and identified them as being the person who were present in the night of 25.05.2013 outside his house; both the accused persons were correctly identified by this witness.
FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 11/19
16. In his cross examination PW7 deposed that as there was hue and cry in the Gurudwara, therefore, he met Hira Singh and other committee members after he came to know about the theft; he told them about seeing of one car and Gurmukh Singh alongwith two other person in the night of 25.05.2013 on 26.05.2013; he did not noted down the car number nor he had talked to Gurmukh Singh at that time; he told the police about the night of 25.05.2013; he had gone to PS on 26.08.2013; again said on 06.08.2013.
17. PW8 Surender Kumar deposed that he had brought the original CAF of mobile number 9718081358 which was issued in the name of Gurmukh Singh S/o Santok Singh and the attested copy of CAF exhibited as Ex.PW8/A (OSR); police had also obtained the CDR of this number on email ID; he had not brought the certified copy of the said number as one year has expired pertaining to the asked period i.e. 24.05.2013 to 26.05.2013 as per TRAI authorization only one year call record has to be preserved by the Telecom Companies. The witness was not cross examined by the Ld. Defence Counsel for accused persons despite opportunity being afforded to them.
18. PW9 Manjeet Singh deposed that he knew Dalip Singh S/o Sh.
Bindu Singh (at this stage witness points towards accused Gurmukh correctly identified), was also his business partner; he do not remember the exact date; on that day at about 10:30 AM Dalip came to his house and then they started for their work; he told that somebody had called Dalip on which he went to CRPF Camp after half an hour Dalip came back and told him that some "PANGA" had happened; he did not disclose him further and went away; on FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 12/19 the next day in the morning he went to know about the theft in the Gurudwara by the members of the Gurudwara ; Dalip had called him and told him that if you had stolen the money of the Gurudwara then you should return the same and Sangat would forgive him; he also told him to surrender before the police on which accused Dalip told him that if he surrender before the police then police would beat him; he came to know that accused Dalip was surrendered before the police; police had also investigated the matter from him. The witness was not cross examined by the Ld. Defence Counsel for accused persons despite opportunity being afforded to them.
19. PW10 Saurabh Aggarwal, Nodal Officer, Vodafone Mobile Services deposed that he appeared on behalf of company and he had brought the record of mobile no. 9811715959; as per which the said mobile number belongs to one Harnam Singh; certified copy of CAF as Ex.PW10/A and certified copy of CDR as Ex.PW10/B; he had also brought the location chart, certified copy of the same as Ex.PW10/C, certificate under section 65B of the Indian Evidence Act as Ex.PW10/D; he told as per the call details the location is to be traced out from the last five digit of cell ID i.e. tower location which was shown in Column 8 which was at point A of the call detail as already Ex.PW10/B; last five digit cell ID shows the tower location; the first five digit of cell ID is of networking coding and next five digit indicates locaton area code and the next four four are of thhe tower cell ID and the last digit indicates the sector of tower i.e. 1, 2, 3, in case of 2G and 6, 7, 8 in case of 3G; As per Column 8 at point B, the entry is 404110019202431 and the same per the cell ID entry No. 0243 tower was at Patel Garden, Dwarka. The witness was not cross examined by the Ld. Defence Counsel for accused persons despite opportunity being afforded to them.
FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 13/19
20. PW11 Ct. Manish, deposed that on 26.05.2013 he alongwith ASI Khajan Singh reached at the Hari Rai Sahib Gurudwara, Dwarka, Near Dwarka Metro Station where they lifted finger prints from steel lock, iron almirah locker and iron almirah main door and he prepared detailed report in this respect which is Ex.PW11/A. This witness was not cross examined despite opportunity being afforded to the defence.
21. PW12 Inspector N.K Sharma deposed that on 13.08.2013 the abovesaid case was marked to him alongwith the photographs of chance prints mark Q1 and Q2 and lift of chance print and negative of the photographs. The specimen of finger prints of three suspects were also received by him; on comparing the same, he found the chance print marked Q1 was identical with the right thumb impression of accused Dalip Singh S/o Sh. Gurbachan and Mark Q2 was also found identical with the right middle finger impressions of Dalip Singh S/o Sh. Gurbachan Singh and proved reports in this regard as Ex.PW12/A, he also proved the specimen signature of accused Dalip Singh S/o Sh. Gurbachan Singh as Ex.PW12/B. The witness was not cross examined by the Ld. Defence Counsel for accused persons despite opportunity being afforded to them.
22. PW13 Girdhari Lal Kumawat deposed majorly about the investigation conducted by him and proved the DD No. 15A as Ex.PW13/A, rukka as Ex.PW13/B, site plan as Ex.PW13/C; he correctly identified the accused Gurmukh and accused Dalip Singh and S/o Sh. Gurbachan Singh and identity of accused Dalip Singh S/o Sh. Bindu Singh was not disputed by his Ld. Counsel. The witness further deposed that cash receipts were seized FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 14/19 vide seizure memo Ex.PW13/D and some more receipts and CD given by the complainant Hira Singh were also seized vide seizure memo Ex.PW13/E; the 40 receipts were proved by this witness as Ex.PW13/F (colly) (in 40 pages). In his cross examination he deposed that he received the information from DO at about 1:30 PM on 26.05.2013 and he reached the spot at 1:40 PM where 810 persons were already present and he recorded the statement of one person i.e. the complainant; he had not taken any photographs of the spot; the locks of the room in which the abovementioned books were kept was broken when he reached the spot and he did not seized the broken locks or the key of that lock nor he counted the locks which were broken at the place of incident; the recovery of Rs. 1,10,000/ was made by me from the accused Dalip Singh S/o Sh. Gurbachan Singh and not by the Gurudwara Committee members; the recovery was made from the room of Dalip Singh from slap 9 (aala) built inside the wall of that room; at that time he alongwith his staff, complainant and accused Dalip were present; he came to know about the address of Latipur from the accused Dalip Singh S/o Sh. Gurbachan Singh; no recovery was made from Gurmukh Singh and Dalip Singh S/o Sh. Bindu Singh. Thereafter PE was closed and statement of all the accused persons were recorded under section 313 CrPC. No defence evidence was led by the accused persons and thereafter matter was posted for final arguments.
23. I have heard Ld. APP for the State and Ld. Counsel for all the accused persons. I have carefully perused the case file.
24. The cardinal principle of the criminal law is that the accused persons are presumed to be innocent till they are proved guilty, beyond any FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 15/19 reasonable doubt. The burden of proving the guilt of the accused persons, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused persons.
25. It is an admitted case of the prosecution that no one has seen either of the accused persons committing the offence of house trespass or the theft in the Gurudwara. On the contrary, the case of the complainant is based upon the disclosure statement made by accused Dalip Singh S/o Sh. Gurbachan against the remaining two accused persons wherein, he allegedly disclosed about their involvement in the theft of house trespass at the Gurudwara. Even if, the allegations of the complainant are believed to be gospel truth, in that case also, in absence of any eye witness, it cannot be convincingly held that the offences punishable under section 380/457/34 IPC were committed by either of the accused persons. Therefore, the prosecution has failed to substantiate that either of the accused person committed the house trespass or theft in the Gurudwara. Hence, the basic ingredients of the offences punishable u/s 457/380/34 IPC are conspicuously and glaringly missing.
26. Moreover, it has occurred in the testimony of PW12 that the chance prints lifted from the place of incident are of the accused Dalip Singh son of Sh. Gurbachan Singh and there is nothing on record to suggest that chance print of the remaining accused persons were found at the place of incident which is contrary to the theory of the prosecution as per which all the three accused persons had committed the offence of house trespass and theft in the Gurudwara. Even, if for the sake of arguments it is believed that all FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 16/19 the accused persons had committed the aforesaid offences then no explanation has come on record as to why the finger prints of the other two accused persons were not found. Merely finger prints are not enough to convict the accused Dalip Singh S/o Sh. Gurbachan Singh for the offences punishable under section 380/457 IPC for the reason that he was the sevadar in the Gurudwara and his finger prints appearing on the almirah were very much probable during the course of his duties. It is also pertinent to mention here that the investigating agency had failed to seized the broken locks nor the case property and the tools used for committing the aforesaid offences.
27. The accused persons cannot be convicted on presumptions or surmises, rather, all the ingredients as mentioned under section 380/457/34 IPC are required to be established. But in the instant case, none of the prosecution witness has uttered even a single word against the accused regarding the alleged involvement of accused persons.
28. There is not even an iota of incriminating evidence against the accused to fix her liability under section 380/457/34 IPC by leading convincing and cogent evidence and thus have failed to discharge the onus placed upon it. Hence, the accused persons are entitled to benefit of doubt.
29. In the light of the above discussion, the accused persons namely Dalip Singh, Gurmukh Singh and Dalip Singh are acquitted of the offences under section 380/457/34 IPC. Bail bonds are canceled and sureties be discharged. Original documents, if any, be returned to the persons legally entitled, after canceling the endorsement, if any, on the said documents.
FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 17/19
30. Now, in order to prove the guilt of the accused Dalip Singh S/o Sh. Gurbachan Singh under Section 411 IPC the prosecution was required to prove that the accused had dishonestly received the stolen property knowing it to be stolen. The testimonies of PW2, PW3, PW13 are relevant and it is pertinent to mention here that PW2 is complainant, PW3 is the police witness who had accompanied the IO and PW13 is the IO. They all have consistently deposed that on being questioned accused Dalip Singh S/o Sh. Gurbachan led them to his room in Gurudwara where a sum of Rs. 1,10,000/ and a gold chain was recovered from his possession. Moreover the money which was kept inside the packets was having the title of Gurudwara Sahib on it, which clearly points towards the fact that the same was the part of the stolen property of the Gurudwara. The testimony of the aforesaid witnesses have remained blemish free and there is no reason to doubt the credibility of the said witnesses. The testimony of the said witnesses are corroborating and supporting each others version in material particulars and the contradiction, if any, is minor in nature and that can be attributed to the human fallible memory.
31. It is an admitted fact that the owner of the property recovered from the possession of the accused was the Gurudwara and accused Dalip Singh son of Gurbachan singh had no occasion to possess the same with bonafide intention. Therefore, it is conclusively established that accused was in possession of the stolen case property with dishonest intention and knowing or having reason to believe that the same was a stolen property.
32. The accused Dalip Singh sdon of Gurbachan Singh has failed to lead FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 18/19 any defence evidence to establish the respective defence raised by him in his respective statement. The burden of proving the said defence lies on the accused, but he has failed to discharge his onus. Therefore, his respective defence has remained a mere assertion and has failed to convert into any established evidence. Consequently, the story of the prosecution qua the offence punishable under section 411 IPC has remained unrebutted.
33. In the wake of the above discussion, the prosecution has successfully discharged the onus placed upon it and has proved all the essential ingredients of the offence under section 411 IPC qua accused Dalip Singh son of Gurbachan Singh. Thus he is accordingly convicted for the offence punishable under section 411 IPC. The copy of this Judgment be given to accused Dalip Singh son of Gurbachan Singh free of cost.
Let accused Dailp Singh S/o Sh. Gurbachan Singh be heard on the Digitally signed point of sentence. by DEEPAK DEEPAK KUMAR KUMAR Date:
2018.04.28 11:59:50 +0530 ANNOUNCED IN OPEN COURT (DEEPAK KUMARII) TODAY i.e. 27.04.2018 MM06/DWK/NEW DELHI FIR No. 166/13 PS. Dwarka North U/s. 380/411/457/34 IPC State Vs. Dalip Singh & Ors Page No. 19/19