Delhi District Court
State vs Mahabir Mittal on 18 November, 2019
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No.81/2009
PS Kanjhawala
State Vs Mahabir Mittal
Date of Institution: 28.05.2011
Date of Judgment: 18.11.2019
JUDGMENT
(a) Serial Number of the case : 528564/16
(b) Date of commission of offence : Intervening night of 10/11.04.2009
(c) Name of the complainant : Sh. Rajender Singh
(d) Name of Accused, his : Mahabir Mittal, parentage & residence S/o Murari Lal R/o H No. 19/216, Gali No 1, Nai Basti, Near Banke Bihari Mandir, Bahadurgarh, Haryana
(e) Offence complained of : Under Section 457/380 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final Order : Acquittal BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused Mahabir Mittal has been sent to face trial for the commission of offences under Sections 457/380 of the Indian Penal Code (hereinafter referred to as 'IPC') upon the allegations that on intervening night of 10/11.04.2009, at about 1.30am, at Plot no 33, Balaji Enclave, Punjab Khore, Delhi, he committed house trespass by night with intent to commit theft and after committing house trespass, he committed theft of 48 iron girders and 345 pieces of rough stone from the possession of the complainant Rajinder.
FIR No. 81/2009PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 1 of 13
2. After completion of the investigation, the chargesheet was filed in Court upon which cognizance of the offences was taken by the Ld Predecessor and after the accused entered appearance, the copy of chargesheet and the documents were supplied to him in compliance of Section 207 of the Code of Criminal Procedure.
3. After consideration of submissions made, charge was framed against the accused for the commission of offences under Section 457/380 of Indian Penal Code by the Ld Predecessor to which the accused pleaded not guilty and claimed trial.
4. To prove its case, the prosecution examined 9 witnesses.
5. PW-1 Rajender being the complainant testified as to the incident having taken place on the intervening night of 10/11.04.2009 testifying that the construction work was underway on plot no 33 Balaj Enclave, Punjab Khore, and 45 girders of iron and 225 pieces of stone (tukda) were lying on the roof of the said plot in which one room of size 15x12 feet was already constructed at the time of purchase in which room some household articles of the complainant were lying including a Godrej almirah in which jewellery of about Rs 1 Lakh was kept and the room was locked from outside.
6. PW1 further testified that on 03.04.2009, he had purchased the said FIR No. 81/2009 PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 2 of 13 girders and stones (tukdi) from Haryana Timbers and Stone Trading from its owner ie accused for Rs 76700/- approx for which he made the payment through cheques. He further testified that on 11.04.2009, at about 8.00am, he called mistri Ram Sahay @ Bir Singh who used to reside in the said constructed house who informed him that the accused Mahabir Mittal had come with 8-9 laborers on the previous night at about 9.00pm and had demanded the keys of the room and the main gate and upon his refusal, the accused had kicked Bir Singh and snatched the keys from him after which they removed the said girders and tukdi and took it away in a tractor and trolley.
7. PW1 further testified that he then went to the spot where the articles had been removed by the accused, bricks were lying, roof was almost removed, lock of the room was broken, gate of the almirah was open and jewellery of about Rs 91700/- was missing whereafter he went to the PS but his statement was not taken. He further testified that he had also made an application to the DCP, Outer for registration of FIR and after one week, met with ACP who sent him to SHO Om Prakash who directed SI Jagdish Dahiya to inspect the spot and SI Jagdish promised to visit the same on 28.04.2009 but SI Jagdish did not meet the complainant there on that day.
8. PW1 further testified that on 29.04.2009, he again went to the PS and upon instruction of SHO, some other SI recorded his statement FIR No. 81/2009 PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 3 of 13 Ex PW1/A and FIR was registered. He further testified that said SI inspected the spot, interrogated the neighbors and then left the spot. PW1 further testified that he had also handed over photographs Mark P1 to P6 which had been taken by photographer from JK Studio on 11.04.2009 at about 11.00am and broken lock to the SI whereafter SI Puran Mal visited his house asking to bring Bir Singh for recording of his statement and after 3-4 days he took Bir Singh to the PS where statement of Bir Singh was recorded by the IO. PW1 correctly identified the accused as well as photographs in the Court. He further testified that thereafter his case was transferred to DIU where he and the mistri were again called and that he had also handed over carbon copies of bills given to him at the time of purchase of the said girders and tukdi ie Ex PWB1 and PWB2 to the IO.
9. PW1 was duly cross-examined by the Ld APP for the State wherein he admitted that he had handed over documents of purchase of house ie Agreement to Sell, Affidavit, Will, Receipt ie Mark A to Mark D, and receipt of Vardhman Jewellers ie Mark E to Mark F. He went on to testify that he had purchased 45 girders of iron and 325 pieces of stone (tukda) from the shop of the accused and that the accused had removed 3 iron girders and 20 tukdi in addition to the said 45 girders of iron and 325 pieces of stone (tukda) stating due to mistake he had earlier testified that 45 girders of iron and 225 pieces of stone (tukda) were lying on the roof. PW1 further testified that the photocopies of documents and receipts were seized by police vide Ex PW1/C and FIR No. 81/2009 PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 4 of 13 carbon copies of bills seized vide Ex PW1/D by the IO. He also identified his signatures on the documents. He further testified that the original documents were in possession of the accused being stolen by him from the almirah. PW1 was duly cross-examined by the Ld Counsel for the accused.
10.PW2 Bir Singh being the mason ie Rajmistri and the sole eye-
witness of the alleged incident testified that in April 2009, he had constructed/ repaired the house of the complainant Rajinder at Plot No 33, Balaji Enclave, Delhi by putting gattar 'Saria', tukadi, angle etc. He went on to testify that in the intervening night of 10/11.04.2009, when he was sleeping on the roof of the said plot, at about 3.00-4.00 am, the accused came there with 8-9 persons along with a tractor trolley with the accused Mahabir having came near him asking for the key. He further testified that the accused Mahabir had also kicked him and that due to fear, he had handed over the key of the main gate to the accused and they started pulling down the construction material ie silli, gatar etc and put it in their trolley taking it away. PW2 further testified that he knew the accused before and that the complainant had purchased the construction material from the accused. He further testified that he had telephonically informed the complainant regarding the incident and he correctly identified the accused in the Court. He was was duly cross-examined by the Ld Counsel for the accused whereafter he was re-examined by the Ld APP for the State.
FIR No. 81/2009PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 5 of 13
11.PW3 Sh Vineet Jain testified as to being sole proprietor of Vardhman Jewellers and further testified that on 16.06.2007 and 04.04.2009, two persons had come into their shop who took the estimates of jewellery articles ie Mark E and Mark F upon which he identified the signatures of his father. He further testified that no jewellery had been purchased by them from his shop and only estimate had been prepared. He was duly cross-examined by the Ld Counsel for the accused.
12.PW4 HC Sanjay (Ct Sanjay as he then was) testified as to having gone to Balaji Enclave, near Village Punjab Khore, on 29.04.2009 with SI Kamal Kishore where they met the complainant/Rajinder who gave two carbon copies to SI Kamal Kishore which the IO seized vide Ex PW1/D on which he identified his signatures. He was duly cross-examined by the Ld Counsel for the accused.
13.PW5 SI Rajnish testified as to having joined the investigation on 23.03.2011 with Inspector Rohtash on which day, the complainant had come to the DIU and handed over the photocopy of some and photographs of the property in question which were seized by the IO vide Ex PW1/C on which he identified his signatures. He relied upon photographs Ex P1 to ExP6 and was duly cross-examined by the Ld Counsel for the accused.
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14.PW6 Inspector Kamal Kishore (SI Kamal Kishore as he then was) being the first Investigating Officer, testified as to the complainant having come to the PS on 29.04.2009 at about 1.30pm, and having given his statement Ex PW1/A which was recorded by him and then signed by the complainant on the basis of which the tehrir Ex PW6/A was prepared and FIR was got registered. He further testified that he then went to the spot ie Plot no 33, Balaji Enclave, Punjab Khore, Delhi with Ct Sanjay where he prepared the site plan Ex PW6/B at the instance of the complainant and seized the carbon copes of the bills produced by the complainant vide Ex PW1/D with bills being Ex B1 and B2. He further testified as to having recorded the statement of witnesses whereafter, he handed over the file to MHC(R) upon his transfer. He was duly cross-examined by the Ld Counsel for the accused.
15.PW7 Retd Inspector Rohtash Singh being the 4th Investigating Officer testified as to having made inquiries from the witness Bir Singh after investigation of the case was marked to him on 17.11.2010. He further testified that on 23.03.2011, the complainant had produced the photocopy of sale documents of the house, bills of jewellery and photographs of the house which he seized vide Ex PW1/C with the documents of purchase of house being Mark A to Mark D, photocopy of bills of jewellery being Mark E to Mark F and photographs being Ex P1 to Ex P6 after which he filed the challan in Court. He was duly cross-examined by the Ld Counsel for the FIR No. 81/2009 PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 7 of 13 accused.
16.PW8 Retd ACP Narender Mohan (Inspector Narender, DIU as he then was) being the 3rd Investigating Officer testified as to having searched for witness Bir Singh after investigation was marked to him but he was not traceable. He further testified that he then visited Co- operative Agri and Rural Development Bank from where he seized certified copy of loan application of Rajender, receipt and surety bond of Bir Singh vide seizure memo Ex PW8/A and also relied upon certified copy of the documents Ex 8A whereafter the investigation was marked to Inspector Rohtash. He was duly cross- examined by the Ld Counsel for the accused.
17.PW9 Retd SI Puran Mal being the 2nd Investigating Officer testified after the file was handed over to him, he went to the house of the complainant on 02.06.2009 requesting him to accompany him for recovery of stolen articles which the complainant refused citing urgent work. PW9 further testified that on 03.06.2009, he went to Bahadurgarh for recovery of articles but no recovery was effected from the accused after which he recorded the statement of Vinit then returned to the PS and he also recorded the statements of Rajinder and Bir Singh during investigation. He further testified as to having arrested and personally searched the accused vide memo Ex PW9/A and Ex PW9/B on 15.06.2010 after which he submitted the file to MHC(R) PS Kanjhawala as the investigation was marked to DIU. He FIR No. 81/2009 PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 8 of 13 was duly cross-examined by the Ld Counsel for the accused.
18.During the course of the trial, the accused did not dispute the factum of the registration of present FIR Ex Y1 upon which relevant witnesses was dropped by the Ld APP for the State.
19.Thereafter the prosecution evidence was closed and the statement of accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to the accused who maintained his innocence but chose not to lead defence evidence.
20.Final arguments were then advanced on behalf of both the parties which have been carefully considered along with the evidence on record.
21.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.
22. In the present case, the prosecution has examined only one eye-
FIR No. 81/2009PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 9 of 13 witness ie PW2 Bir Singh @ Ram Sahay since the testimony of the complainant being hearsay cannot be looked into since the complainant/PW1 Rajender has himself testified as to having been informed by Bir Singh @ Ram Sahai on telephone as to the incident which establishes that he was not present at the spot at the time of the occurrence.
23. As per the testimony of PW2 Bir Singh, it was in the night of 10/11.04.2009 when he was sleeping on the roof of plot Plot No 33, Balaji Enclave, Delhi being the mason ie Rajmistri when, at about 3.00-4.00 am, the accused came there with 8-9 persons along with a tractor trolley and the accused Mahabir came near him asking for the key, accused Mahabir kicked him on the thigh and due to fear, he had handed over the key of the main gate to the accused whereafter they started pulling down the construction material ie silli, gatar etc and put it in their trolley taking it away.
24. Hence, if the testimony of PW2 Bir Singh is accepted as correct, it would imply that the accused Mahabir Mittal had climbed on to the roof of the Plot no. 33, Balaji Enclave Delhi and thereafter, had demanded the keys whereafter, he secured the key of the main gate from PW2. However, there is no evidence on record to prove where the main gate of the plot was located in as much as the site plan Ex.PW6/B does not show any boundary of the plot or position of the main gate in the absence of which, it cannot be ascertained whether FIR No. 81/2009 PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 10 of 13 it was even possible for anyone to access the roof first without opening the main gate and hence the chronology of events remains unclear and unproved. Further, the witness PW2 Bir Singh turned completely hostile during his cross-examination as to the identity of the accused testifying that the person had come to the spot on the said day was an old aged person and even during re-examination of PW2, no further explanation came on record in respect of the change in the stand adopted by PW2 Bir Singh, which adversely affects the credibility of the testimony of PW2 Bir Singh.
25.It has been argued by the Ld. APP for the State that even if a witness turned hostile in cross-examination where the cross-examination was done after a long time, the evidence in examination in chief be read since the gap harbors manipulation which cannot be ignored since it is a common practice of defence counsel to deliberately delay the cross-examination to allow manipulation. However, there is no merit in the arguments as raised as even in cases where the witnesses turn hostile, it is still for the court to consider whether as a result of cross- examination/contradiction, the witness stands thoroughly discredited can still be belief in regard to part of his testimony. If the Court finds that the whole testimony of the witness is impugned and in the process the witness stands squarely and totally discredited, the court should as a matter of prudence discard his evidence in toto (Ref. Syad Akbar Vs. State of Karnataka AIR 1979 SC 1848).
FIR No. 81/2009PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 11 of 13
26. In this case, the version being put-forth in the testimony of PW2 Bir Singh has not been corroborated by any independent witness or neighbour despite the complainant himself testifying that the IO had interrogated the neighbours. PW2 Bir Singh has also denied in his cross-examination as to having called Rajender Singh i.e. the complainant herein and there is nothing on record to indicate when and how, the telephonic information about the incident was given to the complainant Rajender Singh as initially in Ex.PW1/A, the complainant Rajender Singh had stated that his mistri Ram Sahai had called him on 11.04.2009 at about 7.30 am in respect of the incident, whereas during his evidence in Court, the complainant/PW1 Rajender Singh adopted an entirely inconsistent stand as to him having called the Mistry upon which the information about the incident was given. The complainant has not disowned his statement Ex.PW1/A and in his cross-examination by Ld. APP, he sought to explain that he had called the mistry whereafter the Mistry had called him but in the entire evidence on record the phone numbers of neither the complainant nor the mistry have been placed on record by the prosecution which raises an adverse inference that it was not brought on record since it does not exist and no such incident took place.
Decision
27. In view of the aforesaid discussion, with the prosecution failing to prove its case against the accused beyond reasonable doubts, the FIR No. 81/2009 PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 12 of 13 accused Mahabir Mittal S/o Sh. Sh. Murari Lal, is given the benefit of the doubt and is hereby acquitted of the offence under Section 457/380 IPC in FIR no. 81/2009 PS Kanjhawala.
28.He is directed to furnish bail bond and surety bond in the sum of Rs.30,000/- under section 437A of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
29. File be consigned to Record Room after due compliance.
Announced in the open Court Digitally signed by
on 18.11.2019 POOJA POOJA AGGARWAL
AGGARWAL Date: 2019.11.18
17:29:52 +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: 2019.11.18 17:29:58 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 81/2009 PS Kanjhawala U/s 457/380 IPC State Vs Mahabir Mittal Page No. 13 of 13