Delhi District Court
State vs . Raj Kishore @Raju on 1 December, 2021
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-056440-2019
Cr. Case17908/2019
STATE Vs. RAJ KISHORE @RAJU
FIR NO. 105 /2010
P.S Kapashera
JUDGMENT
Case No. : 17908 Date of commission of offence : 05.06.2010
Date of institution of the case : 01.09.2010
Name of the complainant : Sh. Avanender
Singh
Name of accused and address : 1. Raj Kishore @ Raju S/o Sh. Gulab Singh R/o VPO Parasan P.S Atta Distt:
Jalaun, U.P.
2. Rajender (already acquitted vide order dated 18.07.2014).
3.Rahis Khan (already acquitted vide order dated 18.07.2014).
Offence complained of or proved : U/s 457/380/411/34 IPC State Vs. Raj Kishore @ Raju Page No.1 / 17 Plea of the accused : Pleaded not guilty Final order : Acquitted of offence u/s 457/380/34 IPC.
Convicted for offence u/s 411 IPC.
Date reserved for judgment : 28.10.2021.
Date of judgment : 01.12.2021.
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This court shall pronounce its judgment in the present case with respect to prosecution of accused Raj Kishore @ Raju, pursuant to charge sheet filed qua him and other co-accused persons, namely Rajender and Rahis Khan (already acquitted), under Sections 457/380/411/34 of Indian Penal Code, 1860 (hereinafter IPC for short), subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 105/2010.
2. It is the case of the prosecution that on 05.06.2010, at around 9:00 p.m, when the complainant alongwith his wife, returned to his house situated at Pushpanjali Farm, Bijawasan, New Delhi, he found that his house was broken into and several articles were found to be stolen therefrom. It is the case of the complainant that the things in the house were scattered and his rifle Bruno no. 68027, 100 rounds of cartridges and some currency notes were found missing and were suspected to be State Vs. Raj Kishore @ Raju Page No.2 / 17 stolen. That the complainant, thereafter, called at 100 number, consequent to which the police arrived at the spot and recorded the statement of complainant. Subsequently, an FIR was registered regarding the theft committed at the house of complainant. During investigation, the accused Raj Kishore, Rajender and Rahis Khan were arrested, who disclosed regarding their involvement in the offence in the present case. Certain case property was also recovered from each of the accused person.
After completion of investigation, the police filed the present chargesheet against the accused persons for commission of offence punishable u/s 457/380/411/34 of IPC.
3. At this juncture, it is pertinent to note that accused Rajender and Rahis Khan have already been acquitted in the present case by the Ld. Predecessor Judge, vide order dated, 18.07.2014. The present accused namely Raj Kishore, had been declared absconder vide order dated, 16.12.2013, and proceedings qua him were initially conducted u/s 299 Cr.P.C. Upon his apprehension, the present case against him was restored and further proceedings qua him were conducted, resulting into the present stage of pronouncement of judgment qua the said accused. Therefore, this court shall now proceed to discuss facts, appreciate the evidence and record its consequent findings with respect to allegations under sections 457/380/411/34 of IPC, against accused Raj Kishore only.
4. Complete set of charge sheet and other documents were supplied to the accused persons. After hearing the arguments, charge for offence punishable u/s 457/380/411/34 IPC State Vs. Raj Kishore @ Raju Page No.3 / 17 was framed qua accused Raj Kishore @ Raju on 24.09.2010, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
5. The prosecution, in support of the present case has examined ten witnesses in total. However, as stated earlier, since the present accused, namely Raj Kishore, was declared absconder vide order dated, 16.12.2013, statements of all prosecution witnesses, as regards accused Raj Kishore, were initially recorded under section 299 Cr.P.C.
6. PW-1 was Sh. Sudhir Kumar Vats, in whose presence the accused Raj Kishore was allegedly arrested and recovery of stolen property namely, rifle was made. Through him, recovery memo Ex. PW 1/A was exhibited and the case property i.e. the rifle, was exhibited as Ex. P4.
7. PW-2 was Ct. Surender, who had aided the IO in the investigation of the present case and deposed as regards the proceedings qua the other two co-accused persons. Through him, documents Ex. PW2/A to Ex. PW2/J, were taken on record. Currency notes were exhibited as Ex. 3.
8. PW-3 was Ct. Naresh, who was the duty officer on 05.06.2010. He deposed regarding the registration of FIR in the present case.
9. PW-4 was Sh. Awanindra Singh i.e. the State Vs. Raj Kishore @ Raju Page No.4 / 17 complainant himself who deposed regarding the facts of the present case as alleged by him in his complaint to the police. Through him, his statement given to the police was exhibited as Ex. PW 4/A; the disclosure statement of accused Raj Kishore was exhibited as Ex. PW 4/B, the arrest memo of accused Raj Kishore was exhibited as Ex. PW 4/C; personal search memo of accused Raj Kishore was exhibited as Ex. PW 4/D and photographs of the rifle taken at the time of recovery were exhibited as, Ex. PW 4/E1 and Ex. PW 4/E2.
10. PW-5 was Ct. Vinod Kumar, who had assisted the IO in the investigation of the present case.
11. PW-6 was Ct. Jagdish Chand, who had assisted the IO in the investigation of the present case and had inter alia, deposed regarding the arrest of accused Raj Kishore at the instance of complainant and recovery of the rifle at the instance of accused, from his house, in the presence of complainant and Sudhir Vats, i.e., the owner of the rented house of accused.
12. PW-7 was Sh. R.K. Mehra who was the member of crime team who had lifted the finger prints from the spot. Through him, his report was exhibited as Ex. PW 7/A.
13. PW-8 was ASI Rajender Singh, who was the IO in the present case, who deposed regarding the facts of the present case. Through him, the rukka was exhibited as Ex. PW 8/A and site plan was exhibited as Ex. PW 8/B. State Vs. Raj Kishore @ Raju Page No.5 / 17
14. PW-9 was Ct. Rajeev, who had aided the IO in the investigation of the present case.
15. PW-10 was HC Birender Kumar, who was the MHC(M) in the present case and through whom, photocopy of entry no. 1059 and 1046 in the roznamcha register was exhibited as, Ex. PW 10/A.
16. No other PW was left to be examined, hence, P.E was closed.
17. At this juncture, attention may be drawn to the fact that after the accused was arrested upon being declared an absconder, the matter qua him was restored and listed for prosecution evidence again. However, during the prosecution evidence qua accused Raj Kishore, only PW-4, i.e. the complainant, and PW-8, i.e. IO, were re-called for prosecution evidence by the Ld. LAC for the accused. Examination in chief and cross examination of PW-4 Sh. Awanindra Singh i.e. the complainant, conducted qua accused Rahis and Rajender, was adopted by the Ld. LAC for the present accused as well. Similarly, examination in chief and cross examination of the ASI Rajender Singh i.e. the IO, conducted qua accused Rahis and Rajender, was also adopted by the Ld. LAC for the present accused as well, however, additionally, certain other questions were also put to PW8, specifically qua the allegations levelled against accused Raj Kishore. Thereafter, upon submissions of the Ld. LAC for the accused, no further prosecution witness was recalled for examination and the matter was listed for recording State Vs. Raj Kishore @ Raju Page No.6 / 17 of statement of accused under section 313 of Cr.P.C.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
18. Statement of the accused u/s 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. He also stated that he used to work at the house of complainant and had gone to his village to attend his sister's wedding at the relevant time. He also stated that his relative Amit was residing in his room at the house of complainant. He further submitted that when he came back after attending his sister's wedding, he was falsely implicated in the present case. He finally stated that he is innocent and that the alleged offence has not been committed by him. Accused further opted to not lead evidence in his defence.
FINAL ARGUMENTS:
19. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 457/380/411/34 IPC qua accused Raj Kishore, has been proved beyond doubt.
20. Per contra, Ld. LAC for accused has stated that there is no legally sustainable evidence against the accused and State Vs. Raj Kishore @ Raju Page No.7 / 17 that the accused has been falsely implicated by the complainant. It has been further argued that there are material contradictions and inconsistency in the testimony of the complainant, thus, rendering allegations against the accused unreliable and incredible. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused be given the benefit of doubt and is therefore, entitled to be acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
21. Arguments adduced by Ld. APP for State and Ld. LAC for accused have been heard. The evidence and documents on record have been carefully perused.
22. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Raj Kishore @ Raju has been indicted for the offence u/s 457/380/411/34 IPC.
23. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
State Vs. Raj Kishore @ Raju Page No.8 / 17FINDINGS WITH RESPECT TO OFFENCE U/S 457/480/34 IPC QUA ACCUSED RAJ KISHORE @ RAJU.
24. At the very outset, it may be delineated that to prove the offence under section 457 IPC, which prescribes punishment for lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment / theft, the prosecution is required to prove the following:-
1. The accused should have entered into the property which is in possession of another person.
2. There should be an intention to commit an offence on part of the accused.
3. Such property should be any building / tent/ vessel used for human dwelling or place for worship or for custody of property.
4. Entry into the house should have been effected by the accused in any one of the six ways as defined under Section 454 IPC.
25. Further, to prove the offence of theft under section 380 of IPC, the following ingredients are required to be proved-
1. Intention to take dishonestly.
2. The property should be movable property.
3. The property should be taken out from the possession of any person without his consent.
4. There should be some moving of the said property to such taking.
5. The theft should have been committed in a dwelling house or place used for safe custody of property.
Section 34 IPC lays down the liability for criminal acts of several persons, done in furtherance of common intention of all.
State Vs. Raj Kishore @ Raju Page No.9 / 1726. Adverting to the facts of the present case, in his complaint, the complainant has submitted that on 05.06.2010, when he, along with his wife, returned home after their outing, they felt that somebody was inside the house and the door of the house was found opened, upon their return. However, no person escaping from the house had been reportedly seen by the com- plainant or his wife. Furthermore, no effort appears to have been made by the IO to trace any person, who would have witnessed the theft in question or to locate any CCTV camera which may have been installed at the spot, capturing the incidence of theft. Moreover, though as per record, chance prints / finger prints were collected from the spot by the crime team, however, no ef- fort seems to have been made to match the same with the finger prints of the present accused, bringing to light the complicity of the accused in the alleged act of theft at the house of the com- plainant. Also, it is the version of the complainant that upon their return, they had found the lock of the back door of the house, broken. However, no recovery of the broken lock was made and no photographs of the spot have been collected during investiga- tion. Thus, since, nobody has seen the accused committing the act of theft, the commission of offence under sections 457/380/34 IPC cannot be said to have been proved against the accused. Not an iota of the evidence has come on record to support the case of the prosecution qua allegations under sections 457/380/34 IPC. Therefore, it can safely be concluded that accused Raj Kishore is not guilty for the commission of the offence under sections 457/380/34 IPC and accordingly, he is acquitted for the offence under sections 457/380/34 IPC.
State Vs. Raj Kishore @ Raju Page No.10 / 17FINDINGS WITH RESPECT TO OFFENCE UNDER SECTIONS 411 IPC QUA ACCUSED RAJ KISHORE @ RAJU
27. In order to prove offence under section 411 IPC, prosecution is required to firstly, prove that the stolen property was in possession of the accused. Second, that some person, other than the accused, had possession of the property before the accused got possession of it and third, that the accused had dis- honestly retained or received the property with the knowledge that the case property was a stolen one.
28. At this juncture, it may be particularly noted that the testimonies of PW1, PW3, PW4, PW6, PW7, PW8 and PW9, mainly, are of relevance presently, in as much as they pertain to deposition of facts with respect to present accused Raj Kishore. From the perusal of testimonies of these witnesses, it can be safely discerned that an FIR regarding theft was registered upon the complaint of the complainant, received through DD no. 34A, regarding theft of certain articles, allegedly belonging to the complainant. In furtherance of the investigation under the said FIR, accused Raj Kishore was arrested at the instance of the complainant. Subsequently, the disclosure statement of the ac- cused was recorded and the rifle was recovered at the instance of the accused from his rented room/house. The landlord of the room / house of the accused has deposed as a recovery witness, as PW1, and during his testimony, he corroborated the recovery proceedings as recorded in recovery memo, Ex. PW1/A. Since, the said witness was not cross-examined on behalf of the ac-
State Vs. Raj Kishore @ Raju Page No.11 / 17cused, his testimony in this regard went unscathed. Further, there is nothing on record to disbelieve his testimony or to show as to why the said witness would depose falsely to implicate the ac- cused person.
29. Moreover, PW4, that is the complainant, has specifi- cally deposed that on 29.06.2010, his rifle was recovered from Samalkha, in his presence, from the possession of accused Raj Kishore, who used to work at his farm house, and the same was taken into possession by the IO vide memo, Ex. PW1/A, bearing his signatures at point B. Further, from the testimony of PW4, it can be safely concluded that the accused was arrested vide arrest memo, Ex. PW4/C in the presence of the complainant, his disclo- sure statement was recorded in the presence of the complainant vide memo, Ex. PW4/B and the personal search of the accused was also conducted in the presence of the complainant, vide memo, Ex. PW 4/D. The said witness was not cross-examined on behalf of accused Raj Kishore and the Ld. LAC for the accused had adopted the testimony of PW4, recorded qua accused Rahis and Rajinder, in entirety, to be read as such with respect to ac- cused Raj Kishore as well. The testimony of complainant as PW 4 went unimpeached on majority of the aspects deposed by him as regards the recovery of rifle from the possession of accused Raj Kishore.
30. Not only this, the testimony of police official PW6, is also in consonance with the recovery proceedings on record and with the testimony of other prosecution witnesses in that re- gard. The said witness has also not been cross-examined on be-
State Vs. Raj Kishore @ Raju Page No.12 / 17half of the accused and accordingly, his testimony went un-rebut- ted. Now, PW8, that is the IO of the present case, also deposed on similar lines as the other prosecution witnesses, with respect to the recovery of the rifle from the possession of the accused. Also, nothing has surfaced on record during cross examination of any of the police / official witnesses as would raise suspicion re- garding false implication of accused on account of previous ani- mosity between the police officials and the accused, and conse- quently, there is no reason to presume that the accused has been falsely implicated in the present case.
31. As discussed above, all the material witnesses, ex- amined on behalf of the prosecution and deposing with respect to accused Raj Kishore, have supported the case of prosecution in all material particulars and no material contradictions have been brought to light in their testimonies regarding the recovery of ri- fle in question from possession of the present accused. The rifle in question was seized from the possession of the accused him- self vide memo, Ex. PW1/A and the said recovery is without a doubt, admissible as per Section 27 of Indian Evidence Act, 1872. Further, the identity of the rifle is not disputed as no sug- gestion / question to that effect has been put to the relevant wit- nesses by the Ld. counsel for accused Raj Kishore. In fact, the complainant had specifically mentioned in his complaint given to the police official for registration of FIR that his rifle, Bruno number 68027, inter alia, was stolen from his house on the day of the alleged incident. The rifle in question was also produced dur- ing trial and was exhibited as Ex. P4.
State Vs. Raj Kishore @ Raju Page No.13 / 1732. Though, some inconsistency has surfaced during his cross-examination qua accused Raj Kishore as regards the person at whose instance / pointing out, the accused was arrested, in light of the other evidence on record, the same cannot be said to be so material as would prove fatal to the case of the prosecution or as would tarnish the case of the prosecution in respect to the offence under section 411 IPC against accused Raj Kishore. Moreover, the complainant was also not cross examined in this regard on behalf of the accused to resolve the said inconsistency. Rather, the entire testimony of PW4 qua accused Rahis and Ra- jinder was adopted in whole by the defence and the said witness was not cross examined with respect to any of the inconsisten- cies, if at all, or with regard to the defence set up by the accused in his statement recorded under section 313 of Cr.P.C. In his statement recorded under section 313 Cr.P.C., the accused has stated that he used to work at the house of the complainant and had gone to his village for his sister's wedding and that upon his return from his sister's wedding, the accused was falsely impli- cated in the present case by the complainant. However, no sug- gestion was given to the complainant in this regard, on behalf of the accused, or to bring to light any motive of the complainant to falsely implicate the present accused. Not only this, no effort was made by Ld. Defence counsel to give any weight to the plea of defence raised by the accused. Also, it has not been contested on behalf of the accused that the room / house from where the re- covery of stolen rifle was effected, did not belong to the accused or that PW1, that is, Sh. Sudhir Vats, was not the landlord thereof, in whose presence the recovery was effected. Also, though the IO during his cross examination qua accused Raj State Vs. Raj Kishore @ Raju Page No.14 / 17 Kishore has stated that he had not taken the photographs of the rifle and had only prepared the sketch, it is a matter of fact the said photographs have been placed on record as Ex. PW 4/E1 and Ex. PW 4/E2, albeit not clicked by the IO himself. Thus, this court finds no substance in the suggestion of the Ld. LAC put by him to the IO in his cross-examination as regards the fact that the stolen property was not recovered, since, the photographs of the same had not been taken. No effort has been made to resolve the said inconsistency in statement of the IO, made by him during his cross- examination.
33. At this juncture, it would be apposite to refer to the ruling of the Hon'ble Apex Court in State of Himachal Pradesh v. Lekh Raj & Anr. (2000) 1 SCC 247, wherein, following obser- vations were made:
"....Discrepancy has to be distin- guished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the hu- man conduct would be that while nar- rating a particular incidence there may occur minor discrepancies, such discrepancies in law may render cre- dential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circum-
stances of the case by keeping in view the social status of the witnesses and State Vs. Raj Kishore @ Raju Page No.15 / 17 environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala, [1974] 3 SCC 767, held that minor variations in the accounts of the wit- nesses are often the hallmark of the truth of their testimony. In Jagdish v. State of Madhya Pradesh, [1981] SCC (Crl.) 676, this Court held that when the discrepancies were compar- atively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consis- tency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v, Kalki & Anr., [1981] 2 SCC 752 held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepan- cies are due to normal errors of ob- servation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not ex-
pected of a normal person."
34. In the present case, in the opinion of this court, no such material contradictions appear to have surfaced during testi- mony of the prosecution witnesses, as would impeach the credi- bility of version of prosecution and prove fatal to its case. The court has no reason to disbelieve the testimonies of the prosecu- tion witnesses, who have corroborated each other in all material aspects regarding the recovery of the stolen property of the com- plainant at the instance of accused Raj Kishore from his room / State Vs. Raj Kishore @ Raju Page No.16 / 17 house. Thus, the recovery of the stolen rifle stands duly proved. Further, in few of the aforesaid fact of recovery of stolen rifle having been proved, accused Raj Kishore failed to account for the possession of the same. Therefore, this court is of the opinion that the prosecution has proved its case for the offence under Section 411 IPC beyond reasonable doubt, against the accused Raj Kishore. Accordingly, this court hereby, holds accused Raj Kishore @ Raju guilty for commission of offence u/s 411 IPC.
35. In light of the aforesaid discussion, accused Raj Kishore @ Raju is acquitted of offence u/s 457/380/34 IPC and is convicted for the offence u/s 411 IPC.
36. Copy of this judgment be given free of cost to the accused.
Announced in the open court
APOORVA Digitally signed by
APOORVA RANA
on 01.12.2021. RANA Date: 2021.12.01 18:12:52
+05'30'
(APOORVA RANA)
M.M-10/Dwarka Courts/01.12.2021
It is certified that this judgment contains 17 pages, all signed by the undersigned.
APOORVA Digitally signed by
APOORVA RANA
RANA Date: 2021.12.01 18:12:37
+05'30'
(APOORVA RANA)
M.M-10/Dwarka Courts/01.12.2021
State Vs. Raj Kishore @ Raju Page No.17 / 17