Delhi District Court
State vs Dinesh Kr on 2 June, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts, Delhi
State Vs. Dinesh Kumar etc.
FIR No. 41/2007
U/sec. 379/411/34 IPC
PS: Khajuri Khas
Date of institution of the case:22.06.2007
Date for final arguments: 22.05.2025
Date on which judgment is delivered: 02.06.2025
CNR No. DLNE-02-000280/2007
JUDGMENT
a) Cr. No. of the case : 466151/2015
b) Date of commission of the offence : 22.01.2007
c) Name of the complainant : Ms. Anupama Kasana
d) Name of the accused and his parentage : 1) Dinesh Kumar
S/o Sh. Kishan Lal
2) Balbir Singh
S/o Sh. Kishan Lal
e) Offence complained of : Section 379/411/34 IPC
f) Offence charged of : Section 379/411/34 IPC
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date of such order : 02.06.2025
FIR No.41/2007 1/14 State Vs. Dinesh Kumar etc.
Digitally
signed by
ISRA ISRA ZAIDI
Date:
ZAIDI 2025.06.02
17:23:59
+0800
Brief facts of the case
1. Succinctly stated the facts discernible from the present complaint are that on 22.01.2007 complainant was returning from Delhi State Cooperative Bank to her School Govt. Sarvodaya Bal Vidyalaya, Khajuri Khas on a rickshaw. Two persons came on the motorcycle and snatched her purse. She informed the same in the PS. During this period Rs.11,500/- were withdrawn from her ATM card. The bag/purse contained two mobile phones Nokia 2300 and Nokia 3210, PNB Yamuna Vihar Bank Pass Book. The bag contained the key of the lock of her almirah, Rs.1750/-, her school ID card and important documents. It has been further stated in the complaint that along with her school ID, the ATM card Pin was also written. She further stated that the bike on which the accused persons came, had last four digits of the registration No. as 5354. Thereafter, an FIR against accused Dinesh and Balbir was registered under section 379/411/34 IPC.
Court Proceedings
2. After completion of the investigation, charge-sheet under sections 379/411/34 IPC was filed before the court against the accused persons. The then Learned Magistrate took cognizance on 22.06.2007 and accused persons were summoned to face the trial. On their appearance in the Court, copies of documents, relied upon by the prosecution were supplied to them as per norms. Thereafter, vide order dated 22.01.2009 charge under sections 379/411/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE.
Prosecution Evidence
3. In order to prove and substantiate its case, the prosecution has examined following witnesses.
Prosecution Witnesses
FIR No.41/2007 2/14 State Vs. Dinesh Kumar etc.
Digitally signed
ISRA by ISRA ZAIDI
Date:
2025.06.02
ZAIDI 17:24:05
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S. No. Witness number Name of the witness
1. PW1 Ct. Hari Shanker
2. PW2 HC Chhote Lal
3. PW3 HC Lakhmi Chand
4. PW4 Ms. Anupama Kaana
5. PW5 HC Laxman Singh
6. PW6 Retd. SI Jagat Singh
7. PW7 Sh. Sumit
8. PW8 Retd. SI Kafil Ahmed
9. PW9 ASI Bhagmal
10. PW10 ASI Umesh Kumar
11. PW11 Retd. SI Shridhar Prasad
12. PW12 ASI Badri Lal
Documents relied upon by the prosecution
S. No. Ex./Mark Nature of documents
1. Ex. PW2/A Photocopy of Register No.19
2. Ex. PW2/B Road certificate register
3. Mark-A Complaint of complainant
4. Ex. PW5/A Disclosure statement of accused
Balbir
5. Mark-X Statement of Sh. Sumit
6. Ex. PW8/A Site plan
7. Ex. PW8/B & Arrest memo of accused persons
Ex.PW-8/C
8. Ex. PW8/D & Disclosure statement of accused
Ex.PW-8/E persons
9. Ex. PW8/F & TIP documents of accused persons Ex.PW-8/G
10. Ex. PW8/H Pointing out memo FIR No.41/2007 3/14 State Vs. Dinesh Kumar etc. Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 17:24:12 2025.06.02 +0800
11. Ex. PW8/I Seizure memo of bag
12. Ex. PW8/J Seizure memo of mobile phone
13. Ex. PW8/K Verification report from PNB
14. Ex.PW-8/A Original complaint
15. Ex.PW-8/B Bank statement ( in written form)
16. Ex.P-2 Ladies purse
17. Ex.P-3 Visiting card and some documents
18. Mark-X Disclosure statement of accused Dinesh in case FIR o. 172/07 PS Sarojini Nagar
19. Mark-Y Seizure memo of mobile phone Nokia 2300
20. Ex.P-1 Mobile phone Nokia 2300 Statement of the Accused u/s 313 Cr.P.C
4. The accused persons u/s 313 Cr.P.C examined on 29.04.2025. The accused persons stated that they were running a mobile shop in Seemapuri. Police officials of PS Dhaula Kuan apprehended them and kept them for two days. Thereafter, police officials handed them to PS Sarojini Nagar. Police officials falsely implicated them in the present case. Disclosure statement was forcibly recorded by the police. Nothing was recovered from their possession.
Evidence of the Defence
5. No defence evidence was led by the accused despite granting him an opportunity.
Final Arguments
6. The court heard final arguments on behalf of the both the parties on 13.05.2025. Ld. Counsel for the accused submitted that the case against the accused FIR No.41/2007 4/14 State Vs. Dinesh Kumar etc. Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 17:24:20 2025.06.02 +0800 is false and frivolous and has prayed that accused be acquitted of the offences charged. He pointed out various discrepancies in the version of the prosecution witness. Learned APP for the state submitted that accused be convicted of the offences under the above-mentioned sections as there is sufficient evidence on record to convict the accused. This court has heard the submissions of Ld. APP for the State and Ld. Counsel for the accused. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
Brief reasons for the just decision of the case:
7. In the instant case, in order to bring home the guilt of the accused persons, the prosecution had to prove the following ingredients of the offences punishable u/s 379 IPC and 411 IPC beyond reasonable doubt:
Section 379 IPC:-
"Section 379 IPC provide that "Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 411 IPC:-
"Section 411 IPC provide that "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.".
8. The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be FIR No.41/2007 5/14 State Vs. Dinesh Kumar etc. Digitally signed ISRA by ISRA ZAIDI Date: 2025.06.02 ZAIDI 17:24:29 +0800 applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v.
State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."
9. The rule that every accused person is presumed innocent until he is proved guilty and that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt is fundamental to the system of justice practiced in this country and in several other countries. Indeed it is entrenched in the Constitution that every person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.
10. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
11. PW1 deposed in his examination in chief that on 22.01.2007 he was posted at PS Khajuri Khas. He went to the spot and handed over the rukka and copy of FIR to the IO. He further deposed that he searched for the stolen motorcycle but the same could not be traced. He was not cross-examined despite opportunity. It is the story of the prosecution that theft of the purse of the complainant took place. This court is unable to comprehend as to why the stolen motorcycle was searched as per the version of PW1.
FIR No.41/2007 6/14 State Vs. Dinesh Kumar etc.
Digitally
signed by
ISRA ISRA ZAIDI
Date:
ZAIDI 2025.06.02
17:24:35
+0800
12. PW2 deposed in his examination in chief that one pullanda was seized by the IO on 31.03.2009 carrying a mobile. Road Certificate pertaining to Nokia mobile phone 2300 was produced before the court vide Register bearing No. 136/21/07 Ex.PW-2/B (OSR). He was not cross-examined despite opportunity.
13. PW3 deposed in his examination in chief that he was posted at PS Khajuri Khas. He received DD no.39B. He along with the IO reached the spot wherein he met the complainant who narrated about the incident of snatching of her bag by two boys. He was not cross-examined despite opportunity.
14. PW4 deposed in her examination in chief that on 22.01.2007 she was returning from Delhi State Cooperative Bank to her school Govt. Sarvodaya Bal Vidyalaya, Khajuri Khas on a rickshaw. Two boys came on the motorcycle bearing No. 5354 and snatched her purse and ran away from the spot. She further deposed that she informed the same in the PS. During this period Rs.10,000/- and Rs.1500/- were withdrawn from her ATM card which was lying in her purse alongwith PIN code of her ATM card. She further deposed that her purse contained ID card, cheque book, PNB Pass book, mobile phones bearing no. 9868832910 and 9810377985, the key of the lock of her almirah and Rs.1750/-. Further examination in chief was deferred for the want of original complaint. Thereafter, witness PW4 Anupama Kasana was summoned again, subsequently bailable warrants were issued against her many times to secure her presence, NBWs were issued against her. Subsequently, she appeared thereafter she again stopped appearing. The bailable warrants were again issued through DCP which were received back unserved. She was dropped from the list of witnesses.
15. PW5 deposed in his examination in chief that he was posted at PS Sarojini Nagar. On that day he joined the investigation of case FIR No. 171/07 u/s 25 Arms Act PS Sarojini Nagar, wherein accused Balbir disclosed the involvement of FIR No.41/2007 7/14 State Vs. Dinesh Kumar etc. Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.06.02 17:24:42 +0800 commission of offence in this case. He further deposed that accused Balbir disclosed that they were on bike No. DL-7SW-6711. It appears to be discrepancy. He further deposed that he disclosed that bag consisted of two mobile phones and Rs.1700/- to Rs.1800/-, one cheque book and one passbook which they had thrown. He further deposed that he told that they sold the mobile to the truck driver. He was not cross- examined despite opportunity.
16. PW6 recorded the disclosure statement of accused Balbir in case FIR No. 171/07 PS Sarojini Nagar, who disclosed his involvement in the present FIR. In the cross-examination he testified that he did not know if the accused were discharged in FIR No. 171/07 PS Sarojini Nagar.
17. PW7 deposed that he did not know anything regarding the case. He was declared as hostile and was cross-examined by Ld. APP for the State and he was confronted with his previous statement. He also failed to identify the accused. He was not cross-examined by accused despite opportunity.
18. PW8 deposed in his examination in chief that DD No. 39B was marked to him on 22.01.2007. He went to the spot, met the complainant where she orally narrated about the incident and told that she will file complaint later. He further deposed that he along with Ct. Laxmi Chand searched for accused but they were not found. Thereafter, complainant lodged her complaint and an FIR was registered. He prepared site plan at the instance of complainant Ex.PW-8/A. On 31.03.2007 DD No.16A was received from PS Sarojini Nagar regarding arrest of the accused persons and recovery of the mobile phone from PS Sarojini Nagar. On 01.04.2007 he went to PS Sarojini Nagar and obtained the recovered mobile phone. Thereafter, accused persons were formally arrested. He further deposed that he prepared pointing out memo Ex.PW-8/H and accused got the bag of the complainant recovered from forest area near Police Training school, Wazirabad where they had thrown the bag of the FIR No.41/2007 8/14 State Vs. Dinesh Kumar etc. Digitally signed by ISRA ISRA ZAIDI Date:
ZAIDI 2025.06.02 17:24:49 +0800 complainant. Thereafter, bag was seized vide seizure memo Ex.P8/I. He obtained the receipt of mobile phone Ex.PW-8/J.
19. In his cross-examination PW8 testified that place of incident was a public place. The rickshaw puller who robbed the complainant was not present on the spot. He admitted that statement of the complainant was not recorded on the spot and stated that the same would be recorded in the PS. IO admitted that when he reached the spot, complainant had already left the spot. He also admitted that complainant did not give any statement on the spot. He testified that he obtained the bank statement of the complainant Ex.PW-8/B. The same was objected by the ld. defence counsel on the grounds that it was not the bank statement but withdrawal transaction of ATM. Perusal of the document Ex. PW8/B reveals that it is not the bank statement but withdrawal summary on two occasions. He admitted that he did not collect the CCTV footage. He had not collected the CCTV footage of ATM machine. It is only summary of withdrawal amount on two occasions. He admitted that he did not visit the spot after registration of FIR. He did not remember if he obtained the signature of the complainant on the site plan. He admitted that no public person was made as a witness in the present case. He admitted that he did not obtain the photographs of the motorcycle. IO admitted that he did not attach the cheque book, photographs of cheque book, ATM, visiting card with the file.
20. PW9 deposed in his examination in chief that on 09.04.2007 he accompanied the IO to Karkardooma Court, where the accused persons were arrested. He testified in his cross-examination that disclosure statement was written by the IO himself in presence of the accused. He denied the other suggestions put to him by Ld. Defence counsel.
21. PW10 deposed in his examination in chief that he accompanied the IO in the investigation. He deposed that accused persons disclosed that they snatched the purse FIR No.41/2007 9/14 State Vs. Dinesh Kumar etc. Digitally signed by ISRA ISRA ZAIDI Date:
ZAIDI 2025.06.02 17:24:56 +0800 of the lady. Accused Balbir got recovered one black colour ladies purse. He further deposed that IO checked the purse and found one cheque book, ATM card and other documents. He identified the case property. When the ladies purse was opened, the description of the same has not been mentioned. He was cross-examined by the Ld. APP for the State. He admitted that purse contained cheque book of PNB bank, one ATM card of HSBC bank. He testified in his cross-examination that IO did not prepare the site plan on the spot. No public person was made as a witness in the present case.
22. PW11 deposed in his examination in chief that IO recorded the disclosure statement of accused Dinesh. Mobile phone was recovered from their possession was seized vide Mark-X. MHCM produced the mobile phone namely Nokia 2300 Ex.P1 in an opened condition. He was cross-examined by Ld. APP for the State wherein he testified that his statement u/s 161 Cr.PC was recorded in PS Sarojini Nagar. He testified in cross-examination that he recovered mobile phone from a briefcase. No public person was made as a witness in the present case. He denied the other suggestions put to him by Ld. defence counsel.
23. PW12 deposed in his examination in chief that on 31.03.2007 he was posted at PS Sarojini Nagar. He alognwith IO ASI Shridhar joined the investigation. One mobile phone was recovered from the possession of accused and their disclosure statement was recorded. MHCM produced the mobile phone namely Nokia 2300 Ex.P1 in an opened condition. He testified in his cross-examination that he did not remember when he reached the house of Dinesh. Mobile phone was recovered from the briefcase. No public person was made as a witness in the present case. He denied the other suggestions put to him by Ld. defence counsel.
24. Perusal of site plan reveals that it was not even signed by the complainant though IO has stated that it was made at the instance of the complainant. The FIR No.41/2007 10/14 State Vs. Dinesh Kumar etc. Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 17:25:02 2025.06.02 +0800 evidentiary value of the spot map/sketch map prepared by the investigating officer is relevant under section 9 of the Indian Evidence Act, 1872 and since it is based on the actual observation of the officer at the crime scene, it is treated as direct evidence and is admissible u/s 60 of Indian Evidence Act, 1872. It is well settled that every defect in the site plan cannot be fatal to the case of the prosecution though non-mentioning of the essential features in the site plan can create a doubt on the story of the prosecution. In the case of Shingara Singh v. State of Haryana (2003)12 SCC 758 it was held that any defect in the site plan creates a doubt regarding the place of occurrence and accused is entitled to get the benefit of doubt. The site plan prepared by the IO Ex.PW-8/A was not even signed by the complainant. It is doubtful that the site plan was prepared at the instance of the complainant.
25. PW2 produced road Certificate. The mobile phone Nokia 2300 with IMEI No. 352971000703096. There is nothing on record to show that the mobile phone snatched by the complainant had the same IMEI no. as that of the phone which was recovered except for a receipt which is a photocopied document. Neither the original receipt was produced before the court nor Amardeep Kasana or any concerned official from Dev Communication were examined as witnesses by the prosecution. It is not proved in accordance with the provisions of Indian Evidence Act, 1872. There is no independent witness to the seizure memo.
26. PW4 was not examined in chief by the prosecution in toto. She was partly examined in chief. She could not be subjected to cross-examination. In her examination in chief she deposed that two boys came on bike bearing registration no. 5354. However, as per seizure memo bike bearing no. DL-SW-6711 was recovered from the accused persons.
FIR No.41/2007 11/14 State Vs. Dinesh Kumar etc. Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 17:25:09 2025.06.02 +0800
27. PW4 deposed that an amount of Rs.10,000/- and Rs.1500/- were withdrawn from ATM card but from which ATM it was withdrawn has not been mentioned. CCTV footage was also not obtained of the ATM. The location from which ATM the amounts were withdrawn were not checked by the IO. The bag which was recovered could not be identified by the witness as she did not appear before the court to lead further evidence. TIP of the bag was not conducted.
28. As per PW4, the accused persons were on bike bearing last digit registration no. as 5354 but as per PW5 accused disclosed that they were on bike bearing no. DL- 7SW-0911 it appears to be an inconsistency. Reference in this regard can be made to the case of "Joseph v. State of Kerala (2003) 1 SCC".
29. PW7 has completely turned hostile. He appears to be an unreliable witness. At this stage, it is pertinent to mention that PW7 has completely turned hostile. He has not deposed in line with his previous statement. At this stage, it is pertinent to note the case of Lallu Manjhi and Anr. v. State of Jharkhand (2003) 2 SCC 401 the Hon'ble Supreme Court of India had classified oral testimony of witnesses into three categories wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. The testimony of the witness to be neither wholly reliable nor wholly unreliable. PW7 does not appear to be reliable.
30. The rickshaw puller was also not examined as a witness by the prosecution. IO himself admitted that he did not collect the CCTV footage of ATM machine. He also did not try to ascertain the location of the ATM from the concerned branch or the location of the mobile phones. TIP of bag which was recovered, was not conducted. No independent witnesses were made either to the seizure memo or to the disclosure statement.
FIR No.41/2007 12/14 State Vs. Dinesh Kumar etc.
Digitally signed
ISRA by ISRA ZAIDI
Date:
2025.06.02
ZAIDI 17:25:16
+0800
31. The incident happened when many other independent were available. Not even one person who witnessed the incident was made a witness. There is no other independent public witness who could have supported the uncorroborated testimony of the complainant. No other public witness/independent witness has been examined by the prosecution to corroborate the complainant. No reliance can be placed on uncorroborated incomplete testimony of the complainant. In case of Pradeep Narayan State of Maharashtra AIR 1995 SC 1930 held that failure of police to join witness from locality during search creates doubt about fairness of investigation, benefit of which must go to the accused.
32. It is an adage that law works on the wheels of evidence. Every criminal trial is a journey of discovering and unfolding the truth. But in the present case no sufficient evidence is there on record to warrant the conviction of the accused person. In the case of Prem Singh Yadav Vs. CBI 178 (2011) DLT 529 it was held that where it is possible to have both views one in favor of prosecution and one in favor of accused, the later one should prevail. The prosecution could not prove by the prosecution beyond reasonable doubt. In a criminal case the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts. An accused enjoys the presumption of innocence. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt.
33. For the reasons outlined above, this court is of the considered opinion that the prosecution has failed to discharge the heavy burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused.
34. Consequently, accused Dinesh Kumar and Balbir Singh are acquitted in the present case for offence u/s 379/411/34 IPC.
FIR No.41/2007 13/14 State Vs. Dinesh Kumar etc.
Digitally
signed by
ISRA ISRA ZAIDI
Date:
ZAIDI 2025.06.02
17:25:23
+0800
File be consigned to record room after due compliance.
Announced in the open Court today.
This Judgment contains 15 pages and each page bears my signature.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.06.02 17:25:34 +0800 (Isra Zaidi) JMFC-04/NE/KKD/Delhi 02.06.2025 FIR No.41/2007 14/14 State Vs. Dinesh Kumar etc.