Delhi District Court
State vs . Rohtas on 2 November, 2022
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-022590-2022
Cr. Case 6367/2022
STATE Vs. ROHTAS
FIR No. 143/2001
P.S Kapashera
02.11.2022
JUDGMENT
Case No. : 6367/2022 Date of commission of offence : : 1/2.09.2001 Date of institution of the case : 17.02.2005 Name of the complainant : Rajbir Name of accused and address : Rohtas S/o Sh. Kedar Singh R/o Village Jasrana, PS & District Sonipat Offence complained of or proved : U/s 380/174A IPC Plea of the accused : Pleaded not guilty Final order : Acquitted Date reserved for judgment : 11.10.2022 Date of judgment : 02.11.2022 State Vs. Rohtas Page No.1 / 14 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused Rohtas, pursuant to charge sheet filed qua him under Sections 380 of Indian Penal Code, 1860 (hereinafter IPC for short), subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 143/2001.
2. It is the case of the prosecution that on the night of 01/ 02.09.2001, at unknown time, at the house of Rajbir, village Shahbad, Mohammadpur, New Delhi, accused Rohtas had committed theft of one gold necklace, two gold bangles, two gold tops and one gold ring, from the house of complainant Rajbir. Accordingly, an FIR was registered qua the accused upon complaint of the complainant and after investigation, the police filed the present charge sheet against the accused for commission of offence punishable u/s 380 IPC. At this juncture, it is also imperative to note that despite service of process upon him, accused Rohtas failed to appear before the Court and consequently, vide order dated 18.08.2006, he was declared proclaimed offender by the Ld. Predecessor Judge. Subsequently, the accused was arrested on 16.03.2022 and was released on bail by the Ld. Duty MM concerned vide order dated 16.03.2022. Thereafter, supplementary chargesheet was filed against the accused for offence under section 380/174A IPC and the matter proceeded on merits.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, charge State Vs. Rohtas Page No.2 / 14 for offence punishable u/s 380/174A IPC was framed qua the accused to which he pleaded not guilty and claimed trial. Further, the accused, vide his statement u/s 294 Cr.P.C had admitted the genuineness of the copy of FIR no. 143/2001, Ex A1.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined nine witnesses in total.
5. PW-1 was Sh. Jai Karan, who inter alia deposed that on 01.09.2001, he alongwith his cousin brother Rohtash had gone to the house of his brother-in-law Rajbir at Mohammadpur, Shahbad, to celebrate the birthday of the daughter of Rajbir. That, on the morning of 02.09.2001 when he woke up, he alongwith Rajbir dropped off Rohtash at the bus stand, to get him to board a bus to Ujjwa village. In the evening, the said PW got to know from Rajbir that some theft had occurred in the house of Rajbir. Thereafter, they searched, but could not find the stolen items and further accused Rohtash for the act of theft. Since, the said witness had resiled from his previous statement, he was cross examined by Ld. APP for the state, and was thereafter, cross examined by Ld. Counsel for the accused.
6. PW-2 was Rajbir Singh, who deposed that on 02.09.2001, his brother-in-law (Sadhu) Jai Karan along with Rohtas came to his house. That, in the night they celebrated his daughter's birthday, where Jai Karan and Rohtas were also present. That, at night they had put their jewellery i.e., one State Vs. Rohtas Page No.3 / 14 necklace, two gold bangles and gold ring on the when they woke up next morning, their jewellery found missing and the accused Rohtas was also not present. The said PW suspected that their jewellery was stolen by Rohtas. Thereafter, he alongwith his brother-in-law Jai Karan went in search of Rohtas but he was not found. Thereafter, he gave his complaint to the police which was exhibited as Ex. PW2/A.
7. PW-3 was Karamvir Singh, who deposed that he was the Sarpanch of village Jasrana in 2001. When the police had come to his village, he had told them that he did not know Rohtas who was the son of Kedar Singh as they had left the village about 45 years back. He was unaware of the whereabouts of the Rohtas or his family members.
8. PW-4 was Rajender, who deposed on similar lines as PW3 Karamvir Singh.
9. PW-5 was SI Shriram Meena, who deposed that in the year 2004, he had received the case file of this case for further investigation on 16.04.2004. He inspected the file and found that the accused was not arrested in this case. He visited village Jasrana, P.S Gohana, District Sonepat, of the accused but he was not found there. DD entry no. 14 regarding his visit to PS Sadar Gohana was exhibited as Ex. PW5/A, statements of Rampat Sharma and Karamveer Singh were exhibited as Ex. PW5/B and Ex. PW5/C, address verification form (parcha 12) was exhibited as Ex. PW5/D. He further deposed that he had filed the charge-sheet against the accused by keeping him in State Vs. Rohtas Page No.4 / 14 column no. 2. Thereafter, he moved an application for the issuance of NBW against the accused, which was exhibited as Ex. PW5/E. Thereafter, he moved an application for intiation of proceedings u/s 82/83 Cr.P.C against the accused, which was exhibited as Ex. PW5/F. Thereafter, on 18.08.2006, accused was declared P.O by the Ld. Court of Sh. Gautam Menon, the then Ld. MM vide order Mark PW5/1.
10. PW-6 was ASI Umed Singh, who had prepared the supplementary charge-sheet for the offence u/s 380/174A IPC qua the accused and had filed the same in the court.
11. PW-7 was ASI Chandarmani, who deposed that on 16.03.2022, he received DD no. 61A regarding apprehension of accused Rohtash by Crime Branch officials. Accused was produced by the crime branch officials before the Ld. Duty MM. That, he had moved an application for interrogation of accused before the Ld. MM and had formally arrested him after inquiry.
12. PW-8 was Inspector Rajnish Yadav, who deposed that on 03.09.2001, he was posted at PS Kapashera as SI. That, on that day, complainant Rajbir had come to the PS and gave his statement Ex. PW8/A. Thereafter, the said PW prepared the rukka and handed it over to DO for registration of FIR. DO registered the FIR and handed over the copy of FIR to him. Thereafter, complainant took him to the spot where he prepared the site plan at his instance. The site plan was exhibited as Ex. PW8/B. That, the accused was searched for but he could not traced. In the meanwhile, the said PW got transferred and the State Vs. Rohtas Page No.5 / 14 investigation was assigned to some other IO.
13. PW-9 was HC Ravinder, who deposed that on 16.03.2022, he got secret information that accused Rohtas who has been declared PO could be found at his native village. Thereafter, he alongwith ASI Inder Singh and other police officials went to village Jasrana, PS Guhana, Distt. Sonipat, where the accused was present at a room which was built in a field. That, the accused was apprehended and after inquiry, he was arrested. His arrest memo was exhibited as Ex. PW9/A, his personal search memo was exhibited as Ex. PW9/B, proceedings under Kallandra u/s 41.1(c) Cr.P.C were exhibited as Ex. PW9/C.
14. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
15. Statement of the accused u/s 281 Cr.P.C read with section 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 by complainant Rajvir Singh at the instance of his brother-in-law Jai Karan and further added that Jai Karan is his cousin brother, who had registered the present case falsely against him, in order to grab the property of the accused. Accused further opted to not lead evidence in his defence, hence, DE was closed.
State Vs. Rohtas Page No.6 / 14FINAL ARGUMENTS:
16. 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 380/174A IPC has been proved beyond doubt.
17. Per contra, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the complainant. Arguing further, Ld. Counsel has submitted that the complainant has inculpated the accused based on suspicion alone and has done so in order to grab the property of the accused. It is thus 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:
18. Arguments adduced by Ld. APP for State and Ld. Counsel for accused have been heard. The evidence and documents on record have been carefully perused.
19. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Rohtas has been indicted for the offence u/s 380 / 174 A IPC. First and State Vs. Rohtas Page No.7 / 14 foremost, this Court shall proceed to discuss the allegations levelled against the accused qua offence u/s 380 IPC, which provides for offence of theft committed in any building, tent or vessel which is used as human dwelling or for custody of property.
20. 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. Now, careful scrutiny of the evidence placed on record brings to light the fact that accused has been roped in for the offence of theft in the present matter merely on the basis of suspicion. The same is evident from the testimonies of PW1 and PW2, who are the prime witnesses on behalf of the prosecution in the case. Evidently, none of them were eyewitnesses to the incident of theft allegedly committed by the accused. PW1 deposed during his testimony that on the morning of 02.09.2001, when he woke up, he along with Rajbir, that is, PW2, dropped accused Rohtas at bus stand as he had to board a bus to Ujjawa village. It was only in the evening that the said PW was apprised by Rajbir about theft in his house. Not only this, he also deposed that they searched for the stolen items, but in vain, and had implicated accused Rohtas for the said offence. Having testified in court as such, the said witness also resiled from his previous statement, consequent to which, he was cross examined by Ld. APP for the State Vs. Rohtas Page No.8 / 14 state. However, nothing substantial surfaced during the cross- examination of the said witness by Ld. APP as he made no statement as would even remotely insinuate towards the commission of alleged offence by accused Rohtas. Not only this, when the said witness was cross examined by Ld. LAC for accused, he specified that when they had dropped accused Rohtas at the bus stop, he was not carrying any bag with him and was not also carrying any money for his journey. Thus, it is amply clear from such testimony of PW1 that accused Rohtas was arraigned for the offence of theft without any cogent proof of actual commission of the said offence by him. Admittedly, the accused was not carrying any bag the next morning when he had left the house of the complainant and it is not the case of the complainant/prosecution that the stolen items were recovered from possession of some third person, to whom accused Rohtas had handed over the stolen property after committing the act of theft. Rather, the stolen property in the present case was not recovered at all.
21. Furthermore, there is also discrepancy in the statement of PW2 Rajbir Singh as, on one hand during his examination-in-chief, he deposed that when they woke up the next morning after 02.09.2001, they discovered that their jewellery was missing and that accused Rohtas was also not present there. However, during his cross-examination, the said witness admitted that he along with Jai Karan had gone to drop off Rohtas at the bus stop, which fact was also likewise stated by PW1 during his testimony. PW2 then hastened to add that when he had returned home after dropping Rohtas at the bus stop, it State Vs. Rohtas Page No.9 / 14 came to his notice that the jewellery was missing. Thus, not only is there contradiction in these two versions of PW 2 himself, but the same is also not in consonance with the deposition of PW1 on this aspect. Additional incongruity in the version of PW1 and PW2 emerges from the fact that during his cross-examination, PW2 denied the suggestion that the accused was not carrying any bag along with him when they had gone to the bus stop to drop him, while on the same point, PW1 had contrarily deposed that at that time, accused Rohtas was not carrying any bag along with him. These inconsistencies in the version of the prime prosecution witnesses render their testimonies dubious, thus, giving rise to the suspicion that the accused has been falsely implicated in the present matter by the complainant.
22. In addition to the above, testimony of no other prosecution witness sheds light upon the alleged act of theft of jewellery by the accused. Moreover, no effort on part of the IO to trace any eye witness or to check for any CCTV camera at the spot, is apparent from record. Further lapse in investigation in the case is perceptible from the fact that no endeavour seems to have been made by the IO to collect chance prints from the spot and match the same with the finger prints of the present accused. In such circumstances, the prosecution cannot be said to have driven home the guilt of the accused for offence u/s 380 IPC beyond reasonable doubt and the fact that the complainant has falsely implicated the accused for the aforesaid offence, cannot be ruled out.
23. The aforementioned lacunae in the story of the State Vs. Rohtas Page No.10 / 14 prosecution render the version of the complainant / prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. Thus, this court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence u/s 380 IPC beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal for the said offence.
24. Additionally, the accused has also been indicted for offence u/s 174A IPC. At this juncture, it is imperative to iterate that Section 174A IPC imposes liability upon a person who fails to appear at the specified place and specified time required by a proclamation, inter-alia, published under Section 82(1) Cr.P.C. Thus, the actus reus required to be proved for this offence derives its basis from Section 82 Cr.P.C, as per which a proclamation may be issued against a person, who, the court has reason to believe, is absconding or concealing himself so that such warrant cannot be executed. In the present case, the accused has argued that the police officials had never searched for the accused in a proper manner and had got him declared a proclaimed offender routinely. As per record, the accused was declared a proclaimed offender vide order of Ld. Predecessor Judge, dated 18.08.2006. Now, it is the consistent version of PW3 and PW4 that when the police had come to the village Jasrana, Sonipat, Haryana for searching the accused, they had stated that accused Rohtas was not known to them as he had left the said village about 45 years ago. The said PWs also deposed State Vs. Rohtas Page No.11 / 14 that they were not aware of the whereabouts of the family members of the accused. Further, perusal of Ex. PW5/C, which is a statement of PW3 Karamveer Singh, recorded by the IO SI Sriram Meena during investigation in the case, shows that the said Karamveer Singh, who was the Sarpanch of the village concerned, had categorically stated to the IO that accused Rohtas had left village Jasrana, Sonipat, Haryana and shifted his place of residence to Rohtak. Despite such statement of the said witness, the IO appears to have made no efforts to trace accused Rohtas at his address in Rohtak or to enquire about his whereabouts in Rohtak from any family members of the accused or examine any other person who may be otherwise acquainted about the residence of accused in Rohtak. All the processes issued against the accused in the present matter were addressed at village 'Jasrana, PS Gohana, district Sonepat, Haryana' only, at which address as per record, the accused had ceased to reside since 45 years ago back then. In such a backdrop of facts, it would be too far-fetched to assume that the address of the accused was factually verified by the IO prior to issuance of NBWs or process under section 82 Cr.P.C. against the accused. In fact, PW5 admitted during his cross-examination that affixation of NBWs and notice was not done as the address of the accused was not verified. Clearly, the IO acted in a superficial manner while tracing the accused during investigation in the case and it would not be out of place to infer that the process u/s 82 Cr.P.C. was executed against accused Rohtas without his address having been verified by the IO.
25. The law is well settled that in a criminal trial the State Vs. Rohtas Page No.12 / 14 burden of proof, to prove all the ingredients of the offence charged against the accused, is on the prosecution and that the prosecution must prove its case beyond reasonable doubt. Mere silence of the accused cannot be treated as admission of guilt by him. Since, the accused had never even resided at the address at which process under section 82 Cr.P.C was executed against him, and despite the knowledge of the IO about the fact that the accused had shifted to Rohtak 45 years ago from time when enquiry was made in this regard, it cannot be said that the process u/s 82 Cr.P.C was executed against the accused with the conclusive belief in the fact that he was deliberately avoiding or concealing himself from execution of warrant against him and gives rise to a possibility that the same was executed in a perfunctory manner.
26. The actus reus required for Section 174A IPC, though attracting strict liability, assumes the presence of mental element of deliberate avoidance / concealment of a person from execution of process against him in light of section 82 Cr.P.C. In view of the aforesaid discussion, the actus reus for Section 174A IPC cannot be said to have been proved in the present case. Thus, this court is of the opinion that the prosecution has also failed to prove the offence under Section 174A IPC beyond reasonable doubt against the accused.
27. Accordingly, this court hereby accords the benefit of doubt to the accused for the offence u/s 380/174A IPC and holds the accused not guilty of commission of the said offence.
State Vs. Rohtas Page No.13 / 14Accused Rohtas is thus, acquitted of the offence u/s 380/174A IPC.
28. Copy of this judgment be given free of cost to the accused.
Announced in open court
on 02.11.2022 in presence of
accused and Ld. Counsel
for accused. APOORVA Digitally signed by
APOORVA RANA
RANA Date: 2022.11.02 18:37:27
+05'30'
(APOORVA RANA)
M.M-10/Dwarka Courts/02.11.2022
It is certified that this judgment contains 14 pages, all signed by the undersigned.
APOORVA Digitally signed by
APOORVA RANA
RANA Date: 2022.11.02 18:37:47
+05'30'
(APOORVA RANA)
M.M-10/Dwarka Courts/02.11.2022
State Vs. Rohtas Page No.14 / 14