Delhi District Court
State vs Dharmender on 3 June, 2014
Page No. -1- of 8
IN THE COURT OF SH. ANKIT SINGLA :
M.M.03(SOUTH DISTRICT), SAKET NEW DELHI
STATE Vs Dharmender
FIR NO. : 492/2000
P.S. : K.M. Pur
U.S. : 379 IPC r/w 39/44 IE Act.
J U D G M E N T
a. Sl. No. of the case and : 114/07 dt. 21.2.2007
date of its institution
b. Name of the complainant : SI Shivraj Singh
c. Date of commission of
offence : On 25.12.2000
Name of the accused :(1) Dharmender S/o Nahan singh
R/o D158/C Freedom Fighter
Colony, Neb sarai
(2) Aftab Alam S/o jameel Ahmed
R/o H.No D56 Batla house
Jamia Milia, Okhla(PO)
e. Offence complained of : U/s 379 IPC & 39/44 IE Act
f. Plea of accused : Pleaded not guilty
g. Date reserved for orders : 21.05.2014
h. Final order : Acquittal
i Date of such order : 03.06.2014
BRIEF STATEMENT OF FACTS FOR THE DECISION:
FIR No. 492/2000 St Vs. Dharmender & Anr.
Page No. -2- of 8
1. Vide this order, I shall dispose off present FIR No. 492/2000 which was registered on the complaint of Sh. SI Shivraj Singh Delhi police.
2. In brief the story of prosecution is that on receipt of DD no. 4A on 25.12.2000 SI Shivraj Singh reached on the spot and found accused Dharmendra along with co accused Aftab Alam (already declared PO) was found committing theft of electricity from main meter of DESU with help of direct wire and was using this electricity for welding purposes at between Block no. 2WE and 3WE Prem Nagar within the jurisdiction of PS Kotla Mubarakpur and thereby accused committed an offence punishable u/s. 379 IPC read with 39/44 I.E. Act and within my cognizance.
3 After completion of the investigation, the charge sheet was filed in the Court. Copies were supplied to accused and after completion of necessary formalities, charge u/s.379IPCr/w39/44I.E Act was framed against the accused on 19.11.2012 to which accused persons pleaded not guilty and claimed trial. Accused Aftab Alam did not appear in the court was declared PO on 13042012. Therefore, this judgment is w.r.t accused Dharmendra. 4 The prosecution to prove its case examined five (05) PWs.. Statement of accused was also recorded U/sec. 313 Cr.PC whereby accused persons denied the story of the prosecution. The relevant and material extract of FIR No. 492/2000 St Vs. Dharmender & Anr.
Page No. -3- of 8evidence produced by the prosecution is as mentioned in the following paragraphs.
5 PW1 Sh. J.K. Garg deposed that on 25.12.2000 he was posted as AE, Lodhi Road District Nizamuddin and on that day, an information was received from SI Shivraj Singh from PS K.M. Pur regarding a theft of electricity going on in WC Block, Prem Nagar. Thereafter, he alongwith Sh. M.P. Singh who was JE of that area went alongwith SI Shivraj Singh to the site where they found that the theft of electricity was going on from the feeder puller on the roadside in between block no. 2 & 3 of Prem Nagar. This witness further deposed that one person was using the welding set illegally for welding the jali. This witness asked the name of that person which was told as Altaf Alam and Aftab Alam was welding the jali whereas the other person named Dharmender was guiding him. Thereafter, photographs were taken to the site by a private photographer and the wires were removed from the feeder pillar. This witness goes on to depose that all the material which was captured from the site was handed over to SI Shivraj Singh. This witness had given sanction u/s 50 of IE Act which is Ex.PW1/A.
6. PW2 Sh. M.P. Singh deposed that on 25.12.2000 SI Shiv Raj Singh informed to J.K. Garg about the theft of electricity and subsequently he had FIR No. 492/2000 St Vs. Dharmender & Anr.
Page No. -4- of 8visited to the spot. This witness states that he was not the member of the raiding party.
7. PW3 SI Radhey Shyam was the DO who registered the present case FIR. Copy of rukka is Ex.PW2/A and this witness had endorsed on rukka which is Ex.PW2/B.
8. PW4 Ct. Jagbir Singh deposed that on 25.12.2000 at about 11.30 AM, this witness alongwith IO SI Shivraj reached the spot i.e. Infront of block 2WC & 3WC, Prem Nagar where they saw the accused Aftab and Dharmender Pachauri committing theft of electricity from LV Mains through electric cable. This witness deposed that accused Dharmender Pachauri was doing the work of welding at the spot and after seeing them, both the accused persons tried to run away from the spot but they apprehended them. Thereafter, IO recovered the case properties from the possession of accused persons at the spot. This witness went to bring a photographer and IO remained at the spot. In the meantime, Ct. Latoor Singh who was on patrolling duty also came to the spot. IO prepared rukka Ex.PW/2/B and handed over the same to this witness for registration of FIR. This witness got the FIR registered and came back to the spot and handed over the copy of FIR and original rukka to the IO. Thereafter, IO seized the case property vide seizure memo Ex.PW4/B. Accused persons FIR No. 492/2000 St Vs. Dharmender & Anr.
Page No. -5- of 8were arrested and their personal search were conducted vide memo Ex.PW4/C to F. IO recorded the disclosure statement of both the accused persons which are Ex.PW4/G. This witness correctly identified the accused and the case property.
9. PW5 Retd SI Shiv Raj Singh is the IO. This witness deposed that on 25.12.2000 at about 11.30 PM he alongwith Ct. Jagbir reached the spot where they saw the accused Aftab and Dharmender Pachauri committing theft of electricity from LV Mains in the residential park through electric cable and accused Dharmender Pachauri and Aftab were doing the work of welding of iron gates at the spot and after seeing them, both the accused persons tried to run away from the spot but they apprehended them. This witness recovered the case properties from the possession of accused persons at the spot. Thereafter, this witness sent Ct. Jagbir to bring a photographer and this witness remained at the spot. In the meantime, Ct. Latoor Singh who was on patrolling duty came to the spot. This witness prepared the rukka and got the FIR registered through Ct. Jagbir. This witness thereafter seized the case property vide seizure memo already Ex.PW4/B. Accused persons were arrested and their personal search were conducted vide memos Ex.PW4/C to F. This witness recorded the disclosure of both the accused persons. This witness also prepared site plan FIR No. 492/2000 St Vs. Dharmender & Anr.
Page No. -6- of 8which is Ex.PW5/A. This witness recorded statements of Ct. Jagbir and Ct. Latoor at the spot. Thereafter, this witness deposited the case property in the Malkhana. This witness correctly identified the accused and case property. 10 Arguments as advanced by counsel for the accused and Ld. APP were heard at length.
11 I have carefully gone through the record and heard the arguments advanced by Ld. APP for state as well as Ld. Counsel for the accused. 12 The case of prosecution is that on 25.12.2000 a call was received in PS regarding theft of electricity from DVB Main Meter and on receiving this SI/IO Shiv Raj Singh reached on the spot alongwith Ct. Jagbir and found the accused Dharmender Pachauri and coaccused Aftab who is PO welding the Jali with the help of feeder pillar. Thereafter, they apprehended both the accused persons and thereafter SI Shiv Raj prepared the rukka and handed over the same to Ct. Jagbir for registration of FIR. He got the FIR registered and came back at the spot and handed over the copy of FIR and original rukka to SI Shiv Raj. Since, it was holiday, no official from DVB was present but IO telephonically informed AE, DVB regarding the theft by the accused persons. Photographs were taken by private photographer. It is also stated that no public person was present at the spot, therefore, none of public persons were joined.
FIR No. 492/2000 St Vs. Dharmender & Anr.
Page No. -7- of 8Prosecution has examined five witnesses. PW1 Sh. J.K. Garg is the official of DVB who had given sanction to the IO. The version of this witness and police witnesses are altogether different. This witness deposed that he alongwith SI Shivraj went to the spot and found that the theft of electricity was going on. In letter whereby sanction u/s 50 was given also he had mentioned the same facts but other witnesses have deposed that since it was holiday, no official of DVB was present. This contradiction is major contradiction in the story of prosecution witnesses.
13. Further, it is deposed by police official that they did not joined public person as witness as no public persons were present at the spot. However, photographs which were filed by prosecution in the file shows that public persons were present on the spot. Furthermore, call was made by public person but he has also not been joined as witness of the prosecution. Further, the photographs which are showing the wires connected with feeder pillar was not proved as per law. These photographs were not exhibited in testimonies of any witnesses. Photographer who allegdly took these photographs was not cited as a witness by the IO nor he was called by prosecution during trial. Hence, these photographs can not be relied upon against the accused and can not be read against accused persons. Non joining of public witnesses and photographer raise doubt regarding the entire story of prosecution . As per story of prosecution, accused persons tried to run away from the spot but they were apprehended on the spot. However, in the photographs, accused persons are shown as welding and two police officials were standing in front of them.
FIR No. 492/2000 St Vs. Dharmender & Anr.
Page No. -8- of 8Now question arise if accused persons tried to ran away from the spot then how come photographs of accused persons welding the jalis was taken. Furthermore, original complainant i.e who made call to police has not been joined and the complainant is the IO himself in the present case which is against the principles of natural justice and is basic infirmity in the case of prosecution.
14. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused. Considering that there are material contradictions points and in view of the facts and circumstances of the present case as discussed above, accused Dharmender is acquitted of the offence for which he has been charged with.
15. File be consigned to record room with liberty to prosecution to revive its case as and when accused Aftab Alam is arrested or brought before the court.
Announced and dictated in (ANKIT SINGLA)
the open Court on 03.06.2014 MM03 South District
Saket Court complex, New Delhi
FIR No. 492/2000 St Vs. Dharmender & Anr.