Delhi District Court
State vs . Sikander Rai on 12 May, 2022
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN
MAGISTRATE-05, SHAHDARA, KARKARDOOMA COURTS, DELHI.
FIR No. 222/2014
PS. Jagat Puri
U/s 411 IPC
State Vs. Sikander Rai
JUDGMENT
A. SL. NO. OF THE CASE : 78629/2016
B. DATE OF INSTITUTION : 06.06.2014
C. DATE OF OFFENCE : 14.04.2014
D. NAME OF THE : Sh. Nitin Gupta
COMPLAINANT S/o Sh. Shiv Shankar Gupta
E. NAME OF THE ACCUSED : Sikander Rai S/o Sh. Meghu Raji
F. OFFENCE COMPLAINED OF : U/s 411 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 12.05.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Present accused is produced before the court to stand trial for the offence punishable u/s 411 IPC.
2. In brief, facts of the case as per the prosecution are that on 13.04.2014, on receiving the DD no. 37A PCR, IO/HC Arvind Kumar alongwith Ct. Nagesh reached the spot of incident i.e. H.No. 13A, Gyan Park, Ram Nagar Extension, Delhi, where they met with the complainant Sh. Nitin Gupta. The complainant reported theft in his house and stated that at about 4 PM he alongwith his family went to watch a movie and when they returned at about 08.15 PM and opened his main gate with his keys, he found that door of the inner room was unlocked and FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 1 of 15 the almirah kept in the room was also unlocked in which Rs. 15000/-, 7 pairs of gold tops, two gold chains, one gold ginni (coin), one diamond mangalsutra, a diamond heart shaped pendant set were missing.
3. It is further alleged that when the complainant went the room at the upper floor of his house, he found that Rs. 2,50,000/- in cash was missing from one almirah and one diamond pendant set, one gold pendant set, one gold chain, two pairs of gold bangles were missing from another almirah at the upper floor. Upon the said statement of the complainant, IO called the crime team at the spot, prepared the site plan and recorded the statement of witnesses. During investigation, complainant informed the IO that he has suspicion on the girl namely Sapna who is the daughter of his maid namely Asha. On 14.04.2014, complainant called the IO HC Arvind Kumar and stated that he got the address of his maid, upon which IO HC Arvind Kumar alongwith HC Kirpal, reached at the street of the address stated by the complainant where they met the complainant and took him to the house of the accused i.e. F-39, 2 nd Floor, Gali no. 5, West Chander Nagar, Delhi. There they met with the accused Sikander Rai and a girl, and the complainant identified the girl as Sapna i.e. the daughter of his maid. On interrogation, the said girl Sapna disclosed in the presence of complainant that on 13.04.2014, she had stolen the gold and diamond jewellery and cash Rs.2,65,000/- which she gave to her father Sikander Rai i.e. accused herein and kept one gold chain with herself. At the instance of the girl Sapna, the Gold chain was recovered vide seizure memo Ex. PW1/G and remaining jewellery was recovered from accused Sikander vide seizure memo Ex. PW-1/B. Thereafter mother of girl namely Sapna reached at the spot and informed that the girl is minor and IO called JWO Ajit Kumar who apprehended the girl vide apprehension Memo mark Y and recorded the version of the child. Thereafter, IO arrested the accused Sikander vide arrest memo Ex.PW-1/D and got one day police custody of the accused Sikander Rai. After completion of investigation, IO filed the chargesheet against the accused in the court for the offence punishable u/s 411/34 IPC.
FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 2 of 154. Accused appeared before the court on 20.06.2014 and a copy of charge sheet was supplied to him as per section 207 Cr.P.C. As from the perusal of documents filed alongwith the charge-sheet, the only offence made out against the accused was of Section 411 IPC, accused Sikander Rai was charged for the offence punishable u/s 411 IPC by the Ld. Predecessor of this court on 08.08.2014 to which accused pleaded not guilty and claimed trial.
PROSECUTION'S EVIDENCE:
5. In order to substantiate its case, the prosecution has examined following witnesses:
5.1 PW-1/ Nitin Gupta who deposed that on 13.04.2014 at about 04.00 PM, he alongwith his family had gone for watching movie at cross river mall after locking his house and no one remained at the house. He further deposed that about 08.00-08.30 PM, he alongwith his family returned to the house and he opened the lock of his door and entered the house and he found that the door of room and almirah were opened. He further deposed that 6- 7 gold tops, one mangalsutra, one heart-shaped pendant set of diamond, 4 gold bangles, one gold chain, one gold ginni (coin) and Rs. 2,50,000/ - Rs. 3,00,000/- were stolen from his house. He further deposed that he made a call at 100 number, police came at his house and police investigated the matter and also called finger print expert and tried to lift the finger prints but no finger prints were traced out. He further deposed that he gave the statement to the IO Ex. PW-1/A and on the next day he made call to the police and disclosed his suspicion upon his domestic servant. He further deposed that he did not know that name of the servant. Thereafter, he traced the address of his domestic servant and went there alongwith police. He further deposed that police searched the FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 3 of 15 house of his domestic servant and from the house of his servant some of his stolen articles were recovered. He deposed that one diamond set, mangalsutra, 7 pair tops, 4 gold bangles, one gold chain were recovered from the house of accused. He further deposed that police seized the articles vide seizure memo Ex. PW-
1/B. He deposed that he got released the said articles by obtaining orders from the court and he had executed superdarinama Ex. PW- 1/C. He further deposed that IO arrested the accused vide arrest memo Ex. PW-1/D, conducted the personal search vide personal search memo Ex. PW-1/E and recorded the disclosure statement of accused Ex. PW-1/F in his presence. He further deposed that he had shown the place of incident to the police and stolen articles were recovered from the house of accused on 14.04.2014. He further deposed that one gold chain was recovered from the house of accused at the instance of daughter of accused namely Sapna on 14.04.2014 and carbon copy of seizure memo of case property recovered from Sapna is Ex. PW-1/G. PW-1 during his testimony produced case property Ex. P-1 (Colly) i.e. four gold bangles, one gold chain, one mangalsutra, one gold chain with heart shaped pendant and 7 pairs of tops and gold ginni and identified the same as stolen from his house and recovered from the house of accused. During his testimony he was shown 14 photographs attached in the judicial file and the witness correctly identified the jewelry articles shown in the photographs and he deposed that these photographs Ex. P2 to Ex. P-15 are of the jewelery articles which were got released by him from the court. He further deposed that the name of his maid is Asha. PW-1 correctly identified the accused i.e. husband of his domestic servant present in court.
FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 4 of 15PW-1 was cross-examined at length by Ld. Counsel for the accused wherein inter alia he stated that the house no. 13A Gyan Park is owned by him. He stated that his house is about 50 sq. yards consist of 5 rooms on two and half floors. He stated that when he went to watch movie he locked the main gate of his house and the other five rooms were remained opened. He stated that keys of the main gate were with himself, his father and his mother, however, keys of her mother was missing. He stated that he have not made any complaint regarding missing of key of his mother. He stated that his almirah was locked when they went for movie and he have not given any bill receipt of articles mentioned in his testimony to the IO. He stated that he made the call at 100 number at about 08.15/08.30 PM and his statement was recorded by IO at about 09.00/09.15 PM at his residence. He stated that the crime team reached the spot at about 08.45 PM and left the spot at about 09.15 PM. He stated that the investigation team left the spot at about 10.15 PM and stated that he does not know the name of the maid who was working with them as a domestic servant. He further stated that the maid was working in his house for about last 10 months prior to the incident. He stated during his testimony that he accompanied the IO when he went to the house of their maid. He stated that the house of his domestic servant was situated at Chander Nagar near Sai Mandir. PW-1 further admitted that he could identify all the articles as he had seen the photographs of all the articles and IO had taken the photographs of the recovered properties from his phone in the presence of the complainant. PW- 1 during his testimony further stated that the husband of the maid was arrested on the next day of incident i.e. 14.04.2014 and stated that his signature was obtained by the police officials on 2-3 papers on 14.04.2014. He further stated that he went with the police officers to the house of accused but he cannot tell the date.
FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 5 of 155.2 PW-2 ASI Kirpal Singh deposed that on 14.04.2018, he was posted at PS Jagatpuri as head constable and on that day he alongwith IO/HC Arvind joined the investigation of present matter. He further deposed that he alongwith IO and complainant Mr. Gupta went to West Chander Nagar. He further deposed that when they reached at the spot, the child of the accused namely Sapna had disclosed that she had given stolen jewellery and cash to her father namely Sikander. He deposed that Sapna further disclosed that she had kept one gold chain with her and rest of the jewellery were handed over to her father. He further deposed that IO made inquiry from the accused Sikander and recorded the disclosure statement Ex. PW-1/F and accused Sikander had got recovered stolen jewellery articles i.e. gold ear tops, gold ginni, diamond set and gold mangalsutra, however, he stated that he cannot tell the complete jewellery articles stolen from their house. He further deposed that IO seized the recovered jewellery articles at the instance of accused Sikander vide seizure memo Ex. PW-1/B. He further deposed that IO prepared a pullanda and the said jewellery articles were kept in it and pullanda was sealed with the seal of "JP-06" and child Sapna had also got recovered the said chain kept by her in the plastic box in the kitchen and same was also seized by the IO vide seizure memo Ex. PW-1/G. He further deposed that he does not remember to whom seal after use was handed over. He deposed that Sikander was arrested vide arrest memo Ex. PW- 1/D. He deposed that IO recorded his statement. He correctly identified the accused present in court and photos of case property Ex. P-2 to Ex. P-15.
PW-2 was cross-examined at length by Ld. Counsel for the FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 6 of 15 accused wherein inter alia he stated that when he met with complainant and he do not remember whether complainant and the IO met him in the PS or at the spot. He stated that the house of accused was situated at second floor and it was comprising of two rooms and one kitchen. He stated that IO prepared documents i.e. disclosure statement of accused, seizure memos of recovery articles and statements of witnesses in his presence at the spot. He further stated that he do not remember the name of the witnesses, whose statement was recorded by the IO at the spot. He stated that he do not know whether anyone was residing at the ground floor and first floor of said premises where accused was residing at the second floor. He stated that when they reached at the spot, accused and her daughter Sapna were present there and stated that he do not remember whether any other person was also present there or not. He stated that IO informed regarding the arrest of the accused Sikander to his wife Asha who was present there. He stated that they remained at the spot for about 1 to 1.5 hours.
5.3 PW-3 ASI Vinod Kumar deposed that on 13.04.2014, he was posted at PS Jagatpuri as head constable and on that day his duty hours were from 4.00 PM to 12.00 midnight and on that day at about 10.00 PM, Ct. Nagesh produced before him a rukka sent by HC Arvind. He deposed that he lodged DD entry 41A in this regard and photocopy of the same is Ex. PW-3/A (OSR) is on record. He further deposed that he made endorsement on the rukka Ex. PW- 3/B. He deposed that the basis of rukka he got recorded FIR bearing no. 222/2014, PS Jagatpuri in the present matter and photocopy of the same is Ex. PW-3/C. He deposed that after registration of FIR, he handed over copy of FIR and original rukka to Ct. Nagesh to further handover the same to HC Arvind for FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 7 of 15 investigation.
PW-3 was not cross-examined by the Ld. Counsel for accused despite opportunity.
5.4 PW-4 ASI Arvind Kumar deposed that on 13.04.2014, he was posted at PS Jagat Puri as Head Constable and on that day he had received DD No. 37A, regarding house theft and he alongwith Ct. Nagesh reached at the spot i.e. 13A Gyan Park, Chander Nagar, Delhi and met with the complainant Nitin Gupta. He further deposed that he prepared the rukka Ex. PW-4/A and same was handed over to Ct. Nagesh for the registration of FIR from police station Jagatpuri. He further deposed that crime team was called thereafter on the spot and at the instance of the complainant, site plan Ex. PW4/B was prepared. He further deposed that the statement u/s 161 Cr PC of complainant Mark X was recorded and on next day i.e. 14.04.2014, the complainant called and apprised that he has got the address of his maid i.e. F- 39, Second Floor, Chander Nagar, Delhi and told him that he will meet him at the address of his maid. He further deposed that he alongwith HC Kripal Singh reached at the street of the address of the maid where complainant met and thereafter they reached at the said address where one girl and a man met. The girl's name was found to be Sapna and the man was Sikander Rai i.e. father of the girl. PW-4 further deposed that complainant told that the girl namely Sapna used to come with his maid at his residence i.e. 13A Gyan Park, Chander Nagar, Delhi. He further deposed that thereafter he got the said girl who admitted that she has stolen the gold and diamond jewellery and cash Rs.2,65,000/- which she gave to her father Sikander Rai and kept one gold chain with herself and at the instance of the girl Sapna the Gold chain was recovered vide FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 8 of 15 seizure memo Ex. PW1/G and remaining jewellery got recovered from accused Sikander vide seizure memo Ex. PW-1/B. He further deposed that he had arrested the accused Sikander Rai vide arrest memo Ex. PW1/D and his personal search was done vide personal search memo Ex. PW1/E. He deposed that he had recorded the disclosure statement of the accused Ex. PW1/F. He further deposed that he recorded the statement of witnesses u/s 161 Cr.P.C and supplementary statement of the complainant u/s 161 Cr.P.C Mark Y & Z. Accused present in the court and 14 photographs of the case property i.e. Ex. PW4/P1-Ex. PW4/P14 were correctly identified by the witness.
PW-4 was cross-examined at length by Ld. Counsel for the accused wherein inter alia he stated that he alongwith Ct. Nagesh went to the spot on their private motorcycle at about 9:00 PM, where complainant, father and other family members were present and on the spot, belongings of the house were scattered and on reaching and inspection of the spot, crime team was called. He stated that there were three members in the crime team and he did not record the statement of any of the members of the crime team. He further stated that Ct. Nagesh reached at the spot alongwith copy of FIR after 01-1.30 hours and stated that he remained at the spot for about 3 hours and they left the spot around 11:00 PM. He further stated that he alongwith the complainant went to the house of the accused at about 4:00 PM and stated that the accused alongwith his daughter met them in their house.
PW-4 further in his testimony stated that he cannot tell how many persons were present when they reached the house of accused and again said the wife of the accused came later on. He stated FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 9 of 15 that they remained on the spot for about 4-5 hours at the house of accused and the case property i.e. gold chain was recovered from a tiffin box which was lying in the Almirah at the instance of CCL Sapna and the remaining case property i.e. 7 pairs of gold tops, 1 gold ginnie, 4 sets of gold bangles (8 bangles) and one diamond pendent were recovered in iron box which was lying in the Barandah at the instance of accused Sikander Rai. He further stated that he do not remember when the case property were recovered at the instance of accused persons and how many persons were present there. He stated that he has not written the fact while filing the charge-sheet that the case property was recovered on the instance of accused persons from the box which were lying in a almirah and one box which was lying in the barandah, as the fact has been narrated in seizure memos. He stated that he called the public witness to join the investigation but no one turned up to join the investigation.
6. After completion of prosecution evidence, statement of accused Sikander Rai u/s 313 Cr.P.C. was recorded on 10.05.2022, wherein accused stated that he has been falsely implicated in the present case by the police. He further denied all the allegations levelled by the prosecution upon him. Accused further chose not to lead any defense evidence and the final arguments were heard.
ARGUMENTS ON BEHALF OF THE PROSECUTION AND DEFENCE:
7. I have heard the Ld. APP for the State and the Ld. Counsel for the accused and perused the case file carefully. It has been argued on behalf of the accused that daughter of the accused namely Sapna has been acquitted by the Ld. Juvenile Justice Board-II vide judgment dated 20.10.2014 and accordingly th accused deserves to be acquitted. It was further argued that the accused has been falsely implicated in the present case and no recovery has been made from FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 10 of 15 the accused person. It was further argued by the defence counsel that the accused has no previous involvement and there is not enough evidence against the accused in the present case for his conviction under Section 411 IPC. It was further argued that there was no public witness at the time of recovery alleged by the prosecution and accordingly, the prosecution story cannot be trusted completely.
8. On the other hand, it was argued by the Ld. APP for the prosecution that prosecution has established the guilt of the accused beyond reasonable doubt especially through the evidence of the complainant/PW-1, PW-2/ASI Kirpal and PW-4/IO ASI Arvind Kumar. He has further argued that the prosecution has been able to establish that the accused was found in possession of the stolen property i.e. 7 pairs of tops, one gold chain, one gold ginnie (coin), one diamond mangalsutra, one diamond pendant set, 4 gold bangles which were dishonestly retained by the accused despite knowing the same to be stolen property.
FINDINGS WITH REASONS:
9. The entire case of prosecution in the present FIR is that the accused has dishonestly retained the stolen jewellery which got stolen from the house of the complainant on 13.04.2014. It is the case of the prosecution that on 14.04.2014, the stolen case property was recovered by the police in the presence of complainant from the house of the accused, who happens to be the husband of the complainant's maid. It is further the allegation of the prosecution that some part of the stolen property was also recovered from the accused's daughter namely Sapna who was a CCL i.e. child in conflict with law on the date of the incident.
10. The entire case of the prosecution is based on the alleged recovery from FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 11 of 15 the accused which took place on 14.04.2014 of the jewellery articles as per seizure memo Ex. PW-1/B. To bring home the charge of Section 411 IPC, it is essential for the prosecution to prove retention of the stolen property on the part of the accused and recovery of the same from the accused person. It is further essential on the part of prosecution to bring on record clinching evidence which proves the ingredients of Section 411 IPC beyond doubt. It is pertinent to reiterate that in such cases the entire prosecution of the accused is based on the alleged recovery of the stolen articles, therefore, it becomes absolutely essential for the court to examine the circumstances under which the recovery was made from the accused person. Any suspicion or doubt over the alleged recovery of stolen article/goods from the accused can prove fatal to the prosecution's case.
11. At this juncture, it is relevant to rely upon the observations of the Hon'ble Supreme Court of India in "Bijender @ Mander vs. State of Haryana" (Criminal Appeal No. 2438/2010 decided on 08.11.2021) whereby inter-alia it was observed that :-
'15. The short question that falls for our consideration thus is whether the conviction of the appellant on the strength of the purported disclosure statement (Ex. PD) and the recovery memo (EX PD/2), in the absence of any corroborative evidence, can sustain?
16. We have imported ourselves with abounding pronouncements of this court on this point. It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material.
However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubts. We may hasten to add that circumstance such as (I) the period of interval between the malfeasance and the disclosure; (ii) commonality of the recovered object and its availability in the market; (iii) nature of the object and its relevance to the crime; (iv) ease of transferability of the object; (v) the testimony and trustworthiness of the attesting witness before the Court and / or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. (See: Tulsiram Kanu vs. the State; Pancho vs. State of Haryana; State of Rajasthan vs. Talevar & Anr. and Bharama FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 12 of 15 Parasram Kudhachkar vs. State of Karnataka).
17. Incontrovertibly, where the prosecution falls to inspire confidence in the manner and / or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. Its nearly three centuries old cardinal principle of criminal jurisprudence that "it is better that ten guilty persons escape, than that one innocent suffer". The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that "the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent".
12. It was inter-alia held in "Anoop Joshi vs. State" 1992 (2) CC Cases 314 (HC) that sincere efforts shall always be made by the police to join the independent witnesses. It has further in held in series of cases that failure of joining of independent witnesses at the time of recovery of stolen article shall cast a shadow of doubt on the prosecution version. In the facts of the present case, since the recovery has been effected from the house of the accused in the presence of the complainant, it is difficult to believe that there were no public persons available during the alleged recovery.
13. Furthermore, It is essential to note that the police had in fact planned a raid at the house of the accused alongwith the complainant on the basis of the suspicion of the complainant and yet the police could not find even a single independent public witness to join the said planned proceedings of investigation. It is further essential to note in the present case that no test identification parade of the recovered stolen goods was carried out by the police which could have strengthened the case of the prosecution to prove that the recovered articles were in fact stolen from the house of the complainant. From the testimony of PW-1 recorded in the court, it has become clear on record that the IO of the case had taken the photographs of the articles at the time of the recovery, which should not have been done and in the interest of justice, the IO ought to have got conducted the judicial identification of the recovered articles or ought to have joined FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 13 of 15 independent public persons to witness the recovery of stolen goods at the behest of the accused. It is further apparent that complainant had admitted that he could not identify all the articles previously at the time of seizure. It is further revealed from his cross-examination that the articles mentioned in the examination in chief of PW-1/complainant were in fact identified by complainant's mother and his wife, who have not even been roped as witnesses in the present case.
14. It is not even the case of the prosecution that no public persons were available at the spot from where the alleged recovery has been made. PW-2/ASI Kirpal Singh has mentioned during his testimony that they remained at the spot i.e. the house of the accused for about 01-1.5 hours, whereas, PW-4/IO has mentioned that they remained at the house of the accused for about 04-05 hours. Further, it is also pertinent to note that during the cross-examination by Ld. Counsel for defence, IO/PW-4 stated that recovery was made from the accused of the jewellery articles which were lying in an iron box in the barrandah of the house of the accused whereas, the prosecution has not mentioned the said essential fact anywhere else on the record which creates suspicion over the manner and mode in which the alleged recovery was carried out by the investigative agency. It is essential to note here that the circumstances under which the alleged recovery has been made from the accused create a shadow of doubt over the version presented by the prosecution.
15. Police officials conducting investigation of an offence can ask any public person to join the investigation and upon refusal by the said person, the official concerned can even taken action under the relevant provision of the law. The failure to do so on the part of the investigating officer can be fatal to the prosecution in such cases where the entire case is based upon recovery of stolen articles. It was incumbent upon the investigating officer to at least show efforts on his part for joining of independent public witness during the alleged recovery, however, in the present case since there are no efforts on the part of the FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 14 of 15 investigating agency and therefore the accused is entitled to benefit from the same. It is further relevant to point out here that the seizure memo Ex. PW1/B does not even mention the time or exact place from where the alleged recovery was made at the instance of the accused person. No attempt having been made for joining of public/ independent person is a circumstance which creates doubt on the recovery of the stolen jewellery articles from the instance of the accused person.
16. Therefore, in view of the above discussion this court is of the considered opinion that the accused is entitled to benefit of the doubt as the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. From the facts of the present case, it cannot be said that the alleged recovery from the accused in the present case is unimpeachable and matches the standard of proof required for conviction in such like cases.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date:
2022.05.12
17:53:15 -0300
ANNOUNCED IN OPEN COURT (Bharat Aggarwal)
Today i.e. 12.05.2022 MM-05/ SHD, Karkardooma
Courts/Delhi
Present judgement consists of 15 pages and each page bears my initials.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.05.12
17:53:29 -0300
(Bharat Aggarwal)
MM-05/ SHD, Karkardooma
Courts/Delhi/12.05.2022
FIR no. 222/14 PS Jagatpuri State vs Sikander Rai Page 15 of 15