Delhi District Court
State vs . Nitesh Kumar & Ors. on 11 April, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. NITESH KUMAR & ORS.
FIR No. 400/10
U/s : 380/457/411/34 IPC
P.S. : Malviya Nagar
Date of Institution : 15.10.2011
Date on which case reserved for Judgment : 07.04.2018
Date of judgment : 11.04.2018
JUDGMENT
1.FIR No. of the case : 400/10
2.Date of the Commission : 28.09.2010 to 30.09.2013
of the offence
3.Name of the accused : Siddharth Singh,
: Sh. Rajender Kumar,
: J30B, Sheikh Sarai, PhaseII,
: New Delhi.
: Rahul Dogra (PO)
: Nitesh (discharged vide order
: dated 10.01.2013).
4.Name of the complainant : Sh. Vineet Thakur,
: S/o Sh. Ranbir Singh,
: R/o H. No. K12G,
: Sheikh Sarai, PhaseII,
: New Delhi.
5.Offence complained of : U/s 380/457/411/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted for the offence U/s 380/34 IPC
: and convicted for the offence u/s 411 IPC
FIR No. 400/10 State Vs. Nitesh Kumar & Ors. 1/7
BRIEF FACTS:
1. The present judgment is directed against the accused Siddharth Singh as the coaccused Rahul Dogra is already proclaimed offender while accused Nitesh was discharged vide the order dated 10.01.2013.
2. Briefly stated the case of the prosecution is that on 28.09.2010 to 30.09.2013 at unknown time at house no. K12G, Sheikh Sarai, PhaseII, New Delhi within the jurisdiction of PS Malviya Nagar accused Siddharth Singh alongwith coaccused Rahul Dogra (since PO) in furtherance of their common intention committed theft of articles as mentioned in the complaint of the complainant Vineet Thakur without his consent and one laptop make HCL was recovered from the possession of accused Siddharth Singh which he retained knowing or having reasons to believe the same to be stolen and thereby accused committed the offences punishable under sections 380/411/34 IPC.
3. FIR No. 400/10 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
4. After completion of investigation charge sheet under sections 380/457/411/34 IPC was filed before the court on 15.10.2011.
5. On the basis of prima facie material available on the record charge for the offences punishable under section 380/411/34 IPC was framed against the accused Siddharth Singh to which the accused pleaded not guilty and claimed trial on 27.09.2013.
THE TRIAL PROCEEDINGS:
6. In order to establish its case, the prosecution has examined eight witnesses.
7. PW1 was the complainant Sh. Vineet Thakur. He exhibited his FIR No. 400/10 State Vs. Nitesh Kumar & Ors. 2/7 statement as Ex.PW1/A, superdarinama as Ex. PW1/B and case property i.e. one laptop of HCL, four gold bangles, one pair of ear tops and one gold ring as Ex. P1 (colly).
8. PW2 was the MHC(M) HC Netrapal Singh.
9. PW3 was Ct. Shobir. He exhibited the arrest memos of both the accused persons as Ex. PW3/A and Ex. PW3/B, disclosure statements of both the accused persons as Ex. PW3/C and Ex. PW3/D, seizure memo of laptop as Ex. PW3/E, pointing out memos as Ex. PW3/F and Ex. PW3/G.
10. PW4 was the then Assistant Branch Manager of Muthoot Finance Sh. George Cherian who deposed that accused Rahul Dogra (PO) obtained loan on some jewellery from his branch. He exhibited the seizure memo of jewellery as Ex. PW4/A, original loan documents as Ex. PW4/B and ODG Gold overdraft as Ex. PW4/C.
11. PW5 was HC Sanej Kumar.
12. PW6 was the Duty Officer (DO) Ct. Shishu Pal who received a rukka and got the FIR registered.
13. PW7 was the first Investigating Officer (IO) of the case SI Shri Ram. He exhibited the rukka as Ex. PW7/A and site plan as Ex. PW7/B
14. PW8 was the second Investigating Officer (IO) of the case SI Amit Chaudhary. He exhibited the disclosure statements of accused persons Nitesh and Siddharth in FIR No. 325/10, PS Malviya Nagar as Ex. PW8/A and Ex. PW8/B.
15. Accused admitted the genuineness of TIP proceedings of case property and the factum of registration of FIR which were exhibited as Ex. X1 and Ex. X2 on 16.10.2017 and 04.10.2016 respectively.
16. Prosecution evidence was closed on 15.02.2018. After conclusion of prosecution evidence, the Statement of Accused (SA) under section 313 r/w section FIR No. 400/10 State Vs. Nitesh Kumar & Ors. 3/7 281 Cr.P.C was recorded on 27.02.2018. Accused did not seek to lead defence evidence.
FINAL ARGUMENTS:
17. Final arguments were thereafter advanced by Ld. APP for the State and Ld. counsel for the accused.
REASONS FOR DECISION:
18. Qua the offence U/s 380 IPC, the prosecution has not produced any cogent evidence to link the accused Siddharth with the same. PW1 Sh. Vineet Thakur the complainant deposed during trial that on 29.09.2010 he had gone to Faridabad to meet his father and stayed there over night and the next day when he came back home he found his main door was locked and when he entered the room he saw that the almirah was open. PW1 Sh. Vineet Thakur further deposed that he checked the almirah and found his articles i.e. four gold bangles, two gold ear rings, another gold ring and a laptop of HCL were missing and then he called the police. The complainant/PW1 proved his complaint to the police as Ex. PW1/A and identified the stolen articles i.e. the case property comprising laptop make HCL, four gold bangles, one pair of ear rings and one golden colour ring which were exhibited as Ex. P1 (colly). The identity of the case property is also corroborated by the TIP of case property proceedings admitted by accused as Ex. X2.
19. Through the unrebutted testimony of the complainant/PW1 and the FIR Ex. X1 the factum of the incident of theft of the articles having occurred from the house of the complainant/PW1 stands proved. However, neither from the testimony of PW1/complainant who is admittedly not an eye witness of the incident of theft nor from the testimonies of any other prosecution witnesses is it proved that the accused Siddharth was one of the offenders who committed the offence of theft.
FIR No. 400/10 State Vs. Nitesh Kumar & Ors. 4/7 There is no eye witness of the offence of theft cited and examined by the prosecution. As per the prosecution's version the recovery of the stolen articles took place on 25.10.2010 i.e. after almost a month from the date of theft and it cannot be said that the stolen articles were recovered so soon after the theft so as to attract the presumption under illustration (a) of Section 114 Evidence Act of him being the thief. The charge u/s 380/34 IPC thus fails against the accused Siddharth.
20. The testimonies of PW6 Ct. Shishupal and PW4 Sh. George Cherian are not relevant qua accused Siddharth. The testimony of PW6 pertains to the spot of theft i.e. house of the complainant where he went alongwith the IO and deposed about seeing the lock being broken and as discussed above, there is no eye witness to prove the presence of the accused Siddharth at the spot nor is the illustration (a) to Section 114 Evidence Act attracted. So, even if there is some variation in the version of PW6 Ct. Shishupal regarding the lock being broken and kept inside the house vis a vis the complainant's testimony of the door being locked, it is minor and not even relevant qua the accused Siddharth. The testimony of PW4 Sh. George Cherian pertains really to the seizure of the original loan documents which were admittedly in the name of the accused Rahul Dogra (who is an absconder) and therefore his testimony to the effect that he could not identify the person who came with the police official to the bank is not of such material consequence as to render the case against the accused Siddharth, of recovery of the laptop, as nugatory.
21. In so far as the offence u/s 411 IPC is concerned, the witnesses to the recovery proceedings are PW3 Ct. Shobir and the IO/PW8 SI Amit Chaudhary, both of whom have deposed about the recovery of the laptop being effected from the accused Siddharth. It is true that there is no public witness cited qua the recovery proceedings but there is no rule of evidence to the effect that the testimonies of the police witnesses are to be given any less weightage than that of public witnesses.
FIR No. 400/10 State Vs. Nitesh Kumar & Ors. 5/7 The testimonies of PW3 Ct. Shobir and PW8 SI Amit Chaudhary pertaining to the recovery of the laptop from accused Siddharth are trustworthy and inspire confidence. In fact, the testimony of PW3 Ct. Shobir has gone unrebutted as the accused chose not to cross examine him. Even from the cross examination of PW8 SI Amit Chaudhary nothing favourable to the defence of the accused Siddharth (qua the offence u/s 411 IPC) could be elicited.
22. Ld. defence counsel argued that as per the testimony of PW8, the accused had initially been apprehended in case FIR No. 325/10, PS Malviya Nagar and he had thereafter disclosed about commission of offence in the present case however in case FIR No. 325/10 the accused had already been discharged. Merely because the accused was discharged in the case in which he was initially apprehended it does not automatically lead to a presumption that he is innocent in the present case. PW8 SI Amit Chaudhary clearly deposed about the supplementary disclosure statement Ex. PW3/C recorded of the accused on 25.10.2010 in pursuance to which he alongwith Ct. Shobir and accused went to the house of the accused at J30B, Sheikh Sarai, PhaseII where the accused took out one laptop make HCL from inside the bed/diwan of the room of the ground floor.
23. PW8 SI Amit Chaudhary denied the suggestion that he never visited the house of the accused Siddharth or that he never visited his house with the police officials. The supplementary disclosure statement of the accused Siddharth is Ex. PW3/C but as per Section 27 Indian Evidence Act only the factum of knowledge of the accused regarding the whereabouts of the stolen laptop contained in the disclosure statement is admissible and nothing else.
24. The factum of knowledge of the accused regarding the whereabouts of the stolen laptop coupled with the consequent recovery of the laptop in question from the house of the accused Siddharth at his instance clinch the case against the FIR No. 400/10 State Vs. Nitesh Kumar & Ors. 6/7 accused Siddharth. The accused raised no real defence in SA and stated that he was falsely implicated in the present case and he was merely called by the police and went to the police station upon their asking where he was wrongly arrested and he did not commit the offences alleged. The accused however could not bring out any motive throughout the trial proceedings for his alleged false implication by the police officials. The accused neither put any suggestion regarding any enmity or grudge borne by the police officials against him nor led any evidence in defence to establish false implication by the police officials.
25. The prosecution has proved beyond reasonable doubt its case against the accused Siddharth U/s 411 IPC of recovery of stolen article i.e. laptop belonging to the complainant which the accused retained knowing or having reasons to believe the same to be stolen. The accused Siddharth is thus convicted for the offence u/s 411 IPC. However, in view of the above discussion, he is acquitted for the offence u/s 380/34 IPC.
26. Be listed for arguments on sentence on 17.04.2018.
Announced in the Court (ANJANI MAHAJAN) on 11.04.2018 MM02(SD)/11.04.2018
Certified that this judgment contains 7 pages and each page bears my signatures.
(ANJANI MAHAJAN)
MM02(SD)/11.04.2018
FIR No. 400/10 State Vs. Nitesh Kumar & Ors. 7/7