Delhi District Court
State vs Bharat Bhushan on 16 September, 2014
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs.Bharat Bhushan
FIR No.866/01
U/s : 380/34 IPC
P.S. : Malviya Nagar
Date of institution of case : 09.09.2003
Date on which case reserved for judgment : 16.09.2014
Date of judgment : 16.09.2014
JUDGMENT
1.FIR No. of the case : 866/01
2.Date of the Commission : 01.11.2001
of the offence
3.Name of the accused : Bharat Bhushan S/o Late. Sh. Khem
: Chand Khataria, R/o H. No. WZ -482,
: Masjid Wali Gali, Modipur Village, New
: Delhi.
4.Name of the complainant : Anoop jethwani,S/o Sh. G.S. Jethwani,
R/o D-83, Malviya Nagar, New Delhi.
5.Offence complained of : 380/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
FIR No. 866/01 State Vs Bharat Bhusan & Ors. Pages 1/9
BRIEF FACTS
1. The story of the prosecution is that on 01.11.2001 at 4.30pm at Shop No. AJ. Inc. at D-83, Malviya Nagar, New Delhi within the jurisdiction of PS Malviya, both accused Bharat Bhushan and Rajesh (since absconder) in furtherance of their common intention had committed theft of recharge coupons of Airtel from the aforesaid shop of the complainant Anup Jadwani and thereby they both committed offence punishable U/s 380/34 IPC.
2. On the basis of the said allegations and on the basis of the complaint of the complainant, an FIR bearing number 866/01, under section 380/411/34 IPC was lodged at Police Station Malviya Nagar.
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 09.09.2003.
4. On the basis of the charge-sheet, a charge for the offence punishable under section 380/34 IPC was framed against the accused Bharat Bhusan and Rajesh Chauhan (since absconder) and read out to the said accused to which they pleaded not guilty and claimed trial on 31.05.2005.
APPRECIATION OF EVIDENCE
5. To prove its case, prosecution has examined the following witnesses:
6. PW-1 SI K.P. Singh who is a formal witness was examined on 19.01.2010 and proved the FIR Ex. PW-1/A and endorsement on the basis of rukka Ex. PW-1/B (OSR).
7. This witness was not cross examined by Ld. Defence counsel for the accused persons despite opportunity given.
8. PW-2 Anoop Jethwani being the complainant was examined FIR No. 866/01 State Vs Bharat Bhusan & Ors. Pages 2/9 on 19.01.2010 and deposed that he was having a mobile shop at the ground floor of D-83, Malviya Nagar and in the month of November, 2001 at about 4.30pm he was present at the shop on counter and two boys came to his shop and asked for Nokia Mobile phone and several mobile phones were shown to them. He further deposed that one Nokia set was finalized by them for purchase. He further deposed that his credit card swap machine was not working properly nor he was an expert and therefore one of them asked him that he can swap the card and came inside the counter and while going out he took away the recharge coupon from his cash drawer. He further deposed that one of his employer Rajender noticed the same and told him about the theft that person ran away and while going out form the shop he was apprehended. He further deposed that several public persons gathered at the spot and recharge coupons were recovered from the person who was also beaten and the name of that person was disclosed as Bharat Bhusan. Later on, he also went to the PS where his statement was recorded which is Ex. PW-2/A and he came back from the PS at about 9.30pm. He further deposed that he can not identify the person apprehended by them in the shop as the matter was of 9 years back.
9. On resiling from his earlier statement, this witness was cross examined by Ld. APP for State wherein he admitted that the incident was of 01.11.01. He further deposed that he can not say if both the boys came in Maruti Zen Car DL 3CN 6358. He admitted that the deal was finalized for mobile of Nokia 8250 for Rs. 14,000/- He denied the suggestion that both the boys took away the recharge coupons from the counter one after another and one of the boys went to the above said car and another person went towards Rimpy Restaurant who was apprehended at the spot. He admitted that the coupons were worth of Rs. 300/- and car was seized vide FIR No. 866/01 State Vs Bharat Bhusan & Ors. Pages 3/9 memo Ex. PW/2/B and the coupons were seized Ex. PW 2/C, which bears his signature at point A. He further deposed that he can not say if the coupons were sealed in the pullanda with the seal of SKS. He admitted that seizure memo of 17 credit cards from the accused is Ex. PW 2/D, which bears his signature at point A. Accused was arrested and his personal search was conducted vide memo Ex. PW2/E and F, which bear his signature at point A. Another accused Rajesh Chauhan was arrested and his personal search was conducted on 13.12.01 which is PW2/G and H, both bear his signature at point A. He denied the suggestion that he was deliberately and purposefully deposing falsely and not identifying the accused as he had been won over by them. He further deposed that he could not give details and unable to identify the accused persons as matter pertains to the year 2001. He further deposed that he cannot identify the recharge coupons as all of them are same. He denied the suggestion that he was deliberately not identifying the recharge coupons despite being seized in his presence and having signed the seizure memo.
10. This witness was cross examined by Ld. Defence counsel for the accused persons wherein he stated that his statement was recorded in the PS and he alone went to the PS and remained there for about half an hour and he went to the PS in the month of December and thereafter, he signed the documents prepared by the IO and he signed the same without going through the same and he was not aware of the contents of the same. He admitted that he did not know any person namely Bharat Bhushan prior to the incident and this name was told to him by the police and that person was not the same who was present in the court. He denied the suggestion that all the documents were prepared in the PS or what was written in the papers he had not gone through the same at that time.
FIR No. 866/01 State Vs Bharat Bhusan & Ors. Pages 4/9
11. PW-3 Ct. Yashpal was examined on 02.01.2012 and deposed that on 01.11.2001 he had joined the investigation of the present case with IO/SI Sanjeev Sharma and all the memos bear his signatures. He further deposed that IO seized the car no. DL-3CN-6358 which is already Ex. PW2/B and the same bears his signature at the point B. The credit cards were also seized vide seizure memo already PW2/D and the same bears his signature at point B. The accused persons present in the court were also arrested and their personal search memo were also prepared which are already Ex. PW2/F, G, and H and the same bear his signature at point B. He further deposed that IO recorded his statement to this effect. He further identified the case property i.e. unsealed plastic box containing seven credits cards which are already Ex. P1 and P2.
12. This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that he had joined the investigation with the IO at the PS and they reached the spot at about 6/6/.15 pm. He further deposed that he left the spot at about 6.30-6.45 pm and came back at the spot after the registration of the FIR within an Hour and IO took about half an hour in his presence for doing the proceedings and IO had asked the public persons to join the investigation but they refused. He further deposed that he did not remember the time when they took the accused from the place of occurrence to PS by private vehicle i.e. Auto rickshaw and IO recorded the disclosure statements of the accused persons at the spot and it took around 10 minutes for recording the disclosure statements. The disclosure statement of accused Bharat Bhushan is Ex. PW3/A but the same does not bears his signature. The accused Rajesh Chauhan was arrested on 13.12.01 from Malviya Nagar Market. He denied the suggestion that accused Rajesh Chauhan surrendered himself voluntarily on 13.12.01 FIR No. 866/01 State Vs Bharat Bhusan & Ors. Pages 5/9 before the police station. He further denied the suggestion that all the documents were prepared at the PS and he had singed them at PS or that he had never visited the spot or that he had not joined the investigation or that he was deposing falsely. He further denied the suggestion that no recovery was effected in his presence from the accused Rajesh Chauhan and Bharat Bhushan. He further deposed that the accused Bharat Bhushan was arrested at Malviya Nagar Market on 01.11.2001 but he did not remember the exact time. He denied the suggestion that accused was not arrested in his presence that is why he did not remember the time. He denied the suggestion that he was deposing falsely at the instance of the IO.
13. PW-4 Mr. Arun Sehgal was examined on 13.08.2014 and deposed that he had brought his detail record about Vishal Wadhwa, the Manger as per record he is no more employee of the organization and permanent residential address is no more lying with the bank. His detailed report in this regard is Ex. PW4/A. He further can not identify the signature of Vishal Wadhwa as he had not worked with him.
14. This witness was not cross examined by Ld. Defence counsel for the accused despite opportunity given.
15. PW-5 SI Sanjeev Sharma being IO was examined on 13.08.2014 and deposed that on 01.11.2001 he was posted as SI at PS Maliviya Nagar and on that day at about 4.30 PM while he was present in DO room, one person Anup Jathwani reached at PS alongwith another person Bharat Bhusan present in the court. He further deposed that he had recorded complaint/statement of Anup Jathwani, the said complaint was already Ex. PW2/A bearing his attestation at point B. He further deposed that he handed over the rukka to DO for registration of case and he alongwith Ct. Yash Pal, complainant and accused Bharat Bushan proceeded FIR No. 866/01 State Vs Bharat Bhusan & Ors. Pages 6/9 towards place of occurrence i.e. D-83 Malviya Nagar. He further deposed that he had inspected the site and prepared the site plan at the instance of complainant the said site plan is Ex. As PW5/A bearing his signature at point A. He had seized the car bearing the registration no. DL. 3CN-6358 which is already Ex. PW2/B bearing his signature at point B and thereafter, he had seized two recharge coupons airtel and sealed the with the seal of SKS vide seizure memo already Ex. PW2/C bearing his signature at point B. He further deposed that he had interrogated the accused and arrested him in the present case and conducted his personal search vide arrest memo and personal search memo already Ex. PW2/E and PW2/F bearing his signature at point C respectively. He further deposed that he had also recorded disclosure statement of accused already Ex. PW3/A bearing his signature at point B and recorded statement of all witnesses and he came back to PS and case property as per seizure memo has been deposited to MHC(M). He further deposed that he had got conducted the medical examination of accused and on next day he had produced the accused before Hon'ble Court and on 13.12.2001 he had arrested accused Rajesh Chauhan and conducted his possible search vide arrest memo and personal search memo already Ex. PW2/G and PW2/H bearing his signature at point C respectively. He further deposed that he had seized credit cards which was founds in possession of accused Rajesh chuahan vide seizure memo already Ex. PW2/D bearing his signature at point C and prepared the charge sheet and produced before Hon'ble Court.
16. This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that he had received information about the incident through complainant himself and when complainant came in PS Malviya Nagar at about 4.30 PM, he reached at the spot at about 6.45 PM FIR No. 866/01 State Vs Bharat Bhusan & Ors. Pages 7/9 where he met with one/two public persons however he did not remember their name and particulars. He denied the suggestion that he had never visited at the spot on that day that is why he does not remember the name and particular. He admitted that apart from Anup Jathwani, no other public witness was cited in the list of witnesses. He further deposed that he had prepared the rukka in DO room and handed over to DO for registration of case and thereafter, he proceeded towards the spot. He further deposed that he had prepared the site plan Ex PW5/A at the instance of complainant however the same has not been signed by complainant. He denied the suggestion the no site plan has been prepared at the instance of complainant. He further deposed that there is no documentary proof regarding the ownership of the car bearing registration no. DL3CN6358. He further stated that he had telephonically intimated the owner of the car about seizure of the car however he did not remember the telephone no. He admitted that no time of arrest have been mentioned in the arrest memo of Bharat Bhusan. He denied the suggestion that accused was not arrested on the day of incident. He denied the suggest that he had carried out the investigation in proper way. He denied the suggestion that accused has been falsely implicated in the case.
17. As all the witnesses were examined by the prosecution, PE was ordered to be closed on 13.08.2014. The statement of accused Bharat Bhushan under section 313 r/w section 281 Cr.P.C was recorded on 16.09.2014 wherein he stated that he does not want to lead any defence evidence.
18. Final arguments were advanced by Ld. Counsel for accused person and Ld. APP for state. Heard.
FIR No. 866/01 State Vs Bharat Bhusan & Ors. Pages 8/9 Reasons for Decision
19. In the present matter, prosecution has examined five witnesses. PW-2 Anoop Jethwani being complainant was examined by the prosecution but he has not identified either of the accused persons and case property i.e. recharge coupons and hence, he has not supported the version of the prosecution and his testimony does not inspire any confidence. Further, there is no independent public witness in the present matter. Thus, there is nothing on record to bring home the guilt of the accused Bharat Bhushan u/s 380/34 IPC.
20. Hence, no grounds are found to hold the accused guilty of the offences as charged. The accused Bharat Bhushan is hereby acquitted of the offences u/s 380/34 IPC.
Previous bail bond in compliance of section 437-A Cr.P.C. to remain in force for a period of 6 month from today. File be consigned to record room to be reopened as and when any clue as regards accused rajesh Chauhan is found.
Announced in the Court (CHETNA SINGH) on 16.09.2014 MM-02(SD)/16.09.2014
Certified that this judgment contains 9 pages and each page bears my signatures.
(CHETNA SINGH) MM-02(SD)/16.09.2014 FIR No. 866/01 State Vs Bharat Bhusan & Ors. Pages 9/9