Delhi District Court
State vs . Vivek @ Gandhi on 7 October, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE-03, NORTH WEST, ROHINI
COURTS, DELHI
Cr. Case No: 11055/2021
FIR No. : 664/2021
P.S. : Raj Park
State Vs. Vivek @ Gandhi
U/s. 380/457/411 IPC
State
v.
Vivek @ Gandhi
S/o Sh. Suresh
R/o F-7/W-49, Jhuggi no. 133, Sultanpuri,
Raj Park, Outer District Delhi
Date of institution of case : 17.12.2021
Date of reserving the judgment : 26.09.2022
Date of pronouncement of judgment : 07.10.2022
JUDGMENT
1. S. No. of the Case: 11055/2021 2. Date of Commission of Offence: 09.10.2021 3. Date of institution of the case: 17.12.2021 4. Name of the complainant: Sh. Neeraj 5. Name of the accused: Vivek @ Gandhi 6. Offence complained or proved: 380/457/411 IPC 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 07.10.2022 FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 1 of 13 Digitally signed by MANSI MANSI MALIK MALIK Date: 2022.10.07 17:07:13 +0530 BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly, the case of prosecution is that the accused Vivek @ Gandhi has been sent to face trial with the allegations that on 09.10.2021 at about 02:30 AM at F-7/W48/49, Jhuggi no. 142, Sultanpuri, Delhi, within the jurisdiction of PS Raj park, he committed lurking house trespass by night by entering into the house of the complainant Neeraj and committed the theft of mobile phone OPPO and Rs. 6,500/- belonging to the complainant or in alternate he was found in possession of the aforesaid stolen mobile phone make OPPO belonging to the complainant. Investigation was carried out. Upon completion of the investigation the instant charge sheet for the offence punishable under section 380/457 IPC and 411 IPC was filed by the investigating officer against the accused. The accused was then summoned by the Ld. PO at the time.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and a charge u/s 380/457/411 IPC was framed against the accused to which he pleaded not guilty and claimed trial. The matter was listed for prosecution evidence.
3. The prosecution examined the complainant Neeraj as PW-1. PW-1 Neeraj is the complainant and eye witness to the incident and has deposed that on 09.10.2021, he was sleeping at his house no. F- 7/W49 Jhuggi No. 142, Sultanpuri, Delhi and at abut 2.30 am, he heard some noise and suddenly woke up and found one person was standing besides his bed/palang and thereafter, the aforesaid person ran away from there. PW-1 further deposed that he did not remember anything regarding the present case and stated that he can not identify the accused as it was late night and had nothing to depose against the accused. Therefore, he was cross-examined by FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 2 of 13 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.07 17:07:20 +0530 Ld. APP on the point of identity of accused but even after his cross- examination by Ld. APP, he failed to identify the accused. The witness was also cross-examined by the Ld. LAC for the accused. The complainant, therefore, failed to depose as per the prosecution version.
4. The prosecution examined Ms. Chaaya as PW-2. PW-2 deposed that on 09.10.2021, she was sleeping in her jhuggi and heard noise of her neighbour that theft occurred in the jhuggi and she also checked her own jhuggi and found that one bag containing Rs. 8,000/- was stolen. PW-2 further deposed that she did not know anything further about the present case. Therefore, she was cross- examined by Ld. APP on the point of identity of accused but even after her cross-examination by Ld. APP, she failed to identify the accused. he witness was also cross-examined by the Ld. LAC for the accused. PW-2, therefore, also failed to depose as per the prosecution version.
5. The prosecution examined Ct. Mayank as PW-3. PW-3 deposed that on 09.10.2021, he was posted at PS Raj Park as constable and on that day he was on emergency duty along with HC Mukesh and HC Mukesh received DD no. 10A regarding apprehending of the accused and thereafter, he along with HC Mukesh reached at F 7/W49 Jhuggi no. 142 Sultanpuri, Delhi and met complainant Neeraj who handed over custody of accused Vivek @ Gandhi to the IO along with recovered OPPO mobile phone. PW3 further deposed that IO HC Mukesh recorded the statement of complainant Neeraj and prepared rukka and got the present case registered through him. PW3 further deposed that IO prepared the site plan on instance of the complainant Ex.PW1/X1 and seized the FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 3 of 13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.07 17:07:26 +0530 aforesaid mobile phone vide seizure memo Ex.PW1/X2. PW3 further deposed that after getting the case registered, he returned back to the spot and handed over the copy of FIR and original Rukka to the IO and IO arrested the accused vide arrest and personal search memo Ex. PW1/X3 and Ex.PW1/X4 and IO also recorded the disclosure statement of the accused and thereafter, accused was brought to the PS and IO recorded his statement in this regard. Accused was identified by the witness. PW3 was duly cross examined by the Ld. LAC.
6. The prosecution examined HC Mukesh as PW4. PW4 deposed that on 09.10.2021, he was posted at PS Raj Park as Head Constable and he was on emergency duty along with Ct. Mayank and on that day he received DD no. 10A Ex. PW4/A regarding apprehending of the accused and he along with Ct. Mayank reached at F7/W49 Jhuggi no. 142 Sultanpuri, Delhi and met complainant Neeraj who handed over custody of accused Vivek @ Gandhi to the him along with recovered OPPO mobile phone. PW4 further deposed that he recorded the statement of complainant Neeraj Ex. Pw1/A and prepared rukka Ex. PW4/B and got the present case registered through Ct. Mayank. PW4 further deposed that he prepared the site plan Ex.PW1/X1 on instance of the complainant and seized the aforesaid mobile phone vide seizure memo Ex.PW1/X2 and after getting the case registered, Ct. Mayank returned back to the spot and handed over the copy of FIR and original Rukka to the him. PW4 further deposed that he arrested the accused vide arrest and personal search memo Ex. PW1/X3 and Ex.PW1/X4 and he also recorded the disclosure statement Ex.PW4/C of the accused. PW4 further deposed that accused was FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 4 of 13 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.07 17:07:38 +0530 brought to the PS and case property was deposited in the malkhana and medical examination of the accused was got conducted and accused was produced before concerned court from where accused was sent to JC and he recorded statement of witnesses in this regard. PW4 further deposed that on 26.10.2021, he was transferred from PS Raj Park to Hon'ble Supreme Court of India Security and he had handed over the present case file to the MHCR. Witness has correctly identified the accused. PW4 is duly cross examined by the Ld. LAC.
7. The prosecution examined ASI Ashok Kumar as PW5. PW5 deposed that on 03.11.2021 he was posted at PS Raj Park as ASI and on that day the further investigation of the present case was assigned to him. PW5 deposed that after completion of the investigation he prepared the chargesheet and filed the same before the hon'ble court. PW5 correctly identified the accused. PW5 was duly cross examined by Ld. LAC.
8. The accused also admitted the genuineness of FIR no. 664/21 PS Raj Park i.e Ex. P-1, Certificate u/s 65-B Indian Evidence Act regarding the aforesaid FIR i.e. P-2, GD No. 0010A dated 09.10.2021 which is Ex. PW-4/A and entries in Register no. 19 regarding the present case which is Ex. P-3 without admitting the contents of the same. In view of the above, witnesses mentioned at serial no. 2 and 3 in the list of prosection witneesses were dropped. Prosecution evidence was thereafter closed on 06.09.2022.
9. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 5 of 13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.07 17:07:45 +0530 accused person did not opt to lead defence evidence and the matter was listed for final arguments.
10. I have heard the arguments as advanced by the Ld. APP for the State and the Ld. counsel for the accused and have also perused the record.
11. Short point for determination before the court is as under "Whether on 09.10.2021 at 02:30 AM at F-7/W48/49, Jhuggi no. 142, Sultanpuri, Delhi, within the jurisdiction of PS Raj park, the accused committed lurking house trespass by night by entering into the house of the complainant Neeraj and committed theft of the mobile phone OPPO and Rs. 6,500/- belonging to the complainant or in alternate he was found in possession of the aforesaid stolen mobile phone make OPPO belonging to the complainant?
12. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused committed trespass and theft in the house of the complainant and that he was found in possession of the stolen mobile phone of the complainant and submitted that accused be convicted of the offence charged.
13. Per contra, it is argued by the Ld. LAC for the accused that both PW1 and PW2 have not identified the accused in their testimonies and hence there is no incriminating evidence against him. Further, it is submitted that the accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. LAC that nonjoinder of public FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 6 of 13 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.07 17:07:53 +0530 witness despite availability cast shadow of doubt on prosecution story. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
14. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
15. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
16. In the instant case, complainant/sole eye witnesses i.e. PW-1 Neeraj, though deposed about tresspassing into the house and theft of his mobile phone and money but during his examination in the court the complainant did not identify the accused, therefore, he was cross-examined by Ld. APP on the point of identity of accused, but even after his cross-examination by Ld. APP, he failed to identify the accused. Further, PW-2 Ms. Chaaya also failed to depose in favour of the prosecution and did not identify the accused even after cross-examination by Ld. APP. No other eye witness, except PW-1 and PW-2 were examined on behalf of prosecution to establish the identity of accused as perpetrator of offence of alleged tresspass into the house of the complainant and theft of his mobile FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 7 of 13 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.07 17:08:04 +0530 phone and money. The identity of accused is the most vital aspect of any criminal trial. The testimony of eye-witnesses was therefore necessary for conviction of accused with regard to the offence of trespass and theft. It is the eye-witnesses who only could have deposed regarding the involvement of the accused in the commission of alleged offence. Since the complainant/eye witnesses have themselves refused to identify the accused as perpetrator of the offence, the offence u/s 380/457 IPC cannot be proved by the prosecution.
17. Qua the offence u/s 411 IPC, the prosecution is required to establish that the said property was recovered from the possession of the accused Vivek @ Gandhi. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of the stolen mobile phone in this case, makes the prosecution version highly doubtful. As per the testimony of PW3 Ct. Mayank as well as PW 4 HC Mukesh, Accused Vivek @ Gandhi was handed over to them by the complainant at F-7/W48/49, Jhuggi no. 142, Sultanpuri, Delhi i.e. the residence of the complainant alongwith the alleged stolen mobile phone. Therefore, it is quite clear that the accused was apprehended at a public place but still no public independent person was cited as a witness in this case. A perusal of the record also shows that no written notice was served on the public persons. The absence of serving written notice upon the public persons cannot be accepted by the court since the IO was under an obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused has already been apprehended by the FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 8 of 13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.07 17:08:11 +0530 police and there was no apprehension that accused might escape. Moreover, the IO has not even placed on record the names of the passersby who were asked to join the investigation and neither have any reasons been mentioned by IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments: In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 9 of 13 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.07 17:08:18 +0530 noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigation Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful". In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 10 of 13 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.07 17:08:23 +0530 observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
18. Considering the aforesaid observations made by the Higher Courts, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story that the stolen property was infact recovered from the accused.
19. From the aforesaid discussion, it is clear that firstly it has not been proved that the accused committed theft and trespassed into FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 11 of 13 Digitally signed by MANSI MANSI MALIK Date: MALIK 2022.10.07 17:08:30 +0530 the house of the complainant as both PW1 and PW2 failed to identify the accused. Secondly, the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of the mobile phone, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that: "There may also be an element of truth in the prosecution story against the accused.
Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt."
20. In view of the aforesaid discussion, the prosecution has miserably failed to substantiate the allegations against accused Vivek @ Gandhi and he is accordingly acquitted for the charges u/s 380/457/411 IPC as levelled against him. Ordered accordingly.
FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 12 of 13 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.07 17:08:36 +0530
21. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.07 Announced in open Court (MANSI MALIK) 17:08:43 +0530 on 7th Day of October, 2022 Metropolitan Magistrate North-West, Rohini, Delhi FIR No. 664/21 PS Raj Park State vs. Vivek @ Gandhi page 13 of 13