Delhi District Court
State vs Bhoori Singh on 1 May, 2010
Page No.: 1 / 9
IN THE COURT OF SH. RAKESH KUMAR-III:
METROPOLITAN MAGISTRATE: KARKARDOOMA : SHAHDARA : DELHI.
State V/s Bhoori Singh
FIR No.: 94/03
PS: Vivek Vihar
U/s: 381/411 IPC
JUDGMENT:
a) Sl. No. of the Case : 145/2
b) Date of Institution : 20.12.2008
c) Date of Commission of Offence : 08.04.2003
d) Name of complainant : Sh. Sant Lal Suneja S/o Sh. Gopal
Dass Suneja R/o D-262, Anand Vihar,
Delhi.
e) Name of the Accused & his : Bhoori Singh S/o Sh. Hub Lal
Parentage & address R/o Village- Chamad, PS- Gonda, Distt.
Aligarh, U.P.
f) Offence complained of : U/s 381/411 IPC
g) Plea of the Accused : Pleaded not guilty
h) Order Reserved : 16.03.2010
i) Final order : Convicted
j) Date of such order : 27.04.2010
BRIEF STATEMENT FOR THE REASONS FOR DECISION:
1. The case of the prosecution is that on 08.04.2003 at about 7:00 am, accused committed theft of one Colour T.V., one CPU, One Scanner, One Printer from the shop no.18 Super Bazar, B-Block, Vivek Vihar belonging to the complainant Sant Lal Suneja and accused being the servant of the shop owner and thereafter accused had alleged to be committed an offence of punishable u/s 381 IPC. The FIR No. 94/03 was registered in the PS-Vivek Vihar against the accused Bhoori Singh. Statement of witnesses were recorded, site plan was Page No.: 2 / 9 prepared, accused was arrested and after completion of all necessary investigation challan U/s 173 Cr.P.C was presented in the court for trial for the offence punishable u/s 381/411 IPC.
2. Accused was summoned by the court to face trial so copy as required under section 207 Cr.P.C., was supplied to him. Thereafter case was fixed for consideration of charge.
3. After hearing arguments and on perusal of record, prima facie charge for the offence under section 381 IPC was made out against the accused. Accordingly charge framed against the accused on 17.05.04. Thereafter case was fixed for prosecution evidence.
4. In order to prove its case the prosecution examined five witnesses namely Sh. Sant Lal Suneja, Complainant as PW-1, Sh. Jai Ram as PW-2, Ct. Giriraj as PW-3, Ct. Kanwarpal as PW-4, and Inspector Bachu Singh as PW-5.
5. PW-1 Sant Lal Suneja is the complainant and material witness who deposed on the lines of the prosecution that on 07.04.2003 at about 8:00 pm he closed his shop no. 18 situated at Super Bazar Market, B-block, Vivek Vihar there typing work, computer job work and photostate work were going on and on 08.04.03 at about 1:00 pm when he came to his shop, he saw that locks of his shop were found in broken condition thereafter he opened his shop and found that One Colour T.V, CPU, Printer, scanner, one Key-board, Monitor and Mouse were missing. He further deposed that he asked his co-shopkeepers and who informed him that Bhoori Singh being the servant/employee had come his shop at about 7:00 am and opened the shop and took away the said items in a bed sheet. He further deposed that Jai Ram who was working of the same market said to him that Bhoori Singh had informed Jai Ram that the said items were taking away as the same were not in working order and the items were taking Page No.: 3 / 9 away to his (complainant's) house. He further deposed that thereafter police was called who came and recorded his statement Ex. PW-1/A. He further deposed that after three-four days accused Bhoori Singh was arrested near GTB Hospital.
During the interrogation accused disclosed that he took away the said items. He further deposed that disclosure statement of the accused was recorded and police recovered the stolen items which were seized are Ex. PW- 1/B and PW-1/C respectively. Pointing out memo, arrest memo and personal search memo of the accused are Ex. PW-1/E, PW-1/F, and PW-1/G respectively. Thereafter, he released the stolen items on superdari vide superdginama Ex. PW-1/H.
6. PW-2 Jai Ram who is the eye witness also deposed on the lines of the prosecution that on 08.04.03 he came at about 6:00 am at Aman Motors, B- 11, Super Bazar, B-Block, Vivek Vihar where he was doing service as a driver, with the new driver for driving training and at about 7:00 am they came back and found that gate of the Super Market was opened and Bhoori Singh who was the servant of shop no. 18 was holding one Bed Sheet containing some computer items and he asked Bhoori Singh about the items then Bhoori Singh informed him that the items were taken away to the house of the owner of shop no. 18 for repairs. He further deposed that at about 11:30 am or 12:00 noon when he again came back after his moving around for driving then he fund that many persons were gathered at shop no. 18 and Shop Owner Sant Lal saying that theft had taken place and then he informed Sant Lal that his servant Bhoori Singh had taken away some computer items in a bed sheet.
7. PW-5 IO/ Inspector Bachu Singh deposed that on 08.04.03 on receipt of DD No. 13 A he alongwith Ct. Kamal Kumar reached at the spot where complainant Sant Lal Suneja met them and he recorded the statement of complainant Ex. PW-1/A. He further deposed that he prepared site plan at the Page No.: 4 / 9 instance of complainant Ex. PW-5/A and copy of FIR Ex. PW-5/B. He further deposed that on 11.04.03 during the investigation he went at the village of accused Bhoori Singh where he came to know this fact that relative of Bhoori Singh was admitted in GTB Hospital.
8. PW-5 further deposed that on 12.04.03 he alongwith PW-3 Ct. Giriraj, PW-4 Ct. Kanwarpal and Complainant reached at GTB Hospital where at the pointing out of complainant they arrested the accused Bhoori Singh and conducted his personal search vide memos are Ex. PW-1/F and Ex. PW-1/G respectively. Thereafter, accused made disclosure statement which as Ex. PW- 1/B and IO prepared pointing out memo which as PW-1/E and at the instance of accused he got recovered the stolen items from the tenanted house i.e., Mishrani ka makan, Gali no. 6, Railway Road, Saboli, Delhi and complainant identified the articles and IO prepared memo in this regard which proved as Ex. PW-1/C (seizure memo) and Ex. PW-1/D.
9. On 19.12.2007 statement u/s 313 Cr.P.C. of accused Bhoori Singh was recorded in which he stated that he has not committed any offence and due to enmity he has been falsely implicated in the present case, he was taken by police from his village and nothing has been recovered from his possession. Therefore, he want to lead evidence in his favour. Despite several opportunities granted to the accused to lead evidence since 19.12.2007 no DW has been examined. Consequently, DE has been closed on 27.01.2010.
10. The main submissions of Ld. APP for the state were to the effect that on the basis of entire material on record, the case stands well proved against the accused person for the offence u/s 381 IPC beyond reasonable doubt and he should be punished strictly as per law.
Page No.: 5 / 911. On the other hand, the main submissions of Ld. Defence Counsel were to the effect that accused Bhoori Singh was falsely implicated in this case due to enmity with complainant as he was the servant of the complainant and he desired to leave the job but complainant refused and after some time he left the job as a servant from the shop of the complainant, that nothing was alleged to be recovered from his possession, that recovery whatever be alleged, planted upon him by the police officer in connivance with the complainant, that he was taken by police from his village, that the case does not stand proved against the accused Bhoori Singh beyond reasonable doubt. On the basis of these grounds, acquittal of the accused has been prayed for.
12. I have heard the Ld. APP for the state and the Ld. Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
13. Since, in the present case complainant Sant Lal Suneja examined as PW-1 and the other material witness Jai Ram as examined as PW-2 and they deposed on the lines of the prosecution and supported the case of the prosecution. PW-1 proved his statement as Ex. PW-1/A wherein he deposed that on 07.04.03 at about 8:00 pm he closed his shop no. 18 situated at Super Bazar Market, B-block, Vivek Vihar there typing work, computer job work and photostate work were going on and on 08.04.03 at about 1:00 pm when he came to his shop, he saw that locks of his shop were found in broken condition thereafter he opened his shop and found that One Colour T.V make ONIDA, CPU, Printer, scanner, one Key-board, Monitor and Mouse were missing. He further deposed that he asked his co-shopkeepers and who informed him that Bhoori Singh being the servant/employee of the complainant, had come his shop at about 7:00 am and opened the shop and took away the said items in a bed sheet. He further deposed that Jai Ram who was working of the same market said to him that Bhoori Singh had informed Jai Ram that the said items were Page No.: 6 / 9 taking away as the same were not in working order and the items were taking away to his (complainant's) house.
14. PW-2 other material witness/ eye witness who deposed that on 08.04.03 at about 6:00 am while he was moving in his new driver for driving training and found that lock of shop no. 18, Super Market was opened and saw/ found that Bhoori Singh servant of shop no. 18 containing some computer items who had been told by Bhoori Singh that he (Bhoori Singh) was taking the computer items to the house of the owner of Shop no. 18 for repairs and identified by him in the court and has not been cross examined despite several opportunity given.
15. It is not out of the mentioned to place here that in the present case both PWs were examined on 20.04.2005 and 11.07.2005 but they have not been cross-examined till 06.07.07 and PE has been closed by Ld. Predecessor of this court on 06.07.2007 and matter adjourned to S.A. On 19.12.2007 S.A has been recorded wherein accused explained while giving answer regarding incriminating evidence appears against him that " he was servant at the shop of the complainant and he desired to leave the shop of the complainant but complainant refused. After some time he left the job as a servant from the shop of the complainant and this fact of leaving the shop of the complainant may have been one reason of enmity with complainant " and wanted to lead evidence. But surprisingly neither the PW-1 and PW-2 have been cross-examined nor DW has been lead till 24.10.2008 and moved an application u/s 311 Cr.P.C seeking permission for cross-examined the witnesses i.e., PW-1 Complainant and PW-2 after the span of approximately two and half years which was dismissed by this court on 27.01.2010. And as such accused failed to lead or support any evidence in support of his explanation, so I am of the considered view that in absence of the cross-examination of PW-1 and PW-2, I am left with no option except relying upon the testimony of PW-1 and PW-2 and nothing contrary come Page No.: 7 / 9 up on record which cast any doubt upon the prosecution version/ story.
16. Since, in the present case no prosecution witness has been cross examined by Ld. Defence Counsel despite opportunity given and in statement u/s 313 Cr.P.C accused stated that he has been falsely implicated in the present case and nothing was recovered from his possession despite that he did not lead any defence witness in his favour despite several opportunity given.
17. Taking into consideration facts and circumstances of the present case and also bare perusals of the testimonies of PW-1 Sant Lal Suneja, Complainant and PW-2 Jai Ram, I am of the considered view that the accused had committed theft of one Colour T.V., one CPU, One Scanner, One Printer, Key Board from the shop no.18 Super Bazar, B-Block, Vivek Vihar belonging to the complainant Sant Lal Suneja and accused being the servant of the shop owner, hence accused Bhoori Singh had committed an offence u/s 381 IPC, accordingly accused Bhoori Singh is convicted for the offence u/s 381 IPC. Announced in the open court on 27.04.2010.
(RAKESH KUMAR-III) Metropolitan Magistrate, Karkardooma Courts, Delhi.
Page No.: 8 / 9IN THE COURT OF SH. RAKESH KUMAR-III METROPOLITAN MAGISTRATE: KARKARDOOMA : SHAHDARA : DELHI.
State vs. Bhoori Singh
FIR No. 94/03
PS: Vivek Vihar
U/s: 381/411 IPC
ORDER ON SENTENCE
01.05.2010
Present:- Ld. APP for the State.
Convict in person with counsel.
1. Report regarding conduct of the convict from the Probation Officer was called. Report filed in sealed cover which is opened accordingly and the same be taken on record.
2. Ld. APP for the State prayed for imposing of maximum imprisonment with fine on the convict according to the provision of IPC so that he will not commit such type of offence in future and also opposed to release the accused on probation.
3. On the other hand Ld. Counsel for the convict has stated that convict is age of 34 years, one wife and having two school going children. He has been clean antecedent and not previous conviction against him. He has a poor man and only bread earner of his family with request to release him on Probation u/s 4 of Offender Act after taking lenient view against the convict.
4. I have heard the submissions of Ld. APP for the State and counsel for the convict and perused the record.
5. Taking into totality of the facts and circumstances of the case and Page No.: 9 / 9 also in view of the report of Probation Officer, the following sentences are passed against the convict :-
(i) The convict is sentenced 2 years S.I. for the offence u/s 381 IPC.
(ii) The convict is sentenced to pay a fine of Rs.5,000/- for the offence u/s 381 IPC to the state within one month and in default one month S.I.
(iii) Both the sentences shall run concurrently.
6. Since, report of Probation Officer is in the favour of convict and no purpose would be served by keeping/sending the convict in J/C especially when the convict himself is ready to furnish the bond of Peace and Good Behaviour. Under these circumstances, convict is order to be released on probation of the period of sentence captioned above on furnishing bond of Good Behaviour of Rs.20,000/- with one surety of the like amount with direction not to commit similar offence within the period of sentences mentioned above.
7. Bond u/s 4 of Probation furnished and accepted. Copy of this order be also sent to SHO concerned with direction to monitor in case of failure of condition of bond by the convict, be reported immediately and the convict is directed to appear before the court to receive sentences as mentioned above.
File be consigned to Record Room.
Announced in the open court on 01.05.2010.
(RAKESH KUMAR-III) MM/KKD Courts/Delhi 01.05.2010