Delhi District Court
State vs . Ajay & Ors. on 8 March, 2022
IN THE COURT OF MS. SHIVLI TALWAR
METROPOLITAN MAGISTRATE - 06, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
FIR No. 158/2013
PS - Civil Lines
U/s - 457/380/411/34 IPC
State Vs. Ajay & Ors.
JUDGMENT
(a) Criminal Case No. 294235/2016
(b) CNR No. DLCT02-002154-2013
(c) Date of commission 27.06.2013
of offence
(d) Name of the Madhu w/o Siya Ram r/o H. No. N-68/353, Majnu Ka
complainant Tilla, Delhi-110054
(e) Name of the 1. Ajay Goswami s/o Sh. Parmeshwar Goswami r/o accused person(s), Shop No. 28, DDA Murga Market, Majnu Ka Tilla, his parentage and Delhi-110054.
residence 2. Guddu s/o Mahendar Lal r/o House No. N-68/519, Majnu Ka Tilla, Delhi-110054
3. Vipin Kumar Bhatia @ Chintu s/o- Surender Kumar Bhatia r/o House No. 474, Bheem Pal's House, Gopal Pur Pusta, Delhi.
(f) Offence(s) Sections 457/380/34 IPC and Section 411 of complained of or The Indian Penal Code, 1860 proved (g) Plea of the accused Pleaded not guilty (h) Final Order Acquitted (i) Date of institution 26.08.2013 of case (j) Date when 15.02.2022 judgment was reserved (k) Date of judgment 08.03.2022 Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:38:19 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 1 of 26 Brief reasons for the decision of the case: -
1. The present charge-sheet has been filed against accused persons namely, Guddu, Vipin @ Chintu and Ajay u/s 457/380/411/34 IPC. The genesis of the prosecution story is that on 27.06.2013 between 12:00 midnight to 07:30 AM at House No. N-68/353, Aruna Nagar, Delhi, within the jurisdiction of PS Civil Lines, all three accused persons in furtherance of their common intention, committed the offence of lurking house tress-pass by entering into the house of complainant namely Madhu, used for human dwelling and committed theft of one gold pendant, four bangles of gold, one gold ring, one chain, cash Rs. 65,000/-, two bags containing sarees, one TV set top box of Siti Digital Co., one set of silver haar containing one haar, two chhalle, one ring, 4 longs, one ladies Titan watch, 4 pins of bangles, one artificial set of silver colour, one blanket of double bed in a plastic cover, and one small bag containing clothes lying in the said house.
2. It is the further the case of prosecution that on 27.06.2013 at House No. N-
68/519, Majnu Ka Tilla, Delhi, accused Guddu was found in possession of one rexine bag containing one jewellery box in which one pendant, two tops of golden colour, one jewellery box containing one haar set (having one haar, two chhalle and one ring of golden colour) as per seizure memo Mark X3 belonging to the complainant, which the accused retained unlawfully having reasons to believe the same to be stolen property or unlawfully obtained.
3. It is further the case of prosecution that on 27.06.2013 at H. No. 474, Gopalpur Pushta, Delhi, accused Vipin @ Chintu was found in possession of one rexine bag of grey colour containing one cloth purse containing 4 SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:38:30 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 2 of 26 long (Nath), one ladies Titan watch, four pins of silver colour, one artificial set of silver colour (as per seizure memo Mark X1) belonging to the complainant, which the accused retained unlawfully having reasons to believe the same to be stolen property or unlawfully obtained.
4. It is further the case of prosecution that on 27.06.2013 at Shop No. 28, DDA Durga Market, Majnu Ka Tilla, Delhi, accused Ajay was found in possession of one Set Top Box of Siti Digital, six sarees, one blanket in a plastic bag (as per seizure memo Mark X2) belonging to complainant, which the accused retained unlawfully having reasons to believe the same to be stolen property or unlawfully obtained.
5. On finding a prima facie case to proceed against all three accused persons, cognizance of the offences under Sections 457/380/411/34 IPC was taken by Ld. Predecessor of this Court on 26.08.2013 and after procuring their presence, the provisions of Section 207 Cr.P.C. were duly complied with. Arguments on the point of charge were heard and a formal charge for commission of offences under Sections 457/380/34 IPC and Section 411 IPC was framed against all three accused persons vide order dated 24.09.2013 by Ld. Predecessor of this Court to which the accused persons pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined six witnesses.
PW1 W/HC Jyoti (Duty Officer), PW2 Smt. Madhu (complainant), PW3 HC Jai Prakash (MHC(M)), PW4 Constable Bal Krishan, PW5 HC Sunil Kumar and PW6 Rajendra Kumar. Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date:
2022.03.08 17:38:39 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 3 of 26
7. The record transpires that during the course of trial, the accused persons admitted DD No. 13 PP dated 27.06.2013 with Rojnamcha Register, PP Majnu ka Tilla u/s 294 Cr.P.C and the examination of formal witness qua such document was accordingly dispensed with. The investigating officer of the present case namely HC Azad was dropped from the list of witnesses due to his demise. The prosecution evidence was closed on 29.10.2021 and accused persons were examined u/s 313 Cr.P.C. on 20.11.2021 wherein all incriminating evidence was put to them. The accused persons submitted that they are innocent and have been falsely implicated in the present case due to dispute between the parents of accused Guddu and complainant as the complainant was objecting to the construction of Nav Grah Temple by the parents of accused Guddu. The accused persons opted not to lead any evidence in their defence.
8. Prior to delving into the merits of the present case, it is relevant to discuss the testimonies of the prosecution witnesses.
9. PW1 W/HC Jyoti is the Duty Officer and she proved the copy of FIR Ex.
PW1/A (OSR) and her endorsement on rukka Ex PW1/B. During her cross-examination by Ld. Counsels for accused persons namely, Vipin and Ajay, the witness deposed that the copy of FIR and rukka was handed over to Constable Sunil after about one hour. She admitted that she did not type the FIR on the computer.
The witness was not cross-examined by accused Guddu despite opportunity given. Digitally signed SHIVLI by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:38:46 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 4 of 26
10. PW2 Smt. Madhu is the complainant and star witness of the prosecution.
She deposed that she was residing at house no. 68/353, Aruna Nagar, Majnu Ka Tila, Delhi consisting of two rooms with her two daughters and one son. On 27.06.2013, after giving food to her children, she made them sleep at about 10-10:30 PM. She was awake till 12 midnight and thereafter she slept after closing the door of her other room and woke up at 07:30 AM. When she opened the door of aforesaid room which she had closed, she found that all the things were scattered in the said room. When she checked the said room, she found that Rs. 65,000/- cash, four gold bangles, one gold ring, one gold chain, one pendant set of gold, two bags containing sarees and ladies suits and one blanket were missing. She started crying and her neighbours gathered there. She found that the window affixed on the back side wall of her house was broken. She made a call at 100 number and police came at her house and recorded her statement Ex. PW2/A. She went to the police post where she met with one Rajendra who resides near the house of Nanhi, mother of accused Guddu. Rajendra apprised her and police officials that he saw three persons at night at 3:30 AM in her street who were carrying bags in their hands. Thereafter, she alongwith Rajendra and police officials went to the house of accused Guddu and upon search, her gold pendant set, one silver set and one bag belonging to her were recovered from his house. Same was seized by the police vide seizure memo Ex. PW 2/B. Thereafter, she alongwith accused Guddu and police officials went to the house of Ajay. They met accused Ajay outside his house at a shop. At the instance of accused Guddu, accused Ajay was apprehended by the police official, who hid his identity by putting handkerchief on his face and removing his police SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:38:54 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 5 of 26 uniform shirt. Accused Ajay got recovered six sarees, one blanket and bag belonging to the complainant from his house and the same were seized by the police vide seizure memo Ex. PW2/C. Thereafter, she alongwith accused Guddu and police officials went to the house of accused Vipin where they met him and he got recovered one mobile and a purse containing Rs.20/- belonging to the complainant from his house and the same were seized by the IO vide seizure memo Ex. PW2/D. She further deposed that accused Guddu criminally intimidated her and told her that they did not come to commit theft in her house but they came to kill her, however, their intention changed after seeing her property and goods. She further deposed that till date, accused extended threats to her and used filthy language against her and her children. The witness correctly identified accused persons namely Guddu and Ajay during her testimony before the Court. The case property produced by the witness i.e., one empty green colour bag, one blanket with cover and one grey colour bag containing six sarees, one gold set containing necklace alongwith tops and one gold polished set containing necklace and tops alongwith one small purse containing one ladies wrist watch and four nose pins and one plastic bag containing artificial bangle set is Ex.P-1 (colly).
During her cross-examination by Ld. Defence Counsel, the witness deposed that she came to know about theft in her house at about 07:30 AM. She further deposed that she had the bills of the stolen articles, however, the bills alongwith the articles were stolen. She deposed that she purchased the gold articles slowly one-by-one after saving her money in the year 2007 from Nirankari Jewellers, Kingsway Camp, Delhi. She Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:39:02 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 6 of 26 denied the suggestion that she never purchased gold articles and thus, she did not have bills regarding the same. She further deposed that she did not make a call on 100 number, but someone from the neighbourhood/ relative made a call on 100 number maybe at about 08-08:30 AM and police came to her house at about 9 AM. She further deposed that the police checked the spot of incident, almirah and tried to collect finger prints from the spot. She further deposed that the police also inquired from her and asked her who she suspected to which she told them that mother of accused Guddu had an altercation with her at the inauguration of one temple and she threatened her that they would get her house burgled and thus, she had suspicion on accused Guddu. She denied the suggestion that she had falsely implicated the accused persons because of the said altercation. She further denied the suggestion that the abovesaid stolen articles were stolen by her and cases are pending at Tis Hazari Courts. She also denied the suggestion that FIR No. 150/03 PS Civil Lines u/s 379/411 IPC was registered against her. She further deposed that she reached the house of accused Guddu alongwith police officials at about 10:30 AM. She further deposed that she did not know the house number of accused Guddu, however, he resided at the distance of 20 houses from her house. She further deposed that she did not know about the house of accused Ajay and Vipin and that accused Guddu took police officials to the house of other accused persons. She further deposed that she did not visit the house of other accused persons and was kept in PS Civil Lines. She further deposed that her gold chain was about 1.5 tola and that she received one gold ring and one gold bangle set which were given to her daughter by her in-laws at the time of fixing of her marriage in the year 2008. She denied the SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:39:11 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 7 of 26 suggestion that accused persons had been falsely implicated in the present matter due to personal enmity and that no recovery was effected from their possession.
11. PW3 HC Jai Prakash is the MHC(M). He deposed that on 27.06.2013, HC Azad Singh deposited two pullandas with the seal of AS, one set-top box, six sarees, one blanket/kambal, two raxine bags and personal search of two accused. In this regard, he made entry at serial no. 280 vide mud no. 2058. The case property was released on 03.07.2013 and one of the personal search was released on 29.07.2013 to Vipin Kumar Bhatia. Document Ex.PW3/A (OSR) is the photocopy of the said entry.
The witness was not cross-examined on behalf of defence despite opportunity given.
12. PW4 Ct. Bal Krishan deposed that on 27.06.2013, HC Azad Singh called him on the spot at House No. 68/353. When he reached at the spot, Ct. Sunil, complainant Madhu and HC Azad Singh went to the house of Guddu at House No. 68/519, Majnu Ka Tilla, Delhi. When he reached the house of Guddu, then complainant pointed out towards the accused and told that he was the same person who committed theft in the house of complainant. After that, accused Guddu was arrested vide arrest memo Ex. PW4/A and upon his personal search, one mobile phone and Rs.100/- was seized vide memo Ex. PW4/B. Thereafter, the disclosure statement of the accused Ex. PW4/C was recorded. In the disclosure, accused Guddu disclosed that he had committed theft alongwith his two associates namely, Ajay and Vipin. The accused Guddu handed over the theft articles from his SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:39:19 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 8 of 26 house to the IO which included mehandi colour bag, one jewellery box of Nirankari Jewellers having one pendant, two tops and one other jewellery box of blue colour containing one necklace set of golden colour. All the articles were identified by the complainant and claimed that they belonged to her. Pullanda was prepared by keeping in white cloth and sealed with the seal of AS. The site plan Ex. PW4/D of the place where articles were seized was prepared. Thereafter, they went to the house of other accused Ajay at House No. 28DDA, Murga Market, Majnu Ka Tilla. Outside the said shop, accused Guddu pointed towards one person, whose name on inquiry was found to be Ajay and he was taken under custody. Thereafter, he was also arrested in the present matter vide arrest memo Ex.PW4/E. His personal search was conducted vide memo Ex.PW4/F and his disclosure statement was recorded vide memo Ex.PW4/G. Thereafter, as per disclosure of accused Ajay, one Siti Digital set top box, one blanket and six sarees were recovered from under the cot kept in the room over the above said shop. The said articles were identified by the complainant. Thereafter, they all went to the house of accused Vipin situated at H. No. 474, Gopal pur Pusta, Delhi where accused Vipin was identified at the instance of accused Guddu and he was arrested vide memo Ex. PW4/H and his personal search was conducted vide memo Ex. PW4/I. Disclosure statement of accused was recorded vide memo Ex.PW4/J. As per disclosure of accused, accused Vipin brought a grey coloured bag on which Polo Rider was mentioned which was kept under the cot kept in the room of accused. On checking the said bag, one blue colour purse made of cloth containing four nose rings made of gold, one Titan watch, one ladies watch, four hair pins made of silver and one artificial jewellery set of SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:39:27 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 9 of 26 silver colour were found which were identified by complainant Madhu. Said articles were sealed with the seal of 'AS'. IO also prepared site plan of recovered articles Ex.PW4/K. Thereafter, he alongwith IO, staff, complainant and all the accused persons came back to the spot where all three accused persons identified the spot and spot identification memo Ex.PW4/L was prepared by IO. Thereafter, complainant was released from investigation by the IO after recording her statement and they all came back to PS and case property was deposited in Malkhana and accused persons were put under custody. The witness deposed that IO recorded his statement and relieved him. The photographs of case property i.e. Siti cable box, two jewellery sets of golden colour, blanket cover with blanket, sarees, silver articles i.e. hair pin are Ex.P2 (colly). The witness correctly identified accused persons namely, Guddu and Ajay during his testimony before the Court. Identity of accused Vipin was not disputed by Ld. Defence Counsel.
During his cross-examination by Ld. Defence Counsel, the witness deposed that on 27.06.2013, HC Azad called him at around 10 AM to the spot and he reached there within 10-15 minutes. He further deposed that HC Azad called at PP Majnu Ka Tilla, PS Civil Lines where he was already present. He further deposed that his duty hours were from 8AM to 8 PM. He further deposed that he met complainant, IO/HC Azad and Ct. Sunil at the spot and that they reached the house of accused Guddu at about 1:30 PM. He denied the suggestion that the disclosure statement of all three accused persons were not given by them and that their signatures were obtained on the blank papers under pressure. He deposed that he did Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:39:34 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 10 of 26 not remember the shop number. He further deposed that HC Azad asked public persons near the spot of recovery of the case property from the accused persons at their respective places to join the investigation, but none agreed citing personal reasons. He further deposed that no notice was issued to public persons for not joining the investigation. He further deposed that he did not know whether there were personal differences between complainant and accused Guddu. He further deposed that he did not know whether several FIRs were registered against complainant for offences of theft etc. He further deposed that he did not ask for receipts or bills of the articles identified by the complainant. He further deposed that he did not know whether IO asked for the same or not. He denied the suggestion that accused persons were falsely implicated at the instance of complainant. He further denied the suggestion that nothing was recovered from the possession of accused persons and that the case property was falsely planted upon them in connivance with the complainant. He further denied the suggestion that the accused persons were arrested at the instance of complainant and that the investigation was not conducted in a diligent manner.
13. PW5 HC Sunil Kumar deposed that on 27.06.2013, HC Azad Singh received information of theft through DD No. 13PP. He alongwith HC Azad Singh reached the spot i.e. House No. N-68/353 Aruna Nagar, Majnu Ka Tilla where they met the complainant. They went inside the room where almirah was broken and opened and all the articles were scattered on the floor and window of the backside was also broken. IO/HC Azad informed the Crime Team. IO recorded the statement of complainant.
SHIVLI Digitally signed by
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Crime Team came at the spot and took the photograph of the room and the surroundings. He further deposed that IO handed over the orginal rukka to him and he went to the PS and got the FIR registered on the basis of the said rukka and came back to the spot alongwith the computerized copy of FIR and original rukka and handed over the same to the IO/HC Azad. One Ct. Balkishan came at the spot and they inquired from the public persons and reached Farida Chowk, Majnu Ka Tila (near to the house of complainant). One public person namely Rajender met them who informed them that he saw three people namely, Ajay, Guddu and Vipin Bhatia standing behind the house of complainant at about 1:30 AM. At the instance of Rajender, they reached the house of accused Guddu and he pointed towards the accused who was standing at the gate of his house and they apprehended the accused. IO/HC Azad interrogated the accused who disclosed that he alongwith Ajay and Vipin committed theft inside the house of complainant. At the instance of accused Guddu, one bag of mehandi colour was recovered from under the bed. The bag was opened by the IO, which contained one jewellery box, one blue colour jewellery box containing golden necklace and some other articles which the witness did not remember. He further deposed that he alongwith HC Azad and Ct. Balkishan alongwith accused Guddu headed towards Shop No. 28, DDA Murga Market, Majnu Ka Tilla on the instructions of accused Guddu. Accused Guddu pointed towards the accused Ajay, who was involved with him in the present theft and they apprehended accused Ajay. IO/HC Azad interrogated accused Ajay who disclosed that he alongwith Guddu and Vipin committed the theft inside the house of complainant. At the instance of accused Ajay, one set top box, six sarees and one blanket were SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:39:47 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 12 of 26 recovered from the room on first floor. The IO prepared the site plan Ex. PW5/A. The witness further deposed that he alongwith HC Azad and Ct. Balkishan alongwith accused Guddu and Ajay headed towards House No. 474, Gopalpur Pusta, Delhi on the instructions of accused Guddu and accused Vipin was apprehended from his house. IO/HC Azad interrogated accused Vipin who disclosed that he alongwith Guddu and Ajay committed theft inside the house of complainant. At the instance of accused Vipin, two mobile phones, one black purse and some visiting cards and Rs.20 were recovered from his house. One bag was also recovered from underneath the bed containing one ladies wrist watch and some artificial golden and silver jewellery. He further deposed that they came back to the PS and the recovered and seized articles were deposited in Malkhana PS Civil Lines by the IO. The witness correctly identified accused Vipin during his testimony before the Court. Identity of accused persons Ajay and Guddu was not disputed by Ld. Defence Counsel.
At this stage, the witness was asked certain leading questions by Ld. APP for the State upon permission obtained from the Court as Ld. APP stated that the witness was unable to recall complete facts due to lapse of time. The witness admitted that during the investigation and recovery, complainant accompanied them and identified her jewellery/articles which were being recovered/ seized and all the articles were seized after complainant identified the same. He further admitted that it is correct that the seized articles were sealed in white pullanda and sealed with the seal of 'AS'.
During his cross-examination by Ld. Defence Counsel, the witness Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:39:54 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 13 of 26 deposed that he did not remember the time when PCR call was received. He further deposed that he did not remember the time when they reached the spot and met the complainant for the first time. He further deposed that he did not remember the exact colour of almirah. He further deposed that he did not remember at what time call was made to crime team. He deposed that the statement of complainant was recorded before arrival of crime team. He further deposed that he did not remember the names and numbers of crime team members. He further deposed that he reached the spot in his own vehicle. He denied the suggestion that they did not reach the spot at the same time. He deposed that IO handed over the original rukka to him at 10:30 AM. He deposed that he met with Rajender on the same day at around 11:15-11:30 AM. He further deposed that accused Guddu was apprehended at the instance of Rajender. He further deposed that he did not remember the time of apprehension of accused Guddu as the case was continuously investigated on that day. He denied the suggestion that nothing was recovered from the possession of accused Guddu and Vipin during their personal search. He further denied the suggestion that the accused persons were falsely implicated in the present case at the instance of complainant as the complainant had previous enmity with the accused persons.
14. PW6 Rajendra Kumar deposed that in the year 2013, he was residing at House No. N-68/408, Majnu Ka Tilla, PS Civil Lines, Delhi. On the intervening night of 26/ 27.06.2013, his wife was suffering from loose motions and as they did not have toilet at their home at that time, so he helped her to go to the nearby vacant land towards old jail of children. It Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:40:02 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 14 of 26 was about 01:30 AM and he noticed accused Guddu, who was his neighbour, alongwith his friends namely Ajay and Vipin standing behind the house of Ms. Madhu. Later on, he came to know that theft had occurred at her house on the same night. Thus, he had suspicion over the involvement of accused persons in the said theft and therefore his statement regarding the same was recorded by police. The witness correctly identified accused persons namely, Guddu and Ajay during his testimony before the Court. Identity of accused Vipin was not disputed by Ld. Defence Counsel.
During his cross-examination by Ld. Defence Counsel, the witness deposed that he was residing in Majnu Ka Tilla area since his childhood and therefore he knew several persons of the locality. He admitted that complainant was a lady with bad temperament and entered into fight with neighbours. He also admitted that he did not witness the accused persons committing theft at the house of complainant. He also admitted that the other two accused persons namely Vipin and Ajay were not his neighbours. He also admitted that he had noticed accused Guddu sitting outside his house. He deposed that he knew that accused Guddu was a rickshaw puller and in his opinion, he was not a boy of bad temperament. He further deposed that he had heard that there was some dispute between accused Guddu and complainant over the construction of colony temple. He denied the suggestion that the accused persons had been falsely implicated in the present matter.
Digitally signed by SHIVLI15. This is the entire evidence on case record. SHIVLI TALWAR Date: TALWAR 2022.03.08 17:40:09 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 15 of 26
16. I have given a considered thought to the rival submissions made by Ld. APP for the State and Ld. Defence Counsel keeping in view the material available on the judicial file.
17. In order to prove the guilt of accused persons u/s 457 IPC, the prosecution needs to prove the following essential ingredients:
(i) That the accused persons committed lurking house-trespass or house-breaking by night;
(ii) That such lurking house-trespass or house-breaking by night had been committed in order to commit an offence punishable with imprisonment.
18. In order to prove the guilt of accused persons u/s 380 IPC, the prosecution needs to prove the following essential ingredients:
(i) That the accused persons had committed theft;
(ii) That the theft had been committed in a building, tent or vessel, which building, tent or vessel was being used as a human dwelling or for the custody of property.
19. In order to prove the guilt of accused persons u/s 411 IPC, the prosecution needs to prove the following essential ingredients:
(i) That the accused persons had dishonestly received or retained any stolen property;
(ii) That such property had been received or retained by the accused
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persons knowing or having reason to believe the same to be stolen property.
20. Ld. APP for the State has contended that the presence of accused persons at the spot of incident is established as the material prosecution witnesses i.e. PW2/ complainant and PW6 Sh. Rajendra Kumar have correctly identified them before the Court. It is further contended that the accused persons have failed to account for their possession of the case property. It is further contended that the prosecution has established the guilt of the accused persons beyond all reasonable doubts and therefore, the accused persons deserve to be convicted for the offences in question.
21. Per contra, Ld. Defence Counsel has submitted that the accused persons have been falsely implicated in the present case and case property has been planted upon them by the IO at the instance of complainant due to personal enmity between parents of accused Guddu and complainant over the construction of Nav Grah Temple by parents of accused Guddu.
22. Before proceeding with the appreciation of evidence, the cardinal principle of criminal jurisprudence is to be borne in mind, that prosecution has to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence. In order to successfully bring home the guilt of the accused persons, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of accused persons. It is for the prosecution to travel the entire distance from may have to must have. Accused persons are entitled to benefit of reasonable doubts in the prosecution story and any such doubts Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:40:23 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 17 of 26 in the prosecution case entitles the accused persons to acquittal.
23. The accused persons have been charged u/s 457/380/34 and 411 IPC. Such offences being inter-connected, this Court shall discuss them simultaneously.
24. It is the case of the prosecution that the accused persons committed lurking house-trespass or house-breaking by night in the house of complainant in order to commit theft and thereafter, committed theft in the dwelling house belonging to the complainant. It is further the case of the prosecution that accused persons were found in possession of the stolen case property belonging to the complainant, which they received or retained, knowing or having reason to believe the same to be stolen.
25. While deliberating upon the evidence as led by the prosecution, it emerges that the prosecution has not produced any witness who had seen the accused persons entering or exiting the house of complainant and committing theft.
It is pertinent to note that PW2/ complainant Smt. Madhu, during her examination-in-chief, deposed that on 27.06.2013, pursuant to the alleged incident, she went to the police post where she met with one Rajendra who resides near the house of Nanhi, mother of accused Guddu and he apprised her and police officials that he saw three persons at night at 3:30 AM in her street who were carrying bags in their hands. On the other hand, PW6 Rajendra, during his examination-in-chief, deposed that on the intervening night of 26/27.06.2013, at about 1:30 AM, he noticed accused Guddu, who Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:40:31 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 18 of 26 was his neighbour, along with his friends Ajay and Vipin standing behind the house of complainant and later on, he came to know that theft had occurred at her house on the same night, thus, he had suspicion over the involvement of accused persons in the said theft. Furthermore, during his cross-examination by Ld. Defence Counsel, PW6 Rajendra admitted that he did not witness the accused persons committing theft at the house of complainant. He also admitted that he had noticed accused Guddu sitting outside his house. He also deposed that he had heard that there was some dispute between accused Guddu and complainant over the construction of colony temple.
Thus, upon perusal of the testimonies of PW2 and PW6, it clearly emerges that PW6 is not an eye witness to the alleged incident of lurking house trespass or house breaking by night and subsequent theft and he merely deposed that he suspected that the accused persons committed theft in the house of complainant as they were standing behind her house.
It is also pertinent to note that PW2/ complainant, during her cross- examination by Ld. Defence Counsel, deposed that accused Guddu resided at a distance of 20 houses from her house. Thus, this Court is of the considered opinion that his mere presence near the house of complainant does not establish his complicity in the present offence, considering the proximity between their houses.
Furthermore, the contradictions arising in the testimonies of both the aforesaid witnesses casts a serious shadow of doubt on the version of the prosecution as PW2/complainant deposed that Rajendra apprised her and Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:40:41 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 19 of 26 police officials that he saw three persons at night at 3:30 AM in her street who were carrying bags in their hands, whereas PW6 Rajendra, deposed that he saw the accused persons standing behind the house of complainant at about 1:30 AM. It is noteworthy that he did not depose anything regarding the accused persons carrying bags in their hands. Furthermore, during his cross-examination by Ld. Defence counsel, he admitted that he had noticed accused Guddu sitting outside his house. It is also pertinent to note that PW6 deposed that his statement was recorded by the police, however, his statement has not been proved on record by the prosecution during his testimony before the Court.
26. A further study of the evidence on record divulges an array of other contradictions.
27. PW2/ complainant, during her examination-in-chief, deposed that pursuant to the alleged incident, she made a call at 100 number. However, during her cross-examination by Ld. Defence Counsel, she deposed that she did not make a call on 100 number, but someone from the neighbourhood/ relative made a call on 100 number at about 8-8:30 AM on 27.06.2013.
28. PW2/ complainant, during her examination-in-chief, deposed that she alongwith Rajendra and police officials went to the house of accused Guddu. She further deposed that thereafter, she alongwith accused Guddu and police officials went first to the house of accused Ajay and then to the house of accused Vipin. However, during her cross-examination by Ld. Defence Counsel, she deposed that she went to the house of accused Guddu alongwith the police officials. She also deposed that she did not Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:40:47 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 20 of 26 visit the house of other accused persons and was kept in PS Civil Lines.
29. PW2/complainant, deposed that she reached the house of accused Guddu along with Rajendra and police officials on 27.06.2013 at about 10:30 AM. On the other hand, PW4 Ct. Bal Krishan, during his cross-examination by Ld. Defence Counsel, deposed that they reached the house of accused Guddu on 27.06.2013 at about 1:30 PM. PW5 HC Sunil Kumar, during his cross-examination by Ld. Defence Counsel, deposed that he met Rajendra on the same day at about 11:15-11:30 AM.
Furthermore, PW4 Ct. Bal Krishan, during his examination-in-chief, deposed that accused Guddu was apprehended at the instance of complainant whereas PW5 HC Sunil Kumar, during his cross-examination by Ld. Defence Counsel, deposed that accused Guddu was apprehended at the instance of Rajendra.
30. It is also pertinent to note that PW2/ complainant, during her examination-
in-chief, deposed that on 27.06.2013, when she woke up at 7:30 AM and opened door of the room, she found that all the things were scattered in the room and the window affixed on the back side wall was also broken. However, it has been pointed out by Ld. Defence Counsel that photograph of the said window reflects that the same has not been broken, infact it has been removed altogether so as to falsely portray a scene of lurking house- trespass or house-breaking.
This Court finds force in the submission of Ld. Defence Counsel as upon perusal of the photographs of the said window placed on record, it can be Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:40:54 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 21 of 26 observed that glass of said window is missing, however, the glass does not appear to be broken, infact, it appears to have been completely removed altogether. As regards the other photographs of the room of complainant placed on record, the same are distorted and nothing can be deduced upon bare perusal of the same. The same further weakens the case of the prosecution and makes the version of the prosecution highly doubtful.
31. It is also pertinent to note that PW2/complainant, during her cross-
examination by Ld. Defence Counsel, deposed that she had the bills of the stolen articles, however, the bills along with the articles were stolen. Furthermore, PW4 Ct. Bal Krishan, during his examination-in-chief, deposed that all the articles recovered from the possession of accused persons were identified by the complainant and claimed that they belonged to her. During his cross-examination by Ld. Defence Counsel, he deposed that he did not ask for receipts or bills of the articles identified by the complainant and that he did not know whether IO asked for the same or not.
The record does not show whether any TIP of the said articles was got conducted. Resultantly, the identity of the recovered articles itself becomes doubtful. Moreover, in the absence of any specific mark on the recovered articles to show that the articles belonged to the complainant, the factum of the articles, purportedly recovered from the accused persons, belonging to the complainant remains unproved even more so since no bills have been proved in the Court in respect of the articles in question in order to establish their ownership. Digitally signed SHIVLI by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:40:59 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 22 of 26
32. It has been argued by Ld. Defence Counsel that no public witness was joined by the IO during investigation of the present case and at the time of alleged recovery of the case property, despite their availability and thus, recovery of case property has been planted by the IO upon the accused persons at the instance of complainant. Reference is made to the testimony of PW4 Ct. Bal Krishan in support of his contentions. Perusal of his testimony reflects that during his cross-examination by Ld. Defence Counsel, he deposed that HC Azad asked public persons near the spots of recovery to join the investigation, but none agreed citing personal reasons. He further deposed that no notice was served upon public persons for not joining the investigation.
In the present case, admittedly, the places where recovery was effected from the possession of each accused were crowded residential areas and independent public persons would have been present there. However, no plausible explanation has been put forth by the prosecution for failure to join public witnesses during the investigation and specifically at the time of alleged recovery of case property from the accused persons, in compliance of section 100(4) Cr.P.C., despite their availability. The same brings the seizure under a cloud of doubt.
Reference is made to the judgment in the case titled as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC) wherein the Hon'ble High Court of Delhi observed that, "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 Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.08 17:41:06 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 23 of 26 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 shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeeeprs 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".
This Court is of the considered opinion that in order to lend credibility to the prosecution case and to ensure transparency and fairness during search and seizure, some independent witness should have been associated by the IO at the time of alleged recovery of case property from the accused persons. However, no sincere efforts were made by the IO to persuade any public witness to join the investigation and admittedly, no written notice was served upon any of the public persons. It has also not been mentioned as to what action was taken against those persons who refused to join the investigation.
33. In the present case, the accused persons have been charged for commission of offences u/s 457/380/34 and 411 IPC and to connect the accused persons with the said offences, all the ingredients of the said offences have to be proved beyond shadow of doubt. Initially, the onus to prove its case is on the prosecution, therefore, it was the duty of the prosecution to prove that the accused persons committed lurking house-trespass or house- breaking by night into the dwelling house of complainant wherein they SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:41:13 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 24 of 26 committed theft and thereafter, they got the case property recovered.
34. Upon a bare perusal of the testimony of the star witness of the prosecution PW2/complainant Smt. Madhu, nothing substantial and convincing against the accused persons has come on record and there is no eye witness cited by the prosecution to prove its case against the accused persons for the alleged offences u/s 457/380/34 IPC.
As far as the offence u/s 411 IPC is concerned, although recovery of case property has been alleged to have been effected from the possession of accused persons but the ownership of the recovered articles has not been established by the complainant as no bill/ receipt of the same has been proved by her. Furthermore, no public person apart from the complainant herself has witnessed the alleged recovery of the stolen articles from the possession of accused persons. Even if the sole testimony of complainant regarding the alleged recovery is believed to be trustworthy, the fact that ownership of the said articles has not been proved by the complainant casts a serious dent on the prosecution story and thus, possession of the said articles with the accused persons cannot be treated as possession of stolen articles.
35. In light of the discussion made above, it can safely be concluded that in the present case, the evidence on record is not at all sufficient to bring home guilt of the accused persons beyond all reasonable doubts. It is a settled proposition of law that the accused should not be convicted in doubtful circumstances. It is also a settled proposition of law that if there are two views possible, the view favourable to the accused has to be SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.08 17:41:19 +0530 FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 25 of 26 accepted. Thus, in such circumstances, the accused persons cannot be held liable for the offences with which they have been charged. Accordingly, accused persons namely Ajay, Guddu and Vipin @ Chintu are acquitted for the offences u/s 457/380/34 and 411 IPC.
36. The bail bonds, if any, furnished by the accused persons at the time of commencement of trial stands cancelled. Sureties, if any, stand discharged. Documents, if any, shall be returned to its rightful owner as per rules. Endorsement, if any, stands cancelled. Case property, if any, shall be disposed of as per rules after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to the record room after due compliance.
Digitally signed SHIVLI by SHIVLI
TALWAR
ANNOUNCED IN OPEN COURT
on : 08.03.2022
TALWAR Date: 2022.03.08
17:41:24 +0530
(SHIVLI TALWAR)
MM-06(C)/THC/Delhi/08.03.2022
FIR No. 158/2013 PS Civil Lines State VS Ajay & Ors. Page No. 26 of 26