Delhi District Court
State vs . Jitender on 18 September, 2018
IN THE COURT OF SH. KISHOR KUMAR, MM-03, SOUTH WEST DISTRICT, ROOM NO.11, DWARKA COURTS, DELHI. FIR No. : 342/11 U/s : 380/411 IPC P.S. : Najafgarh State Vs. Jitender JUDGMENT:
a) Sl. No. of the Case : 429332/2016
b) Name & address of the : Ram Niwas
complainant. S/o Late Sh. Sita Ram
R/o H.No.40, Ajay Park, Najafgarh,
New Delhi.
c) Name & address of : Jitender S/o Sh. Roshan Lal
accused R/o H.No. 26, Ajay Park, Najafgarh
New Delhi.
d) Date of Commission of : 08.10.2011
offence
e) Offence complained of : U/s 380/411 IPC
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted h) Date of such order : 18.09.2018 Date of Institution : 25.10.2013 Final arguments heard on : 18.09.2018 Judgment Pronounced on : 18.09.2018
BRIEF STATEMENT OF REASONS FOR DECISION: - FIR No: 342/11 state v. jitender Page No.1/12
1. Briefly stated, case of the prosecution is that on or before 08.10.2011, at House No. RZ-26, Ajay Park, New Bazaar, Najargarh, New Delhi, accused committed theft of household articles i.e. two single bed, one charpai, one fridge, one washing machine, one aluminium stair, one table fan, six plastic chairs of grey color, one aluminium tub, two sofa, one dressing table of wood, one table, one cylinder gas with chullah, some cloth and utensils from the house of complainant Sh. Ram Niwas. Police recorded statement of complainant. On the basis of statement of the complainant, present FIR was registered and investigation was carried out. During investigation, on 05.11.2011, accused was found in possession of stolen property belonging to the complainant.
2. After investigation, challan for offences punishable U/s 380/411 IPC was filed. Compliance of Section 207 Cr.P.C was done.
FIR No: 342/11 state v. jitender Page No.2/12
3. Charge for committing the offence punishable under section 380/411 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as four witnesses.
5. PW1 Sh. Ram Niwas is the complainant. He deposed that he purchased house No. RZ-26, Ajay Park, Najafgarh, Delhi from Roshan Lal and the said plot was in the name of his wife Smt. Sona Devi, for an amount of Rs.27.0 lakhs and there was an agreement between PW1 and Sona Devi that Roshan Lal and Sona Devi would reside at the first floor as a tenant. PW1 kept goods of household at ground floor. One civil dispute started between PW1 and Sona Devi, pending before Delhi High Court. On 08.10.2011, when PW1 was passing through his said house, he saw that the light of his house was switched on. He dialed 100 number and called the police. PCR staff came and opened the ground floor and FIR No: 342/11 state v. jitender Page No.3/12 found that the cylinder, gas, washing machine, fridge, clothes, utensils, sofa, dressing table and other household articles were missing. Local police came and recorded statement Ex. PW1/1 of PW1. IO prepared the site plan Mark 1/A. PW1 identified the case property Ex. P1 and the photographs Ex. P2.
6. PW2 Ct. Karamvir Singh joined the investigation with IO PW4 SI Gajender. On 08.10.2011, on receipt of DD No.58B, PW4 along with Ct. Netrapal went to the spot ie. RZ-
26, Ajay Park, Naya Bazar, Najafgarh where he met complainant Ram Niwas and accused Jitender, and came to know a civil case is pending over property in question between both parties. Upon inquiry, only complainant was able to produce photocopies of his property documents. On 21.10.2011, on statement of complainant, PW4 prepared rukka Ex. PW4/A and got FIR registered. He prepared site plan Ex. PW4/B (earlier Mark 1/A) at the instance of complainant. PW4 made efforts for apprehension of accused FIR No: 342/11 state v. jitender Page No.4/12 and on 04.11.2011, accused was arrested vide memo Ex. PW2/1, his personal search was conducted vide Ex. PW2/2, recorded his disclosure vide Ex. PW4/C and also prepared pointing out memo vide Ex. PW2/3. One day PC remand of accused was obtained during which he got recovered the case property including utensils, clothes, one washing machine, one lehnga which were seized on 05.11.2011, vide seizure memo Ex. PW3/A.
7. PW3 HC Anil joined the investigation with IO SI Gajender and IO seized the case property vide memo Ex. PW3/A.
8. Accused admitted under section 294 Cr.P.C present FIR Ex. A-1.
9. After completion of prosecution evidence, all the incriminating evidence was put to the accused U/s 313 Cr.P.C and his explanation was recorded. He denied all the FIR No: 342/11 state v. jitender Page No.5/12 incriminating evidence against him. He stated that the house in question belonged to his mother and the complainant had put his belongings in their house. Some of the articles were got removed from their house with the help of police and some articles were still there. Ram Niwas was their neighbour. Accused further stated that his father had taken some money from the complainant, but his father could not repay him. As security the complainant had taken the property documents of their house No. RZ-26. The complainant had represented that he can get their house sold for a sum of Rs.27.0 lakhs. They agreed that he can get the house sold for Rs.27.0 lakhs and can deduct his Rs.3.0 lakhs and to pay them Rs.24.0 lakhs. However, no sale of the house took place. They are still in the possession of the said house.
10. I have heard Ld. APP for the State, Ld Counsel for accused persons and have carefully gone through the FIR No: 342/11 state v. jitender Page No.6/12 record.
11. In the present case, accused has been charged for offence u/s 380/411 IPC. However, from the testimonies of witnesses hereinabove, particularly, that of complainant, nobody had seen the accused, stealing the articles of the complainant. Therefore, under the facts and circumstances of the case, the prosecution has not at all been able to prove the charge punishable u/s 380 IPC.
12. Now coming to Section 411 IPC, the complainant has been cross examined by Ld. counsel for accused. There the complainant has deposed that on 08.10.2011, he was passing through the aforesaid house to meet his friend Diwan, however, he did not remember his house number. The main gate of the said house was locked from inside. The height of the gate of the said house was about six feet. The said gate was made of small angles (jaliwala) so FIR No: 342/11 state v. jitender Page No.7/12 one see that the gate was locked from inside. PW1 did not remember the exact time when he called at No.100, but it was in the evening. Police reached at the spot within half an hour. The rooms in which the stolen articles of the complainant were kept were locked by him. The complainant along with his wife entered into the said room. Police also entered into the said room. The lock of the said rooms were opened when they reached there. The locks were hanging. The doors were opened.
13. In his further cross examination, PW1 has deposed that it is correct that near the place of incident, there were other residential houses and number of public persons gathered at the spot. The police remained at the spot for about 45 minutes. The complainant had put his articles in the said house about one and half month prior to the incident. He has admitted that a civil litigation was pending between him and mother of the accused. He FIR No: 342/11 state v. jitender Page No.8/12 further admitted that there was a case under section 354 IPC against the complainant, filed by wife of the accused.
14. The prosecution has relied on DD No.56B Ex. A-2 dated 08.10.2011. The said DD is with regard to jhagra (altercation) whereas the case of prosecution before the Court is of theft of the articles belonging to the complainant and its recovery allegedly from the possession of the accused. As a matter of record, it is seen that incident as alleged by the complainant is of 08.10.2011 whereas the FIR has been registered on the basis of complaint of the complainant Ex. PW1/1 on dated 21.10.2011. There is no plausible explanation coming from the prosecution side as to why the FIR was not registered soon after the incident dated 08.10.2011. Admittedly, the accused side and the complainant are in litigation in respect of the house from where it is alleged that accused stole belongings of the complainant. The FIR No: 342/11 state v. jitender Page No.9/12 wife of the accused also got lodged molestation case against the complainant in which he has been acquitted. On the other hand, the complainant seems to have got lodged the present case after due deliberation, resulting in the registration of the FIR on dated 21.10.2011 whereas the incident is dated 08.10.2011. There is no explanation of the delay.
15. It is further observed that the prosecution has not examined the wife of the complainant who also entered into the room from where the accused allegedly stole the belongings of the complainant. The police neither recovered the broken locks nor took their photographs. The complainant has further alleged that he had put his locks on the room in question but he never produced the keys of the locks which were allegedly broken by the accused. The complainant has also deposed in his cross examination that public persons had gathered at the spot, FIR No: 342/11 state v. jitender Page No.10/12 but no public person has been joined to the investigation by the IO.
16. In view of the above discussion, it is held that prosecution has not been able to prove its case against the accused beyond reasonable doubt for the reasons that there is no explanation for delayed registration of FIR, the DD No.56B is with regard to altercation and not of theft, the parties were already in litigation about the property in question, wife of accused also got lodged molestation case against the complainant, no public witness was joined to the proceedings, there is faulty investigation on the part of the IO that he did not take into possession or seized the alleged broken locks, nor took their photographs, the complainant did not produce the keys of the locks allegedly put by him on the rooms from where the accused is alleged to have committed the theft. At the time of recovery of alleged stolen articles, no public FIR No: 342/11 state v. jitender Page No.11/12 person was joined in the proceedings despite there being residential houses and presence of public persons. Resultantly, accused is acquitted of the charged offences.
Digitally signed KISHOR by KISHOR KUMAR KUMAR Date: 2018.09.19 15:20:21 +0530 Dictated & Announced in Open Court (Kishor Kumar) th
On the 18 day of September, 2018 MM-03/South-West/Delhi 18.09.2018 FIR No: 342/11 state v. jitender Page No.12/12