Delhi District Court
Criminal Case/93/2001 on 18 March, 2011
IN THE COURT OF SHRI NARESH KUMAR LAKA
METROPOLITAN MAGISTRATE,
DWARKA DISTRICT COURTS, DELHI
F.I.R. No. 93/01
Police Station: Najafgarh
under Section 380 and 411 IPC
(a) Serial number of the case : 02403RO094052003
(b) Date of commission of the : 23.02.2001
offence
(c) The name of the complainant : Sh. Rajesh Kathuria S/o Sh.
Harbans Lal Kathuria R/o
1401, Palam Vihar,
Gurgaon, Haryana
(d) The name of the accused : Kalu @ Kalwa S/o Late Sh.
persons/s his parentage and Chanderpal R/o B Block
residence PartI, near Railway line,
Prem Nagar, Nangloi,
police station Sultanpuri,
Delhi.
(e) The offence complained of or : Under Section 380 and 457
proved IPC.
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Convicted under Section
411 IPC and acquitted
under Section 380 and 457
IPC
(h) The date of such order : 18.03.2011
(i) In all cases in which an appeal : A brief statement of the
lies reason for the decision as
follows:
Police case was instituted on: 28.04.2001
Final arguments were advanced on: 01.03.2011
Judgment is announced on: 18.03.2011
JUDGMENT
Briefly stated, the facts of the case of prosecution are that in the intervening night of 23.02.01 and 24.02.01 FIR No. 93/2001 PS Najafgarh page 1 of 8 between 08:30 PM to 9 AM at plot no. 191, Nangli Sakrawati, Najafgarh, accused alongwith his associate in furtherance of their common intention dishonestly entered in the aforesaid premises by breaking open its lock on the rear door and took away 40 cartons of stitched clothes of complainant. Furthermore, on 27.02.01, accused was found in possession of part of the stolen property at Dichaon Kalan, DTC depot and was arrested and an iron rod was recovered.
2. On appearance of the accused person, a charge for offences under Section 380 and 457 IPC was framed against the accused person to which accused pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution examined eight witnesses, namely:
PW1 Ct. Naresh PW2 Sh. Rajesh Kathuria PW3 Ct. Vijender PW4 Sh. Nanak Chand PW5 Ct. Ramesh Kumar PW6 WHC Pavitra PW7 HC Mahavir Singh PW8 Ct. Naresh
4. Statement of accused under Section 313 Cr.P.C was recorded. Accused examined two witnesses in his defence as Sh. German (DW1) and Sh. Gyan Prakash (DW2).
5. I have heard Assistant Public Prosecutor for the State and accused. File perused.
FIR No. 93/2001 PS Najafgarh page 2 of 8 DEPOSITION OF PROSECUTION'S WITNESSES
6. The prosecution examined total eight witnesses. PW2 Sh. Rajesh Kathuria/complainant deposed that on intervening night of 23/24.02.01, he closed his garment factory at 6 PM. The factory was being run at 191, Nangli Sakrawati, Najafgarh and on next day through a telephonic message given by his employee Sh. Surender, PW2 reached his factory and saw that back side door's lock was broken and 40 boxes were stolen from the factory. He called the police and his statement was recorded as Ex. PW2/A. He further stated that after two days of the incident, the police called him and said that some recovery has been effected. He was shown one or two boxes which he identified as part of case property which were stolen from his factory. Same was seized vide seizure memo which bears his signature. The recovered case property was produced in the court which was correctly identified by PW2.
7. PW1 Ct. Naresh Kumar deposed that on 27.02.2011, he was posted as Constable and he alongwith Rajesh Kathuria went to spot where accused was coming from Jal Vihar side having a bag in his possession whose name, he came to know as Kalu. Accused was apprehended and when the bag was checked it was found containing 50 pieces of stitched cloth. Accused disclosed that the said clothes were stolen from a factory. The clothes were sealed with the seal of MS. Accused was arrested by the arrest memo Ex. PW1/B. Despite making search, the other accused persons and the remaining case property was not traced out.
FIR No. 93/2001 PS Najafgarh page 3 of 8
8. PW3 Ct. Bijender deposed that on 27.02.01, he alongwith Ct. Mahavir, Ct. Naresh, Ct. Ramesh and complainant Sh. Rajesh reached at DTC depot, Dichaon village where one raiding party was constituted on the basis of a secret information. Thereafter, they reached at a bridge of Jal Vihar where one person was found with some clothes which were suspected to be stolen property. At the spot at the instance of secret informer, accused (who was present in the court) was apprehended. Accused was carrying one box on his right hand shoulder and the box was checked and it was found containing 50 pieces of clothes and same were identified by complainant. Disclosure statement of accused was recorded. The case property was identified by PW3.
9. PW4 Sh. Nanak Chand deposed that he was posted at Crime Team at R.K.Puram and on 22.02.01, on receiving of a call, he reached alongwith team at the spot i.e 191 Nangli Sakrawati village, Factory Industrial area. PW4 further stated that he thoroughly seen the scene of crime and developed two chance prints by gray order on the wooden door and searched miscellaneous articles but only chances were found. He made his report which is Ex. PW4/A.
10. PW5 Ct. Ramesh Kumar corroborated the statements of PW1 and PW3. PW6 WHC Pavitra deposed that she was posted as Duty Officer at police station Najafgarh and on receiving of a rukka, she registered the present FIR.
11. PW7 HC Mahavir deposed that on 24.02.01, on receiving of a DD No. 15 A, he went to the spot where one Sh.
FIR No. 93/2001 PS Najafgarh page 4 of 8 Ramesh met and he recorded his statement after inspection of the spot. He further stated that he got the present case registered from Ct. Ramesh and he also joined the investigation on 27.02.01 when accused was arrested alongwith part of the stolen articles. PW8 Ct. Naresh further proved the case property which is recovered from the possession of accused.
DEFENCE OF THE ACCUSED
12. In the statement of accused recorded under Section 313 Cr.P.C, the accused denied the entire evidence and stated that he has been falsely implicated in the present case at the instance of coaccused Bunty who was his friend. It is also stated that he was taken from Nangloi by the police from his home at the instance of Bunty who was not arrested. Accused further stated that he is innocent and falsely implicated and nothing was recovered from his possession. Accused also examined two witnesses, namely, Sh. German as DW1 and Sh. Gyan Prakash as DW2.
13. DW1 Sh. German deposed that when he reached Prem Nagar he saw that police official took accused Kalu and he does not know from which vehicle, the police lifted Kalu. He also stated that he does not know anything else in the present case.
14. DW2 Sh. Gyan Parkash deposed that house of accused is situated in front of his shop and he saw that so many public persons gathered at the house of accused Kalu. Therefore, he reached to the house of Kalu and saw that 3 / 4 FIR No. 93/2001 PS Najafgarh page 5 of 8 police lifted Kalu from his house.
ARGUMENTS OF THE PARTIES AND APPRECIATION OF EVIDENCE
15. In the instant case, a theft of 40 boxes containing stitched clothes from the factory of complainant took place by breaking the lock of a back side door. Out of total case property, only one box was recovered from the possession of accused Kalu. The charge was framed against accused for offences under Section 380 and 457 IPC. From the evidence brought on record by the prosecution, it is evident that none of the witness was the eye witness when the theft took place. During the course of investigation, a crime team was also called who took chance prints from the spot. PW4 Sh. Nanak Chand also filed his report about the chance print as Ex. PW4/A. From the investigation, it is also apparent that a dog squad was also called. Despite the chance prints filed on record, prosecution has not proved that the chance prints or other impressions matched with the finger prints or other impressions of accused Kalu. It is clear from the evidence on record that even no efforts were made by the investigating agency to compare the chance prints with the specimen impressions of accused. There is no other evidence on record to link the accused Kalu with the commission of offence of theft. From the deposition of PW5, it came on record that one iron rod was recovered from the possession of accused but the prosecution again failed to show any link or connectivity with the iron rod used as the weapon for breaking open the lock of the factory of complainant. Accordingly, keeping in view the FIR No. 93/2001 PS Najafgarh page 6 of 8 aforesaid facts & circumstances, I hold that the prosecution has failed to prove offences under Section 380 and 457 IPC.
16. However, prosecution has brought on record sufficient evidence to prove that one of the boxes of the stolen articles was recovered from the possession of accused Kalu. The recovery of stolen property is proved not only by complainant but also by other three police officials. Accused was also identified at the time of evidence. Complainant and other witnesses also identified the stolen articles. Accused examined two witnesses but none of the witnesses deposed anything to disbelieve the trustworthy evidence of prosecution witnesses. DW1 simply stated that police took accused Kalu. In his cross examination, he did not say as to what was the date, month and the year when the accused Kalu was taken by police. DW2 has also not stated any exact date when accused Kalu was taken by the police. As such, evidence of DW1 and DW2 is general in nature and did not relate to the present incident. Despite cross examination of the prosecution witnesses, nothing came on record to disbelieve the testimony of all the prosecution witnesses.
17. Keeping in view the aforesaid facts & circumstances of the present case, I hold that the prosecution has rpved the offence under Section 411 IPC against accused for possessing part of stolen property i.e one box containing 50 pieces of stitched clothes belonging to complainant. Accordingly, accused is convicted for offence under Section 411 IPC only. Accused is acquitted for offences under Section 380 and 457 IPC.
FIR No. 93/2001 PS Najafgarh page 7 of 8
18. Put up for arguments on point of sentence on 21.03.2011.
Announced in the open court
on 18.03.2011 (Naresh Kumar Laka)
Metropolitan Magistrate
Dwarka District Courts
FIR No. 93/2001 PS Najafgarh page 8 of 8