Interim Order 12

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. NIDHI BALA, JUDICIAL MAGISTRATE
FIRST CLASS-05, CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
Presided By Ms. Nidhi Bala
DLCT020422462025
IN RE:
State Through Ld. APP for the State Sh. Manish Bansal
Vs.
Danish Abbasi Through Ld. LADC Sh. Darshnik Narang
E-FIR No.: 80065111/2025
PS : Darya Ganj
1. Cr. Case No. : 13053/2025
2. E-FIR No. : 80065111/2025
3. Police Station : Darya Ganj
4. Date of commission of offence : 09.07.2025
5. Date of Institution of case : 06.09.2025
6. Name of the Complainant : Anis Hasan
7. Name of the Accused : Danish Abbasi S/o Abdul Rahim
R/o. H No. 112, Kala Mahal,
Darya Ganj, Delhi.
8. Offence complained of : Sec.303(2)/317(2) BNS 2023.
9. Offence charged for : Sec.305(a)/332/317(2) BNS 2023.
10.Plea of accused : Pleaded not guilty
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 1 of 10
-- 1 of 10 --
11. Final Order/Judgment : Convicted for the offence punishable
under section 317(2) BNS 2023 and
Acquitted for the offence punishable
under section 305(a)/332 BNS 2023.
12. Order/ Judgment pronounced on : 30.09.2026
JUDGMENT
1. Brief statement of facts : On 11.07.2025, complainant Anis Hasan got
registered an online FIR regarding the theft of the copper pipe, copper wire and
condenser of the outdoor unit of his AC installed on the terrace of his house.
Thereafter, the complainant was joined in the investigation and the CCTV
footage of the CCTV cameras available near the spot was checked and in the
CCTV footage available, the accused could be seen inside the premises and
committing theft. The said CCTV camera belonged to Mohd. Kashif Khan R/0
5th floor of the same building who provided the footage to the IO in the pen
drive alongwith certificate under section 63 of BSA 2023. The statement of the
complainant was recorded wherein he stated that he resides at the given address
with his family and retired from service at University and that he had installed
an outdoor machine of his AC make Daikin Split AC. He further stated that on
09.07.2025, his AC was not getting on and that at about 09:30 am, when he
checked on the terrace then he found that the copper pipe of the outdoor
machine of his AC, copper wire and condenser were stolen regarding which he
had got registered the online FIR on 11.07.2025. The complainant also checked
the CCTV footage available wherein the accused was clearly seen committing
theft and taking away the stolen property.
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 2 of 10
-- 2 of 10 --
2. Investigation, Cognizance and charge.
2.1. After the registration of FIR, during the investigation IO had
arrested the accused Danish in the case FIR No. 209/2025 PS Daryaganj who
gave his disclosure statement regarding his involvement in the present matter
and thereafter he was formally arrested in the present matter as well by the IO.
After his arrest in the present matter, the accused got recovered the stolen case
property at his instance from the bushes near Rajghat. After the completion of
investigation, chargesheet was filed against the accused Danish Abbasi in the
court on 06.09.2025. Ld. Predecessor took the cognizance of the offence
mentioned in the chargesheet and the copy of the chargesheet was supplied to
the accused in compliance with Section 230 BNSS. Upon finding prima facie
case against the accused, charges for the offence punishable Under Section
305(a)/332/317(2) BNS 2023 waere framed upon the accused to which he
pleaded not guilty and claimed trial.
3. Prosecution evidence.
3.1. During the trial, the prosecution examined 03 witnesses to prove its case
against the accused beyond reasonable doubt.
3.2. The accused admitted the genuineness, without admitting the truth
of contents, of certain documents and facts under Section 330 BNSS such as
registration of the E-FIR(Ex. AD-1), certificate under section 63(4) BSA w.r.t.
FIR(Ex. AD-2), certificate under section 63(4)(C) BSA w.r.t. CCTV
Footage(Ex. AD-3), Copy of FIR(Ex. AD-4), GD No.76 (Ex.AD-5), the factum
of deposit of case property in PS Malkhana and the record of the case FIR
No.209/2025 PS Daryaganj to be produced by Ahlmad and consequent thereto,
the relevant witnesses were dropped from the list of prosecution witnesses
vide order dated 09.09.2025
3.3. PW1/ Anis Hasan i.e. the complainant deposed in the court that he
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 3 of 10
-- 3 of 10 --
resides on the given address with his family and that in the said property, he has
installed two Daikin AC. He further deposed that on 09.07.2025, when he
switched on the AC, the same was not found functional and thereafter he went
upstairs on terrace to check the same and found that the outdoor unit of the AC
alongwith its copper wire had been stolen. Thereafter, on 11.07.2025, he
registered the online FIR. He further deposed that IO recorded his statement Ex.
PW1/A and prepared the site plan at his instance Ex. PW1/A. He further
deposed that on the 5th floor, Md. Kashif Khan resides and during the course of
investigation, he alongwith IO checked the CCTV footage of the cameras
installed by him and in the footage, one person who is accused in the present
case was seen committing the present offence. He further deposed that Md.
Kashif handed over the CCTV footage to the IO alongwith certificate under
section 63(4) of BSA and IO seized the footage. He correctly identified the
accused in the court. He also identified the recovered case property in the court
Ex. P1.
The said witness was cross-examined on behalf of the accused during
which he stated that he does not have the bill of the case property. He further
stated that he himself had seen the CCTV footage which Kashif had handed
over to IO. He initially admitted that the accused cannot be seen carrying the
case property in the CCTV footage, however he again said that the accused can
be seen carrying AC parts in the CCTV footage.
3.4. PW2/Ct. Suresh deposed in the court that on 11.04.2025 he was posted as
constable at PS Daryaganj and on that day, he joined the investigation of the
present case with the IO/HC Manish Kumar. He further deposed that IO arrested
the accused in the FIR No. 209/2025 PS Daryaganj and recorded his disclosure
statement Ex. PW2/1 and in the said matter, the accused disclosed about the
commission of offence of the present matter. Thereafter, IO arrested the accused
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 4 of 10
-- 4 of 10 --
in the present matter vide memo Ex. PW2/A and also recorded his disclosure
statement in the present matter. He further deposed that thereafter accused took
them to the spot i.e. 1676-77, 4th floor, Kucha Dakhni, Rai Daryaganj and
pointed towards the AC installed and thereafter he took them to the bushes at
Rajghat Depot from where, they recovered the case property i.e. copper wire,
copper pipe and condenser. Thereafter, IO sealed the same with the seal of MS
and prepared the seizure memo Ex. PW2/C and also prepared the recovery site
plan Ex. PW2/D. He further deposed that IO recorded his statement. He
correctly identified the accused as well as case property in the court Ex. P1
The said witness was cross-examined on behalf of the accused during
which he admitted that no public person was joined in the investigation at the
time of recovery of the case property despite it being a crowded place. He
further admitted that no photography/videography was done at the time of
recovery. He further stated that no public person was joined in the investigation
at the time of preparing the pointing out memo and that no seal handing over the
memo was prepared.
3.5. PW3/IO HC Manish Kumar deposed in the court that on 11.07.2025 he
was posted as HC at PS Daryaganj and on that day, E-FIR was registered
regarding theft and the investigation was marked to him. He further deposed
that he recorded the statement of complainant Ex. PW1/A and went to the spot
where he prepared the site plan Ex. PW1/B at the instance of the complainant.
He further deposed that during the investigation, he seized the CCTV footage of
the incident vide seizure memo Ex. PW3/A. He further deposed that he had
arrested the accused in the case FIR no. 209/2025 PS Daryaganj and recorded
his disclosure statement therein Ex. PW2/1 wherein he disclosed about the
commission of the offence in the present matter. Thereafter, he arrested the
accused in the present case vide memo Ex. PW2/A and he also recorded the
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 5 of 10
-- 5 of 10 --
disclosure statement in the present case vide memo Ex.PW3/B. He further
deposed that thereafter, the accused took them to the spot i.e. 1676-77, 4th floor,
Kucha Dakhni, Rai Daryaganj and pointed towards the AC installed and
thereafter he took them to the bushes at Rajghat Depot from where, they
recovered the case property i.e. copper wire, copper pipe and condenser at the
instance of accused. Thereafter, he sealed the same with the seal of MS and
prepared the seizure memo Ex. PW2/C and also prepared the recovery site plan
Ex. PW2/D. He further deposed that he recorded the statements of witnesses
and after completing the investigation of the present case, he prepared the
chargesheet and filed before the court. He correctly identified the CCTV footage
in the court EX. D1 and also correctly identified the accused in the CCTV
footage seen carrying the stolen property outside the premises. He also
identified the case property in the court Ex. P1.
The said witness was cross-examined on behalf of the accused during
which he admitted that no public person was joined in the investigation at the
time of recovery of the case property despite it being a crowded place. He
further admitted that no photography/videography was done at the time of
recovery. He further stated that no public person was joined in the investigation
at the time of preparing the pointing out memo and that no seal handing over the
memo was prepared.
4. Statement of accused under section 313 r/w section 281 Cr.P.C and
Defence Evidence:
4.1. Statement of accused under section 313 or section 281 Cr.P.C, 1973
was recorded without oath on 30.06.2026 wherein all incriminating evidence
were put to him to which he replied that he is innocent and that he has been
falsely implicated in the present case and that witnesses have deposed falsely
against him and that no case property was recovered from him and that the case
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 6 of 10
-- 6 of 10 --
property is planted upon him. The accused did not lead evidence in his defence
despite opportunity, hence DE was closed.
5. Final arguments heard on behalf of the accused as well as the State.
5.1. Ld. APP for the State argued that the prosecution has been successful in
proving the charges against the accused by leading oral as well as documentary
evidence. He further submitted that the testimony of the prosecution witnesses
have been intact even during the cross-examination and has not been shaken to
create any doubt. He further submitted that all the ingredients of the charged
offence have been proved by the prosecution and the accused is liable to be
convicted.
5.2. Per Contra, Ld. LADC for the accused argued that there is no cogent and
substantive evidence came on record against the accused since the complainant
admittedly did not see the accused committing the offence nor there is any other
eye witness. He further submitted that the case property has been planted upon
the accused since the recovery of the case property is not videographed. He
further submitted that the CCTV footage wherein accused can be seen
committing the offence is not proved as per the provision of law since the
certificate filed under section 63 of BSA w.r.t. The CCTV footage is not having
the hash value as per the requirement of the format provided in the schedule of
the BSA. He further submitted that admittedly there is no independent public
witness to corroborate the case of the prosecution. He further submitted that
prosecution has failed to prove its case against the accused beyond reasonable
doubts. He further argued that the benefit of doubt must be given to the accused
and he be acquitted of all charges against him.
5. Ingredients of the Offence Involved and the appreciation of evidence
came on record thereto.
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 7 of 10
-- 7 of 10 --
5.1. Section 305 BNS: Theft in a dwelling house, or means of
transportation or place of worship, etc.:- Whoever commits theft
(a) in any building, tent or vessel used as a human dwelling or used for the
custody of property; or
(b) ...……
shall be punished with imprisonment of either description for a term
which may extend to seven years and shall also be liable to fine.
5.2. Section 332 BNS : House-trespass in order to commit an
offense.: Whoever commits house-trespass in order to the committing of any
offence-
(a) punishable with death, shall be punished with imprisonment for life, or with
rigorous imprisonment for a term not exceeding ten years, and shall also be
liable to fine;
(b) punishable with imprisonment for life, shall be punished with imprisonment
of either description for a term not exceeding ten years, and shall also be liable
to fine;
(c) punishable with imprisonment, shall be punished with imprisonment of
either description for a term which may extend to two years, and shall also be
liable to fine:
Provided that if the offence intended to be committed is theft, the term of
the imprisonment may be extended to seven years.
5.3. Section 317 BNS: (1) Property, the possession whereof has been
transferred by theft or extortion or robbery or cheating, and property which has
been criminally misappropriated or in respect of which criminal breach of trust
has been committed, is designated as stolen property, whether the transfer has
been made, or the misappropriation or breach of trust has been committed,
within or without India, but, if such property subsequently comes into the
possession of a person legally entitled to the possession thereof, it then ceases to
be stolen property.
(2) Whoever dishonestly receives or retains any stolen property,
knowing or having reason to believe the same to be stolen property, shall be
punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
(3) …………..
5.4. The testimony of the prosecution witnesses have been intact and have not
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 8 of 10
-- 8 of 10 --
been shaken enough despite cross-examination to the extent that it may create
reasonable doubt in the story of the prosecution. However, as a matter of record,
the certificate under section 63(4)(c) of BSA 2023 Ex. AD-3 attached with the
CCTV footage wherein accused can be clearly seen committing the charged
offence is not having the hash value as mandated by the law, hence not proved
by the prosecution. As a matter of further record, there is no eye witness
examined by the prosecution who must have seen the accused entering the
house of the complainant/PW1 and committing the offence of theft by stealing
the case property belonging to the complainant/CW1. However, the recovery of
the stolen property is made at the instance of the accused by PW2/Ct. Suresh
and PW3/HC Manish Kumar and their testimony to this effect is not shaken
despite their cross-examination. In my opinion, not joining the public witness at
the time of recovery of the case property at the instance of the accused after his
disclosure statement is not fatal to the prosecution since defence has failed to
impeach the credibility of the police witnesses who have made the recovery of
the stolen property from the place which was not in their knowledge unless the
same was revealed by the accused in his disclosure statement. Moreover, the
recovery of the case property is effected within the short span of time after its
theft. Hence, the presumption of section 114(a) of the Indian Evidence Act,
1872 may be drawn in favour of the prosecution and against the accused which
says that the Court may presume -that a man, who is in possession of stolen
goods soon after the theft is either the thief or has received the goods knowing
them to be stolen, unless he can account for his possession. The accused has not
been able to disprove the fact of the recovery of stolen property which has been
duly proved by the prosecution.
5.5. As far as public witness is concerned, this court is of the opinion that the
non-examination of the independent public witness despite its availability may
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 9 of 10
-- 9 of 10 --
be fatal to the prosecution in view of lack of corroboration if the testimony of
the prosecution witnesses does not inspire confidence or raises doubt, however
in the present matter nothing could be transpired by the defence from the
testimony of the prosecution witnesses by way of their cross-examination which
raises doubt in the story of the prosecution and the testimony of its witnesses.
Decision
6. In view of the aforementioned observation, the prosecution has failed to
prove the ingredients of section 305(a)/332 BNS 2023 against the accused
beyond reasonable doubts in view of the lack of cogent and substantive
evidence, however successfully proved its case against the accused for the
offence punishable u/s 317(2) BNS 2023 by satisfying the essential ingredients
of the offence by bringing on record cogent and incriminating evidence to prove
the guilt of the accused for the said offence. Accordingly, accused Danish
Abbasi is hereby found not guilty and he is acquitted for the offence
punishable under Section 305(a)/332 BNS 2023, however he is hereby found
guilty and he is convicted for the offence punishable under Section 317(2)
BNS 2023.
Announced in Open Court on 30.09.2026
(NIDHI BALA)
JMFC-05/CENTRAL
TIS HAZARI COURT/DELHI
30.09.2026
(This judgment contains 10/ Ten signed pages.)
E-FIR No. 80065111/2025 PS Darya Ganj State Vs. Danish Abbasi Page no. 10 of 10
-- 10 of 10 --