Final Order 9

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SHRI KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
Cr. Appeal No. 72/2024
CNR No. DLSH01-002586-2024
HARISH CHAND JAIN,
S/o Sh. Roop Chand Jain,
R/o 139, Choudhary Bharam Singh Marg,
Old Maujpur, Delhi-110053. ...Appellant
Vs.
1. STATE (NCT OF DELHI)
2. MEENA SHARMA,
W/o Lt. Sh. Parmanand Sharma,
H. No. 121, Main Road Maujpur,
Delhi-110053.
...Respondents
Present:- Sh. C M Bhardwaj., Ld. LAC for appellant along
with appellant.
Sh. Sobit, Ld. Addl.PP for the State/R1.
Sh. R K Mishra and Ms. Kavika, Ld. Counsels for
R2.
JUDGMENT
1. It is submitted by Ld. LAC for the appellant that he
has challenged the impugned judgment dt. 15.02.2024 in FIR No.
53/2009, PS Jafrabad passed by Ld. ACMM, Shahdara District,
KKD Courts, Delhi thereby acquitting the accused Meena
Sharma.
2. It is submitted by Ld. LAC for appellant that the
said impugned judgment is illogical, unjust, biased and based on
conjectures and surmises and deserves to be set aside. The
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judgment is based on the testimony of PW1 Liyakat Ali, who
turned hostile and DW1 accused Meena Sharma deposed in her
cross-examination that she knew Liyakat Ali, who was her tenant
for last 50 years and as such PW1 was an interested witness and
to remain in good books of landlady Meena Sharma, he turned
hostile and his testimony cannot be relied upon. PW1 stated in
his deposition that complainant vacated the premises in 2008, but
Meena Sharma in her statement u/s 313 Cr.P.C. stated that
complainant vacated the premises in April-May, 2009, which are
contradictory. Ld. Trial Court closed the opportunity to cross-
examine the complainant Harish Chand Jain considering his
conduct of seeking adjournment and did not consider that he was
70 years old and his examination in chief was recorded on
various dates and then matter was transferred to other ACMM,
but complainant could not be examined and his testimony would
have been completed, if the Ld. Trial Court allowed his evidence
post lunch on previous dates and it was misconceived that
appellant did not examined himself.
3. It is further submitted that on 30.06.2023, his
examination in chief was completed and he was exhausted and
cross was adjourned for next date on 20.07.2023 and the
appellant came, but went to the dispensary due to ill health and
he was referred to hospital and marked his attendance post lunch,
which was ignored by the Ld. Trial Court and his cross-
examination was not allowed in which he could have explained
his position and the judgment was passed due to which appellant
was prejudiced. The complainant did not file any application u/s
311 Cr.P.C. and such application by Ld. APP was dismissed by
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the Court and later, complainant filed an application u/s 311
Cr.P.C. dated 09.02.2024, which was dismissed by the Ld. Trial
Court without going through the factual details. The appellant did
not vacate the shop in April-May, 2019 and he occasionally
visited the shop during that period because of his father’s illness
and no notice of vacation was served and later, accused sent legal
notice dated 06.11.2009 as an afterthought, which was never
received by complainant and he came to know about it in Court.
PW4 IO admitted the collected list of stolen articles and also he
collected the rent receipts from the complainant.
4. It is further submitted that Ld. Trial Court acquitted
accused Meena Sharma on the ground that sole eye-witness of
prosecution supported the accused and there was no recovery of
stolen items and that complainant vacated the property on his
own and the co-accused Vijay Gujjar expired during trial.
5. Ld. Addl. PP for the State/R1 submits that the State
has not filed any appeal and the appeal may be decided as per the
facts and circumstances/evidence brought on record before the
Ld. Trial Court.
6. Ld. Counsel for R2 accused Meena Sharma opposed
the complaint/appeal and submitted that Judgment of Ld. Trial
Court was a judicious and legally sound one, which was passed
after hearing both the sides and appreciating the evidence
brought on record. R2 has filed the written submissions and
denied the contents of the present appeal being not maintainable
and that Ld. Trial Court gave ample opportunities to appellant,
who intentionally and deliberately and with motive to harass R2
did not support the Ld. Trial Court nor participated in filing the
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original documents and always linger on the proceedings and R2
defended the case for 15 years and the only eye witness Liyakat
Ali turned hostile and stated that appellant is habitual litigant,
who has filed many cases of similar nature against his landlords
to extort money. It is also submitted that there was an
unexplained delay of 24 days in lodging the FIR and appellant
himself vacated the tenanted premises without clearing the
arrears of rent and then, R2 served him legal notice and as a
counter-blast, he filed the present FIR to escape liability of rent
of Rs. 26,400/- and there is no document on record regarding the
incident of 18.11.2009. The appellant deliberately did not bring
original documents to delay the proceedings and his right to be
cross-examined was rightly closed and the complainant was
habitual of filing the transfer petition just to delay the matter and
appellant had not preferred any revision/appeal against the order
dated 20.07.2023 and the application of Ld. APP under 311
Cr.P.C. was rightly dismissed by Ld. Trial Court and it was the
complainant, who did not make himself available for his cross-
examination and as such the said judgment does not need any
interference.
7. I have heard the submissions and perused the record.
8. As per the case of prosecution, on 27.11.2009, ASI
Dinesh Bhargav received the complaint of Harish Chand Jain and
he reached the spot at Main Maujpur Road, New Titiksha Public
School, Shop No. 121. Complainant alleged that on 01.01.2005,
he rented a shop at Property No. 121 situated at Abadi Main
Road, Maujpur from one Parmanand Sharma at a monthly rent of
Rs. 2,200/- and he ran a firm M/s. Shilpi Enterprises where the
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printing ink and printing material was kept. After death of
Parmanand Sharma, Smt. Meena Sharma started taking rent, but
did not issue the receipt and the father of complainant got ill and
he had to look after him at the hospital and could not visit the
said shop and on 03.11.2009, Meena Sharma had broken open the
lock of the shop and took away the said material/articles worth
Rs. 1 Lakh and increased the shutter to some extent and she did
not give any notice to him and handed over the possession of said
shop to one Raj Kumar and when he complained to the police,
one Vijay Gujjar of Maujpur village used to threaten him by
visiting his house and to withdraw the complaint and on
18.11.2009, Vijay Gujjar threatened him and when he refused to
withdraw the complaint, he and his 3-4 associates had started
beating him and they all are associates of Meena Sharma, who
had helped her in breaking the lock and got his articles
disappeared.
9. On the said complaint, an FIR No. 53/2009, u/s
448/380/34 IPC dated 27.11.2009, Ex.A1 was registered at PS
Jafrabad against Meena Sharma and Vijay Gujjar. After
investigation, charge-sheet was filed against both the accused u/s
448/380/323/506/34 IPC. Then, charge was framed u/s
454/380/34 IPC against the accused persons on 19.03.2012 by
Ld. Trial Court and additional charge u/s 323/506 IPC was
framed against accused Vijay Gujjar. The case against co-accused
Vijay Gujjar abated vide order dated 01.08.2019 as he had
expired.
10. The prosecution examined five witnesses to prove
the case. PW1 Liyakat Ali deposed that he was resident of
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Mohanpuri, Delhi and was working as Carpenter in Shop No.
121, Purani Abadi, Main Road Maujpur, Delhi for the last 38
years and Harish Chand Jain had taken the shop on rent from
Parmanand, which was adjacent to his shop and Harish Chand
Jain was doing the work of printing press there and also used to
sell ink etc. used in printing press and he vacated the said shop in
2008 by delivering keys to Meena, who was wife of Parmanand
in his presence and also took his belongings from the said shop
when it was vacated.
11. PW1 was declared hostile and during the cross-
examination of Ld. APP, he denied the contents of his statement
u/s 161 Cr.P.C., Mark A and denied that he had not seen Harish
Chand vacating the shop on his own and it was informed to him
by someone and he also denied that he had not seen complainant
handing over keys to Meena Sharma and he had not seen
complainant taking away his belongings from the said shop and
also denied that he was deposing falsely at the instance of Meena
Sharma, being lady.
12. PW1 was not properly cross-examined by Ld. APP
and in his cross-examination, it is not mentioned that said facts
were recorded in his statement u/s 161 Cr.P.C., which were
denied by him and he was confronted with the same. Further, in
his cross-examination on behalf of accused, PW1 admitted that
police had not recorded his statement as per his version and he
also admitted the suggestion that complainant had filed several
cases against landlords in relation to the premises in which he
worked/resided as a tenant and further stated that he was of
quarrelsome nature.
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13. PW2 Harish Chand Jain deposed that he took the
said Shop No. 121 at Main Maujpur Road, New Titiksha Public
School on the rent of Rs. 2,200/- pm from Parmanand Sharma
along with Rs. 5 per unit electricity charge and landlord gave him
receipts of rent, Ex.P1 (OSR) and Ex.P2 (OSR) and the security
receipt, Ex.P3 (OSR) and on 06.04.2006, he registered his shop
at EDMC, Mark P4. On 03.11.2009 in his absence, accused
Meena Sharma broke the lock of shutter of said shop and had
stolen the articles of his shop i.e. printing ink and printing
material an he made complaint to the police, but no action was
taken and in the meanwhile, accused Meena Sharma and Vijay @
Gujjar pressurized and threatened him to withdraw the complaint.
On 18.11.2009 at about 10 PM, Vijay Gujjar and his associates
gave beatings to him and threatened to withdraw his complaint
and he was medically examined and Kalandara u/s 107/151
Cr.P.C. was booked and on 27.11.2009, he made complaint,
Ex.PW2/A as accused persons had stolen the article worth Rs. 1
Lakh and he never received any legal notice to vacate the said
shop and he brought the original documents, Ex.PW2/B to
Ex.PW2/Z1 and Mark X1 to Mark X9, which are bills.
14. PW2 had not brought the originals of all the
documents and despite giving opportunity, he did not bring the
same on the next dates and either he was absent or appeared late
or did not bring the documents required and on 12.04.2023, Ld.
Trial Court gave last and final opportunity to prosecution to
examine all the witnesses and issued fresh notice to PW2 Harish
Chand Jain through DCP and on 01.06.2023, he appeared but did
not bring the required documents and on 30.06.2023 also, he did
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not bring any original document and he could not explain why he
did not bring the original documents and why he did not hand
over the same to the IO during investigation and he could not
give any satisfactory reply and the documents produced by PW2
were marked i.e. Mark X1 to Mark X9 and Ld. APP was allowed
to ask some leading question to the witness wherein he admitted
that he was running the said shop in the name of M/s Shilpi
Enterprises and his printing ink and printing material was there in
the shop and he used to pay the rent to Meena Sharma after death
of Parmanand Sharma and he could not visit the said shop due to
illness of his father and on 03.11.2009, Meena Sharma had
broken open the lock and shutter of said shop and took the said
articles worth Rs. 1 Lakh and did not inform him and handed
over possession to one Raj Kumar and on 18.11.2019, Vijay
Gujjar with his associates threatened him to withdraw his
complaint and on refusal he was beaten and accused persons
forcefully dispossessed him from the said shop and her cross-
examination was deferred at his own request on 03.06.2023 and
on next date i.e. 20.07.2023, the complainant did not appear nor
his counsel appear despite repeated calls and it is mentioned in
the order-sheet dated 20.07.2023 that complainant was trying to
avoid to get his evidence completed and sought adjournments
and was not present for his cross and Ld. Trial Court considering
the conduct of complainant (PW2) closed the right of prosecution
to lead complainant Harish Chand Jain.
15. It is submitted by the appellant that the application
u/s 311 Cr.P.C. was filed by Ld. APP and appellant himself,
which were dismissed. Neither said order was challenged by
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State or appellant and the trial proceeded. The State or the
appellant had to challenge the said orders of dismissal of
application u/s 311 Cr.P.C. by Ld. Trial Court.
16. It is settled law that cross-examination is an
extension of examination in chief and accused should be given a
right to cross-examine and only then, when the cross-
examination is complete, the testimony of a witness can be read
into evidence, but in this case, since cross of PW2 was not
completed, his testimony cannot be read in evidence.
17. PW1 has categorically deposed that the complainant
Harish Chand Jain had taken his belongings from the said shop
when he vacated the same in the year 2008 and handed over keys
to accused Meena Sharma, in his presence. Thus, he is an eye-
witness of vacation of said shop as well as taking away of articles
by complainant on his own and his testimony seriously affect the
case of prosecution as he also disowned his statement u/s 161
Cr.P.C., Mark A and as per admission of PW1, complainant is
habitual of filing of such complaint against landlord and his two
statements were not recorded by the IO. It is not in dispute that
Harish Chand Jain was not the tenant of said Parmanand Sharma,
but there is no agreement of tenancy between Meena Sharma and
the complainant proved on record and the defence of accused
Meena Sharma was that complainant vacated the premises on his
own and took away his articles, which is corroborated by the
prosecution’s own witness PW1. No explanation is given by
complainant for not challenging the dismissal orders of
application u/s 311 Cr.P.C.
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18. There is no eye-witness examined by the
prosecution, who had seen accused breaking open the locks and
taking away the articles of the complainant and there is no CCTV
footage of the incident brought on record. Also, there is no CDR
of the accused showing her presence at the spot or her conspiracy
with others to get the said theft done at the said shop.
19. PW3 Anita Yadav is a witness of seizure of one
affidavit and advance receipt vide memo, Ex.PW3/A and that
accused Meena Sharma was arrested vide arrest memo,
Ex.PW3/B, but PW3 failed to identify accused Meena Sharma,
which raises serious question on her testimony and PW3
identified accused during cross-examination of Ld. APP when
leading question was put.
20. PW4 ACP Ved Prakash proved the seizure of two
rent receipts, Ex.P1 and Ex.P2 issued by Parmanand Sharma and
Meena Sharma to Harish Chand Jain, which were seized vide
seizure memo, Ex.PW2/ZJ and also proved the seizure memo,
Ex.PW3/A and also the other document, Ex.PW2/B to
Ex.PW2/ZS and Mark X1 to Mark X9 and other bills received by
PW4, Mark 2/X1. PW4 has not deposed that he had truly
recorded the version of PW1 during investigation as per the
statement given by him, rather only deposed that he recorded the
statement of Liyakat Ali, but said PW1 Liyakat Ali turned
hostile. PW4 proved the arrest of accused Vijay Gujjar, but he
has already expired. PW4 admitted in his cross-examination that
nothing was recovered from the possession of accused persons in
the present matter nor any broken locks were recovered.
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21. PW5 proved the rukka, Ex.PW5/A on the basis of
which FIR, Ex.A1 was registered and PW5 prepared site plan at
the instance of complainant, Ex.PW5/B, but the same is not
corroborated by PW2 complainant.
22. In her SA, accused denied the incriminating
evidence put to her and stated that complainant Harish Chand
Jain was tenant in her property and vacated the same in April-
May, 2009 and property was handed over to her vacant and no
goods of complainant were lying there and her version is
supported by PW1 Liyakat Ali and she was falsely implicated by
complainant.
23. The accused admitted the MLC of complainant,
Ex.A2 and the injury is simple in nature and the charges for the
same were framed against accused Vijay Gujjar, who has expired.
The affidavit, Ex.P4/PW2/A is of complainant, but that is of year
2006 and is not much relevant. Nothing has been recovered from
the personal search of accused persons.
Accused examined herself as DW1 and exhibited
the rent agreement dated 07.02.2025 between Parmanand Sharma
and Harish Chand Jain, Ex.DW1/A and tenancy was from
01.01.2005 for a period of 3 years i.e. it expired on 01.01.2008
and there is no rent agreement of continuation of the tenancy and
DW1 also proved the legal notice sent to complainant dated
06.11.2009, Ex.DW1/B that he did not pay rent for 1 year of the
tenanted shop, which shows that Meena Sharma had continued
the tenancy of complainant, but the same was revoked for non
payment of arrears of Rs. 26,400/-. DW1 gave one complaint to
Commissioner of Police dated 17.11.2009, Ex.DW1/C against
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complainant that complainant had gone somewhere after vacating
the shop No. 121, Main Maujpur Road, New Titiksha Public
School, Delhi and did not pay the rent and was in arrears of Rs.
26,400/- and threatened to kill her and her children and 6 months
back, he had taken all his articles and he wants to grab her shop.
One such complaint was given to the ACP concerned, Ex.DW1/6
and the photographs of the shop were produced, Ex.DW1/E, but
the same were not proved as per law. She got exhibited one
Kalandara, Mark DW1/X. In the cross-examination of DW1, she
did not give any satisfactory reply nor proved the said documents
as per law as there is no certificate u/s 65B of Indian Evidence
Act to prove, Ex.DW1/E, but no suggestion is given to DW1 that
no such complaint, Ex.DW1/C was made to the police nor it was
objected to by the State.
24. In
Ramesh & Anr Vs. State of Karnataka, 2024 [4]
JCC 2701, Hon’ble Supreme Court of India relied upon the
judgment of
Chandrappa and Others Vs. State of Karanataka,
2007 (4) SCC 415 wherein general principles culled out by
Hon’ble Supreme Court regarding the power of the appellate
Court while dealing with an appeal against a judgment of
acquittal have been mentioned. The principles read thus:
(1) An appellate Court has full power to review, re-appreciate
and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate Court on
the evidence before it may reach its own conclusion, both on questions of
fact and of law.
(3) XXXXXXXXXXX
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(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person be
presumed to be innocent unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and strengthened by the trial
Court.
(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate Court should not disturb the finding of
acquittal recorded by the trial Court.
25. In
Kailash Gour and Ors. Vs. State of Assam
reported in MANU/SC/1505/2011, Apex Court has observed that
an accused is presumed to be innocent till he is proved guilty
beyond a reasonable doubt is a principle that cannot be sacrificed
on the altar or inefficiency, inadequacy or inept handling of the
investigation by the police. The benefit arising from any such
faulty investigation ought to go to the accused and not to the
prosecution.
26. In
Subramanya Vs. State of Karnataka, dt.
13.10.2022, in Crl. Appeal No. 242/2022, Hon'ble Supreme
Court of India has held that it is settled principle of law that when
two views are possible from the prosecution evidence, the one
which is favourable to the accused shall have to be taken and the
benefit of doubt shall have to be given to the accused.
27. The Hon'ble Supreme Court has time and again held
that onus and duty to prove the case against the accused is upon
the prosecution and prosecution must establish the charge beyond
reasonable doubt. It is also a cardinal principle of criminal
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jurisprudence that if there is a reasonable doubt with regard to the
accused, the accused is entitled to benefit of doubt resulting in
acquittal of the accused. Reference may be made to the
Judgments titled as
'Nallapati Sivaiah Vs. Sub Divisional Officer,
Guntur', reported as VIII (2007) SLT 454 (SC) in this respect.
Reference may also be made to the Judgment titled as
'Raj
Kumar Singh @ Raju @ Batya Vs. State of Rajasthan', reported
as (2013) 5 SCC 722, wherein it was held that the large distance
between 'may be' true and 'must be' true, must be covered by way
of clear, cogent and unimpeachable evidence produced by the
prosecution, before an accused is condemned as a convict, and
the basic and golden rule must be applied and the Court must
ensure that miscarriage of justice is avoided and if the facts and
circumstances of a case so demand, then the benefit of doubt
must be given to the accused persons.
28. Thus, the prosecution could not prove beyond
reasonable doubt that it was the accused Meena Sharma, who had
broken open the locks of Shop No. 121, Main Road, Maujpur,
Delhi and took away the printing ink and material of the
complainant and also no recovery from the accused could be
proved or that she acted in furtherance of common intention with
co-accused Vijay Gujjar (abated) and PW1 Liyakat Ali turned
hostile in favour of complainant. consequently the charge u/s
454/380/34 IPC could not be proved.
CONCLUSION
29. Considering the above facts, this Court does not find
any infirmity in the order of Ld. Trial Court dated 15.02.2024
and accordingly, the present appeal of the appellant is dismissed.
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Copy of judgment be sent to Ld. Trial Court with
TCR and be uploaded on the website.
The appeal file be consigned to Record Room after
necessary compliance.
(Kumar Rajat)
ASJ-07/SHD/KKD Courts/Delhi
03.06.2025
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