Delhi District Court
1 State vs . Shri Prakash Dube on 13 April, 2009
1 State Vs. Shri Prakash Dube
IN THE COURT OF SH. LALIT KUMAR, M.M
KARKARDOOMA COURTS, DELHI
FIR NO : 220/98
P.S : Seema Puri
U/s : 380/411 IPC
State Vs. Shri Prakash Dube
JUDGMENT
1. Sl. No. of the case : 99/00
2. Date of institution of the case : 17.02.2000
2. Name of complainant : State
3. Date of commission of offence : 07.04.1998
4. Name of accused, parentage, and address : Shri Prakash Dube
s/o Sh. Ram Kewal Dube r/o
H.No. C-257, Lajpat Nagar, P.S.
Sahibabad, District Gaziabad, UP
5. Offence complained of or proved : u/s 380/411 IPC
6. Plea of guilt : Accused pleaded not guilty.
7. Final order : Acquitted
8. Date of such order : 13.04.2009
BRIEF REASONS FOR THE DECISION OF THE CASE
1. The case of prosecution in brief is that on 07.04.1998 at about 9.00 am at plot No. A-5/15, J.M.I Area, Delhi accused have committed theft of copper wires weighing around 10.600 kg from the factory of complainant Sh. Prem Prakash, and same was recovered from the Dickey of his scooter which he received or retained the same knowingly and having reason to believe the stolen property and thus thereby committed an offence punishable u/s 380/411 IPC.
2. After supplying of the documents to the accused, Ld. Predecessor vide his order dated 09.01.2002 framed a charges u/s 380/411 IPC against the accused to which he pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined four witnesses. After conclusion of all prosecution evidence statement of accused was recorded in which accused pleaded innocence. He pleaded that he was appointed in the year 1989 in the complainant's company, and asked his employer to increase his salary but after repeated request the complainant did not pay any heed upon this and avoided for about two years.
4. I have heard the arguments of Ld. APP for the State Sh. Vikas and accused and have perused the case file carefully.
5. To prove its case first witness examined by the prosecution is PW1, Sh. Kamal Kishore, he is the material witness in this case. He deposed that on 07.04.1998, he came in the office in the morning time, and found accused in doubt condition. He deposed that scooter of accused bearing no. DL7SF-8231 was parked inside the factory, and due to doubt he demanded accused to show the dickey of the same. He further deposed that dickey was opened, and two bundle of copper wire weighing around 10.600 kg was found. He called the owner of the factory, and produced the accused with recovered copper wire to him. It is deposed that accident took place at about 9.00 am. It is deposed that the owner called the police. PW1 has proved the seizure memo of copper wire and scooter Ex.PW1/A & Ex. PW1/B respectively. He has further proved the arrest memo of accused Ex.PW1/C, and disclosure statement Ex.PW1/D. He has identified the case property Ex.P1. Ld. Defence Counsel has cross- examined this witness at length.
6. PW2 is Sh. Prem Prakash, the complainant of the case. He has also supported the prosecution case, and deposed more or less on the similar lines of his statement. PW2 deposed that on 07.04.1998 at about 9.30 am he received telephone message from Kamal Kishore regarding incident. He deposed that he immediately reached in the factory, and called the police on 100 no, and local police also came there. He deposed that he produced the accused as well as copper wires to the IO. He has proved his statement Ex.PW2/A. Ld. Defence 3 State Vs. Shri Prakash Dube counsel has also cross-examined this witness at length. He admitted that accused was having no injury on his body.
7. PW 3 is Retired SI Rattan Singh, the IO of the case. He has deposed that on receiving DD no. 23A, he along with HC Jaswant reached at the spot. He has further deposed about the detailed steps taken during the course of investigation. He has proved the rukka Ex.PW3/A, and site plan Ex.PW3/B. In his examination, PW3 stated that accused was medically examined in the hospital.
8. PW4 is HC Jaswant Singh. He deposed that on the day of incident, he joined the investigation with IO, and reached at the spot. He further deposed more or less on the lines of prosecution story. He deposed that IO prepared rukka, and got the case registered through him. He has proved the copy of FIR Ex.PW4/A. In his examination, he stated that the copper wires were lying in the dickey of the scooter, and IO taken out the same from the dickey of scooter.
9. Upon looking at the evidence brought by the prosecution on record, it is observed that prosecution has produced two public witnesses namely PW1 Sh. Kamal Kishore, and PW2 Sh. Prem Prakash. As regards PW 1, although plain reading of the examination in chief shows that he is the only witness of the fact, and he had caught red handed the accused while he was trying to flee with the stolen articles. But the averment made by him in his cross examination takes away the credibility and the evidentiary value of his versions. PW1 stated in his examination in chief that on the day of incident he came in the office in the morning time, and accused was present there, even in his statement u/s 161 Cr.P.C, he stated that he was present in the factory with other workers and at about 9.00 am accused was going to his home after finishing his duty, and on some doubt he checked his scooter whereas in his cross-examination he has improved his story dramatically by stating that the accused was present in the factory when he reached in the factory moreover he was waiting for him after switched off the machines. Since the entire prosecution story rest only on the 4 State Vs. Shri Prakash Dube statement of PW 1, and his statement needs a close scrutiny and strict appreciation. The improvements in the story and the deviation from the prosecution case are so apparent and serious that they go to the root of the incident of impeach the credibility of this witness.
In AIR 1970, SC 219, it was reported by Hon'ble Supreme Court that :
"where truth and falsehood are inseparable, entire evidence has to be rejected."
In another case title AIR 1974 SC 21, it was held by Hon'ble Supreme Court of India that :
"If truth and falsehood are so inextricable mixed up down to the core that disengagement is impossible. Court can reject evidence in toto."
In AIR 1977 SC 381, it was held by Hon'ble Supreme Court that :
"Evidence in court contradicts statement before police on vital points, evidence is unreliable."
10. Even though PW 2 was not the witness of the incident in question as neither the accused was apprehended in his presence nor the recovery was effected in his presence, and therefore he appears to be a hearsay witness as he has only been came to know about the incident by telephone message of PW1. Moreover, there is also material contradiction in the testimonies of PW1 and PW2 regarding calling the police as PW1 stated in his cross examination that police reached at the spot at about 12.30 pm whereas PW2 stated that the police reached at the spot at about 11.45 am. Further, PW1 stated in his cross examination the owner of the factory i.e PW2 came at the spot at about 11.30 am whereas PW2 himself stated that he reached at the spot at about 11.00 am.
11. It is further observed that both PW1 and PW2 have denied in their deposition that accused sustained any injuries on the day of incident whereas as per the deposition of IO, the accused was taken to GTB hospital for his medical examination, and doctor has opined the injuries on the MLC. In my considered view this concealment of fact cast a shadow of doubt over the veracity of versions of both the public witnesses, and false implication of accused cannot 5 State Vs. Shri Prakash Dube be ruled out as accused being employee of PW2, and even he put his suggestion to PW2 regarding increasing of his salary and claiming of bonus and PPF.
12. It is further observed that as per DD entry no. 23A which was marked during the deposition of IO shows that the information of incident was received at the P.S at about 4.25 pm whereas the incident occurred at 9.00 am, and as per complainant, the local police had arrived at about 12.15 pm, and this anomaly weakens the prosecution case.
13. As such, in view of the aforesaid case laws the prosecution case is infested with serious doubts. It is a settled legal proposition that in case of doubt of benefit shall go to the accused.
In case title AIR 1956 Cr. L.J 1234, it was held that :
"in the event of any doubt as to the guilt of accused, the benefit will go to the accused."
In another case title AIR 1970, Sc 159, it was reported by the Hon'ble Supreme Court that :
"accused will be given benefit of doubt, if the prosecution does not come up with true story."
In another case title AIR 1974 SC 21, it was held by the Hon'ble Supreme Court of India that :
"where, truth and falsehood are inseparable, the entire evidence has to be rejected."
14. As such, in view of above discussions, granting the benefit of doubt, accused is acquitted of the charged offence, He is in on bail in this case. His bail bond canceled. Surety stands discharged. Security/documents if any be returned after endorsement canceled thereupon. File be consigned to Record Room.
DICTATED & ANNOUNCED IN THE OPEN COURT ON 13.04.2009 (LALIT KUMAR ) METROPOLITAN MAGISTRATE KKD COURTS, SHAHDARA, DELHI