Delhi District Court
3.Title State vs . Dharmender Mehto @ Kali on 28 July, 2014
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE03, EAST
KARKARDOOMA COURTS : DELHI
1.FIR No. 220/2003
2.Unique Case ID No. 02402R0280412003
3.Title State Vs. Dharmender Mehto @ Kali
& Others
3(A).Name of complainant Mukesh Kumar, S/o Sh. Satish
Kumar, R/o H.NO. B18/142, Guru
Nanakpura, Gali No.5, Laxmi Nagar,
Delhi.
3(B).Name of accused 1. Dharmender Mehto @ Kali, S/o Sh. Ram Kirpal Mehto, R/o H.NO. 5143, Pandav Nagar, Delhi.
2. Gautam Sharma, S/o Sh.
Rajender Sharma, R/o Subhash Park II, Shanker Vihar, Khoda Colony, Ist Pusta, (near Bhawna Medical Store), Ghaziabad, UP.
4(a).Date of institution of challan 16.10.2003 4(b)Date of institution of 25.05.2009 supplementary challan
5.Date of Reserving judgment Not reserved. Pronounced on the same day.
6.Date of pronouncement 28.7.2014 FIR No. 220/2003 State Vs Dharmender Mehto & Others 1 of 16
7.Date of commission of offence 18.6.2003
8.Offence complained of Under Section 379/411 IPC
9.Offence charged with Under Section 379/411/34 IPC
10.Plea of the accused persons Pleaded not guilty
11.Final order Both accused are acquitted for the offence punishable U/s 379/34 and section 411/34 IPC BRIEF REASONS FOR THE DECISION OF THE CASE:
1. In the present matter, the case of the prosecution is that on 18.6.2003, in between 10.30pm to 12 midnight, in front of the gate Samudai Bhawan, Joshi Colony, from the road, the motorcycle Hero Honda Passion bearing no. DL7SS6301, belonging to the complainant Mukesh Kumar S/o Sh. Satish Kumar, was found to be stolen. The said motorcycle was subsequently recovered from the possession of accused persons, Dharmender Mehto and Gautam Sharma on 19.7.2003, by the officials of PS Malviya Nagar alongwith fake number plate bearing no. UP82D1361. The officials of PS Malviya Nagar on receipt of secret information regarding the plan to commit dacoity made a raiding party pursuant to DD entry No. 21 and apprehended the accused persons alongwith the motorcycle.
FIR No. 220/2003 State Vs Dharmender Mehto & Others 2 of 16
2. The accused persons were charged for the offence U/s 379 read with 34 IPC and in the alternative U/s 411 read with section 34 IPC.
3. In the present matter initially charge sheet was filed before the Court on 16.10.2003 only against accused Dharmender Mehto. Cognizance for the offence was taken on the very same date by the Ld. Predecessor of this Court. However, at the stage of hearing arguments on the point of charge it was held by the Ld. Predecessor of this Court vide order dated 14.12.2007 that as per the case of the prosecution itself besides accused Dharmender Mehto the motorcycle was also found in possession of accused Gautam Sharma and thereafter vide order dated 30.6.2008 the Ld. Predecessor of this court directed SHO PS Mandawali to further investigate the present matter with regard to the role of Gautam Sharma and file supplementary charge sheet before the court.
4. Supplementary charge sheet was filed before the court on 25.5.2009, against accused Gautam Sharma.
5. Charge for the offence U/s 379/34 and in the alternative U/s 411/34 IPC was framed against both accused persons vide order of Ld. Predecessor of this court dated 22.9.2010, to which both accused persons pleaded not guilty and claimed trial. Thereafter FIR No. 220/2003 State Vs Dharmender Mehto & Others 3 of 16 the matter was fixed for prosecution evidence.
6. Prosecution in order to prove its case against the accused persons in total has examined as many as 7 witnesses i.e. PW1 complainant Mukesh, PW2 Seema (Superdar of the vehicle), PW3 Retd. SI Girijesh, PW4 HC Inderpal, PW5 ASI Iqbal Singh, PW6 Ct. Dayaram and PW7 Ct. Mahesh Kumar.
7. PW1 Mukesh is the complainant in the present matter and has deposed before the court regarding the factum of theft of his motorcycle and has identified his signatures on the complaint Ex. PW1/A. He has also identified the motorcycle as Ex. P1. The witness has admitted in his cross examination that he had not seen anybody stealing the motorcycle and has never stood as a witness to the recovery of the motorcycle.
8. PW2 Seema, is the superdar and the registered owner of the case property i.e. vehicle Hero Honda Passion, bearing no. DL7SS6301 and has deposed that she has got released the vehicle on superdari vide superdginama Ex. PW2/A and has identified the vehicle as Ex. P1. She has also admitted in her cross examination that she had not seen any person stealing her motorcycle.
9. PW3 Retd SI Girijesh has deposed that on 19.7.2003, he was the part of the raiding party who had arrested the accused FIR No. 220/2003 State Vs Dharmender Mehto & Others 4 of 16 persons, Dharmender and Gautam Sharma in case FIR No. 523/2003 of PS Malviya Nagar, alongwith the other accused of that matter and motorcycle of the present case was recovered from the possession of the present accused persons. The accused persons have failed to show the documents regarding the said motorcycle and accused Dharmender has disclosed in his disclosure statement Ex. PW3/A that he had stolen the motorcycle from the area of PS Mandawali and thereafter the motorcycle was seized vide seizure memo Ex. PW3/B and both the accused persons were arrested by the witness. The witness correctly identified the accused persons before the court. Identification of case property was dispensed with as the same was already exhibited as Ex. P1 in earlier depositions.
10. In his cross examination, it was deposed by the witness that the accused persons were apprehended alongwith motorcycle at Ganda Naala near Press Enclave road, Opposite Pushp VIhar, Sector 7, Delhi, at about 9.40pm and the place was not a thorough fare and no public person was included in raiding party. It was further admitted that no notice was given to any person who refused to join the raiding party. It was further deposed that the accused persons were apprehended while they were sitting on the motorcycle and were about to escape. The witness did not FIR No. 220/2003 State Vs Dharmender Mehto & Others 5 of 16 remember in his deposition about the other accused persons apprehended or the name of the police officials who apprehended the other accused persons or the number of motorcycle recovered from other accused persons in case FIR NO. 523/2003. It was further deposed by the witness that on verbal direction of SHO he had conducted the raid.
11. PW4 HC Inderpal is the IO of the present matter and has deposed that on receipt of DD entry no. 4 A on 18.6.2003, he reached at the spot and met the complainant and recorded his statement Ex. PW1/A regarding theft of motorcycle and prepared rukka Ex. PW4/A and got the case registered through Ct. Om Singh. He prepared the site plan and recorded the supplementary statement of the complainant. However, thereafter, despite efforts the motorcycle could not be found.
12. It was furhter deposed that on 20.7.2003, vide DD entry no. 13 A from PS Malviya Nagar, he received information regarding recovery of motorcycle and thereafter obtained relevant documents and recorded the statement of the witnesses and came back to the PS and thereafter on the next day formally arrested accused Dharmender vide memo Ex. PW4/C. The witness correctly identified accused Dharmender before the court. FIR No. 220/2003 State Vs Dharmender Mehto & Others 6 of 16
13. PW5 ASI Iqbal Singh is the duty officer and has proved before the Court the registration of FIR bearing No. 220/2003 Ex. PW5/B (OSR) and rukka Ex. PW5/A and original DD No. 13 A Ex. PW5/C.
14. PW6 Ct. Daya Ram has identified his signatures on the arrest memo Ex. PW4/C of accused Dharmender Mehto.
15. PW7 Ct. Mahesh Kumar has deposed that on 19.7.2003, he was the part of the raiding party who had apprehended Dharmender and Gautam Sharma and had recovered from their possession motorcycle bearing no. UP82D1361, (fake number plate). The motorcycle was seized vide seizure memo Ex. PW3/B and accused persons were arrested and real number of the motorcycle was found as DL7SS6301. It was deposed that the accused persons were part of 67members who were planning to commit robbery.
16. The witness was cross examined by Ld. Counsel for accused, wherein it was deposed by him that he do not remember the exact time when the accused persons were arrested. The witness however, admitted that the place was a thorough fare, and the residential colony is situated on the opposite side of the road. The witness further admitted that he did not know whether the secret FIR No. 220/2003 State Vs Dharmender Mehto & Others 7 of 16 informer was with them at the particular point of time and that he was in civil clothes. It was further deposed by the witness that the accused persons were arrested when they just sat on the motorcycle and were about to start the same. It was further deposed that warning was given by the IO to the accused persons. It was further deposed that he had seen the secret informer at the PS and at the spot.
17. Prosecution evidence was closed in the present matter vide order of the Ld. Predecessor of this Court dated 17.7.2012, as no other prosecution witness was present and the matter was more than 9 years old and ample opportunity have been granted to the prosecution to conclude prosecution evidence and the matter was fixed for statement of accused.
18. Statement of the accused persons U/s 313 read with section 281 Cr.P.C. was recorded before the court on 26.7.2012, wherein it was submitted by the accused persons thay they are innocent and have been falsely implicated in the present matter and were lifted from their home by the police officials and nothing was recovered from their possession. It was further submitted that they were made to sign on certain blank papers. However as it was submitted by the accused persons that they do not wish to lead any evidence in their FIR No. 220/2003 State Vs Dharmender Mehto & Others 8 of 16 defence, the matter was fixed for final arguments.
19. However, at the stage of final arguments an application U/s 311 Cr.P.C. was moved by the accused persons for placing on record the certified copies of judgment passed by Ld. ASJ Sh. N.P. Kaushik dated 20.2.2010, which was allowed by the Ld. Predecessor of this court vide order dated 20.11.2012 and the matter was fixed for defence evidence.
20. On 10.7.014, case file bearing FIR No. 523/2003, PS Malviya Nagar, U/s 399/402/411/482 IPC was brought before the court and the certified copy of the judgment was exhibited as Ex. DW1/A (OSR).
21. I have heard the arguments as advanced by Ld. APP for the State and the Ld. Counsel for the accused.
22. In the present matter the accused persons have been charged for the offence punishable U/s 379/34 IPC and in the alternative U/s 411/34 IPC. In the present matter both PW1 and PW2 have deposed before the court that they have not seen any person taking away or stealing their motorcycle. No other witness is brought on record by the prosecution in order to show that theft was comitted by the accused persons. The ingredients of Section 378 IPC which define the offence of theft have remained unestablished and FIR No. 220/2003 State Vs Dharmender Mehto & Others 9 of 16 therefore, the accused persons cannot be held guilty for the offence punishable U/s 379 IPC.
23. In the alternative besides the offence punishable U/s 379 IPC the accused persons have been charged for the offence punishable U/s 411 IPC.
24. Section 411 IPC prescribes for the punishment of possession of stolen property. It reads as under: Dishonestly receiving stolen property 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.
25. In the present case in hand, it is the case of the prosecution that the stolen motorcycle alongwith fake number plate was recovered from the possession of accused persons on 19.7.2003, when the raiding party of PS Malviya Nagar on receipt of secret information regarding plan to commit dacoity at a petrol pump went to apprehend the accused persons who were in total 56 in number. On sensing the presence of police the accused persons FIR No. 220/2003 State Vs Dharmender Mehto & Others 10 of 16 tried to run away and the accused of the present case tried to run away on Passion Motorcycle.
26. The certified copy of the judgment of the Ld. ASJ Court in case U/s 399/402/411/482 IPC and U/s 25 Arms Act, PS Malviya Nagar, FIR No. 523/2003 has been placed on record and the original file has been seen and returned. Perusal of the judgment shows that charge against accused persons, Dharmender Mehto and Gautam Sharma were framed U/s 399 IPC and 402 IPC as well as Us/ 25 Arms Act. However, the Ld. ASJ Court after a detailed judgement acquitted the accused persons for the offences U/s 399/402/411/482 IPC and Section 25 Arms Act. Thus though the charges were framed not under the provisions of Section 411 and Section 482 IPC, however, while pronouncing judgment the accused persons were acquitted for that offence as well by the Ld. ASJ Court vide judgment dated 20.2.2010.
27. It was held by the Ld. ASJ Court that, "...there are grave contradictions in the case of the prosecution as set up in the challan and the versions given by the various witnesses. Responsible Officers of the rank of Sub Inspector, PW SI Sanjeev Sharma did not know as to what was located in the four directions of the spot. All the accused persons had parked their motorcycle on one side FIR No. 220/2003 State Vs Dharmender Mehto & Others 11 of 16 and were allegedly seated at a distance in the ruins. The conversation among the accused persons was allegedly overheard by ASI Nawab Khan and at the same time it was heard by the secret informer who had visited the site long before. It is also improbable that accused persons had taken their seats on the motor cycles and only after that they were apprehended. The various witnesses of the prosecution have not been able to tell the make of the motorcycles. Some of the witnesses mentioned the same as Pulsar whereas other mentioned the same as Passion. Not only this there are grave contradictions in the apprehension of the accused persons by particular members of the raiding party. To my mind prosecution has failed to prove its case beyond reasonable doubt. The accused named Gautam Sharma, Dharmender Mehto @ Kali and Mukesh @ Vinod are hence acquitted of the charges under section 399/402/411/482 IPC and 25 Arms Act".
28. Thus the ld. ASJ Court has acquitted the present accused persons Gautam Sharma and Dharmender Mehto for the charges u/s 399/402/411/482 IPC and 25 Arms Act. Perusal of the entire judgment reveals that though the present accused persons were charged for 399/402 IPC and 25 Arms Act, they were tried and acquitted for the offence u/s 411/482 IPC as well. In the present FIR No. 220/2003 State Vs Dharmender Mehto & Others 12 of 16 case in hand, the accused persons have only been chargesheeted for the offence U/s 379/411 IPC and the charge was framed against them for those sections only. The prosecution as per the chargesheet was not brought u/s 482 IPC as well, though it is the case of the prosecution that fake number plate was seized alongwith the motorcycle. In the case before Ld. ASJ Court sections 411 and 482 IPC were only there as motorcycle make Passion bearing number plate UP 82 D 1361 was recovered from the present accused persons and another motorcycle of Caliber make was recovered from other accused persons. The ld. ASJ Court has acquitted the accused persons for the offences u/s 411/482 with respect to the motorcycle which is the case property of the present case as well.
29. Section 300 (1) Cr. PC. states that a person who has once been tried by court of Competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub section 1 of section 221 or for which he might have been convicted under sub section 2 thereof.
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30. Article 20 (2) of The Constitution of India states that no person shall be prosecuted and punished for the same offence more than once and no man shall be put twice in peril for the same offence.
31. Thus in view of Article 20 (2) of The Constitution of India and section 300 (1) of Cr. PC. which categorically debars double jeopardy for the same offence, the present accused persons cannot be put twice into peril for the offences u/s 411/482 IPC or even section 379 IPC when once they have been tried and acquitted by the ld. ASJ Court for the offence u/s 411/482 IPC besides other offences.
32. Furthermore, in the present case no public witness has been joined in investigation by the investigating agency at any stage of investigation despite the fact that PW7 has admitted in his cross examination that there were public witnesses at the spot and the residential colony was situated on the opposite side of the spot.
33. In view of the same, the lack of any effort to join any public witness cast a serious dent on the reliability of the prosecution story and creates doubt in the mind of the court as to the truthfulness of the case of the prosecution.
34. Perusal of testimony of the witnesses also show contradiction FIR No. 220/2003 State Vs Dharmender Mehto & Others 14 of 16 in testimony of the recovery witnesses with respect to the presence of public persons as it is deposed by PW3 that the place was not a thorough fare and the residential colony was far away from the spot whereas it was deposed by PW7 that the place was thorough fare and residential colony was just on the other side of the road.
35. In the absence of any public witness of recovery and in view of the judgment of Ld. ASJ Court regarding factum of grave contradiction and in view of the fact that the accused persons have already been acquitted for the offence U/s 411 IPC, the only finding which can be given with respect to the present accused persons is that of not guilty.
36. Keeping in view the above discussions and findings, both accused persons Dharmender Mehto and Gautam Sharma are acquitted for the offence u/s 379/34 and 411/34 IPC.
37. Their personal bond and surety bond stands extended for a period of 6 months for the purpose of Section 437 A Cr.P.C. at request.
38. File be consigned to record room.
Announced in the (Neha Paliwal)
Open Court on 28.7.2014 MM03 (E): KKD:Delhi
FIR No. 220/2003 State Vs Dharmender Mehto & Others 15 of 16
It is certified that this judgment contains 16 pages and each page bears my signature.
(Neha Paliwal) MM03(E): KKD: Delhi:28.7.2014 FIR No. 220/2003 State Vs Dharmender Mehto & Others 16 of 16