Delhi District Court
Criminal Case/92/2011 on 29 November, 2012
IN THE COURT OF METROPOLITAN MAGISTRATE-09,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Gaurav @ Chikna
FIR No. 92/2011
Police Station : Baba Haridass Nagar
Under Section: 379/482/411 IPC
Unique Case ID Number: 02405R011212012
Date of institution : 08.08.2011
Date of reserving : 20.11.2012
Date of pronouncement: 29.11.2012
JUDGMENT
a) Serial number of the case 55/01/12
b) Date of commission of offence 24.05.2011 and 12.06.2011
c) Name of the complainant Sh. Chandan
d) Name, parentage and address Sh. Gaurav @ Chikna
of the accused S/o Sh. Vinod Sharma
R/o RZ-5B, Gali No.34, Indira
Park, Palam Colony, Delhi
e) Offence complained of Section 379/482/411 IPC
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
State v. Gaurav @ Chikna
FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 1 of 24
h) Date of final order 29.11.2012
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment the accused is being acquitted of the offences punishable under Sections 411 and 482 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in this case FIR No. 92/2011 Police Station Baba Haridass Nagar by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. The case of the prosecution, in nutshell, is that on 12.06.2011 at about 04.00 p.m., within the jurisdiction of police station Baba Haridass Nagar, the accused got recovered one motorcycle bearing original registration No. DL4SBH-3327, engine No. 66864 and chasis No. 84299 (hereinafter referred to as 'motorcycle in question'), bearing forged number plate of No. DL9SBN-3386, theft of which took place on 24.05.2011 between 09.30 p.m. to 09.45 p.m. from near Ashirwad Vatika, Dhansa Road, Najafgarh from the possession of the complainant Sh. Chandan and which the accused had received or retained in his possession knowing or having reason to believe the same to be stolen property.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was filed.
State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 2 of 24
4. A prima facie case having been found, cognizance of the offence was taken by the learned predecessor of this Court vide order dated 08.08.2011. The copies of the police report and annexed documents were supplied to the accused in due compliance of Section 207 Cr.P.C.
5. The case was received by way of transfer by this Court on 20.03.2012.
CHARGE
6. Vide order dated 12.09.2011 passed by the learned predecessor of this Court, charge for the offences punishable under Section 411 and Section 482 I.P.C. was framed against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
7. The prosecution in all examined eleven witnesses.
8. PW-1 Sh. Chandan is the complainant in the present case. He deposed that he is a teacher by profession. He stated that on 11.05.2011, he went to attend the marriage of a girl from his village at Aashirwad Vatika, Dhansa Road, Najafgarh and parked his motorcycle make Bajaj Discover bearing No. DL 4S BH 3327 near Aashirwad Vatika at Dhansa Road at about 09:30 p.m. He stated that when he returned after 15-20 minutes having attended the marriage, he found his motorcycle missing. He stated that in the above regard he made a complaint to the police Ex. PW1/A. He stated that inadvertently the State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 3 of 24 date of the incident has been wrongly mentioned as 24.05.2011 and the investigating officer had recorded his supplementary statement with regard to the date of incident having been wrongly mentioned. He stated that he got the aforesaid motorcycle released on superdari vide superdarinama Ex. PW1/B.
9. PW-2 Head Constable Ajeet Singh is the duty officer. He stated that on 25.05.2011, he was posted at Duty officer at police station Baba Haridas Nagar from 12:00 midnight to 08:00 a.m. He stated that at about 06:30 a.m. he received a rukka through Assistant Sub Inspector Purshottam. He stated that on the basis of the same, he recorded FIR No. 92/11 Ex. PW2/A and made endorsement on the tehrir Ex. PW2/B and handed over the same to the Investigating Officer.
10. PW-3 Constable Arun Kumar is one of the recovery witnesses. He deposed that on 12.06.2011, he along with Sub Inspector Dheeraj, Head Constable Rakesh, Constable Devender and Constable Ravinder were on patrolling duty when at about 03:30 p.m. one secret informer met Sub Inspector Dheeraj and informed that one person would come from the side of Dichaun Nala towards Jai Vihar on a motorcycle which could be stolen and he could be apprehended if raid is conducted. He stated that Sub Inspector Dheeraj shared the said information with them and constituted a raiding party and took position near Dichaun Nala. He stated that the secret informer had described the said person to Sub Inspector Dheeraj. He deposed that Sub Inspector Dheeraj had requested public persons, who however State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 4 of 24 refused to join the raid citing just reasons. He stated that at about 04:00 p.m. a person with similar description as given by the secret informer came from the side of Dichaun Village on a red coloured motorcycle make Bajaj Discover. He did not remember the registration number of the said motorcycle. He stated that Sub Inspector Dheeraj signaled him to stop but on seeing the police the said person tried to flee away. He stated that the said person was apprehended with the help of the raiding party. He stated that Sub Inspector Dheeraj asked him to produce the documents of the motorcycle, however, he could not produce the same. He stated that the chasis and engine number of the motorcycle were noted down and upon verification from the control room, the registration number of the motorcycle was found to be fake and the original registration number was found to be DL8SAK2024. He stated that upon interrogation, the accused disclosed that the said motorcycle had been stolen from the area of police station Najafgarh. He stated that the accused along with the motorcycle was brought to the police station and the motorcycle was seized under Section 102 Cr.P.C. vide seizure memo Mark-A. He stated that the name of the accused was revealed to be Gaurav @ Chikna. He correctly identified the accused in Court. He stated that upon interrogation, the accused disclosed that he had stolen another motorcycle bearing No. DL4SBH3327 from in front of Aashirwad Vatika, Dhansa Road which he had kept behind DTC terminal Najafgarh in the bushes near the wall and the same bore a fake number plate with No. DL9SBN3386. He stated that the disclosure statement of the accused Mark-B was recorded and thereafter the State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 5 of 24 accused led the police party to the aforesaid place and got recovered one motorcycle having number plate DL9SBN3386. He stated that pointing out memo/seizure memo of the motorcycle, Mark-C was prepared. He stated that the accused was arrested vide arrest memo Mark-D and his personal search was carried out vide personal search memo Mark-E. He stated that case property was deposited in malkhana. He deposed that on 13.06.2011, the Investigating Officer of the present case namely Assistant Sub Inspector Purshottam Singh arrested the accused in the present case vide arrest memo Ex. PW3/A and conducted his personal search vide memo Ex. PW3/B. He stated that thereafter the accused led them to the spot in front of Aashirwad Vatika, Dhansa Road from where he had committed theft of the motorcycle bearing No. DL4SBH3327 having fake number plate DL9SBN3386 and pointing out memo Ex. PW3/C was prepared accordingly. He stated that the investigating officer recorded his statement. He deposed that the fake number plate DL9SBN3386 was converted into a pullanda and same was sealed with the seal of PS and seized vide seizure memo Ex. PW3/D. He identified the motorcycle Ex. P1 and fake number plate Ex. P2.
11. PW-4 Head Constable Rakesh is also one of the recovery witnesses and member of the raiding party. He deposed on the lines of PW-3.
12. PW-5 Constable Devender is also a recovery witness. He also deposed on the lines of PW3.
13. PW-6 Assistant Sub-Inspector Purshottam Singh is the first State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 6 of 24 Investigating Officer. He deposed that on 11.05.2011, he received a DD No. 40 A regarding theft of the motorcycle bearing No. DL 4SBH 3327 from Ojha Academy near Ashirwad Vatika. He stated that he went to the spot but did not find anyone there. He stated that on 25.05.2011, however, the complainant Chandan came to the police station Baba Haridass Nagar. He stated that he recorded the statement of the complainant Ex. PW1/A. He stated that thereafter, he prepared rukka Ex. PW6/A and got the case registered. He stated that thereafter, he went to the spot and prepared the site plan Ex. PW6/B at the instance of the complainant and recorded his supplementary statement. He stated that he searched for the motorcycle, however, he could not find the same. He stated that he flashed WT message to control room and got entry in the Zipnet. He stated that on 12.06.2011, accused Gaurav @ Chikna was arrested by Sub Inspector Dheeraj Kumar, who intimated him regarding the accused and recovery of motorcycle of the present case. He correctly identified the accused in the court. He stated that the accused got recovered the motorcycle bearing No. DL 4SBH 3327 of the present case which was bearing a fake No. DL 4SBN 3386. He stated that he collected certain documents i.e. kalandara under Section 41.1(d) Cr.P.C., DD No. 3 A, seizure memo under Section 102 Cr.P.C., pointing out memo and seizure memo under Section 102 Cr.P.C. of motorcycle of the present case, seizure memo of one mobile under Section 102 Cr.P.C., arrest memo and personal search memo of the accused Gaurav @ Chikna and disclosure statement of the accused Gaurav @ Chikna from Sub Inspector Dheeraj Kumar. He stated that thereafter, he arrested the State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 7 of 24 accused vide memo Ex. PW3/A and conducted his personal search vide memo Ex. PW3/B. He stated that the accused led them to a spot near Ashirwad Vatika and pointed out the place from where he had committed the theft of the motorcycle and accordingly, he prepared the pointing out memo Ex. PW3/C. He stated that he recorded statements of the witnesses. He stated that on 28.06.2011 he sealed the fake number plate with the seal of the PS and seized the same vide memo Ex. PW3/D. He identified the number plate Ex. P2.
14. PW-7 Sub-Inspector Shrikishan was the duty officer on 11.05.2011. He stated that on 11.05.2011 he was assigned the duty as duty officer from 04.00 p.m. to 12.00 midnight. He stated that at about 09.55 p.m. he received an information regarding theft of a motorcycle bearing No. DL 4SBH 3327 from near Ojha Academy. He stated that he prepared DD No. 40 A Ex. PW7/A and handed over the same to Assistant Sub Inspector Purshotam for further proceedings.
15. PW-8 Head Constable Sanjeet is the Moharir Head Constable (Malkhana). He stated that on 13.06.2011 he was posted as MHC(M) at Police Station Baba Haridass Nagar and on that day, Sub Inspector Dheeraj Kumar deposited in the malkhana one motorcycle bearing fake No. DL 9SBN 3386, whose original number was DL 4SBH 3327. He stated that he made entry at serial No. 489 of register No. 19 Ex. PW8/A. He stated that on 28.06.2011 Assistant Sub Inspector Purshotam seized the fake number plate bearing No. DL 9SBN 3386 from the aforesaid motorcycle and same was deposited in the malkhana vide entry at serial No. 528 of register No. 19 Ex. PW8/B. State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 8 of 24 He stated that on 03.07.2011, he handed over the motorcycle bearing No. DL 4SBH 3327 to complainant Chandan by the order of the court. He deposed that so long as the case property remained in his custody, the same was not tampered with.
16. PW-9 Sh. Pawan Kumar is the Clerk, Transport Authority, Janakpuri, New Delhi, who had brought the original record pertaining to motorcycle bearing No. DL 4SBH-3327. He deposed that as per their record, the registered owner of the said motorcycle is Sh. Chandan s/o Sh. Satbir Singh. He stated that the said motorcycle was transferred in the name of Sh. Chandan on 15.10.2010 by Sh. Virender Kumar Jain, who was the first owner of the said motorcycle. He proved the particulars regarding the details of ownership of the said motorcycle vide Ex. PW9/A. He identified the signature of Sh. Ashok Narang (Inspector) on the document Ex. PW9/A having worked with him.
17. PW-10 Head Constable Suraj Singh brought a list of the cases in which the accused was previously involved. He stated that he had prepared the said list on the basis of register No. 9 Part III, beat book No.10. He proved the said list vide Ex. PW10/A.
18. PW-11 Sub-Inspector Dheeraj is the second investigating officer and had lead the raiding party. He deposed that on 12.06.2011 he alongwith Head Constable Rakesh, Constable Arun, Constable Devender and Constable Ravinder were on patrolling duty. He stated that upon receipt of a secret information regarding a stolen motorcycle they reached at ganda nala, Jai Vihar. He stated that he requested 2-3 State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 9 of 24 passersby to join the investigation but they all refused to do so and left the spot without disclosing their names and addresses. He stated that thereafter, he briefed his staff regarding the accused and case property and they took their positions. He stated that at about 04.00 p.m. one motorcycle bearing No. HR26D-3634 came from the side of Dichaun, he tried to stop it but the person riding the same tried to flee away. He stated that the said person was apprehended by the staff and thereafter, they demanded the documents of the motorcycle but he could not produce any documents/proof regarding the ownership of the said motorcycle. He stated that there was no key of the motorcycle. He stated that the name of the accused was revealed to be Gaurav @ Chikna and he disclosed that said motorcycle had been stolen from the area of Police Station Najafgarh by him alongwith co- accused Gaurav Jhareda. He stated that he searched through zip net and found that the said motorcycle was stolen from the area of Police Station Najafgarh in case FIR No. 74/11. He stated that during interrogation, the accused also disclosed that he could get recovered one motorcycle which was hidden by him inside the bushes on the back side of DTC depot. He stated that thereafter the said motorcycle was recovered at the instance of the accused Gaurav @ Chikna. He stated that at the time of recovery, the same was having number plate DL 9SBN-3386 which was forged and during investigation, they came to know that the actual number of the said motorcycle was DL 4SBH-3327. He stated that thereafter, he prepared a kalandara under Section 41 (d) Cr.P.C. Ex. PW2/A. He stated that the motorcycle bearing No. HR 26D-3634 was seized vide memo Ex. PW2/C and Ex.
State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 10 of 24 PW5/A. He stated that the motorcycle no. DL 9SBN-3386 (case property of the present case) was seized vide memo Ex. PW2/F and PW5/E. He deposed that the accused Gaurav was arrested vide memo Ex. PW5/B and his personal search was conducted vide memo Ex. PW5/C. He stated that he recorded the statement of the accused Ex. PW5/D. He identified the case property number plate Ex. P2 and motorcycle Ex. P1.
STATEMENT / DEFENCE OF THE ACCUSED
19. In his statement recorded under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he was not driving any motorcycle as alleged and that nothing had been recovered at his instance. He stated that he has been falsely implicated in the present case. He stated that he had been lifted from his house on 10.06.2011 and was kept in the police station and that he came to know that he had been implicated in the present case and another case of police station Najafgarh only when he was produced in the Court. The accused did not lead any evidence in his defence.
ANALYSIS AND FINDINGS
20. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Kamal Dave, Advocate, learned legal aid counsel for the accused have been considered.
State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 11 of 24 I. Charge under Section 411 I.P.C.
21. In order to bring home the guilt of the accused in respect of the offence punishable under Section 411 I.P.C. charged against him, the prosecution was required to prove the following:
i) that the motorcycle in question allegedly recovered at the instance of the accused is stolen property;
ii) that the accused had dishonestly received or retained the aforesaid motorcycle; and
iii) that the accused knew or had reason to believe the said motorcycle to be stolen property.
i) Re: Whether the motorcycle in question allegedly recovered at the instance of accused is stolen property?
22. "Stolen property" has been defined under Section 410 I.P.C. as under :
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, 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."
23. In the instant case, it has been alleged that the motorcycle in question was stolen from the possession of complainant Sh. Chandan between 09.30 p.m. and 09.45 p.m. on 24.05.2011 from Dhansa road, State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 12 of 24 near Ashirwad Vatika, Najafgarh, New Delhi. In order to prove the said alleged fact of theft as aforesaid, the prosecution has examined the complainant Sh. Chandan as a witness.
24. While in his complaint Ex. PW-1/A it is recorded that the theft as alleged took place on 24.05.2011, in his testimony in Court, PW-1 Sh. Chandan stated that the same had in fact taken place on 11.05.2011. The said error in mentioning the date of commission of the theft correctly has not been sufficiently explained.
25. Further, if the alleged theft had taken place on 11.05.2011, as stated by the complainant/PW-1 in his testimony in Court, it is noteworthy that there had been considerable delay of about two weeks in reporting of the alleged offence and registration of the FIR. No explanation has been furnished by the complainant/PW-1 as to why he did not report the theft immediately upon finding his motorcycle missing. Same casts doubt on the prosecution version regarding theft of the motorcycle in question.
26. Perusal of the complaint Ex. PW-1/A reveals that there is overwriting in the date of the alleged theft. The same clearly appears to have been changed from 11.05.2011 to 24.05.2011. Further, there is overwriting at about four places in the date of recording of the said complaint and rukka thereon, which appears to have been altered to 25.05.2011 from 24.05.2011. From the aforesaid there appears to be some manipulation in the said complaint.
27. In view of the aforesaid, this Court is hesitant in believing the State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 13 of 24 prosecution story regarding theft of the motorcycle in question belonging to the complainant. In the opinion of this Court, the prosecution has failed to prove beyond reasonable doubt that the motorcycle in question as is alleged to have been recovered at the instance of the accused is a stolen property.
28. Though there is no need to dwell upon the remaining ingredients as aforesaid, however, the same are nevertheless hereunder being dealt with briefly.
ii) Re: Whether the accused had dishonestly received or retained the motorcycle in question?
29. To prove the said ingredient, the prosecution had to prove that the accused had received or retained the motorcycle in question and that the same was done dishonestly.
30. In order to prove that the accused had received or retained the motorcycle in question, the prosecution was required to first of all prove beyond reasonable doubt that the said motorcycle was recovered as alleged at the instance of the accused. The same has not been proved by the prosecution beyond reasonable doubt for the reasons to follow.
(a) Absence of independent/public witnesses
31. Evidently, no independent public witness, whether to the alleged apprehension of the accused or the alleged recovery of the motorcycle in question at the instance of the accused, has been cited or State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 14 of 24 examined by the prosecution.
32. Regarding the place where the accused was allegedly apprehended by the police officials, i.e. on Ganda Nala road, near Jai Vihar, as per PW-3, they had remained at the spot for about one to one and a half year and there was traffic running at and around the spot. PW-4 also admitted in his cross-examination that there was movement of some persons on the road in question. Thus, it is clear from the testimony of the aforesaid witnesses that public witnesses were available at the spot of apprehension of the accused by the police party. PW-11 stated that he had requested passersby to join the investigation but they refused to do so. However, he stated that they did not disclose their names and that no notice was served upon them as the police party was in a hurry. Thus, clearly no sincere effort had been made by the police party to join public persons as witnesses to the proceedings relating to apprehension of the accused.
33. As regards the spot of the alleged recovery of the motorcycle in question at the instance of the accused, i.e. bushes behind DTC depot, Dichaun Kalan, PW-11 stated that the same was at a distance of about 25-40 meters from the road and traffic and public persons were moving on the main road. He also admitted that the place of recovery was adjacent to the DTC depot, where DTC staff was available at the time of recovery. However, he admitted that the police party did not ask any public person or DTC employee to join investigation at the spot of recovery. Thus, as per the investigating officer himself no attempt was made to join any independent State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 15 of 24 witnesses to the alleged recovery of the motorcycle in question despite availability of public persons at or near the spot. The prosecution has failed to prove that any serious effort was made by the police party to join public witnesses in the investigation/proceedings regarding recovery of the motorcycle in question. No satisfactory explanation for such failure has been furnished by the prosecution.
34. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has, however, not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
"... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 16 of 24 a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused." (emphasis supplied)
35. Further, in Sans Pal Singh v. State of Delhi, (1988) 2 SCC 371, while setting aside the conviction of the appellant for the offences under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 read with Section 25 of the Arms Act, in paragraph 3 of the judgment, the Hon'ble Apex Court observed as under:
"Inter alia, it has been urged by the learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witness. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW5 Head Constable Sat Pal Singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused. Likewise, PW6 Sub-Inspector Mahipal Singh has also stated that no public witness was joined at the State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 17 of 24 time of search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal. He is in jail. He be set at liberty forthwith." (emphasis supplied)
36. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version as to apprehension of the accused and recovery of the motorcycle in question at the instance of the accused but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
(b) Contradictions in testimony of recovery witnesses
37. There are material contradictions in the statements of the prosecution witnesses which create a reasonable doubt as to the truthfulness of the prosecution story.
State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 18 of 24
38. While both PW-4 and PW-5 stated that the investigating officer had prepared a site plan of the spot of apprehension of the accused and PW-5 also stated that the investigating officer had prepared a site plan of the place of alleged recovery of the motorcycle at the instance of the accused, the investigating officer PW-11 himself stated that he did not prepare a site plan either of the place of apprehension of the accused or of recovery of the motorcycle in question.
39. PW-3 deposed that they had left the police station for patrolling at 10.00 a.m. However, though PW-11 did not remember the exact time at which they left the police station for patrolling, he stated that they had left about 30 minutes to one hour before receipt of secret information which according to the prosecution story had been received at 03.30 p.m.
40. While as per PW-3 they had gone to the spot of recovery along with the accused on private motorcycles, PW-5 stated that they went to the spot of recovery in an official gypsy bearing No. 8511.
(c) Departure and arrival entries not proved
41. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II
- The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 19 of 24 of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
42. The present case rests entirely on the alleged apprehension of the accused and recovery of case property, i.e. motorcycle in question, at the instance of the accused at the relevant time by police officials namely Sub-Inspector Dheeraj, Constable Arun, Constable Devender, Head Constable Rakesh and Constable Ravinder. Since public persons were not joined in the investigation either at the spot of arrest or recovery, the departure entries of the aforesaid police officials, who were allegedly on patrolling duty at the relevant time and place and had apprehended the accused as well as their arrival entries at the police station after apprehension of accused or recovery of motorcycle, become vital pieces of evidence.
43. Both PW-3 and PW-4 stated that they did not make any entry regarding their departure from the police station on patrolling duty. PW-5 stated that though he did not make any departure entry, same was made by the investigating officer but he did not remember the number of the daily diary entry vide which the same was made. Likewise, though the investigating officer PW-11 stated that he had made a departure entry before proceeding on patrolling duty, he did stated that he did not remember the number of the daily diary entry State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 20 of 24 thereof. No such DD entry regarding departure of the aforesaid police officials has, however, been proved by the prosecution.
44. Further, PW-3 and PW-11 admitted that they did not make any entry on their arrival at the police station after the investigation.
45. Proof of the departure and arrival entries is, however, indispensable as the present case rests solely on the alleged apprehension of the accused and recovery made by police officials at the instance of the accused.
(d) Possibility of misuse of seal used to seal the case property
46. As per the testimonies of the prosecution witnesses, the case property was sealed by the investigating officer with the seal of PS. As per PW-3 Constable Arun Kumar, the said seal was handed over to Constable Ravinder at the spot after use. He could not tell when the said seal was returned to the investigating officer. No handing over memo regarding the seal has either been proved or placed on record. The seal in the present case was not handed over to any independent witness. Further, though as per PW-3 the seal was deposited in the malkhana, no document has been placed on record to prove the same. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
(e) Absence of site plan of place of apprehension of accused and recovery of motorcycle in question
47. While PW-4 and PW-5 both stated that the investigating officer State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 21 of 24 had prepared a site plan of the spot of apprehension of the accused and PW-5 also stated that the investigating officer had prepared a site plan of the place of alleged recovery of the motorcycle at the instance of the accused, the investigating officer PW-11 himself admitted that he did not prepare a site plan either of the place of apprehension of the accused or of recovery of the motorcycle in question.
48. Though a site plan Ex. PW6/B of the place from where the motorcycle belonging to the complainant had allegedly been stolen has been filed on record, the prosecution has failed to file, let alone prove, any site plan either of the place of apprehension of the accused or of the place of alleged recovery of the motorcycle in question. No explanation has been furnished for the failure of the prosecution to place on record and prove the site plan of the place of apprehension of the accused and alleged recovery. In the absence of a site plan of the place of recovery it is difficult to ascertain the place from where the motorcycle in question was allegedly recovered and that where the accused was apprehended. The absence of a site plan of the aforesaid places, is a circumstance that goes against the prosecution.
49. In view of the aforesaid, the prosecution has failed to prove beyond reasonable doubt that the motorcycle in question was recovered at the instance of the accused as alleged. It has accordingly failed to establish that the accused had received or retained the aforesaid motorcycle, much less that he had done so with dishonest intention.
iii) Re: Whether the accused knew or had reason to believe the State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 22 of 24 motorcycle in question to be stolen property?
50. The prosecution has failed to lead any evidence to show that the accused either knew or had reason to believe the motorcycle in question to be stolen property. Further, there was a considerable time gap between the date of the alleged theft, i.e. 24.05.2011/11.05.2011, and the date of the alleged recovery of the motorcycle at the instance of the accused, i.e. 12.06.2011, and hence no adverse presumption can be drawn against the accused.
51. In view of the aforesaid detailed discussion, the prosecution has failed to bring home the charge under Section 411 I.P.C. against the accused. The accused is entitled to the benefit of doubt and to be accordingly acquitted of the offence punishable under Section 411 I.P.C.
II. Charge under Section 482 I.P.C.
52. As discussed above, the prosecution has failed to prove beyond reasonable doubt that the motorcycle in question was recovered at the instance of the accused as alleged. Consequently, the prosecution has also not been able to prove the allegation that at the time of recovery of the motorcycle in question it bore a false/forged number plate of No. DL-9SBN-3386, much less that the said false/forged number plate was being used by the accused.
53. Even otherwise, there is not an iota of evidence on record to show that the aforesaid number plate of No. DL-9SBN-3386 was a forged one i.e. the said registration number did not correspond to the State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 23 of 24 engine number and chasis number of the motorcycle in question that was allegedly recovered at the instance of the accused. PW-1 Sh. Chandan, complainant in the present case, has also not deposed as to what was the engine number and chasis number of the stolen vehicle which as per him bears registration No. DL4SBH3327.
54. In view of the aforesaid, the prosecution has miserably failed to prove that the accused committed the offence punishable under Section 482 I.P.C. The accused is, therefore, entitled to be acquitted of the offence punishable under Section 482 I.P.C.
CONCLUSION
55. The accused is acquitted of the offences punishable under Section 411 and 482 I.P.C.
56. File be consigned to record room.
Announced in open Court on 29.11.2012.
(MANIKA) Metropolitan Magistrate-09 (South-West), Dwarka Courts, New Delhi 29.11.2012 State v. Gaurav @ Chikna FIR No. 92/2011 P.S.: Baba Haridass Nagar Page 24 of 24