Delhi District Court
State vs . Sheikh Montu on 24 September, 2014
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Sheikh Montu
FIR No.267/04
U/s : 411/482/471/34 IPC
P.S. : Malviya Nagar
Date of institution of case : 15.06.2004
Date on which case reserved for judgment : 24.09.2014
Date of judgment : 24.09.2014
JUDGMENT
1.FIR No. of the case : 267/04 2.Date of the Commission : 09.04.2004 of the offence
3.Name of the accused : 1. Sheikh Montu S/o Sh. Sheikh
: Badru R/o Village Paharpur, PS
: Ahmedabad, District Katihar, Bihar
: (since PO).
: 2. Sheikh Mojul S/o Sh. Sheikh
: Sannu R/o Bhagwanpur Chowk, New
: Amirabad PS, District Katihar, Bihar
: (since PO).
: 3. Sheikh Matloob S/o Sh. Sheikh
: Farman R/o Village Itaal, PS Raiganj,
: District Uttar Dinajpur, West Bengal.
FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 1/17
4.Name of the complainant : Sh. Gautam Sarkar S/o Late Sh.
: Naren Sarkar R/o H. No. R-20, Khirki
: Extension, New Delhi.
5.Offence complained of : 411/482/471/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
BRIEF FACTS
1. The story of the prosecution is that on 09.04.2004 at about 4.00pm at Main Wazirpur Road near Gurudwara Nanaksar, Khajoori Khas, New Delhi within the jurisdiction of PS Khajoori, Delhi, accused persons namely Sheikh Montu and Sheikh Moujul (since both are PO) were found in possession of one Motorcycle bearing no. DL-9SJ-0276 with fake number plate DL-7SL-5051 and both accused persons were found using the forged number plate DL-7SL-5051 as genuine which they dishonestly received or retained knowingly or having reason to believe the same to be stolen property and thereby both accused Sheikh Montu and Sheikh Moujul committed offences punishable u/s 411/482/471/34 IPC.
2. Further, the story of the prosecution is that on 09.04.04 at H. No. 750, Gali no. 20, Jafrabad, Seelampur, Delhi within the jurisdiction of PS Khajoori Khas, accused Sheikh Montu was found in possession of one motorcycle make Hero Honda bearing no. DL-9SJ-0276 belonging to the complainant Gautam Sarkar which he had dishonestly retained knowing or having reasons to believe the same to be stolen property and thereby accused Sheikh Matloob committed an offence punishable u/s 411 IPC.
FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 2/17
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 15.06.2004.
4. On the basis of the charge-sheet, a charge for the offence punishable under section 411/482/471/34 IPC was framed against the accused Sheikh Montu and Sheikh Moujul (since both are PO) and section 411 IPC was framed against the accused Sheikh Matloob and read out to the said accused persons, to which they pleaded not guilty and claimed trial on 11.10.2004.
APPRECIATION OF EVIDENCE
5. To prove its case, prosecution examined the following witnesses:
6. PW-1 Gautam Sarkar being the complainant was examined on 25.10.2004 and deposed that on the night of 01.04.2004 he parked his motorcycle make Hero Honda Passion bearing no. DL-9SJ-0276 outside his house at about 8.30pm and on the next morning at about 10.30 or 11am he found his motorcycle missing and made a call at 100 number and PCR came there and PCR called local police and local police also came there and thereafter he went to PS and made a complaint regarding theft of his motorcycle vide memo Ex. PW-1/A. He further deposed that after 5/6 days of incident police came to his house but he was not present in his house and police left their contact number with his wife. He further deposed that he made a call to the police and came to know that his motorcycle has been recovered which was lying in the PS somewhere in Khajoori Khas or Seelampur. He further deposed that he saw his motorcycle in PS Malviya Nagar but it was having a different number plate FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 3/17 and he identified his motorcycle on the basis of its colour and something written by him on the rear portion of the vehicle and got the said motorcycle on superdari.
7. This witness was cross examined by Ld. Defence counsel for the accused Matloob wherein he stated that he does not remember the exact date when those police men came to his house who informed him regarding recovery of his motorcycle. He admitted that there were number of motorcycle in red colour of the same make and he had not mentioned in his complaint that something in particular was written by him on the rear portion of his motorcycle. He further deposed that except his complaint no other statement of him was recorded by the police and no other proceedings were conducted by the police in his presence.
8. PW-2 Ct. Deepak who is a formal witness was examined on 08.11.2004 and deposed that on 19.07.2004 he was posted at PS Malviya Nagar and on that day he had joined the investigation of this case with HC Mahinder and on that day four accused persons related to this case were arrested from the court, out of four one accused Jagat was discharged. He further identified the accused persons namely Sheikh Montu, Sheikh Moujul and Sheikh Matloob present in the court. The arrest memos are Ex. PW-2/A, B and C.
9. This witness was not cross examined by the accused despite opportunity given.
10. PW-3 HC Mahender Singh was examined on 05.07.2005 and deposed that on 02.04.2004 he was posted at PS Malviya Nagar and on that day he was on emergency duty and complainant Gautam Sarkar came to PS and gave written complaint regarding theft of his motorcycle bearing no. DL-9SJ-0276 and on the said complaint he got FIR registered. He FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 4/17 further deposed that he along with complainant went to the spot and prepared site plan vide memo Ex. PW-3/A and supplementary statement of the complainant to that effect was recorded and thereafter he along with Ct. Ravinder tried to trace the motorcycle but could not found and they returned back to PS. He further deposed that on 10.04.2004 SI Narender of Special Staff of North East District had given information to PS Malviya Nagar regarding recovery of aforesaid motorcycle of complainant from the area of PS Khajoori Khas and on receipt of information he went there and met with SI Narender and collected copy of documents prepared by SI Narender i.e. Disclosure statement of four accused persons, seizure memo of recovered motorcycle, seizure memo of original number plate of motorcycle, seizure memo of photocopy of RC, same are mark A of disclosure statement of Sheikh Moujul, mark B of accused Jagat, mark C of accused Sheikh Matloob, mark D of accused Sheikh Montu, mark E relating to seizure memo of motorcycle with fake no. plate DL-7SL-5057, mark F relating to original no. plate of stolen motorcycle, mark G relating to memo of photocopy of RC. Statement of witnesses recorded by SI Narender in this respect. (Objected by Ld. Defence counsel regarding marking of documents as mark A to G). By that time accused persons had already been sent to JC. He further deposed that on the next day, again said on 14.04.2004 he moved an application in the court regarding production of accused persons and on 19.04.2004 all the four accused produced in the court and formally arrested by him, only accused Sheikh Moujul and Sheikh Matloob were present in the court and they were sent to JC. He further deposed that on 03.05.2004 case property from PS Khajoori Khas brought to PS Malviya Nagar which was deposited in PS Khajoori Khas vide case FIR No. 147/04. Statement of MHCM of PS Khajoori Khas FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 5/17 was recorded. He further deposed that during investigation he recorded the statement of witnesses of recovery and other witnesses who had joined the investigation with him and prepared charge sheet and filed before the court. He further identified the case property in photographs which are Ex. P-1 and P-2.
11. This witness was cross examined by Ld. Defence counsel for the accused Matloob wherein he stated that he does not remember the time when complainant met him at PS. He further deposed that he visited the place of incident on the same day and site plan was prepared at the instance of complainant but did not obtain the signature of the complainant on the same. Even on the site plan it was not mentioned by him that the site plan was prepared at the instance of complainant. No other police man visited the spot of incident prior to him. He admitted that the motorcycle or number plate was not recovered in his presence from accused. He further deposed that he does not remember the time when he received this information from DO of Malviya Nagar. He denied the suggestion that investigation of the present case was not conducted fairly by him and accused Sheikh Matloob was falsely implicated in the present case at the instance of SI Narender Kumar, Special Staff, NE.
12. PW-4 Ct. Ravinder was examined on 05.07.2005 and deposed that on 02.04.2004 he was posted at PS Malviya Nagar and on that day he had joined the investigation of this case with HC Mahinder Singh and they reached at R-20, Khirki Extension where complainant met and at his instance site plan was prepared of the place from where the motorcycle was stolen. He further deposed that they tried to trace the case property and accused but could not found and came back to PS.
13. This witness was cross examined by Ld. Defence counsel for FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 6/17 the accused Matloob wherein he stated that his statement was recorded once on 02.04.2004 and he joined the investigation till evening. He had stated in his statement to the IO that he had gone to the R-20, Khirki Extension. Confronted with the statement Ex. PW-4/DX1 where it is not so recorded. He had not stated in his statement that the complainant was with him during the investigation. He further deposed that he does not whether he had signed the site plan or not and further deposed that his statement was recorded at the spot. He denied the suggestion that he had not joined in the investigation or that his statement was recorded at the PS or that he was deposing falsely.
14. PW-5 HC Yashpal was examined on 05.07.2005 and deposed that on 09.04.04 he was posted at PS Khajoori Khas as MHC(M) and on that day at about SI Narender Kumar of Special Staff deposited one motorcycle bearing no. DL-7SL-5051 (fake number plate) and 2 no. plate bearing no. DL-9SJ-0276. He further deposed that the case property was deposited by him in Malkhana by making entry in this regards in register no. 19 at serial no. 1073. Copy of the same is Ex. PW-5/A (OSR). Case property was to HC Mahender Singh of PS Malviya Nagar vide RC no. 143/21.
15. This witness was not cross examined by the accused despite opportunity given.
16. PW-6 SI Narender Kumar was examined on 26.09.2005 and deposed that on 09.04.2004 he was posted at Special Staff, North East and on that day Ct. Jai Karan of his staff had received secret information regarding two boys will come on a red colour motorcycle with fake number plate from the side of Seelampur to Wazirabad. He further deposed that he passed this information to Inspector Ombir Singh Bhati and they organized FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 7/17 a raiding party consisting of HC Jagbir Singh, Ct. Rambir, 1-2 other Ct. whose name he does not remember and they all reached at Kajoori Chowk where Ct. Jai Karan met who also joined the raiding party. He further deposed that on Wazirabad road they performed Nakabandi near Nanak Sar Gurudwara and they started checking vehicles and at about 3.30pm one motorcycle of red colour bearing no. DL-7SL-5051 make Hero Honda Passion came at the spot which was stopped by them and the said motorcycle was driven by accused Sheikh Montu and Sheikh Moujul was pillion rider. The said motorcycle with fake number plate recovered from possession of accused Mutlib was seized vide memo mark E. He further deposed that the accused failed to show the documents of motorcycle. Disclosure statements of both accused were written which are mark A and B. Accused persons were arrested and their personal search were conducted and case property was deposited in malkhana. Accused were taken to house of Sheikh Mutlib where he was interrogated and at his instance both original number plates no. DL-9SJ-0276 were recovered and seized vide memo mark F. Disclosure statement of accused Sheikh Mutlib was recorded by him which is mark C. He further deposed that as per disclosure accused Jagat was person at Railway Station who was supposed to send this stolen motorcycle to Katiyar as per role and statement and both the accused Sheikh Montu and Sheikh Moujul taking this motorcycle to railway station. Accused Jagat was also arrested and got recovered one photocopy of RC which was seized vide memo mark G. He further identified the case property i.e. two number plate of the vehicle bearing no. DL-7SL-5051 and DL-9SJ-0276 which are Ex. P-3 colly.
17. This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that Ct. Jaikaran had given a secret FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 8/17 information on 09.04.2004 in the office of special staff, North East and a DD entry in respect of secret information was made. He further deposed that he can not tell the name of the police officials in whose presence secret information was received as long time has passed. He further deposed that they had not made a separate departure entry on that date and departure entry was part of secret information. He further deposed that when he left office of special staff, 5-6 other police officials had accompanied him but he does not remember their name. He further deposed that the secret information was received at about 1.00 pm and they reached Khajuri Chowk at about 1.30 pm and he remained at Khajuri Chowk for about 6.00 pm on that day. He admitted that Khajuri Chowk is a busy morterable Chowk and he had asked public persons to join the investigation but none of them agreed. He further deposed that he does not remember their names as they had not disclosed their names and addresses and no action was taken against the persons who left without disclosing their name and addresses. He further deposed that at the time of apprehension of accused namely Sheikh Montu and Mojul, the motorcycle on which they were riding was having number plate affixed bearing the number 5051. He further deposed that he visited the house of accused Sheikh Mutlib on 09.04.2004 and Sheikh Mutlib was residing on the ground floor of his house at Chauhan Banger, Jafrabad. He admitted that the house of the accused Sheikh Mutlib was situated in a place where other persons were also residing. He further deposed that they had not asked any neighbour of the accused Sheikh Mutlib to join them at the time of their visit to his house. He further deposed that he does not remember whether he had asked Sheikh Mutlib in respect of his native village. He admitted that the investigation of the present case had not been done by FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 9/17 him and his statement was recorded by the IO in this case on 03.05.2004. He further deposed that he does not remember whether a pullenda was prepared by him at the time of recovery of the number plates. Number plate bearing No.0276 was lying under the cot of accused Sheikh Mutlib. He further deposed that he can not tell whether the number plates can easily be got prepared by anybody and he does not remember who was present in the house of the accused Sheikh Mutlib when the number plate was recovered. He further deposed that accused Sheikh Mutlib was arrested on 09.04.2004 in case FIR no.147/04 PS-Khajuri Khas on the basis of disclosure statement of accused Sheikh Montu. He admitted that the number plates produced were not sealed. He denied the suggestion that no number plate was recovered from the house of the accused Sheikh Mutlib or that the accused Sheikh Mutlib has been falsely implicated in the present case.
18. PW-7 WSI Usha Verma who is a formal witness was examined on 06.04.2009 and proved the FIR Ex. PW-7/A and endorsement on the basis of rukka Ex. PW-7/B (OSR).
19. This witness was not cross examined by the accused despite opportunity given.
20. PW-8 HC Jagbir Singh was examined on 20.02.2010 and deposed that on 09.04.2004 he was posted at Special Staff, North East as HC and on that day SI Narender Kumar at the information regarding two boys having stolen motorcycle with forged number plate who will come from Seelampur side and will go to Wazirabad. He further deposed that he along with SI Narender, Ct. Rambir and Ct. Pradeep Premi went to the spot at Waseerabad Road, near Nanak Sar Gurudwara where Ct. Jai Karan was present who was also joined the raiding party. SI had asked 4-5 public FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 10/17 persons to join the investigation but none of them agreed and they started checking vehicles by erecting nakabandi at about 2.50pm and at about 3.30pm two persons came on motorcycle of red colour bearing no. DL-7SL-5051 make Hero Honda Passion from Khajuri Chowk side towards Wazeerabad Pul which was stopped by SI with the help of other staff. He further deposed that the accused failed to show the documents of motorcycle and the said motorcycle was driven by accused Sheikh Montu and Sheikh Moujul was pillion rider. The said motorcycle with fake number plate was seized vide memo already mark E. He further deposed that IO prepared rukka and got the FIR registered through Ct. Jai Karan. On inquiry made by the IO the motorcycle was found to be stolen from the PS Malviya Nagar and the case was already registered there. Accused persons were arrested and their personal search were conducted. Disclosure statements of both accused were recorded which are already mark A and B. The case property was deposited in malkhana. Accused were taken to house of Sheikh Mutlib where he was interrogated and at his instance both original number plates no. DL-9SJ-0276 were recovered and seized vide memo mark F. Disclosure statement of accused Sheikh Mutlib was recorded which is already mark C. He further deposed that as per disclosure accused Jagat was the person at Railway Station who was supposed to send this stolen motorcycle to Katiyar as per role and statement and both the accused Sheikh Montu and Sheikh Moujul were taking this motorcycle to railway station. Accused Jagat was also arrested and got recovered one photocopy of RC which was seized vide memo already mark G. Disclosure statement of accused Jagat was also recorded which is already mark B. He further deposed that IO recorded his statement and supplementary statement. He further identified the case FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 11/17 property i.e. two number plate of the vehicle bearing no. DL-7SL-5051 and DL-9SJ-0276 which are Ex. P-3 colly.
21. This witness was not cross examined by the accused despite opportunity given.
22. PW-9 Ct. Jai Karan was examined on 17.09.2014 and deposed that on 09.04.2004 he was posted as Ct. at Special Staff, NE and on that day he had received secret information and forwarded the secret information to SI Narender. He further started he along with IO SI Narender, HC Jagbir and other staff started checking vehicle by Picketing at Nanak Sar Gurudwara and at about 3.30pm a motorcycle bearing registration no. DL7SL 5051 on which two boys were riding was signaled but they could not produced the RC and they tacked fake no. plate. He further deposed that IO had seized the motorcycle vide memo Mark B bearing his signature at point B and seized the fake motorcycle bearing registration no. DL9SJ 0276 vide memo mark F bearing his signature at point B and also seized the photocopy of RC vide memo already Mark G bearing his signature at point D. He further identified the accused present in the court. IO had prepared the rukka.
23. This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that on 09.04.2004 he was on duty for 24 hours in Special Staff, NE and received the secret information at about 1-1.30 pm. He further deposed that he had not informed the SHO of special staff regarding receipt of secret information and he immediately informed the SI Narender. He further deposed that he does not remember whether any DD entry was made in Rojnamcha. He further deposed that those two boys who were asked to produce RC and other documents disclosed their names as Shiekh Montu and Shiekh Mojul. He further FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 12/17 deposed that the accused present in the court was not stopped at the picket. He voluntarily stated that the recovery of original no. plate was affected at the instance of disclosure statement of accused from the house of accused Mutlib and accused Shiekh Montu and Shiekh Mojul disclosed that the original no. plate were lying in the house of Mutlib. He further deposed that he along with SI Narender and HC Jagbeer and other official of special staff visited the house of Shiekh Mutlib i.e. H. No. B-301, Gali no. 13 Bhajanpura, Naale ke upper. He further deposed that when they visited the house of Mutlib, landlord namely Dev Raj was called however, IO had not recored the statement of Dev Raj. Signature of Dev Raj was obtained on recovery memo of no. plate. He denied the suggestion that the signatures of the Dev Raj was not obtained as no. plate was not recovered from the house of the accused. He further denied the suggestion that he was telling incorrect address of accused Mutlib or that the residential address of Shiekh Mutlib at the time of recovery of no. plates was house no. 750, Gali no. 20 Chandan Bazaar, Delhi. He further denied the suggestion that no recovery of no. plates was affected from the house of the accused.
24. As all the witnesses were examined by the prosecution, PE was ordered to be closed on 17.09.2014. The statement of accused person under section 313 r/w section 281 Cr.P.C was recorded on 24.09.2014 wherein he stated that he has been falsely implicated in the present case and he is innocent and he does not want to lead any defence evidence.
25. Final arguments were advanced by Ld. APP for State and Ld. Counsel for accused person. Heard.
FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 13/17 REASONS FOR DECISION
26. In order to prove the allegations of offence punishable u/s 411 IPC, the prosecution need to prove the following essential ingredients:-
That the accused has dishonestly received or retained any stolen property knowing or having reason to believe the same to be stolen property.
27. In order to prove the above said ingredients the prosecution has examined nine witnesses in total. PW-1 is the complainant namely Sh. Gautam Sarkar who was summoned for proving the complaint Ex PW-1/A. This witness deposed that on 01.04.2004 he had parked his motorcycle bearing no. DL-9SJ-0276 outside his house at about 8.30pm and on the next morning at about 10.30 or 11.00am he was found motorcycle missing and he made efforts to locate the same but of no avail. Accordingly, he made a complaint to the SHO of PS Malviya Nagar which is Ex. PW-1/A bearing his signature at point A.
28. Apart from this witness, prosecution has examined formal witnesses being police officials. PW-2 Ct. Deepak, PW-4 Ct. Ravinder are formal witness who had accompanied with IO. PW-5 HC Yashpal was examined by the prosecution as MHCM who deposited the case property in Malkhana. PW-7 WSI Usha Verma has been examined as duty officer who registered the said FIR which is Ex. PW-7/A.
29. Apart from these formal witnesses, prosecution has examined recovery witnesses namely PW-6 SI Narender Kumar and PW-8 HC Jagbir Singh who have deposed as regards the sequence of events leading to recovery of stolen car bearing number DL-9SJ-0276 with fake number plate DL-7SL-5051. Further, PW-3 HC Mahinder Singh being IO FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 14/17 has been examined who prepared site plan Ex. PW-3/A and prepared challan and filed before the court.
30. Considering the testimonies of witnesses, It is clear that the recovery was made from the accused Matloob does not stand proved.
31. Further, no public witnesses to the recovery which is essential in cases in which recovery is the sole ground for conviction of the accused. It has further been stated by the PWs that public persons were requested to join the investigation but none of them agreed and left the spot. There is no explanation why no notices u/s 174 IPC read with section 42 Cr.P.C. were issued upon public persons.
In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
The failure of the prosecution to examine independent witnesses though available is fatal for their case.
In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that:-
Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 the division bench of Honorable Justices Sh. S.B.Sinha and FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 15/17 Sh. Dalveer Bhandari observed:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken. Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus:
"The court may presume-
(a)***
(b)***
(c)***
(d)***
(e)***
(f)***
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who holds its."
An adverse inference, therefore, could be drawn for non-examination of material witnesses." (emphasis supplied)
32. In absence of a public witness to the recovery and also in absence of an explanation as to why a public person was not joined, the prosecution has failed to prove the recovery of the vehicle from the accused beyond a reasonable doubt.
33. Thus, the prosecution has not been able to prove the guilt of the accused beyond a reasonable doubt.
34. Further the prosecution has failed to prove that the car was recovered from the accused Matloob due to the following reasons :
1. There is no direct evidence to connect the accused with the recovery.
2. Recovery also could not be proved.
FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 16/17
35. In the light of the above discussion, accused Matloob is acquitted for the offence u/s 411 of IPC.
Previous bail bond in compliance of section 437-A Cr.P.C. to remain in force for a period of 6 month from today. File be consigned to record room to be reopened as and when any clue as regards accused Sheikh Montu and Sheikh Moujul is found.
Announced in the Court
on 24.09.2014 (CHETNA SINGH)
MM-02(SD)/24.09.2014
Certified that this judgment contains 17 pages and each page bears my signatures.
(CHETNA SINGH) MM-02(SD)/24.09.2014 FIR No. 267/04 State Vs Sheikh Montu & Ors. Pages 17/17