Delhi District Court
State vs . Sanjay & Ors. Fir No. 97/96, U/S : ... on 8 November, 2012
State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR No. 97/96 PS: Model Town U/S 379/411/468/420/471 IPC State Vs. Sanjay & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 1062/03
B. DATE OF INSTITUTION : 15.11.96
C. DATE OF OFFENCE : 22.02.96
D. NAME OF THE : Sh. Ramesh Kumar
COMPLAINANT Aggarwal
S/o Sh. B.L. Aggarwal
E. NAME OF THE ACCUSED : (1) Sanjay
S/o Sh. Sube Ram
(2) Mainpal @ Subhash
S/o Sh. Puran Chand
(3) Veer Pal
S/o Sh. Sarvan Singh
(4) Khushi Ram
S/o Sh. Jaipal Singh (PO
vide order dated 07.04.2011)
(5) Balram @ Billay
S/o Sh. Gopi Chand
(proceedings against him
were abated vide order
dated 08.11.2012)
F. OFFENCE COMPLAINED OF: U/s 379/411/468/420/471
IPC
Page No. 1
State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town G. PLEA OF ACCUSED : Pleaded not guilty. H. FINAL ORDER : Accused Sanjay, Mainpal and Veerpal are acquitted. I DATE OF SUCH ORDER : 08.11.2012 Brief Statement of Reasons for Decision:
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on 22.02.1996, the present FIR u/s 379 IPC was lodged at PS Model Town by the complainant Sh. Ramesh Kumar Aggarwal, regarding theft of his Maruti car bearing no. DAQ 7338, which was stated to be stolen by some unknown person from front of Shalimar Park, Model Town, Delhi. Subsequently, on 16.03.96 at about 10:05 am at the main road, within the jurisdiction of PS Khekra, District Meerut, U.P. the police officials of U.P. Police apprehended all the five accused persons namely Sanjay, Mainpal, Veerpal, Balram(expired) and Khushi Ram(PO), who were found in possession of the aforesaid stolen Maruti Car with a fake number plate bearing no. DL 2CA 6756. The forged RC of the said vehicle was also recovered from the possession of the accused persons. Thereafter, all the accused persons were arrested by the IO of this case and the recovered car was brought to the malkhana of PS Model Town. On 05.06.1996 accused Sanjay led the IO of the case to his shop and he got recovered the AC of the stolen car from his shop. The said AC was seized by IO SI Satyabir Singh. After conclusion of the investigation, the present challan u/s 379/411/420/468/471/34 IPC against all the accused persons was filed in the court.
2. In compliance of Section 207 Cr.P.C., the copy of the Page No. 2 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town challan and the documents annexed therewith were supplied to the accused persons namely Sanjay, Veerpal, Balram and Khushi Ram. The accused namely Mainpal failed to appear in the court and therefore, after due process the said accused was declared proclaimed offender on 15.03.1999. Prima facie charge u/s 379/411/34 IPC was made out against all the said four accused persons and charge u/s 468/471 IPC was made out against accused Sanjay. Accordingly, on 27.03.1999 the charge was separately framed by the Ld. Predecessor of this court. The said separate charges were read over and explained to all the accused persons. They pleaded not guilty and claimed trial to the said charges. Thereafter, the case proceeded for prosecution evidence.
3. Subsequently, accused Mainpal was apprehended and he was produced before the court for facing trial. Prima facie charge u/s 379/411/34 IPC was made out against him. Accordingly, a separate charge was framed against him on 06.02.2001. The accused Mainpal pleaded not guilty and claimed trial to the said charge.
4. In order to substantiate its case, the prosecution examined seven witnesses.
5. Ct. Satpal (PW1) is a formal witness who was present with the IO SI Satyabir on 23.02.1996, when IO arrested the accused Sanjay at Tis Hazari Courts. He has testified that IO took PC remand of the accused Sanjay.
6. Sh. Ramesh Kumar Aggarwal (PW2) is the complainant and he has deposed that on 22.02.1996, his maruti car bearing no. DEQ 7338 was stolen from front of Shalimar Park, Model Town, Delhi. He has testified that the present FIR was lodged on the basis of his statement and he has proved his signatures on FIR exhibited as Ex.PW2/A. He has further Page No. 3 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town testified that after about one month he alongwith SI Satyabir Singh went to PS Khekra, U.P., where he identified his stolen car. He has deposed that all the accused persons were also present there. He has testified that at PS Khekra, he saw that fake/duplicate registration number plates bearing no. DL 2CA 6656 were used by the accused persons on his car. The complainant has deposed that his car was fitted with AC and stereo, however when the same was recovered the said AC and car stereo were missing from his car. He has further testified that IO also seized the forged RC, wherein the registration no. DL 2CA 6656 was mentioned. The said car is Ex.P1.
7. SI Yoginder Dutt Sharma (PW3) is the U.P. Police official who was posted as MHC (M) at PS Khekra on 23.03.1996. He has testified that on the said date SI Satyabir Singh of Delhi Police came to his PS and he handed over Maruti Car bearing no. DAQ 1338 to the said SI, which was deposited in the Malkhana of his PS. He has deposed that it had fake number plates attached with it and the said plates bore registration no. DL 2CA 6756. The said fake number plates are exhibited as Ex.P3 and the forged RC is Ex.P2.
8. SI Kamal Duggal (PW4) is a formal witness who registered the present FIR on 23.02.1996. He has proved the copy of FIR and the same was already exhibited as Ex.PW2/A.
9. Insp. Suresh Kumar (PW5) was the first IO, who prepared the site plan Ex.PW5/A on 23.02.1996 at the instance of the complainant Sh. Ramesh Kumar Aggarwal.
10. HC Subhash (PW6) has testified that on 20.05.1996 he accompanied IO SI Satyabir Singh to THC and the IO formally arrested accused Khushi Ram in his presence, who was produced in the court from Meerut Jail. He has further deposed that on 30.05.1996 accused Veerpal was similarly Page No. 4 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town formally arrested by IO SI Satyabir Singh at THC. On 05.06.1996 accused Sanjay led him and IO SI Satyabir Singh to his shop at Loni border, near railway crossing and he got recovered one car AC from his shop. He has testified that accused Sanjay disclosed that the said AC was removed by him from the car that was stolen by him alongwith his associates from the area of PS Model Town. He has proved the seizure memo of said AC as Ex.PW6/C. In his cross examination he has admitted that many public persons were present at the spot of recovery and he does not remember the make of AC. The said AC was never produced in the court.
11. Retd. SI Satyabir Singh (PW7) has deposed on similar lines as that of HC Subhash (PW6). Therefore, his testimony that is in consistence with PW6 is not repeated herein for the sake of brevity and to avoid prolixity/verbosity. However, his cross examination was deferred for the want of car AC. Subsequently, he never turned up in the court for conclusion of his testimony. Thereafter, PE was closed.
12. Statements of all the three accused persons namely Sanjay, Mainpal and Veerpal U/s 313 Cr.P.C. were separately recorded. All the incriminating evidence against them were put to them for seeking their respective explanations. In the said statements, they have stated that they are innocent and they have been falsely implicated in the present case. They chose not to lead evidence in defence. Therefore, the case was listed for final arguments.
13. I have heard Ld. APP for the State and Ld. Counsel for all the accused persons. I have carefully perused the case file.
14. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, Page No. 5 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
15. In the instant case all the three accused persons are charged for the offence punishable u/s 379/411 IPC and accused Sanjay is charged for the additional offence punishable u/s 468/471 IPC. The incident of theft occurred on 23.02.1996 and it is an admitted fact that no one has seen the accused persons committing the offence of theft of car. Moreover, the FIR Ex.PW2/A also suggest that the complainant has lodged the present FIR against unknown persons. Besides that, none of the prosecution witnesses has uttered even a single word against either of the accused persons regarding the allegations of theft. Thus, the prosecution has failed to establish the basic ingredients for the offence of theft against the accused persons. Thus, all the accused persons are entitled to be acquitted for the offence punishable u/s 379 IPC. Accordingly, they stand acquitted for the said offence.
16. In respect of the offence punishable u/s 468/471 IPC, the presence of a forged document is a prerequisite and the allegations qua said offences cannot be brought home unless, the forged document is placed and proved on record. In the instant case the prosecution has alleged that the RC of the stolen vehicle is a forged document and same was recovered from the possession of the accused Sanjay at the time of recovery of the stolen car. The alleged forged RC is Ex.P2. The said RC Ex.P2 does not bear signature of any person including motor licensing officer, though it contains a seal of MLO affixed on it. The prosecution has failed to establish that the said alleged seal is not genuine. Further, the said RC was never sent Page No. 6 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town to the concerned transport authority office to ascertain the veracity of the said document. The prosecution has failed to examine any official from transport authority, who could have deposed that the said RC Ex.P2 is not a genuine document. Moreover, the prosecution has also failed to explain from where the accused persons procured or manufactured the said RC Ex.P2. In the wake of above discussion, the prosecution has failed to establish that RC Ex.P2 is a forged/false document.
17. If it is assumed that the said RC Ex.P2 is a forged/false document, in that case the prosecution is required to establish that the same was used by the accused persons for the purpose of cheating and they also used it as a genuine document. The proof of the said fact is dependent upon the fact whether the stolen car was recovered from their possession within the area of PS Khekra, as alleged by the prosecution or not. It is the case of the prosecution that first the stolen car was recovered from possession of the accused persons and thereafter the alleged forged RC was also recovered from them by the police officials of U.P. Thus, the offence u/s 468/471 IPC can only be attracted against them, if the prosecution is successful in proving the recovery of stolen car and also forged RC Ex.P2 from the possession of the accused persons.
18. The stolen car and the alleged forged RC Ex.P2 are alleged to be recovered by the police officials of PS Khekra, U.P. However, none of the recovery witnesses has appeared in the court to depose about the recovery of the said car and alleged forged RC Ex.P2. Besides that, the original documents pertaining to the recovery of the said articles have also not been placed or proved on record. In the absence of the testimony of any of the recovery witness,the prosecution cannot bring home the guilt of the accused persons for the offence pertaining to Page No. 7 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town recovery of stolen car or forged document. Thus, if the recovery of alleged forged RC Ex.P2 is not substantiated to have been recovered from the accused persons, then the question of its use for the purpose of cheating or using it as a genuine document by the accused persons does not arise. Accordingly, the prosecution has miserably failed to establish the basic ingredients of the offence punishable u/s 411 IPC qua stolen car and offence punishable u/s 468/471 IPC against the accused persons.
19. Insofar as, the alleged recovery of stolen car AC from the shop of the accused Sanjay at his instance is considered, the prosecution has failed to produce the said car AC in the court. Further, none of the prosecution witnesses including complainant and the alleged recovery witnesses of the said car AC have specified its make/specific identity. The prosecution is required to prove that the property recovered from the possession of the accused is a stolen property. In a case titled "Mahabir Vs. State of Bihar, AIR 1972 S.C. 642, the Hon'ble Apex Court has held that : "The essential requirement of the offence of receiving stolen property is that the property seized from the possession of the accused must be proved by the prosecution to be stolen".
There is no conclusive evidence on record to suggest that the alleged recovered AC was removed from the stolen car and it belonged to the complainant. The said AC was neither produced in the court nor it was shown to any of the prosecution witnesses including complainant, who could have identified the said AC to be the part of the stolen car. In absence of any distinct/specific identity of the alleged recovered AC and the AC of stolen car, it cannot be cogently Page No. 8 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town concluded that they are one and the same. In view of above discussion, the prosecution has failed to conclusively substantiate that the said alleged AC is the part of the alleged stolen car and therefore, a stolen property.
20. If for the sake of arguments, it is assumed that the recovered AC was a stolen property, in that case also the prosecution has to establish that the same was recovered at the instance and from the possession of the accused Sanjay. The prosecution has alleged that the same was recovered from the shop of the accused Sanjay at his instance on 05.06.1996. In the instant case, HC Subhash (PW6) and Retd. SI Satyabir Singh are the alleged recovery witnesses of the stolen AC. However, none of the said witnesses has specified the exact address of the alleged shop of accused Sanjay, from where the said AC was allegedly recovered.
21. HC Subhash (PW6) in his cross examination has admitted that there were many public persons at the spot of alleged recovery of car AC. Further, it is an admitted fact that the alleged place of recovery is a crowded area. Had the recovery witnesses would have made effort they could have easily joined public/independent witness at the time of recovery. However, in their wisdom they preferred not to join any public witness despite of their availability. The recovery witnesses have also failed to advance any justifiable reason for non joining of independent/public witness at the time of alleged recovery of the car from the accused. Hence, story of the prosecution is further shrouded in suspicion.
22. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The recovery witnesses that are examined by the prosecution in the Page No. 9 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness at the time of alleged recovery of the car creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court
23. The reliance can also be placed upon the findings given by Hon'ble Apex Court in case titled as Harjit Singh V. State of Punjab [2002]SUPP1SCR581wherein it is held: "......... 50 Apart from the versions of eyewitnesses discussed above, the trial court attached importance to the fact that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered under memorandum Ext. P19. We have referred to the statement of Investigating Officer Puran Singh (PW9). He is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statement Ex.PV and memorandum of recovery Ext. PU1. We have noted that these memoranda have been signed only by two police officers Faqir Chand and Virsa Singh. It is unbelievable that all the accused persons who have alleged to use their Page No. 10 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town firearms/weapons kept all the arms concealed in an open field in a gunny bag under the heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied on by the trial court to convict the accused by treating it as eyewitness account."
I also find support from case titled as Aslam Parwez V. Govt. of NCT of Delhi 2003CriLJ2525 Hon'ble Supreme Court has held:
"10......In view of these features of the case, we are of the opinion that the testimony of three police personnel, namely, PWs 10, 11 and 1 does not inspire confidence and it will be highly unsafe to place reliance upon the same in order to convict the accused specially when the public and independent witnesses did not at all support the prosecution case on any material particular."
24. Keeping in view the fact that the version of the recovery witnesses has remained uncorroborated by any other independent witness regarding the alleged recovery of the stolen car, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
25. Thus, the prosecution has also failed to establish that the alleged stolen AC was recovered from the possession of Page No. 11 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town accused Sanjay and accordingly, he is entitled to be acquitted for the offence punishable u/s 411 IPC qua car AC. Thus, considering the above facts and circumstances, all the three accused persons are entitled to benefit of doubt.
26. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against the accused persons namely to bring them within the four corners of the offences punishable U/s 379/411/468/471/34 IPC, accordingly, the accused persons namely Sanjay, Mainpal and Veerpal are acquitted for the offences punishable U/s 379/411/468/471/34 IPC. They are directed to furnish fresh personal bonds in a sum of Rs. 15,000/ with one surety each in like amount, in accordance with Section 437A Cr.P.C. The same are furnished and they are accepted. They shall remain in force till next six months.
File be consigned to Record Room after due compliance with the directions to revive it as and when the accused Khushi Ram is arrested and brought before the court for facing trial.
Announced in the open court today i.e. on 08.11.2012.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI/DELHI Page No. 12 State Vs. Sanjay & Ors. FIR No. 97/96, U/s : 379/411/468/420/471 IPC, PS: Model Town IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI.
FIR No. 97/96PS: Model Town U/S 379/411/468/420/471 IPC State Vs. Sanjay & Ors.
08.11.2012 Present: Ld. APP for the State.
Accused Sanjay, Mainpal and Veerpal are on bail with counsel. Accused Khushi Ram was declared PO vide order dated 07.04.2011.
Proceedings against accused Balram were abated vide order dated 08.11.2012.
Vide my separate judgment announced in the open court today, the accused persons namely Sanjay, Mainpal and Veerpal are acquitted for the offences punishable U/s 379/411/468/471/34 IPC. They are directed to furnish fresh personal bonds in a sum of Rs. 15,000/ with one surety each in like amount, in accordance with Section 437A Cr.P.C. The same are furnished and they are accepted. They shall remain in force till next six months.
File be consigned to Record Room after due compliance with the directions to revive it as and when the accused Khushi Ram is arrested and brought before the court for facing trial.
(Dheeraj Mor) MM/Rohini/08.11.2012 Page No. 13