Delhi District Court
State vs . Maan Singh & Anr on 18 January, 2020
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-02(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No. 20/14
PS Timarpur
State Vs. Maan Singh & Anr
U/s 379/411/34 IPC
CNR No.DLCT-02-003646/14
CIS No. 295338/16
JUDGMENT
(a) Sr. No. of the Case 295338/16
(b) Date of offence 16.01.2014
(c) Complainant Anil Kumar S/o. Sh. Inder Raj, R/o. House No. 95,
1st Floor, Tagore Park, Model Town, Delhi.
(d) Accused 1. Maan Singh S/o. Sh. Dev Narain, R/o. House No. 29A, Block No. K-2, Nihar Vihar, New Delhi.
2. Virender Sahani S/o. Sh. Shiv Dhar Sahni, R/o.
Village Bajidpur, PO Chhamukh, PS Buncha, District Mujafarpur, Bihar.
(e) Offence 379/411/34 IPC (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 05.06.2015 (i) Date when judgment was 18.01.2020 reserved (j) Date of judgment 18.01.2020. FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 1 of 28 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Timarpur against accused persons Maan Singh and Virender Sahani for the offence U/s 379/411/34 IPC.
2. It is the case of the prosecution that on 16.01.2014, at about 3:45 pm, near the fly over of Wazirabad at the turn towards Nehru Vihar, Timarpur, Delhi, a theft of laptop bag containing Rs. 9 lac, laptop make of Lenova of black colour, cheque book of ICICI Bank, Syndicate Bank, HDFC Bank, office and locker keys, four pen drives, one account system dongal. USB Data card of reliance no. 8506916497, one mobile phone of make of Samsung black colour having no. 8373961414, 8506949167 and another mobile phone of model 5540 & certain other documents of the complainant were stolen from the vehicle of the complainant bearing no. DL-8CL-6125 Innova Car which complainant got parked at the above mentioned place for repairing of the punctured tyre and out of the said articles one mobile phone of Samsung Duos model GE-B5512 of black colour was recovered from the accused Maan Singh and laptop Lenvoa Black colour was recovered from the possession of accused Virender Sahani and both of them kept these articles having knowledge or reasons to believe the same to be stolen property and thereby committed an offence under Section 379/411/34 IPC.
COURT PROCEEDINGS
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused persons Maan Singh and Virender Sahani.
4. Thereafter, charge under Section 379/411/34 IPC was framed against the accused persons Maan Singh and Virender Sahani vide order dated 20.08.2015 passed by Ld. Predecessor to which they pleaded not guilty and claimed trial.
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5. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
6. In order to prove the guilt of the accused, prosecution examined as many as 11 witnesses.
7. PW-1 is Sh. Anil Kumar, who deposed that on 16.01.2014, at about 3:30 pm, he was going to his factory at Ghaziabad in his Innova Car bearing no. DL-8CL-6125, that he took turn towards Nehru Vihar after Wazirabad Flyover, two persons on motorcycle told him that there is a puncture in tyre of his car, that there was a tyre puncture shop and he stopped his car there, that the driver side door was unlocked and his attention was towards the tyre puncture, that after sometime when he entered into the car he found his black coloured bag missing, that the bag was consisting of a laptop, 04 pen drive, 02 mobile phones, locker keys, cheque books, documents and a sum of Rs. 9 lakhs, that laptop was of lenovo company, that mobile phone was of samsung dual sim, that he made the 100 number PCR call, that after about 15 minutes the police from PS Timarpur came to the spot and recorded by statement Ex. PW-1/A, that police prepared site plan at the instance Ex. PW-1/B, that he was informed by the police officer that part of the stolen articles have been recovered. Thereafter, MHC(M) produced two white cloth pullands sealed with the seal of AK, that in one pullinda of plastic box one black colour mobile phone make samsung duos and the witness identified the same which is Ex. P1, that in the other pullanda a black colour leather bag of polo executive consisting of one laptop of thinkpad, two pen drives, one data cable and one charger, that witness also identified the same as Ex. P-2 (colly). He further deposed that he handed over the bill of mobile phone to the police.
8. In the cross examination, PW-1 deposed that he handed over the bill of mobile phone to the police after about 8-10 days of the incident, that he FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 3 of 28 had not signed any document at the time of handing over the bill. He denied that he had not handed over any mobile phone to the police. He voluntary deposed that the bill was got verified by the police as he got telephonic confirmation of the same from the shopkeeper. He further deposed that he handed over the copy of the bill, that he do not remember the day of purchase of the mobile phone, that he could not furnish the bill of the laptop and other articles as the same were missing, that he stated in his statement regarding the make of the laptop as lenovo but not the model of the same, that he had not identified the recovered articles during the investigation. He admitted that he identified the mobile phone as shown by the Court as he had mentioned the make and model of his mobile in his statement and the same may be confirmed by the IMEI number of the same, that model no. 5512 is not mentioned on the mobile phone, that the IMEI number is also not mentioned on the body of the phone, that a company must have made number of mobile phones of this model. He admitted that the bill and custom receipts of the laptop is not in his custody as the documents were in the bag stolen from the car. He further deposed that the mobile phone bill was not in the said bag. He admitted that he had not specified the particulars of the documents missing in the bag. He further deposed that the laptop was imported from U.K. as gifted by his friend, that the amount of Rs. 9 lakhs were withdrawn from the bank on the same day, that rear left tyre of the car was punctured and it was a tubeless tyre, that the tyre was totally damaged and new tube was fitted in it and it took about 15-20 minutes, that he was standing near the car. He admitted that the tyre was removed by the use of jack. He further deposed that the tyre was opened from the wheel to fit the new tube, that the mechanic himself gave the new tube, that he was present on the left side of the car, that glass of the car was closed and the bag was taken away by opening the door from driver side. He admitted that in his statement Ex. PW-1/A he used the word window. He further deposed that he cannot identify those motorcyclist as they were wearing helmet, that he had suspicion on those two motorcyclist that they might have stolen his bag after puncturing the car, that he cannot tell the description of those two boys. He denied that no theft was FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 4 of 28 committed and the story is concocted on the spot. He admitted that number of public person had gathered on the spot. He further deposed that no public person was examined in his presence. He admitted that site plan Ex. PW-1/B was prepared in his presence. He further deposed that width of the road was around 25-30 feet. He denied that the width of the road was only 10 feet and Innova car cannot be parked on that road, that he is deposing falsely.
9. PW-2 is Ct. Devender Singh, who deposed that on 27.03.2014, he was posted as PS Timarpur, Delhi as constable, that he along with SI Ganpati Maharaj, HC Ajay and Ct. Subhash and accused Maan Singh went to Village Wazidpur, PS Buncha, District Muzaffarpur, Bihar and they reached there on 29.03.2014, that on the identification of accused Maan Singh, accused Virender Sahani was apprehended at his house at the above said Village, that the accused Virender Sahani got recovered one Laptop and some electronic articles like pen drive and one black laptop bag from his house, that the aforesaid articles were seized after converting into a Pullanda and sealed with the seal of 'AK', that the seizure memo is Ex.PW-2/A, that after interrogation, the accused Virender Sahani was arrested and his personal search was conducted vide separate memo Ex.PW-2/B & Ex.PW-2/C, that the accused was taken to the PS Buncha where the accused Virender Sahani was interrogated and the IO recorded his disclosure statement Ex.PW-2/D, that the IO recorded his statement, that case property is Ex.P1 and Ex.P2.
10. In the cross examination, it is put to the witness whether he had not gone to Bihar regarding the investigation of this case, to which he replied in negative. He deposed that they had gone by train, that the tickets were arranged by the IO, that he had not made entry in the police station of Bihar, that IO might have done, that they started from Bihar to Delhi on the same night, that he do not know the number of room in the house of the accused, however, the aforesaid articles were recovered from the room at ground floor, that no mobile was recovered, that the articles FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 5 of 28 were got recovered from the room, that the articles were not recovered from almirah or bag and it was recovered from the cupboard inside the wall, that the cupboard was built in cemented structure, that the accused Maan Singh was not arrested in his presence and nothing was recovered in his presence. He further deposed that he do not remember the station and the train which they boarded to go Bihar, that they deboarded at Patna railway station, that it took two to two and half hour by bus to reach police station, that two local police official was taken to go to village of the accused, that he do not remember the name of the police officials, that they went to the village of the accused in a private car from police station and they reached there within half hour. The IO had hired the car. The house of the accused was at the distance of around 250 meter from entrance into the village. No other villager was joined in the investigation. He further deposed that they reached at the village at about 09.00 a.m and remained there for about one hour, that he cannot tell the exact no. of electronic items recovered from the accused, that sister and father of the accused were present, that he do not remember about the other family members, that the seizure memo were signed by Ct. Subhash, IO and him, that the IO did not take the signatures of local police officials on the said seizure memo, that the IO had not taken the signatures of any family member, that he do not know what was the fare of the car and same was paid by the IO, that they remained at PS- Buncha after returning from the village of the accused for about one hour, that the disclosure of the accused was recorded in his presence and Ct. Subhash and they had signed as a witness. He denied that Maan Singh never pointed out the house of accused Virender, that accused Virender never produced any such laptop or other electronic items as stated by him, that the signatures of accused Virender were obtained on blank paper by the IO and later on they were used to prepare his disclosure statement and the recovery memo, that they never visited the house of accused Virender and the documents qua accused Virender were prepared by the IO at police station, that he has signed these paper in the police station, that he is deposing falsely.
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11. PW-3 is Israr Babu, who deposed that he is working as alternate Nodal officer, Vodafone Mobile Services Ltd. C 45, Okhala Phase II, New Delhi- 20, since May 2010, that he has not brought the record of IMEI number 352615050142677 for the period from 16.01.2014 to till date and ownership of 8373961414 and 9899814627, that he has brought the original record pertaining to the ownership of mobile number 8373961414 photocopy of the same was taken into the record which is Ex PW3/A (OSR) along with computer generated copy of CDR duly stamped with his initials which is Ex PW3/C along with and Certificate under Section 65-B of Indian Evidence Act which is Ex PW3/B, that the record pertaining to the mobile No. 9899814627 and record of IMEI 352615050142677 for the period from 16.01.2014 to till date was not found in their system/record and he cannot produce the record pertaining to IMEI 352615050142677, that as per information and record, the mobile number 9899814627 ported out to Aircel in the year 2011.
12. In the cross examination, PW-3 admitted that he has no knowledge about the ownership of the mobile and he can only say about the ownership of SIM card number quoted by him, that the said SIM card is in the name of Sh. Parveen S/o Sh. Ajay Kumar as Ex PW3/A, that he has the authority to appear before the court, that he has produced one authority letter but the same does not mentioned any date on which this authority letter was given or signed. He admitted that the alleged authority letter is also not signed by him, that his signatures have not been attested by the maker of the alleged authority letter. He denied that he is not authorized to depose in this court on behalf of the company. He further deposed that he cannot produced any authority letter except the aforesaid letter in his name which enable him to go to the system and retrieve the data from the system of the mobile phone which he has brought today in the court today. He admitted that Ex. PW3/C does not show as to on which date the said data was retrieve from the system nor it was the date on which he signed in the stamped of this documents, that Ex PW3/B is signed by him on 30.11.2017 i.e today. He denied that he is not authorized to retrieve the data from the system of the company, that he has filed the FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 7 of 28 wrong documents in the case without any authority.
13. PW-4 is ASI Ishwar Dayal Tyagi, who deposed that on 16.01.2014, he was posted as Duty Officer and registered FIR Ex. PW-4/A (OSR), made endorsement on rukka Ex. PW-4/B and issued certificate under Section 65-B of Indian Evidence Act Ex. PW-4/C. He further deposed that he did not record DD No.30-A PS Timarpur dated 16.01.2014 at 3:35 pm.
14. PW-5 is Ct. Subhash, who deposed that on 29.03.2014, he was posted at PS-Timar Pur as constable, that he along with IO HC Ajay and Ct. Devender took the accused Maan Singh and went to Bihar i.e. Village Wajitpuri, District Mujaffarpur, Thana-Bocha, that at the instance of the accused Maan Singh, they apprehended accused Virender Sahani from Village Wajitpuri and accused Virender Sahani got recovered black bag, two pen Driver, one USB, one Dongle and some other electrical articles from his house at village Wajitpuri, that after interrogation by HC Ajay of accused Virender Sahni, IO recovered one laptop and other electronic items from the house of accused and seized the same and prepared pullanda and sealed with the seal of AK vide seizure memo Ex. PW2/A, that IO arrested accused Virender Sahani and also conducted his personal search vide memos Ex. PW2/B and Ex. PW2/C, that IO also prepared site plan of the place of recovery and same is Ex. PW9/B, that IO recorded the disclosure statement of accused Virender Sahani and same is Ex. PW2/D, that IO recorded his statement, that he along with IO/HC Ajay, Ct. Devender and accused Maan Singh left Delhi on 27.03.2014 and reached at Village Wajitpuri, District Mujaffarpur, PS Buncha, Bihar on 29.03.2014, that he wrongly mentioned the date 29.03.2014 for going to aforesaid place in his examination in chief on 30.11.2017, that the bag recovered from the accused Virender is of black colour. Thereafter, MHC(M) has brought the case property, that the same is sealed with the seal of Court 'NSM', that the same is broken with the permission of the Court, that on opening the same, it is found containing one black bag and laptop of black colour, one dongal of make reliance, two pen drives and one portable charger, that the case property shown to FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 8 of 28 the witness, who after seeing the same the witness has correctly identified the stated case property as the one which was recovered from the possession of accused Virender, that the case property is Ex. P-2 (colly).
15. In the cross examination, PW-5 deposed that he had not made any DD entry prior to his departure, that at around 8:00 pm, he had left the police station for going to Muzafarpur, Bihar, that accused Maan Singh was on PC remand, that he do not remember which train they had taken for going to Muzafarpur, that he do not remember the platform from which they departed for Muzafarpur, that they were not having train ticket, that IO was also not having any train ticket. He admitted that they had not purchased any train ticket. He further deposed that he and IO had not asked any public person to join the investigation, that they reached at Patna on 29.03.2014, at about 2:00 am (midnight), that he do not remember on which platform he had deboarded, that they took the taxi to reach Muzafarpur, that IO had paid the taxi bill, that he do not remember how much money IO had paid to the taxi driver, that he cannot tell the taxi number from which they had departed for Muzafarpur, that he cannot tell whether IO had requested to taxi driver to provide bill, that they reached at Muzafarpur at around 6:00 am, that they had gone to local police station namely Buncha, that IO had made arrival entry in the PS Buncha however, he do not remember the said arrival entry, that IO can tell if he had made any departure entry from the PS Buncha, that they had left police station Buncha at around 8:30 am, that they had reached at village Wajitpur, District Muzafarpur, Thana Buchaha, at about 8:45 am-9:00 am, that some public persons from the neigbhour had gathered there, that they had not made any request to the public persons to join the investigation, that IO had made seizure memo at the spot at around 9:05 am, that he and IO had not made any request to the public person to join the investigation at the time of preparation of seizure memo, that IO had sealed the recovery articles, that IO handed over to him the said seal, that IO had not prepared any handing over memo of seal, that he cannot tell exact documents prepared by the IO, that he and IO had not FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 9 of 28 took the photograph of recovery articles, that they remained at the spot for about 30 minutes, that he cannot tell whether the IO had made any arrival entry in the PS or not, that the accused Virender was produced before the Court, however, today he do not remember the name of the Court, that they reached at Patna Railway Station at around 6:00 pm by that taxi, that they had made arrival entry in the GRPF at Patna Railway station but he cannot tell the number of arrival entry, that he cannot tell the name of the train by which they came to back to Delhi from Patna, that he cannot tell the name of the officer who was present at GRPF station, that they reached Delhi at about 12:00 noon on the next day, that the medical examination of accused Virender was got conducted after reaching Delhi and thereafter, accused Virender was taken to the PS, that accused Maan Singh was in the custody of Ct. Devender and accused Virender was in his custody, that they reached at the PS at about 3:30 pm, that he cannot tell the number of arrival entry in the PS Timarpur. He denied that they never took accused Maan Singh to Muzafarpur or that accused Virender was not pointed out by accused Maan Singh or that accused Virender has been falsely implicated in the present case in the verge of solving the pending cases of the PS or that no recovery was effected from any of the accused persons. He further deposed that the police station Buncha was about 35-40 kilometers from District Mujafarpur, that one constable, whose name he do not remember, had also joined them from PS Buncha, that they reached village Wazitpur from PS Buncha in the same taxi, that village Wazitpur was about 7-8 kms from PS Buncha, that there were about 50-60 houses in that village, that in his presence IO did not ask about the name of the Pradhan of that village from anyone, that around 7-8 villagers had gathered there, that house of Virender was located at the outskirt of the village, therefore, they did not enter in the village, that they reached at the house of Virender at about 9:00 am, that mother of accused Virender was also present in the house, that the house of accused Virender was of two rooms, that its wall was of bricks but were not cemented, that they remained in the house for about 30 minutes, that one bag containing one laptop, one dongal and other electronic items were produced by accused FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 10 of 28 Virender from his house which was placed by him on one cemented slab of his room, that the constable of police station Buncha was present when accused Virender produced that bag, that the signature of the constable of PS Buncha was not obtained on any document in his presence, that IO had not requested any villager to join the investigation, that the seizure memo was prepared by the IO while sitting on the charpai placed inside the room of accused Virender, that the said seizure memo was signed by him Ct. Devender and by the IO, that the arrest memo of the accused was prepared by the IO and the accused Virender was taken to PS Buncha, that the concerned Court of PS Buncha lies at Mujafarpur, that the site plan of vicinity where the house of accused Virender lies was also prepared by the IO. It is put to the witness whether the exact place from where the accused Virender produced the alleged bag was shown in that site plan or not, to which he replied that the IO has reflected the said place in the site plan. He further deposed that he cannot tell the make of bag, that he cannot tell the name of owner of the adjacent house, that in his presence IO has not placed any identification mark on the case property. He voluntarily deposed that IO had sealed the case property and thereafter, placed his seal on the same after the recovery. He further deposed that the cloth used for the purpose of sealing was carried by the IO with him from Delhi itself. It is put to the witness whether the IO had recorded in the seizure memo about the make or any other mark of identification on the bag, laptop and dongal, to which he replied that the said memo was prepared by the IO and he has no knowledge about it. He denied that neither accused Maan Singh pointed out the house of accused Virender nor accused Virender produced any such bag containing laptop, dongal etc., that the signatures of the accused Virender were obtained on blank papers by the IO which were further culminated into his disclosure statement, recovery memo etc., that they never visited at the house of accused Virender or that the documents qua accused Virender were prepared by the IO while sitting in the PS, that he had signed documents while sitting in the PS at the instance of the IO, that he is deposing falsely.
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16. PW-6 is ASI Gaurav, who deposed that on 26.03.2014, he was posted as Ct. at PS. Timar Pur, that on that day, HC Ajay arrested accused Maan Singh in PS Timar Pur and conducted his personal search vide memo EX.PW6/A and EX.PW6/B, that one mobile make of Samsung (duel SIM) was recovered from accused Maan Singh and IO prepared seizure memo of above-mentioned mobile in his presence vide seizure memo EX.PW6/C, that case property is EX.P1.
17. In the cross examination, PW-6 deposed that his statement was recorded by the IO at the PS, that he had also signed the seizure memo of recovery of mobile phone, IO also recorded the disclosure statement of accused in his presence, that he had also signed the said disclosure statement of accused Maan Singh. He denied that his statement was not recorded by the IO at the PS. He further deposed that he do not remember as to how many documents were signed by him on this date, that he do not remember whether he has signed on one date or on several date, that the mobile phone was recovered in his presence & it was in working condition, that he had seen the IMEI number of the mobile phone, that he along with IO & accused were present along with some other persons whose name he do not remember, that he do not remember the total number of persons present there, that IO got signed on others documents and he do not remember whether he had signed first or the other persons signed the first. He denied that he is deposing falsely.
18. PW-7 is Ct. Jhabar Mal, who deposed that on 26.03.2014 he was posted as Ct. at PS Timar Pur, that on that day, he was involved in the investigation of the present case and went along with IO HC Ajay to Nihal Vihar in search of the accused persons in the present case, that they could not trace them & they returned to the PS, that at PS, they met accused Maan Singh, that IO interrogated accused Maan Singh who revealed his name and after interrogation he produced one mobile phone make Samsung DUOS black in colour which contained SIM of Aircel, however, he cannot tell the Aircel number which the said mobile FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 12 of 28 contained, that IO got checked the IMEI number of mobile on the basis of which it was found that the said Samsung mobile was a stolen one, that IO seized the said mobile phone vide memo Ex. PW6/C, that IO placed the said mobile in a box & wrapped the said box with a white cloth & prepared a pullanda with the seal of AK, that seal after use was handed over to him, that IO formally arrested the accused Maan Singh in his presence vide his arrest memo ExPW6/A, that IO also conducted the personal search of accused vide memo Ex. PW6/B, that IO also recorded the disclosure statement of accused, same is Ex. PW7/A, that case property was deposited in Malkhana, that after medical examination, accused was put behind bar, that IO recorded his statement, that case property is Ex.P-1.
19. In the cross examination, PW-7 deposed that he do not remember the time when he went to the area of Nihal Vihar along with IO on 26.03.2014 from PS, that IO might have made departure entry before leaving police station, that they went to K-2 Block at house of accused Maan Singh in Nihal Vihar, that the house of accused Maan Singh was found locked, that IO did not inquire any person from neighbour regarding accused Maan Singh or his house, that they went there on motorcycle, that they remained there for about 30-40 minutes, that they came to know about the house of Maan Singh after reaching in the near of Nihal Vihar, that IO did not record the statement of the person, who called about the house of accused Maan Singh, that he cannot tell what was the age of that person, who gave that information to them, that he do not remember the approximate time when they returned to PS Timar Pur, that IO might have made the arrival entry, that on 27.03.2014 he saw accused Maan Singh was sitting with the IO at PS near Duty Officer's room, that the time was about 09:15 am at that time, that accused was interrogated outside the duty officer's room but the place of interrogation was not in room of IO in present case, that the accused produced mobile phone as soon as his interrogation was started, that simultaneously the IO prepared the seizure memo Ex. PW6/C, that father of the accused was with him at that time, that signature of father of accused was not obtained on seizure memo, FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 13 of 28 that IO bring the white cloth for preparing pullanda, that he cannot tell from where IO bring the said white cloth, that the seal used by IO was of brass metal, that he do not know from which pocket of his worn cloth, accused produced the mobile in question, that the IO told him that accused Maan Singh produced that mobile phone before him. He denied that he did not participate in investigation of the present case, nor they went to Nihal Vihar area, that no recovery of case property was effected from accused, that case property was planted upon accused, that IO prepared all the documents while sitting in the PS, that he is deposing falsely.
20. PW-8 is Ct. Jai Kishan, who deposed that on 16.01.2014, he was posted as Ct. at PS Timar Pur, that on that day, he was on emergency duty along with the IO SI Sanjay from 8:00 am to 8:00 pm at P.S, that IO received a PCR call and then he along with him went near Shiv Mandir Nehru Vihar where he met complainant Anil Kumar who told the IO the incident of theft of laptop bag and mobile from his vehicle, that IO recorded his statement & on that IO prepared the rukka and handed over the same to him for registration of FIR and he took the same to PS & got FIR registered & came back at the spot along with copy of FIR & original rukka & same was handed over to IO, that IO searched for the case property and accused and inquired about them from public persons nearby, however they could not trace them, that IO recorded his statement.
21. PW-9 is ASI Ajay Kumar who deposed that on 30.01.2014, he was posted as HC at PS Timarpur, on that day, investigation of the present case was marked to him, that he write a letter to DCP(N) which is ExPW9/A for the purpose of obtaining the call detail record of stolen mobile phone through its IMEI number which is mentioned in the bill provided by the complainant on 26.02.14 and thereafter, DCP(N) further requested through e-mail Nodal Officer Airtel, Vodapone, Tata, Idea, MTNL, Aircell for providing the detail of the said mobile bearing aforementioned IMEI number if it is active, that on 25.03.20114, it was FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 14 of 28 discovered that the aforementioned mobile bearing aforementioned IMEI number was active with mobile No. 9899814627 of Aircel company, that he obtained the CDR of the said mobile number and particulars of its ownership which was in the name of accused Maan Singh Sahani and same is Mark 9A (Colly) from Aircel company, that he made a call on the said number & caller told his name as Maan Singh & he also told him about his address i.e. H.No. 29A, K-2 block, Nihal Vihar, that he asked him to meet him in connection with the present case. He further deposed that on the next day, accused Maan Singh along with the said mobile phone & his father came at PS, that on interrogation accused told him that he had purchased the said mobile from his friend Virender for amount of Rs.2,000/-, that he recorded the disclosure of accused Maan Singh vide memo ExPW7/A, that accused produced mobile phone make Samsung black in colour and he checked its IMEI number and verified the said number with IMEI number mentioned in the bill provided by the complainant & the IMEI number both are matching, that he seized the said mobile vide seizure memo ExPW6/C, that after interrogation, he arrested the accused Maan Singh and conducted his personal search vide memos Ex. PW 6/A & B, that he further interrogated the accused and he made disclosure about the other case property i.e. laptop, amount of Rs.9 lakhs and other electronic items like dongal etc. and that they are in the possession of his friend Virender, that information of the arrest of accused Maan Singh was given to his father, that case property property was deposited in Malkhana and accused was produced before the court & obtained 6 days PC remand of accused, that he verified the bill of mobile provided by complainant, from the mobile shop "A & A Communication" Kingsway Camp, Delhi & its owner Aman Sachdeva, that Aman Sachdeva told him that the complainant has purchased the said mobile phone from his shop and he had issued the bill No. 19009 dated 09.05.12 for the same to the complainant which is Mark 9B, that he along with Ct. Devender, Ct. Subhash and accused Maan Singh went by train to village Bachaah, Distt. Muzaferpur, Bihar & on reaching there accused Maan Singh took them to the house of other accused Virender & accused Maan Singh pointed out towards accused Virender, that he FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 15 of 28 interrogated the accused Virender & he admitted that he had sold the aforementioned mobile phone to accused Maan Singh & about laptop, accused Virender pointed out towards a black colour laptop and its bag which was lying on a cot, that he checked the bag of laptop which contained USB cable, 2 dongal, pen drive etc., he seized the same vide seizure memo Ex. PW2/A, that after interrogation, he formally arrested the accused Virender and conducted his personal search vide memos Ex. PW 2/B & PW-2/ C, that he also recorded the disclosure statement of accused Virender Ex. PW 2/D, that he prepared the site plan of the place of recovery vide memo ExPW9/B, that he alongwith aforementioned police staff, accused Maan Singh, accused Virender alongwith the aforementioned recovered articles went to Police chowki at village Buncha as at the house of accused Virender a crowd was gathered, that at the aforementioned police post, he formally seized aforementioned articles recovered from the possession of accused Virender vide memo Ex. PW2/A, that regarding the amount of Rs 9 lakh, accused Virender said that he does not know about the aforementioned amount as he did not have the same, that he recorded the statement of witnesses, that he informed the police officials of the said police post regarding the facts of the present case and then accused Virender alongwith the aforementioned case property was produced before Hon'ble court of CJM at Distt. Mujaferpur, Bihar and he obtained the transit remand of accused Virender, that he placed these documents in file, that thereafter medical examination of accused Virender was got done and then he alongwith aforementioned persons and accused persons returned to Railway Station Mujafarpur, that accused was lodged in the jail of GRPF of Mujafarpur as train to Delhi was scheduled for next day, that on next day they 0returned to Delhi by train, that case property was deposited in Malkhana, that he informed complainant Anil Kumar regarding recovery of the aforementioned case property, that he produced the accused Virender before court in Delhi after his medical examination and accused Virender alongwith other accused Maan Singh got shifted to judicial custody, that complainant did not appear in court. He further deposed that he also obtained the CAF, CDR, and Certificate under Section 65-B FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 16 of 28 of Evidence Act from Vodafone Mobile Company regarding mobile number 837396414 which was issued in the name of Praveen and same is Ex. PW-3/A(OSR). Thereafter, MHC(M) produced two pullandas bearing the particulars of the present case and duly sealed with the seal of Court, that seal is opened with the permission of the Court, that from one pullanda i.e. a plastic box and one black colour mobile phone make Samsung DUOS is taken out and same is shown to witness, who correctly identified the same as recovered from the possession of accused Maan Singh and same is as described in seizure memo Ex. PW- 6/C, that the mobile is Ex. P-1. Thereafter, another pullanda bearing the particulars of the present case and duly sealed with the seal of Court, that seal is opened and a black colour leather bag of polo executive consisting of one laptop of thinkpad, two pen drives, one data cable and one charger are shown to the witness, who correctly identified by the same as Ex. P-2. He further deposed that on completion of investigation, he prepared the charge-sheet and filed before the court.
22. In the cross examination, PW-9 deposed that Maan Singh and his father came at PS on 26.03.2014, at about 10:00 am, that he along with Ct. Jhabar Mal were present at PS, that he met accused Maan Singh at DO Room, that Ct. Jhabar Mal was also with him at that time, that after meeting them, he interrogated about mobile and other articles from Maan Singh, that Maan Singh produced mobile i.e., case property in present case, that he prepared the pullanda and seizure memo of mobile phone after about 45 minutes, that he arrested accused Maan Singh at about 11:00 am. He denied that accused Maan singh never handed over any such mobile to him or that the said mobile was planted upon him, that he prepared false documents against accused though he was not involved in commission of the crime in present case, that he is deposing falsely in that reference. He further deposed that he did not join any public person in the interrogation of accused Maan Singh, that duty officer was also present at his room when he interrogated accused Maan Singh, that the accused was interrogated in open place where duty officer was also present at a distance of about 10-12 feet from them. He denied that FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 17 of 28 accused never made any disclosure statement. He further deposed that on 27.03.2014, he along with Maan Singh and other police staff went to Bachun, Mujaffarpur, Bihar in evening time by train, that he do not remember the name and number of train, he cannot tell the berth number or compartment number in which they went to Bihar, that they boarded down at Mujaffarpur Junction at about 8:00 am on 30.03.20174, that they reached in village Bahcun within 15-20 minutes from Mujaffarpur Railway Station in a tempo, that accused Maan Singh took them to the house of accused Virender in the said village, that he did not join any local villager or Pradhan in investigation regarding accused Virender, that they remained in the house of Virender for about 30 minutes, that the house of Virender was pakka house but its walls were not plaster, that there were two rooms in the house of Virender which were one after the other, that the case property was lying on a cot in the first room, that father of the accused Virender was also present there and two other ladies were also present, that some 25-30 public persons gathered near the house of accused Virender that from the house of accused Virender, they all along with the case property and accused Virender went to local police post Bachun, that he did not join any police officer in investigation of the present case nor he cited them as PW, that he also produced the accused persons before local Magistrate for transit remand and obtained PC, that on 31.03.2014, he along with accused persons and case property and aforesaid police staff boarded in train for Delhi, that police post Bachun was about 1 km from the house of accused He denied that he never visited the house of accused Virender as stated by him, that no such recovery was made as stated by him from accused Virender, that all the writing work was done while sitting in the PS at Delhi, that accused Virender and Maan Singh have been falsely implicated in the present case by planting aforesaid case property on them, that he is deposing falsely.
23. PW-10 is Aman Sachdeva, who deposed that on 15.05.2014, he was present in his aforementioned shop which he run in the name and style of A&A communication, that on that day IO produced a bill & shown it to FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 18 of 28 him which bears his signature, that he identified the said bill & told to the IO that it was issued by him as he has sold a mobile phone mentioned in the bill, that the told the IO that he will produce the bill book in court when it will be required, that he had searched for the said bill book in his shop & house, that he 0could not trace it, that for this reason, he was unable to produce the aforementioned bill book today in the court, that he confirmed that bill No. 19009 dt. 09.05.12 was issued from his shop and it shows that one Samsung galaxy YPRO DUOS mobile was sold for a cash amount of Rs 9,500/-, that the bill bears the signature of his employee vide bill Mark 9-B now Ex.PW10/A, that IO recorded his statement.
24. In the cross examination, PW-10 admitted that address on the bill Ex.
PW-10/A is mentioned as Shop No. 1995, Outram Line, Kingsway Campy, Delhi, that date on invoice as 09.05.2012, that he cannot tell to whom mobile was sold, that invoice did not bear his signature but it bears signature some promoter of the company, whose namely he cannot tell. He denied that this bill was never issued from his alleged shop. He denied that this bill was never issued from his alleged shop. He further deposed that he do not remember whether he handed over to the police any proof regarding above said shop to show that he is owner of the shop or the tenant. He denied that he is deposing falsely.
25. PW-11 is Ex. SI Sanjay, who deposed that on 16.01.2014, he was posted as SI at PS Timar Pur, that on that day after receiving DD entry No. 30A, he alongwith Constable Jai Kishan went to the spot i.e., Nehru Vihar near Shiv Mandir where he met with complainant Anil Kumar, that he recorded statement of complainant which is Ex. PW1/A, that he prepared rukka on the basis of same vide Ex. PW11/A and handed over the same to the Ct. Jai Kishan for registration of FIR, that after registration of FIR, he handed over to me copy of FIR and original rukka, that he prepared site plan at the instance of complainant vide site plan PW1/B, that he tried to find out eye witness from the locality but could not be found, that on 30.01.2014 file was handed over to MHC(R), that he re FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 19 of 28
26. In the cross examination, PW-11 deposed that he reached at the spot at about 04:05 PM, that he did not record statement of person, who was repairing the puncture tyre, that vehicle of complainant was also standing there, that he do not remember how far vehicle of the complainant was standing from that puncture wala, that he do not know which of the tyre tube of the vehicle of the complainant got repaired by that puncture wala, that it was the crowded area, that he remained at the spot for about 2 hours, that after registration of FIR, Ct. Jai Kishan reached at the spot at about 06:15 PM, that he and Ct. Jai Kishan reached at the spot on motorcycle, that he did not call any crime team on the spot for taking finger prints from the car. He denied that he did not record the statement of complainant on the spot, that all the writing work was done while sitting at PS, that he is deposing falsely.
27. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
28. Statement of the accused persons Maan Singh and Virender Sahani under Section 313 Cr.PC was recorded vide order dated 21.12.2019 by putting entire incriminating evidence to the accused persons. They denied the allegations against them and stated that they have been falsely implicated in the present case. Accused persons chose not to lead DE, accordingly, Defence evidence was closed and matter was fixed for final arguments.
29. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 20 of 28
30. Perusal of the record reveals that accused persons Maan Singh and Virender Sahani were charged with the offences under Section 379/411/34 IPC.
31. Section 379 IPC stipulates that:-
"Punishment for theft- whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
32. Section 411 IPC stipulates that:-
"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".
33. Section 34 IPC stipulates that:-
"Acts done by several persons in furtherance of common intention- when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same Maaner as if it were done by him alone".
34. It is the case of the prosecution that on 16.01.2014, at about 3:45 pm, near the fly over of Wazirabad at the turn towards Nehru Vihar, Timarpur, Delhi, a theft of laptop bag containing Rs. 9 lac, laptop make of Lenova of black colour, cheque book of ICICI Bank, Syndicate Bank, HDFC Bank, office and locker keys, four pen drives, one account system dongal. USB Data card of reliance no. 8506916497, one mobile phone of make of Samsung black colour having no. 8373961414, 8506949167 and another mobile phone of model 5540 & certain other documents of the complainant were stolen from the vehicle of the complainant bearing no. DL-8CL-6125 Innova Car which complainant got parked at the above mentioned place for repairing of the punctured tyre and out of the said articles one mobile phone of Samsung Duos model GE-B5512 of black FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 21 of 28 colour was recovered from the accused Maan Singh and laptop Lenvoa Black colour was recovered from the possession of accused Virender Sahani and both of them kept these articles having knowledge or reasons to believe the same to be stolen property and thereby committed an offence under Section 379/411/34 IPC.
35. Perusal of the record reveals that only eye witness was examined in the case in hand as PW-1 Anil Kumar. However, PW-1 categorically deposed in his cross examination that he cannot identify motorcyclist who committed the offence with him as they were wearing helmet. He further deposed that he cannot tell the description of those boys, thereby he miserably failed to identify the accused persons as the persons who committed offence with him. He further admitted that public persons were at the spot, however, no public person was examined in his presence thereby giving an inference that no sincere effort have been made by the police officials to join independent public witnesses to the case in hand.
36. Furthermore, stolen articles were also not recovered in his presence so he cannot prove recovery of stolen articles from possessionof accused persons.
37. PW-5 also admitted in his cross examination that IO has not asked any public person to join the investigation.
38. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining other independent witnesses.
39. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 22 of 28 their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non- examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 23 of 28 In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW- 8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. 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 Subhash Bazar, there would be no person present at a crucial time like 7.30 pm 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 have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a 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 IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 24 of 28 and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
40. It is also pertinent to note as per PW-1 his stolen bag was having an amount Rs. 9 lakhs also along with other articles, however, admittedly the same has not been recovered so as to establish the guilt of the accused beyond reasonable doubt.
41. PW-1 further deposed that he could not furnish the bill of laptop and other articles as the same were missing and he had not identified recovered FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 25 of 28 articles during the investigation which reflects bad investigation. He further admitted that company must have made number of mobile phones of this model and the bill and custom receipts of the laptop is not in his custody. He further admitted that he had not specified the particulars of the documents missing in the bag. By way of aforesaid testimony he again failed to prove the case of prosecution.
42. As per the case of prosecution, laptop is recovered from the possession of accused Virender Sahani. PW-2 categorically deposed that articles were recovered from the cupboard inside the wall and not from almirah or bag, however, PW-5 deposed that it was recovered from one cemented slab of the room and PW-9 deposed that stolen articles which were recovered was lying on a cot, thereby contradicting testimony of each other regarding the place of recovery of stolen article and raising doubt about the case of prosecution and alleged recovery.
43. It is also pertinent to mention here that admittedly no villager was joined at the time of recovery of case property which again raises doubt about the fair investigation being conducted by the police officials. It is also pertinent to note that PW-2 categorically deposed that sister and father of the accused were present, however, perusal of the record reveals that they were also not joined in the investigation for the reasons best known to the investigating agency. PW-2 further deposed in his cross examination that he cannot tell exact number of electric items which were recovered from the accused thereby raising doubt about the recovery.
44. PW-5 deposed that IO had not taken the photographs of the recovered articles, thereby again reflecting bad investigation by the police officials.
45. PW-2 deposed that sister and father of the accused were present at the time of recovery, however, PW-5 deposed that mother of accused Virender was also present in the house, thereby reflecting material improvement regarding number of family members present at the house of accused Virender.
FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 26 of 28
46. PW-7 deposed that accused Maan Singh himself came to police station and produced the stolen mobile phone which again raises doubt about the case of prosecution as no man of ordinary prudence will go to the police station on his own along with the stolen property despite knowing the fact that he has committed an offence by knowingly retaining stolen property with him. PW-7 deposed in this cross examination that he do not know from which pocket of his wearing cloths, accused produced the mobile in question thereby again creating doubt about the prosecution version.
47. PW-9 further deposed that accused Maan Singh told him that he has purchased the mobile phone from his friend Virender for an amount of Rs. 2000/-. In view of aforesaid testimony of PW-9 possibility of accused Man Sngh being bonafide purchaser of the mobile phone cannot be ruled out. Furthermore, his conduct of going to police station on his own and producing the mobile phone to the police officials also reflects that he was not aware that it was stolen property.
48. Furthermore, admittedly father of accused Maan Singh ws also present in police station at the time of recovery but he is also not joined in recovery proceedings the reasons best known to the investigating agency.
49. As per the testimony of PW-9 police officials reached Village Buncha from Mujjafarpur railway station in a tempo, however, as per the testimony of PW-5 they travelled in a taxi and as per testimony of PW-2 they travelled by bus to reached at said place thereby contradicting the testimony of each other regarding vehicle used in reaching at Buncha police station and creating doubt about the proceedings in the present matter.
50. In view of the aforesaid facts and circumstances, appreciation of evidence, contradiction in the testimonies of PWs, non joining of independent public witnesses, bad investigation, prosecution has failed to FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 27 of 28 establish its case against the accused persons Maan Singh and Virender Sahani beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused persons Maan Singh and Virender Sahani and therefore, accused persons Maan Singh and Virender Sahani stands acquitted of the offences under Section 379/411/34 IPC accordingly. Digitally Pronounced and Signed signed by in the Open Court on 18.01.2020 SHILPI SHILPI JAIN (Shilpi Jain) Date:
JAIN 2020.01.18
MM-02(Central)/THC/Delhi
18:07:08
18.01.2020 +0530
FIR No .20/14 PS Timarpur State Vs. Maan Singh & Anr. Page No. 28 of 28