Delhi District Court
State vs . Om Parkash & Another. on 3 April, 2012
IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN
MAGISTRATE, ROHINI COURTS, DELHI.
FIR NO. 168/95.
PS. Model Town.
U/s.379/34 IPC
State Vs. Om Parkash & Another.
JUDGMENT
A. SL. NO. OF THE CASE : 713A/06.
B. DATE OF INSTITUTION : 24/08/95
C. UNIQUE ID NO. : 02404R0037991995.
D. DATE OF OFFENCE : On or before December, 1994
E. NAME OF THE : Sh. Trilochan Singh.
COMPLAINANT
F. NAME OF THE : 1. Om Parkash
ACCUSED S/o Sh. Shambhu Dayal
2. Sh. Sant Ram
S/o Sh. Mansa Ram.
G. OFFENCE
COMPLAINED OF : U/s 379/34 IPC
H. PLEA OF ACCUSED : Pleaded not guilty.
I. FINAL ORDER : Acquitted
J. DATE OF SUCH ORDER : 03/04/12.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that the complainant Sh. Trilochan Singh was the registered owner of catering van bearing no.DLL8099. It is alleged that in the year 1994, the traffic officials of Model Town Circle impounded the aforesaid FIR No. 168/95 : State vs. Om Parkash & Another : Page 1 of 11 vehicle and took the same through a crane, to the yard/compound of PS. Model Town. It is further alleged by the prosecution that the complainant approached the traffic police officials and the police officials of PS. Model Town to get the same released. However, there was no entry regarding its impounding in the registers/documents of the traffic officials of Model Town Circle or the Malkhana register of PS. Model Town. The complainant made valiant efforts to get the custody of the aforesaid vehicle, but in vain. For the said purpose he approached the police officials of PS. Model Town including SHO PS. Model Town, MHC (M) PS. Model Town and Munshi of Malkhana PS. Model Town. The said police officials refused/declined to release the same to him on one pretext or another stating that there is no entry in malkhana register regarding the seizure of the said vehicle. Ultimately, in December, 1994 the complainant found that his vehicle is missing from the yard/compound of PS. Model Town. He tried to find out the whereabouts of the said vehicle, but he remained unsuccessful. Consequently, he made a complaint to DCP (NW), Delhi and on the basis of the aforesaid complaint the present FIR was lodged on the basis of directions given by ACP Model Town, dtd.19/04/95 against the accused HC. Sant Ram on the ground that he was MHC (M) of PS. Model Town, at the relevant time and thus, being custodian of the said property was responsible and liable for the offence U/s.379 IPC. Thereafter, the investigation was conducted and during investigation IO concluded that HC Sant Ram and Ct. Om Parkash (Malkhana Munshi of PS. Model Town) committed the theft of the aforesaid vehicle and thereafter, sold it to FIR No. 168/95 : State vs. Om Parkash & Another : Page 2 of 11 Sher Mohd. @ Shera (a scrap dealer) for total sale consideration of Rs.2500/. On conclusion of investigation, the present challan against both the accused persons namely Sant Ram and Om Parkash under sections 379/34 IPC was filed in the court.
2. Both the accused persons were summoned by the court for facing trial for the aforesaid offence. In compliance of Section 207 Cr.P.C the copy of the challan and the documents annexed therewith were supplied to both the accused persons. Prima facie charge U/s 379/34 IPC was made out against both the accused persons. Accordingly, on 25/07/02 the Ld. Predecessor of this court framed charge against both the accused persons. Both the accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined four witnesses. PW1 Trilochan Singh is the complainant of this case and he has testified that he is running a catering van business. He has further testified that he had purchased one catering van bearing no.DLL8099 in the year 1990. He has testified that he had parked the same near his house and in the year 1994, the traffic police officials of Model Town Circle removed his abovesaid catering van from there. He has further deposed that thereafter, he went to traffic circle incharge of Model Town and SHO PS. Model Town. He has submitted that the traffic official told him that the entry of the said vehicle is not available, however, the catering van was found to be parked at the police yard under the control and FIR No. 168/95 : State vs. Om Parkash & Another : Page 3 of 11 supervision of traffic inspector of Model Town Circle. He has further submitted that thereafter, he had made enquiry from the MHC (M) of PS. Model Town regarding the entry of his abovesaid catering van, but the Moherrer asked him to visit again as the entry of the same was not traceable. He has testified that he asked malkhana moherrer, SHO PS. Model Town and Traffic Circle Inspector to hand over/return his catering van parked in front of malkhana of PS. Model Town, but they refused to return the same. He has further testified that in the month of December 1994, he found that his abovesaid catering van was not available at the yard/malkhana of PS Model Town. He has proved his complaint made to DCP (NW) as Ex.PW1/A. He has testified that the aforesaid catering van has not been returned to him till date. He identified the accused Sant Ran to be MHC (M) at PS. Model Town and accused Om Parkash to be Munshi in the malkhana of the said PS at the relevant date .
4. PW2 SI Ganpath Lal has testified that on 26/04/95 he was posted as a duty officer and on that day, he had registered the present FIR. He has proved the said FIR as Ex.PW2/A.
5. PW3 Ct. Malveer Singh has deposed that on 13/06/95, he joined the investigation of this case with Inspector Dal Singh and SI. Kanwar Singh. He has further deposed that during investigation, IO recorded the disclosure statement of the accused Sant Ram and he proved the said disclosure statement as Ex.PW3/A.
6. PW4 SI. Kanwar Singh is the IO of the case and he has deposed that on FIR No. 168/95 : State vs. Om Parkash & Another : Page 4 of 11 26/04/95, the investigation of the present case was assigned to him after the registration of the FIR. He has further deposed that thereafter, he made his best efforts for searching of the abovesaid catering van and accused, but no clue was found. He has testified that after 2/4 days, he came to know at Adarsh Nagar, that one driver had taken the said catering van from Model Town to Mayapuri. He has further testified that he met with the said driver at Adarsh Nagar, who told him that one person namely Sher Mohd had engaged him to take the said catering van from Model Town to Mayapuri. He has deposed that the said driver took him to Sher Mohd, who told him that both the accused persons namely Om Parkash and Sant Ram had sold the said catering van to him for a sum of Rs.2500/. He has further deposed that he arrested the accused Om Parkash vide arrest memo Ex.PW4/A. He has proved the disclosure statement given by the accused Om Prakash regarding selling of the aforesaid catering van exhibited as Ex.PW4/B. Therefore, PE was closed.
7. Statement of both the accused U/s 313 Cr.P.C. was separately recorded. All the incriminating evidence against them were put to them for seeking their respective explanation. In the said statements, both the accused persons 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 argument.
8. I have heard Ld. APP for the State and Ld. counsel for the accused. I have carefully perused the case file.
FIR No. 168/95 : State vs. Om Parkash & Another : Page 5 of 11
9. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, 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.
10. Therefore, in order to establish the guilt of the accused, the prosecution is required to prove the following ingredients as mentioned U/s 379 IPC:
(i) The accused removed the movable property;
(ii) He removed it out of the possession of another person without his
consent; and
(iii) He did so with a dishonest intention.
11. The complainant/PW1 Trilochan Singh has categorically testified that he was the registered owner of catering van bearing no.DLL8099 (hereinafter referred to as stolen vehicle) and in the year 1994 the same was removed by traffic police personnels of Model Town Circle, from near his house to the yard/malkhana of PS. Model Town. The said fact has not been refuted/controverted by the accused persons. Therefore, the aforesaid facts are established beyond any reasonable doubt.
12. However, no documentary proof/entry in papers of traffic police officials regarding removal of stolen vehicle to the yard of PS. Model Town has been placed on record. But PW1/complainant Trilochan Singh in his deposition has categorically stated that after removal of his stolen vehicle, he saw it parked in the FIR No. 168/95 : State vs. Om Parkash & Another : Page 6 of 11 malkhana/yard of PS. Model Town and it remained parked in the said malkhana till it finally disappeared, after about six months in December, 1994. Therefore, it is cogently established that the stolen vehicle was stolen in December, 1994 from the malkhana/yard of PS. Model Town. The prosecution has failed to place on record malkhana register that could have suggested that the custody of the stolen vehicle was entrusted to MHC (M) PS. Model Town. Merely because a vehicle is parked into the compound of malkhana, does not necessarily means that its custody is entrusted to MHC (M), unless there is an entry in the malkhana register to the said effect. Therefore, there is no irrebutable presumption that inference should be drawn regarding entrustment of stolen vehicle to the malkhana mohror of PS. Model Town. It is pertinent to mention here that accused Sant Ram was malkhana mohror and accused Om Parkash was malkhana Munshi at the relevant time. It is not denied that charge of criminal misappropriation of trust is not framed against the accused persons in their capacity as officials of malkhana. However, had the said charge would have been framed against them, in that case also the prosecution could not have established the offence of criminal misappropriation of trust as the entrustment of stolen vehicle is conspicuously missing, which is admittedly one of the essential and indispensable ingredient of the said offence.
13. Now returning to the charge of theft against the accused persons, as framed in the present case. It is an admitted fact that the aforesaid stolen vehicle has not been recovered till date. It is the case of the prosecution that the FIR No. 168/95 : State vs. Om Parkash & Another : Page 7 of 11 aforesaid stolen vehicle was stolen by the accused persons and subsequently, the same was sold to junk/scrap dealer Sh. Sher Mohd for an amount of Rs. 2500/. However, the aforesaid Sh. Sher Mohd has failed to appear in the court to establish that the aforesaid stolen vehicle was purchased by him from the accused persons for the aforesaid amount. It is also not denied that none of the prosecution witnesses had seen the accused persons removing the aforesaid stolen vehicle from the malkhana of PS. Model Town. Further, the IO/PW4 has testified that he came to know about selling of the aforesaid catering van by the accused persons to Sh. Sher Mohd from a driver. However, neither the name of the said driver has been disclosed by the said witness nor the said driver has appeared in the court for corroborating the aforesaid fact. Therefore, the aforesaid testimony of PW4 regarding disposing of the catering van by the accused persons is merely an hearsay evidence and the same does not inspire sufficient confidence as the same is inadmissible in evidence. Further, the said deposition is a derivative piece of evidence and moreover, the IO has even failed to disclose the identity of the source of the said information. Thus, the vital links in the prosecution story are conspicuously missing.
14. The present charge sheet has been filed against the accused persons namely Sant Ram and Om Parkash merely on the presumption that the same was in their custody as the accused Sant Ram was MHC (M) and the accused Om Parkash was Moharrer Munshi at the relevant time. The accused persons cannot be convicted on the basis of surmises and presumptions. In the instant FIR No. 168/95 : State vs. Om Parkash & Another : Page 8 of 11 case neither any witness has seen the accused persons taking away the alleged stolen vehicle nor any witness has been produced by the prosecution that could have testified that the accused persons disposed of the aforesaid vehicle in the manner as alleged by the prosecution. Therefore, the chain of events as claimed by the prosecution is broken at several places and the same is not substantiated conclusively.
15. The present case is a glaring example of shoddy investigation conducted by the IO of the case and illegality committed by the police officials/officers, who removed the stolen vehicle from near the house of the complainant. It is highly astonishing that the catering van was removed by the traffic officials of Model Town Circle and no entry in that regard is made in their documents/papers. Besides that, it is claimed that thereafter, it was kept in the yard/Malkhana of PS. Model Town. But the malkhana register is also conspicuous by absence of any entry regarding deposition of the aforesaid catering van. At the first place, the traffic police officials who removed the said catering van without executing any seizure memo should be held responsible and must be nailed for their unlawful and irregular removal. It is very bad and grim state of affairs that the complainant kept on visiting PS. Model Town for nearly six months for taking back the custody of the aforesaid catering van till it finally disappeared from Malkhana of PS. Model Town. However, the insensitive and irresponsible police officials, who were duty bound to convey the true facts to the complainant, kept him in dark and compelled the complainant in futility to run from FIR No. 168/95 : State vs. Om Parkash & Another : Page 9 of 11 one police official/officer to another for getting back his catering van, that he was otherwise legally entitled to possess.
16. The complainant was deliberately trapped in a procedure by making it unnecessarily complex and thereby, he was malafidely denied justice by the concerned police officials. The complainant was at the most expected to visit the police officials for obtaining the custody of his catering van and he did his best for six months to regain its custody. I have failed to comprehend that in what authority/capacity the MHC (M)/SHO PS. Model Town retained the aforesaid catering van in malkhana and why they declined/refused to return it to the complainant/rightful owner.
17. The police officials owes their existence to the fundamental law i.e Constitution of India and the rights on them are bestowed upon them to serve the people of India. They cannot usurp the rights of people by exercising arbitrary powers. The said powers including right of seizure are not absolute, unchallenged and arbitrary. The police officials are expected to act in a fair and just manner for the redressal of the grievance of the aggrieved. But in the instant case they themselves have acted as oppressor of an innocent complainant. The common man should have trust and confidence in police official and in need he should be able to approach police without hesitation. However, once the savior turns into a tormentor, than it shall be the darkest day for our cherished and revered democracy. The impudent act of the erring police officials has tarnished the image of Delhi Police. The concerned/guilty police officials should be treated FIR No. 168/95 : State vs. Om Parkash & Another : Page 10 of 11 with iron hand so that the confidence of public at large in the men in uniform is fortified and the image of police as their protector enhances in their eyes. The present case prima facie appears to be a proper eye wash for covering the aforesaid unlawful act of the senior police officers. In these circumstances, I deem it appropriate that the copy of the present judgment be also sent to Joint Commissioner of Police (North) and it is expected from the worthy officer that he shall initiate action against the guilty/erring officials, with an intimation to the undersigned and thereby give justice to the complainant, who had been running pillar to post for getting back his catering van that was unlawfully removed from near his house by the traffic police officials.
18 In view of the above detailed discussion, the prosecution has failed to satisfy the basic ingredients of section 379 IPC against the accused persons as it has failed to conclusively and cogently establish that the accused persons committed theft of stolen vehicle from Malkhana. Accordingly, benefit of doubt is given to the accused persons namely Om Parkash and Sant Ram and they are acquitted of the charge U/s.379/34 IPC. Bail bonds and surety bonds stands canceled. Sureties stands discharged. Endorsement on sureties documents, if any, be canceled and original documents if any of surety retained on record be returned to the person legally entitled.
File be consigned to Record Room after due compliance.
ANNOUNCED IN OPEN OPEN COURT (DHEERAJ MOR)
i.e. 03.04.12. METROPOLITAN MAGISTRATE
ROHINI COURTS: DELHI
FIR No. 168/95 : State vs. Om Parkash & Another : Page 11 of 11
FIR NO. 168/95.
PS. Model Town.
U/s.379/34 IPC
State Vs. Om Parkash & Another.
03/04/12.
Present: Ld. APP for the State.
Both the accused persons namely Om Parkash and Sant Ram on bail with counsel. Statement of both the accused persons U/s 313 Cr .P. C is separately recorded. Both the accused persons have stated that they do not want to lead defence evidence.
Final arguments heard. Case file perused.
Vide my separate judgment announced in the open court today, both the accused persons namely Om Parkash and Sant Ram stands acquitted for offence punishable U/s.379/34 IPC.
The sureties are discharged and bail bonds stands cancelled. Original documents, if any, be returned to the persons legally entitled after cancellation of endorsement ,if any, on the said documents.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi 03.04.12.
FIR No. 168/95 : State vs. Om Parkash & Another : Page 12 of 11