Delhi District Court
Criminal Case/412/2003 on 31 August, 2012
State v Brahm Singh & Anr.
IN THE COURT OF SH PULASTYA PRAMACHALA
ADDL.CHIEF METROPOLITAN MAGISTRATE(WEST)
TIS HAZARI COURTS : DELHI
Case ID No.02401 R 1009232003
State v. Brahm Singh & Another.
FIR No. 412/03
P.S. Janak Puri.
U/S 419/420/34/411 IPC & Sec. 25 Arms Act.
a. The serial no. of the case : 654/2
b. The date of commission of the : 15.07.2003.
offence
c. The name of the complainant : SI Rajpal Dabas.
d. The name of the accused : 1.Brahm Singh @ Barham Prakash @
their parentage & addresses Barham @ Murari S/o Sh Tejpal Singh,
R/o A328, Sangam Vihar, Delhi.
(Proclaimed Offender).
2. Rajesh @ Mukesh S/o Sh.Mehar Singh,
R/o Block U25A, Budh Vihar,
Phase I, Delhi.
e. The offence complained of : U/s 419/420/34/411 IPC &
Section 25 Arms Act.
f. The plea of the accused persons : Pleaded not guilty.
g. The final orders : Acquitted.
h. Final arguments concluded on : 22.08.2012.
i. The date of judgment : 31.08.2012.
Page 1 of 11 Pulastya Pramachala
ACMM(West)/Delhi.
State v Brahm Singh & Anr.
Judgment:
Briefly stated the case set up by the prosecution is as follows:
1.On 15.7.2003, SI Rajpal Dabas received a secret information that famous thief namely Brahm was expected to visit District Centre, Janak Puri at around 6.30 p.m alongwith his friend Mukesh. He was also given information that accused Brahm shall come on a scooter bearing No. DL 3SN 6955. After receiving such information, Inspector of Special Staff Sh. H.S Yadav was informed of such information. Thereafter a raiding team consisting of SI Rajpal, HC Ramesh Lakra, HC Lalit Mohan, Ct Sayyed, Ct Suresh and Ct Gulshan was formed. The raiding team took position at District Centre, Janak Puri in civil dress. At around 7 p.m one scooter bearing no. DL 3SN 6955 came from the side of Peera Garhi/Najafgarh Road and on the indication of the informer, SI Rajpal Dabas stopped the vehicle. Both the persons riding the scooter were apprehended. The person who was driving the scooter introduced himself as Mukesh and the pillion rider introduced himself as Murari Lal. On the personal search taken of both accused persons, a gararidar knife was recovered from the possession of accused Mukesh and a buttondar knife was recovered from accused Murari Lal. On interrogation in respect of the ownership of the vehicle, the person namely Murari Lal told that the Page 2 of 11 Pulastya Pramachala ACMM(West)/Delhi.
same belonged to him and he took out one R/C from his pocket to show it to SI Rajpal Dabas. On careful scrutiny of the number plate of the vehicle, SI Rajpal Dabas found some over writing in the same and he checked engine number as well as chasis number of the scooter and compared it with such information given in the R/C. Both were not found same and on further interrogation, Murari Lal told that his actual name as Brahm Singh and original number of vehicle as DL 2SC 9787. SI Rajpal Dabas verified this information from Traffic Control Room and came to know that Ms. Sheetal Vaid was the owner of the vehicle No. DL 2SC 9787. On further interrogation, the scooter driver came to be known as Rajesh. Thereafter, on the basis of rukka prepared by SI Rajpal Dabas, present FIR was lodged under section 419/420/468/471/473/34 IPC and Section 25 Arms Act.
2. After completion of investigation, police filed the charge sheet before the Court on 11.9.2003. During the pendency of this case, accused Brahm Singh stopped appearing in the case and was finally declared Proclaimed Offender vide order dt. 16.8.2007. Thereafter, charges were framed against accused Rajesh on 5.5.2010 for offences under Section 419/420/34 IPC; section 411 IPC and Section 25 Arms Act.
3. The prosecution examined 9 witnesses in support of its case. Thereafter, Page 3 of 11 Pulastya Pramachala ACMM(West)/Delhi.
statement of accused Rajesh was recorded under section 313 Cr. P.C on 26.6.2012. The accused did not lead any evidence in his defence.
4. I have heard Ld. APP for the State, learned counsel for accused and have carefully perused the entire record in the light of relevant statutory provisions of law.
5. Ld. Counsel for defence has argued that prosecution has miserably failed to prove the charges against the accused. He submitted that accused Rajesh was called to police station and was falsely implicated in this case.
FINDINGS:
6.Accused Rajesh was charged with the allegation that on 15.7.2003 in furtherance of common intention with Brahm Singh, he committed cheating with SI Rajpal Dabas by producing forged R/C of scooter No. DL2S C 9787 and also cheated SI Rajpal Dabas by impersonating as Murari Lal, thereby committed the offence punishable under Section 419/420/34 IPC. He was also charged with the allegation that on 16.7.2003 at A328 Sangam Vihar, Delhi, he was found in possession of one car stereo belonging to some real owner, which he received or retained knowingly or having reason to believe the same to be the stolen property and thereby committed the offence punishable under Section 411 IPC. He was also charged with the allegation Page 4 of 11 Pulastya Pramachala ACMM(West)/Delhi.
that on 15.7.2003, he was found in possession of buttondar knife without any permit/licence in contravention of Notification issued by Government of NCT, Delhi and thereby committed the offence punishable under Section 25 Arms Act.
7. The offence of cheating is defined in Section 415 IPC and Section 416 defines cheating by impersonation. Ingredients of Section 415 IPC can be divided into three following parts:
Section 25 Arms Act provides that if a person has in his possession an arm, which is prohibited by order of competent authority, he commits offence under this section.
8. In this case, in order to bring home the assumption of guilt of the accused, prosecution was required to prove following facts:
a. whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or b. intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and c. which act or omission causes or is likely to cause damage or harm to that person in mind, body, reputation or property, is said to "cheat".
9. The aforesaid ingredients of cheating show that an act or omission as Page 5 of 11 Pulastya Pramachala ACMM(West)/Delhi.
covered under head of (a) or (b) must be coupled with effect as covered under head of (c) in order to complete the offence of cheating. Section 416 provides that a person is said to cheat by personation, if he cheats by pretending to be some other person. Thus, the ingredients of Section 415 must be satisfied to attract the application of Section 416.
10.Section 411 IPC provides that if a person dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, he commits offence under this section. Section 410 IPC defines a stolen property to be a property, the possession whereof has been transferred by theft, or by extortion, or by robbery.
a. Accused in furtherance of common intention with coaccused, dishonestly cheated SI Rajpal by impersonation of Brahm Singh as another person namely Murari lal and made him to do or omit to do, which he would not have done otherwise and caused harm or damage to SI Rajpal in his body, mind, reputation or property.
b. Accused in furtherance of common intention with coaccused, received or retained the car stereo, which was a stolen property and accused knew or had reason to believe that it was a stolen property.
c. Accused Rajesh cheated SI Rajpal Dabas alongwith co accused Brahm Singh by producing R/C of different scooter to him. Page 6 of 11 Pulastya Pramachala
ACMM(West)/Delhi.
d. Accused was found in possession of buttondar knife in contravention of mandate of notification issued by Government of NCT, Delhi.
11. In this case, PW 1 Sh S K Gupta has not stated anything about the role of accused Rajesh. PW 2 was the alleged owner of scooter bearing No. DL 2SC 9787, who deposed that he had sold the scooter to one Pappu. He did not make any complaint regarding theft of his scooter. PW 3 is Insp. Rajpal Dabas who had conducted the raid and apprehended the accused persons. He deposed that informer pointed out the pillion rider as Mukesh whereas the driver was identified to be the accused Brahm Singh. He further deposed that both the accused persons were searched in a cursory manner by him and his team and from the back side pocket of pant of accused Rajesh, one gararidar knife was recovered and from the right pocket of pant of accused Brahm Singh, one buttondar knife was recovered. He also deposed that some persons had collected at the spot but none of them agreed to join the investigation. He prepared the sketch of knife recovered from accused persons and kept them in a cloth pullanda, which was sealed with the seal of RP. The knives were seized vide seizure memo ExPW3/C. He also seized the R/C as produced by accused Brahm Singh. However, despite deferring the statement of this witness, seizure memo of that R/C was not produced Page 7 of 11 Pulastya Pramachala ACMM(West)/Delhi.
before the Court. In his cross examination, Insp. Rajpal Dabas deposed that accused persons were arrested by IO SI Nahar Singh and he had prepared three seizure memos. He had handed over all the material and seizure memos to the IO. He also deposed that he had recovered only one R/C from accused Brahm Singh. He did not say anything about believing upon the representation of accused Rajesh as Mukesh, nor did he say anything about any kind of damage or harm being caused to him, due to disclosure of such false name.
12.PW 4 also did not say anything about the role of accused Rajesh as he had brought the record of scooter bearing no. DL 2SC 9787. PW 5 proved the Notification bearing No. F.13/203/78/Home (G) dated 17.12.1979. PW 6 and PW 7 were members of the raiding team. In their statements, they deposed that the driver of scooter told his name as Mukesh and pillion rider told his name as Brahm Singh. They also deposed that from the search of accused Brahm Singh, 14 keys were recovered and from the search of accused Rajesh, 14 keys of scooter and motorcycle were recovered which were also seized vide seizure memo ExPW6/X and ExPW6/Y. PW 7 also deposed that secret informer had pointed out towards the driver and told his name as Mukesh. These witnesses also deposed that they had visited the house of accused Rajesh, who produced one plastic polythene containing one stereo. Page 8 of 11 Pulastya Pramachala
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PW 8 was IO of the case. He also deposed that bunch of keys were recovered from accused, which were seized by him and that one plastic polythene was recovered from the house of accused Rajesh containing one car stereo and the same was stolen from the area of Punjabi Bagh.
13.Accused had taken defence that he was falsely implicated in this case as the police took him from his house and took him to the police station. All the alleged recoveries were planted upon him.
14. As I have already observed herein above, the offence of cheating/cheating by way of impersonation can not take place until and unless, some harm or damage is caused to the person so deceived. As per the case of the prosecution, SI Rajpal Dabas was deceived and cheated. However, SI Rajpal Dabas did not make any complaint regarding any kind of harm or damage being caused to him. Further more, the extract of DD No. 11A, shows that SI Rajpal Dabas had already information that accused Brahm Singh shall be coming on a scooter bearing no. DL 3S N 6955 so there was no occasion for SI Rajpal Dabas to be deceived by such false statement of name by the accused persons. Therefore, I find that there can not be any commission of offence punishable under section 419/420/34 IPC by accused Rajesh.
15.IO SI Nahar Singh simply alleged that car stereo recovered from accused Rajesh was stolen from Punjabi Bagh. However, neither he himself Page 9 of 11 Pulastya Pramachala ACMM(West)/Delhi.
mentioned any complaint of theft of said car stereo nor any witness was examined before the Court, who could claim ownership of allegedly recovered car stereo and who could say that it was stolen. Therefore, the accused Rajesh can not be found guilty of offence punishable under Section 411 IPC as well.
16. The prosecution has alleged that accused Rajesh was carrying a gararidar knife in contravention of Notification. Now, it is to be seen that whether the case set up by the prosecution is worth reliance to assume correctness of such allegation. SI Rajpal Dabas, who had conducted raid alongwith PW 6 & PW7 deposed that driver of the vehicle was accused Brahm Singh. On the contrary, PW 6 and PW 7 deposed that driver of the scooter was accused Mukesh @ Rajesh. Further more, PW 3 SI Rajpal Dabas did not say anything about recovery of bunch of keys from the pocket of accused Rajesh. Though, such fact was deposed by PW 6 & PW 7 as well as PW 8. It is worth consideration that when PW 3 alongwith PW 6 and PW 7 had already taken the personal search of both accused persons, in order to find the knives from the pocket of their pants, they would have also recovered the bunch of keys, which were allegedly recovered from the pocket of shirt of accused Rajesh. It is also worth consideration that a bunch of 14 keys if kept in the pocket of shirt, can not scape the attention of any person, who is Page 10 of 11 Pulastya Pramachala ACMM(West)/Delhi.
taking personal search of accused. Therefore, I do find an improbable situation being projected by the prosecution i.e non recovery of bunch of keys by SI Rajpal Dabas, but its recovery by SI Nahar Singh alongwith PW 6 & PW 7. It is also worth consideration that car stereo, which was shown to be recovered from accused Rajesh, was though alleged to be stolen but it is assumed that IO knew very well that car stereo can not be said to be stolen until and unless he has a complaint regarding its theft. Thus, the over all scenario does raise a doubt over the recovery proceedings shown by the prosecution and which leads me to believe that the version of PW6, PW 7 and PW 8 is not free from doubt, so as to believe that accused Rajesh was carrying knife allegedly recovered from him.
17. In view of my aforesaid findings and observations, I find that the prosecution has failed to prove the allegations against accused Rajesh, he is acquitted of the charges.
Judgment dictated and pronounced in the open Court On this 31st day of August, 2012.
( Pulastya Pramachala ) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page 11 of 11 Pulastya Pramachala ACMM(West)/Delhi.