Delhi District Court
State vs . Ajaib Singh & Ors. on 22 December, 2014
FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC. State Vs. Ajaib Singh & Ors. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, SAKET COURTS, DELHI. FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC. State Vs. Ajaib Singh & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 1371/2/05
B. DATE OF INSTITUTION : 27.01.2005
C. DATE OF OFFENCE : 17.11.2004
D. NAME OF THE : Sh. Rajender Chugh
COMPLAINANT S/o Sh. J.L.Chugh
E. NAME OF THE : (1).Ajaib Singh
ACCUSED S/o Sh. Jaswant Singh (abated)
(2).Ajit @ Ganesh
S/o Sh. Jagdamba (PO)
(3) Ashok Kumar
S/o Sh. Kishori Lal
(4) Ajay Verma
S/o Sh. Ram Narain (abated)
(5) Vakil
S/o Sh. Salimuddin
F. OFFENCE
COMPLAINED OF : U/s 407/411/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Accused Ashok Kumar and Vakil
1/19
FIR NO. 818/04
PS. OIA
U/s. 407/411/34 IPC.
State Vs. Ajaib Singh & Ors.
Ahmed are acquitted.
I. DATE OF SUCH ORDER: 22.12.2014
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as unfolded from chargesheet are that on 19.11.2004, Sh. Rajender Chugh gave a written complaint, wherein he had asserted that he is running his own business of transport at Tuglakabad Container Depot at ICD, Tuglakabad. He had alleged that they hired a truck/trailer no. HR464566 from Mr. Javed Akhtar, owner of M/s H.S.Roadlines for bringing consignment of LG TVs from L.G. Electronics India Pvt. Ltd. Greater Noida, UP. He had alleged that on 17.04.2004, the said trailer alongwith an empty container no. TEXU556202040 was sent from Tuglakabad ICD for the abovesaid purpose. On 17.11.2004, at M/s L.G.Electronic India Pvt. Ltd. Greater Noida, UP, the consignment of TVs was loaded in the said container. The driver of the said trailer/truck was Ajaib Singh and he started with the said trailer and loaded container at 11 pm from Greater Noida, who was scheduled to reach ICD in the morning of 18.11.2004. The complainant had alleged that he and the supervisors of M/s H.S. 2/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
Roadlines namely Bhagmal tried to search for Ajaib Singh at different places in Delhi and UP, but all went in vain. Therefore, he had alleged that the accused Ajaib Singh, being the driver of the said trailer has committed the theft of the said consignment. On the basis of the said complaint, the present FIR under Section 407 IPC was lodged.
2. During investigation, on 30.11.2004, accused Ajaib Singh was arrested and on 08.12.2004, he got recovered the said truck, said container and 137 stolen LG TVs (in packed condition), loaded in the said container, from Sanjay Gandhi Transport Nagar, G.T.Karnal Road, Delhi. Thereafter, on the same day, he got recovered another 131 stolen LG TVs (in packed condition) from Goel Farm House, Village Kheda Kala, New Delhi. He further disclosed that he committed the present offence in connivance with the accused Ajit @ Ganesh, Ajay Verma, Ashok and Vakil Ahmed and on the intervening night of 17/18.11.2004, on their instructions, he unloaded said 131 LG TVs in the godown of Goel farm house. It was disclosed that the said godown was taken on rent by the accused Vakil Ahmed and thus, it was in his possession. All the said TVs, truck/trailer and container were seized. Thereafter, on the same day, on the basis of the disclosure of the accused Ajaib Singh, 3/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
accused Ashok Kumar, Ajay Verma and Ajit @ Ganesh were arrested. Thereafter, accused Ajay Verma got recovered one stolen LG TV (in packed condition) from his house situated at J90, Saurabh Vihar, Jait Pur, Badar Pur, New Delhi. Accused Ajit @ Ganesh also got recovered one stolen LG TV (in packed condition) from his house situated at Shahin Bagh, near Khurshid Masjid, Arif Hostel, Abul Fazal Enclave, New Delhi. Similarly, on the same day i.e. on 08.12.2004, accused Ashok Kumar got recovered one stolen LG TV (in packed condition) from a room in his house situated at J37, Hari Nagar, Saurabh Vihar, New Delhi. On conclusion of part investigation, chargesheet under section 407/411/34 IPC in respect of the accused persons namely Ajaib Singh, Ajit @ Ganesh, Ashok Kumar and Ajay Verma was filed in the court. Subsequently, on 10.02.2005, accused Vakil Ahmed was arrested and supplementary challan in respect of the said accused was also filed in the court and the same was directed to be annexed with the main challan. It is pertinent to mention here that nothing was recovered from the possession of the accused Vakil Ahmed.
3. In compliance of Section 207 Cr. P. C., the copy of the challan and the documents annexed therewith were supplied to all the 4/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
five accused persons. Prima facie charges U/s 407/411 IPC was made out against the accused persons namely Ajaib Singh, Ajit @ Ganesh, Ashok Kumar and Ajay Verma. Accordingly, on 24.02.2005, separate charges were framed against all the said four accused persons to which all of them pleaded not guilty and claimed trial. Similarly, prima facie charges U/s 414 IPC was made out against the accused Vakil Ahmed. Accordingly, on 25.04.2005, separate charge was framed against him to which he pleaded not guilty and claimed trial Thereafter, the case proceeded for prosecution evidence.
4. During prosecution evidence, accused Ajaib Singh and Ajay Verma died. Consequently, proceedings against accused Ajaib Singh was abated on 24.05.2006 and proceedings against accused Ajay Verma were abated on 07.08.2013. Besides, accused Ajit @ Ganesh failed to appear in the court and after adopting due process of law, on 17.10.2012, he was declared a proclaimed offender.
5. In order to substantiate its case, the prosecution examined twelve witnesses.
6. Complainant Sh. Rajinder Chugh (PW1) has testified that he had hired a truck/trailer no. HR464566 from M/s Roadlines owned 5/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
by Mr. Zaved Akhtar to bring some export consignment of colour t.v. from L.G.Electronics India Pvt. Ltd. and on 17.11.2004, the said truck/trailer was sent to LG Electronics India Pvt. Ltd., Greater Noida with empty container and there the consignment of TVs was loaded. Thereafter, the trailer with the driver Ajaib Singh was dispatched at night. He has further deposed that the said consignment did not reach its destination till morning and thereafter, he contacted the supervisor of M/s H.S. Roadline. He alongwith the supervisor tried to search the said truck/trailer with consignment, but all went in vain. He has proved his complaint Ex. PW1/A dated 19.11.2004. He had also correctly identified the accused Ajaib Singh.
7. Javed Akhtar (PW2) has testified that accused Ajaib Singh was working as a driver in his company named M.S.Roadline and on 16.11.2004, his truck bearing registration no. HR464566 was hired by Reliable Transport for bringing the consignment from LG company, Suraj Kund and he sent the said truck alongwith the driver/accused Ajaib Singh to the said Reliable Transport.
8. ASI Shanti (PW3), has deposed that on 19.11.2004, she was posted as duty officer and she registered the present FIR. She has 6/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
proved its copy as Ex. PW3/A and the endorsement as Ex. PW3/B.
9. Sh. Veer Pal (PW4) has deposed that he was working as clerk at godown of Gopal Goyal. One Anil came to the said godown for the purpose of taking it on rent. He has further deposed that he had shown the said godown and it was rented to him at a rent of Rs. 12,000/ per month. He has further deposed that after 2025 days, police officials came to the said godown and after breaking open the lock of the said godown, they seized the TVs which were recovered from it. His examination in chief was deferred and subsequently, he never appeared in the court for conclusion of his testimony.
10. Sh. Satbir Singh (PW5) has testified on the similar lines of Sh. Veerpal (PW4), though he revealed the name of the tenant to be Sunil instead of Anil. He failed to identify either of the accused persons to be the said Sunil, who had taken the said godown on rent. He was crossexamined by Ld. APP for the State as he was resiling from his previous statement. But despite that nothing incriminating against either of the accused persons could be extracted from him as he maintained that accused Vakil Ahmed did not take the said godown on rent.
11. Sh. Bhag Mal (PW6) has deposed that he was working as 7/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
Manager in M/s Roadline. He has further deposed that accused Ajaib Singh took them to Sanjay Gandhi Transport Nagar and pointed out towards a godown, which was locked. He has testified that total 137 TV make LG in packed condition were recovered from the said godown and they were seized vide seizure memo Ex. PW6/A.
12. Ct. Dharmender (PW7) has deposed that on 08.12.2004, on receipt of DD no. 28B, he alongwith ASI Jai Prakash, HC Suresh Kumar and Ct. Jai Prakash reached at Sarita Vihar red light. He has further deposed that IO requested 23 public persons to join investigation but none of them agreed and left the spot without disclosing their names and addresses. Thereafter, at the instance of secret informer, accused Ajit, Ajay Verma and Ashok Kumar were arrested. All the three accused persons got recovered one stolen LG T.V. Each. He has testified that accused Ajay got recovered stolen LG TV from J19, Saurabh Vihar, accused Ashok Kumar got one packed LG TV recovered from his house situated at J37, Saurabh Vihar, Badar Pur and accused Ajit got recovered one LG TV in packed condition from his rented house situated at Abul Fazal Enclave. He has correctly identified all the accused persons.
8/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
13. Mohd. Umar (PW8) has testified that in the year 2004, he was working as Guard in Goyal Farm, house Kheda Kalan. Accused Ajaib Singh alongwith ASI Jai Prakash came to the said godown and the accused Ajaib Singh got recovered TVs in sealed condition from the said godown. He has further deposed that the said TVs were seized vide seizure memo Ex. PW8/A.
14. Sh. Ravi Jaggi (PW9) has deposed that he was working as Executive in L.G.Electronics. He got loaded some export consignment of TVs in a container from the factory of LG Electronics of Greater Noida. He has deposed that he made a complaint to the police Ex. PW9/A.
15. Ct. Jai Prakash (PW10) has deposed regarding the arrest of accused Ajaib Singh on 30.11.2004 and recovery of stolen truck, stolen container and stolen 268 TVs at the instance of the accused Ajaib Singh. In respect of investigation conducted on 08.12.2004, he has deposed on the similar lines as that of PW7 Ct. Dharmender and therefore, his said testimony is not repeated herein for the sake of brevity.
16. HC Suresh Kumar (PW11) is one of the recovery witnesses 9/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
and retired SI Jai Prakash (PW12) is the IO of the case. They have testified on the similar lines as that of PW10 Ct. Jai Prakash. Therefore, their testimonies inconsistence with PW10 Ct. Jai Prakash is not reproduced herein to avoid repetition. In addition to the testimony of PW10 Ct. Jai Prakash, PW12 SI Jai Prakash has testified that on 10.02.2005, he arrested the accused Vakil Ahmed, who disclosed that he had taken Gopal Goel godown at village Kheda Kala on a rent of Rs. 12,000/ per month. Thereafter, he prepared a supplementary challan against the accused Vakil Ahmed and the same was filed in the court. Thereafter, PE was closed.
17. Statements of both the accused persons namely Ashok Kumar and Vakil Ahmed U/s 313/281 Cr.P.C. were separately recorded. All the incriminating evidence against them were put to them for seeking their respective explanations. In the said statements, they have stated that they are innocent and they have been falsely implicated in the present case. They chose not to lead evidence in defence. Therefore, the case was listed for final arguments.
18. I have heard Ld. APP for the State and Ld. Counsel for both the accused persons. I have carefully perused the case file. 10/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
19. 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.
20. In the instant case, the accused Ashok Kumar has been charged for the offence for the offence of dishonestly receiving or retaining stolen property (under section 411 IPC) and the accused Vakil Ahmed is charged for the offence of assisting in concealment of stolen property (under section 414 IPC).
21. In a case titled as Mahabir Vs. State of Bihar, AIR 1972 S.C. 642, the Hon'ble Apex Court has held that : "The essential requirement of the offence of receiving stolen property is that the property seized from the possession of the accused must be proved by the prosecution to be stolen".
In the instant case, the prosecution has alleged o08.12.0004, accused Ashok Kumar was arrested and he got recovered one stolen LG TV from his house situated at J37, Hari Nagar, Saurabh 11/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
Vihar, Badar Pur, New Delhi. The alleged recovery was effected after nearly 20 days of the theft of LG TVs, which took place on 17.11.2004. As per the prosecution, 268 stolen LG TVs were already recovered on 01.12.2004 at the instance of the accused Ajaib Singh (since deceased). The complainant of PW9 Sh. Ravi Jaggi, Junior ExecutiveImports, LG Electronics India Pvt. Ltd. Greater Noida, UP, Ex PW9/A reflects that total 272 sets of TVs were loaded on 17.11.2004 in the container attached with the truck bearing registration no. HR464566. However, the said complaint is undated. The main complainant Ex. PW1/A, dated 19.11.2004 does not find mention the no. of TVs that were loaded in the stolen truck. Further, no specific identity/serial no. of the stolen TVs was revealed by the complainant in his complaint. For bringing home the guilt of the accused, it is necessary that the prosecution establishes beyond any reasonable doubt that the recovered property is same as the stolen property. However, in the instant case, in absence of any distinct identity mark on the allegedly recovered/case property it cannot be held with certainty that the said property is the stolen property of the complainant.
22. If, for the sake of arguments, if it is presumed to have been 12/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
established that the recovered TV (in this judgment, we are concerned about only one TV that was allegedly recovered from the accused Ashok Kumar) is the stolen property of the complainant, then also to indict the accused Ashok Kumar, the prosecution is required to establish that the said TV was recovered from the possession and at his instance. As per prosecution, said TV was recovered at the instance of the accused Ashok Kumar from his house situated at J37, Saurabh Vihar, Badar Pur, New Delhi. The prosecution has failed to place on record the possession proof of the said house to show that he was in possession of the said house. Besides, the alleged place of recovery is admittedly densely populated area and so it can be conclusively inferred that many public persons must be available at the time and spot of alleged recovery. However, IO did not make any efforts to join the public /independent persons/inhabitants of the nearby located houses. Had the recovery witnesses would have made effort they could have easily joined public/independent witness at the time of recovery. However, in their wisdom they preferred not to join any public witness despite of their availability. The recovery witnesses have also failed to advance any justifiable reason for non joining of independent/public 13/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
witness at the time of alleged recovery of the TV from the accused Ashok Kumar. Hence, story of the prosecution is further shrouded in suspicion.
23. The prosecution has failed to examine any public recovery witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The recovery witnesses that are examined by the prosecution in the present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion, it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness at the time of alleged recovery of the articles creates doubt in the story of the 14/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court.
24. The reliance can also be placed upon the findings given by Hon'ble Apex Court in case titled as Harjit Singh V. State of Punjab [2002]SUPP1SCR581wherein it is held: ".........50 Apart from the versions of eyewitnesses discussed above, the trial court attached importance to the fact that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered under memorandum Ext. P19. We have referred to the statement of Investigating Officer Puran Singh (PW9). He is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statement Ex.PV and memorandum of recovery Ext. PU1. We have noted that these memoranda have been signed only by two police officers Faqir Chand and Virsa Singh. It is unbelievable that all the accused persons who have alleged to use their firearms/weapons kept all the arms concealed in an open field in a gunny bag under the heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of 15/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied on by the trial court to convict the accused by treating it as eyewitness account."
I also find support from case titled as Aslam Parwez V. Govt. of NCT of Delhi 2003 CriLJ 2525 Hon'ble Supreme Court has held:
"10......In view of these features of the case, we are of the opinion that the testimony of three police personnel, namely, PWs 10, 11 and 1 does not inspire confidence and it will be highly unsafe to reliance upon the same in order to convict the accused specially when the public and independent witnesses did not at all support the prosecution case on any material particular."
25. Keeping in view the fact that the version of the recovery witnesses has remained uncorroborated by any other independent witness regarding the alleged recovery of LG TV, it will be highly unsafe to rely upon their version to pass the order of conviction against either of the accused person. It has been held in 1975 CAR 309 (SC) that : "Prosecution case resting solely on the testimony of head 16/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
26. In the wake of above discussion, the prosecution has not only failed to connect the alleged recovered TV with the alleged stolen TVs, but even there is reasonable doubt regarding its alleged recovery from the possession of the accused Ashok Kumar.
27. In respect of the accused Vakil Ahmed, it is an admitted fact that nothing was recovered from his possession. He was merely arrested on the basis of disclosure statement of the coaccused persons and the said disclosure statement is inadmissible in evidence as the same is barred under section 25/26 of Evidence Act, 1872. Besides, as per the prosecution, 131 stolen LG TVs were recovered from Gopal Goel Godown situated in villageKhedakala, New Delhi and the said godown was taken on rent by the accused Vakil Ahmed and thus, he was in its possession as tenant. However, prosecution has failed to place on record any rent agreement to support its allegations. On the contrary, PW4 Veer Pal, clerk of the owner of the said godown has categorically 17/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
testified that they had given it on rent to one Anil and not Vakil Ahmed Similarly, Sh. Satbir Singh (PW5) has categorically deposed that Vakil Ahmed was not a tenant of the said godown. Hence, there is no admissible incriminating evidence to connect the accused Vakil Ahmed to the said godown and so, he cannot be held guilty for assisting in storing stolen LG TVs at the said godown. Thus, the prosecution case suffers from material and fatal infirmities and therefore, both the accused persons namely Ashok Kumar and Vakil Ahmed are entitled to benefit of doubt.
28. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against either of the accused persons to bring them within the four corners of the offences punishable U/s 407/411/414 IPC. Accordingly, both the accused persons namely Ashok Kumar and Vakil Ahmed are acquitted for the abovesaid offences. They are directed to furnish fresh personal bonds in a sum of Rs. 10,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. They have submitted that their respective previous bail bonds and surety bonds be extended for the next six months. The said request is allowed and they are accepted for 18/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
next six months.
File be consigned to Record Room with the directions to record keeper to revive the same as and when the accused Ajit @ Ganesh is arrested and produced before the court for facing trial.
Announced in the open court today i.e. on 22.12.2014 (DHEERAJ MOR) METROPOLITAN MAGISTRATE SAKET/DELHI 19/19 FIR NO. 818/04 PS. OIA U/s. 407/411/34 IPC.
IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, SAKET COURTS, DELHI.
FIR NO. 818/04PS. OIA U/s. 407/411/34 IPC.
22.12.2014 Present Sh. Narender Yadav, Ld. APP for the State.
Proceedings against accused Ajaib Singh and Ajay Verma have already been abated.
Accused Ashok Kumar and Vakil Ahmed on bail with their counsel.
Accused Ajeet is PO vide order dated 17.10.2012.
Final arguments are heard. Case file is perused. Vide my separate judgment announced in the open court today, both the accused persons namely Ashok Kumar and Vakil Ahmed are acquitted for the offences punishable U/s punishable U/s 407/411/414 IPC. They are directed to furnish fresh personal bonds in a sum of Rs. 10,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. They have submitted that their respective previous bail bonds and surety bonds be extended for the next six months. The said request is allowed and they are accepted for next six months.
File be consigned to Record Room with the directions to record keeper to revive the same as and when the accused Ajit @ Ganesh is arrested and produced before the court for facing trial.
(Dheeraj Mor) MM02/SE/SC/ND 22.12.2014 20/19