Delhi District Court
Bittoo @ Kundal vs State on 11 August, 2017
Criminal Appeal Nos.113/2017 & 114/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal Nos. : 113/2017 & 114/2017
Under Section : 411 IPC
Police Station : Preet Vihar
FIR No. : 133/2009
CNR Nos. : DLET-01-007775-2017 &
DLET-01-007797-2017
In the matter of Criminal Appeal No.113/17 :-
BITTOO @ KUNDAL,
S/o. Sh. Mange Ram,
R/o.Village-Luhari, PS Baraut,
District Baghpat, U.P.
............APPELLANT
VERSUS
STATE
............RESPONDENT
AND
In the matter of Criminal Appeal No.114/17 :-
DEVENDER SINGH @ BABLOO
S/o. Sh. Samunder Singh,
R/o. Village Dighal, PS Beri,
District Khajjar, Haryana.
............APPELLANT
VERSUS
STATE
............RESPONDENT
Date of Institution : 06.07.2017
Date of Receiving : 07.07.2017
Date of reserving judgment : 26.07.2017
Date of pronouncement : 11.08.2017
Decision : Appeal is Allowed.
JUDGMENT
1. Vide this common judgment I shall decide two appeals, which have been preferred against the same judgment of conviction dated 31.05.2017 and order on sentence dated 09.06.2017, passed by trial Page 1 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017 court in a case titled as State v. Devender Singh @ Bablu etc., bearing FIR No. 133/2009, under Section 379/411/34 IPC, PS Preet Vihar. Vide impugned judgment of conviction dated 31.05.2017, trial court convicted accused Devender Singh @ Babloo and Bittoo @ Kundal (appellants herein) for offence punishable under Section 411/34 IPC. Vide impugned order on sentence dated 09.06.2017, ld. trial court sentenced both convicts to undergo simple imprisonment for a period of one year and to pay fine of Rs.3,000/- by each convict, for offence under Section 411 IPC. Fine of Rs.3,000/- was paid by both the convicts before the trial court.
BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to these two appeals in hand are that Sh. Kulwant Singh/complainant reported an incident of theft to the police agency. In his complaint, complainant alleged that on 15.03.2009 at about 11:00 PM, he had parked his Innova (Taxi) vehicle bearing registration no. DL-1YB-3487 of white colour, in front of shop no. C-18, Guru Nanak Pura, Patparganj Road, Delhi. The said vehicle was of 2009 model having chassis no.MBJ11JV400711 4794 and its engine no. 2KD6028389. He further alleged that on 16.03.2009 at about 05:30 AM, he found that his vehicle was missing from the place, where he parked the same. On the basis of his statement dated 18.03.2009, an FIR was registered for offence under Section 379 IPC. During the course of investigation, accused Devender Singh @ Babloo and Bittoo @ Kundal were arrested and the stolen vehicle was recovered at their instance.
3. After completion of investigation, on 15.05.2009 chargesheet was filed for offences punishable under Section 379/411 read with Section 34 IPC against both accused persons. Thereafter, on 04.08.2009 charges were framed against both accused for offences punishable Page 2 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017 under Section 379/411/34 IPC, to which they pleaded not guilty and claimed trial and matter was fixed for prosecution evidence.
4. Prosecution examined 7 witnesses in support of the case. PW1/Sh.
Kulwant Singh was complainant/ owner of stolen vehicle (Innova bearing no. DL-1YB-3487). PW2/HC Amar Pal Singh, PW3/HC Azad Singh and PW4/Ct. Ram Vir assisted IO in the investigation of the present case. PW5/Sh. Rajiv Kumar was witness to seizure of number plates of vehicles, gloves etc. PW6/Sh. Prakash Chand was LDC Transport Department of Taxi Unit. PW7/SI Chiranji Lal was IO of the case.
5. After closing the prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C on 09.05.2017. In their statement, accused persons denied the case of prosecution and stated that they had been falsely implicated in this case. They also stated that they used to drive a bus of Roshan and Hari Om and they were called by them to take payment on the date of incident, where police officials were already present there. The said police officials let off the real culprits and falsely implicated them. Accused persons preferred not to lead defence evidence and matter was fixed for final argument.
6. After appreciating the evidence on record, trial court convicted Devender Singh @ Babloo and Bittoo @ Kundal/appellants herein on 31.05.2017 and passed order on sentence dated 09.06.2017, accordingly.
GROUNDS : -
7. Being aggrieved of the impugned judgment of conviction and order on sentence appellant Bittoo @ Kundal has preferred Crl. Appl.
No.113/17 on the following grounds :-
● That the trial court did not appreciate that the accused is first time Page 3 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017 offender and neither he was previously convicted nor a habitual offender or wanted in any other case.
● That the trial court failed to appreciate that why was the appellant arrested under Section 41(1) Cr.P.C by crime branch and why the arrest memo of appellant was not signed by the informant or any other witnesses.
● That the trial court did not appreciate that prosecution completely failed to prove the recovery of Innova vehicle from the possession of the appellant. Recovery was made from the public place and no public person was made a witness of recovery.
● That the trial court did not appreciate that prosecution failed to explain the reason of delay in registration of FIR. Prosecution also failed to prove that why complainant did not make call at 100 number or made report on 16.03.2009 after knowing that his car was missing and why did not police record FIR on 16.03.2009, if the complainant had made call at 100 number.
● That the trial court did not appreciate that as per prosecution story the number plate and other documents were recovered from the room of Roshan @ Babloo, but neither Roshan @ Babloo was arrested nor was he declared PO, which creates reasonable doubt upon the prosecution case. Similarly, co-accused Pradeep @ Tony and Hariom were neither arrested nor declared PO and there is no explanation that why did police free them.
● That the trial court did not appreciate that in evidence of PW6/Prakash Chand LDC Transport Department, he stated that the name of registered owner was Kundan Singh, however, name of complainant is Kulwant Singh in the present case. Address of registered owner is also different as per evidence of PW6. The whole case of prosecution is doubtful, if the complainant is not a Page 4 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017 genuine owner.
● That the trial court did not appreciate that as per examination of PW7/SI Chiranjilal recovery was effected on 19.03.2009, while discloser statement was recorded on 20.03.2009 at about 12:00 noon.
8. Being aggrieved of the impugned judgment of conviction and order on sentence appellant Devender Singh @ Babloo has preferred Crl.
Appl. No.114/17 on the following grounds :-
● That the trial court failed to appreciate the testimony of PW5, who has failed to establish any retaliation of appellant/convict with the persons who were residing as tenant in the property, from where alleged recovery of number plates are shown to be recovered at the pointing out of the appellant. Appellant was also not provided with the ample opportunity to cross-examine the above mentioned witness, which was very crucial and vital for the just decision of the present FIR.
● That the trial court failed to appreciate that no documentary proof had been lead by the prosecution or by any of its witnesses including PW5 regarding tenancy of the appellant/convict nor any explanation had been offered for the same.
● The trial court failed to appreciate that no site plan of the place of recovery had been prepared by the IO thereby creating doubt about the manner of the alleged recovery from the convict/ appellant.
● The trial court also failed to appreciate that no photographs of the case property were taken at the time of alleged recovery. ● The trial court failed to appreciate that no plausible explanation had been afforded by PW7 regarding non-joining of the independent public witnesses during the alleged recovery at the Page 5 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017 instance of accused from a place open to public at large and that too from outside the SDM office, which place was daily visited by large number of public persons. The joint recovery from two accused persons is a myth, which raise suspicion regarding the authenticity of the alleged recovery.
● That the trial court failed to appreciate that no reasonable opportunity had been given to the convict/appellant to cross- examine PW5, who is a very material witness, which is against the provisions of fair trial.
● That the trial court failed to appreciate that even on the face of record no offence under Section 411 IPC is made out against the convict and therefore, impugned judgment of conviction and order on sentence are liable to be set aside on this ground alone. ● That the trial court did not appreciate that the inconsistencies and material deviations and improvements in the testimony of witnesses, only go on to show that their testimonies with regard to the alleged incident and the police investigation were doubtful. Their version had been introduced only on account of a well thought out plan to implicate the present appellant. ARGUMENTS :-
9. Ld. counsel for appellant Bittoo @ Kundal argued that trial court did not mention specific reason for not granting probation. He further argued that IO/PW7 arrested accused for offence under Section 41.1 Cr.P.C, but neither place nor reason of arrest was disclosed by him.
He further argued that FIR was registered after two days of alleged theft. FIR was registered after arrest of accused and false recovery was shown. In the first disclosure statement different place of parking of vehicle was recorded i.e. Roshan's rented accommodation, but neither Roshan was arrested nor prosecuted in this case. Accused Page 6 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017 was driver with Roshan and Om Prakash and he was falsely implicated by police in connivance with Roshan. Ld. counsel further argued that there is overwriting in date in rukka. Place of recovery shown by police was a public place, while no public person was made a witness of recovery. Information of arrest was not given to anyone.
10.Ld. counsel for appellant Devender Singh @ Babloo argued that PW5 was shown as witness to recovery. He further argued that for two days complainant kept mum and did not give information of particulars of engine and chassis number of vehicle to police agency. PW2/1st IO deposed in his testimony that chassis number was orally informed by complainant, but no document of vehicle was given to him. Ld. counsel further argued that PW7/IO recorded disclosure statement of both accused on 20.03.2009, though recovery is shown on 19.03.2009. He further argued that the first disclosure given to HC Azad did not mention the place of vehicle. PW5 did not see accused keeping anything in the rooms of his tenant and who opened the room was not explained. PW5 was important witness, but he was not cross-examined. Ld. counsel further argued that testimony of PW5 and PW7 are contradictory.
11.Per contra ld. Addl. PP for the State argued that recovery is not doubtful and it is not possible to involve public witness due to their reluctance. There was a DD entry, though FIR was registered later on. Ld. Addl. PP further argued that recovery at the instance of appellants and their conduct to lead to the place of recovery is relevant fact under Section 8 of Evidence Act and no formal disclosure statement was required.
APPRECIATION OF EVIDENCE, ARGUMENTS, CASE LAWS AS WELL AS FINDINGS :-
Page 7 of 11 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017
12.The defence counsels challenged the case of prosecution so as to dispute the credibility of prosecution evidence regarding recovery of alleged stolen vehicle at the instance of both appellants, alleging that the artificial recovery proceedings were projected before the court and IO had falsely implicated appellants in place of actual culprits. In the backdrop of defence argument, I propose to analyse the prosecution evidence. PW1 was the complainant, who had lodged complaint of theft of his Innova Taxi. The material contradiction appearing from the testimony of PW1 and testimony of PW2/HC Amar Pal Singh relates to information regarding engine and chassis number. It is admitted case that FIR was registered at a belated stage i.e. on 18.03.2009 at 01:35 PM, though the vehicle was found to be stolen in the early morning of 16.03.2009. According to prosecution, complainant came with his complaint on 18.03.2009 and till that time he had been searching for his vehicle at other places as well as with the financier.
13.In his complaint/statement Ex.PW1/A, chassis and engine number of the vehicle was duly mentioned. In his cross-examination PW1 deposed that he had shown photocopies of R/C, permit, fitness, insurance etc. to police and he got recorded the chassis and engine number on the basis of said documents. But he did not remember, if copy of those documents were kept by IO or not. PW2 was the first IO, who had recorded the statement Ex.PW1/A and had got FIR registered. In his cross-examination PW2 deposed that complainant i.e. PW1 did not produce or show any document related to stolen car and chassis and engine number as mentioned in Ex.PW1/A were told by the complainant orally. He had asked complainant to show any document of ownership, but complainant did not produce any such document till the file was with him. These contradictions appearing in Page 8 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017 the testimony of PW1 and PW2 coupled with the fact that the date mentioned in Ex.PW1/A changed from 16.03.2009 to 18.03.2009, do point out to some manipulation done or some sort of artificiality in the proceedings of IO. It is worth to mention here that according to PW2, after registration of FIR on 18.03.2009, he searched for the car and on 19.03.2009 he handed over the file to MHC(R) as per order of senior officers.
14.PW2 was posted in PS Preet Vihar on 19.03.2009. Thereafter, PW3/HC Ajad Singh from Crime Branch had allegedly arrested both appellants on 19.03.2009 in DD-2 under Section 41.1 (d) Cr.P.C. The appellants were allegedly interrogated by PW3 and on the basis of their disclosure statements PW7/ASI Chiranji Lal had arrested them in the present case at 05:00 AM. According to PW7, he received this information at about 04:00 AM on 19.03.2009. PW7 deposed that case file of this case was marked to him for further investigation. In cross-examination, he further deposed that PW2 had handed over custody of appellants to him at 04:00 AM along with copy of kalendra and their disclosure statements. He was handed over case file of this case for further investigation on 19.03.2009 at about 01:00 AM. If PW2 had deposited the case file with MHC(R) of PS Preet Vihar on 19.03.2009, then it becomes questionable that how could the case file travel to office of Crime Branch from PS Preet Vihar to Chanakya Puri on 19.03.2009 itself, so as to be delivered to PW7 at 01:00 AM itself. PW2 did not mention the time of handing over the file to MHC(R) on 19.03.2009 and prosecution did not prove any such record to show that this case file was immediately transferred to Crime Branch by virtue of any particular order of senior officer before 01:00 AM on 19.03.2009.
15.In normal course of action, it is not expected that after registration of Page 9 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017 FIR on 18.03.2009 at PS Preet Vihar and initial investigation conducted by PW2 on 18.03.2009, the file could have been transferred to Crime Branch at Chanakya Puri at mid night so as to be delivered to PW7 at 01:00 AM on 19.03.2009. This scenario does raise serious doubts over the case presented by PW7.
16.The stolen vehicle in this case was shown to be recovered on 20.03.2009 from the office of SDM Kanjhawla. The number plates of this vehicle was shown to be recovered from the room taken on rent by brother of one Roshan @ Babloo from PW5. PW5/Sh. Rajiv Kumar simply stated that both appellants used to come and meet Naveen and Deepak. Naveen was brother of Roshan. PW5 simply stated that police officials recovered number plates of that vehicle from that room. It cannot be said with surety that number plates were kept in that room by appellants only and none-else. Therefore, recovery of these number plates cannot be so incriminating against the appellants.
17.The vehicle was also lying parked in a public place and its recovery at the instance of appellants cannot be such credible evidence to say that the vehicle was so parked there by appellants only and none- else. The remaining part of disclosure statements allegedly given by appellants cannot be admissible in evidence so as to say that they were involved in this theft. Having knowledge about room of Naveen, where Roshan used to visit or the place where vehicle was parked cannot be sufficient to say that vehicle was in conscious possession of the appellants.
18.The artificiality appearing in respect of mentioning chassis number and engine number in the complaint shown to be dated 18.03.2009 and the improbable situation of transfer of this case file from PS Preet Vihar to office of Crime Branch, Chankya Puri before the Page 10 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.113/2017 & 114/2017 alleged time of case being assigned to PW7, point out to some story making on the part of police officials. In that situation one cannot rule out that the appellants were also implicated with recovery of number plate and vehicle being shown against them, while leaving the actual culprit.
19.In these circumstances, I do find that both appellants are entitled for benefit of doubt. Hence, judgment of conviction dated 31.05.2017 and order on sentence dated 09.06.2017 are set aside and appellants are acquitted of all the charges leveled against them for offence punishable under Section 411/34 IPC. Both appeals are allowed accordingly.
20.TCR along with copy of judgment be sent back to the trial court.
File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 11.08.2017 Special Judge (PC Act) CBI, East (This order contains 11 pages) Karkardooma Courts, Delhi Page 11 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi