Delhi District Court
State vs . Alimuddin @ Alim & Others on 7 September, 2013
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IN THE COURT OF SH. JITENDRA SINGH: METROPOLITAN MAGISTRATE
(NORTH-EAST-04)KARKARDOOMA COURTS: DELHI
FIR No. 65/2001
PS: Gokal Puri
U/s. 411 IPC
Dated: 07.09.2013
Case ID: 02402R0042442001
STATE VS. ALIMUDDIN @ ALIM & OTHERS
Date of Institution : 03.09.2001
Date of Commission of offence : 15.01.2001 to 04.07.2001
Name of the Complainant : Sh. Mukesh Kumar S/o Late Sh.
Jagdish Parsad
Name parentage and address :
of the accused persons (1) Alimuddin @ Alijm S/o Sh.
Abdul Hamid, R/o; B-469, B-13, J-
Block, New Seelampur, Delhi.
(2) Shakeel @ Javed S/o Sh.
Mohd. Hussan, R/o; F-1608, K-
Block, New Seelampur, Delhi.
(Discharged vide order dated
07.01.2003.)
(3) Shamim S/o Sh. Abdul Hakim,
R/o; 452, Gali No. 3, Nehru Vihar,
Mustafabad, Delhi. (Discharged
vide order dated 07.01.2013.)
Offence Complained of : U/s. 411 of IPC
Plea of the accused : Pleaded not guilty.
Final Order : Acquitted.
Date for reserve for order : 07.09.2013
FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 1/11
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Date of announcing of order : 07.09.2013
JUDGEMENT
BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 65/2001, PS Gokal Puri. The case of the prosecution as per the complaint of the Complainant is that in between 15.01.2001 to 04.07.2001, accused had dishonestly received or retained the stolen jewelery articles which had been stolen on 15.02.2001 from H.No. 130, Govind Vihar, Karawal Nagar, Delhi, knowing or having reason to believe the same to be stolen property. Thus accused committed offences punishable U/s. 411 of IPC. The accused pleaded not guilty and claimed trial.
2. On conclusion of the investigation, a charge sheet was filed against accused persons U/s. 457/380/411/34 IPC. During the arguments on charge accused persons namely Shakil and Shamim have discharged by my Ld. Predecessor vide order dated 07.01.2003. Thereafter,a charge Under Section 411 of IPC was framed against accused Alimuddin @ Alam on 07.01.2003, to which he pleaded not guilty and claimed trial.
3. The prosecution has examined four witnesses in all in the instant case.
The deposition of witnesses is touched upon in brief as under to have a better appreciation of the case, which are follows:
PW-1 is ASI Arvind Kumar, who stated on oath that on 15.01.2001, he was posted in the PS Gokalpuri as DO from 4.00 PM to 12.00 night. ASI Harish Chand gave a rukka to him in the PS, on the basis of which he had recorded FIR No. 65/2001, u/s. 457/380/ IPC. PW-1 deposed that after registration of the case he handed over a copy of the FIR and rukka through Home Guard Irshad for handing it over to ASI Harish Chand. The carbon copy of the same is Ex. PW1/A, which bears his signature at point A. FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 2/11 3 The said witness was not cross examined by the Ld. Counsel for the defence.
PW-2 is Ct. Irshad, who stated on oath that on 15.02.2001, he was posted as Constable in PS Gokalpuri. On that day Duty Officer handed over him tehrir and copy of FIR to deliver the IO at H.No. 130, Govind Vihar. Accordingly, he delivered the same to ASI Harish Chand. His statement was also recorded.
The said witness was not cross examined by the Ld. Counsel for the defence.
PW-3 is complainant/Sh. Mukesh Kumar, who stated on oath that in the intervening night of 12.02.2001 and 13.02.2001, he was alone at his house and other family members had gone to Agra. When in the morning, he woke up, he saw that the door of the inside room was opened and lock was found broken. PW-3 deposed that when he entered inside the room. He saw that the articles were lying scattered. PW-3 further deposed that thereafter his brother in law made call on 100 number. PCR Van reached at the spot first thereafter local police also reached there. PW-3 further deposed that since he was not aware about the articles and he wants to confirm from his mother therefore on 15.02.2001, he recorded his statement to the police Ex. PW3/A, which bears his signatures at point A. PW-3 further deposed that separate list regarding missing of articles was given later on after checking the articles. PW-3 further deposed that the list is Ex. PW3/B, which bears his signatures at point A. The said list was prepared by him. Site plan was prepared by the police at his instance on 15.02.2001. During cross examination MHC (M) produced three sealed pullanda bearing the seal of SKM. All the three pullandas are opened and case property i.e. jewelery articles (silver pair of pajeb, tagdi, kharua and one gold pendent) and shown to the witness and witness states that none of shown jewelery articles belongs to him. Police had never stated to him FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 3/11 4 that his jewelery articles were recovered and they had never shown to him any jewelery recovered.
The said witness was not cross examined by the Ld. Counsel for the defence.
PW-4 is HC Omender, who stated on oath that on 05.07.2001, he was posted at PS Gokalpuri as Head Constable. PW-4 deposed that on that day, he joined the investigation of case FIR No. 254/2001 alongwith IO/ASI Chetan Swaroop. PW-4 further deposed that accused Shakil and accused was arrested on that day in that case and he had made several disclosures including disclosure of the present case. PW-4 further deposed that the disclosure statement of accused Shakil is Mark-Y. Mark Y contains his signature at point A. IO recorded his statement. The said witness was not cross examined on behalf of the defence.
4. Thereafter, PE was closed. Statement U/s. 313 Cr.PC of the accused was recorded, wherein he stated that he does not want to lead his defence evidence. Accordingly, DE stands closed. Final arguments have been heard from both the sides and record has been meticulously perused.
5. I have weighed the rival submissions made on behalf of the State as well as on behalf of the defence in the light of the testimonies & material appearing on record.
6. Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 4/11 5 burden never shifts on to the accused.
7. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
8. To prove the offences U/s. 411 of IPC, the prosecution is required to prove the following:-
(i) that the property in question is stolen property.
(ii) that the accused received or retained such property.
(iii) that he did so dishonestly.
(iv) that he knew or had reason to believe that the property was stolen property.
9. I have heard the contention of Ld. APP for State as well as Ld. Defence counsel and given my thoughtful consideration. To prove the present offence, the Prosecution has examined four witnesses in all. To Prove the ingredients of offences, the Prosecution was required to prove that the stolen property has been recovered from the possession of the accused. In the aforesaid factual & legal background, I shall now step forward to adjudicate as to whether the prosecution has succeeded in proving its case against the accused or not.
10. The prosecution had examined the complainant/Sh. Mukesh Kumar as PW-3, who stated on oath that in the intervening night of 12.02.2001 and 13.02.2001, he was alone at his house and other family members had gone to Agra. When in the morning, he woke up, he saw that the door of the inside room was opened and lock was found broken. PW-3 deposed that when he entered inside the room. He saw that the articles were lying scattered. PW-3 further deposed that thereafter his brother in law made call on 100 number. PCR Van reached at the spot first thereafter local police also reached there. PW-3 further deposed that since he was not aware about the articles and he wants to confirm from his mother, FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 5/11 6 therefore on 15.02.2001, he recorded his statement to the police Ex. PW3/A, which bears his signatures at point A. PW-3 further deposed that separate list regarding missing of articles was given later on after checking the articles. PW-3 further deposed that the list is Ex. PW3/B, which bears his signatures at point A. The said list was prepared by him. Site plan was prepared by the police at his instance on 15.02.2001. It is pertinent to mention there that when the case property was produced before the court, the witness failed to identify the same. The relevant extract of the same is below for ready reference:-
"....During cross examination MHC (M) produced three sealed pullanda bearing the seal of SKM. All the three pullandas are opened and case property i.e. jewelery articles (silver pair of pajeb, tagdi, kharua and one gold pendent) and shown to the witness and witness states that none of shown jewelery articles belongs to him. Police had never stated to him that his jewelery articles were recovered and they had never shown to him any jewelery recovered....".
The abovesaid portion of the examination of the chief of the complainant clearly shows that the recovered articles were not the articles which were stolen from the house of the complainant. Therefore the recovery itself seems doubtful.
11. Moreover, PW-4 HC Omender, has stated that on 05.07.2001, he was posted at PS Gokalpuri as Head Constable. PW-4 deposed that on that day, he joined the investigation of case FIR No. 254/2001 alongwith IO/ASI Chetan Swaroop. PW-4 further deposed that accused Shakil and accused was arrested on that day in that case and he had made several disclosures including disclosure of the present case. PW-4 further deposed that the disclosure statement of accused Shakil is Mark-Y. Mark Y contains his signature at point A. IO recorded his statement.
12. Now the question arises whether the disclosure statement of accused FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 6/11 7 persons can be read against them. There is no clear evidence which could establish as to which of the accused persons made the statement first, which led to the recovery of the case property. The joint statement is not admissible in the eyes of law. I am enlightened by the judgment of Hon'ble High Court of Sikkim in case titled as " Prem Bahadur Rai Vs. State of Sikkim" cited as ' 1978 CRI.L.J.945 (1)', wherein it has been held that:-
"...para no. 18. 27 of the Indian Evidence Act. But, as already noted, the evidence is too vague to lead us to any conclusion as to, which of the accused persons made the alleged disclosure or the statement in consequence whereof the discovery was made. Since there is no clear evidence as to which of the accused persons made the crucial statement first, which could have led the police to the alleged discovery of Exhibit, 1, the so-called joint statement of the accused persons cannot be relied on under Section 27 of the Indian Evidence Act.."
13. Further, It is clear from the testimony of PW-2 Ct. Irshad that oni 15.02.2001, after receiving the tehrir/rukka & copy of FIR, he went to the spot to deliver the same to IO of the instant matter. After handing over the same documents to the IO, IO recorded his statement. Be that as it may, now if the said police official was not present within the P.S. at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival in the D.D. Register.
Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 7/11 8 signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
14. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of the said (PW-2) Ct. Irshad. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of said police officials at PS. It is also worth mentioning that as per the case of the prosecution that police official who reached at the spot with the tehrir/rukka and copy of FIR was posted at PS Gokalpuri at the time of incident. However, no DD entry in support of this fact has been placed on record which the said police officials had left the PS to hand over the said documents to the IO, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused persons and the recovery of the stolen case properties, since the said police officials were under bounden duty to enter their departure & arrival entries in that respect as per the aforesaid mentioned P.P. Rule. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 8/11 9
15. Furthermore, though it appears from the testimony of PW-2 and PW-4 that the recovery in question was effected from a crowded place and public presence throughout but despite that PW-2 & PW-4 made no efforts whatsoever to join public witnesses to the recovery proceedings allegedly conducted by them. From the aforementioned circumstances, it is clear that the place of alleged recovery was a public place and despite that PW-2 and PW-4 did not made any sincere effort whatsoever to join the public witnesses to the recovery proceedings headed by them, which if would have done might have added strength to the tainted recovery proceedings.
16. In circumstances like the present one, the police officials should have made an effort to join public witnesses during the recovery proceedings and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of the recovery or after the recovery, when the accused persons were already apprehended, since after the apprehension of the accused persons, there was no possibility of accused persons escaping their arrest or their crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the recovery by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 9/11 10 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non- joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 10/11 11 highly doubtful".
17. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
18. From the aforesaid testimonies, I am of the view that the prosecution has completely failed in proving the connection between the recovery of the stolen case properties in the instant matter and the case property (jewelery articles) stolen from the house of the complainant.
19. The aforementioned contradictions, omissions and lacunas clearly shows that the prosecution has been unable to prove the recovery alleged against the accused beyond reasonable doubt, whereby the accused has become entitled to the benefit of doubt. Accordingly, I accord the benefit of doubt to the accused, whereby the accused Alimuddin @ Alam is acquitted of the charges levelled against him.
Announced in the open court today itself i.e. 07.09.2013.
(JITENDRA SINGH) METROPLITAN MAZISTRATE KARKARDOOMA COURTS, DELHI,07.09.2013 FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 11/11 12 FIRNo.65/01, PS Gokal Puri, State Vs. Alimuddin & others 12/11