Delhi District Court
State vs Gulshan Kumar & Ors. Fir No:446/1997 on 6 August, 2022
IN THE COURT OF SH DEV SAROHA, METROPOLITAN MAGISTRATE05,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
JUDGMENT
STATE VS Gulshan Kumar & Ors. FIR NO:446/1997 PS Sarojni Nagar U/s 379/411/468/471 IPC A The Sl. No. of the case : 45988/2016 b The date of commission : Period from 1997 to 2000 c The date of Institution of the case : 05.12.2000 d The name of complainant : Mr. Vijender Singh Tokas, S/o Sh. Chibhan Singh R/o 249I, Village Munirka, New Delhi.
e The name of accused persons and : (1) Gulshan Kumar S/o Sh. Ram
their parentages Narayan R/o 315/18, Mohalla Dogran,
PS Hissar City Distt Hisar, Haryana.
(2) Ravinder Sharma @ Ravi Sharma
S/o Late Balraj Sharma R/o 12, Dudiyal
Society Madhuban Chowk, Pitampura,
New Delhi.
(3) Ajay Kumar S/o Late Madan Lal
R/o A47, Vijay Vihar, Rohini, Delhi.
f The offence complained of : 411/120B IPC
g The plea of accused : Not guilty
h Orders reserved on : 01.08.2022
STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 1 of 19
i The final order : Accused persons are acquitted for
offence u/s 411/120B IPC
j The date of judgment : 06.08.2022
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. It is the case of prosecution that on or about the period 1997 to 2000 at unknown time at unknown place the accused persons entered into a criminal conspiracy the object of which was to receive a stolen car with original no.DL9CA 1337 knowing or having reason to believe the same ot be stolen and hence committed offence punishable u/s 411/120B IPC.
2. On completion of investigation, charge sheet was filed on 21.03.2005 against all the accused for offences punishable u/s 379/411/468/471/420/120B of the Code. Cognizance of offences u/s 379/411/468/471/420/120B IPC was taken by Ld. Predecessor of this Court vide order dated 05.12.2000. Copies of charge sheet and documents were supplied to all the accused persons.
3. Vide order dated 21.03.2005, the accused persons were discharged of the offence under Section 379/368/471/420B IPC and charge under Section 411/120B IPC was framed. All the accused persons pleaded not guilty and claimed trial.
4. The prosecution has examined 17 witnesses to prove its case.
STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 2 of 195. PW1 Amit Kumar who deposed that on 29.09.2000, visited at Maharaja property Dealer at Pritam Pura for purchasing second hand car. The said property dealer introduced me with one Ravi Sharma who wanted to sell the Esteem car and was in hurry to sell the said car. He further deposed that witness sensed something wrong with the said car. Thereafter, he talked to Surinder Singh who was constable with the Delhi Police. He further deposed that he did not recall if he talked to Surinder Singh on the same day or thereafter.
On the cross examination by Ld. APP for the state, PW1 deposed that it is correct that he was called by by Crime Branch office at Adarsh Nagar on 04.10.2020 and found accused Ravi Sharma there and identified accused as a person who wanted to sell the Esteem car to him. On the crossexamination by Ld. Defence counsel of the accused Ravi Sharma the witness admitted that he did not know Maharaja Property dealer prior to the occurrence. He further admitted that he had no talks with the accused Ravi Sharma and found different colour of the RC of the Esteem car vis avis the car shown, so he refused to purchase the said car and observed that accused Ravi Sharma in hazed in showing the car. He further admitted that Ct. Surinder Singh is the friend of my father and was not with him on that day and did not not lodge any complaint. He also admitted that his statement was also recorded by the police and he had not signed his statement. He denied the suggestion that he deposed falsely at the instance of the IO. He denied the suggestion that accused Ravi Sharma had not met him at Maharaja Property Dealer.
6. PW2 Vijender Singh Tokas deposed that he did not remember the date and month but it was the year 1997 at about 3.00 PM, he had gone to Barber shop STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 3 of 19 for cutting and shaving, but he did not remember the number and name of the said barber shop, however, it was in Vasant Kunj Market. He further deposed that he had parked his car bearing No. DL9CA1317, Maruti Esteem in front of the said shop which was in his name and after cutting and shaving, he found that the car was missing. He called the police at 100 number, PCR reached there, went to PS Vasant Kunj and lodged a complaint there. He further deposed that he obtained Insurance claim after the theft. On leading questioned by Ld. APP, regarding the registration number of the said car is DL9CA 1337. The witness was not cross examined despite given opportunity.
7. PW3 Ct. Surender Singh deposed that on 03.10.2000, Amit, who known to him, came to him and informed that one person namely Rvinder Sharma was intending to sell a Maruti Esteem car bearing No.HR04C0010 to Amit and also supplied the Engine Number and Chassis No. of the said car and requested him to get the same verified and thereafter, I requested SI Bhagwati Prasad to verify from CRO and it was revealed that the said car found stolen one.
In his cross examination by the Ld. Counsel for accused Ravinder Sharma, the witness/ PW3 admitted that Amit is not my close friend but known to him and Amit had not shown me any car and documents but simply given him the registration number and chasis number. The witness denied the suggestion that Amit did not tell him that Ravinder Sharma was intending to sell a Maruti Esteem Car HR04C0010. The witness admitted that he had not given any verification request in writing to the IO. The witness was not cross examined by other accused persons despite opportunities given.
8. PW4 Sh. Ramesh Chander, Registering Clerk, State Transport Controller STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 4 of 19 Haryana Chandigarh, deposed that as per record which he has brought the vehicle No. HR04C0010 was registered in the name of Sh. Satya Prakash R/o 259/60, Gali Bank Wali, Azad Pur, Delhi with another address at Mandir Katla Ram Leela Hissar. He further deposed that the registration number was alloted to the aforementioned owner after production of NOC of the owner from Registration Authority, Hissar where it was previously registered with registration No. HR20D8154. The witness was not cross examined by Ld. Defence counsels despite opportunity given.
9. PW5 Sh. Om Prakash, Registering Clerk, Registration Authority Motor Vehicle, Hisar, Haryana, deposed that as per record, the vehicle Maruti Esteem Car bearing No. HR20D8154 was registered in the name of Sh. Ajay Kumar, s/o Sh. Madan Lal and later on dated 24.09.1998, it was transferred n the name of Sh. Satya Prakash s/o Sh. Om Prakash, r/o 259/60, Gali Bank Wali, Azad Pur Delhi with another address at Mandir Katla Ram Leela Hissar. He further deposed that on 21.05.1999, No objection Certificate was issued to the applicant owner for registration authority Motor Vehicle Transport Controller Haryana Chandigarh. The copies of the aforesaid record are Ex.PW5/A and Ex.PW5/B. In his cross examination by Ld. Defence counsel for the accused Ravinder Sharma, witness/ PW5 stated that he was not acquainted with the handwriting and signatures on Ex. PW5/A and B respectively. Despite being given opportunity, Ld. Defence Counsels for remaining two accused persons did not cross examine the witness/PW5.
10. PW6 HC Subhash deposed that he was MHC(M) at PS Vasant Kunj and one STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 5 of 19 Maruti Esteem car bearing registration No.HR04C0010 along with its key was deposited in Malkhana by SI Bhagwati Prashad of AATS of Crime Branch on 04.10.2000. He further deposed that four other cars were also deposited in the same FIR on different dates. Despite being given opportunity, Ld. Defence Counsels for all the remaining accused persons did not cross examine the witness/PW6.
11. PW7 Ct. Parmanand deposed that on 22.08.1997, DD No.25A was assigned to HC Ramesh in Akab. Thereafter, he along with HC Ramesh reached at Village Masoodpur at Hari Dresser Shop where Vijender met them. He further deposed that IO recorded Statement of Vijender regarding missing of his Maruti Esteem car. In his crossexamination by accused Ravi Sharma, witness denied the suggest that he had not joined the investigation in this case at any point of time. The witness/PW7 was not cross examined on behalf of accused Gulshan Kumar and Ajay Kumar despite giving opportunity.
12. PW8 ASI Narender Singh has deposed that on 03.10.2000, he was posted as Head Constable, Crime Branch and as per direction of SI Bhagwati Prasad went to PS Vasant Kunj and collected the file of this case and thereafter, he handed over the same to IO SI Bhagwati Prasad. He further deposed that on 04.10.2000, after joining of the investigation along with IO and other staff, reached at Dudiyal Appartment Society, Pitampura where they apprehended Ravinder Sharma @ Ravi Sharma and one Maruti Esteem car registration No. HR04C0010 was recovered and on 20.09.2001, they reached at Mohalla Rampura, Hisar, Haryana where they apprehended Ajay Kumar @ Tinku at the instance of secret informer near Taxi stand and accused Ajay was also present STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 6 of 19 there.
In his crossexamination by Ld. Defence Counsel of accused Ravinder Sharma @ Ravi Sharma, PW8 deposed that the raiding party consisted of 8 members and we reached at society at about 11 p.m. and no public persons were asked to join the raiding party by the IO. On reaching there, a security guard was there at gate of the society and we entered into the society. However, the witness/PW8 did not know whether any entry was made in the register of the security guard at the gate by the IO or not. He further states that he did not enter into the society and remained outside of the society near our vehicle i.e. Tata Sumo and entered the vehicle into the society after few minutes. He further states that he did not know on which floor the IO and other members of the raiding party had gone as he remained standing near Maruti Esteem car bearing No. HR04C0010 as per the direction of the IO. He further states that the car in question was parked in the lane which meant for the parking of the car and he neither made any entry in the register of the security guard nor security guard made any entry in the register in my presence. He further stated that accused Ravinder was brought by the IO after 15 minutes of his waiting at the parking spot and proceedings were conducted by the IO near the car in question. He further stated that he had not signed documents which were prepared by the IO. He further stated that the documents prepared by the IO were signed by the HC Ranbir Singh. On questioned, PW8 answered that IO had informed him that IO had knocked at the doors of 45 flats but nobody responded. PW8 denied the suggestion that since he had not gone with the IO at the flat of the accused at the aforesaid society and that is why he had not signed the papers and memos allegedly prepared by the IO at the spot. He further denied the suggestion that neither the accused Ravinder was arrested STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 7 of 19 from the society in his presence nor any car was seized from the said society. Despite being given opportunity, Ld. Defence Counsels for accused Gulshan Kumar and Ajay Kumar did not cross examine the witness/PW8.
13. PW9 Sh. Ram Chander being a Clerk from the office of SDM Office (Registration Authority) Hisar, Haryana, deposed that the vehicle bearing No.HR20D8154 having chasis No.0198043 and Engine No.0561743 was registered in that office by him in the name of Ajay Kumar, s/o Sh. Madan Lal. He further deposed that the said vehicle was registered and new No. HR20D 8154 was allotted to it. He further deposed that he could not identify that person who came into the office of registration of the above mentioned vehicle.
In his cross examination and when APP for the State pointed on the portion X to X at statement u/s 161 Cr.PC, the witness stated that due to passage of time he did not remember whether he stated to the police or not. He further answered that he know the accused Gulshan since 1996 as he is having a Dry Cleaning shop in the name of Snow white at Parija Chowk at Hisar, Haryana. On showing the accused Ajay to the witness he denied to identify him. The witness was not cross examined by Ld. Counsel for accused persons despite opportunity given.
14. PW10 Ravi Shankar, clerk form the office of SDO (c) cum registration authority, Motor Vehicle, Hisar, Haryana deposed that on 21.05.1999, he issued no objection certificate in favour of Satya Prakash, s/o Sh. Om Prakash and that car was registered in his office on 19.03.1998. He further deposed that they used to issue NOC after seeing the registration of register of the vehicle. The witness/PW10 was not cross examined on behalf of all the accused STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 8 of 19 persons despite opportunity given.
15. PW11, ASI Ramesh Kumar deposed that on 22.08.1997, he as a Constable, he received DD entry No. 25A regarding car theft at Masoodpur, Mahipal Pur Mehrauli Road. He further deposed that when he along with Ct. Parmanand reached at the spot, complainant Bijender Singh Tokas met them and PW10 recorded his complaint and prepared rukka. Thereafter, he sent Ct. Parmanand to get the FIR registered in the Police station. After registration of FIR, he prepared site plan of the place where the car was stolen at the instance of complainant. He further deposed that he searched the car but could not find the stolen car and filed an untrace report. The witness/PW11 was not cross examined on behalf of all the accused persons despite opportunity given.
16. PW12, SI Bhagwati Prasad deposed that on 04.10.2000, he was posted at AATS, Crime Branch and on receiving of information of stolen Maruti Esteem car No.HR04C0010 being in possession of one Mr. Ravi Sharma, a team was constituted for conducting raid consisting PW12 along with Ct. Surender, HC Ranbir, HC Narender and Ct. Ashok at the premises of accused Ravi Sharma and the vehicle was seized from the possession of the accused Ravi Sharma and PW12 arrested the accused. He further deposed that he recorded the disclosure statement of accused Ravinder and the accused was taken on one day PC remand. He further deposed that during the investigation it was revealed that the stolen vehicle was stolen through accused Gulshan and on 06.10.2000, accused Gulshan was arrested from Hissar and disclosure statement was recorded. He also seized original RC of the Maruti Esteem from the accused Ravinder. He further deposed that the previous number of vehicle was found as STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 9 of 19 HR20D8154. He further deposed that the vehicle was found registered in the name of Ajay Kumar and he tried to trace out the accused Ajay Kumar but accused had absconded. He further deposed that he arrested the accused Ajay from Hisar and recorded disclosure statement. The body inspection was also conducted by him. He further deposed that after completion of investigation, he filed the supplementary chargesheet and identified all the accused in the court.
In his crossexamination dated 10.03.2022, the witness/PW12 deposed that the case property was recovered from the parking of Dudiyal Apartments which is situated at left side if going from Madhuban Chowk to Peera Garhi. He further stated that they had informed the guard that they are from Crime Branch and they were allowed to enter into the society and no entry was made in the register of society regarding entry and departure and none of the society management member were informed regarding the raid and 23 flats owner asked to join the raid but in vain. PW12 further stated that the car was make of Maruti Esteem bearing registration No.HR04C0010. We had only one address of the Ravi and the arrest memo was prepared at the spot and not signed by any guard or resident. He further denied the suggestion that accused was not apprehended from the above said society. On questioning, after seeing the photographs of vehicle in question, the witness stated that the photographs are of Maruti Esteem car and the photographs are of the same stolen vehicle recovered from the accused and the car and the photographs of the car are same. He accepted the suggestion that the information sheet regarding the accused Gulshan and Ajay was sent to PS Pitampura and Hisar. He further stated that he did not know about the verification of the same. He further deposed that it is correct that SI Praveen and ASI N K Pavitra were alleged in some maltpractices and DE was initiated against them and he was transferred STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 10 of 19 to the police line on the allegations of his link with the operation.
17. PW13, ASI Baljeet deposed that on 04.10.2000, he along with raiding party sent to Goodyear Apartment, Pitampura. On reaching the apartment, they found that one esteem car was standing bearing No. HR0010. They inquired about the said car and its documents. During inquiry, the driver of the said the car stated that the said car was purchased from one Sunder, a resident of Hisar and the documents was provided by Gulshan through Sunder, Chasis number and Engine number were tallied by IO and found that the stolen vehicle was stolen from South District. He further deposed that the during inquiry, they came to know the name of driver was Ravi and thereafter, IO/SI Bhagwati Prasad arrested the driver Ravi Sharma, IO recorded the disclosure statement of Ravi Sharma in my presence and on the basis of disclosure statement, it was disclosed that the said car was purchased by Sunder, Gulshan and Ajay. He further deposed that on the basis of disclosure statement, they took the accused to Hisar and thereafter, Gulshan was apprehended at the instance of accused Ravi Sharma. He further disclosed that on inquiry from Gulshan, they recovered one vehicle Tata Sumo and Zen car from the possession of Gulshan and Gulshan told that one car was also standing at Hatheli Mandi, Rewari and from there, one car Cherry 800 was also recovered at the instance of Gulshan and one key of the same was recovered from the pocket of Gulshan and thereafter one car was also recovered totaling 5 cars were recovered. He further deposed that thereafter accused Gulshan was also arrested in the presence case in my presence and IO recorded disclosure statement of accused Gulshan. During the disclosure statement accused disclosed that the said cars were stolen cars and the forged documents were prepared. All cars were seized by the IO in STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 11 of 19 my presence. IO also conducted personal search of the accused. He further deposed that the case property was deposited in Malkhana. IO also recored the statement of PW13.
In his crossexamination, the witness/PW13 states that no car was recovered from the possession of the accused Ajay and he voluntarily stated that the car was registered in the name of Ajay. He further stated that the car was make of Maruti Esteem registered with registration No.HR20D8154 and the registration of the car was transferred by the accused Gulshan to Chandigarh. He further stated that the said car was registered at Chandigarh authority with Chandigarh number in the name of Uncle of accused and the name of uncle might be Satya Prakash and the same was recovered from the possession of Ravi and was seized. He further cross examined and replied to the question that both the RCs of the above said vehicle were seized by the IO and the vehicle was registered in two places. He denied the suggestion that the vehicle was not recovered from the possession of the accused persons. He further denied the suggestion that because of the same reason the photographs and details of the same are not available on record.
18. PW14, Retired SI Ranbir Singh deposed that he was posted as Head Constable at AATS, Crime Branch, Adarsh Nagar. He further deposed that a secret informer informed SI Bhagwati Prasad that a stolen car is parked in the apartment parking and owner of the said stolen car lived in Flat No.12. He further deposed that He along with team went to said flat and at that flat, on enquiry from the Ravi Sharma @ Ravinder Sharma, he came to know that the car was belonged to Ravi Sharma @ Ravinder Sharma and in the name of his uncle. On inquiry upon the Chasis and engine number, he came to know that STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 12 of 19 the said car was stolen under FIR No.446/97, i.e. present FIR. He further deposed that the car was seized, accused was arrested and disclosure statement of accused was recorded. He further deposed that on 07.10.2000, accused Gulshan was arrested by SI Bhagwati Prasad from Hisar. Accused Gulshan disclosed that another car make Maruti bearing No. DL4C7043 was stolen by him and kept the same at New Delhi Railway Station Parking. He further deposed that SI Bhagwati Prasad went to Hisar and accused Ajay was arrested. In his crossexamination, PW14 stated that on the same line of PW13.
The witness has been cross examined by the Ld. Counsel for accused persons. In his cross examination, witness had admitted that no identification mark can be seen on the photograph of the vehicle by which it can be said with certainity that this is the same vehicle which was recovered from the apartment of accused Ravi Sharma. He further admitted that IO had not got conducted the photographs of the vehicle in his presence.
19. PW15 Retired SI Mahinder Singh, deposed that on 22.08.1997, he was posted as HC at PS Vasant Kunj and was on duty from 4.00 PM to 12.00 midnight and at about 4.45 PM, Ct. Parmanand came to PS along with Tehrir prepared by HC Ramesh Kumar and on the basis of Tehrir, he registered the present FIR and thereafter, he handed over the original tehrir along with copy of FIR to Ct. Parmanand. The witness/PW15 was not cross examined on behalf of the accused persons despite opportunity given.
20. PW16 Sh. Sat Prakash deposed that in the year 1998, He was living at his house at House no.259/60, Bank Wali Gali, Village Azad Pur, New Delhi. He further deposed that accused Ravinder Sharma was his Nephew. In the year STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 13 of 19 1998, when he went to Hisar, one Sunder Singh, was was friend of Ravinder Sharma had come at his house. There, Ravinder Sharma had conducted one agreement was held between his and Sunder Singh regarding the purchase of Esteem Car No.HR20D8154 in sum of Rs.1,65,000/.
In his crossexamination by Ld. APP for the State accepted the suggestion that Ravinder had told him that Satya Prakash may take the above said car in his name, as Ravinder Sharma already has cars and then this witness told Ravinder that as it is a family matter so he does not have any objection. He further accepted the suggestion that he got verified the record of the car from the transport authority at Hisar, in which came to know that the car was registered in the name of Ajay. He further accepted the suggestion that Sunder told him that Ajay was his known and when they reached at the house of accused Ajay they he told him that accused Ajay purchased that car and sold that car through Kuki and Gulshan. Further he denied the suggestion that after satisfying the talks of accused Ajay, he did the payment of the car. In his cross examination by Ld. Defence counsel of accused persons accepted the suggestion that he never met the accused namely Gulshan and Ajay during the above said transaction period; he did not have knowledge regarding the address of the accused Gulshan and Ajay; the said vehicle was purchased by him from the one Sunder Singh and there was no fault in the car or its paper and he transferred the ownership in his name. He further accepted the suggestion that he did not make any complaint of theft of car.
21. PW17 Sh. Harender Singh deposed that in the year 2000, he was living at House No.2/11, Lal Sarak, Hansi, Hisar and on 06.10.2000, the police had come and met him and taken the key of the said car which was brought by his STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 14 of 19 cousin brother namely Sandeep Singh and the said car had taken by the police from its possession. In his crossexamination by Ld. APP for the State he denied the suggestion that he was deposing falsely. On the pointing out towards the accused Gulshan by the Ld. APP, he replied that he did not remember whether that pointed person is an accused or not. The witness/PW17 was not cross examined on behalf of all the accused persons despite opportunity given. Thereafter, PE was closed vide order dated 26.07.2022 and matter was fixed for final arguments.
22. Statement of the accused persons under section 313 Cr.P.C. were recorded wherein they have denied their involvement in the alleged offence and alleged false implication. Accused persons stated that they do not want to lead defence evidence. Hence, DE stands closed vide order dated 29.07.2022.
23. Final arguments on behalf of rival parties were heard. I have heard Ld. APP for State and Ld. Counsel for accused and carefully perused the records of the case.
24. Ld. APP for State argued that on the evidence on record, the prosecution has proved its cse beyond reasonable doubts and thus, all the accused persons should be convicted for the offence under Section 411/120B IPC.
25. Per contra, Ld. Counsel for accused persons stated that the prosecution has failed to prove its case. He averred that looking at the photographs of the seized vehicle, it cannot be judged that whether it was a Maruti Esteem car which was stolen or some other car. He further submitted that despite the place of seizure STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 15 of 19 of car being the public place, no public witnesses was joined.
26. Let us first deal with the legal provisions at hand:
Section 411 IPC states as follows:Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
27. Section 120A IPC states as follows: When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
28. Section 120B IPC states as follows (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 16 of 1929. In this case, looking at the photographs of the vehicle allegedly seized from the accused Ravi Sharma, it is clear that the chasis number of the vehicle is not visible. The engine number of the vehicle is also not completely visible. What the photographs shows is only an old rusted car. PW12 Inspector Bhagwati Prasad, who seized the vehicle in his cross examination accepted this fact that last digit of the engine number of the vehicle was not visible and that the chasis number and registration number are also not visible. He further admitted in his cross examination that he did not take photograph of the vehicle during the entire investigation. Further, PW14 SI Retired Ranbir Singh who was a part of raiding party also admitted in his cross examination that no identification mark can be seen on the photograph of the vehicle by which it could be said with certainity that it is the same vehicle which was recovered from the apartment of the accused Ravi Sharma and that it is correct that IO had not conducted the photographs of the vehicle in his presence. Along with that despite the place of recovery being a public place, admittedly an apartment, no public witness was joined and no reasonable explanation has been given for the same.
30. In Roop Chand vs State of Haryana" reported in 1990 (1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of "Pradeep Narayana vs State of Maharashtra" AIR 1995 Supreme Court 1930, it was held that failure of the police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly, it was held in the case of "Kuldeep Singh vs State of Haryana" 2004 (4) RCR 103 STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 17 of 19 and "Passi @ Prakash vs. State of Haryana" 2001 (1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
31. In view of the abovestated judgment and above discussion, it is clear that the prosecution has failed to prove its case beyond reasonable doubt as there are number of lapses on the part of the investigating agency and there are also other inconsistencies in the evidences of the witnesses.
32. It is cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is settled proposition of the criminal law that in order to successfully bring home guilt of the accused, prosecution is supposed to stand on its own legs and it cannot drive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. In this case the prosecution has failed to prove beyond reasonable doubt the offence under Section 411 IPC and as such Section 120B IPC also does not stand on its legs in this case as it cannot be said that there was any agreement to commit offence under Section 411 IPC between the accused persons.
33. Therefore, in ultimate analysis as a result of trial and in view of above discussion, this Court is of the considered opinion that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt and as such accused Gulshan Kumar, Ravi Sharma @ Ravinder and Ajay STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 18 of 19 are acquitted for the offences u/s 411/120B IPC.
34. Accused persons are directed to furnish bond under Section 437A Cr.P.C. in the sum of Rs.10,000/.
Announced in the open Court (DEV SAROHA)
on 06.08.2022 Metropolitan Magistrate05,
Patiala House Courts, New Delhi
STATE VS Gulshan & Ors. FIR NO:446/1997 PS Sarojini Nagar U/s 411/120B IPC Page 19 of 19