Delhi District Court
State vs Md. Waseem & Anr. on 17 December, 2020
IN THE COURT OF SH. MUNEESH GARG
ADDL. CHIEF METROPOLITAN MAGISTRATE,
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
State versus Md. Waseem & Anr.
e-FIR No. 27872-2019
U/S. 379/411/34 IPC
PS: Anand Vihar
JUDGMENT
a. CIS No. : CR 22793/19
b. Date of commission of offence : 21.09.2019
c. Date of institution : 23.11.2019
d. Name of complainant : Shri Vikil Gupta
e. Name & address of accused person : (1) Md. Waseem
S/o Sh. Khaleel Ahmed
R/o H.No.D-440,
Jangpura, Delhi
: (2) Rizwan
S/o Sh. Savir
R/o House No. A-133,
Shaheen Bagh,
Thokar No.18
Abul Fazal Enclave
Delhi
f. Offence complained of : U/s 379/411/34 IPC
g. Offence charged of : u/s 411 IPC
h. Plea of accused : Pleaded Not Guilty
i. Date when judgment was reserved : 05.12.2020
j. Final order : Acquittal
k. Date of Judgment : 17.12.2020
eFIR No. 27872/2019 PS Anand Vihar Page 1 of 11
BRIEF STATEMENT OF REASONS FOR DECISION
01. Briefly stated the case of prosecution is that on 05.08.2019, complainant parked his motor cycle bearing registration No. DL-7SBM-0575 in front of main gate of Cross River Mall and same was stolen from there. The present case was registered. The said motorcycle was later on recovered on 21.09.2019 from the possession of the accused Md. Waseem and Rizwan on the basis of their disclosure statements. After completion of investigation, IO filed charge-sheet for offence u/s 379/411/34 IPC.
02. After filing of the police report, cognizance of offence was taken and the accused were called upon to face trial after complying with the requirement of section 207 of Code of Criminal Procedure.
03. On 03.12.2019, a formal charge was framed against the accused person for having committed an offence punishable under section 411 IPC, to which they pleaded not guilty and claimed trial.
04. Prosecution adduced evidence in support of its case and examined five witnesses. A brief scrutiny of prosecution evidence is as under:
PW-1 Sh. Vikil Gupta is complainant. He deposed inter-alia that in the intervening night of 5/6.08.2019, he had parked his motorcycle bearing No. DL-7SBM-0575 in front of Cross-River Mall, Anand Vihar, Delhi at about 10.30 PM. At about 12.30 PM, he came out from the Cross River Mall and found that his motorcycle was not there and it was stolen by someone. He lodged e-FIR Ex. PW1/A. He met with the police and gave a written complaint as Ex. PW1/B. Police prepared the site plan Ex. PW1/C. Police eFIR No. 27872/2019 PS Anand Vihar Page 2 of 11 informed him that his motorcycle has been found and thereafter, he got released the same on superdari vide superdaginama Ex. PW1/D. He identified the motorcycle and photographs of above said motorcycle during his testimony as Ex. P1 & P-2 respectively.
Ld. LAC for accused cross-examined PW-1. During cross- examination, he stated that his motorcycle was parked at Cross River Mall but no parking slip was issued to him.
PW-2 W/Ct. Meenakshi is the DD writer. She deposed that on 22.09.2019, at about 11.15 AM, she received telephonic information from P.S. Seelampur regarding recovery of stolen motorcycle no. DL-7S-BM-0575 in e- FIR No. 027872/19, P.S. Anand Vihar from apprehended persons namely Mohd. Rizwan and Mohd. Wasim. She recorded DD No. 20B in Rojnamcha Register on 22.09.2019 and DD was marked to MHC(R) to inform the concerned IO. She proved the DD No. 20B with report on it as Ex. PW2/A (OSR) & Ex. PW2/B (OSR).
ASI Netrapal Singh is also examined as PW-2, who is a recovery witness. This witness be referred as PW-2A to avoid the confusion. He deposed inter-alia that on 21.09.2019, he alongwith Constable Chander Prakash and Constable Jayvir were on patrolling duty in the area of Brahmpuri Road, near Kudakatta, Seelampur. At about 8.00 PM, a secret informer informed that two boys would come on motorcycle. He prepared a raiding party including himself and Constable Chander Prakash and Constable Jayvir and Secret informer. Secret informer pointed out towards the accused persons, who were on motorcycle. Accused persons were apprehended whose name revealed as Wasim and Rizwan. He correctly identified the accused. Accused Wasim was driving the motorcycle and accused Rizwan was the pillion rider.
eFIR No. 27872/2019 PS Anand Vihar Page 3 of 11The motorcycle was found to be stolen and was the case property in case e-FIR No. 14198, P.S. Seelampur.
PW-2A further deposed that he arrested the accused vide memo Mark B & C. Accused disclosed that they can get recovered two motorcycle and one scooty which are stolen and parked by them near the area of F-Block, New Seelampur. They went there and found all the stolen vehicles. The motorcycle bearing no. DL7SBM-0575 was found to be stolen from the area of the PS. Anand Vihar and was the case property in the present case.
He further deposed that on the next day, he informed the P.S. Anand Vihar. He identified the photograph of the case property.
He was cross-examined by Ld. Counsel for accused. He stated that he had not made any public witness as well as recovery witness in the present case. He failed to disclose the name of the person who given the information. He denied the suggestion that no recovery was effected from the possession of the accused.
PW-3 HC Chandra Prakash is another recovery witness in this case. He deposed more or less on the similar lines of PW-2A, ASI Netrapal Singh.
He was also cross-examined by Ld. Counsel for accused.
PW-4 is Constable Amit. He deposed that on 12.10.2019, he joined the investigation alongwith ASI Satender and they went to P.S. Seelampur. IO/ASI Satender seized the motorcycle no. DL7SBM-0575 of black color and memo was prepared vide seizure memo Ex. PW4/A. He identified the photographs of the case property i.e. motorcycle.
PW-5 IO/ASI Satender, the IO of the present case. He deposed that on 07.08.2019, he went to the spot i.e. Cross River Mall and met complainant eFIR No. 27872/2019 PS Anand Vihar Page 4 of 11 Vikil Gupta. He informed him that his motorcycle was stolen. He prepared the site plan at the instance of complainant Ex. PW1/A. He further deposed that on 22.09.2019, he received DD No. 20B regarding recovery of motorcycle belonging to the present case FIR alongwith accused persons.
He further deposed that on 25.09.2019, he reached KKD Court alongwith Constable Mahesh where accused Wasim and Rizwan were also present. After taking permission, he interrogated both the accused persons. He recorded their disclosure statement Ex. PW5/A & PW5/B. He also proved their arrest memo vide memo Ex. PW5/C & PW5/D. He further deposed that on 12.10.2019, he alongwith Constabe Amit went to P.S. Seelampur. He seized the motorcycle no. DL7SBM-0575 of black color vide seizure memo Ex. PW4/A. He also identified the photographs placed in the judicial file.
05. The charge-sheet was prepared and was filed in the court.
There is no cross-examination of this witness by the accused despite opportunity.
06. Thereafter, Ld. APP closed prosecution evidence. After closure of prosecution evidence, accused Pooran was examined U/s 313 read with section 281 Code of Criminal Procedure, wherein all the incriminating evidence was put to the accused persons and they denied the case of prosecution in-toto and stated that they have been falsely implicated in the present case. Accused persons opted not to lead defence evidence. Accordingly, defence evidence was closed.
eFIR No. 27872/2019 PS Anand Vihar Page 5 of 1107. I have heard final arguments from both the sides and have perused the evidence on record led by prosecution carefully. Ld. APP for the State submits that prosecution witnesses proved the case of prosecution beyond reasonable doubt. Per contra, Ld. Legal Aid Counsel submits that nothing has been recovered from the accused persons and they have been falsely implicated by the police. It is further submitted that no independent public was joined during alleged recovery proceedings and police falsely planted the alleged motorcycle upon the accused persons.
08. In order to prove the offence under Section 411 IPC, prosecution has to prove first that the stolen property was in possession of the accused. Second, that some other person other than the accused, had possession of the property before the accused got possession of it and third, that the accused had retained or received the property with the knowledge that the case properties were stolen ones.
09. Prosecution relied on the testimony of complainant namely PW-1 Vikil Gupta, recovery witnesses PW-2A ASI Netrapal Singh, PW-3 HC Chander Prakash and PW-5 ASI Satender, who is Investigating Officer and proved the proceedings conducted during investigation. In order to prove that the property recovered from the possession of accused was stolen property, prosecution relied upon the testimony of PW-1 Vikil Gupta, who is the complainant in the present case. He deposed that in the intervening night of 05/06.08.2019, at about 10:30 PM, he parked his motorcycle bearing registration no. DL-7SBM- 0575 in front of Cross River Mall. At about 12:30 a.m., he came out from the Cross River Mall and he found that his motorcycle was not there and same was stolen by someone. He lodged E-FIR Ex. PW-1/A. He met with the police and gave a written complaint Ex. PW-1/C. Police prepared site plan Ex. PW-1/C. eFIR No. 27872/2019 PS Anand Vihar Page 6 of 11 Police informed him that his motorcycle was recovered and he got released the same. He identified the motorcycle Ex. P-1 and photographs of motorcycle Ex. P-2. PW-1 denied the suggestion that he did not park his motorcycle in the parking and same was not stolen from the Cross River Mall. PW-5/IO also deposed that complainant informed him regarding theft of his motorcycle and he prepared site plan Ex. PW-1/A. Therefore, prosecution has clearly established the fact the alleged recovered vehicle is stolen article which was stolen by some unknown person.
10. It is the version of prosecution that aforesaid stolen motorcycle was recovered at the instance of accused persons on the basis of their disclosure statements. In Trimbak Vs. The State of Madhya Pradesh, AIR 1954 SC 39, the Hon'ble Supreme Court held that in order to bring home the guilt of a person under section 411 IPC, the prosecution was required to prove the following facts: (1) That the stolen property was in the possession of the accused. (2) That some person other than the accused had possession of the stolen property before accused got possession of it, and (3) That the accused has knowledge that the property was stolen property.
11. Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidences on the record which warrant the conviction of the accused on the touch stone of golden principal of criminal jurisprudence, that the guilt of the accused has been proved beyond reasonable doubt. In my considered opinion that prosecution has failed to prove the case against the accused persons beyond all reasonable doubts for the following reasons:
12. In the instant case, as evident from testimony of PW-2 and PW-3 and eFIR No. 27872/2019 PS Anand Vihar Page 7 of 11 seizure memo Mark A, the alleged recovery of the stolen motor cycle was made from the street situated in F-Block, New Seelampur, Delhi, meaning thereby it was made from a 'public place'. A natural corollary of the same is that public persons must have been available at the spot. However, there is nothing on record to suggest whether efforts were made to join them in the investigation. The spot of recovery is stated to be residential and there is nothing to suggest that none of the residents or public persons was available at the spot of recovery at the relevant time. Failure of prosecution to make any efforts to join independent witnesses despite their availability, causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
13. The key of the vehicle in question was never produced by prosecution during the trial. The recovery of the keys of the vehicle from the possession of accused persons would have lent corroboration to the prosecution case. Non- production of same for the reasons best known to prosecution, leaves a reasonable doubt in the prosecution version. In the Judgment of Munesh Kumar & Ors vs. State, 2011 (124) DRJ 7, the Hon'ble Delhi High Court did not rely upon the recovery of the car from the accused when the keys of the car were not stated to have been recovered from him. Vehicle stolen can be taken from one place to another, either by way of lifting it and putting it in another vehicle acting as a carrier or by way of duplicate or stolen original keys and in case of unlocked vehicle, may be by moving and dragging it along, when covering a small distance. There is nothing brought on record to suggest that vehicle stolen was carried away in another vehicle. In the case at hand, the stolen vehicle is stated to have been recovered from a place situated at a considerable distance from place of theft and thus, in this case as well, when eFIR No. 27872/2019 PS Anand Vihar Page 8 of 11 the keys (duplicate/original) have not been recovered from the possession of accused persons, such tainted recovery from public person, accessible to all, cannot be considered credible.
14. Ld. Legal Aid Counsel for accused has argued that the alleged stolen property has been recovered from the open place and therefore cannot be relied upon. On the other hand, Ld. APP submits that despite recovery from open place, the accused can be convicted. In view of the rival submissions, the moot question to be decided is whether the recovery of incriminating material from the open place at the instance of the accused is an evidence falling u/sec. 27 Indian Evidence Act. In Trimbak Vs. The State of Madhya Pradesh, AIR 1954 SC 39, the stolen ornaments were recovered from the open field which was accessible to all and sundry. It was held by the Hon'ble Supreme Court that the fact of the recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and the accused somehow acquiring knowledge about their whereabout and that been so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles.
15. Similarly, in Salim Akhtar @ Mota Vs. State of U.P., AIR 2003 SC 4076, placing reliance upon the earlier judgments of Sanjay Dutt Vs. State through CBI, AIR SCW 3857, Trimbak (Supra), Ramo Saheb Balu Kiledar Vs. State of Maharashtra, AIR 1995 SCW 1569 and Khudeshwar Dutta Vs. State of Assam, it was held by the Hon'ble Supreme Court in the Salim Akhtar (Supra) that mere knowledge of the accused that incriminating articles were kept at certain place does not amount to his conscious possession.
16. Hon'ble Delhi High Court in the case tiled as Prem Singh Vs. State, eFIR No. 27872/2019 PS Anand Vihar Page 9 of 11 Crl. Appeal No. 1335/10, wherein one truck was recovered from the public area, observed that since the truck was parked in an area which had public access and was not in the exclusive knowledge of appellant and the fact that no recovery of key of the truck was made from the accused, the prosecution story was disbelieved.
17. In view of the above-mentioned settled legal position, it is apparent that whenever the recovery of some incriminating article has been made from an open place which is "open and accessible to others" despite the recovery made at the instance of the accused, it has always been categorically held that no knowledge on the part of the accused can be attributed. It is not the case of the prosecution that the alleged stolen vehicle was not visible for others despite being recovered from an open place which is "open and accessible to others". As per the case of the prosecution, the alleged stolen vehicle was recovered from the street which was a place "open and accessible to others". The only incriminating evidence brought on the record against the accused is the recovery of the alleged stolen vehicle of the complainant. In view of the discussions, I am of the considered view that the recovery of the alleged stolen motorcycle from an open place even though at the instance of the accused persons is no incriminating piece of evidence. Hence, I find substance in contention of the Ld. Legal Aid counsel that there is no legally admissible evidence against the accused persons on the record.
18. Therefore, on the basis of the above observations on law and facts, the court is of the considered view, that prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Md. Waseem and Rizwan are hereby acquitted for the offence under section 411 IPC, with which they have been charged with. Ordered accordingly.
eFIR No. 27872/2019 PS Anand Vihar Page 10 of 11Bail bond in compliance of Section 437-A Cr.P.C. have already been furnished.
Digitally signed copy of the judgment be uploaded on the official website today itself.
Digitally signed by MUNEESH GARG MUNEESH Date: GARG Announced in the Open Court 2020.12.17 15:58:12 on dated 17.12.2020. +0530 (MUNEESH GARG) ACMM/SHD KARKARDOOMA COURTS, DELHI 17.12.2020 eFIR No. 27872/2019 PS Anand Vihar Page 11 of 11