Delhi District Court
Fir No. 07/04; St vs . Jaibir Singh & Nizam; Ps: Kamla Market on 15 July, 2011
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FIR no. 07/04; St vs. Jaibir Singh & Nizam; PS: Kamla Market
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(CENTRAL)05, DELHI
STATE VS. Jaibir Singh & Nizam
FIR NO: 07/2004
P. S. Kamla Market
Date of institution of case : 21.03.2004
Date on which case reserved for judgment : 15.07.2011
Date of judgment : 15.07.2011
Advocates appearing in the case :
Sh. Vakil Ahmad, Ld. APP for State
Sh. S.S. Arora, counsel for both accused
JUDGEMENT U/S 355
Cr.P.C
.:
a) Date of offence : 04.01.2004
b) Offence complained of : U/S 406/201/120B IPC
c) Name of complainant : Sh. Jaswinder Singh
d) Name of accused, his parentage, : 1. Jaibir Singh S/o Sukhbir Singh
local & permanent residence R/o Village Samas Pur,
Distt. Bulandsahar, UP.
: 2. Nizam S/o Sh. Mohd. Mustafa
R/o H.No. 330, Katra Hasan
Baksh, Khari Bawli, Delhi
e) Plea of accused : They are falsely implicated.
f) Final order : Both are acquitted,
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FIR no. 07/04; St vs. Jaibir Singh & Nizam; PS: Kamla Market
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Brief facts of the case are that the present FIR was lodged on complaint dated 06.01.2004 of complainant Sh. Jaswinder Singh S/o Sh. Gurucharan Singh that on the night of 04.01.2004, he had gone to G.B. Road for some personal work and had parked his Maruti car 800 (white colour) no. DL 6CB0932 near Railway wall near kotha no. 51, G.B. Road and had taken parking slip no. 015909 from the parking attendant but when he returned back after sometime, his car was not found at the place, so he contacted the parking attendant namely Jaibir and gave him parking slip and asked him about the car but the car could not be found despite the search in the area and despite meeting the contractor Nizam. Hence, complainant requested the police to take the action against both the persons as per law since complainant suspected that they have misappropriated / misplaced his car intentionally. After lodging of FIR, investigation was started by IO and during investigation, accused Jaibir was arrested on 21.01.2004 and thereafter accused Nizam was arrested on 08.03.2004. After completion of investigation, chargesheet was filed u/s 406/201/120B IPC against both the accused persons.
2. On the basis of charge sheet, charge U/s 406/120B IPC and u/s 201/120B IPC were framed against both the accused persons for criminal breach of trust and destruction / disappearance of evidence since complainant had subsequently alleged in his additional statement u/s 161 Cr.P.C. that the accused had torn away the parking slip given by him to them. Both the accused pleaded not guilty and claimed trial.
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FIR no. 07/04; St vs. Jaibir Singh & Nizam; PS: Kamla Market
3. Prosecution examined seven PWs to prove its case. PW1 is Ct. Vijay Kumar who stated that on 06.01.2004, he was posted at PS Kamla Market and had joined investigation with IO SI Inder Pal Singh and on that day accused Jaibir was arrested vide memo Ex.PW1/A in his presence and personal search was conducted vide memo Ex.PW1/B and his disclosure statement was recorded vide memo Ex.PW1/C and pointing out memo of the place of car parking was recorded, which is exhibited as Ex.PW1/D. PW1 correctly identified accused Jaibir in court.
4. PW2 is Ct. Sunil Kumar who stated that he joined investigation with SI Inder Pal on 08.03.2004 and on that day, IO interrogated accused Nizam and arrested him vide memo Ex.PW2/A in his presence and conducted personal search vide memo Ex.PW2/B and recorded disclosure statement of accused Nizam vide memo Ex.PW2/C and also recorded pointing out memo of the parking place which is Ex.PW2/D. PW2 stated that accused Nizam had admitted in his disclosure statement that he had torn the parking slip.
5. PW3 is Sh. K.S. Arya, Superintendent from MCD who stated that the parking site from Ajmeri Gate to Lahori Gate was allotted to M/s. Shakti Kumar M. Sancheti Ltd. From 21.10.2003 to 20.10.2004 and on 25.02.2004, he had given one attested copy of allotment letter to the police of PS Kamla Market at their request and the same is Ex.PW3/A.
6. PW4 is complainant Sh. Jaswinder Singh who reiterated the facts mentioned in his complaint and exhibited his complaint as Ex.PW4/A and further stated that the parking slip was torn by accused Jaibir. He was duly cross Page no. 4/8 FIR no. 07/04; St vs. Jaibir Singh & Nizam; PS: Kamla Market examined by Ld. Defence Counsel. In his cross examination, PW4 stated that he had given the parking slip to accused Jaibir and had asked him to trace out the car but accused Jaibir handed over the parking slip to accused Nizam in his presence. PW4 further stated in his crossexamination that accused Jaibir had torn the slip thereafter but the counterfoil of the slip is with police. He admitted that he had not mentioned the fact of tearing of slip in his complaint Ex.PW4/A. PW4 failed to answer the question of defence counsel that where he had gone on G.B. Road and just stated that he had gone for some personal work and had come back within 5 minutes. But he failed to tell the distance between the place of parking of the car and the place where he had gone. He stated that he had give a call on 100 number on 04.01.2004 itself and police had also come at the spot on the same day but he admitted that he had not given any written complaint to the police on 04.01.2004. In his crossexamination, PW4 further stated that the car was purchased by him from one Sh. Sanjiv Kumar and it was got transfered in name of his mother Amarjeet Kaur in 2003. PW4 further admitted that PCR had not come at the parking place since he could not tell them the correct place and had told them the place as Paharganj. He denied the suggestion that he had given wrong address to police since he was under influence of liquor. In his further crossexamination, PW4 changed his stand and stated that the parking slip had been torn by accused Nizam in his presence whereas earlier PW4 had stated that the slip was torn by accused Jaibir. PW4 further admitted that he did not try to collect the torn pieces of parking slip. He denied the suggestion that he had not parked the car at the said place and he further denied the suggestion that the car was not lost from that place.
7. PW5 is HC Vinod Kumar who was the DO on 06.01.2004 and he Page no. 5/8 FIR no. 07/04; St vs. Jaibir Singh & Nizam; PS: Kamla Market exhibited the copy of FIR no. 07/04 as Ex.PW5/A. PW6 is Samuel, the Record Keeper from Transport Department, Sarai Kale Khan who brought the original record of registration of car no. DL6CB0932 and stated that original owner of the vehicle was Goldline Enterprises Ltd. And the vehicle was transfered in the name of Smt. Amarjeet Kaur on 13.10.2003. He exhibited the copy of registration in name of original owner as Ex.PW6/A and the transfer papers in name of Smt. Amarjeet Kaur as Ex.PW6/B. In his crossexamination, he admitted that there is no intimation on record of RTO regarding theft of the vehicle. He further admitted that copy of insurance policy for the year 200203 and 200304 is on record.
8. PW7 is IO Inspector Inder Pal Singh. He stated that on 06.01.2004, he received complaint of complainant and made rukka on it and got FIR registered and prepared site plan Ex.PW7/A at the instance of complainant and thereafter collected documents of ownership of vehicle. He stated that he arrested both the accused persons Jaibir and Nizam and recorded their disclosure statements and obtained the details of parking site from MCD office and after completion of investigation, filed chargesheet.
9. In his cross examination, PW7 stated that parking site was allotted in name of Shakit Kumar but admitted that Shakti Kumar had not given anything in writing to IO. He stated that complainant had himself told that Nizam was the contractor. PW7 voluntarily said that Shakti Kumar had sublet the parking lot to Nizam and he was handling the same independently. PW7 further stated that he had checked all the parking lots of G.B. Road upto Lahori Gate and parking lot of Connaught Place and MCD parking in front of LNJP hospital.
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FIR no. 07/04; St vs. Jaibir Singh & Nizam; PS: Kamla Market
10. PW1 Ct. Vijay Kumar and PW2 Ct. Sunil Kumar were recalled for crossexamination on the application of accused and were duly crossexamined and discharged. In his crossexamination, PW1 stated that he did not remember on which date FIR of this case was lodged, though, offence had occurred on 04.01.2004. PW2 in his cross examination stated that he had joined investigation on 08.03.2004 and accused Nizam was arrested by IO in his presence but he did not know whether any other accused had been arrested in this case earlier.
11. After closure of PE, statement of accused persons U/s 313 Cr.P.C. was recorded. Accused persons were given many opportunities for leading defence evidence, but they could not bring any defence witnesses, so DE was closed and case was fixed for final arguments. Final arguments were heard on last date and case was fixed for order for today.
BRIEF REASONS FOR DECISION AND DECISION THEREOF:
12. Perusal of above stated evidence reveals that though prosecution has tried to prove the case for criminal breach of trust against both accused persons but neither the parking slip has been filed on record nor the counterfoil of parking slip has been seized from any of the parking attendant or contractor or from accused persons, to show that the above stated parking slip was ever issued by accused persons to complainant for parking his car at the said place. The IO has cleverly weaved a story of tearing of the slip by accused, in order to cover up the case for non filing of the parking slip but the perusal of complaint reveals that this fact of tearing away of the slip was not mentioned at all in the original complaint dated 06.01.2004. The complainant has stated that the incident of missing of car Page no. 7/8 FIR no. 07/04; St vs. Jaibir Singh & Nizam; PS: Kamla Market happened on the night of 04.01.2004. But the complainant lodged the complaint on 06.01.2004, hence he had sufficient time to recollect all the incidents and to write them down in the complaint, on the basis of which FIR was lodged but the very fact that complainant failed to mention this fact in his complaint shows that complainant may not be in possession of the parking slip at all and the story about tearing of parking slip by the accused was weaved out by the complainant and IO after the lodging of FIR in order to cover up their case of deficiency of evidence and to impute the entire liability upon accused persons.
13. In his lengthy crossexamination, complainant as PW4 has stated that the counterfoil of the torn slip was with police, but perusal of file reveals that the counterfoil has never been seized by the police vide any seizure memo and it has never been exhibited on record of the case to substantiate the story of prosecution that parking slip was actually issued to complainant by accused.
14. Moreover, IO has failed to file sufficient documentary / oral evidence on record to prove that accused Jaibir was the parking attendant and accused Nizam was the contractor of the parking place. Rather, documentary evidence and evidence of PW3 clearly reveal that the parking lot was allotted legally to M/s Shakti Kumar. But the contractor Shakti Kumar has not been brought into dock to substantiate the case of prosecution that he had sublet the parking place to accused Nizam. There is only a vague voluntary statement of IO as PW7 in his cross examination that parking place had been sublet by Shakti Kumar to accused Nizam but no documentary evidence or independent oral evidence has been brought on record to substantiate this claim. Page no. 8/8
FIR no. 07/04; St vs. Jaibir Singh & Nizam; PS: Kamla Market
15. Even, PW6, the record keeper of RTO has stated in his examination that no intimation regarding theft of the vehicle DL6CB0932 was ever given to RTO, though, the insurance of the vehicle was valid at the time of alleged theft. Hence it is clear from the above stated discussion that there are many gaps in the story of prosecution and prosecution has miserably failed to bring substantial evidence on record to prove criminal breach of trust against both the accused persons. Hence, the ingredients of Section 406 IPC are not made out in present case and evidence is wholly insufficient to hold the accused persons guilty u/s 406 IPC.
16. As far as Section 201 IPC is concerned, there is no independent evidence on record to show that the accused persons had destroyed the evidence. The complainant had not alleged this fact in his original complaint dated 06.01.2004 and he has admitted in his examination that he had not collected the torn parking slip. The entire case has been made by IO merely on the basis of alleged disclosure statements of both the accused persons, which have no value in the eyes of law in absence of independent evidence, since it is clearly barred u/s 25 and 26 of Evidence Act. Hence, prosecution has miserably failed to prove the case against both accused Jaibir and Nizam u/s 201 IPC also.
17. Hence, on the basis of above stated reasons, both the accused persons are acquitted from both offences u/s 406 and 201 IPC r/w section 120B IPC. PB & SB of both the accused persons are discharged. Original documents if any be released to authorised person and endorsement if any be cancelled. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH ) TODAY ON 15th July, 2011 MM05(CENTRAL), DELHI