Delhi District Court
Fir No: 2/12, Ps: Najafgarh State vs . Gulab on 24 January, 2013
..1..
IN THE COURT OF SUDHIR KUMAR SIROHI
METROPOLITAN MAGISTRATE02 DWARKA COURT, NEW DELHI.
FIR NO: 02/12
PS: N. Garh
U/s : 411 IPC
State
Vs.
Gulab, S/o Late Sh. Kala
R/o Village Dhamrawali PS Bulan Shehar,
Zila Buland Shehar, U. P.
.......... Accused
1. Sl. No. of the case. 18/2/12
2. The date of offence 02.01.2012
3. The name of the complainant State
4. The name of the accused Gulab, S/o Late Sh. Kala
R/o Village Dhamrawali PS Bulan
Shehar, Zila Buland Shehar, U. P.
5. The offence complained U/s 411 IPC
6. The plea of the accused Pleaded not guilty
7. The date on which the order 02.01.2013
was reserved
8. The date of order 24.01.2013
9 . The final order Acquittal
JUDGMENT:
FIR NO: 2/12, PS: Najafgarh State Vs. Gulab
..2..
Present: Ld. APP for the state.
Accused with counsel.
1. The case of the prosecution is that on 02.01.2012 at unknown time at Fauzi Dairy Nanak Piau Najafagrh accused Gulab ( hereinafter called accused) were found in possession of one jersey cow which was stolen from complainant Kashmira Singh's Dariy on the intervening night of 28/29.12.2011, which was received or retained by accused having reasons to believe that such property was stolen property and thereby accused was booked under Section 457/380/411/34 IPC.
2. On appearance of the accused copies were supplied to him. Charge for having committing offence punishable under sections 411 IPC was framed against him, to which accused pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined four witnesses. Prosecution witnesses correctly identified the accused in the court.
4. Accused admitted FIR u/s 294 Cr. P. C. Statement of the accused was recorded under section 313Cr.P.C. and all the incriminating circumstances appearing in evidence were put to the accused, to which accused denied all the incriminating circumstances and did not prefer to lead evidence in his defence.
FIR NO: 2/12, PS: Najafgarh State Vs. Gulab
..3..
5. PROSECUTION EVIDENCE:
PW1Mr. Amit Kumar deposed that he was running a dairy with 15 buffalo and on 26.12.2011 at about 10.30 pm he locked his dairy firm and went to his room to sleep, in the morning, at about 3.15 am when he checked his dairy 5 bufflaows were found missing. PW1 further deposed that lock of back door of dairy was broken, thereafter, he called police and proved his statement (Ex. PW1/A). PW1 further deposed that IO prepared site plan at his instance and proved the same (Ex. PW1/B). PW1 further deposed that on next date i.e. on 28.12.2011 one black colour cow was stolen from his neighbourhood belonging to one Mr. Kashmira Singh and on 02.01.2012 he along with Kashmira Singh and IO went to Nangli Piau Fauji Dairy there one black colour cow was found. PW1 further deposed that on seeing cow Mr. Kashmira Singh pointed out towards cow and stated that cow belongs to him and same was stolen one. PW1 further deposed that the cow was taken into possession (Ex. PW1/C) and accused Gulab was arrested. PW1 further deposed that IO prepared site plan at the instance of Mr. Kashmira Singh and he identified photographs of the cow (Ex. PW1/D 1 to Ex. PW1/D3). PW1 during his cross examination submitted that theft of cow was registered by Mr. Kashmira Singh. PW1 further deposed that police inquired about ownership of Fauji Dairy and the owner of said dairy absconded. PW1 further deposed that at the time only one cow was recovered and inquiry was made from neighbours of Fauji Dairy, they told that persons namely Manjar, FIR NO: 2/12, PS: Najafgarh State Vs. Gulab ..4..
Shehzad and two or three persons used to bring buffaloes and cow at night regularly. PW1 also deposed that when they reached the spot four five persons were present at the spot but they fled away from the spot after seeing the police party. PW1 failed to tell correct number of accused who were thieves.
PW2 Mr. Kashmira Singh deposed that he is running a dairy firm and on 28.12.2011 he was having 20 buffalo and five cows and on that day after completion of his work, he went for sleeping at about 11 pm and at about 3.30 am when he checked his dairy, one black colour cow with long horns was found missing. PW1 further deposed that he made search of the same but he could not find the same and he made complaint to the police. PW2 proved his complaint (Ex. PW2/A) and also proved site plan (Ex. PW1/B). PW2 further deposed that when search of stolen cow was made he along with IO and other police officials went to Nanak Piau Fauji Dairy, there he found his stolen cow and identified the same. PW2 further deposed that accused Gulab was also present in Fauji Dairy. PW2 further deposed that during interrogation accused disclosed that he with 23 other co accused stole the abovesaid cow from Nangli Dairy. PW2 further deposed that cow was seized vide seizure memo (Ex. PW1/C). PW2 identified the photographs of cow (Ex. PW1/1D1 to Ex. PW1/D3). PW2 during his cross examination submitted that at place of recovery of cow only accused Gulab was present. PW2 further deposed that during inquiry it was found that Fauji Dairy was run by a person namely Fauji and after that no inquiry FIR NO: 2/12, PS: Najafgarh State Vs. Gulab ..5..
was carried regarding Fauji since he might have run from the spot. PW2 denied the suggestions that accused was employee at Fauji Dairy and affirmed the suggestions that he has not seen the accused taking away his cow.
PW3 Constable Yashwant deposed that on 02.01.2012 he accompanied IO and went to Fauji Dairy and there they met Mr. Amit ( PW1) and Mr. Kashmira Singh ( PW2) and PW2 told IO by indicating towards a black cow that it is his cow and a person namely Gulab was present there. PW3 further deposed that IO interrogated the accused Gulab and recorded his statement (Ex. P3/A). PW3 further deposed that accused told that he along with Fauzi @ Manjar, Kalloo and Sattar had stolen the said cow from Nangli Dairy. PW3 also deposed about arrest and personal search of the accused.
PW4 SI Dinesh deposed that on 27.12.20011 he received a call regarding theft of buffalo and on 01.01.2012 he recorded statement of complainant Mr. Amit Kumar and on the basis of complainant he prepared rukka. PW4 further deposed that in the meantime one Mr. Kashmira Singh stated that in the night of 28.11.2011 his cow was also stolen. PW4 further deposed that on 02.01.2012 during investigation he visited Fauzi Dairy along with both complainants Mr. Amit Kumar and Mr. Kashmira Singh and Ct. Yashwant seized the cow which was identified by Mr. Kashmira Singh and accused Gulab was present at the dairy. PW4 further deposed that he made inquiry and recorded statement of accused. PW4 deposed in line of PW3. PW4 during his cross examination deposed that no FIR NO: 2/12, PS: Najafgarh State Vs. Gulab ..6..
documentary proof of ownership of cow has been given by Mr. Kashmira Singh and he inquired about ownership of Fauzi Dairy but the residents went away without saying anything about ownership of the dairy. PW 4 affirmed the suggestions that when they reached Fauji Dairy only accused Gulab was present there and also affirmed the suggestions that accused was working in Fauji Dairy as a servant.
6. ARGUMENTS:
Ld. APP for the state submitted it has been proved by the coherent deposition that PW1 and PW2 and other other prosecution witnesses that cow belongs to PW2 and accused was found in the possession of the same. Therefore, Ld. APP for the state prays for conviction of the accused u/s 411 IPC. Ld. Defence Counsel, on the other hand, submitted that:
a) No public person is joined by the IO in the present case. There evidence of police witnesses can not be relied upon.
b) No document regarding ownership of cow has been placed on record, through even PW2 alleged that recovered cow belongs to him but no identification mark of cow was furnished in FIR only photographs of cow at time of recovery has been placed on record and these are not sufficient proof of ownership of cow.
c) There is contradiction in deposition of prosecution witnesses as PW1, PW2, PW3 and PW4. PW1 has stated that he went to Fauji Dairy with PW2 FIR NO: 2/12, PS: Najafgarh State Vs. Gulab ..7..
and IO while PW2 has stated that he went to Fauji Dairy with IO and other police officials, PW3 has stated that he along with IO went to Fauji Dairy and there they met with PW1 and PW2 while PW4 has deposed that he along with PW1, PW2 and PW3 went to Fauji Dairy. Therefore, there is contradiction in the deposition of prosecution witnesses with fact who accompanied IO for Fauji Dairy.
d) No investigation has been carried out by the IO regarding ownership of Fauji Dairy and nothing has been placed on record to show that accused was having knowledge that cow is a stolen property and same belongs to PW2. Only because a person was found working in a dairy it is not itself sufficient to show that accused was having knowledge regarding stolen property. It has been affirmed by the prosecution witnesses that dairy belongs to owner fauji and he has not been made accused in the case rather he was real accused and accused Gulab is not having knowledge regarding stolen property. Therefore, Ld. Defence Counsel prays for acquittal of the accused.
Now I am dealing with contentions raised by Ld. Defence Counsel one by one: Contention A: Admittedly, no independent witness is made by prosecution In, "Balraj Singh Vs. State of Punjab" the Hon'ble Punjab & Harayana High Court as well as in Md. Altaf Vs. State of NCT, dated 30.11.07 the Hon'ble Delhi High Court held that "in case, independent witness was available but not joined by the FIR NO: 2/12, PS: Najafgarh State Vs. Gulab ..8..
investigating officer the story is not to be ignored. Question is why police officials have deposed against the appellants/accused when he had no enmity with the police officials. In case independent witness is not joined then evidence on file is to be scrutinized with great caution and mere nonjoining of independent witness is not fatal. Hence, this contention of Ld. Defence Counsel is without merit. Contention B: Admittedly, no document regarding ownership of cow has been placed on record and in FIR. PW2 has stated that cow was black in colour with long horn and It was first time when the cow was seen at the Fauji Dairy then PW2 stated that cow belongs to him and on that basis IO completed whole investigation. In these kind of case, there is no doubt that documentary proof of ownership is very difficult to furnish but at the same point of time it would have been prudent on the part of IO that if " Khunta Parade" of cow would have been conducted after its recovery to show that cow belongs to PW2 but the same has not been done by the IO. Therefore, this contention of Ld. Defence Counsel is worth considering. Contention C: Admittedly, PW1 has stated that he along with PW2 and IO went to the spot, PW2 has stated that he along with IO and other police persons went to the spot but the story of PW3 is totally different as he stated that he along with IO went to the spot while PW1 and PW2 met them there. IO ( PW4) of the case goes one step further and stated that he along with PW1, PW2 and PW3 went FIR NO: 2/12, PS: Najafgarh State Vs. Gulab ..9..
to the Fauji Dairy. Therefore, there is contradiction of prosecution witnesses regarding the fact who went with IO to the Fauji Dairy or whether PW1 and PW2 were already present at Fauji Dairy. Therefore, this contention of Ld. Defence Counsel can not be ignored and is having merit.
Contention D: IO in his deposition has affirmed that the dairy belongs to one person namely Fauji and he inquired about same from neighbours but everyone left the spot without saying anything about ownership. After that there is nothing on record to shows that IO conducted any investigation regarding owner of the dairy or any coercive step was taken by IO for verifying the alleged involvement of owner of dairy rather IO made simple case against the person who was found at the dairy in working condition and even IO has affirmed the suggestion that accused was servant in Fauji Dairy.
Section 411. deals with "Dishonestly receiving stolen property" Whoever dishonestly receives or retains any stolen property, knowing or having reason to believing 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.
While stolen property is dealt in Section 410. Stolen property Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which FIR NO: 2/12, PS: Najafgarh State Vs. Gulab ..10..
criminal breach of trust has been committed, is designed as stolen property, whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without (India). But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, if then cases to be stolen property.
Mensrea in section 411 IPC is firstly dishonestly receiving or retaining, secondly, having knowledge or reason to believe that property is a stolen while actusreus of the offence u/s 411 IPC is receiving or retaining stolen property and when these both actusreus and mensrea joins offence u/s 411 IPC completes. In the case in hand no doubt that accused was found in Fauji Dairy but at the same point of time IO of the case stated that accused was servant of Fauji Dairy, therefore, it cannot be presumed that accused was having knowledge that cow was stolen property because accused was serving in Fauji Dairy as a servant and the period from which accused was serving in Fauji Dairy has also not been established by prosecution. Therefore, presumption of knowledge can not be imputed on the accused rather prosecution has too specifically proved that accused was having knowledge with respect to fact cow was a stolen property. Accordingly, mensrea in the present case is absent and even possession of the cow also can not be imputed on the accused because being a servant accused can not be presumed to have possession of cow and even putting theory of constructive possession on the accused is like elaborating theory of possession FIR NO: 2/12, PS: Najafgarh State Vs. Gulab ..11..
to a large extent, therefore actus reus is also not established in this case. Prosecution in the case in hand has not established the required mensrea and actusreus required under section 411 IPC for the accused. Hence, this contention of Ld. Defence Counsel is plausible.
7. Discussion: In view of the contradictions as discussed in contention B and C and in view of the absence of actusreus and mensrea offence on the part of accused on conjoint reading with the fact that PW1 has stated that fivesix accused persons were found at the spot but they fled after seeing them while this fact is not supported by the deposition of PW2 who stated that only accused Gulab was present at the spot, is not proved. Moreover, by reading of the whole evidence of prosecution it has not been proved beyond reasonable doubt that accused was having possession of cow or accused was having knowledge with respect to the fact that cow was a stolen property and belongs to PW2. Therefore, essential ingredients of section 411 IPC are not fulfilled.
8. FINAL VERDICT: Keeping in view the discussion laid above, Prosecution has failed to prove its case beyond reasonable doubt which is duty of prosecution. Hence, accused is given benefit of doubt and acquitted of the offence u/s 411 IPC.
Announced in the open court
on 24.01.2013 (Sudhir Kumar Sirohi)
M M02/Dwarka Court,
New Delhi, 24.01.2013.
FIR NO: 2/12, PS: Najafgarh State Vs. Gulab