Delhi District Court
"Balraj Singh vs . State Of Punjab" The Hon'Ble Punjab & ... on 3 September, 2012
Page 1 /13
IN THE COURT OF SUDHIR KUMAR SIROHI
METROPOLITAN MAGISTRATE09 DWARKA COURT, NEW DELHI.
FIR NO: 220/11
PS:Sagar Pur
U/s 379/411/34 IPC
State
Vs.
1) Ravi @ Kalu, S/o Sh. Bharat Singh
R/o House No. 38, ABlock, Shiv Vihar, New Delhi
2) Goldy, S/o Sh. Rama Shankar,
R/o Vega Bond, Shiv Vihar, Uttam Nagar, New Delhi.
......... Accused persons
1. Sl. No. of the case. 74/02
2. Unique I. D. of the case 02405Ro331952011
3. The date of offence 21/22.08.2011
4. The name of the complainant State
5. The name of the accused Ravi @ Kalu, S/o Sh. Bharat
Singh,R/o House No. 38, A
Block, Shiv Vihar, New Delhi
Goldy, S/o Sh. Rama
Shankar,
R/o Vega Bond, Shiv Vihar,
Uttam Nagar, New Delhi.
FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC
Page 2 /13
5. The offence complained Under Sections 379/411/34IPC
6. The plea of the accused Pleaded not guilty
7. The date on which the order 31.08.2012
was reserved
8. The date of order 03.09.2012
9 . The final order Acquittal
JUDGMENT:
Present: APP for the state.
Accused persons with counsel Sh L.S.Gautam from DLSA.
1. The case of the prosecution is that on 21/22.08.2011 during 8 pm to 6 am at house no. RZ9A, Ashok Park, west Sagarpur within jurisdiction of PS Sagarpur both accused in furtherance of their common intention committed theft of Maruti Car bearing no. DL 3CE 5618 of complainant Surinder Verma and the abovesaid car got recovered at the instance of accused Goldy on 16.09.2011 from Ganda Nala Pankha Road near JJ colony Service Road, which both of them in furtherance of their common intention kept knowingly or having reasons to believe the same to be stolen property.
2. On appearance of the accused persons copies were supplied to them. Charge for having committing offence punishable under sections FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 3 /13 379/411/34 IPC was framed against them, to which accused persons pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined eight witnesses. Prosecution witnesses correctly identified the accused in the court.
4. Statement of the accused persons were recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in evidence were put to the accused persons, to which accused persons denied all the incriminating evidence and did not prefer to lead evidence in their defence.
5. PROSECUTION EVIDENCE:
PW1 Surender in his deposition deposed that he is working as driver in private Company namely British Paints and on 05.09.2011 at about 8 pm he parked his car bearing no. DL3CE5618 outside his house and in the morning of next day at about 6 am he found his car missing and he called at 100 number and police reached at the spot. PW1 further deposed that IO prepared site plan on his instance and recorded his statement. PW1 proved his statement ( Ex. PW1/A). PW1 further deposed that after 15 days of incident, he received information from PS that his car has been recovered by police.
PW2 WHC Suneel in his deposition submitted that on 17.09.2011 he was posted at PS Sagarpur as Duty Officer and on that day he registered DD no. 23B ( Ex. PW2/A).
FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 4 /13 PW3 Ct.Satyabir in his deposition submitted that on 16.09.2011 he was posted at Police Station Ranhola and he along with HC Gajinder and HC Gulab were on patrolling duty at Pradhan Chowk and at that time he received information that a person was coming from Ranhola Village with stolen vehicle and going towards Uttam Nagar. PW3 further deposed that raiding party was organized with secret informer and requested 45 public persons to join investigation and the barricades were put at Rose Valley Public School and they started checking of the vehicles. PW3 further deposed that during checking HC Diwan and Virender came from PS Nihal Vihar and joined them and at about 3.30 pm a car make Esteem bearing no. DL6CF2567 was coming from Ranhola Village and on the instance of secret informer the vehicle was stopped and two persons were sitting at that time. PW3 further submitted that on interrogation both of them failed to give satisfactory reply and when documents were demanded they refused to show the same. PW3 deposed that at that time accused Goldy was driving the vehicle and accused Ravi was sitting besides driver. PW3 further deposed that disclosure statement of both accused were recorded and he proved the same ( Ex. PW3/A and Ex. PW3/B) and both accused were arrested under kalandra under section 41.(1).D. Cr. P. C. and proved the same ( Ex. PW3/C) and stated that the documents were seized under section 102 Cr. P. C. and proved seizure memo of the same ( Ex. PW3/D). FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 5 /13 PW3 during his cross examination submitted that information was received at 2 pm and the accused reached spot after 15 minutes and they searched only esteem car and no other car. PW3 failed to tell who drove the stolen vehicle to PS and also failed to tell exact time when rukka was sent to PS and stated that IO recorded his statement on site with Ct. Gulab, HC Diwan and HC Virender and he signed 45 documents. PW3 failed to tell whether IO prepared site plan or not in his presence and he also failed to tell the colour of car which was recovered from the accused but stated it to be Maruit Esteem Car.
PW4 HC Gajinder Singh in his deposition stated that on 16.09.2011 he was posted at PS Ranhola and on that day he was patrolling with HC Gulab Singh and Ct. Satbir at Pradhan Chowk Vikas Nagar, thereafter, a secret informer came and stated that two persons with stolen car bearing no. DL6CF 2567 would be coming from Ranhola Village towards Uttam Nagar Ganda Nala, on this information he requested some passerby to join investigation but they refused and without wasting time he along with other staff prepared raiding party and make naka near rose valley public school and in the meantime HC Diwan, Ct. Virender came to spot from PS Nihal Vihar and they also joined raiding party. PW4 deposed that at about 3.30 pm they stopped the vehicle bearing no. DL6CF2567 and two persons were sitting in the car and on asking about the documents of vehicle they FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 6 /13 failed to produce the same. Thereafter, car was checked through PCT Auto Mex and it was found that car was stolen and it was stolen under FIR no. 299/11 PS Dabari and the name of driver was Ravi and another person was Goldi, who disclosed that they have stolen car from Janakpuri. PW4 further deposed that disclosure of the accused Ravi and Goldi were recorded ( Ex. PW3/A and Ex. PW3/B). PW4 further deposed that thereafter accused persons were taken to Police Station and concerned Police Station was informed. PW4 during his cross examination submitted that secret information was not reduced into writing by IO and his statement was recorded on 17.09.2011 by the IO. PW4 further deposed that vehicle bearing no. DL6CF2567 belong to present case.
PW5 Ct. Bahadur Singh deposed that on 30.10.2011 he was posted at PS Sagarpur and on that day on the instruction of IO he went to PS Ranholla and received maruti car bearing no. DL3CE 5618 and deposited the same to PS Sagarpur vide RC No. 134/21/11 dt. 30.10.2011.
PW6 Ct. Gulab Singh deposed exactly in line of PW3 and PW4 up to the point that the vehicle bearing no. DL6CF2567 was recovered from both the accused and stated that driver of the vehicle was Ravi and accused Goldi was sitting besides him. PW6 further deposed that disclosure of both the accused was recorded (Ex. PW3/A and Ex. PW3/B) and stated that vehicle bearing no. DL3CE 5618 was recovered at the FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 7 /13 instance of both the accused Ravi and Goldi and seizure of same is ( Ex. PW3/D). PW6 further deposed that accused persons and vehicle was brought to Police Station and case property was deposited in malkhana and concerned Police Station was informed. PW6 further deposed during his cross examination submitted that he did not know if the key of vehicle was recovered in this case or not and place from where recovery was effected was an open place and any person can visit there. PW6 deposed that public persons were asked to join investigation but none agreed and vehicle was taken to Police Station by hiring crane. PW6 failed to tell sequence of place where they visited and also failed to tell name of place where they lastly visited and also stated that he does not know whether site plan recovery was prepared by the IO or not.
PW7 ASI Vishnu Prasad Duty Officer at Police Station Sagarpur deposed that on 05.09.2011 he was posted at PS Sagarpur and proved FIR ( Ex. PW7/A).
PW8 SI Manjeet Singh deposed that on 05.09.2011 he was posted at PS Sagarpur and he received written complaint from complainant ( Ex. PW1/A) and on the basis of same he got FIR registered. PW8 further deposed that he prepared site plan ( Ex. PW8/B) and it was informed that accused persons were apprehended under section 41.(1). D. Cr. P. C in Police Station Ranhollah Nagar with stolen vehicle bearing no. DL3CE FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 8 /13 5618 which was recovered from accused persons. Thereafter, they went Tis Hazari Courts and on 21.09.2011 he formally arrested the accused Goldy and Ravi ( Ex. PW8/C and Ex. PW8/D). PW8 further deposed that case property was taken into custody and proved kalandra ( Ex. PW3/C). PW8 further deposed that he recorded statement of witnesses. PW8 during his cross examination stated that date of incident was 21.08.2011 and the reason for delay in lodging FIR is not reported by the complainant and he came to PS on 05.09.2011 when he asked complainant for reporting matter after the gap of 14 days he asked the vehicle was not in his name. PW8 further deposed that he recorded statement of complainant on 06.09.2011 and did not prepare site plan of place of recovery and he did not visit the place of recovery at any point of time and no public person was made part of investigation and he did not recover key of vehicle.
Argument: Ld. APP for the state that prosecution has proved its case beyond reasonable doubt and it has been proved by coherent deposition of Prosecution Witnesses that stolen vehicle was recovered after disclosure of both the accused persons and same has been proved by the deposition of PW3, PW4, PW6 and PW8. Accordingly, it has been proved that both the accused persons were found in possession of stolen property. FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 9 /13 Therefore, Ld. APP prays for conviction of accused. Ld. Defence Counsel on the other hand submitted that prosecution has failed to prove its case beyond reasonable doubt and he further argued that:
a) There is no public witness in the case.
b) There is delay in lodging FIR as the date of incident was 21.08.2011 and the FIR was lodged on 05.09.2011 and no plausible explanation is given for delay in lodging FIR. This shows that both the accused persons have been falsely implicated in the case.
c) There are so many contradictions in deposition of Prosecution Witnesses. Moreover, Prosecution Witnesses PW3 and PW4 has deposed only with respect to the point that both the accused were found in possession of car bearing no. DL6CF2567 but they have not stated anything about stolen vehicle of the present case i.e. DL3CE 5618 and only PW6 has stated about recovery on the disclosure of both accused. In addition to this, there is no site plan of recovery. Hence, Prosecution witnesses in the light of these facts can not be relied upon. Hence, Ld. Defence Counsel for accused prays for acquittal of the accused.
Now, I am dealing with contentions raised by ld. Defence Counsel one by one: Contention A: FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 10 /13 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 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. Contention B: Admittedly, as per PW8 incident occurred on 21.08.2011 and as per the complaint given by the PW1 ( Ex. PW1/A) the date of incident was 21.08.2011 and the same was reported to the Police on 05.09.2011 and FIR was also registered on 05.09.2011 and this delay of 14 days is not explained by PW1 i.e. Complainant. PW8 IO of the case explained the delay and stated that vehicle was not in name of PW1, therefore, he took time in lodging FIR. In my opinion just a vehicle is not in name of a person is not a reason for not lodging FIR. In addition to this, PW1 in his deposition before the court stated that on 05.09.2011 at about 8 pm he parked his car bearing no. DL 3CE5618 outside of his house and on next morning he did not find the same while in is his complaint Ex. PW1/A he FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 11 /13 stated date of incident to be 21.08.2011. PW1 who is the complainant has stated date of incident was 05.09.2011 in court. Accordingly, there is contradiction in deposition of PW1 and PW8 regarding the date of incident. Moreover, delay of 14 days is also not explained properly. Hence, this contention of Ld. Defence Counsel is plausible. Contention C: Admittedly, PW3 and PW4 have deposed only with respect to the fact that both the accused persons were found with stolen car bearing no. DL6CF2567 and their disclosure statements were recorded but after that what happened these two witnesses has not stated and the accused were arrested under kalandra. First time PW6 who was member of raiding party has stated that on the disclosure of both the accused car bearing no. DL3CE 5618 ( Stolen property of this case) was found from Pankha Road, Near Ganda Nala J J Colony Service Road. Therefore, two of eye witnesses of recovery of car bearing no. DL3CE 5618 and member of same raiding party are not aware about the said recovery and one member i.e. PW6 HC Gulab Singh has stated about the said recovery. Therefore, in the light of this fact that the member of raiding party are distributed in opinion regarding recovery of vehicle bearing no. DL3CE 5618 from the accused persons. Hence, neither of them can be believed. Therefore, this contention of Ld. Defence Counsel is plausible. FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 12 /13 Discussion: After dealing with contentions raised by Ld. Defence Counsel, I am of the opinion that PW3 has stated that Goldy was the driver and Ravi was sitting besides him. PW4 has stated that Ravi was driver and Goldy was sitting besides him and PW5 also deposed the same. Hence, there lies contradiction in deposition of Prosecution Witnesses who was driving vehicle bearing no. DL6CF2567 when both accused were apprehended on information of secret information. In addition to this, there is contradiction in deposition of Prosecution Witnesses regarding the fact that two of the Prosecution Witnesses i.e. PW3 and PW4 has not stated anything about the recovery from the accused of the vehicle bearing no. DL3CE 5618 though they were member of the raiding party and one of the member i.e. PW6 has stated about said recovery from the accused persons. In addition to this, delay in lodging FIR is not explained. Moreover, as per complainant the date of incident was 05.09.2011 while as per the FIR and PW8 the date of incident was 21.08.2011. Here, also lies contradiction in deposition of Prosecution Witnesses and same is not explained by prosecution. Moreover, IO has not prepared any site plan of recovery of vehicle bearing no. DL3CE 5618. Therefore, in the presence of so many lacunas which remained unexplained in case prosecution, story of prosecution can not be relied upon.
FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC Page 13 /13 Final verdict: It is the duty of prosecution to prove the guilt of accused beyond reasonable doubt which prosecution has failed to prove. Therefore, accused persons are given the benefit of doubt and both accused are acquitted of the offence under section 379/411/34 IPC. Announced in the open court on 03.09.2012. (Sudhir Kumar Sirohi) M M09/Dwarka Court, New Delhi.
FIR NO: 220/11 PS: Sagarpur U/s 379/411/34 IPC