Delhi District Court
State vs . Bharat Bhushan Etc. on 29 November, 2014
IN THE COURT OF SH. DEVENDER NAIN
METROPOLITAN MAGISTRATE: WEST05, DELHI
FIR No. 662/1997
Case ID: R0082751998
State Vs. Bharat Bhushan etc.
PS Vikas Puri
U/s 379/411/34 IPC
Date of Institution of case : 03.10.1998
Date of Judgment : 29.11.2014
JUDGMENT:
a) Date of offence : 26.10.1997 b) Offence complained of : U/s 379/411/34 IPC c) Name of Accused, his :1) Bharat Bhushan, parentage & residence S/o Chela Ram Valecha, R/o RZ17, 3rd Floor, Indra Park Extension, Uttam Nagar, New FIR No. 662/97 1 of 31 PS Vikas Puri Delhi. 2) Sanjay Motiyani @ Sanju, S/o Gurmukh Dass, R/o B2/4, Sector15, Rohini, New Delhi. d) Plea of Accused : Plead not guilty e) Final order : Acquitted BRIEF FACTS AND REASONS FOR DECISION:
Case of the prosecution in brief is as follows:
1. That on 26.10.1997 at about 8.30 pm at F Block, Vikas Puri, Diwali Mela accused committed theft of Maruti Car No. DL1CE0595 in furtherance of their common intention and thereby committed an offence punishable u/s 379 IPC.
Alternatively, on 08.11.1997 accused were found in possession of the abovesaid stolen car at Priyanka Tower, Moti Nagar FIR No. 662/97 2 of 31 PS Vikas Puri and accused retained the same knowingly the same to be stolen one and thereby committed an offence punishable u/s 411 IPC.
2. Court took cognizance of the abovesaid offences and the charge against accused persons was framed on 20.05.1999 and a prima facie case was made out against the accused persons and charge was accordingly framed against the accused persons for offence punishable u/s 379/411/34 IPC to which accused persons pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined 08 witnesses.
4. PW1 is HC Bhoop Singh who deposed that on 26.10.1997 he was posted at PS Vikas Puri as Duty Officer who received the rukka sent through Const. Rajesh and on the basis of the same, registered present FIR.
5. PW2 is Satya Dev who deposed that he was the registered FIR No. 662/97 3 of 31 PS Vikas Puri owner of Maruti Car No. DL1CE0595 and it was released on superdari to him by the order of the court vide superdarinama Ex.PW2/A. At the time of cross examination, PW2 deposed that he purchased the car in the year 1997 from the agency of Maruti Company and it was financed by Citi Bank and loan was cleared in 2000 and he sold the said vehicle to Sh. Anoop Singh after one month of the recovery of the car. He further deposed that Anoop Singh is brotherinlaw of his nephew and PW2 do not know whether as on today the vehicle in question is in the name of Anoop Singh. He do not remember whether after one month of the recovery of the car it was transferred from his name or not.
6. PW3 is Anoop Singh who deposed that on 26.10.1997 he went to see Diwali Mela at F Block, Vikas Puri in Maruti Car No. DL1CE0595 and parked the car at the main gate parking at about 8.00 pm and when at about 9.00 pm he came back, he saw the car was missing and he searched for the maruti car and reported the matter to the police.
FIR No. 662/97 4 of 31 PS Vikas Puri
At the time of cross examination by the counsel for accused Bharat Bhushan, PW3 deposed that on that day arrangement for parking was made and no receipt was handed over to him of parking. He denied the suggestion that there was no parking and no car parked by him and he did not visit Diwali Mela.
At the time of cross examination by the counsel for accused Sanjay, PW3 deposed that documents were lying in the car when it was stolen and he left the documents inside the car when he went to the Diwali Mela and at that time car was registered in the name of his relative Sh. Satya Dev Prakash.
7. PW4 is SI Dharambir Singh who deposed that on 27.10.1997 he received one DD entry regarding theft of car and he alongwith Const. Rajesh reached at F Block, Vikas Puri Park where one Anoop Singh met them and got his statement recorded and PW4 handed over the same to Const. Rajesh who went to PS for registration of FIR. PW4 further deposed that he also made search for the culprits and Const. Rajesh also reached back alongwith copy of FIR and original rukka and FIR No. 662/97 5 of 31 PS Vikas Puri handed over same to PW4. PW4 also prepared the site plan at the instance of complainant on 27.10.1997.
PW4 further deposed that later on one DD entry No. 66 of 09.11.1997 was also got lodged from ATS CP at PS Vikas Puri and he collected the paper from the ATS CP and then sought production warrants from the Court and accused Sanjay and Bhushan were formally arrested after seeking the permission from the Court and later on the car No. DL1CE0595 was also got transferred from PS CP to PS Vikas Puri and the car was released on superdari on the orders of the Court.
During cross examination, PW4 deposed that he only met Mr. Anoop Singh as he came forward from the crowd seeing him in uniform and Anoop Singh met him out of the park and he was alone but the people were coming and going at the spot. PW4 further deposed that Anoop Singh stated to him that he had parked the car outside the park and the same was stolen from that place and at that time PW4 had not questioned Anoop Singh about the ownership of the car in question and he told him that the documents were lying in the vehicle which was stolen. PW4 further deposed that other police officers were also FIR No. 662/97 6 of 31 PS Vikas Puri managing the mela function and he know that there was deployment of police official for Diwali Mela but he cannot tell their exact position. PW4 further deposed that he did not call any police official which was deployed in the mela and he had not inquired from the said police personnel regarding the theft of vehicle. He further deposed that statement Ex.PW3/A was written by the complainant and engine and chassis number are not mentioned in the Ex.PW3/A and he did not make any verification from the authority regarding the chassis and engine number of stolen vehicle and he asked about the ownership of vehicle and he told him that the car was registered in the name of one Sehdev. PW4 further deposed that beside Anoop, he recorded the statement of Const. Rajesh on the spot. He further deposed that Anoop did not tell him about the owner of the vehicle and PW4 have not taken the signatures of complainant on Ex.PW4/A.
8. PW5 is HC Tej Pal Singh who deposed that on 06.11.1997 he was posted at New Delhi AATS and on that day SI Santosh Kumar received a secret information that two boys will come from the side of FIR No. 662/97 7 of 31 PS Vikas Puri Connaught Place and they were having a Maruti Van which is stolen one and on this information IO formed a raiding party comprising of HC Narinder, Const. Devinder, Const. Satinder and Santosh Kumar and PW5. PW5 further deposed that they made nakabandi near Mohan Singh Palace and at the instance of secret informer one maruti van was stopped and two persons were there in the said van namely Sanjay and Bharat Bhushan and van was driven by Sanjay and IO asked the accused persons to produce the documents of the said van but they failed to produce the documents and IO prepared a rukka and a case was registered. PW5 further deposed that disclosure statement of accused persons recorded by the IO and on 07.11.1997 accused Sanjay and Bharat Bhushan pointed out the place of incident of this case F Block, Vikas Puri, Delhi from where they have stolen Maruti Car bearing No. DL1CE0595 and pointing out memo was prepared and accused also pointed out another place of incident of another car. PW5 further deposed that on 07.11.1997 one Maruti car No. DL1CE0595 was recovered from Priyanka Tower, Moti Nagar at the instance of accused persons from the park and car was taken into police possession and FIR No. 662/97 8 of 31 PS Vikas Puri accused persons also got recovered another vehicle. PW5 further deposed that other vehicles were also recovered except the vehicle of present case and IO recorded his statement.
At the time of cross examination, PW5 deposed that they made the nakabandi soon after they reached at near Mohan Singh Palace. He admitted that in the vicinity of the Mohan Singh Palace there were shops and he deposed that IO SI Santosh Kumar asked some shopkeepers to join in the raiding party but they refused. PW5 further deposed that it is correct that in his examination in chief he had not stated about the registration number of the vehicle on which the accused persons would have come to near Mohan Singh Palace. He further deposed that in his presence, the IO SI Santosh Kumar did not ask any public person with regard to the recovery of vehicle of present case. He further deposed that recovered vehicle of the present case was deposited in malkhana on 07.11.1997.
PW5 further deposed that IO did not write the name of public persons who refused to join the investigation and IO did not give any written notice to such public persons. He further deposed that there FIR No. 662/97 9 of 31 PS Vikas Puri were residential area at near the F Block parking, Vikas Puri and parking attendant was present there and in presence of PW5, no statement of any parking attendant was recorded by the IO. PW5 further deposed that he cannot tell whether any complaint lied in any PS with regard to the presence of the recovered vehicle at the place of parking.
PW5 further deposed that he do not remember the exact time when they reached at Priyanka Tower and admitted that the Priyanka Tower is a public place and the peon and the parking attendants of the Priyanka Tower complex were present there and some shops were opened in the Priyanka Tower at that time and IO asked the peon / parking attendant and shopkeepers to join the investigation but they refused and IO did not write their names as they did not disclose the same and IO did not give any written notice to them. He denied the suggestion that Maruti Car No. DL1CE0595 was not present at the Priyanka Tower.
9. PW6 is Satish Chander, Record Clerk, RTO, Mall Road, Delhi who brought the original record of Maruti Car bearing registration FIR No. 662/97 10 of 31 PS Vikas Puri No. DL1CE0595 and as per record the said car was registered with the Transport Department on 17.02.1995 by the owner namely Satyadev Singh Dabas and the said car was subsequently transferred on 27.07.1999 to one Ajay Kumar. He further deposed that again it was transferred to Vijay Kumar Vashisht on 20.09.1999 and lastly it was transferred back to Satyadev Singh Dabas on 12.09.2001.
10. PW7 is ASI Narender Singh who deposed that on 06.11.1997 he was posted at ATS Office, New Delhi District and on that day both accused persons namely Bharat Bhushan and Sanjay Motian were arrested in case FIR No. 1320/97 under Section 411 IPC PS Connaught Place and both accused persons made disclosure statements that they have stolen one Maruti Car bearing registration No. DL1CE0595 from Diwali Mela parking, F Block, Vikas Puri 10 days before. PW7 further deposed that on 07.11.1997 accused persons were taken on police custody for two days and they had pointed out the place from where they had stolen the said vehicle.
PW7 further deposed that on 08.11.1997 on the pointing out FIR No. 662/97 11 of 31 PS Vikas Puri of both accused persons one white colour Maruti Car bearing registration No. DL1CE0595 was recovered from Priyanka Tower parking, Basai Darapur Road, Moti Nagar, Delhi and the said vehicle was seized.
At the time of cross examination by counsel for accused Sanjay Motian PW7 deposed that he do not remember as to IO had recorded any statement of the parking contractor / attendant of the Diwali Mela parking or not in his presence as the matter pertains to the year 1997. He further deposed that on 07.11.1997 they went to the Diwali Mela parking, F Block, Vikas Puri and he do not remember as to whether any parking attendant or contractor was met there or not. He further deposed that the parking at Basai Darapur from where the vehicle was recovered was a free parking and there was no contractor or attendant. He cannot tell if the place was owned by MCD or DDA. PW7 denied the suggestion that there was no parking from the place of recovery of vehicle or that the vehicle was not recovered from there or that the alleged stolen vehicle Maruti Car bearing No. 595 was planted upon the accused.
During cross examination by the counsel for accused Bharat FIR No. 662/97 12 of 31 PS Vikas Puri Bhushan PW7 deposed that place of recovery was a public place and shops were situated at a distance of about 100200 meters away from the spot and the offices were situated in the Priyanka Tower and there was no chowkidar at the Priyanka Tower at that time. He do not remember as to whether IO had asked any occupant of the Priyanka Tower or any passersby to join the investigation. PW7 further deposed that IO did not join any public person in the investigation at the spot. He denied the suggestion that car bearing No. DL1CE0595 was not recovered from parking of Priyanka Towers, Basai Darapur. He cannot say if any receipt for parking of the vehicle at Diwali Mela Parking was taken by the IO in his presence. PW7 further deposed that IO did not conduct any inquiries from the owner of the vehicle in his presence and IO did not seized any parking or the fair ticket of Diwali Mela from the accused. PW7 denied the suggestion that accused did not make any disclosure statement or that disclosure statements were prepared after having the signatures of the accused persons on blank papers or that pointing out memo is a fabricated document prepared to falsely implicate the accused.
FIR No. 662/97 13 of 31 PS Vikas Puri
11. PW8 is Inspector Santosh Kumar who deposed that on 06.11.1997 he was posted as SI at AATS New Delhi District and on the basis of secret information a nakabandi was done at Baba Kharka Singh Marg, Opposite Mohan Singh Place and accused Sanjay Motiyani and Bharat Bhushan came there in one Maruti Car of blue colour bearing registration No. DL5CA1449 and PW8 inquired about the car from the accused persons and he came to know that the said car was a stolen car and he got an FIR bearing No. 1320/97 u/s 411 IPC PS Connaught Place and in the interrogation accused persons disclosed about the involvement in the present FIR. PW8 further deposed that on next day, i.e., 07.11.1997 pointed out place of occurrence, i.e., near F Block, Dussehra Park, Vikas Puri and on 08.11.1997 he got recovered the stolen car of the present case, i.e., Maruti 800 Car bearing registration No. DL1CE0595 from near Priyanka Tower, Basai Darapur at the instance of the accused persons and he provided the information to PS Vikas Puri and IO of the present case recorded the statement of PW8.
At the time of cross examination PW8 admitted that Baba Kharak Singh Marg is a busy place and on the one side of road, the FIR No. 662/97 14 of 31 PS Vikas Puri coffee home and on the other side of the road, Hanuman Mandir is situated. He further deposed that he did not serve any notice in writing to the public to join the investigation. He further deposed that there are State Emporiums situated near the spot at Baba Kharak Singh Marg. PW8 further deposed that they did not put any barricades on the road and it was routine checking and again said they went to the spot on specific information. PW8 further deposed that apart from the car occupied by the accused persons no other vehicle was checked. He further deposed that he do not know anything about accused Sanjay Motiyani and Bharat Bhushan being present in Tata Siera Car No. 6677 of accused Sanjay Motiyani at Connaught Place on 05.11.1997. He denied the suggestion that he had picked up both accused on 05.11.1997 unlawfully as accused Sanjay Motiyani had no driving license or that they misbehaved with both the accused persons on 05.11.1997 or that on 05.11.1997 he had obtained signatures of both accused persons on blank papers or that they had taken them to PS Parliament Street. He further denied the suggestion that no disclosure statement was given by accused persons or that no car was recovered from the possession of accused persons or that FIR No. 662/97 15 of 31 PS Vikas Puri all the proceedings on 06.11.1997 was done in the PS. He further deposed that they did not examine any public person during their investigation. He admitted that Dussehra Park is surrounded by shops and the residences. PW8 further deposed that in the whole proceedings at Dussehra Park, no public persons has joined in the investigation and no notice was given to any public persons. He admitted that Basai Dara Pur is also a public place is surrounded by shops and offices and they reached at Basai Dara Pur at about 10.30 am in the morning. He do not remember if any chowkidar or parking attendant was present there. PW8 further deposed that he asked public persons including shopkeepers / office employees to join the investigation but none joined them and he do not remember the particular offices and shops and he did not try to note down the particulars of offices and shops. He denied the suggestion that Maruti 800 Car being No. DL1CE0595 was not recovered from Basai Darapur.
12. On 15.03.2013, statements of accused persons were recorded and all the incriminating evidence was put to the accused FIR No. 662/97 16 of 31 PS Vikas Puri persons u/s 313 CrPC in which they denied all the allegations made against them to which accused persons choose to lead defence evidence.
13. DW1 is Bharat Bhushan who deposed that on 05.11.1997 at about 4.00 pm he alongwith Sanjay Motiyani, his friend was going from Bangla Sahab Gurudwara to Palika Bazaar in his Tara Sierra Car bearing registration No. 6677 and when they reached in front of Coffee Home in front of Hanuman Mandir, Connaught Place, they saw that the police had put the barricades on the road and police asked to stop their vehicle and asked them to produce the driving license. DW1 further deposed that his friend Sanjay Motiyani did not have the driving license at that time and the police officials started misbehaving and also abused them and when they made protest, then they asked to stand there and told them that "Sahab aayenge or baat karenge" and after sometime, the senior police official came there and took them to Parliament Street Police Station and in the PS they were forced to put their signatures on blank papers and they had to stay there in the PS for whole night. DW1 further deposed that the police officials did not inform their family members regarding FIR No. 662/97 17 of 31 PS Vikas Puri the same and one police official brought the Tata Sierra from the spot to PS Parliament Street and one police official brought the said Tata Sierra car to the house of Sanjay Motiyani and police made the false case against DW1. He further deposed that they were going to Palika Bazaar on that day for shopping as his friend was getting married on 13.11.1997.
During cross examination by the Ld. APP for the State, DW1 deposed that he did not make any complaint to the senior officer of the police or to the Court with regard to their falsely implication in the present case. He do not remember whether his family members had lodged any missing report. He denied the suggestion that nothing took place as stated by him as there was no report or any complaint made by him or his family members on the night or thereafter as stated by him. DW1 further deposed that there is no eye witness who had seen the incident when the police officials were abusing them and his family members did not make any complaint on 100 number with regard to his falsely arrest in PS Parliament Street. He further deposed that he had not brought any card with regard to marriage of his friend on 13.11.1997 and FIR No. 662/97 18 of 31 PS Vikas Puri voluntarily said that he can bring the same and the name of his friend whose marriage was conducted on 13.11.1997 was Naresh Khemani. DW1 denied the suggestion that they were not falsely implicated in the present case or that they were not forced to put their signatures on some blank papers in PS Parliament Street or that they were not apprehended on 05.11.1997. Defence Evidence was closed vide order dated 21.10.2013.
14. At the time of final arguments, it is submitted by Ld. APP for the State that his case is proved beyond reasonable doubts and all the contents of the section are completed and proved beyond reasonable doubt under which the present charge is framed. In reply to this it is argued on behalf of accused persons that prosecution miserably fails to prove its case as there is no public witness to the recovery of the stolen vehicle and there are considerable lacunae in the prosecution version which remains unexplained.
15. I have given thoughtful consideration to the rival FIR No. 662/97 19 of 31 PS Vikas Puri contentions made on behalf of both the sides and perused the judicial file very carefully. PW1 is DO. PW3 is Anoop Singh who is the complainant himself who narrated his version regarding stolen car. Same is perused very carefully. PW4 is SI Dharambir Singh who went at the spot and inquired regarding the incident. PW5 is HC Tejpal Singh who deposed that on 07.11.1997 one Maruti Car No. DL1CE0595 was recovered from Priyanka Tower, Moti Nagar at the instance of accused persons from the parking. PW5 deposed that IO SI Santosh Kumar had asked some shopkeepers to join the raiding party but they refused. It is also deposed by PW5 that in his presence IO SI Santosh Kumar had not asked any public persons with regard to the recovery of vehicle of the present case. In his cross examination PW5 also deposed that they had gone to the place in a gypsy and the parking attendant was present there. It is also deposed by PW5 during his cross examination that IO had asked the peon / parking attendant and shopkeepers to join the investigation but they refused and IO had not served any written notice to such persons. PW7 is ASI Narender Singh who deposed that on 08.11.1997 on the pointing out of both accused persons one white colour FIR No. 662/97 20 of 31 PS Vikas Puri Maruti Car bearing No. DL1CE0595 was recovered from Priyanka Tower parking, Basai Darapur Road, Moti Nagar, Delhi. Depositions of other witnesses also perused very carefully. After going through the judicial file and after considering the suggestions given to the witnesses which were mainly not authenticated by the witnesses, the version of witnesses creates reasonable doubt over the recovery of alleged stolen vehicle in the present case. Moreover, no public witness were joined despite the place being a public place. Moreover, the place of recovery of vehicle is a public place which could be in the knowledge of anybody. Parking attendant was never examined by the prosecution who could be a relevant witness in the present case. In view of the abovementioned discussion and in the absence of any independent public witness joins or produced on behalf of prosecution also creates great doubt over the version of prosecution. This failure on the part of prosecution creates reasonable doubts in the prosecution story. In this regard reliance may be placed on the following case laws: The Hon'ble Delhi High Court in Vijay Kumar Vs. State, 1996, CRI.
FIR No. 662/97 21 of 31 PS Vikas Puri L.J. 2429, held that:
"42. As far as recovery of a piece of hockey from the room of the appellant, Vijay, is concerned, the said piece of hockey was not lying hidden anywhere. A casual search of the room by the police, would have yielded the said piece of hockey. Section 27 of the Evidence Act could make such disclosure statement of the accused in custody admissible which leads to discovery of a material fact but if a material fact is selfevident to the police, the disclosure statement of the accused of such material fact becomes inadmissible.
In case a particular material fact is in exclusive knowledge of the accused and he makes a disclosure statement pertaining to the same which leads to recovery of such FIR No. 662/97 22 of 31 PS Vikas Puri material fact, then and then only such disclosure statement of the accused is admissible in evidence. So, this recovery of piece of hockey cannot be linked to the accused Vijay in view of the above reasons.
Moreover, Premwati had stated in Court that Vijay had thrown away the second piece of hockey outside his house. If that is so, the disclosure statement of the appellant, Vijay, becomes all the more doubtful."
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. in the present case, it is evident that no such sincere efforts FIR No. 662/97 23 of 31 PS Vikas Puri have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand Vs. The State of Haryana 1999 (1) CLR 69, the Hon'ble Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner FIR No. 662/97 24 of 31 PS Vikas Puri during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate FIR No. 662/97 25 of 31 PS Vikas Puri themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer FIR No. 662/97 26 of 31 PS Vikas Puri is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks credibility, the benefit of doubt necessarily has to go to the accused".
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2.
Both the witnesses supported the prosecution FIR No. 662/97 27 of 31 PS Vikas Puri version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version."
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is submitted as under: FIR No. 662/97 28 of 31 PS Vikas Puri "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
The Apex Court in Dudh Nath Vs. State of U.P., 1981 CRI. L.J. 618, has held that :
"Evidence of recovery of the pistol at the instance of the appellant cannot by itself FIR No. 662/97 29 of 31 PS Vikas Puri prove that he who pointed out the weapon wielded it in offence. The statement accompanying the discovery is woefully vague to identify the authorship of concealment, with the result that the pointing out of the weapon may at best prove the appellant's knowledge as to where the weapon was kept."
16. Merely making allegations and deposing in the same lines does not prove anything qua present case. I do not find credible and substantial material in the depositions of the witnesses as well as in the present file to convict the accused persons. Perusal of judicial file as well as considering the depositions of the witnesses clearly shows that proper sustainable inquiry has not been conducted on the part of the prosecution. There are so many lacunae in the present case which are left unexplained on the part of the prosecution. Not joining the public witness qua recovery of alleged vehicle cast dark shadow over the FIR No. 662/97 30 of 31 PS Vikas Puri prosecution version.
17. In view of the aforesaid discussion, considering the submissions of both the sides and considering other facts and circumstances, I am of the considered opinion that prosecution fails to prove its case beyond reasonable doubt. Accordingly, both accused persons are hereby acquitted. Earlier Bail Bonds furnished by accused persons at the time of court bail stands cancelled and sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Fresh Bail Bonds u/s 437A CrPC already furnished by the accused persons are accepted for six months. File be consigned to the Record Room after due compliance.
Announced in the Open Court (DEVENDER NAIN) on 29th day of November, 2014 MM(WEST05):DELHI FIR No. 662/97 31 of 31 PS Vikas Puri