Delhi District Court
State vs . Raj Kumar And Ors. on 18 April, 2012
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 420/2000
P.S. Malviya Nagar
U/s 411/34 IPC
State Vs. Raj Kumar and ors.
JUDGMENT :
a. Sl. No. of the case : 1107B/01
b. Date of Institution : 19.04.2001
c. Date of Commission of Offence : 04.06.2000
d. Name of the complainant : Lt. Col. B.R. Khosla
e. Name of the accused and his : (1.) Raj Kumar
parentage and address S/o Shri Bhagwan Das
R/o AII/131, Madangir,
New Delhi
(2.) Uday Pal
S/o Raghubir
R/o H.no. J306,
Dakshinpuri, New Delhi
(Already convicted vide
order dated 29.01.2007)
f. Offence complained of : U/s 411/34 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 18.04.2012
i. Final Order : Acquitted
j. Date of such order : 18.04.2012
FIR NO. 420/2000 PAGE 1 OF PAGE 8
PS MALVIYA NAGAR
1. Both the accused persons in this case were sent up for trial for the commission of offence u/s 411/34 IPC.
2. The facts in brief as per the prosecution story are that on 31.05.2000, the complainant namely Lt. Col. B.R. Khosla had parked his car bearing no. UP164397 near his flat at C311, SFS Flats, PhaseI, Sheikh Sarai, New Delhi, and at about 2.30p.m., when he looked for his car, the same was not found lying there. Thereafter on 04.06.2000, at about 11.30 p.m., at Lodhi Road, Lala Lajpat Rai Marg Crossing, accused Raj Kumar and Uday Pal were found in possession of the abovesaid car of the complainant So on the basis of complaint of complainant, FIR 420/2000 was got registered in the PS Malviya Nagar. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused persons were arrested and after completing other formal investigation the challan was presented before the court for trial u/s. 411/34 IPC against the accused persons.
3. A prima facie offence having been made out against both the accused persons, charge was framed against them on 29.01.2007 U/s. 411/34 IPC to which accused Raj Kumar pleaded not guilty and claimed trial.
4. Further accused Uday Pal pleaded guilty voluntarily and FIR NO. 420/2000 PAGE 2 OF PAGE 8 PS MALVIYA NAGAR did not claim trial hence he was convicted vide order dated 29.01.2007.
5. To prove its case the prosecution has examined three witnesses namely HC Satbir Singh as PW1, SI Raj Kumar as PW2 and Retd. Col. B.R. Khosla as PW3.
6. PW1 HC Satbir Singh has testified that on 31.05.2000, on receipt of rukka through complainant, he recorded the present case FIR which is Ex. PW1/A. His endorsement on rukka is Ex. PW1/B. Accused did not prefer to cross examine PW1.
7. PW2 SI Raj Kumar has testified that on 31.05.2000, on receipt of copy of FIR and original rukka, he reached the spot and prepared the site plan at the instance of the complainant Lt. Col. B.R. Khosla which is Ex. PW2/A. PW2 further testified that on 10.06.2000, he received the information from PS Hazrat Nizamuddin regarding the recovery of the case property i.e. Maruti 800 car of white colour bearing no. UP164397 in case FIR no. 270/2000 u/s 411/34 IPC. Thereafter he met IO/SI A.K. Singh of the case FIR no. 270/2000 at PS H.N. Din who handed over him the copy of said FIR, copy of seizure memo, copies of pointing out memo, copies of disclosure statement of accused Raj Kumar, copy of arrest memo and copies of statements of witnesses etc. After getting the road certificate of the FIR NO. 420/2000 PAGE 3 OF PAGE 8 PS MALVIYA NAGAR case property, he deposited the same with MHC(m) of PS Malviya Nagar. PW2 further testified that he formally arrested the accused Raj Kumar and Uday Pal from Patiala House Court vide memos Ex. PW2/A and 2/B and also obtained the JC remand of both the accused persons for 14 days each. PW2 correctly identified the accused Raj Kumar present in the court.
Accused did not prefer to cross examine PW2 also.
8. PW3 Retd. Col. B.R. Khosla has testified that on 31.05.2000, he had parked his car bearing no. UP164397 at car parking gate no.4 near his flat and at about 2.30 p.m., when he went to look for his car, he found that the same was stolen. Thereafter he had given his complaint to the police which is Ex. PW3/A. Accused did not prefer to cross examine PW3 also.
9. After closing of prosecution evidence, statement of accused Raj Kumar was recorded U/s 281 of Code of Criminal Procedure Code,1973 r/w 313 Cr.P.C. In his statement, accused has denied to have committed the offence and claimed to has been falsely implicated in this case. However, he did not lead any evidence in his defence.
10. The case set up by the prosecution is that PW3 Lt. Col.
FIR NO. 420/2000 PAGE 4 OF PAGE 8 PS MALVIYA NAGAR
B.R. Khosla lodged a complaint Ex.PW3/A on 31.05.2000 regarding theft of his maruti car bearing no. UP164397 at car parking gate no.4 near his flat at C311, SFS Flats, PhaseI, Sheikh Sarai, New Delhi. On the basis of said complaint, the present case FIR was registered and investigation was carried out. In the meanwhile, the accused persons namely Raj Kumar and Uday Pal(already convicted) got arrested in connection with the investigation of another FIR no.270/2000 registered at PS Hazrat Nizamuddin, u/s 411/34 IPC and recovery of the stolen maruti car was effected and accused Raj Kumar made a disclosure statement to the IO/SI A.K. Siingh of the said case disclosing therein that theft in the present case was committed by him alongwith his associate namely accused Uday Pal(already convicted). Thereafter he verified the fact from PS Malviya Nagar and found that the said car had been stolen from Malviya Nagar and the present case FIR has been registered in the PS Malviya Nagar. Thereafter information was sent to PS Malviya Nagar regarding the recovery of car and arrest of accused persons and accused persons alongwith the copies of documents were handed over to PW2 IO/SI Raj Kumar of the present case FIR.
11. In the instant case, the bare perusal of the record shows that the prosecution does not seem to be at all interested in proving the guilty of the accused. The investigation as well as the prosecution has FIR NO. 420/2000 PAGE 5 OF PAGE 8 PS MALVIYA NAGAR been conducted in a very casual and perfunctory manner. The prosecution case tends to crumbe right from the word go.
12. To start with, only a few of the original documents which were collected or prepared during the investigation have been produced before this court. The prosecution has tried to make do with mere copies of the most of the relevant documents. Originals of documents like the disclosure statement, the pointing out memo of place of recovery, the seizure memo and the copy of case FIR no. 270/2000 in which the accused persons were arrested, which form the basis of the prosecution against the accused have not been produced before the court and they are all in the form of copies only. There is no explanation either for this omission. To say the least of it, no plausible reason worth the name has been apportioned by the prosecution for withholding the originals of all the material documents. The copy of a document does not even constitute as secondary evidence in terms of the Indian Evidence Act. That being so, under no circumstance, the same could be inducted or looked into as evidence. It is a rule of evidence that a document can not be exhibited, unless it is proved in a manner as provided by law. Mere exhibition of a document in itself does not dispense with its formal proof. In any case, a secondary evidence can be produced only after the permission of the court after fulfilling the conditions stipulated from Clause (a) to (g) under section 65 of the FIR NO. 420/2000 PAGE 6 OF PAGE 8 PS MALVIYA NAGAR Evidence Act. The prosecution has relied upon photocopies of the documents in question without first proving any of the circumstances mentioned in Section 56 of Evidence Act which permit the production of secondary evidence. Needless to say, the copies of documents are not receivable in evidence. As it happens, even the prosecution has taken care to only mark these documents insteads of proving them as exhibits. The prosecution was to succeed on the basis of these documents and as a matter of fact, no finding can be recorded by this court with respect to the guilt of the accused for the default of the prosecution to prove these documents in the manner as provided by the Evidence Act.
13. The recovery of article from the possession of accused appears to be quite doubtful. On the basis of the evidence, whatever of it is on the record, it cannot be said convincingly that accused had the possession of the articles. Much less it can be believed that accused committed the theft.
14. Another glaring lacuna on the part of the investigating agency is that no public witness has been joined at the time of arrest of accused persons and recovery of stolen property.
15. The investigation was carried out in a very shoddy manner FIR NO. 420/2000 PAGE 7 OF PAGE 8 PS MALVIYA NAGAR is apparent from yet another omission on the part of the IO. No chance prints were collected from the scence of crime. When there was no direct evidence coming forth, it was the duty of the IO to gather as many circumstantial evidences as possible. The chance prints, if lifted from the scene of theft, would have served as a good piece of corroborative evidence.
16. All these infirmities in the prosecution case make the same doubtful and the benefit of which must be given to the accused.
17. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Raj Kumar is acquitted for the offence punishable U/s 411/34 IPC for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 18.04.2012 Metropolitan Magistrate
South District/New Delhi
FIR NO. 420/2000 PAGE 8 OF PAGE 8
PS MALVIYA NAGAR
FIR No. 420/2000
P.S. Malviya Nagar
U/s 411/34IPC
18.04.2012
Present: Ld. APP for the State.
Accused Raj Kumar produced from J/C.
Vide my separate judgment dictated and announced in the open court, accused Raj Kumar is acquitted for the offence punishable U/s 411/34 IPC for which he stands charged.
Accused requested that he may be released on personal bond as he is not in a position to produce the surety bond as he belongs to a very poor family.
Heard. Accused Raj Kumar is released on furnishing personal bond in the sum of Rs. 10,000/ Personal bond furnished. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South Delhi/ 18.04.2012
FIR NO. 420/2000 PAGE 9 OF PAGE 8
PS MALVIYA NAGAR