Delhi District Court
State vs . Yogesh Kumar Etc. on 21 March, 2018
IN THE COURT OF SH. VISHAL PAHUJA, MM-04,
WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE VS. YOGESH KUMAR ETC.
FIR NO. 58/2011
PS: MIANWALI NAGAR
U/S: 379/411/482/34 IPC
JUDGMENT
Case No. : 72386/16
Date of commission of offence : 12.03.2011
Date of institution of the case : 23.04.2011
Name of the complainant : Sh. Pankaj Kumar
Name of accused and address : A-1 Yogesh Kumar
s/o Sh. Mahender Singh
r/o H.no. RZ-128, D Block,
Prem Nagar, Gali no. 5,
Najafgarh New Delhi.
(PO)
A-2 Nitin @ Vipin s/o
Sh. Somnath Sharma
R/o H.no. RZ-188, D Block,
Prem Nagar, Najafgarh New
Delhi.
Offence complained of or proved : U/s 379/411/482/34 IPC
Plea of the accused persons : Pleaded not guilty
Final order : Accused Nitin @ Vipin
stands acquitted
Date on which reserved for judgment : 21.03.2018
Date of judgment : 21.03.2018
******************************************************************************************************************************* FIR No. 58/2011, PS Mianwali Nagar Page 1/10 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused persons Yogesh Kumar (since PO) and Nitin @ Vipin pursuant to charge sheet filed by PS Mianwali Nagar U/s 379/411/482/34 IPC subsequent to the investigation carried out by them in FIR No.58/2011.
2. As per the prosecution, on 12.03.2011 in between 03.30 PM to 04.50 PM from in front of H.no. 6/225, Sunder Vihar, Paschim Vihar, Delhi, accused Nitin @ Vipin and Yogesh Kumar (since PO) committed theft of motorcycle bearing no. DL-4SBK-1892 belonging to the complainant Pankaj Kumar s/o Sh. Jai Bhagwan and on 14.03.2011 both the accused persons were found in possession of the aforesaid stolen motorcycle of the complainant near H.no. 1/3, Gali no. 3, Ashok Mohalla Nangloi, Delhi, which was seized vide seizure memo Mark A which both have retained or received dishonestly knowing or having reason to believe the same to be the stolen property and motorcycle recovered from possession of accused Nitin @ Vipin and Yogesh Kumar (since PO) having fake number plate as HR-26AY-2130 i.e. a false property mark. Accordingly, after the investigation, police filed the present charge sheet against the accused persons for commission of offence punishable u/s 379/411/482/34 IPC.
3. Complete set of charge sheet and other documents were supplied to both the accused persons . After hearing arguments, charge for offence punishable under section 379/411/482/34 IPC was framed against the accused persons namely Yogesh Kumar (PO) and Nitin @ Vipin to which they pleaded not guilty and claimed trial. During the proceedings, accused Yogesh Kumar was declared Proclaimed Offender vide order dated 08.11.2016.
FIR No. 58/2011, PS Mianwali Nagar Page 2/10MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined 12 witnesses in total.
5. PW1 Sh. Shri Pankaj Kumar deposed that on 12.03.2010, he borrowed motorcycle bearing no. DL-4SBK-1892 from his friend Durgesh for his personal work and when he came at H.No. 6/225, Sunder Vihar, the motorcycle was parked in front of aforesaid residence and when he came outside from that house at about 4.50 pm, PW-1 found the motorcycle missing. Thereafter he made a call at 100 number and his statement Ex.PW-1/A was recorded by the police. This witness exhibited on record motorcycle when produced before the court and the photographs of the same as Ex. P-1 and P-2 (colly.). This witness was cross examined by the accused.
6. PW-2 Shri Bakshish Singh stated that he is the Registered Owner of motorcycle bearing no. DL-4SBK-1892 and on 12.3.2010 his friend Pankaj Kumar borrowed the motorcycle from his neighbour namely Durgesh. It is stated that PW-2 received information regarding stolen of aforesaid motorcycle from Durgesh. This witness identified the case property as Ex.P-1 and P-2. This witness was cross examined by the accused.
7. PW-3 SI Rohit Gahlot stated that on 12.3.2011 DD No. 26-A was received upon which he went at H.No. 6/225, Sunder Vihar where complainant informed about theft of vehicle, i.e. motorcycle bearing no.
DL-4SBK-1892. It is stated that statement of complainant Ex. PW-1/A was recorded and rukka/tehrir Ex. PW-3/A was prepared on the basis of which FIR was registered. This witness was not cross examined by the accused.
FIR No. 58/2011, PS Mianwali Nagar Page 3/108. PW-4 HC Dilbag stated that on 13.3.2011 he alongwith Ct. Raj Kumar were present at Beat No. 4 and when during patrolling they reached near Gali No. 4 of Nangloi Gaon, they heard noise from Gali No. 3 and when they reached there, they found that two persons were apprehended by public persons alongwith one motorcycle. The information was given to IO as it was revealed that the motorcycle was involved in case FIR No. 58/11. It is stated that motorcycle was seized vide Seizure Memo mark-A. It is stated that when the motorcycles including the present case motorcycle were recovered, they were bearing Nos. DL- 4SBL-8476 and HR-26AY-2130. This witness identified accused Nitin @ Vipin before the court during trial and also identified the photographs of case property as Ex. P-1. This witness was cross examined by the accused.
9. PW-5 HC Atul exhibited on record entries made in Register no. 19 pertaining to deposition of present case property as Ex. PW-5/A and also exhibited on record RC as Ex. PW-5/B. This witness was cross examined by the accused.
10. PW-6 ASI Sriniwas stated that on 13.03.2011 he received information that two persons at Gali No. 3, Bhoot Wali Gali, Nangloi are apprehended by Ct. Raj Kumar and HC Dilbag. It is stated that on this information PW-6 went there where one motorcycle bearing no. DL-4SBN- 8476 was produced and both the accused persons were also handed over to him and during interrogation they disclosed regarding theft of vehicle bearing no. HR-26AY-2130, the same was recovered and on checking it was found bearing original no. DL-4SBK-1892 and involved in FIR No. 58/11. This witness exhibited on record Arrest Memos as Mark A-1 and A- 3, Seizure Memo of Motorcycle as Mark-A and photographs of motorcycle as Ex. P-2 colly. This witness was cross examined by the accused.
FIR No. 58/2011, PS Mianwali Nagar Page 4/1011. PW-7 Ct. Ramesh Kumar stated that on 17.3.2011 he was MHC(M), PS Nangloi and two motorcycles bearing no. DL-4SBK-1892 and HR- 26AY-2130 were deposited in case FIR No. 67/11 and the same was handed over to concerned IO of present case vide RC No. 28/21/11. This witness exhibit on record Seizure Memo as Ex. PW-7/A.
12. PW-8/PW-11 Retd. SI Janglesh exhibited on record DD No. 26-A as Ex. PW-8/A, copy of FIR and endorsement on Rukka/tehrir as Ex. PW11/A and Ex.PW-11/B. This witness was cross examined by the accused.
13. PW-9 ASI Ravi Dutt stated that on 14.3.2011 DD No. 37-A was received regarding apprehension of accused Nitin @ Vipin and co- accused Yogesh Kumar (since PO) in case FIR No. 67/11, PS Nangloi and then PW-9 collected documents of abovesaid case FIR and formally arrested both the accused persons vide memos Ex.PW-9/A and Ex.PW- 9/B. This witness exhibit on record disclosure statements as Mark X and Mark X-1. This witness exhibited on record Seizure Memo of motorcycle bearing no. DL-4SBK-1892, two fabricated number plates bearing no. HR- 26AY-2130 and photographs of fabricated number plates as Ex. PW-7/A, Ex. PW-9/C and Ex. P-1, P-2. This witness was not cross examined by the accused.
14. PW-10 W/Ct. Suman Lata exhibited on record DD No. 37B as Ex. PW-10/A. This witness was not cross examined by the accused.
15. PW-12 Shri Pradeep Kumar exhibited on record original registration record of motorcycle bearing no. HR-26AY-2130 as Ex. PW-12/A and Ex. PW-12/B. This witness was not cross examined by the accused.
FIR No. 58/2011, PS Mianwali Nagar Page 5/1016. PW-13 HC Raj Kumar deposed on the same lines as that of PW-4 HC Dilbag. In addition, this witness exhibited on record Site Plan as Ex. PW-13/A. This witness was not cross examined by the accused.
17. No other PW was left to be examined, hence PE was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
18. Statement of accused recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him. It is stated by him that nothing was recovered from his possession and the recovery was later on planted upon him by the police. Accused Nitin @ Vipin opted not to lead any defence evidence.
ARGUMENTS:
19. Ld. APP for State has argued that prosecution witnesses have supported the prosecution and their testimony has remained unrebutted. That on a combined reading of testimony of prosecution witnesses, offence U/s 379/411/482/34 IPC is proved beyond doubt.
20. On the other hand, Ld. Counsel for accused Nitin @ Vipin has stated that there is no legally sustainable evidence against the accused. It is further argued that the recovery shown to have been effected from him is infact planted as there is no public person stood as witness to the said recovery. It is further argued that prosecution has failed to build the case against accused Nitin @ Vipin, hence he is entitled to be acquitted of the offence charged against him.
FIR No. 58/2011, PS Mianwali Nagar Page 6/10FINDINGS:
21. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
22. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused Nitin @ Vipin is indicted for the offences U/s 379/411/482/34 IPC. Section 379 IPC provides punishment for theft by taking any movable property dishonestly out of the possession of person. Section 411 IPC provides punishment for dishonestly receiving and retaining any stolen property knowing or having reason to believe the same to be stolen property. Section 482 IPC provides punishment for using false property mark.
23. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused Nitin @ Vipin not guilty for any offence charged herein and he deserves acquittal for the following reasons:-
24. Admittedly, the complainant has not seen the accused taking away the motorcycle. The case property is stated to have been recovered two days later that too without joining the public witnesses. It is to be noted that as per the testimony of police officials, the accused was apprehended by the public persons but there is no explanation by PW4, PW6 for non- examination of public witness or for non-joining of public witness at the time of recovery. No written notice was given to any such public person and even their names or other particulars were not recorded, which shows that sincere efforts were not made by the police officials to join the public persons. Non joining of public witnesses causes a major dent in credibility of prosecution version. Had public witnesses witnessed search of FIR No. 58/2011, PS Mianwali Nagar Page 7/10 accused, prosecution version would have been more authentic. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"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 have been made, particularly when we find that shops were open and one or two shop keepers 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."
25. Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police. PW4 during his cross-examination admitted that he has not recorded statement of any public witness gathered at the spot. Further, PW6 Retired ASI Sriniwas during his cross- examination admitted that he did not record any DD entry regarding the information nor he made any departure entry before proceeding to spot. PW6 further admitted that he has not prepared any site plan of the place from where the motorcycle was recovered.
FIR No. 58/2011, PS Mianwali Nagar Page 8/1026. The claim of the police officials is that on the disclosure of accused, the motorcycle was recovered from a gali. During the cross-examination of prosecution witnesses, it has come out that the motorcycle was not hidden at a place where nobody could approach rather the motorcycle was recovered from a gali in a residential area and the doors of the houses opens in the gali as admitted by PW6 during his cross-examination. So, it was public place from where the motorcycle is said to have been recovered. By no stretch of imagination it can be presumed that the discovery of motorcycle has been made at the instance of the accused who only have the knowledge of the same. In view of the material discrepancies in the testimony of prosecution witnesses, the recovery at the instance of the accused is not proved. The planting of the case property with the accused cannot be ruled out due to absence of any statement by the public.
27. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
28. The testimony of prosecution witnesses does not inspire confidence due to several inconsistencies in their version. Thus, in the considered view of this Court, the prosecution failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, the accused Nitin @ Vipin is hereby acquitted of the charges levelled against him in the present case.
FIR No. 58/2011, PS Mianwali Nagar Page 9/1029. Requirements of Section 437-A Cr.P.C have already been complied with. File be consigned to Record Room and be revived as and when accused Yogesh Kumar is arrested.
Digitally signed VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2018.03.21
16:47:04 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 21.03.2018 MM-04 (WEST)/DELHI
Containing 10 pages all signed by the presiding officer.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date: 2018.03.21
16:47:12 +0530
(VISHAL PAHUJA)
MM-04 (WEST)/DELHI
FIR No. 58/2011, PS Mianwali Nagar Page 10/10