Delhi District Court
State vs . Surender @ Bonta on 9 July, 2013
FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC IN THE COURT OF SH. JITENDRA SINGH, METROPOLITAN MAGISTRATE: NORTH EAST-04: KARKARDOOMA COURTS,DELHI FIR No. 39/2003 PS: Gokal Puri U/s. 457/380/411 IPC Dated: 09.07.2013 Case ID: 0242R0207812003 STATE VS. SURENDER @ BONTA Date of Institution : 27.05.2003 Date of Commission of offence : 08.02.2003 Name of the Complainant : Sh. Mahender Singh Name parentage and address of the accused : Surender @ Bonta S/o Sh. Ram Singh, R/o; A-539, Gokalpuri, Delhi. Offence Complaint of : U/s. 457/380/411 IPC Plea of the accused : Pleaded not guilty. Final Order : Acquitted. Judgment reserved on : 09.07.2013. Date of judgment : 09.07.2013. JUDGEMENT
BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 39/2003, PS Gokal Puri. The case of the prosecution as per the complaint FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 1/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC of the Complainant that on 08.02.2003 at unknown time, during night hour at shop no. B-7, Ganga Vihar, Main Road within the jurisdiction of PS Gokalpuri, accused had committed lurking house tress pass by night in order to commit the offence of theft and on the said date, place and time accused had committed theft in respect of seven VCDs, one photo camera and one mobile phone. On 15.02.2003, accused was found in possession of VCD make 725 on which MP3 VCD was written to which accused had retained knowing or having reason to believe the same to be stolen property and the said VCD was recovered from the house of the accused i.e. A-539, Gokalpuri, Delhi. Therefore, accused committed an offence punishable under Section 457/380/411 IPC. The accused pleaded not guilty and claimed trial.
2. On conclusion of the investigation, a charge sheet was filed against accused U/s. 506/380/457/411 IPC. Thereafter, a charge Under Section 457/380/411 of IPC was framed against accused on 03.01.2004, to which he pleaded not guilty and claimed trial.
3. The prosecution has examined four witnesses in all in the present case.
The deposition of witnesses is touched upon in brief as under to have a better appreciation of the case.
PW-1 is HC Vinay Kumar, who had proved the FIR bearing no. 39/2003, which is Ex. PW1/A. PW-2 is HC Baljeet Singh, who had deposed that on 15.02.2003, he had joined the investigation of the present case with SI Virender Singh. Complainant also joined him and accused Surender @ Bonta was arrested at the instance of complainant from TSR Stand, Gokalpuri vide arrest memo Ex. PW2/A, which bears his signature at point A and his personal search was also conducted vide memo Ex. PW2/B, which bears FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 2/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC his signature at point A. PW-2 deposed that accused was interrogated, vide disclosure statement Ex. PW2/C. Thereafter, the accused led the police party at Shop No. 7, Ganga Vihar and pointed out the shop, where he alongwith his other co-associate had committed theft. Pointing out memo Ex. PW2/D was prepared by the IO, which bears his signature at point A. PW-2 further deposed that thereafter, the accused got recovered one VCD player from his house no. A-539, Gokalpuri. PW-2 further deposed that complainant Mahender was also joined investigation with him and identified the VCD player and it was taken into possession vide seizure memo Ex. PW2/E. PW-2 further deposed that IO recorded the statements of both the witnesses Shakil and Mahender and his statement was also recorded by the IO.
The said witness was cross examined by Ld. defence counsel for the accused.
PW-3 is Mahender Singh (complainant), who had deposed that in the intervening night of 7/802.2003, his employee Shakeel Ahmad was sleeping in his shop in the name of style of Sunny Electronics situated at B-7, Ganga Vihar, Main Road. At about 3.30 AM, Shakeel came to his house and told him that theft has been committed in his shop. PW-3 deposed that he immediately went to his shop and found that the shutter of the shop was uplifted from right side and one can enter from that portion. PW-3 further deposed that he went inside the shop and checked his shop. PW-3 further deposed that on checking, he found that 7/8 VCD players from different companies, T-series, Sony, Thomo etc., one mobile- Mitsubishi and one photo camera have been stolen by some unknown persons. PW-3 further deposed that he made a call on 100 number. PCR reached at the spot. PW-3 further deposed that local police also reached FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 3/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC there and he made a complaint, Ex. PW3/A. PW-3 further deposed that his shop was inspected by the police and site plan was prepared. PW-3 further deposed that on 15.02.2003, police officials, his employee Shakeel and accused came to his shop and he pointed out his shop vide memo Ex. PW2/D. Accused also made a disclosure statement Ex. PW2/C was prepared and accused led them to his house situated in A-Block, Gokalpuri and one VCD player was got recovered by him. PW-3 further deposed that the said case property was taken into possession vide memo Ex. PW2/D. The said witness was examined by the Ld. defence counsel for the accused.
PW-4 is ASI Laxmi Narayan, who had deposed that in the year 2003, he was posted at PS Gokalpuri as HC. In the intervening night of 7/8.02.2003, he was working as duty officer from 12.00 midnight to 8.00 AM. PW-4 deposed that on that day, at about 4.35 AM, he received a call from DO Control Room and he had reduced the same in DD No. 38-A on the same date. The same is Ex. PW4/A.
4. Thereafter, PE was closed. Statement U/s. 313 Cr.PC of the accused was recorded, wherein he stated that he does not want to lead his defence evidence. Accordingly, DE stands closed. Final arguments have been heard from both the sides and record has been meticulously perused.
5. I have weighed the rival submissions made on behalf of the State as well as on behalf of the defence in the light of the testimonies & material appearing on record.
6. Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 4/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused persons. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused persons.
7. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
8. To prove the offences U/s. 457/380/411 of IPC, the prosecution is required to prove the following:-
(i) that the accused committed lurking house-trespass by night, or house breaking by night;
(ii) that the same was committed to commit theft, or an offence punishable with imprisonment.
(iii) that the property in question is movable property;
(iv) that such property was in the possession of a person ;
(v) that the accused moved such property whilst in the possession of that person ;
(vi) that he did so without the consent of that person ;
(vii) that he did so in order to take the same out of the possession of that person;
(viii) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
(ix) that property was at the time of the theft in a building, tent or vessel.
(x) that such building, tent or vessel, was then being used as a human FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 5/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC dwelling or for the custody of property.
(xi) that the property in question is stolen property.
(xii) that the accused received or retained such property.
9. I have heard the contention of Ld. APP for State as well as Ld. Defence counsel and given my thoughtful consideration. To prove the present offence, the Prosecution has examined four witnesses in all. To Prove the ingredients of offences, the Prosecution was required to prove that the stolen property has been recovered from the possession of the accused persons. In the aforesaid factual & legal background, I shall now step forward to adjudicate as to whether the prosecution has succeeded in proving its case against the accused or not.
10. The prosecution had examined the Complainant Mahender Singh (complainant), who had deposed that in the intervening night of 7/802.2003, his employee Shakeel Ahmad was sleeping in his shop in the name of style of Sunny Electronics situated at B-7, Ganga Vihar, Main Road. At about 3.30 AM, Shakeel came to his house and he told him that theft has been committed in the shop. PW-3 deposed that he immediately went at his shop and found that the shutter of the shop was uplifted from right side and one can enter from that portion from where it was uplifted. PW-3 further deposed that he went inside the shop and checked his shop. PW-3 further deposed that on checking, he found that 7/8 VCD players from different companies, T-series, Sony, Thomo etc., one mobile- Mitsubishi and one photo camera have been stolen by some one. PW-3 further deposed that he came call on 100 number. PCR reached at the spot. PW-3 further deposed that local police also reached there and he made a complaint, Ex. PW3/A. PW-3 further deposed that his shop was inspected by the police and site plan was prepared. PW-3 further deposed FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 6/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC that on 15.02.2003, police officials, his employee Shakeel and accused came to his shop and he pointed out his shop vide memo Ex. PW2/D. Accused also made a disclosure statement Ex. PW2/C was prepared and accused led them to his house situated in A-Block, Gokalpuri and one VCD player was got recovered by him. PW-3 further deposed that the said case property was taken into possession vide memo Ex. PW2/D.
11. Similarly, HC Baljeet Singh, who had deposed that on 15.02.2003, he had joined the investigation of the present case with SI Virender Singh. Complainant Shakil Ahmad also joined him and accused Surender @ Bonta was arrested at the instance of complainant from TSR Stand, Gokalpuri vide arrest memo Ex. PW2/A, which bears his signature at point A and his personal search was also conducted vide memo Ex. PW2/B, which bears his signature at point A. PW-2 deposed that accused was interrogated, vide disclosure statement Ex. PW2/C. Thereafter, the accused led the police party at Shop No. 7, Ganga Vihar and pointed out the shop, where he alongwith his other co-associate had committed theft. Pointing out memo Ex. PW2/D was prepared by the IO, which bears his signature at point A. PW-2 further deposed that thereafter, the accused got recovered one VCD player from his house no. A-539, Gokalpuri. PW-2 further deposed that complainant Mahender was also joined investigation with him and identified the VCD player and it was taken into possession vide seizure memo Ex. PW2/E. PW-2 further deposed that IO recorded the statements of both the witnesses Shakil and Mahender and his statement was also recorded by the IO.
12. As per the case of the prosecution the accused was arrested at the instance of the employer Sh. Shakil Ahmad of the complainant. It is no where explained in the entire chargesheet how Sh. Shakil Ahmad came to FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 7/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC know that the accused is the same person, who has committed theft in the shop of the complainant. The testimony of Sh. Shakil Ahmad could have thrown light to the case of the prosecution, however he was not examined being untraceable. The case of prosecution hangs upon the testimony of Sh. Shakil Ahmad, non examination of Shakil Ahmad is fetal to the case of the prosecution.
13. It is pertinent to mention that the case property which was produced before the court was in unsealed condition which casts serious doubt upon the recovery of DVD players from the possession of the accused. I am enlightened by the judgment of Hon'ble High Court of Delhi in case titled as "Shekhar & Anr. Vs. The State of NCT of Delhi" cited as '2008 [2] JCC 871', wherein it has been held that: -
"..Case of dacoity/robbery and murder - Circumstantial evidence - Conviction based on - Substantiality of - Chance catch of one of accused persons by constables alleged to be on night patrolling duty - Such duty time and area of constables concerned not being supported by DD entries - List of robbed items not furnished with lodging of FIR nor at any time even thereafter - Seal of seizing police officer with which recovered articles were alleged to have been sealed continued to be retained by such officer himself all the time - Apprehension of alleged recovered items to have been shown to owner of the same not being ruled in such situation ............. Conviction based on such unreliable circumstantial evidence- Held: Not sustainable and consequently set aside."
14. It is clear from the testimonies of PW-2 HC Baljeet Singh that he had joined the investigation with SI Virender Singh and on 15.02.2003, he left the PS for reaching the spot. After reaching the spot, accused Surender @ Bonta was arrested at the instance of the complainant and on the basis of his disclosure statement the police officials had recovered the stolen FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 8/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC properties. Be that as it may, now if the said police official was not present within the PS at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival in the D.D. Register.
Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
15. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of the said PW-2. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of the said police official/PW-2 at PS Gokalpuri or near the place of the recovery. It is also worth mentioning that as per the case of the prosecution that police official who apprehended the accused was posted at PS Gokalpuri at the time of incident. However, no DD entry in support of this fact has been placed on record which the said police official had left the PS Gokalpuri before the recovery and by which FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 9/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC he had arrived at PS Gokalpuri after the recovery, so as to inspire the confidence of the Court regarding his joint availability/presence at the place of apprehension of the accused and the recovery of the stolen properties, since the said police official was under bounden duty to enter his departure & arrival entries in that respect as per the aforesaid mentioned P.P. Rule.
At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court had observed as under:-
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery"
16. In circumstances like the present one, the PW-2 should have made an effort to join public witnesses during the recovery proceedings and if members of the public would have refused to assist the members of the police party, he could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of the recovery or after the recovery, when the accused was apprehended, since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police official concerned must have asked the passersby/public persons available at the spot of the FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 10/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC recovery by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence 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".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the 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 during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 11/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC 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 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 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".
17. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had 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 FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 12/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC prosecution appears to be improbable 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, Nirmal Kumar Jha SI who appeared as PW8 and HC Sukhpal Singh, PW-9. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. 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 stereo- type 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".
18. The testimonies of the recovery witnesses of the police i.e PW-2 have also brought nothing on record so as to even remotely suggest that before effecting the recovery of the case properties from the respective houses/premises of the accused, the said police official had offered his own personal search, either to accused or to any other member of the public/family member's of accused present at the spot of the respective recoveries.
At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa"
decided on 24/11/1984 wherein the following was held :-
"10. The next part of the prosecution case is FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 13/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cr. L.J. 279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
19. The Sec. 100 of Cr.P.C. mandates that while conducting search under chapter VII, two or more independent and respectable inhabitants of the locality (in which the place to be search is situated or of any other locality, if no such inhabitants of the said locality is available or is willing to be a witness to the search), shall be called upon to attend and witnesses the search. Furthermore, the officers conducting search may issue an order in writing in this regard.
20. It is a settled proposition of law that Sub-section 4 to Sec. 100 of Cr.P.C. is a directory provision however, the explanation of non-joining of independent witness should also be plausible. In nearly each and every case, a general explanation is given that no public witness volunteered to join the search/investigation and it appears that even the "directory" provision has been made nugatory. Such a vital provision cannot be made FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 14/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC a dead letter in the statute book as it is intended to curb any false recovery.
21. Being guided by above said case law, the possibility of false planting of the case property by the police party against accused can not be ruled out beyond doubt, which makes the story of prosecution qua the recovery of the case properties at the instance of accused from his house highly doubtful.
22. From the aforesaid discussion, the prosecution has been unable to prove the recovery alleged against the accused beyond reasonable doubt, whereby the accused has become entitled to the benefit of doubt. Accordingly, I accord the benefit of doubt to the accused , whereby the accused is acquitted of the charges levelled against him in the instant case.
Announced in the open court today itself i.e. 09.07.2013 (JITENDRA SINGH) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 15/15 FIR No. 39/2003 PS: Gokalpuri Under Section 457/380/411 IPC FIR No. 39/03, PS Gokal Puri, State Vs. Surender @ Bonta 16/15