Delhi District Court
State vs . Rakesh on 17 April, 2007
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IN THE COURT OF SMT.VEENA RANI METROPLOTIAN
MAGISTRATE, TIS HAZARI COURTS, DELHI.
IN RE:
STATE Vs. RAKESH
F.I.R. NO.:-109/97
DATED:- 21.04.97
P.S.-BARA HINDU RAO,
DISTRICT : NORTH DELHI
U/S:- 379 I.P.C.
JUDGMENT
1. SERIAL NUMBER OF THE CASE :181/2/2006
2. DATE OF COMMISSION OF OFFENCE :Between 19-4-97 &
20-4-97
3. NAME OF THE ACCUSED & ADDRESS :Rakesh @ Raku S/o Amar
Singh R/o Village Kanhonda, P.S Bahadur Garh Sadar, District
Rohtak (Haryana).
4. OFFENCE COMPLAINED OF :U/S 379 IPC
5. THE PLEA OF THE ACCUSED :Plead not Guilty.
6. THE FINAL ORDER :Acquitted.
7. THE DATE OF FINAL ORDER :17-04-2007
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BRIEF REASONS FOR DECISION OF CASE:
1. The present accused Rakesh Kumar @ Raku s/o Sh. Amar Singh r/o Village Kantoda P.S. Bahadur Garh, Sadar District, Rohtak, Haryana is alleged to have committed theft (at the time unknown between 9.04.97 and 20.04.97) of the two wheeled scooter (bearing the registration No. DL-IS-J2827) belonging to Javed the complainant. The offences are alleged to have been committed under the provisions of the Sections 379 of the IPC.
2. The case of the prosecution is that the complainant had left his two wheeled scooter (bearing the registration No. DL-IS-J2827) at the Gali Saugtrashan in front of his house No.3557, Bara Hidu Rao on the day 9.04.97 before he left for Allahabad in an urgency. It is on his return on 20.04.97 from Allahabad that he found his scooter missing. After a search at his own hand he reported the matter to the police on 21.04.97. Thereafter the scooter (stolen property) was recovered by the police and the complainant was informed of the same.
3. The charge sheet was filed and the accused was called upon to either plead guilty or to the trial. The accused preferred claiming the trial. The charge was framed against the accused on the basis of the allegations.
4. After having gone through the material brought before me I now proceed to deliberate on the matter.
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5. The prosecution had relied upon a few witnesses and had obtained their respective statements u/s 161 of the Cr. P.C. The complainant Mr. Javed has been examined as PW-2. In his chief the PW-2 has stuck to his version of having left to Allahabad (along with his family) in an urgency thereby leaving the vehicle parked at his residence and later finding it missing on 20.04.97. The matter was reported to the police on 21.04.97 being reduced into the Fir No. 109/97. The complainant has not been cross-examined by the defense.
6. In the present matter the defense has examined only two witnessess form its side. The opportunity of the cross-examination of few of the PWs were not availed of let go by the defense. However, the defense is also reflected in the statement of the accused under S.313 of the Cr.P.C. whereby the accused has said that the case is false and he is not the culprit.
7. The crucial aspect of the matter remains to the recovery of the stolen property. And the case falls , in my opinion, on the testimonies of the PW-3 Prahlad & PW-4 Head Const. Subhash who testified to have apprehended the accused at the instance of the ''police informer'' and to have, thereafter, recovered the stolen property. The apprehension of the accused was solely at the instance and at the identification of the ''police informer''. The recovery is said to have been made from the gali Page No: 3 of 14 4 adjacent to the address of the accused'sBua'shouse on the basis of the accused'sdisclosure statement.
8. The PW-3 has testified that on 24.06.97 when he was posted at the T-Point Kanhaiyya Nagar he received an information through the ''mukhbir'' (police informer) that someone will pass by on a stolen scooter. That 'someone' was informed to have been traveling from Inderlok to Rohini. On this information a raiding party was organized. Three/four passers by were called upon to witness but all refused. The PW-3 stood aside waiting for the ''mukhbir's'' indication.
At about 6.10 p.m. one person came to be indicated by the ''mukhbir'' who was stopped and the relevant documentation was asked for by the PW-3. The two wheeled scooter was bearing the registration No. DL -8S-A-6084. As the mater of fact would be, this was not the stolen scooter. This person so intercepted was the accused Rakesh. On the interrogation the accused told the address of his ''Bua''.
It is the gali adjacent to this address where the stolen property was recovered from.
9. Here it would be seen that the scooter on which the accused was intercepted was not the stolen property. It was some other scooter whose papers were not lying with the accused. The information received from the ''mukhbir'' pertained to the stolen scooter being driven. That particular ''mukhbir'' has not been examined by the Page No: 4 of 14 5 prosecution. The PW-3 & PW-4 have not even named him. All that they have testified is that the ''mukhbir'' has disclosed information to the Constable Babu Lal. However, Constable Babu Lal has not been examined by the prosecution. As for the recovery the PW-4 has admitted in his cross-examination that he can not tell the number of the house or the name of the owner. As it appears from the prosecution version the accused had made a disclosure statement to the police followed by the ''quick'' discovery of the stolen vehicle. The discovery such made is a subject matter of greater enquiry specially when the prosecution is curious and assertive on that more than anything else. Here S.27 of the Indian Evidence Act attains paramount significance.
10.S. 27 Indian Evidence Act deals with how much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact hereby discovered, may be proved.
11.The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 and a statement even by Page No: 5 of 14 6 way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by the Supreme Court in Delhi Admn. v. Balakrishan (AIR 1972 SC 3) and Md. Inayatullah v. State of Maharashtra (AIR 1976 SC 483). The words "so much of such information" as relates distinctly to the fact thereby discovered are very important and the whole force of the section concentrates on them. Clearly the extent to the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information Page No: 6 of 14 7 given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Danu Gopinath Shirde and Ors. (2000) Cri LJ 2301].
12.No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or Page No: 7 of 14 8 incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.
13.In an authority 2004 CRI. L. J. 1380 "Anter Singh v. State of Rajasthan" the Supreme Court summed up the requirement of Section 27 of the Indian Evidence Act thus: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.(2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
14.Now I will analyze the reliability of the recovery of the stolen property. Page No: 8 of 14 9 Here the accused gave a disclosure statement to the police that he had stolen a scooter some and which the accused can lead to its recovery. This was followed by the quick recovery of the stolen vehicle. This sequence, in my opinion , is hit by the 3rd requirement of the case just now discussed. The requirement says : The discovery must have been in consequence of some information received from the accused and not by accused's own act. Here what are we seeing is that the recovery is being made by the accused's own act. This again puts me in great caution of both degree and the intensity while accepting the version of the prosecution. I am guided by the caution exercised by the Hon'ble High Courts and the Supreme Court one of whose citations I have already cited. In fact there are many.
15.In a case decided by the [KARNATAKA HIGH COURT] reported as 2000 CRI. L. J. 4456 "State of Karnataka v. Abdul Gaffar" the accused was alleged to have stolen copper pot containing Rs.200/- in cash from temple. The recovery of stolen property at instance of accused from his custody. But no direct/circumstantial evidence was there to show that accused was found nearby place where alleged incident took place. The acquittal of the said accused was held proper despite no explanation by the accused regarding possession of stolen property. The conviction was restricted to S.411 IPC only. I quote the Page No: 9 of 14 10 said authority in order to analyze the situation in the present case where the accused lead to the discovery of the stolen article. The recovery aspect in the present case thus falls not very conveniently on the prosecution side. Though I would still not jump to a any conclusion this authority is of immense help. This also raises certain presumptions. Under Section 114 of the Evidence Act, the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Since both the presumptions are possible as per illustration (a) of Section 114 of the Evidence Act, it is safe to raise the second presumption in the absence of any other evidence against the accused. In the present case there is no evidence on record that the petitioner was seen near the house of the complainant on the day the theft was committed. It is also to be noticed that the recovery was made after 4/5 days of the alleged theft. Will it be safe to arrive at a convincing conclusion of theft being committed by the accused and none other than him. The citation just now discussed places much caution before deducing so.
16.In the matter reported as 2003 CRI. L. J. 2536 "Babudas v. State of M.P." SUPREME COURT Babudas, v. State of M.P., where the accused was alleged to have killed his schoolmate. Receipt of certain sum by accused from deceased was alleged to be the motive. Page No: 10 of 14 11 Evidence was about the financial transaction, however, showing that on demand deceased was willing to give the money and actually gave it. Recovery was at the instance of accused. Reliability was doubted as it was witnessed by thousands of people. This was held to cast doubt. Such a large gathering cannot remain present at recovery unless people had already come to know that there is going to be such a recovery. Furthermore the currency notes were recovered from damp area under rocks. Recovery was held doubtful as no prudent man would conceal currency notes in such place. In the same case the watch worn by deceased recovered at instance of murder accused was wrapped in newspaper published 6 days after date of recovery. The recovery was seen as doubtful.
17.In the present case the fact that the stolen vehicle was recovered from a gali also creates a cloud over the prosecution theory. The gali adjacent to the accused'sBua'shouse is public place. Therefore the statement of the accused [disclosure] accompanying the discovery of the vehicle from this ''public'' place can be willfully vague to identify the authorship of concealment on part of the accused. That is to say that it is difficult to rely upon this version of the prosecution that the ''spot'' of the stolen vehicle was in exclusive knowledge of the accused alone. In 2003 CRI. L. J. 4179 [ORISSA HIGH COURT] Govinda Naik, v. State of Orissa, the recovery was made at the Page No: 11 of 14 12 instance of accused. The dead body was lying in open place accessible to all. It held that mere leading police and pointing out dead body by accused cannot perse be treated as evidence of commission of crime against him. I find the applicability of the said authority here in the present case.
18.I will here quote The Principles and Digest of The Law of Evidence by Chief Justice M. Monir edited by Justice Deoki Nandan 11th edition (The University Book Agency, Allahabad. At page 362 it says that a conviction based alone on the recovery is unsafe where the place pointed out by the accused is in the possessions of the other persons or accessible to the public, as in such cases the inference is reasonably possible that the article might have been put there by somebody else and the accused might merely have had knowledge of the place where it was put.
19.So much for the applicability of Section 27 of the Indian Evidence Act which arrives to rescue the accused here.
20.Another aspect is the connectivity of the accused with the crime. The PW-3 and PW-4 have said in their chief that it was on the identification by the ''police mukhbir'' which lead to the unearthing of the crime nailing the accused. The evidence suggest that the PW-3 & PW-4 were having an information that one person will riding the stolen scooter. Now it is a matter of record that the stolen scooter Page No: 12 of 14 13 happened to be BLUE in color. This is not denied by the prosecution. And the scooter ridden by the accused before his apprehension was White in color as disclosed by PW-3 in his testimony. The ''white'' scooter ridden by the accused was not the stolen ''Blue'' one. However, the police still went ahead and later arrested the accused. Now they come up with the disclosure statement barred by S.27 of the Indian Evidence Act. The significance of the prosecution theory must then hinge on ''valid'' inferences not on ''surmise'' though. The prosecution can not succeed on the ''surmise'' and ''conjecture''.
A matter of grave inquiry is the issue of the connectivity of the accused with the crime. What prosecution is suggesting is that the accused is connected with the offence on two accounts : firstly that the recovery was made at the instance of the accused ; and secondly that the ''mukhbir'' had informed the accused to have been driving a stolen vehicle (which the accused was not). This matter of inquiry is significant in the absence of the testimony of the informer.
21.The ''police mukhbir''is not examined by the prosecution. Nor is Constable Babu Lal who had had the ''secret information''.In this regard I will succinctly enfold my deliberations with the help of a Delhi High Court judgment by Justice Usha Mehra reported as AIR 1995 DELHI 164 "Asa Ram v. M.C.D." where it was observed ''Any information which is based on an information given by someone Page No: 13 of 14 14 else has no value unless the informer who gathered the information is produced and opposite party given an opportunity to cross-examine him.''
22.In a matter reported as 1998 CRI. L. J. 3673 "State of J. and K. v. Abdul Rehman" [JAMMU & KASHMIR HIGH COURT] it was observed that the presumption of innocence of an accused case is there in law and it is for the prosecution to prove the offences for which they were charged beyond reasonable doubt. Finally by now it is well settled that when on examination of the entire case, two views are possible, one favorable to the accused needs to be followed. The above discussion clearly shows that the prosecution has failed to connect the petitioner with the crime. As there is no conclusive material to connect the petitioner with the crime, I feel, the petitioner is entitled for an acquittal and the same is given to him.
23.In the facts and the circumstances of the case I have no little hesitation in acquitting the accused. The accused is acquitted. The file be consigned to the recode room.
ANNOUNCED IN THE OPEN COURT.
Dated: 17.04.2007 (VEENA RANI) METROPLOTAN MAGISTRATE: DELHI.
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