Delhi District Court
State vs Nizam Etc on 21 October, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW
DELHI
FIR No.: 477/2001
PS: Uttam Nagar
U/s: 481/488/489/457/380/411/34 IPC, 25 Arms Act
and 103 DP Act
Case no. 11076/2019
State
Vs.
1. Nizam
S/o Sh. Lal Muhammad,
2. Vishal
S/o Sh. Ramesh,
3. Surender
S/o Sh. Jagat Ram
&
4. Narender
S/o Sh. Kasturi ...... Accused persons
S. No. of the case : 11076/2019
The date of offence : 21.06.2001
The name of the complainant : Inspector Satyender Bashisht
The name of the accused persons : Nizam (PO), Vishal (PO),
Surender and Narender (abated)
The offence complained : 481/488/489/457/380/411/34 IPC,
25 Arms Act and 103 DP Act
The plea of the accused : Pleaded not guilty
Argument heard on : 20.08.2024
The date of order : 21.10.2024
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 1 of 23
Brief Facts
1. It is the case of the prosecution that in the month of June, the 21st, of the year 2001, Inspector Satyender Bashisht received secret information that the accused Nizam, a house burglar, would be coming near Bhatiya Farm House, Uttam Nagar at 4 pm on a stolen black motorcycle having no plate DL-4SZ- 4903. Thereafter, a raiding party was constituted which departed from the office of the special staff at 3.30 pm. At 4.15 pm three boys came on a black splender having no plate DL-4SZ-4903 and were stopped and apprehended. The three boys were namely, Surender @ Sheru (driving the motorcycle), Nizam and Vishal. On formal search of the accused persons, two gold ring and one gold chain were recovered from the possession of accused Nizam and one buttondar knife was recovered from the possession of Vishal. At the instance of the accused persons, accused Narender was also arrested who was jeweller and two bangles were recovered from him. Thereafter, FIR No 477 of 2001 came to be registered at PS Uttam Nagar. Investigation was set into motion and was carried out initially by Inspector Satyender and then by SI Jai Bhagwan.
2. Chargesheet was filed and cognizance was taken under Section 481, 488, 489, 457, 380, 411/34 IPC and Section 25 Arms Act and Section 103 DP Act against the accused persons. The copy of the chargesheet as well as annexures were supplied to the accused persons in compliance with Section 207 CRPC.
3. Charges under Section 482, 488, 489, 411 IPC and Section 103 Delhi Police Act were framed against accused Nizam, Vishal and Surender and charge under Section 411 IPC was framed against accused Narender. Separate charge under Section 25 Arms Act was also framed against accused Vishal.
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 2 of 23
4. During the course of trial accused Narender expired and proceedings against him stood abated vide order dated 09.10.2018. Accused Vishal, Nizam and Surender were declared proclaimed persons vide order dated 09.04.2008, 18.11.2014 and 01.11.2023 respectively. Accused Surender was then arrested on 12.12.2023 and supplementary chargesheet under Section 174A IPC was filed against him. Thereafter, charges under Section 174A IPC were also framed against accused Surender.
5. Thus, since accused Narender already expired and accused Vishal and Nizam were declared proclaimed persons, the present matter proceeded only against accused Surender for the charges under Section 482/488/489/411/174A IPC and Section 103 Delhi Police Act.
6. The prosecution in total made 17 witnesses. Statement of the accused Surender under Section 294 CRPC was recorded and the accused admitted the following documents:
a. TIP proceedings by Ld MM Sh R K Sharma dated 29.10.2001 and TIP proceedings by Ld. MM Sh Rakesh Syal dated 25.09.2001 Ex Y1 and Ex Y2, respectively.
b. FIR No 34/2001 as Mark Z. c. FIR No 477/2001 and FIR No 448/2001 PS Uttam Nagar along with certificate u/s 65B IEA as Mark A1 and Mark A2.
7. Further, during the course of the trial, witness at serial no 6 also got expired.
Thus, witnesses at serial No 5, 6, 8, 9, 13, 14, 15, and 16 were dropped from the list of witnesses. Further, on clarification given by the IO SI Jai Bhagwan, Ret, that witness at serial no 7 and 12 were IOs in different connected cases i.e. FIR No 448/01 and FIR No 34/01 and that they are not related to the present case, the witnesses at serial No. 7 and 12 were also dropped. Thus, a total of 10 witnesses were dropped from the list of witnesses.
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 3 of 23
8. The prosecution, in total, examined 6 witnesses. Inadvertently, after PW 2, instead of PW 3, PW 4 was noted. Thus, the witnesses were PW1, PW 2, PW 4, PW5, PW6 and PW 7 who were examined by the prosecution. There is no witness who was examined as PW 3 in the present matter.
9. Inspector Satyender Bashisht was examined as PW 1. He stated that on 21.06.2001, he was posted as Special Staff West District as SI. On that day at 3 pm, he received an information from a secret that Nizam, house burglar, would be coming near Bhatiya Farm House, Uttam Nagar at 4 pm on a stolen black motorcycle having no plate DL-4SZ-4903. He lodged this information into DD register and passed it to Inspector J L Meena, In-charge Special Staff. He directed to him to take legal action. He constituted a raiding party comprising of himself, SI Rajkumar, ASI K P Singh, HC Raj Singh, HC Mukesh, Ct Bachu Singh and Ct Ravish. The raiding party along with secret informer departed from the office of Special Staff at 3.30 pm in Government vehicle bearing no DL-1V-2809 along with the driver Ct Harish. On the way near Kali Basti Uttam Nagar, he requested 4-5 passerby to join the raiding party but they refused without disclosing their names and addresses. At 3.45 pm they reached near Bhatiya Farm House near Uttam Nagar where they parked of the Govt. Vehicle near Uttam Nagar Park and raiding party to the police near Bhatiya Farm House. At 4.15 pm three boys came on a black splender motorcycle bearing no DL 4SZ 4903 from village Hastsal Side. At the instance of the secret informer they were stopped and apprehended the motorcycle was driven by Surender @ Sheru, present in court today (correctly identified by the witness) and accused Nizam and Vishal were the pillon rider on the said motorcycle. Accused Nizam and Vishal are not present in Court as declared PO. He inquired above the motorcycle on which the three reveals that they stolen the same from the area of PS Hari Nagar. He FIR No.: 477/2001 State versus Nizam & Ors. Page No. 4 of 23 took formal search of Nizam and Vishal. Two gold ring and one one gold chain were recovered from the possession of accused Nizam and one buttondar knife was recoevered from the possession of Vishal. He prepared the sketch of buttondar knife which is Ex PW1/A bearing his signature at point A. The knife was kept in pullanda and sealed with the seal of SV. Knife was taken into possession vide seizure memo Ex PW1/B bearing his signature at point A. He kept the golden chain and two rings in pullanda and sealed with the seal of SV. The seal was handed over to Ct Ravish after use. The ring and chain was taken into possession vide seizure memo Ex PW1/C. On checking the engine and chesis no of the motorcycle, it was found to be fake. The motorcycle was also taken into possession under Section 102 CRPC vide seizure memo Ex PW1/D. He prepared the rukka Ex PW1/E and handed over the same to Ct Ravish and for registration of FIR at PS Uttam Nagar. Meanwhile ASI Jai Bhagwan from Special Staff reached the spot and further investigation of the case was handed over to him. ASI Jai Bhagwan prepared the site plan at his instance Ex PW1/F. Ct Ravish went to the PS Uttam Nagar along with copy of rukka. Thereafter, he left the post. He can identify the case property if shown to him.
10. In the further examination in chief of PW 1 MHC(M) produced the case property i.e. Two sealed pullandas. One Pullanda sealed with seal of S.V, another pullanda sealed with the seal but the same is not visible and FIR No 477/01 mentioned. First pullanda sealed with seal of SV is opened which contains one buttondar knife Ex P1 (identified by the witness to be the same recovered from the possession of the accused Vishal who is not present in Court as he has already been declared PO). Another pullanda which the seal is not visible on which FIR No 477/01 is mentioned. It is also mentioned on the pullanda that only one ring and chain already released on superdari. Seal FIR No.: 477/2001 State versus Nizam & Ors. Page No. 5 of 23 is allowed to open. Pullanda contains one gold ring in grip with flower Ex P2 identified by the witness to be the same recovered from the possession of accused Nizam in his presence. The superdaar Sh Satish Kumar also appeared and produced the remaining case property i.e. one gold chain and one gold ring. After seeing the gold chain Ex P3 and gold ring Ex P4, the witness PW 1 identifies it to be the same which was recovered from the possession of accused Nizan (not present in Court as already declared PO) u/s 102 CRPC vide seizure memo Ex PW1/C.
11. Opportunity was given to the accused Surender to cross examine the witness PW1, however no cross examination was carried out.
12. During the course of trial, the Ld APP moved an application under Section 311 CRPC to re-examine PW 1 which came to be allowed. PW 1 was then further examined in chief on 11.07.2024 in which MHCM PS Hari Nagr produced two number plates of bike both bearing no DL4SZ4903 and were shown to PW 1. PW 1 correctly identified the same and stated that it is the same number plate which the accused persons i.e. Surender @ Sheru, Nizam and Vishal used on the motorcycle when they were caught and the same was found false number plate. The same is Ex Y1. (Accused Surender @ Sheru is present in Court and correctly identified by witness.
13. In his cross-examination PW 1 affirmed that he identified the number plate only because of the number placed in the number plate. He further affirmed that he cannot tell any specific mark on the false number plate produced today through which he can identify the same as recovered from the accused persons on that day. He denied that accused Surender @ Sonu was not caught with the motorcycle using false number plate.
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 6 of 23
14. Sh Balwan was examined as PW2. He stated that he does not know anything about the present case. He does not want to say anything else in the present case.
15. In his cross examination carried out by the Ld APP, his statement was read over to him which is Ex PW2/A bearing his signature at point A. He further stated that the statement read over to him and the facts mentioned in that statement are related to his other case registered bearing FIR No 34/01. There is no relevancy between the present case and Ex PW 2/A. He is appearing in this case for no reason since 17 years. The case property recovered in the present case does not belong to him. He denied that he is deposing falsely at the instance of the accused persons. He further denied that he have ever joined the investigation of the present case. He further denied that he is deliberately hiding from the court.
16. Opportunity was given to the accused persons to cross examine PW 2, however, no cross examination was carried out.
17. Smt Darshana was examined as PW4. She stated that on 07.01.2001, she along with her family left for Panipat to attend a wedding. There her husband received an information that theft had taken place at their house. After that they immediately left and came back to the house and saw that all the items were lying on the ground. After checking, they came to know that their jewellery, cash, new clothes (around 20 lady suits) and some property documents had been stolen. After enquiry they came to know that theft had taken place on 08.01.2001. (Accused is present in the Court, the witness cannot identify the accused).
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 7 of 23
18. In her cross examination by the Ld APP, accused was shown to the witness PW 4 and was asked whether he is the one who committed the theft from her house. PW 4 stated that she have not seen who have stolen the items from their house, therefore, she cannot sat whether the person present oin the court has committed the theft at their house. She denied the suggestion that she have settled the matter with the accused outside the Court and therefore to save him from punishment, she is deliberately not identifying the accused.
19. Opportunity was given to the accused to cross examine PW 4, however, no cross examination was carried out.
20. SI Bacchu Singh was examined as PW 5. He stated that on 21.06.2001, he was posted as Ct. at Special Staff, Tagore Garden. On that day, SI Satender Vashisht received an information regarding one person namely Nizam is doing theft from houses from the secret informer who came at Special Staff, Tagore Garden. After that, on the instructions of senior, SI Satender Vashisht formed one raiding team in which SI Raj Kumar, ASI K.P. Singh, HC Mukesh, HC Raj Singh, Ct. Ravish, Ct. Harish including him. Thereafter, they left the special staff in govt. vehicle for Bhatia Farm House, Vikas Nagar. During travel, SI Satender asked public persons to join the investigation, however, all refused without stating their names and addresses. At about 04:00 PM, they reached at Bhatia Farm House and after that took their positions as instructed by SI Satender. At about 04:15 PM, three persons on one motorcycle Splendor were coming towards them from Hastal Village side. After that, secret informer pointed towards the persons coming on motorcycle are the same person. Thereafter, SI Satender with the help of raiding team apprehended the accused persons and after that, they came to know the name of the persons as accused Surender who was riding the motorcycle, accused Nizam who was sitting in the middle and accused FIR No.: 477/2001 State versus Nizam & Ors. Page No. 8 of 23 Vishal who was pillion rider and sitting at last and upon asking about the ownership of motorcycle, they did not give any satisfactory answer and upon being suspicious, SI Satender personal searched all the accused persons. Upon search, one buttondar knife was recovered from the possession of accused Vishal and two gold rings and one gold chain was recovered from accused Nizam. Accused Nizam informed SI Satender that he along with other two accused persons stole these articles. SI Satender prepared sketch of buttondar knife already Ex. PW-1/A in his presence bearing his signature at point X, seized the buttondar knife vide seizure memo already Ex. PW-1/B bearing his signature at point X, seized motorcycle vide seizure memo already Ex. PW-1/D bearing his signature at point X, gold chain and ring were seized vide seizure memo already Ex. PW-1/C bearing his signature at point X, all the case property was sealed with the seal of SV. After that, SI Satender prepared rukka already Ex. PW-1/E and handed over the same to Ct. Ravish for registration of FIR. Meanwhile, ASI Jai Bhagwan from special staff came at the spot and further investigation was handed over to him. After some time, Ct. Ravish came at the spot and handed over the FIR and original rukka to ASI Jai Bhagwan. ASI Jai Bhagwan prepared site plan at the instance of SI Satender in his presence already Ex. PW-1/F, recorded disclosure statement of accused persons Ex. PW-5/A, Ex. PW-5/B and Ex. PW-5/C all bearing his signatures at point X, arrested the accused persons in his presence. On next day, ASI Jai Bhagwan arrested the accused Narender (deceased) in his presence who was jeweller from whom two gold bangles were recovered. Same was seized vide seizure memo Ex. PW-5/D bearing his signature at point X. (Accused Surender is present in the court and correctly identified by the witness.) FIR No.: 477/2001 State versus Nizam & Ors. Page No. 9 of 23
21. That after arrest, at the instance of accused Nizam where several articles of gold and silver were recovered which he has stolen and same was seized by IO SI Jai Bhagwan vide seizure memo Ex. PW-5/E (colly) bearing his signature at point A. After arrest, at the instance of accused Surender where several articles of gold and silver were recovered which he has stolen and same was seized by IO SI Jai Bhagwan vide seizure memo Ex. PW-5/F bearing his signature at point A. After arrest, at the instance of accused Vishal where several articles of gold and silver were recovered which he has stolen and same was seized by IO SI Jai Bhagwan vide seizure memo Ex. PW-5/G bearing his signature at point A. (At this stage, MHCM has produced one carton box which was found containing kitchen utensils containing two articles of copper and other are stainless steel, all are now Ex. A1 (colly) sealed pullandas all sealed with the seal of JBB, same is opened with the permission of court.) (In first pullanda, it was found containing two earrings and one lady's ring, both yellow in colour Ex. A2 (colly). In second pullanda, it was found containing one gents ring yellow in colour and one chain with locket with initial of 'Bobby' silver in colour Ex. A3 (colly). In third pullanda, it was found containing four lady's ring, silver in colour Ex. A4 (colly). In fourth pullanda, it was found containing one lady's ring and one chain with locket of God, both yellow in colour Ex. A5 (colly). In fifth pullanda, it was found containing one ring, yellow in colour and two anklets, silver in colour Ex. A6 (colly). In sixth pullanda, it was found containing one bangle and one chain, both yellow in colour Ex. A7 (colly). In seventh pullanda, it was found containing one necklace in broken condition and silver in colour and two watches Ex. A8 (colly). In eighth pullanda, it was found containing one lady's ring, yellow in colour Ex. A9 (colly). In ninth pullanda, it was found containing one anklet, one baby bangle and one chain FIR No.: 477/2001 State versus Nizam & Ors. Page No. 10 of 23 with white moti beads, all silver in colour Ex. A10 (colly). In tenth pullanda, it was found containing one pair of earrings in pan shape in yellow colour, two pairs anklets of silver colour and one pair bangle for baby, silver in colour Ex. A11 (colly). Witness identified the same as recovered from accused Surender. In eleventh pullanda, it was found containing one pair of earrings yellow in colour, one chain yellow and silver in colour, Ex. A12 (colly). Witness identified the same as recovered from accused Surender. In twelfth pullanda, it was found containing one ring in yellow colour, Ex. A13. In thirteenth pullanda, it was found containing one locket with initial of OM in Hindi in yellow colour, Ex. A14. In fourteenth pullanda, it was found containing one buttondar knife, Ex. A15. Witness correctly identified that the same was recovered from accused Vishal. In fifteenth pullanda, it was found containing one camera in black colour make Canon with initial SM111, Ex. A16.) IO ASI Jai Bhagwan recorded his statement u/s 161 Cr.P.C.
22. In his cross examination PW 5 stated that he along with other team members reached at the spot at about 03:30 - 03:45 PM. Accused Surender and others were apprehended at about 04:15 PM. At the spot, nothing was recovered from the possession of accused Surender (vol. he was riding motorcycle). Later on at the instance of accused Surender, few articles were recovered from the house of accused Surender. He along with ASI Jai Bhagwan reached at the house of Surender at about 07:00 - 07:30 PM. He do not remember whether notice was served to any public person by the IO before entering the house of accused Surender. He do not remember whether IO got conducted any photograph of house of accused Surender from where stolen articles were recovered. They left the PS at about 06:30 PM on Govt. vehicle, however, he do not remember the DD no. for arrival and departure FIR No.: 477/2001 State versus Nizam & Ors. Page No. 11 of 23 for the same. He denied that he never visited the house of accused Surender as no notice was served to any witness nor he can tell any DD no. for the arrival and departure or nothing was recovered from the possession of accused Surender or that stolen articles were implanted on accused Surender or that all the investigation by the IO was done while sitting at PS or that accused has been falsely implicated in the present case or that he is deposing falsely.
23. SI Jai Bhagwan was examined as PW6. He stated that on 21.06.2001, he was posted as ASI, Special Staff, Tagore Garden. On that day, upon receiving information through Inspector JL Meena regarding apprehension of accused persons and present case was marked to him. After that, he reached at the spot i.e. Near Bhatia Farm House, Vikas Nagar, Uttam Nagar where he met SI Satender Vashisht who handed over him all the relevant documents prepared by him regarding the case and accused apprehended by him. He recorded statement of SI Satender Vashisht u/s 161 Cr.P.C. In between, Ct. Ravish came at the spot who went for registration of FIR and handed over him copy of FIR and original rukka already Ex. PW-1/E prepared by SI Satender Vashisht. After that, he prepared site plan at the instance of SI Satender Vashisht and in the presence of other police staff already Ex. PW- 1/F bearing his signature at point A. After that, he arrested the accused person Surender, Nizam, Vishal @ Sonu and after that, he personally search the accused Surender vide memo Ex. PW-6/A bearing his name at point A, accused Sonu @ Vishal vide memo Ex. PW-6/C bearing his name at point A and accused Salim @ Nizam vide memo Ex. PW-6/D bearing his name at point A, recorded disclosure statement of accused Vishal already Ex. PW- 5/C bearing his signature at point A, accused Nizam already Ex. PW-5/A bearing his signature at point A, accused Surender already Ex. PW-5/B FIR No.: 477/2001 State versus Nizam & Ors. Page No. 12 of 23 bearing his signature at point A. After that, he recorded statement of witnesses u/s 161 Cr.P.C. and went to PS along with accused persons and case property and submitted the case property at malkhana. After that he arrested accused Narender in the presence of Ct. Bachchu Singh who was jeweller and two gold bangles were recovered from him, same was seized vide already Ex. PW-5/D bearing his signature at point A and personally searched the accused vide memo Ex. PW-6/B bearing his name at point A. During investigation, at the instance of accused Nizam, several articles of gold and silver were recovered which he has stolen and same was seized by him vide seizure memo already Ex. PW-5/E (colly) bearing his name at point B. During investigation, at the instance of accused Surender, several articles of gold and silver were recovered which he has stolen and same was seized by him vide seizure memo already Ex. PW-5/F bearing his name at point B. During investigation, at the instance of accused Vishal, several articles of gold and silver were recovered which he has stolen and same was seized by him vide seizure memo already Ex. PW-5/G bearing his name at point B. He can identify the accused persons. Accused Surender is present and correctly identified by the witness. He can identify the case property, if shown to him. Ld. counsel for accused Surender submits that case property is not disputed as same is already exhibited in the statement of PW-1 and PW-5. During investigation, he recorded statement of witnesses' u/s 161 Cr.P.C.
24. In his cross-examination PW 6 stated that he reached at the spot at about 07:15 PM. He left the spot at about 09:00 PM. (At this stage, witness is asked to go through the file and tell whether arrest memo for accused Surender is placed on record or not.) Witness after going through the file states that arrest memo for accused Surender is not placed on file. It is wrong to suggest that accused Surender was never arrested by him as there is no arrest memo FIR No.: 477/2001 State versus Nizam & Ors. Page No. 13 of 23 placed on record regarding the arrest. On same day, later on at the instance of accused Surender, few articles were recovered from the house of accused Surender i.e. at V-3, Uttam Nagar. He along with other staff members namely SI Raj Kumar, ASI Kanwar Pal, HC Mukesh, HC Raj Singh, Ct. Bachchu Singh, driver Harish and Ct. Ravish reached at the house of Surender at about 11:00 PM. No notice was served to any public person by him before entering the house of accused Surender. No photograph of house of accused Surender and stolen articles recovered from him was taken. They left the PS at about 10:30 PM on Govt. vehicle, however, he do not remember the DD no. for arrival and departure for the same. He denied that he never visited the house of accused Surender as no notice was served to any witness nor he can tell any DD no. for the arrival and departure or nothing was recovered from the possession of accused Surender or that stolen articles were implanted on accused Surender or that all the investigation by him was done while sitting at PS or that accused has been falsely implicated in the present case or that he is deposing falsely.
25. The prosecution evidence was closed and thereafter the statement of accused Surender u/s 313 CrPC r/w Section 281 CrPC was recorded on 11.07.2024 wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was falsely implicated in this present case. That he is innocent and all the witnesses deposing against him are interested witnesses. The accused chose not to lead any evidence in his defence.
26. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused has committed the offences for which he has been charged with. He has thus, submitted that the prosecution has proved its case FIR No.: 477/2001 State versus Nizam & Ors. Page No. 14 of 23 beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
27. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
28. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court
29. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
30. Now, the accused Surender has been charged under Section 482, 488, 489, 411, 174A IPC and Section 103 Delhi Police Act. It is pertinent to take note of the abovesaid Sections along with their connected Sections which are as under:
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 15 of 23
482. Punishment for using a false property mark.--Whoever uses any false property mark shall, unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
481. Using a false property mark.--Whoever marks any movable property or goods or any case, package or other receptacle containing movable property or goods, or uses any case, package or other receptacle having any mark thereon, in a manner reasonably calculated to cause it to be believed that the property or goods so marked, or any property or goods contained in any such receptacle so marked, belong to a person to whom they do not belong, is said to use a false property mark.
487. Making a false mark upon any receptacle containing goods.--Whoever makes any false mark upon any case, package or other receptacle containing goods, in a manner reasonably calculated to cause any public servant or any other person to believe that such receptacle contains goods which it does not contain or that it does not contain goods which it does contain, or that the goods contained in such receptacle are of a nature or quality different from the real nature or quality thereof, shall, unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
488. Punishment for making use of any such false mark.--
Whoever makes use of any such false mark in any manner prohibited by the last foregoing section shall, unless he proves that he acted without intent to defraud, be punished as if he had committed an offence against that section.
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 16 of 23
489. Tampering with property mark with intent to cause injury.
--Whoever removes, destroys, defaces or adds to any property mark, intending or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.]
479. Property mark. --A mark used for denoting that movable property belongs to a particular person is called a property mark.
411. Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
103. Possession of property of which no satisfactory account can be given.- Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Metropolitan Magistrate, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees, or with both.
Section 482 r/w 488 and 489 IPC
31. Section 482 r/w 488 and 489 IPC has been invoked against the accused Surender qua the motorcycle bearing no DL 9S F 8639 wherein the accused had changed the number plate and used a false number plate (property mark) along with tampering the original number plate (property mark). Thus, in order to establish the charges under Section 482, 488 and 489 IPC, the prosecution is burdened with the task of establishing that the accused has FIR No.: 477/2001 State versus Nizam & Ors. Page No. 17 of 23 used false property marked and have tampered with a mark. The prosecution, qua the abovesaid charges, have failed to examine any other witness except the IO Inspector Satender Vashisht PW 1 in the present matter who merely deposed that on checking of engine and chasis no of the motorcycle was found to be fake. No witness from the concerned transport authority was examined by the prosecution. In fact, there exists only a statement of PW 1 that engine and chasis no of the motorcycle was found to be fake and no documents whatsoever was ever brought during the course of the trial to establish as to in what manner the abovesaid conclusion was arrived at. Also, the actual owner of the vehicle was not examined. Thus, the prosecution has failed to establish the offence under Section 482 r/w 488 and 489 IPC for want of necessary evidence to establish that the accused Surender has created or used a false property mark and that the engine and chasis no. of the motorcycle allegedly recovered from him was false.
32. The accused Surender, therefore, is hereby acquitted of the offence charged, i.e., Section 482 r/w 488 and 489 IPC.
Section 411 IPC and 103 Delhi Police Act.
33. The accused Surender has also been charged for the offence under Section 411 IPC for receiving stolen property. The alleged stolen property includes a motorcycle bearing no DL 9SF8639 and some stolen articles which were recovered from his house as per seizure memo Ex PW 5/F, Ex A11 and Ex A12.
34. So far as stolen motorcycle is concerned the prosecution has not examined the owner of the motorcycle to which the alleged stolen motorcycle belonged. Thus, the prosecution at the very first instance had failed to establish the motorcycle which was being allegedly driven by the accused Surender to be a stolen motorcycle. Some articles including jewellery were FIR No.: 477/2001 State versus Nizam & Ors. Page No. 18 of 23 also recovered at the instance of the accused Surender from his house. In order to establish the same to be stolen the prosecution examined two witnesess i.e. PW 2 and PW 4.
35. Sh Balwan was examined as PW 2 to establish the property recovered at the instance of the accused Surender to be stolen. However, this witness categorically stated that he do not know anything about the present case and he do not want to say anything. He also stated that the case property recovered in the present case does not belong to him and that his statements are related to his other case FIR No 32/01 and there is no relevancy between the present case and Ex PW2/A. Thus, PW 2 did not supported the case of the prosecution at all.
36. Similarly, Smt Darshana was examined as PW 4 for establishing that the property recovered form the accused Surender is a stolen property. PW 4, however, failed to identify the accused Surender. Further, PW 4 never stated in her testimony that the property which was recovered at the instance of the accused Surender from his house belonged to her.
37. The prosecution in order to establish offences under Section 411 IPC and 103 Delhi Police Act has been casted with an additional burden to prove recovery of alleged vehicles from accused and also that same were stolen property. Same is sought to be proved by the recovery memo and testimony the witnesses.
38. It has been held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) FIR No.: 477/2001 State versus Nizam & Ors. Page No. 19 of 23 RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
39. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of vehicles makes the prosecution version highly doubtful. Record shows that the stolen property had been recovered at the instance of the accused Surender from his house. PW 5 and PW 6 were the police officials who went along with the accused Surender to his house and the alleged stolen properties were recovered from his house. PW 5 in his cross examination stated that he do not remember whether any notice was served on any public person by the IO before entering the house of the accused Surender. PW 6 IO categorically in his cross examination stated that no notice was served to any public persons by him before entering the house of the accused Surender. Thus, the abovesaid reflects seriously upon the veracity of the prosecution version and creates a doubt about recovery of the stolen articles as well as the motorcycle in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
40. Accordingly, the prosecution has failed to establish the offence under Section 411 IPC and Section 103 Delhi Police Act for want of necessary evidence. The accused Surender, therefore, is hereby acquitted of the offence charged, i.e., Section 411 IPC and Section 103 Delhi Police Act. Section 174A IPC
41. As has already been noted above the accused Surender was declared proclaimed absconder and thereafter was arrested. Charges under Section 174A IPC were also framed against him. The prosecution in order to establish the said charge examined PW 7. PW 7 who executed the process under Section 82 CRPC.
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 20 of 23
42. At this stage it is apposite to note that to hold a person guilty of offence punishable under Section 174A of the Indian Penal Code it is sine qua non that he fails to appear at the specified place and the specified time as required by a proclamation published under Section 82 sub-section (1) of CRPC. Sub-section (1) of Section 82 Cr.P.C. reads as follows:
(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
43. Further Sub-section (2) of Section 82 of CRPC, which prescribes the manner in which the proclamation under Sub-section (1) of Section 82 of Cr.P.C. is to be published, reads as follows:
(2) The proclamation shall be published as follows:
(i) (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) It shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) A copy thereof shall be affixed to some conspicuous part of the Court house;
(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
44. Thus, in order to establish charge under Section 174A IPC the prosecution has to establish that the process under Section 82 CRPC has been duly complied with.
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 21 of 23
45. In the present matter, the process under Section 82 CRPC was executed by PW 7. He stated that he was appointed the process server and went to the address of the accused and thereafter he affixed the copy of the proclamation outside the address and other copy was affixed at the notice board of the concerned Court. However, PW 7 in his cross examination categorically stated and affirmed that no photograph has been placed on record by him which shows that the notice was affixed at some conspicuous part of the Court House. Further, no photographs have been placed on record by the prosecution which could show that the proclamation was publicly read in some conspicuous part of the place where accused Surender resided.
46. Thus, as can be noticed the process server did not execute the process under Section 82 CRPC as per the procedure which has been prescribed under Sub- section of Section 82 CRPC. It remains unproven whether he pasted/affixed the proclamation on the notice board of the concerned Court. It also remained unproven whether the proclamation was publicly read for want of public persons in whose presence the same was read. No public persons in whose presence the proclamation issued was read has been examined by the prosecution or has been made a witness.
47. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all (Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422, Nazir Ahmad v. King Emporer, AIR 1936 Privy Council 253 and Taylor v. Taylor, (1875) 1 Ch D 426). In the present case the proclamation under Section 82 of Cr.P.C. against the accused Surender was neither issued as per law nor published as per law, thus the prosecution has failed to prove its case against the accused Surender.
FIR No.: 477/2001 State versus Nizam & Ors. Page No. 22 of 23
48. Thus, in view of the above discussion, the prosecution has also failed to prove the case beyond reasonable doubt against the accused Surender qua offence under Section 174A IPC. The accused, namely Surender, therefore, is hereby acquitted of the offence charged, i.e., u/s 174A IPC.
Digitally signed by HARSHAL HARSHAL NEGI
Announced in the open court on 21.10.2024.NEGI Date:
2024.10.21
16:43:15 +0530
(Harshal Negi)
JMFC-02/Dwarka Court,
New Delhi, 21.10.2024
It is certified that the present judgment runs into 23 pages and each Digitally signed by page bears my signature. HARSHAL HARSHAL NEGI NEGI Date: 2024.10.21 16:43:20 +0530 (Harshal Negi) JMFC-02/Dwarka Court, New Delhi, 21.10.2024 FIR No.: 477/2001 State versus Nizam & Ors. Page No. 23 of 23