Delhi District Court
State vs Rahman Etc on 23 October, 2018
THE COURT OF SH. BABRU BHAN
METROPOLITAN MAGISTRATE -07, CENTRAL,
ROOM NO. 345, TIS HAZARI COURTS, DELHI
STATE
VERSUS
RAHMAN ETC
CASE NO. 287364/2016
FIR No. 158/13
P.S- SUBZI MANDI
U/S- 454/380/411/34 IPC
1.Date of commission of offence: 10.08.2013
2. Name of the Complainant : DEVENDER CHAUDHARY, S/o- Late Chander Singh, R/o- M4/6, 1st Floor, Model Town-III, Delhi.
3. Name of the accused, and (1) RAHMAN his parentage and residence: S/o- Mohd Kasim R/o- H.No. 1034, Gali No. 16, Chauhan Banger, Delhi.
(2) NARESH S/o- Sh. Ram Chander, R/o- H.No. 110/224, Double Storey, New Seelampur, Delhi.
4. Date when judgment : 15.10.2018 was reserved
5. Date when Judgment : 23.10.2018 was pronounced
6. Offence Complained of : Section 454/380/411/34 IPC or proved
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Accused Rehman convicted for the offence U/s 411 IPC.
Accused Naresh acquitted.
Brief Statement of reasons for the decision of the case:
1. The case prepounded by the prosecution is that on 10.08.2013, ASI Yogesh Kumar PW7, Ct Yogesh Nagar PW6 and ASI Chiddha Singh PW3 were on patrolling duty at the premises of Tis Hazari Courts complex vide DD No. 6 Ex. PW5/A. At about 2.00 pm, when they reached near Chamber No. 518, Western Wing, Tis Hazari, Delhi, they saw three boys carrying an air conditioner. On seeing the police party, they put the air conditioner down and started running. They were chased and apprehended. On inquiry, they revealed their names as Rehman, Naresh and Jony (assumed named being JCL). Accused Rehman was carrying a bag which found containing two rods and one hammer. Accused Naresh was having cloth containing plier and screwdriver. The lock of the gate of Chamber No. 518, Western Wing which was situated nearby was found broken. IO telephonically called the occupant of the chamber namely Devender Chaudhary PW2. ASI Yogesh Kumar PW7 recorded the statement Ex. PW2/A of Devender Chaudhary and prepared rukka Ex. PW7/A. Rukka was handed over to Ct Yogesh PW6 for registration of FIR. On the basis of the rukka, ASI Chander Pal Singh PW4 registered FIR Ex. PW4/A and endorsed the rukka at Ex. PW4/B.
2. Criminal law was set into motion after registration of FIR. The accused persons were arrested and personally searched vide memos Ex.
PW2/B to Ex. PW2/E. ASI Yogesh Kumar PW7 recorded the disclosure statement of accused vide memo Ex. PW3/C and Ex. PW3/D. On completion of investigation, police presented the charge-sheet accusing the accused Rehman and Naresh for the offences U/s 454/380/411/34 IPC.
3. Both accused persons have been formally charged for the offences they were charge-sheeted. They have pleaded not guilty and claimed trial.
4. To prove its case, prosecution has examined 07 witnesses. For the sake of brevity, I would not repeat the details of the testimonies of those witnesses who have deposed the narratives of their formal role played by them in the process of investigation as the brief overview of the same has already been given in the forgoing discussion.
5. Lakhanpal PW1 was posted as clerk in Delhi Bar Association. Upon a notice given by the IO, he provided the ownership details of Chamber No. 518, Wester Wing, Tis Hazari Courts to the IO. His reply given to the IO is Ex. PW1/A. He also produced the original records regarding the occupant of Chamber No. 518, Western Wing, Tis Hazari Courts. The attested copy of the same is Ex. PW1/B.
6. Devender Chaudhary PW2 has deposed that on 08.08.2013, he had left the Chamber No. 518, Wester Wing, Tis Hazari Courts after locking the same. On 10.08.2013 at about 12.00 pm, he received call from PP- Tis Hazari on mobile No. 9868720717 that lock of his chamber has been broken and air conditioner installed there has been stolen. The witness reached PP- Tis Hazari and found two persons sitting there. He was told that they were the persons who were caught red handed with the air conditioner. This witness identified his air conditioner. Same was seized vide Ex. PW2/F. Thereafter, accused persons were arrested in his presence. During cross-examination by Ld APP for the State, this witness admitted that upon receiving phone call, he came near chamber and found that lock of his chamber was broken and air conditioner of the chamber was removed and that IO had apprehended the accused persons. He further stated that the air conditioner was recovered from the accused persons. The accused were two in number.
7. ASI Yogesh Kumar PW7 is the IO of the case. On the date of occurrence, he was on patrolling duty alongwith Ct Yogesh PW6 and HC Chiddha Singh PW3. He has arrested the accused and recovered the property. The details of his testimony has already been given in the opening paragraph of this judgment. The details of the same can be eschewed for the sake of bravity.
8. Ct Yogesh PW6 and HC Chiddha Singh PW3 were accompanying ASI Yogesh Kumar PW7 during his initial investigation and they are attesting witnesses of the memos prepared by the IO.
9. In their statements recorded in terms of Section 313 r/w 281 Cr.P.C, accused Naresh denied the correctness of the case of the prosecution. He tendered the explanation that he was a junk dealer and on the day of incident, he was taken to PP- Tis Hazari where he was given beatings and police officials forcibly got prepared false documents and falsely implicated him.
The explanation putforth by accused Rehman says that he was working as Munshi of Arun Shram Advocate. He alongwith Jonny (real name withheld to conceal identity) came to the Court to take office file when two police officials in civil uniform came and inquired about purpose of their visit. They told them that they had came to take office file. Thereafter, they were taken to PP- Tis Hazari for verification and falsely implicated. No defence evidence has been lead by the accused persons.
10. To prove the allegations against the accused persons, the prosecution must proved the following circumstances:
i. Accused persons had broken the lock of the Chamber No. 518, Western Wingh, Tis Hazari Courts, belonging to the complainant Devender Chaudhary ii. After breaking the lock, they had stolen the air conditioner and they were subsequently found in the possession of the stolen air conditioner.
11. To prove the aforesaid circumstances, the prosecution has primarily relied upon the statement of ASI Yogesh Kumar PW7, HC Chiddha Singh PW3 and and Ct Yogesh PW6. ASI Kaptan Singh PW5 has deposed that on 10.08.2013, he was working as DD writer at PP- Tis Hazari from 8.00 am to 4.00 pm. On that day, he made departure entry Ex. PW5/A of HC Chiddha Singh, Ct Yogesh PW6 and ASI Yogesh Kumar PW7. ASI Yogesh Kumar PW7 has deposed that on 10.08.2013 at about 2.00 pm, when they reached near Chamber No. 518, Western Wingh, Tis Hazari Courts, they saw three boys were carrying an air conditioner holding it from three sides. On seeing the police party, they put the air conditioner down and started running away. They were chased and apprehended. One of them was juvenile, thus, separate proceedings were conducted against him. On checking, accused Rehman was found carrying two rods and one hammer. Accused Naresh was found carrying two screwdrivers and one plier. Chamber No. 518 was situated nearby and lock of the same was found open and air conditioner was missing. The iron rod and the hammer was seized vide memo Ex. PW3/A. The plier and screwdriver were also seized vide memo Ex. PW3/B. The air conditioner was seized vide memo Ex. PW2/F.
12. HC Chhidha Singh PW3 and Ct Yogesh PW6 have also deposed in sync with ASI Yogesh Kumar PW7. PW3 and PW6 are attesting witness to arrest and personal search memo of accused Rehman and Naresh vide memos Ex. PW3/A and Ex. PW3/B and Ex. PW2/B and Ex. PW2/C. Devender Chaudhary PW2 has also deposed that on receiving a call, he reached the spot where he found that lock of his chamber was broken and air conditioner installed in the same had been removed. The police had arrested two persons. Devender Chaudhary PW2 is also attesting witnesses to the arrest and personal search of both accused persons.
13. When the testimonies of police witnesses and complainant Devender Chaudhary are perused, they reveal some inconsistencies. Devender Chaudhary PW2 has deposed that he had reached the spot at about 12.00 pm. He saw that police had arrested two persons. He remained at the spot for about 1- 1 ½ hours. The arrest memo and personal search memo of the accused persons were signed by him.
During cross-examination, he stated that thereafter, he never joined the investigation of the case. Thus, as per the version of the complainant, on 10.08.2013, at about 1-2 pm, police had arrested both the accused persons in his presence.
14. The story of police is altogether different on some major factual aspects. First is the time. As per police, they had reached the spot at 2.00 pm and saw the accused persons with an air conditioner which was subsequently found to be stolen from a nearby chamber NO. 518. The owner of the chamber was informed and accused were arrested. Memo of arrest would show that accused persons were arrested at 8.00 pm on 10.08.2013. So, as per complainant, arrest was effected in afternoon whereas the police says that it was at 8.00 pm night.
15. Second major contradiction pertains to number of accused persons. Police says that three persons including a juvenile were apprehended. Whereas, the complainant has not even whispered about the presence of the juvenile. In his Court statement, he has talked about arrest of two persons only.
16. Further, it is apparent from the Court statements of police witnesses that all the memos were prepared in presence of the complainant. The arrest and personal search memos of both the accused persons Ex. PW3/A and Ex. PW3/B, Ex. PW2/A and Ex. PW2/B and the seizure memo of air conditioner Ex. PW2/F bears the signature of complainant Devender Chaudhary PW2. But surprisingly, the seizure memo of hammer and iron rod Ex. PW3/A and seizure memo of plier and screwdriver Ex. PW3/B are not bearing the signature of the complainant. When all the seizure memos were prepared in presence of the complainant, nothing had prevented the IO from obtaining the signature of the complainant on the aforesaid two seizure memos also.
As per the case of the prosecution, the lock of the nearby chamber was found broken. The equipments allegedly used for breaking the lock were seized from the accused persons but the lock was not seized for unknown reasons. The keys of the lock were also not seized from the complainant.
17. When the contradictions noted above are seen in light of the explanations furnished by the accused persons in their statements recorded in terms of Section 313 Cr.P.C, the entire picture becomes clear. In his statement U/s 313 Cr.P.C, accused Rehman has stated that he was working as a clerk with an advocate. On the date of incident, he alongwith one 'Jonny' (assumed name to conceal the identity of the juvenile), had come to the court to take a file. When they were present in the Court premises, police took them to PP- Tis Hazari and falsely implicated in this case.
18. So, accused Rehman has not disputed that on 10.08.2013, he had come to Tis Hazari Court with Jonny and they were apprehended by the police. Now, the question is whether they were falsely implicated in this case or the explanation furnished above has received any acceptable corroboration from any corner. In considered opinion of this Court, the explanation furnished by the accused has not explained that which file he had came to take. The advocate who had allegedly instructed him to take the file has not been examined as witness. Further, no one implicate anyone without any motive. The motive for alleged false implication has not been elaborated. It is not the case of accused Rehman that he had any emnity with the police official or the IO for which he was falsely implicated. Thus, the accused Rehman has failed to corroborate his alleged defence of false implication.
19. The fact that only accused Rehman and Jonny were present that at the spot is further corroborated by the Court statement of complainant PW2 who has stated that only two persons were arrested alongwith the air conditioner.
20. Thus, upto this stage, it stands proved that accused Rehman and Jonny were present at the spot alongwith the air conditioner. The issue as to whether they had committed house breaking in the house of the complainant or not would be taken up at subsequent stage. First I proceed to decide the role of accused Naresh.
21. In his statement U/s 313 Cr.P.C, accused Naresh has pleaded the defence that he was a junk dealer and he was picked up from his home. Accused Rehman, in his disclosure statement had disclosed that he used to sell the stolen air conditioner to a junk dealer Naresh.
22. So, the real picture which emerges is that on the date of incident, accused Rehman and juvenile Jonny were arrested with the air conditioner. This fact is supported by the Court statement of the complainant PW2. In his disclosure statement, accused Rehman told the police about junk dealer Naresh. Naresh was most probably apprehended from his house, this process consumed some time and that is the reason that time of arrest is shown as 8.00 pm in the night. Nothing was recovered from his possessions. Since, the disclosure was probably not sufficient to connect him with the crime, so he was shown on the place of recovery.
23. The story of lock breaking also appears to be concocted. If lock was found broken, the IO should have seized the broken lock and obtained the keys from the owner of the chamber. But no such steps were taken by him. The seizure memos of the house breaking equipments are not bearing the signatures of the complainant Devender Chaudhary PW2. This fact indicates towards the possibility that the story of lock breaking was concocted subsequently and the equipments were planted, otherwise nothing had prevented the IO from obtaining the signatures of the complainant on the seizure memos of the equipments allegedly recovered from the accused persons.
24. The conclusion of the above discussion is that police had apprehended accused Rehman and juvenile Jonny alongwith air conditioner. They disclosed the removal of the air conditioner from nearby chamber. Devender Chaudhary PW2, the owner of the chamber was called. When Devender Chaudhary reached there, only two persons namely Rehman and Jonny were present. In disclosure statement, accused Rehman revealed the name of accused Naresh. Naresh was arrested from his place but nothing was recovered. The disclosure statement was not sufficient to proceed against Naresh, therefore, the story of house breaking was created. But same is not reliable because neither any broken lock nor any key was seized. The fact that the seizure memo of the house breaking equipments does not bear the signatures of the complainant also indicates that same were planted subsequently. Had the same been seized in the presence of the complainant, none had prevented the IO from obtaining the signatures of the complainant.
25. So, the prosecution has proved its case only to the extent that Rehman and Jonny were found in the possession of stolen air conditioner. The allegations of house breaking u/s 454 IPC and theft u/s 380 IPC are not established. The presence and arrest of Naresh from the spot is doubtful. So extending the benefit of doubt, accused Naresh is acquitted. Accused Rehman stands convicted for the offence U/s 411 IPC.
Digitally signed BABRU by BABRU BHAN
ANNOUNCED IN THE OPEN
COURT ON 23.10.2108 BHAN Date: 2018.10.30
12:18:05 +0530
(BABRU BHAN)
METROPOLITAN MAGISTRATE-07
CENTRAL/TIS HAZARI COURTS