Delhi District Court
State vs . Saleem @ Mahender Etc on 12 May, 2011
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IN THE COURT OF MS. VANDANA JAIN, MM08
WEST DISTRICT, TIS HAZARI COURT
State Vs. Saleem @ Mahender etc
FIR No.147/93
PS: Kirti Nagar
U/S: 380/411 IPC
Sr. no. of the case : 1140/1
Date of commission of offence : 05.05.93
Date of institution of the case : 01.07.94
Name of the complainant : Prem Nath s/o Gomesh
Dass r/o E83,
M.S.Garden, Delhi
Name of accused and address : 1. Saleem @ Mahender
s/o Mohd. Safira r/o
Village Dorad Bhed,
Thana Chandas,
Aligarh (U.P)
2. Dilshad @ Dalbir s/o
Basir r/o New Basti,
Islamabad Idgah road,
Khurja, Thana khurja
Dehad, Bulandshar,U.P.
3. Jagan s/o Sikand r/o
Village Ishnanpur,
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Khurjadehad,
Bulandshar, U.P.
(Expired)
Offence complained of or proved : U/S 380/411 IPC
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date of judgment : 12.05.2011
J U D G M E N T:
1. Brief facts of the prosecution story is that on 13.05.94 at House No. F4/180, Chobara Sultan puri, Delhi all the three accused persons namely Saleem, Dilshad and Jagan (since deceased) were found in possession of one Tape Recorder make Sanyo Auto Stop Mechanism with one speaker in running condition belonging to Sh. Premnath knowing or having reason to believe that such property was stolen property.
2. Charge u/s 411/34 IPC was framed against all the the accused person on 20.09.94 to which the accused persons pleaded not guilty and claimed trial.
3. Prosecution has cited 10 witnesses in support of its case and out of them 7 witnesses have been examined.
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4. PW1 Premnath has deposed that on 05.05.93 there was a marriage anniversary of his son Sudhir. He further deposed that at about 11 am they went for shopping to purchase some gift items when they came back at about 1 pm in the house , they found that the locks of house were broken and house hold articles were scattered . He further deposed that he found that two finger rings, one wrist watch, one tape recorder and Rs. 30,000/ were found missing. He further deposed that they called the police officials and police recorded his statement. He further deposed that police recorded his statement. He further deposed that police called him at PS when his articles were recovered where police showed one Tape recorder to him which he identified the same which was stolen from his house. He further deposed that he got released the tape recorder on superdari.
5. He was cross examined by the ld. defence counsel wherein he deposed they they went to Chandni Chowk for shopping and it is approx. 11 km from his house and took half an hour to reach Chandni Chowk. He further deposed that it took one hour in shopping in Chandni Chowk. He further deposed that his statement was recorded in his house on same day at about 2:30 3PM. He further deposed that he do not remember the date and time when police informed him regarding the recorvery of tape FIR NO. 147/93 State vs Saleem @ Mahender etc 3/9 4 recorder.
6. PW2 ASI Chet Ram is the duty officer and has proved the copy of FIR.
7. PW3 HC Rajkumar has deposd that on 05.05.93 HC Paramjeet Singh received a DD no. 21 B on which he alongwith HC Paramjeet Singh reached at E83, M.S.Garden where one Prem Nath met them who made his statement. He further deposed that rukka was prepared and same was handed over to him for registration of FIR. He further deposed that after registration of FIR he returned back over the spot with copy of FIR and handed over the same to HC Paramjeet Singh. He further deposed that IO prepared the site plan at the instance of the complainant. He further deposed that IO recorded his statement.
8. PW4 ASI Paramjeet Singh has deposed on the same lines of PW3 Ct. Raj Kumar.
9. Pw5 Retd. SI Ram Saran has deposed that on 01.06.93 he received the case file for investigation. He further deposed that on 14.05.94 he received an information vide DD No. 35 A from PS Paschim Vihar. He further deposed that the accused Salim @ Mahender, Jagan and Dilshad were arrested in case FIR no. 299/91 PS Paschim Vihar u/s 411/454/380/34 IPC. He further deposed that they made a disclosure FIR NO. 147/93 State vs Saleem @ Mahender etc 4/9 5 statement regarding the present FIR and they got recovered the stolen property on which he reached at PS Paschim Vihar. He further deposed that he received some necessary documents from SI Zile Singh and he recorded the statement of SI Zile Singh and case property regarding the present case from MHC(M). He further deposed that later on he prepared the challan and recorded the statement of PWs. MHC(M) produced the case property i.e stereo with two speaker and correctly examined by the witness.
10. PW6 Retd. SI Zile Singh has deposed that on 13.05.94 he was posted at PS Paschim Vihar. He further deposed that he alongwith HC Devender Singh, Ct. Balraj, Ct. Khushi Ram were on patrolling duty at Jwalahedi, Paschim Vihar at about 1 PM. He further deposed that one secret informer informed him that one Salim who is involved in number of case would come from the side of Piragarhi chowk and will go to Paschim Vihar. He further deposed that he constituted the raiding party and asked passerby to join the investigation but none turned up . He further deposed that they reached at Tpoint Ashwani Marg. He further deposed that at about 1:30 PM the accused Salim, Jagan, Dilshad was apprehended and another person escaped from the spot. Two accused persons namely Salim and Dilshad correctly identified by witness. He FIR NO. 147/93 State vs Saleem @ Mahender etc 5/9 6 further deposed that accused persons were formally searched and in the search of accused Jagan and Salim, iron rod was recovered from each of the accused persons. He further deposed that one Titan make watch was recovered from Salim and one golden ring from Jagan (Since deceased). He further deposed that during interrogation they confessed that they committed theft at E83, M.S.Garden, Delhi on 05.05.93. He further deposed that the accused person Dilshad, Salim and Jagan (since deceased) pointed out the house no. 4/180, Sultanpuri, first floor and got recovered one tape recorder alongwith one speaker. He further deposed that the said tape recorder was taken into possession . He further deposed that he recorded the statement of witnesses and information was given to PS Kirti Nagar regarding the recovery of stereo. He further deposed that his statement was recorded by SI Ram Saran. Case property i.e. one tape recorder with two speaker were produced by the superdar and correctly identified by the witness.
11. Pw7 SI Subh Ram has deposed that on 13.06.94 he was MHC (M) and he joined the investigation alongwith ASI Ram Saran and Prem Nath. He further deposed that one Prem Nath identified the tape recorder in his presence which was recovered in case FIR no. 299/91 PS Paschim Vihar.
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12. Statement of accused persons U/S 313 Cr.P.C has been recorded in which they have stated that all the allegations leveled upon them are false and fabricated and they further stated that they did not wish to lead any defence evidence.
13. I have heard arguments advanced by Ld. APP for the State and learned counsel for the accused. I have also perused the record carefully.
14. In the present case, since the theft was committed by unknown person and no clue of accused persons could be found, only charge u/s 411/34 IPC was made against the accused Saleem , Dilshad and Jagan and Jagan had expired during the trial of present case.
15. The charge u/s 411 IPC was framed as recovery was of tape recorder was alleged to be effected from them.
16. To hold the person guilty u/s 411 IPC it is necessary that the property recovered from the possession of the accused must be stolen property.
17. The story of prosecution is that after recovery of tape recorder from accused persons, complainant was called in the police station and was made to identify the same and he correctly identified the same.
18. Perusal of the record shows that no documentary proof regarding the ownership of tape recorder of the complainant has been placed on FIR NO. 147/93 State vs Saleem @ Mahender etc 7/9 8 record.
19. The tape recorder had been released to the complainant without getting any order from court. Further the complainant in his cross examination sated that he do not remember the make of tape recorder, whereas the same has been mentioned in the original rukka. Even the judicial TIP of case property was not conducted.
20. Accordingly, it is not proved beyond doubt, that the tape recorder alleged to have been recovered from possession of accused persons in the stolen property.
21. As far as the question of recovery of case property from accused persons is concerned, same was recovered by ASI Zile Singh from PS Paschim Vihar in presence of HC Davinder Singh and Ct. Balram. Both the recovery witness i.e. HC Davinder and CT. Balram has not been examined. Hence, testimony of ASI Zile Singh has remained uncorroborated.
22. Moreover, from the statement of ASI Zile Singh, it is found that the case property was not sealed by him and this fact has not been explained. Even the IO SI Ram Saran of the present case did not seal the case property after taking the same from PS Paschim Vihar. Hence, chances of tampering with the property cannot be ruled out. The FIR NO. 147/93 State vs Saleem @ Mahender etc 8/9 9 testimony of SI Zile Singh alone is not sufficient to prove that the tape recorder was recovered from the possession of accused person and moreover, it has also not been proved that tape recorder is a stolen property. The guilt of accused persons u/s 411 IPC it not proved beyond the reasonable doubt. Hence, all the accused persons in the present matter are acquitted for the charge framed for the offence u/s 411/34 IPC.
Announced in the open (Vandana Jain)
court on 12.05.11 MM08/West/Delhi
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FIR No: 147/93
PS: Kirti Nagar
12.05.2011
Present: Ld. APP for the state
Accused Saleem and Dilshad are present with counsel Proceedings against the accused Jagan have already been abated.
Vide separate judgment, accused is acquitted. Surety stands discharged. Original documents if any be returned after cancellation of endorsement. File be consigned to record room.
Vandana Jain
MM08/West/Delhi
29.06.2010
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