Delhi District Court
State vs Mohd. Arif @ Raju on 11 March, 2010
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IN THE COURT OF MS KIRAN BANSAL
ADDL. CHIEF METROPOLITAN MAGISTRATE III: SOUTH DISTT.
PATIALA HOUSE COURTS :NEW DELHI
State v/s Mohd. Arif @ Raju
PS: Defence Colony
FIR No: 228/96
U/s: 454/380/411/34 IPC
JUDGMENT
a) Sr number of the case : 02403R0008791996
b) Date of commission of offence : 12.03.1996
c) Name of complainant , if any : Smt. Shankuntla Devi
W/o SH. Yoginder Singh
d) Name & address of accused : 1. Mohd. Arif @ Raju
S/o SH. Sahim Ali
R/o Jhuggi Sarai Kale Khan, Ring
Road, Near Jain Mandir (Already
declared as Proclaimed Offender vide
order dated 07.12.01)
2. Deep Chand @ Deepe
S/o SH. Shiv Narain
R/o H No. 28/68, Trilok Puri, Delhi
(Already Convicted vide order dated
07.12.01)
3. Mahesh
S/o SH. Tej Pal Singh
R/o 279 Church Lane, Bhogal New
Delhi.
4. Ganesh Kumar
S/o SH. Hari Chand
R/o 55 Church Road, Jungura Bhotal,
New Delhi.
e) The offence complained of : U/s 454/380/411/34 IPC
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f) The plea of accused : Pleaded not guilty.
g) Final order : Acquitted
h) The date when reserved for order : 05.03.2010
i) The date of such order : 11.03.2010
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:-
1. The facts of the present case have been disclosed in the complaint of the complainant that on 12.03.1996, at between 9:30Am to 6:00 PM at Cl.No. F 2/101 Andruse Ganj, all the accused persons in furtherance of their common intention committed house trespass with the intention to commit theft, and also committed theft of BPL Colour TV, Camera (Yashika), Two Walkman (Philips), one small radio (Transistor) Philips, belonging to the complainant Smt.Shakuntala and that on 18.09.1996, and 20.09.1996, at Ganesh Electronic Corner 21 Central Bhogal the accused Ganesh were found with the possession of the stolen BPL Colour TV, Camera, two walkman, and one small radio which he purchased from Arif, Mahesh and Deepa knowingly or having reasons to believe to be the stolen property and that the same was stolen on 12.3.1996.
2. On the complaint of the complainant FIR U/s 454/380/411/34 IPC was registered against the accused persons, investigation were carried out and challan was prepared and presented in the court after completion of the investigation.
3. Subsequent to the filing of the challan, cognizance was taken and the accused were summoned and they put their appearances before the court. The charge for offence U/s 454/ 380/34 IPC was framed against the accused persons namely Mohd. Arif @ Raju, Deep Chand@ Deepa, and Mahesh and the charge for the offence U/s 411 IPC was framed against the accused Ganesh, on 07.01.1997 to which the accused persons pleaded not guilty and claimed trial and hence the matter was thereafter listed for PE.
34. PW-1 Sm. Sakuntla who is the complainant herself, who deposed that on 12.03.1996, she left her house at about 9:00 AM from her work place, along with her husband, and after leaving her children in a private crache, and when she returned back at around 6:00 Pm, she saw that the lock of the main gate was broken and the door was closed from inside, and the door of her back side house was opened and when she entered in the house, she found all the articles scattered and saw that the lock of the front door was lying inside the house and also found that her Colour TV BPL, one transistor make philips, two walkman, one camera Yashika and her jewelery worth Rs 50,000/- consisting of one complete set of gold, golden chain of her son, gold pair of ear rings and, pajeb and kangan, ring of her and her husband made of silver and cloth along with the suit case were missing, and thus she went to her neighborhood house and informed the police and police recorded her statement ex. PW1/A and after about 6 months she came to know that some of her articles were recovered by the police, and she identified her articles including TV, Camera, Walkman and Radio and took these articles on superdari from the court vide superdarinama ex. PW1/B and the said articles are ex. P1 to P4. This witness was also cross examined by the Ld. Defence Counsel, whereby she stated that there is no specific mark of identification on the property and that she identified the same only because of the mark of manufacturing. She had produced the receipt of purchase of TV.
5. PW-2, HC Manoj Kumar, who deposed that on 17.09.1996, he along with SI Desh Raj were on patrolling duty and the accused Mohd. Arif was arrested in an Arms Act Case, and during the investigation he made his disclosure statement ex. PW2/A and thereafter, accused Deep Chand and Mahesh were arrested from Khankhan Park Nizamuddin on identification of Accused Mohd. Arif and their personal search conducted vide ex. PW2/B &C and their disclosure statement recorded vide ex PW2/D & E, and pointing out memo are ex. PW2/F to H and on production of the accused before the Court , one day PC remand was granted. He further stated that thereafter, the accused Ganesh was arrested on identification of 4 the accused persons and his personal search memo is ex. PW2/I and a BPL colour TV was recovered from his shop vide memo ex. PW2/J, and the case property was deposited in the Malkhana and that thereafter, on further PC remand of two days granted by the court, on 19.09.1996, VCR BPL, one Camera Yashika, a walkman and a transistor were recovered at the instance of accused Ganesh from 55 Church Lane Bhogal, and the VCR was taken into possession vide ex. PW2/K, camera and walkman and transistor were taken into possession vide memo ex PW2/ L and that the IO recorded his statement and this witness has correctly identified the case property as ex. P1 to P5. This witness was also cross examined by the Ld. Defence Counsel, whereby he stated that the he was not aware as to if the police officials of PS Sarojini Nagar and Shrinivaspuri had already arrested the brother of the accused Ganesh i.e. Rajesh Kumar on 12.08.1996 and further denied that they had already searched the premises of the Ganesh Electronic and has not found anything there.
6. PW-3, ASI Singh Raj, deposed that on 12.03.1996, on receipt of DD NO. 44 B, vide Mark As, regarding theft at F 2/101, Road No. 2 Andrews Ganj, he along with the Ct. Brij Mohan reached the spot where the complainant Shakuntla Deve met him and he recorded her statement and made endorsement on the same as ex. PW3/A and got the present case registered through Ct. Brij Mohan, for registration of FIR, and he prepared the site plan ex.PW3/B and recorded the statement of witnesses and thereafter, the investigation was transferred at AATS.
7. PW-4, Nanak Chand, Fingure Print Expert, who deposed that he received a telephone call from PS Defence Colony, regarding case FIR NO. 228/96, dated 12.03.1996, U/s 454/380 IPC, and he attend the seen of crime in the House No. F 2/101, Andrews Ganj in a Bulgary case, and that he developed three chance prints &Photographs on the steel box in which jewelery kept as Q1 to Q3 by grape order and exhibited his report as ex. PW4/A.
8. PW-5, Ct. Brij Mohan, who deposed that on 12.03.1996, on receipt of call regarding theft, he along ASI Singrai went to F 2/101 Andrews Ganj, and met the complainant Shakuntla Devi, and IO surveyed the area and recorded the statement of 5 the complainant and after endorsing the same, got the present case registered through him with the direction to bring the crime team on the spot and thus he returned back at the spot along with the crime team who lifted the fingure prints from the spot.
9. PW-6, HC Krishan Chander who has been examined being the duty officer and who has duly exhibited on record the copy of the present case FIR as ex. PW 6/A.
10. PW-7, SI Shivraj Singh, who has been examined being the Finger Prints Expert and who has duly exhibited on record his report as s ex. PW7/A and also stated that on comparison it was founds that the chance prints mark Q2 and Q3 are identical with left ring finger Mark S1 and Right Thum Mark S2 respective on the foger impression of Dipchand @ Deepa S/o Shivnarain .
11. PW-8, HC Dinesh Singh, who deposed that on 17.09.1996, he along with SI Desraj and other police persons in the investigation, and took accused Arif to Khankhana Nijamuddin park, who had pointed out accused Deepchand & Mahesh and also made disclosure statement ex. PW2/A and the accused Deep Chand and Mahesh were arrested in this case and their personal search conducted. He further stated that on 18.09.1996, all the three accused persons were taken to Bhogal for pointing out of site of theft and arresting co-accused Ganesh and accused Ganesh was arrested and his personal search memo ex. PW2/I and disclosure statement is ex. PW8/A and TV Make BPL was recovered from the shop of Ganesh vide Seizure memo ex. PW2/J and pointing out memo ex. PW2/F of accused Mohd. Arif and PW2/G at the instance of Accused Dipchand and PW2/H was prepared at the instance of accused Mahesh thereafter, all the accused persons were produced at Patiala House Courts and were remanded for one day PC remand and again on 19.09.1996, two days PC remand was granted by the Court against these accused persons and then one VCR, Two Walkman and Smal radio were recovered from Ganesh's house. And one camera was also seized and this witness identified the case property correctly. This witness was also cross examined by the Ld. Defence Counsel, 6 whereby he admitted that the recovery was affected from the accused Ganesh after remand was taken from the Court. He stated that he was not aware if it has come to the knowledge of IO that accused Dipchand had sold the colour TV on 12.08.1996 to one person of Sarojini Nagar or that if a case NO. 341/96 U/s 25 Arms act was registered against the said accused.
12. However, at the stage when the matter is listed for PE, the accused Dipchand pleaded guilty and thus was convicted vide order dated 07.12.01 and also as the accused Mohd. Arif had stopped appearing despite repeated processes issued against him , he was declared as proclaimed offender vide order dated 07.12.01, and thus the present case remains pending only in respect of accused Mahesh and Ganesh.
13. Thereafter, after the repeated opportunities no other PW could be examined before the court, and thus the PW was closed vide order dated 18.10.2004 and the matter was therefore, listed for the purpose of recording of Statement of accused U/s 281 Cr.P.C was recorded whereby he pleaded to be innocent and falsely implicated in the present case and also did not prefer to lead defence evidence and thus, the matter was thereafter, listed for the purpose of the final arguments and the arguments heard and entire record have been perused.
7. I have heard the submission of Ld. APP for the State and the ld. counsel for the accused persons. I have also carefully perused the record.
8. The court has carefully examined the entire material available on record including the testimony of the PWs recorded before the Court.
9. In the present case total eight witnesses have been examined on behalf of the prosecution, out of which PW1 Smt. Sakuntala is the complainant in the present case and rest all the witnesses are the official witnesses. PW- 4 Nanak Chand, who has duly proved on record the report regarding Fingure Prints as ex. PW 4/A. This report ex. PW4/A reveals that the finger prints of accused Deep Chand were tallied who have already been convicted in the present case vide order dated 07.12.01. As far as the accused Mahesh is concerned, there is not any evidence on record against him 7 except that of the confession statement made by the co-accused Mohd. Arif, which alone is not sufficient to prove the allegations against the accused Mahesh or could warrant his conviction in absence of any other supporting material or evidence on record.
10. As far as the other accused Ganesh is concerned, the complainant i.e. PW-1 Smt. Shakuntla, has stated in her statement that there was no specific mark of identification on the property and that she had identified the same only because of their mark or manufacturing and also except the TV, she could not produced the receipt of the rest of the article. However, no test identification parade of the articles recovered were got conducted by the IO through the complainant before the court. Even no public persons to the recovery of the alleged stolen articles from the accused Ganesh have been joined in the investigation, who could have strengthen the case of the prosecution and could establish on record that the stolen articles were recovered from the possession or at the instance of the Ganesh. Thus the prosecution has failed to prove the offence U/s 411 IPC against the accused Ganesh.
11. In view of the stark anomalies and contradictions in the statement of witnesses as discussed herein above and any other independent public witnesses except the Complainant have been joined in respect to the alleged recovery, during proceedings or investigation. Hence, in view of he above discussion, I have no hesitation in holding that the prosecution has miserably failed to prove its case against the both accused persons Mahesh and Ganesh, beyond all the reasonable doubts and to bring their acts and conduct within four corners of the provisions of law constituting any of such offence or within legal ambit which would warrant thier conviction and punishment in the present case. In view of the cardinal principle of law that prosecution must prove the guilt of the accused beyond reasonable doubts and every benefit of doubt must be given to the accused, hence, the accused is entitled to every benefit arising out of lacuna's in the prosecution case.
12. In view of the above discussions it is held that the prosecution has failed to 8 prove its case against both the accused persons Mahesh and Ganesh and has not been able to prove the charge for the offence U/s 454/380/34 IPC against the accused Mahesh and for the offence U/s 411 IPC against the accused Ganesh. Accordingly, Both the accused person i.e. Accused Mahesh stands acquitted for offence U/s 454/380/34 IPC and accused Ganesh stands acquitted for the offence U/s 411 IPC . Their Bail Bonds stand cancelled. Surety Bond stands discharged . Documents, if any, be returned after cancellation of the endorsement, if any, on property receipt and identification. However, as far as the other accused Mohd. Arif is concerned, the present case remains pending and the present case file be consigned to record room with directions to revive the same as and when the accused Mohd. Arif is apprehended/surrendered before the court.
Announced in the open court today i.e 11.03.2010 (KIRAN BANSAL) ADDL.CHIEF METROPOLITAN MAGISTRATE III:
SOUTH DISTT. PHC, NEW DELHI 9 State v/s Mohd. Arif @ Raju PS: Defence Colony FIR No: 228/96 U/s: 454/380/411/34 IPC 11.03.2010 Present: Ld. Substitute APP for State.
Accused Mohd. Arif is Proclaimed offender.
Both the accused Mahesh and Ganesh are present on bail with counsel.
Vide my separate Judgment, dictated to steno and announced in open Court Both the accused person i.e. Accused Mahesh stands acquitted for offence U/s 454/380/34 IPC and accused Ganesh stands acquitted for the offence U/s 411 IPC . Their Bail Bonds stand cancelled. Surety Bond stands discharged . Documents, if any, be returned after cancellation of the endorsement, if any, on property receipt and identification. However, as far as the other accused Mohd. Arif is concerned, the present case remains pending and the present case file be consigned to record room with directions to revive the same as and when the accused Mohd. Arif is apprehended/surrendered before the court.
Announced in the open court
today i.e. 11th March, 2010 (KIRAN BANSAL)
ADDL.CHIEF METROPOLITAN MAGISTRATE III:
SOUTH DISTT. PHC, NEW DELHI