Delhi District Court
Criminal Case/430/2013 on 31 July, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Dilshad @ Monu
FIR No. 430/13
Police Station : Chhawla
Under Section: 380/457 IPC
Unique Case ID Number: 02405R0040642014
Date of institution : 14.02.2014
Date of reserving : Oral
Date of pronouncement: 31.07.2014
JUDGMENT
a) Serial number of the case : 42/1/14
b) Date of commission of offence : 04.12.2013 to 05.12.2013 and 18.12.2013
c) Name of the complainant : Sh. Dharampal, S/o Sh. Rampal, R/o House No. RZ-30, Khasra No. 602, Gali no. 1, Shyam Vihar, Phase-I, New Delhi.
d) Name, parentage and address : 1.Dilshad @ Monu, S/o Sh. Sir- of the accused ajuddin, R/o RZ-17 A, 3-Block, Gali no. 2, Dharampura, Najaf-
garh, New Delhi.
2.Tinku, S/o Sh. Inderpal, R/o H.No. 71, Nehru Garden, near Shiv Mandir, Najafgarh, New State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 1 of 15 Delhi-110043
e) Offence complained of : Section 457/380/411/34 IPC
f) Plea of the accused : Accused Dilshad pleaded not guilty
g) Final order : Accused Dilshad acquitted.
Accused Tinku already dis-
charged vide order dated 04.03.2014.
h) Date of final order : 31.07.2014 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused Dilshad is being acquitted of the offence punishable under Section 411 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in this case FIR No. 430/2013 under Section 380/457 I.P.C. of Police Station Chhawla by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. In nutshell, the case of the prosecution is that between 02.00 pm on 04.12.2013 and 08.00 am on 05.12.2013, theft of four gas cylinders make Indane, water taps, six bundles of wire and cash to the tune of rupees six lakh took place at the house of the complainant Sh. Dharampal bearing House No. RZ-30, Khasra No. 602, Gali no. 2, Shyam Vihar, New Delhi after the lock was broken open. It is further the case of the prosecution that on 18.12.2013, one of the aforesaid stolen gas cylinders was recovered from House No. 80 Z Block, Shyam Vihar, New Delhi, where the accused Dilshad @ Monu and his State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 2 of 15 associate Tinku (since discharged) used to reside as tenants, at the instance of accused Dilshad @ Monu. It is alleged by the prosecution that the accused persons had received or retained the said gas cylinder knowing or having reason to believe the same to be stolen property.
CHARGE
3. Vide order dated 04.03.2014, while accused Tinku was discharged, charge for the offence punishable under Section 411 I.P.C. was framed against the accused Dilshad to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 26.05.2014, in compliance with the provisions of Section 294 of the Cr.P.C., the accused Dilshad was called upon to admit or deny the genuineness of case FIR no. 446/13 police station Chhawla which was admitted by him and was accordingly exhibited as Ex. P/A/1. In view of the admission made, the evidence of the Duty Officer/Assistant Sub Inspector Ramesh Chander was dispensed with.
EVIDENCE OF THE PROSECUTION
5. The prosecution in all examined eight witnesses. PW-1 Sh. Dharam Pal is the complainant whose articles were stolen and on whose complaint Ex.PW1/A, the case was registered. PW-2 Constable Dinesh and PW-3 Constable Ravinder Kumar had joined investigation with the investigating officer at the time of the alleged recovery of the gas cylinder in question at the instance of the accused State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 3 of 15 Dilshad @ Monu. PW-4 Sub Inspector Kaptan Singh is the investigating officer in the present case. PW-5 Woman Head Constable Saroj is the duty officer who had recorded the DD no. 17A dated 05.12.2013 Ex.PW4/A and the FIR No. 430/13 Ex.PW5/A in the present case and made her endorsement Ex.PW5/B on the rukka. She had also issued the requisite certificate under Section 65 B of the Indian Evidence Act. PW-6 Constable Shantanu had joined investigation with the investigating officer on 05.12.2013. PW-7 Sub Inspector Ashok Kumar is the investigating officer of the case FIR no. 446/13, U/s 380/411 IPC, PS Chhawla. PW-8 Head Constable Jagdish is the malkhana moharrir with whom the case property was deposited in the present case vide entry at Srl. no. 1142 in register No.19, extracts of which are Ex. PW8/A. STATEMENT / DEFENCE OF THE ACCUSED
6. In his statement recorded under Section 313 Cr.P.C., the accused Dilshad denied the entire evidence put to him. He categorically stated that he is innocent and has been falsely implicated in the present case along with some other cases. He further stated that nothing was recovered from him or at his instance and the gas cylinder was planted upon him by the police after lifting the same from the kitchen of one of the tenants who used to reside in house no. 80 Z, Shyam Vihar, New Delhi. He stated that on the dates of the alleged theft he was at Vaishno Devi Shrine, Jammu. The accused did not lead any defence evidence.
State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 4 of 15 ANALYSIS AND FINDINGS
7. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. L.S. Gautam, Advocate, learned legal aid counsel for the accused have been considered.
8. In order to bring home the guilt of the accused Dilshad in respect of the offence punishable under Section 411 I.P.C., the prosecution was required to prove the following:
i) that the gas cylinder allegedly recovered at the instance of the accused Dilshad was stolen property;
ii) that accused Dilshad had dishonestly received or retained the aforesaid gas cylinder; and
iii) that the accused Dilshad knew or had reason to believe the aforesaid gas cylinder to have been stolen property.
i) Re: Whether the gas cylinder allegedly recovered was a stolen property?
9. The term "stolen property" has been defined in Section 4101 I.P.C. In the instant case, it has been alleged that the gas cylinder in question was stolen from the house of complainant Sh. Dharam Pal 1 Section 410 I.P.C. reads as under:
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 5 of 15 between 02.00 pm on 04.12.2013 and 08.00 am on 05.12.2013. In his complaint Ex. PW1/A, the complainant Sh. Dharam Pal Singh simply alleged that four Indane gas cylinders, water taps and six bundles of wires along with Rupees one lac cash were stolen from his house, however, he did not furnish any proof of ownership in respect of the articles alleged by him to be stolen from his house. Even assuming that the factum of theft of the articles in question allegedly belonging to the complainant had been proved beyond reasonable doubt by the prosecution, it was imperative for the prosecution to have proved that the gas cylinder allegedly recovered at the instance of the accused Dilshad @ Monu was one of those which had allegedly been stolen from the house of the complainant. Perusal of the complaint Ex.PW1/A, which is the first information given by the complainant to the police, reveals that the complainant had therein merely stated that his four Indane gas cylinders, water taps, six bundles of wire and Rupees one lac cash had been stolen from his house. Out of the same, only one Indane gas cylinder was allegedly recovered at the instance of accused Dilshad @ Monu. The complaint Ex.PW1/A does not contain any description of the property allegedly stolen, such as the numbers of the gas cylinders, make or design of the water taps, material and make of the wires and denomination of the currency notes etc. Moreover, no invoice/delivery receipt/gas passbook in respect of the gas cylinder in question has been placed on record to show that the gas cylinder allegedly recovered at the instance of the accused Dilshad @ Monu had belonged to the complainant. Although one bill Ex.PW4/D with respect to the purchase of a gas cylinder along State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 6 of 15 with other articles has been filed on record to show that the gas cylinder allegedly recovered in the present case had belonged to the complainant, however, neither has the original thereof been produced nor does the said bill bear any number of the gas cylinder purchased. Moreover, the seizure memo Ex.PW2/D also not bear the serial/unique identification number of the gas cylinder allegedly recovered at the instance of the accused Dilshad @ Monu. It is pertinent to mention here that all gas cylinders of a particular make would look alike, unless differentiated on the basis of the unique identification number inscribed/painted on them. Thus, there is no proof of the alleged fact that the alleged gas cylinder did in fact belong to the complainant or was in his possession at the time of the alleged theft. The prosecution has been unable to establish the identity of the gas cylinders allegedly stolen from the house of the complainant. Further, the identity of the gas cylinders allegedly stolen from the house of the complainant could not be established by the prosecution.
10. Moreover, no Test Identification Parade of the gas cylinder in question was got conducted by the investigating officer from the complainant in order to establish that it was the same gas cylinder which was stolen from the house of the complainant. It is not the case of prosecution that the alleged recovery had taken place in the presence of complainant Sh. Dharam Pal. Moreover, in his examination-in-chief, the complainant PW-1 failed to identify the gas cylinder, i.e. the case property in the present case, and it was only in his cross-examination by the learned Assistant Public Prosecutor for the State that he identified the gas cylinder to be the same which was State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 7 of 15 stolen from his house. The said admission is, however, a clear improvement on the part of the complainant which was made by him on being specifically suggested by learned Assistant Public Prosecutor for the State. Further, during his cross-examination by the learned defence counsel, the complainant admitted that he had seen the gas cylinder in the police station also. In view of the same, the prosecution has not been able to establish beyond reasonable doubt that the gas cylinder allegedly recovered at the instance of the accused was the same which had been stolen from the house of the complainant.
11. In view of the aforesaid, the prosecution has failed to prove beyond reasonable doubt that the gas cylinder as is alleged to have been recovered at the instance of the accused Dilshad @ Monu is a stolen property.
ii) Re: Whether the accused had dishonestly received or retained the gas cylinder in question?
12. To prove the said ingredient, the prosecution had to prove that the accused had received or retained the gas cylinder in question and that the same was done dishonestly.
13. In order to prove that the accused had received or retained the gas cylinder in question, the prosecution was required to first of all prove beyond reasonable doubt that the said gas cylinder was recovered as alleged at the instance of the accused. The same has not been proved by the prosecution beyond reasonable doubt for the reasons to follow.
State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 8 of 15
(a) Non-joining of public witnesses in the alleged recovery
14. No public witness to the alleged recovery at the instance of accused Dilshad @ Monu has either been cited in the list of witnesses or examined by the prosecution. The alleged recovery was effected from House No. 80 Z, Block Shyam Vihar, New Delhi i.e. a house situated in a residential colony. Public persons would, therefore, have been available at or near the spot. However, neither the owner, or other occupant, of the said house nor any neighbour was joined in the investigation at the time of the alleged recovery of the gas cylinder in question at the instance of accused Dilshad @ Monu. In fact, PW-4 Sub Inspector Kaptan Singh stated that when they left the house of the accused, he locked it and handed over the keys to one of the neighbours of accused Dilshand @ Monu, however, the said neighbour has not been made a witness in the present case. He further stated that he had not asked any neighbour to join investigation. As per PW-2 Constable Dinesh, when they went to the said house, one lady was present there, however, the said lady has also not been joined in the investigation. As such, it is not the case of the prosecution that no public person was present at or near the place of arrest and recovery. Had the police party attempted, public persons could have been joined in the investigation. However, despite availability, no public person was joined in the investigation.
15. No serious effort for joining public witnesses appears to have been made by the recovery witnesses or by the investigating officer. It is a well settled proposition that non-joining of public witness shrouds State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 9 of 15 doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 10 of 15
16. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version as to recovery of the gas cylinder in question at the instance of the accused but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
(b) Absence of departure entries
17. The present case rests entirely on the alleged recovery of the gas cylinder in question from the possession of the accused at the relevant time by police officials namely Sub Inspector Kaptan Singh, Constable Dinesh and Constable Ravinder. As per Chapter 22 Rule 49 of the Punjab Police Rules, 1934, police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose.
18. Since public persons were not joined in the investigation, the departure entries of the aforesaid police officials namely Sub Inspector Kaptan Singh, Constable Dinesh and Constable Ravinder, who had allegedly gone to the house of the accused alongwith the accused on the basis of the disclosure made by the accused and had, at his instance, recovered the case property, becomes a vital piece of evidence. No such departure entry has, however, been filed, let alone State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 11 of 15 proved, on record. Proof of the said entry is, however, indispensable as the present case rests solely on the alleged recovery made by police officials.
(c) Site plan of place of apprehension of accused and recovery of the gas cylinder in question not proved
19. Though a site plan Ex.PW1/B of the place from where the articles in question belonging to the complainant had allegedly been stolen has been placed on record, however, no site plan of the place of alleged apprehension of accused and alleged recovery of the gas cylinder in question has been filed, let alone been proved, by the prosecution. No explanation has been furnished for the failure of the prosecution to place on record the site plan of the place of the alleged apprehension of the accused Dilshad @ Monu and recovery of stolen gas cylinder at his instance. In the absence of a site plan of the place of the alleged apprehension and recovery, it is difficult to ascertain the place from where the accused was apprehended and the gas cylinder in question allegedly recovered. The absence of a site plan of the aforesaid places, is a circumstance that goes against the prosecution.
(d) Contradictions and lapses in testimony of prosecution witnesses and other evidence
20. There are material contradictions and lapses in the testimony of the prosecution witnesses and other evidence on record which create a reasonable doubt as to the truthfulness of the prosecution story.
21. As per PW-2 Constable Dinesh, the house from where the State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 12 of 15 alleged recovery of the gas cylinder was effected was double storeyed whereas as per PW-3 Constable Ravinder it was single storeyed.
22. While as per PW-2 Constable Dinesh, the house from where the alleged recovery of the gas cylinder was effected had an iron gate, as per PW-3 Constable Ravinder, it had a wooden gate.
23. As per PW-2 Constable Dinesh, there were two rooms and one kitchen in the house from where the alleged recovery of the gas cylinder was effected whereas as per PW-3 Constable Ravinder, there were two rooms, one kitchen, one latrine and one bathroom in the said house. Contrary to this, PW-4 Sub Inspector Kaptan Singh deposed that there were three rooms in the said house.
24. While as per PW-2 Constable Dinesh, they had left the police station in a QRT vehicle, PW-3 Constable Ravinder deposed that they had left the police station in a private Santro Car. In contradiction to the same, PW-4 Sub Inspector Kaptan Singh at first stated that they had left the police station in his private vehicle i.e. Wagon R car, but later on changed his stand by stating that he was not sure if they had gone to the house of accused in his Wagon R car or some other vehicle.
25. On the one hand, PW-2 Constable Dinesh deposed that they had met one lady and one child at the house from where the alleged recovery was effected. On the other hand, however, as per PW-3 Constable Ravinder, none was met at the said house.
26. While as per PW-2 Constable Dinesh, the investigating officer State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 13 of 15 had prepared the site plan of the spot i.e. the place from where the alleged recovery had been effected, as per PW-4 Sub Inspector Kaptan Singh, he had not prepared any site plan of the place of recovery.
27. In view of the aforesaid, the prosecution has failed to prove beyond reasonable doubt that the gas cylinder in question was recovered at the instance of the accused Dilshad as alleged. It has accordingly failed to establish that the accused had received or retained the aforesaid gas cylinder, much less that he had done so with dishonest intention.
iii) Re: Whether the accused knew or had reason to believe the gas cylinder in question to be stolen property?
28. The prosecution has failed to lead any evidence to show that the accused either knew or had reason to believe the gas cylinder in question to be stolen property. Further, there was a considerable time gap between the date of the alleged theft, i.e. 04/05.12.2013, and the date of the alleged recovery of the gas cylinder at the instance of the accused, i.e. 18.12.2013, and hence no adverse presumption can be drawn against the accused.
29. Based on the aforesaid detailed analysis, in the considered opinion of the Court, the prosecution has failed to establish beyond reasonable doubt the charge under Section 411 I.P.C. against accused Dilshad. The accused is entitled to the benefit of doubt and to be accordingly acquitted of the offence punishable under Section 411 State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 14 of 15 I.P.C.
CONCLUSION
30. The accused Dilshad is acquitted of the charge in respect of offence punishable under Section 411 I.P.C.
31. File be consigned to record room after compliance of the provisions of Section 437A Cr.P.C.
Announced in open Court on 31.07.2014.
(MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 31.07.2014 State v. Dilshad @ Monu FIR No. 430/2013 PS : Chhawla Page 15 of 15