Delhi District Court
State vs . Humayun on 31 May, 2014
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI - 110 054.
FIR No.446/2000
PS Kirti Nagar
State Vs. Humayun
Unique Case ID No.02401R0993552003
J U D G M E N T
(a) Sr. No. of the case 6/1/03/14
(b) Date of offences 20.02.2003
(c) Complainant Sh. Gopal Krishan Dhall S/o Sh. Inderpal R/o J - 93, 1 st
Floor, Kirti Nagar, New Delhi.
(d) Accused Humayun S/o Sh. Khalil Ahmed R/o H. No.119,
Amroha Nagar, J. B. Nagar, Afganan Mohalla, Amroha,
Uttar Pradesh.
(e) Offences Under Section 411 and 482 of The Indian Penal Code,
1860.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 09.04.2003
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 31.05.2014
The brief facts of this case are that :
1. The accused has been charge sheeted for committing offences punishable under Section 411 and 482 of The Indian Penal Code, 1860. The FIR No.446/2000 Page No.1 to 15 allegations against the accused are that on 20.02.2003 from near statue of Ghandiji in the big area/ground Amroha, Uttar Pradesh, accused got recovered the stolen white Maruti Car bearing fake registration number DL2CJ2048, chassis number SB3081W641923 and engine number FSB964295, original registration number of the which was DL8C4203 which he retained the same in his possession knowing or having reasons to believe the same to be stolen property, the theft of which took place on the night of 02/03.08.2000 opposite H. No.WZ28/2, Saraswati Garden, New Delhi. According to prosecution, accused thereby committed offences punishable under Section 411 and 482 of The Indian Penal Code, 1860.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973. In this matter during trial, the accused stopped appearing before the Court and consequently on 30.07.2011 was declared absconder in this matter and was subsequently arrested and supplementary challan for offence punishable under Section 174A IPC was filed against the accused. Charge under Section 411 and 482 of The Indian Penal Code, 1860 and 174A of The Indian Penal Code, 1860 was framed against the accused vide order dated 22.11.2012 to which he pleaded not guilty and claimed trial.
FIR No.446/2000 Page No.2 to 15
3. In the course of final arguments, the accused pleaded guilty to offence under Section 174A of The Indian Penal Code, 1860 and was sentenced accordingly. Now, only matter qua offences punishable under Section 411 and 482 of The Indian Penal Code, 1860 is pending for decision which is dealt hereby in the present judgment.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined sixteen witnesses. PW1 Gopal Krishan Dhall has deposed that in the year 2000, he was residing at WZ - 28/2, Saraswati Garden, New Delhi alongwith his parents. They were having Maruti 800 car bearing registration number DL8C4203 which was registered in the name of his father. On 02.08.2000, he parked their Maruti car in front of his house at about 01:00 am (intervening night of 02/03.08.2000) and on next day morning at about 08:00 am, he found their car missing from the parking place, the same was stolen by some unknown person. He informed the police control room. Police from PS Kirti Nagar came at the spot and recorded his statement Ex.PW1/A. Police officials inspected the spot and prepared site plan and also made efforts to trace the car, but no clue was found. Their car was not recovered at that time so they obtained the claim from concerned insurance company and the ownership of the car was also transferred FIR No.446/2000 Page No.3 to 15 to the concerned insurance company. PW1 was examined, not crossexamined by the accused despite opportunity given and was discharged.
5. PW2 HC Jodha Singh has proved and exhibited formal FIR Ex.PW2/A and endorsement on Rukka Ex.PW2/B. PW2 was examined, not crossexamined by the accused despite opportunity given and was discharged.
6. PW3 Ct. Dharamvir has deposed that on the night of 02/03.08.2000, he was posted at PS Kirti Nagar and on that night on receipt of D.D.No.8A regarding theft, he alongwith ASI Gyan Singh went to place of incident at WZ - 28/2, Saraswati Garden, New Delhi where complainant Gopal Krishan Dhal met them and IO recorded his statement regarding theft of Maruti car and after making endorsement on Rukka handed over to him. He took the same to PS and after registration of case, he came back at the spot alongwith Rukka and copy of FIR and handed over to IO. They made efforts to trace the vehicle and accused, but no clue was found. IO recorded his statement. PW3 was examined, crossexamined and was discharged.
7. PW4 Ct. Jai Prakash has deposed that on 27.02.2003, he was posted at PS Kirti Nagar and joined investigation in this case with IO ASI Gyan Chand in the Court premises. IO arrested the accused Humayun in this case and prepared arrest memo Ex.PW4/A. IO also recorded his disclosure statement Ex.PW4/B. IO recorded his statement. PW4 was examined, crossexamined and was discharged. FIR No.446/2000 Page No.4 to 15
8. PW5 HC Anil Kumar has deposed that on 19.02.2003, he was posted in AATS/NE as Constable and on that day, he joined the investigation of case FIR No. 23/2003 PS Dilshad Garden with HC Jaiveer, Ct. Sunder Lal and Ct. Vedpal at Court complex, KKD, after obtaining permission IO arrested Aneesh, Humayun, Nasir and Jaeed. After arresting them, IO thoroughly interrogated them and recorded disclosure statements of Jaeed Ex.PW5/B and Aneesh Ex.PW5/A and they had disclosed that they had committed theft of one maruti car from the area of Kirti Nagar and had sold the same to Humayun. IO also thoroughly interrogated accused Humayun. IO recorded the disclosure statement Ex.PW5/C of accused Humayun wherein he had disclosed that he can get recovered the stolen Maruti car which he had purchased from Jaeed and Aneesh from near the statue of Gandhiji in the ground at Amroha, Uttar Pradesh. On 20.02.2003, he alongwith abovesaid police officials and HC Jaiveer and accused Humayun went to Amroha, District J. P. Nagar, Uttar Pradesh and at the instance of accused Humayun from a godown near Gandhiji Statute where the number of cars were parked two maruti cars were recovered, the number plate on one car was affixed as DL2CJ2048 and on the second car the number plate was affixed as DL2CJ9033. IO prepared the seizure memo Ex.PW5/D of both the recovered cars. Then, they came back at Delhi alongwith accused and the accused FIR No.446/2000 Page No.5 to 15 was sent to jail. On 24.02.2003, IO of present case recorded his statement. PW5 was examined, crossexamined and was discharged.
9. PW6 HC Pushpender Pal Singh has proved and exhibited D.D.No.7A dated 23.02.2003 as Ex.PW6/A. PW6 was examined, crossexamined and was discharged.
10. PW7 HC Ram Niwas has deposed that on 17.03.2003, he was posted at PS Kirti Nagar as Constable and on that day, he alongwith IO went to PS Dilshad Garden and IO received one car bearing registration number DL2CJ2048 from the malkhana and they came back to PS Kirti Nagar and IO separated the abovesaid forged plates from the car and took into possession through seizure memo Ex.PW7/A. IO also recorded his statement. PW7 was examined, crossexamined and was discharged.
11. PW8 HC Sunder Lal has deposed that on 19.02.2003, he was posted in AATS/NE and on that day, he joined the investigation of case FIR No.23/2003 of PS Dilshad Garden with IO HC Jaiveer Singh and other police officials. In the Court premises, IO arrested the accused Humayun alongwith his other associates in the abovementioned case after obtaining permission from the concerned Hon'ble Court and IO also recorded the disclosure statement of accused Humayun Ex.PW5/C wherein he had disclosed that he alongwith his associates had purchased the stolen FIR No.446/2000 Page No.6 to 15 maruti car and after changing the engine number and number plate, he had parked the same at Gandhi Murti ground i.e. School Ground, Amroha, Uttar Pradesh. After obtaining police custody remand at the instance of the accused Humayun, they went to Amroha at Gandhi Murti ground where the numbers of vehicles were parked and out of them accused pointed out towards one car on which the number plate was DL2CJ2048 affixed and accused also pointed out towards one another car on which the number plate was affixed bearing registration number DL3CA9033. The car on which the number plate DL2CJ2048 was affixed was the stolen car from the area of PS Kirti Nagar. IO prepared seizure memo of both the recovered cars Ex.PW5/D. IO of this case also recorded his statement thereafter. PW8 was examined, not cross examined by the accused despite opportunity given and was discharged.
12. PW9 HC Sumdev has deposed that on 24.07.2012, he alongwith HC Vinod were on patrolling and reached near Shyam Lal College and on the basis of the secret information, they apprehended the accused Humayun from near bus stand and on inquiry, it was confirmed that he was the PO in case FIR No.446/2000 of PS Kirti Nagar. So, he arrested the accused Mohd. Humayun Khan and prepared arrest memo Ex.PW9/A and personal search memo Ex.PW9/B. He also prepared kalandra Ex.PW9/C and after making entry at PS Shahdara Ex.PW9/D, the accused was FIR No.446/2000 Page No.7 to 15 produced in this Court alongwith kalandra. PW9 was examined, crossexamined and was discharged.
13. PW10 SI Kartar Singh has deposed that on 20.02.2003, he was posted at PS Dilshad Garden as MHCM and on that day, IO of case FIR No.23/2003 under Section 379 IPC of PS Dilshad Garden namely HC Jai Veer Singh handed over to him, two cars including one car bearing forged number plate DL2CJ2048 having engine number F - 8B, 964295 and chassis number SB308IN641923 for depositing the same in malkhana. Accordingly, he deposited the same in malkhana and made entry in Register No.19 at S. No.612 Ex.PW10/A. In his crossexamination, he admitted that seizure of keys of both the cars is not mentioned in the seizure memo. PW10 was examined, crossexamined and was discharged.
14. PW11 ASI Jaibir Singh has deposed that on 19.02.2003, he was posted at AATS/NE and on that day, Ct. Sunder Lal and Ct. Ved Pal joined investigation with him in case FIR No.23/2003 of PS Dilshad Garden and after obtaining permission, he arrested accused Aneesh, Humayun, Nasir and Jahid in the above mentioned case and thoroughly interrogated them and recorded the disclosure statement of accused Humayun as well as other accused persons as Ex.PW5/A, Ex.PW5/B and Ex.PW5/C. On next day on 20.02.2003 at the instance of accused Humayun, they went to Amroha, Uttar Pradesh at Gandhi Ground where number of FIR No.446/2000 Page No.8 to 15 vehicles were found parked and at the instance of accused Humyaun, they recovered two cars and on one car number plate bearing registration number DL2CJ2048 was affixed and on the another car number plate of DL3CA9038 was affixed. The recovered car having number plate DL2CJ2048 was found to be stolen from the area of PS Kirti Nagar and the forged number plate was found to be affixed on it. He took into possession both the cars through seizure memo Ex.PW5/D. They came back at Delhi and deposited the case property i.e. recovered car at malkhana of PS Dilshad Garden and intimated to the concerned IO of PS Kirti Nagar in this regard and thereafter, handed over the copies of document Ex.PW5/A to Ex.PW5/D. He joined the investigation of this case also and IO recorded his statement. PW11 was examined, crossexamined and was discharged.
15. PW12 HC Vinod Kumar has deposed that on 24.07.2012, he alongwith HC Shamdev were present at Shyam Lal College. On the basis of secret information, they apprehended accused Mohd. Humayun Khan. On inquiry, they came to know that the accused is proclaimed offender of case FIR No.446/2000, PS Kirti Nagar. HC Shamdev arrested the accused and prepared arrest memo Ex.PW9/A, personal search memo Ex.PW9/B. IO prepared kalandra and produced the accused before the Hon'ble Court. IO also recorded his statement. PW12 was examined, crossexamined and was discharged.
FIR No.446/2000 Page No.9 to 15
16. PW13 HC Satpal has deposed that the accused was arrested by HC Shyam Dev of PS Shahdara under Section 41.1 (C) of The Code of Criminal Procedure, 1973 as he was proclaimed offender of this case. He was handed over further investigation of this case. He recorded statement of witnesses, prepared supplementary challan under Section 174A of The Indian Penal Code, 1860 and filed before the Court. PW13 was examined, crossexamined and was discharged.
17. PW14 SI Gyan Singh has deposed that on 03.08.2000 on receipt of D.D.No.8A regarding theft of Maruti van bearing registration number DL8C4203, he alongwith Ct. Dharamvir went to WZ - 28/2, Saraswati Garden, Delhi where they met with complainant Gopal Krishan and he recorded his statement Ex.PW2/A, made endorsement Ex.PW14/A on it and sent it through Ct. Dharamvir to PS. He inspected the spot and prepared site plan Ex.PW14/B at instance of complainant. In the meantime, Constable came back and handed over Rukka and copy of FIR to him. He made efforts to find out the stolen vehicle and accused, but no clue was found. He prepared untrace report on 31.08.2000. In month of February, 2003, he received information from AATS/NE regarding the stolen vehicle. On 23.02.2003, he met with HC Jaiveer of FIR No.23/2003 of PS Dilshad Garden and he handed over to him seizure memo Ex.PW5/B and disclosure statement of accused Ex.PW5/C. He applied for production warrants and accused Humayun was produced before this Court. He FIR No.446/2000 Page No.10 to 15 recorded the statement of Ct. Anil, Ct. Ved Pal, Ct. Surender and HC Jaiveer Singh of AATS/NE and recovered stolen vehicle. He arrested accused on 27.02.2003 after the permission of the Court vide Ex.PW4/A, recorded his disclosure vide Ex.PW4/B and also recorded statement of Ct. Jai Prakash. On 17.03.2003, he went to Malkhana of PS Dilshad Garden alongwith Ct. Ram Niwas and obtained two forged number plates bearing number DL2CJ2048. The car was transferred from PS Dilshad Garden to PS Kirti Nagar vide RC No.20/21 dated 17.03.2003 and he seized it vide memo Ex.PW7/A. He correctly identified two number plates as Ex.P1 (Collectively). PW14 was examined, crossexamined and was discharged.
18. PW15 N. K. Sharma has deposed that Ex.PW5/A to Ex.PW5/D were never deposited by IO in case file of FIR No.23/2003 of PS Dilshad Garden. PW15 was examined, not crossexamined by the accused despite opportunity given and was discharged.
19. PW16 HC Ram Sahay has deposed that on 17.03.2011, he executed/published the process under Section 82 of The Code of Criminal Procedure, 1973 against the accused Humayun on his permanent address. Accused was not found at given address. He affixed the copy of process in the locality/area of accused and his statement was also recorded in the Court and identified Ex.CW1/A in his FIR No.446/2000 Page No.11 to 15 evidence. PW16 was examined, not crossexamined by accused despite opportunity given and was discharged.
20. On 07.12.2013, prosecution evidence was closed.
STATEMENT OF ACCUSED
21. After closure of prosecution evidence, the statement of accused was recorded separately under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973. Incriminating evidence was put to him. Accused person denied all the allegations and stated that he is innocent and has been falsely implicated in this case. Accused person opted not to lead defence evidence.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
22. In this matter, accused has been charged for offence punishable under section 411 and 482 IPC. It is not in dispute that vehicle no. DL8C420 make maruti car 800 got stolen from the possession of the complainant PW1 on 02.08.2000. The prosecution has examined 16 witnesses to prove its case against the accused. The witnesses who are relevant are those who are regarding the factum of recovery of case property in this matter, so PW5, PW8, PW11, are the relevant witnesses whose evidence needs considerations and deliberations in this matter. FIR No.446/2000 Page No.12 to 15
23. The relevant deposition of PW5 is that on 20.02.2003, he along with IO HC Jaiveer and other officials took accused Humayun to Amroha, District J. P. Nagar, Uttar Pradesh and at the instance of Humayun from a godown near Gandhiji statue recovered one car bearing no. plate DL2CJ2048 (stolen from area of PS Kirti Nagar) and second car bearing no. plate DL2CJ9033. The relevant deposition of PW8 is that after obtaining police custody remand he along with IO HC Jaiveer and other officials went to Amroha, UP and at the instance of accused from Gandhi murti ground they recovered two cars one bearing registration no. plate of DL2CJ2048 and another with no. plate of DL3CA9033. The car having no. plate affixed DL2CJ2048 was stolen from the area of PS Kirti Nagar. In his cross examination PW8 deposed that it was big ground from where the vehicle was recovered parked along with other vehicles. The relevant deposition of PW11 is that on 20.02.2003 at the instance of accused they went to Amroha UP and at Gandhi ground where number of other vehicles were parked, at the instance of accused they recovered two cars having affixed number plates of DL2CJ2048 and DL3CJ9038. The recovered car bearing no. plate DL2CJ2048 was found to be stolen from the area of PS kirti Nagar. In his cross examination PW11 deposed that duplicate key maker was called for purpose of opening the said cars.
FIR No.446/2000 Page No.13 to 15
24. Now, if we consider the evidence of the above said witnesses then the PW5 has deposed that the cars were recovered from a godown wheres PW8 and PW11 have deposed that the cars were recovered from a big ground where number of other vehicles were parked. The said contradiction between the deposition of these three witnesses is material one as it casts a shadow on the case of the prosecution whether such recovery was in fact made out or not. Further the place of alleged recovery is such that it cannot be said that the accused was in exclusive possession of the cars in question. PW11 has admitted in his cross examination that they have to call a key maker to open those cars. This further goes to shows that the accused was not in the possession of the cars in question. No effort was made by the PW11 to join public witnesses in this matter. No police officer of Amroha was also joined at the time of recovery of the alleged cars. PW5 has admitted in his cross examination that IO has not called any local police official to join investigation at the place of recovery and he has also not got signatures of any public witness at the time of recovery. Considering the totality of the facts of this case, the recovery alleged is highly doubtful in this matter and conviction cannot be based on such evidence. Once the recovery of the alleged car is doubtful in this matter, the recovery of the fake number plates also cannot be believed, moreover there is no evidence to the fact that the FIR No.446/2000 Page No.14 to 15 present accused prepared and affixed the same on the said cars. In totality of circumstances, the accused is entitled to benefit of doubt in this matter.
25. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has not succeeded in proving the accusations against the accused beyond shadow of reasonable doubt for offences punishable under Section 411 and 482 of The Indian Penal Code, 1860, therefore, accused Humayun is hereby given benefit of doubt in this matter, and is accordingly acquitted for the offences punishable under Section 411 and 482 of The Indian Penal Code, 1860. Announced in the open Court on May 31, 2014.
(HARVINDER SINGH) MM03/THC (West), Delhi/31.05.2014 FIR No.446/2000 Page No.15 to 15