Delhi District Court
State vs . Dilshad Etc. on 28 November, 2018
CNR No. DLCT020000722001
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT020000722001
CIS No. 289954/16
State Vs. Dilshad etc.
FIR No. 335/2000
PS : Timarpur
U/s. 411/471/34 IPC
JUDGMENT
1) The date of commission of offence : 26.07.2000
2) The name of the complainant : SI Ramesh Thakur
3) The name & parentage of accused : 1) Dilshad (Since PO)
2) Mohd. Yusuf
S/o. Mohd. Yunus,
R/o. Gali No.1,
Islamabad, Kanch Ka Pul,
Meerut (UP)
3) Mohd. Danish
S/o. Mohd. Sabbir,
R/o. 10/2, Kidwai Nagar,
Meerut, (UP)
4) Offence complained of : 411/471/34 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 1/13
CNR No. DLCT020000722001
7) The date of such order : 28.11.2018
Date of Institution : 26.03.2001
Judgment reserved on : 16.11.2018
Judgment announced on : 28.11.2018
BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused persons is that on
26.07.2000at about 9.15 PM, at Surghat, Wazirabad, Delhi, within the jurisdiction of PS Timar Pur, they alongwith their associate Dilshad (since PO) were found in possession of a stolen car bearing registration no.UP 14 L 2426 which they retained or received having knowledge or reasons to believe the same to be the stolen property. Further, at the time of the recovery of the car the same was used with the fake number plate by mentioning registration no. UP 80 P 2332 and the RC of the vehicle was also found forged.
2) After completion of investigation, charge sheet was filed against the accused persons. In compliance of Sec. 207 Cr.PC, documents supplied to the accused persons. Arguments on point of charge were heard. Vide order dated 31.10.09, a charge u/s. 411/471/34 IPC was framed against the accused persons, to which they pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined seven witnesses. Statement of accused persons were recorded under section 313 Cr.P.C r/w Section 281 Cr.PC, in which they denied all the allegations and did not wish to lead DE.
4) I have heard the arguments of Ld. APP for State and Ld. Counsels for accused persons. I have also perused the record carefully. CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 2/13 CNR No. DLCT020000722001
5) The tesimony of prosecution witnesses is being touched upon, in brief, as follows:
5.1) PW1 Vijay Kumar deposed that his car bearing registration no. UP 14 L 2426 was stolen in the intervening night of 23/24.07.2000 from Ghaziabad. He deposed that on 26.07.2000 he came to know that his car has been recovered by the police officials of PS Timar Pur. In his testimony the car in question was proved as Ex. P1. 5.2) PW2 HC Khajanchi Lal deposed that he alongwith Ct. Jai Prakash were on picket duty on 26.07.2000 in the area of PS Timarpur and on that day they got stopped the vehicle number UP 80 P 2332 in which four persons were sitting. Three persons were got apprehended and one managed to flee from the spot. The documents of the vehicles were found fake. Thereafter, IO SI Ramesh Thakur came at the spot and the custody of the car and the accused persons were given to him. The car was seized vide memo Ex. PW2/A and the DL of the accused Dilshad was seized vide Ex.
PW2/B. The fake RC recovered was seized vide memo Ex. PW2/C. The RC was proved as Ex. P3. Accused persons Dilshad and Mohd. Yusuf were arrested and personally searched. Accused persons Danish and Mohd. Yusuf were identified by PW2.
5.3) PW3 SI Ramesh Thakur and PW4 HC Jai Prakash deposed on the same lines that on 26.07.2000 they were on picket duty and at about 9.15 AM the vehicle no. UP 80 P 2332 coming from the side of Khajuri was got stopped. The vehicle was found to be stolen one from the area of UP. The documents were found fake. Tehrir was prepared and FIR got registered.
CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 3/13 CNR No. DLCT020000722001 Thereafter, the vehicle alongwith the documents of vehicle and the DL of accused Dilshad were seized. Accused persons Dilshad and Yusuf were arrested and personally searched. Accused persons were identified during the recording of the testimony of witnesses.
5.4) PW5 Inspector Hansraj deposed that on 01.10.2000, the further investigation of the present case was marked to me. Efforts were made to trace out coaccused but all in vain.
5.5) PW6 Ms. Roshanara, senior clerk, RTO proved the documents (nine in numbers) qua the vehicle in question as Ex. PW6/A. 5.6) PW7 SI Ranvir proved the present FIR as Ex. PW7/A and endorsement on rukka as Ex. PW7/B.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) The entire case of the prosecution revolves around the recovery of the car in question from the possession of accused persons. Thus, the burden of proof was lying upon the prosecution to prove the recovery of vehicle in question from the possession of accused persons beyond reasonable doubts. The witnesses to the alleged recovery of car from the possession of accused persons who all are police officials were examined during the trial. The testimony of the witnesses to the recovery proceedings is required to be appreciated minutely to see as to whether the alleged fact as CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 4/13 CNR No. DLCT020000722001 to the recovery of vehicle from accused persons proved or not. The other allegations as to the use of fake number plate and the recovery of fake RC are dependent upon the proving of the basic fact as to the recovery of car in question.
8) The first recovery witness examined by the prosecution is the PW2 HC Khajanchi Lal. The other witnesses are IO SI Ramesh Thakur and PW4 HC Jai Prakash. There are material contradictions in the testimony of recovery witnesses, which are going to the roots of the present case making the entire case of the prosecution highly doubtful rather not proved. These contradictions are required to be appreciated one by one to have the clear picture of the entire facts.
9) PW2 HC Khajanchi Lal deposed on oath that on 26.07.2000, he was on picket duty alongwith Ct. Jai Prakash. He clearly denied the presence of IO SI Ramesh Thakur at the picket duty at the time of alleged recovery of vehicle. PW2 deposed that the vehicle was got stopped by him and constable Jai Prakash. He deposed that when the vehicle was got stopped three persons from the vehicle started running away but two were got apprehended. He deposed that he alongwith Ct. Jai Prakash checked the documents of the vehicle which were found to be fake. PW2 deposed that thereafter, IO SI Ramesh Thakur came at the spot and the custody of accused persons and the vehicle in question were handed over to him. 9.1) Per contra, PW4 HC Jai Prakash deposed that the vehcile in question was got stopped and the accused persons were apprehended in the presence of SI Ramesh Thakur, who was also present for picket duty. PW3 CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 5/13 CNR No. DLCT020000722001 SI Ramesh Thakur, also deposed that the vehicle was got stopped by him and thereafter the accused persons were apprehended. 9.2) Thus, there is an apperant major contradiction as to the presence of IO SI Ramesh Thakur at the spot when the vehicle in question was got stopped and the accused persons were got apprehended. PW2 specfically denied the presence of IO SI Ramesh Thakur at the spot. PW2 was cross examined on behalf of the State, in which it is mentioned that the previous statement of PW2 recorded u/s. 161 Cr.PC has been explained to PW2, even then PW2 not deposed about the presence of IO SI Ramesh Thakur at the time of the alleged recovery of the vehicle nor any suggestion to this effect was given to PW2 by the Ld APP during the cross examination. Thus, by virtue of the testimony of PW2, PW3 and PW4, the presence of IO/PW3 at the spot, at the time of the recovery of the vehicle comes under cloud of doubt and this makes the recovery proceedings doubtful. 9.3) PW2 even deposed in the cross examination that they were only two police officials in the picket duty and there was no other police official at the spot. The manner in which PW2 remained unshaken as to the absence of IO / PW3 at the spot even in the cross examination leads to giving more credibility to the testimony of PW2 that PW3 was not present at the spot. The absence of PW3 makes the rukka, the seizure memo and all other documents as antetimed documents and the accused persons are entitled to have benefit of this fact.
10) Now coming to the contradiction came on record as to the place of preparation of documents during the investigation. PW2 HC Khajanchi Lal CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 6/13 CNR No. DLCT020000722001 specifically deposed in the cross examination conducted on 23.03.18 that the IO took the accused persons to the police station and no document was prepared in his presence at the spot. Contrary to that PW3 and PW4 deposed that the documents were prepared at the spot. Thus, the raiding party members who are police officials are deposing contradictory facts. If, all the documents were prepared in the police station alongwith the arrest memo of the accused persons and the seizure memo of the vehicle then the contents of these documents that the accused persons were arrested at Surghat, Wazirabad and the vehicle was recovered from that place only proved to be false. These contradictions remained unexplained during the trial.
11) It is the case of the prosecution and so supported by PW2, PW3 and PW4 that the car was having a fake number plate of registration no. UP 80 P 2332. The same came to the knowledge of the police officials at the time of recovery only. None of the witness deposed as to how they came to know that the registration number is the wrong one. The only way to get that verified to compare the chassis number of the vehicle as mentioned in the engine and in the alleged fake registration certificate. None of the witness deposed that the chassis number was found tampered or the chassis number of the vehicle was found incorrectly mentioned on the RC. If the chassis number was found tampered on the vehicle then the same was required to be sent to FSL for deciphering the correct chassis number. No such effort was made by the IO to this effect. The alleged fake number plate which was on the vehicle at the time of the recovery not seized by the CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 7/13 CNR No. DLCT020000722001 IO and not proved on the record. The case of the prosecution is silent on this aspect.
12) PW3 SI Ramesh Thakur deposed that he came to know before the preparation of the rukka that the car is a stolen one from Ghaziabad for which FIR No. 389/2000, has already been registered in Ghaziabad. The first poser arises at this moment is that if the IO came to know that the FIR has already been registered in PS Ghaziabad qua the vehicle in question then what was the requirement of present FIR. The accused persons could have been arrested in the Kalandara and the car could have been seized in that Kalandra only and the police officials of the concerned police station of District Ghaziabad could have been informed accordingly. Further, if the FIR number of the district Ghaziabad came into the notice of SI Ramesh Thakur, prior to the preparation of rukka, then why the FIR number was not mentioned in the rukka. Thus, the testimony of IO that he came to know about the FIR registered at the police station of District Ghaziabad prior to the preparation of rukka does not instill the faith of this court.
12.1) Moreover, the accused persons were allegedly apprehended on 26.07.2000 at 9.15 PM. The FIR was got registered at 10.15 PM. The rukka was sent at about 10.00 PM. Thus, within 45 minutes of the apprehension of accused persons IO came to know that the vehicle in question is a stolen one from Ghaziabad. IO deposed in cross examination that he got the particulars of the vehicle verified from RTO Agra and flashed messages to all SSPs and DCPs of India and came to know that the CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 8/13 CNR No. DLCT020000722001 vehicle is stolen one. If, the examination in chief and the cross examination of PW3 be read together then it reveals that within 45 minutes of the apprehension of the accused persons messages were flashed to all the DCPs and SSPs of India and immediately information received that the vehicle is stolen one for which a FIR already registered in Ghaziabad. All the witnesses admitted that they did not have any prior information or secret information regarding the vehicle in question. It is to be reminded here that the present case is 18 years old. In the year 2000, there was no e FIR nor there was any centralized edata for the FIRs. In the year 2000, it was possible that within 45 minutes it came into the knowledge that the vehicle is stolen one and that too in another State. The testimony of IO is not trustworthy on this aspect.
13) Recovery witnesses deposed that they came to know at the spot itself that the documents of the vehicle were fake. IO / PW3 deposed in the cross examination that he came to know that the RC is fake on 31.07.2000 after the verification from Agra. If that be so, then how on 26.07.2000, police officials came to know at the spot on the road that the RC is fake. On the other hand, if the knowledge as to the fake RC was of 31.07.2000, then how the fact that the RC was fake was mentioned on rukka on 26.07.2000. This again reveals that the rukka is antetimed and accordingly, it is proved on record that all the documents were prepared in back date, while sitting in the police station.
14) IO deposed in the cross examination that the constable returned from the police station after getting the FIR registered at about 11.15 PM on CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 9/13 CNR No. DLCT020000722001 26.07.2000 and thereafter the accused persons were arrested. The arrest memo bears the time of arrest of accused persons as 11.00 PM. Now if there was no FIR at the spot till 11.15 PM, then how accused persons were arrested at 11.00 PM, by mentioning the FIR number on the arrest memo. This fact also proves that the documents proved during investigation are antetimed.
15) Moreover, the accused persons were apprehended at a public place. No positive efforts were made to make public persons as independent witnesses of the present case. PW4 admitted the availability of public persons are the spot. Though the testimony of police officials cannot be said to be not credible perse, yet, as a matter of precaution the public persons were required to be joined in the investigation. Reliance could be placed upon judgment titled as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 10/13 CNR No. DLCT020000722001 could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under: "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
16) To sum up the recovery of vehicle in question from the possession of the accused persons not proved, thus, the possession of accused persons of fake RC at the time of the recovery of the vehicle also not proved. Prosecution failed to prove the use of fake number plate by the accused CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 11/13 CNR No. DLCT020000722001 persons on the vehicle in question.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held: "...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
17) The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 12/13 CNR No. DLCT020000722001
18) Accordingly, prosecution is not able to proved its case against the accused. Accused Danish and Yusuf are hereby acquitted from the present case. File be consigned to record room subject to compliance of Section 437A Cr.PC and with the liberty to the prosecution to revive the same as and when the accused Dilshad be apprehended.
Digitally signed KAPIL by KAPIL
KUMAR
KUMAR Date: 2018.11.29
14:09:55 +0530
Announced in open court (Kapil Kumar)
on 28.11.2018 MM5/Central District
Tis Hazari Courts/Delhi,
CIS No. 289954/16, State Vs. Dilshad etc., FIR No. 335/2000, PS : Timarpur, U/s. 411/471/34 IPC 13/13