Delhi District Court
State vs . Jitender & Ors. on 19 March, 2018
1
IN THE COURT OF SH. ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR NO. 182/15
PS OIA
U/s 379/411 IPC
State Vs. Jitender & Ors.
ANUBHAV
JUDGMENT JAIN
A. SL. NO. OF THE CASE : 165/7/15 Digitally signed by
ANUBHAV JAIN
B. DATE OF INSTITUTION : 06.07.2015 Date: 2018.03.19
22:04:16 +0530
C. DATE OF OFFENCE : 28.02.2015
D. NAME OF THE : HC Suresh Kumar
COMPLAINANT No. 399/SE
E. NAME OF THE ACCUSED : 1. Jitender @ Jitu
S/o Sh. Vinod Paswan
2. Pawan Kumar
S/o Sh. Ram Chander Prasad
3. Sonu
S/o Sh. Jeevan Singh
F. OFFENCE
COMPLAINED OF : U/s 379/411/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 19.03.2018
Brief Statement of Reasons for Decision :
1.The accused persons are produced before the court to stand trial u/s 379/411/34 IPC.
22. In brief facts of the case as per the prosecution that on 28.02.2015 HC Suresh Kumar along with Ct. Nabtej and Ct. Vineet were on patrolling duty and when they reached at B26, OIA, PhaseI, they found 3 persons were trying to open the tyre of one vehicle make TATA ACE. It is further stated that on suspicion the said persons were apprehended and on interrogation the said person disclosed that they had stolen the vehicle bearing No. DL1LS2917 from C10, OIA, PhaseI and on seeing the police they got afraid and parked the vehicle at the side of the road and pretended to open the tyre of the said vehicle. It is further stated that HC Suresh Kumar had called at mobile No. 9911828131 which was mentioned on the vehicle and contacted the owner of the vehicle namely Arti who informed him that she is the owner of the said vehicle and he has parked the same at C10, OIA, PhaseI and we searched for the same it was not found. It is further stated that IO got the FIR registered against the accused persons, prepared the site plan and recorded their disclosure statement. Seized the vehicle bearing No. DL1LS2917. Conduct the personal search of accused and arrested them. After completion of investigation IO prepared the chargesheet and filed it before the court.
3. Accused persons appeared before the court on 06.07.2015 and copy of the charge sheet and documents annexed therewith were supplied to accused persons u/s 207 CrPC. The accused persons were charged on 23.09.2015 u/s 379/411/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. Thereafter, the case proceeded for prosecution evidence.
34. In order to substantiate its case, the prosecution examined following witnesses :
4.1 PW1 ASI Suraj Pal proved the FIR Ex. PW1/A. 4.2 PW2 Smt. Aarti deposed that her husband had a car bearing registration no. DL12917 which was registered on her name, however her husband could not drive the abovesaid car due to his health issue and that is why the abovesaid car was parked out of her house. She further deposed that during the treatment of her husband, she came to know that the accused persons had stolen her car and police had apprehended them. She further deposed that she was informed by the police regarding the theft. She identified her vehicle and the accused persons in the court.
4.3 PW3 Ct. Nabtej deposed that on 28.02.2015, he was posted as constable at PSOIA and was on patrolling duty alongwith HC Suresh Chand and Ct. Vinit. He further deposed that on that day at around 02:45 am when they reached in front of B26, OIA PhaseI, New Delhi they saw three persons were removing the tyre of tempo bearing registration no. DL1LS2917 and on suspicion they apprehended and interrogated all the three persons and they revealed their names as Sonu, Pawan and Jitender. He further deposed that accused persons disclosed that they had stolen the abovesaid tempo from front of C10, Majdoor Kalyan Camp, OIA PhaseI, New Delhi but on seeing the police party they pretended to remove the tyre of the said tempo. He further deposed that IO/HC Suresh Chand prepared the rukka and gave it to him for registration of the FIR. He further deposed that HC Yogender had arrested all the accused persons and their personal search were conducted vide Ex.PW3/A to Ex.PW3/F'. He further deposed that the abovesaid tempo alongwith 4 duplicate keys and instrument used for unbolting the tyre (Pana) were seized vide Ex.PW3/G and disclosure statement of all the accused persons were recorded vide Ex.PW3/H to Ex.PW3/J. He further deposed that all the accused persons took them to near service road in front of C10, OIAI and pointed out the place from where they have committed the theft of abovesaid tempo vide pointed out memo Ex.PW3/K. 4.4 PW4 Ct. Vinit and PW5 ASI Suresh deposed the similar facts as stated by PW3 Nabtej and same is not reiterated here for the sake of brevity.
4.5 PW6 ASI Yogender Sharma deposed that on 28.02.2015 he was posted as HC at PSOIA and on that day present case was marked to him for investigation. He deposed that he went to the spot i.e. B26, OIA Phase1, New Delhi where he met HC Suresh Tyagi, Ct. Vineet and Ct. Mukesh and found that accused persons were apprehended by police officials at the spot and the stolen vehicle TATA Ace bearing no. DL1LS2917 was also taken into possession. He further deposed that he interrogated the accused persons and recorded their disclosure statement vide Ex. PW3/H, PW3/I and PW3/J, prepared the site plan at the instance of HC Suresh Tyagi vide Ex. PW6/A, conducted the personal search of accused persons vide memos Ex. PW3/B, PW3/D and PW3/F and arrested them vide arrest memos Ex. PW3/A, PW 3/C and PW3/E. He further deposed that he seized the stolen property and duplicate key and pana vide seizure memo Ex. PW3/G and deposited the case property at Malkhana and put the accused persons behind Bar and after concluding the investigation filed the charge sheet in court. He further identified the accused and case property in court.5
5. Subsequently, statement of the accused persons U/s 313 CrPC was separately recorded on 25.01.2018, wherein all the accused persons denied all the allegations made by the prosecution against them. They further chose not to lead any defence evidence.
6. I have heard Ld. APP for the state and Ld. counsel for the accused persons. I have carefully perused the case file.
7. It is settled proposition of law that burden lies upon prosecution to prove its case beyond all reasonable doubt. It is the case of the prosecution that accused persons were found in possession of vehicle by the police officials while patrolling and they disclosed the fact of having the stolen the above said vehicle which was subsequently verified by the owner Smt. Arti.
8. Prosecution in order to prove its case has examined Ct. Nabtej, ASI Suresh Tyagi and Ct. Vinit and ASI Yogender Sharma who cororborated the case of prosecution. It is argued by Ld. APP for the State that accused persons were arrested with the stolen vehicle and the fact regarding theft was proved by PW2 Arti and as such prosecution proved his case beyond reasonable doubts and accused persons liable to be convicted.
9. On the other hand it was argued by the counsel for the accused persons that the site plan of the place from where the accused persons were apprehended with the stolen vehicle was not made by the IO. It is further argued that no photographs of the spot of the recovery was taken by the IO. It is further argued that no photographs of paana and the duplicate keys was taken and when panna was produced before the court it was in open condition 6 and were not sealed. He further argued that that alleged Duplicate Key was never produced before the court. It is further argued that no public person was joined in as witness. It is further argued that the thumb impression of the person to whom the information of arrest was given on the arrest memo of accused Jitender does not state as to whether the same of his father Vinod Paswan and or his mother Renu Devi. It is further argued that no separate pointing out of memos were prepared. It is further argued that although ASI Yogender Sharma during his cross examination has stated that bolts of tyre of stolen vehicle were already unscrewed however the said bolts were never made the case property by the IO. It is further argued that there are contradictions in the testimony of the prosecution witnesses.
10. In order to prove the fact that the accused persons have stolen the said vehicle, the prosecution has not placed on record any evidence except that of the disclosure statements of the accused persons. The statement so made by the accused persons are inadmissible in evidence as per section 25 of Indian Evidence Act 1872. There is no other witness produced by the prosecution who has seen the accused persons committing the theft of the said vehicle.
11. With regard to the fact that accused persons were found in possession of the said vehicle knowing the same to be stolen, the prosecution has examined Ct. Nabtej, Ct. Vinit, ASI Suresh Tyagi and ASI Yogender Sharma.
All the said witnesses of the prosecution have stated that the accused persons were found in possession of the said vehicle and on suspicion when they were interrogated they disclosed their involvement in the said crime.
712. On the other hand, counsel for the accused has argued at length stating that there are material contradictions in the case of the prosecution and there are several unexplained facts on the part of the prosecution. It was argued that no public witness was made by the police officials at the time of arresting the accused persons. In Pramod Kumar v. State (Govt. of NCT of Delhi), (2013) 6 SCC 588 , it was observed by Hon'ble Apex Court :
13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48] , State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595 : 2013 AIR SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.
13. It is pertinent to state in here that Ct. Vinit during the course of his cross examination has stated that they were in PCR Van, however ASI Suresh Tyagi in his cross examination has stated that they were patrolling in their private vehicle while ASI Yogender Sharma during the course of his cross examination has stated that there was no PCR or vehicle at the spot when he 8 reached there. As such none of the witness could explain as to how they reached on the spot.
14. It is further pertinent to state in here that as per the story of the prosecution, the accused persons have used the duplicate Key to steal the vehicle and same was seized from the spot by the police, however said duplicate key was never produced before the court by the IO. Further more there is no explanation as to why the same was not produced by the prosecution. It is further the case of prosecution that pana was seized by the IO from the accused persons from the spot, however the pana so produced before the court was in unsealed condition.
15. It is further pertinent to state in here that in the arrest memo of accused Jitender in column 7 i.e. the name of the person to whom the information of arrest was conveyed, name of father of accused Jitender has been mentioned. Further Renu Devi is also mentioned in the same column. The said column also bears a thumb impression, however it has not been stated as to whose thumb impression has been taken on the said arrest memo. During the course of cross examination, IO / ASI Yogender Sharma deposed that he informed mother of accused Jitender who came at spot at 6.00 am, however he did not take signatures or thumb impression of mother of accused Jitender.
16. It is further pertinent to state in here that as per the story of prosecution the vehicle was stolen by the accused persons from C10, OIA Phase1 and they were found in possession of the said vehicle at B26, OIA Phase1, New Delhi. The IO has placed on record the site plan of the spot from where the alleged vehicle was stolen i.e. B26, OIA Phase1. It is stated by the IO during 9 the course of his testimony that the said site plan was prepared by him at the instance of HC Suresh Tyagi. There is nothing in the entire testimony of Suresh Tyagi that he ever visited the spot from where the vehicle was stolen by the accused persons. It is further pertinent to state in here that the pointing out memo Ex. PW3/G does not bear signatures of HC Suresh Tyagi. Furthermore no site plan of the place from where the accused persons were apprehended alongwith the abovesaid vehicle is prepared by the IO.
17. In light of the abovesaid fact that there are several contradictions in the testimony of prosecution witnesses, conviction cannot be done merely on the sole testimony of police officials. In view of the same, all he accused persons are acquitted for the offence for which they were charged.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 19.03.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 09 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE, SOUTHEAST, SAKET COURTS, NEW DELHI