Delhi District Court
State vs . Naresh & Ors. on 11 January, 2008
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Naresh & Ors.
CC No. 12/05
PS : RPF/NZM
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 100/05
b) Date of Institution : 10.05.2005
c) Name of the complainant : SI/RPF Harish Kumar Tyagi
d) The name & add. of accused : 1) Naresh, S/o. Panna Lal,
R/o. Vagabond, Under Road
Over Bridge, Modi Mill,
Okhla, New Delhi.
(Already convicted vide order
03.03.2006)
2) Javed, S/o. Sahabuddin,
R/o. RZ2941, Gali No. 33,
Tuglakabad Extn., New Delhi.
3) Naimuddin, S/o. Matloom,
R/o. D150, Parakash Mohalla,
Gadhi Lajpat Nagar,
New Delhi
e) Date of commission of
offence : 11.04.2005
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 11.01.2008
i) Final Order : Convicted
j) Date of Judgment : 11.01.2008
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the Page No. 1 prosecution are that on 11.04.2005 at about 14.00 hours at KM No. 1526/56 between Okhla and TKD Railway Station within the jurisdiction of RPF Post NZM accused Naresh was apprehended by RPF staff and found in possession of 8 pendrol clips as per seizure memo Ex. PW4/A belonging to Railway department reasonably suspected of having been stolen or unlawfully obtained and thereby accused Naresh committed an offence punishable U/s. 3 of RP (UP) Act 1966.
Further on the same day at the instance of accused Naresh a raid was conducted and at about 16.45 hours at Junk Shop near Okhla Shed Station accused Javed was apprehended by RPF staff and he was found in possession of 2 battery relay and 6 brake blocks as per Seizure memo Ex. PW4/C and at about 18.00 hours at Junk Shop at Gandhi Camp in front of Mandi Road Complex accused Naeemuddin was apprehended by RPF staff and he was found in possession of 2 battery relay, 10 pendrol clips, 8 brake blocks as per seizure memo Ex. PW4/F belonging to Railway department reasonably suspected of having been stolen or unlawfully obtained and thereby accused Javed and Naeemuddin also committed an offence punishable U/s. 3 of RP (UP) Act 1966.
2. After completion of enquiry complaint was put to the court for trial. The accused were summoned and copy of complaint and Page No. 2 other documents were supplied to them.
3. In order to prove its case prosecution examined 8 witnesses i.e. in precharge evidence examined PW1 Shri Shyam Wadhwa, SE, PW2 Shri R.K. Sharma, JE, PW3 Shri T.D. Murty, JE, PW4 SI Vinod Kumar and PW5 SI H.K. Tyagi. Thereafter pre charge evidence was closed and on 22.08.2005 accused persons were charged separately for offence punishable U/s. 3 RP (UP) Act 1966 to which accused persons pleaded not guilty and claimed trial.
4. Accordingly in aftercharge evidence PW1 to PW4 were cross examined by the learned Defence Counsel. Thereafter prosecution examined PW6 ASI Satbir Sharma, PW7 Insp. A.K. Sharma and PW8 HC M.A. Khan.
5. Thereafter PE was closed and statement of all accused persons were in which accused no. 1 Naresh in his statement recorded U/s. 281 Cr. P.C. admitted all allegations put against him by the prosecution and moved an application in this regard, whereas accused no. 2 Javed and accused no. 3 Naimuddin while their statement recorded U/s. 313 Cr. P.C. denied each and every incriminating evidence led against them by the prosecution and stated that they have been falsely implicated in this case and nothing was recovered from their possession and they are innocent. Accused no. 2 & 3 also desired to lead evidence in their defence. Page No. 3
6. Accordingly in Defence Evidence accused no. 2 & 3 examined DW1 Shri Chander Pal and DW2 Shri Javed in their defence and thereafter DE was closed.
7. Learned APP for State has submitted that the prosecution has examined all the material witnesses and their testimony are believable, trustworthy, corroborative, therefore accused persons are liable to be convicted. It is further submitted that the accused Naresh Kumar has already been convicted by the Hon' ble Court. Accused Naresh during the course of trial pleaded guilty voluntarily whereby he has submitted that on 11.04.2006 at about 14 hours between Okhla and TKD Railway Station he was apprehended by the RPF staff with unlawful possession of 8 pendrol clips as per the seizure memo Ex. PW4/A and 4 relay batteries and other railway properties were also recovered at his instance from other coaccused persons vide seizure memo Ex. PW4/C and F respectively. He further requested to take lenient view with respect to his submission Ex. D1. Hence vide order dated 03.03.2006 accused no. 1 was convicted for Rigorous Imprisonment for one year vide order dated 03.03.2006 by granting him benefit as provided under Section 428 Cr. P.C.
8. The Counsel for accused Javed and Naimuddin has submitted that there are major contradictions among the deposition of the prosecution witnesses. The first recovery was made on Page No. 4 11.04.2005 at about 14 hours from KM No. 1526 / 5 in between Nizamuddin Okhla Railway Station from 4 accused persons and 3 of them were Govind, Anil and Mahesh with pendrol clips and 4th was Naresh with 8 pendrol clips who was accused in this case. The recovery was made on the basis of disclosure statement of all four accused persons from the kabari shop of accused Javed and Nazimuddin and after bringing them at RPF Post a case crime No. 12/05 dated 11.04.2005 was registered against present accused persons.
It has further submitted by the learned Defence Counsel that PW1 has stated in chief examination that battery relay was broken condition and no railway marks on the property and it was in unserviceable condition. PW2 has admitted in cross examination that pendrol clip does not bear any railway marka and it is not mentioned in the theft report that how many pendrol clips were stolen from up and down lines separately. PW3 has admitted in cross examination that he cannot tell when break block came into store and from which wagon it was stolen. He also failed to tell from which wagon the brake blocks were provided. He admitted that the break block does not bear any marka of workshop. No theft memo was given to that effect.
It has further submitted by the learned Defence Counsel Page No. 5 that PW4 SI Vinod Kumar did not join any independent witness at any stage to support prosecution facts. He admitted in cross examination that he does not know whey he reached on the spot. He admitted that he cannot tell the departure time from the RPF post. He could not tell the number of taxi as well as the name of driver. He admitted that the battery box was closed and nothing could be seen. On the other hand pointing out memo Ex. PW14/B that the battery box was closed and he preeked out and saw four new battery relay at Line No. 6 from the bottom and P1. PW5 SI HK Tyagi admitted in cross examination that the statement of the prosecution witnesses that to whom material given P1 before charge. PW6 ASI Satbir Sharma in his examination in chief that both kabari shops situated in Okhla Subzimandi but as per search memo both kabari shops are situated in Gandhi Camp near Okhla Station and it clearly shows that the recovery from both accused is a planted one. He also stated that two battery each were recovered but not the relay.
It has further submitted by the learned Defence Counsel that PW7 IPF A.K. Sharma prepared the joint note with PW1 Sham Wadhwa at the spot and only mentioned theft of four relay but not mentioned replacement of the same was done or not in their presence which shows that the Joint note is a false one. PW8 HC MA Khan has stated that his examination chief that accused persons made Page No. 6 disclosure statement that they had stolen four battery two days before. He does not support the recovery memo made by the prosecution. He has not stated in his examination in chief that ASI Satbir Sharma and Ct. Ram Hari was called at Okhla Railway Station for their assistance.
It has further submitted by the learned Defence Counsel that after search accused Javed handed over key of kabri shop to his brother as per seizure memo who has been examined as DW1. He denied all the facts and prosecution storey. DW2 also denied all the facts. It is clearly shows that nothing was recovered from both the accused and recovery is a planted one. As per Section 223 Cr. P.C. separate recovery the challan should be separate but in this case recovery are separate from all three accused persons but challan is one and no application by the three accused deserving joint. On this point 1977 All Cr. Rule 34, 1977 All Cr. C.327 held that where copper wire was recovered from four different applicants on the same day and at the same time it can not be said that offence was committed by all four in the course of same transaction or jointly. Also no application is moved for joint trial and joint trial of four accused under Section 3 is illegal and trial is vicited.
In gist it is submitted by the learned Defence Counsel that the case property does not bear any railway marka; no theft memo Page No. 7 was received by EO of the recovered property; no independent witness was joined by the EO at any stage; the word battery rely has not been written in sequence and world relay has been added in all the documents subsequently prepared by the PW4; PW4 and 8 have not stated in their examination that ASI Satbir Sharma PW6 and Ct. Ram Hari were called at Okhla Railway Station for assistance; and there are material contradictions among the deposition of the prosecution witnesses. Therefore, the prosecution has failed to prove its case beyond reasonable doubt as such both accused persons Javed and Naimuddin are liable to be acquitted.
9. I have heard the submission of APP for State and Counsel for accused and carefully gone through the material produced on record. The gist of the learned Counsel for accused is regarding contradictions as pointed out in the written submission, nonjoining of the public witnesses and joint trial of accused persons as the recovery was shown separately.
Let consider the submission one by one. First of all in the first instance as per the contradictions as pointed out by the learned Defence Counsel PW1 in his examinationinchief stated that case property was in broken and unserviceable condition and no railway marka was there on the case property. PW2 in his cross examination stated that the pendrol clip does not bear any railway marka and it Page No. 8 was not mentioned in the theft memo that how many pendrol clips were stolen. It is further alleged that the PW3 admitted in his cross examination that he cannot tell when break block came into store and from which wagon it was stolen. He also failed to tell from which wagon the brake blocks were provided. He admitted that the break block does not bear any marka of workshop. PW5 SI HK Tyagi admitted in cross examination that the statement of the prosecution witnesses that to whom material given P1 before charge. PW6 ASI Satbir Sharma in his examination in chief that both kabari shops situated in Okhla Subzimandi but as per search memo both kabari shops are situated in Gandhi Camp near Okhla Station and it clearly shows that the recovery from both accused is a planted one. PW7 IPF A.K. Sharma prepared the joint note with PW1 Sham Wadhwa at the spot and only mentioned theft of four relay but not mentioned replacement of the same was done or not in their presence which shows that the Joint note is a false one. PW8 has also made contradictory statement while stating that accused person made disclosure statement that they had stolen four battery two days before. He does not support the recovery memo made by the prosecution.
In this regard I am of the view that the contradictions as alleged by the learned Defence Counsel with respect to the Page No. 9 possession of case property by accused persons and alleged contradictions are minor one as such it does not go to the root of the case of the prosecution on the point of possession and recovery. PW4 SI Vinod Kumar has categorically stated in his examination in chief that from the shop of kabari Naimuddin which is situated behind Okhla Subzi Mandi siding two relays, 900 grams copper and a break block and 10 pendrol clips were recovered and same were seized vide memo Ex. PW4/F on the same day.
The search of kabari shop of accused Javed also conducted and khana talashi was prepared which is Ex. PW1/J. PW 5 SI H.K. Tyagi in his cross examination stated that he has gone to the shop of Javed and shops in question Javed and Naimmuddin belonging to accused persons.
No material contradiction has been pointed out from these witnesses. PW6 ASI Satbir Singh has not been cross examined on behalf of accused persons as such his testimony as recorded in examination in chief will be read unrebutted. PW7 Insp. A.K. Sharma and PW8 HC M.A. Khan are not cross examined on the material points as such their testimony is also found unchallenged. The contradictions as alleged by the learned Defence Counsel in respect of vehicle which has been used for transporting the goods and the members of the raiding party, name of driver and number of taxi etc. Page No. 10 are immaterial which do not go the root of the case of the prosecution and hamper the recovery of articles from the accused persons. In case titled as " State of U.P. Vs. Bhagwan" AIR 1997 SC 3292 the Apex Court held that "..But minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution". Therefore minor contradictions in evidence before the court and statement recorded U/s. 161 Cr. P.C. do not discard the truthfulness of the witnesses. Even some improvements or exaggerations or some minor discrepancies do not hurt the prosecution case. "When in the evidence of rustic eyewitness, there are some variance about the distance from which accused fired shots, such discrepancies by itself are not sufficient to disbelieve the prosecution case" as held in case titled as " Ram Sagar Vs. State"
1994 Cr. LJ 589 (All).
For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen tis commission. The offence can be proved by circumstantial evidence also. The principal fact or " factum probandum" may be proved indirectly by means of certain inferences drawn from " factum probans" , that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue Page No. 11 but consists of evidence of various other facts which are so closely associated with the existence of the principal fact can be legally inferred or presumed.
"The courts dealing in criminal cases at least should constantly remember that there is a long mental distance between may be true and must be true and this basic and golden rule only helps to maintain the vital distinction between conjectures and suer conclusions to be arrived at one the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record" as held by the Apex Court in case titled as " Ashish Bhatham Vs. State" reported in AIR 2002 SC 3206. In another case titled as " State of U.P. Vs. Ballabh Dass" AIR 1985 SC 1384 it was held that : " ....What important in this connection is to find out if there are any material discrepancies. If the discrepancies go to the root of the matter they will have some bearing on the prosecution case.
Otherwise if they do not go to the root of the matter and if they are not on material aspects of the prosecution case, then case is not effected"
10. Therefore, in view of the aforesaid discussion I am of the Page No. 12 view that the contradictions as pointed out by the learned Defence Counsel are not such material one which can go to the root of the prosecution case and hamper it. The contradictions are minor here and there which are bound to occur in a most natural and truthful witness. The same view has been taken in case titled as " Zamir Ahmad Vs. State" J.J. P.K. Bahri, Mohd. Shamim, 1996 (I), AD Delhi 1012 which is as under : " It would be hard but to crack to find out a case which is bereft of exaggeration, contradiction and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tortured they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words, accordingly to his own perception and in proportion to his intelligence power of observation".
I also rely upon observations held in a judgment cited as Page No. 13 1998 IADC Delhi 639 titled as " State Vs. Ajay Kumar Singh" where Hon' ble Mr. Justice Arun Kumar and Hon' ble Mr. Justice N.G. Nandi observed as under : " That the evidence of partly true and partly false witness to that extent is considered reliable and corroborative. We need not to tally / discard the evidence of PWs, their evidence has corroborative value. The witnesses are not interested witnesses, PW3 is a natural witness. Even the most of the witnesses might have some discrepancies or minor contradictions in their own statement regarding property. If witnesses speak orally and give eye witness in their own words, there are bound to be slight variations. One cannot lose sight of normal human behaviour.
Each individual has his own perception of an event and likes to describe it in his or her own way coupled with this, the lapse of time between the incident and the stage of appearing as a witness in court also accounts for some minor variations and discrepancies are bound to be there in statement of even most honest and truthful witness."
11. With respect to another submission of learned Defence Page No. 14 Counsel that no public witness has been joined by the prosecution despite being available, to this effect I am not convinced with the submission as the RPF officials are not police officials and they are at pat with the other police officials. This view has been taken by the Apex Court in case titled as " Balkishan A. Devidayal Vs. State of Maharashtra" and " State of Madhya Pradesh & Ors. Vs. Hari & Ors." 1980 CRL. L. J. 1424 (SUPREME COURT) it was observed that :
" U/s. 25 - Police Officer - Officer of R.P.F. making inquiry in respect of offence under S. 3 of Railway Property (Unlawful Possession) Act (1966), is not Police Officer The primary test for determining whether an officer is a Police Officer is : Whether the officer concerned under the Special Act, has been invested with all the powers exercisable by an officerincharge of a Police Station under Chapter XIV of the Criminal Procedure Code qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (chargesheet) under Section 173 of the Cr. P.C. of 1898. In order to bring him within the purview of the 'p olice officer' f or the purpose of Section 25, Evidence Act, it is not enough to show that the exercises some or even many of the powers of Page No. 15 a police officer conducting an investigation under the Code. Constitution of India, Art. 20 (3) " Person accused of an offence" Person arrested under S. 6 of Railway Property (Unlawful Possession) Act 1966 -
Incriminating statements made by him during enquiry under S. 8 - Prosecution under S. 20 (3) not available."
Therefore, enquiry conducted by the Enquiry Officer is at par with the public witnesses. Even then no enmity or grudge has been pointed out by the accused persons over the RPF officials. They are also not interested in any kind of motive to depose against the accused persons, therefore, I do not find any strength in the submission of the learned Defence Counsel. I may also emphasis on the observations held by the Apex Court in case titled as " Ambika Prasad Vs. State" (Supra) where the the Apex Court again repeated that : " The whole prosecution case should not be thrown away merely if sufficient number of independent witnesses are not joined by the I.O. during the investigation if the case is otherwise proved beyond reasonable doubt on the basis of the material on record."
12. Learned Defence Counsel during the course of argument Page No. 16 has submitted that the RPF officials have apprehended the three accused persons at different time and with different case property and also rely upon photocopy of citation of 1977 of Crl. L.J. 1934 as stated above. With this respect I am of the view that no doubt different articles were recovered from the possession of accuse persons from different places but all the articles are recovered in one instance on the basis of pointing out of one coaccused Naresh from the kabari shops of the accused Javed and Naimuddin. It is not necessary that whatever article has been recovered from the kabari shop from the accused the same or similar article to be recovered from the kabari shop of another accused. No doubt some of the unserviceble article of railway may be auctioned in open market but it is not the case of the learned Defence Counsel that the accused persons have come in possession of the recovered article after purchasing the same in auction being higher bidders. PW1, PW2 and PW3 are the expert witnesses and they are examined to prove the authenticity of the case property and all of them have categorically stated that the case property as shown before them is a railway property which are not available in the open market. It is not necessary that each and every article railway property may have railway marka of either Northern Railway or any other Zone. I put reliance to this effect upon observations held in case titled as " Tara Chand Vs. State of U.P." Page No. 17 1973 Cri LJ 1098 it was held by Hon' ble Mr. Justice Prem Prakash that : " ....It may well be that the prosecution did not adduce direct evidence of theft, it is also true that these articles did not bear such specific marks as could lead one to say that they were railway property. But the corpus delicti of crime can also be proved by circumstances evidence"
13. The accused persons have also made disclosure and confessional statements during the course of enquiry which are independent piece of evidence and give strength to the prosecution case. In case titled as " Balkishan Vs. State of Maharashtra" Crl. L.J. 1980 page 1424 the Apex Court held that any incriminating statement of the accused does not get struck by either Section 25, 26 of the Evidence Act or Article 21 of Constitution of India. Hence, the confessional statement of the accused persons cannot be excluded from the prosecution evidence. I also rely upon the observations held in case titled as " Salim Mohamed Babul Miniyar Vs. State of Maharashtra" 2001 CRL. L. J. 58, (BOMBAY HIGH COURT) DR. (Mrs.) Pratibha Upasani, J. Cr. Revn. Appl. No. 243 of 1994 wherein it was held that : " Railway Property (Unlawful Possession) Act Page No. 18 (29 of 1966), Ss. 3(a), 8(1) - Unlawful possession of railway property - Accused voluntarily confessed that he had purchased stolen property of railway - Confessional statement recorded by RPF officer making enquiry under S. 8(1) - Is admissible in evidence as he is not a police officer under S. 162 CR. P.C. Conviction based on said confessional statement - Not illegal."
14. Accused persons in their defence examined two witnesses to dispute the allegations leveled against them by the prosecution but these witnesses during their cross examination have disproved their own contention while stating that they cannot tell the date and month of the incident or at what time RPF officials appeared there. DW1 in his cross examination stated that he cannot tell the month and date of incident. He also failed to tell date or month when RPF officials apprehended accused Naimuddin. He also admitted that he do not aware about the fact of the case. DW2 in his deposition stated that no search of shop was made in his presence. He admitted in his cross examination that he came for deposition at the request of accused Javed being his brother. He is not aware of the facts of the case. He cannot tell date, time and month of incident in question.
The deposition made by the defence witnesses is vague and does not inspire any confidence as such same is not found Page No. 19 trustworthy or believable.
15. Apart from above the accused no. 1 has already pleaded guilty and convicted at whose instance the recovery has been effected from present accused persons. In my view the prosecution has established their allegations leveled against the present accused persons. On the other hand accused persons in their statement recorded U/s. 313 Cr. P.C. simply denied the incriminating evidence led by the prosecution and taken a plea that they are innocent. By simply denying the prosecution case the burden to prove their contention shifted upon the accused persons, but accused persons failed to prove by oral submission or by producing any documents that why they have been falsely implicated in this case or failed to show any motive to implicate him in this case, as such this plea taken by the accused persons is vague and baseless which seems to be afterthought. To this effect I reply upon Section 103 & 106 of Indian Evidence Act which provides as under : " 103 Burden of proof as to particular fact:-
The burden of prof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the prof of that fact shall lie on any particular person. Illustration
(a) A prosecutes B for theft, and wishes Page No. 20 the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."
" 106. Burden of proving fact especially within knowledge :- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
16. In view of the aforesaid discussion and facts and circumstances of the case I come to the conclusion that prosecution has proved its case against accused. Accordingly accused Javed, S/o. Sahabuddin and Naimuddin, S/o. Matloom are hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 11.01.2008 MM:DELHI.
Page No. 21
State Vs. Naresh & Ors.
CC No. 12/05
PS : RPF/NZM
U/s. 3 RP (UP) Act 1966
11.01.2008
Present: APP for RPF.
Accused Naresh already convicted.
Accused Javed and Naimuddin on bail with Counsel. Argument heard.
Vide separate Judgment of today accused Javed, S/o. Sahabuddin and Naimuddin, S/o. Matloom are convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
Now put up for order on sentence on 16.01.2008.
(S.K. Gautam) MM/Delhi 11.01.2008 Page No. 22