Delhi District Court
State vs . Navin @ Sagar & Ors. on 12 October, 2015
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST): SAKET
COURTS:NEW DELHI
State Vs. Navin @ Sagar & Ors.
FIR No. 307/06
U/s 379/411/482/34/174A IPC
P.S. G.K. I
J U D G M E N T
Serial No. of the Case : 502/2/14.
Unique Identification No. : 02406R1028192007
Date of Institution : 17.03.2007
Date on which case reserved for
judgment : 07.10.2015.
Date of judgment : 12.10.2015
Name of the complainant : Irfan Marazi.
r/o J10, Kailash Colony,
G.K1, New Delhi.
FIR No. 307/06
P.S. G.K.I Page No.1 of 17
Date of the commission of offence: 27.08.2006
Name of accused : 1) Naveen @ Sagar
s/o Prem Nath
r/o Jhuggi No.B361, Sector
No.1, R.K. Puram,
New Delhi. (since
convicted)
: 2) Satish @ Raja @ Azad
S/o Bane Singh.
R/o A653, Ghadoli Diary
Farm, Mayur Vihar, Phase
III, New Delhi.
Offence complained of : U/s 379/411/473/34 IPC.
Offence charged of : U/s 379/411/482/174A/34
IPC.
Plea of the accused : Pleaded not guilty.
Final order : Acquitted.
Date of Institution : 17.03.2207
Date on which case reserved
for judgment : 07.10.2015.
Date of judgment : 12.10.2015.
FIR No. 307/06
P.S. G.K.I Page No.2 of 17
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
1. Briefly the case of the prosecution is that the present FIR was registered on a complaint of complainant that his Maruti Alto Car bearing No.DL3CAG8984 was stolen from outside of his house on Sunday i.e. 27.08.2006 in the morning. The same was stolen around 04:00am as the same was seen by the security guard of his neighbour. The aforesaid car was of silver colour. Further that all the documents pertaining to the vehicle were inside the car alongwith the passport of his wife.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge was framed against the accused under Section 379/411/482/34 IPC and Section 174(A) IPC to which he pleaded not guilty and claimed trial.
FIR No. 307/06 P.S. G.K.I Page No.3 of 17
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, prosecution examined as many as eleven witnesses in order to prove its case. Two witnesses had been examined as PW1 and for the sake of convenience PW1 HC Sita Ram shall be read as PW1A.
PW1 Shadi Lal (Mechanical Inspector) deposed during his examination u/s 299 CrPC that on 01.11.2006 he had conducted the mechanical inspection of the vehicle bearing registration no.DL3CAG8984, PS G.K.I and his report was Ex. PW1/A. PW1A HC Sita Ram deposed that on 27.08.2006 he was posted as duty officer and his duty hours were from 04:00pm to 12:00am (midnight). At around 09:15pm, he received rukka from Ct. Mukesh for registration of FIR which was sent by HC Sukhpal. He endorsed the same vide Ex.PW2/A and registered the present FIR Ex.PW2/B. He handed over the original rukka and copy of FIR to Ct. Mukesh for handing it over to HC Sukhpal.
Opportunity to cross examine the witness was granted to the accused but the accused did not put any question to PW1A.
PW2 HC Pramod Kumar deposed that on 14.10.2006 he was posted at Crime Branch, Chankya Puri. He joined the investigation alongwith FIR No. 307/06 P.S. G.K.I Page No.4 of 17 IO/SI Akshay Kumar, ASI Devender, HC Sanjay, Ct. Parvesh Alam and Ct. Surender. On that day, IO had received a secret information that some persons would come in front of Hblock market, Sarita Vihar in a stolen vehicle. Upon receiving the said information, IO prepared the raiding party comprising of aforesaid officials and thereafter reached at the aforesaid place to lay a trap. At about 02:30pm, one Alto Car of Silver colour came in front of Hblock market and upon receiving signal from the secret informer and on instructions of IO, accused persons were apprehended. During that time, accused Satish was driving the vehicle and coaccused Naveen was sitting alongwith accused Satish beside the driver seat. The registration number of the vehicle was DL9CN1768 and the same was found to be fake. IO got the same verified and original number was revealed as DL3CAG8984. The aforesaid car was reported to be stolen in the present FIR. Further that one blue bag was also found lying at the back seat of the car and the same was seized by IO alongwith the forged number plates, photocopy of RC. The aforesaid vehicle was also seized. The seized bag was containing 8 Drill pad, 1 steel scale of 12 inch, 1 piler make Hero, 4 screw driver of different size, 1 broken stearing lock, 4 other broken locks of different vehicles, 1 vehicle key and some old screws. Accused was identified by the witness. The number plate DL9CN1768 was produced in the court in an unsealed condition on FIR No. 307/06 P.S. G.K.I Page No.5 of 17 which the particulars of the present FIR was mentioned and the same was Ex.P1. The case property found in the bag was Ex.P2.
During the crossexamination by Ld. LAC for accused, PW2 deposed that DD entry was made prior to the departure as DD No.2 and further that the accused was apprehended at about 02:30pm and that he remained at the spot for about 2 ½ hours. The place was not crowded but public persons were passing from there and IO had made request to some public persons to join the investigation but they refused to join the same and left. IO did not note down their name and addresses nor served any notice upon them. It was correct that the measurement of the number plate was not mentioned in the seizure memo and does not have any distinct mark of identification. It was further correct that the case property Ex.P2 was also not having any distinct identification mark and that the same was available in an open market. PW2 further stated that the key number was not mentioned in the seizure memo and that he had made the arrival entry in the same office at about 11:30pm.
PW3 Amit Kumar Sehrawat, Junior Judicial Assistant, Record Room Criminal, Tis Hazari Court deposed that he has brought the judicial file pertaining to FIR No.528/06 u/s 379/411/473/34 IPC, PS Uttam Nagar from which the original seizure memo of the Alto Car and the bag were FIR No. 307/06 P.S. G.K.I Page No.6 of 17 Ex.PW3/A and Ex.PW3/B. The disclosure statement of the accused recorded in the aforesaid FIR was Ex.PW3/C. During the crossexamination, PW3 stated that he has no personal knowledge of the case and he was summoned only to bring the summoned record.
PW4 Ct. Surender Singh deposed that on 07.11.2006 he was posted at PS G.K.I and on that day he alongwith Ct. Dharmi Lal joined the investigation with IO/HC Sukhpal Singh and reached at Patiala House Courts where IO formally arrested the accused persons namely Satish and Naveen vide arrest memos Ex.PW4/A and Ex.PW4/C. On the same day, complainant had come to the PS to produce the photocopy of the RC of the car bearing registration no.DL3CAG8984 which was seized by IO vide seizure memo Ex.PW4/C. On 12.11.2006, IO had seized the fake number plate vide seizure memo Ex.PW4/D. During the crossexamination, PW4 stated that they reached Patiala House Courts at around 02:30pm and that he did not remember the exact time when the aforesaid seizure memos were signed by him.
PW5 Ct. Dharmi Lal deposed that on 07.11.2006 he joined the investigation with IO and reached Patiala House Courts. IO arrested the accused persons formally in the Court and accused Satish @ Azad was FIR No. 307/06 P.S. G.K.I Page No.7 of 17 arrested vide Ex.PW4/A. Opportunity to cross examine the witness was granted to the accused but the accused did not put any question to PW5.
PW6 HC Hari Krishan deposed that on 15.10.2006 he was posted as duty officer from 08:00am to 04:00pm and upon receiving the call from SI Ajay Kumar, Crime Branch, Chanakyapuri at around 02:50pm regarding apprehension of accused Satish @ Azad and Naveen @ Sagar in FIR No.528/06, PS Uttam Nagar in which the disclosure statement of the accused revealed his involvement in FIR No.307/06 and also regarding seizure of some car. Upon receiving the said information, he recorded the same vide DD No.15A and the same was Ex.PW6/A. Thereafter, he informed the concerned IO regarding the aforesaid fact.
Opportunity to cross examine the witness was granted to the accused but the accused did not put any question to PW6.
PW7 HC Sukhpal Singh (IO) deposed that on the intervening night of 26/27.08.2006, he was posted at PS G.KI and was on emergency duty from 07:00pm to 08:00am. At about 04:30am, upon receiving DD No.40A regarding theft at H.No.J10, Kailash Colony, G.K.I. He alongwith Ct. Mukesh reached the spot and met complainant Irfan who handed over a written complaint to them. On the basis of which he endorsed the rukka vide FIR No. 307/06 P.S. G.K.I Page No.8 of 17 Ex.PW7/A and got the FIR registered through Ct. Mukesh. He prepared the site plan at the instance of complainant vide Ex.PW7/B and sent the WT message regarding theft of the vehicle bearing reg. No. DLVCAG8984 was given to Transport Authority vide memo Ex.PW7/C. Further he tried to trace the stolen car but the same could not be found. During investigation on 15.10.2006, he was informed by Crime Branch Chanakya Puri through SI Akshay Kumar, Vide DD No. 15A, copy of which was marked as Mark X that the above said stolen car was recovered from accused navin @ Sagar (since already convicted) and accused Satish @ Raja. Thereafter, he collected the copy of relevant documents pertaining to cse FIR No. 528/06, PS Uttam Nagar from SI Akshay Kumar. On 27.10.2006, production warrants were sought in respect to both the accused and they were formally arrested in the Court on 07.11.2006 and thereafter he collected the photocopy of RC of the aforesaid vehicle from the complainant and seized the same vide Ex. PW4/E On 27.10.2006 aforesaid vehicle alongwith duplicate key were brought from PS Uttam Nagar to Malkhana PS G.k.1 vide RC number 237/21/06 and the same was Ex. PW7/D. On 12.11.2006 the fake number plate of aforesaid vehicle bearing Reg. No. DL9CM1768 was removed and seized vide seizure memo Ex. PW4/D. Mechanical Inspection of the aforesaid vehicle was got conducted and he recorded the statement of witnesses and after completion FIR No. 307/06 P.S. G.K.I Page No.9 of 17 of investigation charge sheet was filed. Photographs of the stolen vehicle were Ex. P1 During the crossexamination, PW7 stated, that it was correct that as per his investigation no person was seen while committing the theft by the accused persons and that he did not visit the place of recovery during the investigation and he had not prepared any site plan of the place of recovery. Further it was correct that the alleged fake number plate was not seen and number plate was removed from the car at Malkhana of PS G.K.1. It was correct that the negatives of the photographs were not placed by him in the judicial file as they were clicked from his mobile.
PW8 HC Daryav Singh deposed, that on 05.10.2014 he was on duty and received the present case file pertaining to proclaimed offender Satish @ Raja from MHC(R) and upon the instructions of the SHO concerned accused was declared proclaimed offender on 23.02.2011. On 01.10.2014 it was revealed to him that accused namely Satish was in custody in case FIR No. 454/06 P.S. G.K.1. Thereafter, after obtaining production warrant through HC Anil Kumar and Ct. Sunil Pawar accused was formally arrested. He prepared the supplementary charge sheet U/s 174A IPC against the accused and the same as Ex. PW8/A running into 05 pages.
Opportunity to cross examine the witness was granted to the accused FIR No. 307/06 P.S. G.K.I Page No.10 of 17 but the accused did not put any question to PW8.
PW9 Ct. Sunil Panwar, deposed that on 23.02.2011 accused Satish was declared proclaimed offender in the present matter and on 27.09.2014, he came to know that accused Satish was in judicial custody in FIR No. 454/06 and thereafter an application for production warrant was moved vide memo Ex. PW9/A and on 01.10.2014 accused Satish was produced before the Court and formally arrested in the present matter and is personally search was conducted vide memo Ex. PW 9/B and Ex. PW9/C. During the crossexamination by Ld. LAC for accused PW9, deposed that he came to know from someone regarding the fact that accused was in judicial custody and he did not remember from whom such information was received and that he had not reduced the same in writing. He participated in the investigation for the offence U/s 174A IPC with the IO and he had never gone with IO to collect any of the document regarding proclamation.
PW10 Inspector Akshay Kumar, deposed that on 14.10.2006 he was posted at Inter State Cell Crime Branch,Chanakya Puri. On that day upon receiving secret information that one stolen car would come from H Block, Market, Sarita Vihar, and if raided the actual culprit would be apprehended. Thereafter, he alongwith ASI Devender, HC Pramod and secret FIR No. 307/06 P.S. G.K.I Page No.11 of 17 informer reached at HBlock Market, Sarita Vihar and about 02:30 p.m. upon being signaled by secret informer one Maruti Alto car bearing Reg. No. DL9CN1768 stopped at HBlock Market, and two persons were found sitting inside the car. The car was driven by accused Satish and another accused Navin @ Sagar was found sitting beside the driver on the front seat. Upon enquiry it was revealed that the original vehicle Number was DL3CAG8984 and the same was stolen from the area of PS G.K.1. At that time, one Blue Colour, Raxen bag containing some articles was seized vide seizure memo Ex. PW3/B . The aforesaid Alto car with fake number plate was seized vide memo Ex. PW3/A and after interrogation disclosure statement of the accused persons was recorded vide Ex. PW3/C and PW3/D. Thereafter, both accused persons took them to J10, Kailash Colony, and appointed the placed from where the vehicle was stolen and pointing out memo was prepared vide Ex. PW10/A and Ex. PW10/B. Thereafter, he informed about the same to PS G.K. 1, and case property was deposited at Malkhana and accused persons were sent to lockup in FIR No. 528/06, PS Uttam Nagar. Thereafter, he handed over the copy of relevant documents , seizure memo, disclosure statement and pointing out memo to IO / HC Sukhpal Singh, who recorded his statement U/s 161 Cr.P.C. The photographs were Ex. P1 and the articles of seized blue colour bag were Ex. P2.
FIR No. 307/06 P.S. G.K.I Page No.12 of 17
During the crossexamination by Ld. LAC for accused, PW10 stated, that he does not remember the exact time of receiving the secret information and that the same was not reduced in writing. Further the vehicle was intercepted at 02:30 p.m. and no public persons were passing the spot and that they remain at the spot for about two and a half hour. The bag containing drill machine and other equipments was not sealed and it was correct that no distinct mark of identification was put on any of the equipment. Further, that they return back to office of Crime Branch at around 09:00 p.m. and that they had made the arrival entry in the office but he does not remember there DD No. in respect to same. Further it was correct that the fake number plate was not removed by him at the time of seizing the same and the disclosure statement of the accused persons was recorded in the office of Crime Branch. Lastly, it was correct that no site plan of place of recovery was prepared.
PW11 ASI Anil Kumar, deposed on the lines of PW8 and PW9 and the same is not repeated for the sake of brevity.
During the crossexamination by Ld. LAC for accused, PW11 stated, that on 29.09.2014 he was informed that the accused was in judicial custody by secret informer and the same was given to him and to Ct. Sunil and the same information was not reduced in writing. Further that in U/s FIR No. 307/06 P.S. G.K.I Page No.13 of 17 174A IPC charge sheet IO had recorded his statement and he did not know if IO had collected relevant documents pertaining of proclamation of accused. Further that he had not handed over any document to the IO and the relevant document were handed over to IO by Ct. Sunil.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. No defence witness was examined on behalf of the accused.
7. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that the accused Satish has stolen the vehicle in question and the same was recovered from his possession and therefore, he is liable to be convicted.
8. On the other hand, the Ld. LAC of the accused has argued that the prosecution has failed to establish its case beyond reasonable doubt. In FIR No. 307/06 P.S. G.K.I Page No.14 of 17 the present matter, prosecution has cited twelve witnesses among which apart from the complainant namely Irfan Merazi, all the other witnesses are formal in nature. He has argued that apart from complainant, all witnesses examined by prosecution are police officials, and therefore complainant, being the prime witness of the present matter, was required to appear in the witness box to establish the factum of theft but the same could not be done as the witness was untraceable and was dropped by the prosecution. Further, the prosecution has failed to prove the ingredients required to establish any offence committed by the accused as the case property was produced in an open condition and without any seal. He has further argued that the material witnesses have not been examined and therefore, accused Satish is liable to be acquitted. Further, accused Satish was declared proclaimed offender on the statement of process server Ct. Sunil Panwar, but he was not cited as the witness in the supplementary chargesheet filed under Section 174A IPC and accused was not granted an opportunity to cross examine the aforesaid witnesses.
9. I have heard Learned LAC for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record. FIR No. 307/06 P.S. G.K.I Page No.15 of 17
10. In the present facts and circumstances, where the prosecution has not examined the material witness i.e, the complainant as he was not traceable, the factum of theft does not stand proved. Further, all the witnesses examined by the prosecution are formal in nature and in the absence of any public person which was required to be examined, despite the fact that the place of recovery was a public place, the story of prosecution does not hold water. Further the testimony of witnesses examined by prosecution is not corroborative as there are material contradictions in their statements. Therefore, I am of the considered view that the present matter, prosecution has failed to establish the guilt of the accused beyond reasonable doubt and therefore, accused is acquitted of the offence charged against him.
11. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence FIR No. 307/06 P.S. G.K.I Page No.16 of 17 that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
12. In view of above discussion, the accused Satish @ Raja @ Azad is acquitted of offence punishable U/s 379/411/482/174A/34 IPC. Pronounced in open court (SHEETAL CHAUDHARY PRADHAN) on 12.10.2015. MM10 (SouthEast): Saket Courts:
New Delhi:12.10.2015 FIR No. 307/06 P.S. G.K.I Page No.17 of 17