Delhi District Court
State vs Rajesh Kumar @ Khanna Etc. on 10 February, 2012
IN THE COURT OF SH. TARUN YOGESH, METROPOLITAN
MAGISTRATE 01, SOUTH WEST , DWARKA COURTS, DELHI
State v/s Rajesh Kumar @ Khanna etc.
FIR No: 446/96
PS: Delhi Cantt.
U/s: 411 IPC
JUDGMENT
1. S. No. of the Case : 117/08
2. Date of Commission of Offence : 21/09/1996
3. Date of institution of the case : 12/08/1997
4. Name of the complainant : SI Bharat Singh, AATS/SW
5. Name of accused, parentage : (1) Rajesh Kumar @
Khanna s/o Sh. Babu Lal
r/o: Village Bandikur, Distt.
Dosa, Rajasthan
(2) Vinod s/o Sh. Ram
Dayal r/o: Village Aakapur
Dhiyana PS Baby Nagar,
Distt. Bulandshahar, U.P.
(3) Sunil Sharma s/o Sh.
Suraj Mal Sharma r/o: 8/89,
Mehram Nagar, New Delhi
6. Offence complained or proved : u/s 411 IPC
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : ACQUITTED
9. Date of Final Order : 10/02/2012
B RIEF REASONS FOR SUCH DECISION :
FIR No:446/96 Page 1 of 18
1. All three accused namely Rajesh Kumar, Vinod and Sunil Sharma are facing trial for offence u/s 411 IPC on the allegation that one stolen cellular mobile phone each was recovered from the possession of accused Rajesh Kumar and Vinod on 21/09/1996 at Palam Road, near Mehram Nagar Village during nakabandi upon information received from secret informer and upon their pointing out, two and six more cellular phones were recovered at their instance and coaccused Sunil Sharma was also apprehended on the same day upon their disclosure statement and two more cellular mobile phones were recovered from him which the accused persons had retained knowing or having reason to believe the same to be stolen property and thereby committed the aforesaid offence.
2. After registration of FIR at PS Delhi Cantt on 21/9/1996, at 7.20 pm vide DD No. 24A, matter was investigated by IO who filed chargesheet before my ld. Predecessor MM on 12/08/1997. My ld. Predecessor MM took cognizance of the offence and directed for summoning accused persons. After ensuring their presence and compliance of Section 207 CrPC, formal charge for offence u/s 411 IPC has been framed and explained to all three accused on 02/07/2003 to which they pleaded not guilty and claimed trial.
3. Prosecution story in brief is that on 21/09/1996, SI Bharat Singh alongwith HC Maan Singh, Ct. Vijender, Ct. Shri Bhagwan, Ct. Brijesh and Ct. Charan Singh was on patrolling duty in the area near Gopinath Bazaar when a secret informer met him and informed that accused namely Vinod and Rajesh who were working FIR No:446/96 Page 2 of 18 in International Cargo would be coming near Sanjay Tpoint alongwith some stolen mobile phones stolen from cargo on their way to Mehram Nagar to hand over the stolen mobile phones to their friend. IO requested 4 to 5 public persons to join the raiding party but those public persons left the spot citing personal reasons. Without wasting time, IO constituted raiding party including himself and other police officials and did nakabandi at Palam Road near Mehram Nagar. At about 5:45pm, upon pointing out by secret informer, accused Vinod and Rajesh Kumar were apprehended and during their informal search one cellular phone make Qalcomm was recovered from the right pocket of accused Vinod and similarly one cellular phone make Qalcomm was also recovered from the left pocket of coaccused Rajesh Kumar. Upon interrogation both accused confessed to have stolen the mobile/cellular phones from the cargo. The recovered cellular mobile phones were seized and IO prepared tehrir/rukka which was sent to PS for registration of FIR. After registration of FIR, IO prepared site plan and recorded statement of witnesses. Both accused Rajesh and Vinod were arrested in this case, their disclosure statements were recorded and pointing out memo was got prepared at their instance. Upon their instance two and six more cellular phones were recovered and co accused Sunil was also arrested. After collecting sufficient evidence against them, IO prepared chargesheet/police report u/s 173(2) CrPC which was filed in the Court and all three accused persons were sent for trial.
4. To prove its case against accused persons and to prove the guilt of FIR No:446/96 Page 3 of 18 all the accused persons, prosecution has summoned and examined following witnesses.
5. PW1 HC Jagir Singh, Duty Officer posted at PS Delhi Cantt on 21/09/1996 has deposed of having received rukka brought by Ct. Vijender sent by IO SI Bharat Singh, referred to as Mark A, on the basis of which he recorded instant FIR. Copy of FIR has been referred as Ex.PW1/A and his endorsement upon rukka has been referred as Ex.PW1/B. He has been discharged without being cross examined by accused persons despite opportunity.
6. PW2A, ASI Narender Singh has deposed of being posted as Duty Officer at PS IGI Airport on 10/01/1997 and of having received rukka brought by Security Manager, Sh. Sudhir Kumar at about 8:35pm on the basis of which he registered FIR No. 11/97, u/s 380 IPC at PS IGI Airport, referred to as Ex.PW2A/A. He too has been discharged without being cross examined by accused persons despite opportunity.
7. PW3 Inspr. Rameshwar Singh and PW5 HC Rajkumar have deposed of being posted at IGI Airport and being involved in the investigation of FIR No. 11/97 registered at PS IGI Airport. PW3 Inspr. Rameshwar Singh deposed to have initially investigated the case FIR No. 11/97 after same was marked to him on 10/01/1997. Similarly PW5 HC Rajkumar brought photocopy of case FIR No. 11/97 u/s 380 IPC, PS IGI Airport, marked as Ex.PW2A/A and deposed that as per the record of MHC(M), case has been FIR No:446/96 Page 4 of 18 disposed off as untraced by the order of DCP in the year 1997.
8. The material witnesses examined by prosecution to prove its case against accused are PW2 Inspr. Bharat Singh, PW4 HC Shri Bhagwan and PW6 SI Maan Singh who as per the case of prosecution were members of the raiding party on the alleged day of recovery of stolen mobile phones from accused persons. PW Inspr. Bharat Singh, HC Shri Bhagwan and SI Maan Singh have deposed of being posted as Special Staff, South West District and being on patrolling duty on 21/09/1996. At about 5:00pm, SI Bharat Singh received information about accused Vinod and Rajesh working in International Cargo Airport, having committed theft of cellular phones who would pass with the stolen cellular phones through Palam area from the side of Sanjay Tpoint. All three witnesses deposed regarding efforts made by SI (Inspr.) Bharat Singh to join public persons in recovery proceedings who declined to join the raiding party and left without disclosing their names and addresses. Thereafter at about 5:45pm, accused Vinod and Rajesh came from the side of Sanjay Tpoint who were apprehended by IO and upon their personal search one cellular phone make Qualcomm each was recovered from their possession. These three witnesses have proved the seizure memo of cellular phones recovered from accused as Ex.PW2/A and Ex.PW2/B. After preparation of rukka, referred to as Ex.PW2/C and registration of FIR through Ct. Bijender, IO prepared site plan Ex.PW2/D and arrested both accused vide their memos Ex.PW2/E and Ex.PW2/F. Both accused were interrogated by IO who recorded their FIR No:446/96 Page 5 of 18 disclosure statement as Ex.PW2/G and Ex.PW2/H. Upon the disclosure statement and pointing out memo of accused, further recovery of six cellular mobile phones was effected from the house of accused Vinod and two cellular mobile phones was effected from the house of accused Rajesh, which were seized vide seizure memo Ex.PW2/I and Ex.PW2/J. Upon disclosure statement of these two accused, third accused namely Sunil was also apprehended from Village Mehram Nagar upon his identification by accused and during his personal search one another cellular phone make Qalcomm was recovered from his shirt's pocket which was seized vide seizure memo Ex.PW2/K and accused Sunil was also arrested and his personal search was conducted vide memo Ex.PW2/L. Disclosure statement of accused Sunil was also recorded which has been referred as Ex.PW2/M and on the basis of his disclosure statement, yet another cellular phone make Qalcomm was recovered from his house at Mehram Nagar, seized vide memo Ex.PW2/N. All these witnesses have further deposed that accused Vinod and Rajesh led police party to the International Cargo Airport and pointed out the place from where they had stolen the alleged cellular phones, pointing out memos prepared by IO Inspr. Bharat Singh having been referred as Ex.PW2/O. These three witnesses have identified the phones as Ex.P1 to Ex.P12 and brown envelopes as Ex.P13 to Ex.P18.
9. All three police officials/prosecution witnesses have been cross examined by ld. defence counsel representing accused and during their cross examination they admitted that they could not FIR No:446/96 Page 6 of 18 remember/recollect the registration number of the scooter/motorcycle used by them during patrolling duty on 21/09/1996 and also admitted that the secret information received by Inspr. Bharat Singh was not reduced in writing. All three prosecution witnesses admitted that no notice in writing was given to the public persons to join raiding party and Inspr. Bharat Singh also admitted that during investigation he had neither seized any identity card or any proof or record of alleged accused persons and upon enquiry from the officers of the Cargo Airport, he was informed that they could confirm about the theft only after verification of stock and consignment. He also admitted that special permission is required to enter the Cargo Airport and claimed to have obtained permission orally from the security staff of the Airport on the plea of investigating a criminal case. IO also admitted that since cargo officials did not confirm about the theft of the cellular phones, therefore, no photographs were taken.
10. After closure of prosecution evidence, statement of accused persons namely Rajesh Kumar, Vinod and Sunil Sharma has been recorded under Section 313 r/w Sec. 281 CrPC without oath on 06/01/2012 and accused persons denied the allegations against them as incorrect stating that no recovery of stolen cellular phones had been effected from them and claimed themselves to be innocent. All three accused persons further claimed that police officials being interested witnesses had falsely deposed against them, nevertheless they declined to lead any evidence in defence. FIR No:446/96 Page 7 of 18
11. Final arguments has been addressed by the Ld. Substitute APP for State as well as ld. defence counsel Sh. J.S.Sangwan on 21/01/2012 and matter was reserved for clarification/judgment. I have meticulously perused the case file and heard carefully the rival submissions made by the Ld. Sub. APP for the state and ld. defence counsel Sh. J.S.Sangwan representing accused persons.
12. It is the cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence and prosecution is supposed to stand on its own legs and cannot derive benefits whatsoever from the weakness, if any, in the defence of accused. Further the burden of proof of the version of prosecution in criminal trial, throughout trial lies upon the prosecution and it never shifts to the accused who is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt entitles him to acquittal.
13. Before adverting myself to appreciation of evidence for deciding the present case, it would be prudent to discuss the penal provision u/s 411 IPC involved in the case for arriving at just decision. The penal provision is reproduced in verbatim as under.
"411. Dishonestly receiving stolen property : Whoever, dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
14. In order to convict accused persons namely Rajesh Kumar, Vinod FIR No:446/96 Page 8 of 18 and Sunil Sharma, prosecution has to prove that the alleged Qalcomm cellular phones recovered from the accused as per prosecution story, as deposed by its witnesses, were stolen property as on the day of recovery from accused persons i.e., 21/09/1996.
15. As per prosecution story, on 21/09/1996 at about 5:00pm, IO SI (Inspr.) Bharat Singh had received secret information regarding accused Vinod and Rajesh working in international cargo airport who could be apprehended with stolen cellular phones. PWs Inspr.
Bharat Singh, HC Shri Bhagwan and SI Maan Singh have deposed of being on patrolling duty on 21/09/1996, however, the DD entry in the Rojnamcha Register maintained at PS Delhi Cantt/Southwest District, vide which they had purportedly left PS on 21/09/1996 on patrolling duty has neither been mentioned during their deposition, nor, placed and proved on record.
16. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: "22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as FIR No:446/96 Page 9 of 18 Police Lines & Police Posts where Register No. II is maintained.
17. In the present case, the above said provision has not been complied by the prosecution as the DD entry vide which PWs Inspr. Bharat Singh, HC Shri Bhagwan and SI Maan Singh had left on patrolling duty from the police station Delhi Cantt/South West District has not been brought on record. In my opinion, the prosecution is under an obligation to bring on record and prove the above said DD entry vide which the above said police officials had left the PS for patrolling duty, so as to prove the possibility of availability of PWs at the place of apprehension of accused Vinod and Rajesh. In the facts and circumstances of the case, the prosecution ought to have brought on record & proved the DD entry by which the above said police officials had left the PS, so as to inspire confidence regarding their availability/presence at the place of apprehension of accused Vinod and Rajesh and alleged recovery of Qalcomm cellular phones from them, seized vide seizure memo Ex.PW2/A and Ex.PW2/B respectively. Since the said police officials were under bounden duty to enter their departure & arrival from/at the police station PS Delhi Cantt/South West District by making a D.D. entry in the Rojnamcha Register as per the aforesaid mentioned Punjab Police Rule, which has not been done in this case, their deposition becomes suspicious.
18. At this juncture, it would be relevant to refer to the case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Hon'ble Delhi High Court has observed that if the investigating FIR No:446/96 Page 10 of 18 agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the relevant DD entry as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the raiding party.
19. Further as per depositions of PW SI (Inspr.) Bharat Singh, HC Shri Bhagwan and SI Maan Singh, IO had requested some passersby to join the raiding party, however, none agreed and left without disclosing their names and addresses. Inspr. Bharat Singh during his cross examination by ld. defence counsel has admitted that he had not given any notice in writing to those public persons who had refused to join and left. Prosecution cannot wash off its hand by simply stating that IO had requested public persons to join raiding/recovery proceeding and IO was required to give notice in writing to such public persons and in case of their refusal to initiate action under Criminal Law. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(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 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 evidence that no FIR No:446/96 Page 11 of 18 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 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 a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Hon'ble Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action FIR No:446/96 Page 12 of 18 against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as "Sadhu Singh Vs. State of Punjab"
1997 (3) Crime 55 the Hon'ble Punjab & Haryana High Court has observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
"6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh, PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
20. The failure to comply with the procedure of investigation as laid down in Punjab Police Rules as well as elucidated in thejudgments of the Hon'ble Courts as discussed above, coupled with the fact that PWs Inspr. Bharat Singh, HC Shri Bhagwan and SI Maan Singh FIR No:446/96 Page 13 of 18 have admitted during their cross examination that they did not remember the number of the scooter/motorcycle by which they had arrived at the spot of recovery, being on patrolling duty, besides the absence of DD entry vide which they had left the police station on duty, casts a doubt of suspicion over the case of prosecution regarding alleged recovery of stolen Qalcomm mobiles from accused Vinod and Rajesh. IO during his examination in chief has deposed of taking accused Vinod and Rajesh to Cargo International Airport and to have prepared pointing out memo referred to as Ex.PW 2/O, however, during his crossexamination by ld. defence Counsel, he admitted that he had not taken any special permission and claimed to have sought oral permission from concerned security staff on the plea of investigating a criminal case, though he remained silent with regard to accused Vinod and Rajesh and preparation of pointing out memo at Cargo International Airport upon their pointing out.
21. As far as further recovery of two and six mobile phones from accused Rajesh Kumar and Vinod respectively upon their instance/disclosure statement and alleged apprehension of co accused Sunil Kumar and recovery of two Qalcomm mobile cellular phones, one upon his personal search and other from his house at Mehram Nagar, vide seizure memos referred by IO Inspr. Bharat Singh is concerned, these recoveries been made upon the disclosure statement/confession recorded by IO during police custody and as such their disclosure statement/confession is hit by section 25 of The Indian Evidence Act, 1872, being confession FIR No:446/96 Page 14 of 18 made to police officer during police custody which cannot be proved. As far as seizure of the alleged cellular phones at the instance of accused persons is concerned, the recovery is relevant under Section 27 of The Indian Evidence Act as recovery of the cellular mobile phones only and does not prove the case of prosecution regarding the alleged mobile phones being stolen property, having been stolen from international cargo and its being retained by accused persons who had knowledge about the said cellular mobile phones being stolen property.
22. Thus, in order to convict accused Rajesh, Vinod and Sunil Sharma for the offence u/s 411 IPC, prosecution has to prove that the alleged mobile phones purportedly stolen from the international cargo office were indeed stolen and were subsequently recovered from the above said accused persons. As per deposition of PW2A ASI Narender Singh, FIR No. 11/97 has been registered at PS IGI Airport on 10/01/1997 at 8:35am upon DD No. 36 and as per the copy of FIR marked as Ex.PW2/A, there is no date and hour of occurrence of the offence. Further as per deposition of PW5 HC Raj Kumar, case FIR No. 11/97 u/s 380 IPC, PS IGI Airport, has been disposed off as untraced by the order of ACP in the year 1997.
23. The present case bearing FIR No. 436/96 regarding recovery of alleged stolen mobile phones on 21/09/1996 and FIR having been registered at PS Delhi Cantt, South West District on 21/09/1996, prosecution has failed to prove that the said mobile phones were indeed stolen property as on 21/09/1996 as the other FIR registered FIR No:446/96 Page 15 of 18 at PS IGI Airport bearing no. 11/97 has been registered much later than the present FIR, on 10/01/1997 i.e after more than 3 ½ months from the alleged recovery.
24. Further it has to be noted that IO Inspr. Bharat Singh during his cross examination by ld. defence counsel has admitted that during investigation he had neither seized any identity card or any proof of accused persons on record and upon enquiry from the officers of the Cargo Airport, he was informed that they could confirm about the theft only after verification of stock and consignment. He also admitted that special permission is required to enter the Cargo Airport and he himself had not sought such special permission and was allowed entry on his oral request made to the security staff of the Airport on the plea of investigating a criminal case. IO also admitted that he had not taken photographs of the stock as cargo officials did not confirm about the theft of the cellular phones.
25. In the facts and circumstances of the present case in the absence of recovered mobile phones having been proved to be stolen property regarding which any FIR had been lodged at any police station on the alleged day of recovery ie. 21/09/1996, the said mobile phones have not been proved to be stolen property as on the date of alleged recovery beyond reasonable doubt. The mere recovery of alleged mobile phones from the house of accused persons as per the case of prosecution does not prove that the mobile phones were stolen property and that accused persons had retained those cellular phones knowing the same to be stolen FIR No:446/96 Page 16 of 18 property. There is no independent public witness in this case to corroborate the recovery of alleged cellular mobile phones from the house of accused or at their instance, so, the alleged recovery been made upon their disclosure statement which is hit by Section 25 of the Indian Evidence Act, 1872, having been made during police custody is not sufficient to convict accused persons for the offence U/s 411 IPC. Recovery of the stolen cellular phones is relevant strictly as provided under Section 27 of the Indian Evidence Act i.e their recovery at the instance of accused persons and prosecution is required to travel beyond and prove that the recovered mobile phones were indeed stolen and had been retained by accused persons knowing or having reasons to believe the same to be stolen property in order to convict the accused in the present case.
26. The alleged disclosure statement referred to by IO Inspr. Bharat Singh and other police officials who have testified as prosecution witnesses being hit under Section 25 of Indian Evidence Act, 1872 and failure of prosecution to prove the recovered cellular phones as stolen property in the absence of any FIR having been registered regarding their theft at any police station at the relevant point of time of alleged recovery from accused persons on 21/09/1996, all three accused namely Rajesh Kumar, Vinod and Sunil Sharma are entitled to the benefit of doubt in the case of the prosecution as prosecution has failed to discharge its burden. Accused namely Rajesh Kumar, Vinod and Sunil Sharma are accordingly accorded benefit of doubt in the case of prosecution and are acquitted of the charge u/s 411 IPC. Their bail bonds stand cancelled and sureties FIR No:446/96 Page 17 of 18 stand discharged. Original documents if any on record be released to the rightful claimant against receiving as per rules. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT DATED: 10/02/2012 (TARUN YOGESH) METROPOLITAN MAGISTRATE - 01 DWARKA COURTS : DELHI FIR No:446/96 Page 18 of 18