Delhi District Court
State vs Mohd. Manish Ors on 8 January, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SAKET COURTS,
DELHI
Presided over by- Ms. Twinkle Chawla, DJS
Cr. Case No. -: 91617/2016
CNR No. -: DLSE020037202014
FIR No. -: 239/2012
Police Station -: Sarita Vihar
Section(s) -: 411 IPC and 103 D.P. Act.
In the matter of -
STATE
VS.
1. Mohd. Munish
S/o Sh. Abdul Ajij,
R/o Village Kurshena,
PS Jaswant Nagar, Distt. Etawah, U.P.
2. Harsh Kumar
S/o Sh. Kanhaiya Lal,
R/o H. No. B-20 Ganesh Nagar,
Pandav Nagar, Delhi.
3. Umesh Verma
S/o Sh. Kanchhi Lal Verma,
R/o H. No. B-212, Gali No. 4,
Village Ghazipur, Delhi.
P. Add: Village Kamalpur, PS Narsena,
Distt. Bulandshahar, U.P.
...Accused persons
FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 1 of 20
1. Name of Complainant :- Goswami Vivek Ballabh
2. Name of Accused Person :- 1. Mohd. Munish
2. Harsh Kumar
3. Umesh Verma
3. Offence complained of or :- Section 411 IPC and 103
proved D.P. Act
4. Plea of Accused Person :- NOT GUILTY
5. Date of Commission of :- 10.08.2012
offence
6. Date of Filing of case :- 24.06.2014
7. Date of Reserving Order :- 15.12.2023
8. Date of Pronouncement :- 08.01.2024
9. Final Order :- Acquittal
JUDGMENT
1. The case of prosecution in brief is that on 03.08.2012, theft was committed in the house of Sh. Goswami Vivek Ballabh, i.e., at H.no. C-170, Sarita Vihar, New Delhi, within the jurisdiction of PS Sarita Vihar; and jewellry (3 pairs of silver pajeb, 12 pairs of silver bichchiya); 4 watches and Rs. 4500 were reported as stolen, for which the present FIR u/s 380/454 Indian Penal Code ("IPC") was registered in PS Sarita Vihar. Further, during investigation, on 10.08.2012 from Living Style Mall, Jasola Vihar, in front of Beer Shop, Accused Mohd. Munish was found in possession of two pairs of pajeb and one gold ring; and he failed to produce any reasonable evidence regarding ownership and possession of the said gold ring and Accused Harsh was found in possession of gold ring and two pairs pajeb and he failed to produce any reasonable evidence regarding ownership and possession of the said gold ring and on the aforesaid date, at Shop No. 101, Gali No. 1, Khichri Pur Village, Accused Umesh Verma was found in possession of Silver Glass FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 2 of 20 weight about 43 gms and 10 pairs of silver bichhuas and failed to produce any reasonable evidence regarding ownership and possession of the said articles.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). Relevant record was collected. Final report under section 173 CrPC, was prepared against the Accused persons and challan was presented in the court u/s 411 IPC and Section 103 Delhi Police Act, 1978 ("D.P. Act") on 24.06.2014. After taking cognizance of the offence, the Accused persons were summoned to face trial.
3. On their appearance, a copy of chargesheet was supplied to them in terms of section 207 of CrPC. Further, on finding a prima facie case against the Accused persons, charge under section 411 IPC and Section 103 D.P. Act was framed against the Accused Mohd. Munish and u/s 103 D.P. Act against Accused Harsh Kumar and Umesh Verma; on 14.01.2015 for which the Accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial for the offence u/s 411 IPC and Section 103 D.P. Act, prosecution led the following oral and documentary evidence against the Accused persons to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- ASI Santosh Kumar (Duty Officer in the present case) FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 3 of 20 PW2 :- HC Narender Kumar (Accompanying IO in the present case) PW3 :- SI Devender Kumar (IO in the present case) DOCUMENTARY EVIDENCE Ex. PW1/A :- FIR.
Ex. PW1/B :- Endorsement on rukka.
Ex. PW2/A :- Seizure memo of all articles seized by PW-
to Ex. 2. PW2/D
Ex. PW2/E :- Disclosure Statement of the Accused and Ex. Mohd. Munish and Harsh Kumar. PW2/F Ex. PW2/G :- Arrest memo and personal search memo of and Ex. Accused Mohd. Munish and Harsh Kumar. PW2/J Ex. PW2/K :- Pointing out memo of Accused Mohd.
and Ex. Munish and Harsh Kumar. PW2/L
Ex. PW2/M :- Seizure memo of one silver glass and 10 pairs of bichhuye from the counter of the shop of Accused Umesh.
Ex. PW2/N :- Disclosure statement of Accused Umesh. Ex. PW2/O :- Arrest memo and personal search memo of and Ex. Accused Umesh.
PW2/P Ex. P1 :- One silver glass. Ex. P2 :- One gold ring and pair of pajeb. Ex. P3 :- 10 pairs of bichhuye. Ex. P4 :- One pair of pajeb and one gold ring. Ex. P5 and :- Screw driver and iron rinch. Ex. P6
Ex. PW3/A :- Statement of Complainant Goswami vivek Ballabh.
Ex. PW3/B :- Rukka.
Ex. PW3/C :- Site plan.FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 4 of 20
Ex. PW3/D :- Seizure memo of swift car.
DOCUMENTS ADMITTED U/S 294 CRPC BY Accused Ex. A1 :- DD No. 51A dt. 03.08.2012. Ex. A2 :- TIP proceedings conducted on 22.05.2013.
5. During the course of trial, witnesses mentioned at Sr. No. 6 and 9 were dropped pursuant to statement of the Accused recorded u/s 294 CrPC. Further, at the request of Ld. APP for the State, witness mentioned at Sr. No. 4 of the list of witnesses was also dropped as his role pertained to one Accused Bablu, who had been discharged. Further, despite attempt, the Complainant/PW Goswami Vivek Bhallav remained unserved (as untraceable), even through DCP concerned and hence, he was dropped from the list of witnesses vide order dated 12.10.2023.
6. PW-1/ASI Santosh Kumar proved the registration of FIR, Ex. PW1/A and endorsement on rukka Ex. PW1/B.
7. PW-2/HC Narender Kumar deposed that on 09.08.12, PW-2 alongwith ASI Devender and HC Ajeet was on patrolling duty in the area of Living Style Mall. One secret informer met them and shared the information with ASI Devender regarding visit of suspected persons at Living Style Mall. They put barricades near wine shop which was situated at Living Style Mall. After some time, one black coloured swift car bearing no. 6500 came and secret informer pointed out towards car and left the spot. Two persons deboarded the car and started towards wine shop when they apprehended them. ASI Devender interrogated both of them and found their names as Harsh Kumar and Mohd. Munish. ASI Devender made search and found from the possession of Accused FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 5 of 20 Harsh one rinch, one petchkas, one gold ring and one pair "pajeb". PW-2 also searched Accused Mohd. Munish and found in his right pocket one iron rod which was used for breaking open the locks. Rod was adjusted by Accused in inner side of his pant / belt.
One ring and one pair pajeb were also found from the possession of Accused Mohd. Munish. IO put all the articles in white coloured plastic box and prepared pulanda with white cloth. IO seized the all articles vide seizure memos Ex. PW2/A & Ex. PW2/B, Ex. PW2/C & Ex. PW2/D, respectively. IO sealed the pulandas with the seal of "DR" and seal was handed over to PW-2 after use. IO recorded disclosure statement of both Accused which are Ex. PW2/E & Ex. PW2/F. In their disclosure, they disclosed that they committed a theft at C-Block, 1st Floor, Sarita Vihar. They distributed stolen articles amongst all associates; one pair "pajeb" with Babloo, Munish and Harsh each and remaining articles were sold to Umesh Verma. IO arrested and personally searched Accused Mohd. Munish and Harsh vide memos Ex. PW2/G to Ex. PW2/J. PW-2 alongwith IO and both Accused namely Munish and Harsh went to C-Block, Sarita Vihar at H. No. 170, 1st Floor where IO prepared pointing out memos which are Ex. PW2/K & Ex. PW2/L respectively. On 10.08.12, PW-2 alongwith IO and both the Accused went to Khichripur for search of 3rd Accused Umesh Verma at shop no. 101. One person was found sitting inside the abovesaid shop and both Accused pointed out towards him as Umesh Verma. IO apprehended Accused Umesh and interrogated him. During interrogation, Accused Umesh disclosed that Accused Munish and Harsh sold him jewellery articles including silver glass etc., and he paid Rs. 60,000/- to them for cost of said articles. He disclosed that FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 6 of 20 he had kept certain articles on his shop itself. They found one silver glass and 10 pairs of bichhuye from the counter of the shop of Accused Umesh. IO seized the same vide seizure memo Ex. PW2/M. IO also recorded disclosure statement of Accused Umesh which is Ex. PW2/N. IO also arrested and personally searched Accused Umesh vide memos Ex PW2/O & Ex PW2/P respectively. PW-2 correctly identified Accused Umesh, Mohd. Munish and Harsh Kumar and Ex. P1 to Ex. P8 in court.
In his cross examination, PW-2 deposed that Accused Munish was arrested from one wine shop at Living Style Mall, Jasola Vihar. He was arrested when he was present in front of one wine shop. There was no authorised parking in front of that wine shop. PW-2 voluntarily deposed that people used to park their cars on road in front of one shop. Accused Munish was apprehended at about 05:45 p.m. PW-2 admitted that public persons were present near the spot when Accused Munish was apprehended. PW-2 deposed that they were three police persons who were present at the spot when Accused Munish was apprehended and abovesaid car was stopped by the driver in front of road of Living Style Mall and abovesaid car was stopped in the South Directions. PW-2 deposed that the abovesaid car was not stopped by them and the car came and its driver stopped the car in front of one shop and they have not apprehended anyone from inside the abovesaid car as nobody was present inside the car at the time of apprehension of both the Accused persons. PW-2 deposed that Accused Munish was apprehended by him and Accused Munish had not made any effort to run away as he had not given him any time to think so and PW-2 FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 7 of 20 was informed by ASI Devender Kumar regarding information. PW- 2 deposed that secret informer was present at the spot and all proceedings including arrest memo, personal search, seizure, disclosure and recording of 161 Cr.P.C were done by the IO in the police booth, Living Style Mall. PW-2 admitted that all the documents signed by him were signed after carefully going through the document. PW-2 also deposed that he cannot tell the exact time of arrest mentioned in the arrest memo of Accused Munsih, however, same was between 07:20 p.m. to 07:40 p.m. Upon confronting the arrest memo of Accused Munish, where the time of arrest at column no. 7 was mentioned as 06:40 p.m., however, at column no. 6, time and date of arrest is mentioned. PW-2 denied the suggestion that no arrest was made in his presence or for that reason he was unable to tell the exact time of arrest of Accused Munish. PW-2 admitted that nothing was recovered by him from the possession of Accused Munish. Accused Munish was personally searched by the IO in front of abovesaid wine shop. PW-2 also deposed that one iron rod and a screw diver was recovered from the right side dub of the wearing pant of Accused Munish. PW-2 admitted that no public person was made a witness at the time of search and arrest of Accused Munish. PW-2 denied the suggestion that nothing was recovered from the possession of the Accused Munish or for that reason no public person was made a witness. PW-2 deposed that he can not say whether IO has taken any written permission from superior officer for preparation of the raiding party and they all remained at the booth till 08:00 p.m. PW-2 deposed that they all went to the place i.e. C Pocket, Sarita Vihar where Accused did theft alongwith his associate. He did not FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 8 of 20 remember the exact time when they reached at C Pocket, Sarita Vihar. PW-2 denied the suggestion that he did not remember the exact time as he never went to C Pocket, Sarita Vihar. Accused voluntarily pointed out towards House no. C-170, First floor, Sarita Vihar. They did not enter C 170, First Floor, Sarita Vihar. PW-2 deposed that he alongwith ASI Devender, HC Ajit, Accused Munish and Accused Harsh went to the hospital for medical examination of Accused. PW-2 did not remember the time when they all reached at hospital. PW-2 denied the suggestion that he can not tell the exact time as he never went to hospital. PW-2 deposed that Accused was served with food and thereafter they all went to PS and both Accused were put in the lock up. PW-2 did not remember the exact time when Accused was put in police lock up. PW-2 denied the suggestion that that he can not tell the time as he was not present there. PW-2 voluntarily deposed that he can not tell due to the lapse of five years. PW-2 was a part of the investigation on 10.08.2012. On 10.08.2012, PW-2 alongwith ASI Devender, HC Ajit and Accused Munish and Harsh went to the shop of Accused Umesh Sharma on the basis of disclosure statement of abovesaid Accused persons. PW-2 admitted that recovery was effected from the shop of Accused Umesh Verma in his presence and the same were seized in his presence. Upon confronting the entire case property, i.e., Ex-P1 to P8, PW-2 denied the suggestion that entire case property was not recovered at the instance of the Accused and that the entire case property was arranged by us and planted upon the Accused with a view to falsely implicate him in the present case. PW-2 admitted that IO did not put any identification mark on any of the recovered case property prior to its seizure and that IO FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 9 of 20 did not collect any purchase bill of the stolen jewellery from the Complainant in his presence. PW-2 denied the suggestion that the alleged weapon of offence i.e., the screw driver and rinchpana were newly purchased and planted upon the Accused and were not recovered as alleged and that Accused was arrested from his house and that he is deposing falsely.
In his cross examination by Ld. Counsel for the Accused Harsh, PW-2 deposed that Accused Harsh was arrested from outside the Living Style Mall at Jasola Vihar. Harsh was apprehended by HC Ajit Singh. His personal search was carried out by IO/ASI Devender Singh. PW-2 deposed that he did not remember whether the Accused Harsh was wearing jeans or formal pants. The Accused Harsh was apprehended by HC Ajit Singh when he was at a distance of 20 yrds from Living Style Mall. The both Accused persons namely Harsh and Munish were apprehended by the police persons. No public persons were present at the time when the Accused was apprehended by them. PW-2 deposed that he did not know the opening timing of the Mall and closing time of the mall and he did not know who was present at duty on that police booth. PW-2 voluntarily deposed that both police persons were not found as they were on patrolling duty. PW-2 deposed that he did not remember whether IO prepared any site plan of the place from where abovesaid Accused were apprehended. PW-2 voluntarily deposed that as per he remember he did not prepare any site plan of the abovesaid place. PW-2 deposed that IO measured and prepared sketch of recovered screw driver and rinchpana in his presence and he did not prepare any khakha (sketch) of abovesaid articles which FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 10 of 20 were recovered from the Accused Harsh. Disclosure statement of Accused Harsh was recorded in the presence of PW-2. PW-2 deposed that Accused Harsh disclosed that he obtained the theft articles from C-170, Sarita Vihar and he did not remember whether any separate FIR for theft at C-170 Sarita Vihar was lodged or not. IO mentioned weight of recovered articles from Accused Harsh in seizure memo but he did not mention any other description of recovered articles except their weight. PW-2 denied the suggestion that nothing has been recovered from the possession of the Accused Harsh and all recovery which were shown by the police is false and fabricated and all the written proceedings were done in the police station that is why no site plan was prepared by the IO recovery of the articles and as well as arrest place of the Accused Harsh and he is deposing falsely.
In his cross examination by Ld. Counsel for the Accused Umesh Verma, PW-2 deposed that Accused Umesh was arrested from his shop at Khichdipur. They reached at his shop at about 10.30AM. They were three police persons namely, HC Ajit, ASI Devender and myself. No other person was accompanied them to his shop. PW-2 deposed that he did not know at what time IO entered departure at PS when we left for the shop of Accused Umesh. It took 1 hour from PS to abovesaid shop. The said shop was affixed with a board but PW-2 did not remember its details. No site plan of recovery from Umesh was prepared by the IO in the presence if PW-2. IO mentioned weight of recovered articles from Umesh in seizure memo. No public person was cited as witness on seizure memo and arrest memo. The some shop were opened when FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 11 of 20 they reached the shop of Umesh. Some public persons were present nearby the shops. Disclosure statement of Umesh was recorded at his shop. PW-2 denied the suggestion that nothing was recovered from Accused Umesh as mentioned in seizure memo and that he is deposing falsely.
8. PW-3/SI Devender Kumar deposed that on 03.08.2012, he was posted as ASI at PS Sarita Vihar. On that day, on receipt of DD No.51 A regarding theft at C-170 Sarita Vihar. PW-3 alongwith Ct. Mandeep went to the spot I.e C-170 Sarita Vihar. When they reached at the abovesaid address PW-3 observed that locks of the doors were broken and things were scattered all over the floor. Complainant Goswami Vivek Ballabh also met them. PW-3 recorded his statement which is Ex-PW-3/A. PW-3 prepared rukka Ex-PW3/B and sent the same for registration of FIR through Ct. Mandeep. PW-3 got the spot inspected by crime team. PW-3 prepared site plan which is Ex-PW3/C at the instance of the Complainant. After inspection, crime team left the spot. On 09.08.2012, PW-3 alongwith HC Ajit and HC Narender went in search of Accused and case property. At about 5.00PM, when they reached near road No. 13. One secret informer came and informed that Accused persons are coming to Living Style Mall for purchasing liquor in a shift car bearing No. 6500. PW-3 requested 2-3 public persons to join the proceedings after revealing the facts but none of them agreed and left the spot without disclosing their name and addresses and for that reason no written notice could be served to them. Thereafter, PW-3 prepared raiding team including HC Ajit, HC Narender and himself. After briefing them, at about FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 12 of 20 5.15PM, they all took positions near liquor shop outside Living Style Mall Jasola. At about 5.20-22 PM, one shift car came and stop near liquor shop and one boys came out of the said car and carefully looked around for three-four minutes. Thereafter, he has deposed on the same lines as PW-2, and the same is not being reiterated for the purposes of brevity.
In his cross examination by Ld. counsel for Accused Umesh, PW-3 deposed that he along with HC Narender, HC Ajit and Accused Mohd. Munish and Accused Harsh Kumar left the PS Sarita Vihar at about 09.00 am. They left the PS in a four wheeler. PW-3 deposed that he did not remember its make and did not know its registration number and did not remember whether it was a government vehicle or private vehicle. PW-3 deposed that the distance between PS Sarita Vihar and Kichripur is about 09-10 kms approximately. It took one hour to reach Kichripur from PS Sarita Vihar. The shop of Accused Umesh Kumar was situated in a residential area. Two-three other shops were also present in the said gali no. 1. PW-3 deposed that he did not remember the shop number of Accused Umesh Kumar and he did not remember whether any public person was present in Gali no. 1 when they reached there. PW-3 admitted that the seizure memo prepared at the shop of Accused Umesh Kumar was not witnessed by any independent witness. PW-3 deposed that he had recorded disclosure statement of Accused Umesh Kumar at his shop itself and the same was also not witnessed by any independent witness and he did not remember the time when he prepared arrest memo of Accused Umesh Kumar and he did not remember the details of the person who was informed FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 13 of 20 about the arrest of Accused Umesh Kumar. PW-3 denied the suggestion that nothing as alleged has been recovered from the possession of Accused Umesh Kumar or the same has been planted upon the Accused Umesh Kumar abd that he had prepared false disclosure statement, seizure memo, arrest memo and personal search memo of Accused Umesh Kumar while sitting at PS and that he is deposing falsely.
In his cross examination by Ld. counsel for Accused Mohd. Munish, PW-3 had received the information of present theft vide DD no. 51A on 03.08.2012. PW-3 had received the said DD entry in the evening. PW-3 along with Ct. Mandeep reached at the spot on his private motorcycle within 20 minutes after receiving DD no. 51A. PW-3 deposed that he can not tell the exact time when he reached at the spot. PW-3 deposed that he met the owner of property and the Complainant along with his wife at the spot and that he had made inquiries and thereafter, he recorded statement of Complainant.
In his cross examination by Ld. Counsel for Accused Mohd. Munish, PW-3 recorded the disclosure statement of Accused Mohd Munish at Living Style Mall, opposite road No. 13 at around 06.00 PM on 09.08.2012. PW-3 admitted that the aforesaid spot is a crowded area. PW-3 deposed that he made efforts to join public witnesses during investigation, however, nobody agreed and left the spot without disclosing their names and identities and he did not serve any notice to them on their refusal. PW-3 denied the suggestion that all the written documents were prepared at the PS and that is the reason why no public persons were made witness nad FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 14 of 20 that PW-3 had obtained signature of the Accused persons in blank paper and later the same was converted into recovery memo and disclosure statements, etc. PW-3 deposed that he did not obtain any ownership document from the Complainant qua the stolen property. PW-3 admitted that the stolen property was not identified by the Complainant during the TIP. In addition, the cross examination conducted by Ld. Counsel for Accused Umesh was also adopted by Ld. Counsel for Accused Mohd. Munish.
In his cross examination by Ld. Associate Counsel for Accused harsh Kumar, cross examination conducted by Ld. Counsels for Accused Mohd. Munish and Accused Umesh was adopted by him.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
9. Thereafter, before the start of defence evidence, in order to allow the Accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of Accused persons were recorded without oath on 02.11.2023 under Section 313 CrPC in which they stated that they are innocent, and they have been falsely implicated in the present case; and that the recovery was a planted one. They did not opt to lead Defence Evidence. Thereafter, the matter was listed for final arguments.
ARGUMENTS
10. I have heard the Ld. APP for the state and Ld. counsel for the Accused at length. I have also given my thoughtful consideration to the material appearing on record.
FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 15 of 2011. It is argued by the Ld. APP for the state that there is sufficient material on record to convict the Accused for the said offences.
12. Per contra, the Ld. Counsels for the Accused persons have argued that the state has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that the main Complainant has been dropped and the alleged recovery from the Accused persons is a planted one and there is no public witness to the recovery.
13. Accused Mohd. Munish has been charged with offences u/s 411 IPC and Section 103 D.P. Act and the Accused Harsh Kumar and Umesh Verma have been served notice of offence u/s 103 D.P. Act for being found in possession of the following property:
Accused Property Recovered Offence charged by prosecution Mohd. Munish 2 pairs pajeb 411 IPC Mohd. Munish One gold ring 103 Delhi Police Act Harsh Kumar One gold ring and 2 103 Delhi Police Act pairs of pajeb Umesh Verma Silver glass (43 gms) 103 Delhi Police Act and 10 pairs of silver bichhuas
14. As per the judgments of the Hon'ble Supreme Court in Shiv Kumar v. State of Madhya Pradesh, (2022) 9 SCC 676; and FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 16 of 20 Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39, for offence under section 411 IPC, the prosecution must prove beyond reasonable doubt, the following mandatory ingredients, viz.
i That there was a stolen property;
ii That the stolen property was in the possession of the Accused;
iii That some person other than the Accused had possession of the property before the Accused got possession of it; and iv That the Accused had knowledge that the property was stolen property.
15. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the Accused must be rebutted by the prosecution by reducing cogent evidence that points towards the guilt of the Accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
16. The first and foremost ingredient of the offence u/s 411 IPC is that the recovered property must be stolen property. However, in the present case, the Complainant was dropped from the list of witnesses as he remained unserved despite several attempts and even through DCP concerned. Accordingly, the allegedly recovered property, which is stated to be the stolen property has not been identified by the Complainant. Further, in this case, even PW-2 has stated in his cross-examination that the Complainant had not provided any bill/invoice of the stolen property and hence, there is no possibility of matching the details FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 17 of 20 with the invoice. Further, while in the TIP proceedings, there is identification of one pair of silver anklet/pajeb by the Complainant, the record is not clear as to which anklet pair was identified since there were multiple pairs of anklets which were recovered from different Accused persons in the present case. Hence, the identification in TIP cannot be considered as conclusive. Further, even in the seizure memo, Ex. PW2/A, which is the memo for seizure of anklets and one gold ring from the Accused Mohd. Munish, there is no description of the property, except the weightage, which is also not mentioned in the TIP order, i.e., Ex. A2. There are no photographs of the recovered property. In these circumstances, the first ingredient of the recovered property being the stolen property is not fulfilled. Further, after recovery, no identification mark was put by the IO on the recovered property, as has been deposed by PW-2 in his cross-examination. Accordingly, since the first ingredient of Section 411 IPC is not fulfilled, there is no requirement to delve into the other ingredients of the offence, since the same have to be cumulatively fulfilled.
17. For the offence u/s 103 DP Act, it is required to be proved by the prosecution beyond all reasonable doubt that the Accused was (i) found in possession of a thing; (ii) for which there is reason to believe that the same is a stolen property or a property which has been fraudulently obtained; and (iii) the Accused has failed to account for such possession. These ingredients are cumulative in nature. The case of prosecution is that one gold ring was found in the possession of Accused Mohd. Munish, one gold ring and 2 pairs of pajeb were found in the possession of Accused FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 18 of 20 Harish; and one silver glass and 10 pairs of silver bicchuas were found in the possession of Accused Umesh Verma. As per the case of prosecution, the recovery was effected from the Accused Mohd. Munish and Accused Harsh Kumar near Living Style Mall, Jasola, which is admittedly a public place. Both PW-2 and PW-3 have also accepted in their cross-examination that the place from which recovery was effected was a public place and few public persons were present. However, no notice u/s 160 CrPC was served on the said persons and even the names and details were not noted by the IO. The said recovery proceedings were neither videographed nor photographed. Further, even the recovery from Accused Umesh Verma was effected from his shop, where also as per the testimony of PW-2 and PW-3 public persons were also present. Further, in the seizure memo of the property prepared, Ex. PW2/B and Ex. PW2/C; the description of the property has also not been mentioned. Additionally, since the recovery has been made from Accused Umesh from a jewellery shop, it cannot be stated, without further proof that there was reason to believe that the recovered articles were stolen property. Additionally, even the alleged recovery from Accused Mohd. Munish and Accused Harsh Kumar is not of such great quantity or nature that without further proof from the prosecution, it may be considered that the property recovered was stolen. Further, as per PW-2, the Accused Mohd. Munish did not try to flee away when the police officials tried to apprehend him. Hence, it cannot be stated that from the attendant circumstances that the reason to believe the property to be stolen property can be deduced.
FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 19 of 2018. Since the first and second essential ingredient of Section 103 DP Act, i.e., the recovery and reason to believe the recovered property to be stolen has not been proved and the ingredients are cumulative in nature, the essentials of Section 103 DP Act are not made out in the present case.
19. Resultantly, the Accused persons namely, MOHD. MUNISH, HARSH KUMAR and UMESH VERMA are hereby found not guilty. They are hereby ACQUITTED of the offences under Section 411 IPC and Section 103 Delhi Police Act.
20. File be consigned to record room after due compliance.
Announced in open court on 08.01.2024 in the presence of the Accused Persons.
The judgment contains 20 pages and each page have been signed by the undersigned.
(TWINKLE CHAWLA) MM-05, South-East District, Saket Courts, New Delhi,08.01.2024 FIR No. 239/2012 State v. Mohd. Munish & Ors. Page 20 of 20