Delhi District Court
State vs . on 19 August, 2010
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.125/10
FIR NO. 189/04
PS Prashant Vihar
Unique Case ID No. : 02401R5305942004
State
Vs.
1. Mukesh Kumar s/o Sumer Chand
r/o E21131132, Sector 3, Rohini, Delhi.
2. Dheeraj @ Dheer Singh s/o Sh. Virender Singh
r/o Goonga Khurd, Distt. Bagh Pat (UP)
3. Davendra @ Billoo s/o Ishwar Singh,
r/o Village Razapur, Sector9, Rohini, Delhi.
4. Parveen Kumar @ Sonu s/o Sh. Ramphal
r/o C1/55, Rama Vihar, Delhi.
Date when committed to the court of Sessions :07.07.2004
Date when case reserved for judgment : 06.08.2010
Judgment pronounced on : 19.08.2010
JUDGMENT:
1. The case of the prosecution in brief is that on 28.02.2004, the complainant Rajesh Kumar came to the PS and got recorded his statement to the effect that he was working as Driver with M/s SC No.125/10 Page 1/13 Arrate Call Centre and was driving the vehicle of make Qualis bearing No.DLIVB0524 and had come to leave the staff from Gurgaon to Rohini and the last member of the staff alighted at Sheesh Mahal Apartment, Shalimar Bagh and when he was going back via Sector 13 and 14 of Rohini, on 27.02.2004 at about 11.30 p.m reached near Vikas Sheel Apartments, there one white colour car of the make Santro stopped ahead of his car due to which he stopped his said taxi and out of the said Santro car, two persons regarding whose description he had given in his statement, came to his taxi while other two remained in the car, and commanded him to open the windowpane and accordingly, he opened the windowpane and thereafter they got him down out of the car and the other boy showed him a pistol (Tamancha) and made him to stand and one boy started his said taxi and took away and the other three went away inside the said Santro car and that he could identify the said boys, if produced before him.
2. On the basis of the said statement, the FIR was got registered at the PS Prashant Vihar.
3. On 07.03.2004, an information was received at PS Prashant Vihar from PS Mangol Puri, Delhi to the effect that accused Mukesh Kumar, Dheeraj @ Dheer Singh and Devender @ Billu had been arrested in FIR No.128/04 of PS Mangol Puri who had made disclosure statements with regard to the robbing of vehicle no.DLIVB0524 and accordingly, the production warrants of the SC No.125/10 Page 2/13 said accused were got issued from the concerned MM and the said accused were arrested in this case and Section 411 and Section 473 IPC were added to the case. The accused Praveen Kumar was arrested in FIR No.123/04 of PS Narela who also made a disclosure statement in the said FIR with regard to his involvement in the present case who was accordingly arrested in this case through judicial process and thereafter the charge sheet was filed against the accused.
4. On the basis of the said evidence on record, my Ld. Predecessor, vide his order dated 10.08.2004 framed charges against all the four accused u/s 392/397/411/473/34 IPC to which the accused pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, has examined 12 witnesses and relevant of which have been discussed below.
6. The statements of the accused were recorded u/s 313 Cr.PC wherein they denied the incriminating evidence against them and pleaded their innocence but did not prefer to lead any defence evidence.
7. I have heard Ld. APP for the state and Ms. Sadhana Bhatia, Amicus Curie for accused Mukesh and Dheer Singh @ Dheeraj and Sh. R.P. Tyagi, Advocate for accused Praveen and Devender and perused the record.
8. PW1, HC Sushil Kumar, has deposed that on 05.03.2004, he along with SI Mahesh, HC Narender, during the investigation of FIR SC No.125/10 Page 3/13 No.128/04, PS Mangol Puri, had taken out accused Mukesh, Dheeraj and Devender @ Billu from the lock up of PS Mangol Puri, who are present in the court, and pursuant to their respective disclosure statement, the said police party along with the accused went to Metro Railway Station Parking, Pratap Nagar, Delhi, where the accused stated to have parked the looted vehicles and SI Mahesh met with a boy Sanjay, who was working in the parking and who was also joined in the investigation and thereafter the accused took them towards 2/3 Toyota Qualis vehicles parked in that parking and all the three accused pointed out one Qualis vehicle no.HR26M6149 which was stationed in the parking and disclosed that the said vehicle was snatched by them from near Vikas Sheel Apartments, Sector 13, Rohini, Delhi and that SI Mahesh had noted the engine and chassis number of that vehicle and on verification, its real number found to be DLIVB0524. He further deposed that SI Mahesh took 3 Qualis and one Maruti Car into possession from that parking vide seizure memo which he had signed and he identified the Qualis vehicle bearing registration No.DLIVB0524 as Ex.P1 and seizure memo of the same as Ex.PW3/A.
9. In his cross examination, PW1 admitted that PW Sanjay was having parking slip book with him at that time. He did not remember the engine and chassis number of the said Tata Qualis but it was noted by the IO and full papers were placed on the file of this case but the witness could not trace out the same from the judicial SC No.125/10 Page 4/13 file. He did not remember as to what timings were told by Sanjay to the IO about the parking of the said stolen vehicles. He further did not remember as to whether the parking slips contained the number of the said stolen vehicle also.
10. PW2 Rajesh, the complainant, has proved his statement as mentioned above as Ex.PW2/A but he turned hostile qua the identity of the accused persons as the same persons who looted the car or use of a firearm while looting the said car. He was extensively cross examined on behalf of the State by the Ld. APP but he denied to have made any such statement with regard to identification of the accused either at the spot or his presence at the jail premises for the TIP of the accused (the TIP in the case had been refused by the accused on the ground that they were kept at the PS and were shown to the witnesses except accused Mukesh Kumar whose identity in TIP was doubtful and accused Dheer Singh @ Dheeraj who could not be identified during the TIP also) or at any other place. He further denied to have made any statement to the police that any firearm (Tamancha) was shown to him at the time of looting his said car.
11. PW3 Sanjay Kumar deposed that he was working at Pratap Nagar Metro Railway Station Parking and in March 2004, 3/4 boys covering their faces along with 3/4 police officials came at the parking and the police officials got his signatures on some blank papers and the police told him about one Santro car and another car SC No.125/10 Page 5/13 but he could not identify the said cars on the day of deposition since he left the services at parking and he further deposed that the police had taken the cars with them but he did not remember the numbers of those cars which were in his memory previously and that the seizure memo of Qualis car no.HR26M6149 is Ex.PW3/A which bears his signature at point X and he failed to identify the accused present in the court.
12. PW3 was extensively cross examined on behalf of the State by the Ld. APP wherein he admitted that he was illiterate and he made his statement to the police on 09.03.2004 to the effect that SI Mahesh, HC Sushil, HC Narender along with accused Mukesh, Dheeraj and Devender came at Metro Parking to him and the said 3 accused pointed out three Qualis cars, one Santro car and one Maruti car in the parking and disclosed that the said vehicles were stolen vehicles but he volunteered that at that time he was taking his meal in the parking and that police persons themselves took out the said stolen vehicles from the parking and he admitted it as correct that one vehicle among the parked vehicles was having No.HR26M6149 which was a private number whereas the taxi number of a vehicle is always with a yellow plate. He denied the suggestion that the said vehicle No.HR26M6149 was taken into possession by the police vide memo Ex.PW3/A and he volunteered that his signatures were obtained on blank papers by the police. He further denied the suggestion that the said three accused were not in muffled faces. He SC No.125/10 Page 6/13 further denied to have identified any of the accused present in court.
13. In his cross examination on behalf of the accused, PW3 replied that the police came to the parking at about 10 or 10.30 p.m and he was sitting inside his small hut type room at that time and he was having parking slips with him and that the said stolen vehicles were already parked in the parking when he resumed his duty at 10 a.m and that all the parking slips pertaining to that day or even previous day remained in that hut and that police did not verify all the parking slips lying in the said room to see the parking time of those stolen vehicles. He further replied that police had actually seen the parking slips kept in the room of that day from 10 a.m to 10 p.m. He further replied that when police had met him in his said room in the day the police had already took out those stolen vehicles from the parking from the rear side gate of the parking and that he was called at the rear gate and that he was also taken to the PS by the police from that rear gate of the parking and he was made to sit in the PS for two days. He further replied that owner of the parking contract was one Sanjay under whom 15 employees were working and that when the police came, only two employees were on duty out of which one was a Sikh by the name of Rana.
14. PW4 ASI Ashok Kumar is the Duty officer who proved the FIR as Ex.PW4/A. PW5 is HC Rajpal who proved the disclosure statement of accused Praveen as Ex.PW5/A, in FIR No.123/04 of PS Narela which was objected to on behalf of the accused. PW6 is SC No.125/10 Page 7/13 again the witness of disclosure statement of accused Praveen Ex.PW5/A. PW9 is the MHC(M) who proved the relevant entries of register no.19 with regard to deposit and sending of the case property. PW10 is the then Ld. MM who proved the TIP proceedings as Ex.PW10/A to Ex.PW10/D. PW11 is the concerned record keeper of the court who proved the copies of disclosure statements of the accused in case FIR No.123/04 PS Narela as Ex.PW11/A to Ex.PW11/D. PW12 is the owner of the vehicle No.DLIVB0524 who proved the superdaginama Ex.PW12/A.
15. PW7 Inspr. Mahesh Kumar was the subsequent IO of FIR No.128/04, who had arrested the accused Mukesh, Devender, Dheer Singh @ Dheeraj in the said case on 04.03.2004 and deposed about their disclosure statements with regard to robbing of vehicle No.DLIVB0524 and further deposed that on the same day the three accused led the police party to Metro Station Pratap Nagar and pointed out 5 vehicles out of which one Qualis vehicle was having a fake registration number plate bearing No.HR26M6149 and all the said vehicles were taken into possession vide recovery memos and that he informed the police of PS Prashant Vihar about the recovery. He further deposed that on 06.03.2004, the fake number plate of the aforesaid Qualis vehicle was removed from the vehicle and taken into possession vide separate recovery memo which is Ex.PW7/E and similar fake number plates of other vehicles were also removed on 06.03.2004 and were taken into possession vide same recovery SC No.125/10 Page 8/13 memo and the vehicle pertaining to this case was transferred to the PS Prashant Vihar and he identified the fake number plate.
16. In his cross examination, PW7 admitted it as correct that all the number plates which were produced in the court on the day of deposition were in open condition. He admitted that the parking place from where the alleged recovery was effected was a thoroughfare but he did not ask any public person to join the investigation.
17. PW8 Inspr. K.P. Tomar is the IO of the case who prepared the site plan Ex.PW8/A and he deposed that on 07.03.2004, he received message from PS Mangol Puri that they had arrested 4 persons in another case from whom the recovery of the vehicle No.DLIVB 0524 with fake number plate bearing No.HR26M6149 was already effected and thereafter he added Section 473 and 411 IPC and that he moved an application before the court for conducting TIP and accused Mukesh was duly identified by the complainant and that accused Devender refused to join the TIP and that accused Dheer Singh could not be identified by the complainant but he did not remember as to whether accused Praveen Kumar @ Sanju was subjected to TIP or not.
18. From the said evidence, it is clear that it is a clear cut case of acquittal of accused Praveen. Neither he was seen by any witness while looting the said vehicle nor he was put to TIP and the disclosure statement against him is admissible being hit by Section SC No.125/10 Page 9/13 25 of the Evidence Act and his pointing out of the place of occurrence is inadmissible because it was a fact already there in the knowledge of the police.
19. So far as accused Mukesh Kumar, Dheeraj @ Dheer Singh and Devender @ Billu are concerned, in view of the complainant having been failed to establish their identity at the time of looting the said Qualis vehicle and turning hostile to the fact that they used any deadly weapon at the time of said robbing and the suggestion to PW3 that the accused were not in muffled faces at the parking justifying the refusal to join TIP by some of the accused, they are acquitted of the charges u/s 392/34 & 397 IPC.
20. Coming to charge of Section 411 IPC, the requirement of the law is that the alleged stolen property should have been in the exclusive and exclusive possession of the accused. Admittedly in the present case, even if the recovery is assumed to be true for the sake of arguments though not holding so, the possession at the time of the alleged recovery of the vehicle was that of the parking. The parking is a place having certain contractual liabilities. The contract between the person who is having the authority to run the parking and the person granting the said right is on the one hand and the contract between the parking space holder and the consumers who are parking their vehicles is on the other hand. There is no parking agreement on the record by way of any slip, docket or otherwise document to establish the fact that these were the accused who SC No.125/10 Page 10/13 parked the vehicle at the said parking. As such, there is no evidence on the record that even the said vehicles were parked at the said parking or not and if parked, then the same were parked by the accused. The hostility of PW3, who was the parking attendant, towards prosecution has demolished the total story as mentioned in the charge sheet. He has not only demolished the recovery memo Ex.PW3/A of the said Qualis but also the identity of the said three accused as the persons who allegedly disclosed about the alleged parking of the said Qualis. In order to establish the stolen property in the possession of a person, his defecto as well as dejure possession must be proved by the prosecution. At the cost of repetition, as there is no parking agreement mentioning the time, date and person who parked the said vehicle, it cannot be said that these were the accused who parked the said vehicles in the said parking. Neither PW1 nor PW7 either in their examination in chief or in their respective cross examination could establish the engine and chassis number of the said Qualis allegedly recovered from the said parking and thus, its mere identity as Ex.P1 as the same vehicle which was parked there with a fake number plate does not lead us to anywhere nor connect the accused with the offence. Even the superdar PW12 has not proved on record its registration number though he got the said vehicle released on superdaari. Thus, in view of the contradictory stand of PW1 and PW7 and further jolt given to the alleged pointing out of the vehicle by the accused by PW3 and SC No.125/10 Page 11/13 non production of the documents as well as the owner of parking tender as the witness, the accused could not be connected with the offence u/s 411 IPC and accordingly, they are acquitted of the offence.
21. Coming to the charge u/s 473 IPC, at the outset it is necessary to go through the said offence as mentioned in the IPC. As per ingredients of Section 473 IPC, whoever makes or counterfeits any seal, plate or other instrument for making an impression intending that the same shall be used for purpose of committing any forgery which would be punishable under any Section of this Chapter other than Section 467 or with such intent has in his possession any such seal, plate or other instrument knowing the same to be counterfeit shall be punished.
22. It is the making or counterfeiting which is the essence of the offence. The case of the prosecution is that the said vehicle was found with a fake number plate which was not its original registration number. The evidence should have been led that these were the accused who made it or counterfeited the said plate and then other ingredients of the offence could have been attracted. Prima facie the charge u/s 473 IPC, in my considered opinion, was not at all attracted but it should have been 471 IPC which provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document shall be punished. The number plate was admittedly a SC No.125/10 Page 12/13 document which can also be called a plate as mentioned in Section 473 IPC. The registration number on a plate can be said to have been used only when it was being displayed on the vehicle, as provided under the Motor Vehicle Act and the Rules framed thereunder. There is no evidence on the record that these were the accused who put the said registration number on the said vehicle or were seen plying the vehicle with the said fake registration number. Thus, even Section 471 IPC is not established on the record much less Section 473 IPC. Moreover, as per admission of PW7 in his cross examination that the fake number plate when produced in the court was unsealed, further created a doubt about its recovery as such, as mentioned in the charge sheet. Hence, the benefit of doubt is extended to the accused towards the charge under Section 473/471 IPC also.
23. In view of my said discussion, the accused are acquitted of the charges 392/397/411/473/471/34 IPC. The accused Mukesh and Dheer Singh @ Dheeraj be released forthwith, if not wanted in any other case. The PBs and SBs of accused Devender and Praveen are hereby discharged. The file be consigned to the Record Room. (Announced in the open court on 19.08.2010) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.125/10 Page 13/13