Delhi District Court
State vs Rahisuddin Etc. ("Acquitted") Page 1 Of ... on 2 February, 2013
FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.:543/06 PS: DBG Road U/s 379/411/34 IPC Unique ID No.: 02401R1376742008 J U D G M E N T:
______________________________________________________________
(a) S.No. of the case : 631/2
(b) Name of complainant : Sh. Anil Kumar Jain s/o Sh. Hem Chand Jain, r/o H. No.5C/97, IInd Floor, New Rohtak Road, Delhi.
(c) Date of commission of offence : Between 16.12.06 to 18.12.06
(d) Name of the accused : 1). Rahisuddin @ Rahis Malik
s/o Sh. Ilahi Mehar,
r/o Village Nawla, PS Manshur
Pur, District Muzafar Nagar, UP.
2). Mehroof @ Guddu
s/o Sarif @ Kallu
r/o Village Nawla, PS Manshur
Pur, District Muzafar Nagar, UP.
(e) Offence complained of : U/s 379/411/34 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 29.01.2013
(h) Final Order : Acquitted
State V/s Rahisuddin etc. ("Acquitted") Page 1 of 17
FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013
(i) Date of such order : 02.02.2013
A. BRIEF FACTS & REASONS FOR SU CH DECISION
:
The facts of the case in brief as borne out from the record are that on 18.12.2006 complainant Sh. Anil Kumar Jain got his complaint recorded with police station DBG Road with regard to theft of one motorcycle bearing registration no. DL6SV4175 duly registered in the name of his son Sh. Mohit Jain. The complaint further disclosed that Sh. Mohit Jain had parked the said motorcycle outside his house at around 08:00 PM on 16.12.06. That, Sh. Mohit Jain had gone to Patna on the same night. In the morning of next day at around 06:00 AM, complainant found the said motorcycle missing. That, as despite his sincere efforts the said motorcycle was not traced out, he lodged the present complaint on 18.12.2006.
On 25.01.2007, SI Krishan Kumar arrested two persons namely Rahisuddin @ Rahis Malik and Mehroof @ Guddu in case FIR No.395/06 u/s 379 IPC PS DBG Road. The said two persons disclosed their involvement in the commission of theft of aforesaid motorcycle and they also got recovered the aforesaid motorcycle. Both the accused persons were formally arrested in the present matter and after completion of necessary investigation, chargesheet in the matter was filed in Court through SHO concerned.
Detail of Court Proceedings:
2. After filing of charge sheet in the case, both the accused persons were supplied the documents in compliance of Section 207 Cr.P.C. After hearing State V/s Rahisuddin etc. ("Acquitted") Page 2 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 arguments on charge, vide order dated 23.09.2009 charge u/s 411/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
Evidence Held:
3. In order to bring home the guilt of both the accused persons, prosecution examined six witnesses, whereafter the PE in the matter was closed and statements of accused persons U/s 313 Cr.P.C were recorded, wherein they claimed themselves to be innocent and having been falsely implicated in the case but did not wish to lead any defence evidence in the matter.
Evidence Held:
4. A total of six witnesses were examined by the prosecution in support of its case. A brief scrutiny of the evidence recorded in the matter is as under.
5. PW1 HC Murari Lal was the Duty Officer who proved the fact with regard to the recording of the FIR in the matter vide Ex.PW1/A.
6. PW2 Sh. Anil Kumar Jain deposed that in the year 2006, he was doing business of paper box. One motorcycle No.DL6SV/4175, make Pulsar, model 2004, was in the name of his son Mohit Jain. On 16.12.2006, at about 8 PM, the said motorcycle was parked outside his house and on the same day Mohit State V/s Rahisuddin etc. ("Acquitted") Page 3 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 went to Patna. On 18.12.2006, in the morning at about 6 AM, he found the aforesaid motorcycle missing from the said place, where that was parked. He searched the same, but in vain. He made a complaint Ex.PW2/A to police.
Site plan Ex.PW2/B was prepared by police at his instance. He came to know that motorcycle was recovered and he got released the same on superdari vide Ex. Ex.PW2/C. The identity of motorcycle was not disputed by accused.
During his cross examination by the defense, he stated that he had not seen who committed theft of the aforesaid motorcycle. He further stated that he did not know wherefrom the said motorcycle was recovered.
7. PW3 Sh. Mohit Jain deposed on the similar lines as of PW2.
During his cross examination by the defense, he stated that he had not seen who committed theft of the aforesaid motorcycle. He further stated that he did not know wherefrom the said motorcycle was recovered.
8. PW4 Constable Hari Prasad was the witness who took the rukka from the spot to the police station and got the FIR in the matter registered. Thereafter, he returned back to the spot and handed over the copy of FIR and original rukka to IO.
This witness was not at all cross examined by the defense despite being accorded opportunity in this regard.
9. PW4 (wrongly mentioned as PW4) SI Krishan Kumar deposed that on State V/s Rahisuddin etc. ("Acquitted") Page 4 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 26.01.2007, he was posted at PS DBG Road as SI. On 23.01.2007, he was on patrolling duty in PS DBG Road area. At around 4:00 PM, he arrested accused Rahisuddin red handed with a stolen motorcycle vide Ex.PW4/D. During the interrogation and recording of disclosure statement, the accused disclosed the fact that he had stolen a scooter for which an FIR was already registered as per FIR No.395/06, U/s 379 IPC, PS DBG Road. Accused was arrested on said day vide arrest memo Ex.PW4/E. Other coaccused Guddu was arrested on 5.01.2007 vide arrest memo Ex.PW4/F. On 23.01.2007, disclosure statement Ex.PW4/1 of accused Rahisuddin was recorded in FIR No.44/2007, PS DBG Road. Personal search of the accused Rahisuddin was conducted on 23.01.2007 vide Ex.PW4/G in case FIR No.44/2007, PS DBG Road. The personal search of accused Guddu was conducted vide Ex.PW4/H in case FIR No.395/2006. The accused further told that he had sold the said scooter to one Guddu, who belonged to Muzzafarnagar, but his correct address was not known to him. However, he knew the area where he was working and could get the said scooter recovered. On 24.01.2007, police took two days' PC remand of the said accused and medical examination of accused was conducted on same day vide Ex.PW4/C. On 25.01.2007, they reached at native village of accused Rahisuddin and recovered one motorcycle from his home. He further told that accused Rahisuddin with one stolen motorcycle from DBG Road bearing Registration No.: DL6SV/4175 took them to house of Guddu, which was also in the same village. On interrogation, accused Guddu revealed that the said motorcycle was stolen by him from DBG Road area and State V/s Rahisuddin etc. ("Acquitted") Page 5 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 that they hide the said motorcycle in the fields of the said village. At the instance of the said accused, the aforesaid motorcycle was recovered from that fields and was seized. Motorcycles were deposited with malkhana. They informed ASI Ram Niwas, the IO of case FIR No.543/2006, PS DBG Road, who was joined in the investigation and they handed over him relevant documents alongwith accused.
During his cross examination on behalf of accused Mehruf @ Guddu, he stated that he alongwith Inspector Sanjay Kumar Singh, HC Sukhbir, Ct.Sanjeev and Ct.Khurshid had gone to village of accused Rahisuddin on 24.01.2007 in a private vehicle, whose number he did not remember. He could not tell the name of driver of said vehicle. They reached at the village of accused on the next day in morning. They had not called the owner of said fields. At that time, the harvest was in its initial stage. Key of motorcycle was handed over to him by Guddu. He admitted the fact that he had not stated this fact in his statement. He had not called any public witnesses at the time of recovery of case property. There was no helmet or any other property in the motorcycle. He could not tell who was the constable who had driven the said motorcycle. They reached police station in the evening of 25.01.2007. He did not know that the fields were not of Guddu. He denied the suggestion that the motorcycle had not been recovered from the possession of accused Guddu or that he had not handed over keys of said motorcycle. He further denied the suggestion that accused Guddu has been falsely implicated in this case.
No cross examination was done on behalf of accused Rahisuddin State V/s Rahisuddin etc. ("Acquitted") Page 6 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 despite being accorded opportunity to this effect.
10. PW5 HC Sanjeev Kumar deposed that on 24.01.2007, he was posted at PS DBG Road as Constable. On that day, he alongwith Inspector Sanjay Kumar Singh, SI Krishan Kumar, HC Sukhbir Singh, Ct.Khursheed and Ct.Rajesh went to village namely Nawla Mansurpur, Muzaffarnagar of accused for the purpose of investigation. They reached the said place on 25.01.2007 in the morning. On the basis of information received from accused Rahisuddin, they arrested accused Guddu alongwith motorcycle, which was standing in his fields and was seized vide memo Ex.PW4/B. Accued Guddu was arrested and his personal search was conducted vide memos Ex.PW4/F and Ex.PW4/H respectivey. They alongwith both accused persons returned to police station in the night of 25.01.2007. Disclosure statements Ex.PW4/A of both accused was prepared.
During his cross examination done by Ld. counsel on behalf of accused Mehruf @ Guddu, he stated that he did not remember where they took a halt before reaching village of accused. He did not remember the time when they reached the village of accused. He was present in the private vehicle. He could not tell the number of said private vehicle or about the details of the private vehicle. On reaching village of accused, they went straightway to the fields of accused Guddu. He did not remember which of the motorcycle was recovered from accused Guddu. Though, he could tell as to which one of the said was recovered from the fields and which one from house of one of the State V/s Rahisuddin etc. ("Acquitted") Page 7 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 accused person. He stated that due to the lapse of time; he did not remember the exact location from where they recovered the said motorcycle. The owner of field was neither called nor made a witness. One of the motorcycle was driven by him and another by HC Sukhbir. He could not tell the registration number of motorcycle driven by him. He did not remember whether the motorcycle was in a locked or unlocked position at the time when it was recovered from the fields. He admitted the fact that the motorcycle gets started only by use of key. He did not remember the exact time when they reached police station, though it was night. They had brought the accused to the police station in the private car. He did not remember whether the place, i.e field was crowded or not. He could not tell whether owner of field was called and made a witness. He denied the suggestion that the motorcycle has not been recovered from possession of Guddu or that he had not handed over keys of said motorcycle. He further denied the suggestion that accused Guddu has been falsely implicated in this case or that they had not gone to village of accused Rahisuddin.
However, this witness was not cross examined on behalf of accused Rahisuddin despite being accorded opportunity to this effect.
11. PW6 ASI Ram Niwas deposed that on 18.12.2006, he was posted at PP Dev Nagar, PS DBG Road as ASI. On that day, complainant Anil Kumar Jain came to the PP and got his complaint recorded regarding theft of his motorcycle No.DL6SV/4175 of make Pulsar, Black colour. He recorded his State V/s Rahisuddin etc. ("Acquitted") Page 8 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 complaint and prepared rukka Ex.PW6/A on the same. He handed over the same to Constable Hari Prasad for getting the case registered at PS DBG Road and went to the spot situated at 5C/97, New Rohtak Road. He prepared the site plan Ex.PW2/B of the place from where the said motorcycle was stated to be stolen. He had prepared the said site plan on pointing out of the complainant.
On 26.01.2007, SI Krishan Kumar of PS DBG Road informed him telephonically regarding arrest of two persons namely Rahisuddin and Mehroof in case FIR No.395/2006 and FIR No.44/2007, both of police station DBG Road in which the said accused persons had made a disclosure statement regarding theft of motorcycle connected with his case. He alongwith Constable Sanjeev Kumar went to police station DBG Road and he obtained the concerned documents connected with his case from SI Kishan Kumar. He made enquiry from the said two accused persons. On instance of the accused Rahisuddin, the pointing out memo of the place of occurrence Ex.PW6/B was prepared. Both the accused persons were interrogated by him in which they had given their detailed disclosure statements Ex.PW6/C and Ex.PW6/D. The accused persons were arrested in this case vide memos Ex.PW6/E and Ex.PW6/F. Recovery of the motorcycle had already been effected by SI Krishan Kumar. Both the accused persons were produced before the court and were sent to JC. He informed the complainant about recovery of the motorcycle. He completed the investigation by recording the statements of witnesses. He correctly identified accused Rahisuddin before State V/s Rahisuddin etc. ("Acquitted") Page 9 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 the Court, however identity of accused Mehroob was not disputed by Ld. defense counsel Shri A.R Nasir, Advocate.
This witness was not at all cross examined by the defense on behalf of both the accused persons despite being accorded opportunities in this regard.
12. This is all as far as prosecution evidence in the matter is concerned.
13. Thereafter, the statements of accused U/s 313 Cr.P.C were recorded, wherein, both the accused persons denied the evidence adduced against them and stated that they have been falsely implicated in this case. No defence evidence was led by both the accused persons.
14. I have heard arguments advanced at bar by the learned defence counsels as also by learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
Arguments advanced & Case law cited:
While opening arguments, Ld APP of State has argued that accused Rahisuddin who was initially arrested in case FIR no. 44/07 U/s 379/411 IPC with PS DBG Road, led to the arrest of co accused namely Mehroof @ Guddu and consequent recovery of two wheeler scooter involved in case FIR no. 395/06 U/s 379 IPC with PS DBG Road from the possession of co accused. Ld APP further argued that after after arrest of both the accused, they made State V/s Rahisuddin etc. ("Acquitted") Page 10 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 another disclosure statement dt. 25.1.07 and led to recovery of motorcycle no. DL6SV 4175 involved in this case, from very village. Therefore, the disclosure statement Ex. PW4/A is admissible U/s 27 of Evidence Act. It is further argued that prosecution has examined PW2 and PW3 in order to prove that the aforesaid motorcycle was owned by Sh. Mohit Jain and same had been stolen from the area of PS DBG Road. On the strength of aforesaid submission, Ld APP has submitted that prosecution has been able to prove its case regarding recovery of stolen motorcycle from the possession of both the accused.
While referring to the testimonies of prosecution witnesses examined during trial and the documents proved on record, Ld APP also submitted that the statements of recovery witnesses examined by prosecution could not be impeached by accused and thus, both the accused should be convicted in respect of offence U/s 411/34 IPC.
On the contrary, it has been argued on behalf of both the accused by their respective counsels that alleged recovery of stolen motorcycle DL6SV 4175, has been planted upon them in order to solve the present case. In support of those submissions, Ld defence counsel referred to the relevant portions of the statements of prosecution witnesses more particularly that of PW4 namely SI Krishan Kumar wherein he admitted that he did not join any public witness at the time of recovery of motorcycle in question. They further State V/s Rahisuddin etc. ("Acquitted") Page 11 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 argued that testimonies of alleged recovery witnesses of prosecution should not be believed as they neither made any effort to join independent witness during recovery of motorcycle from field nor made any investigation with regard to the ownership wherefrom motorcycle in question is alleged to have been recovered at the instance of accused persons. Ld defence counsel further argued that prosecution witnesses could not disclose the particulars of the owner of field wherefrom motorcycle in question is alleged to have been recovered due to which, sufficient doubt is created in prosecution story. Thus, both the accused are entitled to benefit of doubt. In support of their respectful submissions, Ld defence counsel relied upon the following two authorities:
1. In the matter titled as " Anoop Joshi Vs. State reported at 1992(2) C.C 314(HC).
2. In the matter titled as " State(through Provident Fund Inspector) Vs. M/s. Shiv Shakti Rice Mills & Anr. reported at 1992(2) C.C Cases 319 (HC).
As already discussed above, accused Rahisuddin was initially arrested in case FIR no. 44/07 by SI Kishan Kumar(PW4) and his disclosure statement was recorded on 23.01.07. The said disclosure statement has been exhibited as PW4/I. The perusal of said disclosure statement goes to show that accused Rahisuddin did not disclose his involvement about theft of motorcycle in question in the present case. Instead, he made disclosure regarding theft of State V/s Rahisuddin etc. ("Acquitted") Page 12 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 one two wheeler scooter from the area of PS DBG Road involved in case FIR no. 395/06 with PS DBG Road and its sell to one boy namely Guddu resident of Mujafarnagar(UP) for a sum of Rs. 3000/. It is interesting to note that accused Rahisuddin did not disclose the address of Guddu as he merely claimed that Guddu used to sell Mobil oil near railway station of Mujafarnagar(UP) and he can take the police party to the said place.
As per case of prosecution, PW4 namely SI Kishan Singh alongwith HC Sukhbir Singh, Ct. Khurshid, Ct. Rajesh, Ct. Sanjeev Kumar(PW5) took accused Rahisuddin to Mujafarnagar(UP) vide DD no. 23A dt. 24.01.07 where the said accused took police party to the house of Mehroof @ Guddu and two wheeler scooter involved in case FIR no. 395/06 with PS DBG Road was allegedly recovered from his house. It was only on 25.01.07, joint disclosure statement of both the accused was recorded regarding their involvement in commission of offence involved in this case. The said disclosure has been exhibited as PW4/A. Perusal of said disclosure statement shows that the accused did not disclose any particular place where said motorcycle was kept by them. Still, the said motorcycle is claimed to have been recovered from field situated in the village of Mujafarnagar(UP) and was ultimately seized U/s 102 Cr.PC vide seizure memo Ex PW4/B. It is relevant to note that the entire charge sheet is completely silent as to whether the police party consisting of SI Krishan Kumar(PW4) and other State V/s Rahisuddin etc. ("Acquitted") Page 13 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 police officials as named above, made any arrival entry in the local police station of District Mujafarnagar(UP) of their arrival to the said place before proceeding to the house of accused Mehroof @ Guddu. Although, it has claimed by prosecution witnesses during trial that they had gone to said place in some private vehicle but none of the prosecution witnesses has been able to disclose the registration number of said private vehicle or the name of its driver. DD no. 23A dt. 24.01.07 regarding departure of police party, though not proved by prosecution witnesses during trial, also does not contain particulars of the said private vehicle. Anyhow, it is quite strange that the police party did not even seek the help of local police before proceeding to the house of accused Mehroof @ Guddu or before effecting recovery of two wheeler scooter involved in case FIR no. 395/06 with PS DBG Road or at the time of alleged recovery of motorcycle in question involved in this case. Likewise, it has been admitted by prosecution witnesses more particularly the alleged recovery witnesses that no effort was made by them either to join the owner of the field where from motorcycle in question was allegedly recovered at the instance of both the accused nor any other public witness was called to witness the recovery of motorcycle in question.
In the matter titled as " Riaz Ali Vs. State(Govt. Of NCT) Delhi"
reported at 2012(2) JCC 1092, it has been observed in para no. 79 as under: "xxxxxx No explanation is also forthcoming from the record as to how the State V/s Rahisuddin etc. ("Acquitted") Page 14 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 officials from the police station from Timarpur effected the investigation as well as recoveries and seizures at Sriniwas Puri which is way beyond their territorial jurisdiction. The prosecution does not disclose as to why the officials at the police station, Sriniwas Puri were not joined in the investigation. xxxxxx"
Moreover, there are material contradictions appearing in the testimonies of both the alleged recovery witnesses examined in this case in as as such as PW4 namely SI Krishan Kumar claimed that police party alongwith accused Rahisuddin had gone to the house of accused Mehroof @ Guddu and subsequently, all of them went to field situated in said village where from motorcycle in question was recovered but PW5 namely HC Sanjeev Kumar claimed that on reaching the village of accused Rahisuddin, police party had straightway gone to the filed of accused Mehroof @ Guudu. The said part of the testimony of PW5 is found to be incorrect even on the face of it for the simple reason that police party had reached Mujafarnagar(UP) in the morning of 25.01.07 and had firstly gone to the house of accused Mehroof @ Guudu and arrested him in case FIR no. 395/06 at about 1.20 P.M from his residence as per arrest memo Ex PW4/F available on record and thereafter, recorded joint disclosure statement of both the accused Ex PW4/A which led to the recovery of motorcycle in question. Furthermore, prosecution witnesses failed to explain as to why investigation was not done to ascertain the ownership of field where from motorcycle in question was recovered as per their version. Although, PW5 HC Sanjeev State V/s Rahisuddin etc. ("Acquitted") Page 15 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 Kumar claimed that motorcycle was recovered from the field belonging to accused Mehroof @ Guudu but no material whatsoever is shown to have been collected during investigation to prove this fact and no evidence whatsoever has been led on record during trial.
It is well settled law that prosecution has to stand on its own legs in order to establish the charges levelled against the accused. Still if any authority is required then reference with advantage can be made to the judgment in the matter " State of Karnataka Vs. Satish" reported at 1999(1)JCC(SC) 97.
In case titled as Devesh Kumar Vs. State (NCT of Delhi) CRL Appeal no. 793/04 of Hon'ble Delhi High Court it was held: "..........44. It is settled law that where the case of the prosecution had substantially fallen, remnants of what is perceived to be not tainted is not sufficient to sustain a conviction, for the reason it may be difficult for the defence to demolish each and every piece of evidence led by the prosecution."
"45. When the main pillars of the case of the prosecution have fallen, it would be futile to look to the pillars which stand and try and ascertain whether the structure can be salvaged"......
State V/s Rahisuddin etc. ("Acquitted") Page 16 of 17 FIR No.543/06: PS DBG Road : U/s 379/411/34 IPC DOD: 02.02.2013 In view of the above discussion, Court is of the considered view that prosecution has failed to prove its case beyond shadow of doubt against both the accused persons and both the accused persons namely Rahisuddin @ Rahis Malik and Mehroof @ Guddu are entitled to benefit of doubt. Accordingly, both the accused persons namely Rahisuddin @ Rahis Malik and Mehroof @ Guddu are acquitted in this case. However, their bail bonds shall remain in force for a period of six months from the date of this judgment. Superdarinama stands cancelled. Superdar if any stands discharged. Original documents if any be returned after cancellation of endorsements if any. File be consigned to the record room.
Announced in the open court (Vidya Prakash)
on 02.02.2013 Chief Metropolitan Magistrate:
Delhi
State V/s Rahisuddin etc. ("Acquitted") Page 17 of 17