Delhi District Court
State vs Gulzar Etc. on 17 September, 2009
1
IN THE COURT OF SH. RAM LAL MEENA :
MM: KARKARDOOMA COURTS: DELHI
FIR No. 225/08
U/s 411/34 IPC
State versus Gulzar etc.
PS Geeta Colony
JUDGMENT :355 CrPC
a) the serial number of the case : 64/02
b) the date of the commission : 27.09.08 of the offence
c) the name of the : Jitender Kumar Jain complainant (if any)
d) the name of the accused : 01. Gulzar S/o Baseer R/o Village person, and his parentage Limla, PS Puthiya, District Kishan and residence Ganj, Bihar.
Present address : Jhuggi Shastri park, Seelampur, Delhi.
02. Alam S/o Md. Yunis R/o Village Cheetal Ghata, PS Chopra, District Dinajpur, West Bengal.
Present Address: Jhuggi Shastri park, Seelampur, Delhi.
e) the offence complained of : U/s 411/34 IPC or proved
f) the plea of the accused and : Accused did not plead guilty.
his examination if any
g) final order : Acquitted
h) Final arguments heard on : 15/09/09
i) Date of such order : 17.09.09
e) a brief statement of the reasons for the decision:-
01. A police report was put up against the accused by the 2 State through Station Police Officer of PS Geeta Colony on 18.11.08 with this allegations that both accused namely Gulzar and Alam were running away with a rickshaw and one person namely Jaipal was chasing to them with words "chor chor". On that time, a police constable namely Sunil was patrolling in the area and when he heard the noise of aforesaid person namely Jaipal, then he apprehended one of the accused and other accused was apprehended by the abovesaid person. During the investigation of the case both accused disclosed that they also committed theft of exide battery and one jack of the cars in the intervening night of 17/18.09.08 pertaining to the present case, therefore, both accused were arrested in the present case and on their instance, one exide battery belonging to the complainant Jitender Kumar Jain's car No. DL2CAC 6974 and one jack of complainant Dinesh Kumar's car no.
DL2CK 5714 were recovered from their residence, hence both accused are liable for offence U/s 379/411/34 IPC.
02. After filing of police report, cognizance of offence was taken by my learned predecessor court and the accused was called upon to face the trial after complying with the requirement of Section 207.
03. On 18.12.08 having heard the APP for State and the accused a formal charge was framed against both the accused for 3 having committed an offence punishable U/s 411/34 IPC. They refused to plead guilty and claimed trial.
04. In support of its case, prosecution examined seven witnesses. PW 1 complainant Jitender Jain, PW 2 is Dinesh Kumar, PW 3 is constable Mitra Sain, PW 4 is constable Sunil Kumar, PW 5 is head constable Rajender, PW 6 is HC Dhaniram, PW 7 is HC Amarjeet Singh. Accused were also examined. Accused refused to lead defence evidence.
05. I have heard Ld. APP for the State and counsel of the accused and perused the record carefully.
06. I have gone through the evidence of prosecution which are as under:-
PW 1 is Jitender Jain who deposed that he used to run the business of garments and on the night of 17/18.9.08 he had parked his maruti van no. DL2CAC 6974 in the gali in front of his house at about 9:00 pm and at about 2:30 am as he had to go somewhere and when he tried to start his car on which he found the wires of ECM were lying disconnected and he also saw that battery exide make was not in the car. PW 1 further deposed that he had searched the abovesaid articles but in vain and he had given the information to the police on 18.09.08, thereafter he was in touch with the police officials and searching the abovesaid articles 4 but in vain and he had given the complaint on 23.09.08 Ex. PW 1/A. PW 1 further deposed that he had shown the spot to the police officials from where above said articles were stolen by some unknown person and the battery and jack of his neighbour Dinesh were also found missing from his maruti van and he had went to police station and where he had identified the battery of exide mark and his statement was recorded by the police.
PW 2 is Dinesh Kumar who deposed that he used to do the stitching work of export garments and on 18.09.08 he had parked his car No. DL2CK 5714 in the gali and at about 2:30 am he listened the noise on which he came outside his house and when he checked his car he found window pane was found opened and battery and jack were missing from his car. PW 2 further deposed that the articles from the car of Jetender Jain were also stolen by someone on the same night and police officials met him to whom he had stated about the theft of battery and jack of his car and he had not visited police station nor had he identified any jack at the police station.
PW 3 is constable Mitra Sain who deposed that on 27.09.08 he was posted at PS Geeta Colony and on that day he along with HC Amarjeet Singh were on emergency duty and ASI Yogender Singh informed HC Amarjeet Singh that he has 5 apprehended some accused persons and they had made disclosure in the present case FIR in which HC Amarjeet Singh is the IO and both the accused were handed over to HC Amarjeet Singh, IO in this case and accused were personally searched and arrested vide memo Ex. PW 3/E, Ex. PW 3/F, Ex. PW 3/G and Ex. PW 3/H. PW 3 further deposed that both the accused made disclosure statement Ex. PW 3/A and Ex. PW 3/B and in their disclosure statement both the accused disclosed that about 8 / 10 days back they had committed theft of two car batteries, one ECM and one car jack from two cars in the night, out of which one car battery and ECM had been already sold to one junk dealer namely Salim and the remaining articles are at their jhuggi which they can get recovered.
PW 3 further deposed that he along with IO and both the accused persons went to the place of occurence and pointing out memo was prepared at the instance of accused persons which is Ex. PW 3/C and both the accused took them to their jhuggis and accused Gulzar produced one car battery make Exide from his jhuggi and accused Alam produced one car jack from his jhuggi and the abovesaid articles were seized vide seizure memo Ex. PW 3/D. PW 4 is constable Sunil Kumar who deposed that on 26.09.08 he was posted at PS Geeta Colony as constable and on that day both the accused made disclosure statement before HC 6 Amarjeet Singh in case FIR No. 226/ 08 u/s 379/411/34 IPC, PS Geeta Colony regarding their involvement in the present case and their disclosure statement is Ex. PW 4/A and Ex. PW 4/B. PW 5 is head constable Rajender who deposed on the same line of facts as deposed by PW 4 hence same are not reproduced here.
PW 6 is HC Dhaniram who deposed that on 23.09.08 he was posted as duty officer at PS Geeta Colony and on that day he received rukka from constable Miter Sen sent by HC Amarjeet Singh and on the basis of which he recorded FIR of this case Ex. PW 6/A and made endorsement on rukka is Ex. PW 6/B and thereafter he handed over the copy of FIR and rukka to constable Miter Sen to hand over the same to the IO.
PW 7 is HC Amarjeet Singh who deposed on the same line of facts as deposed by PW 3 hence same are not reproduced here. In addition of that he further deposed that he prepared rukka Ex. PW 7/A and prepared site plan Ex. PW 7/B at the instance of the complainant.
07. I have heard Ld. APP for the State and counsel for the accused and perused the record carefully. During the course of the final arguments, counsel for the accused submits that prosecution has failed to prove its case beyond reasonable doubt hence 7 accused be acquitted for charged offence.
08. In support of the arguments of the acquittal of the accused, counsel for the accused submits that prosecution examined seven witnesses. PW 1 and 2 are the complainants and PW 3 to PW 7 are the police witnesses but they have not supported the prosecution's case. Counsel for accused submits that prosecution alleged that both accused were arrested by ASI Yogender Singh in case FIR bearing No. 226/08, u/s 379/411 IPC, PS Geeta Colony in which they made their disclosure statements in regard of the theft of the present case and consequently, IO of the present case recovered the alleged stolen articles ie battery and jack from their respective houses. Counsel for the accused further submits that complainant PW 1 Jetender Jain and PW 2 Dinesh Kumar have not supported the prosecution's case as PW 1 admitted in the course of cross examination that there is no mark on the case property by which he can say that case property belongs to him. Moreover, he has also not produced any documents showing his ownership over the alleged stolen case property, ie exide battery. Counsel for the accused further submits that PW 2 was also not supporting the case of prosecution hence, Ld. APP for the state also cross examined to PW 2 which shows that he has also not been relied upon by the prosecution. Moreover, he also deposed during 8 the course of cross examination that a jack produced by the MHCM does not belong to his car and he had also not identified to the same at the PS. The abovesaid deposition of PW 2 clearly shows that prosecution has failed to prove that case property produced by the MHCM belongs to the complainants. Counsel for the accused further submits that prosecution has also not examined ASI Yogender Singh and constable Sunil who apprehended to the accused persons in case FIR bearing No. 226/08 which shows that prosecution has failed to prove its case beyond reasonable doubt. Counsel for the accused further submits that IO PW 7 stated that he prepared site plan Ex. PW 7/B at the instance of the complainant Jetender Jain but perusal of the site plan shows that there is no signatures of the complainant Jetender Jain on the site plan which shows that entire proceedings of the case were conducted at the police station. Counsel for accused submits that the contradictions as pointed out by him clearly shows that prosecution has failed to prove his case beyond reasonable doubt. Hence accused be acquitted.
09. On the other hand Ld. APP for the State submits that prosecution has proved its case beyond reasonable doubt however there are some technical aspects as pointed out by the counsel for the accused but same does not weak the case of the prosecution.
10. After having gone through rival submissions of both the 9 parties and perusal on record, I am of the considered view that the prosecution has failed to prove its case beyond reasonable.
Firstly, I find that prosecution examined seven witnesses. PW 1 and 2 are the complainants and PW 3 to PW 7 are the police witnesses but they have not supported the prosecution's case. I find that prosecution alleged that both accused were arrested by ASI Yogender Singh in case FIR bearing No. 226/08, u/s 379/411 IPC, PS Geeta Colony in which they made their disclosure statements in regard of the theft of the present case and consequently, IO of the present case recovered the alleged stolen articles ie battery and jack from the houses of accused persons.
For the examining of abovesaid fact, I find that complainant PW 1 Jetender Jain and PW 2 Dinesh Kumar have not supported the prosecution's case as PW 1 admitted in the course of cross examination that there is no mark on the case property by which he can say that case property belongs to him. Moreover, he has also not produced any documents showing his ownership over the alleged stolen case property, ie exide battery. Furthemore, I find that other complainant, PW 2 was too also not supporting the case of prosecution, therefore, Ld. APP for the state also declared the abovesaid witness as a hostile witness. Moreover, the abovesaid PW 2 also deposed during the course of cross examination that a jack 10 produced by the MHCM does not belong to his car and he had also not identified to the same at the PS. The abovesaid depositions of PW 1 and PW 2 clearly shows that prosecution has failed to connect the alleged stolen case property with the accused persons which shows that case property cannot be relied upon. I also relied upon citation, ie "Manik Devrao Vs State of Mahrashtra 1994 SCC (Cri) 1761" in which Hon'ble Supreme Court held that "When there is no evidence to identify the property seized from the accused person to be stolen property, conviction against the accused u/s 411 I.P Code cannot be sustained".
Secondly, I find that prosecution has also not examined ASI Yogender Singh and constable Sunil who claimed that they apprehended to the accused persons in case FIR bearing No. 226/08 in which they made disclosure statement about the theft of the present case. In the absence of abovesaid witnesses, I am of the considered view that prosecution has also failed to establish the chain of facts of the case.
Thirdly, I find that IO PW 7 stated that he prepared site plan Ex. PW 7/B at the instance of the complainant Jetender Jain but perusal of the site plan shows that there is no signatures of the complainant Jetender Jain on the site plan which strengthens the defence view that entire proceedings of the case may have been 11 conducted at the police station.
11. In view of the above discussion I hold that the accused are not found guilty of the charge framed against them and they are acquitted of the charge u/s 411/34 IPC framed against them. Accused be set at their liberty if they are not required in any other case. After compliance file be sent to record room.
ANNOUNCED IN THE OPEN (RAM LAL MEENA)
COURT ON 17.09.09 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
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FIR No. 225/08
U/s 411/34 IPC
State versus Gulzar etc.
PS Geeta Colony
17.09.09
Present: None for the State.
Accused Alam in JC.
Accused Gulzar on bail.
Vide my separate judgment, both accused are acquitted of the charge u/s 411/34 IPC. Accused be set at their liberty if they are not required in any other case. Bail bond of the accused are cancelled. Surety discharged. After compliance file be sent to record room.
(RL Meena) MM/KKD/17.09.09