Delhi District Court
The State vs 1. Rinku S/O Khunilal on 21 July, 2014
D.O.D 21.7.2014 FIR no. 251/11
P.S Alipur
u/s 328/379/34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 16/14
UID NO . : 02404R0320242011
FIR no : 251/11
P. S : Alipur
u/s 328/379/34 IPC
The State versus 1. Rinku S/O Khunilal
R/O kasumbra P.S Aonia, Distt.
Baralley, UP
(absconding)
2. Sunder Pal S/O Dharampal
( proceedings abated vide order
dated 08.2.2013.)
3. Raju @ Ajmat Ali S/O Nasib Ali
R/O Village Barali, PS Kasar Ganj,
Distt Bharaich, UP
4. Jalil Ahmed S/O Jamil Ahmed R/O
Village Saidpur Imma, P.S Nangw,
Distt JP Nagar, UP
Date of committal to session court : 24.12.2011
Date of argument : 21.07.2014
Date of order : 21.07.2014
JUDGMENT
1. Facts and circumstances giving rise to the SC No. 16/14 State vs Rinku etc (Page 1 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC present case, as per the story of the prosecution are that on 12.10.2010 at about 12:30 pm complainant Rajender Kumar was coming to Delhi driving his tempo number DL-1LE-4571. When he had just cross singhu border, he met three boys. Those three boys asked Rajender to carry their goods and articles from village Mukhmelpur to Narela and the fair was settled at Rs 1200/-. All three boys alongwith Rajender came to the outskirts of village Mukhmelpur and asked the driver to park the vehicle there. There was no other house in the nearby area. One of the boy remained with Rajender but two boys went inside the house. At about 2:00 pm, one boy came outside from the said house with a bottle of pepsi and a glass. The glass was filled with Pepsi and it was offered to Rajender which he happily accepted. The cold drink was drunk by the three boys from the bottle. After taking the drink, Rajender felt drowsy and became unconscious. He regained consciousness on 14.10.2010 at about 6:00 pm and then he informed the matter to his employer i.e owner of the tempo.
SC No. 16/14 State vs Rinku etc (Page 2 of 29 )
D.O.D 21.7.2014 FIR no. 251/11
P.S Alipur
u/s 328/379/34 IPC
2. According to the prosecution on 3.7.2011, on receipt of secret information , ASI Ram Roop and HC Jitender Kumar, who were posted with operation cell Maurice Nagar, apprehended the accused persons alongwith aforesaid stolen tempo having fake registration number UP-21N-6710 within the jurisdiction of P.S Timarpur and in this regard a case FIR no.149/11 dated 3.7.2011 u/s 467/468/411/34 IPC was registered at P.S Timarpur . In the said case accused persons disclosed that they had stolen the aforesaid tempo from the area of Alipur around 8 months ago. Information was given to the P.S Alipur and later on the accused persons were arrested in the present case also on 25.7.2011.
3. After completing the investigation accused persons were chargesheeted for the offences u/s 379/328/411/34 IPC alleging that they in furtherance of their common intention made complainant Rajender Kumar to take cold drinks laced with some intoxicated substance with intent to facilitate the SC No. 16/14 State vs Rinku etc (Page 3 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC commission of theft of tempo and thereby committed the theft of tempo number DL-1LE-4571 belonging to one Raj Sharma from the possession of the complainant Rajender Kumar.
4. Vide order dated 20.10.2011, Ld ACMM took the cognizance of the offences and subsequently, since the offence u/s 328 IPC was exclusively triable by the court of sessions, therefore, vide order dated 24.12.2011 , case was committed to the court of sessions.
5. Vide order dated 9.02.2012. Ld Predecessor of this court decided the charges and accordingly, charges for the offences u/s 328/379/34 IPC were framed against the accused persons namely Rinku , Sunder Pal and Raju @ Ajmat to which they pleaded not guilty and claimed to be tried. At that stage, accused Jalil Ahmad was absconding.
6. Subsequently accused Jalil Ahmed was arrested . Supplementary chargesheet was filed SC No. 16/14 State vs Rinku etc (Page 4 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC against him and vide order dated 09.8.2012, charges for offences u/s 328/379/34 IPC were framed against him also.
7. Here it is pertinent to mention that during the trial accused Sunder Lal expired and accused Rinku absconded. Proceedings against accused Sunder Lal were stands abated vide order dated 08.2.2013 and proclamation u/s 82 CrPC against the accused Rinku was executed on 16.7.2014.
8. In order to prove its case, prosecution has examined twelve witnesses.
9. PW1 HC Usha Rani is the duty officer who proved the registration of FIR ExPW1/B.
10. PW2 HC Jitender Kumar and PW3 ASI Ram Roop Singh were posted with Operation cell Maurice Nagar. As per story of prosecution on 3.7.2011, on receipt of secret information they had apprehended the accused persons namely Rinku, Jalil Ahmad @ SC No. 16/14 State vs Rinku etc (Page 5 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC Gadha, Sunderpal and Raju @ Ajmat Ali alongwith the stolen tempo bearing no. DL-1LE-4571 having fake registration number UP-21N-6710 and in this regard an FIR no. 149/11 at P.S Timar Pur u/s 467/468/411/34 IPC was registered. Accused persons were arrested . They disclosed that they had stolen the aforesaid tempo from the area of Alipur 8 months ago. On 23.7.2011, IO from PS Alipur recorded their statement in the office of operation cell at Maurice Nagar. Both the witnesses were cross examined at length by the ld counsel for the accused persons.
11. PW4 Neeraj Sharma is the owner of the Tata Tempo 407 No. DL-1LE-4571 who deposed that on 12.10.2010 his driver had informed him about the robbery of the aforesaid tempo by three boys. Report was lodged with the police and FIR was registered. Later on the tempo was recovered and he took the vehicle on superdari .
12. PW5 Rajender Kumar is the complainant.
He lodged the complaint ExPW5/A on 23.7.2011 on SC No. 16/14 State vs Rinku etc (Page 6 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC the basis of which present FIR was registered. He has not supported the case of the prosecution on the point of identification of accused persons. Since, he was resiling from his previous statement, therefore, he was cross examined by ld Additional PP for state.
13. PW6 Constable Surender Kumar is the witness who on 23.7.2011 was posted as computer operator at P.S Alipur . He deposed that on that day he recorded FIR no.251/11 ExPW1/A on computer.
14. PW7 Ct. Vidya Dhar is the formal witness who handed over the rukka and copy of FIR to the IO . He deposed that IO had prepared site plan, pointing out memo at the instance of complainant Rajender Kumar.
15. PW8 Sh Harkishan is the witness from State Transport Authority Rajput Road, GNCT Delhi . He deposed that as per their record Tata tempo bearing no. DL-1LE-4575 is registered in the name of Neeraj Sharma and the computerized copy of the SC No. 16/14 State vs Rinku etc (Page 7 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC detail of the vehicle under the signature and seal of MLO is ExPW8/A
16. PW9 Ct. Mohd Yamin is another formal witness who accompanied the IO ASI Dharamvir Singh during investigation .
17. PW10 HC Jitender Singh is the witness who on 3.7.2011 was posted as duty officer at P.S Timar Pur and he proved the registration of FIR no. 149/2011 u/s 467/468/411/34 IPC at P.S Timar Pur, ExPW10/A.
18. PW11 HC Bedi Ram is the witness who was posted as MHC(M) in P.S Timarpur on 3.7.2011 and with whom case properties were deposited.
19. PW12 ASI Dharambir Singh is the IO of the present case who carried out routine investigation. He deposed that on 23.7.2011, on receipt of DD no.20 A , he alongwith complainant Rajender (PW5) reached at the spot i.e village SC No. 16/14 State vs Rinku etc (Page 8 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC Mukhmeilpur, near Nalah, Alipur, Delhi and he prepared site plan ExPW5/B and recorded supplementary statement of the complainant. Thereafter, he reached office of Special Staff, North District i.e Maurice Nagar and met ASI Ram Roop. He obtained documents of case FIR 149/11 P.S Timarpur and recorded their statements. He further deposed that on 25.7.2011, accused persons were produced before concerned court of P.S Alipur. Accused Sunder Pal(expired), Raju and Rinku( absconding) were arrested vide memo's ExPW9/A-1, ExPW9/A-2 and ExPW9/A-3. He obtained one day PC of all accused persons and thereafter accused persons led them to the spot and pointed out the place of incident. He prepared pointing out memo ExPW9/C. Disclosure statement of the accused persons were recorded . PW12 further deposed that on 26.7.2011, complainant came to PS and identified the accused persons as the same who had committed theft and snatched the tempo from him . After completion of investigation, he filed chargesheet against accused Sunder Pal, Raju and Rinku.
SC No. 16/14 State vs Rinku etc (Page 9 of 29 )
D.O.D 21.7.2014 FIR no. 251/11
P.S Alipur
u/s 328/379/34 IPC
20. PW12 ASI Dharampal further deposed that on 16.7.2012, accused Jalil Ahmad was arrested near old police line vide arrest memo ExPW12/B, his personal search was conducted vide ExPW12/C and his disclosure statement was recorded vide ExPW12/D. Next day accused Jalil led them to the spot and pointing out memo of place of incident ExPW12/E was prepared. Thereafter , he filed the supplementary chargesheet against the accused Jalil Ahmad also.
21. Thereafter, prosecution evidence was closed and statement of accused persons namely Azmat Ali @ Raju and Jalil Ahmad u/s 313 CrPC were recorded by the ld Predecessor of this court. During the statement u/s 313 CrPC, accused persons denied all the allegations made against them. They did not opt to lead evidence in their defence .
22. I have heard the ld Chief Prosecutor and the accused persons. I have also perused the record SC No. 16/14 State vs Rinku etc (Page 10 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC very carefully.
23. As stated herein above proceedings against accused Sunder Pal are already stands abated and accused Rinku is absconding. Now, only accused Ajmat Ali @ Raju and Jalil Ahmad are facing trial. Both the accused persons have been charged for offences u/s 328/379/34 IPC. First of all take the offence u/s 328 IPC. If any person is causing hurt or injury to any person by means of poison is punishable u/s 328 IPC. In the present case although there are allegations that complainant Rajender Kumar (PW5) was administered something mixed in the cold drink but what was that substance, remained unknown to this court. In order to prove the offence u/s 328 of IPC , the prosecution was required to prove that the substance in question was a poison or any stupefying intoxicating drug etc,. In such type of cases direct, reliable and cogent evidence is necessary which is missing in the present case.
24. PW2 HC Jitender and PW3 ASI Ram Roop SC No. 16/14 State vs Rinku etc (Page 11 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC tried to give an impression that complainant Rajender Kumar was administered some poisonous substance by deposing that during the search of accused Sunder pal(expired) from right pocket of his pant two strips of tablets of Larale Pan Ativan 2 mg containing 20 tablets were recovered. All the accused persons claimed that they used to administer these tablets in cold drink to the victim and then they used to do the theft of vehicles. But that is not sufficient to presume that complainant Rajender Kumar was administered something poisonous to hold the accused guilty for the offence u/s 328 IPC. The evidence of identification, as discussed herein below, is suspicious and cannot form basis of conviction of the accused persons. That being so , in the absence of any medical or chemical examination report in this regard, accused persons Jalil Ahmad and Ajmat Ali @ Raju cannot be convicted hence, they stands acquitted for the offence u/s 328/34 IPC.
SC No. 16/14 State vs Rinku etc (Page 12 of 29 )
D.O.D 21.7.2014 FIR no. 251/11
P.S Alipur
u/s 328/379/34 IPC
25. Now take the charges qua offence u/s 379 IPC. This is unique case where investigating agency have brushed aside the provisions of Criminal Procedure Code and they have adopted their own procedure to investigate the matter .
26. It is an admitted case of the prosecution that incident took place on 12.10.2010 but the FIR has been registered on 23.7.2011 i.e about after nine months of the occurrence of incident. Not even a whisper, what to talk about explanation, has been given by the investigating agency as to what prevented them not to register the FIR soon after it was brought to their notice. It has come on record that initially complaint was lodged to P.S Mahindra Park regarding theft of Temp no DL--1LE-4571 which resulted into registration of some DD there but it has not been explained why the said DD was kept pending there and if incident had not taken place within the jurisdiction of P.S Mahindra Park what stopped them to transfer the investigation to P.S Alipur and in case it was transferred to P.S Alipur SC No. 16/14 State vs Rinku etc (Page 13 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC then why an FIR was not registered immediately without wasting time ? This all remained unexplained.
27. This major lacuna in the prosecution case itself is sufficient to demolish the entire case of the prosecution.
28. Here it is needless to mention that when an information of commission of a cognizable offence is given to the SHO then SHO is under obligation first to register an FIR and then investigate the matter. There are catena of judgments in this regard. At this stage, I may refer the judgment of Hon'ble Supreme Court passed in Lalita Kumari vs Govt of UP & ors. reported as IX(2013) SLT 1 wherein the earlier law was reiterated leaving no scope for any doubt in this regard. But it is very painful to this court that the then SHO and the IO did not come forward to the rescue of poor citizen who were the victims of some criminal activities rather they were further victimized in a sense by not responding to their legal and reasonable demands made to them.
SC No. 16/14 State vs Rinku etc (Page 14 of 29 )
D.O.D 21.7.2014 FIR no. 251/11
P.S Alipur
u/s 328/379/34 IPC
29. Generally when information of a
commission of crime is given , after an initial enquriy an FIR is to be registered and then investigation starts . As per section 2(h) CrPC "investigation" includes all the proceedings under this code for collection of evidence conducted by a police officer which may include visiting the spot, collecting of all type of evidence and arrest of the culprit. Meaning thereby, the first step is recording of FIR and then collection of evidence and thereafter arrest of accused but in the present case reverse investigation has been done.
30. The record would show abundantly that in the present case firstly the accused persons have been arrested, thereafter evidence in the form of statement of complainant Rajender and other witnesses have been recorded and in the last FIR has been registered, which is very sorry state of affair on the part of the investigating agency. The manner in which investigation was carried out by the police, SC No. 16/14 State vs Rinku etc (Page 15 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC has forced this court to observe that on 3.7.2011 when the stolen tempo was recovered by the police within the jurisdiction of P.S Timar Pur , as claimed by them, they wake up from their sleep and thereafter immediately an FIR was registered on 23.7.2011 at P.S Alipur and the entire investigation was completed within next 2-3 days pertaining to the incident dated 12.10.2010.
31. Now, let us examine the veracity of the case of the prosecution as put by them through the testimony of their witnesses. As far as the offence u/s 379 IPC is concerned the testimonies of PW2 HC Jitender, PW3 ASI Ram Roop and PW5 Rajinder are relevant. PW1 HC Usha Rani, PW4 Neeraj Sharma, PW6 Ct. Surender Kumar, PW7 Ct Vidya Dhar, PW8 Sh Harkishan, PW9 Ct Mohd Yamin, PW10 HC Jitender Singh and PW11 HC Bedi Ram are just formal witnesses and they are not so much material witnesses to the recovery of the tempo from the possession of the accused persons.
SC No. 16/14 State vs Rinku etc (Page 16 of 29 )
D.O.D 21.7.2014 FIR no. 251/11
P.S Alipur
u/s 328/379/34 IPC
32. PW2 HC Jitender and PW3 ASI Ram Roop were posted with the operation cell. PW3 ASI Ram Roop deposed that on 3.7.2011, he was posted as ASI at operation cell North District, Maurice Nagar. A secret informer came to the office of operation cell at about 4:45 pm and gave information to HC Yogender to the effect that four boys namely Rinku, Jalil Ahmad @ Gadha, Sunder pal and Raju @ Ajmat Ali, who used to steal the vehicles and after tampering engine number and chaises number and colour of the vehicle sells the same, would come at about 6:00 pm with tempo Tata 407 bearing registration no. UP-21N-6710 from the side of Karnal Bypass and would park the said vehicle at Timarpur, bus parking.
33. PW3 further deposed that secret information was recorded vide DD no.8, operation Cell. Raiding party comprising of himself, HC Jitender(PW2) , HC Yogender and Ct.Neeraj was formed. They reached at the spot and at about 6:00pm at the pointing out of secret informer one Tempo Tata 407 which came from the side of Karnal SC No. 16/14 State vs Rinku etc (Page 17 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC bypass towards Wazirabad red light was stopped. He further deposed that at that time there were four occupants in that Tata 407 bearing registration number UP-21N-6710. All of them were apprehended and their names were revealed as Jalil Ahmad @ Gadha, Sunder pal, Rinku and Ajmat Ali @ Raju. Accused Jalil Ahmad failed to produce any registration document of the vehicle.
34. PW3 ASI Ram Roop further deposed that on persistent inquiry, accused Jalil Ahmad confessed his involvement alongwith other three accused persons and claimed that they had stolen the aforesaid tempo from the area of Alipur 8 months ago. Rukka was prepared and FIR no.149/11 was got registered at P.S Timar pur u/s 467/468/411/34 IPC. Accused persons were arrested in the said FIR. PW3 further deposed that during the search of accused Sunder pal(expired), from right pocket of his pant two strips of tablets of Larale Pan Ativan 2 mg containing 20 tablets were recovered. All the accused persons claimed that they used to administer these tablets in SC No. 16/14 State vs Rinku etc (Page 18 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC cold drink to the victim and then they used to do the theft of vehicles. Thereafter, after doing necessary proceedings duty officer P.S Alipur was informed about the arrest and disclosure statements of the accused persons.
35. PW2 has deposed on the lines of PW3 regarding receipt of secret information, constitution of raiding party, approaching to the spot and apprehension of accused persons alongwith stolen tempo. But if the testimonies of these witnesses are put to close scrutiny then there would be no difficulty in saying that their version does not inspire confidence of this court.
36. The manner in which stereo type deposition has been given without any corroboration or support from any other independent witness is sufficient to disbelieve their version. PW2 HC Jiender Kumar during his cross examination replied that he alongwith ASI Ram Roop, HC Yogender and Constable Neeraj approached to the spot in a private vehicle SC No. 16/14 State vs Rinku etc (Page 19 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC and that was a maruti 800 car which was being driven by HC Yogender and ASI Ram Roop was sitting on the front side with the driver HC Yogender and HC Neeraj were sitting on the rear seat whereas PW3 ASI Ram Roop replied that he had gone to the spot on his private personal bike and other three officials and informer were siting in a private car whose registration number he does not remember.
37. During the cross examination of PW2, it has come on record that all the police officials were in civil dress on that day . PW2 further replied that he had signaled the vehicle to stop whereas ASI Ram Roop (PW3) replied that he had signaled the tempo to stop. One may argue that aforesaid contradictions are minor and same may be true to argue so but in the background of the entire procedural aspect as adopted by the police and without independent corroboration, even the aforesaid contradictions would come in the way of prosecution in bringing the guilt home against the accused persons.
SC No. 16/14 State vs Rinku etc (Page 20 of 29 )
D.O.D 21.7.2014 FIR no. 251/11
P.S Alipur
u/s 328/379/34 IPC
38. If all the police officials had visited the spot in Maruti car there was no occasion for one of the team member who was heading the team to say that he had gone there by private bike and he had signaled the vehicle to stop which is contrary to the version given by HC Jitender PW2.
39. Further, it has come on record that public witnesses were easily available and the aforesaid area where the vehicle was allegedly recovered, is frequently used by the public persons and other traffic. There was, thus, ample opportunity for the investigating agency to join independent witnesses, but they did not made any endeavour to associate some persons who could witness recovery. The police officers were well aware in advance as per their version about presence of accused persons alongwith stolen tempo therefore, it was incumbent upon them to call some witnesses before reaching the spot . No cogent explanation has been given for non joining of public witnesses. The routine explanation that they refused to join the proceedings SC No. 16/14 State vs Rinku etc (Page 21 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC would not suffice in the present case.
40. In the present case prosecution tried to bring home guilt of the accused persons by relying upon the versions of PW2 and PW3 regarding recovery of stolen tempo from their possession. Although, all these witnesses testified on the lines of the prosecution story but a bare perusal of their version clearly reflects the same to be of stereo type thus it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that :
" Prosecution case resting solely on the testimony of Head Constable and three other police constables. No independent witness examined. Prosecution story appearing improbable and unnatural held that the prosecution case cannot be said to be free from reasonable doubt and the accused is liable to be acquitted".
41. Further versions of aforesaid witnesses remained uncorroborated by an other independent witness to the recovery of Tempo from the SC No. 16/14 State vs Rinku etc (Page 22 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC possession of the accused persons. Moreover, neither any independent public witness to the recovery has been cited by the prosecution nor examined by the prosecution. The non -joining of the pubic witness creates doubt on the story of prosecution as held in -PAWANT KUMAR VS DELHI ADMINISTRATION 1987 CC Cases 585 HC by Hon'ble High Court of Delhi.
42. Further , the excuse of PW3 that he has asked public persons to join investigation but none agreed is no ground for non joining of independent witness to the recovery as held in 1990 CCC ROOP CHAND vs STATE OF HARYANA by Hon'ble Punjab and Haryana High Court.
" That when some witness from public were available then the explanation furnished by the prosecution that they refused to join the investigation is wholly unsatisfactory, particularly when IO did not note down their names and addresses and did not take any action against them".
43. Now, take the testimony of PW 5 Rajender SC No. 16/14 State vs Rinku etc (Page 23 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC Kumar, who is the complainant and victim of the incident. He deposed that on 12.10.2010, he was working as a driver on tempo no. Dl-1LE-4571 and Neeraj Sharma was the owner of the tempo. On 12.10.2010 he had taken the tempo to his house Biyapur. Raj sharma father of Neeraj Sharma had called him and asked him to come to Delhi. He further deposed that he was coming to Delhi and When he cross Singhu border, three boys met him and asked him if his tempo was vacant as they wanted the tempo on hire to shift the household articles from Mukmelpur village to Narela. The fair was settled at 1200/- and all those boys alongwith him in his tempo came to Mukhmailpur village.
44. PW5 further deposed that when they crossed nalah of Mukhmailpur village, they had got his vehicle stopped near the village. There was no residential house around that place. One of the boy stayed with him and two boys entered one house. At about 2:00pm, from the house one boy returned with a bottle of pepsi and a glass. The glass was filled with SC No. 16/14 State vs Rinku etc (Page 24 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC Pepsi and it was offered to Rajender which he happily accepted. He further deposed that the cold drink was drunk by the three boys from the bottle. After taking the drink, he felt drowsy and became unconscious. He regained consciousness on 14.10.2010 at about 6:00 pm and found himself lying on the road which was going from Burari to Nirankari colony. He further deposed that those three boys had looted his Tata 407 after making him to drink intoxicated pepsi. Then he informed the matter to his employer i.e owner of the tempo. On 23.7.2011, he was taken to PS by Raj Sarma and Neeraj Sharma and their report of theft of Tata 407 was lodged. His statement ExPW5/A was recorded. Site plan ExPW5/B was prepared at his instance.
45. PW5 Rajender was resiling from his previous statement and he was cross examined by the ld APP for the state. During his cross examination by state he admitted that his statement was recorded by the IO on 26.7.2011 and he identified the three accused persons namely Sunder Pal, Rinku and SC No. 16/14 State vs Rinku etc (Page 25 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC Raju before the IO as the persons who had given him some intoxicating substance and had stolen his Tata 407.
46. If we read the testimony of PW5 in its entirety then it is to be seen whether this witness is reliable or not. In my considered opinion at least he is not wholly reliable as he kept on changing his version regarding identity of accused persons. During his examination in chief he deposed on the lines of story of prosecution but on the point of identification, he replied that he can not identify those three boys who had robbed his Tata 407 and made him to drink intoxicated as the incident ocured in the year of 2010 and due to the lapse of time he is unable to identify those boys.
47. PW5 further deposed that he had seen them only once at the time of incident. The attention of this witness was drawn towards the accused zalil Ahmad and accused Azmat @Raju and after seeing them he stated that these are not the boys who has SC No. 16/14 State vs Rinku etc (Page 26 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC looted his Tata 407. During his cross examination by ld APP for state he admitted that accused Sunder Pal(deceased) and Rinku( absconding) and Azmat@ Raju were confined in a lockup and he had identified the aforesaid three accused before the IO. Both accused persons i.e Sunder Pal(deceased) and Rinku(Absconding) are not before this court.
48. As far as Ajmat @ Raju is concerned it has come on record during his testimony recorded on 24.10.2013 that he has identified accused Raju as accused Rinkoo and there is observation of the court that 'wrong identification'. During his cross examination by ld APP for state, the witness was again asked to identify the accused and there was some confusion and prosecution tried to get identified accused Raju by this witness.
49. There are two three reasons not to believe the testimony of PW5 regarding the identification of accused Ajmat @ Raju and Zalil Ahmad. Firstly he kept on changing his version and he himself was not SC No. 16/14 State vs Rinku etc (Page 27 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC sure as to which one of the accused was involved in the commission of crime. Secondly, when he says that due to the lapse of time he cannot identify the accused person then how he could identify accused persons in the police station on 26.7.2011 in the background of the fact that incident took place on 12.10.2010. Thirdly, it has not been explained that when PW5 Rajender who is the victim was in a position to identify the accused persons, why the TIP proceedings were not conducted for identification of the accused persons.
50. The identification of the accused person in the police station after 9-10 months of the incident has become doubtful when before the court during examination in chief, witness fails to identify the accused person and there was wrong identification of the accused Raju @ Ajmal. This all gives benefit of doubt to the accused persons.
51. In the light of aforesaid discussion, Court is of the view that prosecution has failed to prove the SC No. 16/14 State vs Rinku etc (Page 28 of 29 ) D.O.D 21.7.2014 FIR no. 251/11 P.S Alipur u/s 328/379/34 IPC case for the offence u/s 328/379/34 IPC IPC. Accordingly, accused Jalil Ahmad and Raju @ Ajmat Ali stands acquitted for offences u/s 328/379/34 IPC Their sureties stands discharged.
52. Accused persons are directed to furnish the bail bond in terms of section 437 A CrPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 21.7.2014 ASJ-5, North Rohini Court SC No. 16/14 State vs Rinku etc (Page 29 of 29 )