Delhi District Court
State vs . Alimuddin @ Alim & Others on 26 July, 2013
IN THE COURT OF SH. JITENDRA SINGH: METROPOLITAN MAGISTRATE
(NORTH-EAST-04)KARKARDOOMA COURTS: DELHI
FIR No. 168/2001
PS: Gokal Puri
U/s. 411 IPC
Dated: 26.07.2013
Case ID: 02402R0042642001
STATE VS. ALIMUDDIN @ ALIM & OTHERS
Date of Institution : 25.07.2002
Date of Commission of offence : 30.04.2001 to 04.07.2001
Name of the Complainant : Sh. Ram Narayan Sharma S/o Sh.
Laxmi Narayan Sharma
Name parentage and address :
of the accused persons (1) Alimuddin @ Alijm S/o Sh.
Abdul Hamid, R/o; B-469, B-13, J-
Block, New Seelampur, Delhi.
(2) Shakeel @ Javed S/o Sh.
Mohd. Hussan, R/o; F-1608, K-
Block, New Seelampur, Delhi.
(Discharged vide order dated
07.01.2003.)
(3) Shamim S/o Sh. Abdul Hakim,
R/o; 452, Gali No. 3, Nehru Vihar,
Mustafabad, Delhi. (Discharged
vide order dated 07.01.2013.)
Offence Complained of : U/s. 411 of IPC
Plea of the accused : Pleaded not guilty.
Final Order : Acquitted.
Date for reserve for order : 26.07.2013
Date of announcing of order : 26.07.2013
JUDGEMENT
FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 1/13 BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 168/2001, PS Gokal Puri. The case of the prosecution as per the complaint of the Complainant is that in between 30.04.2011 to 04.07.2001, accused had dishonestly received or retained the stolen property i.e. some jewelery articles, which had been stolen on 30.04.2001 from H.No. 501, Gali No. 18, Moonga Nagar, Delhi, knowing or having reason to believe the same to be stolen property which was recovered at the instance of accused from his residential house i.e. H.No. D-469/E-13, J-Block, Seelampur, Delhi. Thus accused committed offences punishable U/s. 411 of IPC. The accused pleaded not guilty and claimed trial.
2. On conclusion of the investigation, a charge sheet was filed against accused U/s. 380/411/34 IPC. During the arguments on charge accused persons namely Shakil and Shamim have discharged by my Ld. Predecessor vide order dated 07.01.2003. Thereafter,a charge Under Section 411 of IPC was framed against accused Alimuddin @ Alam on 07.01.2003, to which he pleaded not guilty and claimed trial.
3. The prosecution has examined seven witnesses in all in the present case.
The deposition of witnesses is touched upon in brief as under to have a better appreciation of the case, which are follows:
PW-1 is Ct. Omvir, who stated on oath that on 30.04.2001, he was posted in the PS Gokalpuri as Ct. On 30.04.2001, on receipt of DD No. 25-A, he alongwith HC Arvind reached at Gali No. 8, Moonga Nagar, H.No. 501, where the complainant Ram Naryan met them and they saw articles of his house were lying scattered, who stated that he will produce the list of stolen articles later on and they came back to the Police Station. The said witness was not cross examined by the Ld. Counsel for the defence.
PW-2 is HC Vijender Singh, who proved the FIR in the instant case, which FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 2/13 is Ex. PW2/A. The said witness was not cross examined by the Ld. Counsel for the defence.
PW-3 is Sh. Ram Narayan Sharma, who stated on oath that about three years back, he did not remember the date and month, he have gone to Ghaziabad with his children after locking the house. In the morning at about 4.00 PM, his brother informed him about theft at his house. PW-3 deposed that he returned and lodged the complaint. His statement is Ex. PW3/A. PW-3 further deposed that the stolen articles were found to be ring, silver shutia, silver pajeb, cash of Rs. 10,000/-, one black & white portable TV. PW-3 further deposed that he had submitted list to the police regarding the stolen articles. (Chief in chief is not complete of the complainant).
The said witness was not cross examined by the Ld. Counsel for the defence.
PW-4 is HC Mahavir, who stated on oath that on 04.07.2001, he was posted with PS Gokalpuri as Ct. On that day, he alognwith ASI Chetan Swaroop joined the investigation of the present case and recorded the disclosure statement of accused Alimuddin. PW-4 deposed that subsequent to the disclosure statement of accused, he alongwith accused went to his house situated at J-Block, Seelampur, Delhi and at the pointing out of accused, one golden Om and 12 other articles of silver i.e. two silver rings, two silver chains, two paris chutki and one pair pajeb of silver, one pair silver samples etc., which were kept in a polythene of mehroom colour, wrapped in a news papers. PW-4 further deposed that the case property was kept in a pullinda and sealed with the seal of CS. The articles taken into the police possession were seized vide seizure memo Mark A. PW-4 further deposed that thereafter, they came back to the PS and the accused was put behind the lock up. PW-4 further deposed that photocopy of the disclosure statement of the accused and the seizure memo are Ex. PW4/A and PW4/B, respectively. The original of the same are in the case FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 3/13 FIR no. 254/01, Under Section 456/380/411/34 IPC, PS Gokalpuri. The said witness was cross examined on behalf of the defence. PW-5 is Ct. Yashbir, who stated on oath that on 06.07.2001, he was posted at PS Gokalpuri as Ct. On that day, he joined the investigation of the present case with HC Arvind. Accused Alimuddin and accused Salim were interrogated by the IO at the PS and IO recorded their disclosure statement vide Ex. PW5/A and PW5/B. PW-5 deposed that later on the accused persons were arrested in the present case vide arrest memo Ex. PW5/C and PW5/D. The said witness was cross examined on behalf of the defence. PW-6 is ASI Arvind Kumar, who stated on oath that on 30.04.2001, he was posted at PS Gokalpuri as Head Constable. On that day, after receiving DD No. 25-A, he alongwith Ct. Ombir went to House No. 501, Gali No. 8, Moonga Nagar, where they met the owner of the house Ram Narayan and saw that the all the house hold articles were scattered the house. Thereafter, he recorded the statement of complainant, which is Ex. PW3/A. PW-6 deposed that he prepared the tehrir, Ex. PW6/A and he send the rukka, Ex. PW6/B and handed over the same to Ct. Ombir for the registration of FIR. PW-6 further deposed that Ct. Ombir went to PS Gokalpuri and got the FIR registered, he came back with the copy of FIR and original rukka to the spot and handed over the same him. PW-6 further deposed that thereafter he prepared the site plan at the instance of the Complainant, which is Ex. PW6/C. PW-6 further deposed that on 03.05.2001, Complainant Ram Narayan gave him a list of stolen articles and he recorded his statement in this respect, the list consisted of one B/W television Videocon with remote, three told chains, two nose rings (Nath), one Tikka, one necklace, two pair of ear rings, six pairs of anklets (pajeb), one silver Murti of Laxmi-Ganesh, one Mangal Sutra, one pendal, 36 silver coins, 2 kg. silver, cash of Rs. 2,10,000/-. PW-6 further deposed that on 04.07.2001, ASI Chetan arrested the accused Alimuddin and Shakil in relation to case FIR No. 254/2001, PS Gokalpuri and the FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 4/13 accused Alimuddin made a disclosure before ASI Chetan with respect to the present case and got recovered some articles in respect of this case which was stolen from the above mentioned house on 30.04.2001 and ASI Chetan gave him information in this regard. PW-6 further deposed that on 06.07.2001, he arrested both the accused persons namely Alimuddin and Shakil vide arrest memo Ex. PW5/D and Ex. PW5/E. PW-6 further deposed that on the same day, both Shakil and Alimuddin made disclosure statement, in which they accepted having committed theft in the above mentioned house alongwith other accused Shamim. PW-6 further deposed that he did not seize the case property in the present case as all the recovered articles and jewellery was seized by ASI Chetan Swaroop in the case FIR No. 254/2001 and the copy of the seizure memo of FIR No. 254/2001 has been attached in this file, which is Ex. PW4/B, in which the item no. 11 & 12 pertains to the present case, which had been seized and sealed in his presence by ASI Chetan Swaroop.
The said witness was cross examined by the Ld. Counsel for the defence. PW-7 is HC Vijay, who stated on oath that on 14.08.2001, he was posted at PS Gokalpuri as Constable and on that day he joined investigation of the present case with SI Rohtash Kumar and went to Karkardooma Courts. In the Karkardooma Courts, SI Rohtash Kumar moved an application for formal arrest of the accused Shamim. PW-7 deposed that accused Shaim was arrested in the present case vide arrest memo Ex. PW7/A. He was interrogated and made a disclosure statement Ex. PW7/B. After that, IO filed an application for one day police custody of the accused and the order of one day police custody was passed by Ld. MM. PW-7 further deposed that the accused was taken to GTB Hospital from the court, where his medical examination was got conducted. After that, they alongwith accused went to the area of Seelampur in search of stolen articles, but nothing was recovered and after that accused was brought to Police Station and was sent to lockup.
The said witness was not cross examined by the Ld. Counsel for the FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 5/13 Defence.
4. Thereafter, PE was closed. Statement U/s. 313 Cr.PC of the accused was recorded, wherein he stated that he does not want to lead his defence evidence. Accordingly, DE stands closed. Final arguments have been heard from both the sides and record has been meticulously perused.
5. I have weighed the rival submissions made on behalf of the State as well as on behalf of the defence in the light of the testimonies & material appearing on record.
6. Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused.
7. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
8. To prove the offences U/s. 411 of IPC, the prosecution is required to prove the following:-
(i) that the property in question is stolen property.
(ii) that the accused received or retained such property.
(iii) that he did so dishonestly.
(iv) that he knew or had reason to believe that the property was stolen property.
9. I have heard the contention of Ld. APP for State as well as Ld. Defence counsel and given my thoughtful consideration. To prove the present offence, the Prosecution has examined seven witnesses in all. To Prove FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 6/13 the ingredients of offences, the Prosecution was required to prove that the stolen property has been recovered from the possession of the accused . In the aforesaid factual & legal background, I shall now step forward to adjudicate as to whether the prosecution has succeeded in proving its case against the accused or not.
10. The prosecution had examined the complainant PW-3, Sh. Ram Narayan Sharma, who stated on oath that about three years back, he did not remember the date and month, he have gone to Ghaziabad with his children after locking the house. In the morning at about 4.00 PM, his brother informed him about theft at his house. PW-3 deposed that he returned and lodged the complaint. His statement is Ex. PW3/A. PW-3 further deposed that the stolen articles were found to be ring, silver shutia, silver pajeb, cash of Rs. 10,000/-, one black & white portable TV. PW-3 further deposed that he had submitted list to the police regarding the stolen articles. The examination of chief was not complete, incomplete testimony of the witnesses cannot be read in evidence. I am enlightened by the judgment of Hon'ble Delhi High Court in case titled as "Ripen Kumar Vs. Department of Customs" cited as 2001 Cr.L.J. 1288. The relevant extract of the same is reproduced below for easy reference:-
"9. ...... This observation of the Learned ASJ is contrary to the well understood expression of the word "evidence". The words "all statements"
include the examination-in-chief as well as cross examination and subject to the permission re-examination also. It is only when the witness is permitted to be cross examined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross examined fully. Only thereafter the evidence given by a witness in judicial proceedings is relevant for the purpose of proving a particular fact...". The incomplete evidence of the complainant is fetal to the case of the prosecution as it can never be established that the property which was allegedly recovered from the accused was stolen. Further no identification of the case property was done during investigation or the trial.
FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 7/13
11. PW-6 was the ASI Arvind Kumar, who stated on oath that on 30.04.2001, he posted at PS Gokalpuri as Head Constable. On that day, after receiving DD No. 25-A, he alongwith Ct. Ombir went to House No. 501, Gali No. 8, Moonga Nagar, where they met the owner of the house Ram Narayan and saw that the all the house hold articles were scattered all over the house. Thereafter, he recorded the statement of complainant, which is Ex. PW3/A. PW-6 deposed that he prepared the tehrir, Ex. PW6/A and he send the rukka, Ex. PW6/B and handed over the same to Ct. Ombir for the registration of FIR. PW-6 further deposed that Ct. Ombir went to PS Gokalpuri and got the FIR registered, he came back with the copy of FIR and original rukka to the spot and handed over the same him. PW-6 further deposed that thereafter he prepared the site plan at the instance of the Complainant, which is Ex. PW6/C. PW-6 further deposed that on 03.05.2001, Complainant Ram Narayan gave him a list of stolen articles and he recorded his statement in this respect, the list consisted of one B/W television Videocon with remote, three told chains, two nose rings (Nath), one Tikka, one necklace, two pair of ear rings, six pairs of anklets (pajeb), one silver Murti of Laxmi-Ganesh, one Mangal Sutra, one pendal, 36 silver coins, 2 kg. silver, cash of Rs. 2,10,000/-. PW-6 further deposed that on 04.07.2001, ASI Chetan arrested the accused Alimuddin and Shakil in relation to case FIR No. 254/2001, PS Gokalpuri and the accused Alimuddin made a disclosure before ASI Chetan with respect to the present case and got recovered some articles in respect of this case which was stolen from the above mentioned house on 30.04.2001 and ASI Chetan gave him information in this regard. PW-6 further deposed that on 06.07.2001, he arrested both the accused persons namely Alimuddin and Shakil vide arrest memo Ex. PW5/D and Ex. PW5/E. PW-6 further deposed that on the same day, both Shakil and Alimuddin made disclosure statement, in which they accepted having committed theft in the above mentioned house alongwith other accused Shamim. PW-6 further deposed that he did not seize the case property in the present case as the whole FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 8/13 the recovered articles and jewellery had been seized by ASI Chetan Swaroop in the case FIR No. 254/2001 and the copy of the seizure memo of FIR No. 254/2001 has been attached in this file, which is Ex. PW4/B, in which the item no. 11 & 12 pertains to the present case, which had been seized and sealed in his presence by ASI Chetan Swaroop.
12. The remaining recovery witness examined by prosecution was PW-4 HC Mahavir, who testimony is akin to that of PW-6 SI Arvind Kumar and thus need not to be reiterated.
13. From the aforesaid testimonies, I am of the view that the prosecution has failed in proving the connection between the recovery of the stolen case properties in the instant matter and the complicity of the accused therein.
14. It is clear from the testimony of PW-6 ASI Arvind Kumar that on 30.04.2001, after receiving DD No. 250A be alongwith Ct. Ombir went to the spot. Thereafter, PW-6 recorded the statement of the complainant and prepared the tehrir and sent the rukka to PS for registration of FIR and recovered the stolen case properties from the possession of the accused . Be that as it may, now if the said police officials were not present within the P.S. at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival in the D.D. Register. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 9/13
15. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of the said PW-4, PW-5, PW-6 and PW-7. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of said police officials at or near the place of the recovery. It is also worth mentioning that as per the case of the prosecution that police officials who apprehended the accused persons were posted at PS Gokalpuri at the time of incident. However, no DD entry in support of this fact has been placed on record which the said police officials had left the PS before the recovery and by which they had arrived at PS after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused persons and the recovery of the stolen case properties, since the said police officials were under bounden duty to enter their departure & arrival entries in that respect as per the aforesaid mentioned P.P. Rule. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
16. Furthermore, though it appears from the testimony of PW-4 & PW-6 that the recovery in question was effected from a crowded place, and public presence throughout but despite that PW4 & PW-6 made no efforts whatsoever to join public witnesses to the recovery proceedings allegedly FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 10/13 conducted by them. PW-4 have categorically admitted in his cross examination that he they asked 2/3 passer by to join the raiding party after disclosing the fact to them, but nobody join it and left the spot without disclosing their names and address. From the aforementioned circumstances, it is clear that the place of alleged recovery was a public place and despite that PW-4 and PW-6 did not made any sincere effort whatsoever to join the public witnesses to the recovery proceedings headed by them, which if would have done might have added strength to the tainted recovery proceedings.
17. In circumstances like the present one, the PW-4 and PW-6 should have made an effort to join public witnesses during the recovery proceedings and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of the recovery or after the recovery, when the accused persons were already apprehended, since after the apprehension of the accused, there was no possibility of accused persons escaping their arrest or their crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the recovery by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 11/13 open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non- joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
18. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 12/13 all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
"6. In the present case, the State examined two witnesses namely, Nirmal Kumar Jha SI who appeared as PW8 and HC Sukhpal Singh, PW-9. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
19. The aforementioned contradictions, omissions and lacunas clearly shows that the prosecution has been unable to prove the recovery alleged against the accused beyond reasonable doubt, whereby the accused has become entitled to the benefit of doubt. Accordingly, I accord the benefit of doubt to the accused, whereby the accused is acquitted of the charges levelled against him.
Announced in the open court today itself i.e. 26.07.2013.
(JITENDRA SINGH) METROPLITAN MAZISTRATE KARKARDOOMA COURTS, DELHI,26.07.2013 FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 13/13 FIRNo.168/01, PS Gokal Puri, State Vs. Alimuddin & others 14/13