Delhi District Court
Criminal Case/187/2010 on 15 September, 2012
IN THE COURT OF METROPOLITAN MAGISTRATE-12,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Shafiulla @ Rahul
FIR No. 187/2010
Police Station : Chhawla
Under Section : 379/411 I.P.C.
Unique Case ID Number: 02405R0136282012
Date of institution : 09.02.2012
Date of reserving : 15.09.2012
Date of pronouncement : 15.09.2012
JUDGMENT
a) Serial number of the case 39/01
b) Date of commission of offence 12.12.2011
c) Name of the complainant Sh. Dharamvir
d) Name, parentage and address Shafiulla S/o Sh. Rafiulla
of the accused R/o Village Gagrai, District
Mahrajganj, Gorakhpur, U.P.
e) Offence complained of 379/411 IPC
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
State v. Shafiulla @ Rahul
FIR No. 187/2010 P.S.: Chhawla Page 1 of 21
h) Date of final order 15.09.2012
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Vide this judgment the accused is being acquitted of the offence punishable under Section 411 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in this case FIR No. 187/2010 Police Station Chhawla by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 12.12.2011 at about 07.00 p.m. at parking of MTNL Exchange, Dabri, Delhi the accused was found in possession of one motorcycle bearing No. DL 3SBT-0651 make Bajaj Discover, theft of which took place on 25.10.2010/26.10.2010 from in front of B-55, B-Block, Qutub Vihar Phase-I, New Delhi, within the jurisdiction of police station Chhawla, from the possession of the complainant Sh. Dharamvir which the accused retained in his possession knowing or having reason to believe the same to be stolen property.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was filed and the accused was consequently summoned.
4. The case was received by way of transfer by this Court on State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 2 of 21 19.03.2012.
CHARGE
5. Vide order dated 23.04.2012, charge for the offence punishable under Section 411 I.P.C. was framed against the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
6. Vide order dated 26.06.2012, in compliance with the provisions of Section 294 Cr.P.C., the accused was called upon to admit or deny the genuineness of the FIR No. 187/2010 police station Chhawla, which was admitted by the accused and was accordingly exhibited as Ex. P/A/1. In view of the admission made, the evidence of duty officer Assistant Sub-Inspector Babu Lal was dispensed with.
EVIDENCE OF THE PROSECUTION
7. The prosecution in all examined seven witnesses.
8. PW-1 Constable Rajesh Kumar is one of the recovery witnesses. He deposed that on 12.12.2011 at about 03.30 p.m. Head Constable Vijay Singh received a secret information regarding auto lifter. He stated that Head Constable Vijay Singh prepared a raiding party consisting of himself (PW-1), Head Constable Vinod, Head Constable Manoj, Head Constable Krishan and Constable Hawa Singh. He stated that thereafter they reached at Vijay Enclave Bus Stand, where investigating officer requested 4/5 passersby to join the investigation but all refused the same and left the spot without State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 3 of 21 disclosing their names and addresses. He deposed that at about 05.00 p.m. they reached at Chhatt Puja Park near Dada Dev hospital, Dabri and at the pointing out of secret informer they apprehended one person who was sitting on the motorcycle at the stand. He stated that name of that person was revealed as Shafiulla @ Rahul. He correctly identified the accused in court. He deposed that investigating officer found that the recovered motorcycle bearing No. DL9SV-2904 had been stolen from the jurisdiction of police station Sagarpur. He stated that the investigating officer prepared kalandara under Section 41.1(d) Cr.P.C. Ex. PW-1/A, arrested the accused vide memo Ex. PW-1/B, seized the aforesaid motorcycle vide memo Ex. PW-1/C, seized key of the aforesaid motorcycle vide memo Ex. PW-1/C1 and recorded the disclosure statement of the accused Ex. PW-1/D. He deposed that the accused disclosed that he had stolen another motorcycle from Qutub Vihar, Goyla Dairy, Phase-I about one year ago and at the instance of the accused two motorcycles of make Bajaj Pulsar and Bajaj Discover were recovered from the parking of the MTNL Exchange, Dabri. He stated that both the aforesaid motorcycles were seized vide memo Ex. PW-1/E and thereafter they came to the police station Dabri and deposited the case property. He identified the motorcycle Ex. P-1.
9. PW-2 Head Constable Jai Singh is the MHC(M) police station Dabri. He stated that on 12.12.2011 Head Constable Vijay Singh brought two motorcycles of make Bajaj Pulsar and Bajaj Discover and deposited the same in the malkhana police station Dabri. He stated that the chasis number of the motorcycle Bajaj Discover was 68639 and its engine number was 16072 and the same belonged to the State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 4 of 21 present case. He stated that the said motorcycle was handed over to Head Constable Bhoj Raj vide RC No. 122/21/12. He proved copy of register No. 19 Ex. PW-2/A and copy of RC Ex. PW-2/B.
10. PW-3 Head Constable Bharat Lal is the MHC(M) police station Chhawla. He stated that on 04.01.2012 Head Constable Bhoj Raj brought one motorcycle of make Bajaj Discover without number plate vide RC No. 122/21/12 from police station Dabri and deposited the same in the malkhana police station Chhawla. He stated that he made entry in that regard at serial No. 511 in register No. 19 which is Ex. PW-3/A.
11. PW-4 Head Constable Vijay Singh is also one of the recovery witnesses and member of the raiding party. He deposed on the lines of PW-1.
12. PW-5 Sh. Dharamvir is the complainant. He stated that on 25.10.2010 at about 11.00 p.m. he parked his motorcycle bearing No. DL 3SBT-0651 make Bajaj Discover in front of his house, however, at about 07.00 a.m. on 26.10.2010 he found the same missing. He stated that he made a call on 100 number and the investigating officer reached the spot. He stated that on 09.11.2010 he made a complaint to the investigating officer Ex. PW-5/A. He stated that investigating officer prepared site plan Ex. PW-5/B at his instance. He stated that he obtained claim from the insurance company in respect of the aforesaid motorcycle. He identified the case property i.e. motorcycle Ex. P-1.
State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 5 of 21
13. PW-6 Head Constable Bhoj Raj is the second investigating officer. He stated that on 09.11.2010 investigation of the case was marked to him and on that day he prepared site plan Ex. PW-5/B at the instance of the complainant. He stated that since neither the case property nor the accused could be found, he submitted untraced report. He stated that on 13.12.2011 he received DD No. 27 B Mark X1 regarding recovery of the motorcycle of the present case. He stated that on the same day he interrogated and arrested the accused vide memo Ex. PW-6/A after obtaining permission from the Court. He stated that he recorded the disclosure statement of the accused Ex. PW-6/B. He identified the accused in the Court. He stated that on 29.12.2011 he recorded the statements of Head Constable Vijay and Constable Rajesh. He further stated that on 04.01.2012 he received case property i.e. motorcycle and key of the present case vide RC No. 122/21/12 and deposited the same in the malkhana police station Chhawla. He stated that thereafter he prepared the challan.
14. PW-7 Sub-Inspector Arvind Kumar is the first investigating officer. He stated that on 09.11.2010 the complainant came to the police station to lodge complaint regarding theft of his motorcycle bearing No. DL 3SBT-0651. He stated that on 26.10.2010 he received DD No. 9A regarding theft of the aforesaid motorcycle and he alongwith police staff went to the house of the complainant who was not found there and accordingly the aforesaid DD entry was kept pending. He stated that on 09.11.2010 he recorded the statement of the complainant Ex. PW-5/A and prepared rukka Ex. PW-7/A on the basis of which FIR No. 187/10 was registered.
State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 6 of 21 STATEMENT / DEFENCE OF THE ACCUSED
15. In his statement recorded under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He stated that he had been falsely implicated in the present case. The accused did not lead any evidence.
ANALYSIS AND FINDINGS
16. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Pramod Kumar, Advocate, learned legal aid counsel for the accused have been considered.
17. In order to bring home the guilt of the accused in respect of the offence under Section 411 I.P.C. of which the accused is charged, the prosecution was required to prove the following:
i) that the motorcycle bearing No. DL3SBT-0651 make Bajaj Discover is stolen property;
ii) that the accused had dishonestly received or retained the aforesaid motorcycle; and
iii) that the accused knew or had reason to believe the said motorcycle to be stolen property.
i) Re: Whether motorcycle bearing No. DL3SBT-0651 is stolen property?
18. "Stolen property" has been defined under Section 410 I.P.C. as under :
"Property, the possession whereof has been State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 7 of 21
transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
19. In the instant case, it has been alleged that the motorcycle bearing No. DL3SBT-0651 was stolen from the possession of the complainant Sh. Dharamvir from in front of B-55, B-Block, Qutub Vihar, Phase-I, New Delhi between 11.00 p.m. on 25.10.2010 and 07.00 a.m. on 26.10.2010. In order to prove the said alleged fact of theft as aforesaid, the prosecution had cited and examined the complainant Sh. Dharamvir as a witness. However, the testimony of complainant PW-5 does not inspire confidence. As per the complainant, he had parked his motorcycle in front of his house at about 11.00 p.m. on 25.10.2010 and found it missing on 26.10.2010 at about 07.00 a.m. He stated that he had made a call on 100 number and the investigating officer had visited the spot. However, the first written complaint/statement of the complainant i.e. Ex. PW-5/A was recorded and FIR registered only on 09.11.2010 i.e. after a gap of about 14 days. The explanation furnished by the complainant for not having made a written complaint earlier is that when the investigating officer had visited his house/spot on 26.10.2010 he did not meet the investigating officer as he had gone out in search of the motorcycle. However, though he admitted in his cross-examination that he was in State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 8 of 21 Delhi itself between 26.10.2010 and 09.11.2010, he failed to state as to why he did not care to make a complaint in writing and get an FIR registered prior to 09.11.2010. Although in his cross-examination the complainant asserted that he had given a written complaint to Sub-Inspector Arvind on one of the occasions on which he had visited the complainant's house prior to 09.11.2010, however, he failed to state the date on which he had allegedly made such complaint and to furnish a receipt in respect of the same. Further, there is no such written complaint of any date prior to 09.11.2010 on record.
20. While as per PW-5 (complainant), he had shown to the investigating officer the place where the motorcycle had been parked by him and the investigating officer prepared site plan Ex. PW-5/B, perusal of the site plan reveals that the same does not bear the signatures of the complainant. Though PW-6 Head Constable Bhoj Raj admitted the absence of the complainant's signatures on the site plan Ex. PW-5/B, he did not offer any explanation for such absence. The site plan has, therefore, not been sufficiently proved.
21. In view of the aforesaid, the prosecution has not proved beyond reasonable doubt the allegations regarding theft of the motorcycle of the complainant.
22. Further, there is lack of proper identification of the stolen property. Admittedly, no test identification parade in respect of the motorcycle allegedly recovered at the instance of the accused was conducted. Further, in his entire testimony, PW-4, one of the two recovery witnesses who have been examined by the prosection, did State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 9 of 21 not mention any particulars of the case property including its registration number, colour, make, model, chasis number, engine number etc. The other recovery witness, i.e. PW-1, merely stated, "Thereafter, at the instance of the accused two motorcycles make Bajaj Pulsar and Bajaj Discover were recovered from parking of MTNL Exchange, Dabri. Out of them one motorcycle was belongs to present case". PW-1 did not specify as to which of the aforesaid two motorcycles belonged to the present case. He did not further specify any other particulars including registration number, colour, engine number and chasis number etc. of the motorcycle of the present case which was allegedly recovered at the instance of the accused.
23. As per PW-1, at the time of recovery, both the motorcycles, including that of the present case, recovered at the instance of the accused did not have number plates. However, PW-4, another recovery witness, did not specify any such fact. While as per PW-1 the motorcycle in question did not bear any number plate at the time of recovery, during the testimony of PW-5 (complainant) it has been recorded, "At this stage, MHCM produced case property i.e. Motorcycle. Same is parked in the court complex. Witness correctly identified the case property, which bears the number plate however the without any number thereon. Same is already Ex. P1". Thus, it is clear that at the time of production in court the case property did bear a number plate though without any number thereon. PW-2, who was the MHC(M) at police station Dabri on 12.12.2011, stated that the motorcycle make Bajaj Discover of the present case deposited in the malkhana of police station Dabri by Head Constable Vijay Singh did State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 10 of 21 not bear any number but he could not tell as to whether there was a number plate on the same or not. However, perusal of Ex. PW-2/A, which is copy of register No. 19, shows that the same mentions the registration number of the motorcycle but does not mention that the motorcycle did not bear any number or number plate. PW-3, who was the MHC(M) at police station Chhawla on 04.01.2012, stated that on the said day one motorcycle make Bajaj Discover without number was deposited in the malkhana of police station Chhawla by Head Constable Bhoj Raj. However, in his cross examination, PW-3 admitted that the fact that the motorcycle was without number had not been mentioned in the entry at serial No. 511 in register No. 19 Ex. PW-3/A.
24. In view of the aforesaid, the prosecution has failed to prove that the motorcycle allegedly recovered at the instance of the accused was the same as had been the subject of the theft alleged in the complaint Ex. PW-5/A.
25. In view of the above discussion, the prosecution has failed to prove that the motorcycle bearing No. DL3SBT-0651 make Bajaj Discover as is alleged to have been recovered from the possession of the accused is a stolen property.
ii) Re: Whether the accused had dishonestly received or retained the motorcycle bearing No. DL3SBT-0651?
26. To prove the said ingredient, the prosecution had to prove that the accused had received or retained the motorcycle bearing No. DL3SBT-0651 and that the same was done dishonestly. State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 11 of 21
27. In order to prove that the accused had received or retained the motorcycle bearing No. DL3SBT-0651, the prosecution was required to first of all prove beyond reasonable doubt that the said motorcycle was recovered as alleged from the possession of the accused. The same has not been proved by the prosecution beyond reasonable doubt for the reasons to follow.
(a) Absence of public witnesses
28. Evidently, no public witness to the recovery of the motorcycle in question has been either cited in the list of witnesses or examined by the prosecution.
29. The accused was allegedly apprehended at Chhatt Pooja Park, Dabri. In his cross-examination, PW-1 stated, "We remained at the spot i.e. Chatt Pooja Park for about 2-3 hours. At Chatt Pooja Park none of the public person was requested to join the investigation". Further, PW-4 stated in his cross-examination, "We reached at Chath Puja Park at about 04.15 PM. Accused reached at chath puja park at about 05.00 PM. I asked 5/6 public persons to join the raiding party before the accused reached at the spot. I did not ask 5/6 public persons at the chath puja park but the same was asked at Vijay Enclave Bus Stand. The chath puja park is about 1-2 K.M. away from the Vijay Enclave Bus Stand. ... At Chath puja park neither myself nor any member of the raiding party asked to any public persons to join the investigation". Thus, both the recovery witnesses, i.e. PW-1 and PW-2 did not deny that public witnesses were available at the Chhatt Pooja Park i.e. the place of apprehension of the accused. However, State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 12 of 21 they categorically stated that they did not ask any public person at the Chhatt Pooja Park, where they had remained for a considerably long period of time of about 2-3 hours, to join the investigation. The fact that they may have requested public persons at Vijay Enclave Bus Stand, which was about 1-2 kilometer away from the place of apprehension of the accused, is of no assistance to the prosecution. In fact, since as per the prosecution witnesses no public person at Vijay Enclave Bus Stand had agreed to join the investigation, it was the duty of the raiding party to have requested public persons at Chhatt Pooja Park to join the investigation. Further, both PW-1 and PW-4 admitted that at the MTNL parking, i.e. the place of alleged recovery of the motorcycle in question, as well no public person was asked to join the investigation. Thus, despite availability of independent public persons at both the places, i.e. spot of apprehension of accused as well as spot of recovery of the motorcycle, the raiding party admittedly did not make any effort, let alone any sincere effort, to join public witnesses to the apprehension of the accused and recovery of case property.
30. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has, however, not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 13 of 21 Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
31. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 14 of 21 raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
(b) Contradictions in testimony of recovery witnesses
32. There are material contradictions in the statements of the prosecution witnesses which create a reasonable doubt as to the truthfulness of the prosecution story.
33. PW-7 Sub-Inspector Arvind (investigating officer) stated that the complainant was not present at his house on any of the occasions between 26.10.2010 and 09.11.2010 on which he visited the complainant's house. However, contrary thereto the complainant PW-5 asserted that between 26.10.2010 and 09.11.2010 the police visited his house twice besides the first visit after his call on 100 number and he had met the police on the said two visits. He further specifically stated that on the day when Sub-Inspector Arvind (PW-7) visited the house prior to 09.11.2010 he gave a written complaint to him. Thus, as per PW-5/complainant he had met the investigating officer/PW-7 on at least one of the visits of the investigating officer to his house between 26.10.2010 and 09.11.2010, however, PW-7/investigating officer denied having met the complainant at his house on any occasion between 26.10.2010 and 09.11.2010.
34. PW-1 Constable Rajesh Kumar stated, in his examination-in-chief, "Thereafter, HC Vijay Singh prepared a raiding party consisting myself, HC Vinod, HC Manoj, HC Krishan and Ct. Hawa Singh". Thus, as per PW-1 the raiding party consisted only of State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 15 of 21 five police officials namely (1) Constable Rajesh Kumar (PW-1), (2) Head Constable Vinod, (3) Head Constable Manoj, (4) Head Constable Krishan and (5) Constable Hawa Singh. In his cross-examination, however, PW-1 mentioned the name of Head Constable Vijay Singh too as having participated in the investigation besides the aforesaid five police officials. There were accordingly six police officials in total in the raiding party as per PW-1. In his cross-examination, PW-1 further specifically stated, "We were six police officials and one secret informer when we reached at Chatt Pooja Park". However, PW-4, in his examination-in-chief, stated, "Thereafter, one raiding party was consisting I alongwith IC Sushil Kumar and other 6/7 police officials". In his cross-examination, PW-4 stated, "We were seven police personnel and one secret informer. The police personnels were SI Sushil Kumar, Ct. Rajesh, Ct. Hawa Singh, HC Krishan, two others whose name I do not remember and myself". While PW-4 named Sub-Inspector Sushil Kumar as one of the members of the raiding party, the name of the said police official did not appear at all in the testimony of PW-1.
35. There is contradiction in the testimony of the recovery witnesses as to the sequence in which the police party had proceeded to various places allegedly visited by them. While as per PW-1, from Chhatt Pooja Park they first went to MTNL Exchange Parking, from where they went to DDA Flats, Chanakya Place, House No. P-44 and then to police station Dabri, PW-4 stated that from Chhatt Pooja Park they went to the house of the accused, then to the MTNL parking and then to the police station.
State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 16 of 21
36. In his cross-examination, PW-1 stated, "The motorcycles which were recovered from the Chatt Pooja Park and MTNL parking were not taken by us to house no. P-44. One of our team member HC Manoj remained at Chatt Pooja park alongwith all the motorcycles". However, PW-4, in his cross-examination, stated, "We all police officials alongwith accused went to the house of accused by maruti van and one police official was riding the motorcycle". Thus, while as per PW-4 all the police officials had gone to the house of the accused, PW-1 maintained that Head Constable Manoj had not accompanied the remaining police officials to house No. P-44, DDA Flats, Chanakya Place and had stayed at MTNL parking with the recovered motorcycles.
37. Though as per both the recovery witnesses, they had gone to Chhatt Pooja Park by a private Maruti van, PW-1 on the other hand stated that the said vehicle belonged to the Constable Hawa Singh, on the other hand, PW-4 stated that the same had been arranged by Sub-Inspector Sushil Kumar and that he could not tell the name of the owner of the said vehicle and whether the said owner had been paid or not.
38. While as per PW-1 the raiding party had included only six police officials namely Constable Hawa Singh, Constable Rajesh, Head Constable Vinod, Head Constable Krishan, Head Constable Vijay Singh and Head Constable Manoj, PW-4 stated that it consisted of seven police personnel including Head Constable Vijay Singh, Sub- Inspector Sushil Kumar, Constable Rajesh, Constable Hawa Singh State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 17 of 21 and Head Constable Krishan.
39. In his examination-in-chief, PW-1 stated, "Thereafter, at about 05.00 PM we reached at Chhath puja park near Dada Dev hospital, Dabri. At the pointing out of secret informer we apprehended one person who was sitting on the motorcycle at the stand". Thus, from the testimony of PW-1 it appears that after reaching Chhatt Pooja Park they apprehended the accused at the pointing out of the secret informer and that the accused was at that time sitting on a motorcycle at the stand, i.e. the motorcycle on which they found the accused sitting was at that time stationary. However, as per PW-4, the members of the raiding party took their positions at Chhatt Pooja Park and having waited for about 45 minutes they saw the accused coming on a motorcycle from the side of Dabri and going towards Dwarka.
40. While as per PW-1 the disclosure statement of the accused was written by Head Constable Vijay Singh, as per Head Constable Vijay Singh (PW-4) the same was written by Sub-Inspector Sushil Kumar.
41. While as per PW-1 the raiding party had started from AATS office at 03.45 p.m. and reached Chhatt Pooja Park at about 05.00 p.m., PW-4 stated that they started from their office at 03.30 p.m. and reached at Chhatt Pooja Park at 04.15 p.m.
42. As per PW-1, at house No. P-44, DDA Flats, Chanakya Place, they met the owner of the house, however, contrary thereto PW-4 stated that said house was locked from outside and the key to the said house was taken out by the accused from a box of electricity point located beside the door, meaning thereby that there was none present State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 18 of 21 inside the house.
43. While as per PW-4 there were only two motorcycles in the MTNL parking, PW-1 stated that though he could not tell the number of the vehicles parked in the said parking, there were many vehicles parked there.
44. Though PW-1 stated that the secret informer gave information to Head Constable Vijay Singh in his presence and that the secret informer had not told the name of the person who would be coming with stolen motorcycle at Chhatt Pooja Park, PW-4 stated, in his cross -examination, "It is correct that secret informer disclosed the name of the accused while giving the information".
45. While as per PW-4 at the time of apprehension of the accused, the motorcycle which he was driving was without a number plate, PW-1 has not stated so and has rather mentioned the registration number of the said motorcycle i.e. DL 9SV-2904 in his testimony.
(c) Absence of site plan of place of recovery
46. No site plan of the place of recovery of the motorcycle in question or apprehension of the accused has been placed on record. No explanation has been furnished for the failure of the prosecution to place on record and prove the site plans of the place of recovery of the motorcycle and the place of apprehension of the accused. In the absence of a site plan of the place of apprehension of the accused and place of recovery of the motorcycle in question, it is difficult to ascertain the places from which the accused was allegedly State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 19 of 21 apprehended and the motorcycle allegedly recovered.
(d) Failure to cite/examine all recovery witnesses
47. As per the testimony of PW-1 the raiding party had consisted of five other police officials besides himself and as per PW-4 it consisted of six other police personnel besides him. In any case, the police party had admittedly consisted of a total of at least six police officials. However, the prosecution preferred to cite and examine only two, i.e. PW-1 and PW-4, out of the minimum six recovery witnesses. No justification has been shown for the failure of the prosecution to cite or examine the remaining recovery witnesses.
48. Further, while as per PW-1 and PW-4, besides them there were at least four other police officials who were members of the raiding party and had witnesses the recovery of the motorcycle in question, the documents allegedly prepared at the spot of apprehension and recovery namely kalandara Ex. PW-1/A, seizure memo of keys Ex. PW-1/C1, seizure memo of motorcycle Bajaj Pulsar Ex. PW-1/C, pointing out memo Ex. PW-1/E, arrest memo Ex. PW-1/B, personal search memo Ex. PW-4/A and disclosure statement Ex. PW-1/D do not bear the signatures of any of the said police officials. Same casts doubt on the presence of the said witnesses at the spot during investigation.
49. In view of the aforesaid, the prosecution has failed to prove beyond reasonable doubt that the motorcycle in question was recovered at the instance of the accused as alleged. It has accordingly failed to establish that the accused had received or retained the State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 20 of 21 aforesaid motorcycle, much less with dishonest intention.
iii) Re: Whether the accused knew or had reason to believe the motorcycle bearing No. DL3SBT-0651 to be stolen property?
50. The prosecution has failed to lead any evidence to show that the accused either knew or had reason to believe the motorcycle in question to be stolen property. Further, there was a long gap between the date of the alleged theft, i.e. 25.10.2010/26.10.2010, and the date of the alleged recovery of the motorcycle at the instance of accused i.e. 12.12.2011, and hence no adverse presumption can be drawn against the accused.
51. In view of the aforesaid detailed discussion, the prosecution has failed to bring home the charge under Section 411 I.P.C. against the accused. The accused is entitled to the benefit of doubt and to be accordingly acquitted of the offence punishable under Section 411 I.P.C.
CONCLUSION
52. Accordingly, the accused is acquitted of the offence punishable under Section 411 I.P.C.
53. File be consigned to record room.
Announced in open Court on 15.09.2012.
(MANIKA) Metropolitan Magistrate-12 (South-West), Dwarka Courts, New Delhi 15.09.2012 State v. Shafiulla @ Rahul FIR No. 187/2010 P.S.: Chhawla Page 21 of 21