Delhi District Court
State vs . Sachin & Anr. on 5 November, 2012
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. SACHIN & ANR.
FIR No. 309/03
U/S : 379/411/420/468
P.S : VIKAS PURI
1. Serial No. of the Case : 790/2/10/03
2. Unique ID of the case : 02401R1019562003
3. Date of Commission of Offence : 04.09.2003
4. Date of institution of the case : 01.11.2003
5. Name of the complainant : Divya Khurana
6. Name,address and the parentage : Sachin @ Mannu
of accused S/o Sh. Nirmal Kumar
R/oH No. 26, Om Vihar, Phase1,
Uttam Nagar, Delhi.
Bhupender
S/o Sh. Om Kant
R/o WZE114A, Bal Udhan Road,
Uttam Nagar, Delhi.
7. Offence Complained : U/s 379/411/420/468/471/201/34
IPC
8. Offence Charged : U/s. 411/482/34 IPC.
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Acquitted.
11.Date of Final Order : 05.11.2012
FIR No. 309/2003 STATE Vs. SACHIN & ANR. PAGE No. 1/9
J U D G M E N T
1 The prosecution filed a charge sheet against the accused persons on the allegations that on 04.09.2003 near RTO Office, Kukrola Village at main Najafgarh Road, Delhi, they were found in possession of one Maruti Car bearing no. DL 6CE 6102 with a forged number plate i.e. DL 4CE 4736 which belonged to the complainant PW2 Divya Khurana which was stolen from the back side of PVR Cinema, Vikas Puri, Delhi. After completion of investigation, a charge sheet for the offences U/s. 379/411/420/467/471/120/34 IPC was filed against the accused persons. 2 In compliance of Section 207 Cr.P.C, the copy of the charge sheet along with other documents were supplied to the accused. Later on, vide order dated 16.02.2005, a charge for offences under Section 411/482/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
3 In order to prove its case against the accused persons, the prosecution examined five witnesses in all.
FIR No. 309/2003 STATE Vs. SACHIN & ANR. PAGE No. 2/9 4 PW1 HC Vijay Pal Singh was the DO.
5 PW2 Divya Kumari was the complainant in this case.
6 PW3 HC Pradeep Kumar participated in the investigation. 7 PW4 Inspector Ranbir Singh, IO of the case FIR No. 333/03. 8 PW5 SI Sita Ram was the IO of this case.
9 No other PW was examined by the prosecution despite several opportunities and vide order dated 02.01.2012 the prosecution evidence was closed.
10 In his statement under Section 313 Cr.P.C. accused Bhupender stated that he is innocent and he has been falsely implicated by the police in this case and he denied that any car was recovered at his instance. Similarly, accused Sachin also stated the same in his statement U/s. 313 Cr.P.C. Despite opportunities, both the accused persons did not lead any defence evidence.
11 Ld. APP for the State has submitted that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. He has further submitted that the testimonies of the prosecution witnesses are FIR No. 309/2003 STATE Vs. SACHIN & ANR. PAGE No. 3/9 reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
12 On the other hand, the Ld. Defence Counsels have submitted that the prosecution has miserably failed to bring the guilt of the accused and failed to prove the case beyond reasonable doubt.
13 I have heard the Ld. APP for the State as well as Ld. Counsels on behalf of the accused. I have also gone through the oral and documentary evidence available on the record carefully. 14 From the perusal of oral and documentary evidence led by the prosecution, I am of the opinion that the prosecution has failed to prove the case against the accused persons beyond reasonable doubt. 15 First of all, the case of the prosecution is that the alleged stolen vehicle of the complainant was recovered at the instance of the accused persons from the Kakrola More with the fake number plate, which was seized alongwith the fake number plate. In the examination of PW HC Pardeep Kumar the same was proved. However, in the cross examination he FIR No. 309/2003 STATE Vs. SACHIN & ANR. PAGE No. 4/9 admitted that number plates were not sealed. He could not also tell that whether when any identification mark on the number plate was put by the IO on the number plates. PW5 SI Sita Ram also deposed that he deposited the number plates in the malkhana. However, in this case MHCM has not been examined nor the relevant extracts of the register no 19 has been proved. Therefore, it can be safely concluded that the prosecution has failed to proved beyond reasonable doubt that the number plates as alleged by the prosecution were in fact affixed on the stolen car of the complainant alleged to have been recovered at the instance of the accused persons. 16 It was further the case of the prosecution that the alleged stolen vehicle was recovered from Kakrola Mode which was a place open and accessible for all. In view of the same, the question to be decided is whether the recovery of incriminating material from the open place at the instance of the accused is an evidence falling u/s 27 Evidence Act or not. 17 In Trimbak Vs. State of M.P, AIR 1954 SC 39, the stolen ornaments were recovered from the open field which was accessible to all and sundry. It was held by the Hon'ble Supreme Court that the fact of the recovery by the accused is compatible with the circumstance of somebody FIR No. 309/2003 STATE Vs. SACHIN & ANR. PAGE No. 5/9 else having placed the articles there and the accused some how acquiring knowledge about their whereabout and that been so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles.
18 Similarly in Salim Akhtar @ Mota Vs. State of U.P., AIR 2003 SC 4076, placing reliance upon the earlier judgments of Sanjay Dutt Vs. State through CBI, AIR SCW 3857, Trimbak (Supra), Rao Saheb Balu Killedar Vs. State of Maharashtra, AIR 1995 SCW 1569 and Khudeshwar Dutta Vs. State of Assam, it was held by the Hon'ble Supreme Court that mere knowledge of the accused that incriminating articles were kept at certain place does not amount to his conscious possession.
19 In Sattatiya @ Satish Rajanna Kartall Vs. State of Maharashtra (2008) 3 SCC 210, the recovery of the half blade was made from the road side from beneath the wooden board in front of Ganesh Bhawan Building but the same was not believed as it was held that since the blade was recovered from a open place and everybody had the access to the side from the blade was recovered. In Aslam Pravesh Vs. Govt. of NCT of Delhi (2003), 9 SCC 141, the recovery of revolver made from after digging out the earth near the FIR No. 309/2003 STATE Vs. SACHIN & ANR. PAGE No. 6/9 building which was being constructed was not believed as the recovery was not made from any close or conceal place but from an open place which is accessible to all. In the case of Aslam (Supra) the court relied upon the judgment of Salim Akhtar (Supra).
20 However, in the State of H.P. Vs. Jeet Singh (1999), 4 SCC 370,the Supreme Court held that the recovery from a place which was "open and accessible to others" is not vitiated as the test was whether the place was accessible to others or not but whether it was ordinarily visible to others or not. Elucidating the law, the Apex Court held that any object could be concealed in the places which are open and accessible to others. For example, something buried on a public place under the dry leaves or kept hidden in a public office, then articles would remain out of the visibility of others in normal circumstances and only the person who hid it alone knows where it is until he discloses that fact to any other person. 21 Our own Hon,ble Delhi High Court in the case titled as Prem Singh V/s State, Crl. Appeal No. 1335/10, , wherein one truck was recovered from the public area, the observed that since the truck was parked in an area which had public access and was not in the exclusive knowledge of appellant FIR No. 309/2003 STATE Vs. SACHIN & ANR. PAGE No. 7/9 and the fact that no recovery of key of the truck was made from the accused, the prosecution story was disbelieved.
22 In view of the above mentioned settled settled legal position it is apparent that whenever the recovery of some incriminating article has been made from an open place which is "open and accessible to others" despite the recovery made at the instance of the accused the Hon'ble Supreme Court has always categorically held that no knowledge on the part of the accused can be attributed. However, this court is not oblivion of the judgment of Jeet Singh (supra). However, the case of the prosecution is not covered within the ratio of the said case as prosecution has nowhere alleged that alleged stolen vehicle was not visible for others despite being recovered from the an open place which is "open and accessible to others". As per the case of the prosecution the alleged stolen vehicle was recovered from the side of the road on the government land as deposed by PW SI Sita Ram who deposed that same. The said spot was a place "open and accessible to others". In view of the afore said propositions of law and the afore said discussions, I opine that the recovery of the alleged stolen vehicle from an open place even though at the instance of the accused persons is no incriminating piece of evidence. Hence, I find that there is no legally admissible evidence against FIR No. 309/2003 STATE Vs. SACHIN & ANR. PAGE No. 8/9 the accused persons on the record.
23 Hence, in view of the above said discussions and the evidence as well as the material available on the record I am of the considered view that the prosecution has miserably failed to prove the case against the accused persons beyond reasonable doubt. Hence accused Sachin and Bhupender are hereby acquitted of the offences they have been charged with. Their previous bail bonds and surety bonds stands cancelled and discharged respectively. However, the B/B and S/B furnished by the accused for the purpose of Section 437A Cr.P.C. are extended for a period of six months from today File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 05 November, 2012
th
MM09:WEST:THC
05.11.2012
FIR No. 309/2003 STATE Vs. SACHIN & ANR. PAGE No. 9/9