Delhi District Court
State vs Jaiveer on 30 August, 2024
State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016
PS: South Rohini
Cr. Case No. 546561/2016
IN COURT OF JUDICIAL MAGISTRATE FIRST CLASS-07, (NORTH-
WEST DISTRICT) ROHINI COURTS, DELHI.
Presided over by: Ms. Ritika Kansal, DJS
Cr. Case No. : 546561/2016
Case ID No. : DLNW02-015080-2016
e-FIR no. : 022189/2016
Police Station : South Rohini
Section(s) : 411/34 Indian Penal Code, 1860
In The Matter of :
STATE
Vs
1.JAIVEER S/o Sh. Gulab Singh R/o H. No. 569, Gali No. 6, Ambedkar Colony, Haiderpur, Delhi &
2. KRISHNA YADAV S/o Sh. Ram Pukar Yadav R/o H.No. 184, Gali No. 2, Fauji Ka Makan, Ambedkar Colony, Haiderpur, Delhi ...Accused Persons
1. Name of Complainant Jai Chabra
2. Name of Accused 1. Jaiveer
2. Krishna Yadav
3. Offence complained of S. 379/411/34 of Indian Penal Code, 1860 Page 1 of 16 State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016PS: South Rohini Cr. Case No. 546561/2016
4. Offence charged with S. 411/34 of Indian Penal Code, 1860
5. Date of Incident 24.08.2016
6. Date of Institution of case 16.11.2016
7. Plea of Accused Not Guilty
8. Date of Reserving Order 17.08.2024
9. Date of Pronouncement 30.08.2024
10.Final Order Acquittal
1. Vide this judgment, I shall dispose of the present matter filed at instance of complainant Jai Chabra who reported theft of his motorcycle by unknown person/s.
FACTUAL MATRIX
2. As per prosecution version, on 28.07.2016, at about 12:00 noon, one motorcycle bearing registration no. DL-5SAC-6109 (hereinafter referred to as the "motorcycle in question") belonging to complainant Jai Chabra was parked in front of M2K Mall, Sector-3, Rohini. At around 04:00 p.m., when the complainant returned to the parking spot, the motorcycle was found missing. A call was made at emergency number 100. Upon his statement, e-FIR no. 22189/2016 came to be registered at PS South Rohini against unknown person/s under section 379 of Indian Penal Code, 1860. On 24.08.2016, the said vehicle got recovered at instance of the accused persons from forest of Bhalswa Lake (hereinafter referred to as "the spot"). The facts emanating from the chargesheet are as follows:
(a) Information regarding the theft was received at the police station leading to registration of e-FIR. Statement of the complainant was recorded.Page 2 of 16 e-FIR No. 022189/2016
PS: South Rohini Cr. Case No. 546561/2016
(b) Upon receiving the said information, Sub-Inspector (SI) Jai Kumar along-with the complainant reached near M2K Cinema, Sector-03, Rohini (hereinafter referred to as "the place of incident"), where he prepared Site Plan/Ex.PW-4/A.
(c) On 24.08.2016, Constable (Ct.) Deepak and Head-Constable ( HC) Sukhdev Singh were was on vehicle checking duty in Mukandpur, in front of golf course, near Bhalswa Dairy Lake. The accused persons were found driving a motorcycle bearing no. DL- 10-SA-1312 of make Bajaj Discover. They were coming from Janta Vihar side. They failed to produce any documents of the said vehicle. It was discovered that the said motorcycle was reported stolen in e-FIR 022251/2016 of PS Bhalswa Diary dt. 30.07.2016. Both the accused were interrogated, they disclosed their identities. One black colour bag was found in possession of accused Krishna Yadav containing 6 ECMs.
(d) The information regarding these recoveries given to HC Vinod who reached there. The motorcycle bearing no. DL-10-SA- 1312 and 6 ECMs along-with the custody of both the accused were handed over to HC Vinod. HC Vinod requested 3-4 public persons to join investigation, who refused. No written notice was issued to them due to paucity of time.
(e) Upon interrogation, accused persons confessed to their involvement in e-FIR 022251/2016 of PS:Bhalswa Diary. They confessed to stealing ECMs of various car, stealing one motorcycle from Sector-5 Noida, UP and changing its number plate (UP8SAR7210), and also stealing the motorcycle in question. They further disclosed that they can get the motorcycle in question Page 3 of 16 State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016PS: South Rohini Cr. Case No. 546561/2016 recovered from forest area of Bhalswa Lake, leading to discovery of motorcycle in question.
(f) SI Jai Kumar (hereinafter referred to as the "IO"), received information vide DD no. 26 dt. 25.08.2016 that the motorcycle in question has been recovered at PS Bhalswa Diary. With the court's permission, he formally arrested the accused persons in the present case.
(g) Thereafter, documents such as the seizure memo, arrest memo, other documents were collected by IO. He recorded statements of recovery witnesses. The motorcycle in question was deposited at the malkhana PS South Rohini vide RC No. 174/21/16/ Marked X.
3. After completing the investigation, accused persons were charge-sheeted for having committed offences punishable u/section 379/411/34 of Indian Penal Code, 1860 (hereinafter also referred to as "IPC").
DURING TRIAL
4. Cognizance of the offences was taken by Sh. Ravinder Singh-II, then Ld. MM vide order dt. 21.11.2016 and the accused persons summoned to face trial. On their appearance, they were supplied with the copy of the charge-sheet. On basis of record, vide order dt. 07.02.2017, they were charged for committing offences punishable u/section 411/34 of IPC. The accused persons pleaded not guilty and hence the trial commenced.
5. Prosecution cited as many as 9 witnesses and relied upon various documents which are mentioned below in tabular chart in paragraph no. 6. However, not all the cited witnesses could be examined. Both the accused vide Page 4 of 16 State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016PS: South Rohini Cr. Case No. 546561/2016 their joint but separate statement dt. 23.09.2023 recorded u/section 294 Cr.P.C., had admitted the genuineness of e-FIR No. 022189/16 PS South Rohini. Hence examination of Inspector Shivaji Chauhan was dispensed with.
6. Further considering the submissions of Ld. APP for the State, PW at serial no. 9 was also dropped from the list of witnesses and prosecution evidence was closed vide order dt. 23.09.2023.
ORAL EVIDENCE
PW-1 :- Jai Chabra (Complainant)
PW-2 :- HC Lillu Ram (Formal Witness)
PW-3 :- ASI Vinod (Recovery Witness)
PW-4 :- Retd. SI Jai Kumar (Investigating Officer)
PW-5 :- ASI Sukhdev (Recovery Witness)
DOCUMENTARY EVIDENCE
Ex. PW-1/A :- Complaint
Ex. P-1 :- Case Property i.e. Motorcycle in question
Mark -X :- Road Certificate No. 174/21/16
Ex. PW-3/A :- Disclosure of Accused Jaiveer in e-FIR 022251/2016 PS
Bhalswa Diary
Ex. PW-3/B :- Disclosure of Accused Krishna Yadav in e-FIR 022251/2016
PS Bhalswa Diary
Ex. PW-3/C :- Seizure Memo of Motorcycle in question in e-FIR 022251/2016
PS Bhalswa Diary
Ex. PW-4/A :- Site Plan
Ex. PW-4/B :- Arrest Memo of Accused Krishna Yadav in present FIR
Ex. PW-4/C :- Arrest Memo of Accused Jaiveer in present FIR
Mark P :- Arrest Memo of Jaiveer e-FIR 022251/2016 PS Bhalswa Diary
Mark Q :- Personal Search Memo of Jaiveer e-FIR 022251/2016 PS
Page 5 of 16
State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016
PS: South Rohini
Cr. Case No. 546561/2016
Bhalswa Diary
Mark R :- Personal Search Memo of Krishna Yadav e-FIR 022251/2016
PS Bhalswa Diary
7. Accused persons did not lead any positive evidence. They denied all incriminating facts during their statements recorded u/section 313 Cr.P.C. Upon recording their statements to the effect that they do not wish to lead defence evidence; the defence evidence was closed vide order dt. 22.01.2024. Final arguments have been addressed by Ld. APP for the state and by Sh. Sh. Ajay Paul, Ld. Counsel for the accused Persons.
TESTIMONIES OF WITNESSES
8. Before proceeding further, it would be apt to briefly glance through testimonies of prosecution witnesses.
9. PW-2 is the formal witness. He has not been cross-examined by the defence despite opportunity. Hence, no discussion is warranted with respect to his testimony.
10. Retd. SI Jai Kumar is the investigating officer of the case. He testified as PW-4. Though he identified the accused persons, he neither witnessed theft nor witnessed recovery of the motorcycle in question. He hasn't recorded the statement of the complainant. Thus, he can also be termed as a formal witness whose testimony is not relevant for determining the question of guilt of accused persons, hence, further discussion on his testimony is not warranted.
11. Complainant has been examined as PW-1. He supported prosecution version regarding the theft of the motorcycle in question from the place of incident, recording of his statement and registration of FIR. During his cross- examination, he admitted that he hadn't witnessed the recovery proceedings. No Page 6 of 16 State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016PS: South Rohini Cr. Case No. 546561/2016 other question was put to the witness by defence. Thus, the factum of motorcycle in question having been stolen stands proved.
12. The prosecution story hinges upon testimony of PW-3 and PW-5 i.e. the recovery witnesses.
13. PW-5 testified that on 24.08.2016, he was posted at PS Bhalswa Dairy. He stated about being on vehicle checking duty vide DD no. 55B near Shamshan Ghat, Jheel Road, stopping the accused persons at around 07:30 p.m. who were driving a motorcycle bearing No. DL10SA1312. The accused persons failed to produce any document of the said motorcycle which was found to be stolen in the e-FIR No. 022251/2016 PS Bhalswa Diary. Upon information conveyed to police station, PW-5 came to spot. He came to the spot and seized the said motorcycle. The accused persons were interrogated who disclosed that they have hidden other two motorcycles behind bushes of Jheel Road. They reached there and two motorcycles bearing no. DL5SA6109 and UP8SAR7210 were recovered from there. The motorcycle bearing no. DL5SA6109 was found reportedly stolen in the present FIR. Same was seized separately seized. Accused persons were arrested and personally searched. During his cross-examination, PW-5 testified that they had reached at Jheel Road at around 06:00 p.m. and had put barricades. There was heavy traffic on the road, many people were passing by both on foot and with vehicles. No vehicles or motorcycles were stopped for checks prior to intercepting the vehicle driven by the accused Jaiveer and his pillion rider Krishan at 7:30 PM. PW-5 clarified that prior to 07:00 p.m., they were patrolling the road and barricades were put at 07:00 p.m. He initially stated that during this period they were engaged in verifying the identities of individuals crossing the barricade on foot and that the identities of many individuals who crossed just as the accused were apprehended were checked in the presence of IO/PW-3 but immediately retracted his statement by stating that they had not checked the IDs of the public Page 7 of 16 State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016PS: South Rohini Cr. Case No. 546561/2016 persons crossing the barricades and that their names weren't noted be the IO. He also denied knowledge of any Daily Diary (DD) entries made post-arrest when they returned to the police station. The distance between the arrest spot and the PS was about 1.5 KM, and it took them approximately 15 minutes to return to the PS with the accused. PW-5 mentioned walking to nearby Balaswa Jungle to recover other vehicles. He disclosed that distance between arrest spot is about 100 meters from the recovery spot. He denied suggestions that the barricades were not installed or that accused persons have been falsely implicated or that he signed documents only at the IO's behest or that the case property was planted on the accused persons.
14. PW-3 supported the prosecution version and, in his chief-examination, he testified on similar lines as PW-5. During his cross-examination. PW-3 testified that he was informed through DD No. 50A about the apprehension of Kishan and Jaiveer with a stolen motorcycle and six ECMs by HC Sukhdev and Ct. Deepak. However, he could not recall the specific times related to receiving the information, traveling to the spot, or the actions taken subsequently. He testified that the distance from the spot where the accused were apprehended to the Bhalswa Jungle, where additional motorcycles were recovered, was about 1 kilometer. He stated that this journey was made on foot. He also denied suggestions that no disclosure statements were recorded or that signatures of accused persons were obtained on blank papers or that he never joined the investigation or that nothing was recovered from the accused persons or that the case property was planted on them.
RELEVANT PROVISIONS
15. Before proceeding further, it is pertinent to refer to relevant provisions. Section 378 IPC defines the offence of theft and section 379 IPC prescribes punishment for the said offence. Section 410 IPC defines the phrase "stolen Page 8 of 16 State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016PS: South Rohini Cr. Case No. 546561/2016 property" and section 411 prescribes the punishment for receiving, retaining or concealing stolen property. The language of said provisions is reproduced herein after for ready reference:
"Section 378. Theft.-Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."
"379. Punishment for theft.--Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
"410. Stolen property.-Property, the possession whereof has been 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."
"411. Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both"
ARGUMENTS AND APPRECIATION OF EVIDENCE Page 9 of 16 State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016PS: South Rohini Cr. Case No. 546561/2016
16. It has been argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. The recovery of the motorcycle in question was made from the accused persons and all the evidence on record points towards their guilt. He has argued that the recovery of case property is duly proved and the identity of the accused persons is also proved. As such, it is prayed that the accused be punished for the offence u/section 411/34 IPC.
17. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the whole case is fabricated, alleged recovery has been made in absence of any independent witness. He has argued that there are inconsistencies in the case of the prosecution, which go to the root of the matter. It has been further contended that the joint disclosure which is basis of prosecution story cannot be relied upon by prosecution. Reliance has been placed upon judgement of Hon'ble Himachal Pradesh High Court in case of Krishan Dass v. State of H.P., 2002 SCC OnLine HP 100. As such, it is prayed that the accused be acquitted for the said offence.
18. It is admitted fact that there is no eye-witness of the theft of motorcycle in question. No scientific material in form of CCTV footage is available. The story of prosecution depends upon testimony of recovery witness according to whom the motorcycle in question was recovered subsequent to disclosure statements of the accused persons. As per the seizure memo of the motorcycle, same is stated to have been recovered upon joint disclosure statements. The evidentiary value of joint disclosure of accused persons under Section 27 of the Indian Evidence Act, 1872, has been a matter of legal scrutiny and interpretation. Language of section 27 is reproduced herein for ready reference:
"How much of information received from accused may be Page 10 of 16 State Vs. Jaiveer & Ors.e-FIR No. 022189/2016
PS: South Rohini Cr. Case No. 546561/2016 proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offense, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
19. It has been held by Hon'ble Apex Court1 that while joint disclosures are not outright inadmissible, but there may be practical challenges and credibility issues associated with such evidence. The Hon'ble Court has emphasized careful evaluation of such material by the courts.
20. The Hon'ble Supreme Court affirmed in Lachhman Singh (Supra) that information obtained from multiple accused persons under Section 27 of the Indian Evidence Act is admissible if it leads to the discovery of a fact. It further held that for joint disclosures to be admissible, each accused must independently contribute information that leads to the discovery of a fact. The information should not be vague or general but must be distinct and specific to the fact discovered. The court emphasized the distinctiveness and specificity of the information provided by each accused, which must directly lead to the discovery of a fact. Relevant paragraph is extracted herein as follows:
"14. It seems to us that if the evidence adduced by the prosecution is found to be open to suspicion and it appears that the police have deliberately attributed similar confessional statements relating to facts discovered to different accused persons, in order to create evidence against all of them, the case undoubtedly demands a most cautious approach. But, as to what should be the rule when there is clear and unimpeachable 1 Lachhman Singh v. State, (1952) 1 SCC 362; Mohd. Abdul Hafeez v. State of A.P., (1983) 1 SCC 143; State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 Page 11 of 16 State Vs. Jaiveer & Ors.e-FIR No. 022189/2016
PS: South Rohini Cr. Case No. 546561/2016 evidence as to independent and authentic statements of the nature referred to in Section 27 of the Evidence Act, having been made by several accused persons, either simultaneously or otherwise, all that we wish to say is that as at present advised we are inclined to think that some of the cases relied upon by the learned counsel for the appellants have perhaps gone farther than is warranted by the language of Section 27, and it may be that on a suitable occasion in future those cases may have to be reviewed"
21. Talking about joint disclosures, Hon'ble Apex Court in Navjot Sandhu (Supra), made following observations:
"145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures.... Learned Senior Counsel Mr Shanti Bhushan and Mr Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the ken of Section 27, whereas it is the contention of Mr Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the section to more than one person. But, that is too narrow a view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. "A person accused" need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Page 12 of 16 State Vs. Jaiveer & Ors.e-FIR No. 022189/2016
PS: South Rohini Cr. Case No. 546561/2016 Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr Gopal Subramanium. Whether and to what Page 13 of 16 State Vs. Jaiveer & Ors.e-FIR No. 022189/2016
PS: South Rohini Cr. Case No. 546561/2016 extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefatory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel.
146. In Mohd. Abdul Hafeez v. State of A.P. [(1983) 1 SCC 143 : 1983 SCC (Cri) 139 : AIR 1983 SC 367] the prosecution sought to rely on the evidence that the appellant along with the other two accused gave information to the IO that the ring (MO-1) was sold to the jeweller, PW 3 in whose possession the ring was. PW 3 deposed that four accused persons whom he identified in court came to his shop and they sold the ring for Rs 325 and some days later, the Police Inspector accompanied by Accused 1, 2 and 3 came to his shop and the said accused asked PW 3 to produce the ring which they had sold. Then, he took out the ring from the showcase and it was seized by the Police Inspector. The difficulty in accepting such evidence was projected in the following words by D.A. Desai, J. speaking for the Court: (SCC p. 146, para 5) "Does this evidence make any sense? He says that Accused 1 to 4 sold him the ring. He does not say who had the ring and to whom he paid the money. Similarly, he stated that Accused 1 to 3 asked him to produce the ring. It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than Page 14 of 16 State Vs. Jaiveer & Ors.e-FIR No. 022189/2016
PS: South Rohini Cr. Case No. 546561/2016 one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person."
There is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law."
22. Thus, as per the legal principles enunciated by Hon'ble Court, for joint disclosures to be reliable under Section 27 IEA, the IO must provide a clear and specific testimony about how the disclosures were recorded--whether they were simultaneous or sequential. If the IO fails to clarify this in his testimony, the joint disclosures will not be credible as per Navjot Sandhu (supra). Additionally, if such statements are very similar or not distinct from each other--such evidence should be approached with caution. In other words, if the joint disclosures lack distinctiveness, the Hon'ble Court advised against placing reliance on them, even if they might technically be admissible.
23. Coming back to the facts of the present case, it is pertinent to note that neither the testimony of PW-3 nor that of PW-5 provides any clarification regarding the manner in which the joint disclosure statements were recorded. Additionally, upon examining both statements, it is evident that they are exact replicas of each other; not only do they claim to have discovered the same facts, but the language and wording are also identical. Thus, they lack specificity and distinctiveness. It indicates that police might have engineered similar confessional statements to strengthen the case against both the accused. Thus, this court doesn't find it safe to rely upon these two disclosure statements.
24. As already mentioned above, apart from the unreliable joint disclosure Page 15 of 16 State Vs. Jaiveer & Ors.
e-FIR No. 022189/2016PS: South Rohini Cr. Case No. 546561/2016 statements, there is no other incriminating evidence against the accused persons. Thus, the prosecution's case lacks the necessary foundation for further analysis. Discussing the credibility of the prosecution witnesses would not be meaningful.
25. In nutshell, prosecution has failed to discharge its burden of proof i.e. establishing guilt of accused persons beyond reasonable doubt. Resultantly, the accused Jaiveer S/o Sh. Gulab Singh and Krishna Yadav S/o Ram Pukar Yadav are hereby found not guilty. Both are ACQUITTED of the offence under section 411/34 of the Indian Penal Code,1860.
Pronounced in the open
Court on this 30.08.2024 (Ritika Kansal)
JMFC-07 (North West)
Rohini Courts, New Delhi
It is certified that this judgement contains total 16 each page signed by me.
(Ritika Kansal) JMFC-07 (North West) Rohini Courts, New Delhi 30.08.2024 Page 16 of 16