Delhi District Court
State vs . Kailash And Ors. on 2 December, 2014
FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC. State Vs. Kailash and Ors. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, SAKET COURTS, DELHI. FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC State Vs. Kailash & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 90/2/10
B. DATE OF INSTITUTION : 23.12.1997
C. DATE OF OFFENCE : 28.10.1997
D. NAME OF THE : Sh. Shyam Sunder Soni
COMPLAINANT S/o Sh. Hari Baksh Soni
E. NAME OF THE : (1).Kailash
ACCUSED S/o Sh. Harphool Singh
(2).Ashok
S/o Sh. Chanderbhan (PO)
(3). Pawan Kumar
S/o Sh. Darshan Lal (PO)
(4) Nishar
S/o Sh. Nasru Khan
(5) Islamuddin
S/o Sh. Abdul Rahman
(6) Jagdish Garg
S/o late Sh. M.R.Garg
1/12
FIR NO. 725/97
PS. OIA
U/s. 379/411/420/120B IPC.
State Vs. Kailash and Ors.
(7) Ram Avtar
S/o late Sh. Jaidev
F. OFFENCE
COMPLAINED OF : U/s 379/411/420/120B IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquitted.
I. DATE OF SUCH ORDER: 02.12.2014
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as unfolded from chargesheet are that on 28.10.1997, Sh. S.S.Soni for Shubham Container Service gave a written complaint, wherein he had alleged that on 27.10.1997, 64 containers of their client IPCL arrived at CONCOR, SCS site and out of said 64 containers, they took delivery of 63 containers from the said site. It is alleged that in th respect of 64 container, it was informed by the CONCOR officer that the same was loaded in trailer no. HR29A3665, which departed from their premises at around 3.003.30 am on 28.10.1997. The complainant had alleged that the said trailer did not belong to them and therefore, the present FIR was got lodged for the theft of the said container.
2. During investigation, complainant Sh.S.S.Soni noticed a truck in the parking of Inland Container Depot, which was seen to be freshly painted with a number DEL5867 and the other number HR29A3665 was also seen on it. The drivers of the said truck namely Kailash and Ashok were arrested at the instance of the complainant. On the basis of their disclosure, accused Jagdish Garg and Ram Avtar were arrested. Subsequently, on the basis of the disclosure of the co 2/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
accused persons, accused Nishar and Islamuddin were arrested. Six bags of plastic granules and seven bags of plastic granules were recovered at the instance of accused Nishar and Islamuddin respectively. Subsequently, accused Ram Avtar got recovered 400 bags of plastic granules from a person namely Satish at Sadar Bazar and he also got recovered 300 bags of plastic granules from the accused Ashok.
As per prosecution, accused Kailash, Ashok, Rashid, Anup, Nishar, Islamuddin and Pawan (supervisor) hatched a criminal conspiracy to commit the present offence and pursuant to the said conspiracy, false number was painted on the truck and with the help of the supervisor Pawan Kumar, the stolen container was got loaded in the said truck. Thereafter, the stolen goods were unloaded at the house of accused Jagdish Garg situated at Ashoka Park, Punjabi Bagh, New Delhi. Accused Jagdish Garg sold it to his neighbourer/accused Ram Avtar, who in turn sold 300 bags of plastic granules to the accused Ashok and 400 bags of plastic granules to Satish. After conclusion of investigation the challan under section 379/411/120B/420/468 IPC against all the seven accused persons was filed in the court.
3. All the seven accused persons were summoned by the court for facing trial for the aforesaid offences. Accused Ashok and Pawan did not appear in the court for facing trial and therefore, after adopting due process of law, they were declared POs vide orders dated 04.01.2003 and 28.01.2003 respectively. In compliance of Section 207 Cr. P. C., the copy of the challan and the documents annexed therewith were supplied to the remaining five accused persons. Prima facie charges U/s 379/411/414/420/482/120B IPC were made out against accused persons namely Kailash, Nishar and Isalmuddin and charge 3/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
under section 411/414 IPC were made out against the accused persons Jagdish Garg and Ram Avtar. Accordingly, on 03.01.2004, the Ld. Predecessor of this court framed charges against them. The accused persons pleaded not guilty and claimed trial to their respective charges. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined seven witnesses.
5. Sh. Wali Jaan (PW1) has testified that in the intervening night of 27/28.10.1997, at about 3.00 am, he loaded the container in a trailer on asking of the supervisor Pawan Kumar (PO) at ICD. He has further testified that the accused was arrested at his instance.
6. Sh. Shyam Sunder Soni (PW2) is the complainant and he has testified that he is the proprietor of Shubham Container Service. He has further testified that on 27.10.1997, they had taken the delivery of 63 containers out of 64 containers of their client namely IPCL at container th station. However, in respect of the 64 container bearing no. SC MU200296020, it was informed by the CONCOR officials that the said container had already been loaded in HR29A3665. He has testified that the said trailer did not belong to them and therefore, he lodged the complaint Ex. PW2/A. He has further testified that on 29.10.1997, they saw a truck no. DEL5867 in the parking of ICD and the said registration number was seen to be freshly painted and number HR293665 was also seen on it. The said truck was seized by the police. He has further testified that the accused persons namely Kailash and Ashok were arrested from Prahlad Pur at his instance. He has correctly identified the accused Kailash. He has further deposed that accused Kailash took them Punjabi Bagh and he got arrested coaccused Jagdish. He has deposed that the accused Ram Avtar was arrested at the instance of 4/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
accused Jagdish. He has further deposed that the accused Jagdish and Ram Avtar gave their respective disclosure statements. He has further deposed that accused Kailash took them to VillageGangwa, PSSadar, Hissar, Haryana and got recovered Rs. 5670/ from a room. In his cross examination, he conceded that case property was never recovered in his presence. He also conceded that he was merely a transporter and not the owner of the stolen property. He has testified that the stolen property belonged to IPCL. However, he could not produce any document to show that the IPCL had assigned a contract for the transportation of the stolen property.
7. HC. Kamal Singh (PW3) got the present FIR registered after SI Ved Singh handed over a rukka to him.
8. Ct. Arun Kumar (PW4) has testified that on 29.10.1997, he joined the investigation with IO Sodan Singh and HC Jasbir Singh and they alongwith the complainant went to the parking near container depot where they found a truck bearing registration number DEL5897. He has further deposed that the said truck was freshly painted and the number plate HR293605 was seen on its back ground. The said truck was seized vide seizure memo Ex. PW2/J. Thereafter, they went to Prahlad Pur in search of the accused persons where accused Kailash was apprehended at the instance of the complainant. He has testified that thereafter accused Ashok was arrested and on the basis of his disclosure, accused Jagdish Garg was arrested. Accused Ram Avtar was arrested on the basis of the disclosure of accused Jagdish. Thereafter, they all returned back to the police station.
9. PW5 Sh. Dharam Singh has deposed that in the intervening night of 27/28.10.1997, he was posted as supervisor and was present at the entry gate of ICD container depot, Tuglakabad. At that 5/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
time, a supervisor came and asked him to allow the entry of a vehicle bearing registration number HR29A3665. After entry and loading of the said vehicle, the said supervisor gave him the gate pass whereby he was allowed to exit from the gate. He made entry of gate pass.. He handed over the entry and departure register to the police. He has correctly identified the relevant entry in the copy of the said register. The same is marked as P1. During crossexamination, conducted by Ld. APP for the State, he admitted that the said supervisor was of Shubham Container Service.
10. PW6 Satish Kumar has deposed that In the year 1997, he was the partner of the firm M/s Neha Plastics. He has further deposed that in the same year, somewhere in the month of October, the accused Ram Avtar called him and offered for sale of plastic granules to them. They purchased 400 bags containing 25 kgs of plastic granules each from the said accused for and paid part of the said price to the accused. The remaining/balance sale price was to be paid later as they were already in business terms with each other. Later he came to know from the market as well as from the accused that they were the stolen property. The word 'IPCL' was written on the plastic bags. The said bags were seized by the IO. He has correctly identified the case property and the accused Ram Avtar. His crossexamination was deferred but subsequently, he never appeared in the court for conclusion of his examination.
11. PW7 HC Latoor Singh has deposed that on 01.11.1997, he joined investigation of this case alongwith ASI Sodan Singh and went to godown of accused Islamuddin and Nishar at Pul Prahlad Pur where the IO arrested both the said accused persons. He has further deposed that from the godowns of accused Islamuddin and Nishar, 5 kattas and 6 6/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
kattas of plastic granules respectively were recovered. IO seized the same. Thereafter they returned back to PS and case property was deposited at the malkhana. IO took the accused Kailash from PSKalkaji and all the accused persons went to Ashoka Park, Punjabi Bagh extension and IO prepared the pointing out memo at the instance of accused Kailash. He has further testified that thereafter they went to village Shahapulla alongwith other accused persons and from their instance one container was got recovered and IO seized the same. He has correctly identified the accused persons named Irslamuddin and Nishar. Thereafter, PE was closed.
12. Statements of all the five accused persons U/s 313 Cr.P.C. were separately recorded. All the incriminating evidence against them were put to them for seeking their respective explanations. In the said statements, they have stated that they are innocent and they have been falsely implicated in the present case. They chose not to lead evidence in defence. Therefore, the case was listed for final arguments.
13. I have heard Ld. APP for the State and Ld. Counsel for all the accused persons. I have carefully perused the case file.
14. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
15. In the instant case, the accused persons have been charged for the offence of criminal conspiracy (under section 120B IPC), for the offence of theft (under section 379 IPC), for the offence of dishonestly receiving or retaining stolen property (411 IPC), for assisting 7/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
in concealment of stolen property (under section 414 IPC), offence of using a false property mark (under section 482 IPC) and for the offence of cheating (under section 420 IPC). As per the prosecution, accused persons namely Kailash, Nishar, Islamuddin, Ashok and Pawan Kumar entered into a criminal conspiracy and pursuant to the said conspiracy, they dishonestly induced the supervisor/employees at ICD container depot, Tuglakabad to deliver a container belonging to IPCL to them, which was actually to be delivered to Shubham Container Service (complainant) for its transportation. It is further alleged, the said delivery of container was obtained on a truck bearing false property mark of the registration no. HR29A3665, though its actual registration number was DEL5897.
16. None of the prosecution witnesses has testified that they saw either of the accused persons committing the offence of theft of the said container containing goods belonging to IPCL. Moreover, none of them have identified either of the accused persons to be the person, who dishonestly induced the complainant or the supervisor/employees of ICD container depot to deliver the said container. In a criminal trial, the identity of the accused is of paramount importance. The only evidence for the identification, that has come on record is that on 27.10.1997, the said container was stolen or was got dishonestly delivered by the person who was handling the truck bearing number HR29A3665. None of the prosecution witnesses has testified that the said truck was being driven or was in occupation of either of the accused persons. PW2 Shyam Sunder Soni has testified that on 29.10.1997 i.e. after two days of incident, he saw a truck number DEL5867 in the parking of ICD, which was seen to be freshly painted with the said number and number HR29A3665 was also visible in the 8/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
back drop of the said fresh paint. However, there is no evidence on record to connect the said truck with the truck that was used for the commission of the theft or cheating.
Moreover, the prosecution did not lead any evidence to show the correct registration number of the said truck. Further, no evidence is placed on record to show that accused Kailash and Ashok were the drivers on the said truck. As per PW2 Shyam Sunder Soni, accused Kailash and Ashok were arrested from Prahlad Pur and not at the time of the seizure of the said truck. Thus, there is no evidence to connect either of the said accused persons to the said truck. In view of the above discussion, the prosecution has not only failed to prove that the said recovered truck was used for the commission of the theft or cheating, but it has also failed to prove that the said truck was used by accused Kailash or Ashok to commit the said offence. Hence, there exists no admissible incriminating evidence to hold that either of the accused persons have committed the offence of theft, cheating or false use of property mark. Thus, all of them are entitled to be acquitted for the offence punishable under section 379/420/482 IPC.
17. Now, the only offence that survives for deliberation are the offence punishable under section 411/414 IPC. In a case titled "Mahabir Vs. State of Bihar, AIR 1972 S.C. 642, the Hon'ble Apex Court has held that : "The essential requirement of the offence of receiving stolen property is that the property seized from the possession of the accused must be proved by the prosecution to be stolen".
It is an admitted fact that the complainant has not disclosed in his complaint regarding the material that was contained in the alleged stolen container. Further, it is also an admitted fact that the complainant 9/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
is not the owner of the material that was contained in the container. PW2 complainant Shyam Sunder Soni has testified that the goods contained in the container belonged to IPCL and he was merely a transporter of the said goods. He has failed to place on record any document to show the nature of the goods that were contained in the container. Therefore, though the complainant has testified that container alongwith goods contained in it were stolen but the identity of the goods, its nature or kind was not disclosed. In his complaint dated 28.10.1997 Ex. PW2/A, he has told the number of stolen container to be SCMU200296020. Therefore, as per the complaint, the aforesaid specific container containing unidentified and undisclosed goods was stolen. Therefore, unless it is known as to what is stolen anything, other than the said container, allegedly recovered from the accused persons cannot be termed as a stolen property and thus no value can be attached to it.
18. The prosecution has failed to produce the alleged recovered container. Besides, except PW7 HC Latoor Singh, none of the prosecution witnesses has testified that the said container was recovered from or at the instance of either of the accused persons. PW7 HC Latoor has testified that the same was recovered from Village Shahpulla at the instance of the other accused persons. However, the identity of the other accused persons is ambiguous and it is not clear as to who out of the said seven accused persons, he is referring to be the other accused persons. Furthermore, he has failed to specify the distinct identity of the container that was allegedly recovered from village Shahpulla. Therefore, there is no evidence on record to connect the allegedly recovered container with the stolen container and thus, the alleged recovered container can also not be called a stolen property.
10/12 FIR NO. 725/97PS. OIA U/s. 379/411/420/120B IPC.
Thus, one of the basic ingredient of the offence punishable under Section 411/414 IPC has not been substantiated.
19. As per prosecution, 700 stolen bags of plastic granules were recovered from the possession of the accused Jagdish Garg & Ram Avtar, 6 stolen bags of plastic granules were recovered from the accused Nishar and 7 stolen bags of plastic granules were recovered from the accused Islamuddin. In view of above discussion, the prosecution has failed to substantiate that bags of plastic granules were contained in the stolen container. Therefore, it is not established that the allegedly recovered property was ever stolen. Thus, unless it is established that the said bags were stolen, the possibility of establishing the allegedly recovered bags to be the stolen property is nonexistent.
Moreover, none of the prosecution witnesses including PW2 Shyam Sunder Soni has testified that either of the said bags were recovered from the accused persons in their presence. On the contrary, PW2 has categorically testified that case property was never recovered in his presence. Thus, not only the recovery of the said bags from either of the accused persons has remained unproved but the prosecution has even failed to establish that the allegedly recovered bags were the stolen property.
20. In the wake of above discussion, the prosecution has not only failed to connect the alleged recovered articles with the alleged stolen articles, but even there is reasonable doubt regarding the alleged recovery of articles from the possession of the accused persons. Thus, the prosecution case suffers from material and fatal infirmities and therefore, the accused persons are entitled to benefit of doubt.
21. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against the 11/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
accused persons to bring them within the four corners of the offences punishable U/s 380/411/414/420/120B/34 IPC accordingly, the accused persons namely Kailash, Nishar, Islamuddin, Jagdish and Ram Avtar are acquitted for the abovesaid offences. They are directed to furnish fresh personal bonds in a sum of Rs. 10,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. They have submitted that their respective previous bail bonds and surety bonds be extended for the next six months. The said request is allowed and they are accepted for next six months.
File be consigned to record room with the directions that the same be revived as and when either of the accused persons namely Ashok or Pawan Kumar is arrested and brought before the court for facing trial.
Announced in the open court today i.e. on 02.12.2014 (DHEERAJ MOR) METROPOLITAN MAGISTRATE SAKET/DELHI 12/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
FIR NO. 725/97PS. OIA U/s. 379/411/420/120B IPC.
02.12.2014 Present: Sh. Narender Yadav, Ld. APP for the State.
Accused Kailash, Nishar, Islamuddin, Jagdish and Ram Avtar on bail with their counsel.
Accused Ashok and Pawan Kumar are PO.
Vide my separate judgment announced in the open court today, the accused persons namely Kailash, Nishar, Islamuddin, Jagdish and Ram Avtar are acquitted for the offence under section 380/411/414/420/120B/34 IPC. They are directed to furnish fresh personal bonds in a sum of Rs. 10,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. They have submitted that their respective previous bail bonds and surety bonds be extended for the next six months. The said request is allowed and they are accepted for next six months.
File be consigned to record room with the directions that the same be revived as and when either of the accused persons namely Ashok or Pawan Kumar is arrested and brought before the court for facing trial..
(Dheeraj Mor) MM02/SE/SC/ND/02.12.2014 13/12 FIR NO. 725/97 PS. OIA U/s. 379/411/420/120B IPC.
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