Delhi District Court
State vs . Mohd. Yunus on 12 October, 2011
State Vs. Mohd. Yunus
FIR No. 38/11
P.S. Pul Prahlad Pur
U/s 379/411 IPC
File taken up today as 11.10.2011 was holiday.
ORDER
12.10.2011 Present: Ld. APP for the State.
Accused persons Ajay and Mohd. Yunus are on bail.
Accused Tribhuwan produced from judicial custody.
Today's date is fixed for orders on framing of charge.
I have gone through the file and perused the records of this case. The gist of investigation is contained in the charge sheet which is reproduced in brief as under.
On 8.2.2011 a DD entry no. 40A was received in PS, Pul Prahlad Pur and the investigating officer went to the spot where he did not find the complainant and the DD entry was kept pending. On 9.2.2011 the complainant Vijay Pal Singh, S/o Sh. Hari Singh came to the police station and gave a complaint to SI Mahinder Singh regarding the theft of his truck. The complaint is to the effect that the complainant is a transporter and runs a company in the name of Vijay Transport. He is the owner of one truck bearing no. UP 17B 1651. He has parked his truck at ICD on 8.2.2011 at around 9 pm. At around 11.30 pm he saw that his truck was not there and was stolen. He dialled 100 number and informed the police.
On this SI Mahinder Singh registered a case u/s 379 IPC on 9.2.2011 at around State Vs. Mohd. Yunus @ Raju 1/15 FIR no. 38/11 7 pm and the investigation was assigned to HC Pratap Singh. He went to the spot, prepared site plan, recorded statement of witness and made a wireless message regarding the theft of the truck/ He also informed NCRB (National Crime Record Bureau).
On 10.2.2011 the complainant told the investigating officer that in the cabin of the truck one mobile bearing IMEI no. 354576012459997 was also placed which is also missing. In this respect his supplementary statement was recorded.
On 13.2.2011, complainant telephonically informed the investigating officer that his truck is standing in PS Bewar, District Mainpuri.
On 16.2.2011, Crime Branch, Nehru Place, New Delhi on information arrested the accused Mohd. Yunus and Tribhuwan and registered a case against them i.e FIR no. 38/11 u/s 25 Arms Act. During their arrest in this case, the accused persons have also disclosed the commission of the theft of truck which is the subject matter of the present case. Later on, the truck was brought from Mainpuri by the investigating officer on which fake number plate no. HR 55A 1857 was found. The accused persons who were under judicial custody in PS Crime Branch were called in the Court through production warrant where they were formally arrested and were sent to judicial custody in this case also. Their police custody remand was obtained to arrest the fourth coaccused but in vain. The truck was released on superdari. The mobile phone recovered from the PS Crime Branch was also taken into custody by the investigating officer. It is mentioned by the investigating officer that the accused Ajay Bind was a driver of the complainant and he committed the theft with the aid of the coaccused persons. The mobile phone referred above was recovered by PS Crime Branch. The accused persons also disclosed that they were going to sell the truck in Kanpur and when they were in Mainpuri they saw police. On seeing the police they were scared and ran away from there. The investigating officer on the basis of the investigation filed the State Vs. Mohd. Yunus @ Raju 2/15 FIR no. 38/11 charge sheet u/s 379/411/468/471/482/34 IPC.
The accused Tribhuwan is in judicial custody since the date of his arrest i.e 23.2.2011.
The accused Tribhuwan has submitted that he is in judicial custody for last around 78 months and he be released on the ground of mercy. The other accused persons are not represented by any counsel and therefore, have nothing to say in respect of the charge which is to be framed against them.
Now coming to the investigation and the charge sheet filed by the investigating officer. Truck no.UP 17B 1651 was stolen on 8.2.2011 in respect of which the present FIR was registered on 9.2.2011. There is no delay in the registration of FIR. All the three accused persons were arrested by Crime Branch, Nehru Place on 16.2.2011 and an FIR no. 38/11 dated 15.2.2011 was registered initially against the accused Tribhuwan and Mohd. Yunus. Country made pistol was recovered from them and the initial FIR was u/s 25 of the Arms Act. In this case they have disclosed the commission of the offence of theft of the truck involved in FIR no. 38/11 dated 9.2.2011, PS Pul Prahlad Pur. On the basis of the disclosure statement of these accused persons, Crime Branch police has also arrested the other accused Ajay Bind alolngwith the mobile phone which was stated to have been placed in the cabin of the truck and was stolen alongwith the truck by the accused persons. The accused persons in the present case were arrested by way of production warrant with the assistance of this Court.
All the accused persons are chargesheeted for offence under section 379/411/482/468/471/34 IPC. The only evidence of the commission of the offence of the theft by the accused persons is there joint disclosure/confessional statements. These disclosure statements of the accused persons can be further divided into two parts, one in which the State Vs. Mohd. Yunus @ Raju 3/15 FIR no. 38/11 they confessed the commission of theft and the other where they reveals there knowledge that the vehicle is standing on Baver road, Mainpuri. It is clear that except this confessional statement by all the accused persons there is no evidence against them regarding the commission of the offence of theft. Therefore the question that arose for consideration is that that whether charge can be framed against the accused persons under section 379 IPC on the sole basis of there disclosure statements by making them admissible under section 27 Of the Evidence Act. The answer is "no". The confessional statement by the accused persons that they committed the theft of the vehicle is inadmissible in evidence.
In the case titled as Pulukuri Kottaya vs Emperor AIR 1947 PC 67, Privy Counsel observed while explaining the relationship between section 26 and 27 of the Indian Evidence Act as under.
"The second question, which involves the construction of Section 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms:
25. No confession made to a Police officer shall be proved as against a person accused of any offence.
26. No confession made by any person whilst he is in the custody of a Police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
The explanation to the section is not relevant.
27. Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence 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.
State Vs. Mohd. Yunus @ Raju 4/15 FIR no. 38/11
9.Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of State Vs. Mohd. Yunus @ Raju 5/15 FIR no. 38/11 information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
10. Recently the Hon'ble High Court of Delhi has also cautioned in relying upon the disclosure/confessional statement to sustain the charge in Chander Shekhar @ Shekhar Vs. State (Govt. of NCT of Delhi) Criminal Appeal no. 346/2011 as;
"Section 25 of the Evidence Act places a bar to the admissibility of any confessional statement made by an accused to a police officer. Section 26 goes further and bars a confessional statement made to any person other than a Magistrate if the accused is in police custody. Section 27 is in the form of a proviso to section 25 State Vs. Mohd. Yunus @ Raju 6/15 FIR no. 38/11 and 26 and provides for admission of so much part of the information given by an accused, whether it amounts to a confession or not, as it relates distinctly to the facts thereby discovered. Thus, there is partial lifting of ban against confessions and statements made to the police, if a fact is actually discovered in consequence of an information given by an accused limited to the discovery.............".
The spirit of these judgments referred above is that even if any recovery is effected on the basis of any disclosure statement/confessional statement, the whole of the disclosure statement/confessional statement does not become admissible in evidence.
Therefore as far as the offence u/s 379 IPC is concerned, as discussed above there is no eye witness regarding the commission of the theft of the vehicle by the accused persons and the whole case of the prosecution rests on the inadmissible part of the disclosure statement. There is no eye witness regarding the commission of the theft. The accused Mohd. Younus and Tirubhuwan were arrested in some other case and there disclosed/confessed the commission of theft. Nobody has seen them committing theft of this vehicle .Therefore, the charge u/s 379 IPC against the accused persons cannot be framed on the sole basis of there disclosure statements.
In the State of Bihar V. Ramesh Singh 1977 CriLJ 1606 it was observed that at the initial stage of the framing of a charge, if there is a strong suspicionevidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
State Vs. Mohd. Yunus @ Raju 7/15 FIR no. 38/11 In Union of India v. Prafulla Kumar Samal and Anr. 1979 CriLJ 154 , the Hon'ble Court after considering the scope of Section 227 observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a postoffice to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their facevalue establish the ingredients constituting the said offence. After considering the case law on the subject, the Court deduced as under:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of indingout whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the court disclose grave suspicion against the accused which has hot been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code of judge which State Vs. Mohd. Yunus @ Raju 8/15 FIR no. 38/11 under the present Code is a senior and experienced judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In the present case also if the evidence as collected by the investigating agency and relied on by the prosecution is believed then there is nothing against the accused persons to establish the charge against them for offence under section 379 IPC.
In the case titled as Satish Mehra Vs. Delhi Admn. & Anr. 1996 JCC 507, Hon'ble Supreme Court of India has ruled that :
"In a case, where, there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on the future date."
Therefore, on the basis of aforesaid discussions, the accused persons are discharged for offence under u/s 379 IPC.
As far as offence u/s 411 IPC is concerned, to bring home the charge u/s 411 IPC it is the duty of the prosecution to prove that the stolen property was in possession of the accused, that some person other than accused had possession of the property before the accused got possession of it and the third that the accused had knowledge that the property was stolen property. This was held by Hon'ble Supreme Court of India in Trimbak Vs. State of M.P AIR 1954 SC 39.
The three essential ingredients of offence under section 411 IPC are held to be State Vs. Mohd. Yunus @ Raju 9/15 FIR no. 38/11
(a) that the stolen property was in possession of the accused,
(b) that some person other than the accused had possession of the property before the accused got possession of it, and
(c) that the accused had knowledge that the property was stolen property. In the present case there was a joint confessional/ disclosure statement of both the accused persons. In Oudh Ram And Others vs The State 1982 CriLJ 1656, 22 (1982) DLT Hon;ble Delhi high court observed Lastly, there is evidence of joint disclosure made by Ram Narain and Shiv Poojan during the course of interrogation that they had sold the gold chain and earrings/tops to a goldsmith of Sabzi Mandi and that they could get the same recovered (Ex. P.W. 17/A). It was consequent upon this disclosure that they led the police party to the shop of their coaccused, Jagdish and the latter produced gold earrings weighing 5.400 gms. (Ex. P. 83/12) which have been identified by Smt. Raj Kumari to be hers. Jagdish accused has already been let off and acquitted by the trial court by giving him benefit of doubt. The question would naturally arise that in the absence of any evidence to show which of the accused made the disclosure first, will it be permissible to the prosecution to press the joint disclosure made by both Ram Narain and Shiv Poojan under Section 27 of the Evidence Act ? It is well settled that Section 27 must be very strictly construed. The expression "form a person accused of any offence"
appearing therein is significant and it seems to have been used designedly because a joint statement of a number of persons cannot be said to be an information received from any particular one of them. As a necessary corollary, facts discovered in consequence of joint information cannot be used as against any one of them. This proposition received the seal of State Vs. Mohd. Yunus @ Raju 10/15 FIR no. 38/11 approval of the Supreme Court in Ramkishan Mithanlal Sharma Vs. State of Bombay. In the said case, reference was made to the observations made by the Bombay High Court in Rex v. Gokulchand Dwarkadas Morarka (Appeals Nos. 454 & 464 of 1949). An exception was taken before the Bombay High Court to the statement of the police officer that in consequence of certain statements made by accused Nos. 1 & 2 in that case, he discovered the missing pages of the Bombay Samachar of 23rd April, 1948 and it was contended that that statement was inadmissible in evidence. This objection was sustained by the learned Judges on the ground that : "..... this is a round about and objectionable way of attempting to prove the statements made by the accused without actually proving them. When the police officer speaks of "in consequence of a statement made by an accused a discovery was made," he involves the accused in the discovery. Whether he gives evidence as to the actual words used by the accused or not, the connection between the statement made by the accused and the discovery of the relevant fact is clearly hinted at. In our opinion, therefore, evidence cannot be given of any statement made by accused which results in the discovery of a fact unless it satisfies the conditions laid down under Section 27 and this would be so even if the actual statement is not attempted to be proved by the prosecution. Even if the statement is not proved, the statement is not proved, the statement must be such as can be proved under Section 27."
23. Their Lordships of Supreme Court while disagreeing with the line of argument put forth by the learned Judges of the Bombay High Court said that : State Vs. Mohd. Yunus @ Raju 11/15 FIR no. 38/11 "The question that really arose for the consideration of the Court there was whether the joint statement attributed to the accused 1 and 2 in that case was admissible without specifying what statement was made by a particular accused which led to the discovery of the relevant fact and it was rightly held that a joint statement by more than one accused was not contemplated by S. 27 and the evidence of Mistry, the Police Officer, in that behalf should, therefore, have been excluded."
24. Reference in this context be also made to Babu v. State. 1972 Cri LJ 815 (a Bench decision of Allahabad High Court) and Prem Bahadur Rai v. State of Sikkim, 1978 Cri LJ 945.
25.Thus, the recovery of the gold tops from Jagdish cannot be said to have taken place in consequence of the disclosure made by either of these appellants as contemplated by Section 27 of the Evidence Act. At best, it may be admissible to prove their conduct, namely, that they had knowledge about the gold tops being with Jagdish but in view of the defense raised by the latter and the benefit of doubt granted to him, this circumstance is hardly of any evidentiary value.
In the present case, stolen vehicle was not recovered from the possession of the accused persons nor it can be said that it was recovered on the basis of the disclosure statements made by them as the complainant had already informed the investigation officer prior to the arrest of the accused persons that that the truck was standing in Mainpuri . At most it can be said, while relying upon the disclosure statements of the accused persons that they were aware of the whereabouts of the vehicle in question. But as discussed above, it not the knowledge but the possession of the stolen article which constitute the offence under section 411 IPC. In the present case there is no evidence that the accused State Vs. Mohd. Yunus @ Raju 12/15 FIR no. 38/11 persons received, retained or possessed the stolen vehicle. Not only this the charge under section 379 and 411 IPC can not go hand in hand. As far as the offence u/s 411 IPC is concerned, it prescribes penalty for dishonest receipt or retention of stolen property knowingly or having reasons to believe the same to be stolen property. This section is not directed against the principal offenders example a robber but against the class of persons who trade in stolen articles or are receivers of stolen property. Principal offenders are outside the scope of this section The theory of the police is that the accused persons are principle offenders and therefore is self contradictory. Therefore it is a case of no evidence against the accused persons The vehicle was recovered from police station,Mainpuri. The disclosure statement was recorded on 15.2.2011 and as per the case diaries filed by the investigation officer, this vehicle was recovered by police station, Baver U.P on 10.2.2011. Therefore, it is clear that this vehicle was recovered prior to the disclosure statement of the accused persons persons and the case of the prosecution cannot be covered under section 27 of the Evidence Act because neither the vehicle was recovered in consequence of the information in disclosure statement nor when the vehicle was recovered , the accused persons were in custody of the police. Under section 27 of the Evidence Act fact deposed to as discovered should be in consequence of information received from a person accused of any offence in the custody of a Police officer. Therefore, the charge u/s 411 IPC regarding the recovery of the vehicle could not be made out against the accused persons as the recovery is not pursuance to the disclosure statement. The recovery was already effected though by the police of some other jurisdiction. Not only this the recovery was effected from a place which appears to be accessible to all and if not,if its a private place there is nothing on record that who was the owner or in possession of the place from where the vehicle was recovered. The only evidence of this fact is their disclosure statement but since no fact has been discovered in pursuance of State Vs. Mohd. Yunus @ Raju 13/15 FIR no. 38/11 the disclosure statement which is not admissible u/s 27 of the Indian Evidence Act. Therefore, charge regarding the receiving or retaining stolen property of the vehicle against the accused persons is also not made out.
As far as offence u/s 468/471/48234 IPC are concerned, the only allegation is that the investigating officer brought the vehicle from PS in Mainpuri. He found that a fake number plate was there on it. There is no evidence that that accused persons used this vehicle with the forged number plate. There is no evidence that this number plate was forged by the accused persons nor is there any evidence that it was used by the accused persons as discussed above. Therefore, there is no evidence against the accused persons under this section also.
For the aforesaid reasons there is no admissible evidence as the evidence collected during investigation are inadmissible in nature.
In view of the aforesaid discussions, the accused persons are discharged for offence u/s 379/411/482/34 IPC.
Lastly the mobile phone is stated to have been recovered from one of the accused Ajay Bind by Crime Branch police but for that, FIR of PS Crime Branch has already incorporated that section as is evident from one of the document in file i.e seizure memo of the mobile phone. Therefore, it is clear that the Nehru Place crime branch police has already incorporated section 411 IPC in their FIR and the accused would then be facing trial for offence u/s 411 IPC in that case also. Recovery was also made in that FIR. Although the mobile phone was stolen from the jurisdiction of police station, Pul Prahlad Pur and this Court could try the accused for offence of recovery of mobile phone u/s 411 IPC but since section 411 IPC has already been incorporated by police station, Crime Branch, the accused cannot State Vs. Mohd. Yunus @ Raju 14/15 FIR no. 38/11 be burdened with this offence again as this will amount to double jeopardy which is constitutionally prohibited. In view of clause 5 of section 181 of the Criminal Procedure Code "any offence which includes the possession of stolen property may be inquired into or tried by a Court withing whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reasons to believe the same to be stolen property".
However, as a matter of caution, the investigating officer is directed to intimate the Court dealing with PS, Crime Branch regarding today's order of the discharge of the accused u/s 411 IPC also so that the accused can be tried for section 411 IPC for the recovery of mobile phone in the Court dealing with PS, Crime Branch.
Copy of this order be given to the investigating officer under due acknowledgment.
File be consigned to record room.
( Samar Vishal)
MM05 (SE), New Delhi/12.10.2011
State Vs. Mohd. Yunus @ Raju 15/15 FIR no. 38/11