Delhi District Court
State vs . Ramesh Kumar, Fir No. 749/00, U/S : ... on 17 December, 2013
State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATEIV, (DISTRICT NORTH), ROHINI COURTS, DELHI. FIR NO. 749/00 PS: MODEL TOWN U/S 379/411 IPC STATE VS. RAMESH KUMAR J U D G M E N T
A. SL. NO. OF THE CASE : 179/01/00
B. COMPUTER ID NO. : 02404R0261592001
B. DATE OF OFFENCE : 17.12.2000
C. DATE OF INSTITUTION : 16.08.2001
D. NAME OF THE COMPLAINANT : Ashish S/o Sh. Manik
E. NAME OF THE ACCUSED : Ramesh Kumar
S/o Sh. Mool Chand
F. OFFENCE COMPLAINED OF : U/s 379/411 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal
I. DATE OF SUCH ORDER : 17.12.2013
Brief Statement of Reasons for Decision:
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on Page No. 1/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town 17.12.2000, the complainant Sh. Ashish gave a written complaint, wherein he alleged that in the intervening night of 16/17.12.2000, his motorcycle bearing No. BR14H5376 was stolen by some unknown person from front of his house bearing No. 6/5A, Double Storey, Vijay Nagar, Delhi. On the basis of the said complaint, the present FIR u/s 379 IPC was lodged at PS Model Town, Delhi. Subsequently, on 24.02.2001, accused Ramesh Kumar was apprehended by the Special Staff, PS Kamla Market, Delhi with the above stolen Hero Honda motorcycle, which was retained or received by him with a dishonest intention knowing or having a reason to believe it to be a stolen property. It is pertinent to mention here that the recovered motorcycle was having fake number plate bearing registration number DL7SL2096, but the same was confirmed to be the stolen property after comparing and matching the engine number and chasis number of the recovered motorcycle with the said respective numbers of the stolen motorcycle. Thereafter, he was arrested in the present case and the offence u/s 411 IPC was also incorporated. After conclusion of investigation, the present challan u/s 379/411 IPC was filed against the accused.
2. In compliance of Section 207 Cr.P.C., the copy of the challan and the documents annexed therewith were supplied to the accused Ramesh Kumar. Prima facie charge u/s 411 IPC was made out against the accused. Accordingly, on 24.01.2003 the charge was framed by the Ld. Predecessor of this court. Accused pleaded not guilty to the said charge and claimed trial. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined six witnesses.
4. ASI Vinod Kumar (PW1) has deposed that on 17.12.2000, he was posted as DO at PS Model Town, and on that day on receipt of rukka from Ct. Dinesh Kumar sent by ASI Ram Murti, he registered the present FIR at PS Model Town, Delhi. He has proved the copy of this Page No. 2/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town FIR as Ex. PW1/A.
5. SI Ram Murti (PW2) is the IO of the case and he has deposed that on 17.12.2000, he was posted as ASI at PS Model Town, Delhi. He has further deposed that on that day on receipt of DD no. 17B he alongwith Ct. Dinesh reached at house no. 6/5A, Double Storey, Vijay Nagar, Delhi and met the complainant Sh. Ashish and recorded his statement. He has further deposed that he prepared rukka Ex. PW2/B and the same was handed over to Ct. Dinesh for the registration of the FIR. He has further deposed that further investigation of the present case was marked to HC Suresh.
6. Ct. Dinesh Kumar (PW3) has deposed on the similar lines as that of PW2 SI Ram Murti. Therefore, his testimony is not reproduced herein for the sake of brevity and to avoid repetition.
7. HC Suresh Kumar (PW4) is the second IO and he has deposed that on 17.12.2000, he was posted as HC at PS Model Town, Delhi and on that day further investigation of the present case was marked to him. He has further testified that he alongwith Ct. Dinesh went to spot i.e. H.No. 6/5A, Double Storey, Vijay Nagar, Delhi and met the complainant. He has proved the site plan as Ex. PW4/A. He has further deposed that on 26.02.2001, an information regarding recovery of stolen motorcycle and apprehension of the accused was received at PS Model Town from PS Kamla Market, Delhi. He has further testified that on the same date, he moved an application for issuance of production warrants of the accused Ramesh Kumar. He has further testified that on 27.02.2001, he formally arrested accused Ramesh Kumar with the permission of the court vide arrest memo as Ex. PW4/B. He has further deposed that on 03.03.2001, he got the recovered motorcycle transfered from the malkhana of PS Kamla Market to PS Model Town, Delhi vide RC No. 230/21/01.
8. Inspr. Dharmender Kumar Singh (PW5) has deposed that on 24.02.2001, he was posted as SI at Special Staff Central Distt., Kamla Page No. 3/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town Market, Delhi. He has further deposed that he received information from SI Vivek Pathak, Spl. Staff regarding recovery of a stolen motorcycle and he is required to join in the investigation. He has further deposed that thereafter he reached at the spot i.e. Asaf Ali Road, near Ajmeri Gate Chowk, Delhi, where he met SI Vivek Pathak and accused Ramesh Kumar, who were present alongwith motorcycle bearing No. DL7S L2096, black colour. He has further testified that SI Vivek Pathak handed over the seizure memo to him and he prepared site plan at his instance. He has further testified that in the meanwhile Ct. Sunder Gautam reached at the spot alongwith copy of FIR and original rukka. He has further testified that he wrote FIR no. on the seizure memo in his handwriting. He has further deposed that he recorded the statement of SI Vivek Pathak and thereafter he was relieved alongwith motorcycle to be deposited in the malkhana of PS Kamla Market. He has further testified that on the next day, HC Suresh visited the office of Spl. Staff and the custody of the accused alongwith the relevant documents were handed over to him.
9. Inspr. Vivek Pathak (PW6) is one of the recovery witness of the motorcycle. He has deposed that on 09.03.2001, he was posted as SI at Spl. Staff, Center Distt., Kamla Market, Delhi and on that day he alongwith Ct. Sunder Gautam left Spl. Staff Office at about 3:50 pm, for area patrolling. He has further testified that at about 4:15 pm, when they reached at Hamdard Chowk, an informer informed him that two persons, who were the resident of Mauz Pur, Delhi are looking to sell a stolen motorcycle at Ajmeri Gate Chowk. He has further deposed that he asked 34 public persons to join the raiding party, but none agreed and left the spot without disclosing their names and addresses. He has further testified that at about 4:30 pm, they reached at Ajmeri Gate and saw two boys sitting on a motorcycle. He has further deposed that on seeing the police party, the other boy, who was sitting on the back seat ran away and on suspicion they immediately apprehended the other boy who was Page No. 4/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town sitting on the driver seat of the said motorcycle bearing No. DL7SL2096. He has further deposed that the name of the boy was revealed to them as Ramesh. He has further testified that the accused was asked to produce the documents of the said bike, but he could not produce the same. He has further deposed that after noting the engine and chasis number of the bike, he made inquiry about the said motorcycle and on inquiry it was found to be a stolen property. He has further deposed that he seized the said motorcycle vide memo marked as markX. He has correctly identified the accused. Thereafter, PE was closed.
10. Statements of the accused U/s 313/281 Cr.P.C. was separately recorded. All the incriminating evidence against him were put to him for seeking his explanation. In the said statement, he has stated that he is innocent and he has been falsely implicated in the present case. He chose not to lead evidence in defense. Therefore, the case was listed for final arguments.
11. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have carefully perused the case file.
12. 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.
13. In order to bring home the guilt of the accused u/s 411 IPC, the prosecution is required to prove the following ingredients of the said section:
(i) That the property in question is stolen property;
(ii) That the said property is identical with the property said to be stolen;
(iii) That the accused received or retained such property;
Page No. 5/11State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town
(iv) That the accused while receiving or retaining such property knew or had reason to believe the same to be stolen property;
(v) That the accused acted dishonestly.
14. The prosecution is required to prove that the property recovered from the possession of the accused is a stolen property. 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".
In the instant case, the prosecution has alleged that motorcycle bearing no. BR14H5736 was stolen in the intervening night of 16/17.12.2000. However, neither the complainant Sh. Ashish has appeared in the court nor the stolen motorcycle was ever produced in the court. In absence of the testimony of the complainant Sh. Ashish, the prosecution has failed to establish that the alleged motorcycle was ever stolen. Moreover, no evidence has been led to prove as to who is the registered owner of the alleged stolen motorcycle. For establishing that the property recovered is a stolen property, there is a precondition that the theft of the said property must have been committed prior to its recovery. In the instant case, the theft of the motorcycle has not been substantiated. Thus, the prerequisite of the offence punishable u/s 411 IPC is glaringly missing.
15. The alleged recovered motorcycle was seized by PW6 Inspr. Vivek Pathak on 24.02.2001 vide seizure memo marked as markX. However, the said recovery witness has testified that the recovery was effected on 09.03.2001. It itself is a material contradiction that is sufficient for creating doubt in the story of the prosecution. Besides, the original seizure memo of the said motorcycle was never placed on record. Furthermore, its whereabouts were also not revealed by the prosecution. The seizure memo markX is merely a photocopy of the Page No. 6/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town original seizure memo and therefore, it is not a primary document / evidence. Section 64 Evidence Act, 1872 provides that documents must be proved by primary evidence except in the cases hereinafter mentioned. The seizure memo markX does not fall within any of the exceptions mentioned in the said Act as it is not covered under Section 65 of the said Act. Thus, the said seizure memo is not admissible in evidence and therefore, it has remained unproved. The entire case of the prosecution is based upon the recovery of stolen motorcycle vide seizure memo markX and unless the said seizure memo is substantiated, the accused cannot be held liable for the offence punishable u/s 411 IPC.
16. The said recovered motorcycle never saw light of the day as it was never produced in the court. Besides, even the photographs of the said motorcycle were never produced and shown to the prosecution witnesses. The prosecution has also failed to place on record the entry of register no. 19, vide which the aforesaid motorcycle was deposited in the malkhana of PS Kamla Market, Delhi. Besides, the relevant entry of register no. 21 has also not been proved to show that the said motorcycle was ever transfered from the malkhana of PS Kamala Market, Delhi to the Malkhana of PS Model Town, Delhi. Therefore, it has not been established whether any motorcycle (leave aside stolen motorcycle) was ever recovered from the possession of the accused on the alleged date of incident.
17. The motorcycle that was allegedly recovered from the accused was found to be having a different registration number. The prosecution has asserted that the recovered motorcycle is the stolen property and the said fact was revealed after the engine number and chasis number of the recovered motorcycle were compared and matched with the respective numbers of the stolen motorcycle. However, the prosecution has failed to place and prove on record the registration certificate of the stolen motorcycle to establish its engine number and chasis number. Besides, no witness from concerned transport authority Page No. 7/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town of the stolen motorcycle has been examined to establish the same. Hence, there is no evidence on record to suggest or connect the recovered motorcycle with the stolen property. Thus, it cannot be held with certainty that the recovered motorcycle is a stolen property.
18. The prosecution has averred that the recovery witnesses were on patrolling on 24.02.2001 i.e. the alleged date of recovery of the motorcycle. The recovery witnesses i.e. PW6 Inspr. Vivek Pathak in his examinationinchief, has deposed that he alongwith Ct. Sunder Gautam was on patrolling duty at the time of recovery of the motorcycle. However, the prosecution has failed to place and prove on record the departure entry of the said witnesses vide which they allegedly together left the Spl. Staff office for the purpose of patrolling. The said departure entry is indispensable for establishing their presence at the spot of alleged recovery the motorcycle. Therefore, their presence at the alleged place, time and date of recovery of the motorcycle, is doubtful.
19. The alleged recovery of motorcycle is stated to be effected from the accused at 4:30 pm, at Ajmeri Gate Chowk, Delhi. It is an admitted fact that the alleged place of recovery is a crowded area and therefore, it can be conclusively inferred that many public persons must have been present at the time of alleged recovery. Had the recovery witnesses would have made effort they could have easily joined public/independent witness at the time of recovery. However, in their wisdom they preferred not to join any public witness despite of their availability. The recovery witnesses have also failed to advance any justifiable reason for non joining of independent/public witness at the time of alleged recovery of the motorcycle from the accused. Hence, story of the prosecution is further shrouded in suspicion.
20. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The recovery witnesses that are examined by the prosecution in the present case are police witnesses, Page No. 8/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness at the time of alleged recovery of the motorcycle creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court
21. The reliance can also be placed upon the findings given by Hon'ble Apex Court in case titled as Harjit Singh V. State of Punjab [2002]SUPP1SCR581wherein it is held: ".........50 Apart from the versions of eyewitnesses discussed above, the trial court attached importance to the fact that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered under memorandum Ext. P19. We have referred to the statement of Investigating Officer Puran Singh (PW9). He is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statement Ex.PV and memorandum of recovery Ext. PU1. We have noted that these memoranda have been signed only by two police officers Faqir Chand and Virsa Singh. It is unbelievable that all the accused persons who have alleged to use their firearms/weapons kept all the arms concealed in an open field in a gunny bag under the heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of disclosure Page No. 9/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied on by the trial court to convict the accused by treating it as eyewitness account."
I also find support from case titled as Aslam Parwez V. Govt. of NCT of Delhi 2003CriLJ2525 Hon'ble Supreme Court has held:
"10......In view of these features of the case, we are of the opinion that the testimony of three police personnel, namely, PWs 10, 11 and 1 does not inspire confidence and it will be highly unsafe to place reliance upon the same in order to convict the accused specially when the public and independent witnesses did not at all support the prosecution case on any material particular."
22. Keeping in view the fact that the version of the recovery witnesses has remained uncorroborated by any other independent witness regarding the alleged recovery of the stolen motorcycle, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
23. In the wake of above discussion, the prosecution has not only failed to prove the factum of the recovery of stolen motorcycle from the accused but, it has also failed to establish that any motorcycle was ever recovered on the alleged date, time and place. Moreover, the prosecution has even failed to substantiate that any motorcycle as alleged was ever stolen. Further, the prosecution has failed to establish the basic and material ingredient of the offence punishable u/s 411 IPC i.e. the recovered motorcycle is a stolen property of this case. Thus, the prosecution case suffers from material and fatal infirmities and therefore, Page No. 10/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town the accused is entitled to benefit of doubt.
24. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against the accused Ramesh Kumar to bring him within the four corners of the offence punishable U/s 411 IPC. Accordingly, the aforesaid accused is acquitted for the offence punishable U/s 411 IPC. He is directed to furnish fresh personal bond in the sum of Rs. 10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bond and surety bond be extended for the next six months. The said request is allowed and they are accepted for the next six months.
File be consigned to Record Room after due compliance.
Announced in the open court today i.e. on 17.12.2013. (DHEERAJ MOR) METROPOLITAN MAGISTRATEIV (DISTRICT NORTH) ROHINI/DELHI Page No. 11/11 State Vs. Ramesh Kumar, FIR No. 749/00, U/s : 379/411 IPC, PS: Model Town FIR No. 749/00 PS: Model Town U/S 379/411 IPC State Vs. Ramesh Kumar 17.12.2013 Present: Ld. APP for the State.
Accused Ramesh Kumar on bail with Counsel.
Statement of the accused U/s 313/281 Cr.P.C. is separately recorded. He has chosen not to lead evidence in defence.
Final arguments are heard. Case file is perused.
Vide my separate judgment announced in the open court today, the accused Ramesh Kumar stands acquitted for the offence punishable U/s 411 IPC. He is directed to furnish fresh personal bond in the sum of Rs. 10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bond and surety bond be extended for the next six months. The said request is allowed and they are accepted for the next six months.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/North/Rohini/Delhi 17.12.2013 Page No. 12/11