Delhi District Court
State vs . Deepak & Ors. on 10 February, 2020
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-02(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.243/07
PS Timarpur
State Vs. Deepak & ors.
U/s 457/380/411/34 IPC
CNR No. DLCT-02-000253/07
CIS No.291497/16
JUDGMENT
(a) Sr. No. of the Case 291497/16
(b) Date of offence 21-22.04.2007
(c) Complainant Bijender Kumar S/o. Sh. Ajab Singh, R/o. House
No. 398, Gali No.8, Sant Nagar, Delhi.
(d) Accused 1. Sanjay @ Sanju S/o. Sh. Subhash, R/o. House No. 474, K-Block, Shakarpur, Delhi (Convicted).
2. Sanjay Bhati S/o. Sh. Satpal Bhati R/o. Near Apex School, Sant Nagar, Delhi (Proclaimed Offender).
3. Deepak S/o. Sh. Jagdish, R/o. House No. 424, K-Block, Shakurpur, Delhi.
4. Kamal S/o. Sh. Ghanshyam, R/o. House No. K-
425, 2 ½ lane, Shakarpur, Delhi.
(e) Offence 457/380/411/34 IPC (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 26.06.2007 (i) Date when judgment was 10.02.2020 reserved (j) Date of judgment 10.02.2020 FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 1 of 25 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Timarpur against accused persons Sanjay @ Sanjay, Deepak, Kamal and Sanjay Bhati for the offence U/s 457/380/411/34 IPC.
2. It is the case of the prosecution that in the intervening night of 21- 22.04.2007, at House No. 398, Gali No. 8, Sant Nagar, accused persons committed the offence of house breaking by breaking the locks of house belonging to complainant Bijender Kumar with the intention to commit theft. It is further alleged that accused persons entered in the aforesaid premises and committed theft of articles i.e. two water tap, one CD player, some silver coins and cash of Rs. 1000/- (100 notes in denomination of Rs. 10/-) and some other gold articles etc., belonging to complainant Bijender Kumar and thereby committed an offence under Section 457/380/34 IPC.
3. It is further alleged that on 22.04.2007, accused Sanjay was found in possession of one pair bracelet, three kadas, one wrist chain, five silver coins, two pair of Bicchouas (Chutki) belonging to the complainant Bijender which were recovered from House No. 240-K, Block, Shakarpur, Delhi, at the instance of accused which he dishonestly received and retained knowing or having reasons to believe the same to be stolen property and thereby committed an offence under Section 411 IPC.
4. It is also alleged that on 22.04.2007, accused Deepak was found in possession of two water taps, a golden ring, one CD player and Rs. 400/- cash (40 notes in denomination of Rs.10) belonging to complainant Bijender and the same were recovered from his house at K-424, shakurpur, Delhi at the instance of accused which he dishonestly FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 2 of 25 received and retained knowing or having reasons to believe the same to be stolen property and thereby committed an offence under Section 411 IPC.
5. It is further alleged that on 09.05.2007, accused Kamal was found in possession of one golden ring, one silver ring and one pair of bracelet belonging to the complainant Bijender which were recovered from his house K-425, 2 ½ Lane, Shakurpur, Delhi at the instance of accused which he dishonestly received and retained knowing or having reasons to believe the same to be stolen property and thereby committed an offence under Section 411 IPC.
COURT PROCEEDINGS
6. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused persons Sanjay @ Sanju, Deepak, Kamal and Sanjay Bhatti.
7. It is pertinent to mention here that accused Sanjay @ Sanju was convicted and sentenced on pleading guilty vide order dated 25.07.2007 passed by Ld. Predecessor.
CHARGE
8. Thereafter, charge under Section 457/380/411/34 IPC was framed against the accused persons Sanjay Bhatti, Deepak & Kamal vide order dated 15.05.2008 passed by Ld. Predecessor to which they pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 3 of 25
9. Vide order dated 27.11.2007, in compliance with the provisions of Section 294 Cr.P.C the accused admitted genuineness regarding TIP Proceedings of Case Property Ex. PA-1 (colly) conducted by Ms. Nirja Bhatia (Ld. MM). In view of admissions made, the evidence of concerned witness regarding TIP of case property was dispensed with.
10. It is also pertinent to mention here that accused Sanjay Bhati declared proclaimed offender vide order dated 29.10.2018 passed by Ld. Predecessor.
11. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
12. In order to prove the guilt of the accused persons, prosecution examined as many as 12 witnesses.
13. PW-1 is Vijender Kumar, who deposed that on 21.04.2007, after having locked his house, he along with his family member had gone to Baraut, Baghpat, U.P. and had requested to his brother Jitender Kumar to look after his house. He further deposed that on 22.07.2007, at about 6:15 am, his brother Jitender Kumar informed him at telephone regarding theft in his house, that he arrived at his home at about 8:15 am and found that the lock of main gate was broken and jewellery including gold and silver, cash, CD player, camera, fancy water tap etc., had been stolen, that police reached at the spot and recorded his statement Ex. PW-1/A, that some jewellery both male and female, the jewellery items of children three piggy bank made of mud and some other articles which he do not remember were also missing. He further deposed that after the police came at the spot, one broken lock and rod were seized vide seizure FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 4 of 25 memo Ex. PW-1/B, that site plan was prepared by them at his instance, that after about 2-3 days, they were informed about the recovery of stolen articles which he got identified, that he also identified the case property i.e. VCD player, Kodak Camera, bracelet, ear rings the number of which he do not remember, silver anklets, gold chain, gents ring, and other articles which he do not remember were identified by him in the Court, that his wife also accompanied him and she also identified the articles in the court, that the articles were got released by him on superdari, that superdarinama furnished in this regard by him is Ex. PW-1/C and the application in that regard is Ex. PW-1/D. Thereafter, he produced one VCD player of FUGI TPL, one camera in black colour of Kodak, Rs. 10/- notes (with serial numbers 36D 26992, 36D 269927 and 36D 269928, from 36D 269933 to 36D 269940, 36-D 269943 36-D, 269971 and 269991-36D 269998), one silver-coloured bracelet, one pair of silver pajeb, one pair silver children bangles, one single silver children bangle, one pair of silver pajeb with a lock and words VP written on it, two pairs of silver bichua, one ladies sliver ring with a stone in it, seven silver coins (four bearing the pictures of some goddess and three bearing the pictures of king), one golden gents finger ring with a stone in it, one golden gents ring, one ladies golden finger ring, three golden bangles of female, one golden gents bracelet, one ladies gold chain with a pendant, one pair of golden ear rings of ladies, one ear top of gold, one children golden chain with a pendant with words written on its VS and one necklace having a heart-shaped pendant, that all the case properties are correctly identified by the witnesses, that same are Ex. P-1 (collectively).
14. In the cross examination, PW-1 admitted that he do not know from whom the recovery of stolen articles have been made and same have not been recovered in her presence, that the expert of crime team came at the spot and the asked them to leave the spot, that she do not know as to whether any prints were lifted by them or not, that police officials took the FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 5 of 25 photographs of the spot in their presence, that the bills of the stolen articles were also taken away apart from the two bills which were separately kept by him at separate space, that he has brought two golden articles bill which were found by him subsequently, that he do not remember the number of bills which were stolen along with the articles. He denied that he is not the owner of the recovered articles as no bills have been produced by him.
15. PW-2 is Smt. Suman, who deposed that on 21.04.2007, after having locked her house, she along with her family member had gone to Baraut, Baghpat, U.P. and had requested to brother of her husband namely Jitender Kumar to look after the house. She further deposed that on 22.07.2007, at about 6:15 am, her brother in law namely Jitender Kumar informed them at telephone regarding theft in her house, that they arrived at her home at about 8:15 am and found that lock of their main gate was found broken and on searching their house they found that their Almirah were broken and household articles were lying here and there, that several items were stolen including gulak, gold and silver jewellery was missing, cash was missing, CD player and camera was missing and fancy water taps were stolen, that the stolen jewellery consisted of male, female and children, that police was already present at the spot which was called by Jitender Kumar, that she do not remember all the items at the spot but on careful perusal she has given list of stolen articles to the police later on, that same is Ex. PW-2/A, that her statement was recorded by the IO, that after two three days they were informed about the recovery of stolen articles which she got identified, that later on she along with her husband took part in TIP proceedings conducted by Ld. MM, Ms. Neerja Bhatia of case property in which both of them identified their stolen articles including necklace, silver bangles of child, bichwas, gold necklace, CD players, pajeb, golden ring, ladies gold bangles, silver coins, golden ear rings, ear kundals etc. Thereafter, she produced one FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 6 of 25 VCD player of FUGI TPL, one camera in black colour of Kodak, Rs. 10/- notes (with serial numbers 36D 26992, 36D 269927 and 36D 269928, from 36D 269933 to 36D 269940, 36-D 269943 36-D, 269971 and 269991-36D 269998), one silver-coloured bracelet, one pair of pajeb of silver, one pair silver children bangles, one single silver children bangle, one pair of silver pajeb with a lock and words VP written on it, two pairs of silver bichua, one ladies sliver ring with a stone in it, seven silver coins (four bearing the pictures of some goddess and three bearing the pictures of king), one golden gents finger ring with a stone in it, one golden gents ring, one ladies golden finger ring, three golden bangles of female, one golden gents bracelet, one ladies gold chain with a pendant, one pair of golden ear rings of ladies, one ear top of gold, one children golden chain with a pendant with words written on its VS and one necklace having a heart-shaped pendant, that all the case properties are correctly identified by the witnesses, that same are Ex. P-1 (collectively), that she has also brought two bills of gold necklace and same are Ex. PW-2/B (colly).
16. In the cross examination, PW-2 deposed that she do not know from whom the recovery of stolen articles have been made and the same has not been recovered in his presence, that experts of the crime team came at the spot and they asked them to leave the spot, that she do not know as to whether any prints were lifted by them or not, that the police officials took the photographs of the spot in their presence, that the bills of the stolen articles were also taken away apart from the two bills which were separately kept by her at separate space, that she has brought two golden articles which were found by her subsequently, that she do not remember the number of bills which were stolen along with the articles. She denied that she is not the owner of the recovered articles as no bills have been produced by her, that no specification with respect to stolen articles were given to the police. She further deposed that she do not FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 7 of 25 remember the exact number of articles for which she participated in the TIP, that in the TIP proceedings the similar nature of articles in the number of 8 to 10 were shown to her along with articles belonging to her, that she herself identified her articles from the other articles which were kept along with it. She denied that TIP proceedings were not conducted property since the articles were not properly mixed with the resembling articles.
17. PW-3 is ASI Ved Pal, who deposed that on 22.04.2007, he registered the FIR Ex. PA-3/A, that he made endorsement on rukka Ex. PW-1/B.
18. PW-4 is Ct. Satyavart, who deposed that on 22.04.2007, on the receipt of call regarding theft, he accompanied ASI Ravinder Vats to the spot i.e. Sant Nagar, Gali No. 8, House No. 98/92, that the owner of the house namely Vijender met them and he gave his statement regarding theft at his house, that IO/ASI Ravinder recorded his statement and prepared rukka and rukka was handed over to him for registration of FIR, that after registration of FIR, they all started for the search of the accused. He further deposed that one secret informer met them and they went to Gali No. 92, near Apex School where one accused Sanjay @ Sanju whom he was not able to identify due to lapse of time was found, that his personal search was got conducted and from his pant pocket few jewellery articles and some currency notes were recovered, that he arrested the accused vide arrest memo Ex. PW-/A, that personal search is Ex. PW-4/B, that the seized articles were put in the pullinda and sealed with the seal of RV and were seized vide separate seizure memo Ex. PW-4/C, that seal after use was handed over to him, that disclosure statement of accused Sanjay @ Sanju was also recorded vide memo Ex. PW-4/B, that they started search for the accused and at the instance of secret informer the accused Deepak was found to whom he cannot recognize due to lapse of time from the area of Sant Nagar, that the jewellery and one camera were FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 8 of 25 recovered from his personal search, that the said articles were separately sealed in the pullinda with the seal of RV and seized vide seizure memo Ex. PW-4/E, that disclosure statement of the accused Depak was recorded vide memo Ex. PW-4/H, that they all along with other staff members went in search for third accused in the area of Sant Nagar only and accused Sanjay Bhati was apprehended and arrested vide arrest memo Ex. PW-4/I, that personal search of the accused Sanjay Bhati was conducted vide memo Ex. PW-4/J, that disclosure statement of accused Sanjay Bhati was recorded vide memo Ex. PW-4/K, that from the search of he accused jewellery items and cash were recovered, that the same was reduced in to pullanda and sealed with the seal of RV and same was seized vide seizure memo Ex. PW-4/L. He further deposed that one more accused person was arrested on that day but he do not remember from where he was arrested, that he do not remember whether any recovery was effected from him, that all the four accused were taken to PS after getting medically examined at AAA hospital and case property was deposited at the malkhana and all the accused persons were sent to lock up. He further deposed that on 23.07.2007, all the accused persons produced before the Court and their PC was taken, that all the accused persons led them to the spot of offence where the pointing out memo was prepared which is Ex. PW-4/M.
19. In the cross examination by Ld. APP for the State, PW-4 admitted that on 22.04.2007, three accused persons namely Sanjay, Deepak and Sanjay Bhati were arrested, that on 25.04.2007, he again join the investigation in the present case and all the aforesaid three accused persons were also accompanied them. He admitted that on 25.04.2007, they went to Saraswati Vihat at the instance of accused persons and arrested accused Deepak, that the arrest memo of accused Deepak is mark 4-A, that personal search of the accused Deepak was also conducted vide memo mark 4-B, that disclosure statement of the accused was recorded FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 9 of 25 vide memo mark 4-C, that the recovered case property was put in to the pullinda and sealed with the seal of RV, that the seizure memo with respect to the recovered property from the house of Deepak is mark D, that pointing out memo is mark 4-E, that accused was taken to PS after medical examination and case property was deposited in the malkhana. He further deposed that on 24.04.2007, he again join the investigation and accused Sanjay Bhati got recovered one motorcycle from Hardev Nagar near Niranjan's place, that same was seized vide seizure memo. He further deposed that on 28.04.2007, he again join the investigation in the present case and accused Sanjay Bhati got recovered another motorcycle from Sangam Vihar, Wazirabad, the same was seized vide seizure memo mark G, that IO prepared the site plan on 22.04.2007 and the broken locks and rod was seized vide seizure memo Ex. PW-1/B, that seizure memo of accused Sanjay dated 22.04.2007 is Ex. PW-4/N, that disclosure statement of Sanjay is Ex. PW-4/O, that disclosure dated 27.04.2007 of Sanjay is Ex. PW-4/P, that the disclosure statement dated 28.04.2007 of accused Sanjay is Ex. PW-4/Q. He admitted that he is not identify the accused Deepak with conformity due to lapse of time, that the case property is Ex. P-1 (colly). Thereafter, MHC(M) produced one copy of the road certificate issued by the SHO of PS Timarpur regarding the deposition of the recovered lock and rod at the District Nazir Officer, that copy of the marked as Mark Z.
20. In the cross examination, PW-4 denied that he was not the part of the raiding party, that all the proceedings were done while sitting at the PS, that accused persons were arrested from their houses, that nothing was recovered from the possession of the accused persons, that he is deposing falsely.
21. PW-5 is ASI Pushpender, who deposed that on 22.04.2007, he was posted as a HC at PP Jharoda, PS Timar Pur, that he was present at PP FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 10 of 25 Jharoda and DD writer received a call from ASI Ravinder Vats, that he alongwith Ct. Dev went to spot i.e. Apex School, Sant Nagar, as DO instructed them to go to the spot where ASI Ravinder Vats would meet him and they need some police officials at the spot, that on reaching he saw ASI Ravinder along with accused Deepak, accused Sanjay @ Sanjau, accused Sanjay Bhati present at the spot, that on the direction of IO, he got medically examined both the three accused and kept the accused in Civil line PS, that on 25.04.2007, he along with ASI Ravinder and other staff alongwith aforesaid three accused persons went at opposite side of PS Sarswati Vihar i.e. in front of dhai lane park, that on pointing out by three accused toward one person namely Deepak @ Bhugambo present there and disclosed before IO that he was the fourth accused who accompanied them while committing theft at gali no. 8, Sant Nagar, that on point out they apprehended the Deepak @ Bhugambo, that he can identified him, that on cursory search they found some polythene in his hand and found golden ear rings, one camera make of Kodak, one golden chain, that IO seized the case property with the seal of RV vide seizure memo which is marked 4D, that IO alongwith him, other police officials took all the four accused at the PP Jharoda and thereafter, they took Deepak @ bhugamgo at spot where they disclosed that they committed theft, that they all went back at PS Timar pur, that after verification and inquiry they found Deepak @ Bhugambo as juvenile and took JCL before Court, that IO recorded his statement and relieved him.
22. PW-6 is Retired SI Shri Ravinder Vats, who deposed that on 22.04.2007, he was posted as ASI at PP Jharoda, PS Timarpur, that on that day, he received the information vide DD No. 8 regarding theft at Sant Nagar, Burari, Delhi, that he along with Ct. Satyavarat went to spot i.e. Apex School, Sant Nagar, Delhi, that he met with Vijender Kumar who stated the incident, that he recorded the statement of Vijender Kumar which is FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 11 of 25 Ex. PW-1/A, that he prepared rukka which is Ex. PW-6/A and handed over the same to Ct. Satyavart for registration of FIR, that he called crime team at the spot, that he prepared site plan Ex. PW-6/B, that he noticed one broken lock along with one rod and also seized the same vide seizure memo Ex. PW-1/B, that in the meantime, Ct. Satyavrat came at the spot and handed over him the copy of FIR and original rukka, that he recorded supplementary statement of Vijender Kumar, that they searched for accused persons but could not find, that on the basis of secret information, they found one accused namely Deepak at the pointing out of secret informer, that he apprehended the accused Deepak near Apex School, Sant Nagar, Delhi and conducted the cursory search and found jewellery and currency notes of denomination Rs. 10/- toalling Rs. 400/-, some water tap in his possession, that he seized the aforesaid jewellery and sealed the same with the seal of RV and prepared seizure memo which is Ex. PW-4/E, that he arrested the accused Deepak and conducted personal search vide memo Ex. PW-4/F and Ex. PW-4/G, that on the information of secret informer, they apprehended Sanjay @ Sanju from whose possession some articles of jewellery were seized and sealed the same with seal of RV and prepared seizure memo Ex. PW- 4/N, that he arrested the accused Sanjay @ Sanju and conducted personal search vide memos Ex. PW-4/A and Ex. PW-4/B, that they arrested third accused namely Sanjay Bhati at the pointing out of secret informer and conducted personal search vide memos Ex. PW-4/I and Ex. PW-4/J, that he seized some articles of jewellery from his right pocket in his wearing pant and he seized and sealed the same with the seal of RV and prepared seizure memo which is Ex. PW-4/L, that he recorded the disclosure statement of accused Deepak, Sanjay @ Sanju, Sanjay Bhati vide memos Ex. PW-4/H, Ex. PW-4/D and Ex. PW-4/K. He further deposed that on 25.04.2007, they took accused Deepak, Sanjay @ Sanju, Sanjay Bhati near their residence near park, that on pointing out of them, fourth person namely Deepak @ Mukembo (JCL) was FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 12 of 25 apprehended, that on instance of JCL, they recovered jewellery in one polythene which was produced by JCL, that he seized and sealed the same with the seal of RV and prepared seizure memo, that accused Kamal surrender in the court on 08.05.2007, that after interrogation, IO Sunil Kumar arrested the accused Kamal and conducted personal search, that they took accused Kamal on PC remand. He also deposed that he cannot identify the accused Kamal due to lapse of time, that on 09.05.2007, he recorded the disclosure statement of accused Kamal Ex. PW-6/C, that they took accused Kamal at his residence where he pointed out towards the place where he kept the case property, that on checking they found/recovered some articles of jewellery, that he seized and sealed the same with the seal of RV, that he prepared seizure memo Ex. PW-6/D, that at the instance of accused Sanjay Bhati they got recovered some motorcycles from the place of pointing out by accused Sanjay Bhati, that he seized the same under Section 102 Cr.P.C which is Mark G, that on 27.05.2007, he recorded disclosure statement of accused Sanjay @ Sanju vide memo Ex. PW-4/O, that accused Sanjay @ Sanju got recovered the stolen articles i.e. gold bracelet from Shakarpur near his residence, that he seized and sealed the same with seal of RV, that he prepared seizure memo which is Ex. PW-4/C, that case property is Ex. P-1 (colly).
23. In the cross examination, PW-6 deposed that jewellery articles were recovered from the possession of accused Deepak but he cannot say about specific items of jewellery, that he had not taken any receipt from the complainant with regard to the property recovered items from the accused Deepak. He voluntarily deposed that he just clarified the same from complainant. He further deposed that he did not prepare site plan of the place from where the case property was recovered from the possession of accused Deepak and Kamal. He admitted that he had not joined any public witness at the time of recovery qua investigation. He FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 13 of 25 further deposed that stolen articles which were recovered at the instance of accused Kamla was found kept inside the glass and he has not seized the said glass, that he do not remember the description of the jewellery recovered at the instance of accused Kamal, that public persons were present at the time of recovery but none of them joined the investigation despite his oral request, that he had not given any written notice to any public person. He denied that alleged recovery was not affected from the possession or at the instance of accused. He further deposed that he do not remember who were present in the house of accused, that no site plan of the recovery was made. He denied that he had not gone to the house of accused and he prepared all the documents at the police station, that he falsely implicated both the accused by planting the case property upon them, that he is deposing falsely.
24. PW-7 is Inspector Sunil Kumar, who deposed that on 08.05.2007, he came to know that accused Kamal surrender before the Court, that he along with ASI Harender came at Tis Hazari Court and after taking permission from court, he arrested him and conducted his personal search vide memos Ex. PW-7/A and Ex. PW-7/B, that he recorded the disclosure statement of accused Ex. PW-7/C, that after preparing the abovesaid documents, he handed over the custody and case file to ASI Ravinder, that IO recorded his statement and relieved him.
25. PW-8 is Sh. Kamlesh Ram, who deposed on 09.05.2007, he was posted as a Ct. at PS Timar Pur, that he came to know that IO ASI Ravinder Vats took PC remand of accused Kamal and interrogated the accused and he along with Ct. Jugal Kishore were present at PS Timar Pur, that IO recorded the disclosure statement of accused Kamal which is Ex.PW6/C, that they took accused Kamal at the place disclosed by him i.e. K 425, Shakur Pur Basti, that after reaching there, accused Kamal was just ahead of them and went inside the above said house and pointed out FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 14 of 25 towards one Almirah and also opened said Almirah from which accused Kamal took one Glass from which two rings i.e. one ring of Gold and other of Silver along with one pair of anklet (Pajeb) was recovered, that IO sealed the same after preparing the pullinda of same with seal of RV and also given Sl no. F1 to the said pullinda, that IO prepared seizure memo which is Ex.PW6/D, that all case property are EX.P1((Colly).
26. PW-9 is HC Jugal Kishore, who deposed that on 09.05.2007, he was posted as Ct. at PS. Timar Pur, that he along with ASI Ravinder Vats and Ct. Kamlesh Ram were present at PS Timar Pur and accused Kamal was interrogated by ASI Ravinder Vats and recorded the disclosure statement of accused Kamal in his presence and prepared memo which is Ex.PW6/C, that after that, accused disclosed the place from where he can get recovered the case property, that IO along with Ct. Kamlesh took accused at K 425, Shakur Pur Basti, that after reaching there, accused Kamal was just ahead of them and went inside the above said house and pointed out towards one Almirah and also opened the said Almirah from which accused Kamal took one Glass kept inside the Almirah and from which two rings i.e. one ring of Gold and other of Silver along with one pair of anklet (Pajeb) was recovered by accused Kamal, that IO prepared pullinda with white cloth of same and sealed with seal of RV and also given Serial no. F1 to the said pullinda, that after using the seal, same was handed over to him, that IO prepared seizure memo which is Ex.PW6/D, that all case property is Ex.P1((Colly).
27. PW-10 is Inspector Vijay Kumar, who deposed that on 23.04.2007, he was posted as SI at PS Timar Pur, that on the direction of SHO PS Timar Pur, he along with IO ASI Ravinder Vats with other staff took the accused persons namely Sanjay @ Sanju , Deepak and Sanjay Bhati went to Tis Hazari court and produced the above said accused persons before the Hon'ble Court, that IO took two days PC remand of above said accused FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 15 of 25 from which accused Deepak, that after getting two days PC Remand of above said accused persons, he handed over the custody of them to ASI Ravinder Vats. He further deposed that on 25.04.2007, he produced above said 3 accused persons before Hon'ble Court and took further two days PC remand and handed over the custody of them to ASI Ravinder Vats.
28. PW-11 is Dr. Kumud Bharti, who deposed that 14.05.2007, he was posted as medical officer at AAA hospital, that one patient namely Sanjay Bhati brought before him by ASI Ravinder Vats, that he medico legally examined the patient and prepared MLC no. 1003/07 which is Ex. PW11/A, that he further referred the patient to radiologist for opinion regarding bone age, that he also filled up one X-ray form of above said patient namely Sanjay Bhati, that the X-ray report was prepared by Dr. P. S. Kiran, that Dr. Kiran already left the hospital and he can identify her signature and handwriting in X-ray report, that he had worked with Dr. P.S Kiran during his course of duty and seen her while writing and signing different document including x-ray report, that the X-ray report having registration number 11422/07 prepared by Dr. P. S. Kiran which is Ex.PW11/B S. Kiran.
29. PW-12 is HC Dharmender, who deposed that on 28.04.2007, he was posted as Ct. at PS. Timar Pur, that on that day, he along with IO ASI Ravinder Vats was involved in the investigation and IO interrogated the accused Sanjay Bhati, that accused told to the IO that he had stolen one Pulser motorcycle in the starting days of month of January from Gali no.14 near 25 Foota Road, Sant Nagar, Delhi and he wanted to sell the same to one Anil who resides in Rohtak, Haryana, that however, accused Sanjay Bhati could not contact the said Anil, that the accused told that he had parked/hide the said bike in a plot wherein four walls were constructed in Sangam Vihar, Wazirabad and that he can get it recover FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 16 of 25 from there, that accused also disclosed about another motorcycle which is stolen from Gali no.95, Sant Nagar, Delhi and that he had hide the same in field near Rohtak under bushes(pral) and that he come to know that the same has been recovered by police, that IO recorded the disclosure statement of accused and same is Ex.PW4/Q, that IO recorded his statement.
30. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
31. Statement of the accused persons Kamal and Deepak under Section 313 Cr.PC was recorded vide order dated 06.11.2019 by Ld. Predecessor by putting entire incriminating evidence to the accused persons. They denied the allegations against them and stated that they have been falsely implicated in the present case. Accused persons chose not to lead DE, accordingly, defence evidence was closed and matter was fixed for final arguments.
32. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
33. Perusal of the record reveals that accused persons Sanjay @ Sanju (pleaded guilty), Deepak, Kamal and Sanjay Bhati (Declared Proclaimed Offender) were charged with the offence under Section 457/380/411/34 IPC.
34. Section 457 IPC stipulates that:-
FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 17 of 25 "Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment- whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years".
35. Section 380 IPC stipulates that:-
"Theft in dwelling house, etc.- whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
36. Section 411 IPC stipulates that:-
"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".
37. Section 34 IPC stipulates that:-
"Acts done by several persons in furtherance of common intention- when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
38. It is the case of the prosecution that in the intervening night of 21- FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 18 of 25 22.04.2007, at House No. 398, Gali No. 8, Sant Nagar, accused persons committed the offence of house breaking by breaking the locks of house belonging to complainant Bijender Kumar with the intention to commit theft. It is further alleged that accused persons entered in the aforesaid premises and committed theft of articles i.e. two water tap, one CD player, some silver coins and cash of Rs. 1000/- (100 notes in denomination of Rs. 10/-) and some other gold articles etc., belonging to complainant Bijender Kumar and thereby committed an offence under Section 457/380/34 IPC.
39. It is also alleged that on 22.04.2007, accused Deepak was found in possession of two water taps, a golden ring, one CD player and Rs. 400/- cash (40 notes in denomination of Rs.10) belonging to complainant Bijender and the same were recovered his house at K-424, shakurpur, Delhi at the instance of accused which he dishonestly received and retained the stolen articles belonging to the complainant knowing or having reasons to believe the same to be stolen property and thereby committed an offence under Section 411 IPC.
40. It is further alleged that on 09.05.2007, accused Kamal was found in possession of one golden ring, one silver ring and one pair of bracelet belonging to the complainant Bijender which were recovered from his house K-425, 2 ½ Lane, Shakurpur, Delhi at the instance of accused which he dishonestly received and retained knowing or having reasons to believe the same to be stolen property and thereby committed an offence under Section 411 IPC.
41. Perusal of the testimony of PWs reveals that accused persons were nabbed on the basis of secret information received from secret informer, however, the secret information has not been reduced into writing and no DD entry was lodged in this regard for the reasons best known to FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 19 of 25 investigating agency.
42. PW-1 Vijender Kumar, categorically admitted in his cross examination that he do not know from whom the recovery have been made and the case property has not been recovered in his presence.
43. PW-2 Smt. Suman also deposed on the same lines in the cross examination and categorically admitted that she do not know from whom the recovery of stolen articles have been made and the same has not recovered in her presence. By way of aforesaid testimony both the public witnesses failed to depose anything incriminating against the accused persons.
44. PW-4 is Ct.Satyavarat who miserably failed to identify the accused during his cross examination in chief and deposed that at the instance of secret informer accused Deepak was nabbed from the area of Sant Nagar, however, he cannot identify the accused Deepak due to lapse of time. He further deposed that one more accused person was arrested, however, he do not know whether any recovery was effected from him or not thereby he also failed to depose anything incriminating against the accused persons.
45. PW-6 is Retired/SI Ravinder Vats failed to identify accused Kamal due to lapse of time in his examination in chief and categorically deposed that jewellery articles were recovered from the possession of accused Deepak but he cannot tell about the specific items of jewellery thereby he failed to disclosed the particulars of recovered articles in order to prove the genuineness of the recovery. He further deposed that he has not taken any receipt from the complainant with regard to the articles recovered from the accused Deepak and did not prepare site plan of the place from where the case property was recovered which again reflect FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 20 of 25 bad investigation on the part of police officials and raises doubt about alleged recovery. PW-6 also deposed that he has not join any public witness to the recovery of case property and no notice was given to public persons who refused to join the investigation.
46. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining other independent witnesses.
47. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 21 of 25 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 22 of 25 a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused. In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 23 of 25 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
48. PW-6 further deposed that stolen articles were recovered at the instance of accused Kamal from inside the glass but he has not seized the said glass, thereby again reflecting bad investigation on the part of the police officials. He further deposed that he do not remember the description of jewellery articles recovered at the instance of accused Kamal. By way of aforesaid testimony he failed to prove the genuinity of the recovery. He categorically deposed that no site plan of place of recovery of stolen articles was made which again reflect bad investigation and failure to prove the alleged recovery.
49. Other witnesses are formal in nature who cannot prove the guilt of the accused beyond reasonable doubt.
50. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, bad investigation, failure of identification of accused persons Deepak and Kamal as the persons who committed the offence, non examination of public witnesses, absence of site plan of place of recovery prosecution has failed to establish its case against the accused persons Deepak and Kamal beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and accused persons Deepak and Kamal stands acquitted of the offences under Section 457/380/411/34 IPC accordingly.
51. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 24 of 25
52. File be consigned to the record room after due compliance with direction to revive the same on the apprehension of accused Sanjay Bhati. Digitally signed by SHILPI SHILPI JAIN Date:
Pronounced and Signed in the Open Court on 10.02.2020 JAIN 2020.02.11 16:42:07 (Shilpi Jain) +0530 MM-02(Central)/THC/Delhi 10.02.2020 FIR No. 243/07 PS Timarpur State Vs. Deepak & Ors. Page No. 25 of 25