Delhi District Court
State vs . Chand @ Chandu & Others on 3 July, 2013
FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC IN THE COURT OF SH. JITENDRA SINGH, METROPOLITAN MAGISTRATE: NORTH EAST-04: KARKARDOOMA COURTS,DELHI FIR No. 09/2006 PS: Gokal Puri U/s. 380/411/34 IPC Dated: 03.07.2013 Case ID: 0240144932006 STATE VS. CHAND @ CHANDU & OTHERS Date of Institution : 19.09.2006 Date of Commission of offence : 04.01.2006 Name of the Complainant : Sh. Mehboob Name parentage and address of the accused persons : (1) Chand @ Chandu S/o Sh. Mohd. Dowed, R/o; 20 foota Road, Near Mazhid, Prem Nagar, Loni, Ghaziabad, UP. (2) Zakir S/o Sh. Maksood, R/o; Farukhiya Mazid, Prem Nagar, Loni, Ghaziabad, UP. Offence Complaint of : U/s. 380/411/34 IPC Plea of the accused persons : Pleaded not guilty. Final Order : Acquitted. Judgment reserved on : 03.07.2013. Date of judgment : 03.07.2013. JUDGEMENT
FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 1/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 09/2006, PS Gokal Puri. The case of the prosecution as per the complaint of the Complainant that on 04.01.2006 at 6.05 PM at Shop No. 4, Gali No. 5, Husnin Market, Main Road, Purana Mustafabad, Delhi, accused persons in furtherance of their common intention committed theft of mobile phone make Reliance LG, Silver colour, connectiuon no. 9313542928 belonging to the complainant Mehboob and thereby accused persons committed an offence punishable under Section 380/34 IPC and on pursuant to the disclosure statement of accused Chand, accused Zakir got recovered or retained mobile phone belonging to the complainant, which you accused persons received or retained having reason to believe same to be stolen property. Therefore, accused Zakir has committed an offence punishable under Section 411 IPC. The accused persons pleaded not guilty and claimed trial.
2. On conclusion of the investigation, a charge sheet was filed against accused persons U/s. 380/411/34 IPC. Thereafter, a charge Under Section 380/411/34 of IPC was framed against accused persons on 30.04.2007, to which they pleaded not guilty and claimed trial.
3. The prosecution has examined five witnesses in all in the present case.
The deposition of witnesses is touched upon in brief as under to have a better appreciation of the case.
PW-1 is ASI Satyavir Singh, who had proved the FIR bearing no. 09/2006, which is Ex. PW1/A. The said witness was not cross examined by Ld. defence counsel for the accused.
FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 2/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC PW-2 is complainant Sh. Mehboob, who had deposed that the incident had occurred on 4th January, 2006. On that day, at about 6/6.15 PM, he was present at his mobile shop at Old Mustafabad. PW-2 deposed that both the accused persons came at his shop and asked him to show mobile phones. He showed them 3-4 sets of mobile, but they asked him to show other mobiles also. PW-2 deposed that he kept his mobile phone on the counter and turned back to take out other mobile phones to show them. In the meantime one of the boy slipped away taking his mobile phone. PW-2 deposed that he asked the other boy about the boy, who left the shop alongwith his mobile phone, but he stated that the boy who left the shop, was not with him. PW-2 deposed that he caught hold the boy and interrogated him, who told his name as Chand and told that the other boy left the shop after taking the mobile, was his friend. Immediately, he called on the police. Police came and recorded his statement as Ex. PW2/A. PW-2 further deposed that his mobile phone was made of Reliance LG-2130 and he handed over the boy to the police. PW-2 further deposed that the accused was arrested vide memo Ex. PW2/B and his personal search was also conducted vide memo Ex. PW2/C. PW-2 further deposed that the accused disclosed that his mobile phone is at Loni and also disclosed the name of the other accused as Zakir. Disclosure statement is Ex. PW2/D. PW-2 further deposed that he had also handed over the original receipt of the mobile phone, which was seized by the police vide Ex. PW2/E. The said witness was cross examined by Ld. APP for the State as well as Ld. counsel for defence.
PW-3 is HC Vinod Kumar, who had deposed that on 04.01.2006, he was posted at PS Gokalpuri as Constable. On that day, he alongwith IO and Ct. Umesh Kumar were on patrolling duty at Old Mustafabad. At about 6.10 PM, one passerby told them that one thief has been caught hold at FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 3/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC Gali No. 5, Main Road at Shop of Mobile. PW-3 deposed that they reached at the said place i.e. Shop of JK Mobiles, where there were crowd was present and shopkeeper Mehboob produced accused Chand and gave his statement to the IO SI Suraj Bhan. On the basis of the statement, IO prepared tehrir and handed over the same to him for the registration of FIR in the PS Gokalpuri. PW-3 further deposed that he got the FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO/SI Suraj Bhan, as the further investigation was marked to him. PW-3 further deposed that accused was arrested vide memo Ex. PW2/B. PW-3 further deposed that accused made disclosure statement vide statement Ex. PW2/D. Accused was personally searched vide personal search memo Ex. PW2/C. Thereafter, at the isntance of the accused, to traceout his co-accused namely Zakir, they reached at Hanuman Mandir, Loni Road Flyover, where at the pointing out of the accused, co-accused Zakir was apprehended and from the formal search of the accused, one stolen mobile was recovered from the possession of the accused Zakir from the right pocket of his pant. PW-3 further deposed that on seeing the mobile phone recovered from the accused Zakir, complainant Mehboob indentified the same, which was stolen by the accused persons from his shop. PW-3 further deposed that on checking the mobile phone, the same was found correct, accused Zakir was arrested vide arrest memo Ex. PW2/I and his personal search was also conducted vide memo Ex. PW2/J. PW-3 further deposed that the said mobile phone was taken into police possession and sealed with the seal of SBG, seal after use was handed over to him, vide seizure and pointing out memo Ex. PW2/F. PW-3 further deposed that complainant Mehboob handed over receipt of phone to the IO, vide seizure memo of receipt Ex.
FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 4/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC PW2/E. IO recorded his statement.
The said witness was not examined by the Ld. defence counsel for the accused.
PW-4 is Sh. Parmod Vashist, who had deposed that at the time of incident, he was carrying on a mobile shop under the name of style of M/s. Gee Gee Telecommunication. PW-4 deposed that on 13.06.2005, receipt no. 600 for Rs. 3500/- for mobile phone LG-2130 IMEI No. RLGHS100856624 has been issued from his shop. The receipt is Ex. PW3/A. IO recorded his statement.
The said witness was not cross examined by the Ld. counsel for the defence.
PW-5 is HC Umesh Kumar, who had deposed that on 04.01.2006, he was posted at PS Gokalpuri as Constable. On that day, he alongwith Ct. Vinod and SI Suraj Bhan Gautam were on patrolling duty in the area. When they reached near Gali No. 5, Mustafabad, Delhi, one person informed them that one shopkeeper was apprehended one thief. PW-5 deposed that after that they went to Gali No. 5 and reached at the spot i.e. Shop No. 4, Gali No. 5, Hasnain Market, Old Mustafabad, Delhi. PW-5 further deposed that at about 6.15 PM, they reached at the shop.The name of the shop was J.K. Mobile. A large crowed had gathered outside the shop and the shopkeeper Mehboob had apprehended one thief.
Shopkeeper/complainant Mehboob handed over the thief to SI Suraj Bhan. PW-5 further deposed that the apprehended person disclosed his name as Chand @ Chandu. PW-5 further deposed that SI Suraj Bhan recorded the statement of complainant Mehboob and prepared the tehrir/rukka and handed over the same to Ct. Vinod. PW-5 further deposed that Ct. Vinod went to PS for the registration of the FIR. After some time, Ct. Vinod came FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 5/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC back at the spot with the copy of the FIR and original rukka and handed over the same to SI Suraj Bhan as the further investigation of the present case was marked to him. PW-5 further deposed that, IO prepared the site plan at the instance of the complainant, which is exhibited as Ex. PW5/A. PW-5 further deposed that accused Chand @ Chandu was arrested in the present case vide arrest memo, Ex. PW2/B and he was personally searched vide personal search memo Ex. PW2/C. PW-5 further deposed that accused Chand @ Chandu made a disclosure statement, which is Ex. PW2/D. PW-5 further deposed that accused Chand @ Chandu disclosed that his other associate Zakir who had taken away the mobile phone from the shop of complainant would meet him near the Hanuman Mandir, Loni Road, under flyover Gokalpuri. PW-5 further deposed that thereafter, he alongwith SI Suraj Bhan, Ct. Vinod, complainant Mehboob and accused Chand @ Chandu went near the Hanuman Mandir, Loni Road, under flyover Gokalpuri, where on the instance of accused Chand @ Chandu, accused Zakir was apprehended. PW-5 further deposed that IO took his search and the stolen mobile phone was recovered from the right side pocket of his wearing pant. Complainant Mehboob identified the mobile phone. PW-5 further deposed that the said mobile phone was wrapped in a pullinda and the pullinda was sealed with the seal of SBG. Seal after use was given to Ct. Vinod. Pullinda was taken into police possession, vide seizure memo, which is Ex. PW2/F. PW-5 further deposed that accused Zakir was arrested in the present case vide arrest memo Ex. PW2/I and his personal search was also conducted vide personal search memo Ex. PW2/J. PW-5 further deposed that accused Zakir was also made disclosure statement, which is Ex. PW2/G. PW-5 further deposed that both the accused persons were sent to lockup and case property was FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 6/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC deposited in the malkhana by the IO. IO recorded his statement. The said witness was cross examined by the Ld. counsel for the defence.
4. Thereafter, PE was closed. Statement U/s. 313 Cr.PC of the accused persons were recorded, wherein they stated that they do not want to lead their defence evidence. Accordingly, DE stands closed. Final arguments have been heard from both the sides and record has been meticulously perused.
5. I have weighed the rival submissions made on behalf of the State as well as on behalf of the defence in the light of the testimonies & material appearing on record.
6. Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused persons. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused persons.
7. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused persons to acquittal.
8. To prove the offences U/s. 380/411 of IPC, the prosecution is required to prove the following:-
(i) that the property in question is movable property;
FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 7/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC
(ii) that such property was in the possession of a person ;
(iii) that the accused moved such property whilst in the possession of that person ;
(iv) that he did so without the consent of that person ;
(v) that he did so in order to take the same out of the possession of that person;
(vi) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
(vii) that property was at the time of the theft in a building, tent or vessel.
(viii) that such building, tent or vessel, was then being used as a human dwelling or for the custody of property.
(ix) that the property in question is stolen property.
(x) that the accused received or retained such property.
9. I have heard the contention of Ld. APP for State as well as Ld. Defence counsel and given my thoughtful consideration. To prove the present offence, the Prosecution has examined five witnesses in all. To Prove the ingredients of offences, the Prosecution was required to prove that the stolen case property/mobile phone has been stolen by the accused persons and stolen property has been recovered from the possession of the accused Chand. In the aforesaid factual & legal background, I shall now step forward to adjudicate as to whether the prosecution has succeeded in proving its case against the accused persons or not.
10. The prosecution had examined the Complainant Sh. Mehboob, who had deposed that the incident had occurred on 4th January, 2006. On that day, at about 6/6.15 PM, he was present at his mobile shop at Old Mustafabad. PW-2 deposed that both the accused persons came at his shop and asked him to show mobile phones. He showed them 3-4 sets of mobile, but they FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 8/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC asked him to show other mobiles also. PW-2 deposed that he kept his mobile phone on the counter and turned back to take out other mobile phones to show them. In the meantime one of the boy slipped away taking his mobile phone. PW-2 deposed that he asked the other boy about the boy, who left the shop alongwith his mobile phone, but he stated that the boy who left the shop, was not with him. PW-2 deposed that he caught hold the boy and interrogated him, who told his name as Chand and told that the other boy left the shop after taking the mobile, was his friend. Immediately, he called on the police. Police came and recorded his statement as Ex. PW2/A. PW-2 further deposed that his mobile phone was made of Reliance LG-2130 and he handed over the boy to the police. PW-2 further deposed that the accused was arrested vide memo Ex. PW2/B and his personal search was also conducted vide memo Ex. PW2/C. PW-2 further deposed that the accused disclosed that his mobile phone is at Loni and also disclosed the name of the other accused as Zakir. Disclosure statement is Ex. PW2/D. PW-2 further deposed that he had also handed over the original receipt of the mobile phone, which was seized by the police vide Ex. PW2/E.
11. The case of the prosecution hangs upon the testimony of the complainant Sh. Mehboob (PW-2). Admittedly the complainant PW-2 has not seen the accused Chand removing the stolen phone from the shop of the complainant. There is nothing on record to show that the accused Chand & Zakir here acting in common intention. It is the case of the prosecution that the complainant accompanied the police officials with accused Chand. The other accused Zakir was arrested at the instance of Chand & mobile phone was recovered from him. However, PW-2 has categorically denied these facts. The relevant extract of cross examination is reproduced below FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 9/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC for ready reference:-
"....it is correct that after the arrest of the accused Chand, I alongwith the police officials and the accused Chand went to Hanuman Mandir, Loni Road and where accused Chand pointed out towards accused Zakir and at his instance Zakir was apprehended and my mobile phone was recovered from the right pocket of his pant, confronted with statement X from portion point A to A. It is further incorrect that the mobile phone was seized in a pulinda, sealed with the seal of SBG.
12. Similarly, HC Vinod Kumar, who had deposed that on 04.01.2006, he was posted at PS Gokalpuri as Constable. On that day, he alongwith IO and Ct. Umesh Kumar were on patrolling duty at Old Mustafabad. At about 6.10 PM, one passerby told them that one thief has been caught hold at Gali No. 5, Main Road at Shop of Mobile. PW-3 deposed that they reached at the said place i.e. Shop of JK Mobiles, where there were crowd was present and shopkeeper Mehboob produced accused Chand and gave his statement to the IO SI Suraj Bhan. On the basis of the statement, IO prepared tehrir and handed over the same to him for the registration of FIR in the PS Gokalpuri. PW-3 further deposed that he got the FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO/SI Suraj Bhan, as the further investigation was marked to him. PW-3 further deposed that accused was arrested vide memo Ex. PW2/B. PW-3 further deposed that accused made disclosure statement vide statement Ex. PW2/D. Accused was personally searched vide personal search memo Ex. PW2/C. Thereafter, at the isntance of the accused, to traceout his co-accused namely Zakir, they reached at Hanuman Mandir, Loni Road Flyover, where at the pointing out of the accused, co-accused Zakir was apprehended and from the formal FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 10/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC search of the accused, one stolen mobile was recovered from the possession of the accused Zakir from the right pocket of his pant. PW-3 further deposed that on seeing the mobile phone recovered from the accused Zakir, complainant Mehboob indentified the same, which was stolen by the accused persons from his shop. PW-3 further deposed that on checking the mobile phone, the same was found correct, accused Zakir was arrested vide arrest memo Ex. PW2/I and his personal search was also conducted vide memo Ex. PW2/J. PW-3 further deposed that the said mobile phone was taken into police possession and sealed with the seal of SBG, seal after use was handed over to him, vide seizure and pointing out memo Ex. PW2/F. PW-3 further deposed that complainant Mehboob handed over receipt of phone to the IO, vide seizure memo of receipt Ex. PW2/E. IO recorded his statement.
13. The remaining recovery witness examined by prosecution was PW-5 HC Umesh Kumar and testimony of the said witness is akin to that of PW-3 HC Vinod Kumar and thus need not to be reiterated. Apart from the above, there are various other material contradictions in the testimonies of the recovery witnesses of the police, which has dented the case of the prosecution very deeply.
14. Now the question arises whether the disclosure statement of accused Chand @ Chandu (Ex. PW2/D) can be read against the accused Zakir. There is clear evidence which could establish as to which of the accused persons made the statement first, which led to the recovery. The statement is not admissible in the eyes of law. I am enlightened by the judgment of Hon'ble High Court of Sikkim in case titled as " Prem Bahadur Rai Vs. State of Sikkim" cited as ' 1978 CRI.L.J.945 (1)', wherein it has been held that:-
FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 11/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC "...para no. 18. 27 of the Indian Evidence Act. But, as already noted, the evidence is too vague to lead us to any conclusion as to, which of the accused persons made the alleged disclosure or the statement in consequence whereof the discovery was made. Since there is no clear evidence as to which of the accused persons made the crucial statement first, which could have led the police to the alleged discovery of Exhibit, 1, the so-called joint statement of the accused persons cannot be relied on under Section 27 of the Indian Evidence Act.."
15. It is clear from the testimonies of PW-3 HC Vinod Kuma and PW-5 HC Umesh Kumar that they had joined the investigation with the IO reaching the spot i.e. shop of JK Mobiles and accused namely Chand @ Chandu was arrested by the police party and on his disclosure statement accused person namely Zakir was arrested by the police party at Hanuman Mandir, Loni Road Flyover, Delhi and on the basis of the disclosure statement of the accused Chand @ Chando, police officials had recovered the stolen property from the possession of the accused Zakir. Be that as it may, now if the said police officials were not present within the Police Station, Gokalpuri at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival in the D.D. Register. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 12/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
16. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of the said PW-3 and PW-5. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of the said police officials at Police Station or near the place of the recovery. It is also worth mentioning that as per the case of the prosecution that police officials who apprehended the accused persons were posted at PS Gokalpuri at the time of incident. However, no DD entry in support of this fact has been placed on record which the said police officials had left the PS before the recovery and by which they had arrived at PS Gokalpuri after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused persons and the recovery of the stolen property, since the said police officials were under bounden duty to enter their departure & arrival entries in that respect as per the aforesaid mentioned P.P. Rule.
At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court had observed as under:-
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 13/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery"
17. In circumstances like the present one, the PW-3, and PW-5 should have made an effort to join public witnesses during the recovery proceedings and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of the recovery or after the recovery, when the accused persons were already apprehended, since after the apprehension of the accused persons, there was no possibility of accused persons escaping their arrest or their crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the recovery by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 14/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 15/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
18. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
"6. In the present case, the State examined two witnesses namely, Nirmal Kumar Jha SI who appeared as PW8 and HC Sukhpal Singh, PW-9. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 16/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC genuine attempt having been made to join a public witness or that they were not available. A stereo- type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
19. The testimonies of the recovery witnesses of the police i.e PW-3 and PW-5 have also brought nothing on record so as to even remotely suggest that before effecting the recovery of the case properties from the respective houses/premises of the accused persons, the said police officials had offered their own personal search, either to accused persons or to any other member of the public/family member's of accused present at the spot of the respective recoveries.
At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa"
decided on 24/11/1984 wherein the following was held :-
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cr. L.J. 279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 17/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
20. Being guided by above said case law, the possibility of false planting of the case property by the police party against accused persons can not be ruled out beyond doubt, which makes the story of prosecution qua the recovery of the case properties at the instance of accused persons from their respective houses highly doubtful.
21. From the aforesaid discussion, it has become clear that the prosecution has failed to prove beyond reasonable doubt that the case property has been stolen by the accused persons and the case property has been recovered in this case was recovered from the possession of the accused Zakir at the instance of accused Chand @ Chandu. Once the prosecution has failed to prove the connection between the accused persons and the case property recovered in this case, it will be totally unsafe to convict any of the accused persons under Section 380/411 IPC, rather, the aforesaid facts and discussion clearly entitles the accused to the benefit of doubt. Moreover, aforementioned contradictions, omissions and lacunas clearly shows that the prosecution has been unable to prove the recovery alleged against the accused persons beyond reasonable doubt, whereby the accused persons have become entitled to the benefit of doubt. Accordingly, I accord the benefit of doubt to the accused persons, whereby the accused persons are acquitted of the charges levelled against them in the instant case.
Announced in the open court today itself i.e. 03.07.2013 (JITENDRA SINGH) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 18/18 FIR No. 09/2006 PS: Gokalpuri Under Section 380/411/34 IPC FIR No. 09/2006, PS Gokal Puri, State Vs. Chand & others 19/18