Delhi District Court
State vs . Nand Kishore & Anr. on 31 August, 2013
State Vs. Nand KIshore & Anr.
FIR No. 276/12
PS Palam Village
IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
FIR No. 276/12
PS Palam Village
U/S :379/411/34 IPC
State V/S Nand Kishore @ Nanhe & Anr.
C/No. 441/2
U.ID No. 02405R0297162012
Date of Institution: 05.12.2012
Name of the Complainant Jitender s/o Satyapal, r/o
G296, Adhyapak Nagar,
Nangloi, Delhi.
Name and address of accused (1) Nand Kishore @ Nanhe s/o
Devi Sahai, r/o D16, JJ
Colony, Sector 7, Dwarka, Delhi.
(2)Kuldeep @ Hakla s/o Hazari Lal r/o B112, Manglapuri, PhaseII, Palam Colony, Delhi.
Charge framed against accused persons U/S 411/34 IPC Plea of accused pleaded not guilty Final Order Acquitted Date of reserve for orders 31.08.2013 Date for announcing the orders 31.08.2013 The brief facts and pre trial procedure
1. Charge U/S 411/34 IPC was framed against both the accused persons that on 07.10.2012 a motorcycle bearing registration no. DL 1 S P 4421 Hero Honda Passion, Blue colour was recovered on their instance which was belonging to complainant Jitender s/o Satya Pal and same was stolen within the jurisdiction of PS Palam Village which both accused C/No. 441/2 Page No. 1 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village persons knowing that the same is stolen property and thereby they both committed an offence u/s 411 IPC to which they pleaded not guilty and claimed trial.
Trial
2. To prove the charges, prosecution cited 11 witnesses in the list of witnesses but could examine only 10 out of them. PE stood closed on 31.08.2013. Thereafter, statement of both accused persons U/S 313 CrPC was recorded in which accused persons pleaded their innocence. No defence evidence was led by both accused persons.
3. PW1 Jitender deposed that on 03.10.2012 at about 12.00 night he parked his motorcycle bearing registration no. DL 1 SP 4421 make of Hero Honda Passion Plus in front of H.NO. RZ G 1 B, Dada Dev Road, Sector 7, Dwarka, New Delhi and at about 01.00 AM (night) he found his motorcycle was missing. Thereafter he called at 100 number. Police reached at the spot. He tried to search his motorcycle at his level best but could not succeed. Thereafter on 04.10.2012 he went to PS where his statement Ex. PW1/A was recorded. Next day he received information from PS regarding recovery of his motorcycle. Thereafter he got released his motorcycle on superdari on 12.10.2012 vide superdarinama Ex. PW1/B.
4. PW2 Ct. Sushil Kumar deposed that on 06.10.2012 he along with HC Surender were on patrolling duty and checking the vehicles at Pardhan Chowk, Sadh Nagar, Palam. On 07.10.2012 at about 12.30 AM (night) two persons were coming on a motorcycle no. DL 3 S A X 6465 make of Bajaj Pulsar black colour, after seeing the police checking the said motorcyclist tried to uturn the motorcycle but they fell down along with motorcycle. Out of two persons one was succeed to flee away from the spot but another was apprehended by them, his name was revealed as Nand Kishore @ Nanhey. In formal search of the bag of the accused Nand Kishore @ Nanhey C/No. 441/2 Page No. 2 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village one country made pistol and one knife, two iron rods one patchcus were recovered. Thereafter the accused was booked in case FIR no. 262/12, PS Palam village u/s 25 Arms Act. His disclosure statement was recorded by HC Surender and motorcycle bearing no. DL 1 S P 4421 was recovered on instance of accused Nand Kishore @ Nanhey. IO prepared a tehrir and same was handed over to him for registration of FIR. After registration of FIR, he along with HC Ratan Singh reached at the spot as further investigation of this case was marked to HC Ratan Singh. The disclosure statement Ex. PW2/A of accused was recorded by HC Ratan Singh. Thereafter he along with HC Surender left the spot. PW1 correctly identified the accused Nand Kishore @ Nanhey.
5. PW3 Ct. Raj Pal deposed that on 08.10.2012 he joined investigation with IO HC Rohtash. On that day accused Nand Kishore @ Nanhey was formally arrested in case FIR no. 276/12, PS Palam Village by the IO vide arrest memo Ex. PW3/A and his personal search was conducted vide memo Ex. PW3/B. On 09.11.2012 the accused Kuldeep @ Hakla was arrested by the IO vide arrest memo Ex. PW3/C and his personal search was conducted vide memo Ex. PW3/D. Disclosure statement of accused Nand Kishore @ Nanhey and Kuldeep @ Hakla were recorded vide memos Ex. PW3/E and Ex. PW3/F. PW3 correctly identified both accused persons.
6. PW4 Ct. Suraj Bhan deposed that on 08.11.2012 he was patrolling in the area and was present at Mangla Puri. HC Ratan Singh and Ct. Satender met him during the patrolling at Mangla Puri Chowk at 08.30 PM. Thereafter he along with HC Ratan Singh and Ct. Satender reached near the Masjid at Mangla Puri Subji Mandi while patrolling at around 08.45/08.50 PM. One secret informer met HC Ratan Singh and informed him that Kuldeep @ Hakla who was involved in case FIR no. 282/12 has been found and he was present near Dispensary at Rajeev Gandhi Camp Jhuggies, Sadh C/No. 441/2 Page No. 3 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village Nagar and if the raid is conducted he can be apprehended. Thereafter HC Ratan Singh shared this information with him and Ct. Satender. HC Ratan Singh requested 45 public persons to join the investigation but none agreed and they went away by citing their genuine reasons and without disclosing their names and addresses. Due to the paucity of time no notice could be served upon them. Thereafter without wasting time HC Ratan Singh constituted raiding party consisting of HC Ratan Singh, himself, Ct. Satender and secret informer. They reached at the jhuggies Rajeev Gandhi Camp and on the pointing out of secret informer he along with HC Ratan Singh and Ct. Satender overpowered one person whose name on inquiry was revealed as Kuldeep Singh @ Hakla. Accused Kuldeep Singh was interrogated by HC Ratan Singh and after interrogation he was arrested and his personal search was carried out. IO HC Ratan Singh recorded the disclosure statement Mark Y and in the disclosure statement accused had disclosed in para no. 4 about the commission of theft of motorcycle bearing no. DL 1 S P 4421 involved in the present case i.e FIR no. 276/12. Accused has further disclosed about the commission of theft of the other case property. He had also got recovered one motorcycle bearing no. BR 01 AR 7472 TVS Apache from his house at B112, PhaseII, Mangla Puri involved in the case of PS Kapashera. Photocopy of the arrest memo is Ex. PW8/D. Photocopy of the personal search memo is Ex. PW8/E. Photocopy of the disclosure statement is Ex.PW8/F. On 09.11.2012 IO HC Rohtash of this case recorded my statement. PW4 correctly identified the accused Kuldeep @ Hakla.
7. PW5 Ct. Satender deposed that on 08.11.2012 he was patrolling in the area with HC Ratan Singh and when they reached at Mangla Puri Chowk during patrolling, Ct. Suraj Bhan also met them. Thereafter he along with HC Ratan Singh and Ct. Suraj Bhan reached near the Masjid at Mangla Puri Subji Mandi while patrolling at around 08.45/08.50 PM. One secret informer C/No. 441/2 Page No. 4 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village met HC Ratan Singh and informed him that Kuldeep @ Hakla who was involved in case FIR no. 282/12 has been found and he was present near Dispensary at Rajeev Gandhi Camp Jhuggies, Sadh Nagar and if the raid is conducted he can be apprehended. Thereafter HC Ratan Singh shared this information with him and Ct. Suraj Bhan. HC Ratan Singh requested 45 public persons to join the investigation but none agreed and they went away by citing their genuine reasons and without disclosing their names and addresses. Due to the paucity of time no notice could be served upon them. Thereafter without wasting time HC Ratan Singh constituted raiding party consisting of HC Ratan Singh, himself, Ct. Suraj Bhan and secret informer. They reached at the jhuggies Rajeev Gandhi Camp and on the pointing out of secret informer he along with HC Ratan Singh and Ct. Suraj Bhan overpowered one person whose name on inquiry was revealed as Kuldeep Singh @ Hakla. Kuldeep Singh was interrogated by HC Ratan Singh and after interrogation he was arrested and his personal search was carried out vide memo Ex. PW5/1 and Ex. PW5/2. IO HC Ratan Singh recorded his disclosure statement Ex. PW5/A and in the disclosure statement accused had disclosed in para no. 4 about the commission of theft of motorcycle bearing no. DL 1 S P 4421 involved in the present case i.e FIR no. 276/12. Accused has further disclosed about the commission of theft of the other case property. He had also got recovered one motorcycle bearing no. BR 01 AR 7472 TVS Apache from his house at B112, PhaseII, Mangla Puri involved in the case of PS Kapashera. PW5 correctly identified the accused Kuldeep @ Hakla.
8. PW6 Ct. Ram Avtar deposed that on 04.10.2012 he was working as DD writer with the effect from 12.00 midnight to 08.00 AM. At around 02.15 AM wireless operator informed about commission of theft of one motorcycle bearing no. DL 1 S T 4421 from Dada Dev Road, Sector 7, Dwarka, House C/No. 441/2 Page No. 5 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village NO. RZ G 1/D, Gali No. 6 the same information was entered into DD register B vide entry no. 9 which is Ex. PW6/A(OSR). The said call was marked to PSI Amrender for further action.
9. PW7 SI Shanti Prakash deposed that he was the Duty Officer at the relevant time who proved the FIR as Ex. PW 7/A and he also made his endorsement Ex. PW7/B on the rukka.
10. PW8 HC Ratan Singh deposed that on 07.10.2012 after the registration of case FIR no. 282/12, PS Palam Village, further investigation was marked to him. He went to the spot and HC Surender Singh who had got the case registered met him and handed over to him the accused Nand Kishore @ Nanhey and other documents. He prepared the site plan Ex. PW8/A at the instance of HC Surender Singh. He interrogated the accused Nand Kishore @ Nanhey and recorded his disclosure statement Ex. PW2/A in which he had disclosed that he along with Kuldeep @ Hakla had committed the theft of the motorcycle bearing no. DL 1 S P 4421 Hero Honda Passion of this case FIR no. 276/12 about 45 days back from Dada Dev Road, Sector 7, Palam and he can get recovered the same. Accused was arrested in case FIR no. 282/12. Thereafter the accused led them to near Satya Sai Dham near Sector 7 Dwarka and pointed out the motorcycle bearing no. DL 1 SP 4421 in the gali vide pointing out memo Ex. Ex. PW8/B. The motorcycle was seized vide seizure memo Ex. PW8/C. He prepared the site plan of the place of recovery Ex. PW8/C. The case property was taken to the PS along with the accused. Case property i.e motorcycle was deposited in malkhana PS. The accused was medically examined and was put behind the lock up. On 08.11.2012 he along with Ct. Suraj Bhan and Ct. Satender were patrolling in the area and were present at Mangla Puri near Masjid, Subzi Mandi. One secret informer met him and informed that Kuldeep @ Hakla who was involved in case FIR no. 282/12 has been found and he was present near C/No. 441/2 Page No. 6 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village Dispensary at Rajeev Gandhi Camp Jhuggies, Sadh Nagar and if the raid is conducted he can be apprehended. Thereafter he shared this information with Ct. Suraj Bhan and Ct. Satender. He requested 45 public persons to join the investigation but none agreed and they went away by citing their genuine reasons and without disclosing their names and addresses. Due to the paucity of time no notice could be served upon them. Thereafter without wasting time he constituted raiding party consisting of himself, Ct. Suraj Bhan, Ct. Satender and secret informer. They reached at the jhuggies Rajeev Gandhi Camp and on the pointing out of secret informer he along with Ct. Suraj Bhan and Ct. Satender overpowered one person whose name on inquiry was revealed as Kuldeep Singh @ Hakla. Kuldeep Singh was interrogated by him and after interrogation he was arrested vide arrest memo Ex. PW8/D and his personal search was conducted vide memo Ex. PW8/E. He recorded his disclosure statement Ex. PW8/F and in the disclosure statement accused had disclosed in para no. 4 about the commission of theft of motorcycle bearing no. DL 1 S P 4421 involved in the present case i.e FIR no. 276/12. Accused has further disclosed about the commission of theft of the other case property. PW8 correctly identified both accused persons and the photograph of the motorcycle Ex. P2.
11. PW10 HC Rohtash Lamba deposed that on 04.10.2012 after registration of present FIR, further investigation of this case was marked to him on the directions of the SHO and DO handed over the original tehrir to him and copy of FIR Ex. PW7/A. He along with the complainant and Ct. Pushapak went to the spot i.e RZ G 1/B , Dada Dev Road, Sector 7, Dwarka, Delhi and he prepared the site plan at the instance of the complainant Ex. PW10/A. He recorded the statement of witnesses. He flashed W/T message at all over India and he tried to search the stolen motorcycle bearing no. DL 1 S P 4421 and accused but no clue was found. On 07/08.10.2012 in case FIR C/No. 441/2 Page No. 7 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village no. 282/12 , PS Palam Village accused Nand Kishore @ Nanhey was arrested by the police official of PS Palam Village and the motorcycle of the present case was recovered from him. He collected the documents of the case FIR no. 282/12 from the IO HC Ratan Singh. He interrogated the accused Nand Kishore @ Nanhey and recorded his disclosure statement Ex. PW3/E and formally arrested him vide arrest memo Ex. PW3/A and conducted his personal search memo vide memo Ex. PW3/B. The motorcycle was taken into possession in the present case vide memo Ex. PW10/B which was already deposited in the malkhana. He recorded the statement of recovery officials of PS Palam Village. Accused was produced before the court and was sent to JC. He made efforts to search the coaccused Kuldeep @ Hakla but he could not be arrested. On 08/09.11.2012 in case FIR No. 282/12 accused Kuldeep @ Hakla was arrested and he had disclosed in the disclosure statement about the commission of theft of the motorcycle of the present case along with coaccused Nand Kishore @ Nanhey. He collected the disclosure statement and arrest memo and personal search memo from HC Ratan Singh and arrested the accused Kuldeep @ Hakla vide arrest memo Ex. Pw3/C and conducted his personal search vide memo Ex. PW3/D. Accused was produced before the court and was sent to JC. He recorded the statement of police official who had arrested the accused Kuldeep @ Hakla. After completion of the investigation, he prepared the challan and filed before the Hon'ble Court. PW10 correctly identified both accused persons.
12. PW11 SI Amrender Kumar deposed that on 04.10.2012 he was on night emergency duty and he received a PCR call vide DD no. 9 B Ex. PW6/A regarding the theft of motorcycle. He reached near Dada Dev Road, Sector 7, Dwarka where nobody met him. He contacted with the complainant on telephone and he informed him that he is searching his motorcycle himself C/No. 441/2 Page No. 8 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village and he will visit the PS in the morning if the motorcycle was not found by him. Complainant came at the PS at around 08.00 PM and he recorded his statement Ex. PW1/A and made his endorsement Ex. PW11/A and presented the same to DO for registration of the case.
Statement of accused and defence
13. After closure of prosecution evidence, the statement of accused persons U/S 313 CrPC was recorded. When all the incriminating evidence has been put to the accused persons to afford them an opportunity to explain the circumstances so put to them, they have not offered a shred of evidence to prove their innocence except by saying that they are innocent and they have been falsely implicated. Further accused persons did not lead any defence evidence in support of their claim of innocence.
Arguments and appreciation of evidence in the light of legal propositions
14. It is submitted by Ld. Counsel for the accused persons that this case is an example of police cover up and false implication of the accused persons by police. It is further submitted by Ld. Counsel for the accused persons that discrepancies which have arisen in the prosecution case itself exposed the prosecution story in this case. It is submitted by Ld. Counsel for the accused persons that there is not a minor discrepancy in the version of prosecution but they are several and major in nature. It is further submitted by Ld. Counsel for the accused persons that first of all the facts of this case itself shows that there is no evidence against the accused Kuldeep @ Hakla except the disclosure statement of accused Nand Kishore @ Nanhey. It is submitted by Ld. counsel for the accused that stolen property is recovered at the C/No. 441/2 Page No. 9 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village instance of accused Nand Kishore @ Nanhey after his disclosure statement made before the police and so far as the role of accused Nand Kishore @ Nanhey there is no single proof of evidence against him shows his complicity with the crime charged for. It is further submitted by Ld. Counsel for the accused that PW1 who is the complainant in this case stated that his motorcycle was stolen on 03.10.2012 and thereafter he called at 100 number and on 04.10.2012 he went to PS and his statement was recorded and on 12.10.2012 he got his vehicle released on superdari vide superdarinama Ex.PW1/B and in this case he stated that police recorded his statement after arriving and police did not obtain his signature and on 04.10.2012 at about 10.00 AM his brother received a telephone call from PS Palam Village regarding recovery of motorcycle. It is further submitted by Ld. Counsel for the accused persons that if the testimony of PW2, PW8, PW10 and PW11 all police witnesses who stated against the version of the complainant with respect to the time of date of recovery of the motorcycle. It is submitting by Ld. Counsel for the accused persons that there is glaring discrepancy in the police story and accused Nand Kishore @ Nanhey may be acquitted for this reason. Ld. Counsel for the accused ended his argument stating that accused have been falsely implicated by the police in this case in order to solve its pending cases. Ld. Counsel for the defence submitted that after considering the totality of circumstances, it would cast shadows of doubt on the case of the prosecution and as such renders the whole prosecution case unreliable.
15. On the other hand Ld. APP for the State vehemently opposed the arguments raised by Ld. Counsel for the accused persons and he rebutted the argument as cited by defence and stated that witnesses have deposed firmly against the accused persons regarding recovery effected pursuant to the theft C/No. 441/2 Page No. 10 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village from the house of the complainant. Ld. APP for the state submitted that there is an ample evidence on record which shows the complicity of the accused in the crime.
16. I have given my thoughtful consideration to the submissions advanced by both sides. Perusal of the testimony of PW1 shows that motorcycle was stolen on 03.10.2012 and he was called on the next day to PS where his statement was recorded. His statement further reflects that on 04.10.2012 at about 10.00 AM his brother was intimated by telephone call from PS regarding recovery of his motorcycle. He further stated that police did not obtain his signature on the statement. Perusal of the testimony of PW2 shows that accused Nand Kishore @ Nanhey was apprehended on 07.10.2012 at about 12.30 AM (night) and pursuant to his disclosure statement motorcycle no. DL 1 S P 4421 was recovered from his instance. PW3 Ct. Raj Pal stated that on 08.10.2012 accused Nand Kishore @ Nanhey was formally arrested in case FIR no. 276/12 and on 08.11.2012 he was part of the raiding party consisting of HC Ratan Singh, Ct. Satender and after pointing out of secret informer they arrested the accused Kuldeep @ Hakla and his disclosure statement was recorded wherein he disclosed having stolen motorcycle no. DL 1 S P 4421. PW5 Ct. Satender also stated that on 08.11.2012 he was part of raiding party and after pointing out of secret informer they arrested the accused Kuldeep @ Hakla and his disclosure statement was recorded wherein he disclosed that he had committed the theft of motorcycle no. DL 1 S P 4421. PW8 HC Ratan Singh stated that on 07.10.2012 HC Surender Singh handed over to him the accused Nand Kishore @ Nanhey and other documents and he recorded the disclosure statement of the accused and thereafter accused got recovered the motorcycle no. DL 1 S P 4421 and on 08.11.2012 another accused Kuldeep @ C/No. 441/2 Page No. 11 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village Hakla was arrested. PW10 stated that on 07/08.10.2012 accused Nand Kishore @ Nanhey was arrested and motorcycle was recovered from him and he himself says that the motorcycle was recovered from accused Nand Kishore @ Nanhey on 07/08.10.2012. PW11 stated that on 04.10.2012 after receiving of PCR call vide DD no. 9 B he recorded statement of complainant at about 08.00 PM. PW6 proved the DD entry no. 9 B. PW7 was the DO who proved the FIR.
17. The fact of this case speaks volume about the botched up investigation by police officials. In this case apparently accused was arrested in connection with some other crime and later on this case was thrusted on both accused persons by the police officials. The statement of complainant is very relevant in this regard as he himself stated that after theft of his vehicle on 03.10.2012, his brother received a call on the next day i.e 04.10.2012 about the recovery of said motorcycle. Further the police officials who were recovery witnesses stated that stolen vehicle in question was recovered on 07.10.2012 after the arrest of accused Nand Kishore @ Nanhey. It is difficult to imagine that why would a complainant say a wrong fact before the court and his testimony appears to be reliable. The discrepancy in the testimony of complainant and other police witnesses is material which is clear from the perusal of evidence on record. The evidence on record raises a serious doubt on the prosecution case and all it can be said that both accused persons have been falsely implicated in this case.
Conclusion
18. In view of the aforementioned facts their exists a serious doubt on the prosecution. It is a cardinal principle of jurisprudence that any doubt occurred in the prosecution case, the benefit thereof will be given to the C/No. 441/2 Page No. 12 U.ID No. 02405R0297162012 State Vs. Nand KIshore & Anr.
FIR No. 276/12PS Palam Village accused. In view of the same, both accused Nand Kishore @ Nanhey and Kuldeep @ Hakla are acquitted for offence charged for.
Announced in the Open Court (PANKAJ SHARMA)
today on 31 day of August, 2013 MM 01: Dwarka : Delhi
st
C/No. 441/2 Page No. 13
U.ID No. 02405R0297162012