Delhi District Court
State vs . Mohd. Nazar Ali Etc on 19 March, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.08/10
FIR No.360/04
U/s 328/379/411/201 IPC
PS Ambedkar Nagar
State
Vs.
1. Mohd. Nazar Ali s/o Mohd. Nihal Ali
2. Mohd. Parvez Ali s/o Mohd. Akhtar Ali
.......... Accused
Challan filed on 09.03.2005
Received by Fast Track Court on:23.08.2010
Reserved for order on :15.03.2011
Judgment delivered on : 19.03.2011
JUDGMENT
Briefly stated the facts of the prosecution case are that on 30.07.04 complainant Dashrath Prasad reached in PS Ambedkar Nagar and got recorded his statement which is Ex.PW1/A. In the said State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.1 of 24 statement it has been alleged by the complainant that he is residing at B59 Taimur Nagar Near New Friends Colony, New Delhi with his brother Surender Prasad and he drives TSR bearing no. DL1R 1142, Chesis no. 80680, Engine No. 23435. On 29.7.2004 at about 5 p.m he parked his TSR near ITO and he was also standing there. One person aged about 40 years alongwith one lady came there and asked him to take them to Chirag Delhi. He made them sit in the TSR and started the TSR. When TSR reached near Matka Peer, Pragati Maidan, they asked him to stop the TSR as they want to pray there and thereafter they will proceed. He stopped there and after 20 minutes they came. They gave him 'Persad' to eat. He consumed the same. He again made them sit in the TSR and started for Mazar Peer Baba. He felt giddiness in the way and became semiconscious. He stopped his TSR on the service road and thereafter he became unconscious. When he regained his consciousness, he found himself on patri in front of Mazar Peer Baba and his TSR was also not there. He was State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.2 of 24 also feeling giddiness at that time. He narrated the incident to his brother and searched for TSR. The said lady and unknown person have administered him some poisonous substance in "Persad' and when he became unconscious they had taken away his TSR. Legal action be taken against them. IO made his endorsement Ex.Pw12/A on his statement Ex.PW1/A and got the case registered. Complainant was examined in the hospital. Search for TSR was made and it was recovered from Loni Border without engine from abandoned place. The search for accused were conducted. In case FIR no.2/05 both the present accused were found taking the engines of TSR in an auto. Accused Mohd. Nazar Ali made disclosure statement about taking away the Engine of TSR no.DL1R 1142. Both the accused were arrested in this case. The investigation was done and after completing the investigation, accused persons were challaned to the court.
State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.3 of 24
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 18.05.05.
3. The charge against the accused Mohd. Nazar Ali has been framed u/s 328 r/w sec. 379/34 IPC and accused Mohd.Parvez Ali has been charged for the commission of offence punishable u/s 411 r/w sec. 201 IPC on 26.05.05 by Sh. Narottam Kaushal, the then Ld. ASJ to which both the accused persons pleaded not guilty and claimed trial.
4. The prosecution to prove its case against the accused persons, in all has examined as many as 12 witnesses.
5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.4 of 24 their innocence and deposed that they have been falsely implicated in this case. Accused Mohd. Nazar Ali has opted to lead defence evidence and examined one witness DW1 Shabnam. Thereafter the case was fixed for final arguments.
6. I have heard Ld APP for the State as well as Ld. defence counsel and perused the testimonies of all the PWS & DW and exhibited documents carefully. PW1 Dashrath Prasad is the complainant and victim in this case and he has stated that his statement Ex.PW1/A was recorded by the Police.
7. PW2 Ct. Jagpal Singh has deposed that he alongwith SI Gajraj Singh and complainant Dasrath went to Loni Border on 6.8.04. He has further stated that near a check post one TSR bearing no. DL 1RH 1142 was lying and complainant identified it as belonging to him. On checking the engine, CNG kit, battery and all the three tires were found missing. The same were taken into possession vide memo Ex.PW1/B.
8. PW3 ASI Suresh Chand is the FIR recorder and he has stated State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.5 of 24 that he recorded FIR copy of which is Ex.PW3/A.
9. PW4 Ct. Bhanu has deposed that he was present in the investigation with IO SI Gajraj and he took the copy of FIR and rukka to IO at Peer Baba Mosque near Jahanpahan jungle where complainant was present. IO searched for the accused and TSR but of no avail. He took the complainant to AIIMS Hospital where doctor inquired from the complainant but MLC was not prepared. Doctor gave in writing on the request of IO which is Ex.PW4/A.
10. PW5 Ct. Neeraj Kumar has deposed that he was on patrolling duty in the area of Jafrabad on 1.1.05 with other staff. SI Yadav received secret information that two culprits would go to Gokuluri scrap market to sell the stolen engine and TSR and they will come in TSR no. DL 1RG 1893. TSR was found coming at about 7.30 a.m and it was stopped by the police staff. The TSR was being driven by accused Nazar Ali. At the back seat accused Parvez Ali was sitting on the back seat and underneath his legs two engines were kept. Both the accused were enquired but they could not give satisfactory reply. SI Rakseh noted the chesis number and confirmed from PCR auto match and it was found to be a stolen TSR and original TSR number State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.6 of 24 was found to be DL 1RG3401 corresponding with its engine number and FIR in respect of stolen TSR is found registered in PS Hauz Khas. On recovered engines, engine number was found to be erased and new number found to be engraved. IO seized the said engines. One engine number 108406 was found to be engraved. The seizure memo of the engine is Ex.PW5/A. IO prepared the rukka and FIR u/s 411 was registered in PS Seelampur. He got the case registered. He further deposed that accused were arrested and their disclosure statements were recorded. Accused Nazar Ali then got recovered one stolen TSR bearing no. DL 1RG 8967 from his house at Prem Nagar. The engine is Ex.PW1/Article1, its photograph is Ex.PW1/Article 2 and TSR is Ex.P1 and photograph of TSR is Ex.PW1/A3.
11. PW6 Dr. Praveer Kumar Jha has deposed that he has seen MLC Ex.PW6/A bearing endorsement 'MLC Cancelled'. He has further stated that this implies that where the patient was produced for his medical examination and if it was a medico legal case and if the MLC had already been prepared then MLC prepared on the occasion he was produced again was to be cancelled and accordingly endorsement on MLC Ex.PW6/A has been recorded. State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.7 of 24
12. PW7 Sudhir Kumar is the witness from Deptt of Transport and he has deposed that auto rickshaw no. DL 1RH 1142 was of Dashrath Parsad who is registered owner from 27.2.2004. The engine no. was AAMBHJ 23435, chesis no. AFFBHU 80680 of this TSR. He has further stated that he has sold the TSR to Ankit Dogra on 7.3.09, the certified copy is Ex.PW7/A.
13. PW8 ASI Sheela has deposed that she recorded FIR no.2/05 u/s 411/34 IPC. The copy of FIR is Ex.PW8/A.
14. PW9 SI Rakesh Kumar has deposed that he alongwith Ct.Neeraj and SI KL Yadav & ors. were on patrolling when IO received secret information about the culprits who had stolen the TSR. He has deposed that they placed the barricades on the road and started checking the vehicles coming from Seelampur side and proceeding towards Mauzpur side. They stopped a TSR and on enquiry the occupant could not give proper reply. None could show the document of the ownership of TSR. The engine no. of TSR 1893 was checked and it was revealed 19500. It was found stolen from PS Hauz Khas. Both the accused were interrogated and they disclosed that the same had been stolen from Chiraj Delhi. The same were State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.8 of 24 seized vide memo Ex.PW5/A. The engine no. 18046 was appearing as freshly embossed after erasing the original number. He got the case registered. Vide FIR no.2/05. Accused Nazar Ali gave confessional statement regarding involvement in present case FIR no. 360/04 alongwith Farida. He has further deposed that on 1.1.05 two accused were found carrying the said engines in TSR no. 1893 which too a stolen property. He identified the stolen engines.
15. PW9 HC Devender Singh (PW number given wrongly, it should be PW10) has deposed that he was on patrolling duty with AsI Rakesh, SI KL Yadav, Ct. Neeraj and Ct. Rajeev on 1.1.05 and that on receipt of secret information and after formation of raiding party, both the accused persons were apprehended when they could not give the satisfactory reply. The TSR and engines were taken into possession vide memo Ex.PW5/A which was found involved in case FIR Registered in PS Hauz Khas. The disclosure statement of Nazar Ali is Ex.PW9/A and of accused Pravez Ali is Ex.PW9/B. He identified the recovered engines.
16. PW10 Ms Barkha Gupta is the then Ld. MM who had conducted the TIP of accused persons. The TIP proceedings are State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.9 of 24 Ex.PW10/B.
17. PW11 HC Surya Prakash is the MHCM who made entry in register no.19 regarding deposit of case property in the malkhana. The copy of entry is Ex.PW11/A, B and he has further stated that it was sent to FSL vide RC no.213/21 which is Ex.Pw11/C.
18. PW12 SI Gajraj Singh is the IO of this case and he has deposed that complaint Dashrath came to PS and got recorded his statement Ex.PW1/A on which he made endorsement Ex.PW12/A and he got the case registered. He inspected the site and prepared site plan Ex.PW12/B. He sent complainant to AIIMS for medical vide application Ex.PW4/A. He has further stated that the doctor has not prepared the MLC but he has mentioned regarding medical examination on the application at portion Ex.PW12/C. On 6.8.04 complainant Dashrath told him that his TSR is parked near Loni Border in abandoned place and he alongwith his staff went there. The TSR was seized vide memo Ex.PW1/B and at that time there was no engine, battery and tyres. ON 1.1.05 DD was registered in PS Ambedkar Nagar regarding apprehension of the accused and it was handed over to him. The copy of DD is Ex.PW12/D. He obtained the State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.10 of 24 disclosure statement which are Ex.PW9/A and B. The copy of FIR is Ex.PW8/A. He got issued the production warrants of accused and he interrogated the accused vide application Ex.PW12/F. He arrested accused vide memo Ex.PW12/G and recorded disclosure statement Ex.PW12/H. He moved an application for TIP which was fixed for 20.1.05. He also got issued the production warrants of accused vide application Ex.PW12/K. He also interrogated accused Parvez and arrested him vide memo Ex.PW12/K1 and recorded his disclosure statement Ex.PW12/K2. On 20.1.05 he alongwith complainant went to Tihar Jail for TIP but accused Mohd. Nazar Ali refused to participate in the TIP. On 27.1.05 the engine of TSR was deposited in the FSL. He made search for accused Farida but she could not be traced. He collected the FSL result which is Ex.PW12/L. He identified the case property.
19. I have also perused the defence evidence led by the accused Mohd. Nazar Ali. DW1 Shabnam is the wife of accused Mohd. Nazar Ali and she has stated that her husband had gone to take the money taken by someone. But that person did not return the same. She does not remember the name of that person. But he is resident of Loni. She has further deposed that instead of returning back the money, the State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.11 of 24 person in question started quarreling with her husband and the brother of informer uttered that he will see him. After two days her husband was falsely implicated in this case.
20. In the overall analysis of the testimonies of all the witnesses it is revealed that PW1 is the complainant and victim in this case. He is the main star witness of the prosecution case as he had seen the accused Mohd. Nazar Ali when he alongwith one lady Farida (Since PO) sat in his TSR. The prosecution has examined him as PW1. In his testimony he has stated that on 19.7.05 he was coming from Chandni Chowk side with his TSR no. DL 1RGH 1142. One gents and one lady gave him signal to stop his TSR. He stopped the TSR. They asked him that they had to go to Matka peer and from where they had to go to Chirag Delhi. At Matka Peer, the lady passenger gave some Prasad to eat which he had eaten. Thereafter they asked him for Majar Peer Baba, Chirag Delhi. He started his TSR alongwith passengers. At Chirag Delhi he stopped his TSR near Mazar of Peer Baba. Thereafter he became unconscious. After gaining his consciousness he found himself at the house at Taimoor Nagar in the morning at 7 a.m. His TSR was also found missing. ON 30.7.04 he lodged the report with the police. The same is State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.12 of 24 Ex.PW1/A.The accused Nazar Ali present in the court was the same person who had hired his TSR alongwith a lady. The 'Prasad' was also given to him by accused Nazar Ali. He has further deposed that after one week he came to know that his TSR was traced. So, he went to PS and told that his TSR is parked near Loni Border in abandoned condition. He alongwith police officials went there and found the TSR. He checked his TSR and found engine seat and CNG Kit and relevant documents and tyre tubes missing. The TSR was seized vide memo Ex.PW1/B. After two months police again called him to identify the accused persons at Tihar Jail. He went there but IO told him that the accused had refused to participate in the TIP. The TSR is Ex.P1. He had taken TSR engine on superdari vide superdginama Ex.Pw1/C. The engine is Ex.PW1/article1, photograph is Ex.PW1/article2, TSR is Ex.P1 and Photograph of TSR is Ex.PW1/article3. In cross examination he has stated that accused Pravez Alli was not with the passenger who stopped his TSR. He identified the accused Mohd. Nazar Ali in Tihar Jail in video conferencing where a lady Magistrate was also present. At the time of incident accused Nazar Ali was having a short beard. Prior to incident he had not seen accused Nazar Ali and even he does not know whether accused Nazar Ali was also TSR driver. At Matka State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.13 of 24 Peer Near Pragati Maidan they remained for about 20 minutes. He denied the suggestion that accused Nazar Ali had not given the 'Persad' to him at Matka peer near Pragati Maidan Again said the 'Persad' was given by lady passenger. He started giddiness at Sheikh Sarai. He had not asked the name of the driver of TSR by which he reached at his house. He had not gone to the doctor in the morning after regaining consciousness. He was taken by the police to hospital in the evening. He denied the suggestion that accused Nazar Ali was shown by the police to him or that Nazar Ali was falsely implicated in this case. He further denied the suggestion that accused was shown by the police in the PS.
21. Considering the above deposing made by complainant first he has stated that at Matka Peer, the Lady passenger gave some 'Persad' to eat which he had eaten and thereafter he became unconscious near Chirag Delhi. When he regained his consciousness he found himself in his house and his TSR was found missing. Thereafter he has stated that the accused Nazar Ali is the same person who had hired the TSR alongwith a lady. The 'Persad' was also given to him by accused Nazar Ali accused present in the court. In this case charge has been framed u/s 328 r/w sec. 379 IPC. Section 328 IPC reads as under: State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.14 of 24 "Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating, or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"
A perusal of this section would show that the following elements are essential to constitute an offence under section 328 IPC:
(i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing; and
(ii) The intention of the person or persons mentioned in (1) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person or persons that the result of his act or their act was likely to cause hurt to the concerned persons. Both these elements should exist conjunctively, then an then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in section 328 IPC.
22. In the present case the prosecution had sought to establish its case relying upon the evidence of PW1 Dashrath Prasad as well as recovery of TSR and Engine which was allegedly being carried by State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.15 of 24 accused Nazar Ali and Parvez in another stolen TSR. PW1 has alleged that he was given some unwholesome drug. The medical opinion is necessary to establish presence of such drug in the body of complainant. The prosecution has examined PW6 Dr. Praveer Kumar who has stated that he has seen the MLC Ex.PW6/A and it contents endorsement 'MLC CANCELLED' which implies that where the patient was produced for his medical examination and if it was a medico legal case and if MLC had already been prepared then MLC prepared on the occasion he was produced again was to be cancelled. I have also perused the said MLC. The MLC does not bear any clinical notes/observations. Further PW4 Ct. Bhanu had taken the victim to the hospital and he has stated that doctor enquired from the complainant but MLC was not prepared. Doctor gave in writing on the request of IO itself which is Ex.PW4/A. I have also perused the said Ex.PW4/A. The doctor has endorsed on this application - No complaint, no external injury, fit for statement. I have considered the entire deposition made by each and every witness and exhibited documents available on file. There is no definite medical opinion that PW1 had actually been administered any intoxicating substance mixed with 'Persad'. No stomach wash of PW1 has been preserved to bring the presence of such substance on file. Further, after arrest no State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.16 of 24 such drug has been recovered from the possession of accused to establish that he used to administer the same to his prey. PW1 has stated that he became unconscious and when he regained his consciousness he found himself in his house. He was residing with his brother. But his brother has not been examined in this case to corroborate the version of PW1 that he was unconscious on that day. The testimony of PW1 has not been corroborated by any other independent witness and even it has not been supported by the medical evidence. In view of the evidence available on file and in the absence of medical evidence, it cannot be established that PW1 was administered some intoxicating substance by accused Nazar Ali.
23. Charge has also been framed u/s 328 r/w sec.379 IPC against accused Nazar Ali. PW12 SI Gajraj Singh who is the IO of this case has stated that on 6.8.2004 complainant Dasrath told him that his TSR is parked near Loni Border in abandoned place. The TSR was taken into possession vide memo Ex.PW1/B. PW2 Ct. Jagpal Singh accompanied PW12 on 6.8.04. PW1 Dashrath who is the complainant has stated that after one week he came to know that his TSR was traced. So, he went to the police station and told by the police that his TSR is parked near Loni Border in abandoned State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.17 of 24 condition and thereafter he accompanied the police to that place. So, PW12 has stated that complainant has informed him about availability of TSR near Loni and PW1 has stated that it was told by the police. Further complainant has not disclosed as to how he came to know about availability of his TSR near Loni while he is resident of Taimur Nagar which is near to New Friends colony. Both have further stated that at that time TSR was not having engine, battery, tyres. It was brought to PS and deposited in the Malkhana. But they have not disclosed as to how the TSR was brought to Malkhana without tyres. I have considered the exhibited documents. From the testimonies of PW1, 2 &12 it is revealed that the place from where the TSR was seized has not been pointed out by the accused Nazar Ali. IO has not taken any step to get the place of recovery of TSR pointed out by accused Nazar Ali. So, the TSR in question has not been recovered from accused Nazar Ali or at the instance of accused Nazar Ali. In view of above discussions section 328 r/w 379 IPC is also not made out against him.
23. Accused Mohd. Pervez Ali has been charged u/s 411 r/w sec. 201 IPC. It has been alleged that engine of stolen TSR was recovered from him. As per the evidence of PW5 Ct. Neeraj, PW9 SI Rakesh State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.18 of 24 Kumar and HC Devender both the accused were arrested when they were going in TSR in which engine was loaded. Accused Nazar Ali was driving the TSR and allegedly accused Mohd. Parvez Ali was sitting at the rear seat. The TSR in which the engine was being carried was also found stolen in case FIR registered in PS Hauz Khas. The time of arrest of accused persons is day time in FIR no. 2/05 u/s 411 IPC PS Seelampur. But no public person has been joined at the time of recovery of alleged engine while it has been admitted by PW5 and 9 that many cyclists used to go to factories at that time. PW9 SI Rakesh Kumar in cross examination has stated that there was no passenger on the pillion seat of TSR at that time. So, some of the witnesses have stated that accused Mohd. Parvez Ali was sitting at the pillion seat and PW9 has stated that he was not sitting at the pillion seat. The accused persons were arrested in this present case after receipt of information from the IO of that case FIR 2/05. PW8 ASI Sheela has produced the copy of FIR no.2/05 which is Ex.PW8/A. From perusal of the said FIR it is crystal clear that it was registered u/s 411 against accused Mohd. Nazar Ali and accused Mohd. Parvez Ali and it was also for the recovery of Engines. No public witness has been examined in this case to prove that it was the same engine which was recovered from the accused persons. No State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.19 of 24 specific mark was put by the IO on the recovered engines that it is the same engine which was recovered from the accused. So, non joining the public persons creates doubt in the prosecution case. An important point has been observed in case Law 1998(8) Supreme Court 435 that in absence of independent evidence merely on basis of police officer's evidence about seizure of pistol and cartridge conviction could not be upheld. It is well settled law in the Darshan Singh vs. State of Haryana, 1997(2) CC Cases HC 189 that : "When genuine attempts has not been made to join public witnesses - One is constrained to observe that in case of suppression and misstatement of fact, it is difficult to believe the official witnesses".
25. Further as per the testimony of PW12, he sent the engine to FSL for chemical analysis and tendered report Ex.PW12/L. I have also perused the said report. It has been signed by Sh. Parshuram Singh, Sr. Scientific Assistant (Physics). So, this report has not been proved as per law. Further as per report after chemical treatment one digit could not be deciphered. This also has not been completely proved that it was the engine which was fitted in TSR bearing no. DL1RH 1142 of complainant. So, there is no evidence against accused Mohd. Parvez Ali for the commission of offence u/s 411 r/w State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.20 of 24 sec.201 IPC. It is stated in case titled Mohan Lal Vs. State of Maharashtra, AIR 1979 Supreme Court 1718 that : 'The mere presence of the accused in the shop where the goods were delivered did not itself prove the essential ingredients for an offence u/s 411 IPC.
In case law 1954 S.C 39 (vol.41 C.N.14) titled Trimbak Vs. State of MP it is stated in head not that: 'It is the duty of the prosecution in order to bring home the guilt of the person u/s 411 IPC to prove that the stolen property was in the possession of the accused'.
26. Important point has been observed in case Anirudha Agasti @ Surendera Pande Vs. State that presumption u/s 114(a) of Evidence Act, 1872 can arise only if the prosecution has, by clear and cogent evidence, established that an accused person has been in possession of the stolen articles.
In case titled Ramadhar Chamar & Ors Vs. State of Bihar it is stated in head note that :
'IPC 1860 - Sections 395 and 412 - Recovery of property stolen in the commission of dacoity - If it is to be made basis for conviction, onus lies on prosecution to prove that the article recovery must be in conscious and exclusive possession of accused - Onus not discharged
- Result - Acquittal'.
State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.21 of 24 In case law 2008(1) AD (Delhi) 735 Santsoh Kumar Vs. State, (Delhi) it is stated in head note that : 'IPC 1860, Sec. 328, 379 and 411 - Hurt - Administration of poison
- Punishment for theft, stolen property - Appeal - Held - findings are not sustainable because these are based on conjecture - Medical evidence should be there to establish the administration intoxicating substance was mixed in tea or in the biscuit - Prosecution failed to establish recovery of some goods from the possession of accused no details of the goods rendered which were recovered from the possession of the accused at the time of his apprehension by PW6 and those goods actually belonged to PW5 - Further recovery of any stolen property from the possession of the accused is not established
- Impugned Judgment passed by trial court is set aside and the accused stands acquitted of both the charges.' In case Law titled State Vs. Chotely Lal 1999 CRI. L.J. 3411 it is stated in head note B that : 'Penal Code (45 of 1860), S.411 - Dishonestly receiving stolen property - Proof - alleged recovery of bag from coaccused containing part of stolen property - Offence of robbery and murder against accused persons not made out - theory of recovery of stolen property from accused persons also not believed - Said alleged recovery from coaccused is of no consequence - Conviction of coaccused under S.411, set State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.22 of 24 aside'.
27. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
28. In view of my above discussions, the prosecution has miserably failed to establish even the part of the case regarding recovery of goods belonging to victim from the possession of accused. There is no evidence adduced by the prosecution to show as to what actually was recovered from the possession of accused at the time of his apprehension and as to what intoxicating substance was administered to PW1. So, I am of the view that the accused persons are entitled to be given the benefit of doubt in this case. I therefore give the benefit of doubt to accused Mohd. Nazar Ali and Mohd. State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.23 of 24 Parvez Ali. The prosecution could not prove the charge against both the accused. I therefore acquit accused Mohd. Nazar Ali for the commission of offence punishable 328 r/w sec. 379 IPC and accused Mohd. Parvez Ali u/s 411 r/w sec. 201 IPC. Accused Parvez Ali is on bail. His BB/SB are cancelled and surety is discharged. Accused Mohd.Nazar Ali is in JC. HE be released from jail forthwith if not required in any other case. File be consigned to record room.
Announced in the open Court on 19.03.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.24 of 24 State Vs. Mohd. Nazar Ali etc FIR no. 360/04 Page No.25 of 24