Delhi District Court
State vs . on 17 April, 2012
1
IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 02 (SW)
DWARKA COURTS, DELHI.
In the matter of:
State
Vs.
Umesh Kumar & another
FIR NO. 254/03
P.S. Najafgarh
JUDGMENT
1. Sr. No. of the case : 02405R1019602003
2. Date of institution : 21.08.2003
3. Name of the complainant : Arun Kumar S/o Dhansi Ram
R/o RZ 38B, Ganpati Enclave,
Najafgarh, Delhi.
4. Date of commission of offence : 14.06.2003
5. Name of accused : 1) Umesh Kumar @ Michel
S/o Sh. Umed Singh R/o
Village Paprawat, Najafgarh,
Delhi [in judicial custody].
2) Munna @ Sunil S/o Sh. Om
Parkash R/o Village Calcutta,
24 Pargna, Gali No. 22, W.B.
6. Offence complained of : 411 IPC
7. Plea of guilt : Accused pleaded not guilty.
8. Date of reserving the Judgment: 04.04.2012
9. Final order : Acquitted
10. Date of such Judgment : 17.04.2012
Page no. 1 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03
2
FACTUAL BACKGROUND :
1. The FIR No. 254/03 u/s. 457/380 IPC Indian Penal Code, 1860 (IPC) was registered at PS Najafgarh on the complaint of Sh. Arun Kumar who mentioned that he along with his family members went to attend marriage ceremonies at his nephew's place on 09.05.2003 and thereafter he joined his job on 12.05.2003. Further, he stated that when he returned back his home on 13.05.2003 at 01.30 am, he found lock of the room of his house broken and entire household articles scattered. Then he woke up his neighbour Teja Ram and found that one stereo, gold chain, cash amount of Rs. 2,450/, two sarees and one bag were stolen. On 12.06.2003, both the accused persons were arrested in case FIR No. 303/03, PS Najafgarh under Section 25 of the Arms Act and they disclosed about their involvement in the present case. Thereafter, the stolen stereo was recovered at the instance of accused persons. After culmination of investigation, both accused persons were chargesheeted and produced to face the trial.
TRIAL PROCEEDINGS :
2. In light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr.P.C., vide order dt.
Page no. 2 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03 3 20.02.2004, Sh. Sudesh Kumar, the then MM, New Delhi, framed charge u/s. 411 IPC against both accused persons, to which they pleaded not guilty and claimed trial.
3. For proving its case, the prosecution produced seven witnesses.
3A. PW1, Arun Kumar, deposed on the lines of his written complaint Ex.PW1/A, on the basis of which FIR was registered. Further he stated that on 14.06.2003, he was present at a shop at Paprawat road and then SI V. P. Kochar alongwith both accused persons met him and SI V. P. Kochar told him that he is taking both the accused persons to recover his music system. Thereafter, he went alongwith SI V. P. Kochar and both the accused persons to Paprawat Village, from where the accused persons got recovered the music system from a house and same was seized vide memo Ex. PW 1/B. Further, he correctly identified the music system Ex. P1 in the court.
3B. PW2, W ASI Rani Devi, proved the present FIR Ex. PW 2/A. 3C. PW3, Ct. Lal Singh, mentioned that on 13.06.2003, he joined the investigation and both the accused persons were arrested vide memo Ex. PW 3/A and Ex. PW 3/B and pointing out memo of the place of occurrence Ex. PW 3/C was prepared at their instance. 3D. PW4, HC Hans Raj, testified that on 13.06.2003, SI V. P. Kochar Page no. 3 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03 4 gave disclosure statements of both the accused persons Ex.PW4/A & Ex.PW4/B to him and thereafter he interrogated them and they were formally arrested. Further, the pointing out memo was prepared at their instance. He further mentioned that earlier on 20.05.2003, a complaint Ex.PW 1/A was marked to him and on the basis of which he registered the FIR and he further prepared the site plan Ex. PW 4/C at the instance of the complainant. He further mentioned that on 14.06.2003, SI V. P. Kochar handed over the case property along with seizure memo to him. 3E. PW5, Ct. Jaipal, testified that on 12.06.2003 he along with HC Hansraj, Ct. Lal Singh and HC Ranbir were on patrolling duty at Chhawla Road and on the basis of secret information they stopped both the accused persons coming on the stolen scooter near Jhatikara Mod. 3F. PW6, HC Ranvir, testified that on 14.06.2003, he had joined the investigation and on that day both the accused persons took them to Paprawat Village and from one room the music system was recovered. 3G. PW7, SI V. P. Kochar, deposed on the lines of PW5. Further he mentioned that on 14.06.2003, the stolen stereo was recovered from the house of accused Umesh at Village Paprawat.
4. Statement of accused persons was recorded u/s 313 Criminal Procedure Code, 1973. When accused persons were briefed on all the incriminating evidence and documents, they denied the allegations and Page no. 4 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03 5 mentioned that they were taken to police station and were falsely implicated in the present case.
APPRECIATION OF EVIDENCE:
5. I have heard the State through Sh. Brijesh Kumar, Learned Assistant Public Prosecutor and Learned defence counsel.
6. Ld. APP for the State submitted that PW1 has proved the fact of theft of stereo Ex.P1 from his house and moreover he along with PW6 and PW7 have proved the recovery of stereo at the instance of accused persons and therefore, the charge stands proved against both of them. On the other hand, Ld. defence counsel argued that the recovery of case property have been planted on both accused persons and the evidence on record is not sufficient to establish the guilt of accused persons.
7. It is the prosecution case that both the accused persons were apprehended on 12.06.2003 on the basis of secret information and the stolen scooter and illegal weapon was recovered from them. Further, it is alleged that both accused persons gave disclosure statements Ex. PW 4/A and Ex. PW 4/B to the effect that they committed theft of articles from the house of complainant at the relevant time. Further, on 14.06.2003, at the Page no. 5 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03 6 instance of both accused persons a stereo make 'Phillips' was recovered from the house of Umesh and same was seized vide memo Ex. PW 1/B.
8. It is observed that there has been undue delay in the recovery of case property at the instance of accused persons since they were arrested on 12.06.2003 at about 08.30 pm and their disclosure statements were recorded immediately after their apprehension whereas recovery has been effected on 14.06.2003.
9. Further, it is observed that vide disclosure statement Ex. PW 4/A accused Umesh Kumar had mentioned that he had taken the stereo, sarees and gold chain to one Ram Prakash at Ghaziabad for disposing them of and he can get recovered these articles from there. Whereas accused Munna disclosed vide statement Ex. PW 4/B that co accused Michel @ Munna has kept Sarees, gold chain and stereo with him and he has given the same to some other person for disposing them of. As far as recovery of case property is concerned, it is evident that same is shown to have been effected from the house of Umesh. Now it is to be analyzed as to whether recovery of case property from the house of accused can be considered to have been made on the basis of their disclosure statements.
Page no. 6 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03 7
10. Before proceeding further, it would be pertinent to have a glance on the requirements or the conditions for applicability of the Section 27 of Indian Evidence Act:
a) That consequent to the information given by the accused, it led to the discovery of some fact stated by him;
b) The fact discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the information given by the accused;
c) Information given by the accused must lead to the discovery of a fact which is the direct outcome of such information;
d) The discovery of the fact must be in relation to a material object and of course would then embrace within its fold the mental condition i.e., the knowledge of the accused of the place where the object was produced and the knowledge that it was there;
e) Only such portion of the information as is distinctly connected with the said discovery is admissible; and
f) The discovery of the fact must relate to the commission of some offence.
11. It is evident that none of the accused had disclosed that stolen property is lying in the house of accused Umesh. Thus, it is held that the recovery of stereo Ex. P1 cannot be said to have been made on the basis of disclosure statement of both accused persons and therefore, this evidence is not admissible under Section 27 of The Evidence Act, 1872. Page no. 7 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03 8
12. Further, I am in agreement with the submissions of defence counsel that the complainant did not mention the make of stereo in his first complaint Ex. PW 1/A and since the complainant and PW4 admitted in his cross examination that the type of stereo, which was recovered in this case, are easily available in the market, it is difficult to conclude that the recovered stereo was infact stolen from the house of complainant. It is also evident that the case property was not sealed after its recovery and PW4 has admitted this fact. PW4 has also mentioned that IO did not put any specific identification mark on the case property and therefore, the identity of the case property is also doubtful.
13. It is also to be noted that the theft of case property was committed between 09.05.2003 and 12.05.2003 and the recovery has been made on 14.06.2003 and in such circumstances, after more than one month of incident of theft, the presence of complainant near Paprawat Village at a shop where SI V. P. Kochar came alongwith accused persons is also doubtful. In the facts and circumstances of the case, IO was required to recover the case property from the accused persons without involving the complainant in the investigation and thereafter should have moved an application for TIP of the case property so as to proceed against both the accused persons. Furthermore, there is no explanation as to why no public witness was joined during the recovery proceedings. Page no. 8 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03 9
14. In view of above, it is held that there are number of material contradictions and lacunas in the prosecution case which cast reasonable doubt on the prosecution story. On this issue, the Supreme Court of India, in catena of decisions, has affirmed the cardinal principle of criminal jurisprudence that prosecution is required to establish the charge against the accused beyond reasonable doubt. In one of such cases, titled as Gurbachan Singh vs Satpal Singh & Ors, AIR 1990 SC 209, it was laid down that:
"Criminal charges must be brought home and proved beyond all reasonable doubt. While civil case may be proved by mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt. See Mancini v. Director of Public Prosecutions, [1942] AC 1, Woolmington v. The Director of Public Prosecutions, [1935] AC 462. It is true even today, as much as it was before. There must not be any 'reasonable doubt' about the guilt of the accused in respect of the particular offence charged. The courts must strictly be satisfied that no innocent person, innocent in the sense of not being guilty of the offence of which he is charged, is convicted, even at the risk of letting of some guilty persons. Even after the introduction of s. 498A of the I.P.C. and s. 113A of the Indian Evidence Act, the proof must be beyond any shadow of reasonable doubt. There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases. See the observations of Lord Denning in Bater v. Bater, [1950] 2 AER 458 at 459 but the doubt must be of a reasonable man. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. The conscience of the court can never be Page no. 9 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03 10 bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated."
CONCLUSION :
15. In view of discussion made above, it is held that the prosecution has failed to prove the charge against the accused persons beyond reasonable doubt. Accordingly, both accused persons are pronounced not guilty.
Announced in the open court ( Vivek Kumar Gulia )
On 17th Day of April, 2012 MM02 (SouthWest)
(total ten pages) Dwarka Courts,Delhi.
Page no. 10 of 10 State Vs. Umesh Kumar & Anr.; FIR No. 254/03