Delhi District Court
Mukesh Kumar vs Anil Singh 1988 Supp on 26 November, 2014
1
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS): NORTH DISTRICT
ROHINI COURTS: DELHI
Criminal Appeal No.08/2013
The State(NCT of Delhi)
Through: Public Prosecutor, Delhi.
Versus
1. Mukesh Kumar
S/o Sh. Jai Singh,
R/o 142, Gali no.9, Vaishali Enclave,
Burari, Delhi.
2. Babli
S/o Sh. Chandra Bhan
r/o 86, Village Mukundpur,
Delhi.
..... Accused Persons/ respondents
Date of Institution:11032013
Date of conclusion of Arguments:24112014
Date of pronouncement of Judgment:26112014
JUDGMENT
1. Appellant is aggrieved by the judgment dated 2411 2012 passed by Mr. Sunil Kumar, ld. MM, Rohini Courts, vide which both respondents were acquitted.
2. Facts are that Shiv Kumar is a constable of Delhi Police. In the night intervening 2662011 and 27062011 at about 12.00 State v. Mukesh etc.08/13 page 1 of 6 2 midnight his purse containing Rs.17,000/, identity car, ATM card issued by Axis Bank and four mobile phones were stolen.
Both accused were arrested on 05092011 and they got recovered two mobile phones.
3. APP submitted that he was not disputing the acquittal of the respondents u/s 457 and 380 IPC. He is disputing their acquittal only u/s 411 IPC.
4. APP argued that both respondents were acquitted by the trial court on the ground that conviction cannot be passed on the sole testimony of police officers as further corroboration was not found supporting on behalf of the public witnesses. APP submitted that prosecution had examined Ct. Vijender, Ct. Sultan, HC Rajesh and SI Virender as PW5, PW6, PW7 and PW8 respectively to prove the recovery. Lastly, it is contended that in the absence of public witnesses, the testimony of recovery witnesses should have been believed by the trial.
5. It was held in State of U. P. Vs. Anil Singh 1988 SUPP SCC 686 by the Apex Court that the public at large are generally reluctant to come forward to depose before the court, therefore, the prosecution case cannot be doubted for nonjoining of independent witnesses. In State (Govt. of NCT of Delhi) Vs. Sunil & Ors. (2001) I SCC 652 Hon'ble Supreme Court held :
"We feel that it is an archaic notion that actions of the police State v. Mukesh etc.08/13 page 2 of 6 3 officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect State v. Mukesh etc.08/13 page 3 of 6 4 signatures of independent persons in the documents made contemporaneous with such actions."
In Ramjee Rai & Ors. Vs. State of Bihar, (2006) 13 SCC 229 the Apex Court held that it is now well settled that what is necessary for proving the prosecution case is not the quantity but the quality of evidence. The Court cannot overlook the changes in value system in the Society. When an offence is committed in a village owing to land, dispute the independent witnesses may not come forward.
6. In the absence of public witnesses, the court is to peruse the testimony of police witnesses with care and caution. PW7 HC Rajesh is IO. Prosecution case is that accused Babli got recovered a mobile phone of Fly company from the suit case kept in his house vide seizure memo Ex.PW5/A. Accused Mukesh got recovered Nokia 7210 mobile from an iron box kept in his room vide seizure memo Ex.PW5/B. In both seizure memos, name of PW7 HC Rajesh is not appearing in the category of witnesses to the seizure. It means that it was he who wrote both seizure memos. It is quite surprising that both memos have totally different hand writings. It is visible from the face of memos that both have not been written by the same person.
PW5 Ct. Vijender is witness to the recovery of mobile phones from both accused. When he appeared in the witness box as PW5, he deposed only against accused Babli stating that two mobile State v. Mukesh etc.08/13 page 4 of 6 5 phones were recovered from him. It is quite interesting that as per seizure memo Ex.PW5/A, only one mobile phone was recovered from accused Babli. He did not mince a single word against accused Mukesh.
PW6 Ct. Sultan Singh deposed that Babli got recovered a mobile phone of Fly Company from iron box. As per seizure memo Ex.PW5/A, mobile phone was got recovered not from iron box but from suit case. He further deposed that Babli had also got recovered another mobile phone of Nokia X6 but as per seizure memo Ex.PW5/A, only one mobile phone was got recovered by accused Babli.
Both memos i.e. Ex.PW5/A and Ex.PW5/B bear signatures of both accused. It is pertinent to mention that Ex.PW5/A pertains only to accused Babli and Ex.PW5/B to accused Mukesh. It is beyond comprehension why the IO obtained signature of accused Mukesh on Ex.PW5/A and of accused Babli on memo Ex.PW5/B. Signatures of accused Mukesh on both memos are in different ink if compared with ink appearing in rest of the contents.
Arrest and personal search memos, disclosure statements, and seizure memos bear the date as 05092011. PW7 had claimed in examination in chief itself that both accused persons were arrested on 04092011 at the instance of secret informer. He further added that notices u/s 160 Cr.PC were served upon both State v. Mukesh etc.08/13 page 5 of 6 6 accused and he contradicted himself by deposing that both accused came in PS in the same evening in pursuance to notice. They could not be examined fully and hence were allowed to go home. This portion of his testimony is contradictory to his earlier statement that both accused were arrested on 04092011. If the accused were arrested on 04092011, how PW7 can let them go.
7. In view of above discussion, the appeal fails and impugned judgement is upheld but not on the reasons given by trial court. Copy of this order be sent to the trial court with TCR. Appeal file be consigned to recordroom.
Announced in the open Court On this 26th day of November, 2014.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North Distt: Rohini Courts: Delhi
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