Delhi District Court
State vs . Raj Kumar on 8 July, 2014
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Raj Kumar
FIR No.220/13
U/s : 379/411/482 IPC
P.S. : Malviya Nagar
Date of institution of case : 31.10.2013
Date on which case reserved for judgment : 08.07.2014
Date of judgment : 08.07.2014
JUDGMENT
1.Sl. No. of the case : 220/13
2.Date of the Commission : 18.05.2013
of the offence
3.Name of the accused : Raj Kumar S/o Sh. Bhagwan Dass
: R/o H. No. A-2/131, Madangir,
: Ambedkar Nagar, New Delhi.
4.Name of the complainant : Shyam Narayan Prasad
: S/o Sh. Rameshwar Prasad
: R/o H. No. E-16, Ist floor, Geetanjali
: Enclave, Malviya Nagar, New Delhi.
5.Offence complained of : 379/411/482 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
FIR No. 220/13 State Vs Raj Kumar Pages 1/12
BRIEF FACTS
1. The story of the prosecution is that on 18.05.2013 at about 1.30am to 11.00am at E-16FF, back side of this house, Geetanjali Enclave, New Delhi, within the jurisdiction of PS Malviya Nagar, accused Raj Kumar dishonestly removed one Honda City car bearing no. DL-3CAK-5336 belonging to the complainant Shyam Narain Prasad and said car was recovered from the possession of the accused with forged number plate DL-4CBA-1255 whereas the real number was DL-3CAK-5336 which was reported to be stolen himself or knowingly retained and having reasons to believe the same to be stolen property and thereby committed offences punishable u/s 379/411/482 IPC.
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 31.10.2013.
4. On the basis of the charge-sheet, a charge for the offence punishable under section 379/411/482 IPC was framed against the accused Raj Kumar and read out to the said accused, to which he pleaded not guilty and claimed trial on 27.11.2013.
APPRECIATION OF EVIDENCE
5. To prove its case, prosecution examined the following witnesses:
6. PW-1 Shyam Narayan Prasad being complainant was examined on 11.12.2013 and deposed that on 18.05.2013 in the night at about 1.30am he had parked his Honda City Car behind his house and on the same day in the morning at about 11.00am when he noticed, the said FIR No. 220/13 State Vs Raj Kumar Pages 2/12 car was not found there and he made efforts to locate the same but of no avail. Accordingly, he made a complaint to SHO, PS Malviya Nagar which is Ex. PW-1/A bearing his signature at point A. He further deposed that he got released the said car on superdar as he is the registered owner of the said vehicle vide superdginama Ex. PW-1/B bearing his signature at point A. He further identified the photographs of the offending vehicle which are Ex. P-1 colly.
7. This witness was cross examined by Ld. LAC for the accused wherein he stated that the spot is not an authorized place for parking. He further deposed that he made inquiry from his neighbour namely Sanjay Gupta and made a call 100 number and police did not come at the spot. He further deposed that he went to PS Malviya Nagar at about 12.00 O'clock and some of the police officials had gone to inspect the spot. He further deposed that he does not remember the name of the police officials. He further deposed that he gave a written complaint to PS Malviya Nagar in the evening and came back after filing his complaint in the evening and no statements were recorded in his presence by the police and the site plan was prepared in his presence at his pointing out by the police. He further deposed that he was telephonically intimated by the police that his car has been recovered and the same was not recovered in his presence.
8. PW-2 HC Praveen Kumar was examined on 22.01.2014 and deposed that on 23.08.2013 he was posted as Ct. in PS Saket and on that day he arrested the accused in case FIR no. 322/13, u/s 379, PS Saket and had recorded disclosure statement of the accused. The photocopy of disclosure statement is mark A-1 bearing his signature at point A. He further deposed that on the basis of disclosure statement, he had recovered Honda City Car (Grey colour) bearing no. DL-4CBA-1255 (which FIR No. 220/13 State Vs Raj Kumar Pages 3/12 was found fake number plate) as later on he came to know its original no. DL-3CAK-5336. He further deposed that he had seized the offending vehicle vide seizure mark A-2 bearing his signature at point A and also prepared site plan of recovery which is mark A-3 bearing his signature at point A. He further deposed that later on he came to know that the said case property has been stolen from PS Malviya Nagar and he had intimated the staff of PS Malviya Nagar about recovery. He further identified four photographs of the offending which is Ex. P-1 colly. He further identified the accused present in the court. He further deposed that IO recorded his statement.
9. This witness was cross examined by Ld. LAC for the accused wherein he stated that on 23.08.2013 at about 2.00pm he made formal arrest of the accused in the court premises and he took PC remand for 4-5 days and on the same day he kept the accused in PS and on the next day he along with the SI Ravi Shankar, HC Ajeet, Ct. Sandeep and accused went to Meerut for recovery of offending vehicle and search for co-accused Tilak Raj by private taxi and reached there at about 12noon. He further deposed that he does not remember places where he got searched vehicle. He denied the suggestion that he did not go to Meerut therefore, he does not remember the place of recovery. He further deposed that on 26.08.2013 he got recovered the offending vehicle from Srifort parking. He further deposed that he did not seize the fake number plate of the offending vehicle and no public persons were present at the spot and no statements of public persons were recorded and no inquiry was made as regards the presence of the vehicle at the place of recovery and nobody was present at the place where the vehicle was recovered. He further deposed that he recorded the statement of accused in PS on the same day and he did not FIR No. 220/13 State Vs Raj Kumar Pages 4/12 request to any public persons for joining the investigation. He denied the suggestion that he was deposing falsely or that the accused has been falsely implicated in the present case or that the offending vehicle has been planted upon accused and vehicle was lying at PS before arresting of the accused.
10. PW-3 Ct. Sandeep Kumar was examined on 22.01.2014 and deposed that on 23.08.2013 he was posted as Ct. in PS Saket and on that day he had joined the investigation of this case along with HC Praveen in case FIR no. 322/13, u/s 379 IPC. He further deposed that IO had recorded the disclosure statement of accused Raj Kumar, photocopy of which is mark A-1 bearing his signature at point B. He further deposed that during investigation at about 9.00am he along with HC Praveen and accused Raj Kumar (who has already been arrested in FIR no. 322/13) reached at Srifort Auditorium parking and at the instance of accused IO had recovered a Honda City car (Grey colour) bearing registration no. 1255 (which was fake number plate). He further deposed that later on he came to know that the said number plat was fake one through IO and IO disclosed him the original registration number of the vehicle in question i.e. 5336 (he does not remember full description of RC no. of the vehicle in question). He further deposed that IO had called duplicate key maker who had developed the duplicate key of the vehicle and thereafter, IO had carried the said vehicle to the PS and seized and deposited in the PS Saket and IO had made formal arrest of accused Raj Kumar, photocopy of the said formal arrest memo is mark A-4 bearing his signature at point B. The photocopy of the seizure memo of the car is mark A-2 bearing his signature at point B. IO had prepared the site plan of the recovery of the spot vide photocopy is mark A-3 bearing his signature at point B. He further FIR No. 220/13 State Vs Raj Kumar Pages 5/12 identified the accused present in the court. He further identified four photographs of the vehicle which is on judicial record, same are Ex. P-1 colly.
11. This witness was cross examined by Ld. LAC for the accused wherein he stated that he along with IO HC Praveen and accused reached at the parking of Srifort Auditorium at about 9.00am. He further deposed that he does not remember when IO had recorded the disclosure statement of the accused and he does not remember the name of the photographer who had got clicked the photographs of the vehicle in question and he does not remember whether IO had seized the fake number plate or not. He voluntarily stated that IO had seized the vehicle in question. He further stated that he does not know the name and address of the duplicate key maker which has been arranged by the IO and IO had deposited the vehicle in question to MHCM of PS Saket at about 10.30am and IO had arrested the accused in PS Saket in the morning on 23.08.2013. He further deposed that MHCM HC Satish Kumar had deposited the case property in malkhana in his presence. He further deposed that his statement was recorded in the PS by the IO and no public persons were present at the spot at the time of recovery from the accused. He further stated that he does not know as regards the medical examination of accused and the original papers of the car were not seized in his presence by the IO. He denied the suggestion that he did not go to the spot along with IO and only he had signed the papers at the PS.
12. PW-4 HC Parmanand who is a formal witness was examined on 19.02.2014 and proved the FIR Ex. PW-4/A and his endorsement on the basis of rukka Ex. PW-4/B. FIR No. 220/13 State Vs Raj Kumar Pages 6/12
13. This witness was not cross examined by the accused person despite opportunity given.
14. PW-5 HC Chote Lal was examined on 05.03.2014 and deposed that on 18.05.2013 he was posted as HC at PS Malviya Nagar and the investigation of the present case was assigned to him. He further deposed that on 26.08.2013 he had received information regarding recovery of Honda City Car bearing no. DL-3CAK-5336 recovered from PS Saket. He further deposed that he made formal arrest of accused Raj Kumar in the present case on 06.09.2013 vide arrest memo Ex. PW-5/A bearing his signatures at point A and he had received the above said vehicle from PS Saket which was tagged with two forged number plate bearing no. DL-4CAB-1255 in front side and back side of the said vehicle. He further deposed that he was carrying the said vehicle to the Malkhana of PS Malviya Nagar and the said vehicle has been released by Hon'ble Court on superdari vide superdginama Ex. PW-1/B. He further deposed that he had seized fake number plate i.e. DL-4CBA-1255 vide memo Ex. PW-5/B bearing his signatures at point A and he had recorded the statement of HC Praveen and Ct. Sandeep and he had also recorded the disclosure statement of Raj Kumar vide Ex. PW-5/C bearing his signature at point A. He further deposed that he had prepared the charge sheet and filed before the court. He further identified the accused present in the court.
15. This witness was cross examined by Ld. LAC for the accused persons wherein he stated that he had received information about the recovery of vehicle in question through DD no. 61-B from the then DO of PS Saket. He further stated that he had made formal arrest of accused after 2.00pm at Saket Court complex along with Ct. Achin and he received the vehicle in question from PS Saket on 05.09.2013. He further deposed FIR No. 220/13 State Vs Raj Kumar Pages 7/12 that he had not put any seal when he seized the fake number plate of white colour in question. He further deposed that he had not found original number plate of the vehicle during investigation. However, he made efforts to trace out the same but in vain. He further deposed that the vehicle in question was handed over by the concerned MHCM of PS Saket and the fake number plate was attached with the car. He further deposed that he does not remember whether the statement of Ct. Achin was recorded by him during the course of investigation. He further deposed that he had recorded the disclosure statement of accused in presence of Ct. Achin and he had moved an application for production warrant on 31.08.2013 in Saket court and he deposited the vehicle in question in PS Malviya Nagar on 05.09.2013. He denied the suggestion that no recovery from the accused was effected or that the accused has been falsely implicated in this case.
16. PW-6 LDC Rohtash Singh was examined on 25.03.2014 and deposed that he was posted as LDC at Sheikh Sarai Authority, New Delhi. He further deposed that he had brought the particulars of RC of car bearing no. DL-3CAK-5336 and as per the record of vehicle particulars, the owner of the vehicle was Shyam Narayan Prasad S/o Sh. Rameshwar Prasad and registration date was 28.04.2006. He further deposed that he had brought the original file as well as certified copy from Inspector N.S. Rana. Certified copy is taken on judicial record which is Ex. PW-6/A (OSR).
17. This witness was not cross examined by the accused despite opportunity given.
18. PW-7 Ct. Achin was examined on 02.06.2014 and deposed that on 06.09.2013 he was posted as Ct. at PS Malviya Nagar and on that day he along with HC Chote Lal made formal arrest of accused Raj Kumar FIR No. 220/13 State Vs Raj Kumar Pages 8/12 vide arrest memo already Ex. PW-5/A bearing his signature at point B. Subsequently, IO had recorded the disclosure statement of accused Raj Kumar vide memo already Ex. PW-5/C bearing his signature at point B. He further deposed that IO had seized the fake number plate vide already Ex. PW-5/B bearing his signature at point B. He further identified the accused present in the court.
19. This witness was not cross examined by the accused despite opportunity given.
20. Apart from these six witnesses, no other witness was examined by the prosecution. Hence, PE was ordered to be closed on 23.06.2014. The statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 02.07.2014 wherein he stated that he does not want to lead any defence evidence.
21. Final arguments were advanced by Ld. APP for State and Ld. Counsel for accused persons. Heard.
Reasons for Decision
22. In the present matter, prosecution has examined seven witnesses in total including complainant namely Shyam Narayan Prasad who is the registered owner of the stolen vehicle. PW-1 Shyam Narayan Prasad has deposed that on 18.05.13 in the night at about 1.30am he had parked his Honda city Car behind his house and on the same day when he noticed at about 11.00am, the said Honda city car was not found there and he made efforts to locate the same but of no avail. A complaint in this regard which is Ex. PW-1/A was made to PS Malviya Nagar.
FIR No. 220/13 State Vs Raj Kumar Pages 9/12
23. Apart from this witness, prosecution has examined formal witnesses being police officials who have deposed as regards the sequence of events leading to recovery of offending vehicle. Considering the statements of formal witnesses, it is clear that the recovery was made from the accused does not stand proved and accordingly only on the basis of testimonies of formal witnesses with no corroborating or supporting material it is not possible to hold the accused person guilty. Further, IO has not been examined in the present matter. It is settled law that non examination of IO can be fatal to the case of the prosecution.
24. Further, no public witnesses to the recovery which is essential in cases in which recovery is the sole ground for conviction of the accused. It has further been stated by the PWs that public persons were requested to join the investigation but none of them agreed and left the spot. There is no explanation why no notices u/s 174 IPC read with section 42 Cr.P.C. were issued upon public persons.
In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
The failure of the prosecution to examine independent witnesses though available is fatal for their case.
In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that:-
Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken FIR No. 220/13 State Vs Raj Kumar Pages 10/12 against them, the case is rendered doubtful.
The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 the division bench of Honorable Justices Sh. S.B.Sinha and Sh. Dalveer Bhandari observed:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken. Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus:
"The court may presume-
(a)***
(b)***
(c)***
(d)***
(e)***
(f)***
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who holds its."
An adverse inference, therefore, could be drawn for non-examination of material witnesses." (emphasis supplied)
25. In absence of a public witness to the recovery and also in absence of an explanation as to why a public person was not joined, the prosecution has failed to prove the recovery of the vehicle from the accused beyond a reasonable doubt.
FIR No. 220/13 State Vs Raj Kumar Pages 11/12
26. Thus, the prosecution has not been able to prove the guilt of the accused persons beyond a reasonable doubt.
27. In the light of the above discussion, accused Raj Kumar is acquitted for the offence u/s 379/411/482 of IPC. Accused be released forthwith in this case if not wanted in any other case.
Previous bail bond in compliance of section 437-A Cr.P.C. to remain in force for a period of 6 month from today. File be consigned to record room.
Announced in the Court
on 08.07.2014 (CHETNA SINGH)
MM-02(SD)/ 08.07.2014
Certified that this judgment contains 12 pages and each page bears my signatures.
(CHETNA SINGH)
MM-02(SD)/ 08.07.2014
FIR No. 220/13 State Vs Raj Kumar Pages 12/12