Delhi District Court
State vs . Kallu @ Mohan & Ors. on 13 February, 2020
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-02(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.46/11
PS Timarpur
State Vs. Kallu @ Mohan & Ors.
U/s 379/411/34 IPC
CNR No.DLCT-02-001965/13
CIS No. 293576/16
JUDGMENT
(a) Sr. No. of the Case 293576/16
(b) Date of offence 02.03.2011 and 20.03.2011
(c) Complainant Devender Kumar Sharma S/o. Sh. Mahavir
Sharma, R/o. Village Telipura Khalsa, PS Rajab
Pur, District J.B. Nagar, Amroha, Delhi.
(d) Accused 1. Kallu @ Mohan S/o. Mahi Lal, R/o. N-68/263, T-Huts, Aruna Nagar, Majnu Ka Tila, Delhi.
2. Shankar @ Shambhu S/o. Sh. Ashrafi Lal, R/o.
N-68/263, T-Huts, Aruna Nagar, Majnu Ka Tila, Delhi.
3. Vinay S/o. Ajeet, R/o. House No. N-68/105, T-
Huts, Aruna Nagar, Majnu Ka Tila, Delhi.
4. Vishal S/o. Inder Prasad, R/o. N-68/436, T-
Huts, Aruna Nagar, Majnu Ka Tila, Delhi.
(e) Offence 379/411/34 IPC (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 14.08.2013 (i) Date when judgment was 13.02.2020 reserved (j) Date of judgment 13.02.2020. FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 1 of 19 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Timarpur against accused persons Kallu @ Mohan, Shankar, Vinay and Vishal for the offence U/s 379/411/34 IPC.
2. It is the case of the prosecution that on 02.03.2011, in between 1:30 am near Metro wall behind Nursery, Punjabi Basti, Delhi, accused persons Kallu @ Mohan, Shankar @ Shambhu, Vnay and Vishal have committed theft of welding lead, grinder machine and motor pump belonging to the complainant company "M/s Lamberdar Crane Service" without consent of the complainant company and thereby committed an offence under Section 379/34 IPC.
3. It is further alleged that on 20.11.2011, at House no. N-68/259, T-Huts, Majnu Ka Tila, Delhi (i.e. house of the accused Shanker @ Shambhu), accused Shanker @ Shambhu, got recovered the aforementioned motor pump belonging to the complainant company which he retained or received knowing or having reasons to believe the same to be stolen property and thereby he committed an offence under Section 411 IPC.
4. It is further alleged that on 20.11.2011, at House no. N-68/263, T-Huts, Majnu Ka Tila, Delhi (i.e. house of the accused Kallu @ Mohan), accused Kallu @ Mohan, got recovered four welding leads belonging to the complainant company which he retained or received knowing or having reasons to believe the same to be stolen property and thereby he committed an offence under Section 411 IPC.
COURT PROCEEDINGS
5. After completion of the investigation, charge-sheet was filead by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused persons Kallu @ Mohan, Shankar, FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 2 of 19 Vinay and Vishal.
6. Thereafter, charge under Section 379 IPC was framed against all the accused persons Kallu @ Mohan, Shankar, Vinay and Vishal and charge under Section 411 IPC was also framed agianst the accused persons Shankar @ Shambhu and Kallu @ Mohan vide order dated 06.08.2014 passed by Ld. Predecessor to which they pleaded not guilty and claimed trial.
7. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
8. In order to prove the guilt of the accused, prosecution examined as many as 11 witnesses.
9. PW-1 is Vishesh Kumar, who deposed that on 02.01.2011, he was working as labourer near Metro boundary wall, Punjabi Basti, Delhi, that at about 1:30 am, 4-5 boys came there and started quarreling with their guard whose name he do not remember, that after hearing the noise, he asked the aforesaid boys about the reason of quarreling then boys abused him, that he saw one police gypsy coming towards the spot and he started running towards police gypsy to save himself, that they checked their tool box and lock of that box was found broken and welding lid, water motor and grinder machine were missing from the tool box, that IO recorded his statement in this regard.
10. PW-1 was cross examined by Ld. APP for the State, wherein he admitted that the date of incident was 02.03.2011 and due to lapse of considerable time he could not remember the exact date.
11. In the cross examination by Ld. Defence Counsel, PW-1 deposed that the distance between his room and work place was about 1 km. He admitted that he do not remember the faces of aforesaid assailants.
FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 3 of 19
12. PW-2 is HC Harender Singh, who deposed that on 02.03.2011, he was deputed as Duty Office, that he registered the FIR of the present case which is Ex. PW-2/A, made endorsement on rukka Ex. PW-2/B.
13. PW-3 is Hari Om Sahu, who deposed that on 02.03.2011, the work of Jal Board regarding repairing of pipe line was going on in the Punjabi Basti behind nursery near the metro wall, that he was working as a welding helper in the above mentioned work, that he along with his other co- workers Vishesh and Devender were sleeping in the crane stationed nearby, that at about 1.30-2:00 pm, Vishesh woke him up from sleep as there was loud noise of talking from the outside, that he asked Vishesh to talk to the persons and Vishesh asked them as to what were they doing there and why they had come there and on asking those persons they started abusing but after some time they left the place, that they went back to the crane, that after some time they heard the noise of "chor chor ", that on hearing the shouting of "chor chor ", they came out and saw 4-5 persons and noticed that their some material including motor, building cable, hammer etc was stolen regarding which they informed to their supervisor, that after 15 minutes, supervisor came on the spot and called at number 100, that IO had recorded his statement.
14. PW-3 was cross examined by Ld. APP for the State, during cross examination, PW-3 denied that the persons who came later on, threatened them and told them to go back and sleep inside the crane, that the witness was confronted with the statement EX.PW3/A recorded u/s 161 Cr.P.C from point X to X1 where it is so recorded.
15. In the cross examination by Ld. Defence Counsel, PW-3 deposed that on 02.03.2011, he along with one other was sleeping at the time of incident. He admitted that Vishesh was not sleeping with him, that he can not deny or admits whether these boys present in the court today are the same persons who had committed the theft at the date of incident, that his statement was recorded at the police station on the same night. He denied that he is deposing falsely.
FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 4 of 19
16. PW-4 is Sh. Rajender, who deposed that it was winter time as he do not remember the exact date and year, that it was November or December, that he was available on his duty as Security Guard as some water supply work was carried on at near Majnu Ka Tilla, that some water pipes were lying there along with some other articles, that it was water pipe line connected from Wazirabad to Chandrawal, that it was about 12:00 midnight or 1:00 am, that he noticed four persons who had mufflead face and having one iron bars/sariya in their hands, that in the meantime, one person came around him and two of them started breaking the lock of one box lying their belonging to the department of water supply, that after breaking the lock of the said box, accused persons took some articles but he do not remember the type of articles, that one JCB machine was also lying there, that there were two-three persons and they were labourer working for thekedar, that when one accused person asked the workers who were present on the JCB to come outside, that workers were afraid, that the said accused persons took articles belonging to department or thekedar with them and fled away from the spot, that the said workers called to the supervisor and supervisor called to the police, that he was called at PS along with some officers whose name he do not remember and reported the matter to the police, that he came to know the police official apprehended some persons involved in the said case after 15-20 days of the incident and he was also called from home to PS to identify the said accused persons, that when he was in the PS he was shown some persons at PS and police officer asked whether he can identify them, that he refused to identify them because accused persons were having muffled face at the time of incident so he could not identify them, that police official made inquiry from him and prepared some documents in his presence, that he left for home, that he cannot identify the said stolen articles if shown to him due to lapse of considerable time.
17. In the cross examination by Ld. APP for the State, PW-4 deposed that he is 12th passed and he can read Hindi, that he did not make any statement, that police official recorded his statement on their own. He denied that the incident was of 02.03.2011, that four persons who were FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 5 of 19 possibly of 20-25 years old were talking to each other and on that day, Devender Kumar Sharma, Hari Om Singh and Vishesh were also on duty along with him and when the said four person were talking to each other, he woke up. He was confronted with the statement from point A to A1 where it is so written in statement Mark R. He denied that he along with Vishesh asked the said persons that what they are doing there and they started abusing them and in the meantime, Vishesh saw one police gypsy coming on the road and he ran towards said gypsy and the said boys also to ran away. He was again confronted with the statement from point B to B1 where it is so written. He denied that the said boys returned back and told him that they will took the iron and will leave and they have also stolen some maps and some articles from the spot, that they came to know later on that one welding lead, one grinder machine, one water pump was also stolen. Witness was confronted with the statement from point C to C1 where it is so written in statement Mark R. He denied that Vishesh made a call to supervisor and disclosed the whole incident to them and the said persons did not beat them and they only stolen some articles, that he had disclosed in his statement that he can identify them if shown to him. He was confronted with the statement from point D to D1 where it is so written in statement Mark R. He further deposed that he cannot identified them even if shown to him. He denied that he is intentionally not stated true facts. Thereafter, attention of witness is drawn towards the accused and witness could not identified them. He denied that he is intentionally not identifying the accused persons being won over by them or due to fear factor, that he is deposing falsely with respect of the factum of identification of accused persons.
18. PW-5 is Retired SI Manohar Lal, who deposed that on 19.11.2011, he was the IO of the case FIR no. 250/11 and he arrested the accused persons namely Kalu, Vinay, Vishal and Shanker and prepared arrest memo in the said FIR No. 250/11 of accused namely Kalu, Vinay, Vishal and Shanker, that he also recorded their disclosure satement in case FIR No. 250/11 Mark S (Shanker), Mark K (Kalu), Mark V (Vinay), that in the said disclosure statement, accused persons disclosed their involvement FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 6 of 19 in the present case at PS Timarpur in case FIR No. 46/11, that he handed over all the documents prepared in case FIR no. 250/11 to the IO of the present case i.e. FIR no. 46/11 as he shared the involvement of the accused to the IO of the present case, that IO arrested the above said accused persons in the present case and prepared memos Ex. PW- 5/A to Ex. PW-5/D, that IO conducted their personal search vide memos Ex. PW-5/E to Ex. PW-5/H, that IO prepared disclosure statement of accused Vishal and Vinay in the present case which is Ex. PW-5/I and Ex. PW-5/J, that case property of the present case was recovered from accused Kalu @ Mohan and accused Shanker @ Shambhoo from their respective houses and he do not remember the address of respective houses of the accused persons due to lapse of considerable time. Thereafter, attention of witness is drawn towards seizure memo of water pipe as recovered from accused Shanker and seizure memo four welding leads from accused Kalu. He admitted that he had signed the said seizure memo at point A respectively and seizure memo are exhibited as Ex. PW-5/K and Ex. PW-5/L. Thereafter, attention of the witness is drawn towards two site plans of recovery of four welding leads and motor pipe prepared separately. He admitted that he had signed the said site plans which are exhibited as Ex. PW-5/M and Ex. PW-5/N , that attention of the witness is drawn towards seizure memo Ex. PW-5/K, he admitted that recovery was effected from accused Shanker @ Shambu from his house i.e. 68/259, T-Huts, Majnu Ka Tilla and from one room, that attention of witness is drawn towards seizure memo Ex. PW-5/L, he admitted that recovery of four welding leads was affected from the accused from his house i.e. N-68/263, T-Huts, Majnu Ka Tilla. Thereafter, MHC(M) has produced the case property i.e. two pullindas, one white polythene from which one pullinda bearing particulars of the present case duly sealead with the seal of court, that seal is broken and one water motor pump make powerman was taken out and shown to witness, that witness correctly identified the same as Ex. P-1, that another pullinda was opened bearing seal of Court out of which four welding leads are taken out, that same are shown to the witness, who correctly identified the same as Ex. P-6 (colly).
FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 7 of 19
19. PW-6 is SI Anand, who deposed that on 07.11.2011, he was posted as SI at PS. Timarpur, that investigation of the present case was marked to him, that he collected the case file from MHC(R), that after necessary inquiry, on dated 19.11.2011, he arrested the accused persons namely Kallu, Shankar, Vinay and Vishal and conducted their personal search vide memos Ex.PW5/A, Ex.PW5/D, Ex.PW5/B, Ex.PW5/C and Ex.PW5/E, Ex.PW5/H, Ex.PW5/F, Ex.PW5/G, that on interrogation, he found that the said accused persons made disclosure in FIR no.250/11 and they confessed their involvement in the present case FIR, that he collected the disclosure statements of the accused persons and other necessary documents of the case FIR no. 250/11, that he recorded the disclosure statement of accused Kallu, Shankar, Vishal and Vinay separately vide memos Ex.PW6/A and Ex.PW6/B and EX.PW5/I & EX.PW5/J B, that accused persons disclosed their involvement in the present case and also disclosed that they sold some stolen articles i.e. welding machine to junk dealer and some articles were kept in their houses i.e. welding lead, water motor pump, that they also disclosed that they all jointly committed theft at behind the metro wall where some construction work was going on, that he produced all the accused persons before the court and took one day PC remand.
20. He further deposed that on 20.11.2011, they took accused persons at the place disclosed by them i.e. accused Shankar took them at his jhuggi near Majnu Ka Tilla i.e. N-68 where accused Shankar produced water motor pump and disclosed that the same water pump make of powerman was stolen from behind the metro wall, near gas godown where some construction work was going on, with other accused persons namely Kallu, Vinay and Vishal, that he sealead the said motor pump with the seal of AS after wrapping the same in a white cloth, that he seized the same vide seizure memo EX.PW5/K, that accused Kallu took them at his jhuggi which is situated at N-68/263 near Majnu Ka Tilla and produced four welding lead and disclosed that same was stolen from the place near gas godown where some construction work was going on with other FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 8 of 19 above-said accused persons, that he measured the said welding lead and thereafter sealed the same with the seal of AS while wrapping in a white cloth and seized the same vide seizure memo EX.PW5/L, that he prepared recovery site plan of the spot where the said articles were recovered at the instance of accused Kallu and Shankar, that the site plan are Ex.PW5/M & Ex.PW5/N, that he made a search of accused/junk dealer to whom the stolen articles were sold by accused persons but all in vain, that after completion of investigation, he filed the charge-sheet. Thereafter, MHCM has produced two sealed pullindas with the seal of AS having particulars of the present case, that the seal is broken with the permission of the court, that the first pullinda is opened from which four welding lead are taken out and same are shown to the witness and witness correctly identified the same after seeing the same, that the welding lead collectively EX.P6(Colly.), that the second pullinda is opened from which one water motor pump make of Power man is taken out and same is shown to the witness and witness correctly identified the same after seeing the same, that the water motor pump is EX.P6/1.
21. In the cross examination, PW-6 deposed that on 07.11.2011, he was in the PS for duty of 24 hours, that on 20.11.2011, he was accompanied with ASI Manohar Lal and Ct. Pradeep, that he do not remember the time when he visited the spot of recovery, that on the day of recovery, he did not find any other person in the jhuggi of Kallu @ Mohan, that accused took the four welding lead from the one side of corner of jhuggi and produced the same before him, that 2-3 public persons from the locality were gathered at the spot. He denied that that no recovery was effected from accused Kallu @ Mohan. He admitted that he has not collected the ownership proof of the recovered articles, that he has not joined public persons in the investigation qua recovery. He denied that he did not investigate the present case fairly and did not inquire from the public persons present at the spot, that he did not visit the alleged spot and all the paper work were done while sitting at PS.
22. PW-7 is Mahavir Sharma, who deposed that on 07.12.2011, IO came to FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 9 of 19 inquire about his son Devender, that he informed to IO that his son Devender had left the house two years before the aforesaid date, that he came to know in the year 2010 that he resides in Delhi and works on some crane, that he neither have any phone number nor he gave any number to them as he became habitual drunker, that he excluded him from his family and property, that he never returned to their home till date, that he do not have any knowledge about his whereabouts, that he advertised in newspaper regarding the aforesaid fact and photocopy of the same is Mark X.
23. PW-8 is Ct. Pradeep Kumar, who deposed that on 19.11.2011, he was posted as Constable at PS Timar Pur, that he was involved in the investigation of the present case with SI Shiv Charan, that ASI Manohar, who was IO in FIR No. 250/11 had arrested four accused persons namely Kallu @ Mohan, Vinay, Vishal and Shankar, that IO SI Anand Singh recorded the disclosure statements of all four accused persons in which they have disclosed that they had stolen grinder machine, water pump, welding lead from a box which is behind metro wall vide disclosure statement of accused Ex. PW6/A and of accused Shanker Ex. PW6/B and disclosure statements of accused Vishal and Vinay is Ex. PW5/I and Ex. PW5/J, that IO recorded his statement.
24. PW-9 is SI Shiv Charan, who deposed that in the intervening night of 01- 02.03.2011, he was posted as SI at PS Timar Pur, that he was performing emergency duty at PS from 08:00 PM to 08:00 am, that he received DD No. 8A and thereafter he along with Ct. Narender went to the spot near Metro Wall, Behind Nursery, Punjabi Nursery where he met complainant Devender Kumar Sharma and he narrated him whole incident, that he recorded his statement which is Ex. PW9/A, that he prepared tehrir Ex. PW9/B and handed over the same to Ct. Narender for registration of FIR, that after registration of FIR, Ct. Narender returned to spot along with copy of FIR and original rukka and handed over the same to him, that he prepared site plan Ex. PW9/C at the instance of complainant, that complainant produced iron rod and Harrison lock and FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 10 of 19 told him that thieves used the iron rod in order to break the lock of box in question, that he took the possession of the aforesaid articles produced by complainant and converted them into Pullinda after placing in transparent polythene and sealed the same with the seal of SC and seized the same vide seizure memo Ex. PW9/D, that he searched for accused persons and case property, however, he could not trace them, that he along with Ct. Narender and case property went to PS, that case property was deposited in malkhana, that he recorded the statement of witnesses. Thereafter, MHC(M) has produced two separate Pullindas bearing seal of SCM and particulars of present case, that seal was opened and from these Pullindas one iron rod and one broken Harrison lock is taken out and same are shown the witness, who correctly identified the same. Lock is Ex. P9A and iron rod is Ex. P9B.
25. In the cross examination by Ld. APP for the State, PW-9 admitted that on spot he also met three other witnesses namely Vishesh Kumar, Rajender Singh and Hari Om Sahu and he also recorded their statement under section 161 Cr.P.C He further deposed that he took complainant Devender Sharma for the purpose of preparing sketch of accused persons, however, complainant Devender Sharma told him that he could not see the face of accused persons due to darkness at the time of theft in present case and for this reason, no sketch of those accused persons could be prepared, that he did not ask any other aforesaid witness for the purpose of preparing sketch of accused in present case, that he recorded the supplementary statement of complainant.
26. PW-10 is Rajbir Singh, who deposed that at the time of incident, he was doing the work of agriculturist, that Devender Kumar Sharma is the son of Mahabir Sharma who was his neighbour, that Devender was habitual drunker, that before two years of the incident, he has left the village for doing work in Delhi and after that his present whereabouts are not known and he has not seen him in the village since 10-11 years, that he has no information about him at present.
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27. PW-11 is Sandeep Soni (Ahlmad), who brought the judicial record of case FIR No. 250/11 PS Timarpur, under Section 379/411/34 IPC, that as per the file the disclosure statement of the accused Shanakar @ Babu was marked as Mark S and same was Ex. PW-11/A (OSR), that second disclosure statement of the accused Shanakar @ Babu is Ex. PW-11/B (OSR), that the disclosure statement of accused Kallu @ Mohan is Ex. PW-11/C (OSR), that the disclosure statement of accused Vinay is Ex. PW-11/D (OSR), that the copy of FIR No. 250/11 PS Timarpur, Under Section 379/411/34 IPC is Ex. PW-11/E (OSR).
28. It is pertinent to mention here that PW Devender Kumar Sharma was not examined in the case in hand as he was dropped from the list of witnesses being not traceable vide order dated 10.08.2017 passed by Ld. Predecessor.
29. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
30. Statement of the accused persons Kallu @ Mohan, Shankar, Vinay and Vishal under Section 313 Cr.PC was recorded vide order dated 10.02.2020 by putting entire incriminating evidence to the accused persons. They denied the allegations against them and stated that they have been falsely implicated in the present case. Accused persons chose not to lead DE, accordingly, Defence evidence was closed and matter was fixed for final arguments.
31. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 12 of 19
32. Perusal of the record reveals that all the accused persons Kallu @ Mohan, Shankar, Vinay and Vishal were charged with the offences under Section 379/34 IPC and accused persons Shankar and Kallu were also charged for the offence under Section 411 IPC.
33. Section 379 IPC stipulates that:-
"Punishment for theft- whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
34. Section 411 IPC stipulates that:-
"Dishonestly receiving stolen property- whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
35. Section 34 IPC stipulates that:-
"Acts done by several persons in furtherance of common intention- when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same Maaner as if it were done by him alone".
36. It is the case of the prosecution that on 02.03.2011, in between 1:30 am near Metro wall behind Nursery, Punjabi Basti, Delhi, accused persons Kallu @ Mohan, Shankar @ Shambhu, Vnay and Vishal have committed theft of welding lead, grinder machine and motor pump belonging to the complainant company "M/s Lamberdar Crane Service" without consent of the complainant company and thereby committed an offence under Section 379/34 IPC.
37. It is further alleged that on 20.11.2011, at House no. N-68/259, T-Huts, Majnu Ka Tila, Delhi (i.e. house of the accused Shanker @ Shambhu), accused Shanker @ Shambhu, got recovered the aforementioned motor FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 13 of 19 pump belonging to the complainant company which he retained or received knowing or having reasons to believe the same to be stolen property and thereby he committed an offence under Section 411 IPC.
38. It is further alleged that on 20.11.2011, at House no. N-68/263, T-Huts, Majnu Ka Tila, Delhi (i.e. house of the accused Kallu @ Mohan), accused Kallu @ Mohan, got recovered four welding leads belonging to the complainant company which he retained or received knowing or having reasons to believe the same to be stolen property and thereby he committed an offence under Section 411 IPC.
39. Perusal of the record reveals that complainant Devender Kumar Sharma was not examined in the case in hand as he was dropped from the list of witnesses being not traceable vide order dated 10.08.2017 passed by Ld. Predecessor, therefore, complaint itself goes unproved due to non examination of complainant.
40. PW-1 is public witness Vishesh Kumar who miserably failed to identify the accused persons and admitted in his cross examination that he do not remember the faces of assailants.
41. PW-3 is another eye witness/public witness namely Hari Om Sahu, who also failed to identify the accused persons and categorically deposed that he cannot deny or admit whether the boys present in the Court are the same persons who have committed theft on the date of incident.
42. PW-4 Sh. Rajender (Public/eye witness) was also failed to identify the accused persons as well as stolen property and deposed that he cannot identify the accused persons as they were having muffled face at the time of incident and he do not remember the the type of articles and therefore, cannot identify the stolen articles even if shown to him due to lapse of time. By way of aforesaid testimony all the three public/eye witnesses failed to identify the accused persons as well as stolen property.
FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 14 of 19
43. So far as the recovery of stolen article is concerned its ownership cannot be established as PW-6 i.e. IO categorically admitted in his cross examination that he has not collected ownership proof of the recovered articles. Furthermore, he also deposed that he do not remember the time when he visited the spot of recovery and two-three public persons from the locality were gathered at the spot but he has not join those public persons in the investigation qua recovery.
44. No plausible explanation has been given for non joining of the public witnesses to the recovery proceedings.
45. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining other independent witnesses.
46. The Law in this regard has also been enunciated clearly in case titlead as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failead to join independent witnesses in the investigation despite their availability and further failead to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non- examination of independent witness by itself may not give rise to adverse inference against the FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 15 of 19 prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW- 8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 16 of 19 Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place.
FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 17 of 19 The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitlead to benefit of doubt.
47. PW-5 Retired SI/Manohar Lal also deposed in his examination in chief that stolen property was recovered from the house of accused Kallu @ Mohan and Shankar, however, he do not remember the addresses of the hosue of accused persons due to lapse of time, thereby raising doubt about the alleged recovery.
48. Furthermore, recovered articles are neither identified by eye witnesses nor by owner so as to establish that recovered articles are stolen property.
49. In view of the aforesaid facts and circumstances, appreciation of evidence, non examination of complainant, non examination of public witnesses to the recovery proceedings, failure of eye witnesses to identify the accused persons and case property, prosecution has failed to establish its case against the accused persons Kallu @ Mohan, Shankar @ Shambhu, Vinay and Vishal beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused persons and therefore, accused persons Kallu @ Mohan, Shankar @ Shambhu, Vinay and Vishal stands acquitted of the offences under Section 379/34 IPC and accused persons Shankar @ Shambhu and Kallu @ Mohan also stands FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 18 of 19 acquitted for the offence under Section 411 IPC accordingly.
50. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
51. File be consigned to the record room after due compliance.
Digitally signed by Pronounced and Signed in the Open Court on 13.02.2020 SHILPI SHILPI JAIN (Shilpi Jain) Date:
JAIN MM-02(Central)/THC/Delhi 13.02.2020 2020.02.14 17:21:53 +0530 FIR No .46/11 PS Timarpur State Vs. Kallu @ Mohan & Ors. Page No. 19 of 19