Delhi District Court
State vs Mohd. Abul Kasim on 19 March, 2024
IN THE COURT OF SH. AKSHAY SHARMA, METROPOLITAN MAGISTRATE-02, SOUTH EAST, SAKET COURTS, DELHI. FIR No. 232/2012 PS. OIA U/s.380/420/411/468/471/34 IPC STATE VS HARUN AL RASHID @ MANOJ & ORS. JUDGMENT
A. SL. NO. OF THE CASE : 365/2/12 B. DATE OF INSTITUTION : 02.11.2012 C. NAME OF THE : Vikram Ghambhir COMPLAINANT S/o Avinash Ghambhir D. NAME OF THE : I. Harun Al Rashid (Present ACCUSED accused) s/o A.K. Haider Ali ii. Md. Abdul Kasim Ghazi S/o Babu Lal Ghazi (proclaimed absconder vide order dated 27.05.2017) E. OFFENCE COMPLAINED OF : U/s 380/420/411/468/471/34 IPC F. PLEA OF ACCUSED : Pleaded not guilty.
G. FINAL ORDER : Acquitted. (qua accused Harun
Al Rashid @ Manoj)
H. DATE OF COMMISSION
OF OFFENCE : 07.08.2012
I. DATE OF SUCH ORDER : 19.03.2024
BRIEF FACTS
1. Brief facts of the instant case as unfolded from the charge- sheet are that on 07.08.2012, after receiving DD no.9PP, ASI Vinod Kumar along with Ct. Tulsi Ram reached at the spot i.e., S-77, OIA-II, New Delhi where the locks of the ground and the 1 st floor were found broken and the factory owner Vikram Ghambir met and got his statement recorded, in which Vikram Ghambir stated that he runs a garment factory :2: by the name of Hans Fashion at S-77, OIA-II. 02 guards of Metrian Security Service, Khanpur stay at his factory in day and night shifts. He has executed no agreement with the security service. Yesterday evening, after locking his factory he went back to his home, inside the main gate of the factory, the night shift guard who had informed his name as Manoj was present, who also has a main gate key. The remaining keys stay with him. Today in the morning, his office boy Munna called him and informed that the day shift guard along with the staff is standing outside and the main gate is locked, the night shift guard is also not present. Upon this, he reached the factory where he found the workers and the day shift guard standing outside. He broke the main gate lock and upon checking the factory he found that the lock of ground and 1 st floor was broken, he further found that from the 1st floor, 08 motors of sewing machine-juki, 10 heads and 01 complete set along with 03 rolls ( thaan) of red colour fabric, each thaan containing 60-70 mtrs cloth was missing from the ground floor, 08 cartons, ready for shipment, containing around 1000 pieces of kids cloths were missing. He stated in his complaint that he suspects that the night shift guard Manoj had broken the locks and committed this theft. After recording of the statement, investigation was undertaken, FIR u/s 380 IPC was registered. Site plan was prepared. Crime team was called who took the photographs of the spot and lifted the chance prints. The broken locks were seized. The invoices of the stolen material were also obtained and seized.
On 13.09.2012, after information provided by a secret :3: informer, the suspect night shift guard Manoj was apprehended. The security guard Kapil Dev Singh identified the apprehended suspect as Manoj, who upon interrogation disclosed his real name as Harun Ali and disclosed the commission of offence along with his associate Abul Kasim Ghazi. The accused further got recovered 02 Zuki sewing machine, 03 electric motors of sewing machines from his rented room. The same were seized vide separate seizure memo and the accused Harun Ali @ Manoj was arrested in the instant case.
Further, at the instance of accused Harun Ali, accused Abul Kasim Ghazi was also arrested. The accused Abul Kasim further got recovered two heads of zuki sewing machine, which were seized by the separate seizure memo. These 02 accused persons also disclosed the name of their 3rd associate Shibbu, however, due to unavailability of his address and other details, Shibbu was not apprehended. During the further course of investigation, temporary appointment letter of accused Harun Ali @ Manoj was obtained from MSS Security. A UP high school certificate of the school GVHS, Singrapur, Farukkabad in the name of Manoj was filed with the appointment letter, the same was also obtained by the IO and got verified from the Principal, the marksheet was found to be false as the correct candidate Manoj Kumar appeared with roll no.0721577 and he had failed the examination. Since the accused Harun Ali @ Manoj had used this false mark sheet and impersonated as Manoj, therefore, Sections 420/468/471 were added. Thereafter, the remaining aspects of investigation were completed and the present charge-sheet u/s :4: 380/411/468/471/34 IPC was filed against the present accused Harun Ali @ Rashid and charge-sheet u/s 380/411/34 IPC was filed against accused Abul Kasim Ghazi.
2. It is stated that accused Md. Abdul Kasim Ghazi did not appear after several processes issued against him and consequently accused Md. Abdul Kasim Ghazi was declared a proclaimed absconder vide order dated 27.05.2017 of the Ld. Predecessor of this court. However, proceedings against the present accused Harun Ali @ Manoj continued in accordance with law.
CHARGE
3. Charges u/s 419 IPC, 471 IPC, Section 411 IPC and Section 380/34 IPC were framed against the present accused Harun Ali Rashid @ Manoj on 06.09.2014. The accused had pleaded guilty and the matter was listed for prosecution evidence.
PROSECUTION EVIDENCE
4. Prosecution in its support, examined the following witnesses 4.1. PW 1 Sh. Vikram Gambhir, s/o Sh. Avinash Gambhir, was examined, he in his examination in chief deposed that on 07.08.2012, he received a call from his staff namely Mr. Munaa that the night shift guard of his garment factory namely Manoj is missing and main door is locked from outside. The key of main door was in possession of guard Manoj and other key of inside door was in his possession. Thereafter, he reached his factory at about 10.15 am and asked his staff to break open the main :5: door which was locked from out side. Thereafter, he alongwith his staff members went inside the factory and found that the lock of door of the company store was broken and 70-80 meter red colour fabric, pack shipment of about thousand pieces were missing from the store. Thereafter, they went to first floor of his company where the lock of first floor was broken also and noticed 10 swing machines make juki and 8 stands with motors were missing. He further submitted that he made called to police at 100 no. Police came at the spot. He narrated the said fact to the police officials. Police recorded his statement at the spot which is Ex. PW1/A, bearing his signature at point A. Police officials took him to PS alongwith his staff members.
After 2-3 months of the said incident, IO Neeraj Kumar called him and informed him that out of three missing machine and four motors were recovered. He called him to PS for identification the material which they recovered. PW1 further submitted that he went to PS and identified the said stolen machines. Manager of the said company namely Mr. Dhanraj released the said stolen machines on superdari after furnishing superdarinama from the court. Accused Manoj present in the court that day (correctly identified by the witness). He provided the photocopies of bill of stolen machines which were mark P1 and P2 and the seizure memo of bill photocopy was Ex. PW1/B, bearing his signature at point A. At that stage, 12 photographs of the said stolen machines were shown to the witness and he correctly identified the said stolen :6: machine in the photographs. The said photographs are Ex. P1 (colly).
4.2 PW:2 Sh. Prahlad Kumar was examined, he in his examination in chief deposed that on 07.08.2012, he was working as a Chief Security Officer at Meridian International security Services Company i.e. 10/106 DDA Raja Ram Market, Dakshin Puri, New Delhi. On 23.08.2012, IO came at his company and interrogated to him about the accused Manoj. He further submitted that he told him that accused Manoj was working as security guard in his abovesaid company. Thereafter, he produced High School Marksheet and one appointment letter of accused to IO. The photograph of accused was affixed on appointment letter. Accused Manoj present in the court that day was correctly identified by the witness. IO seized the said marksheet and appointment letter vide seizure memo PW2/A bearing his signatures at point A. 4.3. PW3 Sh. Yogesh, was examined, he in his examination in chief deposed that he was the owner of the abovesaid house, he further stated that accused Harun-Al-Rashid, who was present in the court that day and was correctly identified by the witness, was living as tenant in this house. Nothing was recovered from his house. It is correct that Ex.PW3/A, bears his signature at point 'A'.
At that stage, Ld. APP for the state sought permission from the court to cross examine the said witness as he was resiling from his previous statement recorded u/s 161 Cr.P.C. Heard and allowed. In the cross-examination by the Ld. APP, PW stated that it is wrong to suggest :7: that accused Harun Ali Rashid got recovered sewing machine and electronic motor from the rented room of his house. It is wrong to suggest that he was deposing falsely as he has been won over by the accused. 4.4. PW-4 Sh. Jaipal Bhatti, was examined, he in his examination in chief deposed that he was the owner of the abovesaid house, accused Harun-Al-Rashid and one other person were residing in his abovesaid house as tenant. Nothing was recovered from his house. It is correct that Ex.PW4/A, bears his signature at point 'A'.
At that stage, Ld. APP for the state sought permission from the court to cross examine the said witness as he was resiling from his previous statement recorded u/s 161 Cr.P.C. Same was allowed. In the cross-examination by the Ld. APP, PW stated that it is wrong to suggest that accused Abdul Kasim Ghazi got recovered sewing machine from the rented room of his house. It is wrong to suggest that he is deposing falsely as he had been won over by the accused.
4.5. PW-5 Sh. Manoj Kumar, was examined, he in his examination in chief deposed that he was residing at abovesaid address and he was a farmer. He had appeared in 10th examination in 1997 and he could not pass, therefore, could not collect his mark sheet from the school. He was not aware where was his mark sheet at present. On 08.10.2012 HC Neeraj visited his village and asked him you had committed a theft in Delhi and he replied that he had never went outside from his village for any job. He further submitted that he resided with his family at his village.
:8:4.6. PW-6 HC Ravinder was examined, he in his examination in chief deposed that On 13.09.2012, he was posted as Ct at PP, OIA. On that day, he joined the investigation alongwith IO/HC Neeraj. IO received a secret information regarding a suspicious person. He alongiwth IO/HC Neeraj, Ct Sudhir and guard Kapil reached at the Punjabi Mohalla, Village Thekhand, New Delhi. They reached at the room of the suspicious person where they met with accused person who revealed his name Harun Ali Rashid but he was doing the job of security guard in the name of Manoj. Thereafter, IO interrogated accused who told that they have committed the theft alongwith Kadar Khan and Shibu. He further told the IO that Kadir Khan is residing in the adjoining room. He further submitted that he, IO and Ct Sudhir went to adjoining room and they found sewing machine and motor under the bed of Kadir Khan. They also found a motor which was a stolen article under the bed of accused Harun. They further informed them that Shibu had already sold the stolen articles after giving them their share and they do not know the present whereabouts of Shibu. Thereafter they seized the articles vide memos which Ex PW4/A & Ex PW3/A bearing his signature at point B and brought the accused persons to PS. They got the medical of the accused persons conducted. At that stage, it was stated by the witness that accused persons were arrested vide arrest memo which was Ex PW6/A & Ex PW6/B bearing his signature at point A respectively. Thereafter, IO also prepared pointing out memo which was Ex PW6/C bearing his signature at point A. Accused Harun Ali present in the court that day, correctly :9: identified by witness. He further submitted that he can also identify co- accused.
PW also stated that he can identify the case property if shown to him. The case property was already released on Superdari.
At that stage, 12 photographs of case property which were affixed to judicial file were shown to the witness and he correctly identified the same which was already Ex P-1 (colly).
At that stage, Ld APP for the State wanted to ask some leading question. Same was heard and allowed. In answer to the leading questions, PW stated that it is correct that the name of the co-accused is Mohd Abdul Kasim and not Kadir Khan. It is correct that IO recorded disclosure statement of accused persons and conduct personal search of the accused in my presence which is now Ex PW6/D, Ex PW6/E, Ex PW6/F & Ex PW6/G, bearing his signature at point A respectively. 4.7. PW-7 Sh. Ratiwan, was examined, he in his examination in chief deposed that he was a summoned witness and that day he came on behalf of Principal, Gramin Vidyapeeth Higher Secondary School, Singhrapur, Farukkabad, UP. That day he also brought Gazette High School Exam 1997 of Madhyamik Shiksha Parishad, UP according to which roll no. of Manoj Kumar, S/o Rameshwar Dayal is 0721577 and date of birth is 10.02.1982 and he got Marks in Hindi 17+09+07=33, in English 03+00=03F, in Maths 01+07=08F, in Social Science 17+15=32F, in Science 12+12+15=39, in Economics 23+28=51 (Grand Total - 166, Fail). The copy of same was Ex. PW7/A (OSR). On 08.10.2012 a report :10: was issued by the Principal, Gramin Vidyapeeth Higher Secondary School, Singhrapur, Farukkabad, UP regarding the marksheet of Manoj Kumar which was Ex. PW7/B bearing the seal and signature of Principal at point-A. 4.8. PW-8 Ct. Tulsi Ram was examined, he in his examination in chief deposed that on 07.08.2012 he was posted as constable at PP-OIE, PS- OIA. On that day he joined the investigation of present case with IO/ASI Vinod. IO received a DD No. 9PP regarding theft at company no. S-77, OIA Phase-2 upon which he alongwith IO reached at the spot where they met complainant Vikram and found that the lock of ground floor and first floor was broken and articles were scattered. Complainant stated that some sewing machines and clothes were missing from there. Thereafter IO recorded the statement of complainant Ex. PW1/A and prepared rukka on the same and handed over him for registration of FIR. He further submitted that he got the FIR registered and came back at spot and handed over the same to IO. Thereafter IO prepared site plan at the instance of complainant. IO also called the crime team at the spot. IO prepared two pullanda of lock and handle lock and sealed with the seal of VK and the same was seized by IO in his presence vide seizure memo Ex. PW8/A and PW8/B bearing his signatures at point-A. The seal was handed over to him.
On 23.08.2012 he again joined the investigation of present case with IO/ HC Neeraj. On that day he alongwith IO reached a Meredian International Security Service Office at Dakshin Puri where IO :11: collected high school marksheet of accused Manoj and the same was seized by the IO vide seizure memo Ex. PW2/A bearing his signatures at point-B and the seized marksheet was now Ex. Q1.
At that stage, MHCM produced two white colour pullanda duly sealed with the seal of 'VK'. With the permission of court same was opened and one lock and harison lock alongwith kunda were taken out. Same was shown to the witness. Witness correctly identified the same. The same were Ex. P1 and P2.
4.9. PW-9 Sh. Kapil Dev Singh, was examined, he in his examination in chief deposed that in the year 2012 he was working as a security guard at Meridian Company at S-77, OIA Phase-2. On 13.09.2012 he joined the investigation of present case. On that day he alongwith IO and other staff reached at the house of accused at Tehkhand Village for search the accused where they found one person who had informed the house of accused to IO. Thereafter they reached at the house of accused where the accused Manoj was present. Thereafter IO interrogated the accused and arrested the accused. Thereafter IO recovered the stolen articles from the possession of accused. There they came to know that real name of accused Manoj was Harun Ali Rashid. Accused Harun was present in the court that day and was correctly identified by the witness.
4.10. PW-10 Ct. Sudhir, was examined, he in his examination in chief deposed that on 13.09.2012 he was posted as constable at PS-OIA. On that day he joined the investigation of present case alongwith IO HC :12: Neeraj, Ct. Ravinder and security guard Kapil. Thereafter they reached at the house of accused at Tehkhand Village for search the accused where IO received secret information regarding the accused. Thereafter they reached at the house of accused where the accused Manoj was present and he revealed his name as Harun Ali Rashid, however he was doing job of security guard in the name of Manoj. Thereafter IO interrogated the accused and arrested him and conducted personal search of accused Harun Ali vide memos Ex. PW6/B and PW6/F bearing his signature at point 'B'. IO recorded disclosure statement of accused in his presence Ex. PW6/E bearing his signature at point 'B'. Thereafter stolen articles i.e. 2 sewing machines, 3 electric motors were recovered from the possession of accused and the same was seized by IO vide seizure memo Ex. PW3/A bearing his signature at point 'C'. Thereafter they alongwith accused reached at the house of co-accused namely Abdul Kasim Ghazi where accused was present there. Thereafter IO interrogated and arrested him and conducted personal search of accused vide memos Ex. PW6/A and PW6/G bearing his signature at point 'B'. IO recorded disclosure statement of accused in his presence Ex. PW6/D bearing his signature at point 'B'. 2 sewing machines were recovered from the possession of accused Abdul Kasim and same is seized by IO vide seizure memo Ex. PW4/A bearing his signature at point 'C'. In the meantime, landlords of both the accused persons were also reached at the spot and they joined the investigation. Thereafter the case property was deposited at Malkhana. After medical examination of accused persons, they were sent to lockup.
:13:Accused Harun was present in the court that day and was correctly identified by the witness.
At that stage, Ld. APP for the State sought permission to ask the leading question from the witness. Same was heard and allowed. In answer to the leading questions the PW further stated that it is correct that IO prepared pointing out memo and same was Ex. PW6/C bearing his signature at point 'B'. It is correct that IO sealed the case property with the seal of NK. He can identify the case property if shown to him. The same was already released on superdari.
At that stage, witness was shown 12 photographs of case property and witness correctly identified the same. Those photographs were exhibited as Ex.P1 colly.
4.11. PW-11 Ct. Puneet, was examined, he in his examination in chief deposed that on 07.08.2012 he was posted as constable and working with the crime team, South-East in the capacity of photographer. On that day he alongwith crime team reached at the spot i.e. S-77, OIA Phase-2 on the direction of SI Krishan Kumar, Incharge crime team, he clicked the photographs of ground floor and first floor of abovesaid spot. Ct. Pawan Kumar prepared crime inspection report SOC-500/12 and handed over the same to IO Vinod Kumar. That day he had brought the negatives clicked on that day Ex. PW11/A. His statement was recorded by IO. 4.12. PW-12 SI Vinod Kumar, was examined, he in his examination in chief deposed that on 07.08.2012, he was posted at PS OIA as SI. On that day, he was on emergency duty from 08:00am to :14: 08:00pm and he received DD No.9 PP OIA regarding theft in S-77, Okhla Phase-II, New Delhi. Thereafter, he alongiwth Ct. Tulsi reached at the spot i.e., S-77, Okhla Phase-II where they found that lock of the first and ground floor were broken condition. Thereafter, they met owner of the company at S-77 Okhla Phase-II. He further submitted that he recorded the statement of owner of the said company namely Gambhir and prepared the rukka vide memo Ex.PW1/A bearing his signature at point 'B' and endorsed on the rukka. Thereafter, he handed over the rukka to Ct. Tulsi at about 12:15 pm. Ct. Tulsi sent to PS OIA for the registration of FIR. Thereafter, he prepared the site plan at the instance of the complainant vide memo Ex.PW12/A bearing his signature at point 'A'. After registration of FIR, Ct. Tulsi came at the spot alongwith original rukka and the copy of FIR. Same were handed over to him by Ct. Tulsi. Thereafter, he seized the lock of the ground floor and patti lock of the first floor vide seizure memo Ex. PW8/B bearing his signature at point 'B'. Thereafter, he called the crime team and crime team reached at the spot. Thereafter, crime team inspected the spot and they prepared report and handed over to him. The said report was Ex.A3. Thereafter, he alongwith Ct. Tulsi went to PS OIA and deposited the case property i.e., lock into the malkhana.
He further submitted that on 17.08.2012, he handed over case file to MHC(R) due to his transfer to PS Badarpur.
At that stage, MHC(M) produced white pullanda with the seal of AJ. Seal was broken with the permission of the court. One patti :15: lock of gate of the first floor was taken out and same was shown to the witness and witness correctly identified the same. Patti lock was already Ex.P1.
At that stage, MHC(M) produced another white pullanda with the seal of AJ. Seal was broken with the permission of the court. One lock of gate make Harison of the ground floor was taken out and same was shown to the witness and witness correctly identified the same. Lock make Harison was already Ex.P-2.
4.13. PW-13 ASI Neeraj Kumar, was examined, he in his examination in chief deposed that on 23.08.2012, he was posted at PS OIA as HC. On that day, file of this case was assigned to him by SHO PS OIA for further investigation and he had inspected the case file. Thereafter, he went to guard company at Ambedkar Nagar where he met the owner the security company namely Prahlad Malviya. Thereafter, he interrogated owner Prahlad Malviya and obtained the documents in respect of suspect guard Manoj Kumar from him. Documents were seized vide seizure memo Ex. PW2/A bearing his signature at point 'C'.
On 11.09.2012, he went to the company at S-77, Okhla Phase-II and met the owner of the said company namely Gautam Gambhir. He collected the bill/invoice of stolen items vide seizure memo Ex.PW1/B bearing his signature at point 'B'.
On 13.09.2012, he alongiwth Ct. Sudhir, Ravinder and HC Kishanvir again arrived at the company bearing no. S-77, OIA Phase-II where guard Kapil was found present. He was joined in investigation and :16: thereafter, they all went to Tehkhand Village. A secret informer met them and informed that accused Manoj @ Harun Ali was residing in Tehkhand Village. He also informed that he was not aware of the address of the said accused however, he assured that he can point out the house of accused Manoj. Thereafter, they all alongwith secret informer reached at the house of the accused Manoj @ Harun Ali. Secret informer was relieved. Kapil identified accused Manoj @ Harun Ali and accused was apprehended thereupon. Accused was interrogated and he was arrested and his personal search was conducted vide memos Ex.PW6/E, Ex.PW6/B and Ex.PW6/F respectively all bearing his signature at point 'C'. Accused had got recovered two sewing machines inspected with juki and three electric motors from under the wooden bed. Seizure memo regarding the same was prepared vide Ex.PW3/A bearing his signature at point 'D'. In the meanwhile, land lord of the house in which accused Harun Ali was residing also came there and he was also joined in the investigation including recovery.
During the disclosure statement of the accused Harun Ali, he had disclosed that he was associated by co-accused Kasim Ghazi and Sibu in the commission of alleged offence. At the instance of accused Harun Ali, co-accused Kasim Ghazi was arrested from his house situated in Punjabi Mohalla, Tehkhand Village. The said house was belonging to one Jai Pal. Accused Kasim Ghazi was arrested and his personal search was conducted vide memos Ex.PW6/A and Ex. PW6/G bearing his signature at point 'C' respectively. Accused Kasim Ghazi was interrogated :17: and his disclosure statement was recorded vide Ex.PW6/D bearing his signature at point C. Accused Kasim Ghazi had got recovered two sewing machines inscripted with juki and same were seized vide seizure memo Ex. PW4/A bearing his signature at point 'D'. After that both accused persons and case property were brought to PS. Case property was deposited into malkhana. Statement of witnesses was recorded under Section 161 CrPC. Both accused persons were produced before the court on next day and they were sent to JC. The recovered marksheet in the name of Manoj Kumar was got verified and it was found fake. After completion of investigation, he prepared the chargesheet and same was filed before the court for judicial verdict.
He further submitted that he can identify both the accused persons if shown to him. Accused Harun was present in the court that day was correctly identified by the witness. At that stage, it was noticed that accused Kasim Ghazi was PO in that case.
STATEMENT OF ACCUSED
5. After examination of the material prosecution witnesses, prosecution evidence was closed. Thereafter statement of the accused u/s 281 CrPC r/w Section 313 CrPC was recorded. Accused stated that he has been falsely implicated in the present case. Further the accused preferred to lead defence evidence.
DEFENCE EVIDENCE
6. In the defence evidence, the accused got examined himself after filing an application u/s 315 CrPC. The accused stated in his :18: examination that he had never used any forged documents or mark sheets in the name of Manoj as he had completed his high school examination in the year 2005 from the board of Secondary Education, Assam and as such he does not require any forged document/ matriculation mark sheet. The accused had also produced copy of his secondary examination mark sheet, high school leaving certificate and registration certificate, which was marked as Mark A,k Mark B and Mark C respectively. The accused had also produced the original documents of the aforesaid photocopies and claimed that the said original documents are genuine.
At that stage, Ld. APP had raised an objections that the aforesaid documents are not proved or verified and also produced by the accused himself. The accused was also duly cross-examined by the Ld. APP.
7. On 05.01.2024, when the matter was fixed for orders/ clarifications, this court was of the opinion that the documents filed by the accused be subjected to verification and SHO, PS OIA was directed to do the same. Thereafter, on 12.02.2024, report was filed by HC Satpal Singh stating that the documents were got verified from the board of Secondary Education, Assam and they were found to be genuine.
FINAL ARGUMENTS
8. Final arguments were addressed. Ld. APP submitted that the testimonies of the PWs corroborate in material particulars and therefore, the case of the prosecution stands established beyond reasonable doubt :19: against the accused. Per contra, Ld. Counsel for the accused pointed to certain contradictions in the testimony of the complainant and the other PWs. The Ld. Counsel submitted that the independent recovery witnesses have not supported the case of the prosecution, Ld. Counsel also contended the accused has been falsely implicated in the instant case as the police could not apprehend the main accused Shibbu. Ld. Counsel also filed the detailed written submissions highlighting the contradictions in the testimonies of prosecution witnesses.
DISCUSSION OF LAW, EVIDENCE AND DECISION THERE ON.
9. It is settled principle of criminal law jurisprudence that the accused is presumed to be innocent until proven guilty. The burden of proof to displace this presumption is on the prosecution which has to discharge this burden beyond reasonable doubt by leading cogent evidence. The prosecution cannot take benefit of the weakness of the defence and has to stand on its own legs.
10. In the instant case, the allegations of the prosecution against the present accused Harun Ali @ Manoj can be broadly divided into two categories, firstly, is the allegation of theft u/s 380 IPC connected with the allegation of recovery of the stolen material u/s 411 IPC.
11. The second category of allegations against the present accused is that of impersonation by cheating u/s 419 IPC as the accused cheated the said security service as well as the complainant to seek an :20: employment as security guard by impersonating himself as Manoj Kumar, this is connected with the allegation of using a forged and fabricated mark-sheet of one person namely, Manoj for seeking employment, this allegation pertains to offence u/s 471 IPC.
12. This court will separately analyse both the category of allegations.
ALLEGATION OF THEFT AND CONSEQUENT RECOVERY.
13. Accused is charged for offences punishable u/s 380 IPC and Section 411 IPC. Section 380 IPC provides for punishment for theft in any building, tent or vessel which is used as a human dwelling or used for the custody of the property. The offence of theft is defined u/s 378 IPC as whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft. Further, Section 411 IPC with which the accused is charged makes punishable dishonest receiving of stolen property with the knowledge that the property is stolen.
14. The question to be determined in the instant case is that whether the accused took the stolen case property i.e., 08 motors of sewing machine make juki, 10 heads of sewing machine, 01 complete set of sewing machine along with 03 bundles of red coloured fabric and around 1000 pieces of kids cloth from the complainant's factory without the complainant's consent. Another question is that whether the accused :21: was found in possession of the stolen articles, i.e., 02 stolen heads of juki sewing machine and 03 stolen electric motors as alleged by the prosecution, knowing them to be stolen.
15. Regarding the allegations u/s 380 IPC pertaining to the commission of theft, it is submitted that no direct evidence has been adduced by the prosecution for substantiating this allegation. Meaning thereby, that neither any person nor any prosecution witness has seen the commission of theft nor any CCTV footage has been produced by the prosecution for indicating the commission of theft by the accused. The complainant in his complaint had named the accused on the basis of suspicion because as per the complainant the accused Harun Ali @ Manoj was doing night shift as a guard in the factory and was not to be found after the alleged incident. Further, considering the time period between the date of alleged theft i.e., 07.08.2012, and the date of alleged recovery i.e., 13.09.2012, the presumption u/s 114 of the Indian Evidence Act also cannot support the case of the prosecution as the condition "soon after the theft" is not satisfied in the instant case because as alleged the accused is found in possession of the stolen material after around 38 days of theft.
16. Thus, it is evident that no direct evidence regarding commission of theft is available against the accused, the presumption u/s 114 Indian Evidence Act also does not apply to the present case. Hence, the said allegation is based on the circumstances. One of such circumstance is the absence of accused after theft and second circumstance is the recovery of 02 stolen heads of juki sewing machine :22: and 03 stolen electric motors from under the wooden bed that was kept in the rented room of the accused. Hence, the aspect of recovery is also required to be duly proved by the prosecution for connecting the accused with the theft.
17. Regarding the factum of recovery of stolen case property connecting the accused with the offence u/s 411 IPC, it is noted that the prosecution has proved the seizure memo Ex.PW3/A which indicates the seizure of 02 stolen heads of juki sewing machine and 03 stolen electric motors from under the bed of the room of the accused. 03 police witnesses namely, IO/HC Neeraj, Ct. Sudhir and Ct. Ravinder are the witnesses to the said seizure memo, apart from the police officials PW 3 Yogesh is the independent public witness sited in the said seizure memo as witness of recovery.
18. It is noted that PW3 Yogesh, had stated in the examination that he is the owner of the house and accused was living as a tenant in his house. PW3 Yogesh had not supported the case of the prosecution and has categorically denied that nothing was recovered from his house.
19. PW3 was cross-examined by the Ld. APP, however, PW3 denied the suggestions put forth by the Ld. APP and nothing fruitful could be ascertained by the Ld. APP.
20. Apart from PW3, PW6 HC Ravinder, PW10 Ct. Sudhir and PW 13 ASI Neeraj are the witnesses of recovery, this court would like to point out a contradiction in their testimonies, PW 13 ASI Neeraj and :23: PW10 Ct. Sudhir have stated in their cross-examination that they went to Tehkhand village for apprehension of the accused in a private car, however, PW 6 HC Ravinder has stated in his cross-examination that they left the PS into 02 motorcycles together and they all reach together at the Punjabi Mohollah, Tehkhand, OIA.
21. Further it is stated that no departure entry of any of the recovery police witnesses has been placed on record by the prosecution to incline their this court to believe their presence at the spot of recovery.
22. In Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506, it was observed by Hon'ble High Court of Delhi:
77. The arrests of the accused were all in public places and yet none of the arrests were in the presence of inde-
pendent public witnesses. Parrot-like statements to the effect that passersby were asked but declined to join are given by the IOs in the present case. This does not con- vince the Court. In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this contention, the Supreme Court observed:"It may be as technically argued by the learned Additional Solici- tor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is ar- rested and something is recovered from the personal Search. But it is well-known that in all matters where the police wants that the story should be believed they :24: always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Na- jafgarh and for the seizure of the articles from the per son of this accused is no other evidence except the evi- dence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the pres- ence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
78. In the present case every arrest is on the basis of both information provided by and identification by a se- cret informer who is not produced as a PW. Most ar-
rests have taken place from open public places and dur- ing times when there is a lot of movement of the public. It is therefore difficult to accept that in every such in- stance, no independent witness was available. The cir- cumstance of arrest has not been convincingly proved by the prosecution.
23. In conclusion, it is observed that since there is no direct evidence available regarding the commission of theft, the presumption u/s 114 Indian Evidence Act also does not apply to the instant case, the independent public witness i.e., PW3 has also not supported the case of the prosecution as to the recovery, no departure entry of the recovery police witnesses is placed on record, hence the case of the prosecution regarding commission of offences u/s 380,411 IPC cannot be said to be proved beyond reasonable doubt.
:25:ALLEGATION OF CHEATING BY IMPERSONATION AND USAGE OF FORGED DOCUMENT.
24. Regarding the allegation against the accused, pertaining to offence u/s 419 IPC and Section 471 IPC, it is noted that there is no doubt as to the fact that the marksheet of one Sh. Manoj, allegedly filed by the accused for seeking employment as a security guard is a false document. Since the original Sh. Manoj Kumar is examined as PW5, and he had deposed that he appeared in the 10th examination in 1997 and he could not pass, therefore, he did not collect his marksheet from the school.
25. Further, one Sh. Ratiwan is examined as PW7 by the prosecution, Sh. Ratiwan had appeared on behalf of the Principal, Gramin Vidhyapeth, Higher Secondary School, Sindhrapur, Farukkabad, UP. He produced the original marksheet of the real Manoj which is Ex.PW7/B, which indicates that the real Manoj Kumar failed the matriculation examination. Hence, from the testimonies of PW7 and PW5, it can be construed that the original marksheet which is Ex.PW2/D2 alleged to be filed by the present accused is a false document.
26. The main point of contention is to adjudicate the veracity of the allegation of the prosecution, meaning thereby that answer is to be found for the question that did the present accused actually impersonated himself as Manoj and in that process he submitted the fake marksheet for causing it to be believed as genuine.
27. It is to be noted that as per the case of the prosecution, the :26: present accused had not submitted any other document with the appointment letter except the false matriculation marksheet, this fact appears as a deviation from the natural course of events and arises certain questions in the mind of the court, most particularly that as to why no identification proof was taken from the present accused, further as to how the present accused was able to secure employment with the security company without any proper verification, a security agency is naturally expected to exercise higher degree of due diligence in comparison to companies operating in other fields. Further another doubt and contradiction arises after the perusal of documents annexed with the copy of the appointment letter of guard Kapil Dev Singh (PW9), which has self attested copy of the voter id card of guard Kapil Dev Singh annexed with it. It is noted as to why no identification proof was taken from the accused when the same was taken from the co-guard Kapil Singh.
28. Further the accused by leading defence evidence and examining himself as a witness, had placed on record his matriculation documents, in which the accused has been declared passed. The originals of those documents were duly perused by this court, the same documents were also got verified from the competent authorities and were found to be genuine and true. This aspect that the accused had passed Matriculation Examination, raises a doubt on the case of the prosecution as the question arises in the mind of the court that why would the accused impersonate himself as Manoj and file a forged 10 th class marksheet of Manoj, when the accused was himself a 10th pass and this Manoj had in :27: reality failed the 10th examination.
29. This court is of the opinion that the accused by placing on record his matriculation documents has in a manner created a doubt in the case of the prosecution. It is also to be noted that PW2 Prahlad Kumar, who was the Chief Security Officer of the Security Company in which allegedly the accused was employed had failed to identify the accused in the cross-examination at the first instance.
30. In conclusion, it is stated that in the absence of any direct evidence regarding commission of theft, the independent public witness of recovery not supporting the case of the prosecution, no departure entires of the recovery police official witnesses on record, the fact that accused had himself passed 10th examination and no identification proof being annexed with the alleged appointment letter of the accused , a dent of doubt is created on the case of the prosecution and this benefit of doubt is ought to be given to the accused. Hence, accused Harun Ali Rashid@ Manoj is acquitted for offence u/s 380,411,419 IPC and Section 471 IPC.
Pronounced in the open court on 19.03.2024.
Judgment contains total 27 pages, each signed by the undersigned.
(AKSHAY SHARMA) MM-02/SE/Saket/ND 19.03.2024