Delhi District Court
State vs . Atul Kumar on 23 October, 2013
State vs. Atul Kumar
IN THE COURT OF SH ANUJ AGARWAL: MM01(SE)/
SAKET COURT: DELHI
State vs. Atul Kumar
FIR NO. : 857/05
U/S : 379/411/34 IPC
PS : Badarpur
JUDGMENT
a) Sl. No. of the case : 13/2
b) Date of institution of the case : 02.02.06
c) Date of commission of offence : 21.10.05
d) Name of the complainant : Sh. Deepak Bali
e) Name & address of the 1. Atul Kumar S/o Brij Bhushan accused persons R/o H.No. 46/02, Himmat pur, Dholi Piau, Mathura, U.P.
2.Sunil @ Salman S/o Phool Singh R/o H. No. 375, Jagat Colony, Badarpur, New Delhi.
Convicted vide order dt. 20.01.09
3. Vinod Kumar S/o Vishwa Nath Mehta R/o Village & P.S - Jharjar Pur, Distt. Madhubani, Bihar.
Convicted vide order dt. 12.12.06
f) Offence charged with : 379/411/34 IPC
g) Plea of the accused persons : Pleaded not guilty.
h) Arguments heard on : 23.10.13
FIR No. 857/05 PS Badarpur 1 of 12
State vs. Atul Kumar
i) Final order : Acquitted
j) Date of Judgment : 23.10.13
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The prosecution filed a charge sheet on the allegation that on 21.10.05 a motor cycle No. DLSAE8528 was stolen from B56, Mohan Cooperative, Badarpur, New Delhi belonging to complainant Nav Saurabh Singh and same was later on recovered on 04.12.05 from the possession of the accused Atul (from Mathura) at the instance and on disclosure statement of other coaccused Sunil @ Salman and Vinod. Therefore all the accused were sent to face trial for offences U/sec. 379/411/34 IPC. Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C.
was filed on behalf of the IO. In compliance of Sec. 207 Cr.PC, the copy of charge sheet alongwith other documents were supplied to accused.
3. Vide order dated 21.03.06, a formal charge U/s 379/411/34 IPC was framed by my Ld. Predecessor against all the accused to which they pleaded not guilty and claimed trial.
4. During the course of trial, accused Vinod Kumar and Sunil @ Salman pleaded guilty and they were convicted vide order dt. 12.12.06 FIR No. 857/05 PS Badarpur 2 of 12 State vs. Atul Kumar and 20.01.09 respectively and present trial continued qua accused Atul only.
5. In order to substantiate the allegations, seven witnesses have been examined on behalf of the prosecution. The relevant and material extract of their testimony is as under:
6. PW1 ASI Dharam Pal is the duty officer who recorded the formal FIR. He proved copy of FIR as Ex.PW 1/A and his endorsement on rukka as Ex.PW1/B.
7. PW2 Nav Saurabh Singh is the complainant who deposed that on 21.10.05 he parked his motorcycle No. DL3SAE8528 outside his college NIILMCMS, B2/56, Mohan Cooperative at 9.30 AM and found his vehicle missing. He duly proved his complaint Ex.PW2/A. He correctly identified the case property as Ex.P1.
8. PW3 Sh. Manish Kumar Jha is the registered owner of motorcycle No. DL3SAE8528. He duly proved superdarinama of offending vehicle Ex.PW3/A.
9. PW4 HC Phool Singh is Duty officer who recorded the DD No. 17 A on 05.12.05. He proved copy of DD as Ex.PW 4/A.
10. PW5 Ct. A. Rehman is the recovery witness of stolen motorcycle who deposed as under : "On 31.11.05 I was posted as Ct and on that day I was on duty alongwith FIR No. 857/05 PS Badarpur 3 of 12 State vs. Atul Kumar SI Surender Dahiya, HC Abdul Hakim, Ct. Tulsi Ram and Ct. driver Ramesh at Kalkaji Mandir. At 10.10 PM a secret information was received that two boys will come on stolen motorcycle in case raided can be apprehended. They will come from Okhla Chambery and will proceed to Badarpur. We did nakabandi at 10.30 PM at Airtell office and started checking with barricades and at about 10.50 PM both the accused persons were apprehended on Hero Honda cycle on signaling of informer. On interrogation their name revealed as Sunil @ Salman and Vinod. The failed to produce any satisfactory reply and valid document in respect of motorcycle No. DL7SR 6517 and it was revealed that it was stolen from P.S. Lajpat Nagar. Disclosure statement of accused person Ex. PW 5/A and Ex. PW 5/B was reduced in writing wherein they disclosed that they had committed theft in respect of motorcycle stolen from Badarpur area and which was got recovered at the instance of accused persons namely Sunil @ Salman, Vinod and third accused Atul Kumar @ Bhole who joined the investigation, pulser motorcycle No. DL3SAE8828 from house of accused Atul Kumar memo vide Ex. PW 5/C. I can identify the motorcycle if shown to me. The motorcycle is already Ex. P1".
11. PW6 is Ct. Tulsi Ram who deposed on similar lines as that of PW5. He duly proved seizure memo of stolen motorcycle as Ex.PW5/C.
12. PW7 is ASI Om Prakash who deposed as under : "On 01.12.05 I was posted at ATS. On that day on receipt of DD no. 20 I went to Airtel office, Anandmai Marg where SI Surender Dahiya met me alongwith HC Abdul Hakim, Ct. A. Rehman and driver Ct. Ramesh. One vehicle bearing no. DL1LD1504 was also found. HC Abdul Hakim handed over me rukka and seizure memo of motorcycle. I inspected the site and prepared site plan of case FIR no. 1011/05, PS Okhla Ind. Area. I recorded disclosure statement of accused Sunil @ Salman and accused Vinod Kumar, same is already Ex.5/A and B which bears my signature at point A. I recorded the statement of Ct. A. Rehman and Ct. Tulsi Ram at the spot. At about 12:30 pm, Ct. Tulsi Ram came back at the spot after registration of the case".
13. On conclusion of PE, statement of accused Atul Kumar U/s 313 Cr.P.C was recorded wherein all the incriminating evidence FIR No. 857/05 PS Badarpur 4 of 12 State vs. Atul Kumar appearing against him was put to him. The accused denied all the evidence in general and stated that he had been falsely implicated. He denied factum of recovery from his possession.
14. Accused did not lead any evidence in defence.
15. I have heard the rival submissions and carefully perused the record.
16. It is well settled principle of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its won legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
17. To prove the case under section 379 IPC the prosecution is required to prove the following facts:
A. That the property in question was a movable property; B. The such property was in possession of a person; C. That the accused moved such property whilst in the possession of that person;
D. That the accused did not so without the consent of such person; E. That the accused did not so in order to take the same out of possession of FIR No. 857/05 PS Badarpur 5 of 12 State vs. Atul Kumar that person;
F. That the accused did so with intent to cause wrongful loss to that person or wrongful gain to himself.
18. In the present case, no witness has been examined by the prosecution who has seen the accused committing the theft of the motorcycle Ex.P1 belonging to the complainant namely Nav Saurabh Singh. In fact, the complainant also did not see the accused while committing the theft of the motorcycle. Without the evidence of the eyewitnesses, the factum of the commission of theft cannot be proved. Accordingly, in my opinion, nothing has come on record against the accused for the commission of offence U/sec. 379 IPC.
19. The accused in the present has also been charged with offence under section 411 IPC as well. In Trimbak Vs. The State of Madhya Pradesh, AIR 1954 SC39, the Hon'ble Supreme Court held that in order to bring home the guilt of a person under section 411 IPC the prosecution was required to prove the following facts:
(1) That the stolen property was in the possession of the accused. (2) That some person other than the accused had possession of the stolen property before accused got possession of it, and (3) That the accused has knowledge that the property was stolen property.
20. The term Stolen Property has been defined U/s. 410 of IPC.
Sec. 410 IPC reads as under:
Property, the possession whereof has been transferred by theft, or FIR No. 857/05 PS Badarpur 6 of 12 State vs. Atul Kumar by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
21. Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidence on the record which warrant the conviction of the accused on the touch stone of golden principal of criminal jurisprudence that the guilt of the accused has been proved beyond the reasonable doubt. In my considered opinion that prosecution has failed to proved the case against the accused beyond all reasonable doubts U/sec. 411 IPC also for the following reasons:
22. In the present case, as evident from testimony of PW5 and 6 and seizure memo Ex.PW5/C, the alleged recovery of the stolen motor cycle was made from the road outside the house of accused Atul meaning thereby it was made from a public place. A natural corollary of the same is that public persons must have been available at the spot. However, there is nothing on record to suggest whether efforts were made to join them in the investigation. Failure of prosecution to make any efforts to join independent witnesses despite FIR No. 857/05 PS Badarpur 7 of 12 State vs. Atul Kumar their availability causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
23. The key of the vehicle in question was never produced by prosecution during the trial. The production of the key of the vehicle would have lent the corroboration to the prosecution case. Non production of same for the reasons best known to prosecution leaves a reasonable doubt in the prosecution version. In the Judgment of Munesh Kumar & Ors vs. State, 2011 (124) DRJ 7, the Hon'ble Delhi High Court did not rely upon the recovery of the car from the accused when the keys of the car was not stated to have been recovered from him. I also adopt the same reasoning and do not rely upon the recovery of the vehicle when the keys has not been proved on the record.
24. Ld. defence counsel has argued that the alleged stolen property has been recovered from the open place and therefore cannot be relied upon. On the other hand, Ld. APP submits that despite recovery from open place, the accused can be convicted. In view of the rival submissions, the first question to be decided is FIR No. 857/05 PS Badarpur 8 of 12 State vs. Atul Kumar whether the recovery of incriminating material from the open place at the instance of the accused is an evidence falling u/sec. 27 Evidence Act or not. In Trimbak Vs. The State of Madhya Pradesh, AIR 1954 SC39, the stolen ornaments were recovered from the open field which was accessible to all and sundry. It was held by the Hon'ble Supreme Court that the fact of the recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and the accused some how acquiring knowledge about their whereabout and that been so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles.
25. Similarly in Salim Akhtar @ Mota Vs. State of U.P., AIR 2003 SC 4076, placing reliance upon the earlier judgments of Sanjay Dutt Vs. State through CBI, AIR SCW 3857, Trimbak (Supra), Ramo Saheb Balu Kiledar Vs. State of Maharashtra, AIR 1995 SCW 1569 and Khudeshwar Dutta Vs. State of Assam, it was held by the Hon'ble Supreme Court in the Salim Akhtar (Supra) that mere knowledge of the accused that incriminating articles were kept at certain place does not amount to his conscious possession.
26. However, in the State of H.P. Vs. Jeet Singh (1999), 4 SCC FIR No. 857/05 PS Badarpur 9 of 12 State vs. Atul Kumar 370, the Supreme court held that the recovery from a place which was "open and accessible to other" is not vitiated as the test was whether the place was accessible to others or not but whether it was ordinarily visible to others or not. Elucidating the law, the Apex Court held that any object could not concealed in the place which are open and accessible to others. For example, something buried on a public place under the dry leaves or kept hidden in a public office, then articles would remain out of the visibility of others in normal circumstances and only the person who hid it alone knows where it is until he discloses that fact to any other person.
27. Hon'ble Delhi High Court in the case tiled as Prem Singh Vs. State, Crl. Appeal No. 1335/10, wherein one truck was recovered from the public area, observed that since the truck was parked in an area which had public access and was not in the exclusive knowledge of appellant and the fact that no recovery of key of the truck was made from the accused, the prosecution story was disbelieved.
28. In view of the above mentioned settled legal position it is apparent that whenever the recovery of some incriminating article has been made from an open place which is "open and accessible to others" despite the recovery made at the instance of the accused, it FIR No. 857/05 PS Badarpur 10 of 12 State vs. Atul Kumar has always been categorically held that no knowledge on the part of the accused can be attributed. This court is not oblivion of the judgment of Jeet Singh (Supra). However, the case of the prosecution is not covered within the ratio of the said case as prosecution has nowhere alleged that alleged stolen vehicle was not visible for others despite being recovered from the an open place which is "open and accessible to others". As per the case of the prosecution, the alleged stolen vehicle was recovered from the road outside the house of accused which was a place "open and accessible to others". The only incriminating evidence brought on the record against the accused is the recovery of the alleged stolen vehicle of the complainant. In view of the discussions, I opine that the recovery of the alleged stolen motorcycle from an open place even though at the instance of the accused is no incriminating piece of evidence. Hence, I find substance in contention of the Ld. defence counsel that there is no legally admissible evidence against the accused persons on the record.
29. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, prosecution has miserably failed to prove the guilty of the FIR No. 857/05 PS Badarpur 11 of 12 State vs. Atul Kumar accused beyond reasonable doubt. Hence, accused Atul Kumar is hereby acquitted for the offences, with which he has been charged with. Ordered accordingly.
Announced in the open court (Anuj Agarwal) on 23.10.13 MM01(SE)/Delhi /23.10.13 FIR No. 857/05 PS Badarpur 12 of 12