Delhi District Court
State vs . Sahid Khan on 23 March, 2012
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. SAHID KHAN
FIR No : 60/2000
U/S : 379/411 IPC
P.S : VIKAS PURI
1. Serial No. of the Case : 416/2
2. Unique ID No. of the Case : 02401R0196302000
3. Date of Commission of Offence : 02.02.2000
4. Date of institution of the case : 31.03.2000
5. Name of the complainant : Sh. Krishan Kumar
6. Name of accused & address : Sahid Khan
S/o Sh. Sehzad
R/oNear Noor Masjid, Mohan
Garden, Kacchi Colony, Uttam
Nagar, Delhi.
7. Offence Complained : U/S 379/411 IPC.
8. Offence Charged with : U/S 379/411 IPC
9. Plea of Accused : Pleaded Not Guilty
10.Final Order : Acquitted
11.Date of Final Order : 23.03.2012
J U D G M E N T
1 PW1 Sh. Krishan Kumar lodged his complaint with the police station Vikas Puri that his Maruti Car bearing No. DBB4809 was parked in FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.1/13 front of House No. J117, Vikas Puri, New Delhi which was stolen from there. Consequently the FIR Ex. PW2/A was registered.
2 On the said complaint, the criminal law was set into motion and the FIR was registered. Despite best efforts by the IO, nothing about the stolen maruti car as well as offender could be known. On 02.03.2000, IO ASI Ashok Kumar apprehended the accused on the secret information alongwith one maruti van in FIR No. 86/00, PSVikas Puri. He disclosed his involvement in the present case and got the car No. DBB 4809 recovered from vacant plots at Chankya Place. The said maruti car was seized by the IO and deposited in the Malkhana. Accordingly, the chargesheet was filed for the commission of offence under Section 379/411 IPC against the accused.
3 In compliance of Section 207 Cr. P.C. the copy of the charge sheet along with other documents were supplied to the accused. Later on 06.04.2000, charge U/S 379/411 IPC was framed against the accused to which accused pleaded not guilty and claimed trial. 4 In order to prove its case against the accused the prosecution FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.2/13 examined five witnesses.
5 PW1 Krishan Kumar was the complainant of this case. He deposed that he parked his maruti car No. DBB4809 of red colour in front of his house at about 9.00 PM but after sometime, he found that his maruti car was missing from there. He called the police on 100 number and made a complaint to the police. Police recorded his statement. After sometime police informed him about the recovery of his maruti car. He released the same on Superdari. He proved the copy of the RC on the record as Ex. PW1/A and the case property as Ex. P1. He was not crossexamined by the accused. 6 PW2 HC Rishi Pal was the DO of this case who proved the FIR on the record as Ex. PW2/A. He was also not crossexamined on behalf of the accused.
7 PW3 Ct. Sayyed participated in the investigation with ASI Ashok Kumar. He proved the seizure memo MarkX of the vehicle. He took the Ruqqa to the PS for the registration of the FIR. However, his testimony could not be completed for the want of the case property as he was never recalled for his further examinationinchief once his testimony was deferred FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.3/13 for the want of case property.
8 PW4 HC Rajinder was the witness who deposed that on 12.02.2000, DO handed over the copy of FIR to him for the investigation on which he alongwith the complainant reached at the spot i.e. J117, Vikas Puri and prepared the site plan Ex. PW4/A. He made the investigation at the spot but no clue was found. On 02.03.2000, ASI Ashok Kumar arrested the accused who made the disclosure of the present case and got the maruti car of the complainant bearing No. DBB4809 recovered. He collected the documents of case FIR No. 86/2000 from him. He interrogated and arrested the accused. The vehicle was released to the registered owner. He was not crossexamined by the accused.
9 PW5 ASI Ashok Kumar was the witness who apprehended the accused alongwith one stolen maruti van on 02.03.2000 after receiving the secret information. He deposed that the secret information was disclosed to 56 passerby who were requested to join the raiding party but none of them agreed. Further that at about 8.55 PM, the accused came at the place where Nakabandi was being done with maruti van No. DL3C7972 which was fake number plate and the correct number of the car was DL6C2382. The said FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.4/13 car was revealed to be stolen from Rohini. Ruqqa was prepared and FIR was got registered. He recorded the disclosure statement of the accused and on the disclosure statement, the accused took them to JBlock, and identified the place of theft of car No. DBB4809. Thereafter, the accused got recovered the said car from the LIG Flats, behind Uttam Nagar. The case property was deposited in the PS. He proved the disclosure statement Ex. PW5/A, pointing out memo Ex. PW5/B and seizure memo Ex. PW5/C. He correctly identified the car and proved the same as Ex. P1 in the photograph.
In the crossexamination by Ld. Defence Counsel, he stated that the Nakabandi was done with the help of the barricades which were lying at the spot. He did the writing work while standing at footpath at Sonia Vihar. He denied the suggestion that the accused was lifted from the plot of one Karan Yadav. He denied the suggestion that no recovery was made at the instance of the accused.
10 The statement of the accused was recorded under Section 313 Cr.P.C. He raised the plea of the false implication and did not chose to lead any defence evidence.
11 I have heard the Ld. APP for the State as well as the Ld. FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.5/13 Defence Counsel. I have also gone through the oral and documentary evidence available on the record carefully.
12 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
13 On the other hand, the Ld. Counsel for the accused has submitted that the accused was innocent and was falsely implicated in this case by the prosecution.
14 It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own 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 FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.6/13 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.
Standard of Proof 15 In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand , 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.7/13 facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
Beyond Reasonable Doubt 16 In the judgment of Sucha Singh and Another Vs. State of Punjab, AIR 2003 Supreme Court, the Hon'ble Supreme Court observed as under:
"21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial;if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape.
FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.8/13 Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth."
Present Case:
17 The accused in the present case has been charged with offences under Section 379/411 IPC.
18 To prove the case U/S 379 IPC, the prosecution was required to prove that the accused removed the movable property dishonestly from the possession of some other person without the consent of that person and he actually moved that property with such intention in order to such taking. To prove this fact, there should be some oral evidence on the record to the fact that the accused removed the vehicle of the complainant from his possession. However, none has deposed so. Even the complainant has not deposed that he has seen the accused removing the car of the complainant from the place where the same was parked. Accordingly, I have no hesitation to hold that no legally admissible evidence has come on the record against the accused to support the charge U/S 379 IPC.
19 In Trimbak Vs. The State of Madhya Pardesh, AIR 1954 SC FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.9/13 39, 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 had knowledge that the property was stolen property.
20 The term Stolen Property has been defined U/s 410 of IPC.
Section 411 IPC reads as under:
Property, the possession whereof has been transferred by theft, or 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 To prove the offence under section 411 IPC the prosecution was required to prove that the certain property was stolen property which was retained or received by the accused knowing or having reasons to believe the same to be the stolen property and the said property was in the possession of some other person before it was found in the possession of the accused. The commission of the theft the maruti car of the complainant was alleged in this case. As per the case of the prosecution, the maruti car was FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.10/13 recovered from one vacant LIG Plot at Chankya Place, near Uttam Nagar. Admittedly, the recovery was made from an open place which had public access. The recovery of the key of the car was also not made in this case. In the judgment of Prem Singh V/s State, Crl. Appeal No. 1335/10, decided by a DB of Hon'ble High Court of Delhi wherein one truck was recovered from the public area, the Hon'ble High Court 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. In view of the aforesaid observations of the Hon'ble High Court, I am also not inclined to believe the recovery of car from an open place which cannot be attributed to any exclusive knowledge or possession of the accused especially when the keys of the car was not recovered at the instance of the accused. 22 Further, the prosecution has not completed the testimony of Ct. Sayyed Azad who was involved in the investigation and the recovery of the maruti car at the instance of the accused. The said witness was not recalled for crossexamination after his testimony was deferred for the want of case property. Hence, his testimony cannot be looked into for any FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.11/13 purpose. It is not the case of the prosecution that the said witness has expired. The testimony of PW5 ASI Ashok Kumar, thus, remained uncorroborated, hence, sans the corroboration I am not inclined to rely upon the testimony of the IO.
23 Moreover, the prosecution has not joined the independent witnesses in the recovery despite the availability of the same. It has come in the evidence of IO that at the time of the recovery, he did not join any independent public witnesses. It is not the case of the IO that no independent public person was present at the time of the recovery. Hence, the recovery not supported by public witnesses cannot be believed. The reliance is placed on " Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69 and "Sadhu Singh Vs. State of Punjab" 1997(3) Crime 55. 24 In view of the above said discussions and the evidence as well as the material available on the record, I am of the considered view that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. Thus, accused Sahid Khan is hereby acquitted of offences under sections 379/411 IPC, he has been charged with. His FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.12/13 previous B/Bs are canceled. S/Bs are discharged. Original documents, if any, lying on the record, be returned to the previous surety after the cancellation of the endorsements, if any. However, B/Bs furnished earlier for the purpose of Section 437A Cr.P.C. are extended for a period of six months from today. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 23 MARCH, 2012
RD
MM09:WEST:THC
23.03.2012
FIR No. 60/2000 STATE V/s SAHID KHAN PAGE No.13/13