Delhi District Court
The Accused In This Case Was Sent Up For ... vs State Of Maharashtra Reported Air 1995 ... on 28 September, 2011
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IN THE COURT OF MS. PURVA SAREEN,
METROPOLITAN MAGISTERATE, SOUTH EAST, SAKET COURT
State v. Bijender
FIR No.68/01
PS HN DIN
U/s 379/411 IPC
JUDGMENT
Date of Institution : 06.09.2011
Date of commission of offence : Intervening night of 4/5-02-2001
Name of the complainant : S.K. Mitra S/o. Sh.S.M. Mitra
Name and address of the accused : Bijender S/o Sh.Raj Kumar
R/o Village Makdana, PS Dadri Sadar
District Bhiwani, Haryana
Offence complained of : 379/411 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquittal
Date of reserve for judgment : 28-09-2011
Date of announcing of judgment : 28-09-2011
State v. Bijender U/s 379/411 IPC
FIR No.68/01 , PS HN DIN
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Briefly stated the facts of the case are :-
1. The accused in this case was sent up for trial for the commission of offence u/s 379/411 IPC.
2. The story of prosecution is that in the intervening night of 04/05.02.2001 between 6 pm to 6 am at Backyard of Delhi Golf Club accused namely Bijender took away tractor no. DL1E-1151 from the possession of one S.K.Mitra and belonging to Delhi Golf Club without the consent of the owner and the same was found in the possession of the accused. FIR u/s 379/411 IPC was registered in the PS HN DIN. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing other formal investigation the challan was filed before the court for trial u/s 379/411 IPC against the accused.
3. A prima facie offence u/s 379/411 IPC having been made out against the State v. Bijender U/s 379/411 IPC FIR No.68/01 , PS HN DIN 3 accused, charge was framed accordingly on 18.10.2002 U/s 379/411 IPC to which accused pleaded not guilty and claimed trial.
4. To prove its case the prosecution has examined eight witnesses namely as under :-
(i) S.K.Mitra, (ii) Retd. Cl. S.K. Sharma, (iii) Ct. Man Singh, (iv) Ashok Kumar, (v) Pradeep Joshi, (vi) SI Musafir Sahu, (vii) Ct Satyapal Singh and (viii) Inspector Rishi Pal Singh.
(i) PW1 was S.K. Mitra who claimed to be incharge of workshop by the name of Delhi Golf Club Ltd. As per the deposition of PW1 the tractor was parked at the parking implimant yard on 03.02.2001 and on 05.02.2001 he noticed that the tractor was not present there. Usually one Rakesh used to take the tractor from 8 am to 12 noon but on the particular date neither the accused Bijender could be seen around nor the tractor was found at its usual place. So he lodged a complaint to SHO PS HN DIN upon which FIR was registered. Site plan was prepared at his instance and he claimed to identify the property if shown to him.
State v. Bijender U/s 379/411 IPC
FIR No.68/01 , PS HN DIN
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In his cross examination he admitted that the accused was working under his supervision. He denied the suggestion that accused has not stolen the tractor or the same was taken by some other driver.
(ii) PW2 was Retd. Cl S.K. Sharma who was the superdar of the tractor and was the Secretary of the Delhi Golf Club Ltd.
Accused did not prefer to cross examine PW2.
(iii) PW3 was Ct. Mann Singh who deposed that he joined the investigation on 23.02.2001 along with SI Rishi Pal, Ct. Dushyant and Ct. Satpal. All the three police officials together arrested accused Bijender from Village Makrana at the instance of secret informer. Personal search of the accused conducted and arrested memo was also prepared. Upon interrogation the accused got recovered on red colour tractor from his field which was seized and taken into possession. The case property was correctly identified by the witness.
In his cross examination PW3 admitted that no public person State v. Bijender U/s 379/411 IPC FIR No.68/01 , PS HN DIN 5 was made witness to the arrest of the accused or the seizure of the tractor as no public witness was present at that point of time. IO asked some public persons to join the investigation but they all refused.
(iv) PW4 was Ashok Kumar who stated in his deposition that he did not remember the date, month and year of the incident. He stated that one person namely Pradeep Joshi was working in the Delhi Golf Club came to him and asked him regarding his tractor. He told that he saw the tractor two-three days back being driven by a middle aged person.
At that stage ld. APP for the state sought permission of the Court to cross examine the witness. He was confronted with his stated u/s 161 CrPC and he denied to have made any such statement to the police. The witness failed to identify in the Court and even denied being questioned by the police ever in connection of the present case.
(v) PW5 Pradeep Joshi who was working as Course Manager at Delhi Golf Club and on 05.02.2001 his Mahindra Tractor no.DL-1E-1151 got missing.
State v. Bijender U/s 379/411 IPC
FIR No.68/01 , PS HN DIN
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On that day Bijender was also not present and he had been intimated to leave the job. PW4 Ashok who was working as tyre tube repair had informed PW5 that he had seen the Bijender driving the same tractor at Zakir Hussain Marg. The witness that he could identify both the accused and the tractor.
In his cross examination PW5 admitted that the statement has been recorded by the police but he could not tell whether the accused was working on that day or not but there had been some controversy between the accused and superior staff.
(vi) PW6 was SI Musafir Sahu Duty officer who proved the FIR.
Accused did not prefer to cross examine the witness.
(vii) PW7 Ct. Satpal Singh who also stated that he had gone to village Makdana from where the accused Bijender had been arrested and tractor was taken into possession after the same was got recovered by the accused.
Accused did not prefer to cross examine the witness.
State v. Bijender U/s 379/411 IPC
FIR No.68/01 , PS HN DIN
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(viii) PW8 was IO ASI Rishi Pal Sharma who stated that the recorded the statement of witness at Delhi Golf Club. He had prepared the site plan. The accused was arrested from Makdana and his personal search was conducted and his arrest memo was prepared. His disclosure was recorded and tractor was recovered and taken into possession. After completing the investigation charge sheet was filed by the IO.
In his cross examination IO denied having made any public person as witness.
5. Thereafter, the prosecution evidence was closed. After closing of prosecution evidence, statement of accused persons were recorded U/s 313 of CrPC. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case.
6. Arguments address by ld. APP for the state and accused. I have heard the arguments and gone through the documents on record.
State v. Bijender U/s 379/411 IPC
FIR No.68/01 , PS HN DIN
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7. The tractor was allegedly stolen on 05.02.2001 but there is no eye witness to the commission of the offence. All witnesses i.e. PW1, PW3 and PW4 who were independent witnesses stated that the tractor was found missing and on the same date accused Bijender was absent from duty but none of the witnesses has stated that they had seen the accused taking the tractor with him. Mere fact that Bijender was absent from duty does not mean that he had stolen the tractor from the Club.
8. PW5 stated in his deposition that Ashok had told told him that he had seen the Bijender driving the tractor at Zakir Hussain Marg but Ashok who is PW4 has denied that he had identified the accused and only said that he had told PW5 regarding the tractor being driven by a middle aged person without specifying the name or the physical characteristics of that person and it is only a hearsay evidence which is not admissible.
9. The section 411 IPC reads as follows :-
State v. Bijender U/s 379/411 IPC
FIR No.68/01 , PS HN DIN
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"whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property".
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated on in respect of which criminal breach of trust has been committed, is designated as stolen property".
Therefore, the main ingredients for commission of the offence u/s 411 IPC are as follows :- "The property should be a stolen property.
The person receiving it should have the knowledge or reason to believe that that the same is a stolen property.
10.In the present case the factum of knowledge has not been proved by the prosecution and no chain has been established to prove how the possession of the tractor passed in the hands of the accused Bijender.
11.(i) The only witnesses were police witness and there is no public witness as to the recovery.
State v. Bijender U/s 379/411 IPC
FIR No.68/01 , PS HN DIN
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(ii) It is highlighted by the accused that IO has not joined any public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completing the formalities but none of them was even requested to become a witness. This casts doubt about the sincere efforts made by the IO to join independent witnesses. In Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly held in the case Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, it is settled law that whenever any recovery in connection with the place of the commission of offence is made, public person must be made witness. The section 100(4) CrPC provided that "before making a search of the officer or other person about to make it State v. Bijender U/s 379/411 IPC FIR No.68/01 , PS HN DIN 11 shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do". The IO have failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation.
12. The fact that there was no eye witness to the commission of the offence and the recovery was effected from the accused upon the disclosure of the accused and no public witness was examined.
13. All these infirmities in the prosecution case make the same doubtful and the benefit of which must be given to the accused.
14.In the result, I find that Prosecution has failed to prove its case against the State v. Bijender U/s 379/411 IPC FIR No.68/01 , PS HN DIN 12 accused beyond reasonable doubt and she is given the benefit of doubt and therefore accused Bijender is acquitted for the offence punishable U/s 379/411 IPC.
15.BB/SB stands cancelled. Endorsement, if any, also stands cancelled.
16.File be consigned to Record Room.
Announced in the open court (PURVA SAREEN)
on 28th September 2011 METROPOLITAN MAGISTERATE, SOUTH
SAKET COURT, NEW DELHI
State v. Bijender U/s 379/411 IPC
FIR No.68/01 , PS HN DIN
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State v. Bijender
FIR No.68/01
PS HN DIN
U/s 379/411 IPC
Present: Ld. APP for the state.
Accused on bail with counsel.
Vide my separate judgment the accused stands acquitted for the alleged offence.
BB/SB stands cancelled. Endorsement, if any, also stands cancelled.
File be consigned to Record Room.
(PURVA SAREEN)
MM/SOUTH EAST
Dt.28.09.2011
State v. Bijender U/s 379/411 IPC
FIR No.68/01 , PS HN DIN