Delhi District Court
State vs Mohd Azeem Ansari on 26 October, 2023
IN THE COURT OF MS. MEENA CHAUHAN
METROPOLITAN MAGISTRATE -08 (CENTRAL)
TIS HAZARI COURTS : DELHI
FIR No. 34/2014
PS: Kotwali1
U/s 411 Indian Penal Code
State v. Md Azeem Ansari
CIS No. 295020/2016
Date of Institution of case : 07.04.2014
Date when Judgment reserved : 13.10.2023
Date on which Judgment pronounced : 26.10.2023
JUDGMENT
a. Serial no. of the case : FIR No.34/2014 PS: Kotwali Date of the commission b. : 24.02.2014 of the offence Name of the c. : Mohd. Salim S/o Sh. Md. Usman Complainant Mohd. Azeem Ansari Name of the Accused, S/o Sh. Sardar Ansari, R/o H. d. his parentage and : No.2722, Mohalla Nihariyan, residence Opposite G.B. Road, Kamla Market, Delhi e. Offence complained of : U/s 411 Indian Penal Code Plea of the Accused and f. : Pleaded not guilty.
his examination (if any)
g. Final Order : Acquitted
h. Date of Order : 26.10.2023
State Vs. Mohd. Azeem
FIR No. 34/2014
PS Kotwali
1/38
BRIEF REASONS FOR DECISION:
1. In brief, the accused has been sent to face trial upon the allegations that on 24.02.2014 at House no. 2722, Mohalla Nihari Yan, G. B. Road, Kamla Market, accused Md. Azeem Ansari was found in possession of one stolen mobile phone make Vox E-9 Black color and stolen cash of Rs. 24,000/- belonging to the complainant namely Md. Saleem which the accused either received or retained having knowledge or having reason to believe the same to be stolen property and thereby committed an offence punishable U/s 411 of Indian Penal Code(hereinafter called as IPC).
2. After completion of an investigation, a charge sheet was filed against the accused on 07.04.2014. Copy of charge sheet and other documents were supplied to the accused under section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C) and thereafter charge under section 411 IPC was framed against him on 19.08.2015 to which he pleaded not guilty and claimed trial.
3. The prosecution examined seven (07) witnesses to substantiate allegations against the accused.
4. PW-1 Md. Salim has deposed in his examination-in-
chief that on 12.01.2014 at about 7.45 pm, he found the handle (kunda) of the main gate of his house was in broken condition. He deposed that when he entered his house, he State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 2/38 found that the locker of almirah was in open condition and the key was there in the locker. He further deposed that one gold necklace set, four gold bangles, one gold chain, one gold ring and cash of Rs.1.5 lacs to Rs. 2 lacs were missing from the almirah. Somebody had stolen the same from the house he called on 100 number and police came at the spot and police recorded his statement which is Ex. PW1/A. Police prepared a site plan in his presence. He deposed that later on, he found one mobile phone of VOX company, which was also stolen on the day of the incident. He had told the police that the currency notes of different denominations like 100, 500, 100 & 50 were there but he did not remember the exact number of bundles of the same. He did not remember the exact number of bundles of the same. He did not remember the model of the mobile make of VOX.
The witness was cross-examined by Ld. APP for the State, after seeking due permission from the court. During cross-examination, PW-1 claimed that he did not remember whether the model of the mobile phone was the E-9 of VOX company. He deposed that he did not remember whether the SIM no. 9560814149(Airtel) was running in the said mobile at the time of incident. He admitted the suggestion that the denomination amount of Rs. 1000/- and 500/- were there in the almirah at the time of incident. Voluntarily, he deposed that some notes of Rs. 100/- and Rs. 50/-were also lying in State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 3/38 the almirah for daily expenses. He further admitted the suggestion that due to lapse of time, he was not able to tell the exact model of the mobile and denomination of currency notes. He deposed that he had taken his recovered mobile phone and Rs. 24,000/- on superdari. He brought his recovered mobile phone made of VOX which is Ex.P-1. He deposed that he had already spent aforesaid Rs. 24,000/- which he had taken on superdari so he was not able to produce it before the court (identification of money was dispensed with as ld. Defence counsel did not dispute the identity of alleged recovered money because he claimed that the same was hard earned money of the accused and it had nothing to do with any offence).
During cross-examination by Ld. Counsel for the accused, PW-1 deposed that he had not mentioned in his statement U/s 161 of Cr.PC regarding the type and number of denomination of currency consisting of money in question. Police had got photocopies of recovery money before releasing the same to him. He had also kept one set of photocopies of his money for his reference. Police did not get his signature on photocopy of said money Police did not get signature of accused on any record before releasing money in question to him. He did not remember whether police had noted currency no. of said money. He admitted the suggestion that there was no distinctive mark on his stolen money. The State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 4/38 stolen money in question was regular Indian currency consisting of denominations of Rs. 100/-, 500/-, 1000/-. He denied the suggestion that he was deposing falsely.
5. PW-2 HC Irshad Ahmed has deposed in his examination-in-chief that on 12.01.2014, he was posted as Constable at PS Mobile Crime Team North Distt. On that day, he received a message from the control room for reaching at H. No. 5508, First Floor, Kucha Rehman Balimaran, Delhi. He alongwith I/C Crime team reached at the aforesaid spot and in the direction of IO, he clicked three photographs of the spot from different angles. He brought those photographs along with negatives and these photographs Ex. P-1 and negatives Ex. P-2.
During cross-examination by Ld. Counsel for the accused, PW-2 stated that he received the call at 09:10 PM. He did not remember whether any departure entry was made on that day. He voluntarily deposed that entry was made on behalf of the in-charge. He reached the spot at about 10:15 AM. He did not remember how many houses were there. The incident happened on the first floor of the house. He did not remember how many floors were built up in the house in question. He denied the suggestion that he did not join the investigation of this case or that he did not click the photographs of the spot or that he was deposing falsely.
State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 5/38
6. PW-3 Abdul Majid has deposed in his examination- in-chief that he has been running a mobile recharging shop from shop No. 2615, Mohallah Nihariyan, Delhi-110006. On 24.02.2014, IO of this case, reached at his house and inquired about this case. In the year 2014, on exact date, he did not remember today due to the lapse of a considerable time, accused Mohd. Azeem came to his shop and requested him to give Rs. 600/-. He had handed over to him one mobile phone make VOX-9 in lieu of his Rs. 600/-. He deposed that he would take the aforesaid mobile phone after giving him his Rs. 600/-. He had put his SIM card into the aforesaid mobile phone which was handed over to him by accused Mohd. Azeem. He has correctly identified the accused. After some days, the accused had handed over his Rs. 600/- and he returned the aforesaid mobile phone to him. When the IO of this case inquired him, he had taken him before the accused. He deposed that he could identify the aforesaid mobile phone if shown to him. (Accused was not disputing the identity of the aforementioned mobile phone). He did not remember anything else about this case.
The witness was cross-examined by Ld. APP for the State, after seeking due permission from the court. During cross-examination by Ld. APP for the State, PW-3 admitted that his statement was recorded by the IO in this case. He admitted the suggestion that accused Azeem was arrested in State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 6/38 his presence and aforesaid mobile phone was also recovered from his possession. He further admitted that IO had seized that mobile phone in his presence vide memo which is Ex.PW-3/A. He admitted that IO had arrested and personally searched the accused in his presence vide memos which are Ex.PW-3/B & Ex.PW-3/C respectively. The police official had recorded his statement only once.
During cross-examination by Ld. Counsel for the accused, PW-3 denied the suggestion that he did not remember the date as the accused had never come to his shop and did not demand any money from him. He denied the suggestion that no money was given by him to him and due to that reason he did not have any documentary evidence of the same. He denied the suggestion that the accused had never handed over any phone to him and that he had falsely mentioned his name in collusion with the IO to save himself from legal prosecution. IO recorded his statement at the Police post. He has recorded his statement only once. No bill/invoice of the phone was given to him by the accused. Accused was arrested on 24.02.2014. The IO had not recorded a statement of any other public witness in his presence on that day. He did not remember what documents were prepared by the IO in his presence. He did not remember whether he had signed any documents on that day. He denied the suggestion that he falsely deposed against the accused at State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 7/38 the instance of the IO. He denied the suggestion that he was deposing falsely.
7. PW-4 ASI Joginder has deposed in his examination-
in-chief that on 12.01.2014, he received DD No. 21PP Ballimaran regarding theft, he alongwith Ct. Naushad Ali reached H. No. 5805, Kucha Rehman, Delhi. He found the complainant namely Mohd. Saleem met them and Kunda of the door was broken. They entered the house and found some articles scattered on the floor. The complainant informed that jewelry articles, cash about Rs. 2,00,000/- or missing. He called the crime team on the spot. After some time, the cream team SI Nagender along with a photographer came to the spot. They had inspected the premises. He recorded the statement of complainant Mohd. Saleem Ex. PW-1/A. He prepared the rukka Ex. PW-4/A and he handed over the same to Ct. Naushad Ali for registration of FIR. They went to the PS along with the copy of rukka. After registration of FIR, he came at the spot along with SI Surender Singh who conducted the further investigation of the case. He prepared the site plan at the spot Ex.PW-4/B. He searched the stolen articles and accused persons but none was found. He returned to the police chowki. IO had recorded his statement in this regard.
During cross-examination by Ld. Counsel for the accused, PW-4 stated that he was on emergency duty from State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 8/38 08:00 p.m. to 08:00 pm, he received the information through telephone while he was on patrolling. He reached the spot at about 08:30 p.m on foot. The neighbors of the complainant were not present at the spot when he reached there. He called the crime team through his telephone. He deposed that no list of stolen articles was given by the complainant to him. Crime team remained at the spot for about 30 minutes. He did not inquire from the neighbor of the complainant. There was no CCTV camera installed at the spot. Rukka was handed over to Ct. Naushad Ali at about 11:00 p.m. SI Surender prepared the site plan and recorded the supplementary statement of the complainant in his presence. IO prepared the site plan first. IO bag was with SI Surender. He denied the suggestion that he had not visited the spot and he prepared the documents while sitting at the PS.
8. PW-5 Ct. Naushad Ali has deposed in his examination-in-chief that on 12.01.2014, on receiving of DD No. 21PP Ballimaran regarding theft, he along with HC Joginder Pal reached at the spot at H. No. 5805, first floor, Kucha Rehman, Delhi. Complainant Mohd. Saleem met them. They saw that Kunda of the door was broken. They entered into the house where goods were lying scattered and the almirah was opened. IO called the crime team and after some time the police official of the crime team reached the spot and they inspected the premises of the complainant. IO had State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 9/38 recorded the statement of the complainant and prepared the rukka. Rukka was handed over to him for registration of FIR. He went to the PS along with the copy of rukka and after registration of FIR. He came at the spot and by that time, SI Surender was present at the spot who conducted the further investigation of the case. He handed over the copy of FIR to SI Surender. SI Surender prepared the site plan in his presence at the spot. They searched the accused and stole articles but were not found. IO recorded his statement. They returned to the police chowki.
During cross-examination by Ld. Counsel for the accused, PW-5 stated that the information was received at about 08:20 p.m., and reached the spot at about 08:30 pm. He was on patrolling. The neighbors of the complainant were not present at the spot when he reached there. He did not know whether family members of Saleem were present or not. He deposed that no list of stolen articles was given to the IO by the complainant. 2-3 officials of the crime team came to the spot. He did not remember how many rooms were in the flat of the complainant. They searched the entire house of the complainant. He did not remember that the almirah which was opened was either wooden or iron. The almirah was checked by the IO and the lock was not broken. Rukka was handed over to him at about 11:00 pm and he remained at the PS for about 40 minutes and returned to the spot at about 12 State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 10/38 midnight. After registration of FIR, they remained at the spot for about 30 minutes. IO HC Joginder prepared the rukka. They finally left the spot at about 12:30 am. His statement was recorded at once. He denied the suggestion that he had not visited the spot and IO prepared the documents while sitting at the PS.
9. PW-6 SI Sanjay Gupta has deposed in his examination-in-chief that on 01.02.2014, he was posted as Chowki Incharge at PP Balimaran PS Kotwali, Delhi. He was handed over the case file of the present FIR for further investigation. The IMEI Number of the stolen mobile phone was sent to service providers to all the telecoms. After the surveillance of the said mobile, he came to know through service provider Vodafone that the mobile used by SIM Number issued in the name of Abdul Majid at Shradhanand Marg, Kamla Market, Delhi. On 24.02.2014, he along with HC Vijay and Ct. Ramesh went to the house of Abdul Majid at Shradhanand Marg, Kamla Market, Delhi. He was interrogated and informed that the said mobile phone was placed to him by Azeem Ansari and after using the mobile phone and thereafter, he returned the mobile to Azeem Ansari who is residing in the same locality. He recorded the statement of Abdul Majid under Section 161 Cr.P.C. They alongwith Abdul Majid went to search for Azeem Ansari. During the search, Azeem Ansari met with them in the gali.
State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 11/38 Abdul Majid pointed towards Azeem Ansari and correctly identified the accused. Accused was apprehended and interrogated. The accused has taken out one mobile phone made of VOX from his right side pocket. He checked the IMEI number of the said mobile and found that the said mobile was stolen from the house of the complainant Mohd. Saleem. The mobile phone was taken into possession vide seizure memo Ex.PW-3/A. The accused was arrested vide arrest memo Ex. PW-3/B and his personal search was taken vide memo Ex. PW-3/C respectively. The disclosure statement of the accused was recorded Ex. PW-6/A. The accused had taken them to the same gali where he had kept the cash which was stolen from the house of the complainant. They went to the rented house in the same gali. The accused had taken out one purse of pink color from the rack. He checked the purse which contained 16 currency notes of Rs. 1000 denomination and 16 of Rs. 500 denomination. The total comes to ₹24000/-. The currency notes were kept in an envelope and taken of possession vide seizure memo Ex. PW- 6/B. The accused has pointed out the place of occurrence vide pointing out memo Ex.PW-6/C. After completion of the proceedings, they returned to the PS and case property was deposited in the Malkhana. He had recorded the statement of witnesses. After completion of the investigation, the challan was filed accordingly. It was noted that case property i.e., State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 12/38 mobile phone was exhibited as P-1 and the currency was not produced but the identity of the currency notes were not disputed by the Ld. defence counsel for the accused in the testimony of PW-1.
During cross-examination by Ld. Counsel for the accused, PW-6 stated that he made a request through DCP for IMEI tracking of the recovered phone. He admitted that he had not filed a copy of the said request letter sent through DCP to the Nodal Officer. He voluntarily said that it may be in the police file. No tapping of the alleged phone was done. He did not remember the time as to what period the recovered phone was used by the witness Majid in the present case. He had not taken any documentary proof from the witness Majid in relation to the sale-purchase of the mobile phone from the accused. He voluntarily said that he had not provided any document in this regard. He had not served any notice u/s 160 of other provision of Cr.P.C upon the witness Majid for not providing the document of sale-purchase of mobile from the accused. He admitted that the SIM which was lying in the mobile phone was also taken by the witness Majid in his name. He admitted that the CAF and other forms were also in the name of witness Majid. He admitted that the accused had not kept any SIM in the said mobile. He admitted that it had not come to his knowledge that the accused ever used the mobile for talk or kept any SIM in the said mobile. It has not State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 13/38 come to his knowledge prior to using the present phone, which mobile was used by witness Majid for communication. He admitted that he had not obtained the CDRs of the earlier mobile used by witness Majid. He admitted that witness Majid did not produce any document which was executed between him and the accused in respect of keeping the phone mortgage for the money of Rs. 600/-. He had recorded the statement of witness Majid in the present case on 24.02.2014. He had also put the date under the said statement of witness Majid. After seeing the judicial file, the witness admitted that the statement of witness Majid did not bear the date of recording the same. However, the date is mentioned in case diary no. 10. He recorded the denomination of recovered notes in the seizure memo Ex.PW6/B. He had not mentioned the serial numbers on the notes recovered from the accused. He had not sealed the pullanda after keeping the recovered notes in it. It was put to the witness:"Is it correct to say that the pullanda in which you had kept the recovered notes were not sealed and due to which any note could be taken out or put in it. What do you have to say?", to which he answered:
"After keeping the said notes in the pullanda, I kept the same in an envelope and stapled it due to which it was not possible that anything could be kept in or taken out from the said pullanda as the same was stapled by me and I had submitted the said pullanda in the concerned Malkhana after recovering State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 14/38 the same." He denied the suggestion that the said envelope as well as the stapler pins could be changed by him at any time and on many occasions he had opened the said pullanda and changed its envelope as well as the stapler pins. He had not moved any application to conduct TIP for identifying the said recovered note from the complainant. He did not remember as to whether he had recorded the statement of the complainant regarding the denomination as well as identity mark on the notes which was stolen, during the period from 01.02.2014 to 24.02.2014 or not. The complainant had not disclosed to him any specific identity mark about which he was having knowledge that same were on the said currency notes. He did not remember after how many days he had recorded the statement of the complainant after recovery of alleged currency notes. He had not recorded the statement of the landlord of the house from where the said currency notes were recorded. At that time, he did not remember the name of said landlord. No document i.e. Rent agreements were made between the accused and his landlord at any point of time. Before visiting the house i.e., the place from where the alleged currency notes were recovered, he asked the local inhabitants of the said locality to join the investigation during recovery but they refused for the same. The said house was constructed with a ground floor and first floor. He had also not recorded the statement of any neighbor in respect of the State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 15/38 duration as to how long the accused was residing in the said premises. He admitted that he had also not collected the documentary proof of the said premises from the landlord or any other person. He denied the suggestion that no recovery of any phone has been effected from the accused at any point of time and accused was never found in possession of alleged currency notes. He denied the suggestion that he implicated the accused in the present matter at the instance of the complainant. He denied the suggestion that no recovery of alleged currency notes were made from the premises of the accused at any point of time and that is why he had not made any witness of said recovery. He denied the suggestion that money belongs to the accused and he had planted the said money on the accused. He denied the suggestion that he was deposing falsely.
10. PW-7 Ct. Ramesh Yadav has deposed in his examination-in-chief that on 24.02.2014, he was posted at PP Ballimaran PS Kotwali. On that day, he had joined the investigation with IO SI S.K. Gupta. At about 04-05:00, he along with the IO and HC Vijay had reached the shop of Abdul Majid at H. No. 2482, G.B Road. The IO collected the details of a mobile phone number from Abdul Majid. He told the IO that the said mobile belonged to Mohd. Ajeem Ansari who had taken the said mobile phone on the previous day. He had told Mohd. Ajeem Ansari was a resident of H.No. 2722.
State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 16/38 They along with Abdul Majid reached the house of Mohd. Ajeem Ansari. However, he was not found at the home. When they were returning, Mohd. Ajeem Ansari was apprehended near Katra Rajji at the instance of Abdul Majid. One mobile phone was recovered from the right side pocket of his pants. The IO said that the recovered mobile was the same mobile which was stolen. IO arrested the accused vide memo Ex. PW-3/B. His personal search was conducted vide memo Ex PW-3/C. The mobile phone was seized vide memo Ex. PW- 3/A. The accused was brought to PP Ballimaran. The IO recorded his disclosure statement Ex. PW-6/A. The accused led them to house No. 1834, Sadanand Marg, Kucha Pandit. The accused handed over a purse containing Rs. 24000/- which were seized vide memo Ex. PW-6/B. The accused was taken for his medical examination. At about 11:00 p.m., he was locked up. They returned to the police post. IO recorded his statement. He was discharged. He has correctly identified the accused. It is noted that the mobile phone has been exhibited as Ex.P-1. The identity of the currency notes was not disputed by the complainant.
During cross-examination by Ld. Counsel for the accused, PW-7 admitted that witness Majid did not give any document which was executed between him and the accused in respect of keeping the phone mortgage for the money of Rs. 600/-. He voluntarily stated that Majid verbally stated to State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 17/38 them about the said correct. He did not know as to whether IO had asked Majid to produce any bill of alleged mobile phone. No one met them at the house of the accused while they visited his house during his search as some repairs were kept on going. IO had not informed anyone regarding the arrest of the accused in his presence. IO had not prepared the site plan of the spot of recovery of alleged currency notes in his presence. No landlord of the house from where the said recovery was made met him. He did not remember how many stories were constructed in the said house. At that time, he did not remember as to how many tenants apart from the accused were residing in the said premises. IO could only specify as to whether he had taken any rent agreement from the landlord of said house in his possession or not. IO had not recorded the statement of other tenants who were residing in the said premises from where the recovery was effected. At the time when they went to recover the currency notes from the possession of the accused, at that time the complainant was not present with them. He denied the suggestion that no recovery of any phone has been effected from the accused at any point of time and accused was never found in possession of alleged currency notes. He denied the suggestion that IO falsely implicated the accused in the present matter at the instance of the complainant. He denied the suggestion that no recovery of alleged currency notes were made from the State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 18/38 premises of the accused at any point of time and that is why IO had not made any witness of said recovery. He denied the suggestion that money belongs to the accused and IO had planted the said money on the accused. He denied the suggestion that he was deposing falsely. He denied the suggestion that the said money belonged to the accused himself and he had brought the said money from the bank account of his employer Om Prakash Sharma.
11. The prosecution evidence was closed on 08.08.2019.
Statement of the accused u/s 313 read with section 281 Cr.P.C was recorded in which he chose to lead DE. An opportunity to lead Defence Evidence was closed vide order dated 28.02.2022. Later on, two (02) witnesses were examined on behalf of the accused U/s 311 Cr.P.C.
12. DW-1 Deepak sharma has deposed in his examination-in-chief that his father was doing the business of pump repair in the name and style of Om Engineering Works and he was the proprietor of the said firm. Its GST Number 07ABLPS8113J1Z9 and the copy of the same marked as Mark A. His father expired on 27.09.2021. Accused Azeem was working with his father since the lifetime of his father. During the lifetime of his father, he had informed him that they sent the accused to withdraw Rs. 20,000/- on 22.02.2014 from A/c No 0425021000588 of UCO Bank, Filmistan Branch of their firm and the said amount was withdrawn.
State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 19/38 Copy of the said bank statement exhibited as Ex. DW1/A. Prior to handing over the amount to his father, the police had arrested the accused in the present case and the said amount has been shown as case property which was recovered from the possession of the accused.
During cross-examination by Ld. APP for the State, DW-1 stated that accused Azeem used to work with his father. When the police arrested the accused, he was not present at his firm and he was in Rewari, Haryana. He admitted that his father informed him about the withdrawal of the amount from UCO Bank but personally he has no knowledge about said facts. He admitted that the bank statement showing the withdrawal of Rs. 20,000/- is dated 22.02.2014 but the recovery in the present case is dated 24.02.2014. He denied the suggestion that the amount which was withdrawn on 22.02.2014 was the same amount which was recovered from the possession of the accused after two days. He denied the suggestion that the denomination of the currency notes recovered were not the same. He admitted that his father told him about the facts and circumstances of the incident. He denied the suggestion that he was deposing falsely.
13. DW-2 Hans Raj has deposed in his examination-in-
chief that he brought the Statement of Account No. 4250210000588 from the period 18.01.2014 to 26.03.2015 State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 20/38 along with the certificate issued U/s 2A of the Bankers Book of Evidence Act bearing the seal and signature of the Branch Manager. The same exhibited as Ex.DW2/A. The said account is a Joint A/c maintained in the name of Om Engineering Works & Om Prakash Sharma. The relevant entry was dated 22.02.2014 of cheque bearing no.443214 amounting to Rs.20,000/- withdrawn by self. The relevant entry was underlined with red ink. He could produce the relevant cheque by which the above said amount was withdrawn. He brought the original cheque bearing No.443214 amounting Rs.20,000/-(OSR). The copy of the same taken on record and exhibited as Ex.DW2/B. He did not know about the details of owner/account holder of cheque Ex.DW2/B. He did not have any personal knowledge about the said cheque and the cheque might have been cleared after the verification of the signatures of the owner by the concerned clerk/cashier.
During cross-examination by Ld. APP for the State, DW-2 admitted that he did not have any personal knowledge about the facts of the present case. He admitted that he did not know who is the owner of the said account number mentioned in the cheque Ex.DW2/B. He admitted that he did not have any personal knowledge about the person who came to the bank to clear the said cheque. The defence evidence was closed on 08.08.2019. Final arguments in the matter were State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 21/38 heard.
APPRECIATION OF EVIDENCE:
14. At the time of final arguments, Ld. APP for the State has argued that prosecution has proved its case beyond reasonable doubts and all the ingredients of the relevant section are complete. Per contra, it is vehemently argued by the Ld. Counsel for the accused that the recovery witnesses are the police witnesses and their testimonies are not corroborated with any public witness. He submitted that the accused had been planted in the present matter by planting the mobile phone upon the accused when the same was used by the witness Abdul Majid. It is further stated that the stolen currency belonged to the accused only for which the accused has examined two witnesses in his defence. He prayed that the accused be acquitted.
15. I have heard the arguments addressed by the Ld. APP and the Ld. Counsel for the accused and perused the documents on record carefully. I have heard the arguments addressed by the Ld. APP for state and the Ld. Counsel for the accused and carefully perused the documents on record.
Before moving on for appreciation of evidence for deciding the present case, the applicable penal provision is reproduced in verbatim as follows:-
Section 410. Stolen property: Property, the possession whereof has State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 22/38 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 been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
Section 411. 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 both.
16. It is a cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of the accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence without any doubt, unless otherwise so provided by the statute. Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating evidence of the witnesses. The Hon'ble Delhi High Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 23/38 against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
17. Coming to the facts of the present case, there are specific allegations against the accused. The case of the prosecution is that one mobile phone of VOX company and cash worth Rs. 24,000/- of the complainant were recovered from the accused or at the instance of accused and the said articles were stolen from the possession of the complainant on 12.01.2014.
18. The allegations against the accused are u/s 411 IPC, the prosecution needs to prove the following essential ingredients:
1. That the accused has dishonestly received or retained any stolen property.
2. That such property has been received or retained by the accused knowing or having reason to believe the same to be stolen property.
State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 24/38
19. It is a case of the prosecution that on the basis of the disclosure statement made by the accused, recovery of cash effected from the house belonging to the accused at the instance of the accused himself. Apparently, then it is not a case of chance recovery. Rather, as per the deposition of PW- 6, after recording the discovery statement given by the accused, he along with other recovery witness went to the house of the accused at his instance. It shows that there was sufficient time and opportunity with the witness to include public witnesses at the time of alleged recovery from the accused. It was admittedly the case of pre-mediated recovery proceedings after the alleged information being given by the accused in his disclosure statement. Since the recovery has been affected from the house of the accused pursuant to the disclosure statements, it was premeditated recovery proceedings, there was sufficient time to join the public persons in the recovery proceedings. Hence, if the prosecution story is to be believed, the aforesaid accused made disclosure statements regarding his involvement in the present case and pursuant to the said disclosure statement, the accused got recovered Rs. 24,000/- from his house. Admittedly, there is no public witness of recovery. Admittedly, there is no public witness of recovery.
20. Further, the recovery memo which is Ex. PW6/D shows that both the recovery witnesses are the police witnesses. The State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 25/38 perusal of the recovery memo reflected that the place of recovery was the house no. 1834, Kucha Pandit, Junglee Kua, Mohalla Nihariyan, G.B. Road, Kamla Market Delhi. The place of recovery was a residential area and it was deposed by PW-6 during his cross-examination that he asked inhabitants of the said locality to join the investigation. PW-7 specifically deposed that no statements of the tenants were recorded who were residing in the said premises from where the recovery was effected. Admittedly, the PW-6/IO has not joined any public witness from the neighborhood as per the requirement of section 100 Cr.P.C. Although the violation to comply with the provisions of Section 100 Cr.P.C. and Section 165 of Code of Criminal Procedure per se does not vitiate the trial, conducting the search and seizure in violation of statutory safeguards would be against reasonable, fair and just procedure. The effect of such violation to comply with these provisions has to be appreciated in the given facts and circumstances of the case.
21. In the case at hand, there was no explanation given by PW-6 as to why no public person was asked to join the proceedings. The case would have been different if no public person was present or available. Thus, PW-6 has been guilty of withholding important evidence which was available and should have been forthcoming and therefore in such circumstances the alleged recovery from the accused is State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 26/38 rendered doubtful. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corners. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers and lends credibility to the procedure relating to search and seizure.
22. The Hon'ble Supreme Court in the case of Roop Chand v. State of Haryana 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. Also, the Hon'ble Supreme Court in the case of Pradeep Narayana v. State of Maharashtra AIR 1995 SC 1930, held that failure of police to join witnesses from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly, it was held in the case of Kuldeep Singh v. State of Haryana 2004 (4) RCR 103 and Passi @Prakash v. State of Haryana 2001 (1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness. From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of any other public witness. In the absence of the State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 27/38 testimony of any public witness, the testimonies of police officials cannot be relied upon and cannot be the sole basis of the conviction.
23. Another crucial aspect here to note is that the disclosure statements made by the accused which is Ex. PW6/A was admittedly recorded in the police custody by the police officials. As per section 25 & 26 of the Evidence Act, the said disclosure recorded by the police is nothing but a mere waste of paper having no evidentiary value. Now, the case of the prosecution is that the disclosure statements of the accused led to the discovery of the fact i.e. the place of recovery of stolen articles/currency and the knowledge of the accused as to it. Prosecution has also relied upon the testimony of PW-6 and PW-7 who were witnesses to the disclosure statements of the accused as well the alleged recovery of cash from the house of the accused. However, the said disclosure statements of the accused and the oral deposition of IO/PW-6 have no mention of the place of recovery i.e. house no. 1834, Kucha Pandit, Junglee Kua, Mohalla Nihariyan, G.B. Road, Kamla Market Delhi which is alleged in the seizure memo which is Ex. PW-6/B. Further, the authorship of concealment is also absent. Hence, there is no specific disclosure statement which leads to the discovery of fact in the present case and the said discovery statements has to be discarded in toto.
State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 28/38
24. Here, I would like to refer to the judgment of Subramanya v. State of Karnataka, AIR 2022 SC 5110, where the apex court has held:
"77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
78. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panchwitnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama.
State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 29/38 This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
79. In the aforesaid context, we may refer to and rely upon the decision of this Court in the case of Murli and Another v. State of Rajasthan reported in (2009) 9 SCC 417, held as under:
"34. The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box......."[Emphasis supplied]
80. One another serious infirmity which has surfaced is in regard to the authorship of concealment by the person who is said to have discovered the weapon.
81. The conditions necessary for the applicability of Section 27 of the Act are broadly as under: (1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483.
Two conditions for application: - (1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered Earabhadrappa v. State of Karnataka: AIR (1983) SC 446.
82. We may refer to and rely upon a Constitution Bench decision of this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph 71 explains the position of law as regards the Section 27 of the Evidence Act:
"71. The law has thus made a classification of accused persons into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 30/38 also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft." [Emphasis supplied]
83. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A"
these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
84. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 31/38 infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.
85. In Dudh Nath Pandey v. State of U.P., AIR (1981) SC 911, this Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept.
86. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama, the High Court was not justified in placing reliance upon the circumstance of discovery of weapon.
25. Therefore, the legal position which emerges from the aforesaid discussion is that the prosecution is duty bound to prove the exact statements made by the accused to the investigation officer which led to the discovery of the fact i.e. the discovery of the place from where the object is recovered and knowledge of the accused as to it. The exact disclosure statement of the accused should be stated by the police officer, in the seizure/recovery memo and before the court. In State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 32/38 the present case, the investigation officer who has been examined as PW-6, has not deposed of any exact or specific disclosure of the accused qua the place of recovery of the object and the knowledge of the accused as to it.
26. Furthemore, the recovery of allegedly stolen money is effected from the alleged rented accommodation of the accused. Again the question arises in the story of prosecution whether there is any oral or documentary evidence to this effect that the same house belonged to the accused and the same was in exclusive possession of the accused. In the case of Sukhdev @ Bhalia Vs. State of Haryana 1993 (1) RCR 427, in a robbery case, the recovery of stolen articles was affected from the house of the accused. The house was not in exclusive possession of the accused. His brothers and parents were also living in the house. The court held that there was no sufficient evidence to infer the exclusive possession of accused over the stolen articles and therefore possibility cannot be ruled out that some other male adult of the family might have kept concealed those articles there and thus the recovery of those articles from the joint house of the accused, his brother and parents was held not sufficient to prove his conscious or exclusive possession of those articles. In the present case, PW-6 categorically admitted during his cross- examination that he had not collected even a single piece of paper to reflect that the said place of recovery was rented to State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 33/38 the accused, neither he has noted down any statements or name of the landlord of the said accommodation, nor of any other tenants. The place of recovery/hiding the articles is not proved to be exclusively within the knowledge of the accused as that place can be or is in the knowledge of any other person and, such type of recovery is not reliable and it is doubtful and the possibility of planting of case property cannot be ruled.
27. Furthermore, as per the version of the prosecution cash of Rs.1.5 Lac to Rs. 2 Lacs were stolen from the house of the complainant, importantly, the complainant in his initial statement had neither told the police about the denomination of currency notes stolen from his house nor did he tell the police about the number of each currency note stolen. How the complainant identified the currency notes to be the same notes as stolen from his house is not known. The witness did not mention any special mark or feature on the notes which helped him in concluding that the currency notes which are taken on superdari was his property. Even IO/PW-6 has deposed that the complainant had not disclosed to him any specific identity mark about which he was having knowledge that same were on the said currency notes. Ordinarily, it is next to impossible for a person to merely look at a currency note and tell whether the same belongs to him or not, State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 34/38 especially when the same is one of several notes of the same denomination kept at his house. Neither any photographs nor bills of stolen articles were provided by the complainant to the police. PW-6 categorically deposed during his cross- examination that neither had he mentioned the serial numbers on the notes recovered from the accused nor had he sealed the pullanda after keeping the recovered notes in it. It is further deposed that he had deposited the case property in the Malkhana, however, the said malkhana register is also not proved on record. Hence, the safe custody of the allegedly recovered case property and the possibility of tampering with the case property cannot be ruled out. Further, regarding the mobile phone which allegedly belonged to the complainant, however, the fact that it was stolen from his house was reported by him after almost 10 days of the alleged theft from his house. The said belated mention of the stealing of his own mobile phone coupled with the fact that he was not able to tell the model number of the said mobile phone or his mobile number during his examination, makes his testimony to the effect of identification of the mobile phone indeed belonged to him and was actually stolen from his house doubtful.
28. Furthermore, admittedly, the recovered mobile phone was used by witness Abdul Majid and CAF and other documents were in the name of said witness including the SIM card inserted in the said mobile as per the depositions of State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 35/38 PW-3 and PW-6. However, the investigation officer has straightaway believed the oral statements of PW-3 qua transaction between him and the accused for the mobile phone and not even made a single effort to venture into the field of collecting a single document from the witness, regarding the such transaction. Instead, considering the oral statements of the witness Abdul Majid as a gospel truth, IO has selectively conducted the investigation only against the accused. Witness Abdul Majid is an interesed witness as the witness has direct interest in having the accused somehow or the other convicted for some other reasons so that he is saved from the case. It is a settled position that the evidence of an interested witness is highly unreliable and that some cannot be accepted with corroboration. No such corroborating evidence has come on record in the present case. There is no witness to the sale purchase transaction between the said witness and the accused. There is not even a single document on record to the effect that the said mobile phone was handed over by the accused to the witness Abdul Majid in consideration of Rs. 600/- and the possibility of planting the said article upon the accused could not be discounted completely. The court is constrained here to note the halfhearted quality of investigation done by the IO, creates loopholes in the story of the prosecution and gaps to complete the story against the accused beyond the pale of reasonable State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 36/38 doubts.
29. Now, I don't discount the possibility that there may be an element of truth in the prosecution story when considered as a whole, but the standard of proof in criminal cases dictates that the accused persons can be held guilty only when it is established that the accused has committed the offence. The prosecution has to traverse the distance between may have committed to must have committed in the light of cogent and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case. Thus it is quite clear that the prosecution has failed to deliver on this end in the instant case.
30. Hence, considering the discussion made above and after such deliberation, it is my opinion that in the circumstances of the case, the evidence on record does not suffice in proving the guilt of the accused person u/s 411 IPC beyond reasonable doubt. The ingredients of section 411 IPC must be satisfied particularly the possession of the stolen articles by the accused. The evidence on record in the instant case is not sufficient to warrant the conviction of the accused under section 411 IPC. Thus, the accused person will have to be given the benefit of doubt. Hence, this court is of the considered opinion that the prosecution had failed to bring State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 37/38 home the guilt of the accused for the offence punishable U/s 411 IPC, beyond reasonable doubt. Accordingly, the accused Mohd. Azeem Ansari stands acquitted for the charge U/s 411 IPC.
31. File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Announced in the open court today i.e., 26.10.2023 Digitally signed by MEENA MEENA CHAUHAN CHAUHAN Date: 2023.10.26 17:54:41 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi [This judgment contains 38 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Mohd. Azeem FIR No. 34/2014 PS Kotwali 38/38