Delhi District Court
State vs Yusuf on 6 November, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE -08
(CENTRAL), TIS HAZARI COURTS : DELHI
PRESIDING OFFICER: Ms. MEENA CHAUHAN, DJS
FIR No. 97/2021
PS : Chandni Mahal
U/s 380/411 Indian Penal Code
State vs. Yusuf
Date of Institution of case: 22.12.2021
Date when Judgment reserved: 12.10.2023
Date on which Judgment pronounced: 06.11.2023
JUDGMENT
A. Case No. : 14259/2021
B. Date of Institution of Case : 22.12.2021
C. Date of Commission of Offence : 26.10.2021
D. Name of the complainant : Sh. Atif
E. Name of the Accused : Yusuf s/o Sh. Makbool
& his parentage and residence R/o Vagabond, Patri, Jama
Masjid, Delhi.
F. Offences complained of : U/s 380/411 Indian Penal
Code
G. Plea of the Accused : Pleaded not guilty
H. Final order : Acquitted under all
charges
I. Date of such order : 06.11.2023
State Vs. Yusuf
FIR No. 97/21
PS Chandni Mahal
1/23
BRIEF FACTS OF THE CASE:
1. The case of prosecution in brief is that on 26.10.2021 between 10:00 am to 11:00 am at H.No. 2232, Shanker Gali, Bazar Sita Ram, Delhi within the jurisdiction of PS Chandni Mahal accused Yusuf had committed theft of the mobile phones from the above- mentioned house of the complainant namely Sh. Bharat and on 01.11.2021 at Police Bhawan, Asaf Ali Road, Delhi, accused was found in possession of the above said stolen items as per list mark X belonging to the complainant which accused had retained knowingly or having reasons to believe the same to be stolen one and thereby committing an offence punishable u/s 380/411 Indian Penal Code, 1860 (hereinafter called as IPC).
2. Upon conclusion of investigation, a final report was filed before the court on 22.12.2021 against the accused. Cognizance of offence punishable u/s 380/411 IPC was taken. A copy of charge sheet was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, charge for offence punishable u/s 380/411 IPC was framed against the accused to which he pleaded not guilty and opted for trial.
3. Thereafter, the prosecution was given the opportunity to substantiate the allegations against the accused. The prosecution examined 7 (seven) witnesses in support of its case:
State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 2/23 Name of Documents Dates of Dates of Sr. Prosecution Exhibited in examination- cross- No. witnesses Evidence in-chief examination
(i) Site Plan Ex.
PW1/A PW-1 Atif (ii) Photographs of 11.05.2022 11.05.2022 mobile phone Ex.
P-1.
(i) Invoice No. 192/2019-2020 dated 25.06.2019 Ex.PW2/A PW-2 Imran 26.09.2022 26.09.2022
(ii) Invoice No. 583 dated 09.08.2021 Ex.PW2/B
(i) Arrest memo Ex.PW3/A Dev (ii) Personal search PW-3 26.09.2022 26.09.2022 Bhagwan memo Ex.PW3/B
(iii) Recovery memo Ex.PW3/C Jugal (i) Tax invoice PW-4 21.11.2022 21.11.2022 Kishore Ex.PW4/A
(i) Copy of FIR Ex.PW5/A PW-5 HC Kapil (ii) Certificate U/s 01.06.2023 01.06.2023 65B Indian Evidence Act Ex.PW5/B State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 3/23
(i) Seizure memo of mobile phones Ex.PW6/A HC Suresh (ii) Disclosure PW-6 13.07.2023 13.07.2023 Yadav statement of accused Ex.PW6/B
(iii) Pointing out memo Ex.PW6/C ASI Om PW-7 Nil 13.07.2023 13.07.2023 Prakash
4. The prosecution evidence was closed on 13.07.2022 and the statement of the accused was recorded under Section 313 read with section 281 of Cr.P.C on 02.09.2023, wherein he pleaded his innocence and stated to have been falsely implicated. The accused stated that recovery is planted by the police officials and all the PWs are the interested witnesses. The accused has not opted to lead defence evidence. Final arguments were heard. I have cogitated over the submissions made by ld. APP for the state and Ld. Counsel for the accused person.
DISCUSSION, DECISION AND REASONS THEREON:
5. I have heard the arguments addressed by the Ld. APP for state and the Ld. LAC for the accused and carefully perused the documents on record. Before adverting to the appreciation of evidence for deciding the State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 4/23 present case, the applicable penal provisions are reproduced in verbatim as follow:-
Section 378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Section 380 IPC. Theft in a dwelling house, etc.--Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 411 IPC. 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.
6. It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence to successfully bring home the guilt of the accused. Further, it cannot derive any benefit whatsoever from the weakness, if any, in the defence of the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reasonable doubt in the prosecution case entitles the accused to acquittal. My observations on the evidence led at the trial are delineated hereinafter.
7. Section 380 IPC prescribes punishment for theft in State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 5/23 a dwelling house. The offence theft is defined under Section 378 IPC and the essential ingredients to constitute an offence under Section 380 IPC are as follows:-
1. Intention to take dishonestly
2. The property shall be movable property.
3. The property shall be taken out from the possession of any person without his consent.
4. There should be some moving of the said property to such taking.
5. The theft should have been committed in a dwelling house or place used for safe custody of property.
8. A careful perusal of all the evidence led by the prosecution, it is reflected that in order to appreciate the evidence in the light of an allegation under section 380/411 IPC, testimonies of PW-1, PW-3, PW-6 and PW-7 are crucial. PW-1 is the complainant of this case who has reported the offence of theft via registration of E-FIR. The said E-FIR has been proved as Ex. PW5/A(OSR) annexed with certificate U/s 65 B of Indian Evidence Act (Ex. PW5/B) in the testimony of PW-5. As per the contents of said FIR, it is reported that while the complainant was sleeping with his family at his house, "anybody" came into his house and stole his four mobile phones and Rs. 26,000/-. Further, details of the said mobile phone have been provided. It is observed that as per the deposition of the complainant, he nowhere testified that he had seen the State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 6/23 accused committing the alleged offence of theft, neither is such fact recorded by any of his statements which has been exhibited during his examination before the court. Hence, the complainant has not an eye-witness who had seen the accused committing the theft of his mobile phones and other articles. Further, there is no other eye-witness of the alleged offence of theft from the dwelling house. It can be concluded that the case of the prosecution is based on circumstantial evidence.
9. The law on circumstantial evidence is, by now, settled. In Sharad Birdhichand Sarda Vs State of Maharashtra [1984 (4) SCC 116], this Court drew out the following test for relying upon the circumstantial evidence.
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2)The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3)The circumstances should be of a conclusive nature and tendency.
(4)They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 7/23
10. Keeping in view the aforesaid yardsticks, I am appreciating the evidence on record with regard to the alleged offence.
11. Firstly, PW-1 has deposed that on 26.10.2021, at around 11:00 am, he was awakened by the presence of someone and he saw one person jumping out of his window with the help of wire and he ran away. PW-1 has identified the accused during his examination. However, PW-1/ complainant has not mentioned any features or description of the accused person either in the FIR which is Ex. PW5/A nor during his examination-in-chief before the accused. The accused, admittedly, was not known to the complainant or any of the prosecution witnesses. As per the prosecution story, the accused was arrested on the information of a secret informer on 01.11.2021, 5 days after the registration of E-FIR. The mobile phones of the complainant, allegedly robbed by the accused, were not put on location tracking. Test identification parade of the accused was never conducted in the presence of a Magistrate. In such a situation, there comes to the fore, a missing link in the prosecution story regarding how the accused was immediately tracked and traced and how the complainant has identified the accused when his testimony is silent about any features or descriptions of the accused.
12. In case titled as Dana Yadav @ Dahu & others Vs. State of Bihar (2002), it has been held by the Hon'ble Supreme Court of India that:-
State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 8/23 "Section 9 of the Evidence Act deals with relevancy of acts necessary to explain or introduce relevant facts. It says, inter alia, that facts which establish the identity of any thing or person whose identity is relevant, in so far as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in court is substantive evidence, whereas evidence of identification in a test identification parade is, though primary evidence, but not substantive one, and the same can be used only to corroborate the identification of the accused by a witness in court, it being governed essentially by the provision of Section 162 Cr.P.C."
13. In Vaikuntam Chandmppa and Ors. v. State of Andhra Pradesh, [AIR 1960 SC 1340] the Hon'ble Supreme Court observed that the substantive evidence of a witness is his statement in court, but the purpose of test identification is to test that evidence, and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are stranger to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding, or any other evidence. The law laid down in the aforesaid decision has been reiterated by the Hon'ble Supreme Court in [Budhsen and Anr. v. State of U.P., (1970 2 SCC 128), Sheikh Hasib alias Tabarak v. The State of Bihar, (1972 4 SCC 773), Bollavaram Pedda Narsi Reddy and Ors. v. State of Andhra Pradesh, (1991 3 SCC 434), Ronny alias Ronald James Alwaris and Ors. v. State of Maharashtra, (1998 3 SCC 625) and Rajesh Govind Jagesha v. State of Maharashtra, (1999 8 SCC 428)].
State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 9/23
14. It is further observed by the apex court in the case of Dana Yadav @ Dahu & others(supra) that:
"It is well settled that identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence, or the persons who are alleged to have been involved in the offence. Such tests or parades, in ordinary course, belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding in the right direction. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits. Reference in this connection may also be made to the decisions of Hon'ble Supreme Court in [Rameshwar Singh v. State of Jammu & Kashmir (1972 l SCR 627) and Ravindra alias Ravi Bansi Gohar v. State of Maharashtra and Ors., (1998 6 SCC 609).
It is also well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. The only question is regarding its probative value. It is a rule of prudence that ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous Identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused, and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in the court. If a witness identifies the accused in the court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. Judgment of Hon'ble Supreme Court in [Kanta Prashad v. Delhi Administration, (AIR 1958 SC 350), Kanan and Ors. v. State of Kerala, (1979 3 SCC 319), Mohanlal Gangaram Gehani v. State of Maharashtra, (1982 l SCC 700), State of State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 10/23 Maharashtra v. Sukhdev Singh and Anr., (1992 3 SCC 700), Jaspal Singh alias Pali v. State of Punjab, (1997 l SCC 510), Raju alias Rajendra v. State of Maharashtra, (1998 l SCC 169), George and Ors. v. State of Kerala and Anr., (1998 4 SCC 605), (2000 l SCC 247) and Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, (2000 l SCC 358) relied upon].
Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out, where identification of an accused for the first time in court without there being any corroboration whatsoever, can form the sole basis for his conviction. In the case of Budhsen and Anr. v. State of U.P., (1970 2 SCC 128) it was observed:-
"There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration."
In the case of State of Maharashtra v. Sukhdev Singh and Anr., (1992 3 SCC 700), it was laid down that if a witness had any particular reason to remember about the identity of an accused, in that event, the case can be brought under the exception and upon solitary evidence of identification of an accused in court for the first time, conviction can be based. In the case of Ronny alias Ronald James Alwaris and Ors. v. State of Maharashtra, (1998 3 SCC
625), it has been laid down that where the witness had a chance to interact with the accused, or that in a case where the witness had an opportunity to notice the distinctive features of the accused, which lends assurance to his testimony in court, the evidence of identification in court for the first time by such a witness cannot be thrown away merely because no test Identification parade was held. In that case, the concerned accused had a talk with the identifying witnesses for about 7/8 minutes. In these circumstances, the conviction of the accused, on the basis of sworn testimony of witnesses identifying for the first time in court, without the same being corroborated either by previous identification in the test identification parade or any other evidence, was upheld by this Court. In the case of Rajesh Govind Jagesha v. State of Maharashtra, (1999 8 SCC 428), it was laid down that the absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement or is arrested on the spot State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 11/23 immediately after the occurrence and in either eventuality, the evidence of witnesses identifying the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence and, accordingly, conviction of the accused was upheld by this Court."
In the case of Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, (2000 l SCC 358), it was observed "It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless; whether the evidence deserves any credence or not, would always depend on the facts and circumstances of each case." The Court further observed "the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds, especially when they were assaulted in broad daylight." In these circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court".
15. Also, there is no hard and fast rule about the period within which the TIP must be held from the arrest of the accused. In certain cases, the Hon'ble Supreme Court considered delay of 10 days to be fatal while in other cases even delay of 40 days or more was not considered to be fatal at all.
16. The Hon'ble Supreme Court further held in case titled as Pramod Mandal v. State of Bihar, (2004) 13 SCC 150 that :-
"It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide, in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 12/23 identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim, and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact, which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification."
17. In the present case, the accused was not arrested from the spot, admittedly the accused was not known to complainant, the physical characteristic features of the accused not mentioned by the complainant, and the interval of time in which the entire offence of theft allegedly happened, and the nature of interaction the complainant had with the accused in after the alleged theft, make it difficult to believe the complainant's identification of accused in the court, without being supported by a formal test identification parade.
18. Secondly, another public witness examined by the prosecution is PW-3 Dev Bhagwan. He deposed that on 26.10.2021, three mobile phones were stolen from the house of his uncle on the first floor of House no. 2232, Shanker Gali, Bazar Sita Ram, Delhi. He further deposed that on that day between 10:30 to 11:00 am he went to the State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 13/23 shop to purchase some goods, and when he came back he saw one boy aged about 20-25 coming down from stairs of his house, who ran away after seeing him. He further deposed that on 01.11.2021, he identified the accused in the police station. PW-3 also identified the accused during his examination before the court. At this stage, one important question arises is that how and when the said public witness entered into the investigation of the present matter as the present matter pertains to the commission of theft from house no. 2602, first floor, Gali Mandir Wali, Shanker Gali, Bazar Sita Ram, Delhi. The said question remains unanswered in the entire case of the prosecution. PW-3 categorically deposed that he did not know the complainant namely Atif. PW-6 and PW-7, the alleged recovery witnesses examined by the prosecution, however, their examination-in-chiefs are silent qua the presence or even the name of the said public witness namely Dev Bhagwan. Even the IO/PW-7 did not mention the joining of public witness Dev Bhagwan in the investigation of the present case. Hence, the court is unable to comprehend how PW-3 entered into the investigation of this case and how his testimony is relevant qua the alleged offences of the present case. Further, PW-3 also deposed that the incident in question did not take place in his presence and he did not see the accused at the time of incident. Further, it also remained unanswered as to how his identification of the accused is relevant in the present case, when he has State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 14/23 identified the accused on the basis of his earlier presence seen at house no.2232, Shanker Gali, Bazar Sita Ram, Delhi, which is not the spot of incident of the present case. The benefit of these inconsistencies and lacunas in the testimonies of the witnesses shall accrue to the accused.
19. Thirdly, as far as the recovery of the case property i.e. four stolen mobile phones of the complainant is concerned, three recovery witnesses namely PW-3, PW-6 and PW-7 have been examined by the prosecution. As already discussed, presence of PW-3 in the present case or at the time of recovery is not mentioned in the examination-in-chiefs of PW-6 and PW-7, which makes the presence of PW-3 at the spot of recovery doubtful. PW- 3 deposed in his examination-in-chief that on 01.11.2021, he went to the PS and identified the accused and three mobile phones were recovered from his possession. His deposition makes it further clear that he was not present at the recovery spot and he is not an eye-witness of recovery. Also it is pertinent to observe that he has not given any details of the recovered mobile phone from the possession of the accused, nor has identified the said recovered mobile phones during his examination-in-chief. PW-3 has exhibited the recovery memo which is Ex. PW3/C, however, it is qua recovery of four mobile phones from the accused from the recovery spot. When the witness was not present at the recovery spot and in the recovery proceedings, how his signatures appeared in the recovery State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 15/23 memo which is Ex. PW3/C. Prosecution evidence is unable to answer this question. Hence, the oral testimony of PW-3 is not corroborated with the documentary record i.e. recovery memo Ex. PW-3/C. Furthermore, PW-3 deposed that he had not seen any mobile phone in the hands of the accused, however the accused was carrying the light green color bora/bag. This testimony is in complete contrast to the testimonies of other two recovery witnesses who deposed about the recovery from the pockets of the pants/lower of the accused. These contradictions in the testimonies of the prosecution witnesses puts in question the entire recovery proceedings and the benefit of it goes in favor of the accused.
20. Coming to the testimonies of PW-6 and PW-7, both the witness deposed on the similar lines that on 01.11.2021, they were on patrolling duty, where one secret informer informed him about the accused and potential recovery of phones from the accused if raid would be conducted. They further deposed that thereafter, both of them went to the spot i.e. footpath in front of Police Bhawan, Asaf Ali Road and on the pointing out of the secret informer, they apprehend the accused and on cursory search of the accused, three mobile phones were recovered from the left pocket of lower/pajama of the accused and four mobile phones were recovered from the right pocket of lower/pajama of the accused. The recovery memo of the four stolen mobile phones of the present case State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 16/23 recovered from the accused is Ex. PW-3/C. However, the entire recovery proceedings comes under the shadow of doubts due to the following reasons:
21. If the prosecution story is to be believed then firstly, the prosecution is required to prove the presence of the said police personnels who were the recovery witnesses of the case properties. The prosecution should have brought the relevant records showing their arrivals and departures and should have proved by documentary evidence that they were on duty by producing DD entries for the same.
22. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under:
Chapter 22 rule 49 Matters to be entered in Register no. II.
The following matters shall amongst others, be entered:−
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note:− The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
23. In view of this rule, in the present case, the prosecution has examined PW-6 and PW-7 to the effect that they were on patrolling duty in the area. In the present case, also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials who were the State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 17/23 material prosecution witnesses have not been proved on record or proved. In Rattan Lal Vs. State 1987 (2) Crimes 29, the Hon'ble Delhi High Court held that:
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of the law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
24. Hence, the presence of recovery witnesses who were examined by the prosecution i.e. PW-6 and PW-7 at the spot are not proved. If they had departed from PS for investigation the entry to this effect must exist in the Roznamcha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure as all.
25. Furthermore, as per the prosecution story, the accused was apprehended after the raid team was formed on the information given by the secret informer. Apparently, then it is not a case of chance recovery. Rather, as per the deposition of PW-6 and PW-7, after the information given by the secret informer, PW-7 asked 4-5 persons to join the investigation and thereafter they both proceeded to the place from where the accused was State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 18/23 apprehended and recovery was made from the possession of the accused. It shows that there was sufficient time and opportunity with the IO 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 intimation being given by the accused. It is also deposed that 4-5 persons were present at near the spot, however, no notice has been served upon any of the public persons who allegedly refused to participate in the recovery proceedings, when there was sufficient time to join the public persons in the recovery proceedings.
26. If the prosecution story is to be believed, then there are three recovery witnesses, however, the public witness Dev Bhagwan has not supported the story of the prosecution qua recovery from the accused. Other recovery witnesses namely PW-6 and PW-7 are the police witnesses. Admittedly, the PW-7 has not joined any public witness as per the requirement of section 100 Cr.P.C despite the availability of 4-5 public persons. 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.
State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 19/23
27. In the case at hand, there was no explanation given by PW-7 as to why no public person was asked to join the recovery proceedings. The case would have been different if no public person was present or available. Thus, PW-7 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 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.
28. Another crucial aspect appeared in the testimony of PW-3 wherein he has exhibited the recovery memo Ex. PW3/C, however, PW-3 is silent with respect to taking part in any recovery proceedings as deposed by PW-6 and PW-
7. How and when the signatures of PW-3 were taken on the said recovery memo remained unanswered, when PW- 3 had seen the accused at the PS and identified him there. In this case, the possibility of tampering with the recovery memo could not be ruled out.
29. If the prosecution version is to be believed, then the complainant saw the accused while he ran away from his State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 20/23 house, however, neither any PCR call was made to the PS at the instance of the complainant nor any statements of the complainant to this effect has been recorded. On the next day, The police went to the spot and prepared a site plan, however, no statements of the complainant were recorded by the police to the effect that the complainant had seen the accused at his house. Now, a perusal of examination of the PW-7 reflected that no the stolen mobile phones on CDR location tracking, the accused Yusuf was all of a sudden apprehended on 01.11.2021 on information given by the secret informer and all the stolen mobile phones were recovered on his personal search. It is beyond comprehension of this court that how the accused became so well-known to the complainant, that the complainant at once pointed out at him, and identified him before the court during his examination. Most importantly, accused out of laziness, carelessness or affection for the complainant or any other reason whatsoever, was still carrying all the same stolen mobile phones in pockets of his pants after 5 days of the alleged theft. Thus, the prosecution story appears to be based upon coincidence, which does not appear to be a coincidence, and 'evidence', which does not have the probative value of an evidence. The story of the prosecution does not align at all with the common course of natural events, human conduct and public and private business, and therefore this court presumes u/s 114 of the Indian Evidence Act that such State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 21/23 offence has not been committed by the accused and the prosecution evidence does not rebut this presumption. Accordingly, the prosecution has miserably failed to prove its case beyond reasonable doubts.
30. In summation of all the above discussion, it is observed that in the case at hand, there is no eye-witness of the commission of offence of theft, the identification of accused by the complainant and public witness Dev Bhagwan comes under the shadow of doubts for the reasons already discussed, and the recovery proceedings are also vitiated for reasons stated as above. Hence, there is nothing incriminating to suggest that the accused had committed the offence of theft or retained any stolen properties belonging to the complainant. Thus, the prosecution failed to establish the ingredients of offence alleged against the accused in the present matter beyond a pale of reasonable doubt.
31. Prosecution has failed to discharge its burden qua the offences punishable under Section 380/411 IPC. Accordingly, the accused namely Yusuf s/o Sh. Makbool R/o Vagabond, Patri, Jama Masjid, Delhi stands acquitted of all the charges in the present case.
32. Bail bond and surety bond discharged. Original documents be returned to entitled parties. Bail bonds u/s 437A of Cr.PC are to be furnished which would remain valid for a period of six months.
State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 22/23
33. File be consigned to record room after due compliance.
Announced in the open court today i.e. 06.11.2023 Digitally signed by MEENA CHAUHAN MEENA Date: CHAUHAN 2023.11.06 17:15:52 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi [This judgment contains 23 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Yusuf FIR No. 97/21 PS Chandni Mahal 23/23