Delhi District Court
State vs . Kishan Lal & Anr. on 25 June, 2013
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI - 110 054.
FIR No. 497/1999
PS - Nangloi
State Vs. Kishan Lal & Anr.
Unique Case ID No. 02401R0133811999
JUDGMENT
(a) Sr. No. of the case 4100/1
(b) Date of offence 04.05.1999
(c) Complainant Sh. Virender Singh, S/o Sh. Tara Chand,
R/o H.No. Y-116, Camp No.1, Nangloi,
Delhi.
(d) Accused (1) Krishan Lal S/o Sh. Hakim Chand R/o
777/3, Village Mundka, New Delhi.
(2) Om Prakash S/o Sh. Hakim Chand
R/o 777/3, Village Mundka, New
Delhi.
(e) Offence Under Section 379 and 411 of The Indian
Penal Code, 1860 read with Section 34 of
The Indian Penal Code, 1860.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 18.11.1999
(i) Date when judgment was Not Reserved
reserved
(j) Date of judgment 25.06.2013
1. The brief facts of the case are that accused persons have been charge sheeted for committing offences punishable under Section 379 and 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. The allegations against the accused persons are that on 04.05.1999 at about 10 AM at Najafgarh Road, Near Post Office Nangloi, Delhi, both accused persons in furtherance of their common intension intending to take dishonestly a gas cylinder of LPG from the FIR No.497/1999 Page No.1 to 9 aforesaid address belonging to Tara Chand and in the possession of Virender Kumar, S/o Sh. Tara Chand moved it in order of such taking without his consent and on 15.10.1999, both accused persons in furtherance of their common intension dishonestly restrained LPG Gas Cylinder of Indane belonging to Virender Kumar, S/o Sh. Tara Chand knowing or having reason to believe that the such property is stolen property. According to the prosecution, both accused persons have committed offences punishable under Section 379 and 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge under Section 379 and 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 was framed against the accused persons vide order dated 17.02.2009 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. In order to prove its case, prosecution has examined six witnesses. PW1 WHC Darshan has exhibited and proved the FIR as Ex.PW1/A. PW1 was examined, not cross-examined by the accused despite opportunity given and was discharged.
4. PW2 HC Ishwar Singh has deposed that on 15.10.1999, he received the information that one truck bearing registration number DL-1GA-5065 would pass from here having stolen gas cylinder and on this, they reached at near Sukhi Nahar and at about 10:45 pm,one truck bearing registration number DL-1GA-5065 came from the Nangloi side and was going towards Mundka side. They tried to stop it, but, it did not stop and stopped near Mundka Firni. PW2 further deposed that they chased the said FIR No.497/1999 Page No.2 to 9 truck and apprehended two accused persons namely Kishan Lal and Om Parkash and they also checked the truck and found 41 LPG gas cylinders make Indane in it. Then, he informed at PS Nangloi and police came at the spot and he handed over both the accused persons to HC J. S. Rathi along-with case property and truck. Then IO HC J. S. Rathi took into possession the case property vide seizure memo mark 'A'. IO recorded statement of PW-2. PW-2 correctly identified the accused persons and case property in the Court. PW2 was examined, cross-examined and was discharged.
5. PW3 Ct. Ranbir Singh has deposed that on 15.10.1999, he along-with HC Joginder Singh went to the spot i.e. Mundka Firni Road on receiving D.D.NO.21A, where they found one PCR van along-with staff. I/C Van HC Ishwar Singh (PW2) handed over the truck bearing registration number DL-1GA-5065 along-with 41 LPG gas cylinders and both the accused persons namely Kishan Lal and Om Parkash to HC Joginder Singh. HC Joginder Singh seized the truck and cylinders vide seizure memo mark 'A'. HC Joginder Singh prepared the Rukka and handed over to him for registration of the case at the PS. PW3 went to PS and got registered the case and returned back at the spot along-with Rukka and copy of FIR and same were handed over to HC Joginder Singh. Both the accused persons were arrested and HC Joginder Singh recorded his statement. PW3 correctly identified the accused persons and case property in the Court. PW3 was examined, not cross-examined by the accused persons despite opportunity given and was discharged.
6. PW4 HC Satpal has deposed that on 14.10.1999, he along with HC Ishwar Singh and staff and were present at Dry Canal, Rohtak Road, Nangloi and at about 10:45 pm, a secret informer gave information to HC Ishwar that one truck bearing registration number DL-1GA-5065 with stolen LPG cylinders would pass from there. FIR No.497/1999 Page No.3 to 9 PW4 along with other staff started vehicle checking and truck bearing registration number DL-1GA-5065 came from the side of Nangloi. They stopped and found both accused persons namely Kishan Lal and Om Parkash in the truck and also found 41 LPG gas cylinders of Indane company. HC Ishwar informed control room. HC Joginder came from PS Nangloi and they handed over both the accused persons and recovered LPG cylinders to HC Joginder. HC Joginder seized the LPG cylinders and prepared seizure memo and arrested both the accused persons in this case. IO recorded statement of PW-4. PW-4 correctly identified the accused persons and case property as Ex. P1 in the Court. PW4 was examined, not cross-examined by the accused persons despite opportunity given and was discharged.
7. PW5 ASI Joginder Singh has deposed that on 14.10.1999, he was posted as Head Constable at PS Nangloi and on that day, he received D.D.No.21A and he along-with Ct. Ranbir Singh went to the spot i.e. Firni Road, Mundka where he met HC Ishwar Singh along-with his staff who handed over to him the accused persons namely Kishan Lal and accused Om Prakash along-with truck bearing registration number DL-1GA-5056 and gas cylinders. Thereafter, PW5 recorded statement of HC Ishwar Singh. PW5 further deposed that he prepared site plan at the instance of HC Ishwar Singh and recorded statement of witnesses. PW5 arrested accused Om Prakash and accused Kishan Lal. Thereafter, PW5 seized case property vide seizure memo Ex.PW5/A. PW5 recorded disclosure statement Ex. PW5/B of accused Om Prakash and disclosure statement Ex. PW5/C of accused Kishan Lal. Thereafter, PW5 came at PS Nangloi where case property was deposited in PS Malkhana and accused persons were lodged in lock up after medical examination. PW5 further deposed that as both the accused persons had disclosed their involvement in 13 cases, therefore, he handed over FIR No.497/1999 Page No.4 to 9 documents relating to other FIRs to concerned IOs. Statement of PW5 was recorded by IO. PW5 correctly identified the accused persons and case property as Ex. P1 (collectively) in the Court. PW5 was examined, cross-examined and was discharged.
8. PW6 Retired SI Suraj Bhan has deposed that on 07.05.1999, complainant Virender Kumar came at PS and he recorded his statement which is Ex.PW6/A and prepared the Rukka on the same and got FIR registered. Thereafter, PW6 along-with complainant went to the spot i.e. a village on Najafgarh road and prepared the site plan Ex. PW6/B at instance of the complainant. PW6 further deposed that on 17.10.1999, HC Jogender Singh handed over to him statement of witnesses, seizure memo and disclosure statement of accused persons namely Kishan Lal and Om Parkash. He arrested both accused persons and at the instance of both the accused persons, he prepared pointing out memo Ex.PW6/C. PW6 recorded the statements of witnesses. PW6 seized copy of receipt of gas connection presented by complainant Virender vide seizure memo Ex.PW6/D. Copy of receipt is marked as mark 'A'. PW6 recorded the statement of witnesses and after completion of investigation; he filed the charge sheet for judicial verdict. PW6 identified both the accused persons and case property in the Court. PW6 was examined, cross-examined and was discharged.
9. Prosecution evidence was closed vide order dated 07.02.2013. STATEMENT OF ACCUSED PERSON(S)
10. After closure of prosecution evidence, the statement of accused persons were recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure. Incriminating evidence was put to them. They denied all the allegations and stated that they are innocent and have been FIR No.497/1999 Page No.5 to 9 falsely implicated in this case. Accused persons opted not to lead evidence in their defence.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
11. Ld. APP for the State has argued that both the accused were found in possession of 41 gas cylinders. They failed to account for the source of possession. The stolen gas cylinder has been duly identified by the prosecution witnesses. Accused persons have also identified the place of occurrence. Therefore, prosecution has successfully proved the guilt of both the accused.
12. On the other hand, Ld. Defence counsel for both the accused persons has argued that no TIP of accused persons has been conducted. The identification of the cylinder is not proper and there is no other incriminating evidence against the accused persons except their disclosure statement. Disclosure statement of the accused persons cannot be considered. Hence, there is no material on record to convict either of the accused for the offence under Section 379 and 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860,
13. In this matter, the prosecution has examined all in all six witnesses before this Court. PW1 is regarding the factum of the registration of formal FIR Ex.PW1/A. PW2 and PW4 have deposed that on 14.10.1999, they were posted at PCR Power, P-71 and were present at Dry Canal, Rohtak Road, Nangloi. At about 10:45 pm, secret informer gave information to PW2 that a truck No. DL1GA-5065l would pass from there with LPG Gas Cylinders. On this they started vehicle checking and at that time, the above said truck came from Nangloi side. They stopped the truck, both present accused persons were present on the said truck and they found 41 LPG Gas Cylinders of Indane company in the said truck. They informed at the PS Nangloi. HC J.S. Rathi came at the spot. PW2 handed over seized cylinders and the accused persons to the HC FIR No.497/1999 Page No.6 to 9 J.S. Rathi. The IO seized the LPG Gas Cylinders and truck vide seizure memo Mark A and also arrested the accused persons. Both PW2 and PW4 identified the case property as one of the cylinders seized at that time as Ex. P1. PW3 and PW5 have deposed that on 15.10.1999, on receipt of DD No. 21A, they went to the spot where they met with HC Ishwar Singh, Incharge PCR Van alongwith Staff who handed over both the accused persons along with truck bearing registration No. DL1GA-5056 and 41 gas cylinders. PW5 recorded the statement of HC Ishwar Singh and prepared the rukka on the same and handed over it to PW-3 for registration of FIR. PW3 went to PS, got the FIR registered No. 1098/1999 at PS Nangloi, came with rukka and copy of FIR at the spot and handed over both to the IO. PW5 prepared the site plan at instance of HC Ishwar Singh and recorded statement of other witnesses. PW5 arrested both the accused persons and seized the case property vide seizure memo Ex. PW5/A. PW5 recorded disclosure statement Ex. PW5/B of accused Om Prakash and of accused Kishan Lal as Ex. PW5/C. Then, they came at PS Nangloi, deposited the case property in Malkhana and lodged the accused persons in lockup after medical examination. Both witnesses identified the case property as one of cylinders recovered from the accused persons as Ex. P1. PW6 Retired SI Suraj Bhan has deposed regarding the recording of statement of complainant Ex. PW6/A, of registration of present FIR and preparation of site plan at the instance of complainant Ex. PW6/B. He further deposed that on 17.10.1999, HC Joginder handed over to him statement of witnesses, seizure memo and disclosure statement of accused persons arrested in other case and on same day, he arrested both the accused persons. He prepared pointing out memo Ex. PW6/C. He further proved and exhibited the seizure memo Ex. PW6/D.
14. In this case, the owner of the alleged case property never turned up for evidence in this matter. Though, it is proved on record that the 41 LPG Gas Cylinders FIR No.497/1999 Page No.7 to 9 of make Indane were recovered from the possession of accused persons, but, it is not proved on record that the LPG Gas Cylinder which has been produced before this court in the present matter is the same LPG Cylinder which was stolen from the possession of complainant Virender Kumar on 04.05.1999 without his consent. There is also no evidence on record that the present accused persons were seen committing theft of LPG Gas Cylinder of the complainant Virender Kumar on 04.05.1999. Neither, there is evidence on record that what was the serial number of the gas cylinder which was stolen from the possession of the complainant Virender Kumar nor any unique identification mark is alleged as to establish that the case property produced in the court was the same gas cylinder which was stolen from the possession of the complainant on 04.05.1999. In these circumstances, the evidence of PW6 and other witnesses qua the fact that the case property of the present matter is the property of the complainant stolen from his possession on 04.05.1999 is not reliable and accused persons cannot be convicted on the basis of such weak evidence. In these circumstances, neither the status of the case property as stolen property has been proved on record and nor it has been proved on record that the accused committed theft of LPG Gas Cylinder of the complainant on 04.05.1999, therefore, both the accused persons are entitled for benefit of doubt in this matter.
15. In view of the aforementioned facts and circumstances, I am of the opinion that prosecution has not succeeded in proving the guilt of the accused for the offence under Section 379 and 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 beyond shadow of reasonable doubt. Accused Kishan Lal and Om Prakash accordingly stands acquitted for the offence under Section 379 and 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
FIR No.497/1999 Page No.8 to 9 Announced in the open Court on June 25, 2013.
(HARVINDER SINGH) MM-03/THC (West), Delhi/25.06.2013 FIR No.497/1999 Page No.9 to 9