Delhi District Court
State vs Rakesh on 28 June, 2007
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. CHIEF METROPOLITAN MAGISTRATE : ROHINI: DELHI.
In Ref:
FIR No. : 243/89
P. S. : Janak Puri
State Versus Rakesh
The date of Institution of the case: 23.05.1990
The date on which judgment has been reserved: 28.06.2007
The date on which judgment has been delivered: 28.06.2007
(a) Serial No. of the case : 77/2
(b) The date of commission of the
offence: 22.03.1990
(c)The name of the complainant if
any: Sh. Subhash Vatsain
(d) The name of the accused person,
and his parentage and residence: Rakesh
S/o Bhimsen
R/o 6/2 Ramesh Nagar,
New Delhi.
(e) The offence complained of : U/s 454/380/411/34 IPC
(f) The plea of the accused and his
examination ( if any): Pleaded not guilty &
claimed trial.
(g) The final Order: Acquittal
(h) The date of such order: 28.06.2007
JUDGMENT :-
1. Brief resume of the facts of the case of prosecution against accused Rakesh is that on 22.03.1990 he had dishonestly received 10 silver coins from one Ramu with the knowledge or belief that the same is stolen property.
2. The investigating agency had come into motion on report of PW1 Subhash Vatsain narrating occurrence of theft from his residence during the course of day while he had gone to his office and on return in the night he saw his valuables stolen. During the course of investigation accused Ramu was arrested with the allegations of dishonestly retaining four silver medals belonging to complainant with the knowledge or belief of it being stolen property. Also was alleged against him that at his instance 6 silver medals were recovered from Rakesh which he had sold to him. Accused Babu Lal was arrested with the allegations that he was found in unlawful possession of one gold ring and one nuth , knowing or having the reason the same to be stolen property belonging to the complainant.
3. Investigating agency concluded with the filing of the charge sheet against accused Ramu and Babu Lal arraying them as accused. Accused Ramu and Babu Lal were arrested during course of investigation. Accused Babu Lal was enlarged on bail. Accused Ramu had been in JC. Charge sheet was filed on 23.05.1990. Copies were supplied to accused Ramu then and accused Babu Lal was summoned by my Ld. Predecessor. On appearance of accused Babu Lal , copies were given to him.
4. Charge for offences under Section 411 IPC and 414 IPC was framed against accused Ramu by my Ld. Predecessor on 25.07.1990 to which he pleaded guilty and was convicted and was sentenced by my Ld. Predecessor . Charge for offence under Section 411 IPC was framed against the accused Babu Lal , who pleaded not guilty and claimed trial.
5. PW1 Subhash Vatsain , PW2 SI Sultan Singh, again HC Ishwar Dayal as PW2, ASI Hari Kishan as PW4. ASI Satbir Singh as PW5, SI Ram Kumar as PW6 were examined till 23.11.2000. Rakesh Kumar cited PW was examined as PW7 and he resiled, was cross-examined at length by Ld. APP denying having given any articles to police from his residence denying also that 10 silver coins having been recovered vide memo Ex. PW 7/A.
6. On 07.08.2001 when PW7 had been examined, my Ld. Predecessor vide his order dated 07.08.2001 opined of there being sufficient ground for proceeding against said PW Rakesh Kumar for offence under Section 411 IPC for which he was detained and bailed out. Copies were supplied to accused Rakesh. Charge for offence under section 411 IPC was framed against the accused Rakesh on 04.10.2001 by my Ld. Predecessor, to which he pleaded not guilty and claimed trial. PW 2 HC Ishwar Dayal was cross-examined for accused and Sh. J. P. S. Malik, who conducted TIP of case property was examined as PW8.
7. On examination of accused Rakesh under Section 313 Cr.P.C. he pleaded his innocence and false implication but denied to lead defence evidence.
8. I have heard the submissions of the Ld. APP and the counsel for accused Rakesh and have perused the case file.
9. When cross-examined PW2 HC Ishwar Dayal was unable to tell about the location of the premises 6/2 Ramesh Nagar, as to whether it was located in a corner, second house, fifth house or tenth house from the corner, though he claimed to have remained there for half an hour and alleges to be the recovery witness of alleged seizure of 10 silver coins. PW2 claims there were several persons present when he reached there. He admits he had not asked any public person there to become public witness. He also elaborated he even did not tell those persons of their purpose for coming there. PW2 also could not say whether there were any shops or community centre opposite to property no. 6/2, Ramesh Nagar. All this he deposed despite the fact of his alleged claim of being the recovery witness of the 10 silver medals.
10. The 10 silver medals are alleged to have been recovered from search of closed premises and from the possession of the accused. It is cardinal principle of criminal jurisprudence that the case of prosecution must stand on its own legs. The mandate of legislature embodied in Sub Section (4) of Section 100 CrPC enjoins upon the officials of investigating agency to join two or more inhabitants of locality for conducting search in a closed place. For reason of non availability of any such inhabitants then such independent inhabitants of nearby locality are to be joined in the search conducted in closed place.
11. Testimony of PW2 reveals in its cross-examination of absolutely no efforts having been made in direction of joining of any independent persons of the locality where the alleged premises of the accused were searched. It was despite the fact that there was admitted availability of such public persons at the spot when PW2 with other officers had reached there. Even the recovery witness did not tell those public persons present of their purpose of coming there, which fact in itself speaks in volumes of no pain or effort having been taken by the investigating agency for joining of independent witnesses to lend credence over their search conducted. The above said mandate of legislature embodied in Sub Section (4) of Section 100 CrPC had been kept at bay. The conducted search in premises of accused cannot be said to be a search in accordance with the law and accordingly, cannot be made basis of conviction of the accused.
12. Also it has not been proved on record that the accused had received the 10 silver coins with dishonest intention or with the knowledge or believe of the same to be stolen property. It has been submitted in defence that such coins are easily available having no specific identification mark.
13. Above discussion has led me to solitary conclusion that the alleged recovery from the accused has come under cloud of doubt and cannot be basis made basis of conviction of the accused.
14. In view of the above discussion, I am of the considered opinion that prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accused is, accordingly, held not guilty and acquitted for the offence charged. Bail bond of the accused is cancelled and surety discharged. File be consigned to record room.
(Gurvinder Pal Singh) Addl. Chief Metropolitan Magistrate, Rohini, Delhi.
Pronounced in the open court on this 28th Day of June, 2007.