Delhi District Court
State vs . Mohd. Imran & Others on 13 September, 2012
IN THE COURT OF SH. JITENDRA SINGH: M.M.: (NE-04)KKD:
DELHI
FIR No. 06/2002
PS: Gokal Puri
U/s. 379/411/34 IPC
Dated: 13.09.2012.
Case ID: 02402R0066302002
STATE VS. MOHD. IMRAN & OTHERS
Date of Institution : 22.04.2002
Date of Commission of offence : 03.01.2002 to
08.01.2002
Name of the Complainant : Sh. Ved Parkash S/o Sh.
Dozi Ram
Name parentage and address :
of the accused persons (1) Mohd. Imran S/o Sh.
Akil Ahmad, R/o;
Bagichi Achay Ji wali,
Bada Hindurao, Delhi.
(2) Mohd. Javed S/o Sh.
Daud, R/o; H.No. 1418,
Gali No. 7, Chappar
Wali Mazid, Kabir
Nagar, Babapur, Delhi.
Offence Complained of : U/s. 411/34 of IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted.
Date for reserve for order : 13.09.2012.
Date of announcing of order : 13.09.2012.
JUDGEMENT
FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 1/14 BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 6/2002, PS Gokal Puri. The case of the prosecution as per the complaint of the Complainant is that in between 03.01.2002 to 08.01.2002, accused persons had dishonestly received or retained stolen motorcycle no. DL-7SL-5969, knowing or having reason to believe the same to be stolen property and the same was recovered from the possession of the accused persons and thereby committed offences punishable U/s. 411/34 of IPC. The accused persons pleaded not guilty and claimed trial.
2. On conclusion of the investigation, a charge sheet was filed against accused persons U/s. 379/411/34 IPC. Thereafter,a charge Under Section 411/34 of IPC was framed against accused persons on 03.03.2003, to which they pleaded not guilty and claimed trial.
3. The prosecution has examined five witnesses in all in the present case. The deposition of witnesses is touched upon in brief as under to have a better appreciation of the case, which are follows:
PW-1, ASI Braham Singh, who registered the FIR bearing no. 6/2000, which is Ex. PW1/A. The said witness was not cross examined by the Ld. Counsel for the defence.
PW-2, Ved Parkash, who deposed that he was the registered owner motorcycle no. DL-7SL-5969 and he got released his FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 2/14 motorcycle on superdari. (chief is not complete) PW-3, Ct. Hans Raj, who stated on oath that on 04.01.2003, he was posted at PS Gokalpuri and on that day, on receipt of DD No. 78-B received to ASI Parkash Chand, he accompanied him to Brijpuri where Ved Parkash met them. He deposed that IO recorded his statement regarding theft of motorcycle no. DL-7SL-5969, Hero Honda Splendor. He further deposed that IO prepared rukka which he took the same to PS and got the FIR registered. He further deposed that he came back at the spot and handed over the copy of FIR and original tehrir to IO. He further deposed that on 09.01.2002 accused persons namely Javed and Imran were arrested and their disclosure statement were recorded vide Ex. PW2/A and PW2/B and their personal search memo are Ex. PW2/C and PW2/D. The said witness was cross examined by the Ld. Counsel for the defence.
PW-4, Ct. Naresh Kumar, who stated on oath that on 03.01.2002, he was posted at PS Gokalpuri and on that day, he recorded the DD entry given by the wireless operator regarding the theft of motorcycle Hero Honda Splender no. DL-7SL-5969.
He deposed that on 08.01.2002, he had also recorded the DD No. 92-B regarding the arrest of Imran and Javed.
PW-5, Ct. Lokesjh, who stated on oath that on 08.01.2002, he was posted as Special Staff, Central District and on that day, he alongwith SI Balbir Singh, HC Naresh, Ct. Devi Dayal were present at Ajmeri Gate and were checking the persons while putting barricades there. He deposed that at about 3.10 PM, two persons came on motorcycle no. DL-7SL-7569 and they were got stopped since they both were not having helmets. He further FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 3/14 deposed that namely Javed was got down from the motorcycle and started running and he was chased by him and Ct. Devi Dayal and overpowered and another accused namely Imran was overpowered by SI Balbir and HC Naresh. He further deposed that IO asked documents pertaining to the motorcycle, but they could not produce any documents. Thereafter, they were interrogation and disclosed that they had stolen the motorcycle from Brij Puri area of PS Gokalpuri. He further deposed that SI Balbir confirmed this fact through telephone and came to know that a motorcycle had been stolen from Brij Puri area. He further deposed that the motorcycle had taken into possession by the IO vide seizure memo. He further deposed that IO prepared rukka and he took it to PS Kamla Market and case was got registered and investigation was marked to HC Shiv Kumar. He further deposed that he alongwith HC Shiv kUmar reached at the spot and accused persons, seizure memo and motorcycle was handed over to HC Shiv Kumar by SI Balbir Singh. He further deposed that HC Shiv Kumar prepared site plan at the instance of SI Balbir Singh. He further deposed that accused persons were arrested by HC Shiv Kumar and they were interrogated by him and during the course of interrogation they made disclosure statement. (chief is not complete)
4. Thereafter, PE was closed. Statement U/s. 313 Cr.PC of the accused persons were recorded, wherein they stated that they do not want to lead their defence evidence. Accordingly, DE stands closed. Final arguments have been heard from both the sides and record has been meticulously perused.
FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 4/14
5. I have weighed the rival submissions made on behalf of the State as well as on behalf of the defence in the light of the testimonies & material appearing on record.
6. Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused persons. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused persons.
7. It is no longer Res Integra that accused persons are entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused persons to acquittal.
8. To prove the offences U/s. 411/34 of IPC, the prosecution is required to prove the following:-
(i) that the property in question is stolen property.
(ii) that the accused received or retained such property.
(iii) that he did so dishonestly.
(iv) that he knew or had reason to believe that the property was stolen property.
FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 5/14
9. I have heard the contention of Ld. APP for State as well as Ld. Defence counsel and given my thoughtful consideration. To prove the present offence, the Prosecution has examined five witnesses in all. To Prove the ingredients of offences, the Prosecution was required to prove that the stolen property has been recovered from the possession of the accused persons. In the aforesaid factual & legal background, I shall now step forward to adjudicate as to whether the prosecution has succeeded in proving its case against the accused persons or not.
10. The case of the prosecution, as seems to me in the nutshell, is that the vehicle in question was stolen from the area falling within the jurisdiction of P.S. Gokalpuri, in lieu of which the present FIR was lodged, where after on 08.01.2002, the said stolen vehicle was recovered by Special Staff from the area of PS Kamla Market, New Delhi from the possession of the accused persons, who at that point of time were driving the said stolen vehicle and were also unable to produce any documentary proof so as to justify their possession over the said stolen vehicle. After the recovery of the stolen vehicle in question in the aforesaid manner, FIR No. 06/2002, P.S. Kamla Market, under Section 411/34 IPC was lodged against the accused persons. On the strength of the aforesaid recovery of the stolen vehicle wanted in P.S. Gokalpuri by the aforesaid officials and prosecution is alleging the commission of the offence under Section 411/34 IPC by the accused persons.
FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 6/14
11. The prosecution had examined the complainant PW-2, Ved Parkash, who stated on oath that at about 9.30 PM vehicle was parked in front of the house . He deposed that at about 11.00 PM he came to know that his motorcycle has been stolen from the said place and thereafter he tried to locate the same at his own level but could not filed out the same. He further deposed that he lodged his report with the police and same is Ex. PW2/A . He further deposed that around 12 days after the theft, he was given message by the police that his motorcycle has been recovered. He further deposed that he had obtained the vehicle on superdari from the court vide superdarinama. It is pertinent to mention here that the examination in chief of the complainant was not completed. It is settled law that incomplete deposition cannot be read against the accused persons.
12. PW-2 was the Ct. Hans Raj, who stated on oath that on 04.01.2003, he was posted at PS Gokalpuri and on that day, on receipt of DD No. 78-B received to ASI Parkash Chand and he accompanied him to Brijpuri wehre Ved Parkash met them. He deposed that IO recorded his statement regarding theft of motorcycle no. DL-7SL-5969, Hero Honda Splender. He further deposed that IO prepared rukk which he took the same to PS and got the FIR registered. He further deposed that after registration of the case, he came back at the spot and handed over the copy of FIR and original tehrir to IO. He further deposed that on 09.01.2002, accused persons namely Javed and Imran were arrested and their disclosure statement were recorded vide Ex. PW2/A and PW2/B and their personal search memo are Ex. PW2/C and PW2/D. FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 7/14
13. From the aforesaid testimonies, I am of the view that the prosecution has failed in proving the connection between the recovery of the stolen vehicle wanted in the present FIR and the complicity of the accused persons therein.
14. It is clear from the testimonies of PW-3 Ct. Hans Raj on 04.01.2003, on receipt of DD No. 78-B received to ASI Parkash Chand, he accompanied him to Brijpuri where Ved Parkash met them. He deposed that IO recorded his statement regarding theft of motorcycle no. DL-7SL-5969 Hero Honda Splender and thereafter, he took the same to PS and got the FIR registered. After registration of the case, he came back at spot and handed over the copy of FIR and original therir to IO. Be that as it may, now if the said police officials were not present within the P.S. at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival in the D.D. Register.
Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 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 personality by signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 8/14
15. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of the said PW-3. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of PW-3. It is also worth mentioning that as per the case of the prosecution that police officials who apprehended the accused persons were posted at Special Staff at the time of incident. However, no DD entry in support of this fact has been placed on record which police officials had left the Special Staff office before the recovery and by which they had arrived at PS after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused persons and the recovery of the stolen vehicle, since the said police officials were under bounden duty to enter their departure & arrival entries in that respect as per the aforesaid mentioned P.P. Rule. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed 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 & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 9/14 and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
16. Furthermore, though it appears from the testimony of PW-3 & PW-5 that the recovery in question was effected from a crowded place, and public presence throughout but despite that PW-3 & PW-5 made no efforts whatsoever to join public witnesses to the recovery proceedings allegedly conducted by them, but nobody join it and left the spot without disclosing their names and address. From the aforementioned circumstances, it is clear that the place of alleged recovery was a public place and despite that PW-5 did not made any sincere effort whatsoever to join the public witnesses to the recovery proceedings headed by them, which if would have done might have added strength to the tainted recovery proceedings.
17. In circumstances like the present one, the PW-5 should have made an effort to join public witnesses during the recovery proceedings and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of the recovery or after the recovery, when the accused persons were already apprehended, since after the apprehension of the accused, there was no possibility of accused persons escaping their arrest or their crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the recovery by serving them a notice in FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 10/14 writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 11/14 Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
18. In case law reported as "Sadhu Singh Vs. State of Punjab"
1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
"6. In the present case, the State examined two witnesses namely, Nirmal Kumar Jha SI who appeared as PW8 and HC Sukhpal Singh, PW-9. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 12/14 prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo- type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
19. Then, there is one more circumstance need to be discussed which adversely reflects case of the prosecution. PW-5 Ct. Lokesh has deposed that after the recovery of the stolen vehicle. On interrogation both accused persons revealed that they had stolen the said vehicle from Brij Puri, Gokalpuri.
20. Be that as it may, without going into as to what the prosecution could have done, I deem it fit to observe that the aforementioned omission on behalf of the prosecution to prove & place on record the relevant call records and explain the contradictions appearing from the testimonies of PW-3 and PW-5 regarding the time & date when the information of the recovery of the stolen vehicle has worked negatively for the prosecution whereby the recovery alleged against the accused persons has become more doubtful. The prosecution has also failed to produce the alleged stolen vehicle before the court as well as case file FIR no. 06/2002, U/s. 411/34 of IPC, PS Kamla Market. Moreover, the testimony of the PW-2 and PW-5 cannot be read against the accused persons as their deposition remained incomplete.
21. The aforementioned contradictions, omissions and lacunas clearly shows that the prosecution has been unable to prove the recovery alleged against the accused persons beyond FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 13/14 reasonable doubt, whereby the accused persons have become entitled to the benefit of doubt. Accordingly, I accord the benefit of doubt to the accused persons, whereby the accused persons are acquitted of the charges levelled against them.
Announced in the open court today itself i.e. 13.09.2012.
(JITENDRA SINGH) METROPLITAN MAZISTRATE KARKARDOOMA COURTS, DELHI,13.09.2012 FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 14/14 FIR No. 06/2002, PS Gokal Puri, State Vs. Mohd. Imran 15/14