Delhi District Court
State vs . Mohd Sazid Etc. on 29 September, 2010
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE(CENTRAL-04):DELHI
FIR no. 274/1999
ID No. R0665992003
U/s. 454/380/411 IPC
PS Hauz Qazi
State vs. Mohd Sazid etc.
JUDGMENT
1. Sr. No of case 194/2
2. Date of commission of offence 26.12.1999
3. Name of complainant Sh. Ramesh Garg
4. Name of accused (i) Md. Sajid
s/o. Sh. Md Yasin
r/o. 4464 Gali Shahatara
Ajmere Gate Delhi
(ii) Md Salim
s/o. Sh. Md Sualeen
r/o. 2238 Ahata Hajjanbi
Rodgran Delhi.
5. Offence complained of u/s. 454/380/411/34 IPC
6. Plea of accused Pleaded not guilty
7. Final order Acquitted
8. Date of such order 29.9.2010
BRIEF REASONS FOR SUCH DECISION:-
1. Both the accused persons have been sent for trial on the allegations that on 26.12.1999 at about 1.30 PM at shop no. 1513/9 Gali Akhunjiwali, Farashkhana, Delhi within the jurisdiction of police station Hauz Qazi they in furtherance of their common intention alongwith one other associate (not arrested) committed house trespass in the aforesaid shop of complainant- Sh. Ramesh Garg and committed theft of 22 ball bearings and accused Sajid was caught at the spot while trying to flee from the spot.
2. After completion of investigation, chargesheet was filed.
Accused persons were summoned and provision of section 207 cr.p.c. were complied with.
3. The particulars of offence were explained to accused persons in Hindi language and a charge for offence punishable u/s. 454/380/34 IPC was framed against accused persons to which they pleaded not guilty and claimed trail and accordingly the case was fixed for prosecution evidence.
4. During the course of trial prosecution examined following five witnesses in support of its case.
5. PW1 is HC Ashok Kumar i.e. the duty officer; PW2 is Sh.
Ramesh Garg i.e. the complainant; PW3 is SH. Pradeep Gupta i.e. eye witness; PW4 is Sh. Inamul Ansari i.e. eye witness and PW5 is SI Vidyadhar Singh i.e. investigating officer.
6. Thereafter, prosecution evidence was closed on 18.9.2010 and statement of accused persons was also recorded wherein they denied the evidence that has come on record against them. They preferred not to lead evidence in their defence.
7. I have heard Ld APP for state as well as Ld counsel for accused persons and have also gone through the record carefully.
8. PW1 HC Ashok Kumar is the duty officer and he deposed regarding recording of FIR in present case and proved the carbon copy of same which is Ex. PW1/A.
9. PW2 Sh. Ramesh Garg testified that he is running a shop of ball bearings at 72 GB Road and have the godown at 1513/9 Gali Akhunji. He further stated that in the year 1999 he had closed his godown in the evening and on the next morning at about 10.00 AM when he went to his godown he found the door of godown open and one handcart was parked in front of godown in which two persons were loading the goods from his godown. He further stated that when he raised alarm all three persons started running leaving the goods at the spot. He further stated that he apprehended one person with help of one Pradeep. He further stated that police was called and the person apprehended was handed over to them alongwith the stolen goods i.e. about 15-20 ball bearings. He further stated that both the locks alongwith the center locks were broken. He further stated that police recorded his statement which is Ex. PW2/A and the person who was apprehended told his name as Md. Sajid and the stolen goods were seized by the police vide seizure memo which is Ex. PW2/B and the accused was arrested vide memo which is Ex. PW2/C and accused also made disclosure statement which is Ex. PW2/D. He identified the case property i.e. 22 ball bearings, one lock and three keys. He failed to identify the accused as well as one lock. This witness was cross examined by Ld APP for state.
10. In his cross examination by Ld APP for state, PW2 admitted that the accused namely Md Sajid present in the court is the same person who was apprehended and handed over to the police. He also admitted that the accused who was overpowered at the spot by them was handed over to the police who told his name as Md Sajid. He denied the suggestion that the other accused namely Md Salim is the person who fled from the spot. He denied the suggestion that he is deliberately not identifying the accused.
11. In his cross examination, PW2 admitted that he had stated in his examination in chief that he cannot properly identify the accused persons. He also admitted that due to lapse of time he is not able to identify the accused persons. He further stated that he had identified accused Md Sajid as the counsel had pointed towards one of the accused otherwise he do not know. He further stated that he cannot identify the third person who is absconding. He further stated that he cannot say whether the ball bearings were in the hand of accused Md Sajid. He further stated that he cannot recollect whether accused persons had run away with the goods in the thaila. He further stated that the total weight of the ball bearings is about 35-40 Kgs. He further stated that he do not know whether other shops were open or not. He further stated that Pradeep was known to him personally and his shop was open at that time. He further stated that he had shouted from distance when he saw the incident. He further stated that he do not remember whether he had inquired from the accused persons. He further stated that the police had not seized the thaila. He further stated that he do not remember whether the goods were lying on the thaila or not when the police arrived at the spot. He denied the suggestion that he is deposing falsely.
12. PW3 Sh. Pradeep Gupta testified that about 6-7 years ago at about 10.30 AM when he was near his shop he had heard some noise and a thief was caught. He further stated complainant was also present. He further stated that ball bearings belonging to complainant were loaded in the thaila by three thieves out of which one was apprehended. He identified the case property. This witness was also cross examined by Ld APP for state.
13. In his cross examination by Ld APP for state, PW3 stated that he cannot admit or deny whether the accused present in the court namely Md Sajid was apprehended and handed over to police by him. He denied the suggestion that he is deliberately not identifying the accused persons.
14. PW4 Sh. Inamul Ansari also testified that about 6-7 years ago he heard some noise and a thief was apprehended at the shop of complainant who was present there. He further stated one thaila was loaded with ball bearings belonging to the complainant and one amongst three thieves was apprehended. He further stated that he don't remember the name of the person who was apprehended. This witness was also cross examined by Ld APP for state, however, despite being cross examined this witness also failed to identify accused persons.
15. PW5 SI Vidyadhar Singh testified that on 26.12.1999 he was posted at police station Hauz Qazi and on receipt of a call vide DD No 21B regarding theft, he alongwith Ct. Ramesh went to the spot where the complainant Ramesh Garg met them who handed over one accused to him stating that two other accomplice of accused had managed to flee and he recorded statement of complainant which is Ex. PW2/A and after making the endorsement which is Ex. PW5/A, he got the FIR registered through Ct. Ramesh. He further stated that he prepared site plan which is Ex. PW5/B at the instance of complainant. He further stated that he seized vide seizure memo(Ex. PW2/B) the stolen ball bearing alongwith two broken locks and three keys of the shop. He further stated that accused Sajid was arrested and his disclosure statement was recorded during which he had disclosed the name of his associates namely Salim and Nafees and thereafter, he deposited the case property in the malkhana. He further stated that he obtained one day police custody of accused and accused was interrogated again on 27.12.1999 during which disclosure statement Ex. PW5/C was recorded and accused pointed out the house of accused Salim which is Ex. PW5/D.
16. In his cross examination, PW5 admitted that the locks produced in the court are not broken and can be operated with keys except one lock which is partially operational. He also admitted that the locks and keys and the ball bearings were handed over to him by the complainant. He further stated that the said ball bearings were kept in the cart and he had not seized the said cart and had also not inquired about its owner. He further stated that TIP of accused Sajid was not conducted as he was arrested from the spot. He further stated that he had also not got test identification parade of accused Salim. He further stated that as per his investigation the absconders had not taken away any ball bearings with them while fleeing. He further stated that he not had recorded the statement of any other public person except Pradeep Gupta and Imanulla Ansari. He further stated that he cannot tell as how many shops were open at that time. He admitted that the spot is densely populated and remains crowded. He further stated that accused Sajid had disclosed that they had opened the shop with duplicate keys. He denied the suggestion that accused Sajid was falsely implicated at instance of complainant. He further stated that he had not inquired whether accused Sajid was an employee of complainant or not.
17. Accused persons in their statement recorded u/s. 281/313 cr.p.c denied the evidence that had come on record against them. They stated that they have been falsely implicated. However, they choose not to lead evidence in their defence.
18. IN the present case testimony of PW1 is of formal nature and he had merely proved the FIR of the present case. The testimony of PW5 is also not of great significance as PW5 had merely proved the investigation of the present case. In the present case testimony of PW2, PW3 and PW4 is most important as all three of them had witnessed the alleged commission of offence by the accused persons. Perusal of testimony of PW3 and PW4 clearly shows that they had narrated the whole prosecution story in court but both of them failed to identify the accused persons as the persons who had committed the offence in question. PW3 and PW4 were cross examined by Ld APP for state on the point of the identity of the accused persons but both of them stated that they are unable to identify the accused persons as the matter is old one. Thus the testimony of PW3 and PW4 is hardly inculpatory qua the accused persons.
19. PW2 i.e. the complainant was also cross examined by Ld APP for state on the point of identity of accused Md Sajid. In his cross examination by Ld APP for state PW2 stated that the accused present in the court namely Md Sajid is the same person who was apprehended and handed to the police. PW2 also stated that accused Md Salim is not the same person who ran away from the spot. PW2 also denied the suggestion that he is willfully not identifying the accused. IN his cross examination by Ld defence counsel, PW2 admitted that he had stated in his examination in chief that he cannot identify the accused persons properly who were handed over to the police. PW2 also admitted that due to lapse of time he is not able to identify the accused present in the court. PW2 in his cross examination also stated that he had identified accused Md Sajid as the counsel had pointed towards one of the accused otherwise he do not know. A careful analysis of the testimony of PW2 clearly shows that this witness is not sure about the identity of the accused persons and he had deposed one thing in his examination in chief and had deposed in contradictory terms in his cross examination. The testimony of this witness does not inspire confidence as this witness had kept on changing his version with respect to identity of the accused persons.
20. Thus, in view of the discussion made hereinabove I am of the considered view that the prosecution has miserably failed to prove its case accused persons beyond reasonable doubt. Hence, both accused persons are hereby acquitted in present case.
ANNOUNCED IN OPEN COURT TODAY DEEPAK DABAS on 29th of September, 2010 MM-Central-04-DELHI.