Delhi District Court
State vs . Dharmender & Ors. on 20 February, 2015
FIR NO. 1016/06 PS. OIA U/s. 407/379/411/34 IPC. State Vs. Dharmender & Ors. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, SAKET COURTS, DELHI. FIR NO. 1016/06 PS. OIA U/s. 407/379/411/34 IPC. State Vs. Dharmender & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 154/2/07
B. DATE OF INSTITUTION : 24.01.2007
C. DATE OF OFFENCE : 31.10.2006 & 01.11.2006
D. NAME OF THE : Sh. Manan Goenka
COMPLAINANT S/o Dr. K.K.Goenka
E. NAME OF THE
ACCUSED : (1)Riyazuddin S/o Sh. Jahir
Ahmed (convicted vide order dated
22.10.2008)
(2) Dharmender
S/o Sh. Ram Chander (convicted
vide order dated 03.03.2014)
(3) Ranjeet Kumar S/o Sh. Mohit
Dass (is absconder vide order
dated 24.07.2013).
(4) Yusuf
S/o Sh. Ali Hassan
F. OFFENCE
COMPLAINED OF : U/s 407/379/411/34 IPC.
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Accused Yusuf is acquitted.
I. DATE OF SUCH ORDER : 20.02.2015
1/6
FIR NO. 1016/06
PS. OIA
U/s. 407/379/411/34 IPC.
State Vs. Dharmender & Ors.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as unfolded from chargesheet are that on 25.11.2006, Sh. Manan Goenka gave a written complaint, wherein he had asserted that he is running his own business of import by the name and style of Industrial Importers at Goenka House "44 DDA commercial complex, Jamradpur, New Delhi". He had further asserted that they are the importers of Copper Scrap Dream Grade194 and import their goods regularly at ICD, Delhi. He had alleged that on 31.10.2006 and 01.11.2006, they received two containers at their warehouse at ICD, Delhi and found one bag each missing from them of total weight of 2842 kgs of the said scrap. He had alleged that their said material was unique and was nowhere produced in India. They investigated themselves and on 16.11.2006, complainant came to know that one Mr. Samsuddin (a dealer of copper scrap) had been approached by one Mr. Zaheer for disposal of the said material. He had alleged that said Sh. Zaheer gave samples of the said material to said Sh. Samsuddin. On the basis of the said complaint, the present FIR under Section 407 IPC was lodged.
2. During investigation, on 28.11.2006, the drivers of the both the containers namely Ranjeet Kumar and Dharmender Kumar were arrested. On the basis of their disclosure statements, another accused namely Riyazuddin was arrested. Accused Riyazuddin disclosed that he purchased three tons of stolen copper scrap from Yusuf and he also got recovered stolen copper scrap that was kept/packed in 21 bags/sacks from his godown at Panchsheel Vihar, near Malviya Nagar, Delhi. The recovered case property was released on superdari to the complainant. On conclusion of investigation, chargesheet under section 407/379/411/34 IPC against all the said three accused persons was filed in the court.
3. Subsequently, on 21.02.2007, accused Yusuf was arrested and supplementary chargesheet qua the said accused was filed in the court. The 2/6 FIR NO. 1016/06 PS. OIA U/s. 407/379/411/34 IPC.
said supplementary chargesheet is annexed with the main chargesheet. It is pertinent to mention here that accused Yusuf was arrested on the basis of the disclosure statement of the coaccused Riyazuddin and nothing was recovered from his possession.
4. In compliance of Section 207 Cr. P. C., the copy of the challan and the documents annexed therewith were supplied to all the four accused persons. Prima facie charge U/s 414 IPC against the accused Yusuf, 407/408/34 IPC407/120B IPC against the accused persons namely Ranjeet and Dharmender and charge under section 411 IPC against the accused Riyzauddin were made. Accordingly, on 26.05.2007, respective charges were framed against them. All the four accused persons pleaded not guilty and claimed trial to their respective charges. Thereafter, the case proceeded for prosecution evidence.
5. During prosecution evidence, accused persons namely Dharmender and Riyazuddin pleaded guilty and accordingly, they were convicted and sentenced. The third accused Ranjeet Kumar stopped appearing in the court and after adopting due process of law, he was declared an absconder vide order dated 24.07.2013.
6. In order to substantiate its case, the prosecution examined four witnesses.
7. Sh. Manan Goenka (PW1) is the complainant and he has proved his complaint as Ex. PW1/A. He has reiterated his complaint on oath. In addition to his complaint, he has testified that the police officials arrested the son of Sh. Sahbuddin, who got recovered stolen property i.e coper scrap from Savitri Nagar near Panchhi Park opposite a mosque. The same was recovered in his presence and it was seized vide seizure memo Ex. PW1/B. The slips were prepared at the time of the recovery of the stolen article and they were also seized vide seizure Ex. PW1/C. Thereafter, he got the said goods released on superdari. He has further testified that he had imported the said goods from Malaysia and all the documents pertaining to purchase 3/6 FIR NO. 1016/06 PS. OIA U/s. 407/379/411/34 IPC.
and import of the said goods were handed over to the IO. During investigation, the IO obtained the CDRs of the mobile of son of Sahbuddin and found that there were multiple calls between him, Yousuf and the clerk of the transporter. He has failed to identify the accused Yusuf and he has deposed that he was not arrested in his presence. He conceded that nothing was recovered from the accused Yusuf in his presence.
8. Sh. Vineet Jain (PW2) has testified that he is a partner of the company i.e. Industrial Importer and in the year 2006, he alongwith Sh. Manan Goenka visited PSOIA for release of the goods/case property.
9. Sh. Harvinder Singh (PW3) has testified that in the year 2006, he was the owner of two truck bearing registration no. 6899 and 3413. On the date of incident, the said two trucks were loaded at ICD tuglakabad with the copper scraps of Mr. Manan. The said copper was to be delivered at Samaypur Badli and the accused Dharmender and Ranjit were the drivers of the said trucks. He received a call from the complainant Sh. Manan that he received less copper scraps. He has further testified that thereafter, he inquired the said fact from the said drivers and thereafter, he alongwith the said drivers went to the police station and he produced them before the IO. The said drivers narrated the incident to the police.
10. Sh. Shamsuddin (PW4) has testified that in the year 2006, he was a scrap dealer at Sadar Bazar and Maya Puri and one day he went to the shop of accused Riyazuddin at Maya Puri and the said accused showed him a piece of scrap copper and also told that he had approximately 2800 kg similar copper scrap. Thereafter, he conveyed the said fact to the complainant Sh. Manan Goenka. Thereafter, PE was closed.
11. Statement of the accused Yusuf U/s 313/281 Cr.P.C. was separately recorded. All the incriminating evidence against him were put to him for seeking his explanations. In the said statement, he has stated that he is innocent and he has been falsely implicated in the present case. He chose not to lead evidence in defence. Therefore, the case was listed for final 4/6 FIR NO. 1016/06 PS. OIA U/s. 407/379/411/34 IPC.
arguments.
12. I have heard Ld. APP for the State and Ld. Counsel for the accused Yusuf. I have carefully perused the case file.
13. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
14. In the instant case, the accused Yusuf is charged for the offence of assisting in concealment of stolen property (under section 414 IPC).
15. The prosecution has alleged that accused persons namely Dharmender and Ranjit Kumar, being drivers of transporter misappropriated 2842 kgs of copper scrap. On 28.11.2006, accused Riyazuddin was arrested and the said stolen/misappropriate goods were recovered from his possession. Accused Riyazuddin disclosed that he purchased it through accused Yusuf. Subsequently, on 21.02.2007, accused Yusuf was arrested, however, nothing was recovered from his possession. Therefore, the only incriminating evidence against the accused Yusuf is the disclosure statement of the coaccused Riyazuddin. However, the said statement is inadmissible in evidence as it was made before the police while in police custody and further, nothing was discovered pursuant to the said disclosure. Accordingly, the said disclosure statement of the coaccused Riyazuddin is hit by section 25/26 Evidence Act, 1872.
16. None of the prosecution witnesses from PW1 to PW4 has deposed anything incriminating against the accused Yusuf. The said witnesses have given incriminating evidence only against the remaining three accused persons other than the accused Yusuf. Thus, the prosecution case suffers from material and fatal infirmities and therefore, the accused Yusuf is entitled to benefit of doubt.
17. In view of the above discussion, the prosecution has miserably 5/6 FIR NO. 1016/06 PS. OIA U/s. 407/379/411/34 IPC.
failed to lead convincing and clinching evidence against the accused Yusuf to bring him within the four corners of the offence punishable U/s 414 IPC. Accordingly, he is acquitted for the abovesaid offence. He is directed to furnish fresh personal bond in a sum of Rs. 10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. The same are furnished and accepted for the next six months.
File be consigned to Record Room with the directions to record keeper to revive the same as and when the accused Ranjeet Kumar is arrested and produced before the court for facing trial.
Announced in the open court today i.e. on 20.02.2015 (DHEERAJ MOR) METROPOLITAN MAGISTRATE SAKET/DELHI 6/6 FIR NO. 1016/06 PS. OIA U/s. 407/379/411/34 IPC.
FIR NO. 1016/06PS. OIA U/s. 407/379/411/34 IPC.
20.02.2015 Present Sh. Narender Yadav, Ld. APP for the State.
Accused Yusuf on bail with his counsel.
Accused Ranjeet Kumar is absconder vide order dated 24.07.2013.
The remaining accused persons namely Dharmender and Riyazuddin have already been convicted and sentenced.
PW3 Sh. Harvinder Singh and PW4 Sh.Samsuddin are examined and discharged. No other PW is present. It was the last opportunity for the prosecution to conclude entire PE. Thus, PE stands closed.
Statement of the accused Yusuf U/s 313/281 Cr.P.C. is separately recorded. He has submitted that he does not want to lead evidence in defence. Hence, DE stands closed.
Final arguments are heard. Case file is perused. Vide my separate judgment announced in the open court today, the accused Yusuf is acquitted for the offences punishable U/s 414 IPC. He is directed to furnish fresh personal bond in a sum of Rs. 10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. The same are furnished and accepted for the next six months.
File be consigned to Record Room with the directions to record keeper to revive the same as and when the accused Ranjeet Kumar is arrested and produced before the court for facing trial.
(Dheeraj Mor) MM02/SE/SC/ND/20.02.2015 7/6