Delhi District Court
State vs . Rakesh Kumar on 19 September, 2015
Page No. 1 of - 9 -
IN THE COURT OF SH. ANKIT SINGLA :
M.M.03 (SOUTH DISTRICT), SAKET NEW DELHI.
STATE Vs. Rakesh Kumar
FIR No : 770/2002
P.S. : Hauz Khas
U.S. : 379/411/471 IPC
J U D G M E N T
a. Sl. No. of the case and : 28/2 dt. 21.1.2004
date of its institution
b. Name of the complainant : HC Abhay Singh
c. Date of commission of
offence : 17.12.2002
d. Name of the accused : Rakesh Kumar S/o Shyam Sunder
R/o:C1299,Sangam Vihar, Delhi.
e. Offence complained of : U/s 379/411/471 IPC
f. Plea of accused : Pleaded not guilty
g. Date reserved for orders : 09.09.2015
h. Final order : Acquittal
i Date of such order : 19.09.2015
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. The brief facts of the case are that on 17/12/2002 one Kumar Kant Jha made a complaint to SHO PS Hauz Khas regarding theft of his motorcycle bearing no. DL 4SAG 1904 from IIT main gate.
FIR No. 770/02 State Vs. Rakesh Kumar Page No. 2 of - 9 - Thereafter, SI Rama Nand reached on the spot and registered present FIR through Ct. Rajinder. On 30/01/2003 IO received information from PS Sangam Vihar that the stolen property is recovered. It is the case of prosecution that stolen motorcycle was recovered from possession of accused Rakesh Kumar on 30/01/2003 by police officials of PS Sangam Vihar while accused Rakesh Kumar was going on motorcycle at Holi Chowk, Sangam Vihar. After receiving the information of recovery of motorcycle IO SI Rama Nand seized the motorcycle from PS Sangam Vihar along with fake number plate displaying the registration no. DL 3SU 2908. Thereafter, IO formally arrested the accused Rakesh Kumar and filed the challan. After filing of challan copy of charge sheet were supplied to the accused Rakesh Kumar.
2. Thereafter, on 18/08/2005 charges u/s 411 IPC and 471 IPC were framed against the accused, who pleaded not guilty and claimed trial.
3. Prosecution to prove its case examined 10 witnesses. In brief the evidence of prosecution witnesses is as follow\s:
4. PW1 is complainant Kumar Kant Jha, this witness proved his complaint which is Ex. PW1/A. This witness identified the case FIR No. 770/02 State Vs. Rakesh Kumar Page No. 3 of - 9 - property. This witness proved the contents of his complaint.
5. PW2 is HC Madan Lal, who was working as duty officer at PS Hauz Khas. This witness proved the FIR which is Ex. PW2/A and endorsement on rukka is Ex. PW2/B.
6. PW3 is Ct. Padam Singh, this witness accompanied the IO on 17/12/2002 i.e on date on which motorcycle was stolen.
7. PW4 is HC Dal Chand, this witness recovered the motorcycle along with fake number plate on it. This witness deposed that he along with SI Sanjeev Dodi and Ct. Mahipal were on patrolling duty in the area of PS Sangam Vihar. This witness also stated that at about 05.30 PM one secret informer informed that one person will come on motorcycle bearing no. DL 3SU 2908 from Tinnu Public School and will go towards Vir Bazar carrying illegal arms. 45 public persons were requested to join the raiding team but no one agreed.
Thereafter, one person came on motorcycle, who was stopped, who disclosed his name as Rakesh Kumar and one knife was recovered from his possession. The motorcycle was found stolen from Rose Garden, Hauz Khas. The same was seized vide seizure memo Ex.
PW4/A. FIR No. 770/02 State Vs. Rakesh Kumar Page No. 4 of - 9 -
8. PW5 Ct. Mahipal and PW8 SI Sanjeev Dodi deposed on line of PW4.
9. PW6 was Ct. Rajinder Singh, this witness accompanied the IO on date of theft of motorcycle. IO got FIR registered through this witness.
10. PW7 is IO/SI Rama Nand, this witness proved the proceedings done by him during investigation. This witness proved the site plan, which is Ex. PW7/A. The DD No. 17A, which is Ex. PW7/B, seizure memo which is Ex. PW7/C. The pair of fake number plates are Ex. P1 and P2.
11. HC Abhay Singh was also examined as PW7 although, he should have been examined as PW8. This witness was IO of the case registered at PS Sangam Vihar. This witness deposed that he received information regarding recovery of illegal arms and stolen motorcycle.
He also deposed that proceedings regarding illegal arms was conducted by SI Sanjeev Dodi and regarding stolen motorcycle by him. This witness seized the motorcycle vide memo Ex. PW4/A and prepared the site plan which is Mark X.
12. Ms Dhaneshwari, Record Room Clerk was examined as PW8, FIR No. 770/02 State Vs. Rakesh Kumar Page No. 5 of - 9 - although she should have been examined as PW9.
13. After prosecution evidence statement of accused u/s 313 CrPC was recorded and accused denied the story of prosecution.
14. Accused examined one witness in his favour who was examined as DW1 namely Shyam Sunder, who is father of accused. This witness deposed that accused was picked from his house.
15. In order to prove the charges u/s 411 IPC prosecution was required to prove following: a. That the case property was stolen property.
b. Same was recovered from the possession of accused. c. accused was in the possession of the same with knowledge or reason to believe that the same was stolen property.
16. PW1 proved that he made a complaint to police that his motorcycle was stolen. This witness also identified the case property. Duty officer also proved that FIR was registered regarding theft of motorcycle bearing no. DL 4SAG 1904. In view of testimony of this witness, it stands proved beyond reasonable doubt that the case property was a stolen property as PW1 was not cross examined and his testimony remained unrebutted.
17. In order to prove that case property was recovered from the possession of accused, prosecution examined four witnesses. PW4 Dal Chand, Ct. Mahipal and SI Sanjeev Dodi are recovery witnesses and ASI FIR No. 770/02 State Vs. Rakesh Kumar Page No. 6 of - 9 - Abhay Singh was the IO at PS Sangam Vihar, who was informed regarding the recovery and who conducted proceeding regarding stolen motorcycle.
18. Ld. counsel for accused persons argued that there are material contradiction in the testimony of these recovery witnesses and ASI Abhay Singh which make the story of recovery of stolen property from accused completely doubtful. He argued that no public witness was joined despite presence of public witnesses. He also argued that no DD entry showing recovery witnesses on patrolling duty is produced. He also argued that PW4 deposed that IO had asked shop owners to join the investigation but IO has not stated that he requested shop owners to become witness in the present case and ASI Abhay Singh deposed that there was no shop or STD booth near the spot. He submits that it is also deposed that accused was wearing helmet by SI Sanjeev but PW4 HC Dal Chand deposed that accused was not wearing helmet at that time. Ld. Counsel for accused further argued that there is a contradiction regarding the position taken by three recovery witnesses. He argued that HC Dal Chand and Ct. Mahipal deposed that they all were standing at the different places, whereas SI Sanjeev Dodi deposed that they all were standing at the same place. Ld. Counsel for the accused further argued that IO Sanjeev Dodi deposed that secret informer had not informed him the registration number of the motorcycle but PW4 and PW5 deposed that secret informer had informed the IO even the registration number of motorcycle.
19. The whole story of prosecution is based upon the recovery of stolen property from the possession of accused. As per prosecution story FIR No. 770/02 State Vs. Rakesh Kumar Page No. 7 of - 9 - the case property was recovered from the possession of accused at 05.30 PM from a place which was a very crowded area but despite that no independent witness was joined. No notice was given to the witnesses, who refused to join the investigation. Further, there are contradiction regarding the presence of shops in the testimony of recovery witnesses and ASI Abhay Singh, which remained unexplained. Further, SI Sanjeev Dodi remained silent regarding requesting shopkeepers to join the investigation. It may be considered that passerby usually do not join the investigation but if, there were shops at the place where recovery was effected, it was duty of recovery witnesses to join the shopkeepers to corroborate the factum of recovery. No efforts were made by recovery witnesses for reason best known to them, which create doubt regarding the story of prosecution. The IO of present case could have also examined the shopkeepers to ascertain the factum of recovery but he also did not made any effort. He simply believed what the police officials of PS Sangam Vihar told him.
20. No explanation could be given by the prosecution to the contradiction in testimony of PW 4 , PW 5 and SI Sanjeev Dodi regarding the fact what information secret informer had given to SI Sanjeev Dodi. SI Sanjeev deposed that the secret informer had not informed the number of motorcycle whereas PW 4 and PW 5 deposed that secret informer had also mentioned the no. of motorcycle. This is material contradiction which create doubt regarding the veracity of prosecution case. No explanation could be given by the prosecution.
21. Further, there are contradiction in testimony of recovery witnesses regarding the spot where recovery witnesses had taken position at the FIR No. 770/02 State Vs. Rakesh Kumar Page No. 8 of - 9 - time when accused was found with motorcycle.
22. Further, no explanation could be given by prosecution regarding contradiction in testimony of recovery witnesses as to whether accused was wearing helmet at the time of recovery of motorcycle, which is again a very material contradiction which create doubt regarding the fact of recovery of motorcycle from accused.
23. Further HC Dal Chand had deposed that accused did not made any effort to flee from the spot whereas PW 5 deposed that accused had initially slowed down the motorcycle but thereafter tried to speed up the motorcycle which is again a material contradiction. Further PW 4 deposed that they came for petrolling on their respective motorcycles . Whereas as per Ct. Mahipal they had reached on scooter.
24. Further IO SI Ramanand in his entire cross examination deposed that the stolen property was car. He gave all answers as if stolen property was car. This witness also deposed that he had seized the fake no. plate which was fixed on the same car. The cross examination of IO show that at the time of his evidence IO was not even aware whether the stolen property was motorcycle or car.
25. Further, it is the case of the prosecution that PW4/ HC Dal Chand, PW8/ SI Sanjeev Dodi and PW5/ Ct. Mahipal were on patrolling duty at the relevant time, but no DD entry has been produced in this regard to show their presence at the spot. Prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that they were on patrolling by producing DD entry for the same.
26. In view of the above discussions, it can be said safely that the FIR No. 770/02 State Vs. Rakesh Kumar Page No. 9 of - 9 - prosecution has not been able to prove beyond reasonable doubt that case property was recovered from the possession of accused and there are material contradictions in statement of recovery witnesses. Thus, accused is acquitted for the offence u/s. 411 IPC. Since, prosecution failed to prove the recovery of the stolen property from accused, charges u/s. 471IPC for recovery of stolen property with fake number plate also cannot be sustained against the accused. Accordingly, accused is acquitted for offence u/s. 471 IPC also.
28. File be consigned to record room.
Announced and dictated in (ANKIT SINGLA)
the open Court on 19.09.2015 MM(03)/South District
Saket / New Delhi
FIR No. 770/02 State Vs. Rakesh Kumar