Delhi District Court
Criminal Case/500/2009 on 12 December, 2012
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Mohd. Hussain
FIR No. 447/09
PS HNDIN
U/s 380/411 IPC
JUDGMENT
C C No. : 500/10/10
Date of Institution : 15.03.2010
Date of Commission of Offence : 17.10.2009
Name of the complainant : Babu Lal S/o Sh. Laxman Dass
Name & address of the accused : Mohd. Hussain
S/o Mohd. Sharif
H. No. 63/78, Nizam Nagar, Basti
Nizammuddin, New Delhi
Offence complained of : U/s 411 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 06.12.2012
Date of announcing of judgment : 12.12.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 411 IPC.
2. The brief prosecution story is that on 17.10.2009 at course godown, Delhi Golf club, New Delhi, the accused was found in possession of one battery State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 2 (Trojan-105) and battery charger make Yamaha, 48-V, Model No. SCR, 481737 SPEC BA 2527 belonging to the complainant Babu Lal which he received or retained knowingly or having reason to believe the same to be stolen property.
3. After completing the formalities, investigation was carried out. Charge sheet was filed against the accused under Section 411 IPC in the court. Charge under Section 411 IPC was framed against the accused vide order dated 26.05.2011 to which the accused pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined four witnesses namely (1) Babu Lal (2) Ct. Abodh Kumar (3) HC Shobha (4) HC Ram Chander
5. PW-1 Babu Lal deposed that he was a course Manager in Delhi Golf Club Limited. He deposed that on 17.10.2009 golf cart battery and charger were stolen from the golf course store. In the morning on 18.10.2009 when he reached at his duty, the information was given by his staff regarding theft. He told about the same to his officers. He made complaint Ex. PW1/A to the police. Police came at the spot and inspected the site and prepared the site plan at his instance. Thereafter he went to the police State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 3 station when they called him and told him about recovery of stolen battery and charger and asked him to identify the same. Police seized the recovered battery and charger vide memo Ex. PW1/B. After that he got released the case property on superdari vide superdarinama Ex. PW1/C Police asked him to identify the accused but he could not identify the accused. He deposed that the accused was not the staff of Delhi Golf Course Limited. Thereafter leading questions were asked by the Ld. APP from him after taking permission from the court. He admitted that he had signed the arrest memo of the accused but he was not arrested in his presence. Disclosure statement was shown to the witness and asked him whether he had signed the same or not. Witness replied that he had signed the same. He further deposed that the police had shown the accused in the police station. He identified the photographs of the case property in the judicial file as Ex. P1 to P4.
6. PW-2 Ct. Abodh Kumar deposed that on 02.11.2009 he was posted at PS HNDIN as constable. On that day, duty officer handed over him a copy of FIR and directed him to go Golf Course. On that direction, he went to Golf course where he met HC Ram Chander. He handed over the copy of the FIR to HC Ram Chander. Thereafter he along with HC Ram Chander went State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 4 to the complainant for interrogation. Thereafter they reached at Khusro park red light. There one secret informer met them and disclosed that stolen property was being purchased in the Basti at Hazrat Nizammuddin. Secret informer pointed out the house of the Kabari from where stolen property was being sold. When they entered the house as pointed out by the secret informer, they saw that one person was arranging the white color katta. On checking the katta, one battery and charger was recovered. Complainant identified the battery and charger. The person who was present in the room was apprehended. IO seized the recovered battery vide seizure memo Ex. PW1/B. Thereafter the accused was arrested and his personal search was conducted vide memos Ex. PW2/A and Ex. PW2/B. Thereafter the disclosure statement Ex.PW2/C of the accused was recorded by the IO in his presence. He identified the accused and the photographs of the case property in the court.
7. During cross examination, he deposed that he did not remember the date from which he was posted at PS HNDIN. He did not remember the day on dated 02.11.2009. He deposed W/HC Shobha was the duty officer who had handed over the copy of FIR. He did not have the knowledge as to how HC Shobha received the complaint in the police station and who had State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 5 sent the rukka for registration of FIR. He did not remember the DD number through which he had left the police station at 11.00 AM. He deposed that he reached at Delhi Golf club within 10-20 minutes. He deposed that he did not know the name of the person from whom HC Ram Chander was making enquiry. He deposed that no statement of any public persons was recorded by HC Ram chander in his presence. At about 11.30 he along with HC Ram Chander and complainant Babu Lal left the golf course for searching the case property. He deposed that the information of the secret informer was not reduced in writing by the IO. He deposed that the distance between the Khusro Park red light and the house pointed out by the secret informer was round about 400-500 meters. He deposed that there was two kattas in the house of the accused. He cannot tell the specific identification of the katta from which the battery and charger was recovered. He did not remember the make or number of the charger as well as the battery. He deposed that color of the battery was black and charger was in white and red color. The charger and battery was sealed by the IO in his presence but he did not remember the mark of the seal used by the IO. He deposed that the seizure memo was prepared by the IO at the spot and Babu Lal signed the same in his presence at the spot.
State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 6
He deposed that arrest memo was prepared at the spot and the disclosure statement of the accused was also recorded at the spot in his presence. He deposed that the secret infomer left the place after pointing out the place of occurrence. He did not remember the time when they left the place of occurence. IO prepared the site plan in his presence. He did not remember on which documents he had signed. He did not remember the arrival entry after reaching the PS from the spot. He deposed that the complainant Babu Lal did not reach the police station and he went back from the place of recovery. He deposed that the white katta was not shown in the court. He did not remember as to whom the seal was handed over after use. He denied the suggestion that no recovery was effected from the house of the accused and no information was given by any secret informer. He further denied that no disclosure statement of the accused was recorded and all the documents were prepared at the PS.
8. PW-3 HC Shobha proved the FIR Ex. PW3/A.
9. PW-4 HC Ram Chander deposed that on 18.10.2009 he was posted at PS HNDIN. He deposed that on that day one complaint was given by the reader of the SHO and investigation in the present case was handed over to him. He got registered the case and handed over to the duty officer.
State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 7
After registering the FIR, on 02.11.2009 complainant came into the PS and also gave information regarding missing one battery (T-105). He along with complainant reached at Delhi Golf Club, Zakir Hussain Marg, opposite Kaka Nagar. After sometime, Ct. Abodh Kumar reached at the spot along with copy of FIR and original rukka and handed over to him. Thereafter the complainant got busy in Golf Club Tournament and at about 5.00 pm he came again and he prepared the site plan Ex. PW4/A at his instance. Thereafter he along with complainant and Ct. Abodh Kumar reached at the red light of Khusro park. There one secret informer met them and informed them regarding recovery of stolen battery and charger. On that information he along with complainant and Ct. Abodh Kumar reahced at Nizam Nagar where secret informer pointed out the place of recovery. Thereafter he along with complainant and Ct. Abodh Kumar reached at house no. 63/78 Nizam Nagar Basti. There he interrogated one person namely Mohd. Hussain regarding battery charger and battery. The said person was removing some articles lying in the above said premises. There were two white color plastic katta. On opening, battery and battery charger were found in it. After seeing them, the complainant identified these aritcles as the property of Delhi Golf Course. Accused told that he had purchased the State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 8 said articles from one kabari namely Bittoo. Thereafter the battery and charger were seized. He recorded the disclosure statement of the accused. Accused was arrested and his personal search was conducted vide memo Ex. PW2/A and PW2/B. Case property was deposited in the Malkhana and accused was sent to custody after medical examination.
10.During cross examination he deposed that he had received the complaint on 18.10.2009 at 5.30 pm. He got the case registered on 02.11.2009 at about 10.50 AM. He admitted that he did not record any statement between 18.10.2009 to 02.11.2009. He deposed that he had tried to meet the complainant during this period in two times but could not meet him. He did not remember whether he had made any departure entry or not when he left the PS to interrogate the complainant. He admitted that no written complaint was received regarding missing of the battery nor he recorded any statement under Section 161 Cr.P.C. He did not record any statement of the complainant regarding refusal of handing over the documents of the ownership. He voluntarily submitted that the complainant had produced one receipt cum delivery note to the IO regarding ownership. He admitted that there was no specific mentioned on the said delivery note and charger. He admitted that he had not prepared handing over memos of the said State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 9 document. He deposed that the complainant came to the PS at about 10.00 AM on 02.11.2009. He did not make any departure entry when he went to Delhi Golf Club on 02.11.2009. He admitted that there was no signature of the person on whose instance the site plan was prepared. He denied the suggestion that he did not visit the spot on 02.11.2009. He denied the suggestion that on 18.10.2009 the complainant was called at the PS where the case property was already present and the same was got identified by the complainant and obtained his signature on the arrest memo and seizure memo. He admitted that the place of recovery was a thickly populated area. He had asked two-three public persons to join the investigation but none agreed. He did not prepare the site plan of the place of recovery. He did not take any photograph of the place of recovery. He did not remember the number of arrival entry made on 02.09.2011. He denied the suggestion that no disclosure statement was given by the accused and the same was written by him at his own.
11.The PE was closed and statement of accused was recorded wherein the accused pleaded innocence. Accused did not lead DE.
12.I have heard the arguments addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 10
13.Section 411 IPC says that "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
14.PW-1 has deposed in his examination in chief that he had gone to PS and identified the property at the police station itself. However, in the seizure memo, the property is shown to have been recovered from godown of kabari i.e house no. 63/78, Nizam Nagar, Basti Hazrat Nizammuddin and it bears the signatures of PW-1 Babu Lal. Also, PW-2 has deposed that "the complainant Babu Lal did not reach the police station and he went back from the place of recovery". Thus, it is clear that seizure memo and recovery memo was prepared earlier and the signatures of the complainant were obtained later on at the police station. This is a material contradiction in the testiomony of PW-1 and PW-2 and also casts the doubt on the recovery of stolen property from the possession of the accused. Further in his cross examination PW-1 has submitted that police had shown him the accused at the police station while in the arrest memo again the signatures of PW-1 are visible. Thus, procedural lapses on the part of State v. Mohd. Hussain U/s 411 IPC FIR No. 447/09, PS HNDIN 11 the prosecution go on to show that there are chances of false implication of the accused. Thus, the prosecution has failed to prove its case beyond reasonable doubt.
15.In view of the above discussion, the guilt of the accused has not been proved and thus he is entitled to be acquitted. Accordingly, accused Mohd. Hussain is acquitted under Section 411 IPC.
16.As per section 437-A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
17.File be consigned to Record Room.
Announced in the open court (SAUMYA CHAUHAN)
on 12.12.2012 METROPOLITAN MAGISTRATE
SOUTH EAST, SAKET COURTS, NEW DELHI
State v. Mohd. Hussain U/s 411 IPC
FIR No. 447/09, PS HNDIN