Delhi District Court
State vs . Mahipal & Ors. Fir No. 485/97, U/S : ... on 5 November, 2012
State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR No. 485/97 PS: Model Town U/S 379/411/34 IPC State Vs. Mahipal & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 462/06
B. DATE OF INSTITUTION : 10.08.99
C. DATE OF OFFENCE : 22.06.97
D. NAME OF THE : Sh. Yuvraj
COMPLAINANT S/o Sh. Sangat Ram
E. NAME OF THE ACCUSED : (1) Mahipal
S/o Sh. Jasbir Singh
(2) Surender Singh
S/o Sh. Tuli Ram
(Discharged vide
order dated 25.04.2001)
(3) Surajmal
S/o Sh. Jai Singh
(Proceedings against him
already abated vide order
dated 01.03.2001)
F. OFFENCE COMPLAINED OF: U/s 379/411 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Accused Mahipal is
acquitted.
I DATE OF SUCH ORDER : 05.11.2012
State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town Brief Statement of Reasons for Decision:
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on 22.06.1997, the present FIR u/s 379 IPC was lodged at PS Model Town by the complainant Sh. Yuvraj, regarding theft of his Maruti car bearing no. DL 8CA 6504, which was stated to be stolen by some unknown person from front of Alpana Cinema Hall, Model Town, Delhi. Subsequently on 06.11.97 at about 1:30 pm in a ground, SP Block, Pitampura, near Haider Pur canal, Delhi, the police officials of Special Staff, NW, Delhi apprehended the accused Mahipal, who was found in possession of the aforesaid stolen Maruti Car with a fake number plate bearing no. HR 02 6291. Accused Mahipal disclosed that the said car is a stolen property and he purchased it from the accused Surinder for a total sale price of Rs.25,000/. He further disclosed that accused Surajmal helped him in forging the chasis number on the body of the stolen car. He also disclosed that accused Surajmal got the forged ownership documents of the said car prepared, after receiving Rs.14,000/ from him. Accordingly, at his instance, accused Surinder and accused Surajmal were also arrested.
However, the alleged forged ownership documents of stolen car could not be recovered. After conclusion of the investigation, the present challan u/s 379/411/34 IPC against all the three accused persons was filed in the court.
2. In compliance of Section 207 Cr.P.C., the copy of the challan and the documents annexed therewith were supplied to all the three accused persons. During trial, the accused Surajmal expired and proceedings against him were abated vide order dated 01.03.2001. The accused namely Surinder Singh was discharged by the Ld. Predecessor of this Court vide order dated 25.04.2001. Prima facie charge u/s 411/34 IPC was made out State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town against the accused persons namely Mahipal. Accordingly, on 25.04.2001 the charge was separately framed by the Ld. Predecessor of this court. Accused Mahipal pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined ten witnesses.
4. HC Prahlad (PW1) is a formal witness, who had registered the present FIR and he has proved its copy as Ex. PW1/A.
5. Sh. Yuvraj Kathpal (PW2) is the complainant and he has deposed that on 22.06.1997, his maruti car bearing no. DL 8CA 6504 was stolen from front of Alpna Cinema Hall. He has testified that the present FIR was lodged on the basis of his statement and he has proved his signatures on FIR exhibited as Ex.PW1/A. He has further testified that later on, he was called to PS and police officials showed him his car, but the same could not be identified by him.
6. SI Yashbir (PW3) is one of the recovery witnesses and he has deposed that on 02.11.97 he was on patrolling duty and on anti robbery checking alongwith SI Satender Tyagi, HC Satender, Ct. Suresh, Ct. Amit, Ct. Harvinder and Ct. Rajesh and Insp. S.P. Tyagi. He has further deposed that at about 1:30 pm when they reached at SP Pocket, Pitampura they saw a white color Maruti car bearing no. HR 02 6291 in a park in a lone/isolated condition and they found the accused Mahipal sitting on the driver seat. The accused Mahipal was asked to produce the documents of the said vehicle. However, he only produced his driving licence. He has further deposed that the vehicle was having different chasis and engine number. On interrogation accused disclosed that the vehicle was a stolen State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town one which he purchased from a person namely Surender from Mujafarnagar against Rs.25,000/. The vehicle was seized vide seizure memo marked as mark A. He has further deposed that a rukka was prepared by SI Satender Tyagi and handed over to Ct. Vijender and the accused was arrested and personally searched. He admitted that he does not know the actual registration number of the said car. In his cross examination, he testified that despite inquiry they could not trace out the actual/original registration number of the said car.
7. HC Suresh Chand (PW4) and SI Satender Kumar (PW10) are also the recovery witnesses. They have also deposed on the similar lines as that of SI Yashbir (PW3). Therefore, their testimonies are not repeated herein for the sake of brevity and to avoid repetition. HC Suresh Chand (PW4) has also failed to reveal the actual registration number of the car that was allegedly recovered from the accused Mahipal. However, PW10 has deposed that on checking the engine and chasis number of the recovered car, it was found that its actual number was DL 8CA 6504.
8. HC Brij Lal (PW5) is a formal witness, who accompanied the IO on 22.06.97 to the place of incident. SI Savai Lal (PW6) was the first IO, who prepared site plan Ex.PW6/A on 22.06.97 at the instance of the complainant Sh. Yuvraj Singh.
9. ASI Iqbal Ahmed (PW7) is also a formal witness to whom further investigation of the case was marked in April, 1999. He has deposed nothing incriminating against the accused Mahipal.
10. ASI Onkar Nath (PW8) is the IInd IO of the case. He has deposed that on 21.11.1997 an information was received from PS Samay Pur Badli regarding arrest of the accused and State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town recovery of the stolen car in the present case. He has deposed that he brought the car bearing no. HR 02 6291 (fake number) from PS Shalimar Bagh to PS Model Town and on 26.03.1998 accused himself surrendered at PS Model Town.
11. HC Rajesh Kumar (PW9) is the MHC(R) at PS Shalimar Bagh and he brought the original case file of FIR no. 728/97, P.S. Shalimar Bagh. The said file contained the original seizure memo of Maruti Car bearing no. HR026291, the arrest memo and disclosure statement of the accused Mahipal. The originals were compared with their respective photocopies and they were exhibited as Ex.PW9/A to Ex.PW9/C respectively. After examination of SI Satender Kumar (PW10), prosecution evidence was closed.
12. Statements of the accused Mahipal U/s 313 Cr.P.C. was separately recorded. All the incriminating evidence against him were put to him for seeking his explanation. 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 arguments.
13. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have carefully perused the case file.
14. 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.
15. In order to bring home the guilt of the accused u/s 411 IPC, the prosecution is required to prove the following ingredients of the said section: State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town
(i) that the property in question is stolen property;
(ii) that the said property is identical with the property said to be stolen.
(iii) that the accused received or retained such property;
(iv) that the accused while receiving or retaining such property knew or had reason to believe the same to be stolen property;
(v) that the accused acted dishonestly.
16. The prosecution is required to prove that the property recovered from the possession of the accused is a stolen property. In a case titled "Mahabir Vs. State of Bihar, AIR 1972 S.C. 642, the Hon'ble Apex Court has held that : "The essential requirement of the offence of receiving stolen property is that the property seized from the possession of the accused must be proved by the prosecution to be stolen".
In the instant case, the prosecution has alleged that Maruti car bearing no. DL 8CA 6504 was stolen on 22.06.97. However, neither the complainant Sh. Yuvraj (PW2) nor any other prosecution witness has disclosed about the chasis no. and/or engine no. of the said stolen car. Besides that, the prosecution has also failed to place and prove on record the chasis and/or engine no. of the stolen car. It is asserted that car that was allegedly recovered from the accused was having a fake number plate bearing no. HR 02 6291. However, there is no evidence on record that can connect/relate the aforesaid alleged recovered car to the stolen car of this case.
17. In his examination in chief, Sh Yuvraj (PW2) has categorically testified that he could not identify the alleged recovered car to be his stolen car. Moreover, the alleged recovery witnesses i.e. SI Yashbir (PW3) and HC Suresh Chand State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town have failed to disclose the actual/correct registration number of the car that was recovered from the possession of the accused. Rather, they have specifically testified that they could not trace out the original registration number, engine no. and chasis no. of the recovered vehicle even after inquiry. Only one of the recovery witnesses i.e. Retd. SI Satender Kumar (PW10) has testified that the original number of the recovered car was DL 8CA 6504. But he has also failed to disclose the chasis and engine no. of the said car. Therefore, it is not clear as to how the prosecution came to conclusion that the alleged recovered car is a stolen property. In these circumstances, the prosecution has failed to establish that the alleged recovered car was a stolen property belonging to the complainant.
18. The said recovered car never saw light of the day as it was never produced in the court. Besides that, even the photographs of the said car were never produced and shown to the prosecution witnesses. The prosecution has also failed to place on record the entry of register no.19, vide which the aforesaid car was deposited in the malkhana of PS Shalimar Bagh. Therefore, it has not been established whether any car (leave aside stolen car) was ever recovered from the possession of the accused on the alleged date of incident.
19. Moreover, the prosecution has failed to place on record the site plan of the alleged spot of recovery. Further, there is a contradiction between the testimonies of the recovery witnesses regarding the place at which the documents pertaining to recovery were prepared. SI Yashbir (PW3) has testified that they were prepared on the bonnet of the recovered car. However, Retd. SI Satender (PW10) has deposed that they were prepared while sitting in a tempo traveler that was standing about 10m away from the recovered car. The remaining two State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town recovery witnesses are conspicuously silent about the presence of tempo traveler at the place of incident. On the contrary, they have deposed that the said recovered car was standing at the isolated place, before it was recovered. The said contradictions, though not fatal, has proved detrimental to the prosecution version.
20. The prosecution has averred that the recovery witnesses were on patrolling duty and on anti robbery checking on 02.11.97 i.e. the date of alleged recovery. The recovery witnesses in their respective examinationsinchief, have deposed that they were on patrolling duty at the time of recovery of the stolen car from the possession of the accused. However, the prosecution has failed to place and prove on record the departure entry of the said witnesses vide which they allegedly together left the police station for the purpose of patrolling in the area. The said departure entry is indispensable for establishing their presence at the spot of alleged recovery. Therefore, their presence at the alleged place, time and date of recovery of the alleged stolen car from the possession of the accused is doubtful.
21. The alleged recovery is stated to be effected at 1:30 pm. SI Yashbir (PW3) has categorically stated that they did not call any person from the public to join the investigation. It is not denied that the prosecution has alleged that the recovery was effected from an isolated area near Haider Pur canal. However, it is also an admitted fact that the residential colony of Pitampura is at a stone's throw distance from alleged place of recovery. Had the recovery witnesses would have made effort they could have easily joined public/independent witness at the time of recovery. However, in their wisdom they preferred not to join any public witness despite of their availability. The recovery State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town witnesses have also failed to advance any justifiable reason for non joining of independent/public witness at the time of alleged recovery of the car from the accused. Hence, story of the prosecution is further shrouded in suspicion.
22. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The recovery witnesses that are examined by the prosecution in the present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness at the time of alleged recovery of the car creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court
23. The reliance can also be placed upon the findings given by Hon'ble Apex Court in case titled as Harjit Singh V. State of Punjab [2002]SUPP1SCR581wherein it is held: ".........50 Apart from the versions of eyewitnesses discussed above, the trial court attached importance to the fact that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town under memorandum Ext. P19. We have referred to the statement of Investigating Officer Puran Singh (PW9). He is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statement Ex.PV and memorandum of recovery Ext. PU1. We have noted that these memoranda have been signed only by two police officers Faqir Chand and Virsa Singh. It is unbelievable that all the accused persons who have alleged to use their firearms/weapons kept all the arms concealed in an open field in a gunny bag under the heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied on by the trial court to convict the accused by treating it as eyewitness account."
I also find support from case titled as Aslam Parwez V. Govt. of NCT of Delhi 2003CriLJ2525 Hon'ble Supreme Court has held:
"10......In view of these features of the case, we are of the opinion that the testimony of three police personnel, namely, PWs 10, 11 and 1 does not inspire confidence and it will be highly unsafe to place reliance upon the same in order to convict the accused specially when the public and independent witnesses did not at all support the prosecution case on any material particular."
24. Keeping in view the fact that the version of the recovery witnesses has remained uncorroborated by any other independent witness regarding the alleged recovery of the stolen car, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
25. In the wake of above discussion, the prosecution has not only failed to prove the factum of the recovery of stolen car from the accused but it has even failed to establish that any car was ever recovered on the alleged date, time and place. Further, the prosecution has failed to establish the basic and material ingredient of the offence punishable u/s 411 IPC i.e. the recovered car is a stolen property of this case, as there is no evidence on record that can suggest that the alleged recovered car belongs to the complainant. Thus, the prosecution case suffers from material and fatal infirmities and therefore, the accused is entitled to benefit of doubt.
26. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against the accused Mahipal to bring him within the four corners of the offence U/s 411 IPC, accordingly, the aforesaid accused is acquitted for the offence U/s 411 IPC. He is directed to furnish fresh personal bond in a sum of Rs. 15,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. The same are furnished and they are accepted. They shall remain in force till next six months.
File be consigned to Record Room after due compliance. Announced in the open court today i.e. on 05.11.2012. (DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI/DELHI State Vs. Mahipal & Ors. FIR No. 485/97, U/s : 379/411 IPC, PS: Model Town FIR No. 485/97 PS: Model Town U/S 379/411/34 IPC State Vs. Mahipal & Ors.
05.11.2012
Present: Ld. APP for the State.
Accused Mahipal on bail with Ld. counsel.
Vide my separate judgment announced in the open court today, the accused Mahipal stands acquitted for the offence punishable U/s 411 IPC. He is directed to furnish fresh personal bond in a sum of Rs. 15,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. The same are furnished and they are accepted. They shall remain in force till next six months.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/05.11.2012