Delhi District Court
Fir No. 414/09 1 State vs . Subhash Chand on 22 February, 2011
FIR No. 414/09 1 State Vs. Subhash Chand
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN
MAGISTRATE05, SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Subhash Chand
FIR NO: 414/09
P. S. Govind Puri
U/s 457/380/411 IPC
JUDGMENT
Sl. No. of the case and : 103/2 (23.9.2010) Date of its institution : 17.2.2010 Name of the complainant : Sandeep Khanna Date of Commission of offence : 26.10.2009 Name of the accused : Subhash Chand Offence complained of : Section 457/380/411 IPC Plea of accused : Not Guilty Case reserved for orders : 22.2.2011 Final Order : ACQUITTAL Date of Judgment 2202211 BRIEF STATEMENT OF FACTS FOR THE DECISION:
This is the prosecution of the accused Subash Chand upon a charge sheet filed by the police station Ambedkar Nagar under sections 457/380/411 IPC subsequent to the FIR No. 414/09 2 State Vs. Subhash Chand investigation done by them in FIR no. 414/09.
The prosecution story is that the complainant on 24.10.2009, closed his shop with the name Sandeep Sanitation situated at Tughlakabad and at about 8.30 pm he went to his house and on the next day i.e 25.10.2009 when he reached the shop to open it at around 10.30 am, he found that the locks of the basement were broken and boxes of tiles numbered 179 were stolen. He immediately called to the police. The investigation was started and according to the charge sheet the accused was arrested by the crime branch on 27.10.2009 on a secret information.
Charge against the accused has been framed u/s 411 IPC to which he pleaded not guilty and claimed trial.
The trial started on framing of charge and to prove its case, prosecution examined as many as three witnesses.
PW 1 is the complainant Sandeep Khanna who deposed that on 24.10.2009, he closed his shop with the name Sandeep Sanitation at TA 326 Main Road, TKBD extension at about 8.30 pm and went to his house at 171, Dr. Mukherji Nagar, Delhi. On next day i.e 25.10.2009 when he reached the shop to open it at around 10.30 am, he found that the locks of the basement were broken and somebody has committed theft and he found that the boxes of the tiles were stolen from the basement. The total number of boxes which were stolen were about 179. His initial complaint to the police station in this respect is Ex.PW1/A which bears his signatures at point A. The description of the stolen articles were also provided by him in the complainant Ex.PW1/A. He made a call to the PCR at 100 number. Police from the local PS came there and made some preliminary inquiries and investigations. On the same day i.e 25.10.2009 at around 11.30 am, police personnels from crime branch came to his shop who apprised him FIR No. 414/09 3 State Vs. Subhash Chand that they have apprehended one person who is found in possession of the stolen articles of his shop.
On 8.11.2009, he went to the police station to see his goods which were seized by the police from the accused. The goods were released to him vide order of the court dated 3.11.2009. The photographs of the stolen goods were taken in his presence which are seven in number and marked as Mark A 1 to Mark A 7 and along with its CD exhibited as Ex.P1. He has also given the original invoices of the original goods to the investigating officer which are Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E, Ex.PW1/F, Ex.PW1/G respectively. Nine photographs of the broken shutter were also taken by the police officials on 25.10.2009. These are marked as Mark B1 to B9.
PW 2 is Ct. Ashok Kumar deposed that on 26.10.2009, he was posted in the Crime Branch, ante robbery cell, Nehru Place, Delhi. On that day he was in his office and at about 8 pm, secret informer visited in the office who informed him about the theft which occurred on the intervening night of 24/25.10.2009 at TA326, Main Road, TKBD Extension and that one person in the name of Subhash will go to Gazipur Border via Kalkaji Mandir through Tata 407 bearing no. DL 1LD 4832 in connection of the sale of stolen property wanted in the aforesaid theft. This information was further transmitted by him to ASI Sumer Singh. Thereafter on the instructions of the senior officials a raiding party was constituted comprising himself, ASI Sumer Singh, HC Ajit Singh and Ct. Ram Avtar to reach the spot vide DD no. 8, same is mark A through Santro vehcile. At about 8.20 pm, they left the office and reached near Kalkaji Mandir, Red Light at about 8.30 pm along with secret informer where ASI Sumer Singh requested 4/5 passersby to join the raiding party but all of them left the spot without disclosing their names and addresses. At about 9.45 pm, one tempo bearing no. DL 1LD 4832 Tata 407 arrived from the side of Govind Puri. On the pointing out of secret informer, HC Ajit Singh FIR No. 414/09 4 State Vs. Subhash Chand made a signal to tempo driver to stop the same. Driver of the vehicle was interrogated who revealed his name as Subhash Chand. Thereafter tempo was checked and found that petties of tiles were filled in the tempo. Thereafter relevant documents regarding the possession of tiles in huge amount were asked from the accused but he could not produce any documents regarding the possession of tiles. On further interrogation accused Subhash Chand revealed that on the intervening night of 24/25.10.2009 two boys had loaded these tiles in his tempo and he was taking the tiles at Gazipur Red Light. Thereafter HC Ajit Singh contacted police station Govind Puri telephonically and from where it was confirmed that in reference of the stolen property found in the possession of Subhash Chand, a case has already been registered as case FIR no. 414/09 u/s 457/380 IPC at PS Govind Puri. Thereafter, HC Ajit Singh had taken into possession the tempo and stolen tiles u/s 41.1 D and 102 Cr.PC vide memos Ex.PW2/A and Ex.PW2/B. On checking of tempo total petties of tiles were found 168 in number. Petties of the tiles were branded of different companies as Somani Lux Sunit Kaveri Gold and same were seized as per description of seizure memo Ex.PW2/A. Thereafter, HC Ajit Singh recorded the disclosure statement of the accused, same is Ex.PW2/C which bears his signatures at point A. PW 3 is HC Ajit Singh who deposed that on the basis of secret information delivered by secret informer a raiding party was constituted to apprehend the person who was in the possession of case property i.e tiles wanted in case FIR no. 414/09 PS Govind Puri. On the direction of senior officials raiding party was constituted comprising himself, ASI Sumer Singh, Ct. Ashok and Ct. Ram Avtar . Raiding party left the office to reach the spot vide DD no. 8, mark A through Santro vehicle. At about 8.20 pm, they left the office and reached near Kalkaji Mandir, Red Light at about 8.30 pm along with secret informer where ASI Sumer Singh requested 4/5 passersby to join the raiding party but all of them left the spot without disclosing FIR No. 414/09 5 State Vs. Subhash Chand their names and addresses. At about 9.45 pm, one tempo bearing no. DL 1LD 4832 Tata 407 would arrive from the side of Govind Puri. On the pointing out of secret informer, he made a signal to tempo driver to stop the same. Driver of the vehicle was interrogated who revealed his name as Subhash Chand. Thereafter tempo was checked and found that petties of tiles were filled in the tempo. Thereafter relevant documents regarding the possession of tiles as they are in huge amount, were asked from the accused but he could not produce any documents regarding the possession of tiles. On further interrogation accused Subhash Chand revealed that on the intervening night of 24/25.10.2009 two boys had loaded these tiles in his tempo and he was taken the tiles at Gazipur Red Light. Thereafter he contacted PS Govind Puri telephonically and from where it was confirmed that in reference of the stolen property found in the possession of Subhash Chand, a case has already been registered as case FIR no. 414/09 u/s 457/380 IPC at PS Govind Puri. Thereafter, he had taken into possession the tempo and stolen tiles u/s 41.1 D and 102 Cr.PC vide memos Ex.PW2/A and Ex.PW2/B. Both the memos bears his signatures at point A. On checking of tempo total petties of tiles were found 168 in number. Petties of the tiles were branded of different companies as Somani Lux Sunit Kaveri Gold and same were seized as per description of seizure memo Ex.PW2/A. Thereafter, he recorded the disclosure statement of the accused, same is Ex.PW2/C which bears his signatures at point A. This is the overall evidence of the prosecution.
When the prosecution concluded its evidence, the accused was examined u/s 313 Cr.PC,wherein the incriminating evidence put to him and he explained the evidence against him that he was the registered owner of the tempo bearing no. DL 1LD 4832 and he used this vehicle as a carrier for transporting the goods. On the date of recovery, two boys offered him for loading the tiles to unload at Khora Colony from Tughlakabad Extension in consideration of Rs.1,700/- as he used to do this business. So he agreed after having the belief that the FIR No. 414/09 6 State Vs. Subhash Chand persons by whom tiles were loaded in the tempo were genuine and were owner of shop where tiles had contained. He had no knowledge that the loaded tiles in him tempo were stolen. He had also asked the invoice of tiles from the real offenders but they told him that they will produce later on and instructed him to move from the shop to reach at Khora Colony. This fact was also narrated by him to the police when police has falsely implicated him.
Ld. APP for State has fairly conceded that the accused in the present case might be the bonafide carrier and has not much pressed for his indictment for this offence..
On the other hand, the defence has argued that he was simply a carrier and he was arrested on 25.10.2009 at around 10/10.30 am. He also argued that he was hired by two persons to transport the tiles to Khora Colony. They took him to a shop in Tughlakabad Extension and open its locks and loaded some tiles in his tempo. When he asked them about the invoices so that he cannot be trapped by sales tax personnels, both the persons asked him to proceed and they will be bringing the documents and they also instructed him to stop somewhere at Nehru Place. Believing there words, he proceeded to some distance and stopped his temp at the Nehru Place where he was later on apprehended.
It is further submitted by him that he has been falsely implicated in this case and he was not aware of the fact that the tiles which were being carried by his tempo were stolen articles.
After hearing Ld. APP for State and counsel for accused, I find that there are material infirmities in the prosecution story as well as in the investigation of the case which entitle the accused to acquittal on following grounds;
(a) The complainant has deposed that on 24.10.2009, he closed his shop and on 25.10.2009 when he reached his shop, he became aware of the fact that a theft was committed in his shop. He informed the police who came from the police station, took photographs etc of the spot. Later on at 11.30 am, police personnel from crime branch came FIR No. 414/09 7 State Vs. Subhash Chand to his house and apprised him that they had apprehended one person and he is in possession of stolen articles of his shop. On the other hand, the witness from crime branch has deposed that they apprehended the accused on 26.10.2009 when a secret information was received to them at 8 pm. The accused was apprehended at around 9.45 pm. Tiles were found in his tempo which he was taken to Gazipur Road, Red Light. Therefore, this material contradiction creates a doubt that the accused was not apprehended on 26.10.2009 but he was apprehended on 25.10.2009 as per the complainant's evidence.
(b) The incriminating evidence was also explained by him in the same manner that he was simply a carrier and was taking the goods on the contract basis and he was not aware that they were stolen. The goods were duly put in his tempo by two persons genuinely opening the locks of the shop and he was simply waiting for the invoices of the goods to avoid any sales tax harassment. This is the most natural conduct of a carrier. The evidence of the complainant suggests that the accused was apprehended on the same day. In fact he was taking the goods on the sam,e day and his explanation seems to be more plausible than the prosecution evidence that he was waiting for papers at the spot where he was apprehended.
(c) To bring home the charge u/s 411 IPC it is the duty of the prosecution to prove that the stolen property was in possession of the accused, that some person other than accused had possession of the property before the accused got possession of it and the third that the accused had knowledge that the property was stolen property. This was held by Hon'ble Supreme Court of India in Trimbak Vs. State of M.P AIR 1954 SC 39.
The three essential ingredients of offence under section 411 IPC are held to be a that the stolen property was in possession of the accused, bthat some person other than the accused had possession of the property before the accused got possession of it, FIR No. 414/09 8 State Vs. Subhash Chand and that the accused had knowledge that the property was stolen property. In the present case, there is no evidence on behalf of the prosecution that the accused was aware of the fact that the goods which he was carrying were stolen properties. Mens ria is an essential ingredient of criminal offences and therefore before punishing any person for offence of retaining a stolen property, it is the duty of the prosecution to discharge the burden by proving the fact that it was in the knowledge of the accused that he was in possession of stolen property. In the present case both the police witness has deposed that the accused has disclosed that the two boys loaded the goods in his tempo which was hired by them. This suggests the innocence of the accused and the burden is very heavy on the prosecution to prove that the accused was aware of the fact that the goods in his tempo were stolen
(d) The disclosure statement of the accused also proves his innocence. In his disclosure statement Ex.PW2/C also there is nothing which can incriminate him in this case. The investigating agency should have applied their minds before forwarding the accused for trial in this case. Not only this, the investigating agency should also have tried to apprehend the real accused who in fact had committed the theft and used the accused as a vessel for the conveyance of the stolen property. This has not been done by the investigating agency.
(e) The complainant has deposed that he went to see his goods on 8.11.2009 for the first time in the police station and deposed that he released those goods on superdari on 3.11.2009. It means that he has filed an application for the release of the goods on superdari without even ascertaining whether it is the same property which was stolen from his shop.
(f) The conduct of accused also indicates his innocence. He has not tried to escape, run or flee from the spot when he saw the police personnels who had apprehended him. The conduct of the accused as per cross examination of PW 2 is that of natural carrier.
FIR No. 414/09 9 State Vs. Subhash Chand (g) During interrogation it was clearly revealed by the accused as is indicated in his
disclosure statement that the two boys after genuinely opening the locks of the godown loaded the tiles in his tempo. This fact was clearly communicated to the police personnels on the date of arrest but the investigating agency took no pains in order to find out the real culprits and in order to complete the formality of investigation had made Subhash accused in this case without even investigating the fact that whether he is a real culprit or whether he has knowledge that the goods were stolen and whether he was involved in the conspiracy of committing theft of the goods. The way in which the investigation has been completed has helped the real accused getting away from the clutches of law and implication of innocent person. The two boys theory of the accused that it was them who actually committed the theft and loaded the goods in his tempo is also not investigated by the police in a proper manner.
Therefore, considering the overall circumstances and the issues discussed above, the accused is acquitted of the charges u/s 411 IPC as prosecution is unable to prove its case beyond reasonable doubts.
Announced in the open court (Samar Vishal)
on 22nd February, 2011 Metropolitan Magistrate05,
South East, New Delhi