Delhi District Court
State vs . 449/2005 on 29 April, 2023
IN THE COURT OF SH. ANIMESH BHASKAR MANI TRIPATHI,
MM03, SHAHDARA DISTRICT, KARKARDOOMA COURTS
STATE Vs. 449/2005
FIR No.FAROOKH & RAJESH
PS: WELCOME
U/S: 379/411/34 IPC & 471 IPC
CNR No. : DLSH020002372007
Date of commission of offence : 01.08.2005 to 22.08.2005
Date of institution of the case : 01.02.2007
Name of the complainant : Sh. R.K Singh.
Name of accused and address : (1) Farookh
S/o Sh. Mohd. Umar
R/o H.NO.
(2) Rajesh Pandey
S/o Sh. Karuna Shankar Pandey
R/o H.NO.
Offence complained of or proved : U/s 379/411/34 IPC & 471 IPC
State Representation : Asst. Public Prosecution Officer
Plea of Accused : Plead not guilty
Final order : Aquitted
Date of judgment : 29.04.2023
FIR No. 449/2005 1/10
State Vs. FAROOKH & RAJESH
PS. Welcome
JUDGMENT
1. The case of the prosecution in brief is that on 01.08.2005 to 22.08.2005 at Top floor of the Alka Public School, Hari Om Gali, Babarpur, Delhi accused Mohd. Farookh along with coaccused Rajesh Pandey in furtherance of their common intention committed theft of one generator set battery belonging to the Airtel and on 04.09.2005 at E168, New Ashok Nagar, Delhi both accused got recovered battery No. 41317310 of generator set belonging to th4e AIRTEL which accused dishonestly received or retained knowing or having reason to believe the same to be stolen property. On 02.09.2005 at around 3:30 PM near Metro Station Welcome, GT Road, Delhi, accused Mohd. Farookh along with co accused were apprehended by a police and accused were found in possession of two forged identity cards of AIRTEL with photograph but bearing the name of Vikas Tripathi for the purpose of using the same as genuine to induce the order employee of AIRTEL and public at large knowingly the same as forged. Cognizance of the offence were taken. The both accused was summoned. Charge under Section 379/411/34/ was framed against the accused Mohd. Farookh and charge under Section 3749/411/34/471 was made out against the accused Rajesh Pandey, to which they pleaded not guilty and claimed trial.
2. After completion of investigation, chargesheet was filed on 24.11.2009 . Cognizance was also taken on same day. Copy of chargesheet was supplied to accused and charge was framed against the accused for offences punishable u/s 3749/411/34/471 was made out against the accused Rajesh Pandey, to which they pleaded not guilty and claimed trial.
3. The prosecution examined 5 witnesses in support of its case, which are as follows: (3.1) ASI Sahab Singh was examined as PW1. He deposed that on 01.09.2005, HC Shahid Ali brought the rukka at about 4:55 PM sent by SI Satender Moha. He deposed that he received the same and on the basis of which he recorded FIR No. 449/2005, the copy of FIR is Ex. PW1/A (OSR). He deposed that he made endorsement on rukka vide Ex. PW1/B. He further deposed that investigation was marked to SI Satender Mohan, copy of FIR and original rukka were sent to SI Satender Mohan through HC Shahid Ali.
Despite opportunity, the accused did not cross examine the witness.
FIR No. 449/2005 2/10State Vs. FAROOKH & RAJESH PS. Welcome (3.2) Ct. Sanjeev was examined as PW2. He deposed that on 01.09.2005, he alogn with HC Sahid Ali, IO reached at Hari Om Gali, Alka Public School, Babarpur, Delhi where complainant R.K Singh met them and complainant pointed out the place of theft to IO and gave a written complaint which is Mark X. He deposed that on written complaint, IO prepared rukka and handed over to him for registration of FIR. He deposed that he went to PS Welcome and got the FIR registered. He further deposed that he went to Special staff office and copy of FIR and original rukka were handed over SI Satender Mohan. He deposed that he along with SI Satender Mohan went to Alka Public School, Babarpur, Delhi where HC Sahid Ali and complainant R.K Singh met them and HC Sahid Ali told to SI Satender Mohan about the incident of theft. He deposed that Satender Mohan prepared site plan at the instance of R.K Singh which is Mark Y. On 17.04.2023 witness appeared submitted that he did not recall the facts. The opportunity for cross examine the witness was closed due to non appearance of witness despite summons through IO/SHO & DCP.
(3.3) Sh. Rajesh Kumar Singh Manager cum Nodal Offier was examined as PW1. He deposed that in july 2005, the batteries from the area of PS Welcome missing and he lodged complaint to PS welcome which is Ex. PW3/A. He deposed that police recovered total 22 batteries from the house of the accused persons. He deposed that police prepared seizure memo of various batteries the same is Ex. PW3/B to Ex. PW3/E. H further deposed that police recovered the motorcycle, two fake ID cards with logo of Airtel from the accused Rajesh Pandey vide seizure memo Ex. PW3/F and Ex. PW3/G. During cross examination by the ld. APP, the statement dated 02.09.2005 is read over and explained to the witness to which witness stated that he had given he said statement to the police. He admitted that on 02.09.2005 he had joined the investigation with IO SI Satyender Mohan. Witness stated that with the help of staff, IO signaled motorcycle bearing no. DL 7SX1825 rider to stop. He stated that one of the boy who was driving the above said motorcycle suddenly applied the brake and the boy who was pillion riding on the said motorcycle and carrying the batteries in his bands deboarded the FIR No. 449/2005 3/10 State Vs. FAROOKH & RAJESH PS. Welcome motorcycle and left the battery and ran towards the metro station by crossing the road or tht this said boy for the purpose of escaping from the hands of police and jumped over the wall and due to result of same he fell down on ground or that IO with the help of police staff apprehended the said boy and brought the apprehended boy to the spot where he restrained the other boy or that upon inquiry, the name of boy who was driving the above said motorcycle came to be known as Mohd. Farookh and other name known as Rajesh Pandey and upon inquiry, witness submitted that both the accused apprehended and both disclosed that batter which was recovered from their possession was stolen from Paschim Vihar and same was taken by them to Noida at the shop of Farooq and both disclsoed that they both themselvs as a fake employees of AIRTEL towar. He admitted that two fake ID cards in the name of both accused.
MHCM has brought the case property 22 batteries in one tempo and said tempo was parked on the main road which is adacent in the Court premises.
Witness sent alogn with MHCM and Court staff for identifying the case property. After some time witness came in the court and said that he has correctly identified the case property and he had had matched the case property with delivery challan carried by him to the Court and the said delivery challan was marked as Mark X/3 ( running into 11 pages). The case property was correctly identified by the witness and the same is Ex. P1 to Ex. P22( colly.) During his cross examination, he admitted that he did not have any bill for the recovered batteries and Mark X/3 (colly.) was the report of field officer who used to get damage battaries replaced. He deposed that he did not have any knowledge if Mark X/3(colly) is AMC report or not. He deposed that he was not his job to physical inspect of site, Engineers of vendor of Airtel Ericson to on site for verify physical verification of site. He admitted that Ericson engineer used to give report in Airtel office. He further deposed that he has not personal knowledge about the maintenance and AMC. He further deposed that he has no personal knowidge about the installation of battery on which the present FIR was registered, however Rambir, Asst. Engineer told him about that.
FIR No. 449/2005 4/10State Vs. FAROOKH & RAJESH PS. Welcome (3.4) Sh. Shahid Ali was examined as PW4. He deposed that on 01.09.2004, complaint was marked to him and he made endorsement on the complaint and same is Ex. PW4/A and he got the FIR registered. He deposed that he went the post i.e. Hari Om Gali Alka Public School, Babarpur where mobile tower of Airtel Company was installed and meanwhile Ct. Sajeev and SI Satender came at the spot, one person R.K Singh who was employee of Airtel Company was present at the spot. He deposed that SI Satender Mohan preparaed the site plan at the instance of R.K Singh. He deposed that R.K Singh handed the report to SI Satender Mohan in which serial number of stolen batter was mentioned same was seized by seizure memo Ex. PW4/A. He further deposed that on 02.09.2004, he joined the investigation along with SI Satender Mohan and SI Satender Mohan received the information that accused persons could be apprehended from Welcome Metro Station. He further deposed that accused persons were on motorcycle bearing registration No. DL 7SX1825 and they were coming from the side of Shahdara and going toward Seelampur. He deposed that accused Farooq was riding on the motorcycle and accused Rajesh Pandey was pillion rider and one battery was recovered from the possession of accused Rajesh Pandey. He deposed that one range was recovered from the accused Farooq and same was seized by seizure memo Ex. PW3/M and two Icard of Airtel Company issued in the name of Vikas Tripathi having photo and accused Rajesh Pandey were found from the possession of accused persons and the same seized vide seizure memo Ex. PW3/G. He further deposed that accused persons were arrested vide arrest memo Ex. PW3/J and Ex. PW3/K and got personally searched vide search memo Ex. PW3/L and Ex. PW3/M. He further deposed that he seized the motorcycle of the accused persons were also seized vide seizure memo already Ex. PW3/F and Rs. 300/ was recovered from the accused Rajesh Pandey and Rs. 250/ was recovered from the accused Farooq on their personal search. He further deposed that case property was deposited in the PS and they came back the office and Special staff. He further deposed that they again along with both accused went to the house of the accused situated at Maujpur and 6 batteries were recovered from the house of the accused Mohd. Farooq at the instance of both accused persons and the same were FIR No. 449/2005 5/10 State Vs. FAROOKH & RAJESH PS. Welcome seized memo already Ex. PW3/C. He deposed that recovered batteries from the accused Farooq at Maujpur were deposited in the Malkhana of PS Welcome. He deposed that on 04.09.2005 complainant came at the office of Special Staff and joined the investigation with them and they went to the shop as mentioned by the accused persons situated at New Ashok Nagar, Delhi. He deposed that one battery stolen from Babarpur was recovered vide seizure memo is Ex. PW3/E along with 14 batteries recovered vide seizure memo Ex. PW3/B and came back at PS and case property was deposited in Malkhana PS Welcome.
On being crossexamined by Ld APP for the State, he admitted that on 01.09.2005, he was at Special staff North East Delhi. He also admitted that on 02.09.2005 he joined the investigation with SI Satender Mohan. He also admitted that list of BTS and a printed book was recovered from the accused Rajesh pandey and same was seized vide seizure memo Ex. PW3/O. He also admitted that disclosure statement of accused Mohd. Farooq and accused Rajesh was recorded at the spot, the same is Ex. PW3/l and Ex. PW 3/H. He also admitted that on 02.09.2005 one battery was recovered from the accused persons was seized vide seizure memo Ex. PW3/D. MHCM has brought the case property i.e. 22 batteries in one tempo and the said temp is parked on the main road which is adjacent to the court premises.
At this stage, witness sent along with MHCM, Naib Court and with both the accused persons for identifying the case property. After some time witness returned to the court alongwith the accused persons and MHCM and Naib Court. Witness correctly identified the case property. The case property is correctly identified by the witness and the same is already Ex. P1 to Ex.P22 (colly.) in the testimony of PW3.
During cross examination, he admitted that no bill/ delivery challan regarding batteries were produced before him. He deposed that the said batteries bearing no. 413,17310 were recovered from the shop of accused.
(3.5) Insp. Satender Mohan was examined as PW5. He deposed that on 01.09.2005 Ct. Sanjeev handed over to him original copy of rukka and copy of FIR, thereafter he along with Ct. Sanjeev reached at the spot where he met the HC Shahid Ali and R.K Singh FIR No. 449/2005 6/10 State Vs. FAROOKH & RAJESH PS. Welcome ( officer from the Airtel) and R. K Singh told him that the generator set battery of Airtel Tower was stolen. He deposed that he prepared site plan. He deposed that R.K Singh produced the receipt of the stolen battery and the same seized by him through the seizure memo Ex. PW4/A. He deposed that he recorded the supplementary statement of the R.K Singh. He deposed that on 02.09.2005, complainant came his office and he alongwith complainant HC Shahid Ali and Ct. Sanjeev reached at Welcome Metro Station where he received the secret information that two persons came on the motorcycle and they have stolen battery. He deposed that he has recovered the stolen battery from Paschim Vihar and also recovered the one fake identity card of Airtel company in the name of Vikas Tripthi, BTS lit and one book from the possession of Rajesh Pandey. He deposed that he made the arrest of the accused persons which is Ex. PW3/J, Ex. PW3/K and conducted the personal search memo. He also admitted that he prepared the seizure memo and he also prepared the pointed out memo and disclosure statement of the accused. He deposed that he also deposited the case property in the malkhana. He deposed that on 04.09.2005, he recorded the disclosure statement of the accused. He deposed that he recorded the supplementary statement of the concerned witness. He also admitted that there is no inspection report of the the recovered batteries whether the said batteries were working condition or scrapped or not execute the AMC report which is Marked as Mark Y. During cross examination he admitted that there no record regarding the ownership document of the stolen case properties.
4. Thereafter, statement of accused U/s 313 of Cr.P.C. was recorded, wherein all the incriminating facts were put to both the accused. The accused stated that the have falsely implicated in the present case and they are innocent. Accused persons have opined not to lead DE.
5. This Court has heard the arguments and perused the record.
It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : FIR No. 449/2005 7/10 State Vs. FAROOKH & RAJESH PS. Welcome "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
6. In this case, prosecution has examined all in all 5 witnesses. Out of the 5 witnesses 2 are public/ complainant witness & 3 are police/ formal witness. Peusal reveals that two witnesses who had complained qua the incident and had either seen or heard the incident. The whole of prosecution story depends upon PW3, and PW4 because only upon the complaint of PW3, the FIR was registered and all the motion for prosecution started. Formal witnesses neither saw the incident nor initiated the complaint. Thus for the purpose of setting the prosecution story into motion. PW3 and PW4 are the most important & direct witnesses.
7. Both the star witnesses of the prosecution has turned hostile and disputed on the identity of the accused. It is not only the identity that has been disputed, rather the witnesses has not supported any version of the prosecution. The witnesses during deposition has gone upto the level of deposing that they have neither seen the incident, nor known the incident. PW5 has merely stated that being the Nodal officer was filed the case as the motion of the employer i.e. Airtel. The witnesses were thoroughly was cross examined by the prosecution, but nothing on record came that can be said to be incriminating against the accused persons. Time & again during prosecution PW3 & PW 4 have stated that due to lapse of time they do not remember anything.
As far as Section 411 IPC is concerned, seizure memo is on record pointing towards recovery of stolen property, but the ownership of the stolen battery remains unproved & contentious. The accused have argued that the recovery property was sold to them even the prosecution witnesses including the IO has stated that no bills or documents qua the stolen property regarding suggesting the ownership of the property. PW5 specifically stated during cross examination that no record of ownership document of the stolen case FIR No. 449/2005 8/10 State Vs. FAROOKH & RAJESH PS. Welcome property is present. Also, there is no inspection records qua the batteries that can prove that batteries were installed at the crime scene. In the absence of any record, the ingredient of Section 411 IPC does not get proved.
8. It is worth noting that the only eyewitness and material witness in the present case was the PW3 and PW4. However, the same has supported the prosecution story. The identity of the accused in a criminal trial is of paramount importance and no person can be indicted for criminal liability, unless his identity is established beyond any shadow of doubt. In the present case, the eyewitness PW3 and PW4 has failed to identify the accused & thus to substantiate the prosecution version. Remaining public witnesses, are witnesses who have not directly see the accused, therefore their testimonies ever taken together will not establish the guilt of the accused.
9. In respect of the offence punishable u/s 379/471 IPC, the identity of the accused who has committed the crime is of prime importance. It is also important that identity of the accused is duly recognised by the complaint/ injured in order to establish the guilt of the accused person. In the absence of any incriminating evidence against accused due to eye witnesses not supporting the story, the prosecution can never hope to prove the allegations levelled against the accused . Remaining witnesses in the present case are official witnesses, whose testimoney even if taken together would also be insufficient to prove the allegations against the accused.
10. In the absence of any incriminating evidence against accused persons, the prosecution can never hope to prove the allegations levelled against the accused persons. Remaining witnesses in the present case are official witnesses, whose testimoney even if taken together would also be insufficient to prove the allegations against the accused persons.
11. In Satish Mehra Vs. Delhi Administration & Anr. 1996 JCC 507 Hon'ble Supreme Court has held that valuable time of the court should not be wasted merely for formal completion of procedure when there is no chance of the trial culminating in conviction.
FIR No. 449/2005 9/10State Vs. FAROOKH & RAJESH PS. Welcome
12. Furthermore, it has been hled by Hon'bale Supreme Court in Dr. S.L Goswami Vs. State of Madhya Pradesh 197 SCC (Crl.) 258 that the accused persons are entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution. In the present case, as already noted above, the prosecution could not discharge the onus proving th eingredients of offence and thus, the accused persons are entitled to benefit of doubt.
13. In view of the above, the accused namely Mohd. Farookh is hereby acquitted for the commission of offence under Section 379/411/34 and accused Rajesh Pandey is hereby acquitted for the commission of offence under Section 379/411/34/471IPC are hereby acquitted. Bail bonds and surety bonds are discharged. Original document if any be returned to them after cancellation of endorsement against acknowledgment.
14. Case property be confiscated to the State and disposed off as per law if not already done.
15. Bail bond / surety bond in sum of Rs. 10,000/ each in terms of section 437 A Cr. P.C furnished and accepted.
16. File be consigned to record room.
This judgment contains 10 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned. ANIMESH Digitally signed by ANIMESH BHASKAR BHASKAR MANI TRIPATHI Location: Karkardooma MANI Courts, Delhi Date: 2023.04.29 TRIPATHI 16:46:19 -0800 Announced in the open court on Animesh Bhaskar Mani Tripathi 29th April 2023 MM03/ SHD/ KKD/ Delhi FIR No. 449/2005 10/10 State Vs. FAROOKH & RAJESH PS. Welcome