Delhi District Court
State vs . Raj Kumar Aggarwal on 6 July, 2018
IN THE COURT OF SH. BABRU BHAN,
METROPOLITAN MAGISTRATE -07 (CENTRAL),
ROOM NO. 345, TIS HAZARI COURTS, DELHI
STATE Vs. RAJ KUMAR AGGARWAL
CASE No. 521055/2016
C.C. NO. 29/12
P.S. RPF/SSB
Date of Institution: 07.03.2013
Date of reserving judgment: 04.07.2018
Date of pronouncement: 06.07.2018
In re:
State/RPF Versus RAJ KUMAR AGGARWAL
S/o- Sh. Prakash Chand,
R/o- Village Munda Khera, PS-
Khurja, Bullandshehar, UP.
Plea of accused : Pleaded not guilty and claimed
trial
Final order : Accused is Acquitted for the
offence U/s 3 RP (UP) Act.
JUDGMENT
1. On 21.12.2013 at about 15.10 hours, from the junk shop situated at village Shakurpur, within the jurisdiction of RPF Post SSB, RPF officials apprehended accused Raj Kumar Aggarwal and he was found in possession of 10 pendrol clips valued Rs. 500/- (railways property) and two SAB. Accused failed to produce any authority for possessing the same. He was booked U/s 3 RP(UP) Act. After inquiry, the present complaint U/s 3 RP (UP) Act has been filed.
2. On filing of the present complaint, prosecution lead pre-charge evidence. On the basis of material produced, charge for the offence U/s 3 RP (UP) Act was framed against the accused on 17.09.2013 to which he pleaded not guilty and claim to be tried.
3. During prosecution evidence, SI Uttam Kumar PW4 stated that on 21.12.2012, on receipt of secret information regarding a junk dealer who was possessing stolen railway property at Shakurpur village, he alongwith Ct Manoj Kumar, Ct Raj Singh and Ct Sripal reached Sarvodaya Bal Vidyalya, Shakurpur. Secret informer pointed out towards a shop, they went to the junk dealer and informed about the information. PW4 further stated that other shopkeepers were asked to participate in the search but all refused. Thereafter, on search of the junk shop, a plastic katta containing 10 pendrol clips and two SAB were recovered. Accused disclosed that the plastice katta was sold to him by a boy who he do not know and the SAB was sold to him 20 days back by feriwala. SI Uttam Sharma PW4 sealed the case property with seal of US and seized the same and accused was arrested vide memo Ex. PW4/A. Confessional statement Ex. PW4/B was also recorded. The shop was released on supardari vide Ex. PW4/C. Site plan Ex. PW4/D was also prepared by PW4.
4. Ct Raj Singh PW5, Ct Manoj Kumar PW8 and Ct Sripal Singh PW10 also gave their testimonies on the same lines as given by SI Uttam Sharma PW4.
5. Shashi Bhushan Kumar PW1 stated that on 22.01.2013, he examined the case property i.e 10 pendrol clips produced by ASI Ram Rattan Meena and and opined the property to be railway property. The detailed verification report Ex. PW1/A.
6. Nihal Singh Meena PW2 stated that on 23.01.2013, he examined the case property i.e 02 SAB produced by ASI Ram Rattan Meena and and opined the property to be railway property. The detailed verification report Ex. PW2/A.
7. Suhail Ahmad SSE/P-way/SSB PW3 issued theft memo Ex. PW3/A on an information of key man regarding missing of 10 pendrol clips from pole No. 2005A, shunting neck No. 5, SSB Yard on 22.12.2012.
8. ASI Ram Rattan Meena PW6 carried out further enquiry and recorded statement of witnesses and got the case property verified. After completion of enquiry, PW6 filed complaint Ex. PW6/A.
9. HC D.K. Jha PW7 was the rojnamcha writer and was on guarding duty. He deposed that on 21.12.2012, SI Uttam Sharma, Ct Manoj Kumar , Ct Raj Singh and Ct Sripal produced accused Raj Kumar and case U/s 3 RP (UP) Act was registered vide DD Ex. PW4/E.
10. SI Manoj Kumar PW9 produced the copy of crime register, case property register and Dds vide Ex. PW9/A and Ex. PW9/B.
11. Ct R.K. Rathee PW11 was the DD writer on 23.01.2013 and produced the relevant malakhana enteries regarding taking out of case property from malkhana for verification and redepositing the same after verification which is Ex. PW11/A.
12. HC Subhash PW12 was the DD writer on 22.01.2013 and made DD Ex. PW12/A regarding verification of case property by SSE.
13. After completion of prosecution evidence, the statement of the accused was recorded under the mandate of Section 313 r/w 281 Cr.P.C wherein he tendered explanation that he has been falsely implicated in this case and nothing as alleged was recovered from his possession.
14. The Hon'ble Supreme Court has laid down the law in precedents titled as State of Maharashtra v. Vishwanath Tukaram Umale [AIR 1979 SC 1825] and also in Om Prakash v. State of UP [AIR 2008 SC 1112], that the following ingredients need to be established by the prosecution in such cases to establish the guilt of the accused:
(i) the property in question should be railway property,
(ii) it should reasonably be suspected of having been stolen or unlawfully obtained, and
(iii) it should be found or proved that the accused was or had been in possession of that property.
15. The property allegedly recovered from the accused in this case are pendrol clips and two SAB. This hardware are exclusively used by railways to fasten slippers with tracks. Pendrol clips cannot be put to any other use. Further, Nihal Singh Meena has mentioned in his report Ex. PW2/A that two SAB were railways property, not available in open market. This witness has not been cross-examined to dispute that property in question is railways property. Thus, it stands proved that property in question is railways property.
16. The next question this Court has been called upon to decide is to whether the property was recovered from the possession of the accused or not.
17. As per the case of the prosecution, accused was arrested at 15.10 hour. The site plan Ex. PW4/D would show that the place of apprehension is a residential area. SI Uttam Chand PW4 has stated that he asked the shopkeepers to join the search but all refused.
18. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we.....".
19. It was held by Hon'ble Delhi High Court in the CRL. L. P. 182 of 2013 in the matter of RPF VS. Raju that;
"........ it may not be possible for the RPF to associate public witnesses at the time of apprehension of the accused, given the hour of the day when such arrest takes place. Nevertheless, there must be contemporaneous entries made in the records maintained by the RPF to indicate that an attempt was made to associate public witnesses. In other words, the requirement of associating public witnesses must not be treated as a mere formality. It must not be presumed by the RPF in every case that the requirement can be dispensed with".
Moreover, it was further held that "Where there are no public witnesses involved, a trial Court is bound to view with suspicion the confessional statement made by an accused in the presence of the RPF officers.
During cross-examination, SI Uttam Sharma stated that he asked certain persons to join search but they refused and no notice was given to them. PW4 also failed to tell the names and addresses of the shopkeepers who were asked to join in the search. He also admitted that the he did not ask anyone in the nearby shops to become witness of the search. He also admitted that Satish Bhardwaj, to whom the shop was handed over was not made a witness of search. The prosecution witnesses have not explained the reasons for non-joining of independent witnesses despite their availability. There is nothing in the statements of the RPF officials which may suggest that IO had made sincere efforts to join the public person in the investigation. This fact would affect the case of prosecution.
20. Chapter 22 rule 49 of the Punjab Police Rules, provides that;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered: (c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
21. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution".
All the recovery witnesses i.e SI Uttam Sharma PW4, Ct Raj Singh PW5, Ct Manoj Kumar PW8 and Ct Sripal Singh PW10 have failed to produced any departure entry. This fact raise doubt on their presence at the spot.
22. As per the prosecution, the shop from where the recovery was effected was belonging to one Satish Bhardwaj. After recovery, the possession of the said shop was handed over to him. If the shop was belonging to Satish Bhardwaj, it was mandatory for the investigating officer to cite Satish Bhardwaj as a witness in order to establish that the shop was rented out or the possession of the same was otherwise handed over to the accused. However, neither Satish Bhardwaj has been cited as witness nor any document showing that accused had obtained the possession of the shop as a tenant or otherwise has been produced on record. Thus, the prosecution has failed to prove that the shop from where the alleged recovery was effected, was belonging to the accused.
23. Further, chances of prejudice could not be ruled out as the person (SI Uttam Sharma PW4) who made the recovery from the accused also arrested the accused and conducted the entire investigation.
It is pertinent to mention here that all the above documents were prepared by the said official in violation of procedure prescribed for inquiry under Appendix VIII (purporting to be Railway Board's order no. 73- See.Spl/Regn/Ch.XXV dated 09.07.1975) as annexed with a publication namely "Hasan Askari's Railway Property (Unlawful Possession) Act, 1966 together with Railway Protection Force Act and Rules Revised by Vijay Malik, LLB., M.B.A." published by Eastern Book Company, Lucknow, reprinted 2000, page 283, RPF Rule 7 of the said procedure prescribes the preparation of a recovery memo only by the apprehending officer. The rest of the enquiry as envisaged u/s 8 of the Act is to be conducted by the enquiry officer and not the officers who apprehended the accused red handed.
24. In this matter, almost entire inquiry has been carried out by SI Uttam Sharma PW4 who was also the member of the arresting party. A major part of documentation was carried out by the same RPF Official who allegedly arrested the accused red handed. This Court is of the considered opinion that chances of prejudice to the accused persons could not be ruled out in view of the fact that conduct of the RPF is in blatant violation of the prescribed procedures. On account of this reasons also, the recoveries allegedly made from the accused could not be believed by this court.
25. In view of the above mentioned observations, this Court is of the considered opinion that prosecution fails to prove the charges against the accused beyond any reasonable doubt as not only the recovery of the case property is clouded with doubts, even the procedural requirements have not been complied with by RPF without any justification as discussed in the preceding paragraphs. It is a settled legal preposition that in case of doubt, benefit shall be given to the accused.
26. In case titled Pratap Vs State AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that:
"The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded".
27. In case titled Surender Kumar & Anr Vs The State, 2007 (2) JCC 1003 it has been observed by Hon'ble High Court of Delhi that:
"Benefit of doubt-where there is a reasonable doubt and when two incredible versions confront the court, the court should give benefit of the doubt to the accused and it is not safe to sustain conviction".
28. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof is not preponderance of probabilities but proof beyond all reasonable doubts. It is well settled legal preposition that the benefit of doubt goes in favour of accused. Under the circumstances, it would not be safe to convict the accused merely on the basis of testimonies of the RPF officials. Hence, accused Raj Kumar Aggarwal is acquitted on the basis of benefit of doubt.
File be consigned to Record Room after due compliance.
BABRU Digitally signed
by BABRU BHAN
ANNOUNCED IN THE OPEN
COURT IN 06.07.2018 BHAN Date: 2018.07.07
15:34:02 +0530
(BABRU BHAN)
METROPOLITAN MAGISTRATE-07
TIS HAZARI COURT/DELHI