Delhi District Court
Criminal Case/82/2011 on 24 August, 2012
IN THE COURT OF METROPOLITAN MAGISTRATE-12,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Vicky @ Takkar
FIR No. 82/2011
Police Station : Chhawla
Under Section : 379/411 I.P.C.
Unique Case ID Number: 02405R0110772012
Date of institution : 12.01.2012
Date of reserving : 24.08.2012
Date of pronouncement: 24.08.2012
JUDGMENT
a) Serial number of the case 16/01/12
b) Date of commission of offence 21.11.2011
c) Name of the complainant Sh. Anil Yadav
d) Name, parentage and address Vicky @ Takkar
of the accused S/o Sh. Narain
R/o Back side of R.P. School,
K-3 Block, Mohan Garden,
Uttam Nagar, New Delhi.
e) Offence complained of 379/411 IPC
State v. Vicky @ Takkar
FIR No. 82/2011 P.S.: Chhawla Page 1 of 17
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 24.08.2012
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Vide this judgment the accused is being acquitted of the offence punishable under Section 411 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in this case FIR No. 82/2011 Police Station Chhawla by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 21.11.2011 at Sector 9 Metro station, Dwarka, New Delhi, the accused was found in possession of one black coloured motorcycle bearing No. DL 4S-BT 5683 make Bajaj Pulsar, theft of which took place on 27.04.2011 between 09.30 p.m. to 10.00 p.m. from in front of Taj Mahal Dhaba, Deen Pur Mor, Najafgarh Road, New Delhi, within the jurisdiction of police station Chhawla, from the possession of the complainant Sh. Anil Yadav, which the accused retained in his possession knowing or having reason to believe the same to be stolen property.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 2 of 17 as 'Cr.P.C.') was filed and the accused was consequently summoned.
4. The case was received by way of transfer by this Court on 14.03.2012.
CHARGE
5. Vide order dated 30.01.2012 passed by the learned predecessor of this Court, charge for the offence under Section 411 I.P.C. was framed against the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
6. Vide order dated 26.06.2012, in compliance with the provisions of Section 294 Cr.P.C., the accused was called upon to admit or deny the genuineness of the FIR No. 82/2011 police station Chhawla, which was admitted by the accused and was accordingly exhibited as Ex. P/A/1. In view of the admission made, the evidence of duty officer lady Head Constable Saroj was dispensed with.
EVIDENCE OF THE PROSECUTION
7. The prosecution in all examined six witnesses. PW-1 Assistant Sub-Inspector Paras Kumar is the first Investigating Officer. He stated that on 27.04.2011, upon receipt of DD No. 40A Ex. PW1/A, he alongwith Constable Rajinder reached at the place of incident i.e. in front of Taj Mahal Dhaba, Deenpur Mor, Najafgarh Road. He stated that the complainant was however not found there and he made a call on the mobile phone of the complainant Shri Anil Yadav, who stated State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 3 of 17 that he had gone somewhere in connection with some urgent work and would give his statement on the next morning. He stated that the call was accordingly kept pending. PW-1 deposed that on 28.04.2011, the complainant Shri Anil Yadav came to the police station and he recorded the statement of the complainant Mark 'A' which was endorsed by him at point 'A'. He prepared tehrir Ex. PW-1/B and presented the same to the Duty Officer for registration of the case. He stated that further investigation was marked to PSI Lokesh. PW-2 Head Constable Vinod stated that on 21.11.2011 at about 6.00 p.m., a secret informer met him at AATS Office, Sector 16A, Dwarka and informed him that a person by the name of Vicky @ Takkar would come to Sector 9, Metro Station, Dwarka, at about 07.00/8.00 p.m. alongwith a stolen motorcycle to meet his friend and that if raid is conducted, he could be apprehended. He stated that he accordingly informed Inspector Ranjeet Singh Dhaka, who constituted a raiding party consisting of Sub-Inspector Jitender Dagar, Head Constable Vijay Meena, Head Constable Manoj and Constable Hawa Singh. He stated that he prepared DD No.5 Ex. PW-2/A and thereafter they left for Sector-9, Dwarka Metro Station in civil uniform in a private vehicle alongwith the secret informer. He stated that on way at Sector-8, in front of DTC Depot, he requested five to six public persons to join the investigation but none agreed and left without disclosing their names and addresses. He stated that they reached the red-light, Sector-9, Metro Station and took their positions. As per PW-2, at about 8.00 p.m., one black coloured motorcycle bearing No. DL4S BT5683, Bajaj Pulsar, came from the side of Sector-8, Red light and they stopped the State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 4 of 17 same at the instance of the secret informer. Upon enquiry, the name of the motorcyclist was revealed to be Vicky @ Takkar. He stated that he asked the motorcyclist to produce the documents in respect of the motorcycle, however, he failed to do so. He stated that there was no key on the motorcycle. PW-2 deposed that he checked the chasis number and engine number and upon enquiry it was revealed that the said motorcycle is stolen property of case FIR No. 82/11, under Section 379 IPC, Police Station Chhawla and he accordingly seized the said motorcycle under Section 102 Cr.P.C. He stated that he arrested the accused vide memo Ex. PW-2/C, conducted his personal search vide memo Ex. PW-2/D and recorded his disclosure statement in respect of the present case Ex. PW-2/E. He stated that thereafter they went to the police station Chhawla alongwith the accused as well as the aforesaid motorcycle and the case property, seizure memo and personal search recovery of the accused were deposited in the malkhana. He stated that thereafter they came back to their office alongwith the accused and he prepared DD No. 7 Ex. PW-2/F in his own handwriting. He stated that on 22.11.2011, he prepared kalandra under Section 41(1)(d) Cr.P.C. Ex. PW-2/G and intimated the investigating officer of the present case, who recorded his statement. He correctly identified the accused and the case property in court. PW-3 Constable Rajinder Singh is the police official who had accompanied PW-1 to the place of the incident on 27.04.2011. He deposed in line with PW-1. PW-4 Constable Hawa Singh is also one of the recovery witnesses and member of the raiding party. He deposed on the lines of PW-2. PW-5 Constable Sanjay is the police State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 5 of 17 official who had joined the investigation alongwith the Investigating Officer on 22.11.2011. He stated that on that day, he alongwith the Investigating Officer went to the office of AATS, Sector-16, Dwarka, from where the Investigating Officer collected documents pertaining to the case from Head Constable Vinod and recorded his statement under Section 161 Cr.P.C. He stated that from there they went to Dwarka court and the Investigating Officer moved an application for arrest of the accused before the learned Metropolitan Magistrate and arrested the accused vide arrest memo Ex. PW-5/A with the permission of the court. He identified the accused in the court. He stated that the Investigating Officer conducted personal search vide memo Ex. PW-5/B and recorded his disclosure statement Ex. PW-5/C. He stated that the Investigating Officer recorded his statement. PW-6 Sub-Inspector Lokesh is the Investigating Officer. He deposed that he alongwith the complainant reached the spot i.e. Taj Mahal Dhaba, Deenpur Mor, Main Najafgarh Road, where at the instance of the complainant he prepared site plan Ex. PW-6/A. He stated that despite search, the accused and case property could not be found. He deposed that on 22.11.2011, he received an information from AATS, South West District, regarding recovery of the case property of the present case and thereafter the case was re-opened. He stated that he alongwith Constable Sanjay went to the office of AATS, South West District from where he collected the relevant documents and recorded the statement of the witnesses. He stated that on the same day, he obtained permission from the court for interrogation and arrest of the accused and arrested the accused vide arrest memo Ex. PW-5/A. He State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 6 of 17 conducted personal search of the accused vide memo Ex. PW-5/B and recorded his disclosure statement Ex. PW-5/C. He correctly identified the accused in the court.
STATEMENT / DEFENCE OF THE ACCUSED
8. In his statement recorded under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he was lifted from his house and that he had been falsely implicated in the present case. The accused did not lead any evidence.
ANALYSIS AND FINDINGS
9. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. L.S. Gautam, Advocate, learned legal aid counsel for the accused have been considered.
10. In order to bring home the guilt of the accused in respect of the offence under Section 411 I.P.C. charged against him, the prosecution was required to prove the following:
i) that the motorcycle bearing No. DL 4S-BT 5683 make Bajaj Pulsar is stolen property;
ii) that the accused had dishonestly received or retained the aforesaid motorcycle; and
iii) that the accused knew or had reason to believe the said motorcycle to be stolen property.
State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 7 of 17
i) Re: Whether motorcycle bearing No. DL 4SBT-5683 is stolen property?
11. "Stolen property" has been defined under Section 410 I.P.C. as under :
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
12. In the instant case, it has been alleged that the motorcycle bearing No. DL 4SBT-5683 was stolen from the possession of complainant Sh. Anil Yadav on 27.04.2011 between 09.30 p.m. and 10.00 p.m. from infront of Taj Mahal Dhaba, Deenpur Mor, Najafgarh Road, New Delhi. In order to prove the said alleged fact of theft as aforesaid, the prosecution had cited the complainant Sh. Anil Yadav as a witness. Several opportunities were granted to the prosecution to trace/serve the complainant/PW Sh. Anil Yadav. The complainant has however remained untraceable. Despite repeated attempts, the complainant/PW Sh. Anil Yadav could not be served. Accordingly, prosecution did not examine the complainant Sh. Anil Yadav. In the absence of examination of the complainant as a witness, the prosecution has failed to prove the complaint/statement of the complainant Mark A and, therefore, the fact of theft of the motorcycle bearing No. DL 4SBT-5683. Learned Assistant Public Prosecutor for State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 8 of 17 the State had urged that the prosecution has established that the aforesaid motorcycle has been stolen by virture of the fact that the FIR Ex. P/A/1 stands admitted and hence proved. By way of admission regarding FIR Ex. P/A/1, the accused had merely admitted the genuineness of the same but not the allegations contained therein. The said FIR had been recorded on the basis of rukka prepared upon the complaint Mark A, which has not been proved on account of the failure of the prosecution to examine the complainant. Thus, no merit is found in the aforesaid submission of the learned Assistant Public Prosecutor for the State.
13. Moreover, in the absence of the complainant having been examined by the prosecution, and test identification parade in respect of the motorcycle bearing No. DL 4SBT-5683 having been conducted, the prosecution has failed to prove that the aforesaid motorcycle, as has allegedly been recovered from the possession of the accused, was the same as had been the subject of the theft alleged in the complaint Mark A.
14. In view of the aforesaid, the prosecution has failed to prove that the motorcycle bearing No. DL 4SBT-5683 as is alleged to have been recovered from the possession of the accused is a stolen property.
15. Though there is no need to dwell upon the remaining essential ingredients, however, the same are nevertheless hereunder being dealt with briefly.
State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 9 of 17
ii) Re: Whether the accused had dishonestly received or retained the motorcycle bearing No. DL 4SBT-5683?
16. To prove the said ingredient, the prosecution had to prove that the accused had received or retained the motorcycle bearing No. DL 4SBT-5683 and that the same was done dishonestly.
17. In order to prove that the accused had received or retained the motorcycle bearing No. DL 4SBT-5683, the prosecution was required to first of all prove beyond reasonable doubt that the said motorcycle was recovered as alleged from the possession of the accused. The same has not been proved by the prosecution beyond reasonable doubt for the reasons to follow.
(a) Re: Absence of public witnesses
18. Evidently, no public witness to the recovery of the motorcycle in question has been either cited in the list of witnesses or examined by the prosecution. In his cross-examination, PW-2 stated that there were a number of public persons at the spot but none agreed to join investigation. Further, PW-4 also admitted that the spot is a public place and public persons were passing by the spot. Thus, as per the prosecution witnesses themselves, the spot was a public place and there were a number of public persons at the spot. The apprehension and recovery were allegedly made at about 08.00 pm. Thus, at the place and time of the alleged recovery of the motorcycle in question and apprehension of the accused, public persons would in all likelihood have been available, as also admitted by the prosecution State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 10 of 17 witnesses.
19. From a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. PW-2 stated that through there were a number of public persons at the spot but none agreed to join investigation. However, he could not tell the description of the persons who refused to join the investigation. Further, there is nothing on record to show that the police party served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. Further, PW-4 stated that he did not ask any person to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by the police party to join public witnesses in the investigation/proceedings regarding recovery of motorcycle.
20. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has, however, not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 11 of 17 person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
21. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 12 of 17
(b) Contradictions in testimony of recovery witnesses
22. While as per DD No. 5 dated 21.11.2011 Ex. PW-2/A the secret informer had informed that the accused Vicky would be coming to meet a friend on the road coming from the side of Sector-9, Metro Station Dwarka, Red light towards Metro Station (without specifying the exact place of meeting), PW-2 deposed that, as per information received from the secret informer, the accused was to come at Sector-9, Metro Station Dwarka.
23. PW-2 stated in his examination-in-chief that they reached at the "red light sector-9, metro station" and took their position, however, as per PW-4, they reached at "Dwarka Metro station, Sector-9" and took their position there.
24. In his cross-examination, PW-2 stated that neither did he prepare any site plan of the spot nor was any site plan of the place of recovery prepared in the present case. However, as per the testimony of PW-4, who is also a recovery witness like PW-2, site plan of the spot was prepared by the investigating officer.
25. As per PW-2, it took them five and a half hours for completion of the investigation. However, as per another recovery witness i.e. PW-4, it took only one and a half hour to complete the investigation. Thus, there is stark difference in the time stated to have been taken for completion of the investigation by the aforesaid recovery witnesses, who had admittedly reached the spot together.
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26. In his cross-examination, while initially PW-2 stated that all the documents of the kalandra were prepared in his own handwriting, he again said that the disclosure statement had been written by Sub-Inspector Jitender Dagar, who however did not affix his signatures on the same. On the other hand, PW-4 stated that he could not tell as to in whose handwriting the disclosure statement Ex. PW-2/E had been prepared. He, however, volunteered that the same had been prepared under the supervision of Sub-Inspector Jitender Dagar. Needless it is to say that it is not the same thing to say that a particular document was written by a person and that it was prepared under the supervision of such person. The aforesaid contradiction in the testimony of the two prime witnesses of the prosecution tends to cast doubt on their presence at the spot at the time of recording of the disclosure statement of the accused.
(c) Absence of site plan of place of recovery
27. No site plan of the place of recovery of the motorcycle in question has been placed on record. Though PW-4 asserted that site plan of the spot was prepared by the investigating officer, both PW-2, i.e. investigating officer in the kalandara, and PW-6, who is the investigating officer in the present FIR, have maintained that they did not prepare any site plan of the place of recovery. PW-6 stated that though he had visited the place from where recovery of the motorcycle had been effected, he did not prepare any site plan. He also stated that he did not collect the site plan, if any, from ATS staff as well. No explanation has been furnished for the failure of the prosecution to State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 14 of 17 place on record and prove the site plan of the place of recovery. In the absence of a site plan of the place of recovery it is difficult to ascertain the place from which the motorcycle in question was allegedly recovered. It is more so since there is contradiction in the testimony of prosecution witnesses as to the place where the accused was expected to be meeting his friend as per information received from secret informer as also the place where the raiding party took position and stopped the accused.
(d) Failure to cite/examine all recovery witnesses
28. As per the testimony of both PW-2 and PW-4, the raiding party had consisted of three other police officials besides themselves. However, the prosecution preferred to cite and examine only two, i.e. PW-2 and PW-4, out of the five recovery witnesses. No justification has been shown for the failure of the prosecution to cite or examine the remaining three recovery witnesses namely Sub-Inspector Jitender Dagar, Head Constable Manoj and Head Constable Vijay Singh.
29. Further, while as per PW-2 and PW-4, besides them there were three other police officials who were members of the raiding party and had witnessed the recovery, the documents allegedly prepared at the place of recovery namely the seizure memo of motorcycle Ex. PW-2/B, disclosure statement of accused Ex. PW-2/E, arrest memo Ex. PW-2/C and personal search memo Ex. PW-2/D do not bear the signatures of any of the said police officials namely Head Constable Vijay Singh, Head Constable Manoj and Sub-Inspector State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 15 of 17 Jitender Dagar. Same casts serious doubt on the presence of the said witnesses at the spot during investigation.
30. In view of the aforesaid, the prosecution has failed to prove beyond reasonable doubt that the accused was found in possession of the motorcycle in question as alleged. It has accordingly failed to establish that the accused had received or retained the aforesaid motorcycle, much less with dishonest intention.
iii) Re: Whether the accused knew or had reason to believe the motorcycle bearing No. DL 4SBT-5683 to be stolen property?
31. The prosecution has failed to lead any evidence to show that the accused either knew or had reason to believe the motorcycle in question to be stolen property. Further, there was a long gap between the date of the alleged theft, i.e. 27.04.2011, and the date of the alleged recovery of the motorcycle from the possession of the accused, i.e. 21.11.2011, and hence no adverse presumption can be drawn against the accused.
32. In view of the aforesaid detailed discussion, the prosecution has failed to bring home the charge under Section 411 I.P.C. against the accused. The accused is entitled to the benefit of doubt and to be accordingly acquitted of the offence punishable under Section 411 I.P.C.
CONCLUSION
33. Accordingly, the accused is acquitted of the offence punishable under Section 411 I.P.C.
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34. File be consigned to record room.
Announced in open Court on 24.08.2012.
(MANIKA) Metropolitan Magistrate-12 (South-West), Dwarka Courts, New Delhi 24.08.2012 State v. Vicky @ Takkar FIR No. 82/2011 P.S.: Chhawla Page 17 of 17