Delhi District Court
In Anoop Joshi vs State, 1992 (2) C.C. Cases 314 (Hc), ... on 29 November, 2012
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 85 OF 2007
POLICE STATION: CHANAKAYA PURI
U/S: 379/411 IPC
IN THE MATTER OF
STATE
VS
NITIN
S/o Late Sh. Jagdish Kumar
R/o House No. 6, Kapurthala house Maan Singh Road, New Delhi
Date of institution:15.04.2008
Date of reserving Judgement/Order:29.11.2012
Date of Pronouncement of Judgement/Order:29.11.2012
Final Order:Acquitted
Brief statement of reasons for such decisions :
1.The case of the prosecution in brief is that on 15.04.2007 at about 8 AM in the area of British School, Chanakaya Puri, a theft of mobile phone model 6270 make FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 1 of 18 Nokia described in the memo Mark X belonging to complainant was committed. On 21.06.2007 in the area of PS Tuglak Road, the accused was found in possession of said stolen mobile phone model No. 6270 make Nokia belonging to the complainant which the accused retained or received knowing to be stolen property and hence he committed an offence u/s 411 IPC.
2. Charge sheet in the matter was filed for the offences u/s 379/411 IPC. Cognizance was taken by my Ld. Predecessor. Charge for the offence U/s 411 IPC was settled against the accused Nitin by my Ld. Predecessor on 01.10.2008 to which he pleaded not guilty and claimed trial.
3. Prosecution has examined as many as 6 witnesses in support of its case.
(i) The prosecution has examined HC Tara Chand, DO as PW 1. He proved the FIR No. 85/07 on the basis of rukka brought by SI C.L. Meena as Ex. PW 1/A and entry on rukka as Ex. PW 1/B. He identified his signature's on both memo's at Point A.
(ii) The prosecution has examined HC Ranvir Singh as PW 2. He deposed (as recorded) that on 21.06.2007, he alongwith Ct. Hawa Singh and Ct. Rajesh were on area patrolling duty. At about 05.40 PM, a secret informer informed them that a young boy standing at bus stand Vayu Bhawan was having a stolen mobile in his possession. He stated that if raided the said boy can be apprehended. They requested four or five public persons to join the raiding party but they left the spot giving their genuine excuses and FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 2 of 18 without giving their names and addresses.
He further deposed that he prepared the raiding party with his colleague staff Ct. Hawa Singh and Ct. Rajesh and reached bus stop Vayu Bhawan and on the pointing out of secret informer they caught the accused, Nitin, whose name and address was revealed after inquiry. One mobile phone make Nokia was recovered from his right hand. He further deposed that they opened the mobile and checked the EMI number of the said mobile phone which was 357579006178398. He further deposed that they inquired about the ownership of the said mobile phone and asked him to produce the documents regarding this but accused failed to satisfy them.
He further deposed that after proper inquiry he disclosed that he has stolen a black bag from Football Ground of British School about two months back in which the said mobile phone was also kept with other articles. He further disclosed that the said bag with other articles were kept in his house. So they inquired regarding the stolen bag from PS Chanakaya Puri through telephone and it was revealed that the said bag was stolen from area of PS Chanakaya Puri on which a case FIR No. 85/07 U/s 379 IPC was already registered.
He further deposed that thereafter he prepared a tehrir Ex. PW 2/A bearing his signature at point A and he got registered the FIR No. 133/07 in PS Tuglak Road U/s 411 IPC and investigated the case and during investigation he took the possession of said mobile phone vide seizure memo Ex. PW 2/B bearing his signature at point A and he also recorded the disclosure statement of accused vide memo Ex. PW 2/C bearing his signature at point A and after that he prepared the site plan Ex. PW 2/D bearing his signature at point A. He further deposed that the accused pointed out the spot of occurrence which was Ex. PW 2/E bearing his signature at point A. He further deposed that they also visited H.No. 6, Kapurthala House, Man Singh Road (Residence of accused Nitin) where they recovered the said stolen black bag on the instance of accused. From the said bag they found one pair of shoe and a tshirt FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 3 of 18 make addidas and some other articles which were seized vide memo Ex. PW 2/F bearing his signature at point A. After that he arrested the accused and conducted his personal search vide memo Ex. PW 2/G and Ex. PW 2/H respectively. He identified his signature's on the same at point A. He further deposed that he also recorded the statement of Ct. Hawa Singh and Ct. Rajesh U/s 161 Cr. PC and deposited the seized case property at Malkhana PS Tuglak Road. He further deposed that SI C.L. Meena, IO of case FIR No. 85/07 from PS Chanakaya Puri inquired regarding the incident and took the photocopies of the relevant documents and recorded his statement. He identified the accused, who was present in the court. He further deposed that he could identify the case property if shown to him.
The case property i.e. one Black bag was brought by MHCM which was containing other case properties. The case property i.e. Black bag was opened and its articles i.e. Adidas TShirt, one pair of shoe make Max Air Triax and a mobile phone make Nokia Model 6270 with EMI No. 357579006178398 with battery No. LION 0670400363563 L523511001500 were shown to witness, which he identified correctly. The case property was Ex. P1 collectively.
In his cross examination by Ld. Defence Counsel, PW 2 deposed that there was no certain duty hours in AATS. His duty area was whole New Delhi District. He deposed that he does not remember the exact time when they proceeded for patrolling. He further deposed that Ct. Hawa Singh and Ct. Rajesh were with him at the time of patrolling. They were on two motorcycle's while patrolling. He further deposed that he did not remember the number of motorcycle on which he was patrolling. They were standing near Boat Club. The same was side of the boat club chowki, when they got the information. He further deposed that they had immediately informed their Senior regarding this information through telephone at AATS office. He further deposed that the AATS office was situated at Parliament Police Station premises. When he prepared the raiding party, they were not in police uniform.
FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 4 of 18
He admitted that the Boat club road was busy road. There was one bus stand between Chowki and Rail Bhawan. He further admitted that persons were standing at the bus stand, however, no written notice was given to public persons to join the raiding party. He could not remember what the accused was wearing at the time of raid. It was the month of June. He checked the mobile phone and thereafter he came to know the EMI number of the mobile phone. He further deposed that he remained at the spot for about two and a half hour. No passersby inquired any anything when they were interrogating the accused.
He further deposed that after one hour of the apprehension of accused, Ct. Hawa Singh went to PS Tuglak Road for registration of FIR. He further deposed that he made the rukka. Ct. Hawa Singh took about one or one hour and fifteen minutes from leaving the spot to coming back to the spot for registration of FIR. After that they remained at the spot for about one hour and fifteen minutes. He conducted personal search of the accused after arrest. He further deposed that three police person alongwith accused reached the residence of accused about 09.00 PM. They did not inform any neighbour of the accused about his act. He could not remember whether he had put any seal or not on the bag when they seized it.
He further deposed that he did not remember whether he took signatures of any members of family of accused or any other neighbour during the recovery of bag. He further deposed that he did not remember in whose hand he handed over the bag but it was some Ct. He could not tell the timing how long they stayed in the house of accused at the time of recovery of case property. He further deposed that both the Ct.s were with him at the time of the recovery. He admitted that the recovered mobile was the same which was recovered from the hand of the accused which he had stolen from the area of PS Chanakaya Puri. He could not remember the time when they went to the spot of occurrence i.e. Football ground of British School, Chanakaya Puri. He further deposed that he had not prepared any pullanda of the mobile during the seizing process. He could FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 5 of 18 not tell about the exact area of football ground. He prepared the site plan at Vayu Bhawan. He could not tell the exact time for which they stayed at the football ground. He denied the suggestion that accused was falsely implicated in this case and the said recovery was planted. He denied the suggestion that he was deposing falsely.
(iii) The prosecution thereafter examined Ct. Rajesh Kumar as PW 3. He deposed (as recorded) that on 21.06.2007, he alongwith Ct. Hawa Singh and HC Ranvir Singh were on patrolling duty. He further deposed that when they reached near PP Boat Club at about 05.40 PM, a secret information was received that one boy was standing near Vayu Bhawan bus stand having one stolen mobile phone. He further deposed that HC Ranvir Singh requested four to five public persons to joint the investigation but all the public person refused to join the investigation showing their difficulties. He further deposed that then a raiding party was organized consisting of Ct. Hawa Singh, HC Ranvir Singh and himself, without delaying the time and they reached near bus stand of Vayu Sena Bhawan.
He further deposed that on pointing of secret informer, one boy was apprehended who was having one Nokia mobile phone. On inquiry from the said boy about the mobile phone, no satisfactory reply was given by the boy and he was apprehended by them. He further deposed that accused, Nitin, present in the court made a disclosure statement vide memo Ex. PW 2/C bearing his signature at Point B. Stolen mobile phone make Nokia was taken into possession by the IO in his presence vide memo Ex. PW 2/A bearing his signature at Point B. Pointing out memo's were Ex. PW 2/E and Ex. PW 2/F bearing his signature at Point B. He further deposed that accused was arrested vide memo Ex. PW 2/G and personal search of accused was also conducted by the IO in his presence both of which were bearing his signature's at Point B. The case property i.e. one Black bag was brought by MHCM which was containing other case properties. The case property i.e. Black bag was opened and its FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 6 of 18 articles i.e. Adidas TShirt, one pair of shoe make Max Air Triax and a mobile phone make Nokia Model 6270 of EMI No. 357579006178398 with battery No. LION 0670400363563 L523511001500 were shown to the witness, which he identified correctly. The case property was exhibited as Ex. P1 collectively.
(iv) HC Sunil Kumar has been examined as PW 4. He produced the register no. 19 in connection with FIR bearing no. 133/07 of PS Tuglak Road. (OSR). He further deposed that entry at Mud Number 964/07 was in connection to FIR No. 133/07, photocopy of the said entry number was Ex. PW 4/A. The case property in question was stolen from the area of PS Chanakaya Puri and a FIR was registered with PS Chanakaya Puri vide FIR No. 85/07 and the said case property was recovered from the area of PS Tuglak Road and an FIR was registered in this regard vide FIR No. 133/07 and the case property was deposited in the Malkhana of PS Tuglak Road.
(v) The prosecution has examined HC Hawa Singh as PW 5. He deposed that on 21.06.2007, he alongwith HC Ranvir Singh and Ct. Rajesh were on area patrolling duty. At about 05.40 PM, a secret informer informed them that a young boy standing at bus stand Vayu Bhawan was having a stolen mobile in his possession. He further stated that if raided the said boy could be apprehended. Therefore, they requested four or five public persons to join the raiding party but they left the spot after giving their genuine excuses and without giving their names and addresses.
He further deposed that HC Ranbir Singh prepared the raiding party with myself and Ct. Rajesh and reached at bus stop of Vayu Bhawan and on the pointing out of secret informer they caught the accused, Nitin, whose name and address was revealed after inquiry. He further deposed that a mobile phone make Nokia was recovered from his right hand. They opened the mobile and checked the EMI number of said mobile phone and it was 357579006178398. He further deposed that HC Ranvir Singh inquired about FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 7 of 18 the ownership of the said mobile phone and asked him to produce the documents regarding this but accused failed to satisfy them.
He further deposed that after proper inquiry he disclosed that he has stolen a black bag from Football Ground of British School for about two months back in which the said mobile phone was also kept with other articles. He further disclosed that the said bag with other articles were kept in his house. So they telephonically inquired regarding the stolen bag from PS Chanakaya Puri and it was revealed that the said bag was stolen from the area of PS Chanakaya Puri on which a case FIR No. 85/07 U/s 379 IPC was already registered.
He further deposed that thereafter HC Ranvir Singh prepared a tehrir Ex. PW 2/A and the case was got registered through him. He came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. HC Ranvir Singh took the possession of said mobile phone vide seizure memo Ex. PW 2/B bearing his signature at point B and he also recorded disclosure statement of the accused vide memo Ex. PW 2/C bearing his signature at point B and after that he prepared the site plan Ex. PW 2/D. He further deposed that accused pointed out the spot of occurrence which was Ex. PW 2/E bearing his signature at point B. He further deposed that they also visited H.No. 6, Kapurthala House, Man Singh Road (Residence of accused Nitin) where they recovered the said stolen black bag at the instance of accused. He further deposed that from the said bag they found one pair of shoe and a tshirt make 'addidas' and some other articles and they seized the same vide memo Ex. PW 2/F bearing his signature at point B. He further deposed that after that HC Ranvir Singh arrested the accused and conducted his personal search vide memo Ex. PW 2/G and Ex. PW 2/H respectively both bearing his signature at point B. He further deposed that HC Ranvir Singh also recorded the statement of witnesses and deposited the seized case property at Malkhana PS Tuglak Road. He further deposed that accused was medically examined and sent to JC. He identified the FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 8 of 18 accused was present in the court.
The case property i.e. one Black bag was brought by MHCM which was containing other case properties. The case property i.e. Black bag was opened and its articles i.e. Adidas TShirt, one pair of shoe make Max Air Triax and a mobile phone make Nokia Model 6270 of EMI No. 357579006178398 with battery No. LION 0670400363563 L523511001500 were shown to the witness, which he identified correctly.
In his cross examination by Ld. Defence Counsel, PW 5 deposed that there was no certain duty hours in Special Staff. He could not remember the exact time when they proceeded for patrolling. He further deposed that HC Ranvir Singh and Ct. Rajesh were with him at the time of patrolling. They were on two motorcycle's while patrolling. He could not remember the number of motorcycle on which he was patrolling. When HC Ranvir prepared the raiding party, they were not in police uniform.
He admitted that the Boat club road was busy road. There was one bus stand between Chowki and Rail Bhawan. He further admitted that some public persons were standing at the bus stand however HC Ranvir Singh had not given any written notice to public persons to join the raiding party. He could not remember what the accused was wearing at the time of raid. It was the month of June. No passersby inquired anything when they were interrogating the accused.
He further deposed that after one hour of apprehension of the accused, he went to PS Tuglak Road for registration of FIR. He further deposed that HC Ranvir Singh prepared the rukka. he took about one or one hour and fifteen minutes from leaving the spot and coming back to the spot for registration of FIR. He further deposed that after that they remained at the spot for about one hour and fifteen minutes. HC Ranvir Singh conducted the personal search of accused after arrest. He further deposed that three of them alongwith accused reached the residence of accused at about 09.00 PM. They did not inform any neighbour of the accused about his act. He could not remember whether FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 9 of 18 HC Ranvir Singh had put any seal or not on the bag when they seized it.
He further deposed that he does not remember whether HC Ranvir Singh took signatures of any members of family of accused or any other neighbour during the recovery of bag. He admitted that the recovered mobile was the same which was recovered from the hand of the accused which he had stolen from the area of PS Chanakaya Puri. He could not remember the time when they reached the spot of occurrence i.e. the Football ground of British School, Chanakaya Puri. He deposed that he cannot tell about the exact area of the football ground. He could not tell the exact time for which they stayed at the football ground. He could not remember the physical description of the informer. He could not remember as to whether after the recovery, he had carried the bag to the PS. He denied the suggestion that he had not participated in the investigation of the present case. He further denied the suggestion that accused was falsely implicated in this case and the said recovery was planted. He further denied the suggestion that he was deposing falsely.
(vi) The prosecution has examined SI C.L. Meena as PW 6. He deposed that on 16.04.2007, Mr. Daniel Shepherd, complainant, gave him a written complaint Ex. PW 6/A at PS Chanakaya Puri. He made endorsement Ex. PW 6/B bearing his signature at point B on Ex. PW 6/A and on the basis of Ex. PW 6/A he recorded the present FIR. He further deposed that during the course of investigation HC Rambir, AATS / NDD informed that one accused namely Nitin has been arrested with case property in another case FIR of PS Tughlak Road. On the said information, he moved an application before the Hon'ble Court to issue production warrants against the accused and after obtaining the permission of the Court accused was formally arrested vide memo Ex. PW 6/C and sent to JC. He further deposed that case property was transferred from PS Tughlak Road to PS Chanakaya Puri. Thereafter, statements of witnesses were recorded. He further deposed that after completion of the chargesheet, he filed the chargesheet in the matter FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 10 of 18 before Hon'ble Court.
In his cross examination by Ld. Defence Counsel, he deposed that he has not taken any document pertaining to the ownership of the mobile phone. He had prepared the site plan at the instance of complainant at the spot. He admitted that site plan did not bear the signatures of complainant. He further deposed that he does not remember whether he had recorded the statement of complainant after preparing the site plan. The case property was transfered from PS Tughlak Road to PS Chanakaya Puri through Road Certificate. He further deposed that he has not sent the notice to the complainant since he was a diplomat, however, he had personally visited the embassy but he had already left for his country. He also admitted that he has not given any notice to the complainant through MEA.
He denied the suggestion that he had not properly investigated the matter. He further denied the suggestion that he was deposing falsely.
4. No other PW was examined in PE and PE hence was closed and the matter was fixed for statement of accused u/s 313 Cr. PC.
5. Statement of accused u/s 313 Cr. PC recorded separately wherein it was put to him that on 21.06.2007 in the area of PS Tughlak Road, he was found in possession of one mobile Phone Model No. 6270 make Nokia described in memo mark X belonging to complainant which was stolen on 15.04.2007 at about 08.00 am from the area of British School, Chanakaya Puri, New Delhi, he replied that he has not stolen any mobile phone and it was not found in his possession. He stated that it was a matter of record that PW 1 HC Tara Chand Duty Officer from PS Chanakaya Puri proved on record copy of FIR as Ex. PW 1/A and entry on rukka as Ex. PW 1/B. He further stated that he did not know that PW 2 proved the tehrir as Ex. PW 2/A, seizure memo of stolen mobile phone as Ex. PW 2/B, his disclosure statement as Ex. PW 2/C, site plan as Ex. PW 2/D, pointing FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 11 of 18 out memo of spot of theft / occurrence as Ex. PW 2/E, seizure memo of stolen bag as Ex. PW 2/F, his arrest and personal search memo as Ex. PW 2/G and 2/H. He further stated that he did not know that PW 4 HC Sunil Singh proved the entry at Mud Number 964/07 in connection of FIR No. 133/07 PS Tughlak Road, which was registered in connection of FIR No. 85/07 PS Chanakaya Puri as Ex. PW 4/A. He further stated that he did not know that PW 6 SI C.L. Meena proved on record the written complaint of complainant Mr. Daniel Shepherd as Ex. PW 6/A, endorsement thereupon as Ex. PW 6/B, his formal arrest memo as Ex. PW 6/C. He further stated that he was falsely implicated. He further stated that witnesses who have deposed against him were interested witnesses. He declined to lead DE and DE hence was closed.
6. I have heard the final arguments on behalf of parties and perused the record.
7. Before appreciating the testimony of the witnesses coming on record, I find it relevant to discuss the necessary ingredients of the offences for which the accused has been charged.
Section 411 of Indian Penal Code reads: Dishonestly receiving stolen property Whoever dishonestly receives or retains any stolen property, knowing or having reasons to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
8. In the present case, the prosecution to bring home conviction against the accused has to prove that one stolen mobile in the present case was recovered from the accused. The present FIR was registered on a complaint lodged by Mr. Daniel Shepherd, however, prosecution has failed to examine the complainant in the present matter despite FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 12 of 18 ample opportunities for the same being given. It was the complainant who could have proved the original complaint Ex. PW 6/A.
9. In the absence of the complainant hence original complaint filed on record remains unproved. There is no linking evidence produced on record to connect the accused Nitin with the alleged offence. No witness has been examined in the matter who could have proved that the alleged recovered mobile was the stolen property in the present case.
10. The genesis and origin of the prosecution case is hence, falsified and unreliable. It is well settled that non examination of the material witnesses adversely effects the case of the prosecution and an inference is to be drawn against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution. Further, if despite ample opportunities, the prosecution fails to produce the material witnesses, it calls for an adverse inference against the prosecution case. Further, it is well settled law that non production of the material witness certainly introduced infirmity in the prosecution case. The omission on part of the prosecution to examine complainant is certainly serious and fatal to the case of the prosecution.
11. On perusal of record, it is revealed that the case property in the matter was not seized in a sealed pulanda. The alleged recovery of the bag has not been effected as per provisions of Cr. PC. No public witness has been arrayed by the prosecution despite availability.
12. In this regard, I rely upon the observations made in the following Judgements:
FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 13 of 18 In Anoop Joshi V/s 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 find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
13. Further in case law reported as Sadhu Singh V/s State of Punjab 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 14 of 18 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."
In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW 2.
Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant, to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 15 of 18
14. Further in the present case, it is clear from the record that after the apprehension of the accused but before taking the formal / casual search of the accused police official (s), had not offered their own search to the accused before taking the search of the accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orrisa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under: "The next part of the prosecution case is relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching officer and other assisting him should giver their personal search to the accused before searching the person of the accused. (See AIR 199 SC 53:(1969 Cri. L.J. 279), State of Bihar V/s Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PW 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not inimated to the FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 16 of 18 accused. No independent witness had witnessed the search. In the above permises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated."
15. It has been repeatedly observed by the Higher Courts 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.
16. More over connecting evidence is not placed on record to complete chain of events. No corroborating evidence in the form of DD entries vide which PWs have left the police station for patrolling duty is proved on record. In my opinion the prosecution was under an obligation to prove on record, the DD entries vide which the above said police officials had left the PS to prove the availability of the said witness at the place of apprehension of the accused. Thus, the evidence coming up on record does not inspire confidence of the court. As held in Saifulla Vs. State 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. State 1996 JCC 4097 (Delhi) in such circumstances, benefit of doubt is to be given to the accused.
16. Even the ownership and recovery of the mobile and bags have not been proved on record to show that the same were stolen articles. TIP of the case property has not been conducted.
FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 17 of 18
17. In view of the aforesaid and in the absence of the complainant, the prosecution has failed to prove that the alleged recovered mobile was a stolen property. As observed above, it can be said that search of the accused by police officials was in complete violation of the provisions of Law in this regard and the same can be said to be illegal. The prosecution hence has totally failed to prove its case against accused beyond reasonable doubt's. The accused, hence, stands acquitted. His bail bond stands cancelled. His surety stands discharged.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 29th November, 2012 ) METROPOLITAN MAGISTRATE This Judgment contains 18 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 85 OF 2007 POLICE STATION: CHANAKAYA PURI U/S: 379/411 IPC 18 of 18