Delhi District Court
State vs Abhishek S/O Davinder Kumar on 19 March, 2014
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
FIR No. 236/99
P.S. Shalimar Bagh
Unique ID No. 02401R0053722000
State
Vs.
Abhishek S/o Davinder Kumar
R/o B-19, Raksha Puram (AWHO),
Meerut UP
Date of institution of case: 07.07.2000
Date of reserving the judgment: Not reserved
Date of pronouncement of judgment: 19.03.2014
JUDGMENT
1. Sl. No. of the Case : 436/2/SB 2. Date of Commission of Offence : 21.04.1999 3. Date of institution of the case : 07.07.2000 4. Name of the complainant : Santosh Kumar 5. Name of the accused Abhishek 6. Offence complained or proved : 411 IPC 7. Plea of Accused : "Not Guilty" 8. Final Order : Acquitted 9. Date of Final Order : 19.03.2014 FIR No. 236/99 PS Shalimar Bagh Page 1 of 9 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of prosecution as unfolded by report U/s 173 Cr. PC is that on 21.04.99 at unknown time at Delhi Cantt within the jurisdiction of PS Delhi Cantt accused Abhishek ws found in possession of stolen property namely a maruti car bearing no. DL-6C-1574 belonging to the complainant Sh. Santosh Kumar Mudgal, which he dishonestly received knowing or reason to have believe that same was stolen property. Upon completion of necessary investigation, challan was prepared and filed in court for trial.
2. The copies of charge sheet and annexed documents were supplied to accused in due compliance of Section 207 Cr. P.C.
3. Prima facie case having been made out, charge under section 411 IPC was framed against the accused Abhishek on 15.03.2008. The accused pleaded not guilty to the charges and claimed trial.
4. In order to prove its case, prosecution has examined following witnesses:-
PW-1 Sh. Santosh Kumar deposed that on 31.03.1999 at about 7.15 to 8.15 a.m. his car bearing no. DL-6C-1574 make Maruti green colour was stolen from outside the district park Pitam Pura , near main gate where it was parked. On that day, he went for morning walk after locking his car, when he returned he saw that his car was missing. He called at 100 no. and police arrived. He told them that documents pertaining to the car were kept inside the car. His statement is Ex. PW 1/A. He had shown to the police the place from where the car was stolen. Efforts were made but car was not recovered, later on within one month he was informed by the police that his car has been recovered and same was taken on superdari Ex. PW 1/B. Photographs of the FIR No. 236/99 PS Shalimar Bagh Page 2 of 9 car are mark A and mark B. PW-2 ASI Ram Dhare deposed that on 31.03.1999 he was on emergency duty. Complainant arrived and made complaint about the theft of his car. He recorded his statement Ex. PW 1/A and prepared rukka Ex. PW 2/A and handed over the same to Ct. Naresh for registration of the case. He alongwith complainant reached at the spot. He inspected the spot and prepared the site plan Ex. PW 2/B at his instance. He further deposed that Ct. Naresh arrived at the spot with original rukka and copy of FIR and handed over the same to him.
He recorded statement of the witnesses and searched for the car but in vain. He further deposed that on 03.05.1999 information regarding recovery of the car bearing no. DL-6C-1574 was received from PS Delhi Cant. Accused was arrested vide memo Ex. PW 2/C and co accused persons namely Deepak and Kapil were also formally arrested. He further deposed that case property was obtained from PS Delhi Cantt and was deposited in the malkhana and same was released on superdari vide superdaginama Ex. PW 1/B. He further deposed that after completion of the investigation challan was prepared and filed in the court through SHO. The case property is Ex. P-1. He identified the impugned car in photograph mark A PW-3 ASI Harnam Singh deposed that on 31.03.1999 on receipt of rukka brought by Ct. Naresh sent by HC Ram Dhare he recorded FIR in the present case and proved the same Ex. PW 3/A and endorsement on the rukka is Ex. PW 3/B. PW-4 HC Mange Ram deposed that on 04.06.1999 he recorded DD No. 24 by which SI Ram Niwas informed that accused had been arrested in Delhi Cant in FIR NO. 176/99. He further deposed that DD no. 24 dated 04.06.1999 is not available in their office as the said record had been destroyed as per the order of Addl. (II) N/W Distt. Delhi and the copy of said order is Ex. PW 4/A. PW-5 HC Roshan Lal deposed that on 04.06.99 he joined the FIR No. 236/99 PS Shalimar Bagh Page 3 of 9 investigation alongwith SI Ram Niwas, Ct. Shahzad, Ct. Pushpinder. Accused was arrested in the morning from Gopinath Bazar, Taxi Stand on the instance of Ct. Shahzad. Disclosure statement of accused was recorded in his presence vide memo Ex. PW 5/A. He further deposed that accused pointed out the place from where accused had stolen the Maruti car no. DL-6C-1574 alongwith his associates, pointing out memo Ex. PW 5/B. PW-6 HC Rajeev deposed that he had brought the file of case FIR No. 176/99 u/sec. 411/34 IPC, PS Delhi Cantt, FIR is Ex. PW 6/A. He further deposed that as per the record the FIR No. 176/99 has been canceled by ACP. The copy of the cancelled FIR is mark A. PW-7 Ct. Pushpender deposed that on 04.06.1999 he joined the investigation alongwith SI Ram Niwas. IO arrested the accused at the instance of Ct. Shehzad at Gopinath Bazar, Taxi stand. In the raiding party, he alongwith Ct. Roshan and IO were the member of raiding party. Disclosure statement of accused was recorded vide memo Ex. PW 5/A. Accused pointed out the place from where accused had stolen the car bearing no. DL-6C-1574 alongwith his associates vide memo Ex. PW 5/B. PW-8 HC Shehjad deposed that on 04.06.99 he alongwith HC Desh Raj were on night duty at Thamiya Park police post. At around 7.30 a.m. they found one car bearing no. DL-6C-1574 stationed near Tikona Park and three persons were present near the car. He made the inquiries from you and your associates about their presence and ownership of the car. He further deposed that accused and his associates explained that due to battery failure the car is stationed and two of them went away to get the battery and one of them (accused Abhishek) remained at the spot who claimed to be the owner of the car. The said two persons never returned therefore accused was taken to police station and handed over to the IO. Case was registered and proceedings were conducted. The car was seized vide memo Ex. PW 8/A. FIR No. 236/99 PS Shalimar Bagh Page 4 of 9
5. The prosecution evidence was closed on 22.10.2013. The accused was examined u/s 313 Cr.P.C on 10.03.2014 where he claimed false implication but did not wish to lead defence evidence.
6. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel for the accused persons.
7. The accused Abhishek in the present case is charged for the offence U/s 411 IPC on the facts that on 21.04.99 at unknown time at Delhi Cantt within the jurisdiction of PS Delhi Cantt accused was found in possession of stolen property namely a maruti car bearing no. DL-6C-1574 belonging to the complainant Sh. Santosh Kumar Mudgal, which he dishonestly received knowing or reason to have believe that same was stolen property.
8. The sections 411 IPC are reproduced below for reference:
Section 411. Dishonestly receiving stolen property Whoever dishonestly receives or retains any stolen property, knowing or having reason 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.
9. Stolen property is defined under section 410 IPC which is reproduced below for reference:
Section 410. Stolen Property-
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 designed as FIR No. 236/99 PS Shalimar Bagh Page 5 of 9 "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.
10. To prove the accused guilty, the prosecution was required to prove the following ingredients:
-That the accused retained stolen property i.e. maruti car bearing no. DL-6C-1574 knowing it to be stolen:
-That the property found in possession of accused is the property stolen from the complainant.
11. In the present case the accused is charged for the offence u/sec. 411 IPC for being found in possession of stolen Maruti car bearing no. DL-6C-1574 belonging to the complainant Santosh Kumar. To prove the case the prosecution examined 8 witnesses. PW1 Santosh Kumar is the complainant and owner of the alleged stolen car. PW2 ASI Ram Dhare is the IO of the present case. PW3 ASI Harnam Singh recorded the FIR in the present case. PW4 HC Mange Ram was the DD writer at PS Shalimar Bagh who recorded DD No. 24 on 04.06.1999 regarding arrest of accused Abhishke in FIR 176/99 PS Delhi Cantt. PW5 HC Roshan Lal is the witness of arrest of the accused . PW6 MHC(R) HC Rajiv brought the case file of FIR 176/99, PS Delhi Cantt which as per record has been cancelled by ACP. PW7 Ct. Pushpender is also the witness of arrest and he accompanied IO SI Ram Niwas. PW 8 HC Shehjad is the witness who apprehended the accused with the alleged stolen car.
12. The prosecution story is that the impugned car was stolen on 31.03.1999 outside the District Park, Pitam Pura, Delhi. During investigation one FIR No. 236/99 PS Shalimar Bagh Page 6 of 9 information was received through wireless message on 21.04.1999 that the impugned car has been recovered during checking and the accused Abhishek and Deepak have succeeded in absconding. On 21.04.1999 SI Ram Niwas registered FIR no. 176/99 u/sec. 411 IPC against the two accused persons and on 04.06.1999 SI Ram Niwas arrested the accused Abhishek and produced him in Patiala House Court. Vide DD no. 24 dated 04.06.1999 , PP Pitam Pura was received on which HC Ram Dhare conducted the investigation and arrested the accused Abhishek in the present case on 09.06.1999. The accused Deepak and other accused Kapil Sharma were arrested later during the investigation.
13. The accused Deepak and Kapil were discharged from the present case vide order dated 15.03.2008.
14. As per the prosecution version, HC Shehjad Singh alongwith HC Desh Raj was on night duty at police post, Thamiya Park, Delhi Cantt on 04.06.1999 and at around 7.30 a.m. they found the impugned car stationed near Tikona park and three persons were present near the car. HC Shehjad made enquiries from them and they explained that due to battery failure the car is stationed. Two of them went away and one remained at the spot who claim to be the owner of that car. The other two persons never returned and one of the accused i.e. Abhishek was taken to the PS and was handed over to the IO. This is the statement given by HC Shehjad Singh during his examination in court as PW
8. This deposition of HC Shehjad is contradictory to the contents of the charge sheet which mentions that the impugned car was captured on 21.04.1999 during checking and the accused persons absconded from the spot.
15. HC Shehjad Singh is the main witness in the present case on whose testimony the present case relies. The other witness HC Desh Raj who is named by HC Shehjad Singh in his testimony has not been examined by the FIR No. 236/99 PS Shalimar Bagh Page 7 of 9 prosecution. The statement u/sec. 161 Cr.P.C. of witnesses SI Ram Niwas and the contents of the FIR no. 176/99 also corroborates the fact that on 21.04.1999 the impugned vehicle and on other vehicle no. DL-2CL-3826 was stopped and seized. The defence of the accused is that he was driving the other vehicle DL-2CL-3826 on that day and he was stopped during checking and thereafter he was falsely implicated in the present case. The other vehicle bearing no. DL-2CL-3826 is registered in the name of the father of accused Abhishek. In the present case none of the witnesses deposed that this vehicle was also seized alongwith the impugned vehicle. Rather HC Shehjad Singh deposed that accused was apprehended on 04.06.1999 with the impugned vehicle and he did not mention anything regarding the other vehicle. There is also contradiction regarding the date of recovery and arrest.
16. The evidence on record is insufficient to base the conviction of the accused. The evidence is lacking and the testimony of main witness suffers from material contradictions.
17. Considering the facts and circumstances of the present case, this court is of the view that evidence on record is insufficient to prove the guilt of the accused. The prosecution has failed to prove the case against the accused beyond reasonable doubts and therefore, he is entitled to be exonerated. It is well settled law that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused has a right to maintain silence in the trial. Every accused is to be presumed innocent until proved guilty. The burden of proof on the prosecution is to prove the case by leading cogent, convincing and reliable evidence so as to prove the guilt of accused beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof. Every benefit of doubt goes in favour of the accused. It is a FIR No. 236/99 PS Shalimar Bagh Page 8 of 9 long-settled principle famously expressed by the celebrated English jurist William Blackstone - "better that ten guilty persons escape than that one innocent suffer."
18. In the light of above discussion and observations, the accused Abhishek is hereby acquitted for the offence U/s 411 IPC. Bail bond stands cancelled. Surety discharged. Documents, if any be returned after cancellation of endorsement on the same.
19. File after necessary compliance be consigned to record room.
Announced in open court ( Sushil Anuj Tyagi)
19th day of March, 2014 Metropolitan Magistrate,
Rohini Courts: Delhi
FIR No. 236/99 PS Shalimar Bagh Page 9 of 9