Delhi District Court
State vs . Vijay Etc. on 22 February, 2012
IN THE COURT OF SH. SIDHARTH MATHUR, METROPOLITAN MAGISTRATE,
OUTER07, ROHINI COURTS, DELHI
State Vs. Vijay Etc.
FIR No : 904/98
U/S : 379/411/34 IPC
P.S : Rohini
JUDGMENT
1. S. No. of the Case : 76/02/99
2. Date of Commission of Offence : 15.12.1998
3. Date of institution of the case : 12.06.1999
4. Name of the complainant : Ashok Kumar Gupta
5. Name of the accused, parentage & address :
(1) Vijay S/o Sh. Tarsem Lal R/o F37, Vijay
Vihar, Phase2, Delhi. (already P.O.)
(2) Ranjeet @ Sunil @ Surender S/o Sri
Pal R/o L65, Vijay Vihar, Phase2, Delhi.
(already P.O.)
(3) Somender S/o Sh. Mahender Singh R/o
C65, Vijay Vihar, Phase2, Delhi.
(4) Indu W/o Sh. Sita Ram R/o C74/11F,
Vijay Vihar, Phase2, Delhi.
6. Offence complained or proved : U/s 379/411/34 IPC.
7. Plea of Accused : "Not Guilty"
8. Final Order : Somender & Indu Acquitted
nd
9. Date of Final Order : 22 February, 2012
Brief Facts
1. PW1 Ashok Kumar Gupta (herein after "complainant" in short) had parked his Maruti Car no: DL 3 CA 1104 (herein after "stolen vehicle" in short) outside his residence at F26/110, Sec7, Rohini, Delhi at 10:00 a.m. on 15.12.1998.
When the complainant checked for his aforesaid car at 07:00 p.m. on 15.12.1998, he found his car to be missing whereafter he immediately called the PCR regarding the theft of his aforementioned car. The concerned PCR forwarded the said FIR No. : 904/98 Page 1 of 14 Pages information regarding the theft of the aforementioned car of the complainant to the concerned P.S. via DD No: 29A, whose investigation was assigned to SI Amar Singh (herein after "IO" in short).
2. The IO then reached the residence of the complainant with Ct. Satpal but the complainant was not found there, who was then called to the concerned Police Station where the IO recorded his statement Ex. PW1/A on 16.12.1998 whereafter the rukka Ex. PW4/B was prepared and hence the present FIR Ex. PW4/A was recorded on 16.12.1998 by PW4 HC Satpal Singh.
3. After the registration of the present FIR, the IO visited the spot of the occurrence where he prepared its site plan on 16.12.1998.
When the IO failed to trace the stolen vehicle as well as the thief, he made wireless messages to all the concerned police officials of the country regarding the missing of the vehicle in question.
4. PW3 SI Gulab Singh was on patrolling duty on 14.04.1999 at 04:15 p.m. at Rithala Mod, Sec5, Rohini, Delhi with PW2 Ct. Rajesh, Ct. Jai Prakash and HC Tehel Singh when he got the secret information that all the four accused would cross the Rithala Mod on the said date in the stolen vehicle in question with illegal weapon. PW3 SI Gulab Singh thereafter immediately swung into action to nab the accused persons so as to be prevent them from committing any crime & hence asked 45 passersby to join his investigation but the said passersby refused his requisition and instead left the spot.
In these circumstances, PW3 SI Gulab Singh formulated a raiding party comprising of PW2 Ct. Rajesh, Ct. Jai Prakash & HC Tehel Singh and then installed a check FIR No. : 904/98 Page 2 of 14 Pages point at the said Rithala Mod & started waiting for the arrival of the accused persons.
5. At around 04:30 p.m. on 14.04.1999, all the four accused came to the said check point while travelling in the stolen car in question who were then stopped and searched which resulted in recovery of one illegal button actuated knife from the possession of accused Vijay Kumar (already PO).
The accused persons after failing to satisfactorily explain their possession of the stolen vehicle later revealed during the investigation that the said vehicle was stolen by them few days back. On the recovery of the illegal knife and the stolen car from the accused persons, a separate FIR bearing no: 277/99, P.S. Rohini, U/s 411/34 IPC & 25 Arms Act was lodged against all the four accused.
The disclosure statements Mark B to Mark E of all the four accused was then recorded in the said FIR no: 277/99, P.S. Rohini wherein all the four accused confessed the stealing of the stolen vehicle in question from the possession of the complainant on dated 15.12.1998. The stolen vehicle alongwith its RC, transfer certificate, insurance book and service book etc was seized via Seizure Memo Ex. Mark A. SI Gulab Singh then passed on the information about the apprehension of the accused with the stolen vehicle in question to the IO of the present case on 14.04.1999 itself.
6. The IO of this case then recorded separate disclosure statements of all the four accused on 15.04.1999 after formally arresting them. The IO also prepared the pointing out memo dated 15.04.1999 at the instance of all the four accused showing out the exact place i.e. outside the residence of the complainant, from where they had stolen the vehicle in question.
The stolen vehicle was then released on superdari to the complainant & hence the investigation was completed whereupon the present charge sheet for the offences U/s FIR No. : 904/98 Page 3 of 14 Pages 379/411/34 IPC was prepared against all the four accused.
PreTrial Procedure
7. The aforementioned charge sheet was filed before the court on 12.06.1999 whereupon the cognizance was taken. The provisions of Sec. 207 Cr. P.C. were complied regarding all the four accused on 07.07.1999.
8. After hearing the arguments, all the four accused were charged U/s 379/411 IPC by the Ld. Predecessor of this Court on 24.11.1999 to which all of them pleaded "Not Guilty" and instead claimed trial.
Trial
9. During the course of the trial, accused Vijay was declared as a PO on 31.07.2000 whereafter he was arrested in some other case & hence his presence was secured by this court from judicial custody via Production Warrants. However thereafter again, the accused Vijay stopped appearing on being admitted on bail and hence once again was declared as a PO on 02.03.2006. The accused Vijay thereafter continued to be a PO till date.
Accused Ranjeet also stopped appearing during the course of the trial on being admitted on bail whereafter he was also declared as a PO on 19.02.2001 and he continued to be a PO till date.
The aforementioned circumstances shows that the trial was only contested by accused Somender and Indu only.
10. During the course of the trial, the prosecution had examined 04 witnesses.
FIR No. : 904/98 Page 4 of 14 Pages PW1 Ashok Kumar Gupta was the complainant, who had merely reiterated the contents of his statement Ex. PW1/A during the course of his examination in chief, which are not being repeated as having already been discussed under the heading of "Brief Facts".
The witness was cross examined on behalf of accused Somender & Indu and the same cross examination was also adopted on behalf of accused Ranjeet (already PO) & Vijay (already PO).
11. PW3 SI Gulab Singh and PW2 Ct. Rajesh were the members of the police party, which had recovered the stolen vehicle from the possession of the accused persons on 14.04.1999 in FIR no: 277/99, P.S. Rohini.
PW3 SI Gulab Singh was not cross examined by accused Somender and Indu. PW3 SI Gulab Singh also could not be cross examined by accused Ranjeet & Vijay since the said accused had already been declared as PO by the time of the testimony of PW3 SI Gulab Singh.
PW2 Ct. Rajesh was partly examined in chief on 27.02.2003 whereafter his remaining examination was deferred for want of the case property i.e. the stolen vehicle, but, neither the stolen vehicle, nor PW2 Ct. Rajesh were thereafter produced by the prosecution during the trial and hence the examination in chief of PW2 Ct. Rajesh remained incomplete.
12. PW4 HC Satpal Singh was the Duty Officer at P.S. Rohini on 16.12.1998, who proved the present FIR as Ex. PW4/A being its scriber.
This witness was not cross examined on behalf of the defence.
13. When despite repeated opportunities & old pendency of this case, the prosecution failed to conclude its evidence, the Ld. Predecessor closed the PE on 06.10.2007.
FIR No. : 904/98 Page 5 of 14 Pages Thereafter the separate statements of accused Somender and Indu U/s 281 r/w 313 Cr. P.C. were recorded on 12.01.2010 wherein both the said accused raised the defence of "false implication".
The accused Somender & Indu also an sought opportunity to lead defence evidence, however, their DE was closed on 25.01.2012 after the said two accused failed to lead any defence evidence despite repeated opportunities.
14. In these circumstances, the trial of accused Somender & Indu was concluded whereafter the contesting parties were duly heard.
Facts in Issue
15. In order to prove the offence U/s 379 IPC against the accused Somender and Indu, the prosecution was required to prove beyond reasonable doubt that the said two accused in collusion with remaining accused Vijay (already PO) & Ranjeet (already PO) had dishonestly stolen the car in question from the possession of the complainant against his consent on 15.12.1998.
16. Further in order to prove the offence U/s 411 IPC against the accused Somender & Indu, the prosecution was required to prove beyond reasonable doubt that the said two accused in collusion with remaining accused Vijay (already PO) & Ranjeet (already PO) were found in dishonest possession of the stolen car in question on 14.04.1999, despite knowing or having reason to believe that the same was a stolen property.
17. In the aforementioned background, I shall now proceed further to evaluate the material available on record to find out if the prosecution has succeeded in its FIR No. : 904/98 Page 6 of 14 Pages aforementioned tasks or not.
Appreciation of Evidence Offence U/s 379 IPC
18. The complainant in his examination in chief had deposed that the car in question belonging to him was stolen by somebody from outside his residence on 15.12.1998 after the same was parked by him there in the morning of 15.12.1998. The complainant had further testified that he thereafter lodged the present FIR Ex. PW4/A on 16.12.1998 regarding the said theft of his car.
Except for the aforementioned testimony, the complainant has deposed nothing regarding the incident in question or with regard to any role being played in the said theft by any of the accused persons.
The aforementioned testimony of the complainant has thus assisted the prosecution in proving only one fact i.e. the car in question was stolen on 15.12.1998 from outside the residence of the complainant. The complainant in his entire testimony has spoken nothing against any of the accused persons regarding their complicity in the present theft.
19. The prosecution has relied upon the disclosure statements Ex. Mark B to Mark E recorded in FIR No: 279/99, P.S. Rohini and their remaining subsequent disclosure statements dated 15.04.1999 recorded in the present FIR to connect the accused persons with the theft in question.
The perusal of the disclosure statements Ex. Mark B to Mark C recorded in FIR no: 279/99, P.S. Rohini and the separate disclosure statements of the accused persons dated 15.04.1999 recorded in the present FIR clearly reveals that all the said disclosure FIR No. : 904/98 Page 7 of 14 Pages statements of the accused persons were recorded whilst they were in police custody & hence the same can not be relied by this court for any purpose whatsoever due to the bar imposed by Sec. 25 to 27, Indian Evidence Act, more so, when the alleged recovery of the stolen car in question had already been effected prior to the recording of the said disclosure statements, thus making it clear that no recovery was ever effected in pursuance of any of the aforesaid disclosure statements.
Except for the said disclosure statements, whose admissibility is barred as above, no independent or further evidence had been produced on record by the prosecution to connect the accused persons, directly or indirectly, with the present theft. The testimony of the complainant regarding the theft in question also does not assist the prosecution in connecting the accused with the present theft in question as the complainant had deposed nothing regarding the involvement of any of the accused persons in the theft in question.
20. Thus the aforementioned discussion clearly shows that the prosecution has failed to prove the offence U/s 379 IPC against accused Somender & Indu, who thus are given benefit of doubt in respect thereof.
No observations are rendered regarding the final opinion of this court in context of the offence U/s 379 IPC against remaining two accused named Vijay & Ranjeet, since they are PO as on date.
Offence U/s 411 IPC
21. In order to prove the offence U/s 411 IPC against accused Indu & Somender, the prosecution has relied upon the testimonies of the recovery witnesses of the police i.e. PW2 Ct. Rajesh and PW3 SI Gulab Singh to prove the factum of the recovery of the stolen vehicle from the possession of the accused persons on 14.04.1999.
FIR No. : 904/98 Page 8 of 14 Pages
22. PW3 SI Gulab Singh had deposed in his testimony that the accused persons were arrested on 14.04.1999 at the Check Post installed near the Rithala Mod, Sec5, Rohini, Delhi, whilst in possession of the stolen car and one button actuated knife (the knife was allegedly recovered from accused Vijay), on the basis of a secret information whereby a separate FIR no: 277/99, P.S. Rohini was also lodged against the accused persons and the information of the recovery of the stolen car wanted in the present FIR was passed on to the IO of this case.
Similar facts were reiterated by PW2 Ct. Rajesh during the course of his own examination in chief.
However as already discussed under the heading of "Trial", the examination in chief of PW2 Ct. Rajesh recorded on 27.02.2003 was never completed and hence it remained partially recorded throughout the trial. The examination in chief of PW2 Ct. Rajesh recorded on 27.02.2003 was deferred on the said date for want of the case property i.e. stolen car in question, which was not produced for his identification before the court on the said date. However thereafter neither the said stolen car, nor PW2 Ct. Rajesh were ever produced during the trial thereby rendering the examination in chief of PW2 Ct. Rajesh incomplete. Since the examination in chief of PW2 Ct. Rajesh was never completely recorded, the same can not be considered by this court for any purpose whatsoever & hence the same is rejected being incomplete.
23. In the given circumstances, the prosecution is only left with the testimony of PW3 SI Gulab Singh regarding the alleged complicity of the accused persons with the offence U/s 411 IPC.
The perusal of the entire evidence available on record goes on to show that the case property i.e. the stolen car in question was never produced during the trial either by the complainant or the prosecution for its identification either by PW3 SI Gulab Singh or PW2 Ct. Rajesh or the complainant. Thus it becomes clear that the said stolen car was never FIR No. : 904/98 Page 9 of 14 Pages produced during the trial for its identification, which in my considered opinion, has turned out to be a fatal omission on part of the prosecution. The prosecution did not explain as to why the said stolen car was not produced during the trial for its identification, particularly, when its identification was necessary for proving its recovery by PW3 SI Gulab Singh and PW2 Ct. Rajesh alongwith their remaining raiding party members from the possession of the accused persons on 14.04.1999. If the prosecution would have produced the said stolen car during the trial, the same would have also assisted the prosecution in proving its existence apart from its identity & alleged recovery from the accused persons. However for the reasons best known to the prosecution, the said stolen car was never produced during the trial whereby the very existence of the said car, its identity and alleged recovery from the accused persons have become highly doubtful.
24. Neither the complainant, nor the prosecution had bothered to produce any registration documents etc of the stolen car in question during the trial to prove the very existence of the said car. The complainant though had admitted in his examination in chief that the said car was released to him on superdari during the investigation but he did not produce any documentary evidence on record either to prove his ownership of the said car or to further prove the very existence of the said car.
The prosecution also proved nothing, either documentary or in the form of photographs, to imply that any such vehicle (the stolen vehicle) had ever existed. As already discussed, the stolen car was never produced during the trial for establishing its identity.
The perusal of the seizure memo Ex. Mark A prepared in FIR no: 277/99, P.S. Rohini pursuant to the recovery of the stolen car from the possession of the accused persons by SI Gulab Singh on 14.04.1999 reveals that the raiding party had seized the said stolen car alongwith its RC, insurance papers & service book etc from the possession of the accused persons on the said date. However the said recovered documents i.e. RC, insurance papers and service book etc of the stolen car were neither placed on record by the IO, nor were FIR No. : 904/98 Page 10 of 14 Pages produced by the prosecution during the trial. It has gone unexplained as to why the said recovered documents i.e. RC, Insurance Papers & service book etc of the stolen car in question were withholded from the scrutiny of this court by the IO and the prosecution, which has introduced further doubt into the story line propounded by the prosecution regarding their recovery alongside the stolen car.
25. As per the case of the prosecution & the testimony of PW3 SI Gulab Singh, it transpires that the stolen car in question was recovered from the possession of the accused persons on 14.04.1999 while the same was being driven by them. However neither the testimonies available on record, nor the seizure memo Ex. Mark A reveals that the ignition keys of the stolen vehicle were ever recovered and seized either by PW3 SI Gulab Singh or any other police official entrusted with the investigation of the FIR no: 277/99, P.S. Rohini. The omission of the concerned police officials to seize the said ignition keys of the stolen vehicle pursuant to its recovery suggests that no such keys were ever recovered or seized.
If the case of the prosecution is to be believed that the stolen vehicle was recovered from the possession of the accused persons while they were driving it, the said ignition keys must have been recovered & seized by the concerned police officials, but, the concerned police officials neither opted to recover the said keys, nor tried to seize them whereby the entire recovery process pertaining to the stolen vehicle in question has become doubtful & unreliable. The aforementioned omission of the concerned police officials to seize the ignition keys of the stolen vehicle on dated 14.04.1999 has resulted in destruction of one very important piece of evidence i.e. the ignition keys, which might have added strength to the failing case of the prosecution.
26. The record also suggests that the concerned police officials who had participated in the recovery of the stolen car on 14.04.1999 and who were entrusted with the FIR No. : 904/98 Page 11 of 14 Pages investigation of the consequent FIR no: 277/99, P.S. Rohini had not bothered to prepare any site plan revealing the exact place from where the accused persons were apprehended whilst in possession of the stolen car on 14.04.1999. It has gone unexplained as to why such omission to prepare the site plan of the place of recovery was committed by the concerned police officials. If such site plan of the place of recovery of the stolen car would have been made, then it could have become an important piece of evidence showing not only the place of the said recovery but could also have assisted the prosecution in probalizing the presence of the recovery witnesses i.e. PW3 SI Gulab Singh and PW2 Ct. Rajesh at the Check point, near Rithala Mod, Sec5, Rohini, Delhi on 14.04.1999 when the impugned recovery of the said car was allegedly made from the accused persons. The aforementioned omission to prepare the site plan of the place of the recovery of the stolen vehicle has further dipped the veracity of the case of the prosecution.
27. The prosecution as well as PW2 Ct. Rajesh & PW3 SI Gulab Singh have alleged that the said two police officials alongwith Ct. Jai Prakash and HC Tehel Singh were on patrolling duty at Rithala Mod, Sec5, Rohini, Delhi on 14.04.1999 when they received a secret information that the accused with a stolen car and illegal button actuated knife would cross from there whereafter the accused persons were arrested with the stolen car & illegal button actuated knife from a check post installed near Rithala Mod, Sec5, Rohini, Delhi.
In these circumstances, the prosecution was obliged to prove the DD entry whereby the aforementioned police officials had left their place of duty i.e. P.S. Rohini on 14.04.1999 for area patrolling, so as to prove their presence at the spot of the recovery of the stolen vehicle.
Now Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: "22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered: FIR No. : 904/98 Page 12 of 14 Pages
(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 personality by signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
In the present case, the above said provision appears to have not been complied with respect of the departure of PW2 Ct. Rajesh & PW3 SI Gulab Singh with remaining members of the raiding party since the prosecution had not proved the said D.D. Entry whereby the said police officials had proceeded for their patrolling duty by producing it before the Court.
The prosecution ought to have proved the aforementioned DD entry by producing its original or copy, so as to inspire the confidence of the Court regarding the availability/presence of the said four police officials at the place of apprehension of the accused.
At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of an Act, the courts will have to approach their action with reservations & then the matter would be viewed by the court with suspicion.
The above failure of the prosecution to prove the above noted relevant DD entry by means of producing its original or copy so as to further prove the departure of the above named four police officials for patrolling creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party.
FIR No. : 904/98 Page 13 of 14 Pages
28. Thus the aforementioned discussion shows that the story of the prosecution regarding the recovery of the stolen vehicle from the accused persons on 14.04.1999 suffers from numerous doubts & lacunas whereby it has failed to prove the said offence U/s 411 IPC beyond reasonable doubt against accused Somender and Indu.
No observations are rendered regarding the final opinion of this court in context of the offence U/s 411 IPC against remaining two accused named Vijay & Ranjeet, since they are PO as on date.
Conclusion
30. For the reasons assigned herein above, accused Somender & Indu are acquitted of the offences U/s 379/411 IPC.
The B/B & S/B of both the accused Indu and Somender are discharged. The original documents of their sureties, if any on record, be released to the said sureties after cancellation of the endorsements thereupon as and when so applied.
Since the sole public witness named Ashok Kumar had already been examined as PW1, even before, accused Vijay and Ranjeet were declared as PO, the case against accused Vijay & Ranjeet is disposed U/s 299 Cr. P.C. with directions to revive the same, as & when accused Vijay and Ranjeet are arrested & produced before this court for their respective trial.
File to remain in record room till then.
Announced in the open court on 22nd February, 2012 (SIDHARTH MATHUR) M.M. (OUTER07) DELHI FIR No. : 904/98 Page 14 of 14 Pages