Delhi District Court
State vs . Rajiv Gupta & Ors. Fir No. 172/98, U/S : ... on 14 December, 2012
State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR No. 172/98 PS: Model Town U/S 379/411/34 IPC State Vs. Rajiv Gupta & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 463/06
B. DATE OF INSTITUTION : 27.10.1999
C. DATE OF OFFENCE : 28.08.1998
D. NAME OF THE : Sh. Vinesh Khanna
COMPLAINANT S/o Sh. S.L. Khanna
E. NAME OF THE ACCUSED : (1) Rajiv Gupta
S/o Sh. Phool Chand
(2) Virender Singh
S/o Sh. Dariyav Singh
(3) Rajiv Dahiya
S/o Sh. Amir Singh
(Discharged vide order 02/03/01)
F. OFFENCE COMPLAINED OF: U/s 379/411/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Accused Rajiv Gupta and
Virender Singh are
acquitted
I DATE OF SUCH ORDER : 14.12.2012
Brief Statement of Reasons for Decision:
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town 19/04/98, the present FIR u/s 379 IPC was lodged at PS Model Town by the complainant Sh. Vinesh Khanna, regarding theft of his Maruti800 CC car bearing no. DL 8CC 3088, which was stated to be stolen by some unknown person from gate no.1, AB Block, Derawala Nagar, Delhi. Subsequently on 28/08/98 at about 1.45 pm at CBlock, Saraswati Vihar Tpoint, Delhi, the police officials of PS. Saraswati Vihar apprehended the accused Rajiv Gupta and Virender Kumar, who were found in possession of the aforesaid stolen Maruti Car with a fake number plate bearing no. HR 0111. Both the accused persons separately disclosed that the said car is a stolen property and it was stolen by them alongwith their associate Sanjeev Dahiya from ABlock, Derawala Nagar, Delhi. The said stolen car was also found to be containing some keys, a cutter and a wire. The stolen car was seized by the police officials of PS. Saraswati Vihar and intimation regarding its recovery was conveyed to PS. Model Town. Thereafter, on the basis of the disclosure statement of the coaccused persons, the accused Sanjeev Dahiya was also arrested. After conclusion of the investigation, the present challan u/s 379/411/34 IPC against all the three accused persons was filed in the court.
2. In compliance of Section 207 Cr.P.C., the copy of the challan and the documents annexed therewith were supplied to all the three accused persons. The accused namely Sanveej Dahiya was discharged by the Ld. Predecessor of this Court vide order dated 02.03.2001. Prima facie charge u/s 411/34 IPC was made out against the remaining two accused persons namely Rajiv Gupta and Virender. Accordingly, on 02.03.2001 the charge was separately framed by the Ld. Predecessor of this court. Both the accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town evidence.
3. In order to substantiate its case, the prosecution examined five witnesses.
4. HC Ravi Kumar (PW1) is a formal witness, who had registered the present FIR and he has proved its copy as Ex. PW1/A.
5. Ct. K Bhaduriya (PW2) is also a formal witness. On 20/04/98, he alongwith ASI. Jai Pal Singh went to the spot after receiving a call regarding theft of car bearing no.DL 8CC3088. He has deposed that there they met complainant Sh. Vinit Khanna, whose statement regarding theft of his car was recorded by the IO. He has testified regarding registration of present FIR on the basis of the aforesaid statement of the complainant. He has further deposed that IO prepared the site plan, but neither the accused nor the case property could be traced on the said date.
6. ASI Harminder Singh (PW3) has deposed that on 12.10.98 investigation of this case was marked to him and MHC (R) informed him about the apprehension of the accused persons and recovery of the stolen Maruti car by the police officials of PS. Saraswati Vihar. Thereafter, he went to PS Saraswati Vihar and met HC Om Prakash, who handed over to him the photocopies of the relevant documents of the case FIR no.552/98. He has further deposed that there he found the Maruti car 800 with fake registration no bearing HR 0111 (the original number of which was DL 8CC 3088) and on 18/11/98 he brought the said car to PS. Model Town through RC No. 273/21/98. He has correctly identified the accused persons, who were formally arrested by him.
7. Inspector Manoj Kumar (PW4) has testified that on 28/08/98, the accused persons namely Rajiv Gupta and Virender State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town Kumar were apprehended by HC. Om Parkash and other staff members of PS. Saraswati Vihar alongwith the stolen car bearing fake plate no. HR0111. He was posted at PS. Saraswati Vihar and on receipt of the said information he reached the spot i.e CBlock, Saraswati Vihar, where the accused persons were apprehended by HC. Om Parkash. The custody of accused persons and recovered car was handed over to him by HC. Om Parkash. He has testified he recorded the disclosure statement of both the accused persons and thereafter, the recovered car was deposited in the malkhana of PS. Saraswati Vihar. He has also correctly identified both the accused persons.
8. ASI. Om Parkash (PW5) is a recovery witness and he has testified that on 28/08/98 he alongwith Ct. Ratnesh and Ct. Lokender were on vehicle checking duty and they were present at CBlock, Saraswati Vihar Tpoint. He has testified that at about 1.45 p.m a white colour Maruti car bearing no.HR0111 was seen coming from the side of outer ring road and on seeing them, it tried to turn back. However, the said car was stopped by them and it was found that accused Rajiv Gupta was driving the said car and accused Virender Kumar was sitting besides him. On inquiry, it was revealed that the said car was a stolen property that was stolen about four months back from the area of Derawal Nagar, Delhi. The original registration number of the said car was revealed to be DL8CC3088, regarding which the present FIR of theft was found to be lodged at PS. Model Town. He has proved the seizure memo of the said car as Ex.PW5/A. He has further testified that the said car contained some keys, one cutter and a wire, which were separately seized vide seizure memo Ex.PW5/B. Thereafter, the investigation of this case was marked to SI. Manoj Kumar. He has also correctly identified both the accused persons. In his State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town crossexamination, he has specifically stated that he never met the IO of the present FIR. He could not reveal DD number of his departure at PS. Saraswati Vihar on 28/08/98. He has admitted that he did not make any efforts to join public witnesses from the houses located near the spot of recovery. Thereafter, prosecution evidence was closed.
9. Statements of both the accused persons U/s 313 Cr.P.C. was separately recorded. All the incriminating evidence against them were put to them for seeking their respective explanations. In the said statements, they have stated that they are innocent and they have been falsely implicated in the present case. Thereafter, the matter was listed for DE.
10. In defence evidence, they examined the ahlmad of this court namely Sh. Vishram Singh, who produced the case file of FIR No.442/98, PS. Model Town, U/s.379/411 IPC. The copy of the testimony of PW8 Inspector Manoj Kumar dtd.23/08/12 in the said FIR is exhibited as Ex.DW1/A. (OSR).
11. I have heard Ld. APP for the State and Ld. Counsel for both the accused persons. I have carefully perused the case file.
12. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
13. In order to bring home guilt of the accused persons u/s 411/34 IPC, the prosecution is required to prove the following ingredients of the said section:
(i) that the property in question is stolen property;
(ii) that the said property is identical with the property said to State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town be stolen.
(iii) that the accused received or retained such property;
(iv) that the accused while receiving or retaining such property knew or had reason to believe the same to be stolen property;
(v) that the accused acted dishonestly ; and
(vi) that the said property was received or retained by all the accused persons in furtherance of their common intention.
14. The prosecution is required to prove that the property recovered from the possession of the accused is a stolen property. In a case titled "Mahabir Vs. State of Bihar, AIR 1972 S.C. 642, the Hon'ble Apex Court has held that : "The essential requirement of the offence of receiving stolen property is that the property seized from the possession of the accused must be proved by the prosecution to be stolen".
In the instant case, the prosecution has alleged that Maruti car bearing no. DL 8CC3088 was stolen on 19/04/98 and the present FIR of its theft was lodged by Sh. Vinesh Khanna. However, the said complainant Sh. Vinesh Khanna never appeared in the court to prove the factum of theft of his car. It is asserted that car that was allegedly recovered from the accused persons was having a fake number plate bearing no. HR 0111.
The said recovered car never saw light of the day as it was never produced in the court. Besides that, even the photographs of the said car were never produced and shown to the prosecution witnesses/recovery witnesses. The prosecution has also failed to place on record the entry of register no.19, vide which the aforesaid car was deposited in the malkhana of PS Saraswati Vihar and register no.21, vide which the said car was allegedly transferred from PS. Saraswati Vihar to PS. Model State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town Therefore, it has not been established whether any car (leave aside stolen car) was ever recovered from the possession of the accused on the alleged date of incident.
15. Moreover, the prosecution has failed to place on record the site plan of the alleged spot of recovery. IO/ASI. Harminder Singh (PW3) has specifically deposed that he obtained the photocopies of relevant documents pertaining to recovery of the stolen car from HC. Om Parkash. However, ASI. Om Parkash (PW5) has categorically denied that he ever met IO of the present case. Inspector Manoj Kumar (PW4), in his crossexamination, has testified that he hired a private car and he finally left the spot alongwith the accused persons in the said private car. However, in his testimony as PW8, Ex. DW1/A, in case FIR no.442/98, he has testified that he alongwith the accused persons finally left the spot in the recovered/stolen Maruti car. The said contradictions, though not fatal, has proved detrimental to the prosecution version.
16. The prosecution has averred that the recovery witnesses were on vehicle checking duty on 28/08/98 i.e. the date of alleged recovery. The recovery witness i.e ASI. Om Parkash (PW5) in his examinationinchief, has deposed that they were on vehicle checking duty at the time of recovery of the stolen car from the possession of the accused persons. But, in his crossexamination he could not reveal the DD number of the said departure entry. Besides that, the prosecution has failed to place and prove on record the departure entry of the said witnesses vide which they allegedly together left the police station for the purpose of vehicle checking in the area. The said departure entry is indispensable for establishing their presence at the spot of alleged recovery. Therefore, their presence at the alleged place, time and date of recovery of the alleged stolen car State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town from the possession of the accused persons is doubtful.
17. The alleged recovery is stated to be effected at 1.45 pm. PW5 ASI. Om Parkash has categorically stated that he did not make any efforts to join the public persons to nearby located houses. It is also an admitted fact that the alleged place of recovery is a residential colony. Had the recovery witnesses would have made effort they could have easily joined public/independent witness at the time of recovery. However, in their wisdom they preferred not to join any public witness despite of their availability. The recovery witnesses have also failed to advance any justifiable reason for non joining of independent/public witness at the time of alleged recovery of the car from the accused. Hence, story of the prosecution is further shrouded in suspicion.
18. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The recovery witness that is examined by the prosecution in the present case is a police witness, who is interested in the success of the prosecution case and therefore, the probability of him being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness at the time of alleged recovery of the State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town car creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court
19. The reliance can also be placed upon the findings given by Hon'ble Apex Court in case titled as Harjit Singh V. State of Punjab [2002]SUPP1SCR581wherein it is held: ".........50 Apart from the versions of eyewitnesses discussed above, the trial court attached importance to the fact that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered under memorandum Ext. P19. We have referred to the statement of Investigating Officer Puran Singh (PW9). He is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statement Ex.PV and memorandum of recovery Ext. PU1. We have noted that these memoranda have been signed only by two police officers Faqir Chand and Virsa Singh. It is unbelievable that all the accused persons who have alleged to use their firearms/weapons kept all the arms concealed in an open field in a gunny bag under the heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied on by the trial court to convict the accused by treating it as eyewitness account."
I also find support from case titled as Aslam Parwez V. Govt. of NCT of Delhi 2003CriLJ2525 Hon'ble Supreme Court has held:
"10......In view of these features of the case, we are of the opinion that the testimony of three police personnel, namely, State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town PWs 10, 11 and 1 does not inspire confidence and it will be highly unsafe to place reliance upon the same in order to convict the accused specially when the public and independent witnesses did not at all support the prosecution case on any material particular."
20. Keeping in view the fact that the version of the recovery witnesses has remained uncorroborated by any other independent witness regarding the alleged recovery of the stolen car, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
21. In the wake of above discussion, the prosecution has not only failed to prove the factum of the recovery of stolen car from the accused persons but it has even failed to establish that any car was ever recovered on the alleged date, time and place. Thus, the prosecution case suffers from material and fatal infirmities and therefore, both the accused persons are entitled to benefit of doubt.
22. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against either of the accused persons namely Rajiv Gupta and Virender Singh to bring them within the four corners of the offence U/s 411/34 IPC, accordingly, the aforesaid accused persons are acquitted for the offence U/s 411/34 IPC. They are directed to furnish fresh personal bond in a sum of Rs. 15,000/ each with one surety each in like amount, in accordance with State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town Section 437A Cr.P.C. The same are furnished and they are accepted. They shall remain in force till next six months. File be consigned to Record Room after due compliance. Announced in the open court today i.e. on 14.12.2012.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI/DELHI State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town FIR No. 172/98 PS: Model Town U/S 379/411/34 IPC State Vs. Rajv Gupta & Ors.
14/12/12.
Present: Ld. S. APP for the State.
Both the accused persons namely Rajiv Gupta and Virender Singh on bail with their Ld. counsel.
Vide my separate judgment announced in the open court today, both the accused persons namely Rajiv Gupta and Virender Singh stand acquitted for the offence punishable U/s 411/34 IPC. They are directed to furnish fresh personal bond in a sum of Rs. 15,000/ each with one surety each in like amount, in accordance with Section 437A Cr.P.C. The same are furnished and they are accepted. They shall remain in force till next six months.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/14.12.2012 State Vs. Rajiv Gupta & Ors. FIR No. 172/98, U/s : 379/411/34 IPC, PS: Model Town