Delhi District Court
State vs . Riyaz & Anr. on 1 February, 2010
IN THE COURT OF SH. SATISH KUMAR ARORA: MM KKD COURTS :DELHI
FIR No. 166/06
U/s 380/411/34 IPC
P.S Pandav Nagar
State Vs. Riyaz & Anr.
JUDGMENT:
A Sl. No. of the case 02402R 0247382006 B Date of institution 04/05/06 C Date of commission of offence 07/04/06 D Name of the complainant State
E Name of the accused & 1. Riyaz Mohd. @ Guddu s/o Sh. Maluk Ahmad r/o A their parentage and address 211, Jawahar Mohalla, Shashi Garden, Delhi
2. Asif s/o Mohd. Shafiq r/o A245, Jawahar Mohalla, Shashi Garden, Delhi F Offence complained of U/s 411/451/34 IPC G Plea of the accused Pleaded not guilty H Order Reserved on 18/01/10 I Final order Acquitted J Date of such order 01/02/10 Brief reasons for the decision of the case.
1. In a nutshell, case of the prosecution is, that on 07.04.06 on receiving DD no. 5A, PW5 IO HC Heera Lal with PW 4 Ct. Anil reached at house no. 135, Patparganj Village, Delhi where the complainant/PW1 Rahul Kaushik met and handed over both the accused with stolen property. In his statement Ex. PW1/B, complainant informed that he is into cloth business at Patparganj village and is a resident of 135, FIR No. 166/06, PS Pandav Nagar Page no. 1 of 8 Patparganj village, Delhi. He informed that on 07.04.06 at about 3.00 am, he got up upon hearing some noise coming from the roof of his house. He further informed that pursuant thereto when he reached the roof of his house, he found the accused persons having some objects in their hand who on seeing him climbed from the roof. He further informed that he raised alarm and with the help of neighbours he was able to apprehend both the accused, whereas one of them was having a stone cutting machine in his hand the other was having a mobile phone and a charger in his possession. He further informed that PCR was called and in the meantime one Chamru Mehto also a resident of Patparganj village reached there and told that the articles recovered from the accused persons are of his. On the statement, IO prepared the rukka Ex. PW5/B and gave it to Ct. Anil who came back to the spot with copy of FIR and endorsed rukka. The case property was seized, site plan was prepared, statement of witnesses recorded and both the accused were interrogated and arrested. Finally, on completion of investigation chargesheet was presented to the court against both the accused for trial.
2. On their appearance, copies of documents as required u/s 207 Cr.P.C were supplied. After hearing arguments and on perusal of case file, prime facie case against both the accused for the offence punishable u/s 411/451 r/w s. 34 IPC was found to be made out. Charge was accordingly framed to which both the accused pleaded not guilty and claimed trial. Matter was thereafter listed for PE.
3. In order to substantiate and prove its case, prosecution has examined five witnesses. PW1 Rahul Kaushik is the complainant. PW2 ASI Chander Prakash is the DO who recorded and proved FIR Ex. PW2/A. PW3 Chamru Mehto is the owner of the stone cutting machine and the mobile phone alleged to have been recovered from the accused persons. PW4 Ct. Anil Dutt participated in the investigation of the FIR No. 166/06, PS Pandav Nagar Page no. 2 of 8 case with the IO. PW5 HC Heera Lal is the IO of the case.
The material witnesses for the prosecution to bring home its case against both the accused are PW1 Rahul Kaushik and PW3 Chamru Mehto.
PW1 Rahul Kaushik who is the complainant, in his chief testified that on 07.04.06 when he was sleeping in his house, at about 3.00 am he woke up on hearing some sound of steps coming from the roof of his house. He further testified that he saw two person roaming on his roof having some objects in their hands. He further testified that he raised alarm and with the help of persons of the locality managed to over power both the boys who revealed their names as Riyaz and Asif. He further testified that whereas accused Riyaz was having one mobile with charger, accused Asif was having one stone cutting machine in his possession. He further testified that one Mr. Mehto who is also a resident of the locality came there and identified the mobile phone charger and stone cutting machine as his. He further testified that police was called which seized the stolen property vide memo Ex. PW1/A, recorded his statement Ex. PW1/B and arrested both the accused vide memos Ex. PW1/C to Ex. PW1/F respectively. He further testified that one of the accused was having polio in one of his leg. In his cross examination by ld. legal aid counsel, he testified as correct that the alleged incident which took place at around 3.00 am in the morning, it was dark. However, he volunteered by testifying that the light on the roof of his house was also switched on. He further testified that after hearing the sound of steps, he rushed to the roof of his house and raised alarm. He further testified that police reached the spot after 15 minutes and 56 persons have also assembled over there on hearing alarm.
PW3 Chamru Mehto in his chief testified that he is a mason by profession and is residing on the 1st floor of property bearing no. 16B, Patparganj Village, Delhi.
FIR No. 166/06, PS Pandav Nagar Page no. 3 of 8 He testified that on 06.04.06 before going to sleep, he has kept his mobile phone and stone cutting machine in his room. He further testified that at about 3.00 am on 7.04.06 on hearing some noise he reached at 133 Patparganj Village and found Rahul Kaushik catching hold of two boys who were having his mobile phone and stone cutting machine with them. He further testified that he produced the receipt of mobile phone before the IO and the IO seized the case property vide memo Ex. PW1/A, prepared the site plan Ex. PW3/A at his instance and arrested both the accused vide memos Ex. PW1/C to F respectively. He further proved the S'nama Ex. PW3/B vide which the case property was released to him. In his cross examination by ld. legal aid counsel, he testified as correct that police obtained his signatures on some blank papers and he do not know as to what was written on the said papers nor the IO informed him about the contents thereof.
As to the other prosecution witnesses, PW4 Ct. Anil is the one who accompanied the IO to the spot upon receipt of DD no. 5A. He reiterated the prosecution case as to the apprehension of both the accused by complainant Rahul and the recovery of stolen property. He also reiterated as to the lodging of case FIR through him on the tehrir prepared by the IO and the arrest of both the accused in his presence. In his cross examination, he testified that they reached the spot at about 3.30 am and he came back to the spot at about 10.00 am after getting the case FIR registered. He further testified that the case property was not recovered from the possession of accused persons in his presence rather it was the complainant who produced the same before the IO. PW5 IO HC Heera Lal in his chief also reiterated as to his reaching the spot with Ct. Anil on receiving DD no. 5A. Besides that, he testified that while he was recording the statement of complainant Rahul, Chamru Mehto reached at the spot and identified the articles recovered from the possession FIR No. 166/06, PS Pandav Nagar Page no. 4 of 8 of the accused as belonging to him. He further testified that complainant Rahul informed in his statement Ex. PW1/B that whereas the mobile and charger was recovered from accused Riyaz, stone cutting machine from the accused Asif. He further testified that thereafter he prepared the tehrir Ex. PW5/B and gave it to Ct. Anil for the registration of case FIR and in the meantime at the instance of complainant prepared site plan Ex. PW5/C. He further testified that thereafter at the instance of accused persons he prepared the site plan Ex. PW3/A from where the case property was alleged to have been stolen by them. He further testified that prior to writing the tehrir, he seized the case property vide memo Ex. PW1/A. In his cross examination, he testified that Ct. Anil returned back to the spot with copy of FIR at about 11.00 am. He testified as correct that many public persons were present over there.
4. In their statements recorded u/s 313 Cr.P.C, both the accused pleaded innocence and false implication. Besides that, they stated that they were lifted from their house and the real culprits have been let off by the police. However, both the accused chose not to lead evidence in their defence.
5. Heard the ld. APP for the State and ld. legal aid counsel for both the accused and perused the file. Whereas Ld. APP contends that in view of the testimony of complainant/PW1 Rahul Kaushik and of PW3 Chamru Mehto, prosecution has successfully established its case beyond reasonable doubt that both the accused on 07.04.06 were not only found committing trespass in the house of the complainant with the intention to commit an offence but have also been found in possession of the property of PW3 Chamru Mehto which they have received or retained having knowledge of the same to be a stolen property, ld. legal aid counsel on the other hand contends that the perusal of testimony of PW1 Rahul and of PW3 Chamru FIR No. 166/06, PS Pandav Nagar Page no. 5 of 8 Mehto when seen in the light of testimony of PW4 Ct. Anil and that of IO PW5 HC Heera Lal, clearly brings to the fore apparent contradictions. It is further contended that there is no explanation offered by the IO as to why he has not joined members of the locality when it came in his deposition that he found 5 to 6 persons present at the spot. It is also contended that the presence of PW 3 Chamru Mehto at the spot on the date and time of incident is not free from suspicion as in none of the site plans Ex. PW5/C and Ex. PW3/A it has been shown by the IO as to what was the distance between the house of complainant Rahul and that of PW3 Chamru Mehto. Ld. legal aid counsel, thus, contends that the benefit of apparent lacuna's in the prosecution case ought to be given to both the accused and they be acquitted of the offence.
6. Having heard the respective submissions and having perused the record, I am in agreement with the contentions of ld. legal aid counsel. The first and foremost lacuna in the prosecution case is the presence of PW3 Chamru Mehto at the spot on the day of incident, whereas complainant/PW1 Rahul testified that when he has managed to over power both the accused with the help of other members of the locality, in the meanwhile Chamru Mehto reached at the spot and claimed himself to be the owner of the stolen property recovered from the possession of both the accused, contrary to this, PW5 IO HC Heera Lal deposed that while he was busy recording the statement of complainant/PW1 Rahul Kaushik, PW3 Chamru Mehto came to the spot and identified the articles recovered from the accused persons as belonging to him. Thus, it is apparent that there are two different version as to the reaching at the spot of PW3 Chamru Mehto. This contradiction further gets buttressed by the statement Ex. PW1/B of the complainant made to the police. Perusal of EX. PW1/B reflects that just above last three lines of the statement, the following statement has been inserted "in the meantime Chamru Mehto s/o Khubal FIR No. 166/06, PS Pandav Nagar Page no. 6 of 8 Mehto r/o 16 B Patparganj, Delhi stated that the case property belongs to him". This statement has been written in a different/smaller font just between the fourth and third last line of the complainant's statement Ex.PW1/B. Furthermore, there is over writing in the time of sending the tehrir through Ct. Anil. Furthermore, there is no explanation either in the testimony of PW4 Ct. Anil or in the testimony of PW5 IO HC Heera Lal as to why it took the IO to prepare the tehrir almost 7 hours of the incident. To make the matter worse for the prosecution, PW4 Ct. Anil nowhere in his examination in chief deposes about the presence/arrival at the spot of PW3 Chamru Mehto. His entire examination in chief is silent as to this aspect. Even he has not been cross examined by the state so as to bring the correct facts to the fore. Another lacuna in the prosecution case is that PW1 Rahul in his statement Ex. PW1/B, which he has proved in his statement before the court, informs that when he reached the roof of his house and raised alarm on finding both the accused there, both the accused climbed from the roof. If both the accused have climbed from the roof there is a possibility of their receiving physical injury, which is not so in the present case as the MLC's of both the accused shows no such injury casts a doubt on the veracity of the prosecution case. Again an apparent contradiction in the prosecution case is the timing of arrest mentioned on the arrest memo Ex. PW1/C and D of both the accused. Perusal thereof reveals that the time of arrest which has been shown as 10.30 am is in a different ink. Further, PW5 IO HC Heera Lal in his cross examination testified that Ct. Anil returned to the spot with copy of FIR at about 11.00 am. If the IO has received the copy of FIR at 11.00 am, how he can effect the arrest of both the accused at 10.30 am is not clear. Another lacuna is the non joining of any independent witness when it specifically came in the deposition of PW1 Rahul that he with other members of the locality managed to apprehend both the accused. It has FIR No. 166/06, PS Pandav Nagar Page no. 7 of 8 also come in the testimony of IO PW 5 HC Heera Lal that many public persons were present at the spot when he reached there on receiving DD no. 5A. Thus, there are sufficient reasons to believe that the prosecution has failed to bring home its case beyond reasonable doubt against both the accused.
7. In view of the foregoing, I hereby acquitted both the accused of the offence punishable u/s 411/451 r/w s. 34 IPC. Accused Asif be released from JC if not required for detention in any other case. B/B/S/B of accused Riyaz stands discharged. File be consigned to Record Room.
Announced in the open court on 01.02.10 (Satish Kumar Arora) Metropolitan Magistrate Karkardooma Court, Delhi FIR No. 166/06, PS Pandav Nagar Page no. 8 of 8