Delhi District Court
State vs . Anish & Others on 25 June, 2013
FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC IN THE COURT OF SH. JITENDRA SINGH, METROPOLITAN MAGISTRATE: NORTH EAST-04: KARKARDOOMA COURTS,DELHI FIR No. 40/2003 PS: Gokal Puri U/s. 379/411 IPC Dated: 25.06.2013 Case ID: 02402R0076292003 STATE VS. ANISH & OTHERS Date of Institution : 16.04.2003 Date of Commission of offence : 06.02.2003 Name of the Complainant : Sh. Bhawuk Garg S/o Sh. Brij Bhusan Garg Name parentage and address of the accused persons : (1) Anish S/o Sh. Hamid, R/o; H.No. 113-B, Bardari, Behind Novelty Cinema, Delhi. (Proceedings stands abated vide order dated 08.02.2013.) (2) Mohd. Zahid S/o Sh. Nasir Ahmad, R/o; H.No. 26, Plot No. 68, Mal Road, Khaibarpass, Delhi. (3) Nasir S/o Sh. Manjoor Ahmad, R/o; Mohan Lal Lakda, PS Kotwali, Amroha, UP. (4) Humayun S/o Sh. Khailq Ahmad, R/o; H.No. 119, Mohalla Afganana, Amroha, UP. Offence Complaint of : U/s. 379/411 IPC FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 1/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC Plea of the accused persons : Pleaded not guilty. Final Order : Acquitted. Judgment reserved on : 25.06.2013. Date of judgment : 25.06.2013. JUDGEMENT
BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 40/2003, PS Gokal Puri. The case of the prosecution as per the complaint of the Complainant that on 06.02.2003 at around 11.00 PM, infront of Parvana Banquet Hall, Wazirabad Road, (Main) Delhi, accused persons in furtherance of their common intention committed theft in respect of a Maruti Car bearing No. DL-3CE-1245 and on 16.02.2003 from Kuresi Mohalla, Vasudev Road from a garage the said car was recovered at the instance of accused persons and accused persons had kept the said car knowingly or having reason to believe the same to be stolen property with their furtherance common intention. Therefore, accused persons have committed an offence punishable under Section 379/411/34 IPC. The accused persons pleaded not guilty and claimed trial.
2. On conclusion of the investigation, a charge sheet was filed against accused persons U/s. 379/411/34 IPC. Thereafter, a charge Under Section 379/411/34 of IPC was framed against accused persons on 19.01.2004, to which they pleaded not guilty and claimed trial. During trial accused Anis has expired and proceedings against him stands abated FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 2/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC vide order dated 08.02.2013.
3. The prosecution has examined six witnesses in all in the present case.
The deposition of witnesses is touched upon in brief as under to have a better appreciation of the case.
PW-1 is Sh. Bhawuk Garg, who had deposed that his father Sh. Brij Bhusan Gard is the registered owner of Maruti Car bearing no. DL-3CE-1245. PW-1 deposed that he had gone to attend the marriage of his friend's sister on 07.02.2003 and same was parked at around 8/8.30 PM, outside Banquat Hall and when he returned back at about 11.00 PM, he found his car was missing. PW-1 further deposed that he immediately made a complaint to police Ex. PW1/A, bears his signature at point A. PW-1 further deposed that police informed him after about 1 & 1 & half month recovery and his father got released the said car on superdari. The said car is Ex. P-1. PW-1 further deposed that the said car was not recovered in his presence.
The said witness was cross examined by Ld. defence counsel for the accused.
PW-2 is HC Krishan Pal, who had proved the FIR bearing no. 40/2003, which is Ex. PW2/A. PW-3 is Ct. Anil Kumar, who had deposed that on 16.02.2003, he was posted at AATS-NE as Constable. On that day, he alongwith Inspector C.S. Rathi, HC Jaivir, Ct. Sunder Lal, Ct. Nafees, Ct. Ved Pal, Sunil and Arvind joined the investigation of the present case and went to Amroha and at about 6.30 AM, they reached PS Amroha. PW-3 deposed that then from where they took HCP Harbans Singh and alongwith a secret informer, and at the instance of Secret informer at about 7.30 AM, they FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 3/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC reached mohalla Lakda Naugaja. PW-3 further deposed that at about 11.30 AM, accused Nasir, whose name came to know from his was apprehended by them on the instance of secret informer from the corner of the gali. PW-3 further deposed that then Inspector C.S. Rathi inquired from the accused Nasir and recorded his statement which is Ex. PW3/A, in which he discloses some offences and stated to recover the stolen vehicles which he had stolen in several ofences and accused Nasir got recovered one Yamaha Motorcycle from his house, which is situated in Gali of Mohalla, Lakda Naugaja, whose number he did not remember. PW-3 further deposed that HC Jaivir took into possession of the motorcycle vide memo Ex. PW3/B. PW-3 further deposed that then accused was arrested vide arrest memo Ex. PW3/C and accused was personally searched vide memo Ex. PW3/D. PW-3 further deposed that at the instance of accused Nasir, they went to the house of Humayun i.e. H.No. 119, Mohalla Afganana and he was apprehended. PW-3 further deposed that Inspector C.S. Rathi inquired accused Humayun and his disclosure statement was recorded by HC Jaivir Singh, which is Ex. PW3/E. Then at the instance of accused Humayun, they went to Vasudev Road and in front of MM Jeenat Nisha Higher Secondary School, from one godown, on which iron gate was there, accused Humayun opened the gate and got recovered one Maruti Zen Zar, who full number he did not remember, but number was 4797 and also got recovered Maruti 800 bearing no. DL-3CE-1245. PW-3 further deposed that HC Jaivir took into the possession of the said cars vide memo Ex. PW3/F. PW-3 further deposed that accused Humayun was arrested vide memo Ex. PW3/G and personal search memo Ex. PW3/H. PW-3 further deposed that then they alongwith both the accused and alongwith both the cars and motorcycle FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 4/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC left the spot to Delhi. PW-3 further deposed that at about 6.30 PM at the instance of accused Humayun and Nasir, they reached Ml Road, Delhi. PW-3 further deposed that then at about 7.00 PM, at the instance of both accused, they apprehended Zahid and Anis from their work shop of denting and painting. PW-3 further deposed that HC Jaivir recorded their disclosure statements. Disclosure statement of Zahid and Anis are Ex. PW3/I and PW3/J, respectively and got recovered one Bajaj Scooter bearing no. HR-10-8395 from the said work shop. PW-3 further deposed that the said scooter was taken into police possession vide memo Ex. PW3/K. PW-3 further deposed that both accused persons were arrested vide arrest memos Ex. PW3/L and Ex. PW3/M and they were personally searched vide memos Ex. PW3/N and Ex. PW3/O. PW-3 further deposed that thereafter they came at the PS Gokalpuri and put the accused persons behind the bars and deposited the case property in Malkhana then on the next date i.e. 17.02.2003, he again joined the investigation of the case and alongwith HC Jaivir, Ct. Sunder Lal, Ct. Ved Pal and other police officials and took out all the four accused persons from Lock Up and took all the accused persons to AATS/North-East office and recorded their disclosure statements which are Ex. PW3/P, PW3/Q, PW3/R and PW3/S. PW-3 further deposed that then they took the accused Anis and Zahid to Okhla and on the instance of Zahid recovered a Maruti Van on which plate no. DAV 6718 was given, got recovered from Batla house in a gali, behind the mosk, which was taken into possession vide Ex. PW3/T. PW-3 further deposed that then accused Anil took them to Mal Road at Khaiber Pass work shop and put his hand on a scooter which was standing there, on which number plate of number HR-05F-7973, which was taken into police possession vide memo Ex. PW3/U. PW-3 further deposed that thereafter FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 5/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC they came back at the PS, case property deposited in malkhana. The said witness was examined by the Ld. defence counsel for the accused.
PW-4 is HC Santosh Kumar, who had deposed that on 08.02.2003, he was posted at PS Gokalpuri as Constable. On that day, he was present in the police station. PW-4 deposed that Duty Officer handed over to him the copy of FIR and original tehrir and instructed him to hand over the same to ASI Tara Dutt at the spot. PW-4 further deposed that he went to the spot i.e. Pawna Marriage Home, Wazirabad Road, Near Chand Bagh, Delhi and handed over the copy of FIR and original tehrir to ASI Tara Dutt. IO recorded his statement.
The said witness was not cross examined by the Ld. counsel for the defence.
PW-5 is HC Ved Pal, who had deposed that on 16.02.2003, he was posted AATS/North-East as Ct. On that day, he alongwith HC Jaivir, Ct. Anil, Ct. Sunder Lal and other members of the team, whose head was Inspector C.S. Rathi, at about 2.30 AM left for Amroha to conduct the raid at the instance of secret informer. PW-5 deposed that at about 6.30 AM, they reached Kotwali Amroha, where HCP Harbans Singh also joined the team. PW-5 further deposed that at about 7.00 AM, on the instance of secret informer, they reached the mohalla Lakhra Nau Gaja and at about 11.30 AM, at the instance of secret informer HC Jaivir, Ct. Anil and Ct. Sunder Lal apprehended the accused Nasir, at that time, they were in the Car at the corner of the Gali. PW-5 further deposed that Inspector C.S. Rathi interrogated the accused and he disclosed his house is in that gali and his disclosure was recorded in which he confessed about the several offences, which is Ex. PW3/A. PW-5 further deposed that accused Nasir FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 6/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC got recovered one Yamaha motorcycle from his house i.e. in the gali of mohalla Lakhra, Nau Gaja, the said motorcycle was taken into police possession vide memo Ex. PW3/B. PW-5 further deposed that accused was arrested vide memo Ex. PW3/C and his personal search was also taken out vide personal search memo Ex. PW3/D. PW-5 further deposed that at the instance of the accused Nasir , they went to the houwse of Humanyu i.e. H.No. 119, Mohalla Afganan, Kasba Amroha, UP, where they found the accused Humanyu. PW-5 further deposed that accused Humanyu was interrogated by Inspector C.S. Rathi and his disclosure statement was recorded, which is Ex. PW3/E. PW-5 further deposed that at the instance of accused Humanyu, they went to Vasudev Road, in front of M.M. Jeenat High Secondary School, where the accused Humanyu took them to one godown, on which one iron gate was fixed and got recovered one Maruti Zen bearing no. DL-7C-4797 and one Maruti Car bearing no. DL-3C-E-1245, both the vehicles were taken into the police possession vide seizure memo Ex. PW3/F. PW-5 further deposed that accused Humanyu was arrested vide arrest memo Ex. PW3/G and his personal search was conducted vide personal search memo Ex. PW3/H. PW-5 further deposed that after that they all alongwith seized vehicles and both the accused came back to Delhi. PW-5 further deposed that at about 6.30 PM, at the instance of accused Humanyu and Nasir, they reached at Mall Road, Delhi, there at about 7.00 PM, at the instance of both the accused, they apprehended Zahid and Anis in the workshop of denting and painting. PW-5 further deposed that their disclosure statements were recorded vide Ex. PW3/I and Ex. PW3/J. PW-5 further deposed that the accused persons got recovered one Bajaj Scooter bearing no. HR-10-8593 from the said workshop, same was taken into police possession vide seizure FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 7/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC memo Ex. PW3/K. PW-5 further deposed that both the accused persons were arrested vide arrest memo Ex. PW3/L and Ex. PW3/O. PW-5 further deposed that after that, he alongwith the police team came at the PS Gokalpuri and the case property was deposited in the malkhana and the accused persons were sent to lockup. PW-5 further deposed that on 17.02.2003, he again joined the investigation of the present case with HC Jaivir, Ct. Sunder and Ct. Anil and accused persons were take out from the lockup and were taken to AATS Office. PW-5 further deposed that the accused persons made the disclosure statement, which is Ex. PW3/P, PW3/Q, Ex. PW3/R and Ex. PW3/S. PW-5 further deposed that accused Anis and Zahid were taken to Okhla and on the instance of Zahid one stolen Maruti Van on which number plate of No. DAV-6718 was placed was got recovered from the Batla House in a gali, behind the mosque. The same was taken into police possession vide seizure memo Ex. PW3/T. PW-5 further deposed that after that, the accused Anis took us to Mall Road, Khyber Pass workshop and put his hand on a scooter bearing no. HR-05-F-7973, which was stated to be stolen from Desh Bandhu Gupta Road and the original number of the scooter was taken into police possession vide memo Ex. PW3/U. PW-5 further deposed that after that they came back to PS Gokalpuri and the case property was deposited in the malkhana.
The said witness was not cross examined by the Ld. defence counsel. PW-7 is HC Sunder Lal the other member of the AATS/North-East whose testimony is same as that of PW-5 and is thus not reiterated. PW-7 was also not cross examined on behalf of the defence.
4. Thereafter, PE was closed. Statement U/s. 313 Cr.PC of the accused FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 8/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC persons were recorded, wherein they stated that they do not want to lead their defence evidence. Accordingly, DE stands closed. Final arguments have been heard from both the sides and record has been meticulously perused.
5. I have weighed the rival submissions made on behalf of the State as well as on behalf of the defence in the light of the testimonies & material appearing on record.
6. Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused persons. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused persons.
7. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused persons to acquittal.
8. To prove the offences U/s. 379/411 of IPC, the prosecution is required to prove the following:-
FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 9/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC
(i) that the property in question is movable property;
(ii) that such property was in the possession of a person;
(iii) that the accused moved such property whilst in the possession of that person;
(iv) that he did so without the consent of that person;
(v) that he did so in order to take the same out of the possession of that person;
(vi) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
(vii) that the property in question is stolen property.
(viii) that the accused received or retained such property.
(ix) that he did so dishonestly.
(x) that he knew or had reason to believe that the property was
stolen property.
9. I have heard the contention of Ld. APP for State as well as Ld. Defence counsel and given my thoughtful consideration. To prove the present offence, the Prosecution has examined six witnesses in all. To Prove the ingredients of offences, the Prosecution was required to prove that the stolen property has been recovered from the possession of the accused persons. In the aforesaid factual & legal background, I shall now step forward to adjudicate as to whether the prosecution has succeeded in proving its case against the accused persons or not.
10. The prosecution had examined the Complainant/Sh. Bhawuk Garg as PW-1, who had deposed that his father Sh. Brij Bhusan Garg is the registered owner of Maruti Car bearing no. DL-3CE-1245. PW-1 deposed FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 10/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC that he had gone to attend the marriage of his friend's sister on 07.02.2003 and same was parked at around 8/8.30 PM, outside Banquat Hall and when he returned back at about 11.00 PM, he found his car was missing. PW-1 further deposed that he immediately made a complaint to police Ex. PW1/A, bears his signature at point A. PW-1 further deposed that police informed him after about 1 & 1 & half month recovery and his father got released the said car on superdari. The said car is Ex. P-1.
PW-1 further deposed that the said car was not recovered in his presence. Thus it becomes clear that the PW-1 had not witnessed any of the recoveries allegedly made at the instance of the accused persons from their respective residences/premises and hence the testimony of PW-1 is of no assistance to the case of the prosecution alleged against the accused persons in respect of the recoveries effected from them.
11. Similarly, Ct. Anil Kumar, who had deposed that on 16.02.2003, he was posted at AATS-NE as Constable. On that day, he alongwith Inspector C.S. Rathi, HC Jaivir, Ct. Sunder Lal, Ct. Nafees, Vt. Ved Pal, Sunil and Arvind joined the investigation of the present case and went to Amroha and at about 6.30 AM, they reached PS Amroha. PW-3 deposed that then from where they took HCP Harbans Singh and alongwith a secret informer, and at the instance of Secret informer at about 7.30 AM, they reached mohalla Lakda Naugaja. PW-3 further deposed that at about 11.30 AM, accused Nasir, whose name came to know from his was apprehended by them on the instance of secret informer from the corner of the gali. PW-3 further deposed that then Inspector C.S. Rathi inquired from the accused Nasir and recorded his statement which is Ex. PW3/A, in which he discloses some offences and stated to recover the stolen FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 11/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC vehicles which he had stolen in several offences and accused Nasir got recovered one Yamaha Motorcycle from his house, which is situated in Gali of Mohalla, Lakda Naugaja, whose number he did not remember. PW-3 further deposed that HC Jaivir took into possession of the motorcycle vide memo Ex. PW3/B. PW-3 further deposed that then accused was arrested vide arrest memo Ex. PW3/C and accused was personally searched vide memo Ex. PW3/D. PW-3 further deposed that at the instance of accused Nasir, they went to the house of Humayun i.e. H.No. 119, Mohalla Afganana and he was apprehended. PW-3 further deposed that Inspector C.S. Rathi inquired accused Humayun and his disclosure statement was recorded by HC Jaivir Singh, which is ex. PW3/E. Then at the instance of accused Humayun they went to Vasudev Road and in front of MM Jeenat Nisha Higher Secondary School, from one godown, on which iron gate was there, accused Humayun opened the gate and got recovered one Maruti Zen Zar, who full number he did not remember, but number was 4797 and also got recovered Maruti 800 bearing no. DL-3CE-1245. PW-3 further deposed that HC Jaivir took into the possession of the said cars vide memo Ex. PW3/F. PW-3 further deposed that accused Humayun was arrested vide memo Ex. PW3/G and personal search memo Ex. PW3/H. PW-3 further deposed that then they alongwith both the accused and alongwith both the cars and motorcycle left the spot to Delhi. PW-3 further deposed that at about 6.30 PM at the instance of accused Humayun and Nasir, they reached Ml Road, Delhi. PW-3 further deposed that then at about 7.00 PM, at the instance of both accused, they apprehended Zahid and Anis from their work shop of denting and painting. PW-3 further deposed that HC Jaivir recorded their disclosure statements. Disclosure statement of Zahid and Anis are Ex.
FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 12/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC PW3/I and PW3/J, respectively and got recovered one Bajaj Scooter bearing no. HR-10-8395 from the said work shop. PW-3 further deposed that the said scooter was taken into police possession vide memo Ex. PW3/K. PW-3 further deposed that both accused persons were arrested vide arrest memos Ex. PW3/L and Ex. PW3/M and they were personally searched vide memos Ex. PW3/N and Ex. PW3/O. PW-3 further deposed that thereafter they came at the PS Gokalpuri and put the accused persons behind the bars and deposited the case property in Malkhana then on the next date i.e. 17.02.2003, he again joined the investigation of the case and alongwith HC Jaivir, Ct. Sunder Lal, Ct. Ved Pal and other police officials and took out all the four accused persons from Lock Up and took all the accused persons to ATS office and recorded their disclosure statements which are Ex. PW3/P, PW3/Q, PW3/R and PW3/S. PW-3 further deposed that then they took the accused Anis and Zahid to Okhla and on the instance of Zahid recovered a Maruti Van on which plate no. DAV 6718 was given, got recovered from Batla house in a gali, behind the mosk, which was taken into possession vide Ex. PW3/T. PW-3 further deposed that then accused Anil took them to Mal Road at Khaiber Pass work shop and put his hand on a scooter which was standing there, on which number plate of number HR-05F-7973, which was taken into police possession vide memo Ex. PW3/U. PW-3 further deposed that thereafter they came back at the PS, case property deposited in malkhana.
12. The remaining recovery witness examined by prosecution were PW-5 HC Ved Pal and PW-6 HC Sundar Lal and testimonies of the said witnesses are akin to that of PW-3 Ct. Anil Kumar and thus need not to be reiterated. Apart from the above, there are various other material contradictions in the FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 13/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC testimonies of the recovery witnesses of the police, which has dented the case of the prosecution very deeply.
13. Now the question arises whether the disclosure statement of accused persons (Ex. PW3/A, PW3/E, PW3/I and PW3/J) can be read against them. There is clear evidence which could establish as to which of the accused persons made the statement first, which led to the recovery. The joint statement is not admissible in the eyes of law. I am enlightened by the judgment of Hon'ble High Court of Sikkim in case titled as " Prem Bahadur Rai Vs. State of Sikkim" cited as ' 1978 CRI.L.J.945 (1)', wherein it has been held that:-
"...para no. 18. 27 of the Indian Evidence Act. But, as already noted, the evidence is too vague to lead us to any conclusion as to, which of the accused persons made the alleged disclosure or the statement in consequence whereof the discovery was made. Since there is no clear evidence as to which of the accused persons made the crucial statement first, which could have led the police to the alleged discovery of Exhibit, 1, the so-called joint statement of the accused persons cannot be relied on under Section 27 of the Indian Evidence Act.."
14. It is clear from the testimonies of PW-3 Ct. Anil Kumar, PW-5 HC Ved Pal and PW-6 HC Sundar Lal that they had joined the investigation with other police officials and on 16.02.2003, they left the AATS-NE Office with other police officials for reaching the Amroha. After reaching Amroha, accused persons namely Nasir and Humayun were arrested by the police party and on their disclosure statement accused persons namely Mohd. Zahid and Anish ( since deceased) were arrested by the police party at Delhi and on the basis of their disclosure statement the police officials had recovered FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 14/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC the stolen vehicle. Be that as it may, now if the said police officials were not present within the AATS/NE Office at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival in the D.D. Register.
Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:-
(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.
15. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of the said PW-3, PW-5 and PW-6. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of the said police officials at AATS/NE Office or near the place of the recovery. It is also worth mentioning that as per the case of the prosecution that police officials who apprehended the accused persons were posted at AATS/NE Office at the time of incident. However, no DD entry in support of this fact FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 15/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC has been placed on record which the said police officials had left the AATS/NE Office before the recovery and by which they had arrived at PS Gokalpuri after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused persons and the recovery of the stolen vehicles, since the said police officials were under bounden duty to enter their departure & arrival entries in that respect as per the aforesaid mentioned P.P. Rule. 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 had observed as under:-
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery"
16. In circumstances like the present one, the PW-3, PW-5 and PW-6 should have made an effort to join public witnesses during the recovery proceedings and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of the recovery or after the recovery, when the accused persons were already apprehended, since after the apprehension of the accused persons, there was no possibility of accused FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 16/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC persons escaping their arrest or their crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the recovery by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 17/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
17. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under:-
FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 18/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution 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".
"6. In the present case, the State examined two witnesses namely, Nirmal Kumar Jha SI who appeared as PW8 and HC Sukhpal Singh, PW-9. 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 joint. 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 stereo- type 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".
18. The testimonies of the recovery witnesses of the police i.e PW-3, PW-5 & PW-6 have also brought nothing on record so as to even remotely suggest that before effecting the recovery of the case properties from the respective houses/premises of the accused persons, the said police officials had offered their own personal search, either to accused persons or to any other member of the public/family member's of accused present at the spot of the respective recoveries.
At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa"
FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 19/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC decided on 24/11/1984 wherein the following was held :-
"10. 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 others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cr. L.J. 279), State of Bihar Vs. 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 PWs 2 & 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 intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
19. Being guided by above said case law, the possibility of false planting of the case property by the police party against accused persons can not be ruled out beyond doubt, which makes the story of prosecution qua the recovery of the case properties at the instance of accused persons from their respective houses highly doubtful.
20. From the aforesaid discussion, it has become clear that the prosecution has failed to prove beyond reasonable doubt that the case properties recovered in this case were recovered from the respective houses/premises of the accused persons at their instances. Once the prosecution has failed to prove the connection between the accused FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 20/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC persons and the case properties recovered in this case, it will be totally unsafe to convict any of the accused persons under Section 379/411 IPC, rather, the aforesaid facts and discussion clearly entitles the accused to the benefit of doubt. Moreover, aforementioned contradictions, omissions and lacunas clearly shows that the prosecution has been unable to prove the recovery alleged against the accused persons beyond reasonable doubt, whereby the accused persons have become entitled to the benefit of doubt. Accordingly, I accord the benefit of doubt to the accused persons, whereby the accused persons are acquitted of the charges levelled against them in the instant case.
Announced in the open court today itself i.e. 25.06.2013 (JITENDRA SINGH) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 21/21 FIR No. 40/2003 PS: Gokalpuri Under Section 379/411/34 IPC FIR No. 40/2003, PS Gokal Puri, State Vs. Anis & others 22/21