Delhi District Court
State vs . Suresh & Ors. on 10 May, 2013
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Suresh & Ors.
FIR No.759/02
U/s : 411 IPC
P.S. : Malviya Nagar
Date of institution of case : 08.11.2002
Date on which case reserved for judgment : 25.04.2013
Date of judgment : 10.05.2013
JUDGMENT
1.FIR No. of the case : 759/02 2.Date of the Commission : 29.08.2002 of the offence
3.Name of the accused : 1. Suresh s/o Sh. Gore Singh
: r/o H. No. C-1/78, Nehru Vihar, New
: Delhi (PO).
: 2. Khursheed s/o Sh. Asloof Khan
: r/o B-257, Hauz Rani, Malviya Nagar,
: New Delhi.
4.Name of the complainant : Sh. R.S. Malik s/o Sh. S.S. Malik
: r/o H. No. 105, RPS flat, Sheikh Sarai
: Phase-I, New Delhi.
5.Offence complained of : 411 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
State Vs Suresh & Anr. FIR No. 759/02 1/9
BRIEF FACTS
1. The story of the prosecution is that on 29.08.2002 at Pankha Road, Janakpuri opposite Chanan Devi Hospital, New Delhi, within the jurisdiction of PS Malviya Nagar, both the accused persons namely Suresh and Khursheed were found in possession of one Maruti car bearing no. DL-9CF-1148 belonging to the complainant R.S. Malik which they retained knowingly or having reason to believe the same to be stolen property and thereby committing offence punishable under section 411 IPC.
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 08.11.2002.
4. On the basis of the charge-sheet, a charge for the offence punishable under section 411 IPC was framed against the accused persons namely Suresh and Khursheed and read out to the said accused persons, to which they pleaded not guilty and claimed trial on 27.01.2003.
5. To prove its case, prosecution examined the following witnesses:
Appreciation of Evidence
6. PW-1 HC Veer Sen was examined on 24.02.2003 and deposed that he had brought the summon records of register no. 19 pertaining to the case FIR no. 759/02, u/s 379 IPC, State Vs Suresh and on 01.09.02 when he was working as MHC(M) at PS Malviya Nagar, a maruti car bearing no. DL-9CF-1148 which was stolen in the case FIR no. 759/02 was recovered from the area of PS Janakpuri on 29.08.2002 and the said recovered vehicle was taken by SI Vijay Sanwal who had deposited the said vehicle in the malkhana vide store room register part I at serial no. 2402, copy of the said record is Ex. PW-1/A (OSR).
7. This witness was not cross examined by the accused despite State Vs Suresh & Anr. FIR No. 759/02 2/9 opportunities given.
8. PW-2 Sh. Rakshpal Singh Malik being complainant was examined on 24.02.2003 and deposed that on 28.08.2002 in the evening he had parked his car bearing no. DL-9CF-1148 make Maruti Zen and on the next day at about 5.00am when he got up, his car was found missing from there. Then, he went to the police station and had lodged a complaint which is Ex. PW-2/A. On 02.09.02 he got released his vehicle from the court on superdari vide superdginama vide Ex. PW-2/C. The RC of the car is Ex. PW-2/B. He further deposed that after he had lodged the report no police official had came along with him to his residence to inspect the site from where his car was stolen on the same day and on the next day SI had came to his residence to inspect the place from where his car was stolen.
9. This witness was not cross examined by the accused despite opportunities given.
10. PW-3 ASI Sudershan Kumar was examined on 24.03.2003 and deposed that on 28.08.2002 he was posted in PCR van no. P-49 and on that day he was present at C-1, Janakpuri Pankha Road, in the meanwhile, one maruti car bearing no. DL-9CF-1148 was seen going from the side of Janak Cinema to Uttam Nagar and on suspicion he signaled to stop the car but driver of the car did not stop. Then, he chased and stopped the car at Tilakpur, Pankha Road, due to which two boys standing in Maruti Car tried to flee away but they were apprehended. Thereafter, he informed at PS Janakpuri and SI Sultan Singh came at the spot. The car was taken into possession and seized vide Ex. PW-3/A. Thereafter, on 24.09.2002 he went to PS Malvivya Nagar as regards the interrogation of above said stolen car where two boys present were identified by him.
11. This witness was not cross examined by the accused despite State Vs Suresh & Anr. FIR No. 759/02 3/9 opportunities given.
12. PW-4 ASI Usha Verma who is a formal witness was examined on 24.03.2003 and proved the copy of FIR vide Ex. PW-4/A. On 29.08.2002 one maruti zen car no. DL-9CF-1148 through DD no. 5-A was deposited in PS Janakpuri vide Ex. PW-4/A.
13. This witness was not cross examined by the accused despite opportunities given.
14. PW-5 HC Kamlesh Kumar was examined on 01.07.2008 and deposed that on 30.08.02 he was posted as HC at PS Janakpuri and on that day he along with SI Ishwar Singh and Ct. Surender were on patrolling at B-1, Community Center, Janakpuri where one secret informer informed to him that two persons would come to the liquor shop in a stolen Maruti Zen and if raided they can be apprehended. Thereafter, IO prepared a raiding party comprising the aforementioned officials along with secret informer and they reached near the liquor shop at about 4.30pm where the Maruti Zen car approaching from the side of A Block was stopped on the pointing out of the secret informer. Both the accused persons namely Khursheed and Suresh (PO) were apprehended. Their disclosure statements were recorded vide memos Ex. PW-5/A and B respectively. Pointing out memo of the place of theft was prepared vide Ex. PW-5/C and D respectively.
15. This witness was cross examined by Ld. Defence counsel wherein he stated that the disclosure statements of the accused persons were recorded by SI Manoj Kumar on 31.08.2002 at PS. His statement was recorded on 01.09.02 by SI Manoj Kumar. He further deposed that no public persons was present at the time of recording of disclosure statement. He denied the suggestion that the accused was arrested from his residence at Hauz Rani and nothing has been recovered from the possession of the State Vs Suresh & Anr. FIR No. 759/02 4/9 accused and no disclosure has been recorded of the accused.
16. PW-6 SI Raghubir Singh who is a formal witness was examined on 22.09.2011 and proved the copy of FIR vide Ex. PW-6/A.
17. This witness was not cross examined by the accused despite opportunities given.
18. PW-7 Inspector Ishwar Singh was examined on 22.09.2011 and deposed that on 30.08.2002 he was posted at PS Janakpuri as SI and on that day he along with HC Kamlesh and Ct. Surender were on patrolling duty and at about 4.00pm when they were present at B Block Janakpuri, they received a secret information that two boys were roaming in stolen Maruti Zen Car and would come there to buy liquor and stolen car be recovered if those boys were apprehended. Request was made to public persons but none came forward. Thereafter, at about 4.30pm they reached the spot and at the instance of informer one Maruti Zen car bearing no. DL-4CG-3230 was stopped in two boys were found sitting. Both boys came out and started running after seeing them towards different directions who were nabbed by them at a little distance. Thereafter, he inquired about said car which was found stolen from the the area of Malviya Nagar. He seized the car. Rukka was prepared and FIR was got registered. After registration of case further investigation was handed over to SI Manoj kumar.
19. This witness was not cross examined by the accused despite opportunities given.
20. PW-8 Inspector Manoj was examined on 08.12.2011 and deposed that on 01.09.02 he was posted at PS Janakpuri as SI and on 30.08.2002 he was handed over the investigation in case no. 453/02, u/s 411/34 IPC and he along with IO Ishwar Singh went to the spot at Main Road near B-1, Community Center where accused present in the court was State Vs Suresh & Anr. FIR No. 759/02 5/9 arrested by the IO. The pointing out memo was prepared vide Ex. PW-5/C and D. The disclosure statement of both the accused were recorded vide Ex. PW-5/A and B. His statement was recorded by the IO.
21. This witness was not cross examined by the accused despite opportunities given.
22. PW-9 HC Awadh Bihari was examined on 24.08.2012 and deposed that he was posted as MHCM at PS Janakpuri and on 29.08.2002 vide DD no. 5-A, the case property of the present case i.e. Maruti Zen bearing no. DL-9CF-1148 was deposited in the malkhana of PS Janakpuri and the same was transferred to the malkhana of PS Malviya Nagar vide RC no. 46/21/02. The copy of register no. 19 is Ex. PW-4/D (OSR). The copy of road certificate is already Ex. PW-1/A (OSR).
23. This witness was not cross examined by the accused despite opportunities given.
24. As all the witnesses were examined by the prosecution. PE was ordered to be closed on 24.08.2012. The statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 05.11.2012 wherein he stated that he does not want to lead any defence evidence.
25. Final arguments were advanced by Ld. APP for State and Ld. Counsel for accused. Heard.
Reasons for Decision
26. In order to prove the allegations of offence punishable u/s 411 IPC, the prosecution need to prove the following essential ingredients:-
That the accused has dishonestly received or retained any stolen property knowing or having reason to believe the same to be stolen property.
27. In order to prove the above ingredients the prosecution has State Vs Suresh & Anr. FIR No. 759/02 6/9 examined 9 witnesses in total. PW-2 is the complainant namely Sh. R.S. Malik who was summoned for proving the complaint Ex PW-2/A. This witness deposed that he lodged the complaint Ex. PW-2/A regarding his car bearing no. DL-9CF-1148.
28. At the same what is required to be proved is that the accused retained the stolen property and the same was recovered from him. A perusal of deposition of various police officials reveals that there are various contradictions in the facts narrated.
29. Further, the main recovery witnesses are police official who had given contradictory deposition as regards the place of recovery of the said car.
30. Further, no public witnesses to the recovery which is essential in cases in which recovery is the sole ground for conviction of the accused. It has further been stated by the PWs that public persons were requested to join the investigation but none of them agreed and left the spot. There is no explanation why no notices u/s 174 IPC read with section 42 Cr.P.C. were issued upon public persons.
In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
The failure of the prosecution to examine independent witnesses though available is fatal for their case.
In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that:-
Where the IO has failed to even note down the names and addresses of the State Vs Suresh & Anr. FIR No. 759/02 7/9 persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 the division bench of Honorable Justices Sh. S.B.Sinha and Sh. Dalveer Bhandari observed:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken.
Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus:
"The court may presume-
(a)***
(b)***
(c)***
(d)***
(e)***
(f)***
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who holds its."
An adverse inference, therefore, could be drawn for non-examination of material witnesses." (emphasis supplied)
31. In absence of a public witness to the recovery and also in absence of an explanation as to why a public person was not joined, the prosecution has failed to prove the recovery of the vehicle from the accused beyond a reasonable doubt.
State Vs Suresh & Anr. FIR No. 759/02 8/932. Thus, the prosecution has not been able to prove the guilt of the accused beyond a reasonable doubt.
33. Further the prosecution has failed to prove that the car was recovered from the accused Khursheed due to the following reasons :
1. There is no direct evidence to connect the accused with the recovery.
2. Recovery also could not be proved.
3. There are contradictions as regards the place of apprehension of the accused with the stolen car.
34. In the light of the above discussion, accused Khursheed is acquitted for offence u/s 411/34 IPC.
Previous bail bond in compliance of section 437-A Cr.P.C. to remain in force for a period of 6 month from today. File be consigned to record room.
Announced in the Court
on 10.05.2013 (CHETNA SINGH)
MM-02(SD)/10.05.2013
Certified that this judgment contains 9 pages and each page bears my signatures.
(CHETNA SINGH) MM-02(SD)/10.05.2013 State Vs Suresh & Anr. FIR No. 759/02 9/9