Delhi District Court
3.Title State vs . Mohd. Asif on 24 October, 2013
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
1.FIR No. 375/2012
2.Unique Case ID No. 02401R0130642013
3.Title State Vs. Mohd. Asif
3(A).Name of complainant Sheikh Subhash, S/o Sh. Sheikh
Farman, R/o H.No. A-39, Gali No.2,
Sewa Sadan Block, PS Mandawali,
Fazalpur, Delhi.
3(B).Name of accused Mohd. Aasif, S/o Sh. Mohd. Azim
Ahmed, R/o Kushal Park Colony, Pusta
Loni, near Altala Masjid, Ghaziabad,
Uttar Pradesh
4.Date of institution of challan 06/03/13
5.Date of Reserving judgment Not reserved. Pronounced on the same
day.
6.Date of pronouncement 06/11/13
7.Date of commission of offence 08/08/12
8.Offence complained of Under Section 379/411 IPC
9.Offence charged with Under Section 411 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Acquittal
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. In the present matter the State machinery was brought into
motion on the complaint of the complainant Sheik Subas pursuant to
which the FIR bearing no. 375/2012 was registered in the present
matter in PS Mandawali.
2. The facts in brief as per the case of the prosecution are that on
8.8.2012 the complainant has parked his motorcycle Bajaj Discover
bearing no. DL-7S-BL-9423 engine no. 43412, Chasis no. 37913, black
colour, 2011 model, in front of his house bearing no. A-39, Gali No.2,
Sewa Sadan Block, Mandawali at around 2.00am and when at around
at 7.00am he checked his motorcycle, the same was not found and
was stolen. Pursuant to the complaint of the complainant FIR was
FIR No. 375/2012 State Vs Mohd. Ashif 1 of 12
registered in the present matter. On 15.12.2012, the said motorcycle
was recovered from the possession of the accused, at his instance by
the police officials of PS Bara Hindu Rao, Delhi and the motorcycle
was seized U/s 102 Cr.P.C. Thereafter, production warrants were
issued through the court and the accused was formally arrested in
the present matter before the court.
3. In the present matter charge sheet was filed by the IO under
the provisions of Section 379/411 IPC on 6.3.2013 and the cognizance
for the offence was taken on 8.3.2013 and thereafter, the copies of
the documents were supplied to the accused on the same date. After
the compliance of the provisions of Section 207 Cr. P.C and after
hearing parties, charge for the offence punishable u/s 411 IPC was
framed against the accused on 3.5.2013, to which he pleaded not
guilty and claimed trial.
4. Thereafter, matter was fixed for prosecution evidence.
Prosecution in order to prove its case against the accused in total
has examined as many as 9 witnesses i.e. Sheikh Subhash; Ct. Kesar;
HC Shiv Kumar; HC Satish Patil; JN Tingcha Assistant Ahlmad; SI
Ravinder Singh; HC Arvind Kumar; HC Mahesh Chand and WCt.
Satesh Sirohi as PW-1 to PW-9 respectively.
5. Statement of accused was also recorded on 10.9.2013 wherein
the accused admitted the execution of road certificate and the
factum of registration of FIR however, denied the contents of the said
documents. In view of the same the said documents were exhibited
as Ex. P-1 and Ex. P-2 respectively and therefore, witnesses i.e.Duty
Officer and MHC(M) for proving road certificate were dropped as
witnesses.
6. Thereafter, prosecution evidence was closed in the present
matter vide order dated 1.11.2013 and matter was fixed for
statement of accused. However, as no sufficient incriminating
material is found on record against the accused, the requirement of
statement of accused is dispensed with and final arguments are
heard as advanced by Ld. APP for State and Ld. Counsel for accused
FIR No. 375/2012 State Vs Mohd. Ashif 2 of 12
and the matter is fixed for orders.
7. PW-1 Sheikh Subhash is the complainant in the present
matter and has deposed that on 8.8.2012, his motorcycle bearing no.
DL-7S-BL-9423, was stolen from the front of his house and therefore,
he lodged a complaint which is Ex. PW-1/A and a site plan was also
prepared on his instance by the police. He further deposed that after
about 4 months he came to know that his motorcycle has been
recovered by the police and thereafter, he got the same released on
superdari from the court vide superdginama Ex. PW-1/B. The witness
had brought the case property alongwith him at the time of
deposition and the same was exhibited as Ex. P-1. In his cross
examination, it was admitted by the witness that he had not seen
anyone stealing his above referred motorcycle.
8. PW-2, Ct. Kesar, has deposed that on 8.8.2012 he was on
emergency duty at the PS and on the receipt of DD No. 10 A,
regarding the theft of motorcycle, he reached at the spot alongwith
the IO where he met the complainant. IO recorded the statement of
the complainant and prepared the rukka and handed over the same
to the witness for getting the case registered. Thereafter, he had got
the case registered and came back to the spot and handed over the
copy of FIR and rukka to the IO. IO searched for the accused and the
case property. However, as nothing was found, he alongwith IO
returned to the PS where IO recorded his statement. In his cross
examination it is admitted by him that nothing was recovered in his
presence.
9. PW-3 HC Shiv Kumar, has proved the DD entry no. 10 A,
before the court which is regarding the report of the theft of
motorcycle.
10. PW-4 HC Satish Patil, has deposed that on 14.12.2012, at
about 6.00pm, he received information from the secret informer that
the accused would come on a stolen motorcycle via Kashmere Gate
Bus Terminal and Azad Market Chowk, towards Sadar Bazar, between
11.00pm to 1.00am in order to meet his accomplice. Thereafter, on
FIR No. 375/2012 State Vs Mohd. Ashif 3 of 12
instructions of senior officers, SI Ravinder prepared a raiding party
and registered DD No. 14 in this regard and the raiding party
departed the PS, after recording entry in DD No.15. The accused was
apprehended at about 11.30pm with motorcycle bearing no.
DL-1ST-3022, whose ownership documents could not be shown by the
accused and on inquiry it came to the knowledge that the motorcycle
was stolen from the area of PS Adarsh Nagar, vide FIR No. 301/2012.
Thereafter, on the asking of SI Ravinder, the witness initiated further
proceedings and seized motorcycle U/s 102 Cr.P.C. and arrested the
accused U/s 41.1 Cr.P.C. and made DD entry in PS Bara Hindu Rao,
with regard to the arrest. The disclosure statement of accused was
recorded Ex. PW-4/A bearing the signature of the witness at point A.
11. It is further deposed by the witness that thereafter he
alongwith other police officers took the accused to Shastri Park and
got recovered one motorcycle stolen from the area of PS Anand
Parvat.
12. Thereafter, he alongwith other police officials took the accused
near Hanuman Mandir at Shastri Park and got recovered another
motorcycle bearing no. DL-7S-BL-9423 which was stolen from PS
Mandawali and they came to know regarding the same after checking
from the zipnet. The motorcycle was seized U/s 102 Cr.P.C. vide
seizure memo Ex. PW-4/B, the site plan was prepared Ex. PW-4/C and
DD No. 39 B was recorded at PS Bara Hindu Rao, regarding the same
and thereafter the witness deposited the case property in the
Malkhana.
13. The witness correctly identified the accused before the court at
the time of his deposition.
14. With respect to the case property, the production was
dispensed with as the same was exhibited as Ex. P-1.
15. In his cross examination it was deposed by the witness that the
disclosure statement of accused was recorded after recovery of first
motorcycle, at the PS and thereafter, they had went for recovery of
the second motorcycle on the next day between 10.00 - 11.00am
FIR No. 375/2012 State Vs Mohd. Ashif 4 of 12
and after recovering the said motorcycle, the entire team went for
recovery of third motorcycle at Hanuman Mandir.
16. It is however, admitted by the witness that all the motorcycles
were standing in the open area. It is further deposed that no notice
could be given to any public person, who refused to join the
investigation, as they had left without disclosing their names and
addresses.
17. It is further deposed by the witness that they left the third spot
after recovery of the third motorcycle at about 12.00-12.30pm.
18. PW-6, SI Ravinder Singh has deposed that on instructions of
the Inspector AATS North, he prepared a raiding party for the
apprehension of the accused and recorded the information of the
secret informer vide DD Number 14 and thereafter he left the office
alongwith the raiding party in official gypsy vide DD No.15 at about
10.00pm on 14.12.2012 and at about 11.30pm at the pointing out of
the secret informer, they apprehended the accused with the
motorcycle who on enquiry could not produce any document
regarding the motorcycle and on enquiry they came to know that the
said motorcycle was required in case FIR No. 301/2012 PS Adarsh
Nagar, and thereafter the said motorcycle was seized vide seizure
memo Ex. PW-5/A. Accused was arrested and his disclosure
statement was recorded Ex. PW-4/A and on the basis of the disclosure
statement other motorcycles bearing no. DL-4S-AZ-4591 and DL-7S-
BL-9423 were recovered at the instance of the accused. The latter
motorcycle was recovered from near Hanuman Mandir Shastri Park
and on enquiry it was found that the motorcycle was required in FIR
No. 375/2012, PS Mandawali. It was seized vide seizure memo Ex.
PW-5/B and was deposited in Malkhana. The accused was correctly
identified by the witness before the court at the time of his
deposition.
19. The identification of the case property was dispensed with as
the same was already exhibited as Ex. P-1. Though its photographs
were shown which were correctly identified by the witness and were
FIR No. 375/2012 State Vs Mohd. Ashif 5 of 12
exhibited as Ex. P-2 and Ex. P-3.
20. In his cross examination it was admitted by the witness that no
notice was given to any public person who refused to join
investigation. The disclosure statement of accused was recorded at
about 6.00-7.00am. For recovery of the motorcycles they left the
office at about 9.00am and reached the place of recovery after about
half an hour.
21. It is further admitted by the witness that the motorcycle which
the case property in the present matter was parked at the gali on the
side of Hanuman Mandir and they finally left the spot at about
11.00-11.30am.
22. PW-7 HC Arvind Kumar is the IO in the present matter and
he has deposed that on 8.8.2012 on receipt of DD No.10 A, he
alongwith Ct. Kesar reached at the house of the complainant and
recorded the statement of the complainant regarding the theft of
motorcycle bearing no. DL-7S-BL-9423 already exhibited as Ex.
PW-1/A upon which he made his endorsement Ex. PW-7/A and
thereafter gave the rukka to Ct. Kesar for registration of FIR.
Thereafter, Ct. Kesar got the FIR registered and came back to the
spot alongwith copy of FIR and rukka which he handed over to the
witness. Thereafter, the witness prepared the site plan Ex. PW-7/B at
the instance of the complainant.
23. It is deposed by the witness that despite best efforts as the
accused and the case property could not be found, untraced report
was filed in the court.
24. Thereafter, on 15.12.2012 on receipt of information, vide DD
No. 63 B of recovery of the stolen motorcycle, from the accused the
witness collected the copy of documents regarding recoveries from
AATS North and applied for production warrant which were allowed
and after the permission of the court the accused was formally
arrested in the court on 7.1.2013 vide arrest memo Ex. PW-7/C. The
disclosure statement of accused was recorded Ex. PW-7/D.
Thereafter, the motorcycle was released to the owner on superdari
FIR No. 375/2012 State Vs Mohd. Ashif 6 of 12
vide superdignama already Ex. PW-1/B and the panchnama of the
case property was prepared Ex. PW-7/E. All documents bore the
signature of the witness. He got recovered the motorcycle from the
malkhana of PS Bara Hindu Rao vide Road Certificate No. 42/21 and
deposited the same at the malkhana of the PS. After preparing
charge sheet the same was filed by the witness in the court.
25. The witness correctly identified the accused present before the
court at the time of his deposition and photographs of the case
property Ex. P-2 and Ex. P-3.
26. PW-5 J.N. Tingcha is the Assistant Ahlmad in the court of Sh.
Lovleen, Ld. MM Tis Hazari Courts and has produced the original
documents i.e. Kalandara U/s 41.1 (b) Cr.P.C. (Ex. PW-5/A), DD No. 5 B
DD No.15, DD No. 14 Ex. PW-5/B to Ex. PW-5/D, site plans, arrest
memo, disclosure statement, seizure memo and pointing out memo
of other motorcycles (Ex. PW-E to Ex. PW-K). Pointing out memo and
recovery memo of the motorcycle which is the case property in the
present case were also brought which were already exhibited as Ex.
PW-4/B (OSR).
27. I have heard the arguments as advanced by Ld. APP for the
State and the Ld. Counsel for the accused.
28. It is a settled legal principle that the prosecution has to prove
its case against the accused beyond the shadow of all reasonable
doubts. The prosecution cannot draw any strength from the weakness
of the case of the accused. It is also a settled proposition in the
criminal law that the accused had a pious right of not to be convicted
for an offence which is not established beyond reasonable doubts by
the prosecution. The burden of proof in a criminal trial always rest
upon the prosecution and the same never shifts on accused.
29. Here it would be appropriate to refer the case law reported
as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the
Punjab & Haryana High Court wherein it was observed as under:-
" In a criminal trial, it is for the prosecution to
establish its case beyond all reasonable doubts. It
FIR No. 375/2012 State Vs Mohd. Ashif 7 of 12
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".
30. Thus even if the accused does not lead any evidence in his
defence, the onus never shifts from the prosecution and the
prosecution has to firstly prove the guilt of the accused and that too
beyond the shadow of all reasonable doubts. The accused has a right
to remain silent and has a right against self incrimination.
31. Now by applying the aforesaid legal propositions of law to the
factual matrix of the present case, let us see as to what extent the
prosecution has been able to prove its case against accused.
32. The accused person in the present case has been charged for
the offence punishable U/s 411 IPC.
33. Section 411 IPC reads as under:-
Dishonestly receiving stolen property-
Whoever dishonestly receives or retains any stolen
property, knowing or having reason to believe the
same to be stolen property, shall be punished with
imprisonment of either description for a term
which may extend to three years, or with fine, or
with both.
34. This section prescribes punishment not against the principle
offender like for instance thief, robber or misappropriator but against
class of persons who trade in stolen articles and are receivers of
stolen property. The offence of receiving stolen property is a
substantive offence and punishes the receiver. For the purpose of
proving the guilt of the accused the prosecution has to prove that the
stolen property was in the possession of the accused and that the
accused had knowledge that the property was stolen property.
35. Illustration (a) to Section 114 of Indian Evidence Act reads as
under: The court may presume - (a) that a man who is in possession
FIR No. 375/2012 State Vs Mohd. Ashif 8 of 12
of stolen goods soon after the theft is either the thief or has received
the goods knowing them to be stolen unless he can account for his
possession.
36. In the present case in hand the prosecution has been able to
prove before the court that theft of the property which a motorcycle
in the present case has occurred, as it has proved the complaint of
the complainant, the registration of the FIR.
37. In the present matter the case property was found by the
police near Hanuman Mandir at Shastri Park. It is deposed by PW-4
that the motorcycle was standing in an open area, it is deposed by
PW-6 that the motorcycle was recovered at the instance of the
accused from near Hanuman Mandir, Shastri Park and was parked at
the Gali on the side of Hanuman Mandir. PW-4 and PW-6 are the
witnesses of recovery and as per their deposition in cross
examination the motorcycle was recovered from a public place in an
open area.
38. Section 25 & 26 of the Indian Evidence Act deals with
confessions made by accused to police officers or while in custody of
police. These sections make the confession made to a police officer
or in custody of a police officer inadmissible in evidence, even though
it may be relevant to the case. However section 27 of Indian
Evidence Act is in nature of a proviso to Section 25 and Section 26 of
Indian Evidence Act.
39. Section 27 Indian Evidence Act reads as under:-
How much of information received from
accused may be proved - Provided that
when any fact is deposed to as discovered in
consequence of information received from a
person accused of any offence, in the custody
of a police officer, so much of such
information, whether it amounts to a
confession or not, as relates distinctly to the
fact thereby discovered, may be proved.
FIR No. 375/2012 State Vs Mohd. Ashif 9 of 12
40. Section 27 is an exception to the rule enacted in Sections 25
and 26 of the Act which provide that no confession made to a police
officer shall be proved as against a person accused of an offence and
that no confession made by any person whilst he is in the custody of
a police officer unless it be made in the immediate presence of
Magistrate, shall be proved as against such person. Where, however,
any fact is discovered in consequence of information received from a
person accused of any offence in the custody of police officer, that
part of the information as relates distinctly to the fact thereby
discovered can be proved whether it amounts to a confession or not.
41. It was held in the case of Pulukuri Kotayya Vs Emperor AIR
1947, PC 67 that this section seems to be based on the view that if
a fact is actually discovered in consequence of information given
some guarantee is afforded thereby that the information was true
and accordingly can be safely allowed to be given in evidence. But
clearly the extent of the information admissible must depend on the
exact nature of the fact discovered to which such information is
required to relate.
42. Thus under Section 27 a confession made by an accused
person to the police is admissible notwithstanding the fact that a
person may be in a police custody as the accused herein while
making confession gives information which actually leads to a
discovery of a fresh relevant fact and thereby gives a guarantee that
a statement made by the accused was correct for it is immediately
corroborated in a most convincing manner by an independent
circumstance, namely the discovery of a relevant fact.
43. In the case of Mohan Lal Vs Ajit Singh AIR 1978 SC 1183,
it was held by Hon'ble Apex Court that, "....It must be concluded that
the incriminating articles were acquired by the respondent at one and
the same time and that it was he and no one else who had robbed the deceased of the money and the ring and had hidden them at a place and in a manner which was known to him".
FIR No. 375/2012 State Vs Mohd. Ashif 10 of 12
44. In the case of Mohd. Inayatullah Vs State of Maharashtra AIR 1976, SC 483 it was observed by the Hon'ble Apex Court that place indicated by the accused was a railway platform and the drums were recovered from there. Since it was a public place and not a place of hiding anyone could have put them there and the accused might have only knowledge of that fact.
45. Thus for the purpose of applicability of Section 27 of the Indian Evidence Act, the recovery of the incriminating article at the instance of the accused would be a valid piece of evidence, if it is proved before the court that the article recovered was from a place of hiding not accessible to all and even if accessible was not ordinarily visible to others. What has to be proved is that the accused has the exclusive knowledge of the place of hiding of the article recovered. Recovery from a place accessible to all and ordinarily visible to others would vitiate the credibility of the evidence.
46. In the present case in hand also the recovery of the motorcycle is made from a public place accessible to all and ordinarily visible to others, as is manifestly clear from the deposition of recovery witnesses as they have deposed that the motorcycle was standing in an open area and on the gali in the side of Hanuman Mandir. This recovery of the motorcycle parked open in a public place ordinarily visible to all is not sufficient to connect the accused with the crime.
47. It is nowhere proved that the motorcycle was hidden by the accused by any cloth in order to show that it was not visible to any other person, or that it was parked in an area which was inaccessible to public. In view of the same, no credence can be given to the recovery made U/s 27 pursuant to the disclosure statement made by the accused.
48. There is nothing on record against the accused accept the recovery of the motorcycle pursuant to his disclosure statement. As the said recovery cannot be relied upon in view of the above said discussion, there is no incriminating material on record against the accused.
FIR No. 375/2012 State Vs Mohd. Ashif 11 of 12
49. Thus the prosecution has not been able to prove its case against the accused and therefore the accused is acquitted for the offence punishable U/s 411 IPC.
50. In view of the above said discussion the accused is acquitted for the offence punishable U/s 411 IPC.
51. He be released from custody if not required in any other case.
Copy of judgment be supplied to him free of cost.
52. File be consigned to record room after due compliance.
Announced in the (Neha Paliwal)
Open Court on 24.10.2013 Metropolitan Magistrate
KKD,-Delhi
It is certified that this judgment contains 12 pages and each page bears my signature.
Neha Paliwal) Metropolitan Magistrate KKD,-Delhi FIR No. 375/2012 State Vs Mohd. Ashif 12 of 12 FIR No. 375/2012 State Vs Mohd. Ashif 13 of 12 FIR No. 375/2012 State Vs Mohd. Ashif 14 of 12