Delhi District Court
State vs . Bharat Bhushan Etc. on 29 November, 2014
IN THE COURT OF SH. DEVENDER NAIN
METROPOLITAN MAGISTRATE: WEST05, DELHI
FIR No. 631/1997
Case ID: R0082741998
State Vs. Bharat Bhushan etc.
PS Vikas Puri
U/s 379/411 IPC
Date of Institution of case : 05.10.1998
Date of Judgment : 29.11.2014
JUDGMENT:
a) Date of offence : 13/14.10.1997 b) Offence complained of : U/s 379/411 IPC c) Name of Accused, his :1) Bharat Bhushan, parentage & residence S/o Chela Ram FIR No. 631/97 1 of 28 PS Vikas Puri Valecha, R/o RZ17, 3rd Floor, Indra Park Extension, Uttam Nagar, New Delhi. 2) Sanjay Motiyani @ Sanju, S/o Gurmukh Dass, R/o B2/4, Sector15, Rohini, New Delhi. d) Plea of Accused : Plead not guilty e) Final order : Acquitted BRIEF FACTS AND REASONS FOR DECISION:
Case of the prosecution in brief is as follows:
1. That on 13/14.10.1997 at midnight at opposite Shiv Mandir, ABlock, Vikas Puri within the jurisdiction of PS Vikas Puri both FIR No. 631/97 2 of 28 PS Vikas Puri accused persons stolen Maruti Car Van bearing registration no. DL1CC2216 of navy blue color and the same was recovered from their possession at Munirka Market, Delhi and thereby committed an offence punishable u/s 379/411 IPC.
2. Court took cognizance of the abovesaid offences and the charge against accused persons was framed on 06.05.1999 and a prima facie case was made out against the accused persons and charge was accordingly framed against the accused persons for offence punishable u/s 379/411 IPC to which accused persons pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined 06 witnesses.
4. PW1 is HC Roshan Lal who deposed that on 14.10.1997 he was posted at PS Vikas Puri as Duty Officer who received the rukka sent through ASI Mahinder Singh and on the basis of the same, registered present FIR.
FIR No. 631/97 3 of 28 PS Vikas Puri
5. PW2 is Sh. Nirmal Singh who deposed that on the intervening night between 13.10.1997 and 14.10.1997 he parked his vehicle in front of PS Vikas Puri near Mandir and the vehicle was Maruti Van No. DL1CC2216 color blue. PW2 further deposed that he noticed that his vehicle was stolen by some unknown person and it was not found at place where he parked the same. He further deposed that he lodged the complaint before police and thereafter upon the recovery of vehicle by the police, PW2 took the same on superdari through court.
At the time of cross examination by counsel for accused Bharat Bhushan, PW2 deposed that he cannot show any receipt entering of parking and he had gone near Mandir for attending a marriage ceremony of his relatives. He further deposed that he had disclosed the same fact before the police (confronted with Ex.PW2/A where it is not so written). He further deposed that he had shown the invitation card to the police. PW2 denied the suggestion that he had not parked the vehicle at place from where it was stolen. He further deposed that the place where he had parked vehicle was not a specific parking but he had parked the same in manner people used to parked their vehicle outside FIR No. 631/97 4 of 28 PS Vikas Puri the function wedding etc. He further deposed that he cannot say but the police must have prepared the site plan of the place from where the vehicle was stolen.
At the time of cross examination by counsel for accused Sanjay, PW2 deposed that the FIR was registered on 15.10.1997. He admitted that the registration is stand in his name, the vehicle which was stolen and he had disclosed the factum regarding the theft of his vehicle to the other attendees of function and thereafter he lodged the report before police and those attendees had accompanied him to PS Vikas Puri and police did not record their statements.
6. PW3 is SI Mahender Singh who deposed that on 15.10.1997 he was posted at PS Vikas Puri and one Nirmal Singh came to PS and got his statement recorded and PW3 prepared the rukka and handed over the same to duty officer for registration of case FIR and PW3 also informed the PCR and obtained the copy of FIR and rukka from the DO and accompanied the complainant to the spot and prepared site plan at FIR No. 631/97 5 of 28 PS Vikas Puri the instance of complainant. PW3 further deposed that he informed the CRO and the other concerned authorities regarding the theft of vehicle and recorded the statements of witnesses. PW3 further deposed that on 09.11.1997 he received information from ATS CP regarding recovery of vehicle in this case and he collected the papers from SI Santosh Kumar of ATS, CP and he also sought production warrant of accused Sanjay and Bharat Bhusan and both accused were then formerly arrested after seeking permission from the Court. PW3 further deposed that both accused persons were also sent to JC and he recorded the statements of witnesses and the vehicle in question No. DL1CC2216 was also got transferred from PS CP to PS Vikas Puri and later on the said vehicle was released on superdari on the orders of the Court.
At the time of cross examination by counsel for accused Bharat Bhushan and Sanjay, PW3 deposed that Nirmal Singh had come alone to the PS at about 8.458.50 am and he directly came to PW3 as PW3 was on emergency duty at that time. PW3 further deposed that Ex.PW2/A was written by him in his own handwriting and he cannot tell whether Nirmal Singh himself called PCR or not. He further deposed FIR No. 631/97 6 of 28 PS Vikas Puri that he also made inquiries from Nirmal Singh even after registration of the case FIR and when he was endorsing the statement of Nirmal Singh he also stated that the car was parked by him near Shiv Mandir where he had gone to attend a marriage. He further deposed that the complainant did not show any marriage card / invitation card to him and he also did not asked him to do so. He further deposed that he was not aware about the names of the parties of the marriage although, he was aware that a marriage function was there because the marriage function site was near the PS. PW3 further deposed that he left the PS at about 9.30 am and he went alone only with Nirmal Singh and he cannot say about the opening and closing time of the Mandir and he did not notice whether the Mandir was closed or opened when he prepared the site plan although one big gate was closed. He further deposed that where the car was parked as stated to him by Nirmal Singh no such parking was there and there is no authorized car parking. PW3 denied the suggestion that he had neither recorded the statement of the complainant nor prepared the site plan or that the whole proceedings were prepared while sitting in PS or that vehicle never stolen.
FIR No. 631/97 7 of 28 PS Vikas Puri
7. PW4 is HC Tej Pal Singh who deposed that on 06.11.1997 he was posted at AATS New Delhi and on that day SI Santosh Kumar was having a secret information that some persons would come in stolen vehicle in Connaught Place area and on this SI Santosh Kumar prepared a raiding party consisting of PW4, IO himself, HC Narender and the total five members who were police officials were members of raiding party. He further deposed that on or about 11.00 / 12.00 noon a nakabandi was made at in front of Mohan Singh Place and after about half an hour one Maruti Van No. DL1CC2216 came from the side of CP and the Maruti Van was being driven by accused Sanjay and accused Bharat Bhushan was sitting besides driver. PW4 further deposed that on their signal accused persons stopped their van and IO asked to show the documentary proof of ownership regarding van, but the accused persons failed to produce any such proof to IO and both accused persons made a disclosure statement wherein they admitted that they have committed the theft of said Maruti Van from area of Vikas Puri and IO seized the van and IO also got registered case u/s 411/34 IPC at PS CP bearing FIR No. 1320/1997. PW4 further deposed that accused persons got recovered FIR No. 631/97 8 of 28 PS Vikas Puri three other vehicles bearing No. DL1CE0595 from at in front of Priyanka Tower, Basaidarapur, New Delhi on the next day.
During cross examination by Ld. APP for the State, PW4 deposed that on that day when they made nakabandi both accused came driving vehicle No. DL5CA1499 and both accused persons failed to show documentary evidence and IO seized Maruti car No. DL5CA1499 from possession of accused persons and on recovery of the above vehicle IO got registered FIR No. 1320/97 at PS CP u/s 411/34 IPC. He further deposed that after registration of FIR No. 1320/97 during PC remand both accused persons led them to Munirka Market in front of main road and from near the Tempo Stand at the pointing out of both accused persons Maruti Van No. DL1CC2216 was got recovered. PW4 further deposed that both accused persons disclosed that they have committed theft of said vehicle from in front of PS VP. He further deposed that IO seized Maruti Van No. DL1CC2216 which is case property of this case u/s 102 CrPC.
8. PW5 is ASI Narender Singh who deposed that on FIR No. 631/97 9 of 28 PS Vikas Puri 06.11.1997 he was posted at AATS Office, New Delhi District, New Delhi and on that day both accused persons namely Bharat Bhushan and Sanjay Motiyan @ Sanju were arrested in case FIR No. 1320/97 u/s 411 IPC PS Connaught Place and accused persons were made disclosure statements that they had stolen one Maruti Car white colour bearing No. DL1C0595 and one Maruti Van blue colour bearing No. DL1CC2216 from the area of Vikas Puri and they disclosed that they had stolen the said Maruti car 10 days before in front of PS Vikas Puri, Florence Nightingale School near Shiv Mandir and the said Maruti Van was stolen from F Block Parking Vikas Puri at the time of Diwali Mela in the night by them. PW5 further deposed that on 07.11.1997 the accused persons were taken on police custody for 02 days and they pointed out to the place from where they had stolen the vehicles. PW5 further deposed that on 08.11.1997 on pointing out of both accused persons one white colour Maruti Car No. DL1CE0595 was got recovered from Priyanka Tower Parking, Basai Darapur Road, Moti Nagar, Delhi and the said Maruti Car was seized vide seizure memo Ex.PW5/E. He further deposed that on the same day one blue colour Maruti van bearing No. FIR No. 631/97 10 of 28 PS Vikas Puri DL1CC2216 was recovered from in front of Munirka Market near Tempo Stand and said Maruti van was also seized vide memo Ex.PW5/F. At the time of cross examination by counsel for accused Sanjay Motiyan, PW5 deposed that he cannot admit or deny as to whether the accused persons were arrested, interrogated and their disclosure statements were recorded on the same day. He further deposed that the said Maruti van was standing in a Tempo stand situated across the Munirka Market on the footpath. PW5 admitted that on 06.11.1997 the vehicle in question, i.e., Maruti Van No. DL1CC2216 had not been recovered.
At the time of cross examination by the counsel for accused Bharat Bhushan, PW5 deposed that he do not remember as to whether IO had asked the Principal / Owner of the school to join in the investigation. He further deposed that the place of recovery was a public place. PW5 further deposed that there was no market at near the place of recovery and it was about 200250 meters and only one Tempo was there at that FIR No. 631/97 11 of 28 PS Vikas Puri time and there was no tempo driver at that time.
9. PW6 is Inspector Santosh Kumar who deposed that on 06.11.1997 he was posted as SI at AATS Office, New Delhi and on that day both accused persons namely Bharat Bhushan and Sanjay Motiyan were arrested in case FIR No. 1320/97 u/s 411 IPC PS Connaught Place and both accused persons had made disclosure statements that they had stolen one white colour Maruti car bearing No. DL1CE0595 and one blue colour Maruti van bearing No. DL1CC2216 from the area of Vikas Puri and they disclosed that Maruti Van bearing No. DL1CC2216 was stolen from A Block Florence Nightingale School, Parking, Vikas Puri at the time of Diwali Mela in the night. He further deposed that pointing out memo of the place from where the said Maruti Van was stolen was prepared. PW6 further deposed that on 08.11.1997 on the pointing out of both accused persons the case property, i.e., blue colour Maruti Van bearing No. DL1CC2216 was recovered from Tempo stand, Munirka Market. The said Maruti Van was seized and the information about the recovery was given to PS Vikas Puri.
FIR No. 631/97 12 of 28 PS Vikas Puri
During cross examination by the counsel for accused Bharat Bhushan, PW6 deposed that public persons were requested to join them at the time of recovery of case property, however, they refused and did not give their names and addresses due to their official exigencies. He further deposed that he did not record the statement of any public person as to for how many days the said vehicle was lying there and he did not inquire about the previous complaint about the standing of the vehicle at the tempo stand. He further deposed that some tempos as well as some public persons were at the spot and he had not prepared any site plan of the spot of recovery and he did not record the statement of the driver of the tempos and he did not record the name and address of the tempo drivers who refused to join the investigation and he did not note down the number of the tempos and it was about 22.30 pm when the case property was recovered. PW6 denied the suggestion that no recovery was taken place in his presence or that the seizure memo was prepared while sitting in the PS. He further deposed that he did not take the photographs of the vehicle.
FIR No. 631/97 13 of 28 PS Vikas Puri
10. On 01.02.2013, statements of accused persons were recorded and all the incriminating evidence was put to the accused persons u/s 281 CrPC in which they denied all the allegations made against them to which accused persons choose not to lead defence evidence. On 13.02.2013, counsel for accused moved an application u/s 315 CrPC for leading defence evidence which was allowed and the matter was fixed for DE on 27.02.2013.
11. DW1 is Bharat Bhushan who deposed that on 05.11.1997 at about 4.00 pm he was going from Bangla Sahab Gurudwara to Palika Bazaar with his friend Sanjay Motiyani in his Tata Sierra car bearing No. 6677 and at in front of Coffee Home place, the police had barricaded the road and police asked to stop their vehicle and asked them to produce the driving license and his friend Sanjay Motiyani was not having the driving license at that time and police officials started misbehaving and also abused them. He further deposed that when they made the protest, then they asked to stand there and told them that "sahab aayenge or baat karenge" and after sometime, the senior police official came there and FIR No. 631/97 14 of 28 PS Vikas Puri took them to Parliament Street PS and they were forced to put out signatures on some blank papers and stayed there in the whole night and police officials did not inform their family members regarding the same. He further deposed that one police official brought the Tata Sierra from the spot to PS Parliament Street and one police official brought the said Tata Sierra car to the house of Sanjay Motiyani. He further deposed that police made the false case against him and they were going to Palika Bazaar on that day for shopping as his friend was getting married on 13.11.1997.
During cross examination by the Ld. APP for the State, DW1 deposed that he did not make any complaint to the senior officer of the police or to the Court with regard to their falsely implication in the present case. He further deposed that there is no eye witness who had seen the incident when the police officials abusing them and his family members did not make any complaint on 100 number with regard to his falsely arrest in PS Parliament Street. He denied the suggestion that they were not misbehaved and abused by the police officials at in front of Coffee Home place, Connaught Place. He further deposed that name of FIR No. 631/97 15 of 28 PS Vikas Puri his friend whose marriage was conducted on 13.11.1997 was Naresh Khemani. He denied the suggestion that no marriage of his friend Naresh Khemani was conducted on 13.11.1997 and due to which he has not brought the marriage card. He denied the suggestion that they were not falsely implicated in the present case or that they were not forced to put their signatures on some blank papers in PS Parliament Street. He denied the suggestion that they were not apprehended on 05.11.1997.
12. At the time of final arguments, it is submitted by Ld. APP for the State that his case is proved beyond reasonable doubts and all the contents of the section are completed and proved beyond reasonable doubt under which the present charge is framed. In reply to this it is argued on behalf of accused persons that prosecution miserably fails to prove its case as there is no public witness to the recovery of the stolen vehicle and there are considerable lacunae in the prosecution version which remains unexplained.
13. I have given thoughtful consideration to the rival FIR No. 631/97 16 of 28 PS Vikas Puri contentions made on behalf of both the sides and perused the judicial file very carefully. PW1 is HC Roshan Lal who was DO. PW2 is complainant Nirmal Singh himself who deposed that his vehicle was stolen by some unknown person and who at the time of cross examination deposed that he could not show any receipt etc. of the parking. At the time of cross examination complainant also deposed that some persons who were attending the marriage function also accompanied him to the PS but police had not recorded their statement. PW3 is SI Mahender Singh who at the time of cross examination deposed that Nirmal Singh had come alone to PS and he had directly came to PW3. PW4 is HC Tejpal Singh who deposed that they had stopped one Maruti Van bearing No. DL1CC2216 coming from the site of CP and when he was cross examined by the Ld. APP for the State he deposed that the number of car was DL5CA1499 and further deposed that on the pointing out of both accused persons Maruti Van No. DL1CC2216 was got recovered. Other witnesses also supported the later version of PW4. This is a big contradiction on the part of the prosecution. When we consider the depositions of other PWs which FIR No. 631/97 17 of 28 PS Vikas Puri shows that Maruti Van No. DL1CC2216 was recovered from a public place then no satisfactory answer is given during deposition on behalf of prosecution as to why no public person was joined to the investigation. Not joining the public person during the investigation strengthen the version of the accused persons. PW5 at the time of cross examination admitted the suggestion that on 06.11.1997 the vehicle in question had not been recovered. PW2 also admitted at the time of his cross examination that the place of recovery was a public place. PW6 deposed during his cross examination regarding the investigation carried out by him on the spot. The manner of investigation also creates reasonable doubt over the prosecution version as he had deposed that he had not prepared any site plan of the spot of recovery and he had not recorded the statements of the drivers of tempos etc. Considering all the depositions on behalf of prosecution, I am of the considered opinion that there are certain material contradictions in the prosecution version. Even there is contradiction regarding the recovery of vehicle in question. Moreover the public persons were not joined to strengthen the version of the prosecution. Place of recovery is also public place which could be in FIR No. 631/97 18 of 28 PS Vikas Puri the knowledge of anybody. In view of the abovementioned discussion and in the absence of any independent public witness joins or produced on behalf of prosecution also creates great doubt over the version of prosecution. This failure on the part of prosecution creates reasonable doubts in the prosecution story. In this regard reliance may be placed on the following case laws: The Hon'ble Delhi High Court in Vijay Kumar Vs. State, 1996, CRI. L.J. 2429, held that:
"42. As far as recovery of a piece of hockey from the room of the appellant, Vijay, is concerned, the said piece of hockey was not lying hidden anywhere. A casual search of the room by the police, would have yielded the said piece of hockey. Section 27 of the Evidence Act could make such disclosure statement of the accused in custody admissible which FIR No. 631/97 19 of 28 PS Vikas Puri leads to discovery of a material fact but if a material fact is selfevident to the police, the disclosure statement of the accused of such material fact becomes inadmissible. In case a particular material fact is in exclusive knowledge of the accused and he makes a disclosure statement pertaining to the same which leads to recovery of such material fact, then and then only such disclosure statement of the accused is admissible in evidence. So, this recovery of piece of hockey cannot be linked to the accused Vijay in view of the above reasons. Moreover, Premwati had stated in Court that Vijay had thrown away the second piece of hockey outside his house. If that is so, the disclosure statement of the appellant, Vijay, becomes all the more FIR No. 631/97 20 of 28 PS Vikas Puri doubtful."
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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 FIR No. 631/97 21 of 28 PS Vikas Puri 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) CLR 69, the Hon'ble 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 possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from 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 FIR No. 631/97 22 of 28 PS Vikas Puri 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 FIR No. 631/97 23 of 28 PS Vikas Puri 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".
In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
FIR No. 631/97 24 of 28
PS Vikas Puri
"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 improbably 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, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2.
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 joined. 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 FIR No. 631/97 25 of 28 PS Vikas Puri 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 stereotype 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."
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is submitted as under: "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police FIR No. 631/97 26 of 28 PS Vikas Puri officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
The Apex Court in Dudh Nath Vs. State of U.P., 1981 CRI. L.J. 618, has held that :
"Evidence of recovery of the pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon wielded it in offence. The statement accompanying the discovery is woefully vague to identify the authorship of concealment, with the result that the FIR No. 631/97 27 of 28 PS Vikas Puri pointing out of the weapon may at best prove the appellant's knowledge as to where the weapon was kept."
14. In view of the aforesaid discussion, considering the submissions of both the sides and considering other facts and circumstances, I am of the considered opinion that prosecution fails to prove its case beyond reasonable doubt. Accordingly, both accused persons are hereby acquitted. Earlier Bail Bonds furnished by accused persons at the time of court bail stands cancelled and sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Fresh Bail Bonds u/s 437A CrPC already furnished by the accused persons are accepted for six months. File be consigned to the Record Room after due compliance.
Announced in the Open Court (DEVENDER NAIN)
th
on 29 day of November, 2014 MM(WEST05):DELHI
FIR No. 631/97 28 of 28
PS Vikas Puri