Delhi District Court
State vs . Suresh @ Bhola Etc. on 12 August, 2015
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE (WEST) 03,
TIS HAZARI COURTS, DELHI.
FIR No.483/2005
PS - Nangloi
U/s - 411/34 IPC
State Vs. Suresh @ Bhola etc.
Unique Case ID No.02401R1296602005
JUDGMENT
(a) Sr. No. of the case 1742/1/08
(b) Date of offence 20.10.2005
(c) Complainant Sh. Tejender Kumar S/o Sh. Fakir Chand R/o D - 2/39A, Kunwar Singh Nagar, New Delhi - 110 041.
(d) Accused persons (1) Suresh @ Bhola S/o Sh. Ram Prasad R/o A - 117, Laxmi Park, Nangloi, New Delhi.
(2) Shankar Prasad S/o Sh. Shyam Dev R/o E - 86/6, Inder Enclave, Sultan Puri, New Delhi.
(3) Manoj @ Suraj S/o Sh. Rajpal R/o A - 117, Laxmi Park, Nangloi, New Delhi.
(e) Offence(s) Under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 23.11.2005
(i) Date when judgment Not reserved
was reserved
(j) Date of judgment 12.08.2015
1. The allegations against accused persons are that on 20.10.2005, accused FIR No.483/2005 Page No.1 of 14 persons were found in possession of two ear jhumkas and one gents ring (golden colour) belonging to the complainant Tejender Kumar, theft of which took place on 09.05.2005 from his house situated at Nangloi, Delhi. According to prosecution, accused persons thereby committed offence punishable under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
2. After completion of investigation, chargesheet was filed. Copy of the challan was supplied to all accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for offence punishable under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 was framed against the accused persons vide order dated 08.12.2005 to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE Main Witness(es)
3. Prosecution adduced evidence in support of its case. In this matter, PW2 Sh. Tejender Kumar in gist has deposed that on 09.05.2005, he left his house D
- 2/39A, Kunwar Singh Nagar, Nangloi, Delhi at 04:00 pm and returned at 10:00 pm and on returning, saw that somebody has forcibly removed bolt of his house. He found his household articles scattered, almirah opened and further found cash Rs. 30,000/, one golden chain, one golden ring gents, one pair of silver jhumkies and one FIR No.483/2005 Page No.2 of 14 pair of golden earring missing. Some property documents were also missing. He made call at 100 number on which PCR van came at spot, but, no action was taken. On 13.05.2005, he went to PS, got FIR Ex.PW1/A recorded. He returned for vacations on 16/17.10.2005 and received call from PP Nihal Vihar that some of his articles have been recovered which needs to be identified by him in Court. He came in the Court and identified his one gold ring and one pair of silver jhumki. He had received those articles in marriage and therefore have no proof of ownership. Recovered articles were released on superdari vide Ex.PW2/A. He produced case property in Court and same was exhibited as Ex.P1. PW2 was examined, cross examined by accused persons and was discharged.
4. PW7 Ct. Sunil Kumar in gist has deposed that on 20.10.2005, he along with IO HC Yashpal, Ct. Jagdish and accused Shankar Prasad, Manoj and Suresh went to A - 117, Laxmi Park, Nangloi where on pointing out of all accused persons and after removing one brick of wall, one jhumki and one gents ring were recovered. IO seized case property vide Ex.PW7/A and prepared pointing out memo Ex.PW7/B. Thereafter, they went to SGM Hospital where accused persons were got medically examined and thereafter, they were lodged in lock up. His statement was recorded by IO. He correctly identified accused persons and case property Ex.P1 in the Court. PW7 was examined, crossexamined by accused persons and was discharged. FIR No.483/2005 Page No.3 of 14
5. PW8 HC Jagdish in gist has deposed that on 20.10.2005, he alongwith IO HC Yashpal, Ct. Sunil and accused Manoj, Shankar Prasad and Suresh went to D - 2/39, Kunwar Singh Nagar, Nangloi, New Delhi where on pointing out of all accused persons, the house from which articles were stolen, pointing out memo Ex.PW7/B was prepared by IO. Thereafter, they went to A - 117, Laxmi Park, Nangloi where on pointing out of accused persons from behind almirah in the wall after removing one brick, one pair jhumki and one gents ring were recovered. IO seized case property vide Ex.PW7/A and prepared pointing out memo Ex.PW7/B. Thereafter, they went to SGM Hospital where accused persons were got medically examined and thereafter, they were lodged in lock up. His statement was recorded by IO. He correctly identified accused persons and case property Ex.P1 in the Court. PW8 was examined, crossexamined by accused persons and was discharged.
6. PW10 ASI Yashpal in gist has deposed that on 14.10.2005, accused Shankar made disclosure of present case vide Mark 'A' in case FIR No.1013/2005 of PS Nangloi. On basis of same, he interrogated accused Manoj, Shankar Prasad and Suresh @ Bhola, when they were produced in the Court in case FIR No.1013/2005 of PS Nangloi. During interrogation, accused Shankar disclosed commission of offence of present matter alongwith Manoj, Bansari Dass and Suresh. He recorded disclosure statement of accused Shankar vide Ex.PW6/F, of Manoj vide Ex.PW6/E FIR No.483/2005 Page No.4 of 14 and of Suresh vide Ex.PW6/D. He arrested all accused persons vide Ex.PW6/A to Ex.PW6/C. He got PC remand of all accused persons for one day and on 20.10.2005, all accused persons pointed out place of incident and he prepared memo of the same vide Ex.PW7/B. On 20.10.2005 itself, all accused persons got recovered stolen articles from H. No.A - 117, Laxmi Park, Nangloi and all accused persons used to reside there as tenant. He seized articles vide Ex.PW7/A. Thereafter, they came to police station and case property was deposited in malkhana. Accused persons were produced in the Court on next day and were sent to JC. On 27.10.2005, TIP of articles was got conducted wherein complainant identified his articles. His application for same being Ex.PW10/A and TIP conducted by Sh. A. K. Kuhar, then Ld. MM being Ex.PW10/B. His application for copy of TIP proceedings being Ex.PW10/C. He also prepared site plan of recovery Ex.PW10/B. Case property was released on superdari. He recorded statements of witnesses. He correctly identified accused persons in the Court. PW10 was examined, crossexamined by accused persons and was discharged. Formal Witness(es)
6. PW1 HC Suresh Chand has proved and exhibited formal FIR Ex.PW1/A in his evidence. PW1 was examined, crossexamined by accused persons and was discharged.
7. PW3 HC Bijender has deposed that on 10.10.2005 in investigation of FIR No.483/2005 Page No.5 of 14 FIR No.1013/2005 of PS Nangloi, accused Shankar Prasad made disclosure statement to the IO of said case regarding present matter. His statement was recorded. PW3 was examined, crossexamined by accused persons and was discharged.
8. PW4 HC Subhash Chand has deposed that on 10.10.2005 in investigation of FIR No.1011/2005 of PS Nangloi, accused Suresh @ Bhola made disclosure statement to the IO of said case regarding present matter. His statement was recorded. PW4 was examined, crossexamined by accused persons and was discharged.
9. PW5 ASI Rajender Singh has deposed that on 13.10.2005 in investigation of FIR No.332/2005 of PS Nangloi, accused Manoj made disclosure statement to the IO of said case regarding present matter. His statement was recorded. PW5 was examined, crossexamined by accused persons and was discharged.
10. PW6 Ct. Bijender has deposed that on 14.10.2005, he accompanied IO HC Yashpal to Tis Hazari Courts where IO arrested accused Manoj vide Ex.PW6/A, Shankar Prasad vide Ex.PW6/B and Suresh vide Ex.PW6/C after permission of the Court. IO recorded disclosure statement of accused Suresh vide Ex.PW6/D, of Manoj vide Ex.PW6/E and of Shankar Prasad vide Ex.PW6/F. He correctly identified accused persons in the Court. PW6 was examined, crossexamined by accused persons and was discharged.
FIR No.483/2005 Page No.6 of 14
11. PW9 Inspector Balbir Singh has proved and exhibited site plan Ex.PW9/A. PW9 was examined, crossexamined by accused persons and was discharged.
12. On 09.07.2015, further evidence of prosecution was closed. STATEMENTS OF ACCUSED PERSONS
13. After closure of prosecution evidence, statements of accused persons were recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately today. Incriminating evidence was put to them. They denied all the allegations and stated that they are innocent and have not committed any offence. Accused persons opted not to lead any evidence in their defence.
14. Final arguments from both sides heard. Record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS 15.1 In the present case, it is pertinent to mention here that no one has seen the present accused persons committing theft in the house of the complainant, therefore, accused persons have been charged only for offence punishable under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. So, the witnesses regarding recovery are main witnesses in this case whose evidence needs deliberations and consideration. PW7, PW8 and PW10 are the FIR No.483/2005 Page No.7 of 14 witnesses of prosecution regarding recovery of pair of Jhukmi and one ring (gents ring). PW7 has deposed that on 20.10.2005, he alongwith PW8 and PW10 went to the spot i.e. A - 117, Laxmi Park, Nangloi, New Delhi where at pointing out of accused persons and after removal of one brick of the wall, one jhumki and one golden earring were recovered. He deposed in his crossexamination that they left the PP Nihal Vihar at about 11:00 am for Laxmi Park by an auto and reached there at about 02:00 pm. So, he has not deposed that before proceeding towards A - 117, Laxmi Park, Nangloi, New Delhi, they went to another place also i.e. Kunwar Singh Nagar. PW8 has deposed that on 20.10.2005, he alongwith PW7 and PW10 first went to D - 2/39, Kunwar Singh Nagar where at the pointing out of accused persons the place of theft, pointing memo Ex.PW7/B was prepared and thereafter they went to A
- 117, Laxmi Park, Nangloi, New Delhi where at pointing out of accused persons, behind almirah in the wall after removal of one brick of the same, one pair of jhumki and one ring were recovered. In his crossexamination, he has deposed that they left PP Nihal Vihar at about 09:00/10:00 am and he does not remember at what time, they reached at Laxmi Park. PW10 has deposed that on 20.10.2005, all accused persons pointed out the place of incident and he prepared pointing out memo Ex.PW7/B and thereafter at instance of accused persons, they effected recovery from H. No.A - 117, Laxmi Park, Nangloi, New Delhi. He further deposed that after leaving PS, they FIR No.483/2005 Page No.8 of 14 reached at Kunwar Singh Nagar at about 09:00/10:00 am. So, PW7 has deposed that on the day of recovery, they went to Laxmi Park, Nangloi and he has not deposed that before going to Laxmi Park, Nangloi, they also went to Kunwar Singh Nagar whereas PW8 and PW10 have deposed that after leaving PP Nihal Vihar, they first went to Kunwar Singh Nagar where at instance of accused persons, pointing out memo Ex.PW7/B was prepared and thereafter, they went to Laxmi Park also where recovery was effected. PW7 has deposed in his crossexamination that the house from which recovery was effected was having pakka construction. He further deposed in his crossexamination that he cannot tell direction of main gate of the house from which recovery was effected. PW8 has deposed in his crossexamination that the house from which recovery was effected was made of bricks, but, it was not plastered. He has also deposed that he cannot tell the direction of the main gate of house from which recovery was effected. In view of the same, it is clear that there are number of contradictions between the statements of all three recovery witnesses as to the time when they left PP Nihal Vihar, as to where they proceeded first, which and how many places were visited by them, at what time they reached house from where recovery was effected, how many case properties were recovered and what was the condition of said house. PW7, PW8 and PW10 have also admitted in their crossexamination that no written notice was served upon any public persons, to landlord of the house to join FIR No.483/2005 Page No.9 of 14 investigation and have also admitted that public persons were present there at the time of recovery. PW10 has further admitted that he has not got signed the recovery memo and site plan of recovery even from the landlord and any other person despite their availability on the spot.
15.2 The testimony of official witnesses does not find any corroboration from any independent source. In view of this Court, the nonjoining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In matter of "Anoop Joshi Vs. State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi held that : "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 declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
In matter of "Roop Chand Vs. The State of Haryana", 1999 (1) C.L.R 69, Hon'ble Punjab & Haryana High Court held that : "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 FIR No.483/2005 Page No.10 of 14 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 he witnesses from the public had refused to 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 nonjoining 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 the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under : "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC FIR No.483/2005 Page No.11 of 14 2583 it has been observed as under : "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to FIR No.483/2005 Page No.12 of 14 the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
15.3 In view of the above fact that recovery was effected from a densely populated area and no independent public person was joined in the investigation despite their availability at the spot at the time of alleged recovery, the seizure memos and site plan were not even got signed from any public person or landlord of the house and the fact that there are many contradictions in the statements of recovery witnesses as to the time when they left PP Nihal Vihar, as to where they proceeded first, which and how many places were visited by them, at what time they reached house from where recovery was effected, how many case properties were recovered and what was FIR No.483/2005 Page No.13 of 14 the condition of said house, the recovery in this matter is quite doubtful. Furthermore in this matter, seal after use was not handed over to any independent person by investigating officer and the same also creates a doubt whether the case properties were genuinely recovered in this matter or not. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as 1996 JCC 497. In these circumstances, the abovesaid facts also erode the credibility of prosecution evidence. 15.4 In totality of circumstances, accused persons are entitled to benefit of doubt in this matter.
16. In view of the aforementioned facts and circumstances, accused persons namely Suresh @ Bhola, Shankar Prasad and Manoj @ Suraj are hereby given benefit of doubt in this matter and are accordingly, acquitted for offence punishable under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
Announced in open Court on August 12, 2015.
(HARVINDER SINGH) M.M.03/THC (WEST), Delhi/12.08.2015 FIR No.483/2005 Page No.14 of 14