Delhi District Court
State vs . Pappu And Ors. on 10 April, 2012
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(SOUTH EAST)-03, NEW DELHI
STATE VS. Pappu and Ors.
FIR NO: 228/97
P. S. Kalkaji
ID No. 02403R0221162002
Date of institution of case : 07.01.1998
Date on which case reserved for judgment : 03.04.2012
Date of judgment : 10.04.2012
Advocates appearing in the case :-
Sh. Manish Kumar, Ld. APP for State
Sh. Sanjay Kumar, counsel for accused
JUDGEMENT U/S 355 Cr.P.C.:
a) Date of offence : 26.03.1997
b) Offence complained of : U/S 380/411 IPC
c) Name of complainant : Sh. Rajesh Hari
d) Name of accused, his parentage,: 1). Pappu S/o Sh. Balmukund
local & permanent residence R/o H.No. F-2, Sangam Vihar
New Delhi
2). Salim S/o Khacheru
R/o Village Fazalpur
PS Binoli, District Meerut
UP
3). Allah Mehar S/o Sh. Rahim
Baksh R/o Village Benipur,
PS Bibi Nagar,
Distt. Bullandshehar, UP
(accused Allah Mehar expired
and case was abated against him
on 13.05.2005.)
e) Plea of accused : They are falsely implicated.
f) Final order : They are acquitted
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. In the present case, chargesheet was filed against three accused persons namely Pappu S/o Sh. Balmukund, Salim S/o Sh. Khacheru and Allah FIR no. 228/97 ; PS: Kalkaji St vs. Pappu and Ors. Page no. 1/8 Mehar S/o Rahim Baksh on the allegation that accused Pappu committed theft of one ceiling fan and old record of Indian Road Construction Corporation Ltd. (IRCC Ltd.) from room no. 5, Saraswati House, 27 Nehru Place on 26.03.1997 and accused Salim and Allah Mehar were found in possession of two gunny bags each of record of IRCC Ltd. and accused Salim was found in possession of one Usha fan also, knowing or having reason to believe that it was stolen property.
2. Charge was framed u/s 411 IPC against accused Salim and Allah Mehar on 27.11.2003 and the case was fixed for PE. Accused Pappu had been declared proclaimed offender on 27.11.2003. Thereafter, accused Pappu was arrested as PO and produced before Court on 18.08.2006 and charge u/s 380 IPC was framed against accused Pappu on 31.08.2006. During pendency of trial, accused Allah Mehar expired and case was abated against him on 13.05.2005.
3. Prosecution has examined six PWs on its behalf. PW1 is DO ASI Balwan Singh who exhibited the copy of FIR as Ex.PW1/A. PW2 is complainant Sh. Rajesh Hari, Dy. Manager (Personnel), Indian Road Construction Corporation Ltd. He stated that on 26.03.1997, he was working as Dy. Manager at IRCC Ltd. and his office was located at 30-31 Raja House, Nehru Place New Delhi -19 and they used to keep important documents pertaining to corporation store in room no. 205, Saraswati House, Nehru Place, which was being used as record room and on that day, they noticed that some important documents were missing from the record and on inquiry, they found one bag of record from Mr. Pappu S/o Sh. Balmukund, who was not present in court (on the date of examination dated 03.01.2005) and PW2 stated that he can identify accused Pappu if shown to him. PW2 further stated that accused Pappu told them that he had stolen five bags of FIR no. 228/97 ; PS: Kalkaji St vs. Pappu and Ors. Page no. 2/8 records and one pedestal fan of Usha company and had sold the fan and four bags to a kabari at Nehru Place, therefore, complaint was lodged before SHO and accused Pappu was handed over alongwith one bag recovered from his possession. PW2 exhibited the complaint as Ex.PW2/A and stated that police came at the spot and prepared the site plan and took the bag in possession vide seizure memo Ex.PW2/D and accused made disclosure statement which is Ex.PW2/C and thereafter, accused took them to Nehru Place in front of Roopa Sweet Shop and pointed out towards accused Salim and told that he had sold the fan and two bags of records to accused Salim. PW2 correctly identified accused Salim in court. PW2 stated that police checked the bag and found them containing documents of IRCC and the bag was sealed with seal of 'MI' and the fan was also taken into police possession. PW2 exhibited the seizure memo of bag and fan as Ex.PW2/D. He further stated that accused took them to shop no. 167/48, Hans Raj Sethi Camp, Nehru Place and told that he had sold two bags to accused Allah Mehar and the two bags were taken into police possession which were containing records of IRCC and were sealed with seal of 'MI' and the seizure memo is Ex.PW2/E. The further examination-in-chief of PW2 was deferred for want of case property, but case property was never produced in court by superdar Sh. S.C. Ghosh and he instead deposited Rs. 10,000/- i.e. superdari amount, due to the fact that the recovered goods were not traceable. Hence, after recalling PW2 Sh. Rajesh Hari on 16.04.2009, this fact was mentioned in his statement.
4. However, it is pertinent to mention here that accused Pappu was apprehended and trial started against him after the examination in chief of PW2 dated 03.01.2005 and in his further examination-in-chief dated 16.04.2009, he failed to state and Ld. APP failed to ask him whether he identified accused Pappu FIR no. 228/97 ; PS: Kalkaji St vs. Pappu and Ors. Page no. 3/8 or not.
5. PW3 is Inspector Vijender Singh who stated that on 26.03.1997, he was posted as Incharge Police Post, Nehru Place and he received complaint of complainant Rajesh Hari alongwith accused Pappu and one stolen bag and he prepared rukka Ex.PW3/A and handed over the the investigation to HC Mohd. Izrail.
6. PW4 is IO HC Mohd. Izrail, who stated that on 26.03.1997, he received the case for investigation and Sh. B.S. Gumbar produced accused Pappu alongwith two bags containing old documentary records of company which were seized vide seizure memo Ex.PW2/B, after sealing the same with seal of 'MI' and accused Pappu was arrested vide arrest memo and personal search memo Ex.PW4/A and after recording his disclosure statement Ex.PW2/C, Pappu took them to Kabari shop of Salim in front of Roop Sweets and pointed out to Salim to whom he had sold the old records and got recovered two bags containing old records of IRCC, which were taken into possession vide memo Ex.PW2/D after sealing the same with seal of 'MI' and accused Salim was arrested vide personal search memo Ex.PW4/B and thereafter, accused Pappu took them to the Kabari shop of Allah Mehar at Hans Raj Sethi Camp, Nehru Place from where two bags containing records of IRCC were taken into police possession vide seizure memo Ex.PW2/E after sealing them with seal of 'MI' and accused Allah Mehar was arrested vide arrest memo Ex.PW4/D in presence of complainant. He correctly identified accused Salim in court in his examination dated 13.05.2005. His examination-in-chief was deferred due to want of case property, but case property was never produced thereafter.
FIR no. 228/97 ; PS: Kalkaji St vs. Pappu and Ors. Page no. 4/8
7. PW5 is Ct. Ram Gopal who had joined investigation with IO HC Mohd. Izrail and he deposed on the same lines as PW4, hence his statement is not recorded due to sake of brevity. He also also correctly identified accused Salim in court. But his examination is also deferred due to want of case property, which was not produced in court thereafter.
8. PW6 is Superdar Sh. S.C. Ghosh who stated that on 05.11.1997, the then Manager Finance and Accounts, Sh. B.S. Gumbar had obtained the recovered goods on superdar on behalf of IRCC, but he retired from company thereafter and company went into liquidation, due to which recovered goods are not traceable and he paid the superdari amount of Rs. 10,000/- in court.
9. PW4 IO HC Mohd. Izrail was recalled for further examination-in- chief on 21.07.2008, but case property was not produced. In his cross- examination, he denied the suggestion that nothing was recovered from accused persons. He admitted that he had not asked for proof of ownership of shop of accused Salim. He denied the suggestion that the said shop belongs to Mohd. Umer and not to accused Salim.
10. After closure of PE, statement of accused Pappu and Salim u/s 313 Cr.P.C. were recorded. Accused Salim and Pappu wanted to lead defence evidence, but despite grant of many opportunities, they failed to lead defence evidence,due to which DE was closed and final arguments were heard on last date and case was kept for order for today.
FIR no. 228/97 ; PS: Kalkaji St vs. Pappu and Ors. Page no. 5/8 BRIEF REASONS FOR DECISION AND DECISION THEREOF:
During final arguments, the Ld. Defence Counsel had argued that there is material discrepancy between complaint of complainant Sh. Rajesh Hari, which is Ex.PW2/A and seizure memo Ex.PW2/B, due to the fact that the complainant has stated in his complaint that he is handing over one bag of record alongwith Mr. Pappu to police but the seizure memo reflects that one bag of old record of company and one Usha Fan was seized vide seizure memo. The Ld. Defence counsel argued that one Usha fan has been added subsequently in the seizure memo and this amounts to material discrepancy which has not been explained by prosecution.
Secondly, the Ld. Defence counsel further argued that case property was never produced in court and never exhibited by the witnesses and this also amounts to material discrepancy and gap in the case of prosecution. Thus, the Defence Counsel argued that prosecution has failed to prove the case beyond reasonable doubt and both accused Salim and Pappu are entitled to acquittal in this case.
After hearing final arguments and perusal of case file, this court is of opinion that there are many discrepancies and many gaps have been left unanswered in the case of prosecution. Firstly, the accused Pappu has been charged for offence u/s 380 IPC for offence of committing house theft of one ceiling fan and old record of company on 26.03.1997. The said stolen articles were allegedly recovered on the same day i.e. 26.03.1997 vide seizure memo Ex.PW2/B from accused Pappu. Seizure memo reflects that the stolen articles i.e. FIR no. 228/97 ; PS: Kalkaji St vs. Pappu and Ors. Page no. 6/8 one plastic katta of old record and one fan make Usha was produced by complainant Rajesh Hari and accused Pappu was also handed over by him to Police. Police has not directly recovered any stolen article from accused Pappu. However, the statement of complainant Rajesh Hari which is Ex.PW2/A reflects that only one bag of old record was handed over to Police by complainant, but seizure memo reflects the recovery of fan also which is alien to the main complaint Ex.PW2/A. This is gross discrepancy which has neither been explained by complainant nor by the IO.
Secondly, the case property has never been produced in court by the superdar. Hence, it can not be said with absolute surety that any articles had been stolen by accused Pappu as alleged by prosecution. Thirdly, accused Pappu was apprehended after start of trial and charge was framed against him on 31.08.2006 i.e. after examination-in-chief of the eye-witness PW2 dated 03.01.2005, thus accused Pappu had the right of trial de novo and right of examination and cross-examination of PW2 afresh, but Ld. APP failed to examine PW2 afresh against accused Pappu and PW2 failed to identify accused Pappu in court. Thus, effectually, there is no evidence against accused Pappu since neither eye-witness has identified him nor case property has been exhibited in court. Hence, prosecution has failed to prove the case beyond reasonable doubt against accused Pappu for alleged theft. Therefore accused Pappu is acquitted from offence u/s 380 IPC.
Accused Salim and Allah Mehar were charged u/s 411 IPC for receiving stolen property from accused Pappu. Accused Allah Mehar had expired during proceedings and case was abated against him. The seizure memo FIR no. 228/97 ; PS: Kalkaji St vs. Pappu and Ors. Page no. 7/8 Ex.PW2/D reveals that as per prosecution story, accused Pappu pointed out to the place of scrap dealer Salim, opposite Rupa Sweets, Nehru Place and pointed out to accused Salim and stated that he had sold two kattas / bags of old record and one Usha fan to Salim. It is strange that the accused Pappu was apprehended on 26.03.1997 and he allegedly sold two bags of old record and one fan to accused Salim before his arrest and the said articles were recovered from Salim on the same day i.e. 26.03.1997. Entire proceedings have been conducted on the same date i.e. date of filing complaint by the complainant and no time of apprehension of accused Pappu has been mentioned either in complaint or in seizure memo or in personal search. The alleged stolen articles were recovered from open space, opposite Rupa Sweet and prosecution has failed to prove on record that the articles were in possession of Salim. No shop number has been mentioned in the seizure memo Ex.PW2/D. Recovery from open space is no recovery at all in eyes of law. Moreover, the prosecution has failed to prove that accused Salim had received those articles having knowledge that it was stolen property. All the ingredients of Section 411 IPC have not been completed. The case property has not been produced and exhibited in court and it can not be said with surety that any articles were stolen by accused Pappu or received by accused Salim with dishonest intention / knowledge that it is stolen property. Prosecution has failed to prove the case beyond reasonable doubt against accused Salim. Hence, accused Salim stands acquitted from offence u/s 411 IPC. Personal bond and surety bond of accused stands discharged. Original documents if any be released to the authorised persons on proper receipt and endorsement, if any, be cancelled. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH ) TODAY ON 10th April, 2012 MM-03(SE), NEW DELHI FIR no. 228/97 ; PS: Kalkaji St vs. Pappu and Ors. Page no. 8/8