Delhi District Court
State vs Manoj @ Kamal & Anr. on 7 October, 2013
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Manoj @ Kamal & Anr.
FIR No. 296/08
PS: Shalimar Bagh
JUDGMENT
A) The date of commission : 02/06/2008
of offence.
B) Name of the complainant : Sh. Karan Singh
S/o. Sh. Pop Singh
C) Name of the accused : 1. Manoj @ Kamal
S/o. Sh. Subhash
2. Appu @ Shrikant
S/o. Sh. Ramaswami
D) Offence complained of : U/s. 379/411/34 IPC
E) The plea of accused : Pleaded not guilty.
F) Final order : Acquitted
G) The date of such order : 07/10/2013
Date of Institution : 02/08/2008
Judgment reserved on : Not reserved.
Judgment announced on : 07/10/2013
State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 1/15
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 02.06.2008 near Japnese park, in from of ESI hospital, Rohini, Delhi, both the accused Manoj @ Kamal and Appu @ Shrikant were found in possession of stolen car bearing registration No. DL 2CK 3782 belonging to complainant Sh. Karan Singh which they in furtherance of their common intention received or retained knowing or having reasons to believe the same to be the stolen property and thereby they committed an offence punishable under Section 411 r.w. Section 34 IPC.
2. After completion of investigation challan was filed by the police U/s 379/411/34 IPC of which cognizance was taken by Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused persons.
4. Vide order dated 22/09/2008 charge was framed against the accused persons for trial of offence punishable under Section 411 r.w. Section 34 IPC by the Ld. Predecessor to which accused persons pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
5. In order to prove their case the prosecution has examined 7 witnesses, State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 2/15 testimonies of whom are discussed below:-
PW-1 HC Surender Singh proved the FIR as Ex. PW-1/A and endorsement on rukka as Ex. PW-1/B. PW-2 Karan Singh deposed that on the intervening night of 25/26.05.2008 he parked his vehicle maruti 800 whose number he do not remember at VP block near DDA park and on the very next day he found his vehicle missing and thereafter he made a PCR call. PCR van rached at the spot. He proved his statement as Ex. PW-2/A. He further deposed that after 10/15 days the police officials informed him that his vehicle has been recovered and thereafter he got released his vehicle on superdari. He proved his supplementary statement recorded by the IO as Ex. PW-2/B. To a leading question put by Ld. APP he deposed the registration number of car as DL 2C K 3782.
PW-3 is ASI N.K. Pavitran who deposed that on 30.05.2008 he was posted as HC Special Team, Crime Branch. On that day an information was received by SI Bhagwati Prasad that few persons would come from Shakurpur side namely Balaji, Appu, Manoj, Anees etc who have been involved in many other cases of vehicle theft and snatching. He deposed that as per information they were to come in a stolen matuti car between 03:30 pm to 04:30 pm in front of ESI hospital. He deposed that on this information a raiding party consisting of himself, SI Bhagwati Prasad, SI Shyam Sunder, SI Muralidharan, Ct. Devender and Ct. Balbir was constituted and they all reached the place of information along with the informer. At about 03:30 pm one maruti car came from the side of Sector 13, Rohini without any number plate and both the accused persons present in the court that day i.e. Appu and Manoj were found in possession of the said car which they stopped in from of ESI hosptial. Accused Manoj was driving the car and after State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 3/15 stopping the car they both boarded and stood outside the car. He further deposed that they kept watch on both the accused persons and after standing there for about ten minutes both the accused persons tried to sit inside the car but were apprehended by them. He deposed that on being interrogated by SI Bhagwati Prasad, they disclosed that they committed theft of the car from the area of PS Shalimar Bagh. SI Bhagwati Prasad checked the engine and chasis number of the car and came to know that the registration No. of the car was DL 2 CK 3782. The car was seized under Section 41.1 (D) Cr.P.C and the accused were arrested in kalandara and DD No. 48 B was lodged. He identified the car through photographs kept on the judicial file which are collectively Ex. P 1. He was cross examined by Ld. Defence Counsel Sh. Ajay Mahala wherein he deposed that he do not remember the exact date when the FIR was lodged at PS Shalimar Bagh regarding theft of the car in question. He deposed that the car at the time of recovery was without number plate and that they remained at the spot for about two hours. He denied the suggestion that he is deposing falsely or that no recovery was effected. He depose that IO made efforts for joining public witnesses but none agreed. He admitted that in DD No. 48 B there is no mentioning of the key being also seized with the car.
PW-4 Inspector Bhagwati Prasad deposed on similar lines of PW-3. He also deposed that the information received by him was recorded vide DD No. 5 which is Ex. PW-4/A and the information was given to senior officials. They went to the spot in a private Toyota, Qualis, taxi vide DD No. 6 which is Ex. PW-4/B. He also deposed that the maruti car was without number plate. He proved the arrest memo and personal search memo of the accused as Ex. PW-4/D to EX. PW-4/G, their disclosure statement as Ex. PW-4/H and Ex. PW-4/J. His examination in chief was never concluded and accordingly as per settled law his testimony cannot be read.State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 4/15
PW-5 HC Jasbir Dhillon deposed that on 26.05.2008 he was posted as HC in P.S. Shalimar Bagh, PP Pitampura. He deposed that on receiving DD he along with Ct. Nisar went to VP Block-275, near DDA Park, Pitampura, Delhi. At the spot complainant could not be traced despite the call was of theft of vehicle and that they came back to PS and kept the call waiting. On 28.05.2008 complainant Karan Singh came to PP Pitampura and got recorded his statement regarding theft of his car no. DL-2CK-3782. He proved the statement of complainant as Ex. PW-2/A. He further deposed that he prepared the rukka Ex. PW-1/B and got the FIR register through Ct. Nisar. He deposed that he went to the spot with complainant and prepared the site plan Ex. PW-5/A. In the meantime, Ct. Nisar also reached the spot with original rukka and the copy of FIR who was also joined in investigation. They came back to PS and he recorded his statement.
He further deposed that on 30.05.2008, information was received from Crime Branch, Special Team, Prashant Vihar regarding apprehension of the accused and recovery of the car. He deposed that he went to the office of Special Team, Prashant Vihar and obtained the relevant documents. He moved an application for production of accused on 01.06.2008 in the court on which accused could not be produced. However, on second application accused persons were produced on 04.06.2008. Both the accused persons namely Appu and Manoj were arrested and their personal search were conducted vide memos now Ex. PW-5/B,C,D & E. He correctly identified both the accused persons in the court. He further deposed that both the accused persons were taken on one day PC remand to trace the other accused persons and to recover the number plates but no apprehension or arrest could be made, however, accused persons pointed out the place of incident. He proved the pointed out memo as Ex. PW-5/F & G. He deposed that he seized the recovered vehicle in this case and deposited in the maalkhana. He proved the seizure memo as Ex. PW-5/H. He identified the car State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 5/15 through photographs kept on the judicial file which are collectively Ex. P 1. He deposed that the vehicle was released on superdari.
He was cross examined by Ld. Defence Counsel wherein he deposed that he do not know the direction in terms of East, West, North or South regarding the face of the vehicle according to site plan. He deposed that at the time of seizure of the vehicle the number plate was not there. He admitted that all the three photographs of the recovered vehicle bears registration number plate DL-2C-K 3782. He denied the suggestion that he was deposing falsely.
PW-6 Ct. Nissar S deposed that on 26.05.2008 he was posted as Constable in P.S. Shalimar Bagh, PP Pitampura. On receiving DD No. 13 PP he along with HC Jasbir went to the VP Block-275, near DDA Park, Pitampura, Delhi. At the spot complainant could not be traced despite the call was of theft of vehicle. They came back to PS and kept the call waiting. On 27.05.2008 at around 11.00 p.m complainant Karan Singh came to PP Pitampura and got recorded his statement regarding theft of his car no. DL-2CK-3782. His statement was recorded by the HC Jasbir who prepared the rukka and handed over it to him for registration of FIR at around 11.50 p.m. He deposed that he went to P.S Shalimar Bagh, got the FIR register and went to the spot with original rukka and the copy of FIR and handed over it to the IO. IO prepared the site plan Ex. PW-5/A. They tried to look for the stolen car and thief but no clue was traced. They came back to PS and IO recorded his statement.
On 30.05.2008, information was received from Crime Branch, Special Team, Prashant Vihar regarding apprehension of the accused and recovery of the car. On 04.06.2008 both the accused persons were produced on the application of the IO and IO arrested both the accused persons namely Appu and Manoj and their personal search were conducted vide memos Ex. PW-5/B,C,D & E. He correctly identified both the accused persons in the court. He further State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 6/15 deposed that both the accused persons were taken on one day PC remand. Accused persons pointed out the place of incident. IO seized the recovered vehicle in this case and deposited in the malkhana. He proved the seizure memo as Ex. PW-5/H. He identified the car through photographs kept on the judicial file which are collectively Ex. P 1.
He was cross examined by Ld. Defence Counsel wherein he deposed that he do not know the direction in terms of East, West, North or South regarding the face of the vehicle according to site plan. He deposed that he do not remember if at the time of seizure of the vehicle the number plate was there or not. He admitted that all the three photographs of the recovered vehicle bears registration number plate DL-2C-K 3782. He denied the suggestion that he was deposing falsely.
PW7 Ct. Ravinder proved the DD No. 13 A as Ex. PW7/A
6. P.E. was closed vide order dated 27.07.2013 and statement of accused U/s. 281/313 Cr.P.C was recorded to which the accused persons denied all the allegations leveled against them but preferred not to lead D.E. Thereafter the matter was fixed for final arguments. Vide order dated 14.08.2013 PW-5 IO HC Jasvir Singh and PW-4 Inspector Bhagwati Prasad were summoned as court witnesses for certain clarifications. HC Jasbir Dhillon was examined as CW-1. Thereafter the matter was fixed for final arguments.
7. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused and have gone through the evidence and the material available on record.
State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 7/158. It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
9. On the other hand, Ld. Defence Counsel has argued that the accused persons have been falsely implicated in the instant case. He has argued that the recovery of the car has been planted on the accused persons. He has further argued the statement of the PWs are self contradictory and cannot be relied upon, the major discrepancy being about the presence of number plate on the stolen vehicle, which was not present at the time of the same being allegedly recovered from the accused persons. Further that in the arrest memo of the accused persons there is over writing of the date of arrest which has been altered from 03.06.2008 to 04.06.2008. He has further argued that despite the area from which the said car is alleged to have been recovered being thickly populated, no public person was made a witness.
10. It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 8/15 principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
11. In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs. State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 9/15
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted)."
13. The accused persons in the present case have been charged with offence under Section 411 r.w. Section 34 IPC.
14. In Trimbak Vs. The State of Madhya Pardesh, AIR 1980 SC 39, the Hon'ble Supreme Court held that in order to bring home the guilt of a person under section 411 IPC the prosecution was required to prove, (1) That the stolen property was in the possession of the accused, (2) That some person other than the accused had possession of the stolen property before accused possession of the property before accused got possession of it, and (3) That the accused had knowledge that the property was stolen property.
State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 10/1515. The term Stolen Property has been defined U/s 410 of IPC.
Section 411 IPC reads as under:
Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
16. Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidence on the record which would warrant the conviction of the accused on the touch stone of golden principal of criminal jurisprudence that the guilt of the accused has been proved beyond the reasonable doubt.
17. After hearing the rival arguments and after perusal of the material on record this court is of the opinion that the prosecution case suffer from severe infirmities, the benefit of which must go to the accused persons. The recovery of the said car from the accused persons remains doubtful because of reasons discussed hereinafter.
18. As far as the contention of Ld. APP that the IO of the case has clarified that the number plates were prepared by the complainant himself before the same was photographed, same is not tenable since no such statement has come in the State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 11/15 testimony of the complainant who remained silent on the aspect of number plate being prepared by him. There is no explanation as to how just on the basis of the engine and chassis number of the recovered vehicle, its registration number was found to be DL 2CK 3782, whether it was known through the control room or otherwise. Further as per the statement of IO HC Jasbir Dhillon, on 26.05.2008 when they received a call regarding theft of the vehicle and went to the spot i.e. VP Block, 275, near DDA park they could not trace the complainant and accordingly went back to the police station and kept the call waiting. Per conta the complainant has stated that the PCR van had reached on the spot on his call and his statement Ex. PW-2/A was recorded. In view of the same doubt is created as to the version of the IO that the complainant came to PP Pitampura to get his statement Ex. PW-2/A recorded. Secondly, all the members of the raiding party which allegedly recovered the stolen vehicle from the accused persons were not made witness, leave alone examining them which casts serious doubt on the story of the prosecution.
19. No efforts seem to have been made to make join the public witnesses for investigation. In a metropolitan city like Delhi, even at 2.00 a.m at night, the roads are not abandoned. There is some vehicular movement, if no pedestrians could be found. If it would have been done, it would have added credibility to the prosecution's case. Absence of the efforts have introduced an element of doubt in the case of prosecution. If the public witnesses had refused to join the police raiding party despite requests, I.O atleast should have reduced their names and addresses in writing if not inclined to take action against them under section 187 I.P.C.
Reliance can be placed on law laid down in Hem Raj v. State of State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 12/15 Haryana AIR 2005 SC 2110, "The fact that no independent witnesses 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 witnesses one who was very much in the known of the things from the beginning was not examined by the prosecution. Non examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses 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 Roop Chand Vs. State of Haryana 1989 (2) RCR 504 it was held that where the IO has failed to even note down the names and addresses of the persons who have refused to join as public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
20. Aforesaid discussion thus clearly shows that the prosecution has not been connect the accused with the offence in question. The witnesses have not corroborated each other in material particulars.
21. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R. State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 13/15 (Criminal) 662).
22. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
23. Prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot replace the standard of proof required to establish the guilt of the accused. In the present case, the prosecution has miserably failed to discharge its onus. The evidence available on record is State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 14/15 coupled with unexplained holes which are not sufficient to substantiate the guilt of the accused persons and benefit of doubt must go to the accused. Accordingly the accused Manoj @ Kamal and Appu @ Shrikant deserve acquittal.
24. It is ordered accordingly.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on October 07th, 2013.
It is certified that this judgment contains 15 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 07/10/2013 State V/s Manoj @ Kamal & Anr. FIR No. 296/08 PS: Shalimar Bagh Page No. 15/15