Delhi District Court
State vs Mohd Sakir on 9 December, 2023
IN THE COURT OF MS. RUBY NEERAJ KUMAR, ACMM,
WEST, TIS HAZARI COURTS, DELHI
State v. Mohd. Sakir & Anr.
FIR No. 144/2012
u/s 380/454/411/34 IPC
PS: Patel Nagar
Unique Case I.D No.DLWT02-002805-2013
JUDGMENT
Serial No. of the case 68386/2016
Date of commission of offence 20.07.2012
Date of institution of case 16.09.2013
Name of the complainant Sh. Sunil Mehra
Name of Accused, parentage (i) Mohd. Sakir
& Address S/o Mohd. Asif @ Safiq
R/o X-47, DDA Flats,
New Ranjit Nagar, Delhi.
(ii) Mohd. Ashfaq @ Nanhe
S/o Mohd. Asif @ Safiq
R/o X-47, DDA Flats,
New Ranjit Nagar, Delhi.
Offence charged Under section 411/34 IPC
Plea of Accused Pleaded not guilty
Date of Arguments 22.11.2023
Final Order Acquitted
Date of Judgment 09.12.2023.
BRIEF FACTS
1. Facts of the case in nutshell as alleged by the prosecution are that on 20.07.2012, vide DD no. 22-A, intimation was received at PS concerned regarding theft at the residence of Complainant/PW-2 Sunil Mehra situated at 30/5, West Patel FIR NO.144/2012 STATE V. MOHD. SAKIR Page 1 of 16 Nagar, Delhi. On receipt of the said information, PW-9 Head Constable Ranjan alongwith Sub-Inspector Shiv Prakash reached at the spot and therein, SI Shiv Prakash recorded the statement of the Complainant/PW-2, which is Ex.PW-2/A, prepared rukka on the basis of the same and handed it over to PW-9 for registration of FIR. On the basis of the rukka, PW-1/Duty Officer ASI Jaipal registered the present case FIR for offence under Section 380 IPC (hereinafter referred to as 'IPC'). It is further the case of the prosecution that on 20.12.2012, accused Mohd. Sakir was apprehended by PW-4 Head Constable Subhash Chand, PW-10 Sub Inspector Vijay Kumar, Head Constable Satpal and Head Constable Tulsi Ram, in case FIR No. 240/2012 & therein, he disclosed having committed the offence in the present case, vide disclosure statement, which is Ex.PW-11/B. On 21.12.2012, information regarding the same was sent to PW-7/IO Inspector Joginder Singh and on 23.12.2012, PW-7/IO, in the presence of PW-12 Head Constable Sanju Rathi, arrested accused Mohd. Sakir, in the present case, vide arrest memo, which is Ex.PW-7/A & recorded his disclosure statement, which is Ex.PW-7/B. Accused Mohd. Sakir disclosed that he had given the stolen articles to his brother i.e. accused Mohd. Ashfaq @ Nanhe. Thereafter, on 04.01.2013, PW-7/IO arrested accused Mohd. Ashfaq @ Nanhe vide arrest memo, which is Ex.PW-5/A & recorded his disclosure statement, which is Ex.PW-5/B. At the instance of accused Mohd. Ashfaq @ Nanhe, stolen jewellery articles i.e. one gold necklace, one pair of gold bangles and one pair of gold earrings were recovered from the residence of the accused persons situated at X-47, DDA Flats, New Ranjit Nagar, Delhi. PW-7/IO seized the same vide seizure memo, which is Ex.
FIR NO.144/2012 STATE V. MOHD. SAKIR Page 2 of 16PW-5/E. The Complainant duly identified the said stolen property in the TIP proceedings conducted before the Ld. MM.
2. After completion of investigation, charge-sheet was filed in the court. Cognizance of the offence was taken and copy of charge-sheet was supplied to the accused persons in compliance of Section 207, Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C').
3. Arguments on charge were heard and vide order dated 19.04.2016, passed by the Ld. Predecessor, charge for offence under section 411/34 IPC was framed against both the accused persons. The accusation was read over and explained to the accused persons, to which, they pleaded not guilty and claimed trial.
EVIDENCE RECORDED DURING TRIAL
4. The prosecution has examined twelve witnesses to establish and prove its case against the accused persons
5. PW-1 ASI Jaipal is the Duty Officer. He has proved the registration of present case FIR, which is Ex.PW-1/A, endorsement made by him on the rukka, which is Ex.PW-1/B and Certificate under Section 65-B of Indian Evidence Act, which is Ex.PW-1/C.
6. PW-2 Sunil Mehra is the Complainant. He has deposed that on 20.07.2012, in between 10:00 am to 02:00 pm, FIR NO.144/2012 STATE V. MOHD. SAKIR Page 3 of 16 latch of the door of his house was found in broken condition by his son Arjun Mehra and the articles kept in the almirah were lying scattered on the floor and on reaching there, he found that two necklace set of gold, four gold bangles, two kadas, two pair of gold earrings, one pair of diamond earrings and cash amount of Rs.40,000/- was stolen from his residence. He made a call at 100 number, on which police officials reached at the spot and recorded his statement, which is Ex.PW-2/A. He had handed over the photocopy of the invoice of the stolen articles to the Investigating Officer, who had seized the same vide seizure memo, which is Ex.PW-2/B. Photocopy of the invoice is Mark-X. He participated in the TIP proceedings and therein, identified the stolen articles. He also produced the case property comprising of one gold necklace, two gold bangles, one pair of gold earring and one pair of gold tops. In his cross-examination, he admitted that he had not seen the accused persons while, committing theft and the recovery was not affected in his presence.
7. PW-3 Head Constable Vinod is a formal witness. He has deposed that on 05.01.2013, while he was posted as MHC(M) at PS Patel Nagar, SI Joginder had deposited one pullanda sealed with the seal of 'JS', regarding which, he had made entry in Register no.19 at serial no. 2048. Copy of the same is Ex.PW- 3/A. He has further deposed that on 09.01.2013, the said pullanda was handed over to SI Joginder for TIP proceedings and on the same date, SI Joginder had deposited it back to the maalkhana with court seal of 'SS'. He had made separate entry regarding the same. On 16.01.2013, the case property was released to the Complainant.
FIR NO.144/2012 STATE V. MOHD. SAKIR Page 4 of 168. PW-4 Head Constable Subhash Chand has deposed that on 20.12.2012, he alongwith Head Constable Tulsi Ram, Head Constable Satpal and Sub-Inspector Vijay Kumar, apprehended accused Mohd.Sakir, in case FIR no.240/2012. He has further deposed that on enquiry, accused Mohd. Sakir disclosed having committing theft of Rs.40,000/-, gold necklace, gold bangles, gold kada and earrings from 3rd floor, Block-30, West Patel Nagar, Delhi, alongwith his associate M***(since CCL). Accused Mohd. Sakir further disclosed that he had given the jewellery articles to his brother i.e. accused Mohd. Ashfaq, who had sold the same to someone in Sultanpuri for cash amount of Rs.50,000/- and the said amount was divided between them.
9. PW-4 Head Constable Vijay Kumar has deposed that on 04.01.2013, he had joined the investigation of the present case with the Investigating Officer/SI Joginder. IO had arrested accused Mohd. Ashfaq vide arrest memo, which is Ex.PW-5/A and recorded his disclosure statement, which is Ex.PW-5/B. On 05.01.2013, Mohd. Ashfaq took them to his house situated at DDA flats, Ranjit Nagar, Delhi and produced jewellery articles i.e. one necklace, one pair of earrings and one pair of bangles, which were hidden under his quilt. The said articles were seized by the IO vide seizure memo, which is Ex.PW-5/B and accused Mohd. Ashfaq was put back in the lockup.
10. PW-4 Head Constable Satpal Singh has deposed that on 21.12.2012, accused Mohd. Sakir disclosed in case FIR No. 240/2012 that he had committed theft of jewellery articles & FIR NO.144/2012 STATE V. MOHD. SAKIR Page 5 of 16 Rs.40,000/- from a house situated at Block no.30, West Patel Nagar. Accused Mohd. Sakir had also disclosed that he had given the stolen articles to his brother, who has sold the same for Rs.50,000/- and the said money was equally divided between them and he has spent his share of money on gambling and drinking.
11. PW-7 Inspector Joginder Singh is the Investigating Officer of the present case. He has deposed that on 03.08.12, investigation of the present case was marked to him. During the course of investigation, on 21.12.2012, he received information regarding arrest of accused Mohd. Sakir in case FIR no. 240/2012. In case FIR No. 240/2012, accused Mohd. Sakir had disclosed having committing theft at 30/12, 3 rd Floor, West Patel Nagar, Delhi alongwith co-accused 'M' (since JCL). He arrested the accused, in the present case, vide arrest memo, which is Ex. PW-7/A & recorded his disclosure statement wherein, he disclosed that he had given all the jewellery articles to his brother i.e. co-accused Mohd. Ashfaq @ Nanhe and Mohd. Ashfaq has sold the said jewellery articles for Rs.50,000/-. Further, during the course of investigation on 03.01.2013, he received information that accused Mohd. Ashfaq will surrender before the court on 04.01.2013. On 04.01.2013, complainant came to PS and produced the invoice of jewellery articles. He seized the same vide seizure memo, which is Ex. PW-2/B. He went to the court alongwith Constable Vijay Kumar but accused Mohd. Ashfaq did not surrender, however, he arrested the said accused from outside court premises vide arrest memo, which is Ex.PW- 5/A, conducted his personal search vide personal search memo, FIR NO.144/2012 STATE V. MOHD. SAKIR Page 6 of 16 which is Ex.PW-7/B and recorded his disclosure statement, which is Ex.PW-5/B. The stolen jewellery articles i.e. one gold necklace, one pair of gold bangles and one pair of gold earrings were recovered from the residence of accused Mohd. Ashfaq, at his instance & the same were seized vide seizure memo, which is Ex.PW-5/D.
12. PW-8 Sub Inspector (retd.) Vijender Singh had conducted investigation with respect to CCL, who had allegedly accompanied accused Mohd. Sakir in commission of the alleged offence.
13. PW-9 Head Constable Ranjan has deposed that on 20.07.2012, on receiving intimation regarding the theft at the house of the Complainant, he alongwith SI Shiv Prakash had reached at the spot i.e. 30/5, West Patel Nagar, Delhi and therein, SI Shiv Prakash recorded the statement of the Complainant, prepared the rukka on the basis of the same and handed it over to him for registration of FIR. He got the FIR registered through Duty Officer & returned back to the spot wherein, crime team was collecting the evidence.
14. PW-10 Sub Inspector Vijay Kumar has deposed on the similar lines as PW-4. PW-11 Dev Dutt is the Ahlmed concerned. He had produced the original case file of case FIR No. 240/2012, PS Ranjit Nagar.
15. PW-12 Head Constable Sanju Rathi had joined the Investigation of the present case with IO/SI Joginder Singh, on 23.12.2012. He has deposed that accused Mohd. Sakir was taken FIR NO.144/2012 STATE V. MOHD. SAKIR Page 7 of 16 out from the lockup and interrogated by the IO. IO had recorded the disclosure statement of accused Mohd. Sakir, which is Ex.PW-7/B & arrested him vide arrest memo, which is Ex.PW- 7/A.
16. It is pertinent to mention herein that vide separate statement recorded on 04.06.2022, in accordance with the provisions of Section 294 of Cr.P.C, accused persons admitted the recording of TIP proceedings dated 09.01.2013, conducted by Sh. Sachin Sangwan, the then Ld. MM, which is Ex. A2 & Crime Team Report bearing SOC no. 294/2012 dated 20.07.2012 i.e. Ex.A1. However, accused persons did not admit the contents of the same.
17. PE was closed on 19.05.2023. Statement of the accused persons under section 313 r/w 281 Cr. P.C was recorded on 09.10.2023. All the incriminating evidence were put to the accused persons. In their statement recorded under section 313 r/w 281 Cr.P.C, accused persons have submitted that they are innocent & have been falsely implicated in the present case. They have further stated that nothing was recovered from their possession or at their instance and they were wrongfully arrested by the police officials. Accused persons stated that they do not want to lead any evidence in their defence. Accordingly, matter was straight away fixed for final arguments.
18. I have given thoughtful consideration to the submissions made by Ld. counsel for the accused persons as well as Ld. APP for the State and carefully perused the record.
FIR NO.144/2012 STATE V. MOHD. SAKIR Page 8 of 16ARGUMENTS ADDRESSED
19. Ld. Counsel for the accused persons has argued that the accused persons have been falsely implicated in the present case as nothing was recovered at their instance or from their possession and the alleged recovery was planted upon them. He has further argued that despite the place of recovery being a public place, no public witness was joined in the investigation or made a recovery witness and therefore, reliance may not be placed upon the uncorroborated testimony of the police witnesses. It is further argued that since the prosecution could not establish the case against the accused persons beyond reasonable doubt, the accused persons may be acquitted of the alleged offence.
20. Ld. APP for the State has argued that the prosecution witnesses have supported the case of the prosecution and the prosecution has proved the factum of recovery of stolen property from the possession of the accused persons beyond reasonable doubt and therefore, the accused persons deserve to be convicted and sentenced as per law.
BRIEF REASONS FOR THE DECISIONS
21. In the instant case accused persons has been charged for offence under section 411 r/w 34 IPC. It would be apposite to reproduce the relevant provision of law.
FIR NO.144/2012 STATE V. MOHD. SAKIR Page 9 of 1622. According to section 411 IPC, "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."
23. In order to bring home the guilt of the accused persons for offence under section 411/34 IPC, the prosecution is required to prove. beyond reasonable doubt, that the alleged stolen property was recovered from the possession of accused Ashfaq@ Nanhe at the instance of accused Mohd. Sakir. However, having heard the rival contentions and careful consideration of entire evidence brought on record by the prosecution, this court is of the considered opinion that the prosecution has failed to prove the alleged recovery from the possession or at the instance of the accused persons beyond reasonable doubt. The detailed reasons for the same have been cited henceforth.
24. At the outset, it is pertinent to note that as per the case of the prosecution, accused Ashfaq was apprehended and recovery was affected from his possession, on the basis of the disclosure statement of accused Mohd. Sakir which is inadmissible in evidence being hit by section 27 of the Indian Evidence Act. Further, section 100(4) of the Cr.P.C categorically enunciates that whenever any search is made, two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available shall be called FIR NO.144/2012 STATE V. MOHD. SAKIR Page 10 of 16 upon to attend and witness the search. Further, as per section 100 (8) of the Cr.P.C, refusal to be a witness without any reasonable cause can render such public person liable for criminal prosecution. In the case at hand, recovery was allegedly affected by PW-7/IO in the presence of PW-5. It has been argued by Ld. Counsel for the accused persons that there is no independent public witness to the alleged recovery from the possession of accused Ashfaq@ Nanhe, to corroborate and lend credibility to the prosecution's version. As far as non-joining of the public witness in the investigation is concerned, it is pertinent to note that PW-7/IO & PW-5 have both admitted in their cross- examination that the house of the accused persons, from where, the alleged recovery was affected, was situated in a populated residential area yet the Investigating Officer did not ask any of the residents to join the recovery proceedings. Evidently, it is not the case of the prosecution that no public witness was available or present at the time of the alleged recovery from the possession of the accused. Clearly, not even slightest of effort was made by the Investigating Officer to join the public witness in the investigation, which renders alleged recovery from the possession of the accused persons exceedingly doubtful. It is trite law that mere non-examination of the public witness shall not be a ground for exonerating the accused of the offence committed by him but non-examination of the public witnesses on their being accessible effortlessly, that too without any conceivable explanation being put forth, gives rise to suspicion and cast a cloud of doubt on the prosecution's version.
FIR NO.144/2012 STATE V. MOHD. SAKIR Page 11 of 1625. In this regard reliance can be place upon the judgment of the Hon'ble High Court of Delhi in case titled as Anoop Joshi v. State, 1992 (2) C.C. Case 314(HC) wherein, it has been held as under:
"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."
26. Further, in the case titled as Nanak Chand v. State of Delhi, 1991 RLR 62 the Hon'ble High Court of Delhi observed as under:
"(6)....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 officials are to be treated as unworthy of reliance but their failure to join witness from the public specially when they are available, may, as in the present case creates doubt. They have again, churned out a stereo typed version...."
27. Also, in case titled as Sahib Singh v. Sate of Punjab, AIR 1997 SC 2417, the Hon'ble Apex Court held as under:-
".... 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 FIR NO.144/2012 STATE V. MOHD. SAKIR Page 12 of 16 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."
28. Furthermore, in case titled as Massa Singh v. State of Punjab, 2000 (2) C.C. Cases HC 11, conviction was set aside by the Hon'ble Punjab & Haryana High Court on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to 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."
29. Secondly, whenever a police official leaves or arrives at the police station, he is required to make a departure or arrival entry in the Daily Diary Register as per Chapter 22 Rule 49, Punjab Police Rules, 1934. The said provision provides as under:
"22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty.
This entry shall be made immediately on arrival or FIR NO.144/2012 STATE V. MOHD. SAKIR Page 13 of 16 prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal."
30. In the instant case, as per the prosecution's story, PW-5 & PW-7/IO had affected alleged recovery from possession of accused Ashfaq at instance of accused Mohd. Sakir. The presence of the aforesaid police witness at the spot has been disputed by Ld. Counsel for the accused persons. Thus, to prove the presence of PW-7/IO & PW-5 at the spot, the prosecution should have placed on record the departure entry/log book entry of said police officials. However, no documentary or other evidence to show their presence on the date, time and place of alleged recovery has been proved on record. Consequently, the prosecution has failed to discharge its obligation to prove the presence of police officials/ recovery witness on the date, time and place of recovery as alleged. In this regard, reference can be made to the judgment of the Hon'ble High Court of Delhi in case titled as Rattan Lal v. State, 1987 (2) Crimes 29 wherein, it has been observed that:
"if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
31. Thirdly, in such like cases, prosecution is required to prove, beyond all reasonable doubts, that after seizure of the case property, there was no occasion for it to be tampered with and the FIR NO.144/2012 STATE V. MOHD. SAKIR Page 14 of 16 seal remained intact till the time case property was produced in the court. However, in the present case, prosecution is conspicuously silent regarding the custody of the seal. There is nothing on record to show that the seal after use & prior to deposition of the case property at maalkhana was handed over to an independent person. Further, no seal handing over memo has been either placed or proved on record. At this point, it would be apropos to refer to the observation made by the Hon'ble Delhi High Court in case titled as Safiullah v. State, 1993 (1) RCR (Criminal) 622, wherein, it has been observed that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
32. Also, in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, the Hon'ble Punjab & Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
33. Judging on the touchstone of abovenoted conspectus of facts & circumstances, this court has no reservation to hold that the possibility of case property having been tampered with, in the instant case, cannot be ruled out with certainty.
FIR NO.144/2012 STATE V. MOHD. SAKIR Page 15 of 1634. The abovenoted conspectus of facts & circumstances gives rise to reasonable doubt with respect to the alleged recovery from the possession or at the instance of the accused persons and credibility of the case put forward by the prosecution. In this background, it would not at all be improbable to conceive that the alleged stolen property might have been planted on the accused persons. The prosecution has failed to bring home the guilt of the accused persons beyond the shadow of reasonable doubt. Thus, in light of the above discussed facts and circumstances it can safely be concluded by this court that there are numerous infirmities and lacunae in the prosecution's case.
35. In view thereof, accused persons namely Mohd. Sakir S/o Mohd. Asif @ Safiq & Mohd. Ashfaq @ Nanhe S/o Mohd. Asif @ Safiq are hereby acquitted of the offence under section 411 r/w 34 IPC.
36. File be consigned to record room after due compliance.
Announced in open court on this 9thth day of December, 2023 (Ruby Neeraj Kumar) ACMM/West/THC FIR NO.144/2012 STATE V. MOHD. SAKIR Page 16 of 16