Delhi District Court
State vs . Pawan Soni on 3 December, 2021
IN THE COURT OF SH. DEEPAK KUMAR-II, MM-02
SOUTH EAST, SAKET COURTS, NEW DELHI.
FIR No. 340/14
PS: OIA.
U/S 411 IPC
State Vs. Pawan Soni
JUDGEMENT
A. SL. NO. OF THE CASE : 86295/16.
B. DATE OF INSTITUTION : 08.07.2014.
C. DATE OF OFFENCE : 09.06.2014.
D. NAME OF THE : Parmod Paswan S/o Sh.
COMPLAINANT Ram Awtar Paswan R/o C-
33, East of Kailash, New
Delhi.
E. NAME O THE ACCUSED : Pawan Soni S/o Sh.
Pateshwar Soni R/o Jhuggi
No. F-313, JJR Camp, OIA-
II, New Delhi.
F. OFFENCE
COMPLAINED OF : U/s 411 IPC.
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal.
I. DATE OF SUCH ORDER : 03.12.2021.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as stated in the charge sheet are that on 09.06.2014 FIR No. 340/14.
DEEPAK KUMAR Digitally PS. OIA.
U/S. 411 IPC signed by DEEPAK KUMAR State Vs. Pawan Soni No. 86295/16 Date: 2021.12.03 19:06:34 +05'30' Page No.1
at unknown time from under construction underpass that leads to Sarita Vihar from OIA, within the jurisdiction of PS OIA, accused got recovered stolen motorcycle bearing registration number DL- 7SAU-6969, which was dishonestly received or retained by him, knowingly or having a reason to believe that the same was stolen property belonging to the complainant. FIR was registered on the complaint of the complainant when his motorcycle was stolen. Thereafter, the accused was apprehended, the statement of witnesses were recorded, site plan was prepared, case property was recovered and seized and other steps were taken towards the completion of investigation. On conclusion of the investigation, the chargesheet under section 379/411 IPC was filed.
2. Thereafter, the accused was directed to be produced before the court for facing trial under the aforesaid sections. In compliance of Section 207 CrPC, the copy of the chargesheet and the documents annexed with it were supplied to the accused. Prima facie charge under section 411 IPC was made out against the accused Pawan Soni and on 16.08.2014 the charge was framed against him to which he pleaded not guilty and claimed trial. Thereafter, the case proceeded for recording of prosecution evidence.
3. In order to substantiate its case, the prosecution examined nine witnesses.
4. PW1/ complainant Parmod deposed that on 14.05.2014 at about 09:00 am, he had parked his motorcycle bearing registration number DL-7SAU-6969 in front of company situated at B-41, OIA Phase-I and he went inside the company. At about 06:00-06:30 pm when he came out, he found his motorcycle was parked there but at around 07:00 pm when he came outside again, he saw that his motorcycle was not there. He searched here and there but no clue was found. He called at 100 number; police came at the spot and he pointed out the place where the motorcycle was parked. He went FIR No. 340/14.
DEEPAK KUMAR Digitally PS. OIA.
U/S. 411 IPC signed by DEEPAK KUMAR State Vs. Pawan Soni No. 86295/16 Date: 2021.12.03 19:07:06 +05'30' Page No.2
with the police officials at PS OIA, where his statement was recorded which is Ex.PW1/A bearing his signature at point A. Site plan was prepared at his instance. After about one month he received a call from PS informing him about the recovery of his motorcycle. He went to the PS to identify the same and vide superidarinama, which is Ex.PW1/B, he got released the same. He correctly identified the motorcycle from its photographs which are Ex.P1 (colly). Nothing material came on record during the cros examination of this PW.
5. PW2 HC Ravindra Kumar deposed that on receipt of DD No. 17A regarding theft of a motorcycle and he reached the spot and met the complainant who told him about the theft of his motorcycle. He recorded the statement of complainant which is already Ex.PW1/A, prepared the rukka which is Ex.PW2/A bearing his signatures at point X. He sent the rukka to PS through Ct. Ajay for getting the FIR registered. The case was handed over to HC Rajesh for further investigation. In his cross examination he deposed that he do not remember the exact time of receiving the DD entry; he reached the spot within 15-20 minutes; no person other than the informer was found at the spot; no public person joined the investigation.
6. Deposition of PW3 DO/HC Jitender Kumar has been reproduced as follows:- "On 15.05.2014, I was working as DO in PS- OIA, and my duty hours were from 12:00 night to 8:00 am. On that day at about 12:30 am, Ct. Ajay Kumar brought a rukka/tehrir which was sent by HC Ravinder Kumar and on its basis, I registered the present FIR and its copy is Ex.PW3/A, bear my signature at point A (OSR). After registration of the case I made endorsement on the Tehrir, and the same is Ex.PW3/B, bearing my signatures at point A. Today, I have brought the original FIR register. (OSR)". This witness was not cross examined despite opportunity being afforded to him.
7. Deposition of PW4 Ct. Ravi Kumar has been reproduced as follows:- "On 09.06.2014, I was posted at PS-OIA, on that day I alongwith SI Bhojraj, HC Satpal and Ct. Narender were on patrolling FIR No. 340/14.
PS. OIA.
U/S. 411 IPC State Vs. Pawan Soni Page No.3 No. 86295/16 DEEPAK KUMAR Digitally signed by DEEPAK KUMAR Date: 2021.12.03 19:07:27 +05'30' duty at near crown plaza hotel and we receirved the secret information that one person age about 22 years would come in a stolen Maruti Eco vehicle registration no. DL-1LP5482 if raid is conducted the said person would be caught red handed. Thereafter, we started checking the vehicles which were coming from the side of Kalkaji towards Delhi Jal Board Plant. During checking at about 9.00 to 9.30 pm we noticed that the abovesaid vehicle was coming from the said direction and the secret informer pointed out towards the vehicle. The said vehicle was stopped and its driver was apprehended whose name was revealed as Pawan Soni who is present today in the court (correctly identified by the witness). During the search of accused Pawan Soni one button dar knife was recovered from his possession and FIR no. 415/14 was registered against him u/s 25/54/59 Arms Act. In the said FIR accused Pawan Soni had made his disclosure statement regarding the theft of the vehicle in present case and he further disclosed that that he would get recovered the vehicle in question. At this stage, the case FIR no.415/15, u/s 25/54/59 Arms Act., PS-OIA is produced from the record room. The original seizure memo which is already Ex.PW1/H is shown to the witness. He correctly identified the seizure memo of vehicle i.e motorcycle bearing registration no. DL-7SAU-6969 Pulsar black coloured, which bears his signatures at serial no.4 in the list of witnesses. The photocopy of the same compared with the original now Ex.PW4/B bearing his signature at point A. Accused Pawan Soni is present in the court today. (Correctly identified by the witness). Two photographs attached with the file are shown to the witness and he correctly identified the same, which is already Ex.P1 Colly".
8. His cross examination has been reproduced as follows :-
"The secret informed informed the beat HC at around 8:00 pm. I was near Crown Plaza at that time. He reached there at around 8:30-8:45 pm. The accused was coming from the car make ECCO. I do not remember the vehicle number which were searched on that day. No public persons were roaming around at the spot from where the alleged bike was recovered because that the spot was under pass and was under
construction. I do not remember whether IO had asked the public persons to join the investigation or not. It is correct that no witness was found at the time of recovery. It is wrong to suggest that I did not participate in the investigation with the IO. It is wrong to suggest that I am a planted witness and deposing falsely at the instance of the IO. It is FIR No. 340/14.
PS. OIA.
DEEPAK KUMAR Digitally U/S. 411 IPC State Vs. Pawan Soni signed by DEEPAK KUMAR Page No.4 No. 86295/16 Date: 2021.12.03 19:07:56 +05'30' wrong to suggest that the accused was not arrested in my presence nor the stolen bike was recovered from him. It is wrong to suggest that I am deposing falsely".
9. Deposition of PW5 ASI Jagat Singh has been reproduced as follows:-" On 09.06.2014, I was posted as ASI at PS OIA. On that day, SI Bhojraj anded over the case file of FIR no. 415/14, U/s 25/54/59 Arms Act. PS OIA for investigation. He also handed over me the accused Pawan Soni to me. I inquired from the accused and he disclosed that he committed theft of a motorcycle bearing registration no. DL- 3SAU-6969 in front of D-41, OIA Phase I, New Delhi. He further disclosed that he can get recovered the said stolen motorcycle from underpass, OIA Phase 1, New Delhi. Thereafter, I alongwith Sl Bhojraj, Ct. Narender and accused went there and found the said stolen motorcycle there. The back wheel of the said motorcycle was not there and the front number plate was broken. I seized the same vide seizure already Ex. PW4/A, bearing my signature at point B. I informed to HC Rajesh about the same who is the 10 of the said stolen motorcycle case. The motorcycle was deposited in the I can identify the case motorcycle if shown to me. The accused is present in the court today (correctly identified by the witness). The two photographs of the motorcycle are shown to the witness and the witness correctly identify the same to be the same that was recovered at the instance of the accused Pawan Soni. The said photographs are already Ex. P1 (colly)".
10. His cross examination has been reproduced as follows :- "I do not know the date and time on which the said motorcycle was stolen. I do not know whether I had told the IO about the address from which the said motorcycle was stolen. Further, I cannot say, whether, the 10 had recorded my statement about the missing of the rear tyre of stolen motorcycle or that from where the said motorcycle was recovered. At this stage, the statement of witness u/s 161 Cr.PC marked as Mark A is shown to the witness and the same is confronted with him. In the said statement, the aforesaid facts are not mentioned. The place of recovery was deserted as the contruction at the said place had already been completed but it was not opened for the public. The said underpass leads to Sarita Vihar. Vol. At that time. the said under pass was not open. I had not taken any photographs of the place of recovery. I did not ask any public person to join investigation as there was no public person at the FIR No. 340/14.
PS. OIA.
U/S. 411 IPC Digitally signed by DEEPAK DEEPAK KUMAR State Vs. Pawan Soni Page No.5 No. 86295/16 KUMAR Date: 2021.12.03 19:08:15 +05'30'
spot. It was dark at the time of recovery, but I do not remember the time of recovery. It is wrong to suggest that no motorcycle was recovered from the alleged spot of recovery. It is further wrong to suggest that the said place was frequented by the public persons. It is wrong to suggest that I am deposing falsely".
11. Deposition of PW6 SI Bhojraj has been reproduced as follows:- "On 09.06.2014, I was posted as SI at PS-OIA. On that day, I alongwith HC Satpal, Ct. Narender and Ct. Ravi was on patrolling duty as crown plaza. On that day, I apprehended accused Pawan Soni, who is present in the court today alongwith a stolen Maruti make ECCO and a buttondar knife in case FIR no.415/14 PS-OIA. ASI Jagat also arrived at the spot. Accused Pawan Soni was interrogated and he gave disclosure statement which is already exhibited as Ex.PW4/A, bearing my signature at point B. Accused took us to near under pass on the road going towards Sarita Vihar from Okhla, Phase-II and got recovered a motorcycle bearing registration no. DL-7SAG-6969 make Pulsar of blue colour. Again said, I do not remember the colour. The rear tyre of the said motorcycle was missing. ASI Jagat Singh seized the motorcycle vide Ex.PW4/A, bearing my signature at point B. I can identify the motorcycle, if shown to me. The identity of motorcycle is not in dispute. The photographs of the motorcycle are already exhibited as Ex.P1. At this stage, Ld. APP for the state wants to ask leading question from the witness. Heard. Allowed. Ques. Is the registration number of the motorcycle which was got recovered at the instance of accused Pawan Soni DL-7SAU-6969 and the colour of the motorcycle black? Ans. Yes, it was black colour motorcycle bearing registration no. DL-7SAU- 6969" .
12. His cross examination has been reproduced as follows :- "I do not remember the exact time when the accused was apprehended alongwith the stolen car and buttondar knife but it was between 7:00- 8:00 pm. Accused was coming from Maa Anandmai Marg towards Okhla. I apprehended the accused near Crown Plaza chauraha. It is correct that public persons were roaming around the place from where the recovery of the stolen motorcycle was effected. None of the public witnesses joined the investigation despite request and left the spot without disclosing their names and addresses. I do not remember, if the photographs of the recovered motorcycle was obtained or not. As far as FIR No. 340/14.
PS. OIA.
U/S. 411 IPC Digitally signed by DEEPAK DEEPAK KUMAR State Vs. Pawan Soni Page No.6 No. 86295/16 KUMAR Date: 2021.12.03 19:08:43 +05'30'
the defect in the recovered motorcycle is concerned, I only remember that the rear tyre was missing. I can not say that for how long the motorcycle was parked near the underpass. Site plan was not prepared in my presence. I do not remember the time when we proceeded from the crown plaza towards under pass and I also do not remember the exact time when we reached the under pass. The distance between crown plaza and under pass is more than 1 km. I do not remember, if any other person was also sitting with the accused Pawan Soni when he was apprehended in stolen maruti ECCO car. No photographs of the maruti ECCO car was taken at the time of recovery as there was no camera was with us. It is wrong to suggest that no recovery of motorcycle bearing registration no. DL-7SAU-6969 was effected from near the underpass. It is wrong to suggest that accused has been falsely implicated in the present case and the case property has been falsely planted upon him. It is wrong to suggest that I am deposing falsely".
13. Deposition of PW7 ASI Satya Pal has been reproduced as follows:- "On 09.06.2014, I was posted as HC at PS-OIA. On that day, I alongwith SI Bhoj Raj Singh, Ct. Ravi and Ct. Narender were on patrolling duty. A secret informer informed SI Bhoj Raj that a person aged about 23-24 years would come at crown plaza hotel from Kalkaji temple side in ECCO car. On this, we started checking in front of Jal Board office, Okhla Phase-II, New Delhi. On that day at around 09:15 pm, a ECCO car bearing no. DL-1LP-5482 came from Nehru place side. At the instance of secret informer, the said vehicle was stopped near crown plaza hotel. Accused Pawan Soni, who is present in the court today (correctly identified by the witness) was driving the said vehicle. The vehicle was found to be stolen. A buttondar knife was recovered from the possession of accused Pawan Soni. ASI Jagat Singh was called at the spot. Accused Pawan Soni had disclosed his involvement in the theft of other vehicles vide disclosure statement already Ex.PW4/A, bearing my signature at point 'C. Accused took us to near under- construction underpass, which was going to Sarita Vihar from Okhla and got recovered the pulsur motorcycle bearing no.DL-7SAU-6969 which was parked near underpass. The rear wheel of the motorcycle was missing. The motorcycle seized by the IO vide already Ex.PW4/A, bearing my signature at point 'C'. 10 recorded my statement. I can identify the offending vehicle, if shown to me. At this stage, witness has been shown two photographs of motorcycle bearing no.DL-7SAU-6969 FIR No. 340/14.
PS. OIA.
U/S. 411 IPC State Vs. Pawan Soni Digitally signed by DEEPAK Page No.7 No. 86295/16 DEEPAK KUMAR KUMAR Date: 2021.12.03 19:09:05 +05'30'
and witness correctly identifies the same. These photographs are exhibited as Ex.P1 (colly)".
14. His cross examination has been reproduced as follows :- "We were doing patrolling duty on our own private motorcycles. I do not remember the registration numbers of the said motorcycles. It is correct that 10 had not recorded the fact in my statement u/s 161 Cr.P.C that a secret informer informed Sl Bhoj Raj that a person aged about 23-24 years would come at crown plaza hotel from Kalkaji temple side in ECCO car. On this, we started checking in front of Jal Board office, Okhla Phase-II, New Delhi. On that day at around 09:15 pm, a ECCO car bearing no.DL-1LP-5482 came from Nehru place side. Sl Bhoj Raj had called ASI Jagat Singh at the spot. I do not remember what date and time had been disclosed by the accused when he had stolen the motorcycle bearing no. DL-7SAU-6969. However, I remember that accused had disclosed that he had stolen the motorcycle from B-41, Okhla, New Delhi. It is correct that public persons were moving around the place from where the alleged recovery of motorcycle was effected. 10 had requested few public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. It is wrong to suggest that I had not asked the public persons to join the investigation at the time of the recovery of the motorcycle. The complete front number plate of motorcycle in the photographs which are already exhibited as P1 (colly) which is not clearly visible. It is wrong to suggest that no recovery of motorcycle bearing no. DL-7SAU-6969 was effected at the instance of the accused and he has been falsely implicated in this case. It is wrong to suggest that all the documents were prepared in PS. It is wrong to suggest that I am deposing falsely".
15. Deposition of PW8 ASI Rajesh Kumar has been reproduced as follows:- "In the intervening night of 14-15.05.2014 I was posted as HC at PS-OIA. On 15.05.2015 at about 1.00 am DO handed over me the copy of FIR and original rukka for further investigation. Thereafter I reached at the spot i.e. B-41, OIA Phase-1 where I met HC Ravinder alongwith complainant Pramod Paswan. Thereafter I enquired regarding the incident from complainant and HC Ravinder. Thereafter HC Ravinder left the spot and I prepared the site plan at the instance of complainant Ex. PW8/A bearing my signatures at point-A. Thereafter I recorded supplementary statement of complainant and I searched the FIR No. 340/14.
PS. OIA.
U/S. 411 IPC Digitally signed by DEEPAK DEEPAK KUMAR KUMAR State Vs. Pawan Soni Page No.8 No. 86295/16 Date: 2021.12.03 19:09:26 +05'30' accused, however he could not be found and I came back at PS. Thereafter I got circulated the wireless message regarding the theft of motorcycle and I also share the information with NCRB, STA. On 10.06.2014 ASI Jagat Singh informed me that accused was arrested in FIR No. 415/14, u/s 25 Arms Act, PS-OIA and the stolen motorcycle bearing no. DL3SAU6969 of present case was recovered from the possession of accused. Thereafter I interrogated the accused and recorded his disclosure statement which is now Ex. PW8/B bearing my signatures at point-A. Thereafter I formally arrested the accused vide memos which is now Ex. PW8/C bearing my signatures at point-A and I also collected the documents from ASI Jagat Singh. Thereafter I produced the accused before the Court and he was sent to lock up. During the course of investigation I also recorded statement of witnesses u/s 161 CrPC. After completion of investigation, I prepared charge sheet and submitted before the Court. Accused is present in the court today (correctly identified by the witness). I can identify the case property if shown to me. The same was already released on superdari vide superdarinama already Ex. PW1/B. At this stage, two photographs of case property i.e. motorcycle bearing no. DL3SAU6969 are shown to witness. Witness correctly identifies the same. The same is already Ex. P1 (colly.)".
16. His cross examination has been reproduced as follows :- "I did not collect the original keys from the complainant. I have placed on record the copy of wireless message, NCRB report. On 10.06.2014 at about 10:00 AM ASI Jagat Singh has informed me about the recovery motorcycle in question. It is correct that recovery of motorcycle was not effected in my presence and same was already recovered. I had not prepared any separate seizure memo regarding the handing over documents prepared by ASI Jagat Singh. I had received copy of FIR No. 415/14, PS OIA, seizure memo of motorcycle, disclosure statement of accused Pawan Soni, pointing out memo and other relevant papers pertaining to my case. I had also collected site plan of place of recovery prepared by ASI Jagat Singh. At this stage, witness is asked to show the site plan. After going through the case file witness stated that the same is not on record. I recorded the statement of recovery witnesses on same day i.e. 10.06.2014 in the PS. It is wrong to suggest that no disclosure statement was given by accused and his signature was obtained by me on blank paper. The intimation regarding arrest of accused was given to FIR No. 340/14.
PS. OIA.
U/S. 411 IPC State Vs. Pawan Soni No. 86295/16 DEEPAK KUMAR Digitally signed by DEEPAK KUMAR Date: 2021.12.03 19:09:49 +05'30' Page No.9 his friend telephonically. It is wrong to suggest that accused has been falsely implicated by me in connivance with ASI Jagat Singh. It is wrong to suggest that nothing was recovered from the possession of accused and case property was plated upon him. It is wrong to suggest that I am deposing falsely".
17. Deposition of PW9 HC Narender Singh has been reproduced as follows:- "On 09.06.2014, I was posted at PS OIA as constable. On that day I was on patrolling duty alongwith SI Bhoaj Raj and Ct. Ravi in the area near Crown Plaza, Okhla, New Delhi. At about 08:00 PM a secret informer met with SI Bhoaj Raj and informed him that a person would come from the side of Kalkaji temple, while driving an Ecco car white colour which is stolen one and he can be apprehended, if raid is conducted. The said information was shared with us by SI Bhoaj Raj. Thereafter, 4-5 passersby were asked to join the raiding party but none agreed and left the place disclosing their reasons and without telling their names and addresses. Thereafter, I alongwith SI Bhoaj Raj, Ct. Ravi and secret informer reached in front of Delhi Jail Board, filling station, Okhla Phase-II, New Delhi and we started waiting for the said person. After around 15 minutes at about 09:15 PM secret informer pointed towards an Ecco car white colour bearing registration no. DL...... 5482 (I do not remember the complete registration number) which was coming from the side of Kalkaji Temple, stating that this is the same vehicle regarding which the secret information was given. Secret informer left the place. Thereafter, signal was given to the driver of that vehicle to stop the same and we made him stopped. I with the help of SI Bhoaj Raj and Ct. Ravi apprehended the accused present in the court today. Cursory search of accused was made and a buttondar knife was recovered from the right pocket of his blue colour pant. Accused was asked to produce the documents of vehicle however, he could not produce the same and also did not give any satisfactory answer. Thereafter, duty officer of PS OIA was called and asked about the whereabouts of the said vehicle which we later came to know that the said vehicle was stolen one in case FIR No. 340/14, PS OIA. Memo of knife was prepared after measurement. The car was seized. Disclosure statement of accused was recorded after interrogation. Rukka was prepared by IO and the same was handed over to Ct. Ravi. After registration of FIR Ct. Ravi came at the spot with ASI Jagat as further investigation of the same was handed over to him. IO inquired me and FIR No. 340/14.
PS. OIA.
U/S. 411 IPC State Vs. Pawan Soni Digitally signed by DEEPAK Page No.10 DEEPAK KUMAR No. 86295/16 KUMAR Date: 2021.12.03 19:10:13 +05'30' recorded my statement at the spot. Accused was arrested and his personal search was conducted. Details of FIR was mentioned on the prepared documents. After medical examination of accused he was brought into PS. I do not know anything else about this case. Accused Pawan Soni is present in the court today. (correctly identified by witness). At this stage, Ld. APP for the state seeks permission from the court to cross examine the witness as he is resiling from his previous statement recorded u/s 161 Cr.P.C. This witness was cross examined by Ld. APP for the State and his cross examination by Ld. APP for the State has been reproduced as follows:- "Today I am appeared before this court to depose my statement in case FIR NO. 340/14, PS OIA. I inadvertently refreshed my memory by going through the statement recorded by SI Bhoaj Raj in case FIR No. 415/14, PS OIA and could not read over the statement recorded by IO of case FIR No. 340/14, PS OIA. At this stage, Ld. APP for the State seeks permission to refresh the memory of PW of his statement recorded in case FIR No. 340/14, PS OIA. Ld. LAC for the accused has strongly objected to the same by contending that the deposition of the PW has already been recorded and therefore, he should not be permitted to refresh his memory. Heard. Considering the totality of aforesaid facts and circumstances, the request of Ld. APP is allowed and PW is permitted to refresh his memory qua his statement recorded in case FIR No. 340/14, PS OIA. On 10.06.2014 I joined the investigation of the present case alongwith ASI Jagat. Accused was again interrogated by ASI Jagat and supplementary disclosure statement was recorded". This witness was further cross examined by Ld. APP for the State and his cross examination by Ld. APP has been reproduced as follows:-.
"Accused had got recovered an stolen motorcycle bearing no. DL-7SA- 6969. Seizure memo pertaining to the same was prepared which is already Ex.PW4/A bearing my signature at point D. Motorcycle was recovered on 10.06.2014. At this stage, seizure memo already Ex.PW4/A is shown to the witness. After going through the same, witness state that recovery of motorcycle was effected on 09.06.2014 and the seizure memo was prepared at that time on same day. As my statement in this case was recorded on 10.06.2014, I became confused about the date of recovery. The Ecco car was recovered in case FIR No. 415/14, PS OIA and not in present FIR i.e. FIR NO. 340/14, PS OIA. I can identify the motorcycle if shown to me. I do not remember the FIR No. 340/14.
PS. OIA.
U/S. 411 IPC State Vs. Pawan Soni No. 86295/16 DEEPAK KUMAR Digitally signed by DEEPAK KUMAR Date: 2021.12.03 19:10:45 +05'30' Page No.11 place from where the recovery of motorcycle was effected, however, the same is mentioned in seizure memo".
18. His cross examination has been reproduced as follows :- The recovery of motorcycle was effected on 09.06.2014. I do not remember, if any departure entry was made by me or not. We left the PS at about 11:00 (I do not remember whether it was AM or PM). Witness again said I do not remember the exact time. I alongwith Ct. Ravi and Ct. Sandeep were present at the time of recovery with IO. I do not remember the exact time when we reached at the place of recovery. I do not remember till when we remained present at the place of recovery. I do not remember whether the recovery effected from any closed place or open place or to whom the said place belong. IO asked public persons to join the recovery proceeding however, no one came forward to join the same. I do not remember when we came back to PS. It is wrong to suggest that I never joined the investigation in the present case and no recovery was effected from the possession or at the instance of accused of present case. It is wrong to suggest that I am deposing falsely at the instance of IO".
19. Accused also admitted the genuineness of the DD No. 34B dated 10.06.2014 as Ex.P/A/1. Thereafter PE was closed on 17.03.2021. On the same day statement of accused was recorded under section 281 CrPC r/w 313 CrPC and all the incriminating evidence were put to him for his explanation. He stated that nothing was recovered from his possession on the alleged point of date, time and place and recovery of motorcycle in question had been planted upon him. He further stated that he do not know as to why prosecution witnesses deposed against him and he has been falsely implicated in the present case. He further submitted that he do not wish to lead defene evidence. Accordingly, DE was closed and the matter was listed for addressing of final arguments. Final arguments were heard on 01.11.2021.
20. I have heard Ld. APP for the state and Ld. counsel for the accused. I have also carefully perused the case file.
FIR No. 340/14.
PS. OIA.
Digitally signed by DEEPAKDEEPAK KUMAR U/S. 411 IPC State Vs. Pawan Soni No. 86295/16 KUMAR Page No.12 Date: 2021.12.03 19:11:27 +05'30'
21. The cardinal principle of criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
22. In order to bring home the guilt of the accused under section 411 IPC, the prosecution is required to prove the following ingredients of the said section that :-
(i) the property in question is stolen property;
(ii) the said property is identical with the property said to be stolen;
(iii) the accused received or retained such property;
(iv) the accused while receiving or retaining such property knew or had reason to believe the same to be stolen property and
(v) the accused acted dishonestly.
23. In the present case any of the PWs have failed to depose anything about the DD entry vide which the accused was taken to alleged place of recovery nor the same was filed on record. The said DD entry is indispensable for establishing the presence of the recovery witnesses as well as of the accused at the spot of alleged recovery. Therefore, their presence at the alleged place, time and date of recovery of the alleged stolen vehicle from the possession of the accused at his instance is doubtful. It also appears transpires that no such DD entry was ever made and hence, was not filed on record neither at the time of filing of chargesheet nor at the time of deposition of recovery witnesses.
24. Assuming the alleged recovered motorcycle to be the stolen property, the prosecution is required to establish that the same was recovered from the possession of the accused. The absence of the site plan assumes importance as the accused was in the custody of the police and the alleged motorcycle was not in his physical possession. Furthermore, the site plan also could have pointed towards the topography of the alleged place of the recovery. Though PW8 has deposed that he had collected the site plan of the place of recovery prepared by ASI Jagat Singh but the same was FIR No. 340/14.
PS. OIA.
DEEPAK KUMAR Digitally U/S. 411 IPC State Vs. Pawan Soni signed by DEEPAK KUMAR Page No.13 No. 86295/16 Date: 2021.12.03 19:11:51 +05'30' not found on the record. It can be safely presumed that no site plan was actually prepared and recovery of the alleged motorcycle from the accused was planted upon him.
25. PW4 and PW5 have deposed in their respective testimonies that no public persons were there at the alleged place of recovery, whereas PW6, PW7 and PW9 have deposed there were public persons roaming at the place of recovery. The abovesaid contradictions in their respective testimonies of the PWs, in the opinion of this court, have proved fatal as the entire case against the accused is based on the alleged recovery and in view of the material contradictions the recovery has become doubtful. If it is assumed there were many public persons were available at the time of the alleged recovery and no public persons were made to join the investigation at the time of the recovery. The non joining of public/independent person in the investigation despite availability has proved fatal to the case of prosecution. The criminal law has duly empowered the investigating officer/police officials to initiate action against the persons who refuse to participate in the investigation. But still, IO neither made any genuine and sincere efforts to join public/independent witnesses nor advanced any plausible explanation as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in suspicion. The recovery witnesses have also failed to advance any justifiable reason for non joining of independent/public witness at the time of alleged recovery of the motorcycle from the accused. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The recovery witnesses those are examined by the prosecution in the present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of him being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation FIR No. 340/14.
PS. OIA.
U/S. 411 IPC State Vs. Pawan Soni No. 86295/16 DEEPAK KUMAR Digitally signed by DEEPAK KUMAR Date: 2021.12.03 19:12:20 +05'30' Page No.14 and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness at the time of alleged recovery of the car creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court.
26. The reliance can also be placed upon the findings given by Hon'ble Apex Court in case titled as Harjit Singh V. State of Punjab [2002] SUPP 1 SCR 581wherein it is held:-
".........50 Apart from the versions of eyewitnesses discussed above, the trial court attached importance to the fact that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered under memorandum Ext. P-
19. We have referred to the statement of Investigating Officer Puran Singh (PW9). He is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statement Ex.PV and memorandum of recovery Ext. PU1. We have noted that these memoranda have been signed only by two police officers Faqir Chand and Virsa Singh. It is unbelievable that all the accused persons who have alleged to use their firearms/weapons kept all the arms concealed in an open field in a gunny bag under the heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied on by the trial court to convict the accused by treating it as eyewitness account." I also find support from case titled as Aslam Parwez V. Govt. of NCT of Delhi 2003 CriLJ 2525 Hon'ble Supreme Court has held that :-
"10......In view of these features of the case, we are of the opinion that the testimony of three police personnel, namely, PWs 10, 11 and 1 does not inspire confidence FIR No. 340/14.
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U/S. 411 IPC DEEPAK KUMAR Digitally State Vs. Pawan Soni Page No.15 No. 86295/16 signed by DEEPAK KUMAR Date: 2021.12.03 19:12:44 +05'30'
and it will be highly unsafe to place reliance upon the same in order to convict the accused specially when the public and independent witnesses did not at all support the prosecution case on any material particular."
27. Keeping in view the fact that the version of the recovery witnesses has remained uncorroborated by any other independent witness regarding the alleged recovery of the stolen car, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that :-
"Prosecution case resting solely on the testimony of head constable and no independent witness examined-prosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
28. In the wake of above discussion, the prosecution has not only failed to prove the factum of the recovery of stolen motorcycle from the accused but it has even failed to establish that any motorcycle was ever recovered on the alleged date, time and place. Thus, the prosecution case suffers from material and fatal infirmities and therefore, accused is entitled to benefit of doubt.
29. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against either of the accused namely Pawan Soni to bring him within the four corners of the offence U/s 411 IPC. Accordingly, the aforesaid accused is acquitted for the offence U/s 411 IPC.
Digitally signed by DEEPAK DEEPAK KUMAR KUMAR
Date: 2021.12.03 19:13:14 +05'30'
Announced in open court (DEEPAK KUMAR-II)
today i.e. on. 03.12.2021. MM-02/South-East/Saket/ND FIR No. 340/14.
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U/S. 411 IPC State Vs. Pawan Soni Page No.16 No. 86295/16