Delhi District Court
State vs . Mohd. Imran & Ors. on 5 May, 2009
FIR No. 176/2000
P.S.: Chandni Mahal
U/S: 379/411/34 IPC
IN THE COURT OF SH. SIDHARTH MATHUR: METROPOLITAN
MAGISTRATE : CENTRAL - 02, DELHI
State Vs. Mohd. Imran & Ors.
FIR No: 176/2000
P.S. : Chandni Mahal
Date of institution of case : 08.11.2000
Date on which case reserved : 05.05.2009
for judgment
Date of judgment : 05.05.2009
JUDGMENT U/S 355
Cr. P.C
.:
a) Date of offence : 08.11.2000
b) Offence complained of : U/s 379/411/34 IPC
c) Name of accused, his : i) Imran S/o Mohd. Rahat Ali
parentage & residence R/o 848, Chandni Mahal, Delhi.
ii) Kasim S/o Mohd. Wasi Ali
R/o 548, Chitli Qabar, Chandni
Mahal, Delhi.
iii) Naved S/o Mohd. Amin
R/o 5363, Kucha Rehman,
Chandni Chowk, Delhi.
d) Plea of accused : Pleaded Not Guilty.
05.05.2009 Page 1 of 31 Pages
FIR No. 176/2000
P.S.: Chandni Mahal
U/S: 379/411/34 IPC
e) Final order : Accused persons acquitted.
BRIEF FACTS OF THE CASE:
1. This order of mine shall adjudicate the criminal case sent to this court for trial vide challan filed in FIR No. 176/2000, P.S. Chandni Mahal lodged under Section 379/411/34 IPC.
2. The facts forming the gist of the criminal case lodged against the accused persons are required to be discussed in brief to understand the entire controversy, however before narrating the facts, it is pertinent to mention that in the present case the accused persons namely Naved, Imran & Kasim were sent for trial.
3. The facts of the case in the nutshell are that the complainant Sh. Naresh Gola had lodged a complaint with the concerned police station stating therein that on the intervening night of 0708/11/2000, 05.05.2009 Page 2 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC after returning from Hanuman Mandir, Jamuna Bazar on his motor cycle No. DL2S A 2929 (Model Yamaha, Colour Red), he parked his above stated motorbike outside his house No. 2573, Chowk Prajapati, Shankar Gali, Bazar Sita Ram, Delhi - 06 but when he woke up in the morning of 08.11.2000, he did not find his motor cycle as detailed above at the place where it was parked by him. Further was stated by the complainant in his complaint that when despite rigorous search conducted by him of his motorcycle, he could not trace his motor cycle, he lodged the complaint in question with the concerned P.S. whereupon the present FIR was lodged. It is the case of the prosecution that when the above stated stolen motor cycle could not traced despite diligent efforts of the police, the instant case was closed as "Untraced" on 05.02.2001 and it was only after the recovery of the said stolen motor cycle under Section 102 Cr. P.C. by the officials of the P.S. Hauz Qazi, the instant case was revived on 25.04.2001 wherein H.C. Harbir Singh took the possession of the motor cycle in question from P.S. Hauz Qazi & deposited the same with MHC(M), P.S. 05.05.2009 Page 3 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC Chandni Mahal. Thereafter the accused persons, who have been sent for trial herein, were produced before the concerned M.M., P.S. Chandni Mahal on 05.05.2001 in pursuance of the Production Warrants issued by the said concerned M.M., who thereafter on the permission of the court were formally arrested & were interrogated in the court itself.
It is pertinent to refer that during the course of the investigation after the revival of the case on 25.04.2001, the then I.O. H.C. Harbir Singh was transferred & thus in his place, H.C. Virender Singh was deputed as an I.O. of this case, who thereafter completed the investigation of this case & finally filed the challan.
4. After the completion of the investigation in the aforementioned FIR, the challan was filed alongwith requisite documents on 30.06.2001 whereupon the cognizance of the offence's was taken against the accused persons sent up for trial. After the compliance of provisions of Section 207 Cr. P.C. & completion of arguments on the point 05.05.2009 Page 4 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC of charge, the charge under Section 379/34 IPC was framed against accused, Naved & Imran & the charge under Section 411 IPC was framed against accused Kasim.
5. After framing the charge in the aforementioned manner, the trial was commenced wherein the prosecution examined as many as 11 witnesses. After the completion of the prosecution evidence, the statement's of accused Imran & Kasim were recorded under Section 313 Cr. P.C., who preferred not to lead any defence evidence though the opportunity for the same was accorded to them.
As far as the accused Naved is concerned, he was declared as a P.O. during the trial on 13.09.2004 by the Learned Predecessor who continued to be a P.O. even till date.
Now in the backdrop of the above given circumstances, I shall be delivering my final judgment qua contesting accused persons, namely, Imran & Kasim.
05.05.2009 Page 5 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC REASONS FOR DECISION OF THE CASE:
6. I have heard the Learned APP on behalf of the State and Learned Defence Counsel for the accused persons Kasim & Imran and has also perused the case record thoroughly.
As far as the accused Kasim is concerned, he was charged under Section 411 IPC while accused Imran was charged under Section 379/34 IPC.
7. It was argued by the Learned APP for State that the prosecution, keeping in view the testimonies of the PWs examined by it in support of its case, has succeeded in proving the case beyond reasonable doubt against the accused persons kasim & imran in respect of their respective charges, who are thus liable to be convicted in respect thereto.
05.05.2009 Page 6 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC On the other hand, Learned Counsel for the Defence had vehemently argued that the flagrant inconsistencies in the testimonies of the different PWs has brought the prosecution's case against the accused persons Imran & Kasim under the shadow of doubt whereby it is to be construed that the prosecution has miserably failed in proving its case against the said accused persons on the requisite yardsticks.
8. In order to appreciate the above arguments and to see as to whether respective charges leveled against the accused Imran & Kasim have been proved or not, one need to travel into the evidence led on record by the prosecution against these accused persons, who pertinently had opted not to lead any defence evidence, as was so recorded in their respective statements recorded under Section 313 Cr. P.C.
9. It is no longer res integra that in a criminal trial, it is always the duty of the prosecution to prove the case against the accused beyond 05.05.2009 Page 7 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC reasonable doubt. In situations where the case has not been proved against the accused by the prosecution beyond reasonable doubt, the accused deserves to be acquitted of the offences charged against him, even if no defence evidence might have been led by him.
While on the other hand, if it is shown by the prosecution on the basis of the evidence,either circumstantial or direct, that in all possible probabilities the alleged offence was or could be committed only by the accused, which facts thereafter are not disproved by the accused, then the offence is proved to have been committed by the accused who would thereafter be convicted of the offence charged against him.
Now I shall see and discuss as to whether the prosecution has succeeded in its task of proving the respective offences against the respective accused persons herein facing trial beyond the standard of reasonable doubt or not.
11. The prosecution had examined the complainant as PW1, who 05.05.2009 Page 8 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC had stated in his examination in chief that on 07.11.2000, he had parked his motor cycle as detailed above outside his home at around midnight and when on the next morning, he could not locate his motor cycle at the place where it was parked by him on the preceding night despite his best efforts, he lodged the theft report of his motor cycle. PW1 proved his above complaint as Ex. PW1/A. It was further deposed by the PW1 that after around 6 months from the date of the missing of his motorcycle, his said motor cycle was recovered by the police, which was motorcycle was identified and proved by him as Ex. P1. The complainant PW1 farther had deposed that he got his motor cycle released to him vide superdarginama proved as Ex.PW1/B.
12. Prosecution further had examined S.I. Balwinder Singh as PW2, who had deposed that he was deputed as Incharge of P.P. Turkman Gate, P.S. Chandni Mahal on 05.05.2001. PW2 had further stated that all the three accused persons were produced in the concerned 05.05.2009 Page 9 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC court from JC wherein after interrogation, they all were formally arrested and were sent to JC in the instant case as well.
13. Prosecution then examined S.I. Manmohan Singh as PW3, who had deposed that on 22.04.2001, he was posted at P.S. Hauz Qazi and was investigating FIR No. 219/2000 of P.S. Hauz Qazi, wherein accused Naved & Imran during their P.C. made a disclosure statement that another accused Kasim would arrive at G.B. Road, Delhi with a stolen motor cycle. After the said disclosure, a raiding party was constituted by PW3 comprising H.C. Ram Kumar & Constable Rakesh apart from himself. It was further stated by PW3 that the raiding party as constituted above under his leadership stood in front of Kotha No. 50, G.B. Road, Delhi where one boy aged about 2022 years was apprehended by the raiding team with a motor cycle, whereafter it came to their notice that the original registration number of the said motor cycle was DL2S A 2929, which was stolen 45 months back from Prajapati Chowk. The said 05.05.2009 Page 10 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC apprehended youth thereafter disclosed that he had stolen that motorcycle from Prajapati Chowk & also admitted his complicity in other FIR's No. 219/2000 & 222/2000 of P.S. Hauz Qazi. As per PW3, the stolen motor cycle was thereafter seized under Section 102 Cr. P.C. by P.S. Hauz Qazi and the said apprehended boy namely, Kasim was accordingly arrested & after the completion of the necessary formalities, all the three accused persons were sent to jail through court. The seizure memo of the motorcycle in question made under Section 102 Cr. P.C. was proved by the PW3 as Ex. PW3/A.
14. Prosecution had also examined H.C. Yashpal Singh as PW4 who was posted as a Duty Officer on 08.11.2000 at P.S. Chandni Mahal and who formally proved the FIR in question as PW4/A.
15. Prosecution also examined H.C. Ram Kumar as PW5, who deposed that during the investigation of FIR No. 219/01 of P.S. Hauz 05.05.2009 Page 11 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC Qazi, accused Naved & Imran had disclosed that accused Kasim would be coming at Kotha No. 50, G.B. Road, Delhi, whereafter the raiding party reached a place near Kotha No. 50, G.B. Road, Delhi. PW5 further deposed that on 22.04.2001 between 9.00 to 9.30 p.m., accused Kasim was apprehended from G.B. Road at the identification & pointing of accused Naved & Imran, who at that time was riding a motor cycle No. UP13 E 3767. Accused Kasim when could not gave any satisfactory reply regarding his possession of the said motor cycle, the said motor cycle was seized under Section 102 Cr. P.C. via seizure memo Ex. PW3/A. PW5 further deposed that during the investigation, it came to light that real registration number of the said motor cycle was DL2S A 2929 whereafter Accused Kasim was accordingly arrested. The respective disclosures of all the three accused recorded by the police in FIR No. 219/2000, P.S. Hauz Qazi were proved as PW5/A, PW5/B & PW5/C respectively. The place of theft of the said motorcycle was deposed by PW5 to had been identified by the accused via memos proved as Ex. PW5/D1 to Ex. 05.05.2009 Page 12 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC PW5/D3. The present witness also identified the motor cycle in question i.e. Ex. P1 in the court as the case property.
16. PW6 H.C. Daya Nand had deposed that he is the one who had recorded D.D. No. 23A, which was proved as Ex. PW6/A in which document the information regarding recovery of stolen motorcycle in question by the officials of P.S. Hauz Qazi was recorded by him.
17. Prosecution's further witness A.S.I. Ranbir Singh who appeared as PW7 had deposed that he was posted as MHC (M) at P.S. Hauz Qazi on 22.04.2001 when the entry of deposit of the stolen motor cycle in question seized under Section 102 Cr. P.C. was made by him in register No. 19 at point A, which entry was proved as Ex. PW7/A. PW7 further deposed that the motor cycle mentioned at Point A on Ex. PW 7/A was recovered under Section 102 Cr. P.C. in FIR No. 219/2000 under Section 379/411/34 IPC by S.I. Manmohan Kumar,which recovery was 05.05.2009 Page 13 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC mentioned at entry No. A on Ex. PW7/C. PW7 further proved that the stolen motor cycle in question was received by MHC(M) of P.S. Chandni Mahal vide relevant extract mentioned in Ex. PW7/D.
18. PW8 H.C. Balwan Chand deposed that he was posted with P.P. Turkman Gate on 08.11.2000 & that he had reached the spot of theft of the motorcycle in question with Constable Sat Narain on the said date in pursuance of information received as D.D. No. 14. PW8 further stated that he thereafter sent ruqqa through Constable Sat Narain for registration of the FIR in respect of theft of motorcycle in question, whereupon instant FIR Ex. PW4/A was registered at P.S. Chandni Mahal. The site plan of the spot of offence so prepared by him was proved by him as Ex. PW8/A alongwith All India Message qua the theft in question as Ex. PW8/B and application for opening CRO Gazette of the stolen motor cycle in question as Ex. PW8/C. 05.05.2009 Page 14 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC
19. PW9 H.C. Harbir Singh had deposed that he assumed duty as the I.O. of the instant case on 22.04.2001 after an information was received from P.S. Hauz Qazi that the stolen motor cycle wanted in the instant case has been recovered by P.S. Hauz Qazi. On 25.01.2001, he went to P.S. Hauz Qazi and took the possession of the stolen motor cycle in question from P.S. Hauz Qazi and thereafter deposited the same with MHC (M) at P.S. Chandni Mahal vide R.C. No. 37/21. PW9 further deposed that he had also applied for the production warrants of the accused persons before the concerned court of P.S. Chandni Mahal on 25.04.2001 but thereafter he got transferred.
20. PW10 H.C. Virender Singh deposed that he became the I.O. of the instant case on 05.05.2001 on the which date all the three accused were produced before the concerned court of P.S. Chandni Mahal whereat he formally arrested them via memos Ex. PW10/A to PW10/C and also recorded their respective disclosure statements marked as V1 to 05.05.2009 Page 15 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC V3. PW10 had further deposed that he as an I.O. had completed the investigation of the instant case & thereafter filed the challan in the court.
21. PW11 Constable Rakesh, who was also a member of the raiding party comprising of PW3 & PW5, had appeared & deposed on the lines similar to the testimonies of PW3 & PW5.
22. From the perusal of above testimonies of different PW's, it transpires that case propounded by the prosecution is that the motor cycle in question was stolen from the vicinity of the house of the complainant on the midnight of 0708/11/2000, whereupon the present FIR was lodged. However since the said motor cycle in question could not be recovered, the case was accordingly closed as "Untraced" on 05.02.2001 but the same was again reopened on 25.04.2001 after the stolen motor cycle was recovered by P.S. Hauz Qazi in Kalandra lodged under Section 102 Cr. P.C. vide memo Ex. PW3/A. It is the further case of 05.05.2009 Page 16 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC prosecution that the accused Naved & Imran while undergoing P.C. in FIR No. 219/2000 of P.S. Hauz Qazi had disclosed to the respective I.O. i.e. PW3 that accused Kasim who had stolen the motor cycle in question would come at Kotha No. 50, G.B. Road, Delhi with the said motorcycle. On the basis of the said information, a raiding party comprising of PW-3, PW5 & PW11 was constituted, which team recovered the stolen motor cycle in question with a forged number plate of UP13 E 3767 from the possession of accused Kasim on 22.04.2001 from a place near Kotha No. 50, G.B. Road, Delhi, which motorcycle was thereafter seized under Section 102 Cr. P.C. vide memo Ex. PW3/A. After inquiry, it was revealed that the real registration number of the said motor cycle was DL 2S A 2929 and that the same was stolen from the area of P.S. Chandni Mahal. Accused Kasim was accordingly arrested. The disclosures of all the three accused recorded in FIR No. 219/2000 of P.S. Hauz Qazi were proved as Ex. PW5/A to Ex. PW5/C by the prosecution and the case property i.e. motorcycle in question was proved as Ex. P1. 05.05.2009 Page 17 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC
23. Now, in order to prove the charge under Section 379/34 IPC against accused Imran, the prosecution was required to prove the ingredients of the said offence i.e. dishonest removal of the said motor cycle by the accused Imran in connivance with other accused Naved without the consent of the complainant from the place where it was parked by the complainant.
While on the other hand, in order to prove the charge under Section 411 IPC against accused Kasim, the prosecution was required to prove that accused Kasim had retained or received possession of the stolen motor cycle in question despite having knowledge or reason to believe that the same was stolen.
24. As far as the prosecution case against the accused Imran leveled under Section 379/34 IPC is concerned, it is clear from the material on record that the prosecution had failed in proving the said 05.05.2009 Page 18 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC charge against the accused Imran beyond reasonable doubt. There is nothing on record except for the disclosure statements given by the accused persons in FIR No. 219/2000 P.S. Hauz Qazi to connect accused Imran with the theft of the said motor cycle. It is not disputed that the said disclosures were recorded in police custody by the police officials. As per section 25 & 26 of the Evidence Act, the said disclosures recorded by the police either in FIR No. 219/2000 of P.S. Hauz Qazi or the present FIR are nothing but a mere waste of paper having no evidentiary value. The disclosures made by the accused persons in FIR No. 219/2000 comes directly under the bar of Section 25 & 26 of Evidence Act when it has been brought on record by the prosecution itself that accused Naved & Imran at that relevant time were undergoing P.C. in FIR No. 219/2000 of P.S. Hauz Qazi when they had given their disclosures.
As far as the disclosure statement of accused Kasim in FIR No. 219/2000 of P.S. Hauz Qazi is concerned, in my view the same is also hit by Section 25 & 26 of the Evidence Act meaning thereby it is also 05.05.2009 Page 19 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC devoid of any evidentiary value when as per the testimony of PW - 5 itself, the said disclosure of accused Kasim was recorded in FIR No. 219/2000 of P.S. Hauz Qazi after his arrest in the said FIR on the seizure of the said motor cycle in question under Section 102 Cr. P.C. by P.S. Hauz Qazi.
Thus it becomes very much clear that the disclosure statement's of all the three accused persons recorded in FIR No. 219/2000 of P.S. Hauz Qazi & proved as Ex. PW5/A to Ex. PW5/C have no evidentiary value in the eyes of law to so fasten any criminial liability on any of the accused facing trial herein.
As far as the disclosure statement's of the accused persons recorded by the police in the present FIR are concerned, they admittedly were recorded after the formal arrest of the said accused persons was conducted before the concerned court whereupon the court permitted the interrogation of the accused persons by the I.O. of instant case meaning thereby that the said disclosures were also recorded by the police while 05.05.2009 Page 20 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC the accused were in their interrogative custody whereby these disclosures also have no evidentiary value in the eyes of law due to the application of Section 25 & 26 of the Evidence Act.
There is nothing on record except for the above disclosure statements to connect accused Naved & Imran with the theft of motor cycle in question, either directly or remotely.
The testimony of complainant PW1 is of no consequence to nail any of the accused when he is neither shown nor is proved to be an eye witness to the occurrence of offence in question. The rest of the testimonies coming on record pertaining to the purported theft committed by accused Imran are all of different police officials involved in dealing with the offence in question from time to time, which testimonies also hinges upon respective disclosure statement's of the accused persons, which disclosures since have already been rejected by the court & thus the said testimonies also falls flat on ground.
Moreover the story of recovery of the stolen motorcycle 05.05.2009 Page 21 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC alleged to had been effected from Accused Kasim on the basis of the disclosure statement's of accused Naved & Imran in FIR No. 219/2000 of P.S. Hauz Qazi also suffers from various taints & dents. It had been the consistent stand of PW's 3, 5 & 11, who were also the members of the raiding party constituted to nab accused Kasim & the stolen motorcycle after the disclosures of the accused Naved & Imran given in FIR No. 219/2000 of P.S. Hauz Qazi, that accused Naved & Imran had disclosed in their respective disclosure statements that accused Kasim would come on a stolen motor cycle at a place near Kotha No. 50, G.B. Road. Delhi on 22.04.2001. Now in the light of above testimonies, if the disclosure statement's of accused Imran & Naved proved as Ex. PW5/B & Ex. PW 5/C so recorded in FIR No. 219/2000 of P.S. Hauz Qazi are perused, there is not even a word recorded therein being purportedly disclosing therein that accused Imran or Naved had said that accused Kasim would come to G.B. Road on 22.04.2001 with a stolen motor cycle or something like that. Thus it is clear that there is nothing in the said disclosures to 05.05.2009 Page 22 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC show that the accused persons Imran or Naved had disclosed before or informed the concerned I.O. of FIR No. 219/2000 of P.S. Hauz Qazi that accused Kasim would arrive along with any stolen motorcycle at G.B. Road on 22.04.2001. The accused Imran & Naved in their disclosure statement's Ex. PW5/B & Ex. PW5/C had rather stated that they along with accused Kasim had stolen the motor cycle in question 45 months back and nothing else. The said disclosure statement's are totally silent on the aspect that accused Kasim would arrive along with any stolen motorcycle at G.B. Road on 22.04.2001. No amount of evidence has come on record so as to suggest the any other source of information for the members of the raiding party so as to know the stipulated date & place of the arrival of accused Kasim with a stolen motor cycle on 22.04.2001, apart from the said disclosures Ex. PW5/B & Ex. PW5/C which disclosures are since redundant. PW5 went a extend further to exaggerate that the accused Kasim who was involved in the theft of the motor cycle was disclosed to be a regular visitor of Kotha No. 50, G. B. 05.05.2009 Page 23 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC Road,Delhi by the remaining accused in their disclosure's but there is no factual information of that sort being visibly recorded in the disclosure statement's Ex. PW5/B & Ex. PW5/C respectively of accused Naved & Imran. It would not be incorrect to observe that the contents & information conveyed by the said disclosures of accused Naved & Imran Ex. PW5/B & Ex. PW5/C recorded in FIR No. 219/2000, which are so heavily relied by PW3, PW5 & PW11 for substantiating the receipt of information qua the theft of the motorcycle in question by the accused persons & its subsequent dishonest possession by accused Kasim runs contrary to their own testimonies recorded in the court.
No amount of evidence in the form of D.D. Entry or otherwise had come on record from the mouth of any of the prosecution witnesses, more particularly PW's 3, 5 & 11, so as to even remotely substantiate the departure or arrival of the raiding party along with accused Imran & Naved from P.S. Hauz Qazi to & from G.B. Road, Delhi, so constituted for effecting the recovery of the stolen motor cycle from accused Kasim on 05.05.2009 Page 24 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC the disclosure statement's of accused Imran & Naved. When no D.D. Entry or any other piece of evidence has been proved or produced on record to substantiate that the raiding party comprising of PW's 3, 5 & 11 along with the accused Imran & Naved had left P.S. Hauz Qazi for conducing raid for the recovery of the stolen motor cycle from accused Kasim on 22.4.2001 or had arrived at P.S. Hauz Qazi after conducting the said raid & recovery with arrest of accused Kasim, it brings the story line qua the raid & recovery so propounded by the prosecution under serious doubt. The storyline of receipt of information qua the theft of motorcycle by the accused persons, the dishonest possession of the stolen motor cycle by the accused Kasim through the disclosures PW5/B to Ex. PW5/C and the subsequent recovery of the motorcycle from accused Kasim at the behest of Accused Imran & Naved suffers from all sort of legal infirmities and lacuna's.
It is admitted in the testimonies of PW's 3 & 5 that no public witness was joined by them either at the time of recording of the 05.05.2009 Page 25 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC disclosure statement's of the accused persons or at the time of effecting the recovery of the stolen motor cycle from accused Kasim at G.B. Road, which place of recovery no doubt was a public place where at public witnesses would have been available but still the said raiding party preferred to conduct the raid & recovery with getting any person of public involved, which if would have been done might have lended some authenticity to the storyline of raid & recovery so propounded by PW's 3, 5 & 11.
Henceforth what transpires from record keeping in view the aforementioned discussion is that the even the recovery of the stolen motor cycle in question from the accused Kasim seems to be doubtful. The complicity of the accused Kasim in the instant crime charged against him & the alleged recovery from him also seems to be more doubtful when there is nothing in the disclosure statement's of accused Naved & Imran Ex. PW5/B & Ex. PW5/C that accused Kasim usually comes & would also come on 22.04.2001 at Kotha No. 50, G.B. Road, Delhi along 05.05.2009 Page 26 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC with a stolen motor cycle, rather the said disclosure statement's are totally silent in that regard.
The raiding party comprising of PW's 3, 5 & 11 had not deposed anywhere in there respective testimonies that while conducting the raid in the area of P.S. Kamla Market, they had either informed the concerned P.S. Kamla Market qua their actions or they had taken or applied for the assistance from P.S. Kamla Market qua their raid and subsequent recovery so made in the local area of P.S. Kamla Market, which if would have been done might have been added strength to the genuineness of the prosecution's story of raid & subsequent recovery effected from accused Kasim at the behest of accused Naved & Imran. No reason whatsoever was deposed by PW's 3, 5 & 11 as to why they did not inform the police officials of P.S. Kamla Market though the place where they were about to conduct raid & effect recovery of a stolen motorcycle from accused Kasim at the behest of the accused Naved & Imran falls under the jurisdiction of P.S. Kamla Market. 05.05.2009 Page 27 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC Thus the above fact of nontaking of assistance or not informing of the concerned P.S. Kamla Market by PW's 3, 5 & 11 about the conducting of the raid by them in the area of P.S. Kamla Market so seen in the light of the non joinder of the public witness at the time of effecting the recovery of the stolen motorcycle from the accused Kasim at the behest of accused Naved & Imran & inconsistencies in the testimonies of PW's 3, 5 & 11 qua the contents of the disclosure statement's of accused Imran & Naved recorded in FIR No. 219/2000 of P.S. Hauz Qazi along with the effect of inadmissibility of the disclosure statement's of all the accused recorded either in FIR No. 219/2000 of P.S. Hauz Qazi or the instant FIR brings the entire storyline of alleged recovery of the stolen motor cycle from the possession of accused Kasim at the behest of accused Naved & Imran & the complicity of the accused persons in the offences charged against them under serious doubt whereby it cannot be assumed that the recovery of the said motor cycle in question was either effected from accused Kasim at the behest of accused Naved & Imran or 05.05.2009 Page 28 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC that the accused persons were reasonably believed to have committed offences charged against them by the state.
Neither the complicity of accused persons in the crimes charged against them nor the subsequent recovery of the stolen motorcycle from accused Kasim at the behest of accused Naved & Imran is shown to have been proved by the prosecution on the requisite yardsticks either against accused Imran or accused Kasim. The prosecution has miserably failed in proving ingredients of the respective offences charged against accused Imran & Kasim. CONCLUSION
25. On the basis of my aforementioned discussion, it is clear that neither the offence under Section 379/34 IPC against accused Imran nor the offence under Section 411 IPC against accused Kasim has been proved by the prosecution beyond reasonable doubt, rather, the testimonies 05.05.2009 Page 29 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC which have come on record creates a shadow of doubt in respect of the commission of the respective offences by accused Naved or Imran.
Accordingly Accused Imran & Kasim are acquitted of the offences under Section 379/34 IPC & Section 411 IPC respectively charged against them. The bail bonds and surety bonds of accused Imran & Kasim are henceforth discharged whereby their respective sureties stands discharged. The respective sureties of accused Imran & Kasim shall be entitled to the release of their original documents, if any on record, after cancellation of endorsements thereupon against acknowledgment, as and when so applied by them.
As far as the accused Naved is concerned, since he is a P.O. in the instant trial, accordingly no observations qua the proving or non proving of the offence charged against him under Section 379/34 IPC could be rendered whereby it is observed that accused Naved shall face trial for the offence charged against him as and when he is arrested and produced before the court in this case.
05.05.2009 Page 30 of 31 Pages FIR No. 176/2000 P.S.: Chandni Mahal U/S: 379/411/34 IPC Hence on the acquittal of accused Imran & Kasim, the instant file be consigned to record room after due compliance with liberty to the state to have the case revived against the accused Naved, as and when the said accused Naved is arrested & produced before this court. File be consigned to record room till then.
Announced in the open court Dated : 05.05.2009 (SIDHARTH MATHUR) M.M. / Central II Delhi 05.05.2009 Page 31 of 31 Pages