Delhi District Court
State vs . Anil Kumar. Fir No. 630/97, U/S : ... on 29 January, 2013
State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR No. 630/97 PS: Model Town U/S 379/411 IPC State Vs. Anil Kumar JUDGMENT
A. SL. NO. OF THE CASE 197/98 :
B. DATE OF INSTITUTION :
02.02.1998
C. DATE OF OFFENCE :
04/5.09.1997
D. NAME OF THE :
Sh. Om Prakash
COMPLAINANT S/o Sh. Kanhiya Lal
E. NAME OF THE ACCUSED: Anil Kumar
S/o Sh. Roop Lal
F. OFFENCE COMPLAINED OF: U/s 379/411 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquitted
I DATE OF SUCH ORDER : 29.01.2013
Brief Statement of Reasons for Decision:
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on the intervening night of 04/05.09.1997, the present FIR u/s 379 IPC was lodged at PS Model Town by the complainant Sh. Om Prakash, regarding theft of his Maruti car bearing no. DNH 6410, which was stated to be stolen by some unknown person from front of house bearing no. C7/5B, Model Town III, Delhi. Subsequently, on 07.09.1997, the police officials of PS. Trilok Puri Page No. 1 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town apprehended the accused Anil Kumar, who got recovered the aforesaid stolen maruti car from Joshi Colony, Mandawali, Delhi. Accused disclosed that the said Maruti car is a stolen property and it was stolen by him from front of H. No.C7/5B, Model Town III, Delhi. The stolen car was seized by the police officials of PS Trilok Puri and intimation regarding its recovery was conveyed to PS. Model Town. After conclusion of the investigation, the present challan u/s 379/411 IPC against the accused was filed in the court.
2. In compliance of Section 207 Cr.P.C., the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge u/s 379/411 IPC was made out against the accused Anil Kumar. Accordingly, on 23.10.1998 the charge was separately framed by the Ld. Predecessor of this court. Accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined six witnesses.
4. HC Om Prakash (PW1) is a formal witness, who had registered the present FIR No. 630/97, U/s 379/411 IPC, at PS Model Town, Delhi. He has proved the copy of present FIR as Ex. PW1/A.
5. Sh. Om Prakash (PW2) is the complainant in the present case. He lodged the complaint dated 04.09.1997 at PS Model Town regarding the theft of his maruti car bearing No. DNH6410. He has proved his complaint as Ex. PW2/A. He has further testified that after 4/5 days of incident, he was informed by the police officials that his stolen car has been recovered and the same is lying at PS Trilok Puri, Delhi. Thereafter, he went to PS Trilok Puri and he idenified his car in the said PS. He has Page No. 2 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town further deposed that the accused was also present at PS Trilok Puri. During his testimony he produced his car and the same is exhibited as Ex. P1.
6. Ct. Ram Kishan (PW3) is one of the recovery witnesses. He has deposed that on 06.09.1997, he was posted at PS Trilok Puri with SI Vinay Tyagi. He has further deposed that SI Vinay Tyagi received a secret information about a stolen car. He has further deposed that SI Vinay Tyagi prepared raiding party consisting of HC Manoj, Ct. Subhash and him. He has further testified that at about 9:45 pm, they saw one maruti car coming from the side of Shakur Pur. The said car was signaled to stop. The accused Anil Kumar was driving the said car and on demand of document, he could not produce any document pertaining to said car. The accused disclosed that he had stolen the said car from the area of PS Shalimar Bagh, Delhi. IO prepared a rukka and an FIR was got lodged at PS Trilok Puri through PW3 Ct. Ram Kishan. The said car was deposited in the Malkhana of PS Trilok Puri.
7. Ct. Jileshwar (PW4) is a formal witness who accompanied the IO SI Manvinder to the place of incident of theft on 04/05.09.1997. He got the present FIR lodged after a rukka was prepared by IO SI Manvinder, that was prepared by endorsing the complaint of the complainant Sh. Om Parkash.
8. SI Vinay Tyagi (PW5) is also one of the recovery witnesses. He has also deposed on the similar lines as that of Ct. Ram Kishan (PW3), therefore, his testimony that is in consistence with PW3 is not repeated herein for the sake of brevity and to avoid repetition. In addition to that, he has deposed that he reduced the secret information in writing vide a DD entry. He further deposed that he asked 45 public persons to join investigation. He has also testified that accused disclosed Page No. 3 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town about the commission of the present offence and he got the stolen property of this case i.e. car bearing no. DNH 6410 recovered from Joshi Colony, Mandawali, Delhi and he has proved the copy of the seizure memo of the said car as Ex.PW5/A.
9. SI Manvinder Singh (PW6) is the IO of the case and he has testified regarding the factum of theft of car bearing DNH 6410 on 04/05.09.1997. He has further testified that on 07.09.1997 he received an information from PS Trilok Puri regarding recovery of the stolen car from the possession of the accused Anil Kumar. He transferred the case property from the malkhana of PS Trilok Puri to PS Model Town. Thereafter, prosecution evidence was closed.
10. Statements of the accused U/s 313 Cr.P.C. was separately recorded. All the incriminating evidence against him were put to him for seeking his explanation. In the said statement, he has stated that he is innocent and he has been falsely implicated in the present case. Thereafter, the matter was listed for DE.
11. In defence evidence, he examined his brother Sh. Praveen Kumar as DW1. DW1 testified that in the year 1997 the accused was running a ready made garment shop and one day a police official came to the shop of the accused, but he did not pay for the garments purchased by him from the shop of his brother. When his brother asked for the payment of said garments, the said police official threatened to falsely implicate the accused. Thereafter, on the very next day the accused was falsely implicated in this case. Thereafter, defence evidence was closed.
12. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have carefully perused the case file.
Page No. 4State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town
13. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the 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.
14. In order to bring home guilt of the accused u/s 379/411 IPC, the prosecution is required to prove the following ingredients of the said section:
(i) That subjectmatter of the offence is movable property;
(ii) it was moved out of the possession of any person without his consent;
(iii) The accused used criminal force on the complainant with an intention to move the movable property;
(iv) The stolen property was received or retained by the accused;
(V) The accused had knowledge and reason to believe the same to be stolen property; and (VI) The accused did it with a dishonest intention;
15. It is an admitted fact that none of the prosecution witnesses has seen the accused committing the offence of theft of car. In the instant case the complainant has filed his complaint stating that his car was stolen by some unknown person. Therefore, there is no conclusive evidence on record to establish that the accused Anil Kumar stole the car in question from the possession of the complainant. Thus, the prosecution has failed to substantiate the ingredients of the offence punishable u/s 379 IPC.
16. Insofar as the offence punishable u/s 411 IPC is concerned, the prosecution is required to prove that the movable property was recovered from the possession of the accused and Page No. 5 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town it is a stolen property.
In the instant case, the prosecution has alleged that the accused got recovered stolen car bearing No. DNH6410 from Joshi Colony, Mandawali, Delhi. The only alleged recovery witness examined in this case is SI Vinay Tyagi (PW5). The said witness has exhibited the copy of seizure memo of the stolen car dated 07.09.1997. However, the said original seizure memo of FIR No. 716/97, PS Trilok Puri, dt. 07.09.1997 was never produced in the court. The prosecution has failed to disclose the whereabouts of the said original document and has also failed to advance any justifiable ground for not producing the said original seizure memo. The secondary evidence /photocopy of a document is not proved unless it falls within the purview of Section 65 of Indian Evidence Act, 1872. In the instant case, the aforesaid copy of seizure memo Ex. PW5/A is not covered under any of the provisions of the said Section. Thus, non production of the original seizure memo has proved detrimental to the prosecution version as its copy Ex. PW5/A has remained unsubstantiated.
17. Moreover, the prosecution has failed to place on record the site plan of the alleged spot of recovery. Rather, it is an admitted fact that no such site plan was ever prepared by the alleged recovery witness. The said stolen car is allegedly recovered from Joshi Colony, Mandawali, Delhi, however, the exact place of its recovery has not been revealed. It is also not revealed whether the said car was parked in open or surreptitiously. The said alleged place of recovery is admittedly a public place and same is accessible to every one. The prosecution has nowhere alleged that the place of recovery was in exclusive knowledge of the accused or that place of recovery was concealed by him from the eyes of public. Thus, it is Page No. 6 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town apparent that the place of alleged recovery has not been established to be secret and it seems that it was an open place, thus it was accessible to the public. The recovery of stolen vehicle from open space at the instance of the accused at the most suggests that he had knowledge of its presence at the spot and does not necessarily means that the accused retained or received the said stolen property. Thus, no reliance can be placed upon the alleged statement/confession of the accused u/s 27 Evidence Act, 1872 as the said statement is irrelevant for the purpose of recovery of alleged stolen car that was already within the knowledge of pubic at large.
Besides that, the investigation is hopelessly shabby to the extent that the IO has even failed to care to ascertain as to why and for what purpose, the accused had allegedly parked the said stolen car at Joshi Colony, Mandawali, Delhi. The prosecution is also silent on the aspect as to what was the occasion for the accused to park the stolen car at the alleged place of recovery, as neither the accused is a resident of the said colony nor he is allegedly related in any manner whatsoever to the said place of recovery.
18. Further, the alleged recovery at the instance of the accused also does not inspire sufficient confidence. Neither all the recovery witness have been examined nor the original recovery memo has been placed on record.
The alleged recovery is stated to be effected from Joshi Colony, Mandawali, Delhi though, its time has not been revealed. The IO did not make any efforts to join the public persons of nearby located houses, though the alleged place of recovery is admittedly a residential area. Had the recovery witnesses would have made effort they could have easily joined public/independent witness at the time of recovery. However, in Page No. 7 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town their wisdom they preferred not to join any public witness despite of their availability. 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 car from the accused. Hence, story of the prosecution is further shrouded in suspicion.
19. 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 witness that is examined by the prosecution in the present case is a police witness, who is 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 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.
20. 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]SUPP1SCR581wherein it is held: ".........50 Apart from the versions of eyewitnesses discussed above, the trial court attached importance to the fact Page No. 8 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered under memorandum Ext. P19. 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 2003CriLJ2525 Hon'ble Supreme Court has held:
"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 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."
21. 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 Page No. 9 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town 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 examinedprosecution 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".
22. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against either of the accused persons namely Anil Kumar to bring them within the four corners of the offence U/s 379/411 IPC, accordingly, the aforesaid accused is acquitted for the offence U/s 379/411 IPC. He is directed to furnish fresh personal bond in a sum of Rs. 15,000/ each with one surety in like amount, in accordance with Section 437A Cr.P.C. The same are furnished and they are accepted. They shall remain in force till next six months.
File be consigned to Record Room after due compliance. Announced in the open court today i.e. on 29.01.2013.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI/DELHI Page No. 10 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town FIR No. 630/97 PS: Model Town U/S 379/411 IPC State Vs. Anil Kumar 29/01/2013.
Present: Ld. S. APP for the State.
Accused Anil Kumar on bail with Ld. Counsel.
Vide my separate judgment announced in the open court today, accused Anil Kumar stand acquitted for the offence punishable U/s 379/411 IPC. He is directed to furnish fresh personal bond in a sum of Rs. 15,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. The same are furnished and they are accepted. They shall remain in force till next six months.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/29.01.2013 Page No. 11 State Vs. Anil Kumar. FIR No. 630/97, U/s : 379/411 IPC, PS: Model Town Page No. 12