Delhi District Court
State vs . Pappu on 8 May, 2018
IN THE COURT OF SH. BABRU BHAN,
METROPOLITAN MAGISTRATE -07 (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE Vs. PAPPU
C.C. NO. 33/07
P.S. RPF/HNZM
CASE No. 525229/2016
Date of Institution: 15.12.2007
Date of reserving judgment: 01.05.2018
Date of pronouncement: 08.05.2018
In re:
State/RPF Versus PAPPU
S/o- Shabbir Hussain,
Permanent R/o- H.No. A-101,
Gali No. 2, Nadesar Mohalla, PS-
Chowka Ghat, Varanasi, UP.
R/o- Jhuggi No. 151, Udhog
Nagar, Delhi.
Plea of accused : Pleaded not guilty and claimed
trial
Final order : Accused is Acquitted for the
offence U/s 3 RP (UP) Act.
JUDGMENT
1. On 15.12.2007 at about 06.20 hours, at Signal No. 6/7, OKHLA end, within the jurisdiction of RPF Post HNZM, RPF officials apprehended accused Pappu and he was found in possession of one booked consignment valued Rs. 6500/- (railways property). Accused failed to produce any authority for possessing the same. He was booked U/s 3 RP(UP) Act. After inquiry, the present complaint U/s 3 RP (UP) Act has been filed.
2. On filing of the present complaint, prosecution lead pre-charge evidence. On the basis of material produced, charge for the offence U/s 3 RP (UP) Act was framed against the accused on 28.01.2013 to which he pleaded not guilty and claim to be tried.
3. During prosecution evidence, ASI Nawal Singh PW7 stated that on 15.12.2007, he alongwith Ct Manbhir Singh and HC Shanti Swaroop while on patrolling saw one person carrying a bulky package on his left shoulder at PF No. 6/7, OKHLA end. He was chased and apprehended near signal No. S-43, PF No. 6/7 OKHLA end. On checking the package, it found bearing railway marka NZM 882163 P-12 VSG. The property was seized and accused was arrested vide memo Ex. PW7/G. PW7 recorded the disclosure and confessional statement of accused Ex. PW7/C and Ex. PW7/E. Pointing out memo Ex. PW7/D was also prepared.
4. HC Shanti Swaroop PW9 and HC Manbhir PW10 also gave their testimonies on the same lines as given by ASI Nawal Singh PW7.
5. Anil Sharma PW1 stated that on 13.12.2007, 12 packages containing readymade garments were booked from NZM to VSG vide R-R No. 882163 but one package was delivered short. On 21.01.2008, he was called to RPF NZM by ASI Nawal Singh where he identified the case property. The verification report is Ex. PW1/A.
6. Vipin Malhotra PW2 stated that on 15.12.2007, he was posted as parcel clerk. One booked consignment bearing RR No. 882163 was found missing. PW2 issued the theft memo Ex. PW2/A.
7. Ram Kumar Yadav PW3 stated that on 13.12.2007, he was on duty as receipt clerk at parcle office NZM. 12 parcel packages were booked from NZM to VSG vide RR No. 882163 Ex. PW1/C.
8. Jawahar Lal PW4 stated that he put marka No. 882163 on 12 parcel packages booked from NZM to VSG. Same were handed over to junction clerk.
9. Surender Kumar PW5 stated that on 15.12.2007, he was on duty as loading and unloading clerk fro, 16.00 to 24.00 hours. He loaded 11 parcel packages out of 12 bearing railway marka 882361 in train No. 2780 Goa Express vide loading summary Ex. PW5/A.
10. Jaspal Singh PW6 stated that on 13.02.2007, he shifted 12 packages in bundles bearing railway marka 882163 which came under his charge, to PF No. 6/7 OKHLA side.
11. S.N. Dongre PW8 stated that on 13.12.2007, he was on duty as weighment clerk. 12 bags booked from NZM to VSG were weighed by him which was five quintals 37 kgs.
12. Inspector Ram Mehar Singh PW11 and HC Jasvir Singh PW12 produced the relevant entries of the malkhana register and crime register vide Ex. PW11/A and Ex. PW12/A.
13. After completion of prosecution evidence, the statement of the accused was recorded under the mandate of Section 313 r/w 281 Cr.P.C wherein he tendered explanation that he has been falsely implicated in this case and is innocent. Since, he was not having railway ticket and due to fear of arrest by the ticket collector, he started moving on the railway tracks and was arrested by RPF officials. The goods produced in the Court is heavy and he cannot lift it and run.
14. The Hon'ble Supreme Court has laid down the law in precedents titled as State of Maharashtra v. Vishwanath Tukaram Umale [AIR 1979 SC 1825] and also in Om Prakash v. State of UP [AIR 2008 SC 1112], that the following ingredients need to be established by the prosecution in such cases to establish the guilt of the accused:
(i) the property in question should be railway property,
(ii) it should reasonably be suspected of having been stolen or unlawfully obtained, and
(iii) it should be found or proved that the accused was or had been in possession of that property.
15. Chapter 22 rule 49 of the Punjab Police Rules, provides that;
"Chapter 22 rule 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 prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
16. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"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 reservations. 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 entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution".
As per the case of the prosecution, ASI Nawal Singh PW7, HC Shanti Swaroop PW9 and HC Mahaviir PW10 were on patrolling duty when accused was found in possession of the railway property. As per the aforenoted legal position, all the above officials were duty bound to make departure entries before leaving the post for patrolling. However, no such DD entry has been placed on record. No justifiable reason for not complying with a mandatory condition has been putforth. Non-compliance of the mandatory conditions would definitely effect the probity of a positive case prepounded by the prosecution.
17. As per the case of the prosecution, accused was arrested at 6.00 hour near Hazrat Nizamuddin Railway Station. The site plan Ex. PW7/H would show that the place of apprehension is situated on PF No. 6/7, Hazrat Nizamuddin Railway Station. The Court can safely take judicial notice of the fact that Hazrat Nizamuddin Railway Station is a busy railway station round the clock. With little efforts, at that hour of the day, EO could have easily joined an independent witness in investigation.
18. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed 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.....".
19. It was held by Hon'ble Delhi High Court in the CRL. L. P. 182 of 2013 in the matter of RPF VS. Raju that;
"........ it may not be possible for the RPF to associate public witnesses at the time of apprehension of the accused, given the hour of the day when such arrest takes place. Nevertheless, there must be contemporaneous entries made in the records maintained by the RPF to indicate that an attempt was made to associate public witnesses. In other words, the requirement of associating public witnesses must not be treated as a mere formality. It must not be presumed by the RPF in every case that the requirement can be dispensed with".
Moreover, it was further held that "Where there are no public witnesses involved, a trial Court is bound to view with suspicion the confessional statement made by an accused in the presence of the RPF officers.
In this case, the prosecution witnesses have not explained the reasons for non-joining of independent witnesses. There is nothing in the statements of the RPF officials which may suggest that IO had made any efforts to join the public person in the investigation. This fact would further effect the case of prosecution.
20. HC Jasvir Singh PW12 has deposed that on 15.12.2007, he was working as MHC(M) as RPF NZM. On that day, case property was deposited in the malkhana at the instance of ASI Manohar Singh. Case property was taken out for verification on 21.01.2008 vide DD No. 47 Ex. PW12/B. This witness produced the malkahan register, copy Ex. PW12/A (OSR). As deposed by PW12 HC Jasvir Singh, the property was got verified through Anil Sharma PW1 on 21.01.2008 vide report Ex. PW1/A. It means that after depositing the property in malkhana on 15.12.2007, it was again taken out for verification on 21.01.2008. Needless to say, the entry regarding the taking out for property for its verification on 21.01.2008 should be there in malkhana register. However, there is no such entry in document Ex. PW12/A. Although, PW12 HC Jasvir Singh sought to explain that when the prpperty was taken out for verification on 21.01.2008, separate DD No. 47 Ex. PW12/B was made. When a particular register has been prescribed by the rules for a particular purpose, entry should be made in that register. In my opinion, a separate DD would not be sufficient. Non mentioning of the taking out and redepositing of the property in the malkhana register after its verification on 21.01.2008 would create a doubt whether that the same property which was seized from the accused has been produced before the Court or not.
21. Further, chances of prejudice could not be ruled out as the person (ASI Nawal Singh PW7) who made the recovery from the accused also arrested the accused and conducted the entire investigation.
It is pertinent to mention here that all the above documents were prepared by the said official in violation of procedure prescribed for inquiry under Appendix VIII (purporting to be Railway Board's order no. 73- See.Spl/Regn/Ch.XXV dated 09.07.1975) as annexed with a publication namely "Hasan Askari's Railway Property (Unlawful Possession) Act, 1966 together with Railway Protection Force Act and Rules Revised by Vijay Malik, LLB., M.B.A." published by Eastern Book Company, Lucknow, reprinted 2000, page 283, RPF Rule 7 of the said procedure prescribes the preparation of a recovery memo only by the apprehending officer. The rest of the enquiry as envisaged u/s 8 of the Act is to be conducted by the enquiry officer and not the officers who apprehended the accused red handed.
22. In this matter, almost entire inquiry has been carried out by ASI Nawal Singh PW7 who was also the member of the arresting party. A major part of documentation was carried out by the same RPF Official who allegedly arrested the accused red handed. This Court is of the considered opinion that chances of prejudice to the accused persons could not be ruled out in view of the fact that conduct of the RPF is in blatant violation of the prescribed procedures. On account of this reasons also, the recoveries allegedly made from the accused persons could not be believed by this court.
23. As per the statement of S.N. Dongre PW8, the entire consignment was weighing 5 quintals and 37 kgs. It was packed in 12 plastic bags. Surender Kumar PW5 who discharging the duties of loading clerk at Hazarat Nizamuddin Railway Station has deposed that he loaded 11 parcel packages out of 12 packages of RR No. 882163 in Goa Express. He prepared the loading summary Ex. PW5/A. As per the summary, the total weight of the loaded material was 464 kgs. It means the parcel which was allegedly stolen by the accused was weighing about 73 kgs.
Ld counsel for the accused has argued that accused is person of normal built. He is not a porter (coolie) or palledar by occupation. Ld counsel has raised the contention that accused is neither physically too strong nor he is habitual of lifting heavy weights and therefore, he was not capable of lifting a parcel package of 73 kgs alone.
I find myself in agreement with the Ld counsel for the accused. It is not an easy task for a normal person to lift a bag containing 73 kgs of weight. This fact also goes against the case of the prosecution.
24. In view of the above mentioned observations, this Court is of the considered opinion that prosecution fails to prove the charges against the accused beyond any reasonable doubt as not only the recovery of the case property is clouded with doubts, even the procedural requirements have not been complied with by RPF without any justification as discussed in the preceding paragraphs. It is a settled legal preposition that in case of doubt, benefit shall be given to the accused.
25. In case titled Pratap Vs State AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that:
"The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded".
26. In case titled Surender Kumar & Anr Vs The State, 2007 (2) JCC 1003 it has been observed by Hon'ble High Court of Delhi that:
"Benefit of doubt-where there is a reasonable doubt and when two incredible versions confront the court, the court should give benefit of the doubt to the accused and it is not safe to sustain conviction".
27. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof is not preponderance of probabilities but proof beyond all reasonable doubts. It is well settled legal preposition that the benefit of doubt goes in favour of accused. Under the circumstances, it would not be safe to convict the accused merely on the basis of testimonies of the RPF officials. Hence, accused Pappu is acquitted on the basis of benefit of doubt.
File be consigned to Record Room after due compliance.
BABRU Digitally signed by
BABRU BHAN
BHAN Date: 2018.05.10
10:04:26 +0530
ANNOUNCED IN THE OPEN (BABRU BHAN)
COURT IN 08.05.2018 METROPOLITAN MAGISTRATE-07
TIS HAZARI COURT/DELHI