Delhi District Court
State vs Sharafat Hussain & Ors. Fir No. 435/96, ... on 6 March, 2013
State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR NO. 435/96. PS. Model Town. U/s. 457/380/411 IPC. State Vs. Sharafat Hussain & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 95/2
B. DATE OF INSTITUTION : 15.09.1997
C. DATE OF OFFENCE : 17.09.1996
D. NAME OF THE : Sh. Manoj Gupta
COMPLAINANT S/o Late Sh. P.P. Gupta
E. NAME OF THE : (1) Sharafat Hussain
ACCUSED S/o Late Sh. Liyakat Hussain
(2) Mohinder Kumar Bansal
S/o Sh. Radhey Shyam Bansal
(3) Jalil Ahmed
S/o Sh. Latif Ahmed
(4) Habib Khan
S/o Sh. Badlu Khan
(5) Rajbir
S/o Sh. Inspector Singh
(6) Abid Hussain
S/o Sh. Gulam Hussain
F. OFFENCE
COMPLAINED OF : U/s 457/380/411 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal.
Page No. 1
State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town I. DATE OF SUCH ORDER: 06.03.2013.
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 17.09.96 the complainant Sh. Manoj Gupta gave a written complaint asserting that he is the proprietor of Calcutta Cosmos Packers situated at A6, GTK Road, Delhi and he deals in plastic raw material. He alleged that on tuesday morning when he opened his aforesaid factory, he found 252 bags of plastic dana (25 Kg each) was missing/stolen. On the basis of the said complaint of Sh. Manoj Gupta, the present FIR U/s.380 IPC was lodged at PS Model Town.
On 28.09.96 IO ASI Ramesh Kumar received a secret information that the accused persons involved in the present offence were playing cards in Mangolpuri behind Kalamandir Cinema Hall. On receipt of said secret information, a raiding party consisting of IO ASI Ramesh Kumar, other members of special staff NW Delhi and the complainant Sh. Manoj Gupta was constituted. The said raiding party reached Kalamandir Cinema Hall and at the pointing out of the secret informer, the accused persons namely Sharafat Hussain and Abid Hussain were apprehended. Both of them confessed about the commission of the present offence and their respective disclosure statements were separately recorded. The said accused persons disclosed that total 152 stolen bags of plastic dana came to their share and out of those 152 bags, they retained two bags each with them and rest 148 stolen bags of plastic dana were sold by them to accused Rajbir and Habib Khan. Thereafter, both the accused persons got recovered two stolen bags of plastic dana each from their respective houses and they led the police officials to Tehkhand Village, Okhla Phase I for getting the accused persons namely Rajbir Page No. 2 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town and Habib Khan arrested. The police officials met accused Habib Khan at the aforesaid spot i.e. Village Tehkhand near Okhla and he was apprehended at the instance of the aforesaid two accused persons. The accused Habib Khan disclosed that he had received 148 stolen bags of plastic dana and out of them, 130 bags were sold by him to the accused Jalil Ahmed. The 18 stolen bags of plastic dana were seized from the house of the accused Habib Khan. Thereafter, the accused Habib Khan took the raiding party to the house of Jalil Ahmed i.e H.No.B16E, Shashtri Park, B Block, Delhi and the accused Jalil Ahmed was apprehended at the instance of the accused Habib Khan. Thereafter, the accused Jalil Ahmed disclosed that out of 130 stolen bags of plastic dana received by him from the accused Habib Khan, he has retained 80 bags of plastic dana with himself and remaining 50 bags have been sold by him to the accused Mohinder Kumar Bansal. The said 80 bags were seized from the possession of the accused Jalil Ahmed and thereafter, he led the raiding party to the house of the accused Mohinder Kumar Bansal i.e. H.No. E15, Mansarover Park, Shahdara, Delhi. The accused Mohinder Kumar Bansal was arrested at the instance of the accused Jalil Ahmed and 50 stolen bags of plastic dana were recovered/ seized from his possession.
On 23.11.96 another secret information was received that accused Rajbir Singh was present near a Cinema Hall at Model Town and on receipt of said information IO ASI Ramesh Kumar alongwith HC Ranbir Singh and a public witness Raj Singh reached the spot and arrested the accused Rajbir Singh on the pointing out of the secret informer. The accused Rajbir Singh got recovered 12 stolen bags of plastic dana from his scrap shop near a school in Village Tehkhand, Okhla Phase I, Delhi. The entire case property was identified by the complainant to be his stolen property. On conclusion of investigation, Page No. 3 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town the present challan against all the six accused persons under sections 457/380/411/34 IPC was filed in the court.
2. All the six accused persons were summoned for facing trial for the aforesaid offence. In compliance of Section 207 Cr.P.C., the copy of the challan and the documents annexed therewith were supplied to them. Prima facie charge U/s 457/380/411/34 IPC was made out against all the six accused persons. Accordingly, on 28.09.98 the Ld. Predecessor of this court framed charge against them. The accused persons 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. SI Jasvinder Kaur (PW1) has testified that on 17.09.96, she was posted as a duty officer at PS Model Town and on the said date, she registered the present FIR. She has proved the copy of the present FIR as Ex.PW1/A.
5. SI Pradeep (PW2) has testified that on 17.08.96 he alongwith Ct. Vir Singh was present at Derawala Nagar. In the meanwhile Ct. Nanumant gave him a DD no. 9A regarding theft. On its receipt, they reached on the spot i.e. 6A, Industrial Area, GTK Road, Model Town, Delhi. There they met complainant Sh. Manoj Gupta, who gave a complaint regarding theft in writing. He endorsed the said complaint and got the present FIR u/s 380 IPC lodged at PS Model Town, through Ct. Vir Singh. He has proved the site plan Ex.PW2/B, that was prepared at the instance of the complainant. He has testified that after discussion with the senior officers, section 457 IPC was also added.
6. Sh. Manoj Gupta (PW3) is the complainant and he has proved his complaint dated 17.09.96 as Ex.PW3/A. He has testified Page No. 4 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town that on the intervening night of 16/17.09.96 252 bags of plastic powder containing about 25 Kg plastic dana each were stolen from his factory situated at A6, GTK Road, Delhi by some unknown persons. He has deposed that after 1012 days of the incident, two persons namely Sharafat and another person, whose name he did not remember were arrested by the police and they got recovered some of the plastic dana, that was seized vide seizure memo Ex.PW3/B. He has further deposed that two other persons namely Raj Pal and his brother also got recovered some of his plastic dana. He has testified that they visited various places i.e. Okhala, Shahdara and Dilshad Garden and the accused Mahender was also found in possession of plastic dana which was seized vide memo Ex.PW3/B. He has further deposed that one another person, got recovered his plastic dana which was taken into possession vide memo Ex.PW3/C. He further testified that on the pointing out of the accused persons plastic dana was recovered from the place they disclosed in their disclosure statement. He has correctly identified the accused Mahender and Sharafat. He has also correctly identified the other two accused persons but he did not know their names. Thereafter, Ld. APP for the state was allowed to ask leading questions to the said witness and thereafter, he supported the prosecution version regarding the place and the person from which the stolen bags of plastic dana were respectively recovered. He produced 164 bags of plastic dana, which were recovered from the accused persons, in the court and the same are collectively Ex.P1. In his cross examination, he admitted that police did not seize any bag of plastic dana in his presence. He also admitted that the case property is easily available in the market and he does not have any purchase bills of the said plastic dana/case property.
7. Ct. Vir Singh (PW4) is a formal witness who accompanied Page No. 5 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town the IO SI Pradeep Kumar (PW2) and he has deposed on the similar lines as that of SI Pardeep (PW2). Therefore, his testimony is not repeated herein for the sake of brevity and to avoid prolixity.
8. SI Karan Singh (PW5) is one of the recovery witnesses and he has testified that on 28.09.96, he alongwith ASI Ramesh Kumar, other staff and complainant Manoj Kumar Gupta were investigating the present case. He has deposed that ASI Ramesh Kumar received a secret information that the offenders involved in the present case are playing cards behind Kalamandir Cinema. They were apprehended by them. On interrogation they disclosed about their involvement in the present case and disclosed that they had kept two bags at their residence and further told that 148 bags of plastic dana have been sold to Habib Khan at Teh Khand near Okhla. Accused Sharfat Hussain and Abid got recovered 2 bags of plastic dana each which were taken into possession vide memo Ex.PW3/M & Ex.PW3/N. Accused Habib got recovered 18 bags of plastic dana from his jhuggi which were taken into possession vide memo Ex. PW3/K. He has further deposed that the accused Habib disclosed that he has sold 130 bags to Jalil Ahmed. He further testified that at the instance of accused Habib, accused Jalil Ahmed was apprehended, who disclosed that he sold 50 bags of plastic dana to Mohinder Bansal and 80 bags are still lying with him which were got recovered from his house vide memo Ex.PW3/L. Accused Mohinder Bansal got recovered 30 bags of plastic dana from his shop which were taken into possession vide memo Ex.PW3/H. He has testified that the complainant had correctly identified the case property. He has also correctly identified all the accused persons.
9. SI Ramesh Kumar (PW6) is the IO of this case and one of the recovery witnesses. He has deposed on the similar lines as that of PW5. Therefore, his testimony is not repeated herein for the sake of Page No. 6 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town brevity and to avoid repetition. In addition to the testimony of PW5, he has deposed that on 23.11.96 a secret information was received that accused Rajbir was present in Model Town area near the cinema hall. He has deposed that 12 bags of plastic dana were recovered from his shop situated at Okhla phase I, near Tehkhand School, which were seized vide memo Ex.PW6/F. He has also correctly identified the accused persons. Thereafter, PE was closed.
10. Statements of all the six accused persons U/s 313 Cr.P.C. were separately recorded. All the incriminating evidence against them were put to them for seeking their respective explanations. In the said statements, they have stated that they are innocent and they have been falsely implicated in the present case. All the six accused persons chose to lead evidence in defence. Therefore, the case was listed for leading DE.
11. All the six accused persons examined one witness each for establishing that they were either called or lifted from their house by the police officials and thereafter, the stolen/case property was falsely planted upon them. The defence witnesses have maintained that no recovery of the stolen goods was effected from the accused, in respect of whom they have deposed. Thereafter, DE was closed.
12. I have heard Ld. APP for the State and Ld. Counsel for all the accused persons. I have carefully perused the case file.
13. The cardinal principle of the criminal law is that the accused persons are presumed to be innocent till they are proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused persons, 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 persons.
14. It is an admitted case of the prosecution that no one has seen either of the accused persons committing the offence of house Page No. 7 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town trespass or the theft in the factory of the complainant. On the contrary, the complainant has specifically testified that the 252 bags of plastic powder/dana were stolen by some unknown person. Even if, the allegations of the complainant regarding theft are believed to be gospel truth, in that case also, in absence of any eye witness, it cannot be convincingly held that the aforesaid offence was committed by either of the accused persons. Therefore, the prosecution has failed to substantiate that either of the accused person committed house trespass or theft in the factory of the complainant. Hence, the basic ingredients of the offence punishable u/s 457/380 IPC are conspicuously and glaringly missing.
15. Besides that, the complainant/PW3 Sh. Manoj Gupta has tacitly conceded in his cross examination that he purchased the stolen bags of plastic dana from the market. The purchase could not have been effected without proper bills and receipts. But, the complainant has failed to place on record any ownership documents of the alleged stolen articles/goods. In the absence of any ownership documents of the stolen articles/goods in the name of the complainant, it has not been conclusively established that the complainant was ever in their possession before they were allegedly stolen. The prosecution has nowhere alleged that any of the locks of the factory of the complainant were found broken or missing. It is not reasonably expected for the complainant to leave the valuables articles/goods in his factory unlocked or unguarded. Therefore, in all probabilities the complainant must have put his goods in locks before leaving the alleged stolen articles/goods in his factory. Neither the locks were found to be broken nor any wall was found to be damaged/crashed and so, there was no evidence of forced entry in the factory of the complainant. In these circumstances, it is beyond comprehension as to how the alleged goods/articles went missing as Page No. 8 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town alleged by the complainant. In view of above discussion, the prosecution has failed to conclusively establish the incident of theft as the story of the prosecution suffers with material fatal loop holes, which have remained unplugged. Thus, the very fact of the theft of the alleged stolen articles/goods is doubtful.
16. Since the allegations pertaining to the offence punishable u/s 457/380 IPC have not been substantiated, therefore, the allegations in respect of the offence u/s 411 IPC only survives to be considered in this case. In order to bring home the guilt of the accused persons u/s 411 IPC, the prosecution is required to prove the following ingredients of the said section:
(i) that the property in question is stolen property;
(ii) that the said property is identical with the property said to be stolen;
(iii) that the accused received or retained such property;
(iv) that the accused while receiving or retaining such property knew or had reason to believe the same to be stolen property;
(v) that the accused acted dishonestly.
17. The prosecution is required to prove that the property recovered from the possession of the accused is a stolen property. In a case titled "Mahabir Vs. State of Bihar, AIR 1972 S.C. 642, the Hon'ble Apex Court has held that : "The essential requirement of the offence of receiving stolen property is that the property seized from the possession of the accused must be proved by the prosecution to be stolen".
In the light of above discussion it has not been cogently established that anything was ever stolen in respect of the allegations made in the present complaint. However, assuming that the story of the prosecution regarding theft of 252 bags of plastic powder/dana is Page No. 9 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town true, in that case also the prosecution has to establish that the alleged recovered case property is the stolen property of this case. The complainant/PW3 Sh. Manoj Gupta has admitted that there was no specific identity mark or seal on the bags of the plastic powder/dana that were stolen from his possession. He has also admitted that he cannot produce the bills of purchase of the said bags of plastic powder/dana. The prosecution has also not disclosed as to what were the specific identity marks on the allegedly recovered bags of plastic powder/dana. Therefore, the prosecution has failed to connect/relate the alleged recovered articles/goods to the stolen articles/goods. The complainant has also admitted in his cross examination that the goods similar to stolen articles are easily available in the market. Hence, the stolen articles are admittedly not any peculiar or special articles that are rare and which were available with the complainant only. In absence of any distinct identity mark on the alleged recovered goods, they cannot be conclusively connected to the stolen goods and so, the alleged recovered articles are not conclusively proved to be the stolen articles/goods.
18. If for the sake of arguments, it is assumed that the recovered articles are the stolen property, in that case the prosecution is required to establish that the said property is recovered from the possession of the accused persons or at their instance. As per the prosecution, two bags each of stolen plastic dana were recovered from the respective houses of the accused Sharafat Hussain and Abid Hussain, 18 stolen bags of plastic dana/powder were allegedly recovered from the jhuggi of the accused Habib Khan, 130 stolen bags of plastic dana were allegedly recovered from the house of the accused Jalil Ahmed i.e. H.No. B16E, Shashtri Park, Delhi, 12 bags of plastic dana/powder were recovered from the scrap shop of the accused Rajbir situated at Okhla1, Near Takhand School and 50 Page No. 10 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town bags of plastic dana/powder were recovered from the shop of the accused Mohinder Kumar Bansal situated at B & E Block, Dilshad Garden, Delhi. However, no site plan regarding any place of the aforesaid alleged recoveries was prepared by the IO of the case. Moreover, not even a single documentary piece of evidence has been placed on record to establish that the respective alleged place of recovery was in the possession of the accused persons or it respectively belonged to them. Thus, it has not been established that on the respective dates of alleged recoveries, the respective alleged places of recovery were in the possession of the accused persons.
19. In addition to that, the investigating agency has failed to join any independent witness at the time of alleged recovery. All the aforesaid places of alleged recovery are admittedly situated in the crowded area with no dearth of available independent persons. But despite that not even a single respective neighbourer of either of the accused was joined in investigation nor any of them has been examined as a prosecution witness to buttress the credibility of the prosecution version. Had the recovery witnesses would have made effort they could have easily joined independent witness at the time of recovery. The prosecution has averred that the complainant was present at the time of recovery of the alleged stolen goods from the accused. However, the complainant/PW3 Sh. Manoj Gupta could not reveal about the details of the alleged place of recovery in his cross examination. On the contrary, he testified that the police official did not seize the bags of plastic dana in his presence. He further deposed that he does not know as to where the seizure memo of the bags was prepared. In his crossexamination, he could not divulge the sequence of the places where he alongwith police officials visited for the purpose of raiding/recovery. In these circumstances, the presence of the complainant Sh. Manoj Gupta at the alleged time of Page No. 11 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town recoveries seems to be doubtful and his alleged presence at the time of recoveries does not inspire sufficient confidence. So, it seems that he is a planted and interested recovery witness. In addition to the aforesaid unreliable recovery witness, no other public witness was joined investigation despite their availability in abundance. In his wisdom, IO preferred not to join any independent 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 recoveries of the case property from the accused persons. Hence, story of the prosecution is further shrouded in suspicion.
20. The prosecution has failed to examine any independent recovery witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The recovery witnesses that are examined by the prosecution in the present case are either police witnesses or unreliable interested witness (Complainant), who are interested in the success of the prosecution case and therefore, the probability of them 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 independent 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 independent witness. The non joining of the independent witness at the time of alleged recovery of the stolen goods/articles creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Page No. 12 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town Administration 1987 CC 585 Delhi High Court 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 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 Page No. 13 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town support the prosecution case on any material particular."
21. In the wake of above discussion, the prosecution has not only failed to prove the factum of the recovery of the stolen bags of plastic powder/dana from the accused persons but it has even failed to establish that any such bags were ever stolen. Moreover, it has also drastically failed to connect the stolen property with the alleged recovered goods/articles. Thus, the prosecution case suffers from material and fatal infirmities and therefore, all the six accused persons are entitled to benefit of doubt.
22. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against all the six accused persons to bring them within the four corners of the offences punishable U/s 457/380/411/34 IPC accordingly, all the six accused persons namely Sharafat Hussain, Habib Khan, Abid Hussain, Jalil Ahmed, Mohinder Bansal and Rajbir are acquitted for the offences punishable U/s 457/380/411/34 IPC. They are directed to furnish fresh personal bonds in a sum of Rs. 25,000/ each with one surety each 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 06.03.2013 (DHEERAJ MOR) METROPOLITAN MAGISTRATE (NORTH) ROHINI/DELHI Page No. 14 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town FIR NO. 435/96.
PS. Model Town.
U/s. 457/380/411 IPC.
06.03.2013 Present: Ld. APP for the State.
All the six accused persons on bail with counsel.
Vide my separate judgment announced in the open court today, all the three accused persons namely Sharafat Hussain, Habib Khan, Abid Hussain, Jalil Ahmed, Mohinder Bansal and Rajbir are acquitted for the offences punishable U/s 457/380/411/34 IPC. They are directed to furnish fresh personal bonds in a sum of Rs. 25,000/ each with one surety each 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(N)/Rohini/06.03.2013 Page No. 15 State Vs Sharafat Hussain & Ors. FIR No. 435/96, U/s 457/380/411 IPC, PS: Model Town Page No. 16