Delhi District Court
State vs . Javed Khan @ Max & Anr. on 2 April, 2018
IN THE COURT OF MR. SANDEEP GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH),
NEW DELHI
F.I.R. No: 61/12
P.S. Saket
U/s 379/411/34 IPC
State Vs. Javed Khan @ Max & Anr.
Date of Institution of Case : 19.12.2012
Judgment Reserved on : 21.03.2018
Date of Judgment : 02.04.2018
JUDGMENT:
(a) The serial no. of the case : 2034738/16
(b) The date of commission of offence : 24.08.2012
(c) The name of complainant : Sh. Vaid Pratap Vaidik
: S/o Sh. J.P. Vaidik,
: R/o H. No. A19,
: Press Enclave,
: Saket, New Delhi.
(d) The name, parentage, of accused : 1. Javed Khan @ Max : S/o Sh. Yunus Khan, : R/o Pocket11, Sector A6, : Near Punarvas Colony, : Narela, New Delhi.
: 2. Sumit Arora : S/o Sh. Kewal Krishan Arora, : R/o 13D, Krishna Nagar : Colony, Sindhu Border Road, : Narela, New Delhi.
Permanent Address : As above FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 1 of 26 (e) The offence complained of : U/s 379/411/34 IPC (f) The plea of accused : Pleaded not guilty (g) The final order : Both the accused are : acquitted. (h) The date of such order : 02.04.2018 Brief statement of reasons:
1. In brief the case of the prosecution is that on 24.08.2012, near ground, behind Kali Mata Mandir, Sector3, Rohini, Delhi accused Javed Khan @ Max and Sumit Arora, voluntarily got one stolen Maruti Esteem car bearing no. DL 3CAG 0701 recovered which was stolen from the possession of complainant Sh. Ved Pratap Vaidic on the intervening night of 19.02.2012 and 20.02.2012 from front of gate no. 1, Press Enclave, Saket, New Delhi within the jurisdiction of PS Saket and which they both, in furtherance of their common intention, had dishonestly received or retained it, knowing or having reasons to believe it to be a stolen property. Both accused are thus alleged to have committed an offence punishable U/s 411/34 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C., copy of chargesheet and its annexures was supplied to both the accused. Thereafter, vide order dated 17.08.2013, charge for commission of offence punishable U/s 411/34 IPC was framed upon both the accused to which they pleaded not guilty and claimed trial.
FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 2 of 26
3. In order to substantiate its case, the prosecution has examined 10 witnesses i.e. Ct. Nagendra Kumar as PW01, HC Dharambir as PW02, SI Vijay Kasana as PW03, complainant Dr. Ved Pratap Vadik as PW04, Sh. Deepak Vashisth as PW05, HC Krishan as PW06, HC Satbir as PW07, Ct. Mahesh Kumar as PW08, Ct. Praveen as PW9 and HC Amrat Lal as PW10. During trial both accused admitted the documents filed by prosecution i.e. copies of register no. 19 and DD No. 11A, dated 25.08.2012, PS Saket, U/s 294 Cr.P.C. which were exhibited as Ex. A1 and Ex. A2 respectively. Thereafter, statement of both accused, U/s 313 Cr.P.C., was recorded wherein they claimed themselves to be innocent and having been falsely implicated in the case. Both accused preferred to adduce evidence in support of their defence and they examined Sh. Akash as DW01, Sh. Arvind Kumar as DW02 and Sh. Keshav Kumar as DW03.
Brief scrutiny of the evidence:
4. PW01 Ct. Narender deposed that on 28.08.2012, he joined investigation of the present case alongwith IO HC Amrit Lal and went to Room No. 211, Saket Court. IO obtained permission from the court and interrogated accused Javed @ Max and Sumit Arora. Thereafter, IO arrested both the accused persons vide arrest memos, Ex. PW 1/A & Ex. PW 1/B and recorded their disclosure statements which are Ex. PW 1/C and Ex. PW 1/D. Both accused were remanded to JC and IO had recorded his statement in this regard.
FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 3 of 26
5. During his crossexamination by ld. defence couonsel, PW01 stated that his duty hours were from 9:00 AM to 5:00 PM and he was called by IO in the court. IO had made departure entry at PS, but he does not remember its number. Accused persons were arrested at about 2:30 PM. He had made his arrival entry at PS, but he does not remember its number. His statement U/s 161 Cr.P.C. was recorded by IO at PS Saket on the same day. He denied that he is deposing falsely.
6. PW02 HC Dharambir deposed that on 24.08.2012, he was posted at Sector 03, Rohini, Anti Snatching Cell, Outer District. On that day, one secret informer informed him that two persons were roaming near Jaipur Golden Hospital, Rohini alongwith a stolen Maruti Omni Car and they are trying to dispose of the same. A team of 45 officials reached there which set up barricades near Jaipur Golden Hospital and started checking vehicles. At about 4:00 PM, one green colour Maruti Omni car bearing no. DL 2CN 2854 came there and they got the said car stopped at the instance of secret informer. Two persons were present inside the car. On inquiry, the said persons disclosed their names as Javed and Sumit Arora (correctly identified in court). They asked for papers of the vehicle, but both the accused persons failed to provide any documents. Ct. Krishan verified the number of said car through ZIP Net and it was found to be stolen from PS Narela. Accused Javed Khan @ Max and Sumit Arora were interrogated, who disclosed that they had also stolen one car from Saket which was kept near Kali Mata Mandir, Sector03, Rohini. Accused Javed Khan @ Max and Sumit Arora were taken near Kali Mata Mandir from where one Esteem Car, silver colour (without number plate) was FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 4 of 26 recovered. On checking the Chasis number and Engine number of that car, its registration number was found to be DL3CAG0701, which was stolen from PS Saket. The said car was seized U/s 102 Cr.PC vide seizure memo Mark PW 2/A. A site plan was also prepared which is Mark PW 2/B. Accused Javed @ Max and Sumit Arora were arrested U/s 41.1.(d) Cr.PC vide memos Mark PW 2/C and PW 2/D. Car bearing no. DL 3CAG 0701 was deposited at malkhana, PS South Rohini and he informed IO of the present case regarding the recovery.
7. PW02 HC Dharambir further deposed that IO HC Amrat Lal met him and he handed over the photocopy of documents relating to recovery to IO. They alongwith accused Javed Khan @ Max and Sumit Arora went to Press Enclave Road, Saket where accused persons had pointed out the place, from where they had stolen the said Maruti Esteem car. He prepared a pointing out memo which is already Ex. PW 6/E. He recorded disclosure statements of accused Javed Khan @ Max and Sumit Arora at the spot which are already Ex. PW 6/A and Ex. PW 6/B. He carried out personal searches of accused Javed Khan @ Max and Sumit Arora vide memos which are already Ex. PW 6/C and Ex. PW 6/D. Ct. Krishan recorded arrival entry in roznamcha at his instance which is Mark PW 2/E. He prepared a kalandara against accused Javed Khan @ Max and Sumit Arora U/s 41.1 (d) / 102 Cr.P.C which is Mark PW 2/F. IO of the present case recorded his statement. He correctly identified the case property i.e. car bearing no. DL3CAG0701 in court through photographs. The said photographs alongwith CD are already Ex. P2 (Colly).
FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 5 of 26
8. PW02 HC Dharambir also produced Roznamcha pertaining to year 2012, as per which, departure entry of Ct. Mahesh, Ct. Krishan, Ct. Dharmender, Ct. Rajesh and Ct. Sanjay was recorded at Sl. No. 4 dated 24.08.2012 vide which they had left for obtaining clue of offences in Rohini area. Arrival entry of Ct. Mahesh, Ct. Krishan, Ct. Dharmender, Ct. Rajesh and Ct. Sanjay was recorded at Sl. No. 5 dated 24.08.2012. They had arrived at around 04.00 AM night on 25.08.2012 at their office alongwith accused Javed Khan @ Max, Sumit Arora and the case property i.e. Maruti Omni Van. He also produced record pertaining to DD No. 4, dated 24.08.2012 regarding departure from Anti Snatching Cell, Sector03, Rohini. Accused Javed Khan @ Max and Sumit Arora were arrested and case property was recovered from their possession. The said information was recorded in roznamcha vide DD No. 5, dated 24.08.2012 at about 4:00 AM, copy of which is Ex. PX1. One Maruti Esteem car bearing no. DL 3CAG 0701 was recovered at the instance of accused Javed Khan @ Max and Sumit Arora which was deposited in malkhana of PS Rohini vide Sl. No. 3764/2012 dated 24.08.2012, copy of which is Ex. PX2.
9. During his crossexamination, PW02 stated that they apprehended both the accused persons at Jaipur Golden Hospital, Rohini, Sector03. Secret informer met him at around 1:00 1:30 PM on 28.04.2012 at Avantika Chowk, Sector01, Rohini and all the raiding party members were present there. He formed a raiding party and briefed the secret information to them. They were in private Santro car belonging to Ct. Rajesh, but he does not remember its number. The distance between Jaipur Golden Hospital and Avantika Chowk is around 1 - 1 ½ KM. They FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 6 of 26 reached at the spot at around 3:00 - 3:30 PM and accused persons were apprehended at around 4:00 PM. Accused persons were coming from MTNL office and going towards Jaipur Golden Hospital. The key of Omni green car was also in possession of accused persons at the time of their apprehension. He is also a recovery witness in case FIR No. 454/12, PS Narela. He also checked the number of recovered car through Zipnet from mobile of Ct. Krishan Kumar, but could not obtain information and thereafter, he inquired from PS Narela regarding the same. Accused persons had disclosed that they had stolen the said car from Narela area. The said car was being driven by accused Javed @ Max. They deposited the said car at malkhana PS South Rohini after its recovery. They alongwith accused persons went to PS Narela in a private car of Ct. Rajesh Kumar and reached there at about 11:00 11:30 PM on 28.04.2012. On the same night i.e. early hours of 29.04.2012, they reached PS Saket at about 2:00 AM.
10. During his crossexamination, PW02 further stated that on the way of Jaipur Golden Hospital to Narela, accused persons had disclosed near Sindhu Border area that they had stolen another car make Maruti Esteem from Saket area which was parked at back side of Kali Mata Mandir, Sector03, Rohini. On 29.04.2012 at about 2:00 AM, accused persons got another car make Maruti Esteem wanted in the present case, recovered. Photographs of the said car were taken at the spot i.e. behind Kali Mata Mandir. He again stated that no photograph of the said car was taken at the spot. He does not know as to how the present photograph, Ex. P2 (Colly) came on judicial record. He denied that photographs were FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 7 of 26 taken at PS South Rohini as the vehicle was already parked there. After the recovery of the said vehicle, they reached at Press Enclave, Saket at about 2:00 AM on 25.08.2012. He again stated that the recoveries were effected on the intervening night of 24.08.2012 & 25.08.2012. He prepared a pointing out memo at Press Enclave road, Saket at the instance of accused persons in presence of Ct. Mahesh, Ct. Rajesh and Ct. Krishan, but he does not remember the exact time of its preparation.
11. During his crossexamination, PW02 further stated that they made DD entry after arrival at Anti Snatching Office, Sector03, Rohini at about 4:00 AM on 25.08.2012. Accused persons were produced before the concerned court on 25.08.2012 and were remanded to JC. The vehicle parked behind Kali Mandir was not in working condition and it was shifted by towing it with another Santro car. He does not remember name of owner and registration number of said Santro car. He does not know as to whether any kalandara U/s 66 DP Act was filed or not in respect of the said car. Arrest memos were prepared by him on the intervening night of 24.08.2012 & 25.08.2012 at about 4:00 AM. He denied that the said car was falsely planted upon the accused persons as the same was already parked at PS South Rohini. DD No. 4 dated 24.08.2012 was recorded in his presence as well as in presence of HC Amit, Ct. Krishan, Ct. Mahesh and Ct. Rajesh at about 4:00 AM and it took around 1520 minutes. Accused persons were arrested by him and recovery was effected in his presence. However, no photographs of case property were taken at that time. He was informed by secret informer that two persons, engaged in crime of stealing cars, can be apprehended. He denied that DD entry was FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 8 of 26 not recorded in his presence. He denied that he is deposing falsely.
12. PW03 SI Vijay Kasana deposed that on 20.02.2012, complainant Sh. Ved Pratap Vaidic came to PS Saket who gave a written complaint regarding theft of his vehicle which is Ex. PW 3/A. He made an endorsement on the said complaint, prepared a rukka, Ex. PW 3/B and handed it over to Duty Officer for registration of FIR. After registration of FIR, investigation was assigned to HC Amrat Lal.
13. PW04 complainant Dr. Ved Pratap Vaidik deposed that on 19.02.2012, in the evening, he had parked his car make Maruti Esteem bearing no. DL 3CAG 0701 at gate no. 1, Press Enclave, Saket, New Delhi. On the next morning i.e. 20.02.2012, he did not find his car as the same was stolen by someone. He had given a written complaint to the police which is already Ex. PW 3/A. He had also given photocopy of RC of his car which is MarkA. He correctly identified his car through photographs which are MarkB (Colly).
14. During his crossexamination, PW04 stated that he had visited police station Saket, 1 or 2 times after registration of FIR and police had asked for photocopy of RC which he had given. He does not remember as to whether he had signed documents or not. He volunteered that he might have signed, if police would have asked him. He admitted that photocopy of RC, MarkA does not bears his signature. He never signed in English. He was not sure that the car shown in the photographs was the same which belonged to him. He volunteered that it seems as if, it FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 9 of 26 was his car without the number plate. As far as he remembers, he had not seen the vehicle recovered by the police. He had received the insurance amount from Insurance Company. His vehicle was in working condition when it was stolen. He denied that his car was never stolen or that he is deposing falsely.
15. PW05 Sh. Deepak Vashisth deposed that he got Maruti Esteem car bearing no. DL 3CAG 0701 released by obtaining order of court which was disposed of and a Panchnama was prepared in his presence which is Ex. PW 5/A.
16. During his crossexamination, PW05 stated that Panchnama was prepared at PS and vehicle was available there. He had not obtained the photographs of the vehicle. The vehicle was brought to their company from PS by crane as it was not fit for plying on the road. He does not remember the date on which the vehicle was released. Malkhana In charge and one person from the company namely Juber Nazir Ahmad Pirjade were present when panchnama was prepared. He denied that he was not present at the time of preparation of panchnama. He admitted that he had not obtained any photograph and CD of the vehicle.
17. PW06 HC Krishan deposed that on 24.08.2012, he was posted at Anti Snatching Cell, Sector3, Rohini, Delhi. On that day, at around 12:00 Noon, he alongwith HC Dharamvir, Ct. Mahesh, Ct. Rajesh, Ct. Dharmender and Ct. Sanjay left PS and proceeded towards Rohini area for patrolling. During the course of patrolling, when they reached at FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 10 of 26 Avantika Chowk, Sector1, Rohini, Delhi, one secret informer came there who informed that two persons were wondering in a stolen Maruti Van (Green Colour), near Jaipur Golden Hospital, Sector3, Rohini, Delhi. They reached there alongwith secret informer, set up barricades on the road, near Jaipur Golden Hospital and started checking vehicles which were coming from Jaipur Golden side and going towards Naharpur side. At around 4:00 PM, secret informer pointed out towards a Maruti Van (Green Colour) which was coming from Jaipur Golden Hospital and they got the said vehicle stopped in which two persons were sitting. On inquiry, they revealed their names as Javed Khan @ Max (Driver) and Sumit Arora (co passenger). Accused persons were asked to produce documents of said vehicle, but they could not produce the same. The said vehicle was checked through registration number i.e. 2851 on ZIP Net and it was found to be stolen from PS Narela regarding which an FIR was registered. IO HC Dharamvir seized the said vehicle vide seizure memo. Accused Javed Khan @ Max and Sumit Arora were interrogated by IO HC Dharamvir and their disclosure statements were recorded which are Ex. PW 6/A and Ex. PW 6/B respectively.
18. PW06 HC Krishan further deposed that both accused persons disclosed that they had stolen one Maruti Esteem (Silver Colour) car from Press Enclave Road which was parked behind Kali Mata Mandir, Sector3, Rohini, Delhi. Both accused persons were arrested vide arrest memos which are already Mark PW 2/C and PW 2/D and their personal searches were conducted vide memos which are Ex. PW 6/C and Ex. PW 6/D. IO prepared a site plan which is already Ex. PW 2/E. They alongwith FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 11 of 26 both accused persons went to Krishna Nagar, Shinghu Border, Narela, Delhi where accused persons pointed out the place from where they had stolen the said vehicle. IO prepared a pointing out memo. He alongwith said police officials and both accused persons went to Kali Mata Mandir, Sector3, Rohini, Delhi where the accused persons pointed out towards a car (without number plate) which was parked behind the said Mandir. On verification using engine number and chasis number from ZIP Net, the said car was found to be stolen from Saket area and an FIR was registered in this regard. The registration number of said car was revealed as DL3CAG 0701. IO HC Dharamvir seized the said car vide seizure memo which is already Mark PW 2/A which was deposited in PS South Rohini, Delhi. They alongwith both accused persons went to Press Enclave, Saket, New Delhi where accused persons had pointed out towards the place from where they had stolen the said Maruti Esteem car. IO HC Dharamvir prepared a pointing out memo which is Ex. PW 6/E. IO of the present case met him on next day who recorded his statement. He correctly identified the said Esteem Car through photographs which are already MarkB (Colly). He correctly identified both the accused persons in court.
19. During his crossexamination, PW06 stated that secret informer had given secret information at around 3:00 PM at Avantika Chowk and they reached at Jaipur Golden Hospital at about 3:15 PM. Accused persons reached there at about 4:00 PM. He had checked the registration number of said car on ZIP net through his mobile phone make HTC Desire and it took about 1520 minutes. He was not aware as to how many days were consumed by the department to upload the information FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 12 of 26 about stolen properties. He volunteered that he had verified the said information from concerned PS. He was not aware as to whether the information of stolen properties were uploaded on ZIP net after 7 to 8 days of incident. The theft from Narela had occurred 2 or 3 days prior to recovery in question. Documents were prepared at the spot and it took about two hours in preparing them. They had gone to Narela and reached there at around 7:30 PM - 8:00 PM. Accused persons had made disclosure during traveling towards Narela and after that they returned to Sector3 from where accused persons got the said Maruti Esteem Car recovered.
20. During his crossexamination, PW06 further stated that they spent about 10 minutes at Shinghu Border, Narela for preparation of pointing out memo. They returned back to Sector3 Rohini at around 9:30 PM. No photographs were taken at Sector03, Rohini in his presence as Esteem Car (case property ) was not fit for plying on the road. Seizure memo of Esteem car was prepared at the spot of recovery and they remained there for about 6090 minutes. Case property was towed by using their private car upto PS South Rohini and deposited in Malkhana, but he does not remember registration number of the said private car. Rope used for towing the case property was available in their car. Maruti Omni Van, recovered near Jaipur Golden Hospital, was also deposited in Malkhana PS South Rohini, but he does not remember the exact time of deposit. After depositing Esteem car (case property ) at PS South Rohini, they went to Press Enclave, Saket at around 1:00 1:30 AM (night). He denied that no recovery of case property was effected from both the FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 13 of 26 accused and Maruti Esteem car was already parked at Malkhana, PS South Rohini or that accused persons have been falsely implicated in this case. He does not remember the date of theft of car from area of PS Saket. He denied that since he had not joined any investigation, hence, he was not aware of the date of theft of the said vehicle. He admitted that he was cited as witness in FIR No. 454/12, U/s 379/411 of IPC, PS Narela. He denied that he is deposing falsely.
21. PW07 HC Satbir deposed that on 20.02.2012, he was working as Duty Officer from 08.00 AM to 04.00 PM. On that day at about 11.45 AM, SI Vijay Singh give him a rukka for registration of FIR. On the basis of said rukka, he registered the present FIR, copy of which is Ex. PW 7/A. He made an endorsement on the said rukka which is Ex. PW 7/B. During his crossexamination by ld. defence counsel, he stated that he had no personal knowledge of this case.
22. PW08 Ct. Mahesh Kumar deposed that on 24.08.2012, he was posted as constable at Anti Snatching Cell, Outer District, Delhi. On that day he alongwith HC Dharambir, Ct. Dharmender, Ct. Sanjay, Ct. Rajesh and Ct. Krishan were on patrolling for collecting information. During the course of patrolling at around 3:00 PM, they reached at Avantika Chowk, Rohini where one secret informer met HC Dharambir and gave secret information. HC Dharambir briefed the secret information with them that two persons were wandering in Sector03, Rohini in a stolen Omni car for selling it. HC Dharambir requested 45 public persons and shared the said secret information with them, but they left the spot without disclosing FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 14 of 26 their names and addresses. After that, they alongwith secret informer went to Jaipur Golden Hospital, Sector03, Rohini and set up barricades on the road and started checking vehicles which were coming from MTNL office side and going towards Avantika / Ring road side. At around 4:00 PM, one green color Omni van came from MTNL office side and secret informer pointed out towards the said car stating that the persons sitting in the said car were the same as narrated by him and he left the spot. They got the said Omni car (van) bearing no. DL 2CN 2854 stopped. Two persons were sitting inside the said car who revealed their names as Javed Khan @ Max (driver) and Sumit Arora (copassenger). They asked the accused persons to produce documents of the said car, but they neither produced any document, nor gave any satisfactorily reply.
23. PW08 Ct. Mahesh Kumar further deposed that Ct. Krishan checked the registration number of said car through Zipnet, but no information could be found. Accused persons disclosed that they had stolen the said van from Narela area. Ct. Krishan made inquiry from PS Narela and the said van was found to be stolen from there and an FIR was already registered in this regard. HC Dharambir seized the said Omni van vide seizure memo. HC Dharambir arrested accused Javed Khan @ Max and Sumit Arora and carried out their personal searches vide memos which are already Mark CW 2/C & PW 2/D and Ex. PW 6/C & Ex. PW 6/D respectively. HC Dharambir prepared a site plan which is already Mark PW 2/B. The said car was shifted to PS South Rohini and deposited in malkhana. After that, they alongwith both accused persons went to Narela, near Shinghu Boarder, Vill Paposia where accused persons had pointed FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 15 of 26 out the place from where they had stolen the said Omni car and HC Dharambir prepared a pointing out memo.
24. PW08 Ct. Mahesh Kumar further deposed that accused Javed Khan @ Max and Sumit Arora disclosed that they had stolen another car make Esteem from Press Enclave, Saket in the last week of February, 2012 which was kept at Kali Mata Mandir, side road of Sector 03, Rohini. Accused persons had further disclosed that they were trying to sell the said car, but since no buyer could be traced, they parked the same at Kali Mata Mandir, side road of Sector03, Rohini and they broke its number plate, last digit of which was 0701. They alongwith accused persons went to at Kali Mata Mandir, side road of Sector03, Rohini where accused persons pointed out towards an Esteem car, which was parked there. Ct. Krishan checked the engine number and chasis number of the said car through ZIP Net and it was found to be stolen from the area of PS Saket for which FIR No. 61/12, PS Saket had already been registered. HC Dharambir seized the said Esteem car vide seizure memo which is already marked as Mark PW 2/A which was shifted to PS South Rohini and deposited at malkhana.
25. PW08 Ct. Mahesh Kumar further deposed that they alongwith accused persons came at Press Enclave road, Saket where accused persons pointed out the place from where they had stolen the said Esteem car. HC Dharambir prepared a pointing out memo at their instance which is already Ex. PW 6/E. After that, they alongwith accused persons returned to their office where HC Dharambir recorded disclosure statements of both FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 16 of 26 the accused persons which are already Ex. PW 6/A and Ex. PW 6/B. HC Dharambir recorded his statement U/s 161 Cr.P.C. Later on, IO of the present case also recorded his statement U/s 161 Cr.P.C. He correctly identified both accused persons in court. He correctly identified car make Esteem bearing no. DL3CAG0701 in court through photographs. Photographs and CD of which are already Ex. P2 (Colly).
26. During his crossexamination, PW08 stated that they left the office at around 12:00 Noon and departure entry no. 4 was made in this regard. They were in a car, but he does not remember its registration number and name of owner. Six persons were present in the said car including driver Dharambir. They arrested accused Javed Khan @ Max at around 4:15 PM and accused Sumit Arora was arrested at around 4:45 PM. They went in the area of Narela at around 7:00 8:00 PM on the same day. After inquiry through mobile phone of Ct. Krishan, it was revealed that the Maruti Omni van was stolen from the area of Narela and an FIR was already registered in this regard. The said van was stolen from the area of Narela one day prior to recovery. Six members alongwith both the accused had gone to Narela in the said car. He denied that he never visited Narela or that the case property was falsely planted upon the accused persons. Site plan was prepared at the spot i.e. near Jaipur Golden Hospital. On the arrival from Narela, they reached at Kali Mandir, Sector03, Rohini where another Esteem car was recovered at the instance of accused persons. No photographs of the spot were taken by them. Esteem car was deposited at malkhana, PS South Rohini and the same was shifted to PS South Rohini by towing it with their private car. The said eight persons including the FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 17 of 26 accused persons, were present in their private car. He does not know as to who had taken the photographs, Ex. P2 (Colly). He denied that Esteem car was already parked at PS South Rohini or that the same was falsely planted upon the accused persons. They reached at Press Enclave road, Saket at around 1:001:30 AM on 25.08.2012. After preparation of pointing out memo at the instance of accused persons, they alongwith accused persons returned back to their office at Sector03, Rohini at about 4:00 AM. Accused persons were produced before concerned court, but he does not remember the exact time of their production. He denied that they never visited either Saket or Narela. He denied that case properties were falsely planted upon accused persons or that he is deposing falsely.
27. PW09 Ct. Praveen deposed that he was posted as constable at AATS/OD, Sector11, Rohini. He produced register no. 2 (Station Daily Diary) of PS Anti Snatching Cell, Outer District, as per which, DD entry no. 4, dated 24.08.2012 regarding departure of police officials from PS Anti Snatching Cell, Outer District was recorded which was made by HC Dharambir, copy of which is Ex. PW 9/A. As per record, DD entry no. 5 dated 24/25.08.2012 regarding arrival of police officials and arrest of accused Javed Khan @ Max and Sumit Arora U/s 41.1 (d) / 102 Cr.P.C was also recorded in the said register which was made by HC Dharambir, copy of which is Ex. PW 9/B.
28. PW10 HC Amrat Lal deposed that on 20.02.2012, after registration of present FIR, investigation was entrusted to him. During the course of the investigation, he met complainant Sh. Ved Prakash Vaidik at FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 18 of 26 the PS. He alongwith complainant went to the spot i.e. Press Enclave Colony, Gate No.1, Press Enclave Road, Saket, New Delhi where he prepared a site plan at the instance of complainant which is Ex. PW 10/A. He recorded supplementary statement of complainant. After that, complainant left the spot and he went to area of Saket in search of accused and case property. He inquired about the matter from the shop keepers near the spot, but no clue was found and he filed an untrace report in the present matter. On 25.08.2012, he received an information from Anti Snatching Cell, Outer District regarding recovery of Esteem Car bearing registration No. DL 3CAG 0701 from Kali Mata Mandir, Sector3, Rohini and arrest of accused Javed Khan @ Max and Sumit Arora under Kalandra U/s 41.1 (d) / 102 Cr.P.C which was to be filed before Court Room No. 116, Rohini Court.
29. PW10 HC Amrat Lal further deposed that he went to Rohini Court and met HC Dharambir who handed over photocopy of documents regarding recovery to him. After that he returned from there. On 27.08.2012, he moved an application for production of accused Javed @ Max and Sumit Arora in Saket Court, which is Mark1. On 28.08.2012, accused Javed @ Max and Sumit Arora were produced before the court and he moved an application for their interrogation which is Mark2. He interrogated both accused persons and recorded their disclosure statements which are Ex. PW 10/B and Ex. PW 10/C. He arrested both accused persons vide arrest memos which are already Ex. PW 1/A and Ex. PW1/B. Ct. Narender had accompanied him on that day. Accused Javed Khan @ Max and Sumit Arora had disclosed that they had committed theft FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 19 of 26 of said Maruti Esteem car from Gate No. 1, Press Enclave Colony and had hidden the same at Kali Mata Mandir, Sector3, Rohini which was recovered by police officials. Accused Javed Khan @ Max and Sumit Arora were produced before the court and were remanded to JC. During the course of investigation, he went to the office of Anti Snatching Cell and recorded statements of recovery witnesses viz. HC Dharambir, Ct. Mahesh and Ct. Kishan.
30. PW10 HC Amrat Lal further deposed that on 18.09.2012, he got the case property i.e. Esteem Car transferred from PS South Rohini to PS Saket through crane vide RC No. 125/21/12 which was deposited at Malkhana, PS Saket. He recorded statements of witnesses, prepared the challan and filed it in the court. He correctly identified both accused in court. He correctly identified the case property i.e. Esteem Car in court through photographs which are already MarkB (Colly). He obtained the copy of RC from complainant which is already marked as MarkA. The said vehicle was later on released on Superdari to Insurance Company.
31. DW01 Sh. Akash deposed that about one and a half year ago, he was working as driver at Meenu Travels, Narela and accused Javed @ Max was also working there as driver. Accused Javed @ Max took the vehicle of Meenu Travels without any intimation to the owner namely Meenu Travels. They searched for the accused and the said vehicle make Eeco (He does not remember its registration number). After 34 days, accused Javed @ Max came at the said travel agency alongwith said vehicle. The owner of the said vehicle had sustained loss due to non FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 20 of 26 booking of said vehicle as accused had taken it without intimation. The owner of the said travel agency had filed a case against accused Javed @ Max. He does not know anything else.
32. During his crossexamination by ld. APP for the State, DW01 stated that he does not remember the date, month and year when he was working as driver at Meenu Travels. He admitted that he was not present at the spot at the time of recovery in question.
33. DW02 Sh. Arvind Kumar deposed that on 19.02.2012, function of his ring ceremony was solemnized at Harsh Vihar, near Gagan Cinema. He had hired accused Sumit Arora for the purpose of photography of the said function. The said function began at 3:30 PM and it concluded at around 10:30 PM. Accused Sumit Arora / photographer came at his house at around 2:30 PM and remained there till morning of 20.02.2012. He does not know anything else.
34. During his crossexamination by ld. APP for the State, DW02 admitted that accused had not accompanied him on the intervening night of 24.08.2012 and 25.08.2012. He admitted that he was not present at the spot at the time of recovery of the vehicle at the instance of accused Sumit Arora. Accused Sumit Arora had not given any bill for the said photography.
35. DW03 Sh. Keshav Kumar deposed that he alongwith accused Javed Khan @ Max were working as drivers. Accused Javed Khan @ Max FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 21 of 26 told him that he would go to attend a programme on 23.08.2012. Thereafter, accused did not return 23.08.2012. He tried to contact accused, but his phone number could not be connected. On 24.08.2012, Sh. Mahender, their employer made a complaint to PS Narela against accused Javed Khan @ Max that he had taken away his van without any intimation. On 24.08.2012, in the evening, their employer Mahender received a call from PS Narela that his van was recovered which was kept at PS Rohini, Sector04. He alongwith his employer went to PS Rohini, Sector04 where they did not find the said van. One Esteem car was also parked at PS Rohini, Sector04. They returned home. Accused Javed was sent to JC on 25.08.2012. After one month, accused Javed Khan @ Max came out on bail. He made inquiry from accused who informed him that the said van was seized by the police officials at Kali Mata Mandir, near Jaipur Golden Hospital, Rohini. He correctly identified accused Javed @ Max in court.
36. During his crossexamination, DW03 admitted that that on 24.08.2012, he did not accompany accused Javed Khan @ Max when he was apprehended by police officials near Jaipur Golden Hospital, Rohini, Delhi. He admitted that he did not accompany the accused Javed Khan @ Max when police officials recovered Maruti Esteem car bearing no. DL 3CAG 0701 at the instance of accused from behind Kali Mata Mandir, Sector03, Rohini. He did not produce any record pertaining to his employment as well as employment of accused Javed Khan @ Max.
37. The court has heard the arguments advanced by Ld. defence FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 22 of 26 counsel for both the accused persons and learned APP appearing on behalf of the State and has perused the record with their able assistance.
38. It has been emphatically contended by Ld. counsel for both the accused that there are material contradictions in the testimonies of prosecution witnesses which expose its falsity. PW02 HC Dharambir has deposed during his crossexamination that both the accused were apprehended on 28.04.2012, whereas as per the prosecution case and PWs 06 and PW08, both the accused were apprehended on 24.08.2012. Further, PW02 HC Dharambir, PW06 HC Krishan and PW08 Ct. Mahesh Kumar have deposed that no photographs of the Esteem car in question were taken at the spot. PW02 HC Dharambir stated that he does not know as to how photographs of the said car have come on judicial record.
39. It has been emphatically contended by Ld. counsel for both the accused that while PW02 HC Dharambir deposed that they had gone to the spot in a private Santro car belonging to Ct. Rajesh, PW06 HC Krishan and PW08 Ct. Mahesh Kumar have deposed that they do not know about the registration number and name of owner of the said Santro car which establishes falsity of their testimonies and impeaches their credibility. Further, during his crossexamination, PW08 Ct. Mahesh Kumar has deposed that all the 8 persons (including both the accused) had commuted in the private Santro car which is apparently false as it is impossible for 8 adult persons to fit in a Santro car which is a midsized hatchback, not capable of seating 8 adult persons. All this expose falsity of the prosecution's story and establish that both the accused have been FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 23 of 26 falsely implicated in the present case. Therefore, they deserve to be acquitted of the charges leveled against them.
40. Per contra, it has been emphatically contended by Ld. APP for the State that prosecution has been successful in establishing recovery of stolen Esteem car from the possession of both the accused persons. PW 02 HC Dharambir had clarified in his crossexamination itself that the recovery was effected on the intervening night of 24.08.2012 and 25.08.2012. No question was put to IO HC Amrit Lal regarding photographs of the Esteem car in question and therefore, there is no merit in the contention of ld. defence counsel regarding three prosecution witnesses admitting that photographs of the Esteem car were not obtained at the spot in their presence. Failure on the part of PW06 HC Krishan and PW08 Ct. Mahesh Kumar to disclose about ownership of Santro car used for commuting on the night of recovery is insignificant and does not have any bearing upon merits of the case. Similarly, it cannot be assumed that 8 adult persons cannot fit in and be seated in a Santro car. The testimonies of all the prosecution witnesses are cogent, convincing and credit worthy and the prosecution has been successful in establishing its case against both the accused persons beyond a reasonable doubt. Therefore, they deserve to be convicted for commission of offence punishable U/s 411/34 IPC.
41. The court is of the considered view that PW02 HC Dharambir, PW06 HC Krishan and PW08 Ct. Mahesh Kumar have deposed that no photographs of the Esteem car in question were taken at the spot. PW02 FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 24 of 26 HC Dharambir expressed ignorance and stated that he does not know as to how photographs of the said car have come on judicial record. While PW02 HC Dharambir deposed that they had gone to the spot in a private Santro car belonging to Ct. Rajesh, PW06 HC Krishan and PW08 Ct. Mahesh Kumar have deposed that they do not know about the registration number and name of owner of the said Santro car which calls for drawing an adverse inference regarding credibility of this part of their testimonies as they are supposed to be aware about the fact that private Santro car of their colleague Ct. Rajesh was used by them for commuting on that night.
42. PW02 HC Dharambir has deposed during his cross examination that both the accused were apprehended on 28.04.2012, whereas as per the prosecution case and PWs 06 and PW08, both the accused were apprehended on 24.08.2012. The date of 28.04.2012 has been mentioned by PW02 HC Dharambir extensively during his cross examination. Further, during his crossexamination, PW08 Ct. Mahesh Kumar has deposed that all the 8 persons (including both the accused) had commuted in the private Santro car. This is apparently improbable and incredible as it is not feasible for 8 adult persons to fit in a Santro car which is a midsized hatchback, not capable of seating 8 adult persons.
43. In view of the aforesaid discussion, the court holds that the prosecution has not been able to establish its case against both the accused persons beyond a reasonable doubt and both the accused persons deserve to be given the benefit of doubt. Accordingly, both the accused persons viz. Javed Khan @ Max and Sumit Arora are acquitted of FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 25 of 26 the charges leveled against them. They are directed to furnish personal bonds in the sum of Rs. 10,000/ with one surety of like amount in terms of Section 437A Cr.P.C. forthwith. Original documents, if any, be returned to its rightful owner, after cancellation of endorsement.
SANDEE Digitally signed by SANDEEP GARG DN: c=IN, o=DISTRICT AND SESSIONS JUDGE SOUTH DISTRICT, 2.5.4.20=c0638bd0f6b2591ae536772d File be consigned to Record Room. 72e898dfdef5a6e0dfd0e0a8b83c0396 P GARG a011047f, ou=DISTRICT AND SESSIONS JUDGE SOUTH DISTRICT,CID - 4281206, postalCode=110017, st=Delhi, cn=SANDEEP GARG Date: 2018.04.02 17:25:10 +05'30' Announced in the open (Sandeep Garg) Court on 02.04.2018 ACMM (South), New Delhi.
FIR No. 61/12, PS Saket State Vs. Javed @ Max & Anr. 26 of 26