IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI State versus [ENTITY] FIR No. 20/2005 U/[SECTION] [ACT] PS: Farsh Bazar JUDGMENT
a. Unique ID Number of the case : 02402R0320312005 b. Sl. No. of the case : 66/2 c. Date of commission of offence : 18.01.2005 d. Date of institution : 17.11.08 e. Name of complainant : Sh. [ENTITY] f. Name & address of accused person : [ENTITY] S/o Sh. [ENTITY], R/o 711/8, Rohtash Nagar, [ENTITY], Delhi.
g. Offence complained of : U/[SECTION] [ACT] h. Plea of accused : Pleaded Not Guilty i. Date when Judgment was reserved : Not Reserved j. Final order : Acquitted k. Date of Judgment : 16.02.2013 BRIEF STATEMENT OF REASONS FOR DECISION
01. The case of the prosecution, in brief, is that on 18.01.05 at about 04.30 p.m., at Jhallo Factory, Bhagichi gali, Vishwas Nagar, Shahdara, Delhi, accused [ENTITY] has committed theft of Maruti car 800 CC No. DL-1CB-4928 of Complainant [ENTITY] and his neighbour namely [ENTITY] had seen the accused taking the car and on suspicion he raised hue and cry, and accused was caught by Constable [ENTITY] and Head Constable [ENTITY] in the presence of Complainant and case FIR No. 20/05 Ex. PW 5/A was registered on the complaint Ex. PW 1/A. After completion of the investigation, charge sheet was filed U/[SECTION] [ACT].
02. On conclusion of investigation, charge sheet was filed and copy was supplied to accused. Vide order dated 08.02.2007, the charge under [SECTION] [ACT] was framed against the accused to which he pleaded not guilty and claimed trial.
03. In order to prove its case, prosecution has examined six witnesses. PW 1 ([ENTITY]) is the complainant. PW 2 (Constable [ENTITY]) is a formal witness who joined the investigation with Investigating Officer SI [ENTITY] and deposed regarding the events happened during the investigation. PW 3 ([ENTITY]) and PW 4 (Constable [ENTITY]) are recovery witness who deposed regarding the proceeding took place during the investigation. PW 5 ([ENTITY]) is a formal witness who registered the FIR Ex. PW 5/A. PW 6 (SI [ENTITY]) is the Investigating Officer.
04. On 21.10.2011, accused was examined U/[SECTION] [ACT], wherein all the incriminating evidence was put to the accused. Accused denied the case of prosecution and stated that he is falsely implicated in the present case. Accused had opted to lead defence evidence. However, he did not examine any witness in defence and closed his defence evidence.
05. I have heard the final arguments from both the sides and have perused the evidence on record led by prosecution carefully.
06. In order to prove an offence under [SECTION] [ACT], prosecution has to prove first that the stolen property was in possession of the accused. Second, that some person other than the accused, had possession of the property before the accused got possession of it and third, that the accused had retained or received the property with the knowledge that the case properties were stolen ones.
07. As per the case of the prosecution, accused [ENTITY] was apprehended with the stolen car of the Complainant [ENTITY]. Complainant deposed in his testimony that on 18.01.05, he had parked his Maruti car bearing registration no. DL-1CB-4928 in front of Jhallo factory, Bagichi gali. At about 05:00 pm, some noise of theft was raised and some public person had made a telephone call at 100 number and police officials came at the spot and had taken the car to police station. He also reached at police station and police official had obtained signature on the complaint Ex. PW 1/A. PW 6, IO SI [ENTITY], deposed he recorded the statement of Complainant [ENTITY] which is Ex. PW 1/A and prepared rukka Ex. PW 6/A and handed over the same to Constable [ENTITY] for registration of FIR. PW 5 [ENTITY] deposed that, on the basis of rukka handed over by Constable [ENTITY] sent by SI [ENTITY], he registered FIR Ex. PW 5/A.
08. Thus, prosecution has clearly established the fact the Maruti car bearing registration no. DL-1CB-4928 is a stolen property belonging to the complainant and that Complainant had the possession prior to its theft. Now the only onus on the prosecution is to prove the fact that the accused retained or received the stolen property and the same is recovered from the possession of the accused.
09. It is the version of prosecution that Maruti car bearing registration no. DL-1CB-4928 was recovered from the possession of the accused. PW 3 (Head Constable [ENTITY]) deposed that on 18.01.2005, while on patrolling duty alongwith Constable [ENTITY], at about 04:45 pm, they had reached at Baghichi gali, Vishwas Nagar and they had seen a person coming from the side of Baghichi gali on a Maruti car 800 bearing no. DL1CB-4928 and some public persons were following that persons by shouting chor chor and they got stopped that person alongwith maruti car and apprehended him. On interrogation, he disclosed his name as [ENTITY] who is accused present in the Court today. He further deposed that in the meantime, complainant [ENTITY] and IO SI [ENTITY] alongwith Constable [ENTITY] reached at the spot and they handed over the accused alongwith the said car to IO. PW-4 Constable [ENTITY] also deposed that on 28.01.2005 while on patrolling alongwith [ENTITY], they apprehended the accused [ENTITY] alongwith stolen vehicle i.e. Maruti Car.
10. Ld APP for the State argued that the testimony of PW 3 Head Constable [ENTITY] and PW 4 Constable [ENTITY] has successfully proved beyond reasonable doubt that stolen property is recovered from the possession of the accused. Per contra, Ld. Counsel for the accused testimony of police officials is not worthy of credit being unsupported by independent witness. It is a settled law that conviction can be based on the testimony of official witness. I am also enlightened on the point by the judgment of Hon'ble Supreme Court titled [PRECEDENT] wherein it was observed:
"As a legal proposition it was argued that it would be unsafe to base a conclusion on the evidence of police officers alone without being supported by at least one independent person from the locality. To reinforce the said contention Shri [ENTITY], Senior Advocate cited the decision of this Court in [PRECEDENT] wherein want of independent witnesses of the locality rendered suspicious a raid conducted by the police. There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non- examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined " (Emphasis Supplied) From the afore-noted judicial decision, the legal position which can be culled out is that the evidence of the police officials cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation; requires greater care to appreciate their testimony.
11. In the instant case, however, complainant [ENTITY] who is an independent witness has not supported the testimony of recovery witnesses who are police officials. As per the prosecution, complainant reached at the spot and all the proceedings were conducted in the presence of complainant [ENTITY]. PW 6 IO SI [ENTITY] deposed during his cross-examination that he prepared all the documents at the spot. He also deposed during his cross-examination that the Maruti car was seized at the spot in the presence of the complainant and he obtained his signature on the seizure memo and accused was arrested and personally searched in the presence of complainant at the spot. However, PW-1 Complainant [ENTITY] deposed in his testimony that police officials took the car to police station. He also reached at police stations. Police officials had obtained his signature on the complaint Ex. PW-1 /A and the accused present in the court was also present in the police station. During his cross-examination by Ld. APP for the State, PW-1 Complainant [ENTITY] stated that accused was not arrested in his presence; however he (accused) was present at the police station. During his cross-examination by Ld. Counsel for the accused, PW-1 stated that when his signatures were obtained on Ex. PW-1/A, Ex. PW-1/B, Ex. PW-1/C, Ex. PW-1/D, at that time they were blank. Thus, PW-1 who is the complainant has not supported the prosecution and gave major blow to the story of the prosecution. In the light of the testimony of PW-1, the testimony of police officials is not reliable to fasten the guilt of the accused in the present case.
12. Further, perusal of the complaint Ex. PW-1/A reveals that one public person namely [ENTITY] S/o Sh. [ENTITY] had seen one person taking the vehicle in question belonging to the complainant and he raised hue and cry. Strangely, investigating officer has not joined [ENTITY] in the investigation. Even [ENTITY] has not been cited as a witness in the present case. No explanation has been assigned for this major lapse on the part of the investigating officer. PW-6 IO SI [ENTITY] stated in his cross- examination that he did not record the statement of public person [ENTITY] and did not make him prosecution witness in the present case. It strengthens the defence of the accused that he was falsely implicated in the present case. Ld. Counsel for the accused submits that accused was coming from his duty and at about 09:30 p.m. he was taken to police station where he was arrested and falsely implicated in the present case. Accused stated in his Statement under [SECTION] [ACT] that he was stopped at the check post and falsely implicated in the present case. He further stated that police officials had taken him to the police station while he was coming from his duty. Perusal of the arrest memo also shows that the accused was arrested at about 09:30 p.m. Complainant [ENTITY] also deposed that accused was arrested in the police station. Thus, possibility of the fact being non-apprehension of the accused from the spot cannot be ruled out. Further, PW 3 stated in his cross-examination that that the speed of the said car was about 15-20 kmph. Thus, it is strange to note that accused was driving the vehicle immediately after the theft at such a slow speed particularly when the public persons had allegedly raised noise at the time of alleged theft.
13. I also find that IO has also not made any public witnesses of the alleged recovery of Maruti Car from the accused despite the fact that alleged spot was a public place and public person were available. PW 3 stated in his cross-examination that public persons gathered at the spot. Moreover, IO has not conducted any investigation from the [ENTITY] who had allegedly seen the accused at the time of incident. In the case of [PRECEDENT], it has been observed that:
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness one who was very much in the know of things from the beginning was not examined by the prosecution. Non- examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In a case law reported as [PRECEDENT], Hon'ble High Court of Delhi has observed as under:
18. "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 find that shops were open and one or two shop-
keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant.
In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the [ACT]."
14. PW 3 deposed that on 18.01.2005, he alongwith Constable [ENTITY] was on patrolling duty in the area of police station at the relevant time, however no document / DD entry have been shown by which it can be proved that they were on duty in the concerned area. The number of the said DD entry made in Register No. II has not even been brought on judicial record to show their presence in the concerned area. In the facts and circumstances of the case, the prosecution ought to have proved the DD entry by which the above said police official had left the Police Station so as to inspire the confidence regarding their availability / presence at the place of apprehension of the accused.
15. It is a settled proposition of law that in a criminal trial, benefit of doubt, if any, has to inevitably go the accused. It is also basic principle of criminal jurisprudence that prosecution has to stand on its own legs and it cannot drive any benefit, whatsoever, from the weaknesses, if any, in the defence of the accused. Reliance is placed on the citation [PRECEDENT]. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal. In case law reported as [PRECEDENT], the Hon'ble Punjab and Haryana High Court observed as under:
5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily has to go to the accused
16. In view of the foregoing reasons, I hold that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt. The benefit of any lacunae, left in the investigation, has to be given to the accused. For the foregoing reasons, accused is entitled to acquittal. Accused [ENTITY] is therefore acquitted for the offence U/[SECTION] [ACT]. Bail bond/Surety bond shall stand discharged only after six months from today in compliance of [SECTION] of the [ACT]. After due compliance, file be consigned to record room.
17. Copy of the judgment be placed on the official website.
Announced in the Open Court on dated 16.02.2013.
([ENTITY]) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI 16.02.2013 State versus [ENTITY] U/[SECTION] [ACT] PS: Farsh Bazar 16.02.2013 Present: Ld. APP for the State.
Accused on bail with Counsel Remaining arguments heard.
Vide separate judgment of even date, accused [ENTITY] is acquitted of the charge under [SECTION] [ACT]. At request, existing bail bond of accused are extended for the prescribed period in compliance of u/[SECTION] [ACT]
Documents, if any, be released after cancellation of endorsement to the person entitles. Superdarinama, if any, stands cancelled.
File be consigned to record room after compliance.
([ENTITY]) MM/KKD/16.02.2013