IN THE COURT OF METROPOLITAN MAGISTRATE, (05) (NE) KARKARDOOMA COURTS, DELHI FIR No. 31/07 PS: Shastri Park Metro U/S 379/411 [ACT] State v. [ENTITY] JUDGMENT
A. Sl. No. of the case : 32M/08 B. Date of institution : 14.01.08 C. Date of offence : 27.06.07 D. Name of the complainant : Ct. [ENTITY] CISF, Shastri Park. E.Name of the accused : [ENTITY] S/o [ENTITY] R/o1/201, Rehman Building, Shahdara, Delhi. F. Offence complained of : U/[SECTION] G.Plea of accused : Pleaded not guilty. H. Final Order : Acquitted. I. Date of such order : 25.10.2012 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 27.06.2007 at about 4:00pm at Gate No. 1, I.T. Park, Shastri Park Depot, Ct[ENTITY] FIR No. 31/07 State v. [ENTITY] Page no. 1 of 11 Kumar, CISF apprehended one person, namely [ENTITY] along with a transformer belonging to DMRC, which, on inquiry accused [ENTITY] disclosed to have been stolen by him from the workshop. On the basis of the said complaint, the present FIR u/[SECTION] [ACT] was lodged at PS Shastri Park Metro, Delhi. After conclusion of the investigation, the present chargsheet u/[SECTION] [ACT] against the accused was filed in the Court.
2. In compliance of [SECTION] [ACT], the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge u/[SECTION] [ACT] was made out against the accused namely [ENTITY]. Accordingly, on 07.08.2008 the charge was separately framed by the Ld. Predecessor of this Court. Accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined six witnesses.
PW1 Ct. [ENTITY] stated that he was on survillance duty at IT Park Road on 27.06.2007. He has deposed that on the said date, he found one person coming out from gate no. 1 of I.T. Park Depot. He got suspicious and told him to stop. The person tried to escape. He FIR No. 31/07 State v. [ENTITY] Page no. 2 of 11 overpowered the person and found that he had a transformer in his hand, which was used in control circuit which belonged to DMRC. PW1 informed to OCC control room and after some time the police officials came and prepard site plan. IO recorded his statement Ex. PW1/A. IO arrested the accused and prepared the arrest memo Ex.PW1/B, Personal search memo Ex. PW1/C. He has correctly identified the accused namely [ENTITY] and the case property in the Court.
PW2 [ENTITY] is a formal witness, who had registered the present FIR. He has proved its copy as Ex. PW2/A and endorsement done on the rukka Ex.PW2/B .
PW3 Sh. [ENTITY] is the Assistant Manager at DMRC. He stated that on 27.06.07 a CISF Constable and an inspector brought the accused [ENTITY] with a small transformer. They inquired where the trasformer is used to which, he informed that it is used in the Metro train. One CISF officer inquired about the cast and he issued a letter Ex. PW3/A regarding the same.
PW4 Ct. [ENTITY] went alongwith the IO to the spot on receiving the D.D. entry at about 4:25 pm on 27.06.07. He also took the rukka to the police station. He has further proved the seizure memo of the transformer Ex. PW4/A. FIR No. 31/07 State v. [ENTITY] Page no. 3 of 11 PW5 SI [ENTITY] is the IO of the case and he has deposed that he was posted as ASI at PS Shastri Park (Metro) on the said date. On receipt of DD No.12A from the D.O he alongwith Ct. [ENTITY] went to the Shastri Park Depot where they met Ct. [ENTITY] from CISF who apprehended the accused alongwith the small transformer. He corroborated the statement of earlier witnesses and proved the rukka Ex.PW5/A, site plan Ex.PW5/B and identified the case property i.e. transformer Ex.P1. Thereafter, PE was closed.
4. Statements of the accused U/[SECTION] [ACT] was separately recorded. All the incriminating evidence against him was put to him for seeking their respective explanations. In the said statement, he has stated that he is innocent and he has been falsely implicated in the present case. Accused stated that he was coming out of the Metro Station to take some goods and he was caught by the police officials. He did not possess ay transformer. The transformer was lying and he was going on his way. He has further stated that no recovery was effected from his possession. He chose not to lead evidence any defence. Therefore, the case was listed for final arguments.
5. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have carefully perused the case file. Ld. APP has argued that PW1 has entiry supported the prosecution case. Counsel for FIR No. 31/07 State v. [ENTITY] Page no. 4 of 11 accused submits that there are various contradictions in the statement of the prosecution witnesses regarding the time of incident and apprehension of the acused. The accused was in the service of DMRC as sweeper on contract basis. No public witness has been made party. It is argued that accused has been falsely implicated in this case.
6. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution case is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
7. In order to bring home the guilt of the accused U/[SECTION] [ACT], 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.
8. The prosecution is required to prove that the property recovered FIR No. 31/07 State v. [ENTITY] Page no. 5 of 11 from the possession of the accused is a stolen property. In a case titled "[PRECEDENT], 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".
9. As per the story of prosecution the accused was apprehended on 27.06.07 by CISF Constable in the possession of a transformer belonging to DMRC at about 4.00 pm. In the instant case, PW3 Assistant Manager who appeared on behalf of DMRC stated that the CISF Constable produced the accused before him at about 11.30 am to 12.30 pm. PW4 Ct. [ENTITY] stated that he received the call at 4.25 pm. Arrest memo Ex.PW1/B shows that accused was arrested 6.30 pm. PW5 the IO stated that he had remained at the spot for about 1.15 hours. If incident allegedly took place at 4.00 pm and information was sent to the concerned 4.25 pm then also it is not possible that accused is shown to be arrested at 6.30 pm. Thus there is a material contradiction between their testimonies regarding the time at which the accused was apprehended. The said contradiction goes to the root of the case and shakes the credibility of the said witnesses.
10. The said fact coupled with the aforesaid discussion, creates FIR No. 31/07 State v. [ENTITY] Page no. 6 of 11 reasonable doubt in the story of the prosecution regarding the alleged apprehension of the accused at the alleged time and date. It has been held in case of [PRECEDENT] the Hon'ble Punjab & Haryana High Court :
"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 case appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
11. During cross examination PW1 stated that their department maintain the duty register but they do not sign on the register. He did not put any departure entry ([ENTITY]) in any of the registers. As per [SECTION] of the [ACT], which is reproduced herein for ready reference:
[SECTION] of [ACT], provides as under:
22.49 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.
12. In the present case, the above said provision appears to have not FIR No. 31/07 State v. [ENTITY] Page no. 7 of 11 been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as: [PRECEDENT] the Hon'ble Delhi High Court "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."
13. If, the apprehension of the accused on the alleged time is found to be untrustworthy, then the question of subsequent recovery of the stolen articles from him, does not arise. If, for the sake of arguments, it is presumed to be established that the accused was apprehended on the alleged time i.e. 4.00 pm of the incident, in that case also the alleged recovery of the stolen transformer, at the instance of the accused does not inspire sufficient confidence. The alleged recovery of the alleged stolen transformer is admittedly effected from the densely populated area. But, despite that, the alleged recovery witnesses did not join any public person in the investigation. The FIR No. 31/07 State v. [ENTITY] Page no. 8 of 11 accused was allegedly arrested on 27.06.07 with a stolen trasformer at 4:00 pm and the said time is not an odd hour, at which the public person could not have been found and joined in the investigation. None of the police officials have testified that they made any effort to join any public witness at the time of the apprehension of the accused. Moreover PW1 did not remember whether any public persons were coming and going there. Failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
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 shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers 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] .
FIR No. 31/07 State v. [ENTITY] Page no. 9 of 11 The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lends sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion, it is duly established that genuine efforts were not made by the IO of the case to join the public witness.
14. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. PW 3 is the only witness from DMRC who also did not fully corroborate the prosecution case. He never stated that accused was apprehended stealing the transformer in his presence. Allthemore, he stated that accused was produced before him between 11.30 am to 12.30 pm with the allegation that he stole a transformer. This statement of PW3 is contradictory to the prosecution case of accused being apprehended at 4.00 pm. The witnesses that are examined by the prosecution in the present case are police witnesses 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.
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15. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against the accused to bring him within the four corners of the offence U/[SECTION] [ACT]. As a cumulative effect of all the points discussed above, I am of the opinion that the prosecution has failed to prove its case. Accordingly, the aforesaid accused stands acquitted for the offence U/[SECTION] [ACT]. File be consigned to Record Room after due compliance.
Announced in the Open Court [ENTITY] on this 25th day of October, 2012 Metropolitan Magistrate Karkardooma Courts, Delhi All pages signed.
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