IN THE COURT OF SH. NAVEEN GUPTA, MM, TIS HAZARI COURTS, DELHI 1.FIR No. : 510/95 2.Date of Offence : 24.11.1995 3.Name of the complainant : Sh. [ENTITY] 4.Name, parentage and Address : of the accused [ENTITY] S/o Sh. [ENTITY] R/o T-541, Baljeet Nagar, Delhi. 5.Offences charged with : [SECTION] [ACT]. 6.Plea of the accused : Pleaded not guilty. 7.Sentence or final order : Accused is acquitted. 8.Date of order : 05.07.2012 JUDGMENT
1. The case of the prosecution is that on 06.05.1999, the accused got recovered one Hero Honda motorcycle bearing no. DL 2SK 7068 from the street in front of his house no. T-541, Baljeet Nagar, Delhi, belonging to the complainant [ENTITY] of which the accused received and retained knowingly and having reason to believe that the said motorcycle was stolen one.
2. After investigation, charge-sheet was filed against the accused. The copies of charge-sheet were supplied to the accused in compliance of [SECTION] [ACT] Thereafter, charge was framed against the accused under [SECTION] of the [ACT] (for short '[ACT]') to which he pleaded not guilty and claimed trial.
PS: Karol Bagh
3. In support of its version, prosecution examined 13 witnesses. PW-1 [ENTITY] submitted that on 23.11.1995, he had parked his Hero Honda Splender bearing no. DL-2SK-7068, which was of grey colour, Model 1995, in front of his house at Padam Singh Road. On 24.11.1995 in the morning, when he got up, he did no find his motorcycle, where he had parked in the night. He had searched for his motorcycle, but could not find the same. It was stolen by someone. He went to the police station and lodged the complaint/ FIR.
PW-2 SI [ENTITY] tendered FIR, copy of which is Ex. PW-2/A. PW-3 Ct. [ENTITY] deposed that on 24.11.1995, Duty Officer had handed over the copy of FIR No. 510/95 under [SECTION] [ACT]; on which, he alongwith SI [ENTITY] and the complainant [ENTITY] reached at the house of the complainant at 4335/59, Regar Pura, Karol Bagh; IO prepared the site plan at the instance of the complainant. Thereafter, they searched for Hero Honda motorcycle no. DL-2SK-7068 which was not found. Thereafter, IO enquired about the said case from one [ENTITY] and searched for the vehicle, but could not recover. They all reached at the house of [ENTITY] who was BC of the area, who stated that he was not involved in any crime and he was maintaining his livelihood by selling tea. Thereafter, they searched for the motorcycle but all in vain. PW-4 [ENTITY], Record Clerk, Transport Department produced the record pertaining to vehicle no. DL-2SK-7068. On 11.05.1995, the said motorcycle was registered in the name of [ENTITY] who was resident of 59/4335, Regar Pura, Karol Bagh, Delhi. On 03.06.1996, the said motorcycle was transferred PS: Karol Bagh in the name of The New India Assurance Company Ltd. at E-9, IIIrd Floor, Connaught Place vide Form No. 29 and 30. Further, on 09.08.1999, the said motorcycle was transferred in the name of [ENTITY], for which the receipt authority was issued on 14.09.1999 after receipt of transfer fee and the said motorcycle stood in the name of [ENTITY] R/o WZ-146, Khayala Village, Delhi. He tendered the documents vide Ex. PW-4/A to PW-4/E. PW-5 Ct. [ENTITY] submitted that on 06.05.1999, he was posted at PS Patel Nagar. He joined SI [ENTITY] for the investigation of [CASE NUMBER], PS Patel Nagar. Accused [ENTITY] was taken out of lockup; he took them to his house at Baljeet Nagar, T-541 and got recovered one Hero Honda motorcycle no. DL-2SK-7068, parked in front of his house. The accused took them to the place from where he had committed the theft of the said motorcycle and identified the place. He tendered disclosure statement vide Ex. PW-5/A, seizure memo vide Ex. PW-5/B and identification memo vide Ex. PW-5/C. PW-6 [ENTITY] submitted on the similar lines as deposed by PW-5. PW-7 [ENTITY] submitted that in the month of June, 1999, he received the motorcycle no. DL 2SK 7068 on behalf of New India Insurance Company on superdari vide superdginama Ex. PW-7/A. He further submitted that the said motorcycle was sold to one [ENTITY] R/o WZ-146, Khyala Village after taking permission from the Court to sell the vehicle vide order Mark PW-7/B. PW-8 HC [ENTITY] produced the register no. 19 of year 1999 of PS Patel Nagar. As per record, on 06.05.1999, SI [ENTITY] had deposited motorcycle no. DL-2SK-7068 in the malkhana, which was recovered in PS: Karol Bagh case FIR No. 348/09 of PS Patel Nagar. On 19.05.1999, the aforesaid vehicle was delivered to Ct. [ENTITY] of PS Karol Bagh vide [CASE NUMBER]. He tendered the photocopy of register no. 19 vide Ex. PW-8/A. PW-9 Ct. [ENTITY] submitted that [ENTITY] arrested accused [ENTITY] in [CASE NUMBER], PS Patel Nagar. He tendered disclosure statement vide Ex. PW-5/A and seizure memo vide Ex. PW-5/C. PW-10 [ENTITY], LDC, Transport Department produced the record of motorcycle no. DL-2SK-7068. He tendered the registration certificate in the name of [ENTITY], copy of which is Ex. PW-10/A. PW-11 Insp. [ENTITY] submitted that on 24.11.1995, the investigation of the present case was assigned to him. He received copy of FIR from DO through Ct. [ENTITY] and thereafter, he alongwith complainant [ENTITY] reached on the spot i.e. Padam Singh Road in front of H.No. 4335 and inspected the spot. He prepared site plan vide Ex. PW-11/A at the instance of the complainant. Thereafter, he made search of accused as well as stolen vehicle but no clue was found. Thereafter, on 01.12.1995, he handed over the file to MHC(R). PW-12 [CASE NUMBER] Submitted that on 12.05.1999, the further investigation of the present case was assigned to him. He received the case file alongwith DD entry no. 90B Ex. PW-12/A i.e the information regarding the recovery of motorcycle of the present case and deposited with malkhana of PS Patel Nagar in [CASE NUMBER]. He arrested the accused vide arrest memo Ex. PW-12/B. He got the motorcycle bearing no. DL-2SK-7068 of the present case transferred from the malkhana of PS Patel Nagar to malkhana PS Karol PS: Karol Bagh Bagh. The complainant of the present case told him that he had received the insurance claim against the said motorcycle and he gave the intimation through phone to the concerned insurance company regarding the above said facts. He recorded the statement of the witnesses. PW-13 [ENTITY], Record Keeper, Transport Department produced the summoned record pertaining to vehicle no. DL-2SK-7068. He tendered the documents vide Ex. PW-13/A to PW-13/E. The particulars of the vehicle are mentioned on attested copy of the certificate of particulars is Ex. PW-13/F.
4. After conclusion of prosecution evidence, statement of the accused was recorded wherein he claimed himself innocent. He submitted that he did not commit the theft of the impugned motorcycle bearing no. DL-2SK-7068. The said motorcycle was not recovered from his possession or at his instance. He had been falsely implicated in the present case. Accused, however, did not opt to lead defence evidence.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. Ld. APP submitted that prosecution had examined three witnesses to the recovery of the case property in this case i.e. PW-5, PW-6 and PW-9; the testimony of PW-5 and PW-6 remained unchallanged on behalf of accused; hence, considering the testimony of above mentioned witnesses and other witnesses, prosecution had proved its case against accused beyond reasonable doubt.
PS: Karol Bagh
7. Ld. Defence Counsel argued that there are several contradictions in the case of prosecution. Further, the investigating officer did not join any independent witness while preparing the seizure memo Ex. PW-5/B. Further, site plan was not got signed by any witness. Hence, prosecution had failed to prove its case.
8. The case of the prosecution is that accused had committed the theft of impugned motorcycle and subsequently, the same (motorcycle) was recovered at his instance. Firstly, PW-9 is one of the witnesses to the recovery of impugned motorcycle. He deposed during his cross examination that he had not started the recovered motorcycle, however, it was taken to the PS by pushing. The above mentioned version leads to infer that either the motorcycle was not in working condition or its key was not available at the time of its recovery. But the above mentioned fact has not been clarified by any of the prosecution witness. Further, PW-9 stated that owner of the vehicle had identified the recovered stolen vehicle at the spot i.e. the place of recovery. While PW-1, owner of the vehicle stated that he never visited any PS after recovery of the motorcycle. Both the versions of PW-9 and PW-1 are contradictory in nature. Even otherwise, if PW-1 was present at the time of recovery of motorcycle and he had identified the same then why the investigating officer PW-6 did not join him as a witness to the recovery of the motorcycle and mention his name in the seizure memo Ex. PW-5/B.
9. Further, Ld. Counsel for the accused argued that the investigating officer did not prepare site plan of the spot from where the motorcycle PS: Karol Bagh was recovered; photographs of the vehicle were not taken at the time of its recovery; even the motorcycle was not produced before the Court during trial and above all, the complainant PW-1 deposed that he could not identify the motorcycle.
10.Firstly, it is pertinent to note that DD entry no. 90B Ex. PW-12/A vide which an intimation of recovery of motorcycle pertaining to present case was given to the PS Karol Bagh bears the observation that motorcycle no. HR 08A 7068 has been recovered. While the motorcycle pertaining to this case bears the registration no. as DL 2SK 7068. No prosecution witness clarified the above mentioned discrepancy. Further, the Court is in agreement with the contentions made by Ld. Counsel for the accused mentioned in the preceding paragraph.
11.Even otherwise, if the above mentioned observations are kept aside for a while; the case of the prosecution is that the motorcycle was recovered when the same was parked in front of house of the accused. The place of recovery is a public place. Moreover, it is beyond imagination that any person who had stolen the motorcycle approximately 3 years ago would park the stolen motorcycle in front of his house. Further, the impugned recovery has been made pursuant to the disclosure statement of accused Ex. PW-5/A. The place of recovery was an open place which could be accessed by public at large including the police officials; hence, the accused could not be said to have exclusive possession over the motorcycle and the information of whereabouts of the motorcycle. The legal position qua admissibility of PS: Karol Bagh the disclosure statement vis-a-vis [SECTION] of the [ACT] is explained by the Higher Courts in various cases.
12. The Apex Court in [PRECEDENT], has held that:
15. [E]vidence of recovery of the pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon wielded it in offence.
The statement accompanying the discovery is woefully vague to identify the authorship of concealment, with the result that the pointing out of the weapon may at best prove the appellant's knowledge as to where the weapon was kept.
13. The Hon'ble Delhi High Court in [ENTITY] Kumar v. State, 1996 CRI. L. J. 2429, held that:
42. As far as recovery of a piece of hockey from the room of the appellant, [ENTITY], is concerned, the said piece of hockey was not lying hidden anywhere. A casual search of the room by the police, would have yielded the said piece of hockey. [SECTION] of the [ACT] could make such disclosure statement of the accused in custody admissible which leads to discovery of a material fact but if a material fact is self-evident to the police, the disclosure statement of the accused of such material fact becomes inadmissible. In case a particular material fact is in exclusive knowledge of the accused and he makes a disclosure statement pertaining to the same which leads to recovery of such material fact, then and then only such disclosure statement of the accused is admissible in evidence. So, this recovery of piece of hockey cannot be linked to the accused [ENTITY] in view of the above reasons. Moreover, [ENTITY] had stated in Court that [ENTITY] had thrown away the second piece of hockey outside his house. If that is so, the disclosure statement of the appellant, [ENTITY], becomes PS: Karol Bagh all the more doubtful.
14. In these circumstances, no portion of disclosure statement of accused can be held admissible under [SECTION] of the [ACT]. Moreover, in view of observation in the preceding paragraphs, argument of Ld. Counsel for accused that no independent witness was joined in the investigation, finds relevance. First of all, I consider the legal position on this point. In [PRECEDENT], the Hon'ble Supreme Court held that:
8. It therefore emerges that non-compliance of these provisions i.e. [SECTION] and [SECTION] [ACT] would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of PS: Karol Bagh [ACT]. Hence, the above-mentioned creates doubt on the case of the prosecution.
15. In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquitted accused. File be consigned to record room.
Announced in open Court [ENTITY] (1+1 Copies) [CASE NUMBER] PS: Karol Bagh