-: 1 :- IN THE COURT OF Ms. NEHA [ENTITY], METROPOLITAN MAGISTRATE-02,-NORTH DISTRICT, DELHI STATE VS. [ENTITY] & Ors. FIR NO: 775/2000 P. S. Samai Pur Badli U/[SECTION] [ACT] JUDGMENT
Registration No. of the case : 5288326 -2016 Date of its institution : 12.09.2001 Name of the complainant : [ENTITY] Date of Commission of offence : 30.11.2000 to 02.12.2000 Name of the accused :1. [ENTITY] S/o Sh. [ENTITY] R/o C-78, Suraj Park, Delhi.
2. [ENTITY] S/o Sh. [ENTITY] R/o House No. 917, Gali No. 19, Village Libas Pur, Delhi.
3. [ENTITY] S/o Sh. [ENTITY] R/o House No. 263, Gali No. 5, Jeewan Park, Siras Pur, Delhi-42.
-: 2 :- Offence complained of : U/[SECTION] [ACT] Plea of accused : pleaded not guilty Case reserved for orders : 30.10.2018 Date of judgment : 27.11.2018 Final Order : Acquitted for offence 411/34 [ACT]
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. The prosecution story in brief is that between 30.11.2000 to 02.12.2000 at Godown Siraspur, Gurudwara Road, behind Shanker Dharam Kanta, within the jurisdiction of PS Samai Pur Badli, a theft of 151 bags of 'chana' belonging to complainant [ENTITY] out of which accused [ENTITY], [ENTITY] and [ENTITY] (since deceased) in furtherance of their common intention got recovered 50 bags of chana' in tempo No. DL-1L-6531 at Nai [ENTITY], Narela on 06.12.2000 and accused [ENTITY], [ENTITY] and [ENTITY] (both since deceased) got recovered 101 bags of 'chana' at Nai [ENTITY] Narela, Delhi in gate Chabutra on 06.12.2000 which all the accused persons
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retained the above said goods knowingly or having reason to believe the same to be stolen property and thus all the accused thereby committed an offence punishable U/[SECTION] [ACT]. FIR was registered.
2. Investigation was completed and charge sheet was filed under [SECTION] [ACT]. Cognizance was taken and accused persons were summoned.
3. Copy of charge sheet and documents were supplied to the accused persons in compliance of [SECTION] [ACT]
4. Arguments on charge were heard and charge against all the accused persons was framed under [SECTION] [ACT]. Accused persons pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused persons, prosecution examined nine witness.
6. PW-1 ASI [ENTITY] who deposed that on 02.12.2000, he was posted at PS S.P. Badli and on that day, he received a Rukka through [ENTITY] sent by ASI [ENTITY] and on the basis of rukka he
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recorded FIR No. 775/2000 which is Ex. PW1/A and he also made endorsement on original rukka which is Ex. PW-1/B.
7. PW-2 Ct. [ENTITY] deposed that on 06.12.2000, he was on patrolling duty at Siraspur Road, Delhi alongwith SHO, [ENTITY], Ct. [ENTITY], Ct. [ENTITY] and SHO's driver Ct. [ENTITY] and at that time, Complainant [ENTITY] came to them and stated that his stolen grams were being removed to be sold in the market at [ENTITY] and he could get recovered the same. He further deposed that he went to the [ENTITY] and at the gate of [ENTITY], a Tempo No. DL-1L-
6531 was found parked there carrying some bags of gram and some persons were also present in the Tempo. The bags were marked with GCC which were identified by the complainant as belonging to him. The persons inside the tempo were interrogated and they stated that some of the bags have been supplied in the mandi. The three persons who were presented in the tempo were taken to mandi and got recovered the bags at the intasnce. Those persons were [ENTITY],
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[ENTITY] and [ENTITY]. The accused persons were arrested vide arrest memo Ex.PW2/A, Ex.PW2/B & Ex.PW2/C. He was cross examined by Ld. APP for the State and in cross examination PW2 deposed that the third person was [ENTITY] and not [ENTITY] and also that the tempo with 50 bags of gram were taken into police possession vide Ex. PW2/DA.
8. PW-3 [ENTITY] deposed that he alongwith his four partners were proprietor of firm M/s Gupta Commercial Company and on 30.01.2000, he received the supply of 173 bags of 'Arhar dal' from Naya Bazar and it was kept in the godown at Siraspur 167, Gurdwara Road, Delhi and also he received 345 bags of 'chana'. Each bag weighed 100 Kg. was stored.
He further submitted that on 02.12.2000, he received call from the labourer that the shutter of the godown was opened and its lock was missing and 151 bags of 'chana' were missing. Some unknown person had committed theft in the godown. He lodged the complaint with the police which is Ex. PW3/A. On 06.12.2000, he joined the investigation in the case in
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[ENTITY] near gate and certain bags were unloaded from the tempo and were kept on road. He proved seizure memo of those bags as Ex.PW3/B and Ex.PW2/DA. He further deposed that all 151 bags were recovered by the police. He handed over the ownership paper of the case property which were bill, godown receipt, etc. to the police which were seized vide seizure memo Ex.PW3/C. He proved arrest memo of accused persons as Ex.PW3/D, Ex.PW3/E, Ex.PW3/F, Ex.PW3/G, Ex.PW3/H, Ex.PW3/J. He further deposed that he has placed the copy of the receipt and bills in the record. He proved the same as Ex. PW3/K, Ex.PW3/L, Ex.PW3/M, Ex.PW3/N, Ex.PW3/O and Ex.PW3/P. He identified the 18 photographs of the stolen case property (bags) which are Ex.P1 to P18 and one photograph marked Mark A. He further proved the pointing out memo from where the theft took place as Ex. PW3/Q to Ex.PW3/V.
9. PW-4 [ENTITY] deposed that on 06.12.2000, he joined the investigation alongwith IO SI [ENTITY], Inspector [ENTITY], SI [ENTITY], Ct. [ENTITY],
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Ct. [ENTITY], Ct. [ENTITY] and Complainant [ENTITY] and went to main Road, Siraspur, from police station and on reaching there, he met with the secret informer who told that the 'chana' (Gram) was stolen from the godown of the complainant had been sent to [ENTITY] for sale. SHO gave directions to raid the said [ENTITY] and thereafter, tempo bearing No. DL-1L- 6531 was found parked near the gate and the said tempo was having sacks of 'chana'. The three persons sitting in the tempo were identified as [ENTITY] (driver), [ENTITY] and [ENTITY]. The said kattas were 50 in number which were identified by the complainant. The other kattas of chana were recovered from accused [ENTITY], [ENTITY] and [ENTITY]. IO seized the kattas vide two seizure memos and one seizure memo Ex.PW3/D containing 101 kattas and the remaining 50 kattas were seized vide memo Ex.PW2/DA. He proved personal search memo of accused [ENTITY], [ENTITY] and [ENTITY] as Ex.PW4/A, Ex.PW4/B and Ex.PW4/C. Thereafter, accused persons took them to the point of incident from where the bags were stolen
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and IO prepared the pointing out memo at the instance of accused persons. He identified the recovered katta in the photograph Mark A.
10. PW-5 ASI [ENTITY] deposed that on 02.12.2000, on receipt of DD No. 19A by ASI [ENTITY], he alongwith ASI [ENTITY] went to the place of incident i.e. behind [ENTITY], Siraspur, Delhi and met with [ENTITY] who was present at his godown and the shutter of his godown was opened. IO recorded statement of complainant [ENTITY]. Thereafter, IO prepared the rukka. He further deposed that he got the FIR registered and returned to the place of incident.
11. PW-6 retired SI [ENTITY] deposed that on 02.07.2000, he received DD No. 19A which is [ENTITY] through duty officer and thereafter, he alongwith Ct.
[ENTITY] reached at the spot i.e. 167, Godown Siraspur, Gurudwara Road, behind the [ENTITY] and met complainant [ENTITY] and recorded the statement of complainant which is Ex. PW3/A. He made the endorsement on the rukka. He prepared the site plan Ex. PW6/A. The complaint was regarding the
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theft of the 151 bags of chana belonging to the complainant [ENTITY].
12. PW-7 Inspector [ENTITY] also deposed that on 06.12.2000, he alongwith Inspector [ENTITY] SHO, Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY], SI [ENTITY], Complainant [ENTITY] and with other police staff departed for investigation of the case in area of PS Badli and on secret information to SI [ENTITY], they went to Narela Anaj [ENTITY] and found that one TATA 407 bearing No. DL-1L-6531 was loaded with stolen case property sacks of chana. He got identified the case property through the complainant. Then they apprehended the driver of the said tempo whose name was revealed as [ENTITY] and was having company of accused [ENTITY] and [ENTITY]. Upon interrogation, they disclosed that the remaining case property and other co-accused were present inside in the [ENTITY]. He alongwith the accused persons raided in the mandi and then, three other accused persons namely [ENTITY], [ENTITY] and [ENTITY] were arrested. They found 50 kattas chana of about 100 kgs each and from rehari
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found 101 katas of 100 kgs each. All the accused persons were personally searched vide memo Ex.PW3/D to Ex.PW3/F and search memo Ex.PW6/A to Ex.PW6/C. Their disclosure statement were recorded vide Ex.PW6/D to Ex.PW6/I. The pointing out memos of place of occurrence were prepared vide Ex.PW3/Q to Ex.PW3/V. Photographs of the case property was Ex.P1 to P18 and the superdarinama of the tempo is Ex. P19.
13. PW-8 ASI [ENTITY] deposed that on 06.12.2000, he alongwith IO SI [ENTITY], Inspector [ENTITY], SI [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct.[ENTITY] and complainant [ENTITY] went to the Main road, Siraspur from PS Samai Pur Badli and on reaching the main road, IO met with secret informer who told him that chana dana which was stolen on 02.12.2000 from the godown of complainant had been sent to [ENTITY] for sale. Thereafter, he went alongwith other police officials and complainant to [ENTITY], where they found one tempo bearing No. DL-1L-6531 parked near the gate of the mandi. In tempo, they found 50 sacks of chana inside the said tempo and complainant
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identified the same. Thereafter, they surrounded the said tempo from front side and they found three persons sitting in the said tempo and their names were disclosed as [ENTITY], [ENTITY] and [ENTITY]. Thereafter, IO made inquiries from accused persons and they all disclosed that the said sacks of chana dal were stolen by them from the godown of the complainant. IO seized the said tempo and recovered sacks of chana vide memo Ex. PW2/DA. IO made personal search of accused [ENTITY], [ENTITY] and [ENTITY] vide personal search memo Ex.PW6/A, Ex.PW6/B and Ex.PW4/C. He was cross examined by Ld. APP for the State.
14. PW-9 Inspector [ENTITY], deposed that on 05.12.2000, he was posted as SI at PS S.P. Badli and on that day, the further investigation of the case was handed over to him. On 06.12.2000, he alongwith SHO Inspector [ENTITY], SI [ENTITY], [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY] and complainant of the case were present at Siraspur and then secret informer met him who told that the stolen property is to be sold at Narela Anaj [ENTITY] today. Thereafter, he alongwith
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other stafff reached Nareal Anaj [ENTITY] where tempo DL-1L-6531 TATA 407 was found loaded with the stolen property i.e. 50 bags of chana. The said tempo and recovered chana were seized vide memo Ex.PW2/DA. After that 100 bags were seized vide seizure memo Ex.PW3/B. Thereafter, all the accused were arrested vide arrest memo Ex.PW3/D to Ex.PW3/J and personal search memo were prepared which are Ex.PW6/A to Ex.PW6/C and disclosure statements were recorded vide Ex.PW6/D to Ex. PW6/I. The pointing out memos of place of occurrence were prepared vide Ex.PW3/Q to Ex.PW3/V. On 07.12.2000, the complainant handed over to him the photocopy of documents pertaining to case property which are Ex.PW3/K to Ex.PW3/P. Photographs of the case property was Ex.P1 to P18.
15. Thereafter, PE was closed. Statements of the accused persons were recorded under [SECTION] [ACT] and all the incriminating evidences were put to them in vernacular. Accused persons pleaded their innocence.
They did not wish to lead DE.
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16. Final arguments were lead for state by Ld. APP and for accused Ld. Counsel lead the arguments.
17. It is argued by the Ld. APP Sh. [ENTITY] for the state that prosecution has proved its case beyond reasonable doubt. Stolen case property is recovered from the accused persons.
18. Per contra it is argued by the Ld. Counsel for the accused that there are no public independent witness to the recovery of property. Case property is general property and no special mark is proved to show that recovery was made of the stolen property. Further there are material contradictions in testimony of witnesses.
19. I have heard the state and accused and have perused the record carefully.
20. Allegations against the accused are for offence under [SECTION] [ACT].
21. In present case 151 katta of chana were seized from the accused. However there were not earmarked to be the property of complainant, further it is not specified by the IO as to from which accused what was
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recovered. Admittedly recovery is made from two places but it is not shown from whom what was recovered. Further there are contradictions in the deposition of witnesses as to the information received.
22. In present case prosecution was duty bound to prove the possession of the stolen property with accused.
Same is sought to be proved by the recovery memo and testimony of the witnesses, it is admitted fact that public persons were available at the spot. It was held in [PRECEDENT], that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of [PRECEDENT] and [PRECEDENT], that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
23. In present case IO has not joined any public witness at the time of arrest or while completing the formalities
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despite availability of public persons. There is a possibility that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present. Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
24. In present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on [PRECEDENT], the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independentpersonistoavoidtamperingofthe caseproperty.Itiswellsettledthattillthecase property is not dispatched to the forensic
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science laboratory, the seal should not be availabletotheprosecutingagencyandinthe absence of such a safeguard the possibility of seal, contraband and the samples being tamperedwithcannotberuledout".
25. In the absence of any cogent evidence against the accused, recovery of case property is doubtful. Accused are acquitted for offence under [SECTION] [ACT].
Announced in the open court NEHA Digitally signed by NEHA GUPTA On this 27 November, 2018 th [ENTITY] Date: 2018.11.27 SINGH 16:10:06 +0530 ([ENTITY]) Metropolitan Magistrate-02, North, Rohini Court, Delhi North Rohini Delhi