IN THE COURT OF MS. [ENTITY] SINGH:ACMM-02 (CENTRAL) TIS HAZARI COURTS, DELHI STATE Vs. [ENTITY] FIR No. 24/07 New Case No. 297211/16 U/s : 379/411 [ACT] P.S. : Railway Main Delhi Date of Institution : 15.11.2007 Date on which case reserved for Judgment : 06.12.2018 Date of Judgment : 06.12.2018 JUDGMENT
1.FIR No. of the case : 24/2007 2.Date of the Commission : 24.01.2007 of the offence 3.Name of the accused : [ENTITY] S/o [ENTITY] R/o A-16, G. No.3 [ENTITY], Kaith Wara, New Usmanpur, Delhi. 4.Offence complained of : 379/411 [ACT]. 5.Plea of accused : Pleaded not guilty. 6.Final order : Acquitted for the offence under [SECTION] of [ACT] and Convicted under [SECTION] of [ACT]. BRIEF FACTS
1. The story of the prosecution is that on 24.01.2007 at about 03.30 PM at platform No. 12 within the jurisdiction of PS RMD accused [ENTITY] committed the theft of a blue colour hand bag containing pistol and cash belongs to the complainant Sh. [ENTITY] without his consent and on 20.10.2007 at Kela Ghat Road within the area of PS Kashmere Gate. He was found in possession of aforesaid pistol belonging to the complainant which he dishonestly received or retained knowing or having reason to believe that the same is stolen property and thereby committed offence punishable under [SECTION] [ACT].
2. On the basis of a complaint, present FIR was registered. After carrying out the investigation, charge sheet was filed. Accused [ENTITY] was summoned. After compliance of [SECTION] [ACT], charge u/[SECTION] [ACT] was framed against accused [ENTITY] and the charge was duly explained to him in vernacular on 18.03.2008 to which he pleaded not guilty and claimed trial. Thus, the matter was put to trial.
APPRECIATION OF EVIDENCE
3. In order to prove the above said allegations against the accused [ENTITY], the prosecution has examined 10 witnesses in total.
4. PW-1 SI [ENTITY] deposed that on 24.01.2007, he had gone to Old Delhi Railway Station alongwith his wife and children to go to Kathgodam (Nainital) by Sampark Kranti Train. He was carrying, besides other things, a hand bag make jeans cloth blue coloured containing one pistol, 24 cartridges, Rs. 1600/-, PAN Card, ATM card, I Card etc. When he opened bag to take out money for buying the tickets, he found that hand bag make jeans cloth blue colour was missing and it has been stolen by some unknown person. He had come from his Village Faizpur Ninana (Bagpat) to Bagpat by his personal Jeep and from where he come upto Loni Depot by bus and thereafter by rickshaw to Golchakkar and thereafter by DTC bus to ISBT and from there they came by auto to Old Delhi Railway Station. He does not know where his aforesaid bag was stolen. The stolen pistol in the bag was 1633761. This was his service pistol. On 20.01.2007, he filed a complaint at PS ODRS vide Ex. PW1/A bearing his signature at point A. He correctly identified the pistol Ex. P1 and Cartridges are Ex. P-2.
This witness was cross-examined by Ld. defence counsel, however, his cross-examination is not repeated here for the sake of brevity.
5. PW-2 Ct. [ENTITY] deposed that on 25.10.2007, he alongwith Inspector [ENTITY] and HC [ENTITY] had joined the investigation in the present case. Inspector [ENTITY] had moved an application before the concerned court for arrest and interrogation of accused as accused was produced from [ENTITY] and the said application was allowed. Thereafter, accused was arrested in the present case by HC [ENTITY] vide arrest memo Ex. PW2/A, disclosure statement of accused is Ex. PW2/B, both bearing his signature at point A. Accused had disclosed that he had purchased the said pistol from one [ENTITY] three weeks before who used to met him, Wazirabad, Yamuna Bridge in a sum of Rs. 1500/-. Thereafter, an application for one day PC was moved and same was allowed. Thereafter, accused had lead them to Wazirabad, Yamuna Bridge for pointing out [ENTITY] from whom accused had purchased the said pistol but no clue was found about [ENTITY].
This witness was cross-examined by Ld. defence counsel, however, his cross-examination is not repeated here for the sake of brevity.
6. PW-3 [ENTITY] deposed that on 25.10.2007, he alongwith Inspector [ENTITY] and Ct. [ENTITY] had joined the investigation in the present case. He had moved an application before the concerned court for arrest and interrogation of accused as accused was produced from [ENTITY] and the said application was allowed. Thereafter, accused was arrested in the present case by him vide arrest memo Ex. PW2/A, disclosure statement of accused is Ex. PW2/B, both bearing his signature at point B. He correctly identified accused in the court. He had disclosed that accused had purchased the said pistol from one [ENTITY] three weeks before who used to met him, Wazirabad, Yamuna Bridge in a sum of Rs. 1500/-. Thereafter, an application for one day PC was moved and same was allowed. Thereafter, he had lead them to Wazirabad, Yamuna Bridge for pointing out [ENTITY] from whom accused had purchased the said pistol but no clue was found about [ENTITY].
This witness was cross-examined by Ld. defence counsel, however, his cross-examination is not repeated here for the sake of brevity.
7. PW-4 [ENTITY] deposed that on 20.10.2007, he was posted as Constable at Maurice Nagar, Operation Cell, North District. [ENTITY] received secret information regarding theft of one police pistol. Thereafter, [ENTITY] constituted raiding party consisting of SI [ENTITY], HC [ENTITY], Ct. [ENTITY] and himself. At about 03:10 PM, they reached at Kashmere Gate, GPO, Keladhar Road. One person came on a motorcycle bearing No. DL 7S AT 16.03. Secret informer pointed towards the above said persons and identified him as the person who sold the said police pistol and they apprehended accused. He correctly identified accused. Formal search of accused was conducted and one pistol was recovered from right side dub of the trouser. IO [ENTITY] prepared sketch of the said police pistol and two cartridges which is Ex. PW4/A, personal search was also conducted vide memo Ex. PW4/B and the pistol and two cartridges were seized vide memo Ex. PW4/C and sealed with the seal of RC, all bearing his signature at point A. Disclosure statement is of accused Ex. PW4/D, pointing out memo was prepared by IO which is Ex. PW4/E, motorcycle bearing NO. DL 7S AT 1603 was seized vide memo Ex. PW4/F, all bearing his signature at point A. This witness was cross-examined by Ld. defence counsel, however, his cross-examination is not repeated here for the sake of brevity.
8. PW-5 ASI [ENTITY] deposed that on 27.01.2007, he was posted as Duty Officer from 08:00 AM to 08:00 PM, he had received a rukka from Inspector [ENTITY] at about 03:00 PM. On the basis of rukka, he registered the FIR and handed over [ENTITY] and copy of FIR Ex. PW5/A bearing his signature at point A to Inspector [ENTITY] for futther course of action. He also made endorsement on rukka from point A1 to A2 on Ex. PW5/B bearing his signature at point A. This witness was not cross-examined by accused despite opportunity being given.
9. PW-6 HC [ENTITY] deposed that on 20.10.2007, at about 02:00 PM, [ENTITY] received a call regarding a person who was going to sell government police pistol. Thereafter, [ENTITY] informed to Sr. officer. Thereafter, SI [ENTITY] constituted a raiding party which includes [ENTITY], Ct. [ENTITY] and Ct. [ENTITY] and himself. Thereafter, the reached at the spot at about 03:30 PM, one motorcycle bearing No. DL 7S AT 16.03 was coming from the side of bus Terminal, Kashmere Gate. Secret informer pointed out towards the above said person and identified him as the one who had come to sell the above mentioned police pistol. After 5 to 10 minutes, they apprehended accused namely [ENTITY] and correctly identified in the court. IO HC [ENTITY] prepared the site plan in his presence which is Ex. PW6/A. This witness was cross-examined by Ld. defence counsel, however, his cross-examination is not repeated here for the sake of brevity.
10. PW-7 ASI [ENTITY] deposed that on 20.10.2007, on the same date case FIR No. 516/07, PS Kashmere Gate was marked to him. [ENTITY] informed to Duty Officer, Operation Cell regarding recovery of stolen pistol and two live cartridges from accused. Thereafter, he went to the spot i.e. GPO, Kashmere Gate and IO handed over the case property to him. Accused was arrested vide memo Ex. PW7/A bearing his signature at point A. [ENTITY] and [ENTITY] also signed on the same at point B & C respectively.
This witness was cross-examined by Ld. defence counsel, however, his cross-examination is not repeated here for the sake of brevity.
11. PW-8 Ct. [ENTITY] deposed that on 20.10.2007 at around 02:00 PM, [ENTITY] received information from secret informer and constituted a raiding team including [ENTITY], [ENTITY] and himself. Thereafter, they reached the spot. IO requested 4-5 public persons to join the investigation but none agreed. He correctly identified accused in the court. He correctly identified all the documents and signatures appended thereto.
This witness was cross-examined by Ld. defence counsel, however, his cross-examination is not repeated here for the sake of brevity.
12. PW-9 Inspector [ENTITY] deposed that on 21.10.2007, he received information from North District Operation cell regarding arrest of accused [ENTITY] in case FIR No. 516/07 PS Kashmere Gate. It was also informed that service pistol No. 16133761 (9mm) was also recovered from the accused alongwith two live cartridges. ON 22.10.2007, he moved an application for production warrants of accused. On 25.10.2007, accused was interrogated and arrested by IO HC [ENTITY].
This witness was not cross-examined by accused despite opportunity being given.
13. PW-10 ASI [ENTITY] deposed that he recorded the information vide DD NO. 15 and discussed with the senior officials and constituted a raiding party. They departed at about 02:45 PM vide DD No. 16 in a private vehicle. He requested 4-5 public persons but none agreed and left the spot without disclosing their names and addresses. Due to paucity of time, no notice could be served upon them. Secret informer pointed out towards accused and at about 03:35 PM they apprehended accused and upon search of accused one service pistol was recovered from left dub alongwith two cartridges from right pocket of the pant worn by accused. He prepared the sketch of the pistol and cartridges which is already Ex. PW4/A, seizure memo already Ex. PW4/C, bearing his signature at point C. Motorcycle was seized vide memo Ex. PW4/F bearing his signature at point B. He prepared rukka and handed over the same to Ct. [ENTITY] for registration of FIR.
This witness was cross-examined by Ld. defence counsel, however, his cross-examination is not repeated here for the sake of brevity.
14. Upon completion of Prosecution Evidence, statement of accused [ENTITY] u/[SECTION] [ACT] was recorded on 16.08.2018 wherein he has pleaded innocence and he had opted to lead any defence evidence. As he has not led any defence evidence, his defence evidence was closed vide separate statement on 15.11.2018. Final arguments were heard on 06.12.2018.
15. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
16. In order to prove its case, the prosecution has examined 5 witnesses in total including the complainant himself. However, before examining whether the accused committed offence punishable u/[SECTION] [ACT], it is necessary to list out the essential ingredient of [SECTION] [ACT].
17. The essential ingredient for proving offence u/[SECTION] [ACT] are as follows:
(i) that the property in question is movable property;
(ii) that such property was in the possession of a person;
(iii) that the accused moved such property whilst in the possession of that person;
(iv) that he did so without the consent of that person;
(v) that he did so in order to take the same out of the possession of that persons;
(vi) that he did so with intent to cause wrongful loss to that persons or wrongful gain to himself.
18. The essential ingredient for proving offence u/[SECTION] are as follows:
(i) that the property in question is a stolen property;
(ii) that the accused received or retained such property.
19. In order to prove its case, the prosecution has examined ten witnesses in total. Complainant SI [ENTITY] whose bag was stolen while he was travelling with his wife and children and his blue coloured cloth bag containing one pistol, 24 cartridges, Rs. 1,600/-, PAN Card, ATM Card, I Card etc. were stolen by someone from platform No.
12. He gave is written complaint Ex. PW1/A bearing his signature at point A.
20. Apart from the testimony of the complainant that he never saw accused stealing his bag containing his service pistol. He only identified his service pistol after the same was allegedly recovered from the accused. The service pistol was recovered after about 9 months of it being stolen and there is no connecting link shown by the prosecution that the accused was the person who stole the bag of the complainant. Thus, the essential ingredients for proving of commission of offence under [SECTION] of [ACT] have not been proved by the prosecution. Thus the accused is required to be acquitted for the offence under [SECTION] of [ACT].
21. As far as the recovery of the service pistol from the accused is concerned it is clear that the prosecution has examined various police officials such as PW-2, PW-3, PW-4 and PW-6 who were members of the raiding party which were constituted after a secret information as regards the accused was received by crime branch. Accused was apprehended at the pointing out of the secret informer at about 03:30 PM alongwith is motorcycle bearing NO. DL 7SAT 1603. The stolen case property i.e. police pistol and two cartridges were recovered from him which were seized vide memo EX. PW4/C and sketch Ex. PW4/A of the seized pistol and cartridges were also prepared and disclosure statement of the accused was recovered. All the documents prepared during course of investigation have been proved by the prosecution. The recovery of the service pistol from the accused has not been proved by the prosecution by examining various police officials. A perusal of the testimony of the various police officials reveals that they have not been contradicted themselves. Even during their cross examination no material contradictions could be noted. Even through it was argued by Ld. Defence counsel that no public witness have been examined to prove the recovery of the service pistol from the accused by the prosecution, further it is settled law that testimony of police officials if consistent and cogent cannot be thrown out at the outset.
22. In my considered opinion, the witnesses are to be weighed and not counted. Furthermore, I am also not convinced with the arguments that police officials are not reliable witnesses and their testimony cannot be acted upon unless corroborated by independent public witnesses. It is a matter of common knowledge that members of general public are reluctant to join the investigation and testify in a court of law. The pious cause of justice cannot be abandoned due to the general apathy and callousness of the common man.
23. It has been observed by the Hon'ble Apex Court in the matter of "Karamjit Singh v. [ENTITY]" (AIR 2003 SC 1311) that :-
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds'.
24. The Apex Court reiterated the above position in precedent titled as Girija Prasad v. [ENTITY] of MP (AIR 2007 SC 3106) has held that:-
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
25. Furthermore, the contradictions, if any, in the testimonies of the police officials are too trivial and since they were deposing almost after about two-three years of the incident, minor discrepancies are too obvious and natural.
In [ENTITY] of Rajasthan Vs. Kalki (1981) 2 SCC 752 the Hon'ble Supreme Court was pleased to hold that:
"Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancies may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so".
26. As a cumulative effect of the above said discussion, I am of the opinion that a reasonable shadow of doubt is cast upon the prosecution version. Accused [ENTITY] is entitled to the benefit of doubt under [SECTION] of [ACT] and he accordingly stands acquitted for the charges u/[SECTION] of [ACT] and accused [ENTITY] is convicted for the offence under [SECTION] of [ACT].
27. Ordered accordingly.
[ENTITY] by [ENTITY] Announced in the open SINGH SINGH Date: 2018.12.10 Court on 06.12.2018 16:34:26 +0530 ([ENTITY]) Addl. Chief Metropolitan Magistrate-02
Central/Tis Hazari Courts, Delhi/ 06.12.2018