IN THE COURT OF SH. RAJ KUMAR TRIPATHI : M.M. KARKARDOOMA COURTS : DELHI STATE V. RAHUL @ BUNTY FIR NO. 465/2007 P.S. NEW ASHOK NAGAR U/[SECTION] INDIAN PENAL CODE JUDGMENT
a. The serial no. of the case : 04/08 b. Date of Institution of the case : 02/1/08 c. The date of commission of the : 15/1/07 offence d. The name of the complainant : Sh. [ENTITY] e. The name of the accused, his : [ENTITY] s/o [ENTITY] parentage and address r/o gali no.13, near Santoshi Mata Ka Mandir, Pragati Vihar, Khoda Colony, Ghaziabad, U.P. f. The offence complained of : U/[SECTION] of [ACT] g. The plea of the accused : Pleaded not guilty h. The final orders : Accused convicted u/[SECTION] of [ACT] i. Final arguments heard : 13/3/08 j. Date of judgment reserved : 13/3/08 k. Date of pronouncement of : 17/3/08 judgment A brief statement of the reasons for decision :
1. The prosecution case in brief is that on 15/01/07 at the house of accused, at gali no.13, near Santoshi Mata Ka Mandir, Pragati Vihar, Khoda Colony, Ghaziabad, U.P., accused was found in possession of one motorcycle bearing no. DL-7SAJ-7371 make Bajaj Pulsar which accused have received or retained knowing or having reasons to believe to be the stolen property belonging to [ENTITY], stolen from the jurisdiction of police station New Ashok Nagar and thereby, committed an offence punishable under [SECTION] of [ACT] (in short [ACT]), and within my cognizance. Accordingly, the charge sheet against the accused for alleged offence was filed after completion of investigation. The accused was supplied documents in terms of [SECTION] of [ACT] (in short [ACT]).
2. The charge against accused was framed vide order dated 16/1/08. After framing of charge, the prosecution was directed to lead its evidence. In order to prove its case prosecution examined PW1 W/[ENTITY], duty officer, PW2 Sh. [ENTITY] , complainant, PW3 [ENTITY], recovery witness and PW4 [ENTITY], IO of the case. PW1 [ENTITY] during her testimony proved copy of FIR as Ex.PW1/A. PW2 [ENTITY] proved his statement given to police as Ex.PW2/A. PW3 [ENTITY] proved disclosure statement of accused as Ex.PW3/A1, arrest memo and personal search memo of accused as Ex.PW3/A and Ex.PW3/B respectively. He further proved seizure memo of the stolen recovered motorcycle as Ex.PW3/C and pointing out memo of the place from where the accused had stolen the motorcycle as Ex.PW3/D. PW4 [ENTITY] proved site plan as Ex.PW4/A.
3. Statement of accused under [SECTION] [ACT] was recorded in which all incriminating evidence was put to accused. The same were controverted and denied by the accused. Accused pleaded his innocence. He stated that he was lifted by the police from Mayur Vihar Ph.III while he was under the influence of liquor and nothing was recovered from his possession. Accused further stated that he has been falsely implicated in the present case. Accused denied to lead defence evidence. Accordingly defence evidence was closed.
4. I have heard and considered the submissions advanced by Sh. [ENTITY] learned APP for State and Sh. [ENTITY], learned counsel for accused and gone through the entire material available on record.
5. The FIR in question was registered on the basis of complaint of the complainant, PW2 [ENTITY]. In his complaint he reported the matter for missing of his motorcycle bearing no.DL-7SAJ-7371. The police tried to trace the motorcycle but in vain. Subsequently the accused was arrested in a case FIR bearing no.440/2007 PS New Ashok Nagar in which the accused made disclosure statement regarding the theft of motorcycle bearing no. DL-7SAJ- 7371.
6. According to recovery witness PW3 [ENTITY], the accused took him and [ENTITY] to his house at gali no.13, near Santoshi Mata Ka Mandir, Pragati Vihar, Khoda Colony, Ghaziabad, U.P. from where he got recovered one motorcycle no. DL-7SAJ-7371 make Bajaj Pulsar of black colour from one of the room which was taken into possession by [ENTITY] vide seizure memo Ex.PW3/C. The witness further stated that the accused thereafter led them to the place from where he had stolen the motorcycle at Pocket A-3, Mayur Vihar Ph.III and [ENTITY] prepared the pointing out memo Ex.PW3/D. The witness correctly identified the accused and the case property in the court.
7. PW4 [ENTITY] is the IO of the case and also recovery witness. He corroborated the testimony of [ENTITY] to the effect that accused had taken them to his house and got recovered the stolen motorcycle. He further corroborated his testimony that accused had led them to the place from where he had stolen the motorcycle.
8. The place of recovery of the stolen motorcycle has been shown as the house of accused at gali no.13, near Santoshi Mata Ka Mandir, Pragati Vihar, Khoda Colony, Ghaziabad, (U.P). [ENTITY] and [ENTITY] both admitted during their deposition that house of accused is situated in a residential area. [ENTITY] stated that father of the accused met them at the said house. He further stated in his cross-examination that as the main gate was already opened, the accused directly led them to the room where motorcycle was parked which was situated just after the main gate. He further stated that no other person met him at the place of pointing out. On the other hand [ENTITY] who is the IO of the case and who went with [ENTITY] stated that some public persons gathered at the place of pointing out place but none agreed to join the investigation. According to IO when they reached at the house of accused , one lady and some children met him at the said house. According to him some public persons also gathered outside the house of the accused. He further stated that none of the public persons agreed to join the investigation. No written notice was given by the IO to those persons for joining the investigation who were present at the spot.
9. From the testimony of [ENTITY], recovery witness and [ENTITY], IO of the case, it is clear that when they reached at the house of accused, the main gate of the house of accused was already open. The house of the accused was situated in a residential area. The father of the accused met them at the main gate. No reason has been furnished as to why the father of the accused was not joined in the investigation at the time of recovery of the stolen motorcycle when he was already present. [ENTITY] himself admitted in his cross-examinaton that some public persons gathered outside the house of the accused. According to him none of them agreed to join the investigation. Thus it is clear that public persons were also present at the time of recovery of the motorcycle from the house of the accused.
10. According to the recovery witness, accused took them to the house of complainant at Pocket A-3, Mayur Vihar Ph.III and pointed out the same as the place from where he had stolen the motorcycle. No reason has been furnished as to when they reached at the house of complainant why neither the complainant nor any of his family members was joined in the investigation. [ENTITY] himself admitted in his cross-examination that at the place of pointing out some public persons gathered. No cogent and sufficient ground has been furnished as to why the public persons who were present at the spot were not joined in the investigation. Non-joining of the public persons at the time of recovery of the motorcycle and at the place of pointing out despite their availability makes the recovery doubtful.
10. It was held in [PRECEDENT] by Hon'ble Supreme Court that :
" The failure of the prosecution to examine independent witnesses though available is fatal to their case."
12. In the case titled as [PRECEDENT], [PRECEDENT] and [PRECEDENT], it was held by Hon'ble courts that :
" Where IO has failed to even note down the names and addresses of the persons who have refused to join as public witnesses coupled with the fact that no action was taken against them, the case is rendered doubtful."
13. In the instant case, no effort has been made by IO to join the public persons in the investigation despite their availability. IO has not noted down the names and addresses of the public persons whom he requested to become a witness. Even it was admitted by PWs [ENTITY] and [ENTITY] in their cross-examination that no written notice was given to public persons for joining the investigation. IO has further not mentioned as to whether he took any action against the public persons who refused to become a witness despite his directions or not. IO has not given any explanation as to why he did not take any action against the public persons who refused to become a witness despite his command. In view of the decisions pronounced by Hon'ble superior courts in the above noted cases, the recovery of the case property from the possession of the accused becomes doubtful.
14. For the reasons stated above, I am of the considered view that prosecution has failed to prove its case against accused beyond all shadow of reasonable doubt. Hence, benefit of doubt is given to the accused. Consequently, accused is acquitted of the offence punishable U/[SECTION] [ACT]. Accused be released from custody if not wanted in any other case. Judgment dictated and announced in the open Court on this 17th day of March, 2008 ([ENTITY]) Metropolitan Magistrate Karkardooma Courts: Delhi