IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTERATE, SOUTH EAST, SAKET COURT [PRECEDENT] FIR No.305/03 PS HN DIN U/[SECTION] [ACT] JUDGMENT
Date of Institution : 11.08.2003 Date of commission of offence : 27.05.2003 Name of the complainant : [ENTITY] S/o. Sh.Maqsood Khan Name & address of the accused : Ahmed Hasan @ Lakhan S/o Sh.Asraf R/o Village Akeda, PS Nuh, Distt Gurgaon, Haryana Offence complained of : 411/482 [ACT] Plea of accused : Pleaded not guilty Final Order : Acquittal Date of reserve for judgment : 07.12.2011 Date of announcing of judgment : 13.12.2011 Briefly stated the facts of the case are :-
i) The story of prosecution in between 27.05.2003 at 8 pm to morning 28.05.2003 in front of H. No.17, Masjid Road, Bhogal within the jurisdiction of PS HN DIN, accused namely Ahmed Hasan took away motorcycle no.UP-22B-1650 dishonestly from the possession of one [ENTITY] wihtout this consent and the motorcycle was later on found in his possession having forged number plate as bearing number [PRECEDENT] Page 1 FIR No.305/03 PS HN DIN DL-7SG-1893 (forged). FIR u/[SECTION] [ACT] was registered in the PS HN DIN. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing other formal investigation the challan was filed before the court.
ii) Arguments were heard on charge. Prima facie charge u/[SECTION] [ACT] was framed against the accused on 16.09.2003 to which accused pleaded not guilty and claimed trial.
iii) To prove its case the prosecution has examined eight witnesses namely as under :-
(1) [ENTITY], (2) Ct. [ENTITY], (3) Ct. [ENTITY], (4) [ENTITY], (5) Ct. [ENTITY], (6) Ct. [ENTITY], (7) [ENTITY] and (8) SI [ENTITY].
(1) PW1 [ENTITY] was duty office who proved the FIR.
Accused did not prefer to cross examine the witness.
(2) PW2 Ct. [ENTITY] stated before the court that on 15.06.2003 at about 9.30 pm he along with Ct. [ENTITY], Ct.[ENTITY] and [ENTITY] were on duty at MV Raod near railway bridge and were checking the vehicles. One car bearing no.DL-2CZ-1628 came from badarpur side and on seeing us the driver of the car tried to escape by foot. [ENTITY] with the help of others apprehended the accused. On interrogation he stated that [PRECEDENT] Page 2 FIR No.305/03 PS HN DIN said car was stolen from Dakshin Puri Area. After inquiry the said car was found stolen from PS Ambedkar Nagar. In further disclosure accused also admitted the steeling of motorcycle from Nizamuddin area Masjid road.
Further examination in chief of witness was deferred for want to case property. Further the witness was not examined and therefore his evidence could not be read into evidence.
(3) PW3 was Ct. [ENTITY] who deposed that on 15.06.2003 ASI [ENTITY] handed over rukka to him and he got the FIR registered and returned back at the spot along with original rukka and copy of FIR to the IO. IO recorded his statement.
Accused did not prefer to cross examine the witness.
(4) PW4 was complainant [ENTITY] who deposed before the court that on 27.05.2003 he parked his motorcycle bearing no.UP-22B-1050 at about 1.30 am (night). On the next day same was missing from that spot. He did not make a complaint on the same day to the police due to his exam. He made a complaint on 15.06.2003. IO prepared the site plan at his instance and he took the motorcycle on superdari on 01.07.2003.
In his cross examination by ld. Defence counsel it is stated by witness that he had exam on 01.06.2003 and therefore left Delhi on 28.05.2003 in the evening by train. Paper of the vehicle were given to the IO on 15.06.2003. After one month of theft police called him after recovery of vehicle. Police visited his house once before the recovery.
[PRECEDENT] PS HN DIN
(5) PW5 Ct. [ENTITY] deposed before the court that on 15.06.2003 he along with Ct. [ENTITY], Ct. [ENTITY] and SI [ENTITY] were checking the vehicle at MB road. At about 9.30 pm one maruti bearing no. DL-2CZ-1628 came from badarpur side. The driver on seeing them tried to escape but overpowered. He failed to produce the documents of the vehicle. On interrogation accused stated that car was stolen from Dakshinpuri area. Car was seized and FIR was lodged. In his disclosure statement accused also admitted the theft of one motorcycle from the Masjid road. At the instance of accused they reached at the spot and the motorcycle bearing no.DL-7SG-1893 was seized. The motorcycle was brought to PS. Accused did not prefer to cross examine the witness.
(6) PW6 was Ct. [ENTITY] who deposed that on 15.06.2003 he along with Ct. [ENTITY], Ct. [ENTITY] and [ENTITY] were checking the vehicles at MB road. At about 9.30 pm one maruti bearing no. DL-2CZ-1628 came from badarpur side. Car was signaled to stop. The driver on seeing them tried to escape but apprehended. He failed to produce the documents of the vehicle. On interrogation accused stated that car was stolen from [ENTITY]. In his disclosure statement accused also admitted the theft of one motorcycle bearing number plate DL-7SG-1893 and original number was UP-22B-1050.
In his cross examination by ld. Defence counsel it is stated by witness that disclosure statement of the accused was recorded at the spot his statement was also recorded by IO on the spot. The accused was [PRECEDENT] PS HN DIN apprehended at about 10 to 10.30 pm. The writing work was done at the picket. The motorcycle was recovered from B-257, hauz Rani, New Delhi. IO had prepared the seizure memo of motorcycle there. No public person came to join the investigation. No notice was given by the IO to the public.
(7) PW7 was [ENTITY] who brought the register before the court of depositing of case property (motorcycle no. UP-22B-1050). On 26-06-2003 the motorcycle was taken by ASI [ENTITY] to PS HN DIN.
Accused did not prefer to cross examine the witness.
(8) Prosecution lastly examined PW8/IO SI [ENTITY] who stated that on 15.06.2003 complainant [ENTITY] gave a written complaint regarding theft of his motorcycle (Yamaha) bearing no.UP-22B-1050. Endorsement was made and FIR was got registered. It is stated by witness that he went to the house of complainant and prepared the site plan at his instance. Further in the night of 15/16.06.2003 a DD No.39 was received regarding the recovery of stolen motorcycle. It is further deposed by witness that he went to PP Pul Prahlad Pur and met [ENTITY] and obtained the copy of disclosure statement of the accused, pointing out memo and seizure memo and recorded the statement of recovery witnesses. Further on 26.06.2003 case property was got transfered. The motorcycle was bearing forged number plate DL-7SG-1893. On 30.06.2003 accused was arrested in the court. Statement of accused was recorded but the accused refused to sign the same. The court was [PRECEDENT] PS HN DIN informed in this regard. Statement of PW's was recorded. Challan was prepared and filed before the court.
In his cross examination IO stated that disclosure statement of accused was recorded in the court. No public witness joined at that time.
iv) Thereafter, the prosecution evidence was closed. After closing of prosecution evidence, statement of accused was recorded U/[SECTION] of [ACT]. In his statement, accused denied the version of prosecution.
v) Arguments address by ld. APP for the state and counsel for accused. I have heard the arguments and gone through the documents on record.
vi) The [SECTION] [ACT] reads as follows :-
"whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property".
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated on in respect of which criminal breach of trust has been committed, is designated as stolen property".
Therefore, the main ingredients for commission of the offence u/[SECTION] [ACT] are as follows :- "The property should be a stolen property.
The person receiving it should have the knowledge or reason to believe that that the same is a stolen property.
[PRECEDENT] Page 6 FIR No.305/03 PS HN DIN
vii) There are many discrepancies between the statement of witnesses. The story of the prosecution is not collaborated with the statement of witnesses.
1) The forged number plate was not produced by the prosecution before the court or on record. The absence of the forged number place being produced in the court itself castes a doubt upon the recovery effected from the accused.
2) The delay in the registration of FIR has not been explained to the satisfaction of the Court.
3) The recovery was effected on 15.06.2003.
4) No recovery witnesses has been examined by the prosecution. Hence, there is no one who proved the recovery of the said vehicle.
5) [ENTITY] was not examined by prosecution.
6) No site plan was prepared. Hence, again casting a doubt as to the place of offence and recovery thereto.
7) No public person was cited or examined as witness. It is highlighted by the accused that IO has not joined any public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completing the formalities but none of them was even requested to become a witness. This casts doubt about the sincere efforts made by the IO to join independent witnesses. In [PRECEDENT], it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of [PRECEDENT], it was held 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 held in the case [PRECEDENT] and [PRECEDENT], it is settled law that whenever any recovery in connection with the place of the commission of offence is made, public person must be made witness. The [SECTION] [ACT] provided that "before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do". The IO have failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation.
viii)In the present case the factum of knowledge that the vehicle was stolen property has not been proved by the prosecution and no chain has been established to prove the theft. Moreover, neither the forged number place has been produced in the court nor any recovery witness has been examined.
ix) All these infirmities in the prosecution case make the same doubtful and [PRECEDENT] PS HN DIN the benefit of which must be given to the accused.
x) In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused [ENTITY] is acquitted for the offence punishable U/[SECTION] [ACT].
xi) BB/SB stands cancelled. Endorsement, if any, also stands cancelled.
xii) File be consigned to Record Room.
Announced in the open court ([ENTITY]) on 13th December 2011 METROPOLITAN MAGISTERATE SOUTH EAST, SAKET COURT, NEW DELHI [PRECEDENT] Page 9 FIR No.305/03 PS HN DIN [PRECEDENT] PS HN DIN U/[SECTION] [ACT] Present: Ld. APP for the state. Accused on bail with counsel.
Vide my separate judgment the accused stands acquitted for the alleged offence.
BB/SB stands cancelled. Endorsement, if any, also stands cancelled.
File be consigned to Record Room.
([ENTITY]) MM/SOUTH EAST Dt.13.12.2011 [PRECEDENT] PS HN DIN