IN THE COURT OF Ms. [ENTITY] METROPOLITAN MAGISTRATE (SOUTH EAST)08 SAKET COURTS, NEW DELHI JUDGMENT
Case ID No. 02406R0221692013 State Vs. [ENTITY].
FIR No: 183/13 U/[SECTION] [ACT] Police Station: [ENTITY] Colony a) The Sl. No. of the case : 131/2 b) The date of commission : 07.07.2013 c) The date of Institution of the case : 14.08.2013 d) The name of complainant : [ENTITY] e) The name of accused :(1) [ENTITY] S/o Sh[ENTITY] R/o H. No. 816, PocketII Sector 6 Narela New Delhi ([ENTITY] S/o [ENTITY] R/o House no. T86 Sarai Kale Khan New Delhi (3) [ENTITY] S/o [ENTITY] R/o Village Bangla Bazar PS Kotwali, District Koch Bazar Bangladesh. FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.1 of 12 (4) [ENTITY] S/o sh. [ENTITY] R/o Village Barasm PS Rudrapur Anchan Andhrathadi Distri Madhubani Bihar. f) The offence complained of : 380/411/34 [ACT] g) The plea of all accused : Pleaded not guilty h) Arguments heard on : 06.01.2015 i) The final order : All accused persons acquitted. j) The date of judgment : 20.01.2015. Presence : Ld. APP for the State
Ld. Legal Aid Counsel for all the accused Ms. [ENTITY] BRIEF STATEMENT OF REASONS FOR DECISION:
1. Vide this judgment I shall decide the case filed by the prosecution against the accused herein under [SECTION] [ACT]. The facts of the case are that, on the intervening night of 09.05.2013 to 10.05.2013 at about 10.30pm to 01 pm at C 121 First Floor, East of Kailash New Delhi all the accused persons namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY]) in furtherance of their common intention had committed theft of gold/silver diamond jewellery, laptop, bag, wallet, certain luxury watches make viz., Rado, Rolex, Titan, etc from the house of complainant and on 07.07.2013 at FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.2 of 12 house no. 816 Pocket 11 Sector 6, Narela New Delhi accused [ENTITY] got recovered ear tops, one gold ring belonging to complainant which was allegedly retained/ received knowing or having reason to believe the same to be stolen property. After completion of investigation charge sheet was filed in the court. During the course of trial in the accused [ENTITY] was declared JCL vide order dated 13.11.2013.
Charge framed against the accused:
2. Prima facie offence was made out and charge was framed against all the accused persons under [SECTION] [ACT] and additional charge for offence u/[SECTION] [ACT] against the accused [ENTITY] to which all the accused persons pleaded not guilty and claimed trial.
Evidence led by the Prosecution Evidence:
3. To prove its case, prosecution has examined nine witnesses.
4. PW1 is complainant Sh.[ENTITY] deposed that on 09.05.2013 his wife found the almira open and all the goods scattered. Police was called and complaint regarding theft Ex.PW 1/A was given. Site Plan Ex.PW 1/B was prepared at his instance. He identified the the diamond, silver and gold jewellery belonging to his wife.
5. During his cross examination he admitted that on the date of incident though he was at home, but he was at the ground floor where as the theft occurred on the first floor where nobody else was staying.
6. PW2 Smt. [ENTITY] deposed that she had correctly identified articles belonging to her during TIP. She identified the case property FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.3 of 12 Ex.P1(Colly).
7. In her cross examination she denied that she had been shown the recovered articles at the PS.
8. PW3 is Ms. [ENTITY]. She deposed that the complaint regarding theft was filed by her maternal uncle on 10.05.2013. She had correctly identified articles belonging to her in TIP proceedings. During her cross examination. She admitted that none of her family members had seen the accused committing the theft and they did not know who had committed the theft.
9. PW4 SI [ENTITY]. He deposed that the investigations were entrusted to him regarding the present case on 15.05.2013. On 18.05.2013, he had sent a request to the concerned Service provider for surveillance of mobile phone stolen in the present case. On 12.06.2013 the investigation of the present case was transferred to SI [ENTITY] on the direction of IO.
10. PW5 SI [ENTITY]. He deposed that on 04.06.2013, he joined the investigation along with the other officials. The accused [ENTITY] and [ENTITY] were arrested by the IO from under the flyover, of Defence Colony and he had signed as a witness on arrest memo. He correctly identified both the accused persons in the court.
11. During his cross examination he admitted that he had reached the spot at about 6.30pm and large number public persons were present at the spot when the accused were apprehended by them. However, he stated that he was not aware if the IO had asked any public persons to join the investigation of FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.4 of 12 the case as a witness.
12. PW6 [ENTITY]. He deposed on 05.06.2013 accused [ENTITY] had got recovered one gold ring, one gold chain and one silver pendant recovered from a Jhuggi near Khusro Park. The accused had admitted to him that he had stolen the same from the house of the complainant some days back. IO seized the recovered case property vide seizure memo mark A and the same was sealed with the seal BS. Thereafter accused [ENTITY] got one bag recovered from house no. T86 Room 13 first floor Sarai Kale Khan containing one gold chain one wrist watch, some currency and coins and admitted that he had stolen these articles from the house of the complainant situated at East of Kailash some days ago. The same was also sealed with the seal of BS. On 07.06.2013, [ENTITY] got one laptop recovered from a place in village Barsa, District Madhubani, Bihar. Upon verification it was found to be stolen property, the same was also sealed with the seal of BS. PW6 correctly identified both the accused persons before the court. During his cross examination he admitted that no other person except the police team and the accused were present at the time of recovery and he had not asked any public person to be a witness to the recovery. No notice was served to any public person in his presence.
13. PW7 SI [ENTITY] deposed on the line of prosecution story. During his cross examination he stated that he could not remember the place inside the jhuggi from where the stolen articles were recovered from the accused. Regarding recovery from accused [ENTITY], the same was made FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.5 of 12 from the Slab in his room. He also admitted that nobody else including the residents of the jhuggi or the house of accused [ENTITY] were present at the time of recovery.
14. PW8 Former SI [ENTITY]. He deposed deposed on the line of prosecution story. He also deposed that the Crime Team had been called for collection of chance prints available at the spot. Same were collected but as per their report, no chance print was found at the spot. Thereafter he was transferred. During his cross examination, he admitted that during the investigations, made while he was on the case, no recovery of the stolen property could be made.
15. PW09 Ex. SI [ENTITY]. He deposed that he had arrested accused [ENTITY], [ENTITY] and [ENTITY] in Saket Court on 21.06.2014 vide arrest memo Ex.PW 9/A, Ex.PW 9/B and Ex.PW 9/C. On 02.09.2013 he received the DD No. 32 B regarding disclosure statement of accused [ENTITY] of the present case. PW9 prepared the site plan of recovery place which is Ex.PW 9/G. He correctly identified all the accused persons except accused [ENTITY] who was declared JCL at a later stage during trial of the present case.
16. PW10 is Inspector [ENTITY] ( inadvertently mentioned as PW9). He deposed that on 04.06.2013 he got secret information that two persons namely [ENTITY] and [ENTITY] would come beneath the Defense Colony flyover. Thereafter on his signal both the persons were arrested vide memo 'marked' as PW5/A and PW5/B. He also recorded the disclosure statement of accused [ENTITY] and [ENTITY] which is already mark X and Y. In FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.6 of 12 pursuance to the disclosure statements of the above said accused persons some gold chain, ring, pendant,wrist watch and cash of Rs.1500 and coins were recovered from the place disclosed by accused persons. In pursuance to the disclosure statements made by (JCL) Pappu, one laptop Sony model and one charger along with black colour bag was got recovered from the place disclosed by the (JCL) Pappu. All the above said accused (including JCL) disclosed in their disclosure statement that they had stolen the above mentioned articles and cash from [ENTITY] Colony.
Statement of Accused:
17. Statement of all the accused persons (except [ENTITY]) was recorded u/[SECTION] [ACT] to which all the accused denied all the incriminating evidence against them. They stated that the case property was not recovered from their possession and case property was planted upon them. They also stated that the present case is false and fabricated and they are being falsely implicated in the case. They further stated that they do not want to lead defence evidence.
Decision and Reasons:
18. Learned APP for the State and Ms. [ENTITY], Legal Aid Counsel for all the accused persons heard. The entire judicial record carefully perused.
19. Ld. APP has submitted that prosecution has proved its case beyond reasonable doubt and all the ingredients of the offences stand proved against all the accused persons.
20. The scrutiny of testimonies of police witnesses and charge sheet reveals that recovery of jewellery/stolen articles was effected at the instance FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.7 of 12 of the accused [ENTITY], [ENTITY] and [ENTITY]. The complainant Sh. [ENTITY], as well as, his wife Smt. [ENTITY] and Ms. [ENTITY] during TIP had identified case property which belonged to them. The complainant or his wife or Ms. [ENTITY] themselves had not seen the person who had stolen the articles nor is there any eyewitness to the commission of theft by either of the accused. PW 8 in his testimony deposed that the Crime Team had been called for collection of chance prints available at the spot. Same were collected but as per their report, no chance print was found at the spot. Hence prosecution has not produced any evidence on record to prove that case property was stolen by either of the accused persons.
21. Further, the prosecution witnesses differ in their testimonies as to the time of recovery. While PW5 has submitted that he reached the spot at 6.30 pm where accused were apprehended by him along with other police officials. PW6 in his cross examination could not remember the time when he reached Khushro Park and stolen articles were recovered from the back side of jhuggi. PW7 deposed that he does not remember the time and place inside the jhuggi from where the articles were recovered from accused. PW8 deposed that stolen property was not recovered during the time he was part to of the investigation team.
22. PW5, PW6 and PW7 have deposed during their cross examination that no public person was joined in the investigation despite the availability of large number of public person at the time of recovery and apprehension of the accused persons and it is also admitted that the IO had not asked any public FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.8 of 12 person to join the investigation neither was any notice was served to the public persons who had refused to join the investigation.
23. The failure on the part of the investigating agency to join public witnesses especially when they are available also casts a doubt on the prosecution story. No plausible explanation is coming from the prosecution for non joining of independent witnesses. Reference may be made to the judgment titled as "[PRECEDENT], "[PRECEDENT] and [PRECEDENT].
24. In such circumstances, Court is of the opinion that the public persons present at/around the place of alleged recovery could have been easily joined in the proceedings of the present matter. The police personnels had ample time to make those independent persons understand the nature of proceedings and their role as a witness. The investigating officers, however, failed to act prudently and join those independent public persons as witness to the proceedings of the present matter. This leads to an adverse inference against the entire recovery.
25. It is required to be understood that the recovery and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. In the absence of any independent witness having been joined in the investigation, false implication FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.9 of 12 of the accused by the local police in the present case cannot be ruled out.
26. The aforesaid observation of the Court is fortified by following observations in case titled [PRECEDENT], by Hon'ble High Court of Punjab & Haryana:
" It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful "
27. Similar view was expressed by the Hon'ble Delhi High Court in case FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.10 of 12 titled [PRECEDENT].
28. The prosecution is required to establish beyond reasonable doubt that the theft of the articles in question was committed by the accused persons or that same was got recovered from their possession. All the Prosecution Witnesses have support the prosecution case.
29. However no public witness has been associated with the investigation. No independent witness has been joined at the time of the recovery of the articles(jewellery etc.,). PW5, PW6 and PW7 all in their cross examinations have deposed that though the public persons were around but none was joined in the investigations. All the witnesses to the recovery being police officials, such recovery does not inspire confidence. There were no eye witnesses to the theft of the articles (jewellery, luxury watches etc,). It is not the case of the prosecution that any one had seen the accused persons committing the theft of the aforesaid articles. As such, the prosecution is not able to prove all the ingredients of commission of theft as provided under [SECTION] [ACT]. Even the recovery of aforesaid articles of theft at the instance of accused persons is doubtful, there being no independent witnesses associated with the alleged recovery.
30. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused persons.
31. For the above stated reasons, accused [ENTITY], [ENTITY] and [ENTITY] are all acquitted of the offence punishable under [SECTION] [ACT] and accused FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.11 of 12 [ENTITY] for offence u/[SECTION] [ACT] for which they all were charged. Announced in the open court on 20.01.2015 ([ENTITY]) MM08 (SouthEast):Saket Courts:
New Delhi FIR No. 183/13/11 PS [ENTITY] Colony State vs. [ENTITY] Etc. Page No.12 of 12