IN THE COURT OF SH. [ENTITY], METROPOLITAN MAGISTRATE 03 (WEST), THC, DELHI. FIR No.529/2006 PS Nangloi State Vs. [ENTITY] etc. Unique Case ID No.02401R12879820096 J U D G M E N T
(a) Sr. No. of the case 788/1/08 (b) Dates of offences 31.05.2006, 16.06.2006, 15.07.2006 (c) Complainant [ENTITY] S/o Sh. [ENTITY] R/o H. No.17, Pole No.25, Near Hanuman Mandir, Mundka, New Delhi. (d) Accused persons (1) [ENTITY] S/o Sh. [ENTITY] R/o 15/148, Kachcha Bagh, Mohalla Jatwada, Bahadurgarh, Haryana. (2) [ENTITY] S/o [ENTITY] R/o Village Kanjhawala, New Delhi. (3) [ENTITY] S/o [ENTITY] R/o Village Mundka, New Delhi. (4) [ENTITY] S/o [ENTITY] R/o 515, [ENTITY], Village Kanjhawala, New Delhi. (5) [ENTITY] S/o [ENTITY] R/o Village Rasulpur, New Delhi. (e) Offence(s) Under [SECTION], [SECTION] and [SECTION] of The [ACT] read with [SECTION] of The [ACT]. (f) Plea of accused Pleaded not guilty (g) Final Order Acquitted (h) Date of institution 14.08.2006 (i) Date when judgment Not reserved was reserved (j) Date of judgment 25.06.2014
1. In the present case, all five accused persons have been charge sheeted for committing offences punishable under [SECTION], [SECTION] and [SECTION] of The [ACT] read with [SECTION] of The [ACT]. The allegations against accused persons as detailed in the chargesheet are that on 31.05.2006 at about 07:15 pm at Plot No.773/I, Firni Road, Pasco Godown, Mundka, New Delhi, accused persons namely [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] committed robbery of one WagonR car and one mobile phone from warehouse of Pasco Automobiles by tying up the Security Guard and putting him fear of instant death or wrongful restraint or instant hurt and further that on 16.06.2006, above WagonR car was recovered from the possession of accused [ENTITY] and [ENTITY], one bumper of said WagonR car was recovered at instance of accused [ENTITY] on 15.07.2006, another bumper of said WagonR car was recovered at instance of [ENTITY] on 12.09.2006 and one stepney of said WagonR car was recovered at instance of accused [ENTITY] on 01.09.2006. According to the prosecution, all accused persons have committed offences punishable under [SECTION], [SECTION] and [SECTION] of The [ACT] read with [SECTION] of The [ACT].
2. After completion of investigation, chargesheet was filed. The accused persons were supplied with copies in compliance of [SECTION] of The [ACT]. Charge was framed under [SECTION], [SECTION] and [SECTION] of The [ACT] read with [SECTION] of The [ACT] against all accused persons vide orders dated 09.10.2006 and 14.02.2007 to which the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Prosecution adduced evidence in support of its case. PW1 [ENTITY] has proved and exhibited formal FIR No.529/2006 of PS Nangloi Ex.PW1/A in his evidence. PW1 was examined, not crossexamined by accused persons despite opportunity given and was discharged.
4. PW2 [ENTITY] has proved and exhibited formal FIR No.303/2006 of PS Chandni Chowk Ex.PW2/A in his evidence. PW2 was examined, not cross examined by accused persons despite opportunity given and was discharged.
5. PW3 [ENTITY] has deposed that on 31.05.2006, he was working as security guard at Pasco Mundka, Delhi and was on duty from 08:00 pm (30.05.2006) to 08:00 am (31.05.2006). At about 07:15 am of 31.05.2006, two persons aged about 24 - 25 years out of whom, one was slightly fat and other was thin came inside the premises after jumping the boundary wall. They asked him when his boss will arrive and he told them that he will arrive at 09:00/09:30 am. On this, they both took him to a room built in front of gate and tied his hands and legs and thereafter, closed the room from outside. At about 08:15 pm, one [ENTITY] arrived and told him that WagonR silver colour has been taken away by accused persons. They informed General Manager, [ENTITY] who came at godown alongwith police. Both persons also took away his mobile phone make Nokia 1100 having number 9871632626. Police recorded his statement Ex.PW3/A and prepared site plan at his instance. Sketch of accused persons were prepared at Rajouri Garden, Computer Center on the basis of his memory. PW3 was examined, crossexamined Ld. APP for the state, crossexamined by accused persons and was discharged.
6. PW4 [ENTITY] has deposed that on 31.05.2006, he reached the godown about 07:30 am and saw the gate of godown opened and guard tied up with a wire. The guard told him that 15 - 30 minutes before, few persons have forcibly taken away WagonR car. He informed the GM [ENTITY] who arrived with police at the spot. Police inquired from [ENTITY] and joined him for search of WagonR car, but in vain. PW4 was examined, crossexamined by Ld. APP for the state, cross examined by accused persons and was discharged.
7. PW5 [ENTITY] has deposed that on 16.06.2006, accused [ENTITY] and [ENTITY] who were under arrest in case FIR No.617/2006 made disclosure of FIR No. 529/2006 and were arrested by SI [ENTITY] formally vide Ex.PW5/A and Ex.PW5/B respectively and were searched vide memos Ex.PW5/C and Ex.PW5/D respectively. PW5 was examined, crossexamined by accused persons and was discharged.
8. PW6 Ct. [ENTITY] has deposed that on 31.05.2006 at about 08:30 am, [ENTITY], Manager [ENTITY] came at PS and told that two boys on gun point have looted a WagonR car from their godown. He alongwith SI [ENTITY] went at the spot where guard [ENTITY] met them and SI recorded his statement, prepared [ENTITY] on the same and handed over to him to get FIR registered. He went to PS, got FIR registered, came back at the spot alongwith copy of FIR and original [ENTITY] and handed over to IO. IO got prepared sketch of accused persons on the instance of guard [ENTITY]. PW6 was examined, crossexamined by accused persons and was discharged.
9. PW7 SI [ENTITY] has deposed that on 16.06.2006, both accused persons namely [ENTITY] and [ENTITY] made disclosure of present FIR to SI [ENTITY] in FIR No.617/2006 vide Ex.PW7/A and Ex.PW7/B respectively. IO SI [ENTITY] arrested both accused persons vide Ex.PW5/A and Ex.PW5/B and personally searched them vide Ex.PW5/C and Ex.PW5/D respectively. SI [ENTITY] recorded disclosure statements of accused [ENTITY] and [ENTITY] of present FIR vide Ex.PW7/C and Ex.PW7/D respectively. On 16.06.2006, he alongwith [ENTITY], HC [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY] and Ct. [ENTITY] were on patrolling duty on Firni Road, Mundka. At about 07:25 pm, he received secret information of 2 - 3 notorious persons moving in a vehicle. He asked 2 - 3 persons to join raiding party, but none agreed and thereafter, without wasting time, he constituted raiding party consisting of [ENTITY], HC [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY] and Ct. [ENTITY] and put barricades near Katha Factory and started vehicle checking. At about 07:30 pm, one WagonR of gray colour without number plate came from industrial area side. They gave signals to stop and same stopped 20 - 25 steps ahead. Three persons came out of the same and one started firing towards them and running from the spot. They chased them and managed to apprehend two of them and they revealed their names as [ENTITY] and [ENTITY]. He conducted their personal search and on the same, country made pistol was recovered from accused [ENTITY] and buttondar knife was recovered from the possession of the accused [ENTITY]. He seized WagonR vide Ex.PW7/E and thereafter, investigation of FIR No.617/2006 was conducted by SI [ENTITY]. He identified accused [ENTITY] and [ENTITY] in the Court and identified photographs Ex.P2 also. He deposed in his crossexamination that D. D. Entry was made in respect of his patrolling duty, however, he does not remember the D. D. Number. PW7 was examined, crossexamined by accused persons and was discharged.
10. PW8 [ENTITY] has deposed that on 31.05.2006, he was posted as mechanic at godown of Maruti at Nangloi, Mundka and on that day at about 07:45 am, he reached office and found guard [ENTITY] tied with a rope in a room and observed that one WagonR car VXI has been stolen. PW8 was examined, cross examined by accused persons and was discharged.
11. PW9 Ct. [ENTITY] has deposed that on 11.07.2006, he alongwith HC [ENTITY] were on patrolling duty on secret information. Secret informer had informed that 2 - 3 persons are walking on the road and one of them wearing track suit has knife in his possession. IO asked 2 - 3 persons to join the investigation, but none of them agreed. They apprehended accused [ENTITY] and on his cursory search, buttondar knife was found from his left pocket which IO seized vide Ex.PW9/A. IO prepared [ENTITY] and sent to PS for registration of FIR No.303/2006 of PS Chandni Chowk. He went to PS, got FIR registered and came back alongwith copy of FIR and original [ENTITY] and handed over to IO. 2nd IO [ENTITY] came at spot and prepared site plan. Accused disclosed his involvement in many cases including present one. He identified accused [ENTITY] in this case. PW9 was examined, crossexamined by accused persons and was discharged.
12. PW10 [ENTITY] has deposed that on 11.07.2006, on receipt of call, he went to SPM Marg where HC [ENTITY] met him and handed [ENTITY] along with recovered knife to him. He arrested accused [ENTITY] in FIR No.303/2006 of PS Chandni Chowk and he disclosed his involvement vide Ex.PW9/B of present case. IO of present case recorded his statement. He identified accused [ENTITY] in the Court. PW10 was examined, crossexamined by accused persons and was discharged.
13. PW11Ashwani Kumar has proved and exhibited superdarinama Ex.PW1/A, RC of vehicle Ex.PW1/B, vehicle WagonR as Ex.P1 and photographs of the vehicle DL4CAA6090 WagonR having engine number 4243562 and chassis number 419813 as Ex.P2 (Collectively). PW11 was examined, not crossexamined by accused persons despite opportunity given and was discharged.
14. PW12 [ENTITY] has deposed that on 15.06.2006, he along with SI [ENTITY] went to Rohini Court where [ENTITY] was produced on production warrants. IO SI [ENTITY] took permission and arrested accused [ENTITY] vide Ex.PW12/A. Took one day PC of accused [ENTITY] and recorded his disclosure Ex.PW12/B. Prepared pointing out memo Ex.PW12/C and further recovered bumper of the WagonR car from Ghevra - Kanjhawala Road on his instance and seized vide Ex.PW12/D. He identified accused [ENTITY] and bumper as Ex.P2 in his evidence. PW12 was examined, crossexamined by accused persons and was discharged.
15. PW13 Inspector [ENTITY] has deposed that on 21.05.2006, Mr. [ENTITY], M. D. of Pasco reported regarding incident of theft of WagonR car. He alongwith Ct. [ENTITY] went to godown of Pasco, Firni Road, Mundka where complainant [ENTITY] met them. He recorded statement of complainant Ex.PW3/A, made endorsement Ex.PW13/A and handed over to Ct. [ENTITY] for registration of FIR, who went to PS, got FIR registered and came at the spot along with copy of FIR and original [ENTITY]. He prepared site plan at instance of Baljeet Ex.PW13/B. On 16.06.2006, SI [ENTITY] apprehended [ENTITY], [ENTITY] in case FIR No.617/2006 of PS Nangloi which was also handed over to him for investigation and went there and arrested [ENTITY] and [ENTITY] in case FIR No.617/2006. [ENTITY] disclosed his involvement in present FIR vide Ex.PW7/C and he arrested him vide Ex.PW5/A, searched him vide Ex.PW5/C. He recorded disclosure of [ENTITY] Ex.PW7/G and arrested him vide Ex.PW5/B and searched him vide Ex.PW5/D. Since, accused [ENTITY] was arrested by Special Staff. He applied for production warrants in Rohini Courts and arrested him on production vide Ex.PW12/A and searched him vide Ex.PW13/C. Recorded his disclosure vide Ex.PW12/B and also prepared pointing out memo at his instance as Ex.PW12/C. He took accused [ENTITY] to Ghevra - Kanjhawala road and recovered broken bumper of WagonR car at instance of accused [ENTITY] and seized vide Ex.PW12/D and filed challan against [ENTITY], [ENTITY] and [ENTITY] on 10.08.2006. On 30.08.2006, he got information that [ENTITY] has been arrested in PS Bahadurgarh. On 31.08.2006, [ENTITY] surrendered in the Court and he formally arrested him vide Ex.PW13/D and searched him Ex.PW13/E and recorded his disclosure vide Ex.PW13/F. On 01.09.2006 on instance of [ENTITY], he recovered stepny of WagonR car from DDA Flats, Bakkarwala and seized it vide Ex.PW13/G. On 04.09.2006, [ENTITY] was produced on production warrants and he arrested him vide Ex.PW13/H and searched him vide Ex.PW13/I. He recorded disclosure of [ENTITY] as Ex.PW13/J. On 12.09.2006 at instance of accused [ENTITY], one bumper was recovered from his house at Village Rasulpur and he seized it vide Ex.PW13/K. He tried to search the weapon of offence, but in vain. He filed supplementary challan for judicial verdict. He correctly identified all the accused persons in the Court. He identified stepny as Ex.P3 and one broken bumper as Ex.P4. PW13 was examined, crossexamined by accused persons and was discharged.
16. On 29.05.2014, further prosecution evidence was closed by this Court. STATEMENT OF ACCUSED PERSONS
17. After closure of prosecution evidence, statements of all accused persons were recorded under [SECTION] of The [ACT] separately. Incriminating evidence was put to them. They denied all the allegations and stated that they are innocent and have been falsely implicated in this case. Accused persons opted not to lead evidence in their defence.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS
18. In this case, prosecution has examined thirteen witnesses. The PW3/complainant [ENTITY] and PW4 [ENTITY] are the main witnesses regarding the incident of robbery in question. The complainant/PW3 has not identified any of the accused in the Court as being among the persons who had committed robbery. PW4 [ENTITY] reached the spot of incident of robbery after the robberers had left the same. Though, the pointing out memos are on record, but, since the place of robbery was already known to the police, therefore, they are of little value. In these circumstances, there is no convincing and reliable evidence on record to connect the present accused persons with the robbery of this matter and therefore, are liable to be given benefit of doubt for the same.
19. Now, this Court is considering the matter qua offence punishable under [SECTION] of The [ACT] against the accused persons. It is the case of the prosecution that WagonR car of gray colour i.e. case property was recovered from the possession of accused [ENTITY] and [ENTITY] near katha factory at about 07:30 pm on 16.06.2006, one bumper of said WagonR car was recovered at the instance of accused [ENTITY] from fields of Ghevra - Kanjhawala road on 15.07.2006, another bumper of said WagonR car was recovered at the instance of accused [ENTITY] on 12.09.2006 from his house at Village Rasulpur and stepny of said WagonR car was recovered from DDA Flats, Bakkarwala on instance of accused [ENTITY] on 01.09.2006.
19.1 In this matter, the place of recovery of WagonR car is a public way and is busy road. Considering the time of recovery in question, number of public persons would have been present at the time of recovery. The place of recovery of bumper at the instance of accused [ENTITY] as deposed is also public place where number of public persons would have been present at the time of recovery. The places of recovery of bumper and stepney at the instance of accused [ENTITY] and [ENTITY] respectively are busy residential areas where number of public persons would have been present at the time of recovery. No concrete efforts were made by the police to join the public persons at the time of recovery. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In the opinion of this Court, the nonjoining of public witness is fatal to the prosecution case, particularly when no convincing explanation has been given by prosecution for not joining public witnesses.
19.2 In case titled as "[PRECEDENT]" decided on 1st May, 2014 by Hon'ble High Court of Delhi wherein it was observed as under : "4 No independent public witness was associated at any stage of investigation. No reasonable or plausible explanation has been offered by SI [ENTITY], In charge of raiding party team and SI [ENTITY] who took over the investigation subsequently for not associating any public witness despite having ample time and opportunity. The proceedings were conducted at the spot till around 12:00 (night). Nonjoining of independent witness to the recovery creates serious doubt about the genuineness of the prosecution case. It is no rule of law, but of prudence that public witnesses should be joined. This is desired to lend authenticity and credibility to the search and recovery "
In the case of "[PRECEDENT], it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "[PRECEDENT], it has been held as under : "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "[PRECEDENT], in which it was observed as follows : "[ENTITY] has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near [ENTITY] Bazar. According to [ENTITY], he did not join any public witness in the case while according to [ENTITY], no public person was present there. It hardly stands to reason that at a place like a bus stop near [ENTITY] Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused. In the case of "[PRECEDENT], the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "[PRECEDENT], conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "[PRECEDENT], it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "[PRECEDENT] and "[PRECEDENT], it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
19.4 The identity of the bumpers and the stepney as alleged to be recovered as being part of the stolen property in question is also doubtful. No D. D. Entry is proved on record regarding the leaving of the police station for patrolling duty by PW7 and other officials on 16.06.2006, the date of alleged recovery of WagonR car and PW7 was also not able to tell the number of the same in his crossexamination, which makes the case of the prosecution qua said recovery more doubtful. The benefit of the same shall also go to the accused persons.
20. In view of the abovesaid discussions, all accused persons namely [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] are hereby given benefit of doubt in this matter and therefore, are hereby acquitted for the offences for which they have been charged in this matter.
Announced in the open Court on June 25, 2014.
([ENTITY]) M.M.03/THC (West), Delhi/25.06.2014