IN THE COURT OF [ENTITY], METROPOLITAN MAGISTRATE - 03 (WEST), TIS HAZARI COURTS, DELHI - 110 054. FIR No.217/2008 PS - Nangloi State Vs. [ENTITY] etc. Unique Case ID No.02401R0162132011 J U D G M E N T
(a) Sr. No. of the case 1766/1/08 (b) Date of offence(s) 08.05.2008 (c) Complainant [ENTITY] S/o Sh. [ENTITY] R/o R - 38, Budh Vihar, Phase - I, New Delhi. (d) Accused person(s) (1) [ENTITY] S/o Sh. [ENTITY] R/o Near Biscuit Factory C/o Rathi Ka Makan, Nihal Vihar, Nangloi, New Delhi. (2) [ENTITY] S/o Sh. [ENTITY] R/o RZ - C/146, Kabada Godown, Vishnu Garden New Delhi also
at Village Chamroli, PO Sikandara, District Hathras, Uttar Pradesh.
(3) [ENTITY] S/o Sh. [ENTITY] R/o K
- 2/200 & K - 2/17 C/o [ENTITY], Near PP Nihal Vihar, Nangloi, New Delhi - 110 041 also at D - 7, Vikas Nagar, Uttam Nagar, New Delhi.
(e) Offence(s) Under [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 07.07.2008 (i) Date when judgment Not Reserved was reserved (j) Date of judgment 16.12.2015
1. The brief facts of the case are that accused persons have been charge sheeted for committing offence punishable under [SECTION] of The [ACT] read with [SECTION] of The [ACT]. The allegations against the accused persons are that on 08.05.2008, accused persons were found in possession of stolen articles which they have retained/received dishonestly in furtherance of their common intention and having reason to believe that the said articles were stolen. According to prosecution, accused persons have committed offence punishable under [SECTION] of The [ACT] read with [SECTION] of The [ACT].
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to accused persons in compliance of [SECTION] of The [ACT]. Charge under [SECTION] of The [ACT] read with [SECTION] of The [ACT] was framed against the accused persons vide order dated 27.11.2012 to which they pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
3. In order to prove its case of recovery, prosecution has examined PW1. PW1 [ENTITY] in gist has deposed that on 08.05.2008, he was posted as SOS Crime Branch at Sunlight Colony. At about 02:30 pm, [ENTITY] received information through secret informer that one thief namely [ENTITY] would come to sell stolen articles with his associates at about 04:00 pm at Jawala Heri Market, Paschim Vihar. [ENTITY] shared the information with Inspector [ENTITY]. On instructions of Inspector [ENTITY], one raiding party was prepared under supervision of SI [ENTITY] including him and [ENTITY]. D.D. Entry was lodged by [ENTITY]. They all with secret informer proceeded towards Jawala Heri Market, Paschim Vihar on private vehicle and reached there at about 04:00 pm. IO [ENTITY] asked 4 - 5 public persons to join investigation after disclosing the information, but, none agreed and left the spot citing their own problems. At about 04:30 pm, they apprehended accused persons on instance of secret informer. Accused [ENTITY] was having one bag in his hand of black and blue colour on which Tata Indicom was printed. Other two accused persons were having one sack jointly in their hands. On checking, IO [ENTITY] found 14 mobile phones and one box containing silver and gold jewelry in the bag held by accused [ENTITY]. The accused [ENTITY] was not able to tell or explain their possession. The same were seized by IO [ENTITY]. Then, IO [ENTITY] checked the sack which was held by accused [ENTITY] and [ENTITY] and found number of electronic items like DVD, Speakers, Computers etc. They were inquired about the same and were not able to give satisfactory reply regarding articles in their possession. The same were taken into possession by IO [ENTITY]. IO interrogated all three accused persons, recorded their disclosure statements and arrested accused persons vide arrest memos Ex.PW1/A, Ex.PW1/B, Ex.PW1/C respectively in kalandra under [SECTION] [ACT] All three accused persons were taken to PS, case property was deposited at malkhana of PS Paschim Vihar, accused persons were medically examined and thereafter, were lodged in PS. Next day, they were produced before the Court. PW1 was examined, crossexamined by accused persons and was discharged.
4. Hon'ble Supreme Court of India in matter of "[PRECEDENT] & Ors." 1996, JCC 07 has held that : "in a case, where, there is no prospect of the case ending in conviction, the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on the future date."
In this matter, further prosecution evidence was closed today as the complainant/main witness in this matter namely [ENTITY] remained untraceable despite being summoned through all possible means and consequently, his name was deleted from list of witnesses and further since no public witness was joined in investigation of present matter at the time of recovery of alleged case property which is clear from evidence of PW1 and further due to fact that no useful purpose would have been served by examining the remaining prosecution witnesses as they were either formal witnesses or official witnesses.
STATEMENT OF ACCUSED
5. After closure of prosecution evidence, statements of accused persons were recorded under [SECTION] of The [ACT] read with [SECTION] of The [ACT] separately. Incriminating evidence was put to them. Accused person denied all the allegations and stated that they are innocent and have been falsely implicated in this case and further stated that witness has deposed falsely against them. Accused persons opted not to lead evidence in their defence.
6. Final arguments heard from both sides.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS 7.1 In this matter, main complainant [ENTITY] could not be examined as he remained untraceable despite being summoned through all possible means. In absence of examination of complainant on record, there is no evidence on record that theft of any article(s) took place from the possession of any person. Once, the factum of theft of articles in question from the possession of any person is not proved, status of the alleged case property as being stolen case property becomes quite doubtful, therefore, charge for offence punishable under [SECTION] of The [ACT] fails for which accused persons have been charged in this matter. 7.2 Now, if we take the case of recovery in this matter for sake of consideration of offence punishable under [SECTION] of [ACT], the same is also not believable in given circumstances. The recovery was effected at a busy market. The witness has not deposed regarding any concrete effort being made by them to join any public witness in the recovery. No written notice was served. The names of public persons who refused to join investigation were not recorded. The testimony of official witness does not find any corroboration from any independent source. In view of this Court, the nonjoining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
7.3 In matter of "[PRECEDENT], Hon'ble High Court of Delhi held that : "It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the [ACT] .
In matter of "[PRECEDENT], Hon'ble Punjab & Haryana High Court held that : "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 .
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 witness's 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] it has been observed as under : "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "[ENTITY] Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, 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 Subhash 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 Subhash 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.
7.4 In view of the above fact that recovery was effected from a busy market, no independent public person was joined in the investigation despite their availability at the spot at the time of alleged recovery and the seizure memos were not got signed from any public person, the recovery in this matter is quite doubtful. Furthermore in this matter, seal after use was not handed over to any independent person by investigating officer and the same also creates a doubt whether the case properties were genuinely recovered in this matter or not. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as [CASE NUMBER]. In view of the same, since, recovery is doubtful, therefore, accused persons are also entitled to benefit of doubt in this matter for offence punishable under [SECTION] of The [ACT].
8. In view of the aforementioned facts and circumstances, accused persons [ENTITY], [ENTITY] and [ENTITY] are hereby given benefit of doubt in this matter and are hereby acquitted for the offence punishable under [SECTION] of The [ACT] read with [SECTION] of The [ACT].
Announced in the open Court on December 16, 2015.
([ENTITY]) MM03/THC (West), Delhi/16.12.2015