No legal proposition that evidence of police officers, unless supported by independent witnesses, is untrustworthy of acceptance: Delhi High Court
There is no legal proposition that if the evidence provided by the police officers is not supported by independent witnesses, it is untrustworthy of acceptance. The Delhi High Court presided over by J. Vibhu Bakhru laid down this ratio in the case of Mohd. Musa vs. State [CRL.A. 271/2017]. In this case, the appellant was convicted for committing an offence punishable under Section 413 of the Indian Penal Code, 1860 by Additional Session Judge, Karkardooma Courts. The appellant was accused guilty in nearly fourteen cases of possessing and selling stolen goods and vehicles when he was caught with a stolen bike at a vehicle checking point. He contended that the accusations were falsely implicated and the police planted stolen vehicles at his resident for recovery, to get off with the burden of solving numerous cases. There was no witness with the police to support their contentions and accusations on thirteen more cases after the appellant pleaded not-guilty before the court. The Delhi High Court contended, “The fact that no independent witness had been joined in the recovery proceedings also does not indicate that the case set up by the prosecution is false.” The court further held, “The contention that the appellant cannot be considered as a habitual offender as he has not been convicted is also erroneous. The appellant is involved in a number of cases as is apparent from the SCRB Report. The same indicates that the appellant is involved in as many as thirty cases and most of the same are under Sections 379/411 of the IPC. Before the concerned ACMM, the appellant had pleaded guilty in the said cases. His statements were made voluntarily and without any force or coercion, to the effect that he was guilty of committing the offences under Sections 379/411/34 of IPC.”
 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 08.01.2021 CRL.A. 271 2017 MOHD. MUSA .....Appellant .....Respondent Advocates who appeared in this case: For the Appellant For the Respondent Mr Roshan Lal Saini Advocate. Mr Ravi Nayak APP for State. HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J The appellant has filed the present appeal impugning a judgment dated 21.01.2017 whereby the Ld. ASJ Karkardooma Courts has convicted the appellant for committing an offence punishable under Section 413 of the Indian Penal Code 1860 hereinafter „IPC‟). By an order dated 28.01.2017 which is also impugned in this appeal the appellant was sentenced to undergo rigorous imprisonment for period of seven years along with a fine of ₹40 000 and in default of payment of fine to undergo simple imprisonment for a further period of one year. CRL A. 271 2017 Briefly stated the facts of the case are that on 05.04.2006 one Riyaz Mohammed lodged an E FIR no. 10208 16 under Section 379 of the IPC regarding theft of his motorcycle bearing no. DL 8SA Z 7225). On 14.04.2016 Special Staff North East apprehended the appellant with stolen vehicles and lodged DD no. 70B regarding the recovery of chassis bearing no. 18145 from the premises of the appellant. Thereafter the appellant was arrested and sent to judicial custody. He was arrested in the present case from the concerned court where he was produced on a production warrant on the allegation that he had been habitually dealing in stolen property and there were a number of cases lodged against him. Further at his instance a number of parts of stolen vehicles were also recovered from his premises including the chassis and number plate of the aforesaid motorcycle. Pursuant to the aforesaid FIR the accused was charged with commission of the offences punishable under Sections 379 411 413 of the IPC. He pleaded not guilty and the matter was set down for trial. During the course of the trial the prosecution examined eight It is the prosecution‟s case that the appellant was apprehended on 12.04.2016 at about 5:00 pm by police officials who were deployed at 66 Foota Road new MCD Court C Block Yamuna Vihar as he was found riding a stolen motorcycleagainst the accused recorded DD No. 12Aand statements of police officials in whose presence the recovery was effected and prepared site plans of place of recovery and the place where accused was arrested and ASI Rakesh Kumar regarding the apprehension of the accused as well as the recoveries made at his instance vide seizure memos Ex.PW4 El to Ex. PW4 E5. His also testified that the appellant was the arrested in kalandara proceedings on the alleged recovery of stolen articles. SI Dhanattar Singh was examined as PW 1. He stated that on 12.04.2016 he was on duty as a Duty Officer at PS Bhajan Pura and at about 10:10 pm SI Shahid Ali recorded DD No. 12A in his presence about his arrival and recovery of items from the possession of the accused. He identified writing of PW 4 from a copy of the aforesaid DD. He also proved the E FIR lodged by the complainant with PS Bhajan Pura. In his cross examination he affirmed that the recovery items were not seen by him. CRL A. 271 2017 Ct. Prem Chand was examined as PW 2. He stated that on 14.04.2016 he was on duty as a Duty Constable at PS Bhajan Pura and at about 7:30 pm he had received information from SI Shahid PW 4) telephonically about the recovery of chassis number plate of the vehicle etc. from the possession of the appellant pertaining to three cases of their police station. He stated that he had recorded DD No. 70Bon the basis of information given by PW 4 and the same was assigned by him to MHC(R) for further action. In his cross examination he denied the suggestion that the aforesaid DD is antedated and ante timed. He also stated that he had no personal knowledge about the recovery of two wheelers at the instance or from the possession of the accused. He denied the suggestion that the aforesaid DD was fabricated by him in connivance with PW 4 to work out the pending criminal cases of different police stations. 10. Riyaz Mohmad the complainant was examined as PW 3. He stated that he is the registered owner of the motorcycle black cherry Passion Crow motorcycle bearing registration No. DL 8SAZ 7225. He stated that he had purchased the aforesaid motorcycle second hand from a dealer and the said motorcycle was transferred in his name about two months back. He stated that on 03.042016 at about 9 pm he had parked the aforesaid motorcycle near one marriage home in the area of Noor e Illahi and at about 10:00 pm he found his motorcycle missing from the said area. Thereafter he had called on Number 100 to report theft of his motorcycle. He stated that the PCR officials came and directed him to contact PS Bhajan Pura. After 1 2 days he again CRL A. 271 2017 visited PS Bhajan Pura as he was not carrying the Registration Certificateof his motorcycle earlier. Thereafter on 05.04.2016 he lodged an E FIR. He stated that during the course of investigation the police had visited the place of theft at his instance and he handed over the RC and copy of his driving license (Ex PW3 B) to the police. He stated that in the month of April 2016 the police officials had told him about the recovery of the chassis of his motorcycle and he identified the same with the help of a serial number. He also identified the chassis of his motorcycle lying in the custody of MHC(M) in the court complex. In his cross examination he stated that neither recovery of the chassis of his motorcycle was done in his presence nor he is aware about the date of such recovery. He further stated that he is not aware from whose possession the chassis was recovered. He stated that one police official of PS Bhajan Pura had told him that the chassis of his motorcycle had been recovered. He identified the said chassis through its serial number with the help of copy of RC. He stated that he did not have the original RC of the motorcycle as the same was lying in the storage compartment when it was stolen. He denied the suggestion that the motorcycle did not belong to him or the same had been planted by the police to work out their pending cases. 12. ASI Rakesh Kumar deposed as PW 5. He stated that on 12.04.2016 he was posted in Special Staff North East District. He stated on that day at about 5 pm SI Shahid HC Vinay Kumar and Ct. Bhullan Tyagi and him were busy in vehicle checking at 66 Feeta CRL A. 271 2017 Road near MCD Office Yamuna Vihar. Thereafter at about 5:30 pm the accusedwas stopped and checked at the vehicle checking spot. He stated that the accused could not produce documents of his motorcycle or his DL to SI Shahid Khan and recorded DD no 12A and placed the same on file which does not bear signatures of SHOP E Police Station. He stated that the same had been taken out of the net and thereafter he passed on information CRL A. 271 2017 through net to E SHO for the present case. He stated that he searched for the aforesaid motorcycle however no clue came forward till 11.04.2016. He stated that on 14.04.2016 copy of DD No. 70Bregarding the chassis and number plate of the stolen motorcycles recovered from the accused was delivered to him by MHC(R). He stated that through the aforesaid DD it came to his notice that chassis and number plate of stolen motorcycle of present case were recovered from the accused. He stated that he placed the aforesaid DD on file and thereafter visited Special Staff North East District and collected copy of kalandara copy of DD No. 12A disclosure statement of the accused site plansfive seizure memosand placed the same on file. He stated that he had also interrogated Special Staff officials namely SI Shahid Ct Bhullan HC Vinay ASI Rakesh under Section 161 of the Cr.PC. Thereafter he stated that on 29.04.2016 the accused appeared before the concerned court and he had formally arrested him vide Arrest Memo prepared by PW 4 is a matter of record. CRL A. 271 2017 He stated that he was arrested by the IO before the concerned court however the disclosure statement was recorded by the IO himself and his signatures were obtained on it without explaining the contents of the same. He stated that he has been falsely implicated in this case and the witnesses have deposed against him as they are interested witnesses. He stated that on 11.04.2016 at about 3 pm he was going to Jama Masjid from his house on his scooty bearing no DL 2SN 1571 with an aluminum nob in his bag and three police officials who were dressed in civil uniform came in front of his house and told him that some inquiry is to be conducted from him at the police station. Thereafter they took him to the police station on his scooty with him sitting in the middle. He further stated that he was detained in the police station from 11.04.2016 12.04.2016. He stated that his brother had visited the police station to inquire about his detention and the IO had demanded bribe of ₹3 00 000 from him. Further he stated that when he refused to give the same the police officials falsely implicated him in a number of cases. 17. The accused further examined himself as DW1. He stated that on 11.04.2016 he was going to Jama Masjid from his house on his scooty bearing no. DL 2SN 1571 with an aluminum nob in his bag. Thereafter three police officials dressed in civil uniform came in front of his house asked his name and informed him that some inquiry had to be conducted. Thereafter he was taken to Yamuna Vihar Special Staff Office with his scooty wherein they enquired about his previous cases and thereafter PW 4 took him to the ACP‟s Office. He stated CRL A. 271 2017 that the ACP had inquired about his mobile number but he had left the same at his home. He stated that he made a call to his nephew from the mobile phone of the ACP. He stated that the ACP had asked him to call 2 3 persons along with his food. Thereafter the ACP inquired as to how much he could arrange to pay SI Shahid in the presence of his brother Khalil and nephew Tayab. He stated that again said SI Shahid had inquired about his financial capacity to pay money in the presence of the ACP. He stated that his brother and nephew refused to pay anything as he was not indulged in any unlawful activity. Thereafter he stated that he was arrested on his failure to pay the amount to SI Shahid and he was produced before the concerned court on 12.04.2016. 18. On cross examination the accused stated that he was going to deliver aluminum nob to one Fayad Bhai at his shop in Gali Gadiya Jama Masjid however he did not know the address of Fayad Bhai but knew his mobile number. He affirmed that he had not brought any document to prove that he was engaged in the business of manufacturing aluminum nob. He stated that at the time of incident he was facing about fourteen cases before different courts and all the cases were pertaining to Sections 379 or 411 of the IPC. He stated that he had not been convicted in any of the cases but one case pertaining to PS Dariya Ganj was compromised. He stated that he had compounded three cases pertaining to PS Dariya Ganj and he had settled three four cases by the way of plea bargaining. He stated that SI Shahid had inquired about his financial capacity and made a CRL A. 271 2017 demand for money but it was made while he was taken away in a corner. He stated that neither he informed the concerned ACP regarding the bribe demanded by PW 4 nor he made any complaint to higher authority against the false implication by PW 4 in the present case as he was not given time to do so. He stated that he had been implicated in fifteen cases after being lifted from his house. He stated that neither he nor his family members have filed any civil or criminal case or complaint against PW 4 or police officials of the concerned PS or ACP regarding the aforesaid. He stated that he was earning ₹18 000 20 000 per month and SI Shahid had demanded ₹3 00 000 from him. He affirmed that he did not make any complaint against any demand. He stated that he had disclosed to the concerned MM that he had been falsely implicated in the present case but no application or written document was filed before the concerned court regarding the same. He denied the suggestion that he was habitually dealing in stolen articles as well as theft and a number of false cases had been lodged against him on account of his involvement in the present case. He denied the suggestion that he had concocted a false story of being lifted from his house or that he had levelled false allegations against the police officials for lodging the said case against him. denied the suggestion that he had deposed falsely. Discussions and Conclusion 19. Mr. Saini learned counsel appearing for the appellant assailed the appellant‟s conviction on multiple grounds. First he submitted that there is a delay in registration of the FIR. The FIR of the said case was CRL A. 271 2017 lodged on 05.04.2016 however the motorcycle bearing no. DL 8SAZ 7225 belonging the complainant was allegedly stolen on 03.04.2016. 20. Second he submitted that the appellant was falsely implicated in the case. He contended that this is apparent from the following:although two wheelers were allegedly recovered no keys were recovered that no independent witnesses were joined in the alleged recovery proceedings and the police officials from PS Jafrabad were not informed although the recovery was effected from a place which was a short distance from the said Police Station. 21. Third he contended that the appellant was apprehended from his residence on 11.04.2016 at about 3.00 p.m. by three police officials and the said recoveries were planted upon the appellant by the police officials. He contended that no recovery was effected from the residence of the appellant and the said motorcycles and spare parts were lying at the office of Special Staff North East Yamuna Vihar. 22. Fourth he contended that the prosecution had failed to establish that the vehicle allegedly stolen belonged to the complainant as the original Registration Certificate was not produced. Fifth he contended that the prosecution had failed to establish the premises from where the recoveries were effected belonged to the appellant. And lastly he contended that the appellant was not convicted and sentenced in any earlier case and therefore it could not be concluded that the appellant CRL A. 271 2017 was a habitual offender. Therefore his conviction for an offence punishable under Section 413 of the IPC is not sustainable. 23. None of the contentions advanced on behalf of the appellant are persuasive. The delay in filing the FIR has been adequately explained by the complainant stated that the concerned ACP had inquired from him as to the amount he could pay to SI CRL A. 271 2017 Shahid. He stated that this inquiry was made in presence of his brother Khalil and his nephew Tayyab. He had then changed his stand and said that SI Shahid had inquired about his capacity to pay the money in presence of the concerned ACP. In his cross examination he stated that SI Shahid Ali had inquired about his financial capacity to pay the amount demanded after he was taken to a corner of the room and at that time the concerned ACP was not watching. He also stated that he did not inform the ACP about the demand raised by SI Shahid nor made any complaint in this regard. In view of the above the appellant‟s stand that any bribe was demanded from him cannot be accepted. 27. The contention that the prosecution had failed to establish that the motorcycle in question was stolen as the original Registration Certificate was not produced is also unmerited. A copy of the said RC had been produced and PW3 had also volunteered that the original RC was in the storage compartment of the motorcycle and therefore only a copy of the RC could be produced. It is also important to note that the chassis number of the vehicle in question had been duly recorded in the FIR which was lodged much prior to the appellant being apprehended. In the circumstances this Court finds no ground to doubt that the motorcycle which was reported to be stolen by the complainant belonged to him. He had also testified to the aforesaid effect. 28. The contention that the prosecution had failed to establish that the address from where the CRL A. 271 2017 recoveries were allegedly effected belonged to the appellant and therefore the appellant was liable to be acquitted is also unmerited. There is no dispute that the appellant was a resident of the given premises. The appellant had in his statement recorded under Section 313 of the Cr.PC also clearly stated that he was a resident of H. No. 1009 Gali No. 33 Jafrabad. The bail bond furnished by the appellant also records the same as his residential address. In view of this admitted position it is not open for the appellant to now suggest that he was not a resident of the said premises. 29. The contention that the appellant cannot be considered as a habitual offender as he has not been convicted is also erroneous. The appellant is involved in a number of cases as is apparent from the SCRB Report (Ex.PW8 4). The same indicates that the appellant is involved in as many as thirty cases and most of the same are under Sections 379 411 of the IPC. During the course of the proceedings the learned APP had also produced orders relating to FIR no. 946 06 and FIR no. 61 07. The said orders indicate that the matters were compounded. Before the concerned ACMM the appellant had pleaded guilty in the said cases. His statement made voluntarily and without any force or coercion to the effect that he was guilty of committing the offences under Sections 379 411 34 of the IPC was recorded. In view of the above the conclusion of the Trial Court that the appellant is guilty of committing an offence punishable under Section 413 of the IPC cannot be faulted. CRL A. 271 2017 31. This Court has evaluated the evidence obtaining in this case and concurs with the view of the Trial Court that the appellant is guilty of an offence punishable under Section 413 of the IPC. 32. The appeal is unmerited and is accordingly dismissed. VIBHU BAKHRU J JANUARY 08 2021 CRL A. 271 2017 