Delhi District Court
State vs Anup Sharma & Ors. on 12 October, 2015
IN THE COURT OF MS.AMBIKA SINGH:METROPOLITAN MAGISTRATE-06
CENTRAL DISTRICT: TIS HAZARI COURTS
DELHI
FIR No. 398/98
State V/s Anup Sharma & Ors.
U/S : 407/411 IPC
PS Sadar Bazar
CC No. 353/2
U. ID No. 02401R0652282003
Date of Institution : 10.12.1999
Date of commission of offence : 25.10.1998
Name of the complainant : Prem Chand Jain
Name and address of accused : i) Sanjay @ Gojjhar, S/o Sh.
Baleshwar, R/o Village Vinoba
Bujurg, PS Gulhora, Distt. Sidarth
Nagar, U.P (Also at: H. No. 11033,
Gali Peepal Wali, Motia Khan,
Sadar Bazar, Delhi) (since expired)
ii) Umesh Kumar, S/o Sh.
Jaishree, R/o Village Parsa
Khurd, PS Katauli, Distt.
Siddharth Nagar, UP (Also at: H.
No. 11033, Gali Peepal Wali,
Motia Khan, Sadar Bazar, Delhi).
iii) Harender Singh, S/o Sh.
Shyam Singh, R/o Village
Guadtala, PS Parishan, Distt.
Podhi Garhwal, UP (Also at: H.
No. 7210, Kutub Road, Nabi
Karim, Delhi).
FIR No. 398/98 State Vs Anup Sharma etc. 1/17
iv) Anup Sharma, S/o Sh. K.L.
Sharma, R/o 85, Jaan Park,
Chander Nagar, Delhi.
v) Ram Behel @ Kaliya, S/o
Sh.Baliram, R/o Village Baghni
Nankaar, PS Pashra Bazar, Distt.
Siddarth Nagar, UP.
Offence charged with : Section 407 IPC against accused
Ram Behel @ Kaliya
Section 411 IPC against accused
persons namely Umesh Kumar,
Harinder Singh and Anup Sharma
Plea of guilt : Pleaded not guilty
Final Order : Accused Ram Behel @ Kaliya
convicted u/s 407 IPC
Accused persons namely Umesh
Kumar, Harinder Singh and Anup
Sharma convicted u/s 411 IPC.
Date on which order has been reserved: 03.09.2015
Date of pronouncement of Judgment : 12.10.2015
JUDGMENT
1 The Prosecution has filed the present case against the accused persons namely Umesh Kumar, Harinder Singh, Anup Sharma, Sanjay @ Gojjhar and Ram Behel @ Kaliya for the offences u/s 407/411 IPC.
2 In brief, the case of the prosecution is that on 24.10.1998 at 2.30PM at shop No. 9, Rehman Market, Sadar Bazar, Delhi accused Ram Mehal @ Kalia FIR No. 398/98 State Vs Anup Sharma etc. 2/17 being as a carrier entrusted with 18 bags of chemical weighing 360 kgs by complainant Prem Chand Jain for making delivery of the same to Aassi Rubber Chemicals and Lakki Chemicals committed criminal breach of trust in respect of said chemicals as accused Ram Mehal had not consigned the said chemicals to the abovesaid parties and thereby committed the offence u/s 407 IPC. On 25.10.1998 at unknown time at Godown Prakash Road Lines, accused Umesh Kumar, Harinder Singh and Anup Sharma were found in possession of aforesaid 18 bags of chemicals belonging to complainant Sh. Prem Chand Jain which accused persons had retained knowing or having reasons to believe the same to be stolen property and thereby committed offence punishable u/s 411 IPC.
It is pertinent to mention here that during the course of trial, before framing of charge, accused Sanjay got expired and accordingly, proceedings against him stands abated vide order dated 20.07.2001.
3. Thereafter on completion of investigation, the charge sheet was filed against the accused persons and a charge for the offence punishable u/s 407 IPC was framed against accused Ram Mehal @ Kalia and a charge for the offence punishable u/s 411 IPC was framed against accused persons namely Umesh Kumar, Harinder Singh and Anup Sharma on 29.05.2002, to which accused persons pleaded not guilty and claimed trial.
4 To prove its case, the prosecution has examined the following witnesses:
5 PW-1 Sh. Prem Chand Jain deposed that on 24.10.1998, he entrusted 18 bags of rubber chemicals of 360 kgs with rickshaw puller named Kalia to deliver the same to two parties at Jhandewalan and at Kirti Nagar from shop No. 9, Rehman Market, Sadar Bazar, Delhi at about 2.00-2.30 PM but the said goods were not delivered to the parties till evening. Then the complainant / PW1 FIR No. 398/98 State Vs Anup Sharma etc. 3/17 searched the same rickshaw puller Kalia but no clue was found. Thereafter, PW1/complainant reached at PS Sadar Bazar at about 9.00 - 9.30 PM and lodged the FIR. Police official of PS Sadar Bazar registered a case by recording his statement which is Ex. PW1/A. Thereafter police came to the spot and prepared the site plan at the instance of this witness and this witness handed over the bill of said goods to the IO who took the same into possession and prepared the seizure memo Ex. PW1/B. Police searched the accused. The witness further deposed that the police arrested one person who was relative of Kalia and the said person got recovered all the 18 bags of rubber chemicals from a godown situated at Nabi Karim. On 25.10.1998 in presence of PW1/ complainant. Thereafter, the IO seized the said recovered rubber chemicals into possession vide seizure memo Ex. PW1/C after identifying the said goods by him. The said godown belonged to Prakash Road Lines. The said godown was opened with the keys provided by a person, who was looking after the said godown for 24 hours. The said relative of the accused who got the said goods recovered was apprehended by the police. The said goods were released on superdari vide superdarinama Exh. PW1/D. He correctly identified the accused Ram Behel @ Kaliya as present in the Court that day. Police arrested accused Umesh and Sanjay vide arrest memo Ex. PW1/E and Ex. PW1/F and taken the accused persons alongwith him to the godown of Harinder situated at Prakash Road Line, Nabi Karim where accused Harinder was present there who opened the lock of the godown and got recovered 18 bags of rubber chemicals which were kept inside the said godown. Accused Harinder disclosed that the said bags of chemicals were kept by accused Umesh and Sanjay. Police arrested accused Harinder vide his personal search memo Ex. PW1/G. Police took the said 18 bags of chemical into possession from the godown and thereafter they brought the said bags to PS which the witness correctly identified the same at the godown itself.
FIR No. 398/98 State Vs Anup Sharma etc. 4/17
6. PW2 SI Chander Pal deposed that on 27.07.1999, he was posted as ASI at PS Sadar Bazar. On that day, he had come to the Court with the report under Section 82 Cr. PC regarding accused Ram Behel. Accused Ram Behel had surrendered before the court and this witness moved an application for formal arrest and interrogation. After permission of the court, PW2 arrested the accused Ram Bahal vide arrest memo Ex. PW2/A and moved an application for JC remand of accused which is Ex. PW2/B and thereafter handed over the case tile to the MHC(M).
7. PW3 SI Ved Prakash deposed that on 24.10.1998 he was posted as SI and on the day, investigation of the present case was assigned to him. The duty officer handed over to him the copy of FIR. Complainant Prem Chand Jain was also present at PS. Thereafter he alongwith complainant Prem Chand Jain and Ct. Anant Ram reached at the spot, i.e., Pan Mandi, Sadar Bazar where he prepared site plan at the instance of complainant / PW1 Sh. Prem Chand Jain which is Ex. PW3/A bearing his signature at point A. On the same very day in the night they reached at Gali Peepal Wali where they met with accused Umesh and Sanjay. This witness interrogated them and at that time, the complainant told him that Umesh, Sanjay and one another accused namely Ram Bahal were also a rickshaw puller. That during sustained interrogation, the accused Umesh and Sanjay confessed their involvement in the crime and also told that they had sold the goods in question, i.e. rubber chemicals to Parkash Road lines at Nabi Karim. Accused Umesh and Sanjay were arrested vide arrest memos Ex. PW3/B and Ex. PW3/C respectively. Personal search of the accused persons were conducted vide personal search memo Ex. PW3/D and Ex. PW3/E and thereafter this witness recorded the disclosure statement of both the accused persons namely Umesh and Sanjay vide disclosure statements Ex. PW3/F and Ex. PW3/G. Thereafter this witness alongwith complainant and both the accused FIR No. 398/98 State Vs Anup Sharma etc. 5/17 persons reached at Parkash Roadlines, Nabi Karim where they met with another accused Harender who pruduced the key of the godown from where the case property, i.e., rubber chemicals were recovered which was seized vide seizure memo Ex. PW1/C. Accused Harender was arrested and his personal search was conducted vide memos Ex. PW3/H and Ex. PW3/H respectively and thereafter disclosure statement of accused Harender was recorded by this witness vide disclosure statement Ex. PW3/I. He further deposed that the case property was deposited in the Malkhana of PS Sadar Bazar. All the accused persons were produced before the court from where accused Anup was granted bail. He collected the photocopy of bill from the complainant regarding the rubber chemicals vide seizure memo Ex. PW1/B. Photocopy of the bills is marked as Mark X (colly.). The copy of builty was collected from the accused Anup and seized vide seizure memo Ex. PW3/J. After the completion of the investigation, he prepared charge-sheet against the accused persons and filed in the court.
8. PW4 retired ASI Braham Pal Singh deposed that on 24.10.1998, he was posted at PS Sadar Bazar as duty officer from 4.00 PM to 12.00 mid night. On that day at about 9.45 PM, complainant Prem Chand Jain came to PS and gave his oral statement and on the basis of his statement, he lodged FIR No. 398/98. Copy of which is Ex. PW4/A.
9. PW5 Inspector Sunil Kumar deposed that on 10.08.1999, he was posted as SI at PS Sadar Bazar and on that day, JC remand of one of the accused namely Ram Bahal was expiring in this case and main IO of the case was on leave. Hence, the case file of this case was handed over to him and he moved an application before the court to extend the judicial custody remand on 10.08.1999 and 24.08.1999 on his applications which are Ex. PW5/A and Ex. PW5/B and the court extended the judicial custody.
FIR No. 398/98 State Vs Anup Sharma etc. 6/17
10. After conclusion of prosecution evidence, statement of the accused
persons u/s 313 r/w Section 281 Cr.PC was recorded by the court in which they have stated that they are innocent and that they have been falsely implicated in the present case. However, on furnishing application under Section 311 Cr. PC, opportunity of defence evidence was given to the accused persons.
11. In their defence, the accused persons have examined the Sh. Atar Singh as DW1, who deposed that he knew the accused Anup Sharma from the year 1980 and they are on family terms to each other. The accused Anup has a good reputation in the society and he has one son and one old age parent. He further deposed that he came to know about present case on 25.10.1998. He accompanied the accused to PS Sadar Bazar alongwith one Anish Ahmed on 25.10.1998 at about 2.30 PM as accused had made a telephonic call to him. At PS the police officials demanded money from the accused else the accused would be implicated in a false case and on refusal of the accused, he has falsely implicated in the present case. He never seen accused quarreling with anybody.
12 DW2 Sh. Vilas has deposed that he knew the accused Ram Behel since his childhood and that the accused belonged to his native village. The accused has a good reputation in the society. He came to know about the present case on 24.10.1998 and accompanied the accused to PS Sadar Bazar. In the police station, the police officials demanded money from the accused, else the accused would be implicated in a false case. On refusal by the accused, he was falsely implicated in the present case by the police officials.
13 DW3 Sh. Gambhir Singh has deposed that he knew the accused Harender since his childhood. The accused has a good reputation in the society. He came to know about the present case on 24.10.1998 and accompanied the FIR No. 398/98 State Vs Anup Sharma etc. 7/17 accused to PS Sadar Bazar. In the police station, the police officials demanded money from the accused, else the accused would be implicated in a false case. On 25.10.1998 he alongwith the accused again went to PS Sadar Bazar and had some negotiations with the police officials. On refusal by the accused to make the money demand, he was falsely implicated in the present case by the police officials. He had never seen the accused quarreling with anybody.
14 DW4 Sh. Raju deposed that he knew the accused Umesh since his childhood, as the accused was a resident of his nearby village. The accused has a good reputation in the society. He came to know about the present case on 24.10.1998 and accompanied the accused to PS Sadar Bazar, where he remained for about 4 hours. In the police station, the police officials demanded money from the accused, else the accused would be implicated in a false case. On 25.10.1998 he alongwith the accused again went to PS Sadar Bazar and had some negotiations with the police officials. On refusal by the accused to make the money demand, he was falsely implicated in the present case by the police officials. He had never seen the accused quarreling with anybody.
15 I have heard the arguments raised on behalf of the parties and have gone through the record carefully. After going through the complete evidence and records of this case, I am of the view that before reaching at any conclusion, relevant Sections be reproduced herein below for ready reference:
Section 407 reads as under:
Criminal breach of trust by carrier, etc.-- Whoever, being entrusted with property as a Carrier, wharfinger or warehouse-- keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 411 reads as under:
FIR No. 398/98 State Vs Anup Sharma etc. 8/17 Dishonestly receiving stolen property--"Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
16 First of all, I shall deal with the offence u/s 407 IPC. The accused Ram Mehal @ Kaliya has been charged for the offence u/s 407 IPC to the effect that he being the Carrier, was entrusted with 18 Bags of Chemical weighing 360 kg by Sh. Prem Chand Jain to be delivered at Aassi Rubber Chemicals and Lakki Chemicals, but he committed the criminal breach of trust as he did not consign the same to the above mentioned parties.
17 To bring home the guilt of the accused Ram Mehal @ Kaliya, the prosecution has examined the PW1 Sh. Prem Chand Jain as the main witness. He had deposed that on 24.10.1998, he entrusted 18 bags full of Rubber Chemical with Rickshawpullar namely Kaliya to deliver the same to the parties at Jhandewalan and Kirti Nagar. The weight of the said chemical was 360 kg. He further deposed that he used to sent the goods to the parties through Kaliya, but the said goods were not delivered. He searched for the accused Kaliya, but no clue was found. He lodged a complaint to the police. He handed over the bill of the said goods to the police. Police apprehended one person who was the relative of the accused Kaliya, who got recovered all the case property from the Godown situated at Nabi Karim on 25.10.1998. The said Godown was belonged to Prakash Roadlines. He identified the accused Kaliya as present in the Court that day. He also identified the accused Umesh as present in the Court that day and deposed that the accused Sanjay is not present in the Court as he has since expired. He further deposed that both the said accused persons took the police officials and him to the said Godown of Harinder, situated at Prakash Road Line, Nabi Karim. He identified the accused Harinder as present in the Court that day.
FIR No. 398/98 State Vs Anup Sharma etc. 9/17 Accused Harinder disclosed that the said bags of chemical were kept by the accused persons namely Umesh and Sanjay in the said Godown. He identified the case property which was the samples in a small box of the said rubber chemical. In his cross-examination, he has denied the suggestion that the accused persons have been falsely implicated in the present case.
18 PW2 SI Chander Pal has deposed that on 27.07.1999 he came to file the report on the process u/s 82 Cr.P.C against the accused Ram Behel. The accused Ram Behhel had surrendered him before the Court. He formally arrested him. He identified the accused Ram Behel as present in the Court that day.
19 The complainant Prem Chand Jain has deposed empathetically on oath that he had entrusted the case property i.e Rubber Chemicals to accused Ram Behel to deliver the same to the parties at Kirti Nagar and Jhandewalan. However, the same were not consigned to the parties. He also identified the accused Ram Behel as present in the Court that day. He struck to his stand in the cross-examination. Further, PW2 SI Chander Pal also deposed that the accused was arrested by him in the Court.
20 It is argued by the Ld. Defence counsel that testimony of PW1 Sh. Prem Chand Jain should not be believed in, with respect to the consignment of goods to Ram Behel @ Kaliya, as there are no independent witness to prove the same. At this juncture, I want to say that the testimony of even a sole witness can be relied if it is clear, coherent, and reliable and to bolster my view, I would like to rely upon the judgments of Ramesh 2004 Cri LJ 70 (Mad); Sunil Kumar 2004 Cri LJ 819 (SC): AIR 2004 SC 552: (2003) 4 Crimes 382 (SC): (2003) 11 SCC 367; Chittar Lal (2003) 6 SCC 397; Chanan Ram 1999 (10) JT 389 (SC); State v Dhirendra Kumar (1997) 1 SCC 93: AIR 1997 SC 318: (1996) 10 JT 93:
FIR No. 398/98 State Vs Anup Sharma etc. 10/17 (1996) 4 Crimes 195 (SC), wherein it is held that, conviction can be based on testimony of solitary witness. Even if the case against the accused hangs on the evidence of a single eye-witness, it may be enough to sustain conviction on the basis of sterling testimony of a competent, honest and trustful witness. Witnesses have to be weighed and not counted in as much as quality matters more than quantity in human affairs. Prudence, however, requires that some corroboration should be sought from other prosecution evidence in support of the testimony of a solitary witness particularly where such witness happens to be closely related to the deceased or the accused is one against whom some motive or ill will is suggested. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely, (i)wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroborat9n in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness.
Where there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. [Joseph (2003) 1 SCC 465: AIR 2003 SC 507: 2003 Cri LJ 813 (SC): (2003) 1 Crimes 206 (SC); Chittar Lal (2003) 6 SCC 397: AIR 2003 SC 3590: 2003 Cri LJ 3548 (SC): (2003) 3 Crimes 131 (SC) : (2003) 7 JT 270].
21 In a recent case titled as "Kalu @ Amit Vs. State of Haryana 2301(I) AD SC 641, it has been stated by the Apex Court in para 9 of its judgment that conviction can be based on the evidence of the sole eye witness if his evidence FIR No. 398/98 State Vs Anup Sharma etc. 11/17 inspires confidence.
22 Keeping in view the aforesaid principle in mind, it is crystal clear that the testimony of even a solitary eye-witness can be the basis of the conviction,if it is clear, coherent and reliable. PW1 Sh. Prem Chand Jain has deposed emphatically on oath that he had entrusted the case property to Rikshaw puller Kaliya as a Carrier. He has also identified the accused Ram Behel @ Kaliya as present in the Court that day. In view of the same, the testimony of PW-1 is clear, coherent and inspires the confidence of the court. Therefore, it is crystal clear that the prosecution has proved its case for the offence u/s 407 IPC of the accused Ram Behel @ Kaliya.
23 Coming now to the offence u/s 411 IPC against the accused persons namely Umesh, Harinder and Anup Sharma. It is the case of the prosecution that Ram Behal @ Kaliya along with the accused Sanjay (since expired) and Umesh took the goods to accused Harinder, who after talking to his Manager i.e co-accused Anup Sharma, brought the same and kept them in their godown. Accused Anup Sharma paid Rs. 15,000/- for the case property i.e Rubber Chemicals.
24 It is argued by the Ld. Counsel for accused persons that for the offence u/s 411 IPC, possession of the stolen property is essential and it is only the accused Harinder and Umesh from whose possession or instance the stolen property has been recovered and that the stolen property has not been recovered from the possession of accused Anup Sharma. However, at this juncture, I would like to discuss the case law relating to offence u/s 411 IPC, which is relevant to the facts and circumstances of the present case. There are number of judgments in which it has been held that the physical possession of a stolen property is not essential for the offence u/s 411 IPC, as some times the FIR No. 398/98 State Vs Anup Sharma etc. 12/17 stolen property change hands. It is not necessary that the accused should have had manual possession of the good; but directing a servant to dispose of them as by pawing or otherwise, will be sufficient to support the charge. It was held in Miller (1853) 6 Cox 353; Thomas Smit (1855) 24 (MC) 135 that where stolen property was brought by the thief into A's shop and A, with guilty knowledge, called her servant and directed her to take the stolen goods to the pawn office and "pawn them for the girl" (the thief), and the servant did so accordingly and brought back the money, which she handed to the thief in her mistress's presence, it was held that this amounted to a receiving by A of the stolen property, though she had never the manual possession of either the goods or the money. It was further held in Shewdhar Sukul (1913) 40 Cal 990, that where the consignee presented a railway recept for certain stolen goods to the Station- Master, paid the freight and received formal delivery of the package from the latter, it was held that the goods had come to be not merely in the potential possession of the congignee but actually within his power and unrestricted control, though he had not removed them from the station where they were then lying, nor made any attempt to do so, and that he had received them within the meaning of this section.
25 Keeping in view the aforesaid principles of law and applying the same to the facts and circumstances of the case, there would be no iota of doubt in holding that accused Umesh, Harinder and Anup Sharma are guilty of the offence u/s 411 IPC. It was the accused Umesh and Sanjay (since expired), who came first in possession of the stolen property. PW1 Sh. Prem Chand Jain and PW3 SI Ved Prakash has proved that it was the accused Umesh, who led them to Prakash Road Lines, Nabi Karim, from where the stolen property was recovered at the instance of accused Umesh and Harinder. SI Ved Prakash has also proved that he had collected the copy of the builty from Anup Sharma vide seizure memo Exh.PW3/J. Therefore, the present is not the case in which FIR No. 398/98 State Vs Anup Sharma etc. 13/17 nothing has been recovered from accused Anup Sharma. Builty of the stolen good has been recovered from his possession. There is no explanation as to how accused Anup Sharma come into the possession of the builty of the case property in question.
26 It is argued by the Ld. Defence counsel that testimony of PW1 Sh. Prem Chand Jain and PW3 SI Ved Prakash should not be believed in as there are certain discrepancies in their testimonies. PW1 Sh Prem Chand Jain has deposed that accused Umesh took them to Prakash Road Lines, Nabi Karim whereas PW3 SI Ved Prakash has deposed that it was accused Umesh and Sanjay(since expired), who took them to Prakash Road Lines, Nabi Karim and accused Harender was found there, who handed over them the key of the Godown. Therefore, there is a discrepancy as to the number of persons, who went for the recovery of the stolen goods. However, I would like to say at this stage that, the minor discrepancies are bound to occur the testimonies of witnesses in a criminal case. Minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper technical approach. It has been held in Thoti Manoher v. State of A.P. (2012) 7 Supreme Court Cases in para 38 "....... The Court, while appreciation the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored....."
27. Further, Hon'ble Supreme Court held in the case titled as Blal Bahadur and ors Vs State of NCT of Delhi 2013 IV AD (SC) 416 as under:-
"So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses as pointed out by the counsel for the appellants , are FIR No. 398/98 State Vs Anup Sharma etc. 14/17 concerned, we have gone through the entire evidence and found that the evidence of the witnesses can not be brushed aside merely because of some minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy. Not only that, the witnesses have consistently deposed with regard to the offence committed by the appellants and their evidence remain unshaken during their cross examination. Mere marginal variation and contradiction in the statements of the witnesses can not be ground to discard the testimony of the eye witness who is none else but the widow of the one deceased . Further, relationship can not be a factor to affect credibility of a witness."
28 Applying the aforesaid law in the facts and circumstances of the present case, it is crystal clear that certain discrepancies are bound to occur. PW1 Sh. Prem Chand Jain has been examined after about five years of the actual incident. Some clouds on his memory are bound to come. Therefore, discrepancy regarding the number of the accused accompanying PW1 and the police to Prakash Road Lines is not a major one, which would cause a serious dent on the prosecution story when the essence has well rooted to the grounds.
29 The accused persons have brought evidence in their defence and have examined Sh. Atar Singh as DW1, Sh. Vilas as DW2, Sh. Gambhir Singh as DW3 and Sh. Raju as DW4.
30 DW1 Sh. Atar Singh has deposed that accused Anup Sharma has a good reputation in the society and that he has been falsely implicated in the present case. Similarly, DW2 Sh. Vilas has deposed that he knew accused Ram Behel since his childhood and that the accused Ram Behel has been falsely implicated in the present case. DW3 Sh. Gambhir Singh has deposed that he knew the accused Harender since his childhood and that the accused has a good FIR No. 398/98 State Vs Anup Sharma etc. 15/17 reputation in the society. The accused Harender has been falsely implicated in the present case. DW4 Sh. Raju has deposed that he knew the accused Umesh since his childhood, who has a good reputation in the society and that the accused Umesh has been falsely implicated in the present case as the police officials demanded money from the accused. However, it is beyond comprehension to the present case as to what stopped the accused Umesh, Ram Behel, Harender and Anup Sharma to take the recourse of the law i.e to lodge any complaint or case in the Court when there was any illegal demand of the money by the police officials. In the cross-examination by the Ld. APP for the state, all the DWs have deposed that they have never made a complaint to any authority till date regarding the false implication of the accused persons in the present case. Therefore, the contention of the accused persons that they have been falsely implicated in the present case by the police officials, as they had refused to pay the money to them, has remained unsubstantiated.
31 In the statement u/s 313 Cr.P.C, the accused persons have taken the stand that all the PWs are interested witnesses and their testimony cannot be believed. However, no motive has been brought on record as to why the PWs would falsely implicated the accused persons. Absolutely nothing has been brought on record to discredit the testimony of the PWs. Therefore, reliance can be placed upon their testimonies.
32. PW1 Sh. Prem Chand Jain and PW3 SI Ved Prakash have deposed empathetically on oath that it was the accused Umesh and Sanjay (since expired), who took them to the Prakash Road Lines, Nabi Karim and the keys of the Godown were provided by the accused Harender from where the stolen case property was recovered. PW3 SI Ved Prakash has deposed empathetically on oath that he had seized the builty of the stolen case property from the possession of accused Anup Sharma.
FIR No. 398/98 State Vs Anup Sharma etc. 16/17
33 In view of the abovesaid discussion, the prosecution has proved its case
against the accused persons namely Anup Sharma, Harinder and Umesh u/s 411 IPC, and against accused Ram Behel @ Kaliya u/s 407 IPC, who are accordingly convicted.
Let them be heard on the point of sentence.
Announced in the open court Today on 12 October, 2015.
(Ambika Singh)
Metropolitan Magistrate-06(Central)
Tis Hazari Courts, Delhi
FIR No. 398/98 State Vs Anup Sharma etc. 17/17
ANUPAM
First of all, I shall deal with the offence u/s 407 IPC. The accused Ram Mehal @ Kaliya has been charged for the offence u/s 407 IPC to the effect that he being a Carrier entrusted with 18 Bags of Chemical weighing 360 kg by Sh. Prem Chand Jain to be delivered at Aassi Rubber Chemicals and Lakki Chemicals, but he committed the breach of trust as he did not consign the same to the above mentioned parties.
To bring home the guilt of the accused Ram Mehal @ Kaliya, the prosecution has examined the PW1 Sh. Prem Chand Jain as the main witness to prove the offence u/s 407 IPC against accused Ram Mehal @ Kaliya, who had deposed that on 24.10.1998, he entrusted 18 bags full of Rubber Chemical with Rickshawpullar namely Kaliya to deliver the same to the parties at Jhandewalan and Kirti Nagar. The weight of the said chemical was 360 kg. He further deposed that he used to sent the goods to the parties through Kaliya, but the said goods were not delivered. He searched for the accused Kaliya, but no clue was found. He lodged a complaint to the police. He handed over the bill of the said goods to the police. Police apprehended one person who was the relative of the accused Kaliya, who got recovered all the case property from the Godown situated at Nabi Karim on 25.10.1998. The said Godown was belonged to Prakash Roadlines. He identified the accused Kaliya as present in the Court that day. He also identified the accused Umesh as present in the Court that day and deposed that the accused Sanjay is not present in the Court as he has since expired. He further deposed that both the said accused persons took the police officials and him to the said Godown of Harinder, situated at Prakash Road Line, Nabi Karim. He identified the accused Harinder as present in the Court that day. Accused Harinder disclosed that the said bags of chemical were kept by the accused persons namely Umesh and Sanjay in the said Godown. He identified the case property which was the samples in a small box of the said rubber FIR No. 398/98 State Vs Anup Sharma etc. 18/17 chemical. In his cross-examination, he has denied the suggestion that the accused persons have been falsely implicated in the present case.
PW3 SI Ved Prakash has deposed that on receipt of complaint by Prem Chand Jain, they reached near Gali Peepal Wali where they met with accused Umesh and Sanjay and during interrogation, the complainant told them that Umesh, Sanjay and one another accused namely Ram Behal were also a Rickshaw Puller. During interrogation, accused Umesh and Sanjay confessed their involvement in the crime and also told that they had sod the goods in question i.e Rubber Chemicals to Praksah Road lines, Nabi Karim. Accused Umesh and Sanjay took them to Prakash Road lines, Nabi Karim, where they met with another accused Harinder, who produced the key of the Godown and from Godown the case property i.e Rubber Chemicals were recovered. He further deposed that he had collected the copy of the builty from accused Anupam and seized the same vide seizure memo Exh. PW3/J. PW2 SI Chander Pal has deposed that on 27.07.1999 he came to file the report on the process u/s 82 Cr.P.C against the accused Ram Behel. The accused Ram Behhel had surrendered him before the Court. He formally arrested him. He identified the accused Ram Behel as present in the Court that day.
Keeping in view the aforesaid discussion, I am of the opinion that the prosecution has successfully proved the ingredient of offence u/s 407 IPC against the accused Ram Behel. The complainant Prem Chand Jain has deposed empathetically on oath that he had entrusted the case property i.e Rubber Chemicals to accused Ram Behel to deliver to the parties at Kirti Nagar and Jhandewalan. However, the same were not consigned to the parties. He also identified the accused Ram Behel as present in the Court that day. He struck to his stand in the cross-examination.
Coming now to the offence u/s 411 IPC against the accused persons namely Umesh, Harinder and Anup Sharma. It is the case of the prosecution that FIR No. 398/98 State Vs Anup Sharma etc. 19/17 the accused Sanjay (since expired) and Umesh took the goods to accused Harinder, who after talking to his Manager i.e co-accused Anup Sharma, got the same and kept in his godown. Accused Anup Sharma paid Rs. 15,000/- for the same.
It is argued by the Ld. Counsel for accused persons that for the offence u/s 411 IPC, possession of the stolen property is essential and it is only the accused Harinder from whose possession the stolen property has been recovered and that the stolen property has not been recovered from the possession of accused Umesh and Anup Sharma. However, at this juncture, I would like to discuss the case law relating to offence u/s 411 IPC, which is relevant to the facts and circumstances of the present case. There are number of judgments in which it has been held that the physical possession of a stolen property is not essential for the offence u/s 411 IPC, as some times the stolen property change hands. To substantiate my view, I would like to Add---- physical possession of the stolen property.
Keeping in view the aforesaid provisions of law and in the facts and circumstances of the case, there would be no iota of doubt lying that accused Umesh, Harinder and Anup Sharma are guilty of the offence u/s 411 IPC. It was the accused Umesh and Sanjay (since expired), who came first in possession of the stolen property. PW1 Sh. Prem Chand Jain and PW3 SI Ved Prakash has proved that it was the accused Umesh, who led them to Prakash Road Lines, Nabi Karim, from where the stolen property was recovered at the instance of accused Umesh and Harinder. SI Ved Prakash has also proved that he had collected the copy of the builty from Anup Sharma vide seizure memo Exh.PW3/J. There is no explanation as to how accused Anup Sharma came into the possession of the builty of the case property in question.
The accused persons have brought evidence in their defence and have examined Sh. Atar Singh as DW1, Sh. Vilas as DW2, Sh. Gambhir Singh as DW3 and Sh. Raju as DW4.
FIR No. 398/98 State Vs Anup Sharma etc. 20/17 DW1 Sh. Atar Singh has deposed that accused Anup Sharma has a good reputation in the society and that he has been falsely implicated in the present case. Similarly, DW2 Sh. Vilas has deposed that he knew accused Ram Behel since his childhood and that the accused Ram Behel has been falsely implicated in the present case. DW3 Sh. Gambhir Singh has deposed that he knew the accused Harender since his childhood and that the accused has a good reputation in the society. The accused Harender has been falsely implicated in the present case. DW4 Sh. Raju has deposed that he knew the accused Umesh since his childhood, who has a good reputation in the society and that the accused Umesh has been falsely implicated in the present case as the police officials demanded money from the accused. However, it is beyond comprehension to the present case as to what stopped the accused Umesh, Ram Behel, Harender and Anup Sharma to take the recourse of the law i.e to lodge any complaint or case in the Court when there was any illegal demand of the money by the police officials. In the cross-examination by the Ld. APP for the state, all the DWs have deposed that they have never made a complaint to any authority till date regarding the false implication of the accused persons in the present case. Therefore, the contention of the accused persons that they have been falsely implicated in the present case by the police officials, as they had refused to pay the money to them, has remained unsubstantial. Absolutely, no motive has been brought on record to show as to why the police officials would falsely implicate the accused persons in the present case. PW1 Sh. Prem Chand Jain has deposed empathetically on oath that it was the accused Umesh and Sanjay (since expired), who took them to the Prakash Road Lines, Nabi Karim and the keys of the Godown were provided by the accused Harender from where the stolen case property was recovered. PW3 SI Ved Prakash has deposed empathetically on oath that he had seized the builty of the stolen case property from the possession of accused Anup Sharma -------------------
FIR No. 398/98 State Vs Anup Sharma etc. 21/17