Delhi District Court
State vs Manoj Kumar @ Ajay on 10 July, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.39/10
FIR No.496/08
PS Vasant Kunj (Special Cell)
State
Versus
Manoj Kumar @ Ajay,
S/o Sh. Narain Singh,
R/o Village Bakarwara,
PO Mundka, PS Nangloi,
Delhi. .......Accused
Date of institution : 12.07.2010
Date of Judgment : 10.07.2013
J U D G M E N T
Accused Manoj Kumar @ Ajay was sent up for trial for an offence U/s 413 IPC on the allegations that he habitually received or dealt with stolen property knowing or having reasons to believe the same to be stolen property regarding which following cases were registered at different police stations :
1. FIR No.373/04 PS Shalimar Bagh U/s 379/411/34 IPC
2. FIR No.710/03 PS Shalimar Bagh U/s 379/34 IPC 1
3. FIR No.60/04 PS Special Cell U/s 25 Arms Act
4. FIR No.168/04 PS Special Cell U/s 224 IPC
5. FIR No.122/04 PS Kirti Nagar U/s 379/ 411/ 468/ 471/ 473/34/120B IPC
6. FIR No.527/06 PS Kirti Nagar U/s 379/411/473/34 IPC
7. FIR No.57/04 PS Rajender Nagar U/s 379/411 IPC
8. FIR No.496/08 PS Vasant Kunj (Special Cell) U/s 413 IPC (present case) It is case of the prosecution that the accused was tried, convicted and sentenced in the above first mentioned seven cases i.e. from Sr. no.1 to 7.
2. Present case came to be registered vide FIR NO.496/08 at PS Vasant Kunj in respect of theft of Verna Car having registration no. HR 99 CC Temp. (HQ) 2965, stolen from the parking area near Flat no.B1/1146, Vasant Kunj, New Delhi. The car belonged to Gulab Firms (P) Ltd., sister concern of Central Park (P) Ltd. Complainant - S. Swaminathan was General Manager of the said company.
After registration of this case ASI Suresh Kumar took up investigation. Despite efforts, the vehicle could not be traced by police.
It is case of prosecution that on 10.09.09, accused was arrested by SI Harbir Singh of PS Special Cell, when he was produced in court in case FIR NO. 251/09 of PS Saket. During investigation of case FIR no.251/09, Manoj Kumar, accused made disclosure statement and offered to get the stolen car recovered from his house. In pursuance of disclosure statement, the accused led the police party to Chandigarh and then to Springal Height Apartment, Dhakoli, Zirakpur 2 (Punjab) and from there he got recovered car of S. Swaminathan. The car was then seized.
3. On completion of investigation, challan was put in court. Copies of documents relied upon by the prosecution were supplied to the accused free of costs U/s 207 Cr.P.C. Case came to be committed to the Hon'ble Court of Session vide order dt.06.07.2010 for the offence U/s 413 IPC when supplementary charge sheet was filed by the police.
Charge
4. Prima facie case having been made out, charge for an offence U/s 413 IPC was framed against the accused on 12.10.2011, to which he pleaded not guiltyand claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following 12 witnesses: PW1 Sh. Mohit, Mauza Clerk To prove record pertaining to conviction and sentence of the accused in two cases.
PW2 Sh. Ashish Gupta, Assistant To prove record pertaining to conviction Ahlmad and sentence of the accused in three cases.
PW3 HC Balwant To prove recording of case FIR
Ex.PW3/A.
PW4 Sh. S. Swaminathan Complainant of this case.
PW5 ASI Suresh Kumar To prove investigation conducted by him
in this case.
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PW6 ASI Raj Singh Who took over investigation on 16.07.09.
PW7 SI Ram Parkash (Retired) To prove recording of case FIR Ex.PW3/A
on the basis of complaint Ex.PW4/A.
PW8 HC Ravinder Singh To prove discovery of the aforesaid car
no.HR 99 CC Temp. (HQ) 2965 at the
instance of the accused.
PW9 SI Harbir Singh To prove investigation conducted by him.
PW10 HC Ajay Kumar Witness to recovery of car no.HR 99 CC
Temp. (HQ) 2965 at the instance of the
accused.
PW11 SI Naresh Kumar Another witness to recovery of car no.HR
99 CC Temp. (HQ) 2965 and recovery of
some documents at the instance of the
accused.
PW12 ASI M. Baxla, MHC(M) To prove deposit of case property
pertaining to case FIR no.251/09.
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused admitted the factum of his conviction and sentence in five cases but denied all other incriminating circumstances appearing in evidence against him accordance with law and claimed false implication.
7. Arguments heard. File perused.
8. As noticed above, charge framed against the accused is one under Section 413 IPC on the allegation that he has been habitual of receiving or dealing in stolen property, knowing and having reason to believe the same to be stolen property.
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9. In order to establish such a charge, it is for the prosecution to establish:
1. That the property in question was stolen property,
2. That the accused received the stolen property or dealt in it,
3. That he did so habitually, and
4. That he did so knowing and having reasons to believe that same to be stolen property.
10. The person who casually receives stolen property is punishable under Section 411 IPC or 412 IPC. Section 413 IPC provides sever punishment for the common receivers or professional dealers in the stolen property. It is significant to note that Sections 411, 412 and 413 IPC are not applicable in case of a thief or robber i.e. the principal offender. In other words, these sections are applicable against class of persons who are dealing in stolen property. So principal offenders are outside the scope of these sections.
11. Herein by way of evidence, prosecution has proved on record conviction and sentence of the accused in following five cases:
1. FIR No. 60/04 PS Special Cell U/s 25 of Arms Act.
2. FIR No. 168/04 PS Special Cell U/s 224 IPC
3. FIR No. 57/04 PS Rajender Nagar U/s 379/411 IPC
4. FIR No. 710/04 PS PS Shalimar Bagh U/s 379 IPC
5. FIR No. 373/04 PS Shalimar Bagh U/s 379/411/34 IPC 5
12. As noticed above, out of five cases, case FIR No. 60/04 registered at PS Special Cell was under Section 25 of the Arms Act. Therefore, it cannot be said that the said case pertained to receiving or dealing with any stolen property.
Similarly, case FIR No. 168/2004 registered at PS Special Cell being a case under Section 224 IPC, it cannot be said that it was a case wherein the accused received or dealt with any stolen property.
Case FIR No. 57/04 of PS Special Cell was registered for offences under Section 379/411/34 IPC. As per certified copy of judgment Ex CW2/A, the Trial Court held the accused guilty of offences under Section 379/411/34 IPC and sentenced him thereunder. In the course of arguments, State has not been able to clarify as to whether accused was convicted in that case for an offence under Section 379 or 411 IPC. In absence thereof, it cannot be said that the accused confessed his guilt in that case and he was convicted and sentenced for an offence under Section 411 IPC.
In case FIR No. 710/13 registered at PS Special Cell, accused was held guilty for any offence under Section 379 IPC. Since he was not held guilty for an offence under Section 411 IPC, it cannot be said that case pertains to the allegations of receiving of the stolen property knowing or having reasons to believe that the same was stolen property.
Another case FIR No. 373/04 was registered for offences under Section 379/411 IPC at PS Special Cell and accused was held guilty for the said 6 offences. In the course of arguments, State has not been able to clarify as to whether accused was convicted in that case for an offence under Section 379 or 411 IPC.
13. From the above discussion, this Court finds that prosecution has failed to establish that accused was ever previously convicted for his having retained or received or dealt with any stolen property, knowing or having reasons to believe that the same are stolen property.
Theft ( in case FIR No. 496/08 PS Vasnat Kunj, Special Cell)
14. It is case of prosecution that car make Verna having temporary registration no. HR99CC2965 (temporary) stood registered in the name of Gulab Firms Pvt. Ltd. and that on 04.10.2008 it was being used by complainant Sh. S. Swaminathan (PW4) while it was stolen.
Ex PW4/B are the copies of the documents pertaining to Verna car. These documents were seized during investigation when produced by the complainant.
15. While appearing in Court PW4 S. Swaminathan has deposed that on 04.10.2008, he parked the aforesaid car outside his house no. B1/1146, Vasant Vihar. In the morning of 05.10.2008 on having come out of the house, he found the car missing. He then lodged complaint Ex PW4/A with police of PS Vasant Vihar.
Statement of PW4 Sh. S. Swaminathan has gone unchallenged for want of cross examination.
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PW5 ASI Suresh Kumar was assigned investigation of the case. During investigation, he visited the place of occurrence and prepared rough site plan Ex PW5/A. Statement of PW3 has also gone unchallenged for want of any cross examination.
From the statement of PW4 and other documents, it stands established that the aforesaid car no. HR 99CC2965 (temporary) and HR26ZZ0095 (Actual number), which was in possession of Sh. S. Swaminathan was stolen on the night intervening 04/05.10.2008.
Recovery of papers
16. So far as recoveries are concerned, prosecution has examined PW6 ASI Raj Singh, PW8 HC Ravinder Singh, PW9 SI Harbir Singh, PW10 Ct. Ajay Kumar and PW11 SI Naresh Kumar.
Statements of PW6 ASI Raj Singh and PW11 Naresh Kumar are on the point of recovery of documents including the documents pertaining to Verna car no. HR 99CC2965 (temporary) and HR26ZZ0095 (Actual number), at the instance of the accused from H. No. C61, 4th Floor Springle Heights Apartments, Dhakoli, Zirakpur where he was residing as a tenant.
According to PW6 ASI Raj Singh, on 16.07.2009, he accompanied SI Naresh Kumar in connection with investigation of this case while Manoj accused was in their custody. Accused led them to the aforesaid house i.e. C61, 4 th Floor Springle Heights Apartments, Dhakoli, Zirakpur, where he was residing as 8 tenant.
As stated by PW6 ASI Raj Singh and PW11 SI Naresh Kumar, wife of the accused was present at the flat. Accused took some out papers from under the mattress which was lying on the bed. The papers pertained to stolen vehicles. Same were seized vide memo Ex PW6/A. Accused was then brought back to Delhi. According to PW11 SI Naresh Kumar ultimately he handed over these papers to SI Harbir Singh.
17. Learned Defence counsel has contended that no reliance can be placed on the recovery of these papers for want of any corroboration from independent source. In this regard, learned counsel has referred to the statements of PW6 and PW11 and submitted that despite opportunity no effort was made to associate anyone from the public before or at the time of recovery from H. No. C61, 4th Floor Springle Heights Apartments, Dhakoli, Zirakpur.
18. According to PW6 ASI Raj Singh, H. No. C61, 4th Floor Springle Heights Apartments, Dhakoli, Zirakpur was found lying open at the time they visited Springle Heights Apartment.
On the other hand, according to PW11 lock of the said house was found broken but wife of the accused was found present inside the house. PW6 nowhere stated that lock of the said house was found broken. Admittedly, PW11 SI Naresh Kumar did not seize any broken lock. The fact remains that statements of PW6 and PW11 are in contradiction with each other as to the 9 condition of the door of the aforesaid house.
19. Generally, whenever recovery of any incriminating matter of object is made, rough site plan of the said place. However, in this case, SI Naresh Kumar did not prepare any rough site plan to depict place of recovery. There is no explanation in this regard.
It is not that only one flat was found occupied in the said Apartment. According to PW11 SI Naresh Kumar, there were other flats adjoining the flat of the accused and he asked 45 residents to join the investigation, but none agreed. However, PW11 could not furnish particulars of those occupants who refused to join investigation. Had any such occupant of other flats refused to join the party, the SI should have recorded their names and particulars. In his cross examination, SI Naresh Kumar could not tell even names of those persons who refused to join the party.
When 45 occupants of the adjoining flats had allegedly refused to join the party, before recovery SI Naresh Kumar could easily have assistance of local police. Generally, while visiting out of Delhi, local police is informed by the police party. However, in this case local police of Zirakpur was not informed about arrival of police party headed by SI Naresh Kumar.
PW11 SI Naresh Kumar admitted to have not visited the local police station or informed them about their arrival or departure.
According to the witness, they remained at the flat of the accused for 10 about 1/1 ½ hour. It is not believable that no one from adjoining flats gathered there, during this period, on having seen Delhi Police at the flat of the accused.
It is significant to note that although according to PW11 SI Naresh Kumar, persons from the public were asked to join the party but PW6 ASI Raj Singh contradicted him by specifically stating that no one from the public was called for being joined in the party. This contradiction creates doubt in the version putforth by prosecution about efforts made for joining of persons from the public.
Admittedly, wife of the accused was present at the flat. SI Naresh Kumar could ask her to attest the recovery memo but perusal of recovery memo Ex PW6/A reveals that it bears attestation of only HC Raj Singh.
All this makes it difficult to rely on the statements of the two police officials regarding recovery of papers from or at the instance of the accused particularly when there is no corroboration from independent source.
Recovery of car HR 99CC2965 (temporary) and HR26ZZ0095 (Actual number)
20. As noticed above, as per prosecution version, the aforesaid papers Ex PW6/B were seized on 16.07.2009 and the papers included copies of documents pertaining to Verna car bearing no. HR 99CC2965 (temporary) and HR26 ZZ0095 (Actual number). As discussed above, prosecution has failed to establish recovery of any such papers from or at the instance of the accused. 11
Then reference has been made to the prosecution version regarding recovery of Verna car on 26.07.2009 from the parking of Springle Heights Apartments, Zirakpur, from and at the instance of the accused. In this regard, prosecution has examined PW8 HC Ravinder Singh and PW9 SI Harbir Singh and PW10 HC Ajay Kumar.
Accused was in the custody of police of PS Saket in case FIR No. 291/09. Investigation of this case was assigned to SI Harbir Singh on 01.09.2009 and he arrested the accused on 14.07.2009. According to PW9 during interrogation Manoj Kumar made disclosure statement regarding theft of various vehicles, about their sale in the State of Punjab and that he could get the same recovered. These disclosure statements are Ex PW9/A and B. It is significant to note that PW8 HC Ravinder Singh is a witness only to the disclosure statements Ex PW8/A. It may be mentioned here that no reliance can be placed on these two disclosure statements firstly for the reason that these are only photocopies and their original have not been produced in Court, and secondly because SI Harbir Singh nowhere stated about contents of disclosure made by Manoj accused vide these two statements.
Before a disclosure statement is relied on, it is for the prosecution to prove through the testimony of concerned witness as to which fact was disclosed by the accused and as to which fact was discovered in pursuance thereof. Since SI 12 Harbir Singh did not state about the fact disclosed by Manoj Kumar accused, for this reason also no reliance can be placed on these disclosure statements.
21. It is case of the prosecution that Manoj accused led police party headed by ASI Harbir Singh to Chandigarh and got recovered vehicle including vehicle make Verna bearing no. HR 99CC2965 (temporary) and HR26ZZ0095 (Actual number).
According to PW9, car make Verna was got recovered by Manoj accused from Springle Heights Apartments.
22. Learned Defence counsel has contended that no person from the public was associated at the time of recovery of the car, key and certificate of registration. She has further contended that even local police was not apprised of arrival or departure of the police party headed by police party. The police party travelled by a private vehicle, but driver of the said vehicle was also not made witness to the recovery. The contention is that this creates doubt in the version of prosecution regarding these recoveries.
According to PW9 SI Harbir Singh, key of the vehicle and forged registration certificate in the name of Gulab Firms were recovered from the vehicle. These were seized vide memo Ex PW9/C. Certificate of registration is Ex PW9/D. On the point of recovery, another witness examined by prosecution is PW10 HC Ajay Kumar. He deposed about recovery of car and its seizure vide 13 memo Ex PW9/C when it was found lying parked in the aforesaid Apartment.
A perusal of statements of PW9 and 10 would reveal that there are material contradictions in the statements of these two witnesses. Whereas according to PW9 SI Harbir Singh, one key and forged certificate of registration of the vehicle were recovered from the vehicle itself while it was lying parked in the aforesaid Apartments. PW10 deposed about recovery of only certificate of registration from dash board of the car. PW10 HC Ajay Kumar nowhere deposed about recovery of any key of the car from inside the car. Had any key also been recovered from inside the car, PW10 would not have omitted to state about this recovery.
According to PW9 SI Harbir Singh car was recovered from the parking of the Apartments. PW10 HC Ajay Kumar did not specifically stated that the car was recovered from the parking of the Apartments, he simply stated that car was lying parked in the Apartments.
23. As noticed above, disclosure statements attributed to the accused are dated 14.07.2009 but the car is stated to have been recovered on 26.07.2009. There is no explanation as to why the IO waited for about 11 days for recovery. It is significant to note that PW9 SI Harbir Singh nowhere stated as to on which date the car was recovered. Had the SI visited the said Apartments in pursuance of disclosure statements, he would not have omitted to state about date of its recovery.
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As is available in evidence there were about 8090 flats adjoining the parking. According to PW10 HC Ajay Kumar they did not inquire from the residents of those flats. But why? There is no explanation as to why no person from the public was associated in the party before or at the time of recovery of the car from the said Apartments.
The police party travelled from Delhi to Chandigarh and then to Zirakpur by a private vehicle but even driver of the vehicle was not associated to attest recoveries. Surprisingly, no site plan of the place of recovery was prepared by SI Harbir Singh so as to depict the place of recovery and to lend corroboration to the prosecution version.
PW10 HC Ajay Kumar stated in chief examination that when the party was at Chandigarh, SI Harbir Singh received a telephonically message from the office that a stolen vehicle was lying parked in the Springle Heights Apartments. However, PW9 SI Harbir Singh did not stated that any such information was received by him from the office. No evidence has been led by the prosecution to support the statement of PW10 HC Ajay Kumar as to who had communicated information to SI Harbir Singh that aforesaid car was lying parked in the Apartments.
PW10 HC Ajay Kumar nowhere deposed that Manoj accused was with them and he got the vehicle recovered. So there is no corroboration to the statement of PW9 SI Harbir Singh that it is the accused who got the vehicle 15 recovered. Even otherwise, when according to PW10 HC Ajay Kumar stolen car was recovered from the Apartments on the basis of information received from their office, it is difficult to believe the version put forth by SI Harbir Singh that the accused got recovered the said vehicle.
24. In view of the above discussion, this Court finds that prosecution has failed to substantiate allegations that Manoj accused retained aforesaid vehicle make Verna, what to say of his having dealt with the same.
25. As a result of the above discussion, this Court comes to the conclusion that prosecution has miserably failed to substantiate the accusation levelled against accused that he habitually received or dealt in stolen property. Consequent upon, Manoj Kumar @ Ajay accused is hereby acquitted.
26. File be consigned to Record Room.
Announced in Open Court
on 10.07.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi
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