Delhi District Court
State vs Anil Kumar And Anr. on 4 September, 2013
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE V/s ANIL KUMAR AND ANR.
FIR No : 537/1999
U/S : 379/411/34 IPC
P.S : VIKAS PURI
1. Serial No. of the Case : 124/02
2. Unique ID No. of the Case : 02401R0197942000
3. Date of Commission of Offence : 30/10/1999
4. Date of institution of the case : 06.01.2000
5. Name of the complainant : Sh. D.K. Puri
6. Name of accused & address : 1.) Anil Kumar S/o Sh. Vishwanath
R/oWZ85, Plot No.257
Chander Nagar, Tilak Nagar, Delhi
(Since convicted in pleabargaining)
2.) Kultar Singh
S/o Sh. Deva Singh
R/o B61, Gurunanak Nagar Extn.
Tilak Nagar, New Delhi
7. Offence complained : U/s 379/411/34 IPC
8. Offence charged with : U/s 379/411/34 IPC
9. Plea of Accused : Pleaded Not Guilty
10.Final Order : Kultar Singh also stands Convicted
for offence U/s 411/34 & 174A IPC
11.Date of Final Order : 04.09.2013
FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 1/12
J U D G M E N T
1 The prosecution had filed a charge sheet against the accused persons namely Anil Kumar and Kultar Singh on the allegations that on 30.10.1999 at about 7:30pm at DIII, Vikas Puri, Delhi a Maruti 800 car of white colour of complainant D.K. Puri was stolen and the aforesaid Maruti Car was recovered from the possession of the accused persons. After completion of the investigation, chargesheet against accused persons for commission of offences U/s. 379/411/34 IPC was filed.
2 Accused persons were summoned in the Court. Compliance of section 207 Cr.P.C. was made and the charge sheet along with documents were supplied to the accused persons. Vide order dated 10.10.2000 my Ld. Predecessor Sh. A.S. Datir, the then Ld. MM framed a charge U/s. 379/34 IPC R/w 411/34 IPC against both the accused persons to which they pleaded not guilty and claimed trial.
3 During the trial, accused Anil Kumar moved an application for plea bargaining and vide proceedings dated 29.05.2012, accused Anil Kumar FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 2/12 was convicted for the offence he has been charged with. The accused Kultar Singh absented himself from the case and vide order dated 03.09.2011, he was declared proclaimed offender in this case. On 25.06.2012, accused Kultar Singh was produced in the court on production warrants and a supplementary charge sheet for the commission of offence U/s 174A IPC was filed. Vide order dated 25.02.13, a charge for offence U/s 174A IPC was framed against accused Kultar Singh to which accused pleaded not guilty and claimed trial.
4 In order to substantiate the allegations against the accused persons, prosecution examined total seven witnesses in all in the main charge sheet and two witnesses in support of supplementary charge sheet. 5 PW1 D.K. Puri was the complainant in this case. PW2 WASI Mumtaj was the DO in this case. PW3, PW5 and PW7 were the recovery witnesses in this case. PW4 ASI Bijender Singh was assigned the initial investigation in this case. PW6 Ct. Pawan Kumar proved the original documents of FIR No. 913/99 PS Tilak Nagar. PW8 Jagbir Singh got the production warrants of accused Kultar issued and got him produced in the court. PW9 HC Ram Chander prepared the supplementary charge sheet FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 3/12 and proved the relevant documents on the record.
6 In the statement U/s. 313 Cr.P.C. accused Kultar Singh submitted that he did not commit any offence in this case and denied the offences alleged against him. He claimed to be innocent and falsely implicated in this case by police. He did not lead any defence evidence. 7 Ld. APP for State has argued that the prosecution has successfully proved the case. He has drawn attention of the Court to the oral and documentary evidence led by the prosecution.
8 On the other hand, Ld. LAC for the accused Kultar argued that the prosecution has miserably failed to prove the case against accused persons beyond reasonable doubt.
9 I have heard rival submissions as well as perused the oral and documentary evidence available on record.
10 The accused Kultar in the present case has been charged with for commission of offences under Section 379/411/34 IPC, and section 174A FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 4/12 IPC. To prove the case against the accused under section 379 IPC, the prosecution was required to prove the following facts:
A. That the property in question was a movable property; B. That such property was in possession of a person; C That the accused moved such property whilst in the possession of that person;
D. That the accused did so without the consent of such person;
E. That the accused did so in order to take the same out of the possession of that person;
F. That the accused did so with intent to cause wrongful loss to that person or wrongful gain to himself
11 In Trimbak Vs. The State of Madhya Pardesh, AIR 1954 SC 39, the Hon'ble Supreme Court held that in order to bring home the guilt of a person under section 411 IPC the prosecution was required to prove the following facts:
(1) That the stolen property was in the possession of the accused, (2) That some person other than the accused had possession of the stolen property before accused got possession of it, and (3) That the accused had knowledge that the property was stolen property.
12 The term Stolen Property has been defined U/s 410 of IPC.
Section 410 IPC reads as under:
Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has made,or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into possession of a FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 5/12 person legally entitled to the possession thereof, it then ceases to be stolen property.
13 To prove the charge against the accused under sections 379/34 the prosecution must have proved on the record that someone has seen the accused committing the theft of the motor cycle of the complainant. But no eye witness has been examined by the prosecution in this regard. In, fact, the complainant himself has not stated that he saw the accused persons committing the theft of his vehicle. Hence, it has not been brought on the record that the accused persons themselves have committed the theft of the motor cycle of the complainant. In view of the absence of any evidence, I have no hesitation in holding that the prosecution has miserably failed to prove the charge against the accused for the commission of the offence under section 379/34 IPC. Accordingly, the accused persons are hereby acquitted of the offences under section 379/34 IPC.
14 As far as the charges U/s. 411/34 IPC are concerned, the prosecution was required to prove that some movable property in possession in some other person was stolen and the accused persons were found in the possession of the same which they dishonestly received or retained knowing or having reasons to believe the same to be the stolen property. The prosecution has relied upon the testimony of PW1 D.K. Puri FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 6/12 to prove the fact that his Maruti 800 car was stolen from his possession without his consent. He categorically deposed the same. He deposed that on 30.10.99 at 7:30pm, he came to know that his car bearing No. DDV 23 which he parked outside his house had been stolen. He made the FIR to the police and in December 1999, he was informed by the police that his car had been recovered which he got released vide superdarinama Ex. PW1/A. Therefore, he has proved the fact that his car was stolen on 30.10.1999 from outside his house.
To prove the recovery of the vehicle of the complainant from the possession of the accused along with Anil (since convicted) the prosecution has further relied upon the testimonies of PW3 HC Zameel Khan, PW5 SI Sita Ram and PW7 ASI Sukhbir Singh who were the members of the police party which apprehended the accused persons along with the car. They have deposed consistently that on 08.11.1999 when they were checking the vehicles at Meenakshi Garden Bus Stand, Main Najafgarh Road and at about 06.30 PM, one Maruti Car of white colour bearing No. DL4CF 4540 came from the side of Subhash Nagar which was stopped. There were two persons in the car, they were demanded the documents of the car but they did not produce any document of the car. On enquiry, they revealed that the car was stolen from outside House No.D3, Vikas Puri. Accused Anil was on the FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 7/12 driver seat and accused Kultar Singh was sitting besides him. Tey also deposed about the necessary investigations. The identity of the car was proved from photographs.
The recovery witnesses were crossexamined at length on behalf of the accused, however, a careful perusal of the crossexamination conducted by them would reveal that the testimonies of the recovery witnesses remained unshaken. They passed the test of crossexamination with confidence. Nothing favourable to the accused could come on the record. The testimonies of recovery witnesses inspire confidence and are trustworthy. Thus, it has been brought on record beyond reasonable doubt that after the theft of the car, the accused Kultar along with accused Anil (since convicted) were found in possession of the same. The accused could not provide any satisfactory explanation regarding the same. Hence, it can be safely concluded that the accused Kultar along with accused Anil was found in the possession of the stolen car of the complainant D.K. PUri and he along with accused Anil retained the stolen car of the complainant having reasons to believe the same to be stolen property.
15 Now, I come to the argument of Ld. LAC that in the absence of the testimonies of the independent public persons who were available at the FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 8/12 time of the recovery of the stolen car, prosecution case should not be believed. They have relied relied upon the judgment of " Hem Raj and Others Vs. State of Haryana", (2005) 10 SCC 614. The said judgment of Hem Raj (supra) has been considered by the Hon'ble Supreme Court in "Hiralal Pandey and Ors. Vs. State of U.P.," Criminal Appeal No. 65 of 2008, decided on 17.4.2012, by the Divisional Bench of Hon,ble Mr. Justice A.K.Patnaik and Hon'ble Mr. Justice Swatantar Kumar. It was observed by the Hon,ble Apex Court that in the case of Hem Raj (supra) it was held that the non examination of independent witnesses by itself may not give rise to adverse inference against the prosecution but when the evidence of the alleged eyewitnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witnesses would assume significance. Applying the aforementioned observations on the facts of the present case, I find no force in the submissions of the Ld. LAC that the non examination of the independent witnesses has proved to be fatal to the case of the prosecution in as much as all the prosecution witnesses deposed consistently and their testimonies inspire confidence. Accordingly the submissions of Ld. LAC and Defence Counsel does not hold any merit in the same and the same stands rejected.
FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 9/12 16 The Ld. LAC has also made submission that all the witnesses were the police officials and without any corroboration by any independent witness, their testimonies should not be relied upon. I am afraid that the said submission is without any merit. It is well settled principle of law that testimony police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by any independent witnesses, their testimonies cannot be relied upon. The presumption that a person acts honestly applies as much in favour of the police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It is for the accused to bring on the record some evidence to show hostility or animosity on the part of police officials towards the accused, which in my opinion, has not been brought on the record by the accused. The reliance is placed on Karamjit Singh Vs. State (Delhi Administration), AIR 2003 SC 1311. Accordingly, the submissions of Ld. LAC is without any merit and deserves dismissal.
17 The Ld LAC has further argued that there are material contradictions in the oral and documentary evidence produced by FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 10/12 prosecution, therefore, the story of the prosecution has fallen short from being proved beyond reasonable doubt. On the other hand, Ld. APP has argued that there are no material contradictions on the record. It is well settled principle of law that minor contradictions and omissions cannot be taken to reject the prosecution case in its entirely. I have carefully gone through the depositions of recovery witnesses and did not find any material contradictions or omissions. In my opinion, the argument of Ld. LAC has no merits and is liable to be rejected. Accordingly, the same is rejected. Therefore, I am of the considered opinion that the prosecution has successfully proved the charges U/s 411/34 IPC against the accused Kultar Singh.
18 Now I come to offence U/s 174A IPC. To prove the charges, prosecution has examined PW8 HC Jagbir Singh and PW9 HC Ram Chander. PW9 deposed that accused was declared PO in this case on 06.01.2012 and therefore he got issued production warrants of accused as he was in JC in some other case. The record reveals that the accused was declared PO in this case. The court can take cognizance of the same. Accordingly, I am also of the opinion that prosecution has proved the case against accused Kultar Singh U/s 174A IPC as well.
FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 11/12 19 Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, prosecution has miserably failed to prove the guilt of the accused Kultar Singh U/s 379/34 IPC however, the prosecution has successfully proved the case against the accused Kultar Singh beyond reasonable doubt for the offence U/s 411/34 IPC and 174A IPC. Hence, accused Kultar Singh stands convicted for the offence under section 411 and 174A IPC. Accused Anil had already been convicted in the plea bargaining proceedings. 20 Let accused Kultar Singh be heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
th
TODAY i.e. ON 4 SEPTMEBER, 2013 MM:09:WEST:THC:04.09.2013
FIR No. 537/1999 STATE V/s ANIL KUMAR & ANR. PAGE No. 12/12