Delhi District Court
Sc No. 61/10 Fir No. 450/2000 St vs . Dharamvir 1/27 on 31 July, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ADDITIONAL SESSIONS JUDGE-03, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
S.C. No: 61/10
(Unique ID No.02403R0046072000)
FIR No: 450/2000
P.S : Mehrauli
U/S:392/34 IPC
STATE
Vs.
(1)Dharamvir
S/o Sh. Ram Phal
R/o H. No. 91, Kheira Mohalla,
Fatehpur Beri, Mehrauli,
New Delhi.
(2) Charan Singh
S/o Likhi Ram
R/o H. No. 223, Fatehpur Beri,
P.S. Mehrauli, Delhi.
(Already acquitted vide order dated 20.07.2012)
(3) Ajay Yadav
S/o Ram Saran
R/o H. No. 217, Fatehpur Beri,
P.S. Mehrauli, Delhi.
(Already acquitted vide order dated 20.07.2012)
Date of initial Institution : Oct. 2000
Date of Institution in this Court: 28.09.2010
Date of reserving order : 25.07.2012
Date of Pronouncement : 31.07.2012
SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 1/27
JUDGMENT
1. Case of the prosecution is that on the statement of the complainant Ashok Jai Singh that three boys had robbed him at gun point of his mobile phone, gold chain with pendent, lighter, credit-card and Rs.9,000/- cash and his Car bearing registration No. DL-9CA-3468 on 16.07.2000 at about 4:45 p.m from Dhongi Baba Mandir, P.S. Mehrauli, New Delhi FIR No.450/2000 was registered u/s 392/34 IPC. An information was received at P.S. Shahpura, (Rajasthan) at 8:05 p.m on 18.07.2000 that a red colour Opel Astra Car No. DL-9CA-3468 has fled from by-pass Petrol Pump towards Jaipur by showing arms/gun after filling the petrol without paying money. Barriers were set up and at about 8:15 p.m on the same night, Car No. DL-9CA-3468 came from Sahapura side at a fast speed. Seeing the police, the car stopped from which three persons came down and ran towards 'Rashid Farms'. One person was apprehended with a double barrel gun and cartridges. The apprehended person told his name to be Dharamvir whereas his two accomplices, namely, Charan Singh and Ajay Yadav SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 2/27 managed to escape. From the search of the car, one more gun and cartridge were found. The accused told that the car was theft from Delhi. Accused Dharamvir with his co-accused Ajay Yadav and Charan Singh faced trial under Section 411/34 IPC for possession of the guns and under Section 3 of the Arms Act before the Judicial Magistrate, First Class, Shahpura. The intimation about the apprehension of the accused person was given to PS Mehrauli and the accused persons were formally arrested in the present FIR.
2. After completion of investigation, charge-sheet was filed and the accused persons were charged u/s 392/34 IPC by the Court of Metropolitan Magistrate as the offence u/s 392 IPC is triable by a magistrate. The accused persons pleaded not guilty and claimed trial. The court of the ld. Magistrate proceeded with recording evidence. However, when the matter was listed before the court of Ld. ACMM III, South for recording of statement of the accused persons, an application was filed by the Ld. APP u/s 323 Cr PC for committing this case to the Sessions Court as the offence of robbery was committed at gun point and hence Section 397 was SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 3/27 invoked. The said application was allowed and accordingly the matter was committed to this court on 19.7.2010 and vide order dt. 14.11.2011, charge u/s 392/397/34 IPC was framed against the accused which he denied and claimed trial. On 16.4.2012, Ld. Counsel for the accused persons stated that he has no objection if the statements already recorded before the Court of Ld. MM/ACMM are read into evidence even before this Court. In these circumstances, the case was proceeded further from the stage it had reached before the court of Ld. ACMM/MM.
3. In order to prove the charges against the accused persons, prosecution had led evidence and had examined 11 witnesses before the court of Ld. Metropolitan Magistrate. The relevant gist of the evidence of all the eleven witnesses is as under:
4. PW-1 Ashok Jai Singh is the complainant, who stated that on 16.07.2000 when he was at his farm land at Dera Mandi, Mehrauli at about 4:30-5:00 p.m where he had gone by his car No. DL-9CA-3468 make Opel Astra. After spending fifteen minutes, when he was coming towards his car with Purohit of Dongi Baba SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 4/27 Mandir, three boys in muffled face came towards him and two of them were having double barrel guns with them. They pointed the guns towards him and asked him to sit in the car and took the car's keys from him. The witness told them that they can take whatever they wish but the assailants asked him and the Purohit to accompany them towards a room built by the temple. In the room, they took away his mobile phone, his gold chain with pendent, credit-card and cash of Rs.9,000/-. Thereafter, taking the keys of the lock from the Baba, they locked both of them inside the room and they went away in the car. After about half an hour, they could come out with the help of Malis. Thereafter, he called police at 100 number. He proved his complaint as Ex.PW1/A. After about 11-12 days, he received an information from SI Raj Kumar of P.S. Mehrauli regarding recovery of his car which was recovered at P.S. Sahapura, District Jaipur, Rajasthan. Thereafter, he went there and got the said vehicle released on superdari on execution of a superdiginama. He could not identify the accused persons in the court. He produced the car No. DL-9CA-3468 make Opel Astra which he had got released on superdari from the SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 5/27 court of Judicial Magistrate, Sahapura, Rajasthan in case FIR No. 169/2000, P.S. Manoharpur vide release order dated 25.07.2000, copy of the said order was proved as Ex.PW1/B and the receipt of the car was proved as Ex.PW1/C. This witness was not cross- examined, although, opportunity was given.
5. PW-2 Ram Kumar Pandey deposed that on 18.07.2000 at about 8:00 p.m, he was on duty at Sadhna Petrol Pump Service Station on NH-8. At that time, Opel Astra Car No. DL-9CA-3468 red colour came from Delhi side. The person driving the car demanded filling the petrol of Rs.1500/-. Two other persons were sitting inside the car on the back seat. After filling the petrol of Rs. 1500/- when the money was demanded, the person who was on the driver seat showed him a double barrel gun and ran away from there towards Jaipur. Police was informed by his employer Juggal Kishore. Thereafter, he alongwith Gopal and Sardarmal followed the accused persons towards Jaipur in Jeep. The car in question was found at Manoharpur Toll Tax Barrier at about 8:30 p.m. Accused Dharamvir was identified by him to be the person, who SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 6/27 had shown the double barrel gun to him. The other two persons had managed to escape. Accused Dharamvir had disclosed that the car in question was stolen from Delhi as well as the guns which were also stolen by him. In his cross-examination, the witness was confronted with the statement recorded under Section 161 Cr.P.C wherein he had not named the accused Dharamvir as the person, who was driving the car; that the person showing him the gun was accused Dharamvir; that the accused Dharamvir had asked him to filling the petrol in the car. He admitted that a separate case was registered against the accused at P.S. Sahapura, Rajasthan after recovery of car in the case. He denied the suggestion that the accused Dharamvir had not given the statement in his presence.
6. PW-3 Sardarmal deposed that on 18.07.2000, he was present at about 8:00 p.m at Sadhna Service Station Petrol Pump at Sahapura by-pass road alongwith Ram Kumar Pandey and Gopal. At that time a red colour Opel Astra Car No. DL-9CA-3468 came from Delhi side and three persons were sitting in that car and one of them who was sitting at the back seat had ordered him to fill SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 7/27 petrol of Rs.1500/- in the car. After filling of the petrol, when he demanded the money of Rs.1500/- from them, they ran away. Thereafter, he alongwith Ram Kumar Pandey and Gopal followed them in a Jeep No. RJ-14-2C-4115. Gopal had informed to P.S. Sahapura regarding the incident in question. Three persons were nabbed by the police at Sahapura at Toll Tax Barrier, Sahapura before they reached there. He came to know that two of them succeeded in running away and only one person was caught by the police, namely, Dharamvir, who was identified by this witness. Only suggestions were given regarding his non-presence at the time of apprehension of accused in his cross-examination conducted by the accused Dharamvir.
7. PW-4 HC Om Prakash proved recording of FIR No. 450/2000 on receipt of Rukka as Ex.PW4/A.
8. PW-5 Ct. Kailash Chand proved going to the spot with SI Raj Kumar at about 5:45 p.m on 16.07.2000 where SI Raj Kumar recorded the statement of the complainant. On this statement, SI SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 8/27 Raj Kumar prepared the rukka and handed over it to him for registration of the FIR.
9. PW-6 SI Manoj Kumar stated that on 10.08.2000 when he was posted as Sub-Inspector in Special Investigation Team, Amar Colony, he received an information regarding arrest of three accused persons at Chirag Delhi Gate regarding an offence punishable under Section 25 of the Arms Act. Reaching there, one of the accused Ajay Yadav disclosed to SI Bhim Singh that on the night of 12-13/07/2000, he alongwith his companion Chand Kiran, Sunder and Dharamvir had committed robbery at Mehra Farm House, Mehrauli where they had robbed two double barrel guns. On 16-17/7/2000, he alongwith Dharamvir and Charan Singh committed a robbery with the double barrel gun near Dhongi Baba Mandir and they had robbed Opel Astra Car, mobile phone, gold chain with locket and cash. Accused Ajay was identified by him.
10. PW-7 HC Ram Chander of P.S. Manoharpur deposed about stopping Opel Astra Car No. DL-9CA-3468 on 18.07.2000 at Toll Tax Barrier, Manoharpur. He stated that at 8:15 p.m, Opel Astra SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 9/27 Car No. DL-9CA-3468 came at a very fast speed and when it was indicated to stop, the driver of the car stopped the car and just thereafter three persons who were inside the car including the driver tried to run away but one of them was nabbed on the spot while his two companions succeeded and escaped. In the meanwhile, Sardarmal and Ram Kumar Pandey also reached there in a Jeep. The person nabbed was Dharamvir and two double barrel guns were seized from beneath the back seat of the car alongwith the cartridges. The accused Dharamvir was identified by the witness in the court.
11. PW-8 Ct. Parminder Kumar stated that on 02.08.2000, accused Dharamvir was brought from Kotputli Jail by him and SI Raj Kumar in the present FIR No. 450/2000. During journey, accused disclosed that on the night of 12-13/07/2000, he alongwith Chand Kiran, Sunder and Ajay Yadav forcibly taken double barrel gun from a person at Mehra Farm House and by pointing double barrel gun on 16.07.2000 they had robbed a person at Modi Farm House near Dhongi Baba Mandir and they had forcibly taken Opel SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 10/27 Astra Car, mobile phone, gold chain. He identified the accused Dharamvir in the court. This witness was not cross-examined despite opportunity.
12. PW-9 SI Bhim Singh deposed that on 10.08.2000 when he accompanied SI Manoj Kumar regarding FIR No. 692/2000 under Section 25 of the Arms Act in which accused Ajay Yadav was arrested. He stated that during interrogation, Ajay Yadav disclosed that on 16.07.2000, he alongwith Charan Singh and Dharamvir robbed a person near Dhongi Baba Mandir and Opel Astra Car, mobile phone, gold chain and cash were taken forcibly from that person. On the same day, accused Charan Singh was arrested at the pointing out of accused Ajay Kumar. Witness identified Ajay Yadav and Charan Singh.
13. PW-10 Ms. Shail Jain, M.M proved the TIP of accused Dharamvir conducted on 05.08.2000 wherein the accused had refused to take part in the TIP. TIP proceedings were proved as Ex.PW10/C and statement of accused regarding his refusal to take part in the TIP as Ex.PW10/A. SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 11/27
14. PW-11 SI Raj Kumar is the IO, who proved his part of investigation.
15. Since the complainant had refused to identify the accused, therefore, the charge under Section 392/397 IPC could not be proved against the accused. The other two co-accused persons, namely, Charan Singh and Ajay Yadav were, therefore, acquitted vide order dated 20.07.2012 as there was no incriminating material against the accused persons Charan Singh and Ajay Yadav. Their S/A under Section 313 Cr.P.C was dispensed with and they were acquitted of the charge under Section 392/397 IPC vide order dated 20.07.2012 but since evidence with regard to the possession of stolen property i.e Opel Astra Car No. DL-9CA-3468 was available against the accused Dharamvir, he was examined under Section 313 Cr.P.C on this.
16. All the circumstances appearing against the accused were put to him in his examination u/s 313 Cr P.C. which were denied by the accused.
SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 12/27
17. Ld. Counsel for the accused has argued that the trial of the accused in this FIR is barred as the only incriminating circumstances put to the accused in his examination u/s 313 Cr PC is recovery of stolen property i.e. Opel Astra Car DL 9C A 3468 from his possession i.e. u/s 411 IPC. Ld. Counsel has stated that the accused had faced a trial in the Court of Judicial Magistrate, First Class, Shahpura, District Jaipur in FIR No. 169/2000 dt. 18.7.2000 u/s 411 IPC and Section 3 of the Arms Act where he was convicted but in appeal the said conviction was set aside. Ld. Counsel has stated that once the accused has faced trial u/s 411 IPC for possession of the stolen property, he cannot be tried again for the same offence u/s 411 IPC and the same would be hit by provisions of Section 300 Cr PC. On merits, it has been argued that there was no conscious possession of the stolen property on the part of the accused, which is a sine-qua-non for the offence u/s 411 IPC and hence the prosecution has not been able to prove the said offence against the accused. The Ld. Counsel has therefore prayed for acquittal of the accused.
SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 13/27
18. On the other hand, Ld. Addl. PP has argued that although the accused had faced charge u/s 411 IPC but that charge was for possession of arms and not for possession of the car in question and hence both the charges being based on different facts, this Trial is not barred. On merits, it has been stated that the car in question i.e. Opel Astra DL 9C A 3468 was robbed by three persons at gun point on 16.7.2000 from the complainant Ashok Jai Singh at 4.45 pm. The car was recovered on 18.7.2000 at 8.05 pm at PS Shahpura, Rajasthan and three persons ran away from the car and one person was apprehended after a chase while two other persons managed to escape. The persons apprehended was the accused Dharamveer from whom guns and the car was recovered, which was a stolen property. It has been stated that the car was identified by the complainant and he took superdari of the said car on the orders of the Judicial Magistrate, Shahpura. The Ld. Addl. PP has therefore prayed for conviction of the accused Dharamveer for the offence u/s 411 IPC.
SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 14/27
19. I have heard both the sides and have perused the records of this case carefully. The argument of the Ld. Counsel for defence is that the accused cannot be tried again for an offence u/s 411 IPC for which he was already been tried and convicted by the Court of Judicial Magistrate, First Class, Shahpura, Rajasthan. A certified copy of the charge and the Judgment of the said FIR No. 169/2000 PS Shahpura has been placed on record by him. A perusal of the said charge shows that the accused Dharamveer alongwith co- accused Charan Singh and Ajay was charged u/s 411/34 IPC for possession of stolen guns in that case. This charge did not relate to possession of stolen car Opel Astra DL 9C A 3468. It is observed that registration of the present FIR No. 450/2000 was noted by the Court of Judicial Magistrate. There are no findings about the present FIR in the said Judgment.
20. Article 20 (2) of the Constitution provides that:-
"No person shall be prosecuted and punished for the same offence more than once."
SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 15/27 On the same lines are the provisions contained in Sub-section (1) of Section 300 of Cr. P.C.:-
"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the once made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub- section (2) thereof."
21. This section enacts the rule of 'autrefois acquit' and 'autrefois convict' applicable to criminal trials. The rule is that so long as order of acquittal or conviction at a trial held by a Court of competent jurisdiction of a person charged committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried, of any other offence arising therefrom. The basic principle is embodied in the maxim nemo debet bis puniri pro uno delicto that it is to say, that no one ought to be punished twice for the offence or for the same cause. SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 16/27
22. In the case of Amritlal Batilal Mehta and Anr. v. State of Gujarat, reported in AIR 1980 SC 301, the Apex Court held as under :-
"that the question whether an earlier finding which had attained finality is binding in the subsequent proceedings in the case would depend on the question as to what the allegations were, what facts were required to be proved and what findings were arrived at. The question thus, is not whether the ingredients of the two offences are the same but whether the facts alleged and required to be proved in the particular case to establish the offences are basically the same"
23. In Vaman Narayan Ghiya and etc. v. State of Rajasthan 2009 Cr LJ 4729 Rajasthan, it was held:
The true test by which the question whether there is bar to second trial in any particular case is to be determined is whether the evidence necessary to support the second indictment would have been sufficient to procure illegal conviction upon the first. A trial is said to be upon the same facts if the evidence in the first case would have supported a conviction for the offences charged in the second case. It is SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 17/27 a settled proposition of law that generally no accused shall be vexed with more than one trial for the offences arising out of the same set of facts.
24. A perusal of the present case file shows Order dt. 22.11.2000 which reads as under:
"Part submission on the point of charge heard. On perusal of file it is submitted by Ld. Counsel for accused that a separate trial u/s 411/379 IPC and section 3 Arms Act has started against him at Manoharpur Jaipur regarding recovery of Opel Car. ....."
25. Charge u/s 392/34 IPC was thus framed against the accused on 4.1.2001 by the Ld. Metropolitan Magistrate.
26. Apparently, no charge u/s 411 IPC regarding the Opel Astra Car was framed against the accused at Shahpura in view of the pendency of FIR No. 450/2000 which was registered at P.S. Mehrauli and only a charge u/s 411/34 IPC and Section 3 of the Arms Act was framed against the accused for possession of stolen SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 18/27 guns on 1.8.2002. The accused never informed the Court at Shahpura that the Delhi court has not framed any charge against him u/s 411 IPC for possession of stolen Opel Astra car. The accused thus cannot take advantage of the situation and resist these proceedings on the ground of Section 300 Cr. PC.
27. Since the trial was held at Shahpura was u/s 411 IPC for possession of stolen guns only and not for possession of Opel Astra Car No. DL 9C A 3468, this court is fully competent for trying the accused u/s 411 IPC for possession of stolen car and these proceedings will not be hit by the provisions of Section 300 Cr PC.
28. Section 411 IPC deals with punishment for dishonestly receiving or retaining any stolen property knowing or having reason to believe the same to be stolen property. Stolen property has been defined under Section 410 IPC to be a property whose possession has been transferred by theft or by extortion or by robbery.
SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 19/27
29. Complainant Ashok Jai Singh had lodged an FIR that on 16.07.2000 at about 4:30 p.m, he had gone to his farm in his Opel Astra Car No. DL-9CA-3468 and after parking his car, he went to the Mandir of Dhongi Baba. After 15 minutes, he came out after talking to Udit Mishra, priest of the temple and when he reached near his car, suddenly three boys came. Two boys had double barrel guns in their hands and after pointing the guns towards him, complainant was asked to sit in the car. Complainant offered them to take whatever they wanted but the assailants directed him to keep quiet and sit in the car. On this, priest told him not to do the same. On this, one boy pointed the gun on Udit Mishra and took the complainant to go to the room near temple where at the gun- point, they took his mobile phone, gold chain with pendent, lighter, credit-card and Rs.9,000/- cash. Thereafter, the complainant and Udit Mishra were locked in a room and the assailants also took away his car No. DL-9CA-3468. On this statement, FIR No. 450/2000 was registered under Section 392/34 IPC. SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 20/27
30. During the course of trial, complainant appeared as PW-1, however, he could not identify the accused Dharamvir. He narrated the incident of 16.07.2000 as noted above. However, he stated that after about 11-12 days, he received an information about recovery of his car in P.S. Shahpura, District Jaipur, Rajasthan whereupon he went there and took his vehicle on superdari and he could not identify the accused. He produced the car which was got released by him in case FIR No. 169/2000, P.S. Manoharpur vide release order dated 25.07.2000 and proved copy of the order dated 25.07.2000 as Ex. PW1/B and receipt of the car as Ex.PW1/C. PW-2 Ram Kumar Pandey and PW-3 Sardar Mal have identified the accused Dharamvir as the person who was apprehended by the police alongwith the car.
31. The car in question was stolen property as the complainant PW-1 had stated that his car No. DL-9CA-3468 was taken away by the three assailants on 16.07.2000.
32. Ld. Counsel has laid stress on the point that the accused was not in conscious possession of the Car in question and unless the SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 21/27 prosecution proves that the possession of the accused was 'conscious' possession, he cannot be convicted for the offence u/s 411 IPC. In his examination u/s 313 Cr PC wherein his reply was sought to the circumstance that the Opel Astra Car was found from his possession on 18.7.2000 by police officials of PS Manoharpur, he gave a vague reply and said "It is incorrect." The accused thus had the opportunity to account for the possession of the stolen car and to state the circumstances in which the car was found in his possession. The accused failed to avail this opportunity. Section 106 of the Evidence comes into service in such a situation which provides "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." This Section clearly lays down that when the prosecution has discharged its initial burden of proving the case against the accused, the onus shifts on the accused to prove the circumstances specially within his knowledge. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In State of West Bengal vs. Mir Mohammad Omar 2000 Cr LJ 4047 the SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 22/27 Hon'ble Supreme Court held that the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. The Hon'ble Supreme Court relied the following observations made in the case of Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404:
"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowlege of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowlege."
SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 23/27
33. In Shah Guman Mal vs. State of A.P. AIR 1980 SC 793 the Hon'ble Supreme Court held that a person who was found in possession of gold with foreign markings, burden lay on him to account for his possession. Similar view was taken in Labhchand Dhanpat Singh Jain, v. State of Maharashtra AIR 1975 SC 182
34. As noted above, the accused failed to discharge the burden laid on him by Section 106 of the Evidence Act, an adverse inference about the possession of the stolen car would go against him. Once the prosecution had proved its burden of showing possession of stolen car with the accused, it was for the accused to have proved absence of any criminal intent in his possession of the said car.
35. Section 114 - Illustration (a) provides that the court may presume that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. In other words, where the accused is found in possession of stolen property a duty is cast upon him to account for such possession and in his SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 24/27 incapability to do so, legal presumption under Section 114 (a) of the accused being thief or receiver of the stolen property can be drawn by the court. The accused was not identified by the complainant and hence the accused cannot be held to be thief. But deposition of witnesses PW-1, PW-2 and PW-3 together with taking possession of the car by the complainant proves that he had retained the stolen property. In Satya Narain vs. State, AIR 1972 SC 1561, it was held that conviction of an accused under Section 411 IPC with the aid of Section 114 (a) of the Evidence Act is permissible in view of the legal presumption. The car in question was robbed on 16.07.2000 and the same was found in possession of the accused on 18.07.2000. Admittedly, the car does not belong to the accused. He has not been able to account for the possession of the car in his examination under Section 313 Cr.P.C. All the ingredients of Section 411 IPC are thus made out against the accused Dharamveer.
SC No. 61/10 FIR No. 450/2000 St vs. Dharamvir 25/27
36. The question which now arises for consideration is whether in the absence of a specific charge u/s 411 IPC, there can be conviction of an accused.
37. Section 222 Cr PC provides for tackling a situation like the present one. Sub section (2) which would be relevant in the present case, provides as under:
"when a person is charged with an offence and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
38. In Vazhambalakkal Thomachan, Appellant v. State of Kerala, 1978 Cr LJ 498, Division Bench of the Kerala High Court had, in a case of conviction u/s 411 IPC where he was charged u/s 302 IPC, held in Para 10 that in the absence of the charge for robbery or theft, the appellant cannot be convicted under S. 411 I.P.C. In other words, where a charge for robbery u/s 392 was framed, a conviction u/s 411 IPC can be made with the aid of Section 222 (2) Cr PC.
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39. Since, all the ingredients of Section 411 IPC are fulfilled, hence the accused is convicted under Section 411 IPC.
Announced in the open Court. (RAJEEV BANSAL)
Dated: 31.07.2012 ASJ-03 (South District)
Saket Courts, New Delhi.
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