Delhi District Court
State vs Sonu Dass Etc on 16 April, 2024
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 2036321/2016
STATE Vs. SONU DASS AND OTHERS
State vs. Sonu Dass and Others
FIR No. 192/2012
Police Station : Saket
Under Section : 411 IPC and 103 DP Act
Date of institution : 01.11.2012
Date of reserving : 19.03.2024
Date of pronouncement : 16.04.2024
JUDGMENT
a) Serial number of the case : 2036321/2016 b) Date of commission of : 08.09.2012 offence c) Name of the complainant : Sh. Vinay Ahuja
d) Name, parentage and : i) Sonu S/o Sh. Mohan Lal address of the accused R/o 1545, Gali No. 1, Vijay persons Park, Mojpur, Delhi.
ii) Kamal @ Billa @ Dharamveer S/o Sh. Baishaki Ram R/o 178, Gali No. 3, Kachchi Colony, Mojpur, Delhi.
iii) Rajeev S/o Sh. Chunchun R/o 179, Gali No. 2, Bank Colony, Mandoli, Delhi.
State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 1 of 23
iv) Kamlesh @ Kajal W/o Sh.
Ramesh @ Kalu R/o 1/6916, 1st Floor, East Rohtash Nagar, Shahdara, Delhi - Declared Proclaimed Absconder vide order dated 30.10.2023.
e) Offence complained of : 411 IPC and 103 DP Act f) Plea of the accused : Accused persons pleaded not persons guilty g) Final order : Accused Kamal @ Billa convicted under Section 411 IPC and Section 103 DP Act. Accused Sonu convicted under Section 411 IPC. Accused Rajeev acquitted under Section 411 IPC and Section 103 DP Act. h) Date of final order : 16.04.2024 BRIEF STATEMENT OF FACTS FOR THE DECISION CASE OF THE PROSECUTION
1. It is the case of the prosecution that on 15.06.2012, the complainant's neighbour noticed broken lock in complainant's residence and intimated the same to the police station. Thereafter, the complainant recorded his complaint regarding theft of various jewellery and glass items with the police station on which the present FIR was registered. On 08.09.2012, on the basis of information received from a secret informer, accused Sonu was State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 2 of 23 apprehended and two golden bangles belonging to the complainant were recovered from his possession. On the basis of his disclosure, accused Kamal was apprehended and one gold chain and one gold bangle belonging to the complainant were recovered from the possession of accused Kamal @ Billa @ Dharamveer. Further, various artificial jewellery were also recovered from accused Kamal, which he could not satisfactorily account for. During police remand of accused Sonu and Kamal, six silver glasses and one gold chain belonging to the complainant were recovered from the possession of accused Rajeev and various silver jewellery, ornaments and articles were also recovered, which he could not satisfactorily account for. Accused Kamlesh was also chargesheeted as certain stolen property were recovered from her. However, during trial, she was declared proclaimed absconder.
CHARGE
2. Vide order dated 10.05.2014, charge for the offence punishable under Section 411 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC") was framed against accused Sonu Dass who pleaded not guilty and claimed trial. Also, on the same day, charge for the offences punishable under Sections 411 IPC and Section103 of the Delhi Police Act, 1978 (hereinafter referred to as "the DP Act") was framed against accused Kamal @ Billa @ Dharamveer and Rajeev who also pleaded not guilty and claimed trial.
State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 3 of 23 EVIDENCE OF THE PROSECUTION
3. Prosecution has examined ten witnesses i.e. PW1 Sh. Vinay Ahuja (the complainant), PW2 W/Ct. Sunita, PW3 HC Ramvir, PW4 Sh. Bijender @ Birju, PW5 HC Vinod, PW6 SI R.S. Tyagi (the IO), PW7 Sh. Rajender Singh, PW8 ASI Dinesh, PW9 Retired SI Tara Chand and PW10 Retired SI Virender Singh.
4. PW1 Sh. Vinay Ahuja (the complainant) deposed that on 11.06.2012, he had gone to Nepal for about six days with his family. On 15.06.2012, when his neighbour Ms. Madhuri went outside the house of the complainant to water the plants, she witnessed that the lock of the house of the complainant was broken. Thereafter, she telephonically called the complainant and informed him of the theft. She also made call to the police. On 16.06.2012, the complainant along with his family returned to Delhi and filed formal complaint (Ex PW1/A) to the police, narrating the missing articles. On 08.10.2012, the complainant came to the court to identify some of his articles i.e. four gold bangles, two gold chains and six silver glasses, which were recovered by the police. The recovered articles i.e. four gold bangles, two gold chains and six silver glasses were produced by the MHC(M) and the same were correctly identified by the complainant as belonging to him.
5. PW2 W/Ct. Sunita deposed that on 12.09.2012, she joined the investigation of the present case along with IO ASI Ravi Shankar. At around 10:30 am, PW2 along with the IO, accused State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 4 of 23 Kamal and other staff members went to Saket Court bus stand. One secret informer came and informed that a lady, who was wanted in the present case, would come at Saket Courts complex to meet her lawyer from Sahadara. At around 11:00 am, one DTC bus arrived at the aforesaid bus stand. The aforesaid lady alighted from the bus and on pointing out by the secret informer, she was apprehended by PW2 with the help other staff. The name of the lady was revealed as Kamlesh, who was identified by accused Kamal as his brother's wife (Bhabhi). Accused Kamlesh was brought to the police station. Thereafter, PW2 deposed as to the arrest of accused Kamlesh by the IO vide Ex PW2/A. Accused Kamlesh was also personally searched vide Ex PW2/B. Accused Kamlesh was wearing a golden chain. IO interrogated her on the aspect of the said gold chain and accused Kamlesh disclosed that she had purchased the said gold chain from accused Kamal for a consideration of Rs.12,000/-. Thereafter, the IO put the said golden chain in a matchbox, prepared pullanda, sealed with the seal of 'RS' and took the same into police possession vide seizure memo Ex PW2/C. IO also recorded the disclosure statement of accused Kamlesh vide Ex PW2/D. PW2 correctly identified accused Kamlesh and Kamal. She also correctly identified the gold chain recovered from the possession of accused Kamlesh.
6. PW3 HC Ramvir is the Duty Officer, who proved registration of the present FIR on 16.06.2012 vide Ex PW3/A.
7. PW4 Sh. Bijender @ Birju deposed that apart from the fact that the police had obtained his signatures on certain papers, he did not know anything else about the present case. Since PW4 State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 5 of 23 did not support the case of the prosecution, he was cross- examined by the Ld. APP for State.
8. PW5 HC Vinod deposed that on 06.09.2012, IO ASI Ravi Shankar received a secret information that one person, who was involved in theft cases, would come at Lado Sarai on motorcycle at around 04:00 pm. IO shared the said information with the then SHO and on direction, a raiding party was formed by the IO comprising of SI Sashikant, SI Proshun, HC Ajeet, HC Billu, ASI Satender, Ct. Umesh and PW4. The secret informer also accompanied them. Thereafter, they went to Lado Sarai, near Hanuman Mandir in a Govt. vehicle, which was being driven by Ct. Kaushlender. They reached there at around 04:00 pm and parked the said Govt. vehicle near the spot. IO ASI Ravi Shankar briefed the raiding party and requested 4-5 public persons to join the raid but none agreed and left the spot without disclosing their names and addresses. Thereafter, they took position at the spot i.e. Hanuman Mandir, Lado Sarai. At around 04:15 pm, one motorcycle, Make Bajaj Pulsar (Black colour) came from Aurbindo Marg side. The secret informer pointed out towards the said motorcycle. Thereafter, PW5 along with help of HC Tara Chand apprehended the motorcyclist whose name was revealed as Sonu. PW5 correctly identified accused Sonu. The registration number of the said motorcycle was DL-7S-7490. Thereafter, IO ASI Ravi Shankar asked the accused to produce the documents of the said motorcycle but he did not produce any document nor did he give any satisfactory reply in that regard. IO ASI Ravi Shankar seized the said motorcycle vide seizure memo PW5/A. Thereafter, the IO carried out cursory search of accused State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 6 of 23 Sonu and found one mobile phone, Make Spice, from his pant pocket. On inquiry, it was revealed that the said mobile phone was stolen from PS Safdarjung Enclave and FIR No. 222/12, PS Safdarjung Enclave had already been registered. IO seized the said mobile phone vide seizure memo Ex PW5/A1. Thereafter, the IO arrested and carried out personal search of accused Sonu vide memos Ex PW5/B and Ex PW5/C respectively. IO also recorded disclosure Statement of accused Sonu vide Ex PW5/D. 8.1 PW5 further deposed that thereafter, the aforesaid raiding party went to H. No. 178, Maujpur Colony, Jamuna Paar, Kachchi Colony. Accused Sonu knocked the door of the said house. One person opened the gate of the said house. Accused Sonu told the police officials that the name of the said person was Kamal @ Billa, who was his associate and involved in many theft cases. Thereafter, the police officials apprehended accused Kamal @ Billa. The identity of accused Kamal @ Billa was not disputed. Thereafter, the IO interrogated accused Kamal. Accused Kamal got recovered one mobile phone, Make Micromax (Black colour) from his house. IO seized the said mobile phone vide seizure memo Ex PW5/E. IO arrested and carried out personal search of accused Kamal vide memos Ex PW5/F and Ex PW5/G respectively. Accused Kamal @ Billa got recovered one motorcycle, Make Bajaj Discover (blue black colour) bearing registration No. DL-7-1192, which was parked in front of his house. Accused Kamal disclosed that he along with his associate had stolen the said motorcycle from Sahadara area. PW5 did not remember the exact registration number of the aforesaid motorcycle but an FIR had already been registered in State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 7 of 23 that regard. IO seized the said motorcycle vide seizure memo Ex PW5/H. IO recorded disclosure statement of accused vide Ex PW 5/I. Accused persons, namely, Sonu and Kamal pointed out the place from where they had stolen jewelery and cash. IO prepared the pointing out memo at their instance vide Ex PW5/J. 8.2 PW5 further deposed that on 08.09.2012, he joined the investigation of the present case along with IO ASI Ravi Shankar, SI Proshun, SI Sashikant, HC Tara Chand, HC Ajeet and HC Billu. IO obtained three days PC remand of both the accused persons, namely, Sonu and Kamal. During the course of PC remand, the police officials along with both the accused persons went to East Rohtash Nagar, Sahadara in a Govt. vehicle. Thereafter, they went to H. No. 1/6916, 1 st Floor, East Rohtash Nagar. Accused Kamal disclosed that the said house belonged to his brother, namely, Kalu and his Bhabhi, namely, Kamlesh @ Kajal. The accused further disclosed that his Bhabhi i.e. Kamlesh was involved in selling of stolen articles. Thereafter, accused Kamal knocked the door of the aforesaid house. One lady, namely, Ms. Sona opened the door of the said house and informed that Kamlesh @ Kajal had fled away from the house after arrest of accused Kamal. Accused Kamal brought a katta from a bed, which was lying in the room of the said house. IO opened the said katta and found artificial jewelleries weighing around 14 or 15 kg. IO prepared pullanda of the said artificial jewelleries and sealed the same with the seal of RS. The same were taken into police possession vide seizure memo Ex PW5/K. 8.3 PW5 further deposed that thereafter, they went to State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 8 of 23 Deepanshu Jeweler, Jyoti Nagar along with the accused persons. The shop of the said Jeweler was found closed. Thereafter, they went to Hari Jewelers at Bank Colony, Harsh Vihar along with the accused persons. IO requested the public persons to join the investigation/raiding party. One person, namely, Sh. Bijender @ Birju agreed to join the raiding party/investigation. The accused persons disclosed that they had sold the stolen articles i.e. jeweleries at the aforesaid shop. Thereafter, the police officials and the accused persons entered the said shop, where they found that one person was sitting. The accused persons pointed out towards the said person and disclosed that they had sold the stolen articles to him. The police officials apprehended the said person, whose name was revealed as Rajeev. PW5 correctly identified accused Rajeev. Accused Rajeev disclosed that he had purchased the stolen articles from the accused persons and one Kamlesh. Thereafter, accused Rajeev produced one plastic box containing articles i.e. anklets, ear rings, idols etc., (Total 11 articles). Accused Rajeev disclosed that he had prepared the said articles after melting the stolen articles sold to him by the accused persons. IO seized the said articles vide seizure memo Ex PW5/L. Accused Rajeev also produced 6 silver glasses and one gold bangle (Kara) to the IO. The same were also taken into police possession vide seizure memos Ex PW5/M and Ex PW5/N. Accused Rajeev also produced a katta containing scrap of artificial jeweleries. The same was taken into police possession vide seizure memo Ex PW5/O. Thereafter, the IO arrested accused Rajeev and carried out his personal search vide memos Ex PW5/P and PW5/Q. IO also recorded the disclosure State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 9 of 23 statement of accused Rajeev vide Ex PW5/R. 8.4 PW5 further deposed that thereafter, the police officials went to House No. 178, Kachchi Colony, Mauj Pur, i.e. house of accused Kamal along with the accused persons. Accused Kamal got recovered one gold chain and one bangle (Kara) from his house. The same were taken into police possession vide seizure memo Ex PW5/S. 8.5 PW5 further deposed that thereafter, they went to Vijay Park, Mauj Pur i.e. house of accused Sonu along with the accused persons. Accused Sonu got recovered two gold bangles (Kara) from his house. The same were taken into police possession vide seizure memo Ex PW5/T. 8.6 PW5 further deposed that on 10.09.2012, he joined the investigation of the present case along with the IO. The IO interrogated accused Sonu and Kamal in the police station and recorded their supplementary disclosure statement vide Ex PW5/U and PW5/V. During the course of PC remand, PW5 along with the IO, other staff members and the accused persons went to East Delhi to search remaining articles but no clue was found.
8.7 PW5 further deposed that on 11.09.2012, he again joined the investigation of the present case along with IO ASI Ravi Shanker, SI Prashun, ASI Shashikant, HC Tara, HC Ajeet and HC Billu. They along with the accused persons, namely, Sonu and Kamal went to H. No. 178, 1st Floor, Kachchi Colony, Mauj Pur, State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 10 of 23 i.e. house of accused Kamal. Accused Kamal got recovered one house breaking instrument i.e. iron rod of 'L' Shape with cloth wrapped on one side of the same. Accused Kamal disclosed that he along with his associates used the said rod to break the lock of the doors in many theft cases. IO seized the said instrument vide seizure memo Ex PW5/W. Thereafter, they searched for his associates but no clue was found.
8.8 PW5 further deposed that on 12.09.2012, he again joined the investigation of the present case along with IO ASI Ravi Shanker, SI Prashun, ASI Shashikant, HC Tara, HC Ajeet, HC Billu and lady Ct. Sunita. They along with the accused persons, namely, Sonu and Kamal went to Madangir to search accused Kamlesh. One secret informer came there and informed the IO that accused Kamlesh would come at Saket Court to find out advocate for the accused persons, namely, Sonu and Kamal. Thereafter, the police officials with the accused persons reached at bus stand, Press Enclave Road. IO ASI Ravi Shanker requested 4-5 public persons to join the investigation but none agreed and left the spot without disclosing their names and particulars. At about 11:00 am, one lady along with one child alighted from the bus at the said bus stand. Accused Kamal pointed out towards the said lady and disclosed her name as Kamlesh i.e. his Bhabhi. On instruction of the IO, lady Ct. Sunita apprehended the said lady. PW5 correctly identified accused Kamlesh. Thereafter, accused Kamlesh disclosed that she used to sell the stolen articles which were provided to her by the accused persons. Accused Kamlesh produced one gold chain which was worn by her and she disclosed that she had purchased the said gold chain from the State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 11 of 23 accused persons for a consideration of Rs.12,000/-. The same was taken into police possession vide seizure memo Ex PW2/C. IO recorded disclosure statement of accused Kamlesh vide Ex PW2/D. IO arrested accused Kamlesh vide arrest memo Ex PW2/A. Lady Ct. Sunita carried out personal search of accused Kamlesh vide memo Ex PW2/B. IO ASI Ravi Shanker prepared site plans of the said recoveries vide Ex PW5/X1 to X5. PW5 correctly identified accused Kamal @ Billa.
8.9 PW5 correctly identified the gold bangle (Ex P1) which was was recovered from the possession of accused Rajeev. He further correctly identified the gold bangle (Ex P2) which was recovered from the possession of accused Kamal @ Billa. He further correctly identified the gold bangles (Ex P3) which were recovered from the possession of accused Sonu @ Dass. He further identified the silver glasses (Ex P4) which were recovered from the possession of accused Rajeev. He further correctly identified the gold chain (Ex P5) which was recovered from the possession of accused Kamal @ Billa. He further identified the gold chain (Ex P6) which was recovered from the possession of accused Kamlesh. He further correctly identified the case properties (Ex P7) made of silver i.e. 10 pair paizeb, one mangal sutra without pandal, one single paizeb, four pair guchhe, three tagri, one ring, four chhattar, one kanghi, three kade of children, one chabi ka chhalla and one murti of Shankar Bhagwan. He further correctly identified the artificial jewelery (Ex P8) which were recovered at the instance of accused Kamal from the house of accused Kamlesh. He further correctly identified the artificial jewelery (Ex P9) which were recovered from the possession of State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 12 of 23 accused Rajeev. He further correctly identified the motorcycle bearing registration No. DL-7SBC-7490 (Ex P10) which was recovered from the possession of accused Sonu.
9. PW6 SI R.S. Tyagi (the IO) deposed on the similar lines as deposed to by PW5 HC Vinod, as PW5 was also one of the members of the raiding team along with the IO. Additionally, PW6/IO deposed that he prepared the charge sheet and filed it before the court. PW6 correctly identified accused Sonu, Kamal and Rajeev. The witness was duly cross-examined by the Ld. Defence Counsels.
10. PW7 Sh. Rajender Singh deposed that on 08.10.2012, he conducted the TIP proceedings of the case properties and complainant Sh. Vinay Ahuja identified four gold bangles (kara), two gold chains and six silver glasses. PW7 proved the TIP proceedings, conducted by him, vide Ex PW7/A.
11. PW8 ASI Dinesh, the Duty Officer, deposed that on 15.06.2012 at about 05:20 pm, he received information regarding theft qua the present case. He reduced the said information in Roznamcha at Sl. No. 21-A vide Ex PW8/A and copied the said information on a plain paper vide Ex PW8/B.
12. PW9 Retired SI Tara Chand deposed on the similar lines as deposed to by PW5 HC Vinod, as PW9 was also one of the members of the raiding team along with PW5 and the IO. PW9 correctly identified accused Sonu, Kamal and Rajeev. The witness was duly cross-examined by the Ld. Defence Counsels.
State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 13 of 23
13. PW10 Retired SI Virender Singh deposed that on 15.06.2012 at about 05:20 pm, he received DD No. 21A regarding theft. Thereafter, he along with Ct. Rishipal reached at the spot i.e. H. No. H-34D, Saket, where he met Madhuri Rao, servant of the complainant who informed PW10 that the owner had gone to Nepal. Thereafter, PW10 called crime team at the spot and searched for the eyewitness, however, no clue was found. Thereafter, the said DD was kept pending. On 16.06.2012, complainant namely, Vinay Ahuja, came to the PS and handed over to PW10 a written complaint. Thereafter, PW10 prepared rukka on the same vide Ex PW10/A. The same was handed over to DO for registration of FIR. Thereafter, PW10 along with complainant reached at the spot where PW10 prepared site plan at the instance of the complainant vide Ex PW10/B. In the meantime, HC Balbir came to the spot and handed over to PW10 the copy of FIR and original rukka. Thereafter, PW10 recorded the statement of the complainant under Section 161 CrPC. Thereafter, PW10 searched for the accused/suspect and case property, however, no clue was found. PW10 further deposed that in the month of June, 2012, he got transferred and, therefore, he deposited the case file with the MHC(R). The witness was duly cross-examined on behalf of the accused persons.
STATEMENT / DEFENCE OF THE ACCUSED
14. In their respective statement recorded under Section 313 of the Code, the accused persons denied the entire evidence against them. They stated that they are innocent and have been falsely State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 14 of 23 implicated in this case. They did not lead any evidence in their defence.
ANALYSIS AND FINDINGS
15. The record has been thoroughly and carefully perused. The respective submissions of Sh. Naresh Choudhary, Ld. APP for State, Ms. Deepa Rawat, Ld. LAC for accused Kamal and Sh. Raneev Dahiya, Ld. Counsel for accused Sonu and Rajeev have been considered.
16. The essential ingredients to prove the offence under Section 411, IPC are:-
a) The property should be in possession of the accused;
b) Such property should be "stolen property" i.e it should have been transferred by theft, extortion or robbery, or which has been criminally misappropriated; and
c) The accused had received the same knowing or having reason to believe the same to be stolen property.
17. With respect to the charge under Section 411 of IPC, it is pertinent to note that the Hon'ble Apex Court in Trimbak vs. State of Madhya Pradesh [AIR 1954 SC 39], discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 15 of 23 under Section 411 IPC, the prosecution must prove:
"5.(1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property...."
18. The Hon'ble Supreme Court in Shiv Kumar vs. State of Madhya Pradesh [Criminal Appeal No. 1503 of 2022 (Arising out of SLP (Crl.) No. 9141 of 2019), decided on September 7, 2022] has held that to establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.
19. "Stolen Property" has been defined in Section 410 of IPC as property obtained through theft, extortion, robbery, misappropriation, or breach of trust, whether the act occurred within or outside India, but it stops being stolen property if a person legally entitled to it possesses it later on. PW1 Vinay has deposed that he was travelling from 11.06.2012 for about 6 days. On 15.06.2012, his neighbour one Ms. Madhuri went to water the plants outside his house and found that the lock of his house was broken. Thereafter, she informed him as well as the police about State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 16 of 23 the theft. On return from his trip, PW1 lodged a formal complaint on 16 June 2012 which is exhibit PW1/A. In his deposition in court, PW1 correctly identified the stolen property that has been recovered from the accused persons. Despite grant of opportunity, PW1 was not cross examined by the accused persons. Therefore, the factum of theft stands proved beyond reasonable doubt.
20. The only question that remains to be considered is whether the prosecution has been able to prove beyond reasonable doubt that the stolen property has been received or retained by the accused persons with the knowledge or belief that the same was stolen property.
Re: Accused Sonu Das and Kamal @ Billa
21. The case against accused Kamal @ Billa is that one gold chain and gold bangle belonging to the complainant was recovered from him and he had dishonestly received / retained the same knowing it to be a stolen property. The case against accused Sonu is that two gold bangles belonging to the complainant was recovered from him and he had dishonestly received / retained the same knowing it to be a stolen property.
22. Accused Sonu in his statement recorded under Section 313 of the Code denied recovery of bangles from him and stated that he was apprehended from his residence. Similarly, accused Kamal denied possession / recovery of stolen property and stated State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 17 of 23 that he was apprehended from his residence. He also stated that he had filed a complaint against one police official Satender Yadav and the present case was registered as an act of vengeance. However, it is pertinent to note that accused Kamal has not led any evidence regarding the said case by placing on record papers relating to the case.
23. The deposition of PW5 is detailed. PW5 HC Vinod deposed that on receipt of information from a secret informer, a raiding party was formed by the IO ASI Ravi Shankar and they went to Lado Sarai along with the secret informer. On the instance of the secret informer, accused Sonu was apprehended. Thereafter, disclosure statement was recorded of accused Sonu and accused Kamal was arrested at the instance of accused Sonu on 6.9.2012. On the instance of accused Kamal, a sack was recovered from his brother's residence which contained artificial jewellery. Thereafter, the IO, PW5 and other police officials went to Deepanshu Jewellers which was locked. Thereafter, they went to Hari Jewellers wherein they apprehended accused Rajeev and recovered certain stolen property from him. Thereafter, they went to Kamal's residence at Maujpur and recovered one gold chain and gold bangle from his house. They then went to Sonu's residence and recovered two golden bangles from his house. On 11.09.2012, the police officials went to accused Kamal's residence and recovered one house breaking weapon i.e. iron rod. PW5 was not cross-examined by the accused persons despite grant of opportunity. The fact that the accused persons did not cross-examine PW5 who is a arrest and recovery witness renders State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 18 of 23 the case of the prosecution strong.
24. Further, PW6 SI RS Tyagi has also deposed in similar lines as PW5 HC Vinod. There are no major inconsistencies or contradictions between the version of the police witnesses who were a part of the investigation. Ld. Counsels for accused Kamal and Sonu have argued that no photography or videography has been conducted of the recovery proceedings. It is also stated that no public witnesses have been joined in the investigation. However, the said fact cannot lead to the unequivocal acquittal of the accused persons. The Hon'ble Supreme Court in the landmark judgment of Appabhai and another vs. State of Gujarat [AIR 1980 SC 696] has observed that:
".... It is no doubt true that the prosecution has not been able to produce any independent witnesses to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not themselves. This kind of apathy of the general public is indeed unfortunate, but is there everywhere whetherin village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the independent case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of the truth with due regard to probability,if any, suggested by the accused."
25. Further, the absence of photography and videography does not go to the root of the matter. This Court is cognizant that minor inconsistencies should not tantamount to substantial State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 19 of 23 prejudice of the complainant [Ref: Bharwada Bhoginibhai Hirjibhai vs. State of Gujarat (AIR 1983 SC 753) wherein the Hon'ble Supreme Court of India has held that "Too much importance cannot be attached to minor discrepancies and a witness cannot be expected to possess a photographic memory to recall the details of an incident".
26. Various stolen items have been recovered from accused Kamal and Sonu. This cannot be merely by way of chance or false implication and such bald averments do not help the case of the accused persons. The recovery of stolen property from accused Kamal on the basis of the disclosure statement of accused Sonu renders the disclosure statement admissible under Section 27 of the Indian Evidence Act, 1872. There is no reason to distrust the investigating officials, especially in light of the fact that the accused Kamal and Sonu have not placed on record any material to state that the investigating officials or the complainant had an axe to grind against them. The seizure of the stolen items stands proved especially in light of the consistent and cogent testimonies of the police witnesses. Accused Kamal has not satisfactorily accounted for the artificial jewellery which has been recovered from him. It is proven beyond reasonable doubt that accused Kamal and Sonu were found in possession of stolen property and they dishonestly received them knowing that they were stolen property. Hence, accused Kamal @ Billa is convicted for the offences under Section 411 of IPC and Section 103 of the DP Act. Similarly, accused Sonu is convicted for the offence under Section 411 of IPC.
State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 20 of 23 Re: Accused Rajeev
27. The case against accused Rajeev is that six silver glasses and one gold bangle belonging to the complainant were recovered from him and he had dishonestly received / retained them knowing them to be stolen property. Further, it is also averred that certain silver jewellery, ornaments and articles were recovered from him and he could not satisfactorily account to the same. Hence, he has been charged under Section 411 IPC and Section 103 of DP Act, 1978.
28. Accused Rajeev in his statement recorded under Section 313 of the Code has stated that he was not arrested from his shop. He further stated that the police officials came to his residence and inquired about his elder brother Manoj. As his brother was not present, the police officials took him to the shop and forcefully made him open the shop. Further, the police officials compelled him to open the locker and took valuables from the said locker before taking him to the PS.
29. There is only one recovery witness regarding recovery from accused Rajeev in the present matter Mr. Bijender @ Birju (PW4). PW4 in his examination in chief dated 07.12.2015 deposed that he was returning from his aunt's residence when the police officials obtained his signatures on certain papers. As he resiled from his statement recorded by the IO under Section 161 of the Code, the learned APP for state was granted an opportunity to cross examine the witness. In his cross examination the State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 21 of 23 witness denied joining the raiding party. He further denied that he accompanied the police officials to Hari Jewellers, Mandoli, Delhi and that accused Sonu and Kamal were also present at the time of the said raid. He further denied arrest of accused Rajeev and seizure of stolen property from said accused. The witness neither identified the accused persons nor identified the recovered property. Therefore, it would be trite to state that the only recovery witness in the present matter i.e. PW4 has not stood by the prosecution version with respect to recovery of stolen property.
30. Also, even if for the sake of arguments, it is admitted that the aforesaid stolen property was recovered from the accused Rajeev, the prosecution has miserably failed to establish the element of knowledge that he received the stolen property from accused Sonu and Kamal knowing the said jewellery to be stolen property. Even PW5 deposed that the accused persons namely Kamal and Sonu pointed to accused Rajeev as the person to whom they sold the stolen property. However, they did not disclose that accused Rajeev was part of the conspiracy and had any knowledge that the property was stolen.
31. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable. Element of knowledge has not been State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 22 of 23 proven qua the accused Rajeev.
32. The prosecution has neither established recovery nor have been able to attribute any knowledge qua the accused. The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this court. The aforesaid infirmities in the background of reasonable possibility of false implication of the accused person, elicited above, renders the prosecution version not proved, beyond reasonable doubt. In the case of Prem Singh Yadav vs. CBI [178 (2011) DLT 529], it was held that where it is possible to have both the views, one in favor of the prosecution and the other in favor of the accused, the later should prevail. Pronouncements in case of Dilip vs. State of Madhya Pradesh [1 (2007) CCR 354] and Gagan Kanejia vs. State of Punjab [IX (2006) SLT 406] were relied. Relying upon the law laid and elicited in the preceding paragraphs, since two views are possible on the evidence adduced in this case, one pointing to the guilt of the accused and other to his innocence, view which is favourable to the accused is being adopted. Accused Rajeev is accordingly given the benefit of doubt and is acquitted of the offence charged under Section 411 of IPC and Section 103 of the DP Act.
Dictated and announced in open Court on 16.04.2024.
Digitally signed by T T PRIYADARSHINI
PRIYADARSHINI
Date: 2024.04.18
16:45:05 +0530
(T. Priyadarshini)
Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 16.04.2024 State vs. Sonu Dass and others FIR No. 192/2012, PS: Saket Page 23 of 23