Delhi District Court
State vs . Yogesh @ Bhola on 28 March, 2022
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
Presided by: Chander Jit Singh
Cr Cases 4855/2019
STATE Vs. YOGESH @ BHOLA
10543 /2019 (VasantKunj South)
1. Case No. of the case. 4855/2019
2. The date of offence: 29.03.2019
3. The name of the complainant: Sh. Rajesh Kumar
4. The name of the accused Yogesh @ Bhola
s/o. Sh. Ram Bir Singh,
r/o H.No. 101/F7, Gali No. 5,
Krishna Nagar, Safdarjung
Enclave, New Delhi.
5. The offence complained u/s. 379/411 IPC
6. The plea of the accused Pleaded not guilty
7. Date of Institution of the case 03.06.2019
8. The final order Convicted
9. Date of reserving order 24.03.2022
10. Date of such order 28.03.2022
JUDGMENT
Version of prosecution
1. This judgment shall dispose off the case rising out of FIR bearing no. 10543/2019. In brief story of prosecution is that on 25.03.2019, complainant Rajesh Kumar had lodged FIR through Delhi Police web portal. As per complaint, complainant had parked his motorcycle bearing registration no. UP13AK1039 in front of his rented accommodation bearing Kh. No. 1238 B, BBlock, Rangpuri Bengali Market, Old Shiv Mandir, New Delhi. At about Cr Cases 4855/2019 STATE Vs. YOGESH @ BHOLA : 10543 /2019 (VasantKunj South) Page No. 1 of 8 08:00 a.m., he found his motorcycle missing, which he tried to locate but could not find it. That after registration of FIR, investigation was conducted. At the instance of complainant Rajesh Kumar site plan was prepared, statement of witnesses were recorded, CCTV was checked but nothing could be found. On 30.03.2019, an information was received from PS Delhi Cantt., which was recorded vide DD Entry No. 50B, dated 30.03.2019, that at 05:20 p.m., accused Yogesh @ Bhola was arrested in FIR bearing no. 104/2019, PS Delhi Cantt. and was found in possession of abovesaid stolen vehicle. IO went to PS Delhi Cantt, where HC Chet Ram presented copy of all the documents. IO had applied for permission to interrogate and formal arrest of accused, which was allowed by the Ld. Predecessor. After arrest, accused was interrogated and he confessed his crime. On completion of investigation, present chargesheet was filed.
Charge
2. Accused was produced in custody and supplied copy of chargesheet as well as documents. Finding a prima facie case against accused, charge u/s. 411 IPC was framed against the accused and explained to him by the Ld. Predecessor. Accused pleaded not guilty, thus, prosecution led evidence.
Prosecution Evidence
3. In total, prosecution has examined 06 witnesses to prove allegations against accused. Regarding fact of registration of FIR in question, statement of accused u/s. 294 Cr.PC was recorded.
4. Complainant Rajesh Kumar was examined as PW1, wherein, he reiterated allegations made in complaint. He proved superdarinama as Cr Cases 4855/2019 STATE Vs. YOGESH @ BHOLA : 10543 /2019 (VasantKunj South) Page No. 2 of 8 Ex.P1. Motorcycle in question was duly identified. Complainant was cross examined by Ld. Counsel for accused.
5. HC Raj Pal was examined as PW2, who proved copy of DD Entry No. 50B as Ex.PW2/A. He was not crossexamined despite opportunity.
6. HC Chet Ram was examined as PW3. In his examinationinchief, he deposed on the lines of case of prosecution, wherein, he stated that on 29.03.2019, he was posted as HC at PS Delhi Cantt and FIR bearing no. 104/2019, PS Delhi Cantt was marked to him for investigation. That he recorded disclosure statement of accused Yogesh @ Bhola. Copy of arrest memo is Ex.PW3/B. That vehicle in question was seized u/s. 102 Cr.PC by SI Harbir Singh and handed over to him. He was duly crossexamined, wherein, he stated that no CCTV camera was installed at the spot i.e. Pillar No. 49, Metro Station. That he had not made any public person as a witness at the time of arrest.
7. Ct. Praveen was examined as PW4. He deposed that on 29.03.2019 along with SI Harbir, Ct. Paramvir, at about 06:30p.m., he was on patrolling duty. That accused was coming from the side of Naraina, Near Metro Pillar No. 49, who was directed to be stopped. Accused could not produce documents and on checking it was found that motorcycle accused riding was stolen and required in case FIR No. 10543/2019, PS Vasant Kunj (S). He proved the various proceedings carried out during that process. He was duly crossexamined, wherein he also stated that there was no CCTV camera installed at spot. That public persons were present at the spot. That no intimation was given to Traffic Police.
8. SI Harbir Singh was examined as PW5. He also stated that he was posted as IC PP, Subroto Park, PS Delhi Cantt. That he along with Ct.
Cr Cases 4855/2019STATE Vs. YOGESH @ BHOLA : 10543 /2019 (VasantKunj South) Page No. 3 of 8 Paramvir and Ct. Parveen was on patrolling duty and reiterated the facts of prosecution case. That he asked accused to produce papers of motorcycle, but accused failed to produce the same. PW5 was duly crossexamined, wherein he said that barricades were already placed near Pillar No. 49 of Metro Station. That there no CCTV camera was installed near Pillar No. 49. That he did not inform Traffic Police regarding the same. That public persons were there as there was a flowing traffic. That he did not inform concerned police station regarding stolen property and it might have been been done by second IO.
9. HC Anup Kumar examined as PW6. In his examinationinchief he deposed that he had carried out further investigation in the present matter and on receipt of information recorded vide DD Entry No. 50B, he went to PS Delhi Cantt. That he prepared site plan Ex.PW6/A, arrest memo Ex.PW6/B and disclosure statement of accused as Ex.PW6/C. He was duly crossexamined, wherein he stated that bill/invoice with respect to purchase of vehicle in question has not been placed on record as he did not take if from complainant. That he did not take any RC or other documents with regard to ownership of vehicle. No other PW was examined.
Statement of accused
10. After evidence of prosecution, statement of accused u/s. 313 Cr.PC was recorded, wherein, he stated that it is a false case and he has been implicated falsely by police officials of PS Delhi Cantt and PS Vasant Kunj (Southj).
Defence Evidence
11. Accused has examined Smt. Kamlesh Devi as defence witness Cr Cases 4855/2019 STATE Vs. YOGESH @ BHOLA : 10543 /2019 (VasantKunj South) Page No. 4 of 8 (DW1). In her examinationinchief, she stated that after 22.03.2019, accused went to his elder brotherinlaw's sasural for some function, but did not come back. On inquiry from her Samdhi, DW1 learnt that Yogesh @ Bhola has already left and they tried to find him out, but they could not find him. That when they went to file missing report with PS Safdarjung Enclave, she learnt that her son has been apprehended. That even today police officials from PS R.K.Puram and PS Vasant Kunj (S) and PS Safdarjung Enclave come to her place and ask 'bail ho gayi tere bacche ki' and used to take IDs of her and her family members. That she was duly crossexamined. No other witness was produced in defence.
Discussion
12. I have heard contentions of both the parties and perused the record. On behalf of prosecution, it is submitted that prosecution has proved its case beyond reasonable doubt as all the witnesses have stood their grounds despite crossexaminations. That accused could not justify or give any reason regarding possession of vehicle in question. It is submitted that it is fit case of conviction.
13. On behalf of accused, it is submitted that he has been falsely implicated in the present case. It is submitted that accused was facing trial in certain cases and in one of the cases date of hearing is 28.08.2019 and after attending the proceedings, he has been falsely implicated by the police officials. It is also submitted that mere alleged spot from where accused is stated to have been apprehended, there are CCTV instituted, but police has lied about it. It is also argued that accused is innocent and there is no public witness in the present case. Therefore, request is made to acquit the accused.
Cr Cases 4855/2019STATE Vs. YOGESH @ BHOLA : 10543 /2019 (VasantKunj South) Page No. 5 of 8
14. In the present case, accused is facing chargesheet u/s. 411 IPC. First requirement to bring home guilt under this charge is to prove that property in question is a stolen property. Examination of PW1 proves that the vehicle in question was in his possession and was removed from his possession without his consent. A motorcycle is admittedly a movable property. Therefore, statement of PW1, which remains intact despite due crossexamination proves that vehicle in question was a stolen property.
15. It has also been argued that no bill/invoice has been put on record. Even if, for arguments it is accepted that complainant is not owner of vehicle in question, offence of theft is offence of removing movable property from possession of another and the person from whose possession movable article is stolen need not to be the owner of said article. Hence, ongoing discussion shows that first ingredient of charge stands proved that property in question is a stolen property.
16. Now, as far as fact of recovery of vehicle in question from accused is concerned, prosecution has examined 02 witnesses in this regard i.e. PW4 Ct. Praveen Kumar and PW5 SI Harbir Singh. Admittedly, no public person had joined as witness in the present proceedings and therefore, testimony of both the witnesses is required to be evaluated with more circumspection and care. That the testimony has to be consistent and impeccable. In this backdrop of settled position of law, testimony of PW4 and PW5 are evaluated.
17. Both witnesses i.e. PW4 & PW5 have been consistent in their statement regarding the date on which recovery was made, time on which recovery was made and the place from which recovery was made. Both witnesses have also deposed consistently regarding the fact that accused Cr Cases 4855/2019 STATE Vs. YOGESH @ BHOLA : 10543 /2019 (VasantKunj South) Page No. 6 of 8 was asked to produce documents, which he could not produce and therefore, further checking was made. Both witnesses have also stated that consistently regarding desi katta and mobile phone recovered from the accused. Both witnesses were duly crossexamined, but nothing substantial has come out in crossexamination of either of witnesses, which could discredit them or would bring on record anamolies in testimony of PW4 & PW5 when they are juxtaposed with each other. Other witnesses ie. PW2 HC Raj Kumar, PW3 HC Chet Ram and PS6 HC Anup disclosed regarding chain of incidents such as receipt of information in PS Vasant Kunj (S), interrogation/investigation in FIR No. 104/2019, PS Delhi Cantt and investigation conducted by PW6 HC Anup Kumar in present case. Therefore, above discussion shows that all the witnesses are stood their ground despite thorough crossexamination by defence counsel. The witnesses are put to crossexamination to check their veracity interse as well as intra se. Crossexamination of witnesses is a touchstone which is an indicator of creditworthiness of witnesses. In the present case, witnesses have weathered crossexamination of defence counsel, but nothing substantial anamoly could be pointed out or brought forth by the ld. Defence counsel to discredit the witnesses. There is no other material on record to doubt the creditworthiness of the witnesses. No doubt public witness has not been joined in the present proceedings, however, that alone cannot be a reason to disbelieve all the police officials especially when they have stood their ground.
18. This court is enlightened by the law laiddown by the Hon'ble Supreme Court of India in case titled Baldev Singh vs. State of Haryana, (2015) 17 SCC 554 , wherein it has been observed that :
"10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the Cr Cases 4855/2019 STATE Vs. YOGESH @ BHOLA : 10543 /2019 (VasantKunj South) Page No. 7 of 8 ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness."
The abovesaid principle laiddown is squarely applied to the factual matrix of this case.
19. It is further required to be proved by prosecution that stolen property in question was received/retained knowingly and/or having reasons to believe that such property is a stolen property. In the present matter, only defence put up by the accused that he has been falsely implicated. Accused is denying possession of vehicle at all. However, above discussion proves that accused was in possession of stolen vehicle. Thus, intention of accused will be deduced from the actus of accused i.e. being in possession of vehicle in question. No explanation regarding the reason of accused being in possession of stolen property is putforth. Admittedly, accused is not the owner or purchaser of said motor bike. Thus, with this awareness that one is not owner of something but still is found in possession of same is proof enough to show that he had reason to believe it to be stolen. Hence, there is a necessary corollary accused has reason to believe that the property.
20. Hence, in view of the above discussion, it is clear that prosecution has proved its case beyond reasonable doubt and therefore, accused is convicted u/s. 411 IPC.
21. In terms of judgment of Hon'ble High Court of Delhi, in the case titled as 'Karan vs. State' accused is directed to file his income affidavit within one week from today. Renotify the matter on 05.04.2022.
Announced in the open court
on 28.03.2022 (CHANDER JIT SINGH)
ACMMII/PHC/New Delhi
Cr Cases 4855/2019
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