Delhi District Court
State vs . Muzafar Hussain & Ors. Fir No. 325/93, ... on 30 April, 2012
State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.1 IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR NO. 325/93. PS. Model Town. U/s.457/380/411/34 IPC. State Vs. Muzafar Hussain & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 698/06.
B. DATE OF INSTITUTION : 26/11/93.
C. UNIQUE ID NO. : 02404R0024471993
D. DATE OF OFFENCE : 10/10/93
E. NAME OF THE : Sh. Vinod Kumar
COMPLAINANT S/o Sh. Shamsher Singh
F. NAME OF THE : 1. Raju @ Delhi
ACCUSED S/o Sh. Raghu Rai (already convicted and
sentenced vide order dtd.10/03/95)
2. Muzafar Hussain
S/o Sh. Jumed
3. Raju
S/o Sh. Maya Ram
4. Bhoop Singh
S/o Sh. Chandan Singh.
G. OFFENCE
COMPLAINED OF : U/s 457/380/411/34 IPC
H. PLEA OF ACCUSED : Plead not guilty.
I. FINAL ORDER : Convicted for the offence U/s. 411/34 IPC.
J. DATE OF SUCH ORDER : 17/04/12.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on 10/10/93, at about 8.05 a.m, on receipt State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.2 of DD no.2A regarding theft, SI Ashok Rana alongwith Ct. Dev Narain reached at the factory of the complainant Sh. Vinod Kumar situated at A37, GTK Road, Industrial Area, Delhi. There they met the complainant Sh. Vinod Kumar who gave a written complaint regarding theft of about 400/500 aluminum plates from his factory. In his complaint, he stated that in the morning of 10/10/93, he received a telephonic call from his chowkidar, who gave him information regarding theft in his factory. In his complaint, he has further stated that thereafter, he came to his factory and found that the aforesaid aluminum plates were stolen by some unknown persons. The said complaint was endorsed by the IO of the case and on the basis of the said rukka, the present FIR was lodged at PS. Model Town. Thereafter, on 12/10/93 IO/SI. Ram Singh, ASI. Balwinder Singh and Ct. Suresh Kumar went near Vijay Cinema, GTK Road, Delhi. There they met Ct. Sukh Lal and Ct. Anil Kumar. The said constable also joined the IO in the investigation in this case. In the meanwhile IO/SI. Ram Singh received a secret information that one person alongwith the stolen articles of the present case would come from the side of Azad Pur and shall go towards Lal Bagh. Thereafter, at about 2.20 p.m, a person, carrying a Jute bag on his hand, came from the side of Azadpur and at the instance of the secret informer, the said person was apprehended. On enquiry, the said person told his name to be Raju @ Delhi. The said bag was checked and it was found to be containing 145 aluminum plates. The accused Raju @ Delhi confessed about the commission of the present offence and accordingly, his disclosure statement was recorded. Thereafter, the accused Raju @ Delhi took the police officials at H. No.235, Azad Pur, Delhi and from the said house got two coaccused persons namely Muzaffer and Raju S/o Sh. Maya Ram arrested. The two bags containing 120 and 65 stolen aluminum plates respectively were recovered from the aforesaid house, that was in joint possession of all the three accused persons, as they were residing as tenants in the said house. The accused persons further disclosed that the remaining stolen property was sold by them to a scrap/junk dealer namely Bhoop Singh. Subsequently, on the basis of the disclosure statement of the said accused persons the police officials raided the place of the accused Bhoop Singh i.e house situated at C62, Lal Bagh, Azad Pur, Delhi and got recovered 170 stolen aluminum plates from his possession. All the accused persons were arrested. State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.3 During investigation the recovered aluminum plates were shown to the complainant and he correctly identified the same. On conclusion of the investigation, the present challan against all the accused persons U/s 457/380/411/34 IPC was filed in the court.
2. In compliance of Section 207 Cr.P.C the copy of the challan and the documents annexed therewith were supplied to all the accused persons. Prima facie charge U/s 457/380/411/34 IPC was made out against all the four accused persons. Accordingly, on 10.03.95 the charge was framed by the Ld. Predecessor of this court. The accused Raju @ Delhi pleaded guilty to the said charge and accordingly, he was convicted and sentenced vide separate judgment and order dtd.10/03/95. However, the remaining three accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined 9 witnesses. PW1 Sh. Vinod Kumar is the complainant and due to inadvertence, he was examined twice i.e once as PW1 and on the second occasion as PW4. He has proved his complaint dtd.10/10/93 as Ex.PW4/A regarding theft of his aluminum plates from his factory. He has further deposed that after few days he was called to the PS and he identified his recovered aluminum plates at the PS. In the court also, in his testimony, he correctly identified all the four bags containing aluminum plates that were recovered from the possession of the accused persons and they were exhibited as Ex.P1 to Ex.P4.
4. PW2 ASI. Renu has testified that on 10/10/93 she was posted as a duty officer at PS. Model Town and on that day, she had registered the present FIR. She has proved the copy of the said FIR as Ex.PW2/A.
5. PW3 ASI. Balwinder Singh, PW6 Ct. Suresh Kumar and PW7 Ct. Sukh Lal are the recovery witnesses of the stolen aluminum plates that were recovered on 12/10/93. The said recovery witnesses have consistently deposed and corroborated/proved the chain of events as alleged by the prosecution that State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.4 resulted in the respective recoveries of the stolen articles from the possession of the accused persons. They have proved the seizure memo of the stolen articles that were recovered from the accused Raju @ Delhi, as Ex.PW3/A. They have also proved the seizure memo of the stolen articles that were recovered from the possession of the accused Raju S/o Sh. Maya Ram and the accused Muzafer Hussain as Ex.PW3/B. The seizure memo vide which the stolen property that was recovered from the accused Bhoop Singh was proved as Ex.PW3/H. The said witnesses have testified that all the accused persons were arrested in their presence and they correctly identified all the accused persons in the court. PW3 ASI. Balwinder Singh identified the case property during his deposition.
6. PW5 SI. Ram Singh is the IO of the case as well as one of the recovery witness of the stolen property. He has also deposed on the similar line as that of the recovery witness i.e PW3 ASI. Balwinder Singh, PW6 Ct. Suresh Kumar and PW7 Ct. Sukh Lal, therefore, his testimony that is in consistence with the said witnesses is not repeated herein for the sake of brevity and to avoid repetition. He has also identified all the accused persons and has also identified the stolen case property that was kept in four bags exhibited as Ex.P1 to Ex.P4.
7. PW8 Retd. SI. Ashok Rana has deposed that on 10/10/93 on receipt of DD no.2A, he alongwith Ct. Dev Narain reached at A37, GTK Road Industrial Area. He has deposed that there they met the complainant Vinod Kumar. He has further deposed that he recorded the statement of the complainant and on the basis of the same, he prepared a rukka. He has proved the endorsement on the rukka Ex.PW8A.
8. PW9 Ct. Dev Narain has deposed that on 10/10/93, SI. Ashok Rana had handed over DD No.2A for investigation. He has further deposed that on receipt of the said DD he alongwith SI. Ashok Rana reached at A37, GTK Road Industrial Area, there he met the complainant Sh. Vinod Kumar. He has testified that SI. Ashok Rana recorded his statement and on the basis of the same he prepared the rukka already exhibited as Ex.PW4/A. He has further testified that the said rukka was handed over to him for registration of the FIR. He has State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.5 deposed that thereafter, he went to the PS and came at the spot with the copy of the FIR. Thereafter, PE was closed.
9. Statements of the accused persons namely Muzaffar Hussain, Raju and Bhoop Singh U/s 313 Cr.P.C . were separately recorded. All the incriminating evidence against them were put to them for seeking their respective explanations. In the said statements, the accused persons have stated that they are innocent and they have been falsely implicated in the present case. However, they chose not to lead evidence in defence. Therefore, the case was listed for final arguments.
10. I have heard Ld. APP for the State and Ld. counsel for all the accused persons. I have carefully perused the case file.
11. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
12. In order to substantiate its case against the accused persons for theft and lurking house trespass by night to commit theft, the prosecution is required to prove the following ingredients as mentioned U/s.457/380 IPC:
(i).The accused did lurking housetrespass by night or house breaking by night;
(ii).It was done in order to commit theft ;
(iii).Accused removed movable property;
(iv).He removed the property out of the possession of another person without his consent;
(v).He did so with a dishonest intention;
(vi).The property was removed from the building, tent or vessel used as a human dwelling or for the custody of the property.
In the instant case the alleged incident of theft of aluminum plates took State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.6 place in the intervening night of 9/10101993 and the FIR in respect of the said theft was lodged on 10/10/93. However, it is an admitted fact that there is no eye witness to the said theft. It is also not denied that none of the prosecution witnesses has testified to have seen either of the accused persons committing theft after committing house trespass in the factory of the complainant. Therefore, there is not even an iota of evidence against the accused persons to indict either of them for the offence U/s. 457/380 IPC. Accordingly, all the accused persons are hereby acquitted for the aforesaid offences.
13. In order to bring home the guilt of the accused for dishonestly receiving or retaining the stolen property, the prosecution is required to prove the following ingredients as mentioned U/s 411 IPC:
(i). The accused was found in the possession of movable property knowing or having reason to believe that the said property is a stolen property,
(ii). Accused got possession of the said property dishonestly; and
(iii). The said property is a stolen property.
14. In the instant case, PW1 Sh. Vinod Kumar has proved his complaint exhibited as PW4/A dated 10/10/93 regarding theft of his 400/500 aluminum plates that were stolen in the intervening night of 09/101093 from his factory situated at A37, GTK Industrial Area, Delhi. PW2 ASI. Renu has proved the present FIR Ex. PW2/A that was lodged on the basis of aforesaid complaint exhibited as Ex. PW4/A. The testimony of aforesaid two witnesses regarding theft of aluminum plates on the alleged date, time and place of incident has remained unrebutted and therefore there is no reason to doubt the veracity of the deposition of the said witnesses. Hence, the theft of the aluminum plates has been conclusively established. PW1 Sh. Vinod Kumar has further testified that after about 2/3 days the police officials informed him about the recovery of his stolen aluminum plates. The said witness correctly identified the aluminum plates that were produced in the court to be his property that were stolen from his factory. Moreover, the accused persons have nowhere claimed that they are the owners of the said aluminum plates. Further, the accused persons have also failed to State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.7 account for the possession of the aforesaid aluminum plates. Therefore, in the light of aforesaid discussion, it is proved beyond any reasonable doubt that the aforesaid aluminum plates exhibited as Ex.P1 to Ex.P4 are stolen property of the present case.
15. PW3 ASI. Balwinder Singh, PW5 SI. Ram Singh, PW6 Ct. Suresh Kumar and PW7 Ct. Sukh Lal are the recovery witnesses and they have consistently deposed that two bags containing 120 and 65 stolen aluminum plates were recovered from the accused Muzaffer Hussain and Raju. They have further consistently testified that 170 stolen aluminum plates were recovered from the possession of the accused Bhoop Singh from his H. No.C62, Lal Bagh, Delhi. The recovery witnesses i.e PW3 ASI. Balwinder Singh, PW6 Ct. Suresh Kumar and PW7 Ct. Sukh Lal remained uncrossexamined. Therefore, their testimonies are inadmissible in evidence and the same cannot be formed basis for the conviction of the accused persons. However, the recovery witness/IO PW5 SI. Ram Singh was duly crossexamined by all the accused persons, but despite cross examination his credibility could not be impeached by them. It is a settled principle of law that the evidence is to be weighed and not counted. The conviction can be based on the trustworthy/credible sole testimony of the prosecution witness. The findings given by Hon'ble Apex Court in case titled as Joseph V. State of Kerala (2003) 1 SCC 465 are relevant and reproduced as under : "When there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a Court to record and sustain a conviction on the evidence of a solitary eye witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.8 presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial Court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable."
Therefore, the solitary and credible testimony of PWSI. Ram Singh is sufficient to convict the accused persons for the offence U/s.411 IPC. The aforesaid recovery witness has correctly identified all the accused persons to be the perpetrator of the present offence, from whose custody the stolen aluminum plates were recovered.
16. Ld. counsel for the accused persons has argued that all the recovery witnesses are police officials and no public independent witness was joined by the IO at the time of recovery. He has further argued that the conviction of the accused can not be based upon the only testimonies of police officials, as they are interested witnesses and their likelihood of being guided by the factors other then truth can not be ruled out. He has therefore submitted that the accused persons are entitled to get benefit of doubt as the testimony of police recovery witnesses is not corroborated by the independent public witnesses. On the other hand, Ld. APP for the State has vehemently argued that the police witnesses are reliable witnesses and their testimony cannot be discarded merely on the said sole ground.
The Hon'ble Apex Court in catena of its judgments has held that testimony of police official stands on equal footing as that of any other witness and his evidence should also be appreciated and weighed in the similar manner as that of any other witness. There is no rule of law whereby the police official can be straight away termed as dishonest witness. However, the court should be extra cautious at the time of believing the uncorroborated testimony of police official. This does not necessarily mean that the conviction of the accused can not be based on the sole testimony of police official. I find support from the findings given by Hon'ble Apex court in the case titled as Girja Prasad v. State of MP (AIR 2007 SC 3106) wherein it was held that : "It is well settled that credibility of witness has to be tested on the State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.9 touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applied as much in favour of a police official as any other persons. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
The prosecution has duly proved the seizure memos of the stolen aluminum plates. The accused persons have failed to advance any justifiable reason for the recovery witnesses, to falsely implicate them in the present case or have failed to impute any ill motive to the recovery witnesses for wrongly planting the stolen property upon them. In the light of the aforesaid discussion, it is proved beyond reasonable doubt that the accused persons were found in possession of stolen aluminum plates. The testimonies of the recovery witnesses is trustworthy and there is no reason to doubt the otherwise consistent testimonies of the recovery witnesses. In the wake of above discussion, it is established beyond any reasonable doubt that on 12/10/93, the stolen aluminum plates were recovered from the possession of the accused persons.
17. The accused persons have failed to account for the possession of the said aluminum plates. Further, it is an admitted fact that there was no occasion for the accused persons to possess the said aluminum plates. Thus, the only conclusive and cogent inference that can be drawn in these facts and circumstances is that the accused persons were dishonestly retaining the stolen aluminum plates. Hence, it is convincingly substantiated that all the accused State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.10 persons possessed the said aluminum plates with a dishonest intention knowing or having reason to believe that the said plates were stolen property.
18. The aforementioned discussion manifest that the prosecution has proved that the case property was a stolen property that was recovered on 12/10/93 from the possession of the accused persons, who were retaining it with a dishonest intention. Therefore the prosecution has proved its case beyond any shadow of doubt and therefore it has successfully discharged the onus placed upon it by leading cogent & convincing evidence. In the light of the above discussion, all the essential ingredients of the offence U/s 411/34 IPC are duly established against the accused persons namely Muzaffar Hussain, Bhoop Singh and Raju, and accordingly, they stand convicted for the said offence.
Copy of this judgment be given to the convicts, free of cost.
Put up on 28.04.2012 for arguments on quantum of sentence.
ANNOUNCED IN OPEN OPEN COURT (DHEERAJ MOR)
i.e. 17.04.2012 METROPOLITAN MAGISTRATE
ROHINI COURTS: DELHI
State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.11 FIR NO. 325/93.
PS. Model Town.
U/s.457/380/411/34 IPC.
17.04.2012 Present: Ld. APP for the State.
All the accused persons namely Muzaffar Hussain, Bhoop Singh and Raju on bail with counsel.
Accused Raju @ Dilli has already been convicted vide order dated 10.03.1995.
Final arguments heard. Case file perused.
Vide my separate judgment announced in the open court today, all the accused persons namely Muzaffar Hussain, Bhoop Singh and Raju stand convicted for the offence punishable U/s 411/34 IPC.
Put up on 28.04.2012 for arguments on quantum of sentence.
(Dheeraj Mor) MM/Rohini/Delhi 17.04.2012 State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.12 IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI.
FIR NO. 325/93.
PS. Model Town.
U/s.457/380/411/34 IPC.
State Vs. Muzafar Hussain & Ors.
ORDER ON THE POINT OF SENTENCE:
30.04.2012 Present: Ld. APP for the State.
All the convicts namely Muzaffar Hussain, Bhoop Singh and Raju on bail with counsel.
Arguments on the point of sentence heard. Case file perused.
Ld. Counsel for the convicts has submitted that the convicts have their respective large families to support and they are the only bread earners in their respective families. It is further submitted by the counsel for the convicts that they be given an opportunity for reformation as they have genuine remorse for their previous conduct. Ld. Counsel for the convicts has made a request to release the convicts on probation. On behalf of the convict Bhoop Singh, it is submitted that he is 73 years of age and he is suffering from old age ailments. In respect of convict Muzaffar Hussain and Raju, it is submitted that they have aged parents, wife and minor children to support and they are not habitual offenders/ criminals. It is further submitted by the State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.13 counsel for convict that they are facing trial in the present case since 19 long years and therefore, he has prayed for lenient view.
On the other hand, Ld. APP for the State has opposed the aforesaid submissions of the convicts and she has submitted that the maximum punishment be awarded to the convicts, so that a deterrent message be sent to the society and like minded people be discouraged from entering into criminal activities.
Undue sympathy to impose inadequate sentence would do more harm to the criminal justice system to undermine the public confidence in the efficacy of law and society could not long endure under the serious threats. It is expected that the court would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. There is no denial, that reformative theory of penology has taken precedence over the deterrent theory in the modern era of criminal jurisprudence. However, the deterrent theory has neither lost its importance nor has become irrelevant. Rather, this is one of the cardinal guiding factors, that is to be kept in consideration while awarding appropriate sentence.
In view of the above discussion, I am of the considered opinion that the benevolent provisions of the probation of the offenders Act should not be invoked in State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.14 favour of the convicts. However, in the light of mitigating circumstances as submitted by the Ld. Counsel for the convicts, the maximum punishment if awarded shall be harsh for them.
In the light of the above facts and circumstances of the case, the convictsnamely Muzaffar Hussain, Bhoop Singh and Raju are sentenced for the period already undergone by them and fine of Rs. 5000/ each. Fine paid. The convict Muzaffar Hussain, Bhoop Singh and Raju have remained in custody in the present case is for one month and 28 days, 04 days and four months and six days respectively.
Benefit of section 428 IPC be given to all the convicts.
Copy of judgment and this order be given to all the convicts, free of cost today itself.
File be consigned to record room after due compliance.
ANNOUNCED IN OPEN OPEN COURT (DHEERAJ MOR)
i.e. 30.04.2012 METROPOLITAN MAGISTRATE
ROHINI COURTS: DELHI
State Vs. Muzafar Hussain & Ors. FIR No. 325/93, PS. Model Town,U/s 457/380/411/34 IPC, Page No.15 FIR NO. 325/93.
PS. Model Town.
U/s.457/380/411/34 IPC.
30.04.2012
Present: Ld. APP for State.
All the convicts on bail with counsel.
Arguments on point of quantum of sentence heard.
Case file perused.
Vide separate order on point of sentence, the convicts namely Muzaffar Hussain, Bhoop Singh and Raju are sentenced for the period already undergone by them and fine of Rs. 5000/ each. Fine paid. The convict Muzaffar Hussain, Bhoop Singh and Raju have remained in custody in the present case is for one month and 28 days, 04 days and four months and six days respectively. Benefit of section 428 IPC be given to all the convicts. Bail bonds and surety bonds are cancelled. The original documents if retained on record, be returned to the person legally entitled after canceling the endorsement thereupon.
Copy of judgment and this order be given to all the convicts, free of cost today itself.
File be consigned to record room after due compliance.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI COURTS: DELHI