Delhi District Court
State vs . Sandeep on 27 August, 2012
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Sandeep
FIR NO: 850/07
P. S. Ambedkar Nagar
U/s 454/380/411 IPC
Unique ID no. 02403R0837962008
JUDGMENT
Sl. No. of the case : 459/2 (15.10.2010) Date of its institution : 19.9.2008 Name of the complainant : Sh. Rohan Kumar Date of Commission of offence : 26.11.2007 Name of the accused : Sh. Sandeep Offence complained of : Section 454/380/411 IPC Plea of accused : Not guilty Case reserved for orders : 14.8.2012 Date of judgment : 27.8.2012 Final Order : Convicted BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Sandeep upon the police report filed by P.S. Ambedkar Nagar u/s 454/380/411 Indian Penal Code (for short IPC).
State Vs. Sandeep FIR no. 850/07
2. As per the prosecution's story on 26.11.2007 at around 3.15 pm at 22/634, Second Floor, DDA Flat, Madangir, New Delhi, accused committed theft in the house of the complainant Rohan Kumar which is used as a human dwelling and thereby committed an offence u/s 380 IPC.
3. The charge was framed against the accused u/s 380 IPC to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined five witnesses.
5. PW 1 is HC Hans Raj who deposed that on 26.11.2007, at about 3.20 pm during the course of patrolling while he was passing through Gali no.22, DDA Flats, Madangir, at that time it was seen by him that a boy was running after having in possession of a green coloured bag and was coming from Gali no.22 and another boy was chasing him and later boy was shouting like "ChorChor" and while the boy who was in possession of green coloured bag was climbing to Ambedkar Road. At that time he was apprehended by him. On interrogation he revealed his name as Sandeep, S/o Ram Bharose. When he apprehended Sandeep till that time the boy who was chasing him also reached there, who revealed his name as Rohan Kumar and disclosed that he has committed theft in his house and was running away with the stolen property. Thereafter, the bag which was in possession of accused Sandeep was checked. From State Vs. Sandeep FIR no. 850/07 the bag one jewellery bag Mehroon coloured and one iron small rod which was blunt from one side were recovered. Thereafter, jewellery box was opened and it was checked by complainant Rohan Kumar and from the jewellery box silver and gold jewellery were recovered containing one large bowl made silver, one small silver plate, one small silver bowl, one small silver spoon, two bangles siliver, one purse blue coloured whereon English Prabhu Dayal and Sons jewellers (Regd) was written. This purse was further opened and checked by Rohan Kumar and from it two silver coins whereon one side picture of Laxmi and Ganesh were engraved and on the other side Mark of Satya was engraved and from one small plastic packet, one gold ginni of which one side a picture of horse rider and on another side a picture of man was engraved, one ICICI Bank card mehroon coloured wherein a gold coin was packed of which one side picture of goddess Laxmi was engraved and on another side ICICI pure gold 5 gm 24 carret were written. After seeing the aforesaid recovered gold and silver articles, Rohan Kumar disclosed that all the jewellery belonged to him and same was stolen by the accused Sandeep by breaking the lock of his house. In the meantime, SI Dharampal arrived there to whom he handed over accused Sandeep present in the Court that day alongwith recovered case property from him. SI Dharampal recorded the statement of Rohan Kumar and present case was got registered through Ct. Om State Vs. Sandeep FIR no. 850/07 Prakash. During the course of investigation, SI Dharampal prepared site plan on the instance of Rohan and himself and seized the aforesaid silver and gold articles from the possession of accused Sandeep vide memo Ex.PW1/A. IO had also seized the aforesaid iron rod which was found in the possession of accused vide memo Ex.PW1/B and arrested accused Sandeep vide memo Ex.PW1/C and his personal search was carried out vide memo Ex.PW1/D. He has correctly identified the accused in the Court.
6. PW 2 is Sh. Rohan Kumar who deposed that on 26.11.2007 at about 3 pm, on that day his wife went outside to meet some relative in Saket. He also went to Khanpur in Mishthan Cafe. When he came back, the door of his house was opened and the accused whom he correctly identified in the Court was coming out from the house while holding one bag in his hand. He tried to apprehend him but the accused pushed him and then he shouted "ChorChor". One constable was coming from main road had apprehended the accused. He also reached there and he checked the bag. On checking one silver katora, one small plate of silver, one silver glass, two silver kadas of his child, one silver coin and one gold coin, one small spoon were recovered from the possession of the accused. Police came and recorded his statement, Ex.PW2/A. The case property was seized with the seal of DPS vide memo Ex.PW1/A. One iron rod was also recovered, same was also taken into possession vide memo State Vs. Sandeep FIR no. 850/07 Ex.PW1/B. Accused also made disclosure statement in his presence vide memo Ex.PW2/B. Accused was arrested vide memo already Ex.PW1/C and personal search was carried out vide memo already Ex.PW1/D. Police inspected the site and prepared site plan at his instance, same is Ex.PW2/C. Stolen goods were released to him vide order of the Court dated 1.1.2008, Ex.PW2/D.
7. PW 3 is Ct. Om Prakash who deposed that on 26.11.2007, on receiving of DD No. 35B, same is mark A, he alongwith SI Dharampal and SI Hukum Singh reached at the spot i.e. 22/634, 2nd floor, DDA flats, Madangir, New Delhi, where Ct. Hansraj and complainant and they produced accused Sandeep Kumar before them with stolen property. SI Dharampal recorded the statement of complainant and thereafter prepared the rukka and the present case got registered through him. During the course of the investigation SI Dharampal seized the recovered stolen articles from the possession of the accused Sandeep i.e one green colour bag containing jewellary box, silver bowl, one silver plat, one silver spoon and one small bowl and two bracelets of silver, one blue colour purse where Prabhu Dyal and Sons jewellers were written wherein two silver coins whereon images of Lakshmi and Ganesh were engraved. Two gold coins and on the one side of the ginni image of one horse rider was engraved and on another gold coin images of Lakshmi and Ganesh were engraved and on the other State Vs. Sandeep FIR no. 850/07 side ICICI was engraved and the entire case property was seized in his presence which was recovered from the possession of the accused Sandeep vide memo Ex. PW1/A.
8. PW 4 is HC Manvir who was the duty officer and proved the FIR as Ex. PW 4/A upon a rukka Ex.PW4/B.
9. PW 5 is W/Ct. Munish Yadav who was the DD writer on the date of incident and proved DD no. 35 B as Ex.PW5/A.
10. This is the overall prosecution's evidence in this case.
11. After recording the evidence of these witnesses, the prosecution evidence was closed. The accused person was examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to him which he denied and answered that he has been falsely implicated and had not led defence evidence.
12. I have heard the Ld. APP for State and counsel for accused person and perused the records of the case.
13. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
14. On the other hand, it has been argued by counsel for accused person that State Vs. Sandeep FIR no. 850/07 lenient view may be taken against the accused.
15. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused is guilty of the offence with which he is charged or not.
16. PW 2 Sh. Rohan Kumar has unflinchingly deposed that on 26.11.2007 when he came back to his home, the door of the home was found opened and the accused Sandeep was coming out from his home holding one bag in his hand and when he endeavored to nail him, accused shoved him off and fled from the spot. Seeing this, PW 2 yelled "chor chor" and while the accused was fleeing away with the stolen bag, he was intercepted by one constable coming from the road and eventually was nabbed.On frisking, one silver Katora, one plate of silver, one silver glass, two silver kadas, one silver coin, one gold coin and one small spoon were recovered from the possession of the accused. The statement of PW2 was recorded which is Ex PW2/A. PW 2 is a natural witness who on the date of the incident was about to set foot in his house caught the accused red handed with one bag in his hand. PW 2 correctly identified and pinpointed the accused at the time of his deposition. PW 2 also rightly identified the case property through photographs which is Ex P1. The testimony of PW 2 remained uncontroverted and he seems to be a trustworthy witness.
State Vs. Sandeep FIR no. 850/07
17. PW 1 is Head Constable Hans Raj who deposed that on 26.11.2007 at about 3.20 pm when he was on patrolling duty and was passing through Gali no. 22, DDA flats, Madangir, he saw that a boy came running from the said Gali carrying a green coloured bag and another boy was was chasing him yelling "chor chor" and on seeing that he nabbed the aforesaid first boy who later on revealed his name as Sandeep (accused).Thereafter, the bag in the possession of the accused was checked and certain things already stated in the preceding paragraph were recovered. Apart from the articles already mentioned, some more articles like one small iron rod, one gold ginni came to be recovered from the possession of the accused. PW 1 further deposed that at that point of time, PW 2 Sh. Rohan Kumar disclosed that all the articles mentioned aforesaid belonged to him which was stolen by the accused by breaking into his house. PW 1 also identified the said articles/case property by seeing the photographs of the same. His testimony also went unrefuted.
18. The stolen property was seized vide memo Ex PW1/A, small iron rod was seized vide memo Ex PW1/B, accused was arrested vide memo Ex PW1/C, his personal search was conducted vide memo Ex PW1/D, site plan was prepared Ex PW2/C. PW 4 Head Constable Manvir was posted as duty officer at PS Ambedkar Nagar who registered the F.I.R Ex PW4/A and made endorsement on rukka Ex State Vs. Sandeep FIR no. 850/07 PW4/B.PW 5 Constable Munish Yadav recorded the DD entry no. 35B Ex PW5/A. Accused did not take any strong exception to the aforesaid documents except for putting one or two suggestions which were denied by PW 4 and PW 5.All the evidence discussed above supports the case of prosecution.
19. In statement under section 313 read along with 281 Cr.P.C accused simply denied the incriminating evidence against him. No elucidation was given by the accused in his statement as to how he came into possession of the property or that he was the owner of the property. The absence of credible explanation on his part points towards his guilt.
20. Although there is no eye witness who has actually seen the accused at the time of stealing the bag from the home of PW 2 Rohan Kumar but PW 2 has categorically stated that when he was entering in his home he saw accused coming out of his home with the stolen bag in his hand. In the absence of any direct evidence, the fact that accused was found in the possession of stolen property the only inference that can be raised in view of illustration (a) to Section 114 of the Evidence Act is that he is either receiver of stolen property or was the person who committed the theft. And since the theft is committed in the dwelling house therefore case of the accused will fall under the ambit of section 380 IPC. There is no ground to disbelieve the testimony of PW 2.
State Vs. Sandeep FIR no. 850/07 There is no reason why Rohan Kumar (PW2) would falsely implicate the accused. It is not the stand of the accused that he was having animosity with him and had falsely implicated him.
21. In Sarwan Singh v. State of Punjab (2003) 1 SCC 240, para 9 is relevant "9....It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination it must follow that the evidence tendered on that issue ought to be accepted."
22. Considering the overall evidence on record, prosecution has discharged its burden of proving the case beyond reasonable doubt. Deposition of almost all the material witnesses have not been challenged or demolished in the cross examination. Therefore, accused Sandeep stands convicted for the offence under section 380 of IPC. Let he be heard on the point of sentence.
Announced in the open court (Navjeet Budhiraja)
on 27.08.2012 Metropolitan Magistrate
South East, New Delhi
State Vs. Sandeep FIR no. 850/07