Delhi District Court
State vs . Mahender @ Babloo Etc. on 12 October, 2011
1
IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Mahender @ Babloo etc.
FIR No.173/08
PS: Keshav Puram
U/s 454/380/411/34 IPC
Case ID No. 02401R0113652009
JUDGEMENT
A) Sl. No. of the case : 44/2
B) The date of commission : 21.02.2009
of offence
C) The name of the complainant : Ms. Pankaj Malhotra
W/o Lt. Jawala Sahai Malhotra
r/o B221/2, Majlish Park, Adarsh
Nagar, Delhi
D) The name & address of accused : 1. Mahender @ Babloo s/o Sh. Som Parkash r/o H.No.C1358, Jahangirpuri, Delhi
2. Sanjay @ Prithvi Raj s/o Lt. Ashok Kumar r/o J185, Shakurpur, Delhi
3. Nassiruddin @ Nasir s/o Lt. Abdul Rasid r/o B22, New Ranjit Nagar, Delhi (discharged vide order dt. 29.11.10)
4. Giri Raj Singh Verma s/o Sh. Nanak Chand r/o G162, Jahangirpuri, Delhi E) Offences complained of : U/s 454/380/411/34 IPC F) The plea of accused : Pleaded not guilty FIR No. 173/08 Page No.-1/18 2 G) Final order : Mahender @ Babloo and Sanjay @ Prithvi Raj convicted U/s 411/34 IPC and U/s 75 IPC.
Accused Giri Raj Singh convicted U/s 411/34 IPC.
H) The date of such order : 12.10.2011
Date of Institution: 21.04.2009
Judgment reserved on: 27.09.2011
Judgment announced on: 12.10.2011
THE BRIEF REASONS FOR THE JUDGEMENT:
1. The accused namely Mahender @ Babloo, Sanjay @ Prithvi Raj and Giri Raj Singh have been facing trial in respect of offence u/s 411/34 IPC on the allegations that on 21.02.09, they got recovered part of teh case property which was stolen on 01.08.08 from the H.No. B221, Gali No. 2,Majlish Park, Adarsh Nagar, Delhi belonging to complainant namely Smt. Pankaj Malhotra and said accused had knowledge or reason to believe that said recovered property was stolen property. It is further alleged against accused Mahender @ Babloo that he had already been convicted in case FIR No. 194/04 u/s 454/380/411/34 IPC with PS Sarai Rohilla and FIR No. 20/00 u/s 454/380/411/34 IPC with PS Inderpuri vide judgment dt. 22.05.02 and thus he is liable for enhanced punishment as provided u/s 75 IPC.
3. Likewise, it is also alleged against accused Sanjay @ Prithvi Raj that he was previously convicted in FIR No. 20/00 u/s 454/380/411/34 IPC with PS Inderpuri vide FIR No. 173/08 Page No.-2/18 3 judgment dt. 22.05.02 and thus, he is also liable for enhanced punishment u/s 75 IPC.
4. In brief, the story of prosecution is that the FIR was registered on the basis of the statement of complainant namely Smt. Pankaj Malhotra to the effect that on 01.08.08 at about 2.45 pm when she returned back from school, she found gathering in front of her house. The lock of the main door was found broken. She entered into her house and found that all the goods were scattered in the house. On checking, she found that three gold chains, two rings, two lockets, rings and several silver and other artificial jewellery articles and cash of Rs. 10,000/ was found missing from her house. She informed the police. She made statement before the police. After registration of FIR, investigation was entrusted to SI Praveen Kumar who arrested the accused herein and got recovered stolen articles from the residents at the instance of accused persons. In the year 2009, she was informed by police officials of Crime Branch about some jewellery articles recovered by them. She was asked to come to the Court for identifying the recovered articles and she identified one artificial set, one small gold chain and one gold locket reflecting the word 'Om' during TIP. She got released the aforesaid articles on superdari.
5. After completion of investigation, charge sheet was prepared and filed in the Court. Accordingly, cognizance was taken by my Ld. Predecessor.
6. The accused were supplied with the copies of the challan in compliance of section 207 Cr.P.C and charges in respect of offences u/s 411/75 IPC were framed against accused Mahender @ Babloo and Sanjay @ Prithvi Raj whereas charge in FIR No. 173/08 Page No.-3/18 4 respect of offences u/s 411 IPC was framed against accused Giri Raj Singh on 29.11.10 to which they pleaded not guilty and claimed trial.
7. In support of its case, the prosecution has examined as many as nine witnesses namely PW1 Smt. Pankaj Malhotra, PW2 HC Chander Veer, PW3 SI Om Parkash, PW4 SI Surender, PW5 Sh. Neeraj Gaur Ld. MM, PW6 HC N.K.Pavitran, PW7 SI Praveen Kumar, PW8 Sh. Amit Kumar Sehrawat LDC and PW9 HC Rajender Kumar.
8. Thereafter, the statements of accused persons were recorded under section 313 Cr.P.C in which the stand of the accused persons were of general denial. Accused Sanjay @ Prithvi Raj had stated that on 19.12.09 at about 11.30 pm, some police officials came to his house in Shakurpur and took him to Jahangirpuri and from there he was taken to office of Crime Branch, Prashant Vihar and was falsely implicated in this case. He is innocent. No chain recovered from his house and it was falsely planted upon him.
9. Accused Giri Raj Singh Verma stated that on 21.02.09 at about 12.00 noon some police officials alongwith accused Mahender came to his house. He further stated that police officials of Crime Branch asked him to accompany them on the pretext that he would be permitted to go after interrogation. Then he was taken to the office of Crime Branch, Prashant Vihar and had been falsely implicated in this case. No necklace was recovered from his house and it was falsely planted upon him by IO. He is innocent and nothing has been recovered from him. He stated that he did not purchase any jewellery from accused Mahender.
FIR No. 173/08 Page No.-4/18 5
10. Accused Mahender @ Babloo stated that on 21.02.09 at about 10.00 am when he was present in his house in Jahangirpuri, 6/7 police officials came and took him to PS Prashant Vihar. No locket in question was recovered from him. IO had falsely planted the locket upon him and he has been falsely implicated in this case. However, all the three accused have chosen not to lead any DE.
11. I have heard Ld. APP on behalf of State and Ld. Legal aid counsel Sh. Anil Dagar adv on behalf of accused Mahender @ Babloo and Ld. Counsel Sh. Vijay Khanna adv on behalf of accused Giri Raj. I have also carefully perused the material available on record as well as the written arguments filed on behalf of accused Sanjay @ Prithvi Raj.
PW1 Smt. Pankaj Malhotra/complainant has deposed that on 01.08.08 in the morning, she went to her job after properly locking her house. At about 2.45 pm, she returned to her house and found gathering in front of her house. The lock of the main door was found broken and all the goods were scattered in the house. On checking, she found three gold chains, two ear rings, two lockets, rings and several silver and other artificial jewellery articles and cash of Rs. 10,000/ were missing from the house. Police was informed and she made statement Ex.PW1/A to the police. In the year 2009, she was informed by the police of Crime Branch that some jewellery articles were recovered by them. She was asked to come to Court for identifying the recovered articles. She identified one artificial set, one small gold chain and one gold locket reflecting the word 'Om' during TIP. She got released the aforesaid articles on FIR No. 173/08 Page No.-5/18 6 superdari after furnishing superdarinama Ex.PW1/B. Said witness has not been cross examined by the accused despite grant of opportunity.
PW2 HC Chander Veer DO entered into witness box and deposed that on 01.08.08 at about 05.05 PM, he received one rukka from Ct. Sunil which was sent by SI Om Parkash. He registered the FIR no. 173/08 U/s 380 IPC and the same was got registered through computer installed at PS Adarsh Nagar on the basis of tehrir sent by SI Om Parkash. The printout of the said FIR is EX PW2/A. He further certify that nothing abnormal took place during that period. He had also brought the FIR register which has the similar printout and the same is Ex PW2/A. The said witness has not been cross examined by the accused despite grant of opportunity.
PW3 SI Om Prakash deposed that on 01.08.2008 he received DD No. 17A. He alongwith Ct. Sunil went to the spot where Mrs. Pankaj Malhotra met them. He recorded her statement and prepared rukka Ex.PW3/A and sent Ct. Sunil to PS Adarsh Nagar for registration of FIR. He prepared siteplan Ex.PW3/B at the instance of complainant. He made efforts to trace the culprit and stolen articles but he could not get any proof so he filed report on 01.12.08. In his cross examination on behalf of accused Giri Raj, the witness has denied that he did not conduct fair and proper investigation in the present case. This witness has not been cross examined on behalf of other accused persons despite grant of opportunities.
PW4 SI Surender, PW6 HC N.K.Pavitran and PWSI Praveen Kumar are the alleged recovery witnesses. They have deposed that on 21.02.09 at about 11.45 am, FIR No. 173/08 Page No.-6/18 7 SI Praveen Kumar received secret information that the culprits wanted in the present case i.e FIR No. 173/08 namely Mahender @ Babloo and his associates would come near Jahangir Puri Metro Station in between 1 P.M to 2 P.M. It was further informed that they would make planning to commit theft somewhere else. SI Praveen conveyed the secret information to his senior officers. The senior officers directed him to proceed as per law. Raiding party was formed comprising of SI Praveen Kumar, SI Surender, HC N.K Pavitran, Ct. Karambir and Ct. Jagmohan. They alongwith the secret informer went to the spot i.e Jahangir Puri Metro Station. At about 1.30 P.M, one person came near Metro Station and started waiting for his associates. The secret informer pointed out towards that person and identified him as Mahender @ Babloo. After about 2025 minutes, his two associates also came then accused Mahender @ Babloo and his two other associates were apprehended by the members of raiding party. SI Praveen Kumar came to know the names of other two associates as Nasirudeen (discharged from the present case) and Sanjay @ Prithvi Raj. SI Praveen Kumar conducted search of all the accused persons. One iron rod was recovered from the possession of accused Mahender and other iron rod was recovered from the possession of accused Nasirudeen.They were interrogated and it was disclosed by them that they had planned to commit theft in one house and so rod was carried by them to break the lock of that house. They also disclosed about their involvement in the present case. SI Praveen arrested accused Mahender @ Babloo and Sanjay @ Prithviraj and prepared arrest memos Ex PW4/E and PW4/F. SI Praveen also recorded their disclosure statements Ex. PW4/A and PW4/B. Thereafter, they took the police officials to the House no. B221, Majlis Park, Adarsh Nagar and pointed out the house where they had committed theft. SI Praveen Kumar prepared pointing out FIR No. 173/08 Page No.-7/18 8 memos as Ex PW7/A and PW7/B. Accused Mahender disclosed that he could got recovered one locket which was stolen by him and kept at the place of worship in his house situated in Jahangir Puri. Thereafter, he took them to House no. C1358, First Floor, Jahangirpuri and got recovered one locket in the shape of "OM" from the place of worship of his house. Some shining stones were affixed on this locket and this was of gold metal. This locket was sealed with the seal of PKD and was taken into police possession vide seizure memo Ex PW4/G. Thereafter, accused Mahender led the police party to the house of one jeweller to whom he had sold the jewellary articles stolen from House no. B221, Majlis Park. Accused Mahender took them to House no. G162, Jahangir Puri that was the house of Giriraj Verma. Accused Giriraj was interrogated who confessed that he had purchased the jewellary articles from these accused persons and he had further sold all those jewellary articles except one artificial necklace to one Jeweller in Regarpura. Thereafter, he took out one artificial necklace from his house pertaining to the present case. The necklace was also sealed with the seal of PKD and was taken into police possession vide seizure memo Ex PW4/I. Accused Giriraj was arrested in the present case vide arrest memo Ex PW4/H. Accused Sanjay took them to his House at J185, Shakur Pur from where he had got recovered one gold chain pertaining to the present case. This chain was also sealed with the same seal and was taken into police possession vide seizure memo Ex PW4/J. Thereafter, all the accused persons were got medically examined and brought to PS Samey Pur Badli. The case property was deposited with MHC(M) PS Crime Branch. The rods recovered from accused Mahender and Nasrudeen were also deposited with MHC(M). On 12.3.09, SI Praveen Kumar got conducted the judicial TIP of the recovered case property through complainant Ms. Pankaj Malhotra who FIR No. 173/08 Page No.-8/18 9 correctly identified the aforesaid recovered jewellary articles. SI Praveen Kumar obtained the copy of TIP proceedings. After completing investigation charge sheet was filed.
PW5 Sh. Neeraj Gaur Ld. MM, Rohini Courts Delhi has conducted the TIP of jewellery articles and proved the TIP proceedings as Ex.PW5/A. The witness has not been cross examined by the accused persons despite grant of opportunity.
PW8 Sh. Amit Kumar Sehrawat LDC, Record Room(Criminal) Tis Hazari Courts has proved copy of judgment and order on sentence in respect of accused Mahender @ Babloo as Ex.PW8/A and Ex.PW8/B respectively. The said witness has not been cross examined by the accused persons despite grant of opportunities.
PW9 HC Rajender Kumar produced the police file of case FIR No. 20/00 U/s 457/380/411/34 IPC with PS Inderpuri. As per said record i.e Conviction Slip and FIR, accused Mahender @ Babloo and accused Sanjay @ Prithviraj had been convicted in aforesaid case on 22.05.02 by the court of Ms. Kamini Lau, the then Ld. MM. Photocopy of FIR and conviction Slip were proved as Ex.PW9/A and Ex.PW9/B respectively. The said witness has also not been cross examined by the accused persons despite grant of opportunities.
While opening the arguments, Ld Legal Aid Counsel appearing on behalf of accused no. 1 Mahender @ Babloo and Ld counsel Sh. Vijay Khanna Adv appearing on behalf of accused Giri Raj Singh argued that no public witness has been joined during investigation or at the time of alleged recovery of part of case property from the possession of said accused despite the availability of public persons at the spot. In this FIR No. 173/08 Page No.-9/18 10 regard, Ld counsel of said accused also referred to the story of prosecution as well as the relevant portions of the testimonies of PW4, PW6 and PW7( who are the alleged recovery witnesses in this case). Ld counsel of accused Mahender @ Babloo further submitted that said accused has been arrested near Metro Station Jahangir Puri which is a crowded place and public persons are always available there but still no effort is shown to have been made by IO to join any independent witness which create sufficient doubt in the prosecution story regarding arrest of said accused or recovery of any iron rod or gold locket from his house. Next limb of argument raised on behalf of said accused is that even landlord/owner of the house of accused Mahender @ Babloo has not been joined during alleged recovery of gold locket Ex P3. Likewise, no resident or neighbour from the locality wherein house of accused Giri Raj was situated, has been joined during recovery of artificial necklace Ex P1. It was further argued by Ld counsel of accused Giri Raj Singh that artificial necklace is easily available in the market and a number of artificial necklaces of same make and design are prepared simultaneously and even if it be presumed for the sake of argument that artificial necklace Ex P1 was recovered from the possession of said accused, still no offence could be proved against him on said ground. He also argued that there is violation of Section 100(4) Cr.PC in this case as none of the alleged recovery witnesses dared to depose before the Court that any resident of the same locality was even requested to join the recovery proceedings. Ld counsel for all the accused also referred to several contradictions arising in the testimonies of PW4, PW6 and PW7 in support of their contentions that those contradictions clearly shows that prosecution has failed to prove its case against the accused persons.
It is mentioned in the written arguments filed on behalf of accused Sanjay @ FIR No. 173/08 Page No.-10/18 11 Prithvi Raj that he has been falsely implicated in this case by lifting him from his house. Relevant portion of the cross examination of PW4 SI Surender has been referred wherein said witness could not tell about the registration number, make and ownership of the vehicle in which the members of raiding party had proceeded to Metro Station Jahangir Puri. In the written arguments filed by said accused, he has also referred to some contradictions as pointed out on behalf of accused Mahender @ Babloo and Giri Raj Singh in support of submission that those contradictions create serious doubt on the testimonies of recovery witnesses as well as upon the prosecution story.
On the other hand, Ld APP for the State argued that arrest of accused Mahender @ Babloo was effected on the basis of secret information received by SI Parveen Kumar(PW7) and efforts were made by IO i.e PW7 SI Parveen Kumar to associate independent public persons to join the proceedings but none agreed and thus, no fault should be permitted on the part of IO in not joining public persons during investigation. Ld APP has referred to the relevant portion of the cross examination of recovery witnesses wherein they have deposed that IO SI Parveen Kumar(PW7) had requested some passers by to join the investigation but they did not join. Ld APP further submitted that the contradictions pointed out by Ld defence counsel are minor contradictions which are immaterial and therefore, no benefit can be derived by said accused in this regard. Ld APP also submitted that all the three recovery witnesses examined during trial, have fully supported the case of prosecution regarding recovery of gold locket Ex P3 from the possession of accused Mahender @ Babloo and have duly corroborated each other and thus, the offence U/s 411 IPC stands proved qua the said accused.
FIR No. 173/08 Page No.-11/18 12 It is an undisputed fact that no independent public person has been joined during investigation in this case. It also goes without saying that it is the duty of IO to associate independent public witness during recovery proceedings as per mandate of Section 100(4) Cr.PC. However, it has been established on record that efforts were made by IO SI Parveen Kumar(PW7) to join independent public persons during investigation but none was willing to join investigation at all.
PW4 has categorically deposed during his cross examination on behalf of accused Mahender @ Babloo that IO had requested the neighbourers to join the investigation at the time of recovery but none joined. PW6 also deposed during his cross examination on behalf of said accused that IO had requested several public persons to join the investigation near Metro Station Jahangir Puri where from said accused was arrested in this case. Law enjoins upon investigating agency to ensure that sincere efforts are made to associate independent persons to witness the search/seizure of case property but there is no requirement of law that in each and every case where independent witness has not been joined during recovery proceedings, benefit must always go to the accused. It is not uncommon these days that people are reluctant to become witness in criminal trial cases. In such circumstances no benefit can be given to the accused for not joining off independent public witnesses. It is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out.
In the case titled as "State of U.P. vs. Anil Singh" reported at AIR 1988 FIR No. 173/08 Page No.-12/18 13 SC 1998, it was held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out to the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.
Hon'ble Supreme Court in the case Ambika Prasad & anr vs. State 2002 (2) CRIMES 63 (SC) has held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses. It was also held that non examination of investigating officer of the case is no ground to discard the evidence of eye witnesses.
vs. Anil Singh AIR 1988 Sc 1998
Similarly in the case of State of U.P. ; Dr
Krishna Pal and another vs. State of U. P.1996 (7) SCC 194 and in the case of Appabhai Vs. State Of Gujrat AIR 1988 SC 696 it was held that These days people FIR No. 173/08 Page No.-13/18 14 in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
Law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy.
Hon'ble Supreme Court in Anil @ Andya Sadashiv Nandorkar Vs. State J. T. 1996 (3) SC 120 has held that testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable. Further, Hon'ble Supreme Court in Akmal Ahmad Vs. State of Delhi J. T 1999 (2) SC 388 held that ''it is now well settled that evidence of search and seizure made by police will not become vitiated only for the reasons that the evidence is not supported by independent witnesses.'' As regards the contradictions pointed out by Ld counsel for accused Mahender @ Babloo as appearing in the depositions of PW4,PW6 and PW7, it is relevant to mention that those contradictions are not material one so as to create any doubt in the prosecution story. The contradictions appearing in the testimonies of said three witnesses on the point of conducting writing work at the spot or name of the wife of said accused or the number of floors constructed in the building in which the house of said accused was situated are minor contradictions which do not go into the root of the matter and do not caste any doubt on the prosecution story. It cannot be said that the testimonies of all the said three recovery witnesses is liable to be discarded merely because there had been several minor contradictions. The Court also does not find FIR No. 173/08 Page No.-14/18 15 any force in the submission made by Ld defence counsel of said accused that driver of Qualis car ought to have been joined during investigation and due to failure on the part of IO to join the driver during investigation, prosecution story should be disbelieved or the case of prosecution should be thrown away.
Furthermore in the case reported as "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by the Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
It was further observed in the said judgment as under: "The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial"
It has been held by Hon'ble Supreme Court in case of State of Maharashtra Vs. Krishnamurti, AIR 1981 S.C. 617 that a minor discrepancy between the statement of a witness in examination in chief and in cross examination should not affect his credibility. In another matter titled as "State of Punjab Vs. Wassan Singh" reported in A.I.R 1981 S.C.697, it has been held that truthfulness should be tested on the whole.
In the present case, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the witnesses including police officials. The careful perusal of the testimonies of prosecution witnesses examined in this case more particularly the testimonies of recovery witnesses namely PW4, PW6 and FIR No. 173/08 Page No.-15/18 16 PW7 as discussed above, clearly proves that the accused Mahender @ Babloo got recovered one gold locket which was stolen on 01.08.02 from the house of complainant namely Smt. Pankaj Malhotra. The testimony of complainant namely Smt. Pankaj Malhotra (PW1) that she had correctly identified said artificial necklace Ex P1, gold chain Ex P2 and gold locket Ex P3 coupled with the testimony of PW5 who had conducted TIP of said jewellary articles corroborates the testimonies of PW4, PW6 and PW7 in this regard. There is no merit in the argument raised on behalf of accused Giri Raj Singh that lot of artificial necklaces is manufactured simultaneously due to which availability of similar artificial necklace in his possession, does not amount to commission of offence. It is relevant to note that said accused ought to have taken the said defence during the cross examination of prosecution witnesses which he has failed to do as he nowhere put any such suggestion during cross examination of PW1 namely Smt. Pankaj Malhotra/complainant. Rather, the defence taken by said accused during cross examination of PW4, PW6 and PW7 had been that no such artificial necklace was ever got recovered from him. However, the recovery of said artificial necklace Ex P1 has been sufficiently proved beyond doubt during the testimonies of PW4, PW6 and PW7.
Although, the accused have taken the stand in their statements U/s 313 Cr.PC that police officials have falsely implicated them in this case by planting the case property upon them but they have failed to prove the said defence during trial. They have also not led any defence evidence for proving such defence. It is nowhere the case of said accused that complainant namely Smt. Pankaj Malhotra(PW1) or PW4, PW6 and PW7 were previously known to them or had any enmity or grudge to depose against them in this case. Mere bald assertion made by said accused that they FIR No. 173/08 Page No.-16/18 17 have been falsely implicated in this case, would not be sufficient to disbelieve the testimonies of those prosecution witnesses. It would be anybody guess as to why police officials would do this. If the accused want this court to believe that they have been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for their false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this court to believe their version by simple bare allegation that they have been falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw out the testimony of witnesses.
Accordingly, Court is of the view that prosecution has been successfully able to prove beyond reasonable doubt that stolen gold locket Ex P3 was got recovered by accused Mahender @ Babloo, stolen gold chain Ex P2 was got recovered by accused Sanjay @ Prithvi Raj and stolen artificial necklace Ex P1 was got recovered by accused Giri Raj Singh and those stolen articles had been retained by them having knowledge or reason to believe the same to be stolen property. Consequently, all the said three accused are convicted in respect of offence U/s 411/34 IPC.
Although, no argument has been advanced on behalf of accused Mahender @ Babloo in respect of charge U/s 75 IPC separately framed against him but the prosecution has examined PW8 Sh. Amit Kumar Sehrawat who has proved copy of judgment and order on sentence Ex PW8/A and PW8/B respectively in respect of case FIR no. 194/03 U/s 411/34 IPC with PS Sarai Rohilla whereby, the accused Mahender FIR No. 173/08 Page No.-17/18 18 @ Babloo has been convicted in respect of similar offence i.e offence U/s 411 IPC and has been sentenced to RI for a period of six months in respect of said offence. Testimony of said witness has gone unrebutted as said accused did not prefer to cross examine the said witness despite grant of opportunity. Not only this, copy of conviction slip Ex PW9/B proved by MHC(R) of PS Inderpuri namely HC Rajinder Kumar further shows that accused Mahender @ Babloo was also convicted in respect of offences U/s 457/380/411/34 IPC in case FIR no. 20/00 with PS Inderpuri vide judgment dt. 22.5.02. In view of the testimonies of PW8 and PW9, it has been clearly established beyond doubt that accused Mahender @ Babloo and Sanjay @ Prithvi Raj are guilty of committing offence U/s 75 IPC.
Announced in the open Court (VIDYA PRAKASH) today on 12.10.2011 (ACMM1/NW/RC/DELHI) FIR No. 173/08 Page No.-18/18