Delhi District Court
State vs . Vinod Kumar & Anr. on 20 June, 2014
IN THE COURT OF SH. TARUN YOGESH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
State Vs. Vinod Kumar & anr.
FIR No: 537/13
PS: Saket
U/s: 379/411/34 IPC.
JUDGMENT
1. S. No. / ID No. of the Case : 02406R0034452014
2. Date of Commission of Offence : 25.12.2013
3. Date of institution of the case : 10.02.2014
4. Name of the complainant : Bhagwan Singh
S/o. Sh. Sohan Lal
R/o. House No. A1/433, Madan
Gir, New Delhi62.
5. Name of accused, parentage : 1. Vinod Kumar
S/o Sh. Devi Ram
R/o House No. 2/191, Dakshin
Puri, New Delhi.
2. Laxman S/o. Sh. Kartar Singh
R/o. House no. 2/181, Dakshin
Puri, New Delhi.
FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 1 of 17
6. Offence complained or proved : u/s 411 r/w 34 IPC
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Convicted
9. Date of Final Order : 20.06.2014.
BRIEF REASONS FOR SUCH DECISION :
01. Accused Vinod Kumar S/o. Sh. Devi Ram and Laxman S/o. Sh. Kartar Singh have been tried for offence under section 411 read with Sec. 34 IPC upon allegation of having dishonestly retained one stolen Hero Honda CD Dawn, black colour motorcycle bearing registration no. DL3SAT6984 belonging to complainant Sh. Bhagwan Singh which was recovered at their instance from Pushpa Bhawan parking.
02. Prosecution has launched its case against accused persons upon chargesheet filed by IO HC Jai Kishan. As revealed from chargesheet, complainant Sh. Bhagwan Singh S/o Sh. Sohan Lal went to PS Saket and gave a written complaint regarding theft of his motorcycle. HC Jai Kishan made his endorsement upon the complaint, and FIR for offence U/s 379 IPC was registered at PS Saket.
03. During investigation, IO HC Jai Kishan inspected the spot and prepared the site plan at the instance of complainant. Wireless message regarding theft of motorcycle was flashed and information was conveyed to NCRB and SCRB, but no FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 2 of 17 clue about stolen motorcycle could be obtained. Subsequently on 26.12.2013, MHC(R), PS Saket produced a copy of DD No. 26A recording information received from HC Sahab Singh, PS Ambedkar Nagar regarding arrest of accused persons and recovery of the stolen motorcycle being effected at their instance during investigation of FIR No. 616/13, U/s 379/411 IPC, PS Ambedkar Nagar. Thereafter, IO HC Jai Kishan went to PS Ambedkar Nagar and obtained the relevant documents from PS Ambedkar Nagar. Statements of HC Sahab Singh and Ct Raj Singh were recorded U/s 161 Cr.PC and stolen motorcycle was brought from PS Ambedkar Nagar on 27.12.13 vide RC no. 248/21/13 and deposited in malkhana at PS Saket. Accused were interrogated at Tihar Jail with court's permission and after their arrest on 30.12.2013, were produced in court on 31.12.2013 and remanded to JC. Having recorded the statements of witnesses and recovered the stolen motorcycle, IO HC Jai Kishan concluded investigation and prepared charge sheet which was filed in court and accused persons were sent for trial.
04. Cognizance of offence was taken and after compliance of section 207 Cr.PC, formal charge for offence U/s 411 read with Sec. 34 IPC was framed and explained to both accused persons on 25.02.2014, to which they pleaded not guilty and claimed trial.
05. Prosecution has examined ten witnesses on judicial record in support of its case. Complainant Sh. Bhagwan Singh has been examined as PW01. Sh. Raj FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 3 of 17 Kumar, Ahlmad in the court of Sh. Navjeet Buddhiraja, Ld. MM, Saket, South District has been examined as PW02. Recovery witnesses Ct. Raj Singh and HC Sahab Singh, PS Ambedkar Nagar have been examined as PW03 and PW08. Sh. Suresh (complainant in FIR No. 616/13, PS Ambedkar Nagar) has been examined as PW04, HC Satish Kumar, MHC(M) PS Saket and HC Keshav Kumar, MHC(M) PS Ambedkar Nagar have been examined as PW06 and PW10. ASI Ravinder Singh, Duty officer HC Ramesh Chand and HC Jai Kishan (IO) have been examined as PW05, PW07 and PW09.
06. After closure of prosecution evidence, accused Laxman and Vinod were examined under section 313 Cr.P.C and they have denied the alleged recovery of four stolen motorcycles being effected at their instance from Pushpa Bhawan Parking on 25.12.2013. Accused have disputed the depositions of recovery witnesses and claim to have been falsely implicated in this case.
07. Final arguments have been addressed by Ld. APP for the State and Ld. Legal Aid Counsel Sh. Tej Narayan.
08. Ld APP for the State has referred to the seizure memo under section 102 Cr.P.C., proved as Ex. PW 2/A for submitting that both accused were arrested by police personnels, PS Ambedkar Nagar during investigation of FIR No. 616/13, U/s 379/411 r/w 34 IPC and four stolen motorcycles were recovered at their instance from Pushpa Bhawan Parking on 25.12.2013. He further submits that out of these FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 4 of 17 four motorcycles, two motorcycles were stolen from Saket which include the stolen Hero Honda CD Dawn, black colour motorcycle bearing no. DL 3SAT 6984 of the present case and one Apache motorcycle bearing no. DL3SCN2589 which is the case property of FIR bearing no. 284/13, PS Saket for submitting that recovery of stolen Hero Honda CD Dawn motorcycle from Pushpa Bhawan Parking at the instance of accused has been proved beyond reasonable doubt.
09. Ld. Legal Aid Counsel on the other hand has pointed to the difference in signatures of accused appearing upon the photocopy of seizure memo U/s 102 Cr.P.C. filed alongwith chargesheet exhibited as Ex. PW 2/A and the original memo filed in the judicial record of FIR No. 616/13, PS Ambedkar Nagar. He has argued for acquittal of accused by submitting that since the difference in signatures upon the documents has not been explained by prosecution, so allegation of recovery of four stolen motorcycles from Pushpa Bhawan Parking at the instance of accused could not be proved and accused are entitled to the benefit of doubt as chances of fabrication of memo cannot be ruled out. Ld. Legal Aid Counsel has referred to the crossexamination of recovery witnesses to argue that no independent public witness was joined in recovery proceedings and the place of recovery is open, not under the exclusive possession of accused. Next he has referred to their cross examination for contending that witnesses could neither tell the exact time of reaching Pushpa Bhawan parking nor could tell the registration number, engine FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 5 of 17 number, chasis number and colour of motorcycle for raising doubts over the veracity of recovery of four stolen motorcycles from Pushpa Bhawan parking.
10. Facts of the case, leading to registration of FIR for offence U/s 379 IPC have been proved by complainant Sh. Bhagwan Singh (PW01) and HC Jai Kishan (PW09). PW01 has deposed of having gone to attend a marriage function at Sector 01, Pushp Vihar, Ram Leela Park on 01.12.2013 and to have parked his motorcycle outside the park. However, after returning from marriage, he did not find his motorcycle and after searching for 34 days, finally lodged his formal compliant to police on 06.12.2013. He has proved his written complainant as Ex PW 1/A. Testimony of PW01 has been corroborated by IO HC Jai KIshan (PW09) who has deposed of having received written complaint regarding theft of complainant's motorcycle given at PS Saket on 06.12.2013 and proved the rukka as Ex. PW 9/A and site plan as Ex. PW 9/B. Contents of FIR No. 537/13, PS Saket, U/s 379 IPC have been admitted by accused in their joint statement recorded U/s 294 Cr.PC and copy of FIR has been exhibited as Ex. A1.
11. As regards investigation of the case, HC Jai Kishan (IO) and HC Ramesh Chand (PW07) have deposed about information received vide DD No 26A dated 26.12.2013 from PS Ambedkar Nagar. HC Jai Kishan (PW09) and ASI Ravinder Singh (PW07) have deposed about arrest of accused persons at Tihar Jail no. 3 and proved to their arrest memos as Ex. PW 5/A and Ex. PW 5/B. IO HC Jai Kishan FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 6 of 17 has also deposed about the stolen motorcycle being brought to PS Saket and deposited in malkhana which is corroborated by PW06 HC Satish Kumar (MHCM) who has deposed that on 27.12.2013, stolen motorcycle of the present case was received from PS Ambedkar Nagar vide RC No. 248/21/13 dated 27.12.2013 and has proved entry made at serial no. 2657/13, copy being exhibited as Ex. PW 6/A.
12. As regards the dissimilarity between signature of accused appearing upon photocopy of seizure memo exhibited as Ex. PW1/A and the original seizure memo produced by PW01, such difference is inconsequential as the 'primary evidence' i.e. original seizure memo U/s 102 Cr.P.C. has been brought with the judicial file of FIR No. 616/13, U/s 379/411 IPC, PS Ambedkar Nagar and has been proved by witnesses. It is also relevant to note that except for variance at the point of signature, there is no other difference between the original and the photocopy which is the exact replica of the former. Therefore in my considered opinion, the different signature upon photocopy of seizure memo filed alongwith chargesheet, marked as Ex PW1/A, does not impinge upon the veracity of original seizure memo proved on record by witnesses.
13. The star witnesses of prosecution are Ct. Raj Singh (PW03) and HC Sahab Singh (PW08). Both recovery witnesses have deposed to have reached near shop No. 10/6, Guru Nank Market, Dakshinpuri Delhi on 25.12.2013 at about 12:10 PM and met Sh. Suresh (complainant in FIR No. 616/13 PS Ambedkar Nagar) who FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 7 of 17 handed over accused Laxman, alleging to have apprehended the accused with his stolen motorcycle bearing No. DL3SAT6191. Accused Laxman was arrested and disclosed about his involvement in several cases of theft of motorcycles with co accused Vinod which they had parked at Pushpa Bhawan Parking and could get them recovered. Thereafter coaccused Vinod was arrested from his house bearing No. 2/191, Dakshinpuri at the instance of accused Laxman and together they led the witnesses to Pushpa Bhawan Parking and got recovered four stolen motorcycles which were seized U/s 102 Cr.P.C. Both recovery witnesses have proved the seizure memo as Ex. PW 2/A and disclosure statements of accused Laxman and Vinod as Ex. PW 2/B and Ex. PW 2/C. PW HC Sahab Singh has referred to the arrest memo of accused as Ex. PW 8/A and referred to photographs of motorcycle as Ex. P1.
14. During their crossexamination by Ld. LAC, both witnesses have denied the suggestion that no recovery was effected from Pushpa Bhawan Parking or that the case property had been planted upon accused. Both witnesses have also denied the suggestion that seizure memo and disclosure statements were manufactured documents or that the signatures of accused were obtained upon blank papers. Though PW Ct. Raj Singh could not disclose the DD entry recorded at PS before leaving for Daksinpuri, but PW HC Sahab Singh has deposed to have made departure entry vide DD No. 14A at PS Ambedkar Nagar. Both witnesses have FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 8 of 17 deposed to have reached at 10/6, Dakshinpuri at about 12:10 PM and to have remained there for about 1015 minutes. They have also deposed to have reached at Pushpa Bhawan Parking in the evening though they could not remember the exact time. PW HC Sahab Singh has deposed to have deposited the recovered motorcycle in malkhana and denied the suggestion that the stolen motorcycles were kept in PS Ambedkar Nagar and were planted upon the accused persons. Nothing substantial has been elicited during their crossexamination which would impeach their veracity or impel the court to draw an adverse inference against recovery of four motorcycles from Pushpa Bhawan Parking and therefore, the contention raised by Ld. LAC that since witnesses could neither tell the exact time of reaching Pushpa Bhawan Parking nor could tell the engine number, chasis number and colour of motorcycle, so the alleged recovery of stolen motorcycles effected at the instance of accused from Pushpa Bhawan Parking could not be proved is farfetced and unconvincing.
15. Testimony of recovery witnesses have been corroborated by PW04 Sh. Suresh (complainant in FIR No. 616/13, PS Ambedkar Nagar). He has deposed about his motorcycle bearing no. DL 3SAT6191 being stolen on 25.12.2013 and to have apprehended accused Laxman (correctly identified by witness) who was driving his motorcycle, which he identified on the road and thereafter called the police and handed over the accused to police. During his crossexamination by ld. FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 9 of 17 LAC, he has deposed that PCR came at the spot within 1015 minutes after call was made on 100 number and police remained at the spot for about 510 minutes and also interrogated the accused in his presence.
16. Testimony of recovery witnesses is further corroborated by PW10 HC Keshav Kumar who has deposed of being posted at PS Ambedkar Nagar as MHC(M) on 25.12.2013, when HC Sahab Singh deposited four motorcycles alongwith the motorcycle ( No. DL 3SAT6191) and has proved the entry at serial no. 3338/13 in register no. 19, copy being exhibited as Ex. PW 10/A. He has further deposed that on 27.12.2013, motorcycle bearing no. DL 3SAT 6984 was sent to PS Saket through HC Jai Kishan and proved the copy of road no. 248/21 as Ex. PW 10/B.
17. Analysis of evidence of witnesses examined by prosecution creates an impression in favour of their trustworthiness and their testimony suffers from no infirmity whatsoever. No suggestion has been put to recovery witnesses Ct. Raj Singh and HC Sahab Singh by Ld. Legal Aid Counsel for disputing the manner of arrest of accused persons as deposed by them. Testimonies of recovery witnesses has been corroborated by PW Sh. Suresh who has deposed against accused Laxman by claiming that accused has been interrogated by police in his presence. Nothing has been brought out in the lengthy crossexamination of witnesses by Ld. Legal Aid Counsel which may create any doubt about their veracity. FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 10 of 17
18. In case titled Tahir v. State AIR 1996 SC 3079, Honble Supreme Court of India has held : "In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent, evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the credit worthiness of the prosecution case."
19. As regards the contention of nonjoining of independent public witnesses in recovery proceedings, the general apathy of public persons to join investigation is not unknown. Public persons are generally disinclined from joining such proceedings in order to avoid harassment at the hands of accused and from taking rounds of the court. The fact of nonjoining of independent public witnesses by itself is not sufficient enough to discard the testimony of police officials. (See Mukesh Vs. FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 11 of 17 State (NCT of Delhi) CRL. A. No. 274 / 2009).
20. In para no. 7 of the judgment of Hon'ble Supreme Court of India in case titled Ashok Kumar Chaudhary & Ors Vs. State of Bihar (2008) 12 Supreme Court Cases 173, Hon'ble Apex Court has held : "In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that nonexamination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise creditworthy, cannot be relied upon unless corroborated by public witness."
21. Though accused Laxman and Vinod have denied recovery of four stolen motorcycles at their instance from Pushpa Bhawan Parking and claim of being lifted and taken to PS Ambedkar Nagar for alleging false implication by police, but, they have declined to comment upon the testimony of PW Suresh and recovery witnesses for want of knowledge. Their failure to explain the incriminating circumstances (evidence) led on record coupled with failure to put specific suggestion to PW Suresh and recovery witnesses for disputing their testimony about accused Laxman being apprehended by Sh. Suresh is to be read against them. Disclosure statements of accused Laxman and Vinod recorded by HC Sahab Singh have been proved in the present case and in the other case bearing FIR No. FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 12 of 17 284/13, PS Saket. Since stolen motorcycles of both cases were recovered simultaneously from Pushpa Bhawan Parking, so depositions are relevant and have to be read in evidence against accused in both the cases.
22. Hon'ble Supreme Court of India in the case titled Sunil Clifford Daniel vs. State of Punjab, (2012) 11 Supreme Court Cases 205 has held that it is also obligatory upon accused while being examined under section 313 Cr.P.C. to furnish some explanation in respect of incriminating circumstances associated with him and his failure would be read against him. Hon'ble Apex Court has referred to its earlier decision in case titled State of Maharashtra vs. Suresh (2000) 1 SCC 471 : 2000 SCC (Cri) 263 to hold : "When the attention of the accused is drawn to to such circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances."
23. Recovery of four stolen motorcycles from Pushpa Bhawan Parking at the instance of accused Vinod and Laxman amounts to discovery of fact, hence disclosure statements of accused proved as Ex PW 2/B and Ex PW 2/C and seizure FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 13 of 17 memo U/s 102 Cr.P.C. proved as Ex PW 2/A are admissible under section 27 of Evidence act to the extent they relate to recovery of motorcycles from Pushpa Bhawan Parking on 25.12.13. Disclosure statement of accused Laxman is also admissible to the extent of leading the police personnels to house no. 2/191 of co accused Vinod and arrest of coaccused Vinod at his instance. Full Bench of Hon'ble Supreme Court of India in its landmark judgment titled Mohmed Inayatullah Vs. State of Maharashtra reported in 1976 AIR 483 has held : "Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. Thus proceeded, in the instant case, only the first part of the statement, viz., "I will tell the place of deposit of the three chemical drums" was the immediate and direct cause of the fact discovered. Therefore, this portion only was admissible under section
27. The rest of the statement, namely, which I took out from the Haji Bunder on first August", constituted only the past history of the drums or their theft by the accused: it was not the distinct and proximate cause of the discovery and had to be ruled out of evidence altogether."
24. In the case of Mohmed Inayatullah (supra), Hon'ble Apex Court referred to two alternative hypothesis, equally possible, i.e., (1) accused had himself deposited FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 14 of 17 the stolen drums in the musafirkhana, or (2) accused only knew that the drums were lying at that place, for giving benefit of doubt to accused on the basis of second hypothesis which was compatible to his innocence. However, facts of the present case are different from the facts of the abovesaid case as accused Laxman was apprehended by Sh. Suresh (complainant in FIR no. 616/13, PS Ambedkar Nagar) with the stolen motorcycle while he was driving the motorcycle and both accused have disclosed that stolen motorcycle No. DL3SAT6191 was being taken to Pushpa Bhawan Parking where they had parked other stolen motorcycles. Therefore recovery of four stolen motorcycles including the stolen Apache motorcycle bearing No. DL3SAT6984 from Pushpa Bhawan Parking rules out the second hypothesis compatible with the innocence of accused and firmly establishes the fact that accused themselves had kept the stolen motorcycles at Puspha Bhawan Parking.
25. Finally in response to the contention raised by Ld. Legal Aid Counsel that Pushpa Bhawan Parking is an open place which is accessible to general public, it is candidly accepted that place of recovery is not under the exclusive possession of accused persons. But exclusive possession of stolen property cannot be the sole criteria for constituting offence of dishonest retention of stolen property defined under section 411 IPC. Ld. APP for the State has countered the plea of defence by submitting that in a Metropolitan city like Delhi there is no separate designated FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 15 of 17 parking available to people and vehicles are generally parked on road and therefore it would be fallacious to require exclusive physical possession of stolen property for constituting offence under section 411 IPC. Submissions addressed by Ld. APP for State seems practical as there has been a rapid rise in incidence of offences of theft of vehicles and none of the stolen vehicles are kept by accused in their homes or in any place under their exclusive possession. As such, insisting upon exclusive possession of stolen goods by accused for constituting offence under section 411 IPC will render the provision nugatory. Illustration (h) of section 378 IPC which defines theft may be cited as an instance where exclusive physical possession would not be insisted. Illustration (h) of section 378 IPC is reproduced below for reference: "(h) A sees a ring belonging to Z lying on a table in Z's house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft."
26. Though theft defined under section 378 IPC is distinct from offence of dishonest retention of stolen goods under section 411 IPC, nonetheless the above illustration has been cited for limited purpose for examining whether exclusive FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 16 of 17 physical possession of stolen goods is essential to constitute offence under section 411 IPC. In my humble opinion, there is no such requirement of law and an accused dishonestly retaining stolen property at its place of hiding will be liable for offence under section 411 IPC. Facts of the present case are akin to illustration (h) of section 378 IPC as accused persons had dishonestly retained four stolen motorcycles at Pushpa Bhawan Parking so that their owners may not be able to find them and with intention to sell them or misappropriate them at a later stage. Prosecution has therefore successfully proved beyond reasonable doubt its allegation of dishonest retention of stolen Hero Honda CD Dawn bearing No. DL3SAT6984 by accused Laxman and Vinod at Pushpa Bhawan Parking. Accused Laxman and Vinod are therefore convicted for offence under section 411 read with 34 IPC.
27. Matter be now listed for submissions and order on the point of sentence on 24.06.2014 at 02:00 PM.
ANNOUNCED IN THE OPEN COURT DATED: 20 June, 2014 th (TARUN YOGESH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI FIR No. 537/13, PS Saket State Vs. Vinod Kumar & anr. 17 of 17