Delhi District Court
State vs . Sunil Kumar. on 25 July, 2012
IN THE COURT OF SHRI PRASHANT SHARMA,
METROPOLITAN MAGISTRATE 06,
SAKET COURTS, NEW DELHI.
Serial No. : 762/2 dated 11.5.2004
Unique Identification No. 02406R0990282004
State Vs. Sunil Kumar.
FIR No. 169/2001
P. S. Rama Krishna Puram
U/s 379/411 IPC
JUDGMENT:
1.Srl. No. of the case & Date of institution 762/2 & 11.01.2001
2.Date of commission of offence 18/19.3.2001
3.Name of the complainant Jasbir Singh S/o Sh.
Labh Singh, R/o h.
NO. 217, Mochi Gaon, Nanak Pura, New Delhi.
4.Name of the accused Sunil Kumar @ Teetu, S/o Late Balraj Singh, R/o H. NO. 3503/1, Gali Sahid Mahender Pal Katra, Bagiyan Amritsar, (Punjab)PA Floor no. 601, Sabka Ghar, Housing Society, sector6, Pappan kala, Delhi and R/o A78, Ganesh Nagar, New Delhi.
5.Nature of offence complained of U/S 379/411 IPC FIR No. 169/01 P. S. Rama Krishna Puram Page No. 1 of 14
6.Plea of the accused person Pleaded not guilty
7. Date reserved for order 25.07.2012.
8.Final Order convicted 9.Date of such order 25.7.2012 Date of Institution : 11.01.2001 Date of order reserved : 25.7.2012. Date of pronouncement : 25.7.2012. BRIEF FACTS OF THE CASE:
1. A person using an article must procure it legally and should take adequate care, when he/she uses an article, belonging to somebody else.
2. Prosecution Story was that on 19.3.2001, complainant Jasbir Singh, came to PP Nanak Pura, and gave his complaint with regard to theft of his car, having make TATA spacio, bearing no. HR 38ET 7585, from Gurunanak Taxi Stand, between 11.00pm and 6.00am on the proceeding night. It was mentioned in the said complaint called the documents pertaining to the said vehicle, were lying in the said car. On the basis of the said complaint, FIR in question was registered. IO concerned, during investigation prepared the site plan, recorded the statement of witnesses and tried to trace out the vehicle by flashing wireless messages. But he could not succeed till 3.4.2001, when DD no.4 was received at PP Nanakpura, wherein it was noted that HC Ramniwas had informed through telephone that accused Sunil Kumar, who was involved in case FIR no.168/01, PS Paschim Vihar, had made a disclosure statement pertaining to the case in question and that the said accused was supposed to be produced FIR No. 169/01 P. S. Rama Krishna Puram Page No. 2 of 14 before Dr. Shahbuddin, Ld. MM, on 3.4.2001. Consequently, vehicle in question was brought to PS R K Puram vide RC no. 1/21/01, from PS Paschim Vihar. The said vehicle was then released on superdari. Accused Sunil was produced before Ms. Kamini Lau, Ld. MM, Patiala House Court, in this case. As per the disclosure statement, accused Sunil had committed theft of the vehicle in question, in collision with another person namely Deepak Khanna. But during investigation, no detail regarding identity of the said Deepak Khanna, were revealed to the police and therefore, he was not charge sheeted. On the basis of aforesaid investigation, charge sheet against the accused Sunil was filed.
3. After finding prima facie case against the accused, summons were issued against the accused persons by the court. Subsequently, charge u/s 379/411 IPC was framed to which accused pleaded not guilty and claim trial and case was subsequently fixed for PE.
4. In this case prosecution examined only nine witnesses. PW 1 Vidya Devi had deposed that on 19.3.2001, he received rukka from Ct. Rajender Prasad sent by HC Surender Singh and he registered the FIR in question, copy of the same was Ex. PW1/A and endorsement on the rukka, made by him was Ex. PW1/B. PW2 Jasbir Singh, deposed that on 18/19.3.2001, he found his TATA Specio bearing no. HR 38 ET 7585 was stolen from Gurunanak Taxi Stand and he gave report to the police Ex. PW2/A and at his instance police prepared the site plan on 03.4.2001. That he had identified his car which was standing at PS Paschim Vihar and he took the vehicle on superdiginama Ex. PW2/B. The vehicle in question was identified as FIR No. 169/01 P. S. Rama Krishna Puram Page No. 3 of 14 Ex. P2, photocopy of the RC of the said vehicle was Ex.P1. The said witness had produced RC, of vehicle having registration NO. HR 01L9302, having previous registration number as HR 38ET 7585, having engine no. 739085 and chasis no. 912780. Photocopy of the said RC was Ex.P3. This witness had also deposed that he had obtained the changed registration number of the said car after the occurrence. PW3 Ct. Raj Singh had deposed that he brought the summoned record i.e. the case file of FIR no. 168/01 of PS Paschim Vihar, having seizure memo of the car in question was seal in original and was returned. FIR 168/01, PS paschim Vihar was Ex.PW1, site plan was Ex.PX2, seizure memo of the car Ex.PX3 and disclosure statement of accused was Ex. PX4. PW4 Ct. Abhay Singh had deposed that on 02.4.2001, he alongwith other police staff was briefed by Inspector, at AATS, West District, Tagore Garden. Consequently, they reached at outer ring road District park Paschim Vihar at about 01.30pm where they met HC Chattar Singh and Ct. Maharaj Singh who also had joined the raiding team, headed by Inspector. They reached at outer ring road Paschim Vihar and started checking vehicle. That during checking, at about 3.00pm one tata sumo white colour without number plate coming from the side of Vikas Puri, was stopped after the secret informer indicated to do so. That the said vehicle was checked and it was found to be driven by accused. When accused was asked by them to show the ownership documents of the said vehicle, then other person in the car, fled away. Accused was apprehended and he could not furnish any document to the satisfaction of the IO concerned, pertaining to ownership of the said vehicle. On inquiry FIR No. 169/01 P. S. Rama Krishna Puram Page No. 4 of 14 from accused he had disclosed that he had stolen the said vehicle with his associate on 18/19.3.2001 and were going to sell of the said vehicle. After checking the bonnet and other interior of the said vehicle, it was found that the original number of the said car was HR 38 ET 7585, which was stolen in case FIR no. 169/01, PS R K Puram. The said vehicle was seized vide seizure memo Ex. PW7/A (Ex.PX3). Rukka was prepared and Ct. Satpal was sent for registration of the case. In the meanwhile, IO recorded the disclosure statement Ex. PX4 (Now Ex. PW7/B). All the said documents were signed by this witness. Statement of this witness recorded by the IO. PW5 HC Prahalad Singh had deposed that as per record that cancellation report, in case FIR no. 168/01, PS Paschim Vihar was filed by the IO and the same was marked as Ex. PW5/A, as the case property, which was the vehicle in question was handed over to the IO of the present case in question. PW6 Ct. Rajender prasad (inadvertently marked as PW5 ) deposed that on 19.3.01 complainant had come at the PS R K Puram and had given his written complaint to HC surender. That HC Surender had handed over the rukka for registration of FIR to him. That he had gone to the PS and FIR in question was registered though him. PW7 (inadvertently marked as PW6 ) Ct. Bhupender as per register no. 19, on 2.4.01, HC Jai Karan had deposited the vehicle in question in the malkhana of PS Paschim Vihar vide serial no. 3384. further as per record the said vehicle was transferred to PS R K Puram vide RC no. 1/21/2001, Ex. PW6/A. PW8 (inadvertently marked as PW7 ) PW7 SI Surender Singh had deposed that on 19.3.2001, he received complaint Ex. PW2/A, made by complainant Jasbir Singh at PP FIR No. 169/01 P. S. Rama Krishna Puram Page No. 5 of 14 Nanakpura. That he made endorsement Ex. PW7/A and got registered the FIR through Ct. Rajender. Thereafter, he alongwith complainant reached to the spot and prepared the site plan Ex. PW7/B. On 03.4.2001, he received DD no. 4 Ex.PW7/A1 about the recovery of vehicle from PS Paschim Vihar and he collected the case documents and he also bought the case property of this case from PS Paschim Vihar. On 18.4.2001, he made formal arrest of accused vide memo Ex. PW7/C and after completion of investigation of charge sheet. PW9 (inadvertently marked as PW8 ) SI Chattar Singh had deposed that on 2.4.01 he was posted at PS Paschim Vihar, and on patrolling with Ct. Maharaj Singh, he had joined an ATS team with HC Jai Karan, who informed him that at about 3.00pm a person will come with stolen vehicle. That at about 3.00pm, they had noticed a TATA spiko coming from Vikas Puri Side without number place. The said vehicle was stopped at the instance of secret informer and rest of the proceeding were concluded in the same manner as deposed by PW4 Ct. Abhay Singh, except the fact statement of this witness Ex. PW8/A was recorded by the IO. PW10 (inadvertently marked as PW9 ) Vikas Thakral had deposed that he was working in RTO office Faridabad and had not brought the original record of vehicle bearing no. HR 38ET 7585, as the said record was destroyed by fire. The necessary entry, attested by the concerned authority was mark A. Subsequently, PE was closed.
5. Subsequently, statement u/s 313 Cr.PC read with 281 Cr.PC was recorded, in which all the incriminating evidence was put to the accused, which accused denied. Matter was then fixed for judgment, after hearing final arguments, as accused did not want to FIR No. 169/01 P. S. Rama Krishna Puram Page No. 6 of 14 lead defence evidence.
6. In this case, though complaint of theft Ex.PW2/A was duly proved by its maker, but there was no evidence, apart from the disclosure statement of the accused to the effect that he had stolen the said vehicle in question. There was no evidence like eye witness to the offence of theft, finger print of accused at the site of occurrence or likewise, which could indicate, that it was accused, who had stolen the vehicle in question. So far as disclosure statement Ex. PX4 was concerned, the same was not relevant, as it was a confession, made by accused before the police and the same was barred u/s 25 of Indian Evidence Act. Therefore, offence of theft, was not proved beyond reasonable doubt against the accused.
7. The other offence, with which I had to deal was the offence of dishonestly receiving the stolen property in question, as mentioned in section 411 IPC. The said section required that prosecution was supposed to prove facts viz. That some property was stolen, that the said property was dishonestly received or retained by the accused, knowingly or having reason to believe the same to be stolen. The stolen property in question, which was a sumo car, was recovered from the possession of accused. This fact was deposed by PW4 Ct. Abhay Singh, PW SI Surender Singh and PW SI Chattar Singh. The said witnesses were police witnesses. In view of, section 114 Illustration E, there was a presumption in favour of the fact deposed by police officials, who had recovered the case property from the possession of accused, which was supposed to be rebutted by the accused, but was not done so. The said presumption FIR No. 169/01 P. S. Rama Krishna Puram Page No. 7 of 14 alongwith the fact that case property in question, was infact recovered and handed over to the complainant, to the satisfaction of the complainant, indicated that the police officials in the raiding team on 2.4.01, performed their duties diligently. More so, where there was no suggestion to counter the said fact. The net result was, that the ingredients of offence punishable u/s 411 IPC, were proved beyond reasonable doubt by the prosecution.
8. Even otherwise, I did not find testimonies of prosecution witnesses doubtful and untrustworthy. PW2 Jasbir Singh, stuck to his version that vehicle in question was infact stolen by somebody, that the said vehicle was recovered by him at PS Paschim Vihar, that he had taken the said vehicle on superdari after identifying it and had produced the necessary legal documents before the court, to substantiate his claim. During his cross examination, he again depose that he had signed the complaint given by him to the police. There was no suggestion pertaining to accused being falsely implicated in this case, put to him. He was therefore, credible. PW4 Ct. Abhay during his cross examination, did not remember the engine and chasis number of the vehicle in question, but it was hardly relevant, when seen in the light of the fact that complainant had himself identified the vehicle in question. Apart from that this witness refuted the suggestions pertaining to false implication of accused and that coaccused Deepak was released after police took money from him, in response to letting off him. Apart from that there was a minor fact, which was stated by him in his testimony pertaining to asking of public witnesses to join the investigation by the IO, which was not mentioned by him in his previous statement FIR No. 169/01 P. S. Rama Krishna Puram Page No. 8 of 14 recorded u/s 161 Cr.PC. Though, in his evidence, it was confronted, but to me, it was an improvement only which did not dismiss the rest of the testimony of this witness. Even otherwise, accused did not raise any issue to the effect that the said improvement, indicated ulterior motive on the part of this witness. Therefore, the said fact was devoid of any merit, against the prosecution. Apart from the said witness PW Ct. Rajender prasad, Ct. Bhupender, Vikas Thakral, Ct. Raj Singh, HC Vidya Devi, were not cross examined and therefore, I had no reason, to disbelieve their testimonies. PW SI Surender singh and SI Chattar Singh were cross examined, but apart from bald suggestions of being falsely implicated, which these witnesses refuted, accused did not raise any issue pertaining to the manner in which the raiding was done, with regard to the fact that accused was found in possession of stolen property in question, with regard to the fact that accused did not show any ownership documents of vehicle in question to the police and with regard to other aspects of investigation, being done by the police. Hence the fact that the stolen property, was recovered from the possession of accused and the fact that accused was having no legal documents, to clear the doubts of ownership of the said vehicle, indicated that accused was either having knowledge or having reason to believe the same to be stolen. It was for the accused, to have explained the said facts, which he failed to do so, by way of cross examination of the prosecution witnesses. Therefore, testimonies of these witnesses, were also believed by me.
9. In view of aforesaid appreciation of prosecution evidence, I found that prosecution was able to discharge its initial onus of proving its FIR No. 169/01 P. S. Rama Krishna Puram Page No. 9 of 14 case beyond reasonable doubts with regard to offence punishable u/s 411 IPC.
10.Accused, on the other hand had raised, certain issues, pertaining to his probable defence, which I am appreciating now. Firstly, that the charge in question, framed against the accused, was defective, as it did not mention the name and identity of accused. The said argument was baseless, for the reason that accused did not raise the said argument, during the course of trial, to the effect, that he was prejudiced by the said defective framing of charge. Even otherwise, also accused himself had signed the said charge and it was not his case, that somebody else had signed the said charge. If that be so, then mere raising of this issue, was simply a waste of time, on the part of accused. Therefore, the said issue, was basically a typographical based issue, for which in the absence of any prejudice being shown by the accused, benefit should be given to the prosecution. Secondly, that prosecution, did not come clear, as to exactly which car viz. TATA spacio or TATA Sumo, was recovered from accused. The said argument again was baseless, as it was not raised during trial, by way of suggestion to any of the witnesses and secondly, because complainant had himself identified the said car, which was also not disputed by the accused. Thirdly, that car in question was not produced before the court, which was again a baseless argument as PW2 complainant himself had proved the said car Ex.P2 as he had brought the said car in the court premises. Fourthly, that there was different in engine number and chasis number of the stolen vehicle in question, which made the prosecution case doubtful. The said argument was again baseless, FIR No. 169/01 P. S. Rama Krishna Puram Page No. 10 of 14 as complainant PW2 himself had stated and had shown the changed registration number of the vehicle in question, alongwith the previous registration number, to the satisfaction of the court. Again this argument was an after thought as it was not raised, during cross examination of PW2, who could have given appropriate reply to the said query of accused. Fifthly, that record pertaining to the vehicle in question was destroyed by the concerned authority as per mark A, which created doubt in the prosecution story. Again the concerned witness PW Vikas thakral was not cross examined to any extent by the accused and therefore, accused cannot raise this plea, all of a sudden, at the stage of judgment. Even otherwise, it was the complainant, who was the best person, to identity the case property, which in fact was being identified by him, properly and legally. Sixthly, that no public witness was joined in the raiding team when case property was recovered. Again the said argument was baseless, as firstly accused had to create doubt in the mind of the court, with regard to non diligent performance of police official in question, which could have asked for the need of joining of public witnesses. Accused did not create any doubt in the mind of the court, pertaining to the diligent duty of police official and therefore, I did not find any flaw in nonjoining of police witnesses in the raiding team. More so, in common parlance also, public witnesses are reluctant to join the police during investigation. Seventhly, that prosecution failed to coverup lacunaes like nonrecovery of key of vehicle in question, nonmentioning of identity detail of vehicle in question. The said lacunaes, to me were irrelevant, for the reasons that they were not FIR No. 169/01 P. S. Rama Krishna Puram Page No. 11 of 14 raised during the trial so as to suggest, that accused was prejudiced by the said nonperformance of the investigating agency and secondly, that the said argument, did not form the ingredients of offence in question. Therefore, I rejected the said arguments. Apart from aforesaid arguments, accused raised the issues like co accused Deepak was not arrested, no legal notice was served on public witnesses, to join the investigation, vehicle not shown to PW4 who could have identified it and that accused was infact lifted form his home before implicating him falsely in this case. All the said arguments, were again baseless, for the simple reason, that they show the light of the day only at the fag end of the trial. Accused for reasons best known to him, did not put them by way of suggestion, when prosecution witnesses cross examined by him. There were bald suggestions of being falsely implicated in this case, which were put by accused to the prosecution witnesses, which in fact were refuted by the prosecution witnesses. The net result was, not only there was no probable defence rather the so called probable defence was not in sync with the arguments put forth by the accused at the stage of final arguments.
11.Before coming to the conclusion, I must mention here my surprise, with regard to the manner, in which accused replied the incriminating evidence, put to him u/s 313 Cr.PC. The answers given by him were evasive and did not make out any sense, when viewed in the light of cross examination done by him to the prosecution witnesses. When asked to say anything with regard to the case, accused preferred to keep his version close to his heart and did not mention there rather stated that he will tell the same at FIR No. 169/01 P. S. Rama Krishna Puram Page No. 12 of 14 the stage of arguments. The same was the most doubtful reply, which I received from him. The purpose of putting incriminating evidence, to the accused, as per law, is to not only elicit truth rather, it is to give him an opportunity, to speak out his version regarding the case. Accused did not speak any version and therefore, he failed to utilize the benefit of proceedings recorded u/s 313 Cr.PC.
12.Keeping in mind the discussion made above, I find that prosecution was successful in proving its case beyond reasonable doubt for the offence U/s 411 IPC. Accordingly, accused is convicted for the commission of the offence punishable U/s 411 IPC. Accused is however, acquitted u/s 379 IPC.
Announced in open court ( PRASHANT SHARMA )
today i.e. 25.7. 2012 M.M.06, Saket Courts, New Delhi.
25.7.2012
FIR No. 169/01
P. S. Rama Krishna Puram Page No. 13 of 14
State Vs. Sunil Kumar.
FIR No. 169/2001
P. S. Rama Krishna Puram
U/s 379/411 IPC
25.7.2012
Present : Ld. APP for State.
` Accused with counsel.
Vide my judgment of even date accused is convicted for the commission of offence U/s 411 IPC and is acquitted u/s 379 IPC.
Put up for arguments on sentence on 01.8.2012.
( PRASHANT SHARMA ) M.M.6, Saket Courts, New Delhi 25.7.2012 FIR No. 169/01 P. S. Rama Krishna Puram Page No. 14 of 14