Delhi District Court
Fir No. 70/1996 State vs . Manoj Kumar Etc. Page No. 1 Of 20 on 17 May, 2013
IN THE COURT OF SHRI NARESH KUMAR LAKA
METROPOLITAN MAGISTRATE (WEST),
TIS HAZARI COURTS, DELHI
F.I.R. No. 70/96
Police Station: Rajouri Garden
U/Sec. 411/420/468/471/34 IPC
(a) ID number of the case : 02401R0025861996
(b) Date of commission of the : 05.09.1996
offence
(c) The name of the complainant : Sh. K. G. Verma
R/o F142, Rajouri
Garden, Delhi
(d) The name of the accused : 1. Manoj (Proclaimed
person, his parentage and Offender)
residence S/o Sh. Rajeev Kumar,
R/o C5/31, Sector15,
Rohini, Delhi.
2. Mahesh
S/o Sh. Jai Pal Singh,
R/o B578, Camp No.2
JJ Colony, Nangloi,
Delhi
3. Ashok Kumar
S/o Sh. Ram Dass
R/o H. No. 61, Bahadur
Garh, Haryana
(e) The offence complained of : Under Section
411/420/468/471/34
IPC
FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 1 of 20
(f ) The plea of the accused : Pleaded not guilty
persons
(g) The final order : Convicted
(h) The date of such order : 17.05.2013
Challan was filed on: 24.12.1996
Final arguments were heard on: 03.05.2013
Judgment is announced on: 17.05.2013
JUDGMENT
Brief facts: It is the case of the prosecution that on the intervening night of 2728.01.1996, complainant Shri K.G. Verma parked his Maruti Zen car bearing No. DL8CA4061 and on the next morning at about 11 AM he found his car missing. He reported the matter to Police and the present FIR No. 70/96 was registered. During investigation, the accused Manoj (P.O. herein) was arrested in some other case and on his disclosure statement, he disclosed of having committed the said offence of theft. Subsequently on the basis of disclosure statement of accused Manoj, the role of other accused persons came to forefront and on the basis of their disclosure statements, the car was ultimately recovered which was having forged number place and forged documents. After completing investigation, the final report was filed alleging offences punishable under Section 379, 411, 420, 468 & 471/34 IPC against the aforesaid accused persons.
FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 2 of 20
2. During the course of trial, the accused Manoj was declared proclaimed offender. On the basis of material on record, a charge for the offences under Section 411, 420, 468 & 471/34 IPC was framed against accused Mahesh Kumar and Ashok Kumar to which they pleaded not guilty and claimed trial.
3. The case was earlier fixed for announcement of judgment and on perusal of file, this court exercised its power under Section 311 Cr.P.C. and passed a detailed order dt 01.10.2012 after hearing parties for recalling/examination of two material witnesses viz. Tajender Singh and SI Sushil Kumar (I.O.) and accordingly they were examined as PW7 and PW8 respectively. After their examinations, the additional statements of the accused persons were recorded under Section 313 Cr.P.C. Final arguments heard. File perused.
4. In order to prove its case, the prosecution examined total eight witnesses and their depositions, in the sequence of events, in brief, are as under:
DEPOSITION OF PROSECUTION'S WITNESSES
5. PW1 Shri K.G. Verma deposed that on the intervening night of 2728.01.1996, he parked his Maruti Zen car bearing No. DL8CA4061 and on the next morning at FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 3 of 20 about 11 AM he found his car missing. He reported the matter to Police of P. S. Rajouri Garden and the present FIR No. 70/96 was registered which is Ex. PW1/A. Later that said car was recovered and he took the same on superdarinama and brought the same in court and the same is Ex. P1.
6. PW3A ASI Jaswat Singh being the Duty Officer, proved the present FIR as Ex. PW1/A.
7. PW4 Retd. SI Joginder Singh deposed that on 29.01.1996 on the direction of SHO, investigations of the present case was handed over to him and he along with Ct. Amir Chand and complainant reached the spot i.e. F142, Rajouri Garden and prepared a site plan at the instance of complainant vide which is Ex. PW4/A. He further deposed that he tried to find out the stolen car but was in vain and a wireless message in this regard was also flashed but they did not succeed.
8. PW8 SI Sushil Kumar deposed that on 01.09.1996 he was posted at Special Staff, West District as ASI. On that day, he arrested accused Mahesh and Manoj in FIR No. 808/96 u/s 411/34 IPC, P. S. Punjabi Bagh and when the accused persons were in police custody, he recorded their disclosure statements which are Ex. PW5/B and Ex. PW5/C. (In the said statements, the accused persons disclosed about the stolen FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 4 of 20 car of present case). On 05.09.1996, the PW5 went to Chandigarh along with the accused persons where at the instance of the said accused persons, accused Ashok Kumar was arrested and he was interrogated, on which he disclosed that he had sold the stolen car of the present case on the basis of forged documents prepared from the Abore Transport Office to one Tejender Kumar who was in the business of sale purchase of cars. The PW8 further deposed that he interrogated Tejender Kumar who disclosed that he had sold that car to one Mr. Bhatia after being financed by some firm. Then they along with Tejender Kumar reached Govindgarh Mandi, Punjab from where the said car was recovered from the possession of Mr. Bhatia who told that he was the genuine purchaser of the said car. The said car was seized and attested copies of the documents from Abohar Transport Authority (Mark X1 to X10) were collected. Various documents were seized from the Insurance company, Mr. Bhatia, one Kishal Lal. The disclosure statement of accused Ashok is Ex. PW5/A. (PW8 identified the accused Mahesh).
9. PW5 SI Jai Bhagwan accompanied the I.O.(PW8) during investigation. He deposed in the lines of PW8. He identified the accused Mahesh and Ashok in court.
10. PW7 Tejender Singh deposed that he was doing the business of salepurchase of car since 1988. There was a FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 5 of 20 Car Bazar in Chandigarh where persons used to sell and purchase the used cars. He received an information from the Car Bazar that one person was interested to sell a Maruti Zen. He reached there and found the documents of said car were genuine and he also checked the engine number and chassis number. He purchased the said car approximately for an amount of Rs. 3 lacs.
11. PW6 Sh. Jimmy Puri deposed that the incident was of year 1996. On that day, one Maruti Zen was recovered from the house of Sh. Aman Kumar Bhatia by police officials. He further deposed that Aman Bhatia was his friend who handed over documents pertaining to the above mentioned Maruti Zen to police and police official seized the same vide seizure memo Ex. PW6/A.
12. PW3 Sh. Aman Bhatia deposed that police came to his house in the year 1996 and inquired about the stolen car. He further deposed that his father had purchased a Maruti Zen Car bearing registration No. 9399. They were informed that the said car is a stolen property and the police officials asked them to deliver the keys of the said vehicle and then they took away the said vehicle. He further deposed that the above said car was purchased by his father from a Sikh gentleman, namely, Sh. Tejinder Singh from Chandigarh and the said Tejinder Singh was also accompanying some persons, FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 6 of 20 however due to lapse of time he was not in a position to identify him. He further deposed that he did not remember if anybody else was also accompanying the police officials. He identified the signature of his deceased father at point A on the seizure memo Ex. PW3/A and the photocopy of RC of vehicle is Ex. PW3/B.
13. PW2 Sh. Uday Chand is a Motor Vehicle Clerk at Abhor, Transport Authority, Punjab. He brought the summoned record pertaining to Car bearing No. PB159399 which was in the name of Deepak Kumar S/o Hans Raj as on 01.02.1996 and no change in the ownership thereafter was reported. The copy of the same is proved as Ex. PW2/A. DEFENCE OF THE ACCUSED PERSONS
14. Both the accused Mahesh and Ashok denied all the incriminating evidence and simply took the defence that they were falsely implicated in this case. No defence evidence has been led by either accused.
APPRECIATION OF EVIDENCE AND REASONS FOR DECISION
15. The accused persons, namely, Mahesh and Ashok are charged for the offences under Section 411, 420, 468 and 471 r/w Sec.34 IPC.
FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 7 of 20 Question on the veracity of I.O.
16. At the outset, the counsel for the accused persons vehemently argued that the I.O. did not make Tajender Singh as accused in this case while his role is similar against accused Ashok. It is also alleged that recovery of vehicle was effected from the possession of accused Aman Bhatia and as such he should also be made an accused in this case. It is thus alleged that the investigating agency made Tajender and Aman Bhatia as prosecution's witnesses instead of accused with mala fide intention. He further stated that IO has no liberty to choose and pick any person as an accused or as a witness. On the contrary, Ld. APP for the State submitted that IO made particular persons as accused or witness depending upon the material/evidence available on record.
17. Although it is the prerogative of the investigating agency to cite any person as witness (as ultimately it has to see how the case can be brought to a logical conclusion) yet the matter is required to be looked into detail as the counsel for the accused questioned the veracity of the IO on the ground that he acted with mala fide intention by making two persons as witnesses instead of accused.
18. PW3 Sh. Aman Bhatia specifically deposed that his father had purchased the said Maruti car from a Shikh gentleman namely Tejender Singh from Chandigarh. It FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 8 of 20 already came on record that the father of Aman Bhatia namely Sh. Narender Bhatia already expired so he could not be made as a witness but his son was made a witness. The prosecution also examined Sh. Tejender Singh as PW7. The said Tejender Singh clearly stated he is a dealer in sale and purchase of car and he purchased car in question from a car bazar where many brokers used to sell used cars. He further disclosed that deal of the car was finalized at Rs. 3,17,000/ and he paid Rs. 3 lacs and withheld the amount of Rs. 17,000/ till issuance of NOC. He also stated that he sold the said car at a profit of Rs. 15,000/ to Narender Bhatia. He also stated that he purchased the said car from accused Ashok Kumar (his face was recognized in the court) and before buying the said car he had inquired on telephone from the father of accused Ashok Kumar. PW7 also stated that he was also shown the documents of the car which were told genuine at that time.
19. From the above said evidence on record, it is clear that Sh. Tejender Singh was a bona fide purchaser of the said car and this fact is proved from the series of facts i.e. he deals in sale and purchase of cars; he purchased the said car from a car bazaar; before buying the same he made inquiries from the father of the accused; all the documents shown to him were told to be genuine at that time; he paid handsome amount of Rs. 3 lacs to accused, he withheld the payment of FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 9 of 20 Rs. 17,000/ till the issuance of NOC; and he sold the said car on a meager profit of Rs. 15,000/ (to Narender Bhatia).
20. Thus I hold that the accused Tejender Singh and subsequent buyer Narender Bhatia were the innocent purchasers of the said car and they had no knowledge that it was a stolen property. Accordingly I hold that the I.O. acted with all fairness and in accordance with law.
Recovery of vehicle and admissibility of evidence visavis disclosure statements
21. The counsel for the accused persons further strenuously argued that no offences are proved against the accused persons as the prosecution did not prove recovery of vehicle from the possession of any of the accused persons and the recovery was, in fact, effected from the possession of Aman Bhatia. It is also specifically argued that the disclosure statements of the accused persons are not admissible in evidence without recovery of stolen property from them.
22. In my opinion, the aforesaid contentions are without any force because it is not necessary that every person from whose custody stolen property recovered is to be made an accused. It is the duty of the Investigating Officer to collect evidence during investigation and based on such evidence, he should charge a person.
FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 10 of 20
23. In the instant case, complete chain of circumstances and even direct evidence are brought on record as to how the car in question was stolen and recovered. PW1 Sh. K. G. Verma is the owner of the stolen car (Maruti Zen) and he proved the factum of theft through his complaint which is converted in the form of FIR and proved as Ex. PW1/A. PW8 SI Sushil Kumar proved the material facts as to how the accused persons were apprehended. He specifically deposed that the accused Mahesh and Manoj (PO) were arrested in FIR No. 808/96, P. S. Punjabi Bagh and when they were in police custody, they disclosed about stealing of car in question and its sale to one Ashok Kumar (accused herein) who is a resident of Bahadurgarh. Then SI Sushil Kumar alongwith said accused persons went to Chandigarh and there at the instance of these two accused persons, accused Ashok Kumar was arrested. Accused Ashok Kumar was interrogated and he disclosed that he had sold the said car on the basis of forged documents prepared from Abhohar Transport Office to one Tejender Singh. Then IO reached to said Tejender Singh and interrogated him, who disclosed that he sold this car to one Mr. Bhatia. Thereupon the said car was recovered from the possession of Mr. Bhatia.
24. Now the question comes about the liability of the accused Ashok and Mahesh. PW7 Tejender Singh clearly FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 11 of 20 identified the accused Ashok in the court as the person who sold the car in question to him by showing the documents of the said car. (He deposed that he does not remember the complete registration number of the car but on suggesting the number of the case by Ld. APP for the State, the witness admitted that the registration number of the said car was PB159399). The witness also voluntarily said that he specially remembered the number 'PB15' as it refers to District Abhor, Punjab. Even otherwise, the said car is correctly identified by PW1 K.G. Verma and proved as Ex.P1. The PW1 is not at all crossexamined by any accused persons and despite lengthy cross examination of PW7, nothing concrete came on record to disbelieve his testimony. Thus the above facts show as to how the recovery of stolen car was effected.
25. From the evidence on record, it is clear that stolen property changed many hands but the crucial point is that whether the persons who were in possession of the said stolen car were aware of the fact that the said car was a stolen property or not. It is already held in the preceding paragraphs that Tajender Singh and Mr. Bhatia (Narender Bhatia) were the bona fide purchaser of the said car and they were not knowing that it was a stolen property.
FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 12 of 20
26. The accused Mahesh and Ashok Kumar did not lead any evidence to the effect that they were the bona fide purchasers of the stolen car.
27. As far as admissibility of disclosure statements are concerned, it is a settled proposition of law that disclosure statements of the accused persons recorded in police custody are not admissible in evidence per se but at the same time the discovery of facts/things in consequence of the disclosure statement are admissible in evidence. The word "discovery of fact" does not mean only the recovery of some substance or thing but it includes discovery of all such facts which result in ultimate discovery of some facts/articles which were not in the knowledge of police and which makes out a complete sequence of events to reach the ultimate discovery. In this regard, reliance can be placed on the case cited by Ld. APP for the Sate as State Vs. Navjot Sandhu, Criminal Appeal No. 373375 of 2004, decided by Hon'ble Supreme Court of India wherein it was held that: "Thus Kotayya's case (AIR 1997 PC 67) is an authority for the proposition that discovery of fact cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the information as to its existence at a particular place.
FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 13 of 20 In the case of Pulukuri Kottaya and others v. Emperor [AIR 1947 PC 67] it was held that "it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house."
28. Thus the facts disclosed in the disclosure statements of the accused Mahesh and Ashok which led to recovery of car are admissible in evidence. Further reliance can be placed on the case of Vijay Kumar vs. The State (GNCT) of Delhi 2008 (101) DRJ 725 decided by our own High Court where upon recovery of dead body on the disclosure statements of three accused persons, all of them were convicted. Apart from it, in the instance case, the prosecution also brought on record direct evidence through PW7 Tajender Singh who correctly identified accused Ashok as the person who sold the said car to him along with documents (which were told genuine but in fact they turned to be forged).
FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 14 of 20 Accordingly I hold that the prosecution successfully proved the charge under Section 411 against accused Mahesh and accused Ashok.
29. In view of specific evidence on record of PW7 Tajender Singh that the accused Ashok gave him stolen car with forged number plate and forged documents (which were dishonestly presented to him to be genuine), I hold that the prosecution proved the essential ingredients of the offence under Section 471 IPC (punishable under Section 463 IPC) against accused Ashok.
30. The counsel for the accused specifically argued that I.O. conducted the major part of investigation only in one day by visiting so many places i.e. Delhi, Bahadurgarh, Chandigarh, Abhor, etc. This argument is not acceptable in law as nothing is brought on record to show that the I.O. could not have performed such investigation within the given time and distance. This argument is based on hypothesis and not on merit.
Proving of offence other than charged
31. In the instant case, although no charge was framed for the offence under Section 414 IPC but the evidence on FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 15 of 20 record also proves the ingredients of the said offence. The said Section reads as under:
Section 414 IPC: Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
32. It is a settled law that an accused can be convicted for the offences which are similar in nature and proved on record though no specific charge is framed for such offences if no prejudice is caused to the accused. In this regard, Section 221 Cr.P.C. is very relevant and Illustration (b) appended to that Section endorses such situation. The said Illustration (b) provides as under:
(b) A is only charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be), through he was not charged with such offence.
33. Accordingly keeping in view the evidence on record and the similarity of the ingredients of the alleged offence under Section 411 and Section 414, I hold that no prejudice has been caused to the accused persons as they FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 16 of 20 have availed ample opportunity to defend their case as per law.
34. In the disclosure statement, the accused Mahesh disclosed that "He along with Manoj had stolen a car (Maruti Zen, Neptune colour) from front side of a bank building in Raja Garden and then had sold it to Ashok for Rs.70,000 and shared the said amount and he can get apprehended Ashok and get recovered the said car." In consequence to said disclosure statement, police reached Chandigarh along with accused Mahesh and the accused Ashok was arrested. On his disclosure statement, the accused Ashok disclosed that he sold the said car with forged documents to one Tajender Singh. Police reached to Tajender Singh and ultimately car was recovered from the last user. Thus in view of Section 27 of the Evidence Act, the first part of disclosure statement of accused Mahesh to the effect of committing the offence of theft is not admissible in evidence, but the second part i.e. "I sold the car to Ashok and I can get Ashok apprehended and get recovered the car" is admissible as the said facts were discovered on the information of accused Mahesh. Likewise, the disclosure statement of accused Ashok is admissible in evidence to the extent of apprehension of Tajender Singh and recovery of car and forged documents which were ultimately discovered, as discussed in preceding paragraphs. Reliance can be placed on the case of Pulukuri Kottaya (supra). Thus FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 17 of 20 in view of above evidence (coupled with deposition of PW7 Tajender Singh), I hold that the accused Mahesh committed the offence punishable under Section 414 IPC by voluntarily disposing of or making away the stolen car and similarly, the accused Ashok also committed the said offence for disposing of or making away the stolen car to Tajender Singh.
The offence under Section 468 IPC
35. The Section 468 IPC provides punishment for the commission of offence of forgery of some document or electronic record for the purpose of cheating. The definition of 'forgery' is given in Section 473 IPC. It provides that "Whosoever makes any false document or part of it with intention to cause damage to any public or person, or to support any claim or title with intention to commit fraud or forgery is said to commit forgery. Thus, Section 468 IPC envisages an act of 'preparation' or 'making' or 'construction' of a fake document and the same is a distinct act from other acts like 'possession' or 'usage' of a forged document which are distinctly defined in other Sections of IPC. In the present case, the primary allegations against the accused persons are that the accused persons used forged documents for obtaining admission in the B. Ed Course. The investigating agency did not collect any evidence to show that the alleged forged documents were prepared or made by the accused persons only. None of the prosecution's witnesses are the eye FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 18 of 20 witnesses when the alleged forged documents were made or prepared. Prosecution has also not brought on record any direct or circumstantial evidence to prove such facts. Accordingly, I hold that prosecution failed to prove the essential ingredients of offence u/s. 468 IPC against the accused persons.
The offence under Section 420 IPC
36. As far as Section 420 IPC is concerned, there is no complaint from any quarter from the side of complainant or any one else that he has been cheated by the accused persons. At the most, it can be said that accused Ashok sold the car in question to Tajender Singh by not disclosing the true facts but mere such facts do not complete the offence of cheating. From the close reading of Section 415 IPC (which defines cheating), it is clear that apart from misrepresenting the true facts, some harm or damage is also required to be caused to the person who was dishonestly induced. In the instant case, the accused Ashok fraudulently induced Tajender Singh to buy the stolen car but he did not cause any harm or damage to Tajender Singh and the latter also entered into the said transaction without knowing the fact that the car was a stolen property and then he further sold it to a third person. Thus, I hold that the prosecution did not prove the essential ingredients of offence 420 IPC against the accused persons.
FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 19 of 20 Final conclusion
37. Keeping in view of the aforesaid facts and circumstances of the present case, the accused Mahesh is convicted for the offences under Section 411 and 414 IPC, while the accused Ashok is convicted for the offences under Section 411, 414 and 471 r/w 465/34 IPC. However, the accused persons are acquitted for remaining offences for which they are charged.
Announced in the open court on 17.05.2013 (Naresh Kumar Laka) Metropolitan Magistrate, Delhi.
FIR No. 70/1996 State Vs. Manoj Kumar etc. Page no. 20 of 20