Delhi District Court
State vs . Manoj Kumar & Ors. on 9 January, 2014
IN THE COURT OF SHRI PRASHANT SHARMA,
METROPOLITAN MAGISTRATE - 07,
PATIALA HOUSE COURTS, NEW DELHI.
Serial No. : 484/3/13 dated 10.04.2013
Unique Identification No. 02406R0712822006
State Vs. Manoj Kumar & Ors.
FIR No. 273/06
P. S. Rama Krishna Puram
U/s 379/411/482/34 IPC
JUDGMENT:
1.Srl. No. of the case & Date of institution 484/3/13 dated 25.11.2006
2.Date of commission of offence 27.04.2006
3.Name of the complainant Anshul Babbar, S/o. Sh. Dwarka Babbar.
4.Name of the accused (1) Manoj Kumar S/o. Sh. Suresh Kumar R/o. Village Tilangpur, Kotla, PS Nangloi, New Delhi.
(2) Harish Kumar, S/o. Sh. Satish Kumar, R/o. Village Tilangpur, Kotla, PS Nangloi, New Delhi.
5.Nature of offence complained of U/s 379/411/482/34 IPC
6.Plea of the accused person Accused pleaded not guilty
7. Date reserved for order 21.12.2013
8.Final Order : Convicted
9.Date of such order : 09.01.2014 FIR No. 273/06 PS R.K.Puram Date of Institution : 25.11.2006 Date of order reserved : 21.12.2013 Date of pronouncement : 09.01.2014 BRIEF FACTS OF THE CASE:
1. On 27.04.2006, PW1 Anshul Babbar(hereinafter complainant), reported to PW5 HC Jai Kishan, PP Nanakpura, vide his complaint Ex.PW1/A that his car bearing no. DL 6CA 3058, Maruti Zen make of white colour was stolen from outside Ramlal Anand College, at about 12.30 pm, when he had left the said car there and had gone inside the college for giving his paper. That on the basis of said complaint, PW5 HC Jai Kishan prepared rukka Ex.PW5/A and handed over the same to Ct. Sushil for registration of case. Consequently FIR in question Ex.A1 was recorded at PS R.K.Puram.
2. During investigation PW5 HC Jai Kishan(hereinafter IO) prepared site plan at the instance of complainant, Ex.PW5/B, searched for accused but could not find him. In due course, he received a telephonic call from PW6 SI Randhir Singh, posted at PS Uttam Nagar vide which he was informed that the case property was recovered from the possession of accused persons. That subsequently he came to know that both accused persons were already granted bail. He collected necessary documents from PW6 SI Randhir Singh regarding arrest and seizure of case property.
Accused Harish was arrested vide memo Ex.PW5/C and he was searched vide memo Ex.PW5/D. Accused Manoj was arrested Ex.PW5/E and he was personally searched vide memo Ex.PW5/F. Case property i.e. the car was seized from PS Uttam Nagar, before arrest of accused persons. IO also prepared the pointing out memo Ex.PW5/D at the instance of accused persons. He recorded the disclosure statement of accused Harish Kumar Ex.PW5/H. Accused persons failed to give information about the third person who had committed the offence of theft along with them. Finally after completing investigation, charge sheet was filed against accused persons.
3. After finding prima facie case against the accused persons, summons were issued against the accused persons by the court and procedural formalities U/s. 207 Cr.P.C were concluded.
FIR No. 273/06 PS R.K.Puram Subsequently, charge U/s. 379/411/482/34 IPC was framed against both accused persons. In response to the charges accused persons pleaded not guilty and claimed trial. Thereafter case was fixed for prosecution evidence.
4. In order to prove its case, prosecution examined six witnesses. PW1 Anshul Babbar, being the complainant of this case deposed facts, apropos to his complaint Ex.PW1/A, already referred above. PW2 Ct. Rambir had deposed that on 03.05.2006 when he was posted at PS Uttam Nagar and was on picket duty along with HC Hansraj, he had stopped one Zen car on suspicion when it was coming from Ranhola towards Uttam Nagar. In the said car, two persons were sitting. On inquiry, the said persons did not furnish original documents pertaining to the ownership of the said car and it was found that the number plate viz. DL 8CA 8979, pasted on the said car was fake. Original number plate viz. DL 6CA 3058 was recovered and later on it was found that the said car was stolen from the area of PS R.K.Puram. Subsequently SI Randhir Singh reached at the spot and seized the said car vide memo Ex.PW2/A. The accused persons were arrested vide memo Ex.PW2/B and Ex.PW2/C. PW3 HC Hansraj Sharma, also deposed in sync with the testimony of PW2 Ct. Rambir, only to the extent that on the relevant day, he along with PW2 Ct. Rambir had stopped the car in question, in which accused Manoj was sitting only and had apprehended him on the basis of suspicion as he had not furnished original documents, when demanded from him. He had also admitted preparation of memos referred in the testimony of PW2 Ct. Rambir, prepared by SI Randhir Singh. PW4 HC Amilal had deposed in his testimony that on 03.05.2006, he had accompanied SI Randhir Singh to the picket where accused persons along with car in question, was apprehended by Police. Subsequently he had got the FIR no. 354/06 registered at PS Uttam Nagar. Subsequently SI Randhir Singh had seized the number plates and the vehicle in question, as referred above. PW5 HC Jai Kishan was IO of this case and in his testimony, he had reiterated, the manner in which he had conducted investigation, already referred above. PW6 SI Randhir Singh had deposed in his testimony that on 03.05.2006, after receiving DD no. 55B, he had reached at picket Ranhola, where PW2 and PW3 handed over him the case property along with accused persons. Subsequently FIR no. 354/06, PS Uttam FIR No. 273/06 PS R.K.Puram Nagar was registered at his instance. He collected the case property, number plates and arrested the accused persons vide memos, already referred above. Apart from that he had recorded the pointing out memo Ex.PW6/A, site plan Ex.PW6/B, statements of witnesses viz. Ex.PW6/C to Ex.PW6/E and informed the police at PS R.K.Puram after depositing the case property in the Malkhana.
5. Subsequently, PE was closed and all the incriminating evidence was to put to accused persons, u/s 313 Cr. P.C, in which they refuted and raised the defence of being falsely implicated in this case. Accused persons examined two witnesses viz. DW1 Manish and DW2 Nagender in their defence. DW1 Manish testified that accused Harish was arrested from his house in his presence in May 2006. DW2 Nagender testified that accused Manoj was arrested from his Teastall in May 2006. Subsequently, matter was fixed for judgment after final arguments were heard.
6. I am first dealing the offence of theft, punishable u/s 379 IPC, with which both the accused persons were charged. So far as, the factum of theft of car in question bearing no. DL 6CA 3058 was concerned, complainant had deposed in his testimony that the said car was stolen by somebody, without mentioning the name of the culprit. Responsibility of tracking down the culprit, therefore was shouldered by the investigating agency. Police, did trace out the said car and had put the blame on accused persons as they were the persons from whose possession, the said car was recovered.
7. Evidently, this case was not based on direct evidence, as nobody had seen accused persons stealing the car in question. It was a case of circumstantial evidence where the police connected the recovery of the said car with the inference of, the same being stolen by accused persons. How circumstantial evidence has to be appreciated was observed by Hon'ble Apex Court in case Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 CriLJ1738 where its was held that FIR No. 273/06 PS R.K.Puram "Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this court, before conviction could be based on circumstantial evidence, must be fully established. They are"
(1) The circumstantial from which the conclusion of guilt is to be drawn should be fully established. The circumstantial concerned must or should and not nay be established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypotheses except the one to be proved; and (5) There must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
8. Therefore, what has to be seen, in cases based on circumstantial evidence is whether the incriminating evidence, brought on record, points out towards the guilt of accused only or whether there is any room of doubt with regard to innocence of accused. In case of former, accused will be convicted and in case of latter, he will be given benefit of doubt.
9. Coming back, to the facts of this case, offence of theft, had to be appreciated against accused persons during trial. Based on the evidence, placed before me, I found that fingerprints of accused persons were not found at the spot. Even their fingerprints were not taken by the Police. To that extent, there was an utter failure on the part of investigating agency which made its case weak. There was no evidence to the effect that accused persons were present at the spot at the time of incident in question or soon thereafter. There was no evidence to the effect that accused persons were not present anywhere else except the spot in FIR No. 273/06 PS R.K.Puram question. There was every chance that accused persons had not stolen the case property rather had received the case property from somebody else. Therefore there were evident doubts with regard to commission of offence U/s. 379 IPC, by the accused persons. Benefit of doubt, therefore, was given to the accused persons, for the said offence.
Offence of using false property mark punishable u/s 482 IPC
10. This brings me to the offence of using a false property mark, punishable u/s 482 IPC. As per the testimonies of PW2 Ct. Rambir and PW3 HC Hansraj Sharma, accused persons were found in possessing the car in question with number plate DL 8CA 8979. The said number was not original, as the original number of the said car as per the complaint of complainant was DL 6CA 3058. Factum of the said car being stolen was not disputed by the accused persons as the complainant was not examined at all, by them. Therefore the number plate on the said car in question, possessed by them as also seen from the photographs mark P1 to mark P3, proved that the number plate was false. The said number plate was a property mark, within the rigor of section 479 IPC as it was a mark used for denoting that the said movable property belongs to a particular person. By using the aforesaid wrong number plate, accused persons had used false property mark within the domain of section 482 IPC.
11.Accused persons had cross examined PW2 Ct. Rambir and PW3 Hansraj Sharma, at length. The said witnesses were the recovery witnesses. The said witnesses refuted the case of accused persons regarding them being falsely implicated in this case. They had stuck to their version. One of the suggestion given to PW3 HC Hansraj Sharma was that there were three accused persons in this case. Though the said witness had refuted the suggestion, but the said suggestion indicated that the case of accused persons was that apart from them there was another person involved in the present case which indirectly hinted towards their guilt. Accused persons tried to put the blame on the third person namely Sachin by putting suggestion to that effect on the aforesaid witnesses. To their loss, aforesaid witnesses refuted FIR No. 273/06 PS R.K.Puram the involvement of Sachin in this case. The said suggestion, though refuted by accused persons, indicated that accused persons had the knowledge of the offence of theft and the fact that case property was seized from Sachin. Now, how accused persons knew the said facts and why they did not act against Sachin, who was the main culprit, so to say, as per them, was for them to have explained. In the absence of any such explanation, I found that accused persons had not put their version in clear and precise manner, much to their own disadvantage. Based on aforesaid appreciation, I believed the testimonies of recovery witnesses. Therefore offence of using false property mark, was proved beyond reasonable doubt by the prosecution.
Offence of retaining / receiving stolen property punishable u/s 411 IPC.
12. Accused persons were charged with the offence of retaining / receiving stolen property, punishable u/s 411 IPC. Evidently, factum of car bearing no. DL 6CA 3058 being stolen has been proved by the complainant. Its recovery from the possession accused persons are already found by me to be truthful, in my preceding paragraph which is not repeated here for the sake of brevity and therefore, the said offence stands duly proved by the prosecution.
13. Testimonies of rest of the witnesses held their ground. PW6 SI Randhir Singh, from PS Uttam Nagar had limited role to play, once case property was recovered from the possession of accused persons. Similar was the case with PW5 HC Jai Kishan, who was investigating officer in this case. Both the said investigating officers refuted the defence of accused persons being falsely implicated by them. They refuted the allegation that they had deposed falsely against accused persons. Apart from that accused persons had not mentioned the basis on which they had come to know about the role of a person namely Sachin who was the main culprit as per them. Therefore the said witnesses stuck to their version and I believed their testimonies. Rest of the witnesses were formal in nature and needed not much appreciation, as their testimonies, also corroborated the version of prosecution.
FIR No. 273/06 PS R.K.Puram
14.Per contra, accused persons raised the defence of being falsely implicated in this case based on various arguments, which I am appreciating in my subsequent paragraphs.
Arguments raised by accused Harish
15. In his defence, accused Harish had examined one defence witness Manish who had stated in his testimony that accused Harish was arrested from his house, in the Village in May 2006. During cross examination, he failed to mention the identities of police officials who had apprehended him. He did not mention the reason as to why, he had not complained against the erring police officials, who had apprehended accused Harish, despite knowing that he was innocent. He conceded the fact that accused Harish was his neighbor and he was having good relations with him. The said admission on his part indicated that there was every possibility that he was interested partisan witness who had deposed in favour of accused Harish, without having regard to the merits of the case, in order to save him. His testimony therefore was discarded by me as it was not put to the prosecution witnesses, for checking its veracity. Further conduct of this witness was not in tune with that of a reasonable prudent person, as a reasonable prudent person in such circumstances, would have raised hue and cry, once he had founded that an innocent was arrested, without any rhyme or reason. He could have also filed complaint to the police or other agencies against the wrongful conduct of the malafide police officials, which he did not, making him a doubtful witness.
16.Accused Manoj had examined one person namely Nagender in his defence who also testified that accused Manoj was arrested by some police officials in May 2006. He had also not lifted the veil, in the manner, expected of him, just like that of DW1 Manish. So therefore I discarded his testimony also.
17.Even otherwise both the defence witnesses did not allege in their testimonies that the arrest of accused persons was false. They did not allege that accused persons were arrested in this FIR No. 273/06 PS R.K.Puram very case and not in any other case. They did not depose that accused persons were falsely implicated in this case. They did not allege that due to such and such reason, accused persons were arrested by police wrongfully in this case. In nutshell, the said witnesses, did not say even a whisper against the case of prosecution in this case which also made their testimonies bogus.
18.Keeping in mind the aforesaid appreciation of evidence accused persons are convicted U/s. 411/482/34 IPC. Accused persons are acquitted u/s 379 IPC.
Announced in open court ( PRASHANT SHARMA )
today i.e. 09.01.2014 M.M.07, PHC, New Delhi.
09.01.2014
FIR No. 273/06 PS R.K.Puram
State Vs. Manoj Kumar & Ors.
FIR No. 273/06
P. S. Rama Krishna Puram
U/s 379/411/482/34 IPC
Present : APP for State.
Accused Manoj and Harish are present with their counsel.
Vide my judgment of even date, accused Manoj and Harish are convicted u/s 411/482/34 IPC. Accused Harish and Manoj are acquitted u/s 379 IPC.
Put up for arguments on sentence on 10.01.2014.
(PRASHANT SHARMA)
MM07/PHC/ New Delhi
09.01.2014
FIR No. 273/06 PS R.K.Puram