Delhi District Court
State vs . Shakuntala on 26 October, 2013
State Vs. Shakuntala
FIR No. 275/11
PS Palam Village
IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
FIR No. 275/11
PS Palam Village
U/S : 379/411 IPC
State V/S Shakuntala
C/No. 8/2
U.ID No. 02405R0378452011
Date of Institution: 08.12.2011
Name of the Complainant Gulzar s/o Gayasudin, r/o H.NO.
C6, Main Road, Shastri Park,
Gali No. 1, Shahadra, Delhi.
Name and address of accused Shakuntala w/o Amar Singh r/o
H.No. 28/6, near Ramlila
Ground, Kasturba Nagar,
Shahadara Delhi.
Charge framed against accused U/S 380/411 IPC
Plea of accused pleaded not guilty
Final Order Convicted
Date of reserve for orders 26.10.2013
Date for announcing the orders 26.10.2013
The brief facts and pre trial procedure
1.Charge U/S 380/411 IPC was framed against the accused that on 12.10.2011 at about 08.00 PM in the Readymade garment shop of near DESU Office, Mangla Puri, Budh Bazar, Delhi within the jurisdiction of PS Palam Village the accused committed theft of Tshirts in above said garment shop C/No.8/2 Page No. 1 U.ID No. 02405R0378452011 State Vs. Shakuntala FIR No. 275/11 PS Palam Village and the same was recovered in her possession which the accused retained knowing or having reason to believe the same to be stolen property and the accused thereby committed an offence u/s 380/411 IPC to which he pleaded not guilty and claimed trial.
Trial
2. To prove the charges, prosecution cited 10 witnesses in the list of witnesses but could examine only 9 out of them. PE stood closed on 10.10.2013. Thereafter, statement of accused U/S 313 CrPC was recorded in which accused pleaded his innocence. No defence evidence was led by accused.
3. PW1 HC Surender Singh deposed that on 13.10.2011 he verified purcha number 12 connected with FIR No. 275/11 u/s 379/411 IPC regarding the accused Shakuntala wife of Amar Singh , R/o House no. 26 A, Near Ram Leela Ground, Kasturba Nagar, Shahdra and same was handed over to IO. IO recorded his statement.
4. PW2 Ct. Ombir deposed that on 12.10.2011 when he was on patrolling duty at about 9.40 pm he received a call from the IO to call lady Ct. from subdivision Dabri. Thereafter, he went to sub division Dabri on motorcycle and returned back along with Lady Ct. Geeta and reached at the spot where he called them, where accused Shakuntala and complainant Gulzar son of Gyasuddin met them. Accused was handed over to lady Ct. Geeta. Thereafter, accused was arrested vide arrest memo Ex. PW2/A. Personal search of accused was conducted. Prior to this , IO requested four five public persons to join the investigation but they refused. IO received bill of ready made clothes and seized the same vide seizure memo Ex. PW2/B. IO recorded the statement of Satnarain and complainant. PW2 correctly C/No.8/2 Page No. 2 U.ID No. 02405R0378452011 State Vs. Shakuntala FIR No. 275/11 PS Palam Village identified the case property i.e twelve Tshirt as Ex. P1.
5. PW3 Satnarain deposed that the accused was carrying a jute bag. The accused put the Tshirts in the jute bag which were lying on the table. Thereafter, she started running. The shopkeeper, whose Tshirts were stolen, raised alarm. The public managed to stop her. Gulzar made a police call and thereafter police arrived on the spot. Thereafter, SI Narender along with a Lady Ct. and other police men came to the spot and after investigation they took the accused to the police station.
6. PW4 Gulzar Ahmad deposed that on 12.10.2011 he stalled his shop at Budh Bazar, Mangla Puri, Palam near DESU office. On 12.10.2011 at about 08.00 pm one lady came near to his stall and started choosing the Tshirt. At that time so many public persons gathered near his stall. After sometime he found the said lady was suddenly moving back from stall. Due to suspicion she was apprehended by him. The said lady was having a bag in her hand, He checked the bag of the said lady and found 12 Tshirts belonging to him was put into the bag. Thereafter he called at 100 number. Police reached at the spot. He handed over the accused, her name revealed as Shakuntala along with the case property to the police. Police recorded his statement Ex. PW4/A. The case property was seized by the IO vide seizure memo Ex. PW4/B. IO prepared the site plan Ex. PW4/C in his presence. Accused Shakuntala was arrested by the IO vide arrest memo Ex. PW2/A. He handed over the receipt Ex. PW2/XI of his Tshirts. PW4 correctly identified the accused the case property i.e 12 Tshirts Ex. P1 (colly)
7. PW5 W/Ct. Geeta deposed that on 12.10.2012 she along with Ct. Om Bir went to PS Palam Village. She reached near DESU Office, Budh Bazar, Mangla Puri where SI Narender, complainant Guljar along with accused Shakuntala met them. Thereafter the accused Shakuntala was C/No.8/2 Page No. 3 U.ID No. 02405R0378452011 State Vs. Shakuntala FIR No. 275/11 PS Palam Village arrested vide arrest memo Ex. PW2/A. Personal search of the accused Shakuntala was conducted by her vide memo Ex. PW5/A. Disclosure statement of accused Shakuntala was recorded by the IO vide memo Ex. PW5/B. PW5 correctly identified the accused.
8. PW6 Ct. Rajesh deposed that on 12.10.2011 after receiving of DD NO. 32 A, he along with ASI Ved Prakash went to the spot i.e DESU Office, Budh Bazar where complainant Guljar met them and handed over one lady namely Shakuntala along with the case property that was Tshirts perported to be stolen by said accused Shakuntala. IO recorded the statement of the complainant and prepared a tehrir on the basis of the statement of the complainant and same was handed over to him for registration of FIR. After registration of FIR he returned to the spot and original tehrir and copy of FIR was handed over to ASI Ved Prakash. The case property which was Tshirts 12 in number in different colour was seized by the IO and sealed with the seal of VP. In the meantime SI Narender reached at t he spot as the further investigation of this case was marked to SI Narender. Thereafter he left the spot. PW6 correctly identified the accused.
9. PW7 SI Shanti Prakash deposed that he was the Duty Officer at the relevant time who proved the FIR as Ex. PW7/A and he also made his endorsement Ex. PW7/B on the rukka.
10. PW7 SI Ved Prakash deposed that on the intervening night of 12/13.10.2011 on receiving of DD no. 32 A at about 08.20 PM he along with Ct. Rajesh reached near DESU Office Mangla Puri Budh Bazar where complainant Gulzar met them and produced the accused along with one bag containing Tshirts handed over to him. He got recorded the statement Ex. PW4/A of the complainant Gulzar. He counted the bag containing the T shirts which was found to be 12 in number, thereafter he sealed the same in C/No.8/2 Page No. 4 U.ID No. 02405R0378452011 State Vs. Shakuntala FIR No. 275/11 PS Palam Village the bag with the seal of VP and same was seized and taken into possession vide seizure memo Ex. PW4/B. On the statement of the complainant, he made an endorsement on the same and prepared a rukka Ex. PW7/A and handed over the same to Ct. Rajesh for registration of the case. After registration of the case, he came to the spot along with SI Narender Singh. He handed over the case property along with the documents prepared by him to SI Narenderd. Thereafter he left the spot. PW7 correctly identified the accused.
11. PW8 SI Narender Singh deposed that on 12.10.2011 further investigation of this case was marked to him after registration of the case. He reached at the spot i.e near DESU Office, Mangla Puri, Budh Bazar where ASI Ved Prakash, Ct. Rajesh, complainant Gulzar and accused Shakuntala met him. ASI Ved Prakash handed over to him original tehrir and computerized copy of Fir along with the seizure memo of the case property and sealed case property and accused. He recorded the statements of ASI Ved Prakash, and Ct. Rajesh and they were relieved. In the meantime Ct. Ombir along with W/Ct. Geeta reached at the spot and the accused was handed over in the custody of W/Ct. Geeta and sealed case property was handed over to Ct. Ombir. He prepared the site plan Ex. PW4/C at the instance of the complainant Gulzar. Accused was arrested vide arrest memo Ex. PW2/A and her personal search was got conducted through W/Ct. Geeta in a shop. He prepared her personal search memo Ex. PW5/A. The items found from the personal search of the accused, were kept in green coloured bag found from accused and were sealed with the seal of NS. He recorded the statement of the shop owner Sat Narain. Complainant had produced the bill Ex. A1 of stolen items which was seized vide seizure memo Ex. PW2/B. He recorded the supplementary statement of complainant.
C/No.8/2 Page No. 5U.ID No. 02405R0378452011 State Vs. Shakuntala FIR No. 275/11 PS Palam Village Thereafter the complainant and public witness Sat Narain were relieved. He along with police staff returned to the PS with accused and case property. He recorded the disclosure statement of the accused Ex. PW5/B in the PS. He recorded the statement of Ct. Ombir and W/Ct. Geeta in PS. The case property and the personal search items were deposited in the malkhana. Accused after the medical examination was sent to the lock up of PS Dwarka Sector 23. On 13.10.2011 parcha 12 was verified. After the completion of investigation, he prepared the challan and filed in the Hon'ble Court. PW8 correctly identified the accused.
Statement of accused and defence
12. After closure of prosecution evidence, the statement of accused persons U/S 313 CrPC was recorded. When all the incriminating evidence has been put to the accused persons to afford them an opportunity to explain the circumstances so put to them, they have not offered a shred of evidence to prove their innocence except by saying that they are innocent and they have been falsely implicated. Further accused persons did not lead any defence evidence in support of their claim of innocence.
Arguments and appreciation of evidence in the light of legal propositions
13. While arguing on behalf of the accused, it has been submitted by the counsel for the accused that prosecution has not been able to establish its case against the accused for various reasons. Ld. Counsel for the accused has further submitted that prosecution has not been able to produce the bills of the alleged stolen clothes by the accused during trial. It is further submitted by the counsel for the accused that no eye witness has come to C/No.8/2 Page No. 6 U.ID No. 02405R0378452011 State Vs. Shakuntala FIR No. 275/11 PS Palam Village depose against the accused as list of witnesses filed by the prosecution, did not have a single eye witness despite the fact that place of occurrence of offence shown by the prosecution is a market. Ld. Counsel for the accused has further submitted that all the documents were prepared by the police at PS as complainant himself has stated in his examination that his statement was taken by the police in the PS. Ld. Counsel for the accused has further submitted that while the personal search of the accused was conducted nothing except the clothes was shown to be recovered from the accused by the police and in this case the case property is planted by the police on accused.
14. On the other hand Ld. APP for the State vehemently opposed the arguments raised by Ld. Counsel for the accused. Ld. APP for the state submitted that there is an ample evidence on record which shows the complicity of the accused in the crime.
15. I have given my thoughtful consideration to the submissions advanced by both sides. With respect to preliminary argument raised by Ld. Counsel for the accused that no bill was shown by the complainant or the prosecuting agency to prove that the clothes belongs to the complainant. In this regard it is observed that the place of offence is a weekly market organized in a small place and as such the vendors of such market do not have all the documents relating to the purchase and even if that being so mere nonproduction of purchase bill of the clothes which were allegedly stolen by the accused do not mitigate the offence of stealing in any way by accused.
16. With respect to further contention that contradiction come across in the testimony of the complainant that the statement of the complainant was recorded by the police in PS, however, IO has stated that the statement C/No.8/2 Page No. 7 U.ID No. 02405R0378452011 State Vs. Shakuntala FIR No. 275/11 PS Palam Village of the complainant was recorded on the spot, to this contradiction it is observed that it may so happen generally that after a lapses of considerable time the witness does not exactly remember the place where statement was recorded and the contradiction appears to be trivial in nature. With respect to contention of Ld. Counsel for the accused that there is contradiction in the testimony of the witnesses, the same contradiction is minor in nature and in Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra (AIR 2000 SC 3352), it was held that while discrepancies in the testimony of a witness which may be caused by memory lapses were acceptable, contradictions in the testimony were not and it was observed:
" contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from the disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person.".
17. With respect to further argument that IO did not ask for purchase of documents from the complainant, same may be irregularity in the the investigation but if the fact of theft is otherwise proved a small investigation lapse on his part would be of no use to the accused.
18. With respect to arguments raised by Ld. Counsel for the accused that no public person was joined as witness, the mere fact that no public person was joined as a witness is not sufficient to throw away the prosecution case when the testimonies of the police witnesses are inspiring and have been fully corroborated. It is not very uncommon that Public C/No.8/2 Page No. 8 U.ID No. 02405R0378452011 State Vs. Shakuntala FIR No. 275/11 PS Palam Village persons are generally reluctant to join as a witness and appear before the court as a witness. In State of U.P. Vs Anil Singh, 1988 Supp SCC 686, it is observed that "it is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable". Even otherwise if the evidence on record is sufficient to nail the accused, the same does not become tainted by reason of absence of any public person as witness.
19. The evidence of complainant in this case is firm and further no defence whatsoever has been put forth by the accused to defend the charges against her. The fact she was found to be in possession stolen clothes which were recovered on her personal search and which she took from the shop of the complainant by hiding them under her clothes apparently is sufficient to prove the charges against the accused.
20. With regard to offence u/s 411 IPC it is on record that accused got recovered stolen clothes which was duly identified by the complainant. The same fact leads to the conclusion that accused was in possession of stolen clothes. Having considered all the facts and circumstances of this case, the recovery of the stolen clothes effected at the instance of the accused and after going through the testimony of recovery witnesses, the same is in position to inspire the confidence of the court regarding the fact of possession of stolen property by the accused dishonestly having knowledge to believe that the same is stolen property. The contents of Section 411 IPC are satisfied if it appears from the evidence on record that it is in the knowledge of the accused persons or have reason to be believed that the property is stolen. Attention is paid to the use of both the words "Receipt and retained" in section 411 IPC. It is a fact that property was stolen from the premises of the complainant and it is also in the evidence that property is C/No.8/2 Page No. 9 U.ID No. 02405R0378452011 State Vs. Shakuntala FIR No. 275/11 PS Palam Village recovered at the instance of accused herein. Reliance can be placed on Section 114 (a) of Indian Evidence Act, 1872 wherein the court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has retained the goods knowing them to be stolen, unless he can account for his possession.
Conclusion
21. In the light of the aforesaid facts, this court is of the considered view that accused was having knowledge and had reasons that property was stolen and same was recovered at her instance and having all the deposition of recovery witnesses firm and unshaken coupled with the fact that no explanation has been furnished by the defence to displace it, give rise the conclusion towards the guilt of the accused. Nothing favourable could be brought by the counsel for the accused during the cross examination of the witnesses. Prosecution has finally established its case against the accused beyond the shadows of doubt. In view of the aforesaid, this court is of the view that accused had committed the offence u/s 411 IPC and she is accordingly convicted for the same.
Copy of the order be given to the convict free of cost. Order on sentence will be pronounced after hearing the convict.
Announced in the Open Court (PANKAJ SHARMA)
today on 26 day of October 2013 MM 01: Dwarka : Delhi
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C/No.8/2 Page No. 10
U.ID No. 02405R0378452011