Delhi District Court
State vs Laltesh on 2 November, 2023
IN THE COURT OF SH. PANKAJ ARORA:
ADDITIONAL SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA:DELHI
SESSIONS CASE NO. 204/17
CNR No. DLNE01-002722-2018
FIR No. 750/2015
P.S. Seelampur
U/s : 392/394/397/411 of IPC
STATE
Versus
LALTESH
s/o Sh. Joginder Singh
r/o Village Bandrai Kamalgarh,
PS Phanam, Distt. Sambhal, UP
Date of Institution : 03-07-2018
Date of Argument : 02-11-2023
Date of Judgment : 02-11-2023
JUDGMENT
1. Brief facts of this case are that on 04-10-2015, an information was received at PS Seelampur through Wireless Operator that, "Shastri Park theka andar ki taraf hai, caller ki bike No. DL3365 Pulsar aur 2 lakh rupee cheen ke le gaye, jo Santro Silver colour gaadi mein the, jiski number plate tuti hui hai". This information was reduced into writing vide DD No. 59B (Ex. PW1/A1), which was marked to ASI Yamuna Prasad. Thereafter, Investigating Officer (hereinafter referred as IO) ASI Yamuna Prasad along with Ct. Puran reached at the spot i.e. G.T. Road, Hanuman Mandir, Shastri Park where on enquiry, he was FIR No. 750/15 State Vs. Laltesh Page 1 of 18 informed that injured had already been got admitted at JPC Hospital. No eyewitness met at the spot, therefore, they went to JPC Hospital where they collected MLC of injured Rehman wherein doctor declared him fit for statement and nature of injury was opined as simple. Injured Rahman stated that on 04-10-2015, he was going to Jama Masjid from his home on his motorcycle bearing No. DL-5SBK-3365. When he reached near GT Road, Hanuman Mandir, Shastri Park, he received phone call on his mobile phone, then he stopped his motorcycle on the side of the road. Meanwhile, one Santro Car of Silver colour came and stopped there, three persons came out from the said car. They snatched his mobile phone. When he tried to pull back his mobile phone, they hit him on his head with a pistol and removed Rs. 50,000/- (each from the side pockets of his pant). They took his motorcycle and fled away. One boy fled in his Santro Car. The assailants would be of 30 to 35 years of age and he could identify them if produced before him. He called his brother at the spot who came and dialed at 100 number. Thereafter, PCR Van came at the spot and took him to JPC Hospital. On the basis of statement of complainant Rahman, present FIR came to be registered. The mobile phone of the complainant was put at surveillance but the said mobile phone was not found to be working. Therefore, an untrace report was filed on 16.01.2016.
On 24-02-2018, an information vide DD No. 38B received whereby motorcycle of the complainant had been got recovered by SI Aditiya Singh of PS Behjoi District Sambhal from accused Laltesh during checking. IO of the present case talked to SI Aditiya on phone. On 08-03-2018, IO along with HC Vidhyadhar went to Village Behjoi, Kamalgarh Thana, Dhanori District, FIR No. 750/15 State Vs. Laltesh Page 2 of 18 Sambhal where accused Laltesh was interrogated and arrested. Seized stolen motorcycle was received from police station Behjoi and got deposited at malkhana of PS Seelampur. Thereafter, accused was produced in muffled face in the concerned court, and an application for conducting TIP of accused was moved. On 15-03-2018, accused Laltesh had refused to participate in the TIP proceedings. Thereafter, accused Ram Gopal and Chanderpal, who were already running in jail, were produced through production warrant. They were interrogated and arrested, and subjected to TIP proceedings wherein the complainant had failed to identify them. On 16.05.2018, accused Ram Gopal and Chanderpal got released by the IO from the concerned court. COMMITTAL
2. After completion of necessary formalities, charge-sheet was filed in the Court of Ld. Ilaqa MM. After taking cognizance and compliance of section 207 of Cr.P.C., the present case was committed to the Courts of Sessions by the order of Ld. MM/NE/KKD vide order dated 25-06-2018. The same was allocated by the then Ld. District and Sessions Judge to the Ld. Predecessor of this Court.
CHARGE
3. After hearing the arguments and finding that prima facie case was made out against the accused Laltesh for the offence punishable u/s 392/394 r/w 34 IPC and 397/411 of IPC. Charges were framed vide order dated 04-10-2018 by the ld. Predecessor, to which accused pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as seven witnesses. PROSECUTION EVIDENCE
4. (i) PW1 Retd. ASI Yamuna Parsad deposed that on FIR No. 750/15 State Vs. Laltesh Page 3 of 18 04/10/2015, on receipt of DD no. 59B Ex. PW1/A1, he along with Ct. Puran Singh went to the spot i.e. Hanuman Mandir, Shastri Park, GT Road, where he came to know that injured had been shifted to JPC Hospital. Thereafter, he alongwith Ct. Puran went to JPC Hospital where he collected MLC no. 10731/15 of injured Rehman on which doctor opined 'fit for statement' and injury was simple. He recorded statement of injured Rehman vide Ex. PW1/A. He prepared rukka Ex. PW1/B and same was handed over to Ct. Puran for registration of FIR. He directed Ct. Puran to meet him at the spot after registration of FIR. He went to the spot i.e. Hanuman Mandir, Shastri Park, Old G.T. Road where he prepared site plan Ex. PW1/C. Ct. Puran came back at the spot and copy of FIR and original rukka handed over to him. He made search for accused as well as case property but in vain. Thereafter, they returned to PS. He recorded statement of Ct. Puran and handed over the case file to MHC(R).
The witness was cross-examined by Ld. Defence counsel for accused but nothing material came out in his cross- examination.
(ii) PW2 Abdul Rehman deposed that he resides at C- Block, Gali no. 8, Kabir Nagar, Delhi along with his family. He was engaged in the profession of transport at Jama Majsid. On 04.10.2015, he was going to Jama Masjid from his home on motorcycle no. DL-5SBK-3365, red colour make Pulsar and when he reached at GT Road, Hanuman Mandir, Shastri Park, he received a call on his mobile phone. He parked his motorcycle on the side of the road and started hearing mobile phone at about 9.00 pm. Meanwhile, one Santro car of Silver colour came and stopped there and three persons came out from the said car. They FIR No. 750/15 State Vs. Laltesh Page 4 of 18 hit him on head with butt of pistol and he fell down on the road. They snatched his mobile phone and motorcycle. They snatched Rs. 50,000/- (each) from side pockets of his pant. One of the accused took his motorcycle and fled away. Other accused fled away in santro car. He made a call to his brother Ahmad. Call at 100 number was made. PCR arrived and shifted him to the hospital. His statement was recorded vide Ex.PW1/A. He deposed that the person who had snatched his mobile and motorcycle was not present in the court.
The photographs of the motorcycle Ex. P1 and Ex. P2 were shown to the witness who correctly identified the same stating that this is same motorcycle which was snatched from him on the day of incident i.e. 04.10.2015 at Old GT Road, near Hanuman Mandir, Shastri Park, Delhi.
The witness was cross-examined by Ld. Addl. PP for State as he was resiling from his earlier statement.
During cross-examination, he denied the suggestion that on 18.5.2018, he visited to Court no. 73, KKD Courts for some work where accused Laltesh was called. He denied that accused Laltesh is same person who had caused injuries on his head with pistol and he had identified him and told to IO. He further denied that his statement was recorded.
Attention of witness was drawn towards the accused Laltesh and he submitted that he cannot identify the accused whether he had caused injuries with butt of pistol. He denied that he had been won over by the accused that is why he was deposing falsely and deliberately not identifying the accused.
The witness was not cross-examined by Ld. Defence despite having given the opportunity.
FIR No. 750/15 State Vs. Laltesh Page 5 of 18(iii) PW3 HC Vidhyadhar deposed that on 08.05.2018, he was posted at PS Seelampur. On that day, he was participating in the investigation of the present FIR along with ASI Dutta Ram. On that day, he along with IO reached at KKD Court in the court of Ms. Aditi Garg, Ld. MM where IO interrogated accused Ram Gopal and Chander Pal with prior permission of Ld MM. Thereafter, IO arrested both accused persons Ram Gopal and Chander Pal vide their respective arrest memos Ex. PW3/A and Ex. PW3/B (both accused persons were already discharged). Thereafter both accused were produced before Ld. MM and sent to J/C by the order of Ld. Court.
On 08-03-2018, he along with ASI Dutta Ram left the PS during the course of investigation in the search of accused Laltesh and reached at PS Dhanauri, District Sambhal, UP. IO made arrival entry at PS Dhanauri. From PS Dhanauri, Home Guard namely Ram Avtar joined the investigation to assist them. Thereafter, they reached at village Badri Kamal Garh along with Ram Avtar. Home guard Ram Avtar told them that he was the local native of the said village, therefore, he could not enter into the house of accused Laltesh. Home Guard Ram Avtar further told that he can point out the house of Laltesh in village Badri Kamal Garh. Thereafter, they along with Home Guard Ram Avtar reached village Badri Kamal Garh, where Home guard Ram Avtar pointed out towards a house situated in the village stating that said house belonging to accused Laltesh and thereafter, he left the investigation. At about 1.30 PM, they entered into the house of accused Laltesh as the main gate of house of accused Laltesh was already opened. The wife of accused Laltesh met them inside the house and when IO asked about Laltesh from his FIR No. 750/15 State Vs. Laltesh Page 6 of 18 wife, she called Laltesh by his name. Accordingly, accused Laltesh came there. IO interrogated accused Laltesh. Then IO arrested accused Laltesh vide arrest memo Ex. PW3/C. Personal search of accused Laltesh was carried out by IO vide Ex. PW3/D. Disclosure statement of accused was recorded as per disclosure memo Ex. PW3/E. Accused Laltesh was kept in muffled face by the IO. Thereafter, he along with IO and accused Laltesh reached at local PS Bahjoi, Sambhal, UP. At PS Bahjoi, IO moved an application for taking possession of the case property of the present FIR i.e red colour Pulsar motorcycle before In-charge Police officer, PS Bahjoi, as the said motorcycle was already recovered by the police official of PS Bahjoi. In-charge Police Station Bahjoi permitted IO to take possession of the said motorcycle in respect of the present case FIR. Thereafter, they met with MHCM of PS Bahjoi who shown them a red colour pulsar motorcycle without number plate. IO confirmed status of the said motorcycle in the present case FIR through engine number and Chassis number. Thereafter, IO took the said motorcycle into police possession in respect of the present FIR vide seizure memo Ex. PW3/F. IO recorded statement of then MHCM PS Bahjoi and SI Aditya posted at PS Bahjoi. Thereafter, they along with accused Laltesh and said motorcycle left for Delhi and reached in Delhi in the intervening night of 08/09.03.2018. After reaching Delhi, firstly they went to JPC hospital to conduct medical examination of accused Laltesh. Thereafter, they reached at PS Seelampur and IO deposited the said motorcycle in the Malkhana of PS Seelampur and accused was sent to police lockup.
He further deposed that on 09.03.2018 at about 1.00 PM, FIR No. 750/15 State Vs. Laltesh Page 7 of 18 accused Laltesh was produced before the court concerned in muffled face. IO also moved an application for TIP of accused Laltesh which was granted by Ld. MM. Thereafter, accused was sent to J/C. IO recorded his statement.
He identified two photographs of the motorcycle red colour Bajaj Pulsar Ex. P1 and P2 available with case file as same motorcycle which was got recovered by police official of PS Bahjoi and IO took the same into police possession in respect of the present FIR from the possession of PS Bahjoi.
During cross-examination, he deposed that IO did not record the statement of Home Guard Ram Avtar. He denied that all documents were prepared by the IO while sitting in the PS or that he was deposing falsely.
(iv) PW4 HC Pooran deposed that On 04.10.2015, he was posted at PS Seelampur as Constable. On that day. he was on night emergency duty along with IO/ASI Yamuna Prasad. On the receipt of DD No.59B, he along with IO reached at the spot i.e. G.T Road, Hanuman Temple where no one was found. Thereafter, they went to JPC hospital where injured Rehman was found admitted in the hospital. IO obtained MLC of injured Rehman and thereafter, recorded statement of injured Rehman and prepared rukka on basis of his statement and handed the same to him for registration of IO. He took the rukka to PS and got FIR registered and thereafter, he came back at the spot along with copy of FIR and original rukka and handed over same to the IO. Thereafter, they searched accused, but in vain.
The witness was not cross-examined by Ld. Defence despite having given the opportunity.
(v) PW5 HC Pintoo Kumar, deposed that he was posted FIR No. 750/15 State Vs. Laltesh Page 8 of 18 in PS Behjoi and working as Malkhana Mohorer and he was directed by the Inspector Pankaj Lawaniya, SHO PS Behjoi to appear in this case with relevant record.
He brought attested copy of the general diary no. 27 dated 08.03.2018 of PS Behjoi. According to the entry, the motorcycle Pulser of red colour without number plate having chassis and engine no. as mentioned in the above entry Ex. PW5/A and bearing initials of Insp. Pankaj Lawaniya alongwith official stamp of the PS. The said motorcycle was given to ASI Data Ram PS Seelam Pur, Delhi on superdari as the said motorcycle was related to their case FIR No.750/15 u/s 394/397/34 IPC.
The witness was not cross-examined by Ld. Defence despite having given the opportunity.
(vi) PW6 Insp. Aditya Singh deposed that he was investigating officer of case FIR No. 27/18 PS Behjoi u/s 411/413/414 IPC registered on 15.01.2018. The said case FIR got registered by SI Sunil Kumar of PS Behjoi. After registration of the FIR, he had carried out the investigation of the case. SI Sunil Kumar had arrested two persons in that case FIR namely Laltesh and Ram Gopal. The motorcycle which got recovered from the possession of accused persons in FIR no. 27/18 was found to be the case property of the present case FIR. Thereafter, information was given to Delhi Police. He deposed that application Ex.PW6/A of ASI Data Ram of PS Seelampur addressed to SHO PS Behjoi Dist. Sambhal regarding taking the motorcycle, whose details were mentioned in the application, on superdari. The witness stated that this application was bearing signatures of SSI Ram Pal Singh at point A who allowed the request. He deposed that FIR No.27/18 of PS Behjoi Mark PW6/X was registered FIR No. 750/15 State Vs. Laltesh Page 9 of 18 during his posting over there in PS Behjoi and case was investigated by him.
He stated that due to long time gap, he might not be able to identify the said two persons who were arrested by SI Sunil, however, after inquiry by the witness from the accused standing in the dock, he stated that the accused Laltesh was same person who was arrested in the FIR No.27/18 PS Behjoi.
The witness was not cross-examined by accused despite having given the opportunity.
(vii) PW7 Retired ASI Data Ram is the IO of the present case. He deposed that on 17.11.2015, he was posted in PS Seelam Pur as ASI. During investigation, he made search for the accused persons and case property, but in vain. On 16.01.2016, he had prepared untrace report and submitted the same in records of PS Seelampur. On 24.02.2018, he received information vide DD No. 38B Ex. PW7/A from SI Aditiya of PS Behjoi Dist. Sambal UP about the arrest of accused Laltesh s/o Yogender r/o Bandra, Kamalgarh, PS Ghanadi, Dist. Sambal, UP in their case FIR No.27/18 u/s 411 IPC and about the recovery of motorcycle, whose engine and chassis no. mentioned in the above said DD, as the case property of the present case FIR. He contacted SI Aditya Singh through phone, who told him that the accused either may be in jail or bail.
He further deposed that on 08.03.2018, he along with HC Vidhyadhar through private car went to PS Ghanadi, Dist. Sambal and apprised the local police about purpose of his visit and they told him to first check the accused Laltesh whether available in the Village Behjoi or not. One local homeguard joined them for the purpose of identifying the accused Laltesh on FIR No. 750/15 State Vs. Laltesh Page 10 of 18 the condition that he would only point out the accused from distance. Thereafter, they went to village Behjoi and accused was found at his house. The accused was identified by the home guard who left after pointing out the accused. He interrogated the accused Laltesh and arrested him in the present case. The wife of accused, namely, Nandni was informed about the arrest of accused, however, she refused to sign the arrest memo.
The arrest memo of accused Ex. PW3/C; his personal search memo Ex. PW3/D and his disclosure statement Ex.PW3/E were prepared. Thereafter, accused was taken to PS Behjoi where he moved application Ex. PW6/A for taking the motorcycle on superdari vide superdarinama cum receiving of motorcycle Ex.PW7/B. He requested SI Aditiya to provide the relevant documents of the case FIR No.27/18 but it was told that documents had already been sent to the Court. Thereafter, they came back to Delhi along with accused and case property. Case property was deposited in Malkhana and medical examination of the accused got done. During the said period, accused was kept in muffled face. He had also moved application for conducting the judicial TIP of the accused Laltesh vide Ex. PW7/F. He was produced before the court and sent to JC. Their arrival at PS Ghanari Dist. Sambal dated 08.03.2018 vide DD No.21 was exhibited as Ex.PW7/C, arrival entry in PS Behjoi dated 08.03.2018 DD No. 26 was exhibited as Ex.PW7/D and arrival entry dated 07.04.2018 vide DD No. 44 of PS Behjoi was exhibited as Ex.PW7/E. Initially, the accused told that he shall join the TIP proceedings however, later on, on the date of TIP proceedings, he refused to participate in the TIP proceedings. He obtained copy of the TIP proceedings vide Ex.PW7/G. FIR No. 750/15 State Vs. Laltesh Page 11 of 18 On 07.04.2018, he along with HC Vidhyadhar went to PS Behjoi in search of co-accused Ram Gopal and Chander Pal. He revealed that both the accused persons were detained in Muradabad Jail. He thereafter, went to Muradabad Jail and both of them were found detained in the jail. Thereafter, they returned to Delhi. He moved application for issuing of production warrant against the above-noted two accused persons.
On 08.05.2018, both the accused persons were produced in muffled face in compliance of the production warrant issued by the court and he moved application Ex. PW7/H to interrogate and arrest the accused persons. He interrogated the accused persons and arrested them in the present case vide arrest memo of Ram Gopal as Ex PW3/A, his disclosure statement as Ex.PW7/I. The arrest memo of accused Chander Pal is Ex.PW3/B and his disclosure statement is Ex.PW7/J. Both the accused persons were sent to JC. He moved application for TIP of both the accused persons. At the time of TIP proceedings, the complainant failed to identify the accused Ram Gopal and Chander Pal. He obtained copy of the TIP proceedings Ex.PW7/K and Ex.PW7/L of the accused persons. When the complainant failed to identify accused Ram Gopal and Chander Pal, he moved application to release them in the present case. The concerned Ld. MM had thereafter, released the accused Ram Gopal and Chander Pal from the case. During investigation, he recorded statement of witness and challan was prepared and filed in the court.
He identified accused Laltesh in the court. He identified photographs of motorcycle as Ex. P1 and Ex. P2 which he had brought from PS Behjoi Dist. Sambal.
During cross-examination, he deposed that he had made FIR No. 750/15 State Vs. Laltesh Page 12 of 18 DD entry in PS Behjoi and same is available on judicial file. He did not know the name of home guard who accompanied him up to the house of accused. Home guard refused to give statement regarding his interrogation and investigation of the present case. He did not issue any notice to home guard in regard of his refusal to give any statement. He denied the suggestion that he had not done fair investigation in this case or that he had not taken any of the statement either of any neighbors or home guard how he could identify the accused.
STATEMENT OF ACCUSED
5. After completion of prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. wherein incriminating facts were put to the accused Laltesh, which were denied by him. He stated that he is innocent and has been falsely implicated in this case.
FINAL ARGUMENTS
6. This court has heard the arguments and perused the record. It is submitted on behalf of accused Laltesh that the prime witness of the prosecution PW2 Abdul Rehman had failed to support the case of the prosecution inasmuch as he has failed to identify the accused as the culprit who had committed the robbery upon him. It is argued that IO has failed to join independent public witness i.e. Home Guard at village Behjoi in the investigation of the present case and therefore, the entire case of the prosecution becomes doubtful. It is, therefore, prayed that the accused be acquitted from all the charges.
On the other hand, Ld. Addl. PP for the State submits that the testimony of all the prosecution witnesses is sufficient to bring home the guilt of accused beyond reasonable doubts.
FIR No. 750/15 State Vs. Laltesh Page 13 of 18FINDING OF THE COURT
7. Before analyzing the prosecution and defence evidence adduced in the present case, this court deems it proper to refer to provisions of law and some citations of Superior courts, which are found to be applicable on the facts of the present case.
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
411. Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same 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.
8. It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
9. In Harendera Narain Singh vs. State of Bihar, AIR 1991 S.C. 1842, their Lordships of the Supreme Court had reiterated the well-known principle of the criminal jurisprudence is that:
FIR No. 750/15 State Vs. Laltesh Page 14 of 18"....... The basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."
10. In Data Xiva Naique Desai and Another vs. The State, AIR 1967 Goa, Daman and Diu 4, the Hon'ble Supreme Court reiterated the well-known principles of the criminal jurisprudence which are reproduced as under:
"The learned Judge would be advised to observe the following general rules when he is dealing with the serious question of the guilt or innocence of persons charged with crime: (i) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution; (ii) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused; (iii) In matter of doubt it is safer to acquit than to condemn; for it is between several guilty persons should escape than that one innocent person suffer; and (iv) the hypothesis of delinquency should be consistent with all the facts proved."
11. In Swarn Singh Ratan Singh vs. State of Punjab, AIR 1957 SC 637, it was held by the Hon'ble Apex Court that, "in criminal cases mere suspicion, however, strong, cannot take the place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof."
12. It is observed that the only eyewitness got examined by the prosecution is PW2 Abdul Rehman, who is the victim as well as the complainant in the present case. In his deposition dated 30-09-2021, he has categorically deposed that the person who had snatched his mobile and motorcycle was not present in the court that day. In his cross-examination by Ld. Addl. PP for State, he categorically denied the specific suggestion that accused Laltesh was the same person who had caused injuries on his head with pistol. Despite having been pointed out by Ld. FIR No. 750/15 State Vs. Laltesh Page 15 of 18 Addl. PP for State, PW2 had failed to identify the accused as the culprit who had caused injuries with the butt of pistol. In these circumstances, the prosecution has failed to establish the charges punishable u/s 392/394/397/34 of IPC.
13. It is further pertinent to note that despite the fact that PW2 had failed to identify the accused in his deposition dated 30-09-2021, his testimony cannot be completely discarded. PW2 has proved his statement Ex. PW1/A wherein inter alia he has claimed that his motorcycle bearing no. DL5SBK-3365 had been robbed on 04-10-2015. He has also identified the photographs of the said motorcycle as Ex. P1 and Ex. P2. From the testimony of investigating police officials, PW3 HC Vidhyadhar, PW5 HC Pintoo Kumar, PW6 Inspector Aditya Singh and PW7 Retd. ASI Data Ram, it is established that motorcycle bearing no. DL5SBK-3365 was recovered from the possession of accused at a place near Dharam Kanta, Beta Jai Singh Chauraha, PS Behjoi, Distt. Sambhal, UP on 15-01-2018 at about 8:20 am, which was retained by the accused knowing or having reason to believe that the same was robbed property. To prove this fact, the prosecution has got examined two witnesses from UP Police. PW5 HC Pintoo Kumar was the then Malkhana Moharar of PS Behjoi, Distt. Sambhal, UP, who has proved DD no. 27 dated 08-03-2018 whereby the aforesaid motorcycle was handed over to ASI Data Ram as Ex. PW5/A. PW6 Inspector Aditya Singh, who was the IO of FIR no. 27/18, PS Behjoi, which was registered upon recovery of above-stated motorcycle has correctly identified the accused in his deposition dated 03- 03-2023. He has also proved FIR no. 27/18, PS Behjoi as Mark PW6/X and the application moved by the IO ASI Data Ram of FIR No. 750/15 State Vs. Laltesh Page 16 of 18 the present case for taking the above-stated motorcycle on supardari as Ex. PW6/A. Both PW5 and PW6 were not cross- examined on behalf of the accused despite having given the opportunity.
14. The only contention, with regard to the recovery of robbed motorcycle from the possession of accused, raised by the Ld. Defence counsel is that the Home Guard, in whose presence the accused was arrested from village Behjoi, District Sambhal, UP had not been joined in the investigation of the present case. In this regard, it is pertinent to note that PW7 ASI Data Ram has categorically deposed that the said Home Guard had joined the investigation on the condition that he would only point out the accused from a distance. Further, no recovery was effected in the presence of said Home Guard. In view of impeached testimony of PW6 Inspector Aditya Singh and PW5 HC Pintoo Kumar, police officials of PS Behjoi, the said contention with regard to the non-joining Home Guard in the investigation of the present case, in the opinion of this court, does not carry any weight.
DECISION OF THE COURT
15. In the opinion of this court, the testimony of prosecution witnesses comes out to be clear, convincing, trustworthy and inspires confidence of this court with regard to the factum of recovery of robbed motorcycle from the possession of accused. Nothing material came out in their respective cross-examination. There is no reason to disbelieve the version of prosecution witnesses on this count. All the ingredients of sections 411 of IPC are satisfied. The prosecution has successfully proved beyond reasonable doubt that on 15-01-2018 at about 8:20 am at FIR No. 750/15 State Vs. Laltesh Page 17 of 18 a place near Dharam Kanta, Behta Jai Singh Chouraha, PS Behjoi, Distt. Sambhal, UP, accused was found in possession of robbed motorcycle no. DL-5SBK-3365 without number plate, belonging to complainant Abdul Rehman, which had been retained by him knowing or having reason to believe that the same was robbed property. Accordingly, the accused Laltesh is hereby convicted of the charge punishable u/s 411 of IPC. However, the accused is acquitted of the charges punishable u/s 392/394/397/34 of IPC. Let the convict be heard on the quantum of sentence and grant of compensation on the next date of hearing.
ANNOUNCED IN THE OPEN COURT
ON 02-11-2023 PANKAJ Digitally signed by
PANKAJ ARORA
ARORA Date: 2023.11.04
13:16:24 +0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/ 02-11-2023
FIR No. 750/15 State Vs. Laltesh Page 18 of 18