Delhi District Court
In Re: State vs Shiv Dhan Etc. on 1 July, 2011
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:
SOUTH: SAKET DELHI
In Re: STATE VERSUS SHIV DHAN ETC.
F.I.R. No: 261/98
U/s 379/411/34 IPC
P.S. Lodhi Colony
Date of Institution of Case : 21.01.1999
Judgment Reserved for : 01.07.2011
Date of Judgment : 01.07.2011
JUDGEMENT:
(a) The serial no. of the case : 252/03
(b) The date of commission of offence : 16.08.1999
(c) The name of complainant : Lt. Col. Jagjit Singh
(d) The name, parentage, of accused : 1) Shiv Dhan S/o Gomati, r/o
Vikas Nagar, Uttam Nagar,
Delhi.
2) Vinay Kumar S/o Sh.
Jagroop Singh, r/o Jhuggi
A16, Kalibari, Krishna Colony,
Uttam Nagar, New Delhi.
FIR No. 261/98 1/13
(e) The offence complained of : U/s 379/411/34 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Both accused persons
convicted. Accused Shiv
Kumar expired during her trial
and proceedings against him
stood abated vide orders dated
21.04.2006.
(h) The date of such order : 01.07.2011
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 16.08.1999 accused Shiv Dhan along with coaccused Shiv Kumar (since deceased) and Vinay Kumar in furtherance of their common intention committed theft of two murals belonging to Lt. Col. Jagjit Singh from JNS First floor which were later on recovered on 17.08.1999 at their instance and thus thereby the accused persons committed offence punishable u/s 379/411/34 IPC
2. Charge sheet was filed in the court and in compliance of Section 207 accused persons were supplied the documents. Thereafter vide order FIR No. 261/98 2/13 dated 19.08.2002, charge u/s 379/411/34 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined three witnesses. During the course of the trial accused Shiv Kumar expired during her trial and proceedings against him stood abated vide orders dated 21.04.2006 passed by the Ld. Predecessor of this court. After the PE was closed, statement of the accused persons was recorded u/s 313 Cr.P.C. wherein both of them have went on to admit their guilt. A brief scrutiny of the evidence recorded in the matter is as under:
4. PW 1 HC Banwari Lal deposed that on 17.08.1998 he was posted at PS Lodhi Colony and on that day he along with Hulas Giri joined the investigation of the case and during investigation, they went to JNS along with complainant Jagjit Singh. He deposed that accused Shiv Dhan (correctly identified) was arrested and his disclosure statement was recorded vide Ex.PW1/A and his personal search was conducted vide Ex.PW1/B. He deposed that at the instance of accused Shiv Dhan, accused Shiv Kumar and Vinay Kumar were arrested vide memos Ex.PW1/C & D and their disclosure statements were recorded vide memos FIR No. 261/98 3/13 Ex.PW1/E & F and on basis of disclosure statement of accused Shiv Dhan, two murals were recovered from a Jhuggi which were seized vide memo Ex.PW1/G. This witness further identified the case property as Ex.P1 & P2.
5. During his cross examination he stated that after registration of FIR, he along with the IO had departed from the PS at about 1.00 pm and they went to Nehru Stadium first where chowkidar Mahender Bahadur Thapa met them who identified accused Shiv Dhan and IO recorded his statement. He stated that accused Shiv Dhan disclosed to Thapa about his other associates. He stated that accused Shiv Dhan was arrested at the instance of Thapa. He stated that the disclosure statement of accused Shiv Dhan was recorded prior to his arrest. He stated that he does not remember the exact time when the accused took them to jhuggi at Uttam Nagar of accused Shiv Kumar and Vinay and both the accused were found there. He stated that some ladies were present in the adjoining jhuggies. He stated that Ex.P1 & P2 were found kept inside the jhuggi No. A16. He stated that no public person agreed to become a witness to the recovery. He stated that he does not know whether any notice was given to the public persons or not who refused to become a witness. He denied the FIR No. 261/98 4/13 suggestion that nothing was recovered from the accused persons and they had been falsely implicated in this case or he was deposing falsely and the recovery had been planted upon the accused persons at the instance of the complainant.
6. PW 2 HC Gopi Chand deposed that on 17.08.1998 he was posted as Duty Officer and at about 11.00 am, complainant Lt. Col. Jagjit Singh came to PS and got recorded his statement to the fact that on 06.08.1998 he had put murals on the first floor of Jawahar Lal Nehru Stadium and on 17.08.1998 when he went to take off/down the murals the two murals were missing. He further deposed that on the basis of his complaint, he registered the case FIR i.e Ex.PW1/A.
7. PW 3 Retired SI Hulas Giri deposed that on 17.08.1998 he was posted at PS Lodhi Colony and on that day the copy of FIR was given to him by the DO for investigation. He deposed that the FIR was registered on the oral statement of the complainant. He deposed that during the investigation, he prepared the site plan i.e. Ex.PW3/A at the instance of complainant. He deposed that on the same day, he recorded the statement of chowkidar Amar Bahal Thapa who named accused Shiv Dhan to have FIR No. 261/98 5/13 committed theft. He deposed that he arrested accused Shiv Dhan from Jawaharlal Nehru Stadium vide arrest memo Ex.PW1/B and recorded his disclosure statement i.e Ex.PW1/A and on basis of disclosure statement of accused Shiv Dhan, he arrested accused Shiv Kumar and Vinay Kumar vide Ex.PW1/C & D and two murals were recovered from their Jhuggi at Uttam Nagar which were seized vide memo Ex.PW1/G. He deposed that he recorded their disclosure statement i.e Ex.PW1/E & F. He further deposed that he recorded the statement of the witness and prepared the challan.
This witness further identified the case property as Ex.P1 & P2.
8. During his cross examination he stated that he does not remember whether any mural was there in the stadium when he reached there. He stated that he does not know who was the contractor. He stated that the complainant was not with him at the time of recovery. He denied the suggestion that nothing was recovered from the possessing of the accused persons or they did not commit theft of banners or he was deposing falsely being a police official.
9. This so far are the prosecution witnesses in the matter is concerned. FIR No. 261/98 6/13
10. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP, carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
11. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused persons.
12. The allegations against accused Shiv Dhan and Vinay was that both of them along with Shiv Kumar (since deceased) in furtherance of their st common intention committed theft of two murals from 1 floor Jawahar Lal Nehru Stadium.
13. Today during their examination u/s 313 Cr.P.C. the accused persons made certain statements/gave explanation/answers to the incriminating material put to them which leave no doubt that it was in deed the accused st persons who had committed theft of two murals on 16.08.1998 from the 1 FIR No. 261/98 7/13 floor of Jawahar Lal Nehru Stadium.
14. The answers given by the accused Shiv Dhan to question no.1 & 3 are reproduced as under:
"It is correct that two murals/banners which were affixed at JNS first floor were removed by us. They were removed at around 910.00 in the night as it was raining heavily. We inadvertently removed the wrong banners i.e. banners belonging to the complainant as we were employed by a company to remove and affix the banners/murals. I had no intention to commit the theft of the murals/banners. They were removed as per the orders of the company/our contractor. The banners were kept at the Jhuggi of Vinay Kumar and Shiv Kumar. When the complainant inquired about the murals we told him that my mistake we had removed the banners belonging to him as it was raining heavily and it was night time and we told him that the banners will be given back to him by bringing them from the Jhuggi where they were lying. I had no intention to commit theft."
It is correct that I had told the police that the banners were lying in the Jhuggi of Vinay Kumar and Shiv Kumar and the banners/murals were recovered from the jhuggi of Vinay Kumar and Shiv Kumar and they were deposited in the PS/handed over to the police.
15. The answers given by the accused Vinay Kumar to question no.1 & FIR No. 261/98 8/13 3 are reproduced as under:
"It is correct that two murals/banners which were affixed at JNS first floor were removed by us. They were removed at around 910.00 in the night as it was raining heavily. We inadvertently removed the wrong banners i.e. banners belonging to the complainant as we were employed by a company to remove and affix the banners/murals. I had no intention to commit the theft of the murals/banners. They were removed as per the orders of the company/our contractor. When the complainant inquired about the murals we told him that my mistake we had removed the banners belonging to him as it was raining heavily and it was night time and we told him that the banners will be given back to him by bringing them from the Jhuggi. It is correct that the banners were lying in my jhuggi and Shiv Kumar also used to live with me in the same jhuggi. We gave back the murals/banners to the police. I had no intention to commit theft."
"It is correct that I had told the police that the banners were lying in my Jhuggi and the banners/murals were recovered from my jhuggi and they were deposited in the PS/handed over to the police."
16. The above highlighted answers/replies leave no doubt that the allegations against the accused persons are true and correct. No doubt remains that they had removed the murals belonging to Lt. Col. Jagjit Singh and during the course of investigation the murals were recovered from their possession. These answers are self sufficient to prove the FIR No. 261/98 9/13 charges against the accused persons. They are admissible in evidence against the accused persons in view of sub clause 4 of section 313 Cr.P.C. Reliance may be placed upon the law laid down in Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315.
17. Apart from the above mentioned statements/answers given by the accused persons the recovery of the stolen murals from the accused persons also stand proved in view of the deposition of the prosecution witnesses.
18. Compliant of Lt. Col Jagjit Singh regarding the missing murals was proved by PW2 HC Gopi Chand who was the Duty Officer and who proved the FIR as Ex. PW1/A.
19. From the deposition of PW1 HC Banwari Lal and PW3 SI Hullas Giri FIR No. 261/98 10/13 i.e. the IO of the case it stands proved that during the course of investigation accused Shiv Dhan was arrested and on the basis of his disclosure statement i.e. Ex. PW1/A coaccused Vinay Kumar was arrested vide Ex. PW1/D and in pursuant to their disclosure statement i.e. Ex. PW1/F the stolen murals were recovered from their Jhuggie on 17.08.1998. The murals were recovered/seized vide Ex. PW1/G. The disclosure statement and the recovery thereof is admissible against the accused persons in view of Section 27 of the Indian Evidence Act as well as the law laid down in "David Razario (2002) 7 SCC 728, State of Rajasthan v. Bhup Singh (1997) 10 SCC 675 and Vijender v. State (1997) 6 SCC 171".
20. Though during the course of arguments, the Ld. Defence counsel vehemently argued that the prosecution miserably failed to prove its case against the accused persons as neither the complainant nor eye witness Amar Bahadur Thapa could be examined. They were the star/material witness and their absence renders the prosecution story unbelievable. It was further argued that despite availability no public witness was joined by the police during the entire/seizure proceedings which itself casts serious doubts upon the prosecution story. However, I do not agree with the either FIR No. 261/98 11/13 contentions of the Ld. Defence Counsel. No doubt Lt. Col. Jagjit Singh and witness Amar Bahadur Thapa were material witness however, their absence has not been fatal to prosecution case. Reason is the statement of the accused as discussed above as well as the recovery as proved by the remaining prosecution witnesses. Similarly nonjoining of any independent/public witness has also not effected the prosecution story for the reasons discussed above as well as the law laid down in Ambika Prasad and Ano. Vs State 2002 (2) CRIMES 63 (SC), Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81, Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336, State of UP vs. Anil Singh AIR 1998, Appa Bhai vs. State of Gujrat AIR 1988 SC 696 and Sukhdev Yadav vs. State of Bihar (2001) 8 SCC 86) wherein it has been time and again held that non joining of independent witness is not a ground to reject the prosecution story if it otherwise inspires confidence.
21. Accordingly, in view of my above discussion, both accused persons are held guilty u/s 379/34 IPC.
22. I order accordingly.
FIR No. 261/98 12/13
23. Copy of the judgment be given to the accused persons free of cost.
24. Let they be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao) Court on01.07.2011 MM (South)/Delhi. FIR No. 261/98 13/13 In Re: STATE VERSUS SHIV DHAN ETC. F.I.R. No: 261/98 U/s 379/411/34 IPC P.S. Lodhi Colony 01.07.2011. Pr: Ld. APP for State.
Both accused present on bail with their counsel. Accused Shiv Kumar is already deceased.
Accused persons have been examined u/s 313 Cr.P.C. Final arguments heard.
Vide my separate judgment, accused persons have been held guilty for offence u/s 379/34 IPC.
Now they be heard on the point of sentence.
(Gaurav Rao) MM01 (SD)/N. Delhi 01.07.2011 FIR No. 261/98 14/13 IN THE COURT OF GAURAV RAO:
METROPOLITAN MAGISTRATE: SOUTH: DELHI In Re: STATE VERSUS SHIV DHAN ETC.
F.I.R. No: 261/98 U/s 379/411/34 IPC P.S. Lodhi Colony ORDER ON SENTENCE 01.07.2011 Present: Ld. APP for the State.
Convict Shiv Dhan and Vinay Kumar are present along with counsel.
Vide judgment announced today accused persons were convicted u/s 379/34 IPC.
It is prayed by the accused persons that they be heard on the point of sentence today itself.
The learned defence counsel has submitted that convict persons have been facing trial for the last more than 13 years and the same itself has been enough punishment for them. It was submitted that they are extremely poor persons, have a large family to look after including FIR No. 261/98 15/13 small children and they are not involved in any criminal activity. It is further submitted accused persons be given benefit of section 428 Cr.P.C.
Per contra, learned APP has very vehemently argued that the act of the accused persons are unpardonable. It was submitted that they deserve no leniency.
After giving my thoughtful consideration to the submissions made at bar I am of the considered opinion that taking into account the overall facts and circumstances of the case and the fact that
1. The matter is 13 years old,
2. The accused persons have clean antecedents/are not involved in any other criminal activity,
3. Accused Shiv Dhan has three small children to look after and accused Vinay has two small children to take care of and they are the sole bread earner in their respective family,
4. Both of them are extremely poor as is evident from their appearance and they earn their livelihood by working as daily wages/Rickshaw pullers
5. And two give them one chance to reform themselves.
It shall meet the ends of justice if accused/convicts are FIR No. 261/98 16/13 sentenced to period already undergone (benefit of section 428 Cr.P.C. be given to the accused persons) along with fine of Rs.100/ each.
I order accordingly.
Fine paid.
A copy of this order be given to the convicts free of cost. File be consigned to Record Room.
Announced in the open court (Gaurav Rao)
on 01.07.2011 MM(SD): Delhi
FIR No. 261/98 17/13