Delhi District Court
State vs . Anwar @ Karamat on 7 September, 2017
SC/44367/2015
State Vs. Anwar @ Karamat
IN THE COURT OF SHRI DEEPAK JAGOTRA,
DISTRICT & SESSIONS JUDGE, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
SC/44367/2015
State Versus Anwar @ Karamat
S/o Kalam Sheikh
R/o House No.G4, New Pipe Line,
Rahul Garden, Behta Hazipur, Loni,
Ghaziabad, UP
FIR No.10/13
PS Shastri Park Metro
under Section 457/380 IPC
or in alternative under Section 411/413 IPC
Date of institution of case : 03032014
Date of reserving the case for Judgement : 30082017
Date of passing of Judgment : 05092017
JUDGMENT
1. This is a case filed on behalf of State whereby prosecution is seeking conviction of accused Anwar @ Karamat S/o Kalam Sheikh, who had allegedly committed theft of Rs.42,000/ by breaking the shutter of Bata Showroom, Metro Station, Dilshad Garden, Delhi FIR No.10/13 PS Shastri Park Metro Page No. 1 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat for the offence punishable under Section 457/380 of the Indian Penal Code or in alternative under Section 411/413 of the Indian Penal Code.
2. I have heard both the sides and meticulously gone through the record of the case.
3. Learned Chief Public Prosecutor for the State has submitted that prosecution has successfully proved its case beyond reasonable doubt against the accused and further prays that accused may be convicted for the offences charged against him.
4. On the other hand, it has been submitted on behalf of the accused that he has been falsely implicated in this case and the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused and further prays for the acquittal of the accused.
5. The facts of the case in concise format are that on the intervening night of 20th / 21st February, 2013, accused Anwar @ Karamat had tresspassed into the Bata Showroom, Metro Station, FIR No.10/13 PS Shastri Park Metro Page No. 2 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat Dilshad Garden, Delhi in order to commit theft. He committed theft of Rs.42,000/ from the said showroom. On 23022013, he was found in possession of the part of the stolen amount of Rs.20,000/ which was recovered from him. Earlier, he was found habitually receiving or dealing in stolen property. He was previously involved in theft cases like FIR No.541/99 PS Model Town, FIR No.132/03 PS Chandni Chowk, FIR No.63/01 PS Kotwali and FIR No.70/10 PS Sadar Bazar.
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
8. The present case has been committed for trial and the Charge sheet was received by the Court on 03032014. Charge was framed against the accused on 03032014 for the offence punishable under Section 457/380 or in alternative under Section 411/413 of the Indian Penal Code. The accused had pleaded not guilty and claimed FIR No.10/13 PS Shastri Park Metro Page No. 3 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat trial for the offences charged against him.
9. In order to prove its case, the prosecution has examined as many as 9 witnesses.
10. Statement under Section 313 Cr.P.C. of the accused Anwar @ Karamat was recorded on 04082017.
11. In his defence, no witness has been examined by the accused.
ANALYSIS OF THE EVIDENCE LED ON BEHALF OF THE PROSECUTION TO PROVE ITS CASE OCCULAR EVIDENCE
12. In order to establish its case, prosecution has examined complainant Arun Kumar Sharma as PW1, who is the Manager of Bata Showroom, Metro Station, Dilshad Garden, Delhi. In his testimony before the Court, PW1 has clearly stated that on 21022013 at around 10.30 am, when he reached his showroom and found shutter of the main entry 10 to 12 inches lifted from its middle point. The locks from both the sides were found intact. He further stated that he FIR No.10/13 PS Shastri Park Metro Page No. 4 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat opened the locks and opened the shutter and entered inside the showroom and found cash drawer in open condition. He found cash amount missing from the drawer. He further stated that on previous day while closing the showroom at around 9.30 pm, he himself counted amount of Rs.42,000/ and left the said amount in the drawer. He also found 7080 socks packets missing from the side rack. He then made a call at 100 number from his mobile no.9582113772. Two police officials arrived at the spot, who inspected the spot and recorded his statement Ex.PW1/A bearing his signatures at point A. Some photographs were also taken and same were identified as X1,X2,X3 as those of drawer and X4,X5 and X6 as those of shutter of the showroom. Site plan was also prepared which is Mark X1.
13. He further stated that later on, upon audit and physical inspection of the stock, it was found that 35 pair of footwear and 89 packets of socks having total value of Rs.40,830/ were also missing.
14. PW1 further stated that on 21072013, police came to their showroom again and conducted inquiry and he provided further FIR No.10/13 PS Shastri Park Metro Page No. 5 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat information that stolen amount consisted of two packets of 40 notes of Rs.500/ and these packets were affixed with paper slip bearing his signatures and seal of Bata Shoe Store, Dilshad Garden, Delhi95 and further the amount of Rs.2,000/ was in the form of small currency notes and coins. He further stated that currency notes used to be kept in the form of packets with stamps and signatures and these were to be collected by CMS Services on behalf of Bata Company which were to be deposited with HDFC Bank and CMS used to collect the amount almost everyday at 11 am. Police recorded his supplementary statement in which he also disclosed the details of 35 pairs of footwear.
15. PW1 further stated that prior to that inquiry of 2107 2013, he had received the call from the police that police had recovered a sum of Rs.20,000/ and that amount of Rs.20,000/ was released to him and when he received Rs.20,000/, it was in the form of packet bearing a paper slip with his signatures and stamp of their showroom on that paper slip.
FIR No.10/13 PS Shastri Park Metro Page No. 6 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat
16. In the cross examination, he had stated that he had been working in the Bata Shoe Company for the last six years and working at the Dilshad Garden Metro Station Branch for the last two years. He further stated that he used to maintain their Sale Purchase Record daily and used to send report to their Head Office at Gurgaon. He further stated that on the intervening night of 20 th / 21st February, 2013, the keys were with employee Afzal and when he reached the showroom at about 10.30 am, two other employees namely Anil and Afzal were present there.
17. No material cross examination of this witness has been carried out on behalf of the accused to elicit any further information to demolish or discredit this witness.
RECOVERY OF CASE PROPERTY
18. PW2 ASI Raj Kumar has stated that on 23022013, he along with Ct. Sunil, Rajneesh, Umender and Ravinder started from the police station in their official vehicle and reached Chandni Chowk area where they met secret informer who told them that such kind of FIR No.10/13 PS Shastri Park Metro Page No. 7 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat thefts were committed by Saddam and Anwar and he can help them to catch those culprits. As suggested by the secret informer, the police party reached Metro Station M.S. Park where secret informer identified the culprit and pointed out towards Anwar. The police party captured accused Anwar, who was interrogated and searched. He further stated that he recovered a bundle of 40 notes of Rs.500/ with a paper slip having stamp of Bata Shoe Store, Dilshad Garden with signatures. He further stated that he found the currency notes bundle concealed in the socks which the accused was wearing on the left leg. He further stated that the bundle of notes was seized vide seizure memo Ex.PW2/A. He further stated that in his disclosure statement which was recorded as Ex.PW2/D, accused Anwar had disclosed that rod which was used in the commission of offence has been concealed by him in a garbage near a pillar of MS Park metro. The accused then took them to a pillar at MS Park metro where there was a garbage heap from where accused took out that rod which was around 2 feet plus long. The rod was seized vide seizure memo Ex.PW2/E. FIR No.10/13 PS Shastri Park Metro Page No. 8 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat
19. PW2 ASI Raj Kumar had identified paper slip Ex.P1 which was there on the currency notes and currency notes Mark Y1 to Mark Y40.
20. In the cross examination, it is elicited that on search of accused Anwar by him, he took out a pocket purse from his pant pocket and Rs.20,000/ were found concealed in his socks. The said currency notes were concealed in the bottom of the socks. The socks were of light grey colour which the accused was wearing under leather kind of shoe. The witness could not recall if the paper slip was found affixed by any rubber band or by stapler pin.
21. In the cross examination, the witness has identified the iron rod Ex.PX.
22. PW4 Ct. Sunil, who was with PW2 ASI Raj Kumar in the police party has supported and corroborated the case of the prosecution as far as recovery of case property is concerned. He has stated that entire team along with informer reached near Mansarovar FIR No.10/13 PS Shastri Park Metro Page No. 9 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat Metro Station and informer spotted accused Anwar near metro station pillar and the police party apprehended accused Anwar. Thereafter, ASI Raj Kumar conducted search of accused Anwar and it was found that 40 notes of Rs.500/ were concealed in the socks of the left foot of the accused. A paper slip was found affixed on that packet of currency notes with the help of rubber band and that paper slip was bearing seal of Bata Shoe Store, Dilshad Garden, Delhi85. He further stated that thereafter, accused took them to the spot near a metro pillar where a heap of garbage was lying and accused pointed towards a particular spot from where an iron rod was taken out and was seized vide seizure memo Ex.PW2/E. The witness has identified the paper slip Ex.P1, the currency notes Mark Y1 to Mark Y40 and iron rod Ex.P2.
23. In the cross examination, it was elicited that they reached the place of recovery of iron rod at about 8.05 pm. He further stated that the garbage was lying in an open place at a distance of about two steps from the metro pillar. He could not tell the number of metro FIR No.10/13 PS Shastri Park Metro Page No. 10 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat pillar from where the recovery of iron rod and currency notes were effected. The height of garbage was about one and half feet and the garbage was lying in the length of about two feet and some part of the iron rod was visible.
IDENTIFICATION OF ACCUSED
24. PW2 ASI Raj Kumar and PW4 Ct. Sunil both have clearly identified the accused Anwar @ Karamat present in Court to be the same accused from whom recovery of 40 notes of Rs.500/ denomination Mark Y1 to Mark Y40 along with paper slip Ex.P1 bearing stamp of Bata Store, Dilshad Garden was effected. Besides that iron rod Ex.PX was also recovered at the instance of accused.
25. Therefore, as far as identity of accused is concerned, PW2 and PW4 have unambiguously and unequivocally identified accused Anwar @ Karamat to be the same person from whom the recovery of case property was effected.
26. Nothing has been asked in the cross examination to discredit the testimony of material prosecution witnesses made in this FIR No.10/13 PS Shastri Park Metro Page No. 11 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat regard.
DEPOSITION OF OTHER FORMAL PROSECUTION WITNESSES
27. Besides these witnesses, prosecution has also examined other formal witnesses to prove as follows;
S.No. Name of witness To prove
1. PW3 Ravi Kumar Verma Photographer proved photographs of the Bata
Showroom Ex.PW3/1 to Ex.PW3/8
2. PW5 Ct. Pramod FIR was registered through him
3. PW6 HC Manju Tomar Proved DD entry no.9A Ex.PW6/A
Proved FIR Ex.PW6/B
4. PW7 SI Madan Gautam Proved conviction report of accused Ex.PW7/A
5. PW8 ASI Rajender Singh MHCM deposited case property and proved
entry at Serial No.177/13 in Register No.19 as Ex.PW8/A CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE
28. The prosecution case was initiated on the complaint of PW1 Arun Kumar Sharma, who had informed the police that on 21 022013 at around 10.30 am when he reached in his Bata Showroom under Metro Station, Dilshad Garden, he found that shutter of the main gate was lifted a bit from the middle portion, however, the locks of the gate were intact. On opening, he found that the cash amount of FIR No.10/13 PS Shastri Park Metro Page No. 12 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat Rs.42,000/ which he had kept the previous evening was missing. He also found that certain socks were also missing. He made a call to the police. Police arrived at spot and recorded his statement Ex.PW1/A.
29. The police investigated the case and on 23022013, police team comprising of ASI Raj Kumar, Ct. Sunil, Rajneesh, Umender and Ravinder reached the Chandni Chowk area where they were supposed to meet the secret informer. Secret informer had informed that he can help them to catch the culprit, who had committed the crime by the name of Saddam and Anwar. On pointing out of the secret informer, the police party apprehended accused Anwar and from inside the socks of left foot, they had got recovered 40 notes of Rs.500/ denomination bearing a paper slip on which the seal of Bata Shoe Store, Dilshad Garden, Delhi85 is affixed and also bears a signature. The paper slip is Ex.P1 and the currency notes are Mark Y1 to Y40. The police had got recovered one iron rod at the instance of accused Anwar which was lying under the garbage near pillar of Mansarovar Park Metro which is Ex.PX.
FIR No.10/13 PS Shastri Park Metro Page No. 13 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat
30. The recovery from the accused is fully supported and corroborated by PW2 ASI Raj Kumar and PW4 Ct. Sunil.
31. As far as question of theft of currency notes by the accused Anwar is concerned, the only incriminating factor is that he had got recovered one iron rod from the garbage heap near the Mansarovar Park Metro. Apart from this, the prosecution has completely failed to bring on record any cogent evidence to hold him guilty. All important witness PW1 has not seen accused Anwar having committed theft of currency notes from the Bata Showroom at Dilshad Garden. There is not even a shred of evidence which could implicate accused Anwar of having committed the said theft.
32. Why accused Anwar cannot be held liable for the offence or theft for the simple reason that firstly, the shutter of the main gate was not found to be opened to the extent that any person can enter inside the showroom and secondly, locks were found to be intact and the keys of the shop were with Afzal, an employee of the showroom and no one has seen accused Anwar entering in the showroom at any FIR No.10/13 PS Shastri Park Metro Page No. 14 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat point in time. Defence can also be raised on behalf of accused that since no recovery was effected with regard to other stolen articles, i.e. 35 pair of footwear and 89 packets of socks from the shop, the same cannot be fastened on the accused. Thus, the prosecution has completely failed to prove its case within the ambit of Section 457/380 of the Indian Penal Code.
33. This brings us to the second limb of the case that accused Anwar is the receiver of the stolen property.
34. At this stage, it would be appropriate to look at Section 114(a) of the Evidence Act which runs as follows;
"Court may presume existence of certain facts The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."
35. In a case titled as Satnarain Sao Vs. The State of Bihar, reported in AIR 1972 SC 1561, the Hon'ble Supreme Court of India has been pleased to observe as under;
FIR No.10/13 PS Shastri Park Metro Page No. 15 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat "Where the accused is found in possession of stolen property and he is unable to account for such possession, legal presumption under Section 114(a) of Evidence Act, that the accused is either the thief, or receiver of stolen property knowing it to be stolen, can be drawn, and the accused can be convicted under Section 411 of the Indian Penal Code."
36. In the present case, the prosecution has been successfully able to prove that there was a theft of currency notes from the Bata Showroom at Dilshad Garden. Accused Anwar was apprehended by the police on 23022013 and he was found in possession of 40 notes of 500 denomination in the form of bundle bearing a slip showing the seal of Bata Show Store, Dilshad Garden with signatures Ex.P1.
37. PW1 Shri Arun Kumar Sharma, who is the Manager of the showroom unequivocally identifies the currency to be the same which was stolen from his showroom bearing the slip. Accused Anwar has been clearly identified by PW2 and PW4 to be the same person from whose possession the stolen currency notes were recovered.
FIR No.10/13 PS Shastri Park Metro Page No. 16 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat
38. As far as explanation from the side of the accused is concerned as to how he came in possession of those currency notes, the defence has stated in the form of suggestion that when the accused was apprehended, he had in his possession Rs.50,000/ in the form of packet of currency notes of Rs.500/ and further a sum of Rs.2,700/ in his pocket purse.
39. This suggestion however has been denied by PW2 and PW4 that the currency was planted on the accused in order to falsely implicate him. All that accused had to show as to how, he came in possession of the currency notes which he completely fails to discharge. The accused has completely failed to show the source of either Rs.20,000/ recovered from him or Rs.50,000/ which he has been stating in his defence. On both counts, the accused has completely failed to show and elaborate the source of money from where it has come into his possession. This leaves us with an irresistible presumption that he is the receiver of the stolen property within the ambit of Section 411 of the Indian Penal Code. No FIR No.10/13 PS Shastri Park Metro Page No. 17 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat plausible defence has been raised by the accused to make his defence believable.
40. As far as previous conviction in the similar case is concerned, PW7 SI Madan Gautam, Finger Print Expert, Finger Print Bureau, Kamla Market, Delhi has come in the witness box and has proved the conviction slip of accused Anwar @ Karamat @ Master S/o Kalam Sheikh, the detailed report of which is Ex.PW7/A.
41. From the Conviction Slip, it is evident that accused has been sentenced to a period already undergone for the offence punishable under Section 379/411 of the Indian Penal Code in case FIR No.463/01 PS Kotwali.
42. No cross examination has been carried out by the accused in this regard which shows that he has no defence to make on this aspect.
43. The accused has completely failed to rebut the presumption raised against him as receiver of stolen property by giving a clear account as to what exactly was the source of money FIR No.10/13 PS Shastri Park Metro Page No. 18 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat found in his possession.
44. PW9 ASI Ghanshyam, who is the IO of the case has joined the dots by stating before the Court that on receipt of DD No.9A dt.21022013, he along with Ct. Pramod went to the place of occurrence and met complainant Arun Sharma and recorded his statement Ex.PW1/A. He had carried out the formalities at the spot. He also recorded the supplementary statement of complainant. He also obtained the previous conviction record of the accused which is Ex.PW9/D and accused was found to be convicted in three cases under Section 411 of the Indian Penal Code. The challan was prepared and then filed in the Court.
45. In view of the foregoing reasons and discussion, the prosecution has successfully brought home the guilt of the accused beyond reasonable doubt.
CONCLUSION
46. Keeping in view the totality of the facts and circumstances of the case and the statements of all material prosecution witnesses, FIR No.10/13 PS Shastri Park Metro Page No. 19 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat who have duly supported and corroborated their testimonies, the only irresistible conclusion points out a guilt towards the accused Anwar @ Karamat.
47. In view of the entire conspectus of facts and circumstances of the matter, the prosecution has been successfully able to prove its case beyond reasonable doubt against the accused Anwar @ Karamat for the offence punishable under Section 411/413 of the Indian Penal Code.
48. The accused Anwar @ Karamat is hereby convicted for the offence punishable under Section 411/413 of the Indian Penal Code.
ANNOUNCED IN THE OPEN COURT ON 05th SEPTEMBER, 2017 (DEEPAK JAGOTRA) DISTRICT & SESSIONS JUDGE NORTH EAST DISTRICT KARKARDOOMA COURTS, DELHI FIR No.10/13 PS Shastri Park Metro Page No. 20 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat IN THE COURT OF SHRI DEEPAK JAGOTRA, DISTRICT & SESSIONS JUDGE, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI SC/44367/2015 State Versus Anwar @ Karamat S/o Kalam Sheikh R/o House No.G4, New Pipe Line, Rahul Garden, Behta Hazipur, Loni, Ghaziabad, UP FIR No.10/13 PS Shastri Park Metro under Section 411/413 IPC Date of institution of case : 03032014 Reserved for order on sentence : 07092017 Date of passing of order on sentence : 07092017 ORDER ON SENTENCE
1. I have heard learned counsel for the convict and learned Additional Public Prosecutor (Substitute) for the State on the point of sentence for the offence punishable under Section 411/413 of the Indian Penal Code.
2. Learned counsel for the convict prays for a lenient view FIR No.10/13 PS Shastri Park Metro Page No. 21 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat while awarding sentence to the convict.
3. On the other hand, learned Additional Public Prosecutor (Substitute) for the State vehemently opposes the prayer of learned counsel for the convict and prays for a stern punishment to the convict.
4. It is trite that while considering the matter on the point of sentence, the retribution, reformation and correction of the convict must be kept in mind. Every endeavour shall be made that once a person has committed certain offence, he may be allowed to correct himself and become productive and proactive citizen of the country. No doubt at times correcting oneself is the best way out. At the same time, as the human being has progressed, the crime has also progressed side by side. It also cast a burden on the Courts to have deterrent effect on the citizens, so that they may not deviate from the path of righteousness and choose a path which is not only detrimental to himself but his family as well. The illaction of the convict not only leaves an indelible scar on the victim's family but to some extent, he FIR No.10/13 PS Shastri Park Metro Page No. 22 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat also puts his own family into lot of trouble.
5. No universal fixed rule can be applied while sentencing a person for an offence. The entire conspectus of facts and circumstances shall be pressed into consideration while awarding the sentence.
6. In the present case, it is found out that convict is a habitual offender of receiving stolen property. Such persons are menace to the society and in a way, they help those people, who commit theft in different areas. Proper curb shall be put on the movement of such persons. The present convict is also one such person, who is dealing in stolen properties and his previous conviction record fortifies the fact that he is a habitual offender and thus, deserves appropriate punishment.
7. In view of the foregoing reasons and discussion, convict Anwar @ Karamat is sentenced Rigorous Imprisonment for a period of 1 year with fine of Rs.20,000/ (Twenty Thousand) and in default thereof, he shall undergo simple imprisonment for a further period of FIR No.10/13 PS Shastri Park Metro Page No. 23 / 20 U/s 457/380/411/413 IPC SC/44367/2015 State Vs. Anwar @ Karamat six months for the offence punishable under Section 411 of the Indian Penal Code. Convict is also sentenced Rigorous Imprisonment for a period of 3 years with fine of Rs.20,000/ (Twenty Thousand) and in default thereof, he shall undergo simple imprisonment for a further period of six months for the offence punishable under Section 413 of the Indian Penal Code. Both the sentences shall run concurrently.
8. Convict shall be entitled to benefit of Section 428 Cr.P.C., if applicable.
9. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 07th SEPTEMBER, 2017 (DEEPAK JAGOTRA) DISTRICT & SESSIONS JUDGE NORTH EAST DISTRICT KARKARDOOMA COURTS, DELHI FIR No.10/13 PS Shastri Park Metro Page No. 24 / 20 U/s 457/380/411/413 IPC