Delhi District Court
State vs . Satish Kumar & Anr. on 29 November, 2013
State Vs. Satish Kumar & Anr.
FIR No. 56/08
PS PAP
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. 56/08
PS Palam Airport
U/S : 379/411/34 IPC
State V/S Satish Kumar & Anr.
C/No. 23/02
U.ID No. 02405R0400022010
Date of Institution: 30.11.2010
Name of the Complainant SI Atma Singh, PIS No.
16950113
Name and address of accused (1) Satish Kumar s/o Sh. Yad
Ram r/o L51, BCD Railway
Colony, Bewari, Haryana.
(2) Rajnish Kumar s/o Sh.
Pawan Kumar r/o Village
Nanhera ASA, Post Chandena
Kili, Teh. Devband, Dist.
Saharanpur, U.P.
Charge framed against accused U/S 411/34 IPC
Plea of accused pleaded not guilty
Final Order Convicted
Date of reserve for orders 26.11.2013
Date for announcing the orders 29.11.2013
C/No.23/02 Page No. 1
U.ID No. 02405R0400022010
State Vs. Satish Kumar & Anr.
FIR No. 56/08
PS PAP
The brief facts and pre trial procedure
1.Charge U/S 23.11.2008 at Palam Domestic Airport wihtin the jurisdiction of PS Domestic Airport both accused persons were found in possession of one ladies purse containing one digital camera, one wrist watch, 6 ATM and debit cards with few cosmetic items which both the accused persons in furtherance of their common intention retained dishonestly knowing or having reason to believe the same to be stolen property and thereby they committed offence u/s 411/34 IPC to which they pleaded not guilty and claimed trial.
Trial
2. To prove the charges, prosecution cited 10 witnesses in the list of witnesses and out of them 8 witnesses could be examined. PE stood closed on 08.11.2013. Thereafter, statement of accused persons U/S 313 CrPC was recorded in which accused persons pleaded their innocence. No defence evidence was led by accused.
3. PW1 Ct. Girdhari Lal deposed that on 03.12.2008 he had joined the investigation with IO SI Atma Singh and he along with IO and Ct. Brahmanand went to Dwarka Court in room no. 10 there IO took one day PC remand of both accused persons. There from both accused persons were taken to DDU Hospital in the custody of himself and Ct. Brahamand. After the medical examination of both accused persons, they were taken to PS. There IO investigated from them and disclosure statement of accused Satish Kumar and Rajnish were recorded vide Ex.PW1/A and Ex. PW1/B. ON the basis of their disclosure statement both accused were taken to 1 B Terminal C/No.23/02 Page No. 2 U.ID No. 02405R0400022010 State Vs. Satish Kumar & Anr.
FIR No. 56/08PS PAP in SHA area and both the accused pointed out as to how they had committed theft of alleged bag. At that time accused persons also pointed out Xray machine BMA (Baggage Management Area). Thereafter both accused persons voluntarily lead them to bathroom situated at first floor and pointed out a place where they had hidden the stolen bag. IO prepared the pointing out memos at the instance of the accused Satish Kumar and Rajnish Kumar vide memos Ex. PW1/C and Ex. PW1/D. There IO also prepared site plan Ex. PW1/E. IO recorded his statement. PW1 correctly identified both accused persons.
4. PW2 HC Brahamand deposed that on 03.12.2008 he had joined the investigation with IO SI Atma Singh and he along with IO and Ct. Girdhari Lal went to Dwarka Court in room no. 10 there IO took one day PC remand of both accused persons. There from both accused persons were taken to DDU Hospital in the custody of himself and Ct. Brahamand. After the medical examination of both accused persons, they were taken to PS. There IO investigated from them and disclosure statement of accused Satish Kumar and Rajnish were recorded vide Ex.PW1/A and Ex. PW1/B. ON the basis of their disclosure statement both accused were taken to 1 B Terminal in SHA area and both the accused pointed out as to how they had committed theft of alleged bag. At that time accused persons also pointed out Xray machine BMA (Baggage Management Area). Thereafter both accused persons voluntarily lead them to bathroom situated at first floor and pointed out a place where they had hidden the stolen bag. IO prepared the pointing out memos at the instance of the accused Satish Kumar and Rajnish Kumar vide memos Ex. PW1/C and Ex. PW1/D. There IO also prepared site plan Ex. PW1/E. IO recorded his statement. PW1 correctly identified both accused persons.
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FIR No. 56/08PS PAP
5. PW3 HC Ram Prakash deposed that he was the Duty Officer at the relevant time who proved the FIR as Ex. PW3/A and he also made his endorsement Ex. PW3/B on the rukka.
6. PW4 Umesh Gupta deposed that in the year 2008 he was working as Assist. Manager in the Lion Man Power Solution Pvt. Ltd. and the said company was engaged him supplying man power to Jet Airways. The man power being supplied to Jet Airways used to work as loader. In the last week of November, 2008 the accused Satish Kumar and Rajnish Kumar were employee of their company. Both accused persons had been posted in the loader services in Jet Airways. On 23.11.2008 he received a phone call from Securities of Jet Airways regarding the theft of ladies purse being committed by employees of his company. He also inquired from those persons who were engaged in loader services at Jet Airways. During the inquiry both accused persons admitted their guilt and admitted in his presence that they had committed the theft of a ladies purse. IO recorded his statement. PW4 correctly identified both accused persons.
7. PW5 Ct. Chander Shekhar deposed that on 23.11.2008 he along with SI Atma Singh were present at Departure Hall, 1 B Terminal and at about 08.30 PM they noticed that two persons were standing adjacent to parking wall in front of 1 B terminal in suspicious condition. At that time accused persons were carrying one ladies purse in their hand. On seeing this they inquired from those persons about the ladies purse. The names of the accused persons were revealed as Satish Kumar and Rajnish Kumar. PW5 correctly identified both accused persons and case property Ex. P1 (colly).
8. PW6 Ms. Shradha Sharma deposed that on 22.11.2008 she had taken the flight of Jet Airways from Delhi to Bombay and while she was present in the arrival terminal in order to take her bag and when the bag was coming on C/No.23/02 Page No. 4 U.ID No. 02405R0400022010 State Vs. Satish Kumar & Anr.
FIR No. 56/08PS PAP bagbelt she found that the lock of the bag was missing and the seal was also not there and when she checked out her bag she found that her camera, mobile phone, her ring, cash of Rs. 1.5 lakhs in the purse containing in that bag was missing along with purse which she put in the bag while checking and she gave written complaint Ex.PW6/A to the police. Thereafter later on she came to know by police that her articles had been recovered i.e her purse in which money and other articles were kept i.e her camera, debit cards, ladies purse were recovered. No cash was recovered. The same were released by her from police on superdari vide superdarinama Ex. PW6/B. PW6 correctly identified the case property i.e ladies purse, wrist watch, digital camera, ATM card, cosmetic items as Ex. P1 (colly).
9. PW7 Retd. SI Krishna Dhondiran Jadhav deposed that on 22.11.2008 at about 03.50 PM complainant Shardha Sharma reached at PS Mumbai Airport and gave information regarding theft of articles from her registered bag. Her statement was recorded by him and registered the FIR no. 62/08 PS Mumbai Airport Ex. PW6/A.
10. PW 8 Inspector Atma Singh deposed that on 23.11.2008 at around 08.30 PM he along with Ct. Chander Shekhar were present in front of Departure Hall Terminal 1 B of Domestic Airpot. Two boys whose names later on were revealed as Satish Kumar and Rajnish Kumar were found in suspicious condition. Accused Satish Kumar was having one lady purse in his hand. He with the help of Ct. Chander Shekhar stopped them and inquired from them. On inquiry they could not give any satisfactory answer about the ladies purse and they were dillydallying. He took the ladies purse in possession and the same was checked which was found containing one camera of NIKON, one wrist watch, credit cardcumdebit card, cosmetic items, one packet of CDs, photographs and one key which were seized u/s C/No.23/02 Page No. 5 U.ID No. 02405R0400022010 State Vs. Satish Kumar & Anr.
FIR No. 56/08PS PAP 102 Cr.P.C vide seizure memo Ex. PW8/A. Both the persons namely Satish and Rajnish were arrested vide arrest memos Ex. PW5/D1 and Ex. PW5/D2 and they were personally searched vide memos Ex. PW5/D3 and Ex. PW5/D4. Both accused persons were taken to PS Domestic Airport and he prepared the kalandra 103 DP Act Ex. PW8/B vide DD no. 37 Ex. PW8/C. Both accused persons were produced before the court and they were sent to one day judicial custody by the Duty Magistrate. On 25.11.2008 both accused persons were produced before the court of Ld. ACMM Sh. R.K. Goel and Ld. ACMM directed to register a case against the accused persons vide order Mark X1. He prepared a tehrir Ex. PW8/D and got the present case registered against the accused persons. Accused persons were sent to the JC. On 03.12.2008 both accused persons were taken into one day PC remand and they were interrogated and he recorded their disclosure statement Ex. PW1/A and Ex. PW1/B. Both accused persons also pointed out the place of theft and the places where they had kept the case property after stealing the same at the Domestic Airport vide pointing out memo Ex. PW1/C and Ex. PW1/D. He prepared the site plan Ex. PW1/E. Cash could not be recovered. During investigation he examined the complainant Shradha Sharma and recorded her statement. He collected the documents relating the employment of the accused persons Ex. PW8/E. He also collected the menifest of flight taken by the complainant on 22.11.2008 Ex. PW8/F. One FIR no. 62/08, u/s 379 IPC was got registered at the Airport police station Mumbai and he received original copy of the same Ex. PW3/A through post which was translated into Hindi by HC R.M. Patil of CISF. True translation of the FIR no. 62/08 is Ex. PW8/G. He recorded the statement of witnesses during investigation. After the completion of the investigation, he prepared the challan and filed in the Hon'ble court. PW8 correctly identified both C/No.23/02 Page No. 6 U.ID No. 02405R0400022010 State Vs. Satish Kumar & Anr.
FIR No. 56/08PS PAP accused persons.
Statement of accused and defence
11. 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
12. It is submitted by Ld. Counsel for the accused persons that there is no independent witness of the recovery which is shown to be effected from both accused persons by the police. It is further submitted by Ld. Counsel for the accused persons that despite Airport is a busy place no efforts were made by the police to make witness to the alleged recovery which is shown to be effected from the accused persons. It is submitted by Ld. Counsel for the accused persons that the deposition of the complainant herein is material wherein she stated that she did not see the offence being committed through her own eyes and neither she had any occasion to see the offence being committed in her presence. It is further submitted by Ld. Counsel for the accused persons that IO has not placed on record any document which shows that both accused persons were performing their duties on the day of offence and on xray machine where the ladies purse which is a case property in this case is shown to have been stolen while it was undergoing on C/No.23/02 Page No. 7 U.ID No. 02405R0400022010 State Vs. Satish Kumar & Anr.
FIR No. 56/08PS PAP routine checking through Xray machine. It is further submitted by Ld. Counsel for the accused persons that both accused persons are contractual employees at Airport and they have been implicated in this case by the contractor as their two months salary was not paid in connivance with the police. Ld. Counsel for the accused persons has pointed out towards several flaws in the prosecution story and sought acquittal of both accused persons.
13. On the other hand Ld. APP for the State vehemently opposed the arguments raised by Ld. Counsel for the accused persons and he rebutted the argument as cited by defence and submitted that there is an ample evidence on record which shows the complicity of the accused persons in the crime. It is further submitted that the testimony of recovery witnesses is unshaken and firm and the fact of recovery and other evidence on record has emboldened the case of the prosecution. It is further submitted by Ld. APP for the State that there is enough evidence on record to bring home the guilt of the accused persons.
14. 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 persons that there is no independent witness of the recovery which is shown to be effected from both accused persons, it is observed that although airport is a busy place but most of the travelling passengers generally are not willing to become witness. In these circumstances only the police official persons become witness of the proceedings and the prosecution case cannot be disbelieved entirely for the fact that no independent witness to the recovery has been made by the police. Also there is no such law which bars any police official becoming witness to any proceedings.
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FIR No. 56/08PS PAP
15. With respect to another contention that the complainant did not see the offence being committed through her own eyes, to this argument it is observed that in airport while a passenger checkes in he/she has to apart away with his/her belonging while on security check and it generally so happens that passenger loose an eye on his/her belongings and further in this case both accused persons were charged u/s 411/34 IPC and not for offence u/s 379 IPC where the requirement of a person seeing offence committing is necessary.
16. With respect to another contention of Ld. Defence counsel that IO did not place any document pertaining to the presence of the accused persons on the place of occurrence of offence like his duty register, the same is a trivial investigative lapse which is not so germane which could uproot the prosecution case in totality when the presence of the accused persons is proved on the spot by other evidence.
17. With respect to another contention of Ld. Counsel for the accused persons that both accused persons have been victimized by their contractor owing to the salary dispute, to this defence has not produced any evidence to support their contention.
18. Perusal of the testimony of PW6 reveals that she while checking asked the loader of the airways company that her small bag is containing camera, mobile phone, her ring, cash amounting to Rs. 1,50,000/ in the purse and whether she can put the same in the big bag on which the loader clarified that she can put the same in the big bag as it would be totally safe. In her cross examination she stated that few people with accused persons were present at the time of checking of her registered bag. She further stated that accused persons assured her that it will be safe if she hand over over the bag to them. From this relevant portion of the testimony of PW6 it can be C/No.23/02 Page No. 9 U.ID No. 02405R0400022010 State Vs. Satish Kumar & Anr.
FIR No. 56/08PS PAP inferred that accused persons had occasion to notice what the purse of the complainant is carrying and also an opportunity to steal the bag of the complainant. Accused persons were duly identified by the complainant. PW4 Umesh Gupta also identified the accused persons and stated that both accused persons were posted in loader service in Jet Airways on the day of incident. He further stated that on the day of incident he was supervising the work of accused persons and also having the attendance register which is maintained in the office. In this case the testimony of PW5 Ct. Chander Shekhar is reliable wherein he stated that on 23.11.2008 he saw both accused persons were carrying ladies purse in their hands and he inquired from him about the same out of suspicion at Terminal 1 B at Airport. PW8 Inspector Atma Singh by the whom the investigation was carried out who was the IO in this case identified both accused persons and he also stated in his deposition that he found both accused persons in suspicious condition having one lady purse in their hands and on his asking no satisfactory reply was given by the accused persons and the lady purse was containing one camera of NIKON, one wrist watch, credit cardcumdebit card, cosmetic items, one packet of CDs photographs and one key. PW8 also stated that he arrested the accused persons and produced before the Magistrate. From the foregoing discussion it becomes amply clear that accused persons had an opportunity and occasion to commit the crime as both accused persons were present while the passengers gets access to airport through a designated place where he has to part away with his/her belongings as they need to be Xray machine cleared where the complainant Shradha Sharma apprised both accused persons of having valuables in her purse to which both accused persons assured her that the same will be cleared safety and thereafter the whole bag got missing and same was noticed by PW5 while both accused C/No.23/02 Page No. 10 U.ID No. 02405R0400022010 State Vs. Satish Kumar & Anr.
FIR No. 56/08PS PAP persons were roaming in Terminal 1 B of the Airport and it contained the same valuables. The testimony of the recovery witnesses is unshaken and accused persons were duly identified by the complainant herself in court as well as other witnesses.
19. With regard to offence u/s 411 IPC it is on record that accused persons were in possession of stolen case property which was duly identified by the complainant. The same fact leads to the conclusion that accused persons were in possession of stolen articles. Having considered all the facts and circumstances of this case, the recovery of the stolen articles 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 persons 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 at the airport and it is also in the evidence that property is 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
20. In the light of the aforesaid facts, this court is of the considered view that accused persons were having knowledge and had reasons that property was stolen and same were recovered from their possession and having all C/No.23/02 Page No. 11 U.ID No. 02405R0400022010 State Vs. Satish Kumar & Anr.
FIR No. 56/08PS PAP the deposition of recovery witnesses firm and unshaken give rise the conclusion towards the guilt of the accused persons. Further accused persons had an opportunity and occasion to commit this crime. Nothing favourable could be brought by the counsel for the accused during the cross examination of the witnesses. Prosecution has firmly established its case against the accused persons beyond the shadows of doubt. In view of the aforesaid, this court is of the view that both accused persons had committed the offence u/s 411/34 IPC and both accused persons are 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 29th day of November 2013 MM 01: Dwarka : Delhi
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U.ID No. 02405R0400022010