Delhi District Court
Sate vs . Raju & Ors. on 18 November, 2014
IN THE COURT OF SHRI DEEPAK WASON
ACMM (SOUTHWEST): DWARKA COURTS: NEW DELHI
Sate Vs. Raju & Ors.
FIR No. 416/03
U/s. 380/457/411/34 IPC
PS Dwarka
Date of Institution of case: 18/12/2003
Date of Judgment reserved: 18/11/2014
Date on which Judgment pronounced: 18/11/2014
JUDGMENT
Unique Id No. of Case : 02401R1012462003
Date of commission of offence : 20/10/2003
Name of complainant : Sh. Satish Aggarwal
S/o. Sh. Rameshwar Prasad
R/o. WZ25C, Palam Village,
New Delhi.
Name and address of accused : 1.Washid Seikh S/o Sherali Singh
R/o Vilalge Haziganj,
Post Office Amdahara, Murshidabad,
Kolkata.
2. Allaudin S/o. Sh. Nuru Sheikh
R/o Vilalge Haziganj,
Post Office Amdahara, Murshidabad,
Kolkata.
3. Abdul Salam
S/o Sh. Abdul Rashid
R/o D495, Gali No. 5,
Sangam Vihar, New Delhi.
4. Raju S/o Sh. Ramesh
(declared PO vide order
dated 11/01/2012)
Offence complained of : 380/457/411/34 IPC
FIR No. 416/03 PS Dwarka Pg No. 1/16
Plea of accused : Pleaded not guilty
Final order : Accused Washid Sheikh and Allaudin
are convicted for the offences
u/s 380/457/34 IPC.
Accused Abdul salam is convicted for
the offence u/s 411 IPC.
Date of order : 18/11/2014
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under: On 20/10/2003, a complaint was received at PS Dwarka by one Sh. Satish Aggarwal. It is stated in the complaint that complainant Satish Aggarwal is running a Parchoon Shop at Palam Extension and he has also taken a godown on a rent at H. No. 53, Harizan Basti, Palam to keep his articles at the said godown. It is further stated in the complaint that due to Diwali, he purchase large quantity of articles and kept it in the go down. It is further stated in the complaint that on 20/10/2003, he was informed by the owner of the godown and PCR police that a theft had been committed in his godown by breaking his shutter and one thief was caught red handed and he went to the godown and after taking he found that various articles were missing as mentioned in the complaint. On the basis of his complaint, present FIR was registered and during the investigation, all the accused persons were arrested.
2. After investigation, charge sheet was filed against the accused persons. The copies of charge sheet were supplied to the accused persons in compliance of Section 207 Cr.P.C. and vide order dated 17/03/2004 charge U/s. 380/411/457/34 IPC was framed against them on the allegations that in furtherance of common intention, all accused have committed house breaking by unlawfully entering in the godown No. 53, FIR No. 416/03 PS Dwarka Pg No. 2/16 Harizan Basti, Palam with intention to commit theft and committed theft of articles as mentioned in the complaint and accused Raju was apprehended at the spot and accused Washid, Abdul Salam and Allaudeen were apprehended in front of the godown situated near the place known as Lal Kuan, Gurgaon, Mehrauli Road when the stolen articles were being unloaded from TATA 407 bearing No. DL1V 1893 and tempo bearing No. DL 1LC 0229. In alternative, accused Washid Seikh and Abdul Salam and Allaudeen were also charged with for the offence u/s 411/34 IPC. All accused have pleaded not guilty and claimed trial.
3. It is also matter of record that during the trial, vide order dated 11/01/2012 accused Raju was declared PO.
4. It is also matter of record that during the trial, accused Allaudin and Washid Seikh have submitted that they have no objection if the TIP proceedings are exhibited and accordingly, their joint statement was recorded u/s 294 Cr. P. C and TIP proceedings of Washid Seikh was exhibited A1 and TIP proceedings of Alludeen was exhibited A2.
5. In support of its version, the prosecution has examined eight witnesses.
6. PW 1 is Sh. Satish Aggarwal, who is the complainant in the present case and whose testimony would be considered at relevant stage.
7. PW 2 is HC Banna Ram. He has deposed that on 20/10/2003, he was the duty officer from 8 Am to 4 Pm and on receipt of ruqa sent by SI Mahavir Singh through Ct. Ishwar Singh, he recorded present FIR bearing No. 416/03 and proved the factum vide Ex. PW2/A. FIR No. 416/03 PS Dwarka Pg No. 3/16
8. PW 3 is Sh. Jai Pal. He is has deposed that he is the registered owner of Tempo No. DL 1LC 0229. He has further deposed that the accused Abdul Salam (pointed out rightly in the court) came to his residence on 20/10/2003 in the morning hours for hiring of his tempo for an amount of Rs. 500/. He has further deposed that he alongwith accused Abdul Salam went to Mehrauli Badarpur Road at the Kabadi shop of loading some bags of wheat, rice etc., from another tempo and when the goods were being loaded in his tempo, police party came and informed him that the goods which were being loaded in his tempo from another tempo was stolen property. This witness was also cross examined by Ld. Addl. PP for the State, where he denied various suggestions given by Ld. Addl. PP for the State.
9. PW 4 is HC Nahar Singh. He has deposed that on 30/10/203, he was incharge of PCR van Zebra83. He has further deposed that during the course of petrolling duty at about 5 to 5:30 AM, they reached Harizon Basti, Palam Extension in front of H. No. 83 and found that 45 boys were loading the gunny bags in TATA 407, after opening the shutter of the godown. He has further deposed that after having suspicion on them, when they tried to enquire about the loading of the gunny bags containing eatable rice, channa, gudh etc., the driver of the aforesaid TATA 407 having the possession loaded gunny bags fled away from the spot and they apprehended one boy who revealed his name as Raju s/o Sh. Ramesh, who was loading the gunny bags from the godown in the aforesaid TATA 407 and owner of the godown was called there. He has further deposed that he gave message to control room regarding the abovesaid incident. He has further deposed that IO visited at the spot after sometime and he handed over the accused Raju to him. He has FIR No. 416/03 PS Dwarka Pg No. 4/16 further deposed that IO arrested the accused Raju vide memo Ex. PW1/H. This witness was not crossexamined by the accused persons.
10. PW 5 is HC Partap. He joined the investigation with the IO on dated 20/10/2013 and deposed about the investigation conducted by the IO.
11. PW 6 is HC Ishwar Singh. He has deposed that on 20/10/2003, on receipt of DD No. 11 A , he alongwith SI Mahavir Prasad reached at the spot and thereafter, PCR Van Z 83 was found and HC Nahar Singh was also present there alongwith already apprehended accused Raju. He has further deposed that thereafter, complainant Satish Aggarwal was called and he came at the spot. He has further deposed that thereafter, analyzing and counting the stolen articles, he gave written statement to the IO and thereafter, IO prepared the rukka and handed over the same to him for the registration of the FIR. He has further deposed that he went to the police station and got the case registered and thereafter came at the spot alongwith copy of FIR and original rukka and handed over the same to the IO and IO prepared the site plan, photographs of the spot were also clicked. He has further deposed that thereafter, accused Raju was arrested by the IO and thereafter, accused Raju led the police party constituting SI Mahavir Prasad, himself, Ct. Partap, Ct. Manoj and Ct. Abdul Aziz who were also taken from the police station at Lal Kuan, Mehrauli, Badar Pur Road at Abdul Salam Godown. He has further deposed that the complainant was also with them. He has further deposed that thereafter, the stolen articles of the complainant were recovered from one tempo which was stationed there and one more tempo was also stationed there and articles lying in the already loaded truck being shifted in the other truck when they raided the place. He has further deposed that he does FIR No. 416/03 PS Dwarka Pg No. 5/16 not remember the number of the tempo now since it is a old matter. He has further deposed that thereafter, the complainant identified his articles and after that they seized those articles. He has further deposed that IO prepared the seizure memo of the stolen articles alongwith the tempos, the serial numbers were also given on the bags recovered and total 93 bags were recovered. He has further deposed that thereafter, Abdul Salam was also found with two other persons whose names were found to be Allaudin and Washid Sheikh and they were also apprehended by them. He has further deposed that IO interrogated all accused and he recorded their disclosure statements. He has further deposed that thereafter, accused Alauddin, Washid Sheikh and Abdul Salam were arrested. He has further deposed that thereafter accused persons were brought to the spot in muffled face and site identification memo was prepared in respect of Alauddin, Washid Sheikh and Raju. He has further deposed that Satish Aggarwal also handed over the receipts of his articles which was also seized by IO. He has further deposed that thereafter, the case property and accused persons were brought to the police station and case property was deposited in the malkhana and accused persons were sent to lockup in muffled face and his statement was recorded by the IO. This witness was also not crossexamined by the accused persons.
12. PW7 is Insp. Mahavir Prasad. He is the investigation officer in the present case. He has deposed that on 20/10/2003, DD No. 11 A was assigned to him. He has further deposed that on receipt this DD, he alongwith Ct. Ishwar reached JJ Colony, H. No. 53, Sec. 7, Dwarka at about 6:30 AM. He has further deposed that when they reached the aforesaid place, HC Nahar Singh, PCR alongwith PCR staff was already present there and they had already apprehended one accused Raju (since PO). He has further deposed that there was a shop on the road side and the FIR No. 416/03 PS Dwarka Pg No. 6/16 shutter of that shop was found shrinked in its middle side and it was also found lifted at about 34 ft above from the ground. He has further deposed that PCR officials told them that theft has been committed in that godown and the thieves have uploaded the stolen goods in tempo and out of those one thief has been apprehended by them and the others succeeded in escaping. He has further deposed that then, he enquired from the owner of the premises as to who is the owner of those goods and he told them that the owner of the godown is Satish Aggarwal and he is also the owner of the goods which were lying in the godown. He has further deposed that Satish Aggarwal was telephoned and he was asked to come on the spot and he reached the spot within 10 minutes and checked the goods lying the godown. He has further deposed that after checking, he told that approximately 93 bags containing sugar, rice, juggery and other eatable articles had been stolen from his godown after breaking the shutter. He has further deposed that then he recorded his statement and prepared rukka and he got the present case FIR registered through Ct. Ishwar. He has further deposed that Ct. Ishwar came back at the spot after getting the present case FIR registered and handed over him a carbon copy of FIR and original tehrir. He has deposed that the spot was also photographed and he prepared the site plan at the instance of the complainant and also recorded the statement of HC Nahar Singh. He has further deposed that the thief namely Raju who was already apprehended by the PCR officials, was searched by him and he was arrested and his personal search memo. He has further deposed that accused Raju was interrogated and his disclosure statement was recorded and in pursuance to his disclosure statement, the raid was conducted at Badarpur, Abdul Salam Kabadi's Godown near Lal Kuan. He has further deposed that when they reached at this place, two tempos TATA 407 were standing outside the said Kabadi shop and the goods were being unloaded from FIR No. 416/03 PS Dwarka Pg No. 7/16 one tempo and the same goods were being loaded into the other tempo. He has further deposed that the accused Allaudin and Wasid Sheikh were doing unloading and loading (transferring the goods from one tempo to the other tempo). He has further deposed that he interrogated them and they told that they were transferring the goods as per the instruction of accused Abdul Salam, their employer. He has further deposed that the complainant identified his goods and then they seized those articles and both the tempos. He has further deposed that then he arrested the said accused persons and conducted their personal search. He has further deposed that he examined the owner of TATA 407 bearing last No. 0229 and he told that his tempo was hired by Abdul Salam for the purpose of transporting the goods and the other tempo in question was also belonging to accused Abdul Salam. He has further deposed that he interrogated all these three accused persons. He has further deposed that all these three accused persons were kept in muffled face, accused Allaudin and Washid Sheikh pointed out the place of theft and he also collected the bills of stolen articles from the complainant and were seized. He has further deposed that on 05/11/2003, Judicial TIP of the accused Allaudin and Wasid Sheikh was conducted and they refused to participate in the judicial TIP. He has further deposed that he examined the witnesses u/s 161 Cr. P. C and then the goods were released after retaining the sample. This witness was crossexamined by the accsued persons.
13. PW8 is Sh. Pohkar Mal. He has deposed that around 1011 years back, he let out one godown to Satish Aggarwal at Palam Extn. Harizan Basti. He has further deposed that Satish Aggarwal started storing Grocery/consumer items in said godown No. 53. He has further deposed that during winter, one night PCR came and asked him about the FIR No. 416/03 PS Dwarka Pg No. 8/16 owner of the said godown. He has further deposed that he saw that shutter of the said godown had been opened up with the help of a jack by some persons and one of the boy was already in apprehension of police official and the said accused is Raju. He has further deposed that he told the police officials that he has let the premises to Satish Aggarwal, who was informed about the theft in the godown.
14. It is matter of record that vide order dated 21/06/2014, PE was closed.
15. Subsequent to the recording of statement of witnesses, statement of accused persons were recorded under Section 313 Cr.P.C. and all the incriminating evidence coming on record was put to the accused persons, in which they have submitted that they have been falsely implicated in the present case. They have further submitted that they do not wish to lead any evidence. Thereafter, the matter was posted for final arguments.
16. I have heard the arguments advanced by Ld. Addl. PP for the State, Ld. Legal Aid Counsel and perused the record.
17. In the present case, the accused persons have been charged with for the offences under Section 380/411/457/34 IPC and to prove the case against the accused persons, the prosecution is required to prove all the ingredients of the abovesaid offences. The prosecution has to prove that accused Washid Sheikh, Allaudin and Abdul Salam in furtherance of their common intention committed theft in the godown of Satish Aggarwal, being used for keeping articles and for the purpose of safety, committed lurking house trespass by night and articles as alleged by the FIR No. 416/03 PS Dwarka Pg No. 9/16 prosecution were recovered from the possession of the accused persons.
18. The present case was registered on the basis of the statement given by the complainant. Now, coming to the testimony of PW 1 Sh. Satish Aggarwal, the complainant, who has deposed that he is running a Parchun Shop at Palam Extension and also taken a godown on rent to keep his articles and other items in the said godown. He has further deposed that the godown is in house No. 53, Harizan Basti, Palam Village. He has further deposed that on the eve of Depawali, he purchased large quantity of rice, gur and sugar and the said rice was kept in a bag of 25/35 kg and gur was in 40 kg and sugar was in 100 kg and the same were kept in the said godown. He has further deposed that on 20/10/2003, he was informed by the owner of the said godown, namely Pokhar and police on the PCR that a theft had been committed in his godown by breaking the shutter and one thief was also caught red handed. He has further deposed that he went to his godown and seen that a shutter was broken fromits middle and it was opened. He has further deposed that after checking, he found that sixteen bag of 100 kg each of monnet mark, sixteen bag of Doon Parmal Rice of 35 kg each and one katta of Noorjhan Basmati Rice and three bags of Avon Basmati Rice of 35 kg each, eighteen bag of 272 Premium Basmati Rice of 25 kg each and 30 bags of 272 Premium Basmati Tibar of 25 kg each and 7 bags of Indian Gate Basmati Mogra eice of 25 kg each and 7 bags containing gur were found stolen from his godown. He has further deposed that he was also told that the said stolen property were taken away in a tempo TATA 407 by the thief and the thief was caught red handed and revealed his name as Raju. He has further deposed that thereafter, he was taken to the PS alongwith police officials where on his statement was recorded and he had also gone alongwith the police namely Mahavir Parshad to a Kabadie shop at FIR No. 416/03 PS Dwarka Pg No. 10/16 Mehrauli, Badarpur Road. He has further deposed that however, he does not know the name of the Kabadi. He has also deposed that police had seized the said rice and goods from the Kabadi's shop. He has further deposed that he does not remember the number of the tempo TATA 407 from which the said items were found being unloaded, when he reached at the Kawari's shop. He has further deposed that the said items being unloaded by three persons, including the owner of the Kabadi's shop. He has further deposed that IO has also prepared the site plan at his instance and photographed the said godown. He has further deposed that the said godown was locked with two locks on each side, however, it was found intact and shutter was broken. He has further deposed that IO has also handed over the receipt of the said gur, sugar and rice that purchased from Apna Bazar and Aggarwal Traders and Durga Interprises. He has further deposed that thereafter, IO had also arrested the accused persons and thereafter, on the order of the court, he had taken his property after taking samples from each jute bag containing articles and the samples were put in plastic cans of ½ kg and total 93 plastic cans having serial no. were made and all of them were put in four separate jute bags and the same were sealed with the seal of MPY. He has identified the case property before the court. He has also identified the accused persons Washid Sheikh and Abdul Salam.
19. Perusal of his testimony shows that one Raju was caught red handed and was identified by him in the court. Perusal of his testimony further shows that his statement was recorded vide Ex. PW1/A and he had gone with the police at one Kabadi Shop, Mehrauli and police had seized the rice and goods (i.e. stolen property) from the Kabadi Shop vide memo Ex. PW1/B which bears his signatures. He also found one tempo there. Further, as per his testimony, the said items were being unloaded FIR No. 416/03 PS Dwarka Pg No. 11/16 by three persons including the owner of the kabadi shop. He has correctly identified the accused Washid Sheikh and Abdul Salam but he could not identify the third accused namely Allaudin. Perusal of Ex. PW1/B i.e. recovery memo shows that same was prepared on 20/10/2003 i.e. date of incident and also bears signature of the complainant. Perusal of Ex. PW1/H to Ex. PW1/K show that all accused were also arrested in his presence on the same day i.e. 20/10/2003. This witness was cross examined at length by the Ld. Defence counsel but Ld. Defence counsel could not extract anything from the mouth of this witness. This witness has correctly narrated the incident meticulously and I do not find any reason to disbelieve his statement as his evidence appears to be natural. This witness has totally supported the case of the prosecution and shown the involvement of all accused in the present case.
20. At this juncture, it would be relevant to discuss the testimonies of other witnesses who have corroborated the version of the complainant as well as supported the case of the prosecution. Perusal of testimony of PW3 shows that he is the registered owner of temp bearing No. DL 1LC 0229 which was given by him on hiring to accused Abdul Salam. He has specifically deposed that accused started loading some bag of wheat and rice from another tempo and when the goods being loaded in his tempo, police party came and told that another tempo was stolen property. However, he has not identified, the accused Washid and Allaudin in the court. His testimony shows that to some extent he narrated the incident regarding the loading/unloading of articles.
PW4 i.e. HC Nahar Singh has also deposed that he found 45 boys were loading the gunny bags in a TATA 407 and when he tried to enquire about the same, the driver of the said TATA 407 having the FIR No. 416/03 PS Dwarka Pg No. 12/16 possession of loaded bags fled away and one person was arrested who revealed his name as Raju. This witness was not crossexamined by the accused persons. His testimony has also supported the case of the prosecution.
PW5 is HC Partap, who has specifically deposed that on 20/10/2003, accused Raju led to the police party including complainant at Lal Kuan on Mehrauli, Badarpur road where two tempo were standing and accused Abdul, Allaudin and Washid were present and doing the work of loading of stolen articles in loading the articles in another tempo and complainant had identified the stolen articles. He has correctly identified the all accused persons present in the court. Perusal of his testimony shows that he has correctly identified the accused persons with the stolen property. This witness was also not crossexamined by the accused persons.
PW6 and PW7 have also supported the case of the prosecution. Perusal of testimony of PW7 i.e. Insp. Mahavir Prasad shows that disclosure statement of accused Raju was recorded and in pursuance of his disclosure statement, the raid was conducted and Abdul Salam, Kabadi's godown and when they reached there, they found two tempos and goods were being unloaded from one tempo and same goods were being loaded to another tempo and Allaudin and Washid Sheikh were doing loading and unloading. He has identified all the accused before the court. He has specifically deposed that complainant identified his goods there and seizure memo was prepared vide Ex. PW1/B. He has specifically deposed that disclosure statements were also recorded vide Ex. PW6/B, Ex. PW6/D and Ex. PW6/E. He has also deposed that he collected the bills of stolen articles from the complainant. Hence, this FIR No. 416/03 PS Dwarka Pg No. 13/16 witness has also supported the case of the prosecution and he has described the complete incident and investigation conducted by him.
21. Hence, all the witnesses are corroborating the story of the prosecution. Now, it has been proved that one accused Raju (since PO) was arrested at the spot and in pursuance of his disclosure statement, a raid was conducted at Badarpur i.e. Abdul Kabadi's godown on the same day i.e. 20/10/2003 and accused Abdul, Allaudin and Washid Seikh were arrested alongwith stolen property. Now, the question arises that whether court can draw the presumption that a person found in possession of stolen goods soon after the theft and who has not been able to account for his possession is the thief or whether he is the receiver of the goods knowing them to be stolen or in the present circumstances of the case, can be convicted for the offence under Section 380/457/34 IPC. At this juncture, it would be relevant to mention a judgment, titled as Ayodhya Singh, Vs. State of Rajasthan, AIR 1972 Supreme Court 2501.
According to illustration (a) of Section 114 of the Indian Evidence Act, a man who is in possession of stolen goods soon after the theft is either the theft or has received the goods knowing them to be stolen, unless he can account for his possession. It would, in our opinion, depend upon the facts and circumstances of each case whether the court should draw the presumption that a person found in possession of stolen goods soon after the theft and who has not been able to account for his possession is the thief or whether he is the receiver of the goods knowing them to be stolen. We may state at this stage that the appellant has not been able to account for his possession of the stolen articles and the explanation furnished by him is not at all worthy of credence. Looking to the facts and circumstances of the case, we are of the view that the courts below were justified in drawing the presumption that the appellant was guilty of the offence under Section 457 and 380 Indian Penal Code. The fact that the culprit entered the room on the third floor by opening the window and FIR No. 416/03 PS Dwarka Pg No. 14/16 thereafter broke open a large number of boxes and almirahs and removed huge quantity of gold and silver ware shows that it was not the work of a single individual. The fact that the appellant was found soon after the theft in possession of a very large number of stolen articles shows that he was himself the thief and not the receiver of stolen goods.
22. In the present case also, it has come in the evidence that accused Raju (since PO) had committed theft from the godown having the material of the complainant and on the same day, accused Abdul, Alludin and Washid Sheikh were apprehended with the stolen property. At this stage, it is pertinent to mention that disclosure statement of Washid Sheikh and Allaudin show that they alongwith Raju (since PO) and some other person broken the shutter of the godown and committed theft and took the articles to Abdul Salam godown. It is also to be kept in mind that large quantity of articles were stolen and vehicle was also used in commission of crime, which shows that it was not a work of single individual. Further, their disclosure statement shows that accused Abdul Salam was not present at the time of committing the theft. Hence, in view of Section 114 (a) of Indian Evidence Act, the presumption can be drawn that accused Washid Sheikh and Allaudin in furtherance of their common intention committed committed house breaking by unlawfully entering in the godown No. 53, Harizan Basti, Palam with intention to commit theft and committed theft of articles as mentioned in the complaint. Hence, in view of the submissions made above, I have no hesitation to hold that prosecution has successfully able to prove the guilt of the accused Allaudin and Washid Sheikh for the offences u/s 380/457/34 IPC. Hence, both accused are convicted for the offences u/s 380/457/34 IPC. Since, both of the accused have been convicted for the aforesaid offences, they cannot be convicted for th offences u/s 411/34 IPC.
FIR No. 416/03 PS Dwarka Pg No. 15/16
23. As far as accused Abdul Salam is concerned, it is crystal clear that he was found in possession of stolen property. Hence, he is convicted for the offence u/s 411 IPC. There is no evidence against him to convict him for the offences u/s 380/457 IPC as mentioned in para No. 22.
Announced in the open court today i.e on 18/11/2014 (Deepak Wason) Additional Chief Metropolitan Magistrate Dwarka Court, New Delhi FIR No. 416/03 PS Dwarka Pg No. 16/16