Delhi District Court
State vs . Asjad Jamal Khan on 30 November, 2013
Page 1 of 16
IN THE COURT OF MS. NAVITA KUMARI BAGHA: MM, NEW DELHI
State Vs. Asjad Jamal Khan
FIR No. : 394/2006
P.S. : Tilak Marg
U/Sec. : 408/411 IPC
JUDGMENT :
a) Srl. No. of the case & Date of institution : 22/2 & 06.01.2007
b) Date of commission of offence : 03.10.2006
c) Name of the complainant : State through Harjeet Singh
d) Name of the accused : Asjad Jamal Khan @ Javed Khan @ Guddu @ Anis Ahmed @ Rashid S/o Late Sh. Jalaluddin Khan R/o Masjid Jaafta Ganj, Man Singh Road, India Gate, New Delhi.
e) Nature of offence complained of : U/Sec.408/411 IPC f) Plea of the accused person : Accused pleaded not guilty g) Date reserved for order : 25.11.2013 h) Final Order : Convicted i) Date of order : 30.11.2013
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. In brief, Chargesheet was filed against accused Asjad Jamal Khan @ Javed Khan @ Guddu @ Anis Ahmad @ Rashid for offences punishable U/Sec. 408/411 IPC on the allegations that he, being the driver of complainant Harjeet Singh was entrusted with an Ambassador car bearing No.DL9CA8281 and on 03.10.2006 at about 01.30 p.m. at Taxi Stand, Copernicus Lane, New Delhi, within the jurisdiction of P.S. Tilak Marg, he fled away with said car without State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 2 of 16 knowledge or permission of the complainant and thereby committed criminal breach of trust with respect to that car and subsequently on 11.11.2006, the same was recovered at his instance from near Jan Shakti Press, Adalat Ganj, Amarnath Road, Patna, Bihar.
2. After supplying copies to the accused U/Sec.207 Cr.P.C. and consideration of the entire material the Ld. Predecessor Court vide order dated 05.02.2007 held that prima facie a case U/Sec.408 IPC was made out against the accused and accordingly charge U/Sec.408 IPC was framed against him to which he pleaded not guilty and claimed trial.
3. The prosecution had cited 12 witnesses, out of which 11 witnesses were examined.
4. Statement of accused was recorded U/Sec.313 Cr.P.C. on 07.03.2012 wherein he denied the case of the prosecution and pleaded innocence. He said that he had been falsely implicated in this case. He said that no car was entrusted to him and that some other person was the driver of the said car who had fled away alongwith the car. He said that he had only recommended the said driver for his employment as he was his friend. However, he opted for not leading any evidence in his defence.
5. I have heard the final arguments from Ld. APP Sh. Honey Goel and Ld. Defence Counsel Sh. K.Z. Khan and perused the record.
6. Let us first examine the evidence led by the prosecution. The first witness of the State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 3 of 16 prosecution i.e. PW1 is H.Ct. Hira Lal who deposed that on 06.10.2006 he was posted as Head Constable in P.S. Tilak Marg and working as Duty Officer from 5.00 p.m. to 1.00 a.m. and on that day at about 8.30 p.m. he had recorded FIR No.394/2006 U/Sec.408 IPC i.e. Ex.PW1/A on the basis of rukka brought by S.I. Jai Singh and had made his endorsement Ex.PW1/B on the rukka.
7. PW2 is Ct. Mehmood Khan who deposed that on 03.11.2006 he was posted at P.S. Kamla Market and on that day he alongwith ASI Surender Singh and H.Ct. Attar Singh was on patrolling duty and at about 6.45 p.m. when they reached at the back side of Ranjeet Hotel, Turkman Road, they saw one person (the accused) standing in suspicious condition near Lal Quarter car parking who was hiding himself behind the car and on being suspicious, they apprehended him and conducted his formal search during which one screw driver, one plier, a bunch of keys and DL in the name of Anis Ahmad were recovered. He further deposed that the said person had revealed his identity as Asjad Jamal Khan and on interrogation, he (the accused) made disclosure statement Mark A1 wherein he disclosed regarding commission of offence of theft in respect of Ambassador car bearing no.DL9CA8281 from the area of Copernicus Lane, New Delhi and told that the said vehicle was sold for a sum of Rs.20,000/ to one person who was resident of Patna, Bihar. He further deposed that the accused was arrested U/Sec.41(1) Cr.P.C. vide arrest memo Mark A2 and his person search was conducted vide memo Mark A3. Despite grant of opportunity, this witness was not crossexamined.
8. PW3 is Ct. Ashutosh who deposed that on 08.11.2006 he was posted at P.S. State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 4 of 16 Tilak Marg and on that day he came to this Court alongwith S.I. Jai Singh where accused Asjad Jamal Khan was formally arrested vide arrest memo Ex.PW3/A by S.I. Jai Singh and his formal search was conducted vide memo Ex.PW3/B. He further deposed that on interrogation, the accused had made disclosure statement Ex.PW3/C and on 11.11.2006 he had joined the investigation of the case and left Delhi and went to Patna. He further deposed that the accused had also made supplementary disclosure statement Ex.PW3/D and in pursuance to the disclosure statement, the accused had got recovered Ambassador car bearing no.DL9CA8281 with CNG kit from Amar Nath Road in front of Jan Shakti Press. He further deposed that the said car was taken into possession and seized vide seizure memo Ex.PW3/E and thereafter they returned back to Delhi alongwith the car by road on 13.11.2006. He further deposed that the accused had also disclosed vide disclosure statement Ex.PW3/F regarding commission of theft of car bearing No.DL1CE6279 from Har Kishan Public School, Purana Qila Road, near Patiala House Courts, New Delhi. Further examinationinchief of this witness was deferred for want of case property. But thereafter the said witness was never examined.
9. PW4 is Ct. Bhim Sen who deposed that on 08.11.2006 he was posted in DAP 6th Battalion and on that day he was performing his duty at Patiala House Lock up and on that day the accused Asjad Jamal Khan was produced by him before this Court where I.O. had formally arrested him vide arrest memo Ex.PW3/A and conducted his personal search memo Ex.PW3/B and on interrogation, the accused had made disclosure statement Ex.PW3/C. During his cross examination by the accused, he denied the suggestion that the accused had not State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 5 of 16 made any disclosure statement.
10. PW5 is Ct. Godi Lal who deposed that on 09.11.2006 he was posted at P.S. Tilak Marg and on that day he alongwith I.O./S.I. Jai Singh, Ct. Ashutosh and accused Asjad Jamal Khan had gone to Patna by boarding train on 09.11.2006 and reached Patna in the intervening night of 09/10.11.2006. He further deposed that the local police was not provided to them as some election was being held in Patna at that time. He further deposed that on 11.11.2006 the accused had taken them to Amarnath Road in front of Jan Shakti Press, Patna where one white colour Ambassador car bearing No. DL9CA8281 was parked and he told them that the said car was belonging to the complainant. He further deposed that the said car was taken into possession on pointing out by accused vide memo Ex.PW5/A and was seized vide seizure memo Ex.PW3/E. He further deposed that the said recovery was effected at about 11.00 a.m. and they came back to Delhi by the said car. The said car was produced by the superdar Harjeet Singh in the Court premises which the witness had correctly identified as the same which was recovered at the instance of accused in Patna. Despite grant of opportunity, this witness was also not crossexamined.
11. PW6 is the complainant Harjeet Singh who deposed that on 03.10.2006 he was running a Taxi business under the name of A. Gill Tourist Taxi Service at Conernicus Lane, Mandi House, New Delhi and on that day his driver namely Rashid (the accused had told him his name as Rashid) took his white colour Ambassador car bearing no.DL9CA8281 for filling up CNG and came back in the noon but at about 1.30 p.m. he found that his said car was missing State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 6 of 16 alongwith the driver. He further deposed that he made efforts to search out the accused, but in vain and on 06.10.2006 he went to P.S. Tilak Marg and got his statement Ex.PW6/A recorded with the police and at his instance site plan Ex.PW6/B was prepared by the police. He further deposed that in the month of November, 2006 the said car was got recovered by the accused Asjad Jamal Khan from Patna, Bihar and after the said recovery, he was informed by the police regarding the recovery of said car and thereafter an application Ex.PW6/C for obtaining the said car on superdari was moved by his father and superdaginama Ex.PW6/D was furnished by him. Despite grant of opportunity, even this witness was also not crossexamined.
12. PW7 is Ct. Rameshwar Dayal who deposed that on 06.10.2006 he was posted at P.S. Tilak Marg and on that day after registration of the case, the Duty Officer handed over original rukka and copy of FIR to him and he handed over the same to S.I. Jai Singh at Taxi Stand, Copernicus Lane, New Delhi.
13. PW8 is ASI Surender Ahlawat who deposed that on 03.11.2006 he was posted as ASI at P.S. Kamla Market and on that day he alongwith H.Ct. Attar Singh and Ct. Mehmood Khan was on patrolling duty and when they reached at Turkman Road behind Ranjeet Hotel, the accused was found standing in suspicious condition who was peeping inside the vehicles parked there. He further deposed that on interrogation, he could not give any satisfactory reply regarding his presence there and he was arrested U/Sec.41(1) Cr.P.C. vide memo Mark A2 and his personal search was conducted vide memo Mark A3 and on interrogation he made his disclosure statement vide memo Mark A1 State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 7 of 16 regarding commission of theft of cars bearing No.DL8CK4298 and DL9CA8281. He further deposed that in pursuance of the disclosure statement, the accused got recovered car bearing no.DL8CK4298 from the area of P.S. G.K. which was seized vide memo Mark A4. He further deposed that the DL, screw driver, plier and a bunch of keys were also recovered from his possession vide Mark A5. He further deposed that on 04.11.2006 he informed the I.O. of this case vide DD No.42B i.e. Mark A6. He had identified the accused correctly in the Court. During his crossexamination by the Ld. Defence Counsel, he deposed that he did not have any prior information about the theft of car bearing no.DL9CA8281. He further deposed that it was about 6.45 p.m. and there was nobody with the accused. He denied the suggestion that the accused had not made any disclosure statement in respect of car bearing no.DL9CA8281.
14. PW9 is Sanjay Kumar Dubey, Ahlmad from the Court of Sh. J.P. Nahar, Patiala House courts, New Delhi who deposed that he had brought the original file of case FIR No.287/06, P.S. Greater KailashI, U/Sec.406/411/34 IPC titled as Asjad Jamal Khan, etc. and on the basis of record brought by him the documents were exhibited in following manner copy of the Kalandra U/Sec. 41(1) Cr.P.C. as Ex.PW9/A, copy of DD No.64B dated 03.11.2006 as Ex.PW9/B, copy of personal search memo as Ex.PW9/C, copy of arrest memo as Ex.PW9/D, copy of request for medical examination as Ex.PW9/E, copy of seizure memo of screw driver & plier as Ex.PW9/F, copy of disclosure statement as Ex.PW9/G and copy of seizure memo of car bearing no.DL2CK4298 as Ex.PW9/H. State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 8 of 16
15. PW10 is H.Ct. Attar Singh who deposed that on 03.11.2006 he was posted at P.S. Kamla Market and on that day he alongwith ASI Surender Singh and Ct. Mehmood Khan was on patrolling duty in the area of P.S. Kamla Market and at about 6.45 p.m. when they reached at Turkman Gate road behind Hotel Ranjeet one person was found standing in suspicious condition who, on seeing them, tried to hide himself behind the cars. He further deposed that on this he apprehended him and he revealed his identity as Anis Ahmad, but later on he disclosed his identity as Asjad Jamal, Javed @ Guddu and that one screw driver, one plier, a bunch of keys and one DL in the name of Anis Ahmad was recovered from his possession and on interrogation the accused told that he had stolen one WagonR car from the parking of MBlock, G.K. about three months back and also disclosed that he had committed theft of one Ambassador car from Taxi Stand at Copernicus Lane and sold the same to a person at Patna, Bihar for a sum of Rs.20,000/. He further deposed that the accused was arrested U/Sec.41(1) Cr.P.C. vide arrest memo Ex.PW9/D and his personal search was conducted vide memo Ex.PW9/C and his disclosure statement Ex.PW9/G was recorded. He further deposed that the screw driver, plier and bunch of key were also taken into possession and seized vide memo Ex.PW9/F. This witness had also correctly identified the accused in the Court.
During his crossexamination by the Ld. Defence Counsel he deposed that on personal search of accused Rs.160/ and some papers were recovered. He further deposed that the number of the Ambassador car was DL9CA8281 which was sold by the accused to one person at Patna, Bihar. He further deposed that the accused was arrested U/Sec.41(1) Cr.P.C. by ASI Surender State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 9 of 16 Singh. He further deposed that the public persons were asked to join the proceedings, but they refused to do so. He said that no notice was given to them. He denied the suggestion that the accused had not made any disclosure statement in respect of Ambassador car or that nothing incriminating was recovered as alleged.
16. PW11 is the I.O. S.I. Jai Singh who deposed that on 06.10.2006 he was posted at P.S. Tilak Marg as SubInspector and on that day he was on emergency duty. He further deposed that on that day the complainant Harjeet Singh came to police station and gave his statement Ex.PW6/A regarding Ambassador Car bearing no.DL9CA8281 being illegally taken away by his driver. He further deposed that after preparing rukka Ex.PW11/A he gave it to Duty Officer for registration of the case and he alongwith the complainant went to the spot of incident and prepared the site plan Ex.PW6/B at the instance of the complainant. He further deposed that on 04.11.2006 he received DD entry no. 42B by which ASI Surender Singh P.S., Kamala Market informed regarding the arrest of accused Asjad Jamal Khan U/Sec.41(1) Cr.P.C. and his confessional statement regarding the theft of the Ambassador Car no.DL9CA8281 on 03.10.2006 from Gill Taxi Services, Copernicus Marg, New Delhi. He further deposed that he went to P.S. Kamla Market where he met with ASI Surender Singh who handed over him a copy of Kalandra alongwith the copy of all proceedings conducted U/Sec.41(1) Cr.P.C. by P.S. Kamala Market i.e. Ex.PW9/A to Ex.PW9/F. He further deposed that he recorded the statements of ASI Surender Singh, H.Ct. Attar Singh and Ct. Ahmed Khan and applied for production warrants of accused. This witness had also correctly identified the State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 10 of 16 accused in the Court. He further deposed that on 08.11.2006 he alongwith Ct. Ashutosh reached at the Court No.15, Patiala House Court, New Delhi where accused was produced by Ct. Bhim Sen and he was formally arrested by him vide arrest memo Ex.PW3/A and his personal search was conducted vide search memo Ex.PW3/B. He further deposed that the confessional statement of the accused Ex.PW3/C was recorded and the PC remand for 7 days of the accused was taken. He further deposed that on 09.11.2006 he alongwith accused, Ct. Ashutosh and Ct. Godi Lal went to Patna where accused was kept in lockup. He further deposed that since there was election on 10.11.2006, so they could not do their investigation proceedings and on 11.11.2006 they got the accused medically examined and recorded his confessional statement i.e. Ex.PW3/D. He further deposed that the accused took them to Amarnath Road, Adalatganj Area in front of Jan Shakti Press where in front of two closed shops one Ambassador Car was standing and on the pointing out of the accused vide memo Ex.PW5/A, white colour Ambassador Car bearing no.DL9CA8281 was recovered and seized vide seizure memo Ex.PW3/E. He further deposed that thereafter he recorded the statements of the witnesses and came back to Delhi. Despite grant of opportunity, even this witness was also not crossexamined.
17. Ld. APP has argued that the prosecution has proved its case against the accused and he be punished U/Sec.408 IPC. But the counsel for the accused has argued that the accused had not committed any criminal breach of trust and that he had been falsely implicated in this case.
18. The accused in the present case has been booked U/Sec.408 IPC. The State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 11 of 16 essential ingredients of offence under Sec.408 IPC are that the accused must be a clerk or servant or employee of complainant and he, in such capacity, must have been entrusted with some property or with any dominion over property and he dishonestly misappropriates or coverts that property to his own use or dishonestly uses or disposes of that property. In the present case, the prosecution was required to prove that being the driver of the complainant Harjeet Singh, the accused was entrusted with an Ambassador car bearing No.DL9CA8281 and on 03.10.2006 at about 01.30 p.m. from Taxi Stand, Copernicus Lane, New Delhi, within the jurisdiction of P.S. Tilak Marg, he fled away with said car without knowledge or permission of the complainant and dishonestly converted the same to his own use and thereby committed breach of trust with respect to that car. The Ld. Defence Counsel has argued that the prosecution has failed to prove its case as none of public persons were joined in this case during the recovery of the case property i.e. the Ambassador Car bearing no.DL9CA8281 at Patna, Bihar. But it is settled law that the case of the prosecution cannot be thrown away merely on the ground that the public witnesses were not joined. It is held by Hon'ble Supreme Court in Appabhai Vs. State of Gujrat, AIR 1988 SC 696, "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 12 of 16 Court unless it is inevitable."
It has also been held by the Hon'ble Supreme Court in Ambika Prasad Vs. State, AIR 2000 SC 718 that the independent witnesses generally do not come forward to depose as they are reluctant to be witnesses because of threat to their safety and delay in Courts and the prosecution cannot be blamed if independent persons are not willing to cooperate with the investigation and it is no ground to reject evidence of other witnesses. Similarly in the present case also the prosecution's case could not be thrown away merely because the public witnesses were not joined
19. The next contention of the Ld. Defence Counsel is that the complainant/PW6 had failed to specifically name the accused as his driver as he had stated that some Rashid was his driver who had taken away his car. The Complainant i.e. PW6 has deposed that on 03.10.2006 at about 1.30 p.m. he found that his said car was missing alongwith the driver. He has deposed that the accused had disclosed his name as Rashid. Since the complainant had categorically stated during his testimony that the accused had disclosed his name as Rashid and he had duly identified him in the Court during his testimony, so the contention of Ld. Defence Counsel regarding not specifically naming the accused as Asjad Jamal by the complainant does not hold any force.
20. The PW2 Ct. Mehmood Khan, PW8 ASI Surender Singh and PW10 H.Ct.
Attar Singh have deposed that on 03.11.2006 they were on patrolling duty in the area of P.S. Kamla Market and at about 6.45 p.m. when they reached at Turkman Gate road behind Hotel Ranjeet the accused was found standing in State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 13 of 16 suspicious condition who, on seeing them, tried to hide himself behind the cars and when he was apprehended and his formal search was carried out, one screw driver, one plier, a bunch of keys and one DL in the name of Anis Ahmad were recovered from his possession and on interrogation he told that he had stolen one Ambassador car from taxi stand at Copernicus Lane and sold the same to one person at Patna, Bihar for a sum of Rs.20,000/. The witnesses of recovery i.e. PW3 is PW5 Ct. Godi Lal and PW11 S.I. Jai Singh have deposed that in pursuance to the disclosure statement, the accused, on 11.11.2006, had got recovered Ambassador car bearing No.DL9CA8281 with CNG kit from Amarnath Road in front of Jan Shakti Press, Patna. But despite their categorical deposition, the PW2, PW5, PW6 and PW11 were not crossexamined. Thought the PW8 and PW10 were crossexamined but even their testimony could not be shaken during such crossexamination. It is settled law that if the opposite party, during the crossexamination, fails to crossexamine or put any suggestion to a witness on a certain point, then the said party is deemed to have accepted the same as true. It is held by Hon. Supreme Court of India in Sarwan Singh Vs. State of Punjab, AIR 2002 SC 3652, "It is a rule of essential justice that whenever opponent has declined to avail himself of the opportunity to put his case in crossexamination, it must follow that evidence tendered on that issue ought to be accepted."
It is also held by Hon. High Court of Delhi in Satyendra Kumar Sharma Vs. Jitender Kudsia, 2005 DLT 498, "Sec.137 & 138 of Evidence Act - Crossexamination
- If a witness is not crossexamined on a particular State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 14 of 16 point, the opposite party must be deemed to have accepted truth of the statement."
Since in the present case, the accused has failed to crossexamine PW2, PW5, PW6 and PW11, so in view of the abovesaid caselaws, their testimony is deemed to be admitted by him. Thus from their testimony, it stands proved that the accused, being the driver of complainant Harjeet Singh, was entrusted with an Ambassador car bearing No.DL9CA8281 and on 03.10.2006 at about 01.30 p.m. from Taxi Stand, Copernicus Lane, New Delhi, within the jurisdiction of P.S. Tilak Marg, he fled away with said car without knowledge or permission of the complainant and converted the same to his use and sold it to one person who was resident of Patna, Bihar and thereby committed breach of trust with respect to that car. Accordingly, the accused is convicted for the offence punishable U/Sec.408 IPC.
(Announced in open
Court on 30.11.2013) (Navita Kumari)
MM, New Delhi
State Vs. Asjad Jamal Khan
FIR No. 394/2006
P.S. Tilak Marg
Page 15 of 16
FIR No. 394/06
U/Sec. 408 IPC
P.S. Tilak Marg
30.11.2013
Present : APP for state.
Accused with counsel Sh. K.Z. Khan.
Final Arguments heard from Ld. Defence Counsel.
Put up at 4.00 p.m. for order.
(Navita Kumari)
MM/ND/30.11.13
At 4.00 p.m.
Present : Substitute APP for state.
Accused with counsel Sh. K.Z. Khan.
Vide separate judgment accused is convicted for the offence punishable U/Sec. 408 IPC.
Arguments heard on the point of sentence.
Ld. Substitute APP has prayed for maximum punishment to the convict. The counsel for convict, on the other hand, has prayed for taking lenient view by stating that the accused is HIV+ patient and is the sole bread earner of his family having responsibility of his wife and two minor children who is earning his livelihood by working as worker in the Mosque. He has further prayed for lenient view by stating that the accused had already remained in custody for 11 State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg Page 16 of 16 months and 15 days. So, in view of these facts and circumstances, the convict is sentenced U/Sec.408 IPC to imprisonment for the period already undergone by him and to fine of Rs.5,000/ in default simple imprisonment for 10 days. Fine deposited vide receipt no.381972.
File be consigned to Record Room. Copy of judgment and order be given to convict free of cost immediately.
(Navita Kumari) MM/ND/30.11.13 State Vs. Asjad Jamal Khan FIR No. 394/2006 P.S. Tilak Marg