Delhi District Court
State vs Raj Kumar Ors. on 6 February, 2020
IN THE COURT OF SH. SUNIL KUMAR, CMM, N/W, DISTRICT,
ROHINI COURTS, DELHI.
CR No.: 532276/16
State V/s Raj Kumar Ors.
FIR No. 176/10
PS Saraswati Vihar
U/s 379/411/34 IPC
JUDGMENT
1. Date of institution of the case : 07.01.2011
2. Date of the commission of the offence : 25.10.2010
3. Name of the accused : Raj Kumar @ Raju
S/o. Radhey Shyam
R/o. H-366, JJ Colony,
Shakurpur, Delhi.
2. Ajay Mandal
S/o Sh. Jivach
R/o G-754, JJ Colony,
Shakurpur, Delhi.
4. Name of the complainant : Sh. Shiv Kumar
5. Offence complained of : 379/411/34 IPC
6. Plea of accused : Pleaded not guilty
7. Final order : Convicted
8. Date of such order : 06.02.2020
STATEMENT OF THE REASONS FOR THE DECISION :-
1. The story of the prosecution is that on 25.10.2010 at picket Vardhman Plaza, Sec.3, Rohini, Delhi both the accused were found in possession of Motorcycle bearing no.DL 8SQ 7775 belonging to the complainant Sh. Shiv Kumar and on the basis of the said allegations, the present FIR bearing No.176/10 was registered at Police Station Saraswati Vihar and both the accused persons have been challan with the offences under Section 411/34 IPC.
2. After investigation, charge sheet was filed against both the accused Raj Kumar @ Raja and Ajay Kumar Mandal. The copies of charge sheet as well as its annexures were supplied to both the accused State vs Raj Kumar & Ors. FIR no.176/10 PS Saraswati Vihar Page no. 1 of 9 persons in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and charge u/s 411/34 IPC was framed against both the accused vide order dated 07.02.2011, to which they have pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused and examined only seven witnesses, out of 12 witnesses as mentioned in the list of witnesses.
PW-1 L Ct. Poonam being the DD Writer at the relevant time, has proved the DD no.20B as Ex.PW1/A. This witness was not cross- examined by the Ld. Defence counsel.
PW-2 HC Niranjan being the Duty Officer at the relevant time, has proved the present FIR as Ex.PW2/A and endorsement on rukka as Ex.PW2/B. This witness was not cross-examined by the Ld. Defence counsel.
PW-3 Shiv Kumar, the complainant in the present has has deposed that on 11.05.10 he had parked his motorcycle bearing no.DL 8SQ 8885 MAKE Bajaj Caliber at about 10:30am in the parking behind Pizza Hut at Netaji Subhash Place, Delhi. That on closing his shop at about 12 mid night he went to the parking and saw that his motorcycle was not at the place where he had parked. He searched his motorcycle but could not find. He dialed at 100 number. That IO reached at the spot and recorded his statement as ex.PW-3/A. That IO prepared site plan Mark-X at his instance. He further deposed that after 5-6 months he received information from the Police Station that his motocycle was recovered. Further, on 24.11.2010, he along with IO HC Parveen went to PS where his motocycle was seized vide Ex.PW-3/B. He deposed that he got released the same vide superdarinama mark-X1. He also proved the RC of the motorcycle as Ex.PW-3/C. During cross-examination done by the Ld. Defence counsel he deposed that he had not seen anyone who stolen his motorcycle.
State vs Raj Kumar & Ors. FIR no.176/10 PS Saraswati Vihar Page no. 2 of 9 PW-4 Retd. SI Ranbir Singh, has deposed that on 12.05.01 on receipt of DD no.3A he along with Ct. Uday Raj reached at the spot i.e. Parking behind Aggarwal Metro Height Building but the complainant did not met them on that day. He deposed that he recorded the statement of comlainant regarding theft of his motorcycle bearing No.DL 8SQ 7775 on 13.05.01. He prepared rukka Ex.PW-4/A. He deposed that further investigation was handed over to HC Parveen.
PW-5 Inspector Ajay Karan Sharma, has deposed that on 25.10.2010, he along with SI Surender, Ct. Inderjeet, Ct. Babloo, Ct. Rajesh and Ct. Yogender had proceeded for patrolling duty vide DD no.41B PS South Rohini and was present in front of Vardhman Plaza Sector-3, Rohini at about 3:00pm they were checking the vehicles at the picket when two persons came on motorcyle bearing no.DL 8SQ 7775 make Bajaj Caliber black colour, he with the help of staff stopped the motorcycle and he came to know the name of the rider as Raj Kumar @ Raja and pillion rider as Ajay Kumar Mandan. He deposed that he asked both the accused about the ownership papers of the said motorcycle but they could not produce any document of ownership nor could give any satisfactory reply regarding the possession of the said motorcycle. He further deposed that on suspicion he checked the status of the motorcycle on Zipnet through his mobile phone and it was found that the motorcycle was reported to be stolen vide case FIR no.176/10 u/s 379 IPC PS Saraswati Vihar. He further deposed that accused Ajay Kumar Mandal tome him that he had stolen this motorcycle from the area of PS Saraswati Vihar and he has sold this motorcycle to Raj Kumar @ Raja. PW-5 proved the proceeding carried out by them at the spot. PW-5 proved the seizure memo of the motorcycle as Ex.PW-5/A, arrest memos Ex.PW-5/B and C, disclosure statements as Ex.PW-5/D and E, site plan as Ex.PW-5/F. The identity of the motocycle bearing registration no.DL 8SQ 7775 is not disputed by both the accused persons. This State vs Raj Kumar & Ors. FIR no.176/10 PS Saraswati Vihar Page no. 3 of 9 witness was cross-examined by the Ld. Defence counsel.
PW-6 Sh. Inderjeet Singh has deposed that on 26.10.2010, he was posted as Ct. in PS: South Rohini. On that day, he alongwith SI Ajay Kumar was checking the vehicles after putting barricades in the back side of Vardhman Plaza, Sector-3, Rohini. After some time, two persons on a motorcycle make Bajaj Caliber bearing registration no. DL-8SQ- 7775 came from the side of Fish Market. They stopped those persons and asked them to produce the documents of said motorcycle, but they could not produce and were also not able to give any satisfactory reply. That they checked the engine no. and chasis no. of said motorcycle on Zipnet and found that said motorcycle was being stolen in FIR no. 176/10 of PS Saraswati Vihar. He deposed that name of those persons were revealed as Ajay and Raj Kumar. That acused Raj Kumar was driving the motorcycle and accused Ajay was the pillion rider. PW-6 proved the proceeding carried out by them at the spot. PW-6 proved seizure memo as Ex. PW-5/A, arrest memos as Ex. PW-5/B and Ex. PW- 5/C, disclosure statements of both accused persons as Ex. PW-5/D and Ex. PW-5/E. That the Identity of the motorcycle bearing registration no. DL-8SQ-7775 is not disputed by both accused persons. This witness was not cross-examined by the Ld. Defence counsel.
PW-7 HC Parveen Kumar, has deposed that on 13.05.2010, he was posted at PS Saraswati Vihar. That the investigation of this case was marked to him by the order of Sr. officers. That the duty officers handed over to him original rukka and copy of FIR. Accordingly, complainant Shiv Kumar went to the place of incident, where he prepared site plan at the instance of complainant as Ex. PW-7/A. He deposed that he recorded supplementary statement of complainant. That he returned back at PS and recorded statement of SI Ranveer. He deposed that he searched the accused as well as stolen vehicle but nothing could be traced. That on 06.06.2010, the untrace report was prepared by him. He deposed that on 26.10.2010, SI Ajay Karan from PS State vs Raj Kumar & Ors. FIR no.176/10 PS Saraswati Vihar Page no. 4 of 9 South Rohini informed to Duty officer that two persons namely Raj Kumar and Ajay were arrested in Kalandara u/s 41.1 (D) Cr.PC and the stolen motorcycle bearing no. DL-8SQ-7775 make Caliber has been recovered from the possession of both the accused persons. Further, DD no. 20 B was handed over to him. He deposed that accordingly, he went to PS South Rohini where he collected the relevant documents of Kalandara from concerned IO. He further deposed that on 01.11.2010, he moved an application before the Ld. MM for the production warrants of both the accused persons namely Raj Kumar and Ajay. He deposd that on 08.11.2010, he went to PS South Rohini where he recorded statement of SI Ajay Karan, Ct. Bablu and Ct. Inderjeet. That both the accused persons were arrested in court after taking permission from the Hon'ble Court. He deposed that the accused persons Raj Kumar and Ajay Kumar were arrested vide arrest memo Ex. PW-7/B and Ex. PW-7/C. He deposed that their disclosure statement were recorded vide memo Ex. PW-7/D and Ex. PW-7/E. He deposed that on 24.11.2010, Ct. Biren Yadav brought the motorcycle bearing no. DL-8SQ-7775 make Caliber from PS: South Rohini vide Road certificate bearing no. 105/21/2010 vide Ex. PW-7/F. He deposed that the vehicle was seized by him vide seizure memo Ex. PW-3/B. He recorded statement of Ct. Biren Yadav and complainant Shiv Kumar. He deposed that the vehicle was released on supardari to the complainant by the order of Ld. MM. This witness was not cross-examined by the Ld. Defence counsel.
Thereafter, PE was closed by the order of the court.
4. Statement of both the accused u/s 281 r/w Sec. 313 Cr.P.C. was recorded separately and all the incriminating evidence coming on record was put to both the accused, in which they haave submitted that they have been falsely implicated in the present case. They have further submitted that they do not want to lead evidence in their defence. Therefore, the matter was listed for Final Arguments.
State vs Raj Kumar & Ors. FIR no.176/10 PS Saraswati Vihar Page no. 5 of 9
5. I have heard the arguments of Ld. APP for the state, Ld. Counsel for accused as well as perused the record.
6. In the present case, accused have been charged for committing offence under Section 411/34 IPC. In order to prove the guilt of accused persons, prosecution had to prove that the vehicle which was recovered from the possession of accused persons was stolen vehicle and that accused were found in possession of the stolen vehicle despite having knowledge that the same is stolen.
7. In order to prove that the vehicle which was recovered from the possession of accused was stolen vehicle, prosecution has examined PW3 who has deposed that his Motorcycle bearing registration No.DL- 8SQ-8885 was stolen on 11.05.2010 for which he reported the matter to PS and FIR was registered. PW3 has identified the stolen vehicle in the Court and got the same released on superdari. PW3 has also identified the said vehicle as the one which was recovered from the possession of the accused. He has also stated that the vehicle was seized by the IO of present FIR. IO Inspector Ajay Kumar who is PW5 has deposed that he seized the vehicle which was recovered at the spot and the said vehicle was subsequently released on superdari to PW3. Therefore from the testimony of all these witnesses, it is established that the vehicle which was recovered by PW-5 from the possession of accused persons belong to complainant and was stolen from parking.
8. Now the prosecution has to prove that accused was found in possession of the stolen vehicle despite having knowledge that the same is stolen. PW5 Inspector Ajay Karan Sharma has stated that both the accused were categorically asked to produce documents of the vehicle which they failed to produce. The said fact shows that the accused were State vs Raj Kumar & Ors. FIR no.176/10 PS Saraswati Vihar Page no. 6 of 9 having the knowledge that the said vehicle is stolen one. Further, the vehicle was stolen on 11.05.2010 and accused were found in possession of the same on 25.10.2010 and hence it is clear that the accused persons are found in possession of the stolen vehicle after the offence of theft, hence, they have either stolen the said vehicle or have retained the said vehicle having knowledge or reason to believe that it is stolen one.
In this regard, reference be made to illustration (a) of Section 114 of the Evidence Act, 1872 which reads as follows :-
"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."
In the case of Baiju Vs. State of Madhya Pradesh AIR 1978 SC 528, it was held that recent and unexplained possession of stolen articles can form the basis of presumptive evidence leading to a finding of guilt.
In the case of Karnam Singh Uttam Singh Vs. State of Maharashtra AIR 1976 SC 1097, it was observed as under:-
"It is open to the Court to convict an accused by using the presumption where the circumstances indicate that no other reasonable hypothesis except the guilty knowledge of the accused is open to the prosecution."
In the case of Virumal Mulchand & Anr. Vs. State of Gujrat AIR 1974 SC 334, the Hon'ble Supreme Court upheld the conviction of the appellants for the offence under Section 411 of Indian Penal Code by observing as follows:-
"The appellants were found in possession of the goods within two days of the theft. In the circumstances, illustration 'a' to Section 114 of the Indian Evidence Act applies directly to the facts of the present case."
In the case of Bipin Bihari Sahu Vs. State of Orissa 1986 Crl. LJ 406, it was observed as follows:-
State vs Raj Kumar & Ors. FIR no.176/10 PS Saraswati Vihar Page no. 7 of 9 "From his evidence an inference can be drawn under S. 114 of the Evidence Act to the effect that when the stolen property, namely, the bicycle was seized from the possession of the petitioner soon after the theft was committed, a presumption can be drawn according to illustration (a) that he was either the thief or the receiver of the goods knowing it to be stolen."
Therefore, in view of above discussion, a presumption can be drawn that accused persons have retained the possession of the stolen vehicle having knowledge or reason to believe that the vehicle is stolen one.
9. Ld. LAC for accused persons has pointed out to certain contradictions in the testimony of prosecution witnesses. However, the said contradictions are not material contradictions. Hence, the argument of Ld. LAC is not tenable.
10. Ld. LAC has also argued that there is no independent eye- witness to the recovery despite the fact that recovery was done from a public place.
It is settled law that it is not necessary that in each and every case, public persons must be joined in investigation.
In the case of Appabhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the murder 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. 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 Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of a pathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case State vs Raj Kumar & Ors. FIR no.176/10 PS Saraswati Vihar Page no. 8 of 9 for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
In the case of Pal Singh Vs. State of UP 1979 Crl. LJ 918, it has been held as under :-
"After the High Court had believed the eye witnesses Nos. 1 and 2 and having found that their testimony was absolutely credit-worthy and truthful, it could not have rejected the prosecution case merely because some of the eye-witnesses mentioned in the FIR were not examined."
In the case of Takhaji Hiraji Vs. Thakore Kubersing Chamansing & Ors. 2001 IV AD (SC) 394, it has been held that :
"On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinize the worth of the evidence adduced."
11. In view of above discussion, I am of the considered view that the prosecution has successfully proved that accused persons were found in possession of the stolen vehicle/motorcycle which they have retained having knowledge or reason to believe that the same is stolen. Both the accused are accordingly convicted for offence under Section 411/34 of Indian Penal Code.
Announced in the open court (SUNIL KUMAR)
on 06.02.2020 CMM/NORTH WEST
ROHINI COURTS
DELHI
State vs Raj Kumar & Ors. FIR no.176/10 PS Saraswati Vihar Page no. 9 of 9