Delhi District Court
Unknown vs Talwar 2019.01.25 on 24 January, 2019
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State Digitally signed
by POOJA
TALWAR
POOJA Date:
Vs.
TALWAR 2019.01.25
13:28:30
+0530
Raj Kumar
FIR No. 369/2017
P.S Saket
JUDGMENT
1. Sr. No. of case 4929/2017
2. Date of institution 27.11.2017
3. Name of the complainant Sh. Manoj Kumar
FIR No. 369/2017 PS Saket Page- 1 of 14
S/o Sh. Rajesh Kumar
R/o 20/155, J.J. Colony,
Dakshin Puri, Ambedkar Nagar,
New Delhi.
4. Date of commission of offence 06.08.2017
5. Name of accused Raj Kumar
S/o Late Baldev Singh
R/o House No. C-81,
Ground Floor, Panchsheel Vihar,
Malviya Nagar, New Delhi.
6. Offence complained of U/s 380/411 IPC
7. Plea of accused Pleaded not gulty
8. Date of reserving the judgment 22.01.2019
9. Final order Convicted
10 Date of such judgment 24.01.2019
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that on 06.08.2017 at around 6.00 pm one Manoj Kumar, Security Supervisor in Saket Court Complex reached Chamber No. 313, Lawyer Chamber Block, Saket Court, he saw one person stealing water tap from the FIR No. 369/2017 PS Saket Page- 2 of 14 water cooler. He apprehended the said person and carried out search. During his search, four water taps were recovered from the pocket of his pant. The name of the said person was revealed as Raj Kumar. Police was called and FIR was registered.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused before Court and prima facie case having been made out, charge for the offence under section 380 IPC was framed against the accused.
3. In order to prove its case, the prosecution examined 4 witnesses in all.
4. Complainant Sh. Manoj Kumar was examined as PW1. He deposed that on 06.08.2017, he was working as Security Supervisor in the company namely M/s. Sarvesh Security. On that day, his duty was from 2.00 pm to 10.00 pm at Lawyers Chambers, Saket Court Complex, Saket. During the course of his duty, at about 6.00 pm, when he reached near Chamber No. 313 he saw that one person was stealing water tap from the water cooler. He apprehended the said person whose name was revealed as Raj Kumar. Then, he called the security guard FIR No. 369/2017 PS Saket Page- 3 of 14 Naveen who came there. On cursory search of accused, four water taps were also recovered from his pant. He informed the police officials at PP Saket regarding the said recovery. After sometime, ASI Satender Singh came at the spot. He handed over the recovered five water taps as well as accused to him. Out of five water taps, one was stolen from 3 rd floor, two were stolen from 4th floor and remaining two were stolen from 6 th floor. He further deposed that his statement/complaint as narrated by him was recorded by IO vide memo Ex.PW1/A. IO prepared the pullanda of the said water taps and seized the same vide seizure memo Ex.PW1/B. Thereafter, IO prepared the site plan at his instance vide memo Ex.PW1/C. Witness correctly identified the case property i.e. five steel taps which were recovered from the possession of accused which is Ex.P1 (colly). Witness also correctly identified the accused before the Court.
5. Duty Officer HC Puran Mal was examined as PW2. He deposed that on 06.08.2017, his duty hours were from 4.00 pm to 12.00 midnight. At about 7.30 pm, he received a rukka from ASI Subhash sent by ASI Satender. He made an endorsement regarding the same vide DD No. 43A. The endorsement is FIR No. 369/2017 PS Saket Page- 4 of 14 Ex.PW2/A. On the basis of rukka, the present case FIR was registered by him. Copy of FIR is Ex.PW2/B. He also prepared certificate under section 65B of Indian Evidence Act which is Ex.PW2/C. After registration of FIR, copy of FIR and rukka were given to ASI Subhash.
6. IO ASI Satender Singh was examined as PW3. He deposed that on 06.08.2017 he was on emergency duty from 8.00 am to 8.00 pm. At about 6.45 pm he received a DD No. 37A regarding theft. Thereafter, he alongwith ASI Subhash Chander went to the spot. There Security Supervisor and Guard who had already apprehended accused met them. Thereafter, he enquired about the case and interrogated the accused who revealed his name as Raj Kumar. Then accused handed over five taps (tooti) make of steel and he put the same in white cloth pullanda and sealed the same with the seal of SSR. Seal after use was handed over to ASI Subhash. He prepared the handing over memo which is Ex.PW3/B. He recorded the statement of complainant Sh. Manoj Kumar and prepared the rukka and handed over the same to ASI Subhash Chander for registration of FIR. After sometime, ASI Subhash Chander returned back to the spot and handed over the original rukka and copy of FIR to him.
FIR No. 369/2017 PS Saket Page- 5 of 14 Thereafter, at the instance of complainant, he prepared the site plan which is already Ex.PW1/C. Then, he arrested the accused vide memo Ex.PW3/A and seized the case property vide memo already Ex.PW1/B. He recorded the disclosure statement of accused vide memo Ex.PW3/C. He also recorded the statement of guard Naveen Kumar. He sent the accused for medical examination with ASI Subhash Chander. Thereafter, accused was brought to PS and was kept in police lock up. Case property was deposited in the Malkhana. He deposed that he recorded statement of ASI Subhash in the PS. On the next day, accused was produced before Ld. MM and from there, he was sent to JC for 14 days. During investigation, he collected previous involvement/conviction record of accused. But as per record no previous involvement of accused was found. After completion of investigation he prepared the chargesheet and filed the same before the Hon'ble Court. Witness correctly identified the case property i.e. five steel taps (tooti) which is already Ex.P1 (colly). Witness also correctly identified the accused before the Court.
7. ASI Subhash Chander was examined as PW4. He deposed on same lines as PW3 ASI Satender Singh. He further deposed FIR No. 369/2017 PS Saket Page- 6 of 14 that IO arrested the accused and personally searched. The personal search of accused is Ex.PW4/A. IO recorded his statement. Witness correctly identified the case property i.e. five steel taps (tooti) which is already Ex.P1 (colly). Witness also correctly identified the accused before the Court.
8. The entire incriminating evidence brought on record against the accused was put to him and his statement under section 313 Cr.PC was recorded. It is stated by accused that he is innocent and has been falsely implicated in the present case. He is a clerk and working for a lawyer in the Saket District Court. On the alleged date of incident, he was present at sixth floor where he found five water taps lying on the floor near the water tank. While he was coming down after taking the taps and to deposit in the Police Post, he was stopped by guard. He enquired about the same. After sometime, Supervisor also came there and enquired. He told that the taps were lying on the sixth floor and he was going to deposit the same in the Police Post. The guard as well as supervisor clicked the photographs of water taps and informed the police officials who came there and arrested him. He remained one day in Police Post and thereafter, produced before the Court of Ld. ACMM and from there he was sent to FIR No. 369/2017 PS Saket Page- 7 of 14 Tihar Jail.
9. I have heard Ld. APP for the State and Ld. counsel for accused and have also perused the judicial file carefully.
10. Accused has been charged with the offence under section 380 IPC.
11. Theft is defined under section 378 IPC. The essentials of said section are as under:-
(i) dishonest intention to take property;
(ii) the property must be movable;
(iii) it should be taken out of the possession of another person;
(iv) it should be taken without the consent of that person; and
(v) there must be some moving of the property in order to accomplish the taking of it.
12. It is alleged against the accused that he was seen by PW1 Sh. Manoj Kumar while he was removing the water tap from the water cooler. The said witness deposed that he apprehended the accused while he was in the process of stealing the tap and also four more taps were recovered from the possession of FIR No. 369/2017 PS Saket Page- 8 of 14 accused.
13. PW1 Sh. Manoj Kumar is the sole eye witness examined by the prosecution to prove the offence of theft against accused. His testimony remains unrebutted and uncontroverted as he was not cross examined by the accused.
14. Prosecution has examined other witnesses i.e PW2 HC Puran Mal, PW3 ASI Saender Singh and PW4 ASI Subhash Chander who were present at the time of arrest of accused and are witness to the recovery of taps from the possession of accused.
15. All the aforesaid prosecution witnesses have corroborated the testimony of each other to prove the alleged offence against accused.
16. When the incriminating evidence which had come on record against the accused was put to him and his statement under section 313 Cr.PC was recorded, for the first time, accused stated that he was innocent and that he found five water taps lying on the floor. He picked up the said taps to deposit them at Police Post. While he was going to the Police Post, he was caught by guard.
FIR No. 369/2017 PS Saket Page- 9 of 14
17. From the statement so recorded, presence of accused at the place of incident as well as possession of taps is not disputed.
18. Law is settled in this regard that the foundation of the defence taken by any accused is required to be laid down during the course of cross examination of prosecution witnesses. The defence of the accused must be suggested to the prosecution witnesses during the course of their cross examination. In case a new line of defence, is sought to be introduced during the course of defence evidence or statement under section 313 Cr.P.C., whose foundation has not been laid during the course of cross examination of the prosecution witnesses, such defence cannot be accorded much credibility and viability. Reference may be made to the judgement titled as Ranbir Singh v. State of Haryana, reported as 2000(3) R.C.R.(Criminal) 158 (P&H) wherein it was observed:
".....7. Some defence witnesses had been examined so as to indicate that the version of the petitioner is correct that he was not driving the vehicle rashlyand negligently. But this was entirely a new case that had been set up. It had never been so suggested to the witnesses of the prosecution. It was clearly an after-
FIR No. 369/2017 PS Saket Page- 10 of 14 thought and thus the defence was rightly rejected...."
19. It is argued on behalf of accused that prosecution has failed to prove possession of the taps with the accused and accordingly, there is a sheer non compliance of section 100 (4) Cr.PC.
20. I am in agreement with the arguments addressed by counsel for accused that at the time when the police arrived the taps were not in his possession and no independent witness except the complainant was joined to prove the said recovery of taps from possession of accused.
21. Be that as it may, the accused herein has not been charged with the offence under section 411 IPC for being in possession of stolen property hence, the argument of counsel for accused holds no strength and is untenable.
22. Accused herein has been charged with the offence under section 380 IPC and the essential ingredients to prove the said offence provided under section 378 IPC are that a movable property must have been taken out of the possession of the owner of the said property without his consent with a dishonest FIR No. 369/2017 PS Saket Page- 11 of 14 intention.
23. Through the testimony of PW1 Sh. Manoj Kumar, prosecution has been able to establish that accused was removing the tap from the water tank which did not belong to him. Once it is established that accused was removing the said tap which did not belong to him, the onus was on the accused to prove that his intention was not dishonest.
24. Reliance is being placed on the judgment titled as Karnal Singh Vs. State of Maharashtra AIR 1976 SC 1097 where it has been held that "in view of Section 114 (a) of Evidence Act, the Court may presume that a man who is in the 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. Presumption of recent possession is an optional presumption. But if the explanation of accused invokes doubt in the mind of Court, presumption cannot operate to convict the accused." Further, in judgment titled as Satnarain Vs. State of Bihar AIR 1972 SC 1561 that "upon the prosecution establishing that the accused were in possession of goods recently stolen, the Court may in the absence of any explanation by the accused of the way in which FIR No. 369/2017 PS Saket Page- 12 of 14 the goods came into their possession which might reasonably be true find them guilty, but if an explanation was given which the Court thinks might reasonably true and which is consistent with innocence although they were not convincing of its truth the prisoners are entitled to be acquitted inasumuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the Court beyond all reasonable doubt of the guilt of the accused. "
25. Though the accused has stated in his statement under section 313 Cr.PC but the foundation of the said defence has not been laid during cross examination of PW1 Sh. Manoj Kumar.
26. It is stated by accused in his statement under section 313 Cr.PC that he found the taps on the sixth floor of the chamber block, contrarily it is stated by all the prosecution witnesses that he was caught at the third floor i.e near Chamber No. 313.
27. Testimony of all the prosecution witnesses is unrebutted hence, the defence of accused cannot be accepted.
28. In my considered view on discernment of evidence led by the prosecution, prosecution has been able to prove all the ingredients required to prove the offence under section 380 IPC FIR No. 369/2017 PS Saket Page- 13 of 14 accordingly, he is convicted for the said offence.
29. Copy of judgment be given to convict free of cost.
Announced in the open
Court on 24.01.2019 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 14 pages and each page is signed by me.
(POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
FIR No. 369/2017 PS Saket Page- 14 of 14