Delhi District Court
State vs . Hemant & Anr. Fir No. 320/96 Ps Subzi ... on 29 February, 2012
State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC IN THE COURT OF NEERAJ GAUR, METROPOLITAN MAGISTRATEIII/NORTH, DELHI FIR No. 320/96 S/v Hemant & Anr. U/s 411 IPC PS: Subzi Mandi C/N. 1306/T U. ID No. 02401R0011411996 Date of Institution : 21.11.1996 Date of commission of offence : 26.08.1996 Name of the complainant : Sh. Chandra Shekhar Rastogi s/o Sh. Jitender Nath Rastogi Name and address of accused : (1) Hemant Kumar s/o Laxman Dass, r/o 1485,Punjabi Mohalla, Subzi Mandi, Delhi. : (2) Rajesh Kumar s/o Sh. Ram Adhar, r/o 992, Shora Kothi, Subzi Mandi, Delhi. Offence complaint off : U/S 411/34 IPC Plea of guilt : Pleaded not guilty Final Order : Convicted u/s 411/34 IPC. Date of reserve for order : 29.02.2012 Date for announcing the order : 29.02.2012. U.ID NO. 02401R0011411996 Page No. 1 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC J U D G M E N T:
Brief facts and pretrial proceedings
1. On 28.06.96, PW 1 Chander Shekhar parked his scooter No. DDS 3062 outside his house and on the next morning, it was found to be stolen. The investigation was set into motion and on 23.08.96 the officials of PS Nand Nagari apprehended both the accused persons along with the aforementioned stolen scooter. On completion of investigation, both the accused persons were chargesheeted u/s 411/34 IPC and after necessary compliances, these charges were framed against both of them on 29.09.97 to which they have pleaded not guilty and claimed trial.
Trial
3. To prove the charge, prosecution examined eight witnesses in total whose the depositions are being discussed in brief as follows : U.ID NO. 02401R0011411996 Page No. 2 of 13
State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC
(i) PW1 Chander Shekhar is the complainant in the present case who deposed that on 28.06.96 after closing his shop, he came to his house on his scooter No. DDS 3062 and parked his scooter in front of his house. On the next morning he found his scooter missing. He inquired from neighbourhood and went to PS and lodged the case FIR registered which is Ex.PW1/A. He further deposed that after 2 / 3 months, police officials informed that his scooter was recovered. Thereafter, he went to PS and got released his scooter on superdari.
(ii) PW2 Ct. Sunil Kumar brought in the court the register No. 19 along with case FIR No. 487/96 of PS Nand Nagari in which the scooter No. DDS 3062 was transferred to PS Subzi Mandi vide RC No. 103/21 dated 26.08.96.
(iii) PW3 HC Ramesh Chand is the DO who proved the FIR No. 320/96 u/s 379 IPC as Ex.PW3/A. U.ID NO. 02401R0011411996 Page No. 3 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC
(iv) PW4 HC Ombir Singh deposed that on 23.08.96 at about 10.15 he along with other police officials was on patrolling duty in front of Meet Nagar, Liquor shop, Wazirabad. He further deposed that one secret informer informed SI Rajeev Vimal that two persons would come from Loni Flyover on a stolen scooter and would go towards Ashok Nagar. On this information, 4 / 5 public persons were requested to join the investigation by SI Rajeev Vimal but none agreed. Thereafter, a raiding party was formed consisting of police officials and nakabandi was made in front of liquor shop and at about 10.35 pm, both the accused came from Wazirabad side on a scooter who on the pointing out of secret informer were stopped and apprehended. Accused Rajesh was driving the scooter and Hemant was a pillion rider on scooter No. DDP 3413. On asking for producing the documents pertaining to scooter, they did not give any satisfactory reply. U.ID NO. 02401R0011411996 Page No. 4 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC Thereafter, both the accused disclosed that the said scooter was stolen from Punjabi Mohalla, Subzi Mandi. On this SI inquired from PS Subzi Mandi and came to know that FIR no. 320/96 was registered. SI prepared rukka and handed over to Ct. Subhash for registration of FIR. The recovered scooter was taken into possession vide Mark A. He proved the disclosure statement of accused as Mark B and C, pointing out memo of place of occurrence as Mark D. Thereafter, both the accused were arrested and sent to lockup. He correctly identified the scooter as Ex.P1.
(v) PW5 HC Uttam Chand is the Duty Officer who registered the FIR no. 487/96 u/s 411/34 IPC and proved the same as Ex.PW2/A.
(vi) PW6 Ct. Subhash deposed that on 23.08.96 he along with SI Yogesh Malhotra, SI Vimal Kumar, HC Ombir, Ct. Devinder was on patrolling duty in Wazirabad. He deposed that at about 10.00 U.ID NO. 02401R0011411996 Page No. 5 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC pm two persons came on scooter but number of which he could not remember. He further deposed that on checking the number of scooter was found forged as 7394. He deposed that IO prepared rukka and handed over him. He went to PS, got the FIR registered and came back at the spot and handed over the rukka and copy of FIR to IO. Thereafter, they went to PS along with accused persons and scooter. He proved the disclosure statement of accused persons as Mark A and Mark B.
(vii) PW7 SI Rajeev Vimal deposed on the same lines of PW4 HC Ombir Singh. He deposed that on interrogation, the accused persons disclosed that they had stolen to scooter from the area of PS Subzi Mandi. The scooter was taken into police possession vide memo Mark A. On further interrogation, accused persons disclosed that they had also stolen scooter No. DL 2SE 2850 and DDS 3062. Both the scooters were got recovered from Gali No. 5, U.ID NO. 02401R0011411996 Page No. 6 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC Ashok Nagar and were taken into possession. He further deposed that concerned IO was informed .
He further stated that "I had prepared the site plan where I arrested the accused person but same is not filed with the charge sheet". He further stated that "I cannot disclose the name of any person to whom I requested to join the investigation". He further stated that he had not recorded the statement of any persons which could establish that the alleged scooters were stolen from PS Subzi Mandi. He further stated that the scooters were recovered from the premises of Rajesh Yadav. He further stated that he had not made any person a witness at the time of recovery of the stolen scooter. He further stated that at the time of checking of the alleged scooter, it was having no. DDP 3412 and he had not made any seizure of the number plate separate to scooter. He testified that as per his knowledge, the actual number of scooter U.ID NO. 02401R0011411996 Page No. 7 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC was DDV 7493. He had not recovered any original number plate of the said scooter. Firstly , he confirmed the original number of the said scooter from Police Control Room and thereafter, he informed to PS Subzi Mandi in regard to recovery of the said scooter. He further testified that when he examined the alleged stolen scooter actual number was written in the handle of the scooter. He stated that it was not mentioned in the seizure memo. He denied the suggestions put to him.
(viii) PW8 HC Yashbir Singh is the MHC(M) PS Subzi Mandi.
He deposed that as per the entry at serial no. 1965 the scooter No. DAB 7493 was deposited in the malkhana from PS Nand Nagari vide RC no. 103/21. He further deposed that the same was released to the rightful owner as per the order passed by Sh. Bharat Parashar, Ld. MM dated 14.05.97 on superdaginama in the sum of Rs. 15000/, copy of which is Ex.PW8/A. Thereafter, the U.ID NO. 02401R0011411996 Page No. 8 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC PE was closed and matter was listed for Statement of accused persons.
Statement of accused and defence
4. After concluding prosecution evidence, both the accused have been examined u/s 313 CRPC during which they claimed their innocence. They further stated that police lifted the younger brother Ajay Yadav of accused Rajesh Yadav from his house and for making inquiry, they reached at the PS Nand Nagari where they had some altercation with the police and due to the altercation, police falsely implicated them in the present case. They did not prefer to lead any evidence in defence.
Facts in issue
5. In the instant case the following facts are in issue :
(i) Whether the stolen scooter was recovered from the possession of the accused persons?
(ii)Whether the accused persons had knowledge or had reasons to U.ID NO. 02401R0011411996 Page No. 9 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC believe that the aforementioned car was a stolen property?
(ii)Whether the accused persons had common intention to receive or retain the aforementioned stolen scooter?
Arguments and appreciation of evidence in the light of legal propositions:
6. Ld. Defence counsel argued that no public person was made to join the investigation, hence, the recovery of the scooter from the accused persons has become doubtful. As a rule of prudence, the police is expected to join independent public witnesses during investigation to rule out the possibility of false implication. However, this cannot be treated as an absolute rule, the breach of which would be considered as fatal to the prosecution case. In the instant case, the raiding party was to be constituted without wasting any time. In these circumstances, I am not inclined to disbelieve the version of the recovery witnesses merely because public witnesses were not joined.
7. Ld. Counsel next argued that PW7 has not mentioned the U.ID NO. 02401R0011411996 Page No. 10 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC engine and chassis number of the scooter during his deposition. These numbers have been mentioned in the recovery memo. The statement of PW7 cannot be discredited only due to an omission to mention the engine and chassis number during his deposition.
8. Ld. Counsel finally argued that no document with respect to the ownership of the vehicle by PW1 has been filed. There is no cross examination of PW1 much less any suggestion made to him, to challenge his ownership over the stolen scooter. The accused persons have not even set up a case through crossexamination or in their statement u/s 313 CrPC that the scooter was not owned by PW1. In these circumstances, the objection is not sustainable in the eyes of law.
9. Through PW4 HC Ombir Singh, PW6 Ct. Subhash and PW7 SI Rajiv Bimal, prosecution has firmly established that the aforementioned scooter was recovered from the possession of both the accused persons on 23.08.96. Issue No. 1 has accordingly be proved by U.ID NO. 02401R0011411996 Page No. 11 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC the prosecution.
10. Regarding Issue Nos. 2 and 3, Ld. APP for the State has rightly argued that the intention and knowledge on the part of the accused persons to the effect that the scooter was a stolen property, can be gathered from the facts and attendant circumstances. The accused persons have not set up any case that they were the owners of the scooter or that they bonafidely came in possession of the scooter. In these circumstances, it can safely be inferred that both the accused persons had the common intention or knowledge that the scooter was a stolen property. Issue Nos. 2 and 3 are also proved by the prosecution beyond reasonable doubts.
Conclusion
11. After going through the evidence proved on record and in view of the aforementioned discussion, the charges have been proved against both the accused persons namely Hemant and Rajesh Kumar U.ID NO. 02401R0011411996 Page No. 12 of 13 State Vs. Hemant & Anr. FIR No. 320/96 PS Subzi Mandi U/s 411 IPC and I hold them guilty u/s 411/34 IPC.
Arguments on sentence shall be heard separately.
Announced in the Open Court (NEERAJ GAUR)
today i.e. on 29.02.2012 Metropolitan MagistrateIII(N)
Tis Hazari Courts, Delhi.
U.ID NO. 02401R0011411996 Page No. 13 of 13