Delhi District Court
) Rajinder @ Babu vs The State on 31 January, 2015
IN THE COURT OF SH. VIRENDER KUMAR BANSAL,
ADDL. SESSIONS JUDGE: FTC (WEST): TIS HAZARI; DELHI.
ID 02401R0512452014
Crl. Appeal : 36/2014 & 30/2014
1) Rajinder @ Babu
S/o Sh. Prem Kumar
R/o H.No.E442, 25 yars, T.C. Camp,
Raghubir Nagar, New Delhi
2) Deepak Kumar @ Deepu
S/o Sh. Naresh Kumar
R/o WZ72B, Tilak Nagar,
New Delhi. .... Appellants
Vs.
The State .... Respondent
Date of Institution : 15.10.2014 & 25.08.2014
Date of Judgment : 31.01.2015
ORDER
1. These two appeals are taken together as arising out of the same order i.e. conviction dt.21.07.2014 vide which accused Rajinder @ Babu and Deepak both the appellants were held guilty for the offence u/s 411/34 IPC and section 103 D.P. Act and the order on sentence dt. 26.07.2014 whereby convict Deepak was sentenced to Simple Imprisonment for 6 months with fine Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 1 of 10 of Rs.1,000/ in default of fine SI for one month for the offence punishable u/s 411 IPC and further sentenced to Simple Imprisonment for a period of One month for the offence u/s 103 D.P Act. Both sentences shall run concurrently. Benefit of section 428 Cr.P.C was given to him. The other convict Rajender @ Babu was sentenced to Simple Imprisonment for 2 years with fine of Rs.2,000/ in default of payment of fine further SI for one month u/s 411 IPC and further sentenced to one month Simple Imprisonment for punishable u/s 103 D.P. Act but it was ordered that both sentences shall run concurrently, benefit of section 428 Cr.PC was given.
2. The brief facts giving rise to the present appeals are that Md. Arif made a complaint to the police that on intervening night of 14/15.06.2009 some unknown person has stolen about Rs.26,000/ or Rs.27,000/, one camera Nikkon 10 mega pixel, 3 mobile phones I.e Nokia 1112, another mobile phone make Nokia with camera and third mobile phone of Tata Indicom. On this complaint FIR No.207/09 u/s 380 IPC was registered.
3. On 15.06.2009 itself accused Rajinder @ Babu and Deepak were arrested. Accused Rajinder got recovered from his house two mobile phones one Nokia i.e. grey colour and other Nokia 1112 and Camera Nikkon 10 mega pixel and Rs.6,000/ which he kept concealed under the mattress of the bed, same were seized. The other accused Deepak also got recovered one mobile phone Samsung Tata Indicom black clour and Rs.2,000/ which he kept Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 2 of 10 concealed under the mattress of the bed. Articels were seized. After completion of investigation charge sheet was filed. Both the accused were charged by the Ld. MM for the offence u/s 380/34 IPC and in the alternative u/s 411/34 IPC.
4. Thereafter, case was fixed for prosecution evidence. Prosecution in order to prove its case examined 7 witnesses. Thereafter, prosecution evidence was closed. Statement of accused persons were recorded wherein they denied the entire evidence and even the recovery, they claimed that they have been falsely implicated in this case and the case property was planted upon them. They did not wish to lead evidence in defence. The case was thereafter fixed for arguments. Ld. MM after hearing the arguments passed the order of conviction and order on sentence which is under challenge in the present appeal.
5. Notice of appeal was given to the State. Trial court record was summoned.
6. I have heard Ld. Counsel for the appellants, Ld. APP for the State and perused the record.
7. Ld. Counsel for appellant Deepak submitted that surprisingly in this case witnesses whose articles were stolen were not produced in the witness box. It has come on record that mobile phones allegedly stolen were belonging to the complainant examined as PW1 i.e. Mohd. Arif. The other Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 3 of 10 mobiles were owned by other persons i.e. Mr. Afzal and his brother Hamid Ali, who had participated in TIP proceedings. Even from TIP proceedings it cannot be made out as to which mobile phone belonged to whom. Ld. Counsel submitted that IMEI number were not given. It has also not come on record as to alleged mobile phone of Tata is the same which was alleged to have been stolen as the mobile phone which have been produced before the court was of Samsung and not Tata Indicom mobile as alleged. The receipt of the alleged mobile phone has also not been produced. It is a plain slip on which it has been mentioned that mobile phone is purchased and the alleged purchase is from Meerut. The receipt also shows that it is Samsung Raga and it is not a Tata Indicom. Ld. Counsel submitted that even police witnesses contradicted each other. The IO stated recovery was effected in the police station whereas as per prosecution story it was effected from house of accused persons. No public persons was joined at the time of recovery which create doubt on the prosecution story particularly, when the IO himself says that recovery was effected in the police station.
8. Ld. Counsel for Rajinder @ Babu submitted that it is a false case, recovery was planted upon him and no recovery was effected, but as he was having some previous involvements, police picked him and planted the case property. No public person was joined at the time of recovery. The recovery was effected in pursuance to the disclosure statement and they were very well knowing that there is likely of stolen property planted, despite that no effort Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 4 of 10 was made to join public witnesses. The police witnesses has also contradicted each other. Io has stated that entire recovery was effected in the police station though the story of prosecution is that recovery was effected from their houses. Ld. Counsel submitted that keeping in view all these facts the benefit of doubt should have been given to appellants by the trial court instead of held them guilty for the offence u/s 411 IPC.
Ld. Counsel further submitted that the court has even gone to the extent of convicting them u/s 103 D.P. Act though there was no such notice u/s 251 Cr.P.C given to them. Ld. Counsel submitted that there is alleged recovery of Rs.6,000/ and Rs.2,000/ respectively which is not such a big amount and there cannot be any evidence to this effect that from where they got Rs.2,000/ and Rs.6,000/. Ld. Counsel submitted that both appellants are working and if any money was found at their house does not mean that it was an unclaimed property or they came in possession by illegal means. It is prayed that conviction u/s 103 D.P.Act be set aside.
9. Ld. APP for the State opposed the appeals and submitted that the trial court has rightly held them guilty u/s 411 IPC as immediately after theft there was recovery of the mobile phones and the camera from the accused persons as they got it recovered from their respective houses that also from underneath mattress of the bed. Ld. APP for the State submitted that infact as the recovery was effected immediately after the incident the presumption Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 5 of 10 arises that theft might have been committed by them but still court has taken a lenient view and held them guilty u/s 411 IPC. As recovery was effected immediately after the theft and therefore, the presumption arises that they got the possession of the property with the knowledge that it is a stolen property even otherwise there is no such defence taken that they are the owners of the property discovered. There is simple denial of recovery. Ld. APP further submitted that so far as non joining of the public witnesses is concerned there no is such law that the testimony of police witnesses cannot be relied upon if no public witness is joined and that police witnesses have to be disbelieved. The rule is quality of evidence instead of quantity. The only precaution to be taken is that the testimony of police witnesses have to be scrutinized with more caution and care. Ld. APP submitted that IO though stated that recovery was effected from the police station but after he refreshed his memory which he has the right under law he stated that recovery was effected from accused persons from their houses and thereby corroborates the statement of other police witnesses. There is no reason to disbelieve their testimony and prayed that conviction u/s 411 IPC and sentence be upheld. So far as section 103 D.P. Act is concerned Ld. APP submitted that though there was no notice u/s 251 Cr.P.C for the offence punishable u/s 103 D.P.Act but still it being lesser offence the court was within its power to held him guilty u/s 103 D.P.Act. But he also candidly agreed that it was a meger amount therefore, it was not appropriate to convict the accused persons u/s Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 6 of 10 103 D.P.ACt for only being found in the possession of Rs.2,000/ and Rs.6,000/ respectively.
10. Keeping in view the submissions and the facts of the case so far as conviction u/s 103 D.P.Act is concerned i.e. set aside. So far as identity of the case property is concerned I found that property was owned by complainant Md. Arif, Hamid Ali and Afzal. In the TIP proceedings they have also identified the case property. The issue is whether Hamid Ali and Afzal were also necessary witness who have been examined. The necessary ingredients for proving theft is dishonestly taking out of possession. The law no where requires that the possession must be taken from the owner. Whosoever is in the possession is competent to complaint that property is stolen. The only requirement of owner is to identify the case property. No doubt Hamid Ali & Afjal were important for identification of mobile phone but the complainant has also identified these mobile phones and there is no cross examination on this point. No doubt in the TIP proceedings those 2 persons were also called but merely on that basis it cannot be said that their non examination is fatal when the case property otherwise is identified by the complainant during trial which is not disputed by the defence. There is also an issue of IMEI numbers of mobile phones. The complainant has not mentioned the IMEI numbers in the complaint. In the seizure memo IMEI number also not mentioned. There is no receipt placed on record to prove those IMEI numbers and even if at the time of evidence the court would have mention those IMEI's that would not Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 7 of 10 have made any difference as there is no other evidence to compare it with the same. Similar, is the position with the Tata Indicom phone. The phone is infact of Samsung as mentioned on cash receipt used as Tata Indicom but the complainant stated that it was Tata Indicom, but it has come in evidence that mobile phone recovered is the same which was stolen and clinches the issue. So far contradiction in the testimony of police witnesses is concerned that has been clarified by APP that IO after refreshing memory fully supported the prosecution story and corroborated other witnesses. Non joining of public witnesses is serious lapse but law is well settled that if witnesses are reliable, trust worthy and reliable than conviction can be based on the testimony of police witnesses.
11. Keeping in view these facts I do not find any reason to differ with the trial court where they were held guilty u/s 411 IPC. So far as appellant Deepak is concerned he has no previous criminal record and as per Ld. Counsel he is married and having 2 small children. It is prayed that a lenient view for him be taken as there are chances of his reformation & rehabilitation and he has also started working in DJ. Keeping in view the submissions and the fact that he is having no previous criminal record and he is now working and having small children, sentence is reduced to One month Simple Imprisonment u/s 411 IPC with fine of Rs.1,000/ in default of payment of fine further SI for one month. So far as appellant Rajinder @ Babu is concerned has already undergoing sentence awarded. So far as, Rajinder @ Babu is Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 8 of 10 concerned he was having 11 criminal cases pending against him in the contemporary period and the cases are still pending. Keeping in view all these facts sentence qua him reduced to Simple Imprisonment for one year six months with fine of Rs.1,000/ in default of fine further Simple Imprisonment for one month. Benefit of section 428 Cr.P.C be given to them. Appeals are accordingly disposed off.
Trial Court Record alongwith a copy of this order be sent to Ld. Trial Court.
Appeal Files be consigned to Record Room.
Announced in the open court
today on 31.01.2015 (VIRENDER KUMAR BANSAL)
ASJ/ FTC (WEST)
TIS HAZARI, DELHI
Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 9 of 10
31.01.2015
Present: Appellant Rajinder @ Babu produced from J/C.
Appellant Deepak in person.
Sh. Virender Singh, Addl. PP for the State.
Vide separate order passed today present appeal stands disposed off.
Trial Court record be sent back with the copy of this order.
Appeal file be consigned to record room.
(VIRENDER KUMAR BANSAL) ASJ/ FTC (WEST) TIS HAZARI, DELHI Crl. Appeal : 36/14 & 30/14 Rajinder @ Babu & Deepak Vs. State Page 10 of 10