Delhi District Court
State vs . Anwar & Asfaq on 25 September, 2014
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IN THE COURT OF SH. ANKIT SINGLA
MM03(SOUTH DISTRICT), SAKET, NEW DELHI
STATE Vs. Anwar & Asfaq
FIR NO. : 47/02
P.S. : Hauz Khas
U.S. : 379/411 IPC
J U D G M E N T
a. Sl. No. of the case and : 574/2 dt. 04.12.2010 date of its institution b. Name of the complainant : Sh. Mata Parshad R/o C31, Hauz Khas, New Delhi.
c. Date of commission of
offence : 14.01.2002
d. Name of the accused : 1. Anwar S/o Sh. Babu Khan R/o Village Jahid Pur, PS : Kharkoda, Distt. Meerut, UP.
2. Asfaq S/o Sh. Munshi R/o Village Jahid Pur, PS : Kharkoda, Distt. Meerut, UP.
e. Offence complained of : U/s 379/411 IPC f. Plea of accused : Pleaded not guilty g. Case reserved for orders : 25.09.2014 h. Final order : Convicted i Date of such order : 25.09.2014. FIR No. 47/02 State Vs. Anwar & Anr. Page No. 2 of 11
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. By way of this judgment, I shall dispose off present FIR which was lodged on the complaint of Sh Mata Parsad on 14.01.2002.
2. The brief facts of the case are that on 14.01.2002 at 67AM at C31, Hauz Khas, accused persons committed theft of stereo set from a car bearing no. PB08AE8380 belonging to complainant and alternatively on 14.01.2002 at about 11.15PM near hotel Princes Garden, South Extn.II, both the accused were fond in possession of the said stereo which both the accused retained knowingly or having reason to believe that the said vehicle was stolen property and thereby both the accused persons committed the offences punishable u/s. 379/411 IPC.
3. After completion of the investigation, the chargesheet was filed in the Court. Copies were supplied to both the accused persons and after completion of necessary formalities, on 03.02.2011, charge for commission of the above said offences was framed upon the accused persons to which they pleaded not guilty and claimed trial.
4. The prosecution to prove its case examined (08) eight FIR No. 47/02 State Vs. Anwar & Anr.
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witnesses. Statements of accused persons were also recorded U/sec. 313 Cr.PC whereby both the accused persons denied the story of the prosecution. The relevant and material extract of evidence produced by the prosecution are as mentioned in the paragraphs below.
5. PW1 ASI Ved Veer Singh deposed that on 14.1.2002 he was posted at PS Hauz Khas and on that day the complianant Sh. Mata Prasad came to PS ; lodged his complaint Ex PW1/A reg. theft of stereo from his car which he parked in his office ; after the registration of FIR ; the investigation was handed over to him ; during investigation he went to spot ; prepared the site plan Ex PW1/A1 at the instance of complainant ; searched for accused and stolen stereo ; on 15.1.2002 an information was recd. from PS Defence Colony reduced as DD No. 5A true copy of the same is Ex PW1/B regarding the recovery of the stolen stereo and the accused of accused persons ; both the accused were brought to PS Hauz Khas during PC remaind in cae FIR No. 46/2002 where he formally arrested them vide arrest memo Ex PW1/C and Ex PW1/D ; he got the case property transfered from malkhana of PS FIR No. 47/02 State Vs. Anwar & Anr.
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Defence Colony ; deposited the same in malkhana of PS Hauz Khas ; TIP of case property recovered from accused was got done by complainant who identified his stereo stolen from his car ; he recorded the statement of witnesses.
6. PW2 Inspector Kuldeep Singh deposed that in the intervening night of 14th / 15th of January 2002 ; he was posted as PS Defence Colony ; on that day he along with HC Sunil Gaur ; Ct. Ravinder and Ct. Ramesh were on anti auto theft checking and at about 11.15PM, they were checking vehicle at South Extn2 by laying the barricades ; at that time they saw that one car no. DD6416 coming from C Block South Extn2 which was signaled to spot ; however driver of vehicle tried to speed up the vehicle ; tried to ran away from spot which was stopped by them due to the barricades laid by them ; on checking two persons were found in the vehicle who disclosed their names as Asfaq and Anwar ; accused Anwar had wrapped his body with shield ; on checking one plastic bag was hidden by him ; same was opened , seen and was found containing two stereo ; on inquiry they admitted to have stolen the same from the area of PS Hauz Khas & Sarojini FIR No. 47/02 State Vs. Anwar & Anr.
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Nagar ; IO then inquired from the respective Pss and information was found to be correct ; he seized the stereos vide seizure memo Mark A ; prepared the rukka and sent Ct. Ravinder for registration of FIR ; after the registration of FIR ; both the accused ( present in court, correctly identified by witness ) were arrested ; their disclosure statement was recorded being Mark B and C ; then both the accused were taken to PS ; case property was deposited in the malkhana ; he recorded the statement of witnesses ; on 15.1.2002 both the accused pointed out the place of occurrence recorded as Ex PW2/A ; he informed the PS regarding the recovery and arrest of accused persons.
7. PW3 Mata Prasad deposed that in the intervening night of 13/14 of January 2002, the office car bearing no. PB08AE8380 was parked in front of the house of his chairperson where he used to work as a supervisor ; next morning when they checked the car ; the side door glass of the driver side was borken and music system and stereo was fitted in car was found removed ; then they searched for stereo system ; but the same could not be found ; then they went to PS ; lodged the complaint Ex PW1/A ;
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on next day police informed them that their stolen stereo was recovered by them ; thereafter he got the same released from court on superdarinama Ex PW3/A.
8. PW4 Ct. Ravinder Singh & PW5 HC Ramesh deposed on the line of PW2 Inspector Kuldeep Singh.
9. PW6 ASI Sugam Singh deposed that on 14.01.2002 he was duty officer and at 9.50PM, reader of SHO handed over him one complaint Ex PW1/A for registration of FIR ; on the basis of same he made endorsement on complaint Ex PW1/A and registered the present FIR Ex PW6/A.
10. PW7 Ct. Muazziz Husain deposed that on 18.1.2002, he had joined the investigation with IO ; on that day IO had arrested both the accused namely Anwar and Asfaq in the PS Hauz Khas ; he was only witness to the arrest of both the accused persons within the court and no other proceeding was done in his presence.
11. PW8 HC Ravinder deposed that he is posted as MHC(R) at PS Defence Colony ; he has brought the summon record of FIR No. 42/2002 dt. 15.1.2002 i.e. containing computerized copy of FIR ; disclosure statement of both the accused Anwar & Asfaq , seizure FIR No. 47/02 State Vs. Anwar & Anr.
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memo of stereo dt. 15.1.2001 ; photocopies of the same are tallied with the photocopies attached with the judicial record which are Ex PW8/A to Ex PW8/D (OSR).
12. Vide their separate statement recorded u/s. 294 CrPC, both the accused persons did not dispute the TIP proceedings conducted by Sh. Gulshan Kumar the then Ld. Link MM at Patiala House Court.
13. In order to prove the charges u/s. 411 IPC, prosecution is required to prove following;
(i) the case property is stolen property ;
(ii) same has been recovered from the possession of accused persons ;
(iii) accused persons were in possession of same with knowledge or reason to believe that same is stolen property.
14. PW3 Mata Prasaid proved that on intervening night of 13/14 of January 2002, one car bearing no. PB08AE8384 was parked and in the morning of 14.01.2002 side door glass of driver side was found removed and music system and stereo was also found missing. Thereafter, a complaint Ex PW1/A was made by this FIR No. 47/02 State Vs. Anwar & Anr.
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witness. This witness also proved that he got the case property released on superdari and also identified the same during the TIP. PW6 proved that on the basis of the complaint Ex PW1/A present FIR was registered. The identity of case property is not disputed by defence. Testimony of this witness proved beyond reasonable doubt that case proeprty was stolen property.
15. Secondly testimony of PW2 Inspector Kuldeep Singh PW4 Ct.
Ravinder Singh and Ct. Ramesh proved that on 14.01.2002 at about 11.15PM , both the accused were found coming in the car and they were stopped on picket and case property was found in suspicious circumstances in the possession of accused persons. Same was seized vide seizure memo Mark A. The original was produced in the court by calling record of FIR No. 42.2002 of PS Defence Colony which is Ex PW8/D. Defence could not point out any material contradictions in the testimonies of these witnesses. Testimonies of these witnesses in fact corroborate each other and give assurance that case property was recovered from the possession of accused. Testimony of these witnesses is further corroborated by DD No. 5A Ex PW5/E which proved that FIR No. 47/02 State Vs. Anwar & Anr.
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information regarding recovery of stolen property was received from PS Defence Colony. Testimony of IO ASI Ved Veer further corroborate the testimony of prosecution. He proved that he formally arrested the accused perons vide memo Ex PW1/C and Ex PW1/D. Ld counsel argued that recovery can be considered proved only against accused Anwar and not against accused Asfaq. He submitted that at the time of recovery, property was in the possession of Anwar. I do not find any force in the submission of ld defence counsel. In the present case, thing speaks for itself i.e. circumstance in which case property was recovered itself explain the connivance of both accused persons with each other. Case property was found in the possession of accused Anwar and he had wrap it in the car driven by Asfaq at night time. No explanation was given by accused persons during their S/A us. 313CrPC and through by leading defence evidence as to how they came into possession of the property in question. Further, section 411 IPC not only punish actual physical possession but also constructive possession. Thus, in the present case circumstances explain that there was meeting of mind between both the accused FIR No. 47/02 State Vs. Anwar & Anr.
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persons. Further, no suggestion was put to any prosecution witness that accused Asfaq had no knowledge that property is stolen property. Hence, in view of above discussion it stands proved that property was recovered from the possession of both the accused persons.
16. Thirdly, the circumstances in which accused persons were in possession of stolen property explain that they were having knowledge that case property was stolen property.
17. In view of the above discussion, it can be said that prosecution is able to prove all the ingredient u/s. 411/34 IPC. Thus, both the accused persons are convicted u/s. 411/34 IPC.
18. Further, both the accused persons have been charged for the offence punishable u/s. 379 IPC. Prosecution could not produce any evidence that any one saw the accused persons committing the offence. Further, accused persons are not caught immediately with the case property. Possibility like they procured the property from some one else cannot be ruled out. Further, no reason can be explained as to why accused persons will roam with the stolen articles in the same locality after 24 hours of theft.
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19. Thus, in the absence of any proof which can prove the ingredient of section 379 IPC beyond reasonable doubt, it is not possible to convict the accused persons for the offence u/s. 379 IPC. Hence, both the accused persons are acquitted for the offence punishable u/s. 379 IPC.
20. To come up for hearing on sentence u/s. 411 IPC on 27.09.2014.
Announced in open court (Ankita Singla)
on 25.09.2014 MM(03)/South District/Saket
FIR No. 47/02 State Vs. Anwar & Anr.
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FIR No. 47/02 State Vs. Anwar & Anr.