Delhi District Court
State vs . Devender @ Sonu & Ors. on 15 September, 2021
1
IN THE COURT OF SH. MANISH JAIN, MM01,WEST DISTRICT,
TIS HAZARI COURT, DELHI
STATE VS. DEVENDER @ SONU & ORS.
FIR No. 153/1998
PS: PUNJABI BAGH
U/S: 379/411/468/471/201 IPC
DLWT020000202001
ID No. 61389/2016
Date of commission of offence 05.03.1998
Date of institution of the case 22.12.2001
Name of the complainant Sh. S. P. Gulyani
R/o J7/48, Rajouri Garden, Delhi.
Name of accused and address (1) Devender Nangia @ Sonu s/o
Sh.Gian Chand r/o A2B/141C, MIG
Flats, Paschim Vihar, Delhi.
(2) Parminder @ Micky s/o Sh.
Amarjeet Singh r/o A2B/115A, MIG
Flats, Paschim Vihar, Delhi.
(3) Hitesh Kumar Rastogi s/o Sh. Hari
Kishan Rastogi r/o E9, New Bharat
Apartment, Block A4, Paschim Vihar,
Delhi.
(4) Aman Madaan s/o Sh. Lajpat Rai
r/o EA33, SFS Maya Enclave near
Hari Nagar, Delhi.
FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
2
Charge framed 420/468/403/411/120B IPC
Plea of the accused Pleaded not guilty
Final order Accused Parminder @ Micky, Hitesh
Kumar Rastogi and Aman Madaan are
acquitted for offences under section
420/468/403/411/120B IPC.
Accused Devender Nangia @ Sonu
acquitted for offence 420/468/403/
120B IPC, however convicted for
offence u/s 411 IPC.
Date of judgement 15.09.2021
JUDGMENT
1. The case of the prosecution, in brief, is that all the accused persons entered into a criminal conspiracy and in furtherance of said criminal conspiracy, accused Devender and Parminder stole certain articles i.e. one stereo make Pioneer and wallet of the complainant. Thereafter accused Devender and Parminder handed over the aforesaid credit cards to coaccused Hitesh and Aman. It is further alleged that one of the stolen credit cards bearing no. 494077850093009 was used by them between 21.02.1998 and 28.02.1998 alongwith coaccused Rajesh Chauhan (not arrested) in purchasing the articles by making forge signature of complainant S. P. Guliani and dishonestly inducing the persons / establishment to deliver the articles. On the basis of statement of the complainant, an FIR was registered. After completion of necessary investigation, charge sheet was filed in the Court. On accused FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
3persons being summoned, charge was framed against all four accused persons under section 420/468/403/411/120B IPC, to which they pleaded not guilty and claimed trial.
2. The prosecution examined fifteen witnesses in support of its case, which are as follows:
a) PW1 Sh. Dhirender Kohli, PW2 Sh. Ramji Tandon, PW3 Sh. Rajesh Kumar Bansal, PW4 Sh. Govind Kumar, PW5 Sh. Anil Kapoor, PW6 A. K. Agarwal, PW7 Sh. H. A. Khan and PW8 Karan were the eye witnesses, however they failed to identify the accused persons.
b) PW9, SI Sohan Ram, deposed that he alongwith ASI Sheesh Pal and accused Hitesh Kumar visited Lucknow for investigation of the present case and he proved the pointing out memo cum seizure memos Ex.PW9/A to Ex.PW9/H.
c) PW10, SI Kalyan Singh, deposed that he had joined the investigation of the present case alongwith IO and proved the pointing out memo cum seizure memo Ex.PW10/A.
d) PW11, ASI Kalyan Singh, deposed that he had joined the investigation of the present case alongwith IO and proved disclosure memos Ex.PW11/A to Ex.PW11/D and pointing out memo cum seizure memo Ex.PW11/E to Ex.PW11/H. He also proved personal search of all accused persons vide memo Ex.PW11/I to Ex.PW11/L.
e) PW12, Retd. SI Urmila Sharma deposed that on 05.03.1998, she was FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
4working as duty officer and proved the FIR Ex.PW12/A and Ex.PW12/B.
f) PW13, ASI Mukesh Kumar, deposed that on 05.03.1998, investigation of the present case was marked to him. He interrogated the complainant and prepared site plan Ex.PW13/A. He further deposed that on 08.03.1998 the present case was assigned to ASI Shishupal.
g) PW14, ASI Pawan Kumar, deposed that he had also joined the investigation of the present case and deposed on the lines of PW9 SI Sohan Ram.
h) PW15, Retd. SI Shish Pal, deposed that on 08.03.1998, he was working as ASI at police station Punjabi Bagh and investigation of the present case was handed over to him. He deposed that on receiving secret information, he had conducted raid and apprehended and arrested two persons namely Devinder and Parminder vide arrest memo Ex.PW15/A and Ex.PW15/B. He also conducted their personal search vide memos Ex.PW11/K and Ex.PW11/L. He also recorded their disclosure statement vide memo Ex.PW11/A and Ex.PW11/B. PW15 further deposed that he had arrested accused persons namely Hitesh and Aman vide arrest memo Ex.PW15/C and Ex.PW15/D. He also conducted their personal search vide memos Ex.PW11/I and Ex.PW11/J. He also recorded their disclosure statement vide memo Ex.PW11/C and Ex.PW11/D. He further deposed on the lines of PW9 and PW11. He also seized the copy of cash memo 16769 vide memo Ex.PW15/E. FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
503. After closure of prosecution evidence, the statement of the accused persons were recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused persons and they were questioned generally on the case. He denied all the allegations and stated that they are innocent and have been falsely implicated in this case. The accused persons opted not to lead any defence evidence.
04. I have heard the submissions of both the parties and perused the evidence on record carefully. Ld. APP for State has submitted that the prosecution has proved its case beyond reasonable doubt and the accused be convicted for the alleged offence.
05. On the other hand, the Counsel for accused has submitted that the prosecution has failed to prove its case beyond reasonable doubts.
06. It is a case of the prosecution that accused Devender and Parminder committed the offence of theft by breaking open one Maruti car, whereafter one Pioneer stereo and the wallet of the complainant were stolen by them. The prosecution has relied upon disclosure statements given by all the accused persons which are Ex. PW 11/A to Ex. PW 11/D. It is alleged by the prosecution that accused no.1 i.e. Devender has got recovered the Pioneer stereo i.e. the stolen property from its Almirah and also other articles which FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
6were obtained by him in lieu of seven credit cards which were given by him and accused no. 2 to accused no.3 and 4. It has been deposed by PW 15 that the recovery memo PW 11/E was prepared by him after the accused Devender identified and got recovered the Pioneer stereo from his custody on the basis of his disclosure statement. It is observed that no effective crossexamination has been made by the counsel for accused with respect to factum of recovery of Pioneer Stereo at the instance of accused Devender. The effect of non crossexamination is that the statement of witness has not been disputed.
07. In these circumstances, the culpability of accused Devinder with respect to the offence punishable under section 411 IPC has been established and proved beyond reasonable doubt.
08. With respect to the culpability of other accused persons qua the sections invoked against them and also the culpability of accused Devinder with respect to section 120B IPC, the prosecution has relied upon the disclosure statements given by the accused persons and in furtherance of the disclosure statement, the recovery of certain articles purchased by the stolen credit card.
09. In this context, I am constrained to refer Mehboob Ali & Anr vs State Of Rajasthan [Crl.A. No. 1088 of 2010], wherein the scope of section 27 Indian Evidence Act, 1872 has been discussed, the relevant extract of FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
7which is reproduced herein under "13. For application of section 27 of Evidence Act, admissible portion of confessional statement has to be found as to a fact which were the immediate cause of the discovery, only that would be part of legal evidence and not the rest. In a statement if something new is discovered or recovered from the accused which was not in the knowledge of the Police before disclosure statement of the accused is recorded, is admissible in the evidence.
14. Section 27 of Evidence Act refers when any "fact" is deposed. Fact has been defined in section 3of the Act. Same is quoted below :
"Fact" means and includes-- (1) any thing, state of things, or relation of things, capable of being by the senses;
(2) any mental condition of which any person is conscious. Illustrations:
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain
intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact. "Relevant". --One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.8
relevancy of facts."
15. In State of Maharashtra v. Damu Gopinath Shinde & Ors. [AIR 2000 SC 1691] the statement made by the accused that the dead body of the child was carried up to a particular spot and a broken glass piece recovered from the spot was found to be part of the tail lamp of the motorcycle of co accused alleged to be used for the said purpose. The statement leading to the discovery of a fact that accused had carried dead body by a particular motorcycle up to the said spot would be admissible in evidence. This Court has laid down thus :
"36. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
910. In light of Section 27 Indian Evidence Act, whatever information has been given by the accused in consequence of which a fact is discovered, that part only would be admissible in the evidence, whether such information amounts to confession or not. The basic idea embedded in the Section 27 Indian Evidence Act is the 'doctrine of confirmation by subsequent events'. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true.
11. The logical connection between the accused and the discovery statement lies in the fact that the fact has been discovered from the 'specific knowledge' of the accused. The said fact shall be relevant and shall have a bearing upon the fact in issue.
12. In the present case, the prosecution has heavily relied upon the disclosure statements made by the accused persons wherein the identity of the shops from where the recovered articles were purchased by the accused persons with the help of the stolen credit card has been disclosed. It is worth mentioning that the articles recovered from the accused persons are not the stolen articles, rather it has been alleged by the prosecution that the recovered articles were purchased by the accused persons from the stolen credit card, the credit cards which were never recovered. The case of the prosecution revolves around the fact that it is upon the disclosure statement given by the accused FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
10persons and thereafter pinpointing towards the shop, that the identity of the shops from where the recovered articles were purchased has been established.
13. At this juncture, it is pertinent to emphasise upon the underlining of Section 27 Indian Evidence Act. The emphasis of Section 27 Indian Evidence Act is upon the 'specific knowledge' of the accused person with respect to a fact, which the other person have no reasonable means to obtain. In the present facts, the information with respect to the shops where the stolen credit card was used can be easily obtained from the concerned bank and is accessible to the investigative agency. Since the information with respect to the shops where the stolen credit card was used was not within the 'specific knowledge' of the accused persons, the statement given by the accused persons is not relevant as is not covered within the ambit of proviso to Section 25 and 26 Indian Evidence Act i.e. section 27 Indian Evidence Act.
14. The prosecution has also produced the concerned persons from the shops where the stolen credit card was used as their witnesses, however, none of them was able to identify the accused persons.
15. Further, it is alleged by the prosecution that one of the stolen credit cards was used to withdraw cash from the ATM. However, no CCTV footage of the ATM has been obtained by the investigative agency. In this context, I deem it appropriate to refer Tomaso Bruno & Anr vs State Of U.P FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
11[CRIMINAL APPEAL NO. 142 OF 2015 (Arising out of S.L.P.(Crl.) No. 1156/2013)], the relevant extract of which is reproduced herein under: "The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW1, PW12 and PW13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114(g) of the Evidence Act the prosecution withheld the same as it would be unfavourable to them had it been produced."
16. The presence of CCTV footage could have been a pivotal evidence in order to implicate the accused persons and could have acted as a determining factor in the decision of this case. It appears that no efforts have been made by the investigative agency to procure the CCTV footage, which goes to the roots of this case.
17. Accused persons Hitesh and Aman were apprehended on the basis of the disclosure statement given by the accused Devender and Parminder. However, no connecting link has been established between FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
12accused Devender and Parminder on the one hand, and accused Hitesh and Aman on the other hand. Further, the disclosure statements given by all the accused persons have not been confirmed by the subsequent events, therefore the disclosure statements given by them does not bear any relevance for the adjudication of this case.
18. The proving of offence of cheating, forgery and criminal misappropriation as pressed by the prosecution were dependent on the identification of the accused persons by the witnesses produced by the prosecution.
19. PW1 to PW8 were allegedly the eye witnesses, however, none of them was able to identify the accused. Therefore, the court is of the opinion that no purpose would be served by appreciating the evidences produced by the prosecution with respect to the alleged forged signatures by the accused persons.
20. It is trite law that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. For the reasons stated in aforesaid paragraphs, the prosecution has not been able to discharge the onus placed upon it with respect to accused Parminder @ Micky, Hitesh Kumar Rastogi and Aman Madaan, the benefit of which must accrue to the accused persons. Accordingly, the accused Parminder @ Micky, Hitesh FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.
13Kumar Rastogi and Aman Madaan are hereby acquitted for the offences punishable under Section 420/468/403/411/120B IPC. Further accused Devender is also acquitted for the offences punishable under Section 420/468/403/120B IPC.
21. With respect to accused Devender @ Sonu, all the ingredients of the offence punishable under Section 411 IPC stands duly proved. The prosecution has been able to prove its case beyond reasonable doubt. As such, accused Devender @ Sonu is convicted for the offence punishable under Section 411 IPC.
22. Convict Devender Nangia @ Sonu is directed to file an affidavit of his income and assets in Annexure A format in compliance of the directions contained in case titled Karan vs. State of NCT of Delhi in Criminal Appeal No.352/2020 and 353/2020 of the Hon'ble High Court of Delhi within 10 days. State is also directed to disclose the expenses incurred in the prosecution on an affidavit alongwith supporting documents within 30 days.
23. Copy of the judgement be given to the convict free of cost.
ANNOUNCED IN THE OPEN (MANISH JAIN) COURT ON 15th SEPTEMBER, 2021 MM01(WEST)/THC/DELHI FIR No.153/1998, PS Punjabi Bagh, State Vs. Devender @ Sonu & Ors.