Delhi District Court
State vs . Rajesh & Ors. on 24 July, 2013
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI - 110 054.
FIR No.715/1999
PS - Nangloi
State Vs. Rajesh & Ors.
Unique Case ID No. 02401R0133191999
JUDGMENT
(a) Sr. No. of the case 1593/1/08
(b) Date of offence 06/07.07.1999 & 22.08.1999
(c) Complainant Kanwal Singh S/o Sh. Raj Singh R/o VPO
Beri, District Jhajjar, Haryana.
(d) Accused person(s) 1. Virender @ Nanha S/o Sh. Mahavir Singh R/o B - 98, Phase - II, Prem Nagar, Sultan Puri, Delhi.
2. Shri Ram S/o Sh. Ramadhar Singh R/o Village Mirzapur, PS Barhaz, District Devariya, Uttar Pradesh.
(e) Offence(s) Under Section 379 and 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. (f) Plea of accused Pleaded not guilty (g) Final Order Convicted (h) Date of institution 23.09.1999 (i) Date when judgment was Not Reserved reserved (j) Date of judgment 24.07.2013
1. In the present case, the present accused persons have been charge sheeted for committing offences under Section 379 and Section 411 read with Section 34 of The Indian Penal Code, 1860. The allegations against the present accused persons are that on 06/07.07.1999 at night time at G - 30, Rajdhani Park, Nangloi, Delhi, the present accused persons along-with other co-accused namely Rajesh @ Sonu (Since PO) in furtherance of their common intention committed theft of car bearing registration FIR No.715/1999 Page No.1 to 11 number HR-07-0222 out of the possession of Kawal Singh S/o Ran Singh without his consent and further that on 22.08.1999 at Mirzapur, PS Barhaz, Uttar Pradesh, the present accused persons along-with co-accused Rajesh @ Sonu (Since PO) retained the same knowing or having reason to believe that the same is stolen property. According to the prosecution, the present accused persons have committed offences punishable under Section 379/411/34 of The Indian Penal Code, 1860.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the present accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge under Section 379/411/34 of The Indian Penal Code, 1860 was framed against all the accused persons vide order dated 19.11.1999 to which they pleaded not guilty and claimed trial. During course of trial, the accused Rajesh @ Sonu stopped appearing before this Court and was consequently declared proclaimed offender on 24.04.2004.
PROSECUTION EVIDENCE
3. In order to prove its case, prosecution has examined seven witnesses. PW1 SI Suresh Kumar has deposed that on 07.07.1999, he was posted on emergency duty from 08:00 pm to 08:00 am at PS Nangloi. On receiving D.D.NO.73B, he reached at the spot i.e. G - 30, Rajdhani Park, Nangloi, Delhi where the house was found locked. On inquiry, he came to know that the complainant has gone outside to search his vehicle. On the next day, complainant Kawal Singh came to PS and he recorded his statement Ex.PW1/A. He prepared Rukka Ex.PW1/B on the same. Copy of FIR is Ex.PW1/C. Thereafter, he along-with complainant reached at the spot and prepared site plan Ex.PW1/D and searched the vehicle, but, in vain. Then he returned back to PS and case was marked to Division Officer and thereafter, investigation was done by FIR No.715/1999 Page No.2 to 11 Bhagirath. PW1 was examined, not cross-examined by accused persons despite opportunity given and was discharged.
4. PW2 Ct. Dalbir has deposed that on 22.08.1999, he was present with IO SI A. K. Singh and Ct. Anand in investigation of the case FIR No.706/1999. They had gone to village Mirja Pur, Deveriya, Uttar Pradesh along-with accused Rajesh Kumar. In the village, accused Rajesh pointed out the house of Shri Ram and pointed towards accused Shri Ram who was standing outside of his house and stated that he was the person to whom he had sold the car. Accused Shri Ram pointed towards one car standing outside his house and disclosed that the said car was sold to him by accused Rajesh vide mark 'A'. IO took in possession said car bearing registration number HR-26C-7110 which appeared after uncovering the Tirpal from the car and the seizure memo is mark 'B'. IO arrested the accused Shri Ram and conducted his personal search and also prepared disclosure and pointing out memos of accused Shri Ram. The recovered car and accused persons were taken back to Delhi. He identified the accused Shri Ram in the Court. PW2 was examined, not cross-examined by accused persons despite opportunity and was discharged.
5. PW3 ASI Bhagirath has proved and exhibited the formal FIR as Ex.PW3/A. PW3 was examined, not cross-examined by accused persons despite opportunity and was discharged.
6. PW4 Kawal Singh has deposed that in the year 1999, he had maruti car which was used by him as taxi. He does not remember the exact date and month, but, it was the year of 1999, he had come to the house of his sister at Rajdhani Park, Nangloi in his car bearing registration number HR-07-0222 of white color. At about 09:00 pm, he had parked his maruti car in front of the house of his sister in a locked condition. On next day at about 07:00 am, he came out and noticed that his maruti car was not there. FIR No.715/1999 Page No.3 to 11 He searched it, but could not find it as it was stolen by some unknown person. He reported the matter to the police and police recorded his statement Ex.PW1/A. After about two months, he was informed from PS Nangloi that his car has been recovered and he came to the PS Nangloi and identified his maruti car standing at PS Nangloi. Car was identified by him as word "matki" name of his daughter was written on the rear screen of his car, but number plate of his car was changed. He got released his car on superdari from the Court in the month of November, 1999, but, he does not remember the exact date. Car is Ex.P1. PW4 was examined, not cross-examined by accused persons despite opportunity and was discharged.
7. PW5 Ct. Anand Singh has deposed that on 22.08.1999, he was posted as Constable at PS Nangloi and on that day, he along-with IO SI A. K. Singh, Ct. Dalbir and HC Harpal Singh in FIR No.706/1999 went to village Mirzapur, PS Barhaj, Deveriya, Uttar Pradesh along-with accused Rajesh Kumar (Since PO). In the village, accused pointed out towards accused Shri Ram and stated that he is the person to whom he had sold the car. Accused Shri Ram was standing in front of his house. He was apprehended and he pointed towards car and told them that the car was sold to him by accused Rajesh Kumar. IO arrested accused Shri Ram and recorded his disclosure statement Ex.PW5/A. Thereafter, IO seized car bearing registration number HR-26C-7110 vide seizure memo Ex.PW5/B. IO recorded his statement. He identified accused Shri Ram in the Court. PW5 was examined, cross-examined and was discharged.
8. PW6 HC Ram Khiladi has deposed that on 08.09.1999, he was posted as Constable at PS Nangloi and on that day, he accompanied HC Bhagirath in the investigation of the present case. He along-with IO went to Tis Hazari Courts where IO interrogated accused Rajesh Kumar (Since PO), Virender and Shri Ram. IO recorded FIR No.715/1999 Page No.4 to 11 disclosure statement of accused Rajesh Kumar as Ex.PW6/A. IO also recorded disclosure statement of accused Virender as Ex.PW6/B. IO also recorded disclosure statement of accused Shri Ram as Ex.PW6/C. Thereafter, they along-with accused persons went to H. No. G-30, Rajdhani Park, Nangloi where at instance of accused Rajesh Kumar and Virender pointing out memo Ex.PW6/D was preapred. IO recorded his statement. PW6 was examined, cross-examined by accused persons and was discharged.
9. PW7 SI Bhagirath has deposed that on 08.09.1999, he was posted as Head Constable at PS Nangloi and on that day, investigation of this case was marked to him and all the documents pertaining to this case handed over to him by MHC(R), Thereafter, he along-with Ct. Ram Khiladi went to Tis Hazari Courts where he interrogated accused Rajesh Kumar (Since PO), Virender and accused Shri Ram. He recorded disclosure statement of accused Rajesh Kumar as Ex.PW6/A. He also recorded disclosure statement of accused Virender as Ex.PW6/B. He also recorded disclosure statement of accused Shri Ram as Ex.PW6/C. Thereafter, they along-with accused persons went to H. No. G-30, Rajdhani Park, Nangloi where at instance of accused Rajesh Kumar and Virender pointing out memo Ex.PW6/D was prepared. He recorded statement of witnesses and after completion of investigation and filed the charge sheet in the Court for judicial verdict. PW7 was examined, not cross-examined by accused persons despite opportunity and was discharged. STATEMENT OF ACCUSED PERSON(S)
10. After closure of prosecution evidence, the statement of present accused persons was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973. Incriminating evidence was put to them. Accused Virender denied all the allegations and stated that he is innocent FIR No.715/1999 Page No.5 to 11 and has been falsely implicated in this case. Accused Shri Ram denied that he has committed the theft, but stated that it is correct that the car was recovered from him as alleged. He further stated that the accused Rajesh @ Sonu (since PO) sold him the same in sum of Rs.45,000/-, but he did not know that the same was stolen property. He further stated that accused Rajesh @ Sonu (since PO) also handed over all the documents of the vehicle to him and told him that the car belongs to him. Accused persons opted not to lead evidence in their defence.
RELEVANT PROVISIONS : -
11. To bring home guilt under Section 379 of The Indian Penal Code, 1860, the prosecution has to prove that :-
(a) the accused had dishonest intention to take moveable property;
(b) the property was taken out of the possession of another person by the accused resulting in wrongful gain to him and wrongful loss to another;
(c) the property was moved in order to such taking; and
(d) the accused had taken that property without that persons express or
implied consent.
To bring home guilt under Section 411 of The Indian Penal Code, 1860, the prosecution has to prove that :-
(a) the stolen property was in possession of the accused; and
(b) the accused has knowledge or must have reason to believe that the property was stolen property.
Further Section 114 of The Indian Evidence Act, 1872 provides :-
Section 114 : Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being FIR No.715/1999 Page No.6 to 11 had to the common course of natural events, human conduct and public and private business, in their relation to the facts to the particular case.
Illustrations: -
(a) The Court may presume "that a man who is in 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."
APPRECIATION OF FACTS/CONTENTION/ANALYSIS/FINDINGS
12. At the outset, it is pertinent to mention here that the status of the case property car bearing registration number HR-07-0222 has been proved on record as being stolen property. The PW4 has deposed that in year 1999 his maruti car bearing registration number HR-07-0222 of white colour was stolen from outside the house of his sister situated at Rajdhani Park, Nangloi, Delhi. He got recorded his statement Ex.PW1/A. PW3 has proved and exhibited the formal FIR Ex.PW3/A. The evidence of PW4 and PW3 went un-rebutted. In these circumstances, it is proved on record that Maruti car bearing registration number HR-07-0222 was stolen from possession of the complainant PW4 in intervening night of 06/07.07.1999.
13. In this matter, PW4 or any other witness has not deposed that they had seen the present accused persons and accused Rajesh @ Sonu (since PO) stealing the vehicle in question. The pointing out memos of place of theft of accused Rajesh @ Sonu (since PO) and Virender @ Nanha have been exhibited in evidence. The disclosure statements of the present accused persons and Rajesh @ Sonu (since PO) have also been exhibited in the evidence of prosecution witnesses. The pointing out memos have no incriminating value as the place of theft was already known to the police. In view of the law that disclosure statements are admissible and relevant only to FIR No.715/1999 Page No.7 to 11 the extent, if some fact or object is recovered in pursuant to those disclosures, therefore, there is no admissible or incriminating evidence on record to convict the accused persons for offence under Section 379 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860, therefore, both the present accused persons stands acquitted for offence under Section 379 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
14. Now, this Court is considering this matter qua offence under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. In the present matter, the PW2 and PW5 have deposed that on 22.08.1999, they along- with IO SI A. K. Singh of FIR No.706/1999 of PS Nangloi and accused Rajesh @ Sonu (since PO) went to village Mirzapur, PS Barhaz, Deoria, Uttar Pradesh. In the village, accused Rajesh @ Sonu (since PO) pointed towards accused Shri Ram and stated that he is the person to whom he had sold the car. Accused Shri Ram was standing in front of his house at that time. They apprehended accused Shri Ram and accused Shri Ram pointed towards a car and told them that the car was sold to him by accused Rajesh Kumar. Accused Shri Ram was arrested and his disclosure statement Ex.PW5/A was recorded. The car bearing registration number HR-26C-7100 was seized vide Ex.PW5/B. Thereafter, it was revealed that the said car is the case property of the present matter having registration number HR-07-0222. PW4 has deposed that when he went to PS Nangloi, he identified his car standing at PS Nangloi as "Matki" name of his daughter was written on rear screen of his car, but the number plate of the car was changed.
15. Now, as far as question of offence under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 against accused Virender @ Nanha is concerned, there is only disclosure statement of accused Virender FIR No.715/1999 Page No.8 to 11 @ Nanha on record qua the same. The recovery of the stolen vehicle has not been effected at the instance of accused Virender @ Nanha, but, has been effected at the instance of co-accused Rajesh @ Sonu (since PO) from the accused Shri Ram. In these circumstances, there is no admissible and incriminating evidence against accused Virender @ Nanha on record even for offence under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 and therefore, he is entitled for acquittal qua offence under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 also.
16. Now, as far as case qua offence under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 against accused Shri Ram is concerned, it is proved on record that the case property, the status of which has already been proved on record as stolen property as discussed above was recovered from the possession of the accused Shri Ram on 22.08.1999 in FIR No.706/1999 at the instance of co-accused Rajesh @ Sonu (since PO). In his statement under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973, the accused Shri Ram admitted that the case property was recovered from him as alleged by the prosecution. So, it leaves not even iota of doubt that the case property was recovered from accused Shri Ram on the instance of co- accused Rajesh @ Sonu (since PO) as alleged by the prosecution. The accused Shri Ram further submitted in his statement under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 that he purchased the vehicle in question from accused Shri Ram in sum of Rs.45,000/- and he did not know that the same was stolen property and accused Rajesh @ Sonu (since PO) told him that car belongs to him and handed over all the documents of the vehicle to him.
FIR No.715/1999 Page No.9 to 11
17. The sale of any vehicle requires original documents, the owner of the vehicle, the sale affidavit, the NOC and the duly filled forms prescribed for transfer of the vehicle by the registering authorities. The accused Shri Ram has not brought any evidence on record to prove that he was cheated by the co-accused Rajesh @ Sonu (since PO) by transferring the vehicle in question in his name on the basis of forged and fabricated documents. He has also not brought on record the documents of sale as alleged by him to substantiate his claim despite opportunity for the same and chose not to lead any evidence in his defence. Moreover, he has not taken this defence in the cross-examination of any of the witnesses of the prosecution. In these circumstances, in the opinion of this Court, the said defence of the accused Shri Ram that he purchased the stolen vehicle in question in sum of Rs.45,000/- and he did not know that the vehicle was stolen is an afterthought. In the opinion of this Court, in the present circumstances, only inference which can be drawn is that the accused Shri Ram retained the case property in question having reason to believe or even with the knowledge that the vehicle is a stolen property. In these circumstances, the accused Shri Ram is liable to be convicted for offence under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 as he retained the same with co- accused Rajesh @ Sonu (since PO) in the above-said circumstances.
18. In view of the reasons discussed above, the accused Virender @ Nanha and accused Shri Ram stands acquitted for offence under Section 379 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. The accused Virender @ Nanha also stands acquitted for offence under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. The accused Shri Ram stands convicted for offence under Section 411 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
FIR No.715/1999 Page No.10 to 11
19. Copy of judgment be supplied to the convict person free of cost. Announced in the open Court on July 24, 2013.
(HARVINDER SINGH) MM-03/THC (West), Delhi/24.07.2013 FIR No.715/1999 Page No.11 to 11