Delhi District Court
State vs . : Manoj Kumar & Ors. on 23 April, 2022
IN THE COURT OF MS. ANU AGGARWAL, ASJ-07
PATIALA HOUSE COURTS, NEW DELHI DISTRICT, NEW DELHI
State Vs. : Manoj Kumar & Ors.
SC No. : 139/13
Case No. : 8679/2016
FIR No. : 251/2009
U/s : 349/411/120B IPC & 25/54/59 Arms Act & 3/181 MV Act
JUDGMENT
a) Unique Case ID No. : DLND01-000050-2009
b) The Date of commission of the : 12.07.2009
offence
c) Name of the Complainant : Sh. Diwan Singh
d) Name, parentage & Address of : 1) Manoj Kumar(Convicted on
06.10. 2017)
accused persons S/o Sh. Narayan Singh
R/o Village Bakarwara,
PO Mundka, PS Nangloi, Delhi.
2) Prabhsharan Singh @ Chottu
.........Declared PO on 11.10.2012
S/o Sh. Hakam Singh
R/o H.No. 2556, Ward No. 11,
Kharar, Distt. Mohali, Punjab.
3) Sarwan Singh
S/o Sh. Jagir Singh
R/o Vill. & PO Kaliyan Wali,
Tel. Maloth, Distt. Muktsar,
Punjab.
FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 1/28
4) Gurcharan Preet Singh@
Happy
S/o Sh. Resham Singh
R/o Street No. 7, Dharam Nagri,
PS & Tel. Abhor, Distt. Firozpur,
Punjab.
5) Praveen Dahiya @ Kuku
S/o Sh. Narender Singh
R/o Village Dhanwapur,
PS Sector-5, Gurgaon,
Haryana.
e) Offences complained of : 349/411/120B/34 IPC
25/54/59 Arms Act
& 3/181 MV Act
f) The plea of the accused persons : Pleaded not guilty
g) Date of institution of case : 10.09.2009
h) Date of reserving Judgment : 07.04.2022
j) Pronouncement of Judgment : 23.04.2022
BRIEF FACTS AND REASONS FOR THE DECISION:
Brief Facts of the Case
1. The present charge-sheet has been filed as against accused Manoj Kumar @ Ajay (A1), Prabhsharan Singh @ Chottu (A2), Sarwan Singh (A3), Gurcharan Preet Singh @ Happy (A4) and Praveen Dhaiya @ Kuku (A5) u/s FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 2/28 379/411/120B/34 IPC, 25/54/59 Arms Act and 3/181 MV Act. Prabhsharan Singh @ Chottu was declared Proclaimed Offender vide order dated 11.10.2012. Accused Manoj Kumar pleaded guilty and was convicted vide Judgment dated 06.10.2017.
2. It is the case of the prosecution that present FIR was registered u/s 379 IPC on complaint of complainant Sh. Diwan Singh regarding theft of his car bearing registration no. DL 3CAN 2408 on 12.07.2009. The complainant had given the complaint on 10/11.07.2009, he had taken the son of his owner, Surayaveer Madhav to PVR, Saket in car bearing no. DL 3CAN 2408 (hereinafter referred to as offending vehicle). At about 2:50 AM, he parked the offending vehicle outside Axix Bank, PVR, Saket. Suryaveer Madhav went inside Shop No. 24*7 at PVR. In the meantime, two boys came near his car. They snatched the keys of the car and he fell down from the car. They took the car and fled away. The case was registered against unknown persons.
3. It is further the case of the prosecution that car thief accused Manoj (A1) was arrested by the Police but he escaped from custody of police from Delhi in July, 2008. Information was received that since his escape, he was again committing the crime of theft of cars in the area of Delhi. SI Harbir Singh, who was posted at Special Cell, Delhi, was deputed to identify the associates of Manoj and to trace and apprehend accused Manoj. SI Harbir Singh came to know that accused Manoj had made some hideouts in the area of Punjab and Chandigarh. After committing the car theft, he used to fled to his safe places.
4. On 02.07.2009, SI Harbir Singh sent the advance team to Chandigarh to collect the information of A1. The team was comprising of HC Narender Kumar, HC Ramesh Chand, HC Pawan Kumar, HC Anil Kumar and Ct. Rajbir Sharma. On 06.07.2009, he along with SI Krishan Lal, HC Ravinder Kumar and Yashpal on a FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 3/28 private vehicle & SI Naresh Kumar and HC Amit Kumar on another private vehicle went out of station to gather information about A1. They got the information that associates of A1, who used to purchase the stolen/robbed cars from A1, had made their hideouts at Chandigarh. On 12.07.2009, SI Harbir Singh and SI Naresh Kumar along with other team members reached at Chandigarh. They contacted HC Narender Kumar and his team and started searching the hideouts of associates of A1 with the help of secret sources.
5. On 13.07.2009 at about 7 AM, SI Harbir Singh received secret information that A1 had stolen a Ford Endeavour Car from Delhi in the intervening night of 11/12.07.2009 and the car is to deliver to his associates. The car was seen going towards Sector-38/D, Chandigarh. SI Harbir Singh alongwith his staff reached at Sector-38/D, Chandigarh and started searching the car. At about 8 AM, a black coloured Ford Endeavour Car bearing no. DL 3CAN 2408 was seen parked in front of H.No. 3848, Sector-38/D, Chandigarh. They stopped their private car at some distance from the said Ford Car. SI Harbir Singh got down and he went towards the said Ford Car to check it. While he was going towards the said Ford Car, he noticed that the vehicle was being driven away. He immediately went to his vehicle and tried to locate the car, which by that time, had disappeared. He contacted his sources and was informed that associates of A1 were seen going towards Rajpura from Zirakhpur. They went to Zirakhpur and at about 9 AM, they located the said Ford Car parked on Zirakhpur- Rajpura Road near Lohgarh Modh. SI Harbir Singh blocked the way of said Ford Car by stopping his car in front of the said car. They found Sarwan Singh (A3) on the driving seat and Prabhsharan Singh @ Chottu (A2) & Gurcharan Preet Singh @ Happy (A4) in the middle seat. They apprehended all of them as the accused persons could not produce any document of the said Ford Car. During interrogation, accused persons informed the police that they had received the said Ford Car from one Nishant @ Nishu. The car was detained u/s 102 Cr.PC and information was FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 4/28 conveyed to the Delhi office of Special Cell to find out the status of the said car. They received the information that the said car was stolen from the area of Saket, Delhi, for which FIR No. 251/09 u/s 379 IPC has been registered at PS Saket. The information was recorded vide DD No. 12 dated 13.07.2009 regarding detention of the three accused persons and the accused persons were taken to Delhi.
6. The investigation of the present FIR No. 251/09 was then transferred to Special Cell/ NR from PS Saket. All the three persons i.e. A2, A3 & A4 were arrested u/s 411/120B/34 IPC. During interrogation, it was disclosed by A2 & A3 that they had received 19 stolen/robbed cars from A1 and A4 had disclosed that he had received 3 cars. The accused persons also disclosed that they prepared fake RC of the vehicles before selling the same to the other party. Accordingly, section 467/468/471 IPC were also added. The recovered Ford Car (offending vehicle) was found registered in the name of company 'Measet Broad Network SYS SDN B'.
7. Thereafter, on the information of accused Sarwan Singh, accused Manoj (A1) and Praveen Dhayia (A5) were arrested on 14.07.2019 along with Honda City Car bearing no. DL 3CBE 1794. From accused Manoj, one pistol and six live cartridges were recovered. Five live cartridges were recovered from the magazine of the pistol. SI Harbir Singh prepared the sketch of the pistol, magazine and eleven live cartridges and seized them. The Arm License No. 10DM/9/January/2006 was recovered at the instance of A1, which was in the name of Bhagwat Kohia.
8. From the search of accused Praveen @ Kuku, one pistol was recovered having four live cartridges in the magazine of the pistol. The recovered pistol and the live cartridges were seized. Both the accused persons could not produce any document of Honda City Car and the car was taken into possession u/s 102 FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 5/28 Cr.PC. Both the accused persons were arrested and Section 25 Arms Act was added to the present FIR. During interrogation, it was revealed that A1 alongwith his different associates had stolen/robbed about 80 luxury vehicles from Delhi, Gurgaon and Chandigarh. A5 associated him in three cases including the present case and A1 had given 19 robbed/ stolen vehicles to the other arrested accused persons.
9. SI Harbir Singh contacted the complainant Sh. Diwan Singh, who informed the IO that he could not properly looked at the faces of the thieves and therefore, he had not given description in the complaint. On 15.07.2019, A3 got recovered Honda Accord Car bearing fake no. HR04X0004 from the parking of NAC Market, Housing Board Chowk, Mani Majra, Chandigarh. The car was seized u/s 102 Cr. PC and was found stolen in case FIR No. 10/09 u/s 379 IPC PS G.K-
1. A1 got recovered RC of car DL3CAN2408. On 16.07.2009, A1 got recovered Pijero Car bearing fake no. PB55X0094. The car was connected with FIR No. 109/09 u/s 392 IPC PS DLF-1, Gurgaon. A1 got recovered Honda Accord Car bearing fake no. PB10A93, which was connected with FIR No. 147/09 u/s 379 IPC PS Sector-36, Chandigarh. On 17.07.2009, A1 got recovered Maruti Swift Car bearing No. DL 2FFV 0073 which was connected with case no. 42/09 u/s 379 IPC PS C.R. Park. A5 got recovered Ford Endeavour Car bearing no. DL3TC0489, which was connected with FIR No. 308/08 u/s 379 IPC PS Alipur Delhi.
10. On 19.07.2009, A3 got recovered Ford Endeavour Car bearing fake No. HR26ZZ1111 which was connected with FIR no. 241/08 u/s 379 IPC PS DLF-2, Gurgaon. He also got recovered Ford Endeavour Car bearing no. TN21 AV 0519, which was connected with FIR No. 77/09 u/s 379 IPC PS Vasant Vihar Delhi. A2 got recovered Toyota Innova Car bearing fake no. PB 04F 5153 which was connected with FIR no. 477/08 u/s 379 IPC PS Punjabi Bagh Delhi. On 20.07.2009, A2 got recovered Ford Endeavor Car bearing fake no. HR26AS5667 FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 6/28 which was connected with FIR No. 56/09 u/s 382 IPC PS Defence Colony.
11. On 22.07.2009, at the instance of accused Manoj, Naresh Narang was arrested and he got recovered one Alto car bearing no. PB65 G 2957 of FIR No. 161/09 PS Sector-26, Chandigarh, Verna Car bearing fake no. HR13A 9011 in FIR No. 300/09 u/s 379 IPC PS Sector-34, Chandigarh, two luxuries cars bearing fake no. PB 55A 7087 & HR26AS 3665, in FIR no. 75/09 PS Saket & FIR no. 100/09 PS Vasant Vihar, Delhi. On 25.07.2009, Ford Endeavour car with fake no. HR26 ZZ 4444 was found parked in front of the house of Pradeep who was the genuine purchaser of the said car from A2. The said car was found connected with FIR No. 428/08 PS Punjabi Bagh, Delhi. On 26.07.2009, three abundant cars bearing no. RJ-14-UB1481 in case FIR No. 30/09 u/s 379 IPC PS G.K-1, Honda Civic car bearing no. HR14D7262 in FIR No. 192/08 PS C.R. Park and Verna car no. HR26ZZ0095 in case FIR No. 496/08 PS Vasant Kunj were recovered.
12. The pistol and the cartridges recovered from A1 and A5 were deposited with FSL for expert opinion. Sanction u/s 39 Arms Act was obtained from DCP/Special Cell/Delhi. After completion of the investigation, charge-sheet was filed as against all the accused persons. A1 was charge-sheeted u/s 379/411/120B/34 IPC, 25 Arms Act and 3/181 MV Act. A2 was charge-sheeted u/s 411/120B/34 IPC. A3 was charge-sheeted u/s 411/120B/34 IPC and 3/181 MV Act. A4 was charge-sheeted u/s 411/120B/34 IPC. A5 was charge-sheeted u/s 379/120B/34 IPC and 25 Arms Act. Accused Naresh Narang was discharged and his name was kept in Col. 12 of the charge-sheet.
13. The charge-sheet was filed before Ld. MM on 28.02.2009. Thereafter, supplementary charge-sheet against A1 for offence punishable u/s 75 r/w 413 IPC was filed before Ld. MM on 11.05.2010. Accordingly, the case was committed to the Sessions Court vide order dated 06.09.2010.
FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 7/2814. Prabhsharan Singh @ Chottu was declared Proclaimed Offender vide order dated 11.10.2012. After hearing arguments, charge u/s 413 IPC was framed against A1, A3, A4 and A5 and charge u/s 25 Arms Act was framed separately against A1 and A5 on 09.12.2013. All the accused persons pleaded not guilty and claimed trial.
15. During trial, Manoj Kumar @ Ajay (A1) pleaded guilty and was convicted for an offence u/s 413 IPC and 25 Arms Act vide Judgment dated 06.10.2017.
16. During trial, the prosecution has examined 21 witnesses to prove the case:-
PW 1 S V Anand He was a formal witness. He had produced one rent agreement Ex.PW1/A and registration certificate of vehicle Ex.PW1/B, which was seized vide memo Ex.PW1/C. PW 2 SI Deepak Pawar He was a formal witness who had produced the previous involvement and conviction of the accused persons as Ex.PW2/A. PW 3 Ct. Pradeep Kumar He was formal witness who had produced the record of FIR no. 292/08 as EX.PW3/A. PW 4 HC Ajay Kumar He was involved in the investigation and has deposed regarding recovering of three vehicles bearing no. RJ- 14-UB-1481, HR-14D-7262 and HR-26-ZZ-0095.
PW 5 Sanjeev Kohli He was involved in the investigation and has deposed
regarding Rent Agreement Ex.PW1/A, recovering of RC
vide memo Ex.PW1/B.
PW 6 ASI Devender He was part of investigating team of PS Saket. He got
Singh the present FIR Ex.PW6/A registered and make
endorsement on Rukka Ex.PW6/B.
PW 7 HC Jeet Singh He was investigating officer of FIR No. 42/09 PS C.R.
Park. He has deposed regarding original seizure memo
of car bearing no. DL2FFV0073 as Ex.PW7/A and
original RC as Ex.PW7/B.
PW 8 HC Rajbir He had produced the original FIR No. 241/08, PS DLF-2
Gurgaon, Haryana as Ex.PW8/A and produced record
FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 8/28
regarding the deposition and release of car bearing no. HR26AR6594 as Ex. PW8/B. PW 9 Ct. Virender Singh He had produced the record regarding A1 as Ex.PW9/A. PW 10 Alok Kumar He was the then DCP, Special Cell Delhi Police who had given sanction u/s 39 Arms Act as Ex.PW10/A and Ex.PW10/B. PW 11 ASI Narender He was part of investigating team who had disclosed Kumar about investigation in the present case. The offending vehicle i.e. car bearing no. DL3CAN-2408 was recovered in his presence and was seized vide seizure memo as Ex.PW11/A. He has deposed regarding arrest of accused persons and investigation done in his presence.
PW 12 SI Arshad Ali He was posted as ASI at PS Vasant Vihar. He had collected original seizure memo of case FIR No.77/09 and FIR No.100/09 from Special Cell, Office Rohini.
PW 13 Bhagwat Lohia He is a person whose licensed pistol .32 Bore along with 11 cartridges was robbed by A1 alongwith his Pijaro Car bearing registration No. DL 3CBM 0960. The car and the pistol were later recovered, which were released to him on superdari.
PW 14 HC Ramesh He is a formal witness who had collected two sealed jars Chander containing pistols from Malkhana of PS Special Cell and deposited with FSL vide Road Certificate No. 73/21/09.
PW 15 Satender Kumar He is a formal witness, who got the case property Tripathi released on superdari vide superdarinama Ex. PW15/A. PW 16 K.C. Varshney He was Assistant Director (Ballistic) who has given his report Ex. PW16/A regarding two pistols of 7.65mm caliber and 9mm caliber along with 11 cartridges of 7.65mm and 4 cartridges of 9mm.
PW17 SI Raj Singh He was part of investigating team, who is witness to the recovery of Insurance Policies, RCs, Invoice, two form No. 29 & 30 & one blank affidavit at the instance of A1, which were seized vide seizure memo Ex. PW17/B. PW 18 SI M. Baxla He produced Register No. 19 to show that the case property along with key was deposited in Malkhana Vide entries Ex.,PW18/A. The personal search articles and 18 other vehicles were also deposited. Two box sealed with along with FSL forms were also deposited. Except the case property, all other vehicles were sent to the concerned Police Station, where the case pertaining to them was registered.
FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 9/28PW 19 SI Ajay Tyagi He is the first IO of the case, who had investigated it until the case was transferred to Special Cell, Delhi. He was posted at ASI at PS Saket and on receiving DD No. 51A, he along with Ct. Jaideep reached in front of Axis Bank near PVR Saket, where they met with complainant Sh.
Diwan Singh. The complaint is Ex.PW19/A. He prepared Rukka and got the present FIR registered. He prepared site plan Ex. PW19/C and supplementary statement of complainant.
PW 20 SI Harbir Singh He is IO of the case. He is the one who got the offending vehicle recovered and arrested A2 to A4. Thereafter, case was transferred to Special Cell, Delhi and he conducted further investigation, arrested A1 and A5 and recovered other vehicles, documents, etc. during investigation.
PW 21 Sh. Diwan Singh He is complainant, who has deposed as to how two persons snatched the keys of his car and took away his car i.e. the offending vehicle.
17. After completion of prosecution evidence, PE was closed. Statements of accused persons u/s 313 Cr.PC were recorded. They denied all the allegations against them.
17.1. Accused Sarwan Singh (A3) has stated that he has been falsely implicated. IO had visited PS City-II. Abhor, Punjab for investigation qua the present case. IO asked him to join the investigation and to sign some blank papers duly stamped by the seal of PS. He refused to do the same and altercation took place between him and IO. He left the police station. On the next day, he alongwith his friend/Co-accused Gurcharan Preet Singh was coming from the market when IO detained them and took them to Delhi. The signatures were obtained on several blank papers and converted the same into false and fabricated documents/disclosure statements.
17.2. Accused Gurcharan Preet Singh has stated that he has been falsely implicated in the present case. He along with his friend/co-accused Sarwan Singh FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 10/28 was going from the market on his bullet motocycle. Some police officials met them in civil dress and wrongfully detained them. They were taken to Delhi. The signatures were obtained on several blank papers and converted the same into false and fabricated documents/disclosure statements.
17.3. Accused Praveen Dhayia @ Kuku has stated that he has been falsely implicated in the present case. He was lifted by the IO from Najafgarh Chhawla bus stand. He never met any of the co-accused persons and nothing was recovered from his possession. The signatures were obtained on several blank papers and converted the same into false and fabricated documents/disclosure statements.
18. Accused Sarwan Singh has examined DW1 Satwant Singh. He has deposed that on 10.07.2009., he was posted at PS City-I, Abhor. He had gone to PS City-1, Abhor for investigation in some other case in his capacity as IO. He met with 2-3 Delhi Police officials who were in civil dress and were talking to accused Sarwan Singh, who was posted at AMHC. They were forcing him to sign some blank papers. They had apprehended 2-3 persons and wanted A3 to join investigation. A3 refused to sign blank papers and it let to argument between him and Delhi Police Officials. On 11.07.2009, he made call at the landline No. PS City-II, Abhor, which was picked by A3. On 12.07.2009, he came to know that A3 along with his friend has been picked by Delhi Police Officials from College Road, Abor and has been falsely implicated in the case of theft.
19. No other defence witness was examined by the accused persons. Hence, DE was closed.
20. I have heard the arguments advanced by Ld. APP for State and Ld. Defence Counsel and have perused the record.
FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 11/2821. Ld. Defence Counsel has argued that the accused persons have been falsely implicated in the present case. The IO has stated that he had received the secret information that the offending car was seen in Sector-38, Chandigarh but no DD Entry was made of the secret information. Ld. Counsel has further argued that the distance between Sector-38 and Zirakpur is about more than one hour and therefore, it was not possible for the IO to recover the car at about 11 AM. It is further argued that there are material contradictions in the testimony of the witnesses. No public person had joined the investigation and even no information was conveyed to the police station of Chandigarh. Ld. Counsel has argued that accused persons should be acquitted.
Ld. Defence Counsel has relied upon the following Judgments:-
1. Anil Sharma & Ors. V. State of Jharkhand, (2004) 5 SCC 679.
2. Pradeep Narayan Madgaonkar V. State of Maharashtra (1995) 4 SCC 255.
22. Per contra, Ld. Addl. PP for the State has argued that charges against the accused persons have been established beyond reasonable doubt. He has contended that the recovery witnesses have supported the recovery and their testimony cannot be discarded merely because they are police officials. Ld. Addl. PP for the State has argued that accused persons should be convicted.
23. The present FIR was registered on the complaint of PW-21 Sh. Diwan Singh regarding the theft of his car bearing registration no. DL3CAN2408 (case property). The initial investigation was done by PS Saket. After recovery of the case property by Special Cell, Delhi, the present case was transferred to Special Cell, Delhi. Though, during investigation, Special Cell Delhi recovered many cars/fake documents/ other materials at the instance of accused persons and otherwise but they are not the subject matter of the present case. For all other FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 12/28 recoveries, different FIRs have been registered at different places. Though, in the charge-sheet, IO has mentioned the details of all other recoveries and the evidence with respect to all other recoveries have also been recorded but, since it has no bearing on the present case, I shall be confining myself to the recovery of the case properties of the present case.
24. PW-21 Sh. Diwan Singh has deposed that in the intervening night of 11- 12.07.2009, he had gone to PVR, Saket alongwith son of his employer in the offending car. He had parked the car outside Axis Bank and his employer's son went to PVR. At that time, two persons came from front side and one of them came to his side of the car and started talking to him in Haryanvi. He tried to snatch the keys from the car and scuffle took place between him and that person. Thereafter, that person opened the door of the side of complainant and complainant fell down from the seat of the car. Those two persons entered into the car and ran away with car. Complainant made call at 100 number. His statement was recorded by the police as Ex.PW19/A. He has further stated that his mobile phone, one I-pad of owner's son and few apparels were also lying in the car. He has identified the photographs of the car as Ex. PW15/B. He was cross-examined by Ld. Addl. PP for the State. The Ld. Addl. PP had given suggestion to the complainant that he was intentionally not identifying accused Praveen Dhayia, who was one of the person, who had committed the theft of his car. However, the complainant denied the suggestion.
25. The perusal of the charge-sheet reflects that IO has stated that he had inquired from the complainant and complainant had informed him that he had not properly seen the faces of the thieves and therefore, he had not given any description in the complaint. In fact, no TIP of A5 was conducted and it was never the case of prosecution that complainant had seen A5 or he could identify him. Therefore, even no charge u/s 379 IPC was framed as against accused.
FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 13/2826. As against the accused persons A3, A4 and A5, charge u/s 413 IPC has been framed. Further, charge u/s 25 Arms Act has been framed as against A5.
27. Section 413 IPC provides for the punishment for those who habitually receives and deals in the stolen property knowing or having reason to believe it to be the stolen property. It is reproduced as under:-
"413. Habitually dealing in stolen property.- Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
28. In order to prove that accused persons can be convicted u/s 413 IPC, the prosecution is required to prove that they have been previously convicted for similar offence.
It has been held by Hon'ble High Court of Delhi in Case Ajay Sethi Vs. State CRL.A.788/2017 that 'The short question which arises for consideration before us is whether merely because of pendency of an FIR under Section 379 of the Indian Penal Code and in the present case and under Section 411 of the Indian Penal Code would be a ground enough to convict the appellant under Section 413 of the Indian Penal Code. An identical question was raised before the Jaipur Bench of High Court of Rajasthan. Paragraphs 47 to 51 of the judgment in the case of Banne Singh @ Pahalwan (supra) read as under:
but the moot question is whether in order to establish habit or habitually receives or deals with, one needs mere existence of FIRs, or the offender has to be convicted of offense under Section 411 IPC, two or more times, in order to infer habit? As FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 14/28 mentioned above, there is a clear cut distinction between preventive detention and punitive one. In preventive detention, considering the previous conduct of a person as reflected in a series of FIRs, the Executive can safely infer that the person is dangerous or habitually deals with stolen property, or is anti-social in his conduct or behaviour. Drawing his inference on a subjective basis, the Executive can detain the person preventively.
However, the same inference on subjective manner cannot be applied in punitive detention for the following reasons: firstly, the function of preventive detention and punitive detention are different. Secondly, preventive detention is based on suspicion, punitive detention, on proof or evidence produced during a full-fledged trial. Thirdly, impunitive detention the offender is presumed to be innocent till proven guilty. It is the bounden duty of the State to prove the guilt of the offender. Moreover, the proof has to be beyond a reasonable doubt. Mere existence of series of FIRs does not amount to proof, as a FIR is nothing but allegations made by the complainant. Allegations are not proof of the fact. The allegations have to be established and proved through cogent and convincing evidence. Further, a series of charge-sheets for offence under Section 411 IPC would not tantamount to proof. For, charge-sheet is nothing but conclusions drawn by the investigating agency. It is not even binding on the trial court. Thus, a series of FIRs or a series of charge- sheets would not ipso facto establish habit or habitually dealing with or receiving stolen property.
Something more is required to establish that the offender is in the habit of dealing with or receiving stolen property. Since the offence under Section 413 IPC is inter- related with and is an aggravated form of Section 411 IPC, the State would have to prove and establish that the offender was convicted repeatedly, twice or more than twice, for offence under Section 411 IPC so as to establish beyond a reasonable doubt that he is in the habit of dealing with or receiving stolen property. Therefore, the conviction under Section 411 IPC. Due to previous conviction, a punishment of different kind is prescribed in Section 413 IPC which the accused is required to undergo.
Hence, the prosecuting a person for offence under Section 413 IPC, the prosecution has to prove the following factors: firstly, the property in question has been stolen from a place. Thus, the prosecution must bring the property within the ambit of Section 410 IPC within the definition of stolen property. Secondly, the offender has been dealing with or receiving stolen property.FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 15/28
Thirdly, the offender knew or had a reason to believe the property to be stolen. Fourthly, he has been repeatedly convicted, i.e. twice or more than twice, of offence under Section 411 IPC. It is only after the prosecution establishes these factors that the court would be legally justified in concluding that the offender is habitually dealing with or receiving stolen property and in imposing the punishment as prescribed by Section 413 IPC.
Admittedly, the appellant was involved in six different FIRs. Undoubtedly, so far the appellant has been convicted only by the learned trial court at Jaipur. He continues to face the trials in the other FIRs mentioned above. Hence, prior to his conviction by the learned judge, the appellant was never convicted for offence under Section 411 IPC. Therefore, there is no evidence to infer that the appellant is in the habit of receiving stolen property. Hence, his conviction for offence under Section 413 is clearly unjustified'.
29. In order to prove charge u/s 413 IPC as against the accused persons, prosecution has examined PW-2 SI Deepak Tanwar. He has produced the record of previous involvement and conviction of the accused persons, which is Ex.PW2/A. The perusal of Ex. PW2/A reflects that accused Praveen Dhayia (A5) has been convicted for an offence of Section 25 Arms Act in case FIR No. 129/06.
No previous conviction was found of A3 and A4. The prosecution has not produced any evidence to show that A3 to A5 has previously been convicted for an offence u/s 411 IPC for committing the theft so as to claim that they are habitual offender. Therefore, no case u/s 413 IPC is made out as against the accused persons.
30. Now, I shall consider whether offence u/s 411 IPC is made out as against A3 to A5 and u/s 25 Arms Act as against A5 as recovery of the offending vehicle has been shown from the custody of A3 and A4 along with A2 (Proclaimed Offender) and recovery of one pistol with 4 live cartridges has been shown from A5.
FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 16/2831. The material witnesses, in whose presence the case properties i.e. offending vehicle, pistols and live cartridges were recovered and accused persons were apprehended, are PW-11/ASI Narender Kumar and PW-20/ASI Harbir Singh.
32. PW-11 ASI Narender Singh has deposed that in the month of July, 2009, input was received at the office of Special Cell, Northern Region that accused Manoj (A1), who is notorious vehicle thief, has fled from the custody of the Haryana Police. He was involved in snatching and stealing of vehicles in Delhi and selling them in Punjab and Haryana. On 02.07.2009, he alongwith HC Ramesh, HC Pawan, HC Amit and Ct. Rajbir went to Chandigarh vide DD No. 13. On 12.07.2009, IO SI Harbir Singh, SI Krishan Lal, HC Ravinder and HC Yashpal in one vehicle and SI Naresh and HC Amit came there on another vehicle. On 13.07.2009, in the morning, SI Harbir Singh received the information that accused Manoj is coming to Chandigarh to deliver a vehicle which is stolen from Chandigarh. The secret informer informed that he had seen accused going in a stolen vehicle towards Sector-38, Chandigarh. One black Endeavour car bearing registration no. DL3CAN2408 was found parked outside H.No.3848. They stopped their vehicle ahead of the offending vehicle. SI Harbir Singh reached near the place where offending vehicle was parked but in the meantime, the vehicle was already driven away. Thereafter, they received information that the offending vehicle was seen in the area of Rajpura Road, Chandigarh. They found the offending vehicle at Rajpura Road, Lohgarh, Chandigarh. They reached there and found the offending vehicle parked there. They found accused Sarwan Singh (A3) on the driver seat of the offending vehicle and accused Gurcharana Preet Singh (A4) on the rear seat of the offending vehicle. Prabhsharan Singh A2 (PO) was also in the offending vehicle. The offending vehicle was seized u/s 102 Cr.PC vide seizure memo Ex.PW11/A. All the accused persons were arrested vide arrest memo Ex. PW11/B to Ex.PW11/D. FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 17/28
33. He has further deposed that on 14.07.2009, A3 further disclosed that accused Manoj (A1) was coming to his house on 14.07.2009 for meeting his family. A raid was conducted consisting of SI Harbir Singh, HC Anil, HC Suresh, Ct. Rajbir, SI Naresh, Ct. Yogender, Ct. Pawan, Ct. Ravinder, Driver Ramswaroop and himself. A1 was arrested in a car bearing registration No. DL3CAB1794 Honda City. A1 was driving the said vehicle and A5 was sitting on a side seat of the driver. One pistol and 11 live cartridges were recovered from A1. From the possession of A5, one pistol and 4 cartridges were recovered. The sketch was prepared vide Ex.PW11/L and the recovered arms along with ammunition was seized vide seizure memo Ex.PW11/M. The case property was deposited in the MHC(M) PS Special cell and accused persons were arrested. PW-11 SI Narender Kumar has also deposed about recovery of other vehicles/ fake documents at the instance of accused persons but they are not relevant to the present case.
34. PW-20 SI Harbir Singh is the IO of the case. He has deposed on a similar line as PW-11 with respect to the recovery of the offending vehicle, arms and ammunition from A5 and recovery of other vehicles/ fake documents, which are not relevant to the present case.
35. At the outset, it is the case of the prosecution itself that the offending vehicle was recovered from the possession of A2 to A4. On the basis of supplementary disclosure statement of A3, A1 was apprehended. When A1 was apprehended, A5 was along with A1 and from the possession of A5, one pistol and 4 live cartridges were recovered.
36. Therefore, there is no evidence as against A5 that he had received the offending vehicle knowing or having reason to believe it to be a stolen property. In fact, it is not even the case of prosecution that A2 to A4 had disclosed about any FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 18/28 involvement of A5 in the commission of present offence by A5. Neither recovery has been effected from A5 nor there is any other evidence against him with respect to offending vehicle. Therefore, no offence u/s 411 IPC is made out as against A5.
37. The perusal of testimony of PW-11 and PW-20 reflects that there are material contradictions in the testimony of both the witnesses. As per PW-20 SI Harbir Singh, on 13.07.2009, he received information that A1 was spotted in Sector-38, Chandigarh and he had gone there to sell the offending vehicle. Therefore, as per testimony of PW-20, he received prior information that A1 is in Sector-38 for the purpose of selling the offending vehicle. However, PW-11 has deposed that the information received was that A1 had come to deliver a vehicle in Chandigarh which was stolen from Chandigarh. Therefore, as per PW-11, there was no prior information regarding A1 coming to Chandigarh for the purpose of selling the offending vehicle, which was stolen from Delhi. According to him, the information was of some stolen vehicle from Chandigarh. Therefore, as per PW- 11, there was no definite information about the offending vehicle or that offending vehicle was in Chandigarh or that A1 was coming to deliver the offending vehicle.
38. As per PW-20, the offending vehicle was found in front of H.No.3848. They stopped their vehicle at some distance and when he went to look at offending vehicle, the vehicle was not found there. PW-11 has deposed the similar facts. Since IO did not make any entry of the secret information received by him so as to find out whether the information specific to the offending vehicle was received or not, it is unexplained as to how the police officials came to the conclusion that the Endeavour car bearing registration no. DL3CAN 2408 parked in front of H.No.3848 is the vehicle which A1 was to deliver at Chandigarh. In the absence of any specific information about the offending vehicle, it could be any vehicle. As per PW-11, the information was of the delivery of the stolen vehicle from FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 19/28 Chandigarh but the offending vehicle is of Delhi and when spotted, it was having its original registration plate. It is not even the case of prosecution that the police officials had seeing A1 in the offending vehicle. Therefore, it is unexplained as to how the police officials got suspicious that the offending vehicle parked in front of H.No. 3848 is the same vehicle they were looking for, which A1 had to deliver at Chandigarh. It is not even the case of the prosecution that offending vehicle was parked in suspicious circumstances or that it was the only vehicle in the entire Sector-38/D, Chandigarh, which was found on that day. It is also not the case of the prosecution that there was any specific information that the stolen vehicle which A1 was coming to deliver has been parked outside H.No. 3848.
39. Further, as per testimony of PW-11 and PW-20, they spotted the offending vehicle at Sector-38, Chandigarh. They stopped their vehicle a little ahead of the offending vehicle but by the time SI Harbir Singh reached at the place where offending vehicle was parked, it had already driven away. If the police officials had stopped their vehicle a little ahead of the offending vehicle after spotting the same, then it must have been within the visible parameter of them. It is unexplained as to how come none of the police officials saw the offending vehicle moving away when it was within the visible distance. As per police officials, they had gone to apprehend notorious car thief, A1 and they were at Chandigarh for almost 12 days before they could get any information of the A1 being at Chandigarh. In that case, it is unexplained as to how they let the car driven away and none of the police officials saw the same even though, they had spotted the offending vehicle and has stopped their vehicle at some distance from the offending vehicle.
40. In fact, in the cross-examination, PW-11 has stated that he had seen the offending car for the first time in ther area of Sector-37, Chandigarh and the said vehicle was parked in front of the house. He has stated that he does not FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 20/28 remember at what time they reached at Sector-37. He had stated that he did not given any wireless message to the control room regarding the offending vehicle being located in front of house of Sector-37, Chandigarh. Therefore, in the examination in chief, PW-11 has stated that the offending vehicle was located in Sector-38 but in cross-examination, he has stated that it was located in Sector-37.
41. Further, as per PW-11, IO SI Harbir Singh had reached Chandigarh on 12.07.2009. Whereas as per IO/PW-20, he had left for Chandigarh vide DD No. 21 Ex.PW20/B. The perusal of Ex.PW20/B reflects that IO had left for Chandigarh on 06.07.2009. Therefore, there are material contradictions in the testimony of PW-11 and PW-20 as to when PW-20 reached at Chandigarh. As per PW-11, A3, A4 and A2 (PO) were arrested along with offending vehicle. The vehicle was taken into possession u/s 102 Cr.PC vide seizure Memo Ex.PW11/A and accused persons were apprehended. They came to local police station and made DD Entry there. Similar is the deposition of PW-20. PW-20 has further deposed that SI Naresh made DD Entry No. 12 in the Roznamcha of Zirakhpur, which is Ex. PW20/D and thereafter, they brought the accused persons to Delhi. Therefore, as per PW-11 and PW-20, the DD Entry was made at local police station on 13.07.2009, which is Ex.PW20/D. The said entry reflects that it was recorded at 11:20 AM. PW-20 has stated that at about 11 AM, they found the offending vehicle stationed at Lohgarh Mod, Zirakhpur to Rajpura Road. However, in the cross- examination he has stated that they had reached Zirakhpur- Rajpura Road at 9 AM. Therefore, the witness PW-20 is contradicting himself with respect to the time when they reached Lohgarh Mod-Zirakhpur from where the offending vehicle has been recovered. Further, as per PW-20, he had reached Sector-38, Chandigarh at about 8 AM when he found offending vehicle stationed outside H.No. 3848. The offending vehicle left the place and thereafter, he got information that the offending vehicle was seen at Lohgarh Mod-Zeerakhpur. He has deposed that he entered the secret information into Roznamcha regarding the offending vehicle FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 21/28 having been gone from in front of H.No. 3848. However, no such DD Entry of Roznamcha has been produced before this court. PW-20 has further deposed that arrival as well as departure entry at PS Zeerakhpur was duly made, however, no such entry has been produced. In fact, as per charge-sheet and deposition of PW- 11 and PW-20, the police officials remained at Chandigarh from 02.07.2009 to 13.07.2009, but it Is clear from the testimony of PW-20 that the local police was not informed and no assistance of the local police was obtained. The only entry produced before this court, which has been made with local police is Ex.PW20/D made on 13.07.2009. The said DD Entry was lodged by SI Naresh Kumar but SI Naresh Kumar has not been examined to prove the said entry. The prosecution has also not called the record from PS Zeerakpur to prove the said DD Entry. PW- 20 has admitted in the cross-examination that there is no date and signature on the seal impression of PS Zeerakhpur on Ex.PW20/D. In his voluntary statement, he has stated that the signatures are appearing just above the seal impression and the date is mentioned on the top of the document itself. The perusal of Ex.PW20/D reflects that no date is mentioned along with the seal to prove on which date the seal impression was taken on document. There is one signature just above the seal impression but it is not mentioned as to who is the person who had signed the document nor the prosecution has examined the concerned person who has signed the document to prove the document.
42. The offending vehicle was seized vide memo Ex.PW11/A. The perusal of the seizure memo reflects that after apprehending the accused persons and recovery of offending vehicle, IO asked the accused persons to produce the documents of the offending vehicle. The accused persons failed to produce any document. Thereafter, the message was conveyed to office of Special Cell, Delhi to find out the ownership of the offending vehicle. The offending vehicle was taken into possession u/s 102 Cr.PC. It is clear from the seizure memo and the fact that the offending vehicle was seized u/s 102 Cr.PC that when the vehicle was seized, FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 22/28 the police officials were not confirmed whether it was stolen vehicle and they only suspected it to be a stolen vehicle as accused persons failed to produce any document. However, the testimony of PW-20 reflects that he had received a specific information that A1 was coming to sell one Endeavour Car bearing Registration No. DL3CAN2408 (offending vehicle). That be the case, when the IO and other police officials were already aware that in which car A1 was coming and that it was a stolen vehicle, where is the question of collecting information from office of Delhi regarding ownership of the offending vehicle after arrest of the accused. When the secret information was received with the specific registration number and that it was stolen property, then it is unexplained as to why no inquiry was conducted from where the offending vehicle was stolen before apprehending the accused persons. It is clear from the seizure memo that IO along with other police officials were not aware in which vehicle A1 was coming to Sector-38, Chandigarh when the secret information was received. It is also not the case of prosecution that when offending vehicle was spotted at Sector-38, Chandigarh, they saw A1 in the said vehicle. As per police officials they had gone to Sector-38, Chandigarh in search of A1. When they were neither aware of the vehicle in which A1 was coming nor they saw A1 in the offending vehicle, then how come they became suspicious of the vehicle found parked in Sector-38/D and decided to trace out when it left Sector-38/D, Chandigarh.
43. In the cross-examination, PW-20 has deposed that on 13.07.2009 at about 7 AM, he received information with respect to A1. He did not record the said secret information in writing as present case was not under investigation at that time. The order of Assistant Commissioner of Police, Delhi transferring investigation from PS Saket to Special Cell, Delhi is on record and it is dated 14.07.2009. The same has been received by ASP, Special Cell and DCP, Special Cell on 15.07.2009. Therefore, the case was transferred to Special Cell only on 14.07.2009. As per PW-20, he did not record the secret information into writing as FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 23/28 the case was not given to him for investigation by that time. It is also clear from the record that the case was entrusted to him for the purpose of investigation only after 14.07.2009. However, the arrest memo of the accused persons reflect that they were arrested at Special Cell/ NR Office Rohini on 13.07.2009 at about 5 PM in case FIR No.251/09 i.e. present case. When the case was not transferred to the Special Cell before 14.07.2009, how come they arrested the accused in the said FIR on 13.07.2009. The vehicle was seized u/s 102 Cr.PC and the accused persons were apprehended as per IO at about 11 AM. However, no arrest of the accused persons u/s 102 Cr.PC for recovery of suspected stolen property has been made. There is no document to suggest that A2 to A4 were apprehended in connection of stolen property on 13.07.2009 at about 11 AM at Zeerakpur. Further, PW-11 has deposed in the cross-examination that they left Chandigarh for Delhi in the night of 12.07.2009 and they also brought the stolen vehicle to Delhi. When the recovery was made on 13.07.2009, then how come the vehicle was brought to Delhi in the night of 12.07.2009. Further, PW-20 has deposed in cross-examination that after returning back to Delhi along with offending vehicle, he made arrival entry vide DD No. 18. However, there is no DD entry no. 18 filed by IO.
44. As per PW-11, he again joined investigation on 14.07.2009 and supplementary disclosure statement of A3 was recorded as Ex.PW11/H. Two teams were constituted and they left the office of Special Cell at about 10 AM. They reached at outside Bakkarwala Village. One secret informer met IO and informed that A1 (already convicted) was seen in the area of Janakpuri in car bearing registration no. DL3CAB1794 Honda City of dark steel colour. At about 12:30 PM, A1 came from the side of Janakpuri and was heading towards Niloti. He was apprehended. Along with A1, A5 was also present in the car. During the search of A5, one pistol and 4 cartridges were recovered. Similar is the deposition of PW-20.
FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 24/2845. It is argued by Ld. Defence Counsel that no public person has joined investigation either at the time of recovery of offending vehicle or at that time of recovery of arms and ammunition from A5. Admittedly, no independent public witness has been joined in the investigation. Only police officials are witnesses of the recovery. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under : -
"Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 25/28 least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
46. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law.
47. It is not the case of the prosecution that no public person was present at the time of recovery of offending vehicle from A2 to A4 or of the arms and ammunition from A5. PW-11 has stated that IO did not ask any public person to join the investigation regarding recovery of vehicle no. 2408 and he did not ask any public person to join the investigation after recovery of pistol and ammunition. He has stated in the cross-examination that while conducting the proceedings at the time of apprehension of A1, they did not join any public witness even though they were available. PW-20 has stated that independent witnesses did not join the investigation at the time of recovery. He has admitted that from 12.07.2009 to 26.07.2009, during the course of investigation, he did not write the statement of FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 26/28 any public witness. In the voluntary statement, he has stated that no public person agreed to join the investigation. He has admitted that he did not serve any notice on the public person.
48. Therefore, it is clear from the testimony of PW-11 and PW-20 that public persons were present at the time of recoveries, recovery of offending vehicle, pistol and cartridges but none of the public person was made witness in a case. In such circumstances, the fact that the police officials did not join any independent public witness in the recovery proceeding creates doubt over the authenticity of the investigation. The police officials have put forward a stereo typed version which does not inspire confidence. They could have noted down the names of the persons to whom they made a request to join the investigation. It would have lend some support to the explanation put forward by them. They have not done so. It casts doubt on the sincere efforts made by the investigating officer to join independent witnesses. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it has been held that such casual explanations that the public persons refused to join the proceedings are unreliable. Similarly, in Pradeep Narayan Vs. State of Maharashtra reported in AIR 1995 S.C. 1930, it was observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused. The fact that no public witness has been joined in the investigation creates serious doubts over the recovery. The benefit of which ought to be given to the accused.
49. In a criminal trial, the charges against the accused must be established beyond reasonable doubt. The record must demonstrate that in all probabilities the accused is the culprit. In case of any doubt, the benefit ought to be given to the accused. The record shows that the recovery is doubtful as no independent witness has been joined and the disclosure statement is in-admissible. There is material contradiction between the testimony of material witnesses and FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 27/28 prosecution is unable to prove the case against the accused persons beyond all reasonable doubts.
50. In view of the above findings, accused Sarwan Singh, Gurcharan Preet Singh @ Happy and Praveen Dahiya @ Kukku are acquitted of all the charges.
51. File be consigned to Record Room after due compliance.
Announced in the open court (Anu Aggarwal)
On 23.04.2022 ASJ-07/PHC/ NDD
NEW DELHI
FIR No. 251/09 State Vs. Manoj Kumar & Ors. Page No. 28/28