Delhi District Court
State vs . Chander Bhan Etc. on 20 October, 2014
IN THE COURT OF SHRI ARVIND BANSAL
METROPOLITAN MAGISTRATE (SOUTH-EAST) -05
SAKET COURTS : NEW DELHI
JUDGMENT
FIR No. : 336/99 PS : Sarita Vihar U/s 379/411/483/34 IPC State vs. Chander Bhan Etc. A. Sr. No. of the Case : 02403R0060842003 B. Date of Institution of Case : 03.07.2000 C. Date of Commission of Offence : 15.08.1999 D. Name of the complainant : Sh.Ejaz-A-Malik S/oSh.Malik Barkat E. Name of the Accused & his : (1) Chander Bhan S/o Pritam Lal Parentage & Address R/o Vill. Lalpura, Thana Chobiya, Distt. Itawa, UP (convicted on plea of guilt on 06.08.2004) : (2) Satender Pal Singh S/o Daya Ram, R/o Vill. Beena, PS Chobiya, Distt. Itawa, UP F. Offence complained of : u/s 379/411/483 IPC G. Plea of the Accused : Pleaded not guilty H. Order reserved on : 26.09.2014 I. Final order : Convicted u/s 411/482 IPC J. Date of such order : 20.10.2014 Brief statement of reasons for decision of the case:
1. Succinctly stated, it is the case of the prosecution that on 03.08.1999, FIR No. 336/99 PS Sarita Vihar State vs. Chander Bhan etc. Page no. 1 of 11 between 04:30 PM to 06:00 PM at A-Pocket, near Park, in front of flat no.
572, Sarita Vihar, New Delhi, an unknown person committed theft of a car bearing no. JK-02H-8175 belonging to complainant Ejaz-A-Malik. The matter was reported to police which led to registration of the present case. Later, on 15.08.1999, both the aforesaid accused were found dishonestly retaining the stolen property of complainant knowingly or having reason to believe that it was a stolen property and thus, committed an offence punishable u/s 411 IPC. While they were so apprehended, the stolen car was bearing a false number plate having number UP-75-6927 instead of original number i.e. JK-02H-8175.
2. Accused were apprehended during investigation and produced before the Court. IO prepared and filed challan after completion of investigation. On the said challan, Court took cognizance of the offence and summoned the accused persons.
The accused were supplied the copy of challan and documents in compliance of section 207 Cr.P.C. and matter was listed for arguments on charge. After scrutiny of documents, parties were heard on charge. Prima facie, an offence punishable U/s 411/483 IPC was found to made out against both the accused and they were separately charged for the same. Accused Chanderbhan admitted his guilt at the time of framing of charge and was accordingly convicted and sentenced vide order dated 06.08.2004. Accused Satender pleaded not guilty and claimed trial.
3. To support and prove its case, prosecution produced and examined ten witnesses.
PW1 HC Dharmbir proved the present FIR as Ex. PW1/A and endorsement made by him on Rukka as Ex. PW1/B. FIR No. 336/99 PS Sarita Vihar State vs. Chander Bhan etc. Page no. 2 of 11 PW2 Ct. Nand Kishore testified that on 30.09.1999, he had joined the investigation of the present case with SI Parveen and reached at Itawa, PS Civil Lines, UP. SI Parveen moved an application for obtaining Maruti Esteem Car bearing no. JK-02H-8175 and the same was obtained and brought to PS Sarita Vihar and deposited in Malkhana. The seizure memo of Car is Ex. PW2/A. The witness was cross examined by defence counsel.
PW3 Ejaz Ahmed Malik testified that on 03.08.1999 at about 04:30 pm, he had parked his Maruti 1000cc bearing no. JK-02H-8175 below his flat no. 574, Pocket A Sarita Vihar. At about 06:00 pm, he found his car missing. He tried to trace out the same but could not succeed. He made complaint Ex. PW3/A to SHO, PS Sarita Vihar. Later on, police recovered his car which was received by him on Superdari vide Superdarinama Ex. PW3/B. He correctly identified his car as Ex. P-1 and photographs of car Ex. PH-1 and Ex. PH-2.
This witness was duly cross examined.
PW4 HC Ratan Lal testified that on 03.08.1999, on receipt of DD No. 16-A, he alongwith SI Parveen Kumar went to house of complainant. SI Parveen Kumar prepared Rukka which is Ex. PW1/A and handed over to him for registration of FIR. He got the FIR registered, returned to spot and handed over original Rukka and copy of FIR to SI Parveen.
PW5 SI Parveen Kumar reiterated the averents made by PW-4 HC Rattan Lal. He also proved complaint Ex. PW3/A. He stated that he prepared site plan Ex. PW5/A and recorded statements of witnesses. Efforts were made to trace the vehicle but to no avail. He deposed on 16.09.1999, SI D.D. FIR No. 336/99 PS Sarita Vihar State vs. Chander Bhan etc. Page no. 3 of 11 Verma of PS Civil Lines, Itawa handed over a copy of FIR no. 307/99 dated 15.08.1999 to him and stated that car had been recovered by officials of PS Civil Lines, Itawa and two accused had also been arrested in the said matter. He moved an application for issuance of production warrants against the accused and accordingly, both accused were produced before the concerned Court on 25.09.1999. The accused were interrogated and arrested in the present mater vide arrest memo Ex. PW5/B and Ex. PW5/C. He got the stolen car released on 30.09.1999 and recorded the statements of police officials of Civil Lines, Itawa. He also proved seizure memo of Car Ex. PW2/A and Superdarinama Ex. PW3/B. Witness correctly identified accused Satender Pal in Court. Witness was not cross examined despite opportunity.
PW6 Jagdish Kumar Jr. Assitant, RTO, Jammu proved the record of registration of Maruti Car bearing no. JK-02H-8175 in the name of complainant. The same is Ex. PW6/A (OSR).
PW7 SO Vikramjeet Singh testified that on 15.08.1999, he was posted as SO, Civil Lines, Ittawa, UP. On that day, both the accused were arrested in case FIR no. 307/99 which is Ex. PW7/A. He deposed that both the accused were apprehended in Esteem car no. UP-75-6927 which was a fake number and on enquiry the car was found to be a stolen property from PS Sarita Vihar. He stated that Arms and Ammunitions were also recovered from possession of accused Satender. Witness correctly identified accused Satender in Court and also correctly identified recovered car from photographs already Ex. PH-1 and Ex. PH-2.
PW8 ASI Ramcharan Verma testified that on 15.08.1999, he was posted at Civil lines, Ittawa, UP and on that day he joined investigation with FIR No. 336/99 PS Sarita Vihar State vs. Chander Bhan etc. Page no. 4 of 11 SO Vikramjeet Singh and other staff. He reiterated the assertions made PW-7 SO Vikramjeet Singh. He also correctly identified the accused in Court.
PW9 SI Rajender Singh also reiterated the averments made by PW-7 SO Vikramjeet Singh and PW-8 ASI Ramcharan Verma.
PW10 Retd. SI Deendayal Verma deposed that on 15.08.1999, investigation of case FIR no. 360/99 was handed over to him. He recorded statements of witnesses and prepared site plan. The accused had already been arrested and recovery had already been effected from their possession. He correctly identified the accused Satender in the Court. He proved the copy of recovery memo written by SI R.C. Verma at the instance of SO Vikramjeet Singh as Mark X.
4. Prosecution Evidence was closed on request of Ld. APP and matter was fixed for statement of accused. Statement of Accused Satender u/s 313 CrPC was recorded and accused pleaded innocence. He stated that he had been falsely implicated at the instance of a prominent politician of Samajwadi Party as he was a BSP worker. He denied recovery of car from his possession. He did not lead defence evidence and matter was fixed for final arguments.
Final arguments on behalf of both the parties heard. Entire material on record carefully perused.
5. To establish the offence u/s 411/483 IPC beyond reasonable doubt, the prosecution is required to prove the following ingredients:-
(a) that the case property was a stolen property in terms of Section 410 IPC;FIR No. 336/99
PS Sarita Vihar State vs. Chander Bhan etc. Page no. 5 of 11
(b) the accused was found dishonestly retaining the said stolen property and was having knowledge or reason to believe that it was stolen.
(c) that the accused counterfeited the property mark of the vehicle so recovered.
6. To bring home the guilt of accused in respect of the alleged offences, prosecution has strongly relied upon the testimony of PW3 Ijaz Ahmed Malik and PW7 to PW10.
Before proceeding with appreciation of the evidence qua the fact whether accused was found in possession of the case property, the Court is required to consider whether the case property allegedly recovered from the possession of the accused falls within the ambit of definition of term 'stolen property' as defined U/s 410 IPC.
The deposition of victim Ijaz A. Malik is significant to establish the aforesaid aspect whether the case property falls within the definition of 'stolen property'. PW3/Complainant categorically stated that his Maruti Esteem car was not found outside his flat despite the fact that it was parked at the said place about two hours ago. He testified that the car was stolen by some unknown person. The complainant also identified his recovered car as Ex. P1 and photographs thereof as PH-1 & PH-2.
Since the case property was removed from the possession of PW3 /Complainant without his consent by an unknown person, the same implies removal of his property with a dishonest intention either to cause wrongful loss to the complainant or to cause wrongful gain to some other person.
At this stage, it is necessary to quote the following observations of Hon'ble Supreme Court in case titled K N Mehra vs. State of Rajasthan AIR FIR No. 336/99 PS Sarita Vihar State vs. Chander Bhan etc. Page no. 6 of 11 1957 SC 362:
"...thus, (1) absence of the persons consent at the time of moving, and (2) the presence of dishonest intention in so taking and at that time, are the essential ingredients of the offence of theft."
Taking cue from Sec. 378 IPC and aforesaid observations of Hon'ble Supreme Court, it can be safely concluded that incident of removal of car of complainant fulfills all the necessary ingredients of the offence of theft.
7. Once the offence of theft stands established, the prosecution is required to prove that it was only the accused who was found dishonestly retaining the stolen property despite having reason to believe that it was stolen. For this purpose, prosecution has examined PW7 SO Vikramjeet Singh, PW8 ASI Ram Charan Verma, PW9 SI Rajender Singh and PW10 SI Deendayal who all testified that after receipt of a secret information regarding stolen vehicles, they went near Shastri Chowk, Jeewan Bima Nigam Office along with informer and found two cars standing at that place. From one Maruti Esteem car found standing at the spot, two accused persons namely chanderbhan and Satender were apprehended while the others fled away. Witnesses stated that they had information that these accused were sitting there to sell the cars.
It is also the case of prosecution through the testimony of these witnesses that car recovered from the possession of accused had a fake number plate bearing UP-75-6972 and it was only after specific inquiry that the number of motorcycle was ascertained to be JK-02-H-8175.
The accused has failed to challenge his presence as well as the recovery of car from his possession. He cross examined these witnesses but could not controvert them on any material aspect. In fact, the cross- examination is completely 'suggestion' based and no positive question could FIR No. 336/99 PS Sarita Vihar State vs. Chander Bhan etc. Page no. 7 of 11 be put to any of the witnesses. He has also failed to put forward any claim of ownership upon the property allegedly recovered from his possession. The fact that the case property did not belong to the accused also stands proved from the fact that the car was duly claimed by the complainant and the accused failed to provide any reason why he was carrying the said vehicle. The inability of accused to accord any justifiable ground for possession of the car belonging to complainant/registered owner Ijaz Malik, implies knowledge of the accused that it was either a stolen property or property obtained by any other dishonest means.
It is not the defence of the accused that he intended to deposit the car at some police station having found the same unclaimed at some place. The fact that the car was found with a different number plate also suggests the dishonest intention of the accused while carrying the same. It also suggests his knowledge about the 'status' of property.
8. It is the argument of the accused that despite the alleged place of recovery being a public place, no public person was made a witness to the said recovery. It is his argument that he was falsely implicated in the present matter at the behest of a local politician.
It is true that no public witness was examined by prosecution while proving its case against the accused but that alone does not create any doubt in the version of prosecution in general and of IO in particular. It cannot be doubted that public witnesses are generally reluctant to become part of any investigation of any crime / offence due to their busy schedules, family / social responsibilities and inability to spare time out of their struggle for livelihood. Such a reluctance can be safely attributed to societies and individuals in India. This observation of the Court is fortified by observations of Hon'ble Supreme Court in case titled Ajmer Singh vs. State of Haryana, 2010 (2) FIR No. 336/99 PS Sarita Vihar State vs. Chander Bhan etc. Page no. 8 of 11 SCR 785 wherein it was held that it is not always possible to find independent witnesses at all places at all times. The obligation to join public witness is not absolute. The Hon'ble Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police official is believable as to place implicit reliance thereon. Similar observations were made by Hon'ble Delhi High Court in Union of India vs. Victor Nnamdi Okpo decided on 16.09.2010.
Further, the testimony of police officials who allegedly recovered the vehicle, and the one who brought the same to Delhi was found reliable and nothing contradictory was found therein. Even otherwise, the accused failed to rebut the acts of the police officials done in discharge of their official duties. Their testimony cannot be doubted merely because no independent public witness was joined in the investigation. The addition of public witness other than the complainant / victim is a rule of prudence and not a rule of evidence.
9. It is also contended that the Engine number and Chasis number of the vehicle recovered and the one stolen are different and thus, accused cannot be said to be found in possession of a stolen property as it does not match with the particulars of vehicle actually stolen. Perusal of complaint Ex. PW3/A provides Engine No. as 120067 and Chasis no. as 164624. However, FIR Ex. PW7/A provides the Chasis no. of recovered car as 120067. In the opinion of Court, the accused was found in possession of a Maruti Esteem car stolen from the possession of complainant and the Engine/Chasis no. was also found to be the same. There is only a difference in the manner of reference of that Engine/Chasis number otherwise the number is the same. Nothing was brought on record by accused to make the Court form an opinion that two different cars of the same make may have separate or interchanged FIR No. 336/99 PS Sarita Vihar State vs. Chander Bhan etc. Page no. 9 of 11 Engine/Chasis numbers. The possibility of police officials wrongly referring to engine no. as Chasis no. can also not be ruled out. As such, the defence raised by accused does not create any doubt in the mind of Court regarding the recovery of the vehicle.
10. The accused was also charged for the offence punishable u/s 483 IPC for counterfeiting property mark. A bare reading of the available documents provides that accused was found using a number plate having a number other than the original registered number of the car. This act cannot be termed as 'Counterfeiting' the property mark but using a false property mark to make the others believe that vehicle did not belong to one whom it originally belonged. Thus, accused is found guilty of offence punishable u/s 482 IPC and not u/s 483 IPC.
11. In the opinion of the court, the testimony of complainant read with testimony of IO & other police witnesses create a chain of events unchallenged by the defence. The defence of the accused that he was falsely implicated in the present case remained a bald statement without corroboration of any sort from any material whatsoever. The accused has neither examined himself nor any other independent witness to corroborate the aforesaid defence and therefore, the same cannot be relied upon even as a probability to doubt the prosecution version. Thus, the entire set of evidence speaks against the accused.
12. The prosecution has successfully proved all the ingredients of offence punishable u/s 411/482 IPC beyond any reasonable doubt and hence, accused Satender Pal is held guilty / convicted for the offence punishable u/s 411/482 IPC having received or retained the stolen car of complainant while FIR No. 336/99 PS Sarita Vihar State vs. Chander Bhan etc. Page no. 10 of 11 using a false number plate.
Announced in the Open
Court on 20.10.2014 (ARVIND BANSAL)
Metropolitan Magistrate-05
South East District, Saket Courts
New Delhi
FIR No. 336/99
PS Sarita Vihar State vs. Chander Bhan etc. Page no. 11 of 11