Delhi District Court
State vs . Hansraj & Ors. on 29 June, 2015
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST), SAKET
COURTS:NEW DELHI
State Vs. Hansraj & Ors.
FIR No. 33/11
U/s 380/454/411/34 IPC
P.S. GK1.
J U D G M E N T
Serial No. of the Case : 256/2/14
Unique Identification No. : 02406R0202462011
Date of Institution : 03.08.2011
Date on which case reserved for
judgment : 22.06.2015
Date of judgment : 29.06.2015
Name of the complainant : Satender Pal Singh
s/o Shri Pratap Singh
r/o M30/A, Ist floor, GK1.
Date of the commission of offence : Between 19.03.2011 &
20.03.2011.
FIR No. 33/2011
P.S. G.K.1 Page No.1 of 21
Name of accused : (i) Dalip Kumar Bhatt @
Deepu s/o Sh. Rajender
Ram Bhatt
r/o House No. A2762, IInd
floor, Greenfield Colony,
Haryana, Faridabad
(ii) Devender @ Lambu
s/o Sh. Prem Kumar
r/o House No. 100, Mohalla
Bhikampura, PS Pilakhua,
District Gaziabad, U.P.
(iii) Hansraj @ Raj S/o Late
Sita Ram, R/o A402, Top
floor, Shalimar Garden,
Ghaziabad, U.P.
Offence complained of : U/s 380/454/411/34 IPC
Offence charged of : U/s 380/454/411/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : Accused Hansraj and
accused Dalip Kumar
convicted U/s 411 IPC and
accused Devender acquitted
FIR No. 33/2011
P.S. G.K.1 Page No.2 of 21
Date of Institution : 03.08.2011
Date on which case reserved
for judgment : 22.06.2015
Date of judgment : 29.06.2015
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint wherein the complainant Satender Pal Singh has stated that he was residing at M30A, First Floor, G.K.1 and was running a shop on the ground floor in the name of "Time and Style", of clock, watches and gift items. On 19.03.2011, he had closed his shop at around 09:00 PM and 20.03.2011 was the festival of Holi. On 20.03.2011, the complainant came out of his house for some work at 04:30 PM in the evening and had not opened the same in the morning time, being a festival of Holi, he found that the shutter of his shop was already opened. Thereafter, complainant immediately called at 100 number and thereafter, complainant on opening the shutter found that the watches and the gift items kept in the showcase were missing. The exact list of the missing item were handed over to the police by the complainant after verifying his records.
2. On the basis of the above mentioned complaint, the present FIR FIR No. 33/2011 P.S. G.K.1 Page No.3 of 21 was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused persons in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge was framed against the accused persons under Section 380/454/411/34 IPC IPC to which they pleaded not guilty and claimed trial. The matter was fixed for prosecution evidence. To prove its case the prosecution has examined as many as six witnesses. PE was closed on 17.12.2014 and subsequently statement of accused persons under Section 313 Cr.P.C. were recorded on 21.01.2015.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter. Prosecution examined as many as 14 witnesses in the present matter.
PW 1 Satender Pal Singh (complainant ) deposed that he was running a gift item and watch shop, from his shop cum residence i.e. M30A, ground floor, GK1 and on 19.03.2011 after finishing his sale proceedings, his staff (manager) closed his shop in the night and on the next date i.e 20.03.2011, he had not opened his shop being the festival of Holi. In the evening when he came down from his house at around 4:30 PM to go somewhere, he noticed that that locks of the glass door were opened and FIR No. 33/2011 P.S. G.K.1 Page No.4 of 21 also found that the shutter of the shop was lifted up to one and a half feet. Thereafter, he immediately called the police on 100 number and police reached at the spot and he narrated the entire incident to them. Thereafter, the police called the crime team and they all entered the shop and he found that the gift articles, silver jeweleries, watches, etc. which were kept in the showcase were missing and therefore, he gave his complaint Ex. PW1/A to the police. Later on, he gave the details of missing / stolen watches and other articles to the police vide list Ex. PW1/B. After 23 months, police informed him that they had recovered the stolen 19 watches and the same were released to him vide Ex. PW1/C. The case property was Ex. P1 (which was containing 18 watches) brought by the complainant. One watch was Ex. P2 which was sealed in the pulanda brought by MHC(M).
During the crossexamination, PW1 deposed that his shop was situated on the ground floor on the main road outside Mblock market. He resides on the first floor at the same building and the way to his house is around 25 feet away from his shop. Further that he is the director of his company and no license is required to run the shop for the purpose of as he had paid the conversion charges to the MCD and that his shop was insured. Further that the goods lying in his shop were insured. Further that he had not participated in the festival of Holi and nobody came to his house during the FIR No. 33/2011 P.S. G.K.1 Page No.5 of 21 day time. One ATM of RBS is also installed adjoining his shop and a guard remains there 24 hours. On the date of the incident, the ATM guard was not on duty. Further, that he could not tell the exact time of the theft / incident but the same was between the time when the complainant had closed his shop and the time when he noticed the same to be open. Further that he had not claimed or received anything from the insurance company and he had called the police at 4:30 PM, and the police reached after one hour. No one had entered the shop till the arrival of the special team and the statement is recorded after he had entered the shop and found the watches and articles missing from the showcase. He did not remember the date on which he had handed over the list of missing articles to the police. He had not supplied the stock summary of the main items to the police of that particular day and he did not have the invoices of the stolen items/ list of stolen items prepared by him. Further that his statement was recorded by the police at around 5:30 to 6:00 PM and he did not remember as to how many documents were prepared by the police at his shop and he did not know if police had prepared the site plan. Police remained at the spot for about 23 hours and no further statement was recorded of PW1 by the police.
PW 2 Ct. P.C. Ramdasan deposed that on 20.03.2011, he was posted on an emergency duty along with SI Kamminlien and upon receiving FIR No. 33/2011 P.S. G.K.1 Page No.6 of 21 DD No. 31A, he along with IO reached at the spot at shop No. M30A, GK1. IO inspected the scene of crime and had called the crime team. Crime team came and had inspected the scene of crime and lifted the chance print and report in respect to scene of crime was handed over to the IO. IO recorded the statement of the complainant and prepared the rukka and handed over the same to him for registration of FIR and he went to PS GK1 for registration of FIR and returned back to the spot after registration of FIR and handed over a copy of FIR and original rukka to the IO. IO had interrogated the employees of the shop of the complainant.
Opportunity to crossexamine PW2 was granted to all the accused but they did not question anything to PW2.
PW 3 HC Bhagwan Singh has deposed that on 20.03.2011, he was working as head constable/ proficient of chance print with Delhi Police and upon receiving a call regarding theft at M30A, GK1, he along with his staff reached at the spot. He inspected the scene of crime and checked the glass doors, shutter, etc. and had lifted 10 chance prints from there and prepared the report in respect to same vide Ex. PW3/A. He handed over same to the IO.
During crossexamination, PW3 stated that it is incorrect to state that he had not lifted the chance print from the spot. FIR No. 33/2011 P.S. G.K.1 Page No.7 of 21
PW4 SI Avdesh Kumar deposed that on 06.05.2011, he had received specimen finger prints on 09 persons namely Aslam Hussain, Bhuwan Chandra, Sukhmeet Wadhwa, Rachna Wadhwa, Abdul Rehman Wali, Satinder Pal Singh, Santosh Paswan, Harman Wadhwa and Ramesh Kumar and the chance prints marked as Mark Q1 to Q 10 which were lifted from the scene of crime. He compared these chance prints with the specimen finger prints of the persons mentioned above, but they were not identical to anyone. His report dated 22.07.2011 was Ex. PW4/A. Opportunity to crossexamine PW4 was granted to all the accused persons but they did not question anything to PW4.
PW5 HC Devender deposed that on 04.06.2011, he was posted at police station Greater Kailash and on that day he along with IO, Ct. Vikram and Ct. Satbir had visited the Saket Court Complex. IO obtained the permission for interrogation of accused Hansraj and Devender @ Lambu (they were correctly identified by the witness). IO recorded the disclosure statement of both accused persons vide Ex. PW5/A and PW5/B and they were arrested vide Ex. PW5/C and PW5/D. Accused persons had taken them at M30A, Ground Floor, G.K.1, New Delhi and pointed out at the shop from where they had committed theft and upon their pointing out, memo Ex. PW5/E was prepared. Thereafter, accused persons had taken them to FIR No. 33/2011 P.S. G.K.1 Page No.8 of 21 Daryaganj for search of case property and of another coaccused. His statement was recorded by IO.
During his crossexamination PW5, stated that the disclosure statement of the accused were recorded in Saket Court between 03:00 PM to 04:00 PM in his presence. On the same day accused persons had taken them to the place of offence and they were four persons including the IO.
PW6 HC Vikram Singh deposed on the lines of PW5 and the same is not repeated for the sake of brevity.
During his crossexamination, PW6 stated that the disclosure statement of the accused were recorded in Saket Court between 03:00 PM to 04:00 PM in his presence. On the same day accused persons had taken them to the place of offence and they were four persons including the IO.
PW7 Ct. Satbir deposed on the lines of PW5 and the same is not repeated for the sake of brevity.
During his crossexamination, PW7 stated that he did not remember the place where IO had recorded his statement, the disclosure statement of the accused were recorded in Saket Court between 03:00 PM to 04:00 PM in his presence. He did not remember whether IO had prepared any other document except the disclosure statement. They all visited G.K.1 at 05:00 PM. On the same day accused persons had taken them to the place of FIR No. 33/2011 P.S. G.K.1 Page No.9 of 21 offence. Few public persons were present at the place but none of them joined the investigation despite request of IO. No document was prepared there and after that they left for Daryaganj.
PW8 SI Kulbir Singh deposed that on 28.06.2011, he was posted at P.S. G.K.1 and the case property of the present case containing 19 wrist watches were deposited at Malkhana of PS Amar Colony. He had received the case property from the Malkhana vide road certificate number 58 dated 28.06.2011, from PS Amar Colony and deposited the same in the Malkhana of PS G.K.1 through aforesaid road certificate number.
During Cross examination PW8 deposed that he had brought the case property from PS Amar Colony as accused was arrested in some other matter initially at PS Amar Colony. Further that he had received the case property without any seal.
PW9 SI Brijesh Malik deposed that on 26.05.2011, he was posted as SI at Madan Gir and was on duty in special staff and on that day he along with HC Jeet Singh, HC Anil and Ct. Sushil was investigating case FIR No. 157/11, PS Amar Colony, U/s 454/380 IPC. At about 07:30 PM when they reached near Kalkaji Mandir, they received a secret information that a burglar and his companion Devender shall come to Nehru Place in black colour Honda City Car bearing Reg. No. DL3CV8423 to meet their another friend FIR No. 33/2011 P.S. G.K.1 Page No.10 of 21 Deepu. Thereafter, he asked 34 public persons to join the investigation but none agreed and therefore they all went to Nehru Place parking near Modi Tower, along with the secret informer. At about 09:00 PM the aforesaid car came from the main road towards Modi Tower and upon pointing of the secret informer towards the car in which accused Devender and Hansraj were sitting. Both accused were apprehended and interrogated and upon the car being searched, they found nine equipments of house breaking. Accused Devender and Hansraj were arrested and their personal search was conducted. Their disclosure statement was recorded in which they disclosed the commission of several offences and also commission of burglary at watch gallery in G.K.1 market. Thereafter, accused persons were produced before the court and they were remanded to five days police custody remand and on 27.05.2011, accused Hansraj was taken to his house at H. No. A402, Shalimar Garden, PartII, Top Floor, Ghaziabad, U.P., for the search of stolen articles. During search of his house branded wrist watches, laptops, CPU's and some garments and a box for keeping cash at shops were recovered. All recovered articles were seized vide seizure memo marked as Mark A. 15 wrist watches were recovered from the custody of accused Hansraj that were found stolen in the present matter. The entire seized articles were deposited as Malkhana Amar Colony.
FIR No. 33/2011 P.S. G.K.1 Page No.11 of 21
On 28.05.2011, they went for search of coaccused Dilip @ Deepu in the area of Nehru Place along with accused Hans Raj and accused Dilip @ Deepu was arrested from his shop at 104A, Kundan House, Nehru Place. Upon search of the shop of accused Dilip branded wrist watches, laptops, LCD monitor and CPU were recovered. The four recovered wrist watches were found stolen in the present case. Thereafter, the recovered articles were seized vide seizure memo Mark B. The articles seized were deposited as Malkhana Amar Colony. On 29.05.2011, accused Dilip was produced before the court and his two days police remand was obtained to search the case property of case FIR No. 147/11 of PS Amar Colony. On 30.05.2011, IO of the present case was informed and on 31.05.2011 accused Dilip @ Deepu was produced before the Court after his police remand, where IO / SI Kaminilien of the present matter also reached and he was handed over the concerned documents. IO / SI Kaminilien requested the Court to interrogated the accused Dilip and after seeking Court's permission for interrogation accused Dilip was formally arrested in the Court and his disclosure statement was recorded vide Ex. PW9/A and he was arrested and his personal search was conducted vide Ex. PW9/B and PW9/C. IO recorded statement of PW9. The photographs of the recovered case property was marked as Mark 9. Case property was already Ex. P1.
FIR No. 33/2011 P.S. G.K.1 Page No.12 of 21
During cross examination by Ld. Counsel for all the accused persons PW9 deposed that his statement was recorded at special staff office at Madan Gir and his statement U/s 161 Cr.P.C was read over to him. IO had collected the documents pertaining to the present matter in the Court. It was admitted that there was a police post and police station in the area of Nehru Place and he did not share the secret information received in the present matter at PS Kalkaji or at police post Nehru Place. He had recorded the disclosure statement of accused persons on the spot. The stolen articles were recovered from the house of the accused Hans Raj. At about 08:00 PM and he had not collected public persons from the locality. He did not remember as to how many floors were there in the building and that he had not cited the wife and children of accused Hans Raj as witness. Further that he had not sealed the recovered articles and it is correct to say that the articles recovered were available in the market. Lastly, that he did not inform regarding the recovery to the local police.
PW10 SI Kamminlien (IO) deposed that on 19.03.2011 at around 09:30 PM a call regarding theft was received and thereafter he along with Ct. P.C. Ramadasan went to the spot. They met the complainant who informed them regarding theft of watches which has taken place at his shop namely "Time and Style" . They inspected the shop and found that the shop FIR No. 33/2011 P.S. G.K.1 Page No.13 of 21 was ransacked and the glasses were broken. PW10 called the crime team for inspection at the spot and to collect chance prints. IO had asked the complainant to give his complaint in writing and the list of articles but he sought time. IO recorded the statement of complainant Ex. PW1/A. He endorsed the rukka Ex. PW10/A and handed over the same to Ct. P.C. Ramadasan for registration of FIR. In the meantime he prepared the site plan at the instance of the complainant which was Ex.PW10/B and that crime team had already reached and took some time for inspection and after some time the crime team handed over to him the report Ex.PW3/A. Thereafter he inquired about the theft from the neighbourers and employee of the complainant but not clue was found. During investigation he served notice to complainant u/sec.91 Cr.PC. to provide the list of stolen articles and other relevant documents and the same were provided to him vide Ex.PW1/B and the copy of the stock register was marked A (colly consisting of 24 pages). Further that the chance print obtained by the crime team were sent to FSL for matching with the prints of security guards of ATM and employees of the complainant. Report of FSL was obtained and place on record and the report in respect the same was not matching. On 30.05.2011 a DD no. 45A was received from special staff that aforesaid accused Devender, Dilip and Hansraj had been arrested by special staff in case FIR NO. 157/11, PS Amar FIR No. 33/2011 P.S. G.K.1 Page No.14 of 21 Colony and during investigation they had disclosed their involvement in the present matter.
On 31.05.2011 PW10 went to office of special staff at Madangir and he came to know that accused Dilip had been taken to Saket courts and thereafter he reached Saket Courts and interrogated accused Dilip with the permission of the court. The case property was already recovered by the special staff officials and therefore PW10 formerly arrested the accused and conducted his personal search and recorded his disclosure statement. During investigation he requested for production of accused Hansraj and Devender to be produced before the court and both accused were interrogated and subsequently their disclosure statements were also recorded and they were formally arrested in the court. After seeking police custody for one day of accused Hansraj and Devender both accused pointed out the place of incident and accordingly pointing out memo Ex.PW5/E was prepared. Thereafter he obtained the documents from special staff officials regarding recovery of stolen articles and recorded the statement of witnesses. SI Kulbeer Singh obtained the custody of case property from special staff and deposited the same at malkhana.
During cross examination PW10 deposed that he had received the information about the apprehension of the accused persons by FIR No. 33/2011 P.S. G.K.1 Page No.15 of 21 the special staff at around 5.00 p.m. to 5.30 p.m. and the same was received through DD no. 45 A. Further that the information of arrest of accused persons in the court was given to the counsel for the accused. Further that he had requested the public persons to join investigation at the time of pointing out memo was prepared but none agreed to join the same.
PW11 Ms. Bhavna Ahlmad in the court of Ms. Archana Beniwal Ld. MM was directed to produce the record of FIR no. 157/11 PS Amar Colony u/sec.454/380/411/34 IPC and the seizure memo of the same was Ex.PW11/A and Ex.PW11/B. Opportunity to crossexamine PW11 was granted to all the accused but they did not question anything to PW11.
PW12 HC Puran Singh deposed that on 28.06.2011 he was posted at HC at PS GKI and was performing the duty of MHC (M) and on that day IO SI Kulbeer Singh had handed over to him total 19 watches vide RC no. 58/21/11 dated 28.06.2011 of PS Amar Colony and he recorded the same in his register no. 19 at Serial no. 1008/11 and the same was Ex.PW12/A. Out of the 19 watches, 18 watches were released on superdari.
Opportunity to crossexamine PW12 was granted to all the accused but they did not question anything to PW12.
PW13 ASI Anil Kumar deposed that on 20.03.2011 he was FIR No. 33/2011 P.S. G.K.1 Page No.16 of 21 posted as duty officer and had made endorsement on rukka vide Ex.PW13/A and had registered the present FIR vide Ex.PW13/B and had given the certificate u/sec.65B Indian Evidence Act vide Ex.PW13/C. Opportunity to crossexamine PW13 was granted to all the accused but they did not question anything to PW13.
PW14 Ct. Rajesh Kumar deposed that on 20.03.2011 he was posted as record Munshi at PS GKI and on the aforesaid date had made entry of present FIR in register no. 9 para II at serial no. 1 and issued certificate to this effect vide Ex.PW14/A. Opportunity to crossexamine PW14 was granted to all the accused but they did not question anything to PW14
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 Cr.P.C was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. Accused persons did not examined any witness in their defence.
7. Before appreciating the evidence, it is relevant to see that to bring home the guilt of the accused it was required by the prosecution to prove for the offence U/s 380 IPC, that accused removed movable property out of the possession of the complainant without his consent and the same FIR No. 33/2011 P.S. G.K.1 Page No.17 of 21 was done with dishonest intention and it was removed from the building, or tent or vessel used as human dwelling or for the custody of property and for the offence U/s 411 IPC that the property was stolen and same was recovered from the possession of accused and the same was in possession of some other person before accused got possession and it was possessed by the accused with the knowledge that it was stolen property and accused retained the same dishonestly. Further to prove offence U/s 454 IPC prosecution was required to establish that the accused committed house trespass by entering into it unlawfully and such entry was lurking i.e. surreptitious and accused committed the house tress pass by effecting his entry into the house or any part thereof through a passage made by himself or through any passage not meant for human or by opening any lock, or by using criminal force and committing an offence or by any passage which he knows to be fastened against such entrance or exit which has been unfastened by him or his abettors. In addition to this it is necessary to establish that the dominant intention of entry was to cause annoyance, intimidation or insult.
8. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed and supported the prosecution FIR No. 33/2011 P.S. G.K.1 Page No.18 of 21 story and the same is also established from the fact that the stolen articles were recovered from accused and therefore the two aspects to be proved by the prosecution that the accused persons committed lurking house breaking and they did so in order to commit theft stands proved.
9. On the other hand, the Ld. Counsel for the accused has argued that the prosecution has failed to establish its case since the prosecution witnesses have not corroborated in their testimony and the guard who was allegedly present near the shop of the complainant was never examined by the prosecution. He has further argued that the recovery witnesses on the recovery memo were never examined by the prosecution and despite of the fact that place of recovery i.e allegedly the house of the accused Hansraj, being a residential place, no independent public witness was examined by prosecution. He has further argued that the chance prints lifted were not sent for comparison with the finger prints of the accused persons and therefore accused are not liable for the alleged incident. He has further argued that even at the time of arrest of the accused from the parking area, the parking attendant was not joined in the investigation and the alleged case property was seized but not sealed and therefore the same casts a shadow on the story of prosecution.
10. I have heard Learned Counsel for accused and Learned APP for FIR No. 33/2011 P.S. G.K.1 Page No.19 of 21 the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record. In the present matter, accused Dalip Kumar Bhatt @ Deepu and Devender @ Lambu were charged for the offences punishable U/s 380/454/34 IPC and accused Hansraj @ Raj was charged for the offence punishable U/s 380/454/411/34 IPC. Since the offence U/s 380 IPC and section 411 IPC are not of same kind, and they can only be read alternatively and hence accused can only be held liable either for offence U/s 380 IPC or 411 IPC.
11. Prosecution was firstly required to prove that the property seized from the accused formed the part of the property stolen and possession of stolen property soon after theft raises the presumption that the possessor is either the thief or received the good knowing them to be stolen. The burden to prove that the property seized is stolen property was lying on the prosecution and the same could have been discharged if the stolen articles were recovered from the possession of the accused persons soon after the date of incident or the accused persons were found in possession of property which they had failed to give any satisfactory explanation and the stolen property was identified by the complainant. However, in the present matter the date of the incident was 20.03.2011 and the alleged stolen articles were recovered FIR No. 33/2011 P.S. G.K.1 Page No.20 of 21 from the possession of the accused Hansraj and accused Dalip Kumar on 27.05.2011 and 28.05.2011. Therefore, it cannot be conceived that the stolen articles were recovered soon after the date of incident and infact there was a gap of more than two months from the date of incident and the date of recovery. Therefore, the ingredients of offence U/s 380/454 IPC is not made out against the accused persons. Further, in the present matter no incriminating evidence has come on record against accused Devender @ Lambu as nothing was recovered from his possession and he was arrested merely on the disclosure statement of the other co accused. Therefore, I am of the considered view that in the present matter, accused namely Hansraj @ Raj and accused Dalip Kumar @ Deepu are only liable for the offence punishable U/s 411 IPC.
12. In view of above discussion, the accused Hansraj @ Raj and Dalip Kumar Bhatt @ Deepu are held guilty and are convicted for the offences punishable U/s 411 IPC and accused Devender @ Lambu is acquitted for all the offences charged against him.
13. Let the parties be heard on the point of sentence.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 29.06.2015 MM10 (SouthEast): Saket Courts:
New Delhi:29.06.2015
FIR No. 33/2011
P.S. G.K.1 Page No.21 of 21