Delhi District Court
State vs . Brijesh @ Bunty on 16 October, 2012
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Brijesh @ Bunty
FIR NO: 306/06
P. S. Ambedkar Nagar
U/s 379/411 IPC
Unique ID no. 02403R0039332007
JUDGMENT
Sl. No. of the case : 1085/2 (4.12.2010) Date of its institution : 19.1.2007 Name of the complainant : Sh. Amarnath Date of Commission of offence : 29.4.2006 Name of the accused : Sh. Brijesh @ Bunty Offence complained of : Section 379/411/34 IPC Plea of accused : Not guilty Case reserved for orders : 22.8.2012 Date of judgment : 16.10.2012 Final Order : Convicted BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Brijesh upon the police report filed by P.S. Ambedkar Nagar u/s 379/411/34 IPC.
State Vs. Brijesh @ Bunty FIR no. 306/06
2. As per the prosecution's story on 29.4.2006 at night at H.no. B151, Duggal Colony, Khanpur, New Delhi accused alongwith coaccused Wasim (since juvenile) stolen the Maruti car of complainant Sh. Amar Nath no. DL 4CG 1156 from the possession of complainant and the said car was recovered from his possession which he dishonestly received or retained knowing or having reason to believe the same to be stolen one thereby committing an offence u/s 379/411/34 IPC.
3. After completing the formalities, charge sheet was filed against the accused persons and the charge was framed against the accused persons u/s 379/411/34 IPC to which they pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined seven witnesses.
5. PW 1 is ASI Karambir and PW 3 is Ct. Vijay whose testimony is to the effect that on 3.5.2006 they were posted at PS Sangam Vihar and on that day, they alongwith HC Shiv Charan and Ct. Sanjeev Kumar were on patrolling duty and present on MB Road, Batra hospital and at about 9 pm, they were checking vehicles. From Khanpur side car no. DLT 4634 was seen coming which was being driven by the accused Brijesh @ Bunty and other accused Wasim was sitting next to him. On checking no papers were shown. On interrogation they revealed that they had stolen said car from Duggal Colony which had actual no. DL 4CG 1156. PW 1 then took the car in State Vs. Brijesh @ Bunty FIR no. 306/06 possession vide memo Ex.PW1/A. Accused was arrested vide memo Ex.PW1/B and Ex.PW1/C and their personal search was conducted vide memo Ex.PW1/D and Ex.PW1/E.
6. PW 2 is Sh. Amar Nath who deposed that on 2.5.2006, he had parked his Maruti 800 no. DL 4CG 1156 outside his house and in the morning he found the car was missing. He went to police station and lodged complaint Ex.PW2/A.
7. PW 4 is HC Kabul Chand who was the duty officer and proved the FIR as Ex.PW4/A upon a rukka Ex.PW4/B.
8. PW 5 is ASI Mohd. Illiyas who proved the FIR as Ex.PW5/A.
9. PW 6 is Ct. Raj Kumar who took the rukka to the police station for the registration of the FIR and got the FIR registered. On 4.5.2006, accused was formally arrested vide memo Ex.PW6/A and his personal search was conducted vide memo Ex.PW6/B in his presence.
10. PW 7 is HC Jarnail Singh who was the investigating officer of this case and proved his investigation alongwith certain documents like site plan Ex.PW7/A, arrest memo of accused as Ex.PW6/A and personal search of accused as Ex.PW6/B.
11. This is the overall prosecution's evidence in this case.
12. After recording the evidence of this witness, the prosecution evidence was State Vs. Brijesh @ Bunty FIR no. 306/06 closed. The accused was examined under the provision of section 313 Criminal Procedure Code, 1973 (for short Cr.P.C) and all the incriminating evidence were put to him which he denied and answered that he has been falsely implicated and had not led defence evidence.
13. I have heard the Ld. APP for State and counsel for accused person and perused the records of the case.
14. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused. The stolen car was found in the possession of the accused for which no explanation has been tendered by him.
15. On the other hand, it has been argued by counsel for accused persons that no public witness was joined in the investigation and accused has been falsely implicated in the present case.
16. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused is guilty of the offence with which he is charged or not.
17. PW1 ASI karambir has deposed that on 3.5.06, he was posted at PS Sangam Vihar and was on patrolling duty along with Head Ct. Shiv Charan, Ct. Vijay State Vs. Brijesh @ Bunty FIR no. 306/06 and Ct. Sanjeev Kumar at MB road opposite Batra hospital. At about 9:00 pm while they were checking the vehicles, one maruti 800 car bearing number DTC 4634 coming from the Khanpur side, which was being driven by accused Brijesh, was stopped for checking. Other accused Waseem (declared juvenile) was sitting next to accused Brijesh in the aforesaid car. Accused was asked to show the papers of the car which they could not show and later on on enquiry it is revealed that the aforesaid car was stolen from Duggal Colony which had actual number DL4 CG1156. Consequently, on enquiry from the DO at PS Ambedkar Nagar, it came to notice that the above said car was stolen in FIR no. 306/06 upon which the car was taken into possession vide memo Ex. PW1/A. Accused was arrested vide memo Ex. PW1/B and his personnel search was conducted vide Ex.PW1/D and disclosure statement was recorded vide Ex.PW1/F. In cross examination, PW 1 stated that there were no shops, offices or houses on the spot therefore no independent witness was joined. It is also stated that public witnesses were asked to join the investigation but in vain. He denied that all the documents were prepared at PS or that accused was lifted from his house and falsely implicated in the present case.
18. PW 3 Ct. Vijay Kumar who was also posted at PS Sangam Vihar has deposed more or less on the same lines as PW 1. However as regards the presence State Vs. Brijesh @ Bunty FIR no. 306/06 of the other accused Wasim, PW 3 has initially pleaded ignorance about his apprehension but later when he was being cross examined by APP he supported the version of PW1. He was also cross examined by counsel for the accused but nothing significant came out of it except that he also stated that no public witnesses were inclined to join the investigation despite being requested.
19. The testimony of PW 1 and PW 3 are clear, consistent and unambiguous. There is no reason to disbelieve their testimony. There is also no ground of foisting a false case upon the accused as no enmity has been brought on record. It is also not the case of the accused that he was involved in some other case and because of that the present case was also thrusted upon him. Although PW 1 and PW 3 both are police witnesses but this cannot be a ground for discarding their testimony. In such cases, court has to be circumspect while relying upon the testimony of police witnesses by carefully analyzing their testimony. As regards the circumstance that the public witnesses were not joined during the investigation, it is said that there is no rule that in all cases public witnesses have to be joined and examined. It depends upon the facts and circumstances of the case and if otherwise the case of the prosecution is reliable and the testimony of the prosecution witnesses are unequivocal then in that case non examination of public witnesses would not be fatal to the case of the prosecution.
State Vs. Brijesh @ Bunty FIR no. 306/06 Accused has not explained how he came to have the possession of the car in question. He has not claimed his ownership on the said car which unerringly points towards the guilt of the accused. To provide spine to my view, following Judgments are referred to :
In Ram Hirdaya Yadav v. State of U.P 1990 it has been held that the mere fact that the prosecution witnesses are police officers is not enough to discard their evidence in the absence of their hostility to the accused.
In State of Mysore v. Koti Poojari, 1965(2) Cri. L.J 517, it is held:
"The testimony of a police witness is not liable to be rejected merely, on the ground that he belongs to the police force provided it has otherwise the characteristic of creditworthy evidence".
In Kalpana Rai v. State through C.B.I, A.I.R 1998 SC 201, it is held:
"There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinizing the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined".
In State Govt. of NCT of Delhi v. Sunil and another (2001) 1 SCC 652 it was held in the context of non joining of independent public witnesses by the police that:
"When the police do not take public witnesses in recovery and search cases, though the place is such where public witnesses may be available, then in such a situation the safest course open to a court is that it should carefully scrutinize the evidence of police State Vs. Brijesh @ Bunty FIR no. 306/06 witness and if there evidence is otherwise trustworthy and inspires confidence and they also do not appear to have any motive to falsely implicate the accused, there is no reason why they should not be believed. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court therefore instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused".
20. PW 2 Amarnath is the complainant who deposed that his Maruti 800 car was stolen from outside his house and complaint in this regard was lodged in the PS Ex. PW2/A. He further deposed that after few days he was informed about the recovery of his car which he later on got released on superdari vide Superdari nama Ex. PW2/B. The car in question is Ex. P1. PW 7 Head Ct. Jarnail Singh has deposed that on 4.5.06, he received DD. No. 80 mark A7 stating that the accused was apprehended in the police station Sangam Vihar along with the stolen vehicle following which he went to the aforesaid PS and arrested the accused vide memo Ex. PW6/A. On 10.5.06, the car was seized from police station Sangam Vihar and deposited the same in the Malkhana of PS Ambedkar Nagar vide RC no. 156/21 mark B7. The testimony of both the aforesaid witnesses have remained unchallenged and uncontroverted.
21. In so far as indiction of the accused under section 379 IPC is concerned, State Vs. Brijesh @ Bunty FIR no. 306/06 although there is no direct evidence to connect the accused with the aforesaid offence as there is no eye witness to the offence of theft in respect of the vehicle in question. The vehicle is stated to be stolen on 29.04.2006 and the same was recovered by the police officials on 3.05.2006, the time lapse between stealing and recovery is not long therefore presumption under section 114 of Evidence Act, 1872 can safely be brought into picture in the present case to connect the accused with the crime of theft. Under illustration (a) to section 114 of the evidence act, in the absence of cogent explanation for the possession of the property, the person in possession of stolen goods could be presumed to be either the thief or a receiver of stolen property. Such possession must ne "soon after the theft". In a particular case whether the possession is "soon after the theft" depends upon the various facts. No specific time limit is prescribed. In the instant case, as already observed the vehicle in question was recovered three days after the theft and at the time of intercepting the vehicle, accused Brijesh was stated to be behind the wheel. Therefore he can be said to be in possession of the stolen vehicle and is liable to be punished as thief.
22. In view of the proceeding discussion, it is amply clear that the prosecution has been able to prove the case against the accused to the hilt. No explanation has been tendered by the accused how he came to have the possession of the stolen vehicle. Therefore accused stands convicted for the offence under section 379/411 IPC. Let he be heard on the point of sentence.
Announced in the open court (Navjeet Budhiraja)
on 16.10.2012 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Brijesh @ Bunty FIR no. 306/06