Delhi District Court
Fir No. 10505/16 State vs . Mohd. Musa 1/31 on 3 July, 2017
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE(NE), KARKARDOOMA COURTS, DELHI.
SC No. 129/16
FIR No. 10505/16
PS : Bhajan Pura
U/s. 413 IPC
State
Versus
Mohd. Musa
S/o Sh. Wahajuddin,
R/o. 1009, Gali no. 33,
Jafrabad, Delhi
Date of Committal : 06.08.2016
Date of Arguments : 29.05.2017
Date of Pronouncement : 03.07.2017
JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 07.04.2016, one Mohammed Izhar lodged an online FIR No. 10505/16 u/s 379 IPC regarding theft of his Motorcycle bearing No. DL-5S-AK-3375. On 14/4/16, Special Staff, North East apprehended accused with stolen vehicles and lodged a DD No. 70B with concerned PS regarding recovery of Chasis of above said Motorcycle bearing No. 11969 recovered from the premises of the accused.
FIR No. 10505/16 State Vs. Mohd. Musa 1/31 Accused was arrested in Kalandra Proceedings and sent to J/C and arrested in this case from the concerned court where he was produced on production warrant with the allegation that he had been dealing with in the stolen property habitually and a number of cases had been lodged against him. Even a number of parts of stolen vehicles were also recovered from his premises at his instance including the Chasis of the motorcycle subject matter herein. FIR was lodged against him and accused was arrested and charge sheeted u/s 413 IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Charge under Section 413 IPC framed against the accused vide order sheet dated 17/08/2016 and he pleaded not guilty and claimed trial.
4. To prove the allegations, prosecution has examined PW1 HC Arvind Kumar, PW2 SI Dhanattar Singh, PW3 Mohd. Izhar, PW4 HC Vijay Kumar, PW5 Ct. Prem Chand Sagar, PW6 SI Shahid Ali, PW7 Ct. Ankit, PW8 HC Vikram Singh, PW9 SI Geeta and closed PE.
5. After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C and his statement was recorded.
FIR No. 10505/16 State Vs. Mohd. Musa 2/31
6. To prove the case, prosecution has examined many witnesses including the complainant. The evidence led by the prosecution is as under:-
6.1. PW1 HC Arvind Kumar has produced e-FIR book maintained at PS Bhajan Pura as per which FIR No. 10505/16 was registered online on 7.4.2016 on the basis of statement of Mohd. Izhar S/o Sayad Wazid Ali. It is further deposed that as per e-FIR, on 7.4.2016 at about 4:55 pm, one motorcycle of the complainant bearing no.
DL-5S- AK 3375 was stolen from Gali no.7, North Ghonda, Delhi. Copy of e-FIR is Ex.PW1/A. During cross examination, he has admitted that he has deposed before this court on the basis of record and has no personal knowledge about the present case.
6.2. PW2 SI Dhanattar Singh has deposed that on 12.4.2016, he was posted as Duty Officer with PS Bhajan Pura. At about 10.10 pm, SI Shahid Khan recorded DD no. 12A pertaining to the arrest of accused Musa u/s 41.1 (d) r/w section 102 Cr. PC. Copy of DD no. 12A is Ex. PW2/A. 6.3. PW3 Md. Izhar has deposed that he is the registered owner of motorcycle Splender Pro bearing registration number DL-5SAK- 3375. On 07.04.2016 at about 2.00 pm, he parked his motorcycle in front of his house and, at about 4.00 pm on the same day, he found his motorcycle missing. He tried to search his motorcycle but no clue could come forward. He lodged e-FIR for theft of his motorcycle on FIR No. 10505/16 State Vs. Mohd. Musa 3/31 the same day. Thereafter, he visited PS Bhajan Pura and made inquiry about his case. Police officials visited the spot where motorcycle was parked on 8.4.2016 and prepared site plan at his instance. Police searched for his motorcycle but in vain. After some days, it came into his notice through police officials that Chasis of his motorcycle had been recovered. Chasis of his motorcycle was identified by him at PS, but no other part of his motorcycle could be recovered. He has produced copy of his RC which is Ex. PW3/A (OSR) and Chasis no. of his motorcycle is MBLHA10ASC9L11969. He has identified Chasis of his motorcycle as Ex.P1.During cross examination, he has admitted that he is not the registered owner of vehicle and his brother Mohd. Istkar is the registered owner of the motorcycle. It is further admitted that on the day of incident vehicle was not insured. It is further admitted that chasis of the vehicle was not recovered in his presence.
6.4. PW4 HC Vijay Kumar has deposed that on 12.4.2016, he was posted with Special Staff, North East Distt. And, at about 5.00 pm, he alongwith SI Shahid, ASI Rakesh Kumar and Ct. Buddan Tyagi was busy in checking of vehicles at 66 foota road, near MCD office, Yamuna Vihar. It is further deposed that at about 5.30 pm, accused present in court (correctly identified) came from the side of Jafrabad and going towards Gokul Puri by motorcycle make Avenger having registration no. DL6S - 2221 and on checking he could not produce the document of his motorcycle. SI Shahid interrogated him and during interrogation it was revealed that motorcycle was stolen FIR No. 10505/16 State Vs. Mohd. Musa 4/31 property. It is further disclosed by accused that he could get recovered other stolen vehicles as well as parts of stolen vehicles from his house. Accused also confessed that he was indulged in sale purchase of stolen motorcycles, scooty etc. for last many years. SI Shahid prepared kalandra u/s 41.1 (d) r/w section 102 Cr. PC vide DD no. 12A of which photocopy is Ex.PW4/A. It is further deposed that SI Shahid recorded the disclosure statement of accused which is Ex.PW4/B. SI Shahid also prepared site plan of place of arrest of accused Musa which is Ex.PW4/C. 6.4.1. PW4 has further deposed that in pursuance of disclosure statement of accused Musa, he led police team to his house i.e. 1009, Gali No. 33 Jafrabad where there was big hall at the ground floor of the house and accused pointed out towards six scooties having different registrations, three motorcycles and three engines of two wheelers, 10 chassis of two wheelers, number plates of vehicle with registration numbers and other loose parts of two wheelers like oil tanks, seats, indicators, chain, Rim and tyres etc. and accused disclosed that all the articles had been purchased by him from thieves after making payment to them. SI Shahid seized the two wheelers and other parts etc. vide seizure memo Ex.PW4/D. It is further deposed that SI Shahid also prepared site plan of the place of recovery Ex.PW4/E. On completion of aforementioned recoveries, police officials reached at PS Bhajan Pura and deposited all articles with MHC (M). Accused was also put in lock up of PS Bhajan Pura as he had already been arrested on the basis of recovery of two FIR No. 10505/16 State Vs. Mohd. Musa 5/31 wheelers in the area of PS Bhajan Pura. It is further deposed that one chasis of motorcycle of which theft case was registered with PS Bhajan Pura was also recovered along with other stolen vehicles and articles. SI Shahid passed on the information to concerned PS about the recoveries of stolen vehicles and other articles. It is further deposed that HC Vikram / IO of present case was informed about the recovery of chasis of motorcycle. It is further deposed that on the same day, SI Shahid recorded DD no. 12A with PS Bhajan Pura pertaining to recoveries and arrest of accused Musa and photocopy of DD is Ex.PW2/A. He has identified the chasis of motorcycle having no. MDLHA10ASC9L11969 which is Ex.P1.
6.4.2. During cross examination by accused, he has deposed that he did not remember as to how many vehicles were checked by them till 5.30 p.m. as they did not maintain any record pertaining to checking of the vehicles. It is further deposed that no other person was present when accused Md. Musa was stopped for checking but he was driving without helmet at that time. It is further deposed that he did not remember the colour of clothes of accused worn at that time but no DL was produced by accused despite the direction of SI Shahid Ali. SI Shahid Ali did not take action against accused under M.V. Act for driving the vehicle without helmet and also for not production of DL. It is admitted that house of accused fell under the jurisdiction of P.S. Jafrabad but no police official from P.S. Jafrabad was accompanied with SI Shahid for recovery. It is further admitted that they neither made their arrival and departure entry nor disclosed FIR No. 10505/16 State Vs. Mohd. Musa 6/31 the facts of recovery to P.S. Jafrabad. It is further deposed that no neighbor was called to join recovery proceedings at the spot by SI Shahid Ali and even no witness from the locality was examined regarding the ownership of the accused over the place of recovery of the articles. Even no documentary evidence was collected about the ownership of the house from where recovery was affected. It is denied that recovery mentioned in the seizure memo is planted upon the accused or that nothing was recovered from or at the instance of the accused.
6.4.3. PW4 has denied that accused was lifted from his house along with scooty No. DL-2SN-1571 at about 3.00 p.m. on 11.04.2016 or that accused has been falsely booked in several other cases by Police of Special Staff, North East to work out their pending criminal cases of different Police Stations. It is further denied that accused disclosed them that on 11.04.2016, accused purchased aforesaid scooty from the registered owner or that he has sale letter in his possession on that day or that he disclosed to them that he could not get transferred aforesaid scooty in his name by that time. It is further admitted that no witness was examined by SI Shahid to the effect as to whom and when Md. Musa purchased two wheelers and no one met them to tell that two wheelers were sold to accused. It is denied that no writing work carried out by SI Shahid at the house of accused as no recovery was affected from there. It is denied that he put his signature on the documents which were prepared at P.S. by the SI Shahid. It is denied that SI Shahid forcibly obtained the signature of FIR No. 10505/16 State Vs. Mohd. Musa 7/31 accused on the documents of kalandara proceedings after lifting him from his home with scooty on 11.04.2016. It is denied that no recovery of chassis of any motorcycle was affected from the house of accused.
6.5. PW5 Ct. Prem Chand Sagar has deposed that on 14.04.2016, he was on duty as DD writer and at about 7.30 p.m, he received information from SI Shahid that accused Musa was in J.C. of three cases and one was of his P.S. and concerned IO should be informed about it. He recorded the aforesaid information by DD No.70B which is Ex.PW5/A. 6.6. PW6 SI Shahid Ali has deposed that on 12.04.2016, at about 5.00 p.m., he alongwith ASI Rakesh, HC Sunil, HC Vinay, HC Pramod, Ct. Bhullan Tyagi, Ct. Braham Pal, Ct. Dinesh, Ct. Raj Kumar was checking vehicles at 66 Foota Road, near M.C.D. court, C Block, Yamuna Vihar. At about 5.30 p.m. one person came on motorcycle make Avenger Bajaj bearing registration No. DL-6S AR 2221 and was stopped by him for checking but he could not produce any document pertaining to that motorcycle and also could not produce his driving license. It is further deposed that he checked the chassis number and engine number of aforesaid motorcycle and the same were not found correct. Accused told them that he had stolen aforesaid motorcycle from area of Panchsheel Garden, Naveen Shahdara about one week back. He verified the disclosure of accused from Control Room by using zipnet software and motorcycle FIR No. 10505/16 State Vs. Mohd. Musa 8/31 was found stolen property of e-FIR. He seized the motorcycle of accused u/s 102 Cr.P.C. Accused was interrogated and disclosed his involvement in many other cases thereby stating that he alongwith his associate namely Sabir @ Kabooter was indulged in stealing of the motorcycle. He further disclosed that his associate Sabir @ Kabooter used to sell stolen motorcycles to him. It is further deposed that he recorded the disclosure statement of accused Mohd. Musa Ex.PW4/B in the presence of HC Vinay, ASI Rakesh and Ct. Bhullan Tyagi. It is further deposed that accused disclosed that he could get recovered some other stolen two wheelers and parts of stolen two wheelers from his house i.e. H.No.1009, Gali No.33, Jafrabad, Delhi.
6.6.1. PW6 has further deposed that police team went to the house of accused and seized about 10-12 motorcycles and scooties besides parts of two wheelers lying in the hall. 20 registration plates of two wheelers, 2 engines of scooties, 8 chassis of motorcycles and 2 chassis of scooties, some sheets, chains, mudguards, etc were also lying there. He seized spare parts and two wheelers u/s 102 Cr.P.C vide seizure memo Ex.PW4/D bears signatures of Ct. Vinay, ASI Rakesh and Ct. Bhullan Tyagi besides him. One chassis bearing No. 11969 was found in possession of accused besides other stolen part of two wheelers etc. The said chassis was part of stolen motorcycle of present case. He deposited motorcycles, scooties and loose parts of two wheelers with MHC(M) of P.S. Bhajanpura. He prepared kalandra u/s 41.1 (d) Cr. PC against accused Mohd. Musa which is Ex.PW4/A. It is further deposed that he also recorded DD FIR No. 10505/16 State Vs. Mohd. Musa 9/31 No.12A with P.S. which is Ex.PW2/A. He prepared site plan of place of recovery Ex.PW4/E. He also prepared site plan of place wherefrom accused was arrested and one motorcycle Avenger was found in his possession and the same is Ex.PW4/C. He prepared the kalandra against accused and informed to Police officials about the recovery of 10-12 cases of different Police Stations. PW has identified the chassis of motorcycle bearing No.11969, which is case property of motorcycle of present case, and the same is Ex.P1. He delivered copy of kalandra proceedings to IO and also got registered DD No.70B with P.S. Bhajanpura about the recovery of Chasis from accused Mohd. Musa.
6.6.2. During cross examination, he had deposed that he put barricades for checking of vehicles within the jurisdiction of PS Bhajanpura, but SHO P.S. Bhajanpura was not informed about the use of barricades for checking of vehicles, however he recorded his departure entry at Sr. No. 17 to start vehicle checking. He did not remember as to how many vehicles were checked by them on that day or as to how many persons were stopped by team during vehicle checking. He did not remember the names and addresses of those persons who were checked by them. Accused Musa was without helmet when he was stopped by them coming on his motorcycle. Accused did not have DL at that time, but was not challaned under M.V. Act for without helmet and DL. He asked 4-5 passersby to join proceedings but none agreed, but he did not remember their names and addresses and, even no notice was served upon them for their FIR No. 10505/16 State Vs. Mohd. Musa 10/31 refusal to join investigation. It is further deposed that one Constable removed Avenger motorcycle from place of recovery to the house of accused which was under the jurisdiction of P.S. Jafrabad. It is admitted that neither police assistance was sought from P.S. Jafrabad nor any arrival or departure entry was made by him with PS regarding recoveries from that jurisdiction.
6.6.3. PW6 has admitted that place of recovery was thickly populated area but no one from the neighbourhood was called to join recovery proceedings, however several persons gathered at the time of recovery but no one got ready. He made efforts to trace associate of accused Musa namely Sabir @ Kabootar but his presence could not be procured, however he visited the house of Sabir @ Kabootar but he was not present there. It is further deposed that no written notice was given to family of Sabir but they stayed at the place of recovery for about 2½ hours. Police official of P.S. Jafrabad came to the place of recovery but did not remember his name. He arranged one truck to remove the recovered stolen articles from the house of accused to P.S. Bhajanpura but did not remember the registration number of truck or names of driver and conductor. It is admitted that neither he examined any neighbour pertaining to ownership of the place of recovery nor collected any documentary proof pertaining to ownership of that place. It is further admitted that he did not get conducted TIP of chassis of two wheeler pertaining to present case. It is denied that accused was lifted from his house with scooty bearing No. DL-2SN-1571 at about 3.00 p.m. on 11.04.2016 or that FIR No. 10505/16 State Vs. Mohd. Musa 11/31 accused has been falsely booked in several other criminal cases by him to work out pending cases of different Police Stations. It is denied that recovery of two wheelers and parts of two wheelers were planted upon accused to work out the pending cases of several Police Stations. It is denied that accused has been falsely booked in Kalandra proceedings in connivance of police officials of other P.S. 6.7. PW7 Ct. Ankit witnessed the arrest of accused by HC Vikram Singh on 25.04.2016 with the permission of concerned court vide arrest memo Ex.PW7/A. Accused made disclosure statement of accused Ex.PW7/B in his presence.
6.8. PW8 HC Vikram Singh has deposed that on 07.04.2016, he was assigned the investigation of e-FIR No. 10505/16 by SHO. On 08.04.2016, he visited the spot of incident i.e. Gali in front of House No. C-44/2, Gali No.7, North Ghonda, Delhi and interrogated complainant. It is further deposed that complainant disclosed that his motorcycle bearing No. DL-5SAK 3375 had been stolen. He also inspected the place of theft and prepared unscaled site plan Ex.PW8/A. It is further deposed that he made inquiry from neighborhood about motorcycle but no clue could come forward.
6.8.1. On 14.04.2016, copy of DD No.70B Ex.PW5/A was assigned to him which was in connection of recovery of chassis of the stolen motorcycle from the possession of accused Md. Musa. He contacted SI Shahid Khan who had recovered the stolen motorcycles, chassis FIR No. 10505/16 State Vs. Mohd. Musa 12/31 of the stolen motorcycles / vehicles and other parts of the two wheelers from the house of accused Musa on 12.04.2016 and deposited with MHC(M) and articles were seized in Kalandra proceedings vide DD No.12A. It is further deposed that he collected the copies of Kalandra proceedings which are already Ex.PW4/A, Ex.PW2/A, Ex.PW4/B, Ex.PW4/C, Ex.PW4/E and Ex.PW4/D. He interrogated all the witnesses and inspected the chassis of the stolen motorcycle of which number was tallied with the RC of motorcycle and found correct. He seized chassis no. MDLHA10ASC11969 of the stolen motorcycle of present case vide seizure memo Ex.PW8/B and again deposited with MHC(M). Copy of RC is Ex.PW3/A. He moved application for production of accused before the concerned court and formally arrested him on 25.04.2016 vide arrest memo Ex.PW7/A Accused also made disclosure statement Ex.PW7/B and confessed his guilt.
6.8.2. During cross examination, he has deposed that he interrogated SI Shahid and other police team members who seized the case property on next day at Yamuna Vihar Chowki, but did not make any arrival entry with Yamuna Vihar chowki before recording statement of police team members. It is denied that accused has been falsely in this case at the instance of SI Shahid Ali to work out unsolved cases or that he has manipulated the disclosure statement of accused after his arrest before the court.
FIR No. 10505/16 State Vs. Mohd. Musa 13/31 6.9. PW9 SI Geeta has proved the e-FIR of present case bearing No. 010505 dated 07.04.2016 which is Ex.PW9/A. She has further proved the certificate u/s 65(B) Indian Evidence Act, 1872 regarding correctness of computer system issued by Inspector Shivaji Chauhan who is incharge of e-PS. E-FIR bears the digital signature of Inspector at point A. Certificate u/s 65B of Evidence Act is Ex.PW9/B. It is further deposed that he has seen e-FIR of the present case which is Ex.PW1/A and the same also bears the digital signature of Inspector Shivaji Chauhan at point X. It is further deposed that the FIR was registered on 07.04.2016 and was sent to concerned PS on the same time through computer system.
6.9.1. During cross examination, she has denied that FIR is antedated and ante-time. It is further deposed that she has been trained to handle the main computer system on which e-FIR is being received. She has been working with Insp. Shivaji Chauhan for the last two years and conversant with the signatures of Insp. Shivaji Chauhan.
7. I have heard the arguments and perused the record. Admittedly, this case was lodged on the basis of e-FIR Ex.PW9/A with regard to the theft of a motorcycle bearing registration number DL-5SAK-3375 belonging to one Istkar but he has not been examined by the prosecution. However, PW3 Md. Izhar has been examined who had lodged this FIR. PW3 has deposed that on 07/04/2016, at about 2.00 pm, he parked his motorcycle in front of FIR No. 10505/16 State Vs. Mohd. Musa 14/31 his house, but it was found missing at about 4.00 pm. It is further deposed that he lodged e-FIR on the same day and also went to PS Bhajan Pura to make enquiry about the status of his e-FIR and was informed about the lodging of FIR. PW3 has further deposed that police officials visited his house and inspected the spot of incident and also prepared the site plan Ex.PW8/A. It is further deposed that he was informed by the police that the chasis of his motorcycle was found and he identified the same with the help of his RC, but no other part of motorcycle could be found. He has proved the RC of his motorcycle Ex.PW3/A. The testimony of the PW3 is duly corroborated by the testimony of PW8 HC Vikram.
8. Ld. Counsel for the accused has argued that PW3 is not the owner of the motorcycle and RC of the stolen motorcycle has proved this fact on record due to it could not be proved that motorcycle of PW3 was stolen. It is further argued that the owner of the motorcycle has not been examined to prove the incident of theft of the motorcycle due to prosecution has failed to prove this case against the accused and it is fatal to this case, in the absence of any plausible examination of non-examination of the owner. It is further argued that the accused has already been convicted u/s 413 IPC on the basis of the same set of facts and this case is also part of the prosecution of the accused in that case and now accused is liable to be acquitted. However, these arguments of the Ld. Counsel for the accused have no substance PW3 is the complainant who was in possession of the stolen motorcycle when it was parked in front of FIR No. 10505/16 State Vs. Mohd. Musa 15/31 the house. He has categorically deposed that he parked his motorcycle and it was found stolen from there. He lodged e-FIR as per which he is the complainant. A complainant may be any person who has information of the offence and bring law into motion and there is no requirement that he must be the owner of the stolen article. A de-fecto possession of the stolen article with the complainant is sufficient to consider the possession over articles. Admittedly, Md. Istekhar is the de-jure owner of the stolen motorcycle as per RC Ex.PW3/A, but it is not disputed that the motorcycle was in possession of the complainant Md. Izhar at the time of incident and he was well authorized and competent to lodge this e-FIR if motorcycle was stolen out of his possession. As such, accused is not entitled for acquittal on this ground.
9. Similarly, the non-examination of the owner of the motorcycle is also not fatal to this case. It is not disputed that Istkar is not the owner of the motorcycle and RC of the motorcycle Ex.PW3/A has been proved this fact which is sufficient. As such, it stands proved that the motorcycle was in possession of the complainant and was stolen from the possession of PW3 and it is sufficient to prove the facts regarding theft. The documents comprising e-FIR and site plan of spot prepared by PW8 which is Ex.PW8/A have duly proved the theft of the motorcycle from the spot of incident as disclosed by PW3. These documents are official documents and presumption regarding preparation of these documents u/s 114 (e) and (f) of Indian Evidence Act that the official acts have been duly performed in official FIR No. 10505/16 State Vs. Mohd. Musa 16/31 manner is in favor of the prosecution and this presumption could not be rebutted by the accused just merely by putting suggestion to deny it. However, the offence of theft of this motorcycle by the accused could not be proved by the testimonies of PW3 Md. Izhar and PW8 HC Vikram Singh as none of them witnessed the accused while committing the theft of the motorcycle. Even otherwise there is no charge of section 379 IPC against the accused due to this offence could not be proved against him, but it stands proved that motorcycle was stolen out of the possession of PW3.
10. To prove the charge u/s 413 IPC against the accused, prosecution has examined PW6 SI Shahid Ali who was the In-charge of Special Staff Team which apprehended the accused in this case. PW6 SI Shahid Ali has proved the Kalandra proceedings which are Ex.PW4/A to Ex. PW4/E as per which accused was apprehended u/s 41.1 (d) Cr.P.C. with the help of PW4 HC Vijay Kumar, ASI Rakesh, HC Pramod and others who not only witnessed the recoveries but also arrest of the accused in Kalandra proceedings. PW4, and PW6 have proved that the police team of Special Staff comprising of them as well as other members was checking the vehicles and accused was stopped by them with one motorcycle bearing registration number DL-6S-AR 2221 make Bajaj Avenger which was found to be stolen from Panchsheel Garden against e-FIR No. 10425 registered with PS Shahdara as verified by PW6 from Zepnet software. PW4 has also corroborated this fact. Accused was apprehended and interrogated by the PW6 and led the police team to his house H. No. FIR No. 10505/16 State Vs. Mohd. Musa 17/31 1009, Gali No-33, Jafrabad, Delhi in police custody and got recovered a number of motorcycles and scooties besides 20 registration plates of two wheelers, 2 engines of scooties, 8 chasis of motorcycles and 2 chasis of scooties, some sheets, chains, mudguards etc. which were seized vide 5 separate seizure memos Ex.PW4/B1 to Ex.PW4/B5 bears signatures of Ct. Vinay ASI Rakesh and Ct. Bhullan prepared by PW6 SI Shahid Ali. Chasis of Motorcycle bearing no. DL-5SAK-3375 of which number is MDLHA10ASC11969 was also seized from the house of accused at his instance during police custody. The recovery of Chasis was made vide seizure memo Ex.PW4/D. PW6 got lodged the information with concerned PS through DD No. 70B regarding this recovery and intimation of recovery was given to PW8 thereby lodging DD no. 70B which is Ex.PW5/A. PW8 has corroborated these facts that he received those DDs. PW6 also recorded the disclosure statement of the accused in which he disclosed about the spot of recovery. PW6 also prepared the site plan of both the spots wherefrom accused was apprehended or recovery was affected out of his possession. The site plans are Ex.PW4/C and Ex.PW4/E. Accused disclosed his involvement in various cases vide disclosure statement Ex.PW4/B. All the articles were duly seized and submitted with concerned PS as proved by all police officials of Special Staff Team.
11. Ld. Counsel for the accused has argued that the alleged recovery of different vehicles and spare parts including chasis of the motorcycle of this case, in the absence of public persons despite FIR No. 10505/16 State Vs. Mohd. Musa 18/31 their availability, is fatal to this case and has proved that the recovery is planted upon the accused. However, the arguments of the Ld. Counsel for the accused have no force. The recovery of the chasis at the instance of accused during police custody is relevant and is credible evidence against the accused and this recovery is also admissible u/s 8 as well as 27 of the Evidence Act. The law laid down by the Hon'ble Apex court is as under:
12. It has been held in Mohd. Arif Alias Ashfaw v. State (NCT of Delhi) (2011) 13 SCC 621 that " The essence of the proof of a dis- covery under section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was relevant and material discovery which proceeded in pursuance of information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the court but if the court finds the fact of such information having been given by the accused in custody is credible and accept- able even in the absence of the recorded statement in pursuance of that information some material discovery has been effected than the aspect of discovery will not suffer from any vice and can be acted upon."
13. In Anter Singh v. State of Rajasthan (2004) 10 SCC 657, the Hon'ble Supreme Court of India has summed up law u/s 27 of Evidence Act as under:
"16. The various requirements of the section can be summed up as follows:
FIR No. 10505/16 State Vs. Mohd. Musa 19/31
1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to prescriptions relating to relevancy of other evidence con- necting it with the crime in order to make the facts discovered admissible.
2. The fact must have been discovered.
3. The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4. The person giving the information must be accused of any offence.
5. He must be in the custody of a police officer.
6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
7. Thereupon only that portion of the information which related distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
14. It is further held in State of Maharashtra v. Damu (2000) 6 SCC 269 that:
"35. The basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in search made on the strength of any information FIR No. 10505/16 State Vs. Mohd. Musa 20/31 obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or no exculpatory in nature, but if it results in discovery of a fact it becomes reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum."
15. In Prakash Chand v. State (Delhi Administration) (1979) 3 SCC 90 wherein the Court, after referring to the decision in Himachal Pradesh Administration v. Om Prakesh (1972) 1 SCC 249 as under:
"There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by section 162 of the Criminal Procedure Code. What is excluded by section 162, Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence, relating to the conduct of an accused person( not amounting to a statement) when confronted or questioned by a police officer during the course of investigation.
For Example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the FIR No. 10505/16 State Vs. Mohd. Musa 21/31 place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
16. In view of the above said law, it stands proved that the recovery of the chasis of the motorcycle at the instance of the accused is relevant and admissible u/s 8 as well as 27 of Evidence Act. In fact, the police custody of the accused is relevant at the time of recovery, which has been duly proved by PW4 and PW6 and the actual arrest of the accused is not relevant due to defense of the accused against recoveries is not sustainable. As such, recovery of spare part of the motorcycle of PW3 in this case stands proved and is reliable.
17. Further, PW4 and PW6 have duly proved that the public persons were asked to join investigation but none agreed and it is sufficient explanation of non joining of public persons. Police officials are also competent witnesses and there is no dispute about this legal proposition. Even the law laid down by the Hon'ble Supreme Court of India in Tahir v. State, 1996 (3) SCC 338 that there is no law that police officials are not competent witnesses is very well applicable.
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18. Further, the plightness of police officials in joining independent witnesses during investigation has been discussed by the Hon'ble Supreme Court of India in Appabhai v. State of Gujrat 1988 Supp SCC 241 and has held that "Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and 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 broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner". In view of this law, it stands proved that the recovery of the stolen property in the absence of the public persons is also not fatal to this case.
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19. Recovery of the chasis of the motorcycle, which is stolen part of the motorcycle of the PW3, at the instance of the accused is incriminating material against him. The large quantity of recovery of stolen vehicles as well as spare parts has duly proved that either the accused has been dealing with the stolen property or received them despite knowing it to be stolen. The accused is involved in 30 cases as per the report of SCRB and all are pertaining to the same category of offences like theft or receiving of the stolen property. All the FIRs have been registered against him throughout Delhi which has also fortified the allegations of the prosecution that he has been involved habitually in theft cases or receiving and selling of stolen property. Even accused has been convicted in one case of a case under section 413 IPC by this court itself.
20. On the other hand, accused has taken many defenses. Firstly accused has alleged that the story of the prosecution is false as accused was allegedly stopped during checking and was found driving without helmet and DL, but no challan was issued by PW4 and PW6 which has proved that entire story of the prosecution is false and manipulated. However, this plea is not sustainable. Though PW4 and PW6 have deposed that they were checking the public vehicles during which accused was apprehended with stolen motorcycle and led to recovery of so many stolen vehicles and spare parts of vehicles including chasis of the motorcycle of this case, yet the entire recovery cannot be disputed because no challan under M.V. Act was issued against accused. In fact, if the accused was FIR No. 10505/16 State Vs. Mohd. Musa 24/31 apprehended with stolen vehicle, then there was no logic to issue challan under M.V. Act instead of seizure of motorcycle which has been done by the police. As such, it is not a defense and is after thought.
21. Contrary to it, PW4 has proved that it was stolen property as per the information found from Zepnet. Even, it is also could not be proved that accused has been falsely implicated in this case as accused neither lodged any compliant against the police officials nor has filed any case against the police officials before the competent court of jurisdiction. Accused was supposed to prove that he was not found in possession of all such stolen articles but has failed to prove it, whereas prosecution has duly proved the charges against him beyond doubt.
22. Secondly, accused has taken a defense during the examination of PW4 that he was the owner of the vehicle no DL-2SN 1571 on which he was apprehended by the police and it was purchased by him but ownership of vehicle was not transferred in his favour. However, accused has not examined the owner of that motorcycle or scooty to prove this fact due to it could not be proved that he was the owner of the motorcycle which was allegedly found stolen by the PW6 out of his possession, whereas PW6 has proved that it was stolen property as per the information found from Zepnet. As such, this defense is also after thought.
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23. During the course of arguments, Ld. Counsel for accused has argued that the testimonies of witnesses have material contradictions which render their testimonies useless and not reliable. However, this argument has no substance. It has been held in Bhajan Singh & Ors v. State of Haryana, (2014) 7 S.C.R.1 that while appreciating the evidence of a witness minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evident in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labeled as omissions or contradictions". Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to Convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go the heart of the matter and shake the basic version of prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in statements of witnesses." In view of this judgment, it stands proved that only those contradictions are material which are going into the root of dispute and render the incident doubtful but contradictions with regard to the transportation of seized articles at the instance of accused to PS or some contradiction with FIR No. 10505/16 State Vs. Mohd. Musa 26/31 regard to availability of public witnesses or non joining of public witnesses during investigation are not material and this plea is hereby rejected.
24. Further, Ld. counsel for the accused has argued that the accused has already been convicted in one of the case u/s 413 IPC on the basis of same set of facts and he cannot be convicted again on the basis of same facts due to accused is liable to be acquitted. It is further argued that section 300 of Cr.P.C has provided that accused cannot be tried for same offence twice and after conviction of the accused u/s 413 IPC, he cannot be convicted twice for similar offence as a person can be habitual offender only once and not again. It is further argued that accused was apprehended in a Kalandra proceedings which led the police to arrest the accused and to book in a number of cases and ultimately he convicted for the offence u/s 413 IPC, but, now he cannot be convicted either for this offence u/s 413 IPC or u/s 411 IPC again. It is argued that accused is entitled for acquittal.
25. On the other hand Ld. App for the state has argued that the accused cannot be tried twice for the same offence for which he has faced a trial and has been convicted, but it does not mean that accused cannot be made liable for the offences which he has committed earlier or separately and accused is liable for every offence which he has committed.
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26. I have gone through section 300 Cr.P.C. which deals with the protection of the accused against double jeopardy. A person once tried by a competent court for an offence and convicted or acquitted, cannot be tried again for the same offence during enforcement of acquittal or conviction, on the same set of facts. Perusal of this section would show that the double prosecution of the accused is not permissible for similar offence on the basis of the same facts and not for other offences. If a person has faced trial for a particular offence and resulted in acquittal or conviction, then he cannot be tried again for same offence, but it does not mean that a person can be allowed to keep on doing a similar offence in similar manner and cannot be tried or convicted on similar facts. If accused has been dealing with the stolen properties and receiving different properties in similar manner, then he shall be liable for every such stolen property whichever is found in his conscious possession. However, the plea of the Ld. counsel for the accused that accused cannot be made liable for habitual offence of a particular set of offence is sustainable, if the accused has already been convicted. In this case also, accused has been convicted u/s 413 IPC on similar facts and has been declared habitual offender and now he cannot be convicted again to be an habitual offender on the basis of similar facts. However, he can be definitely tried and convicted for the offence of receiving of another stolen property which was the subject matter of other offence registered got by the PW3.
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27. Ld. Counsel for the accused has further argued that the prosecution has failed to establish the basic ingredients of the offence u/s 411 or 413 IPC as laid down by various judgments of the Hon'ble Supreme Court of India and High Courts and accused is entitled for acquittal. On the other hand, Ld. APP for the State has opposed the submissions and has argued that prosecution has proved all the requirements u/s 411/413 IPC and accused is liable to be convicted.
28. I have gone through the material available on record. Ld. Counsel for the accused has heavily relied upon AIR 1954 SC 39 titled Trimbak v. The State of M.P. in which it is held that it is the duty of the prosecution in order to bring home the guilt of a person under section 411 IPC to prove,
1. That the stolen property was in the possession of the accused.
2. That some person other than the accused had possession of the property before the accused got possession of it,
3. That the accused had knowledge that the property was stolen.
In view of the above said law, it is to be seen as to whether prosecution has proved these facts or not. Admittedly, the motorcycle of which chasis has been recovered at the instance of accused was in possession of PW3 Md. Izhar and motorcycle belonged to Md. Istekar as proved by RC. The same motorcycle was stolen by someone else as proved by e-FIR Ex.PW9/A. Chasis of the same motorcycle was recovered from the possession of accused as proved FIR No. 10505/16 State Vs. Mohd. Musa 29/31 by PW4 and PW6 and the first ingredient of the above said judgment stands proved.
29. Further, PW4 and PW6 have proved that the associate of the accused Sabir @ Kabooter was indulged in stealing of the motorcycles etc and used to sell him. This testimony of the PWs is un-rebutted in the absence of cross examination by the accused. This fact itself suggests that the motorcycle was stolen and was in possession of someone else prior to purchasing the same by accused from third persons. As such, second ingredients of the judgment also stands proved. Lastly, the knowledge of the accused regarding stolen articles also stands proved by the recovery of a huge quantity of the motorcycles and spare parts. A person in possession of huge quantity of stolen articles cannot be in possession of such articles without his knowledge. All the articles possessed by the PW6 and other team members, in pursuance of disclosure statement of the accused, were seized u/s 102 Cr.P.C. and it was the duty of the accused to explain as to how he came into possession of such huge quantity of the stolen articles and, in the absence of such explanation, it stands proved accused was in conscious possession of stolen articles and he is liable for the same. As such, all the ingredients of offence stands proved against accused and defence of accused are after thought.
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30. Keeping in view of the facts and circumstances of the case, I am of the considered opinion that prosecution has successfully proved that accused was found in conscious possession of the stolen chasis of the motorcycle of the accused. However, he is not liable u/s 413 IPC as already being convicted u/s 413 IPC earlier, but he is definitely liable u/s 411 IPC and charge u/s 411 IPC against accused stands proved beyond doubt. Accused is hereby convicted u/s 411 IPC.
Announced in open court (Devender Kumar)
today on 03.07.2017 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
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