Delhi District Court
Criminal Case/156/2010 on 9 November, 2012
FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN MAGISTRATEIII/NORTH, DELHI FIR No. 156/10 S/v Mahender Kumar U/s 379/411 IPC PS: Subzi Mandi C/No. 03/2 U.ID No. 02401R0006422011 Date of Institution : 06.01.2011 Date of commission of offence : 30.05.2010 Name of the complainant : Sh. Rajiv Joshi s/o Sh. H.S. Joshi. Name and address of accused : Mahender Kumar @ Neetu s/o Neelu, R/o C1/231, Nand Nagari, Delhi. Offence complaint off : U/S 379/411 IPC Plea of guilt : Pleaded not guilty Final Order : Convicted U/s 411 IPC Date of reserve for order : 09.11.2012 Date for announcing the order : 09.11.2012. U. ID No. 02401R0006422011 Page No. 1 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi J u d g m e n t: Brief facts and pre trial proceedings 1.
The complainant Rajiv Joshi / PW1 who is the registered owner of motorcycle no. DL8SAQ 1095 gave his motorcycle to PW2 Sh. Rajender Singh for his personal use. On 30.05.10, PW2 parked the aforementioned motorcycle in front of OPD Gate of HRH in the night time. In the morning, the motorcycle was found missing as it was stolen. On 31.05.2010, PW10 SI Ishwar Singh received DD no. 6A and he arrived at HRH where PW2 met and narrated the incident. This DD was kept pending. Thereafter, on 10.06.2010, PW1 came at the PS and gave his statement. PW10 prepared the rukka on the basis of which PW3 HC Joginder Singh Duty Officer registered the instant FIR. Subsequently on 27.06.2010 PW10 filed an untrace report.
On 04.11.2010, PW6 SI Sanjay Kumar along with PW8 Ct. Babu Lal who was posted at PS Nand Nagari was on patrolling duty. They U. ID No. 02401R0006422011 Page No. 2 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi were present near the barricades in front of Gagan Cinema and vehicles were being checked. At about 06.25 pm, they spotted the accused coming on a Babaj Discover motorcycle without having any rear side number plate. On inquiry, accused failed to produce the documents of the vehicle. Accused also could not give any satisfactory reply. That Bajaj Discover motorcycle was found to be a stolen property from the area of PS Jyoti Nagar. During interrogation, accused disclosed that he had stolen motorcycle from Hindu Rao Hospital and its parts were dismantled. All the parts, except the engine had been sold out. Accused led the police party to the back side of Gagan Cinema and at his pointing out, one Engine of a motorcycle was recovered from the heap of garbage. That recovered engine was subsequently found to be that of the aforementioned motorcycle of the PW1. Accused was arrested and personally searched. On completion of investigation, accused was chargesheeted and sent up for trial u/s 379/411 IPC. U. ID No. 02401R0006422011 Page No. 3 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi Trial
2. Copies of the challan and documents were supplied to accused. After necessary compliances and going through the documents annexed with the chargesheet, charge for the only offence u/s 411 IPC was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined in total twelve witness whose testimonies are being touched upon hereunder in brief:
(i) PW1 Rajeev Joshi is the complainant in the present case who deposed that the motorcycle No. DL8SAQ1095 make Bajaj Platina was registered in his name which was given to Sh.
Rajinder Singh for his factory work. He further deposed that on 30.05.2010 Rajender Singh informed him that he parked the motorcycle in the evening of 30.05.2010 in front of OPD of the hospital and at about 05.45 am when he came out, he found the U. ID No. 02401R0006422011 Page No. 4 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi said motorcycle was missing from there. He further deposed that he along with Rajinder searched for the motorcycle but when they could not find, he lodged the complaint at PS on 10.06.2010 which is Ex.PW1/A. He further deposed that Rajinder had also made a call on 100 number on that day. He correctly identified the Engine of his motorcycle which has been marked as Ex.P1.
(ii) PW2 Rajinder Singh deposed that he was working at the factory of Rajiv Joshi. On 30.05.2010, he came to Hindu Rao Hospital in the night to attend his wife who was admitted in the Hospital. He further deposed that he parked the motorcycle No. DL8SAQ1009 Bajaj Platina in front of OPD gate of the Hospital in the night at about 09.00 / 10.00 pm. In the morning at about 05.30 / 06.00 am when he came out , he saw that the motorcycle was not parked there. He made 100 number call. He also informed Sh. Rajiv Joshi about the theft of the motorcycle. He U. ID No. 02401R0006422011 Page No. 5 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi searched for the motorcycle but it could not be found and his employer Rajiv Joshi registered the complaint at PS Subzi Mandi. He correctly identified the case property Ex.P1 i.e. Engine of the motorcycle.
(iii) PW3 HC Joginder Singh deposed that on 10/6/2010, he was working as duty officer from 5.00 p.m. to 1.00 a.m. On that day, at about 5.30 p.m. he received one rukka from SI Ishwer Singh at the Police Station and accordingly he registered the case u/s 379 IPC vide FIR No. 156/10 . The content of the rukka were fed in the computer on his dictation and direction, in the computer installed at PS for this purpose in routine. He obtained the printout of the FIR and made the endorsement on the rukka . The rukka and printout were handed over to Const. Ajay for handing over the same to SI Ishwer Singh. He further deposed that he kept one print out in the register maintained at the PS for U. ID No. 02401R0006422011 Page No. 6 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi this purpose. He also certified that the contents of the printout are true to the rukka. The copy of the printout is Ex. PW3/A and the endorsement Ex.PW3/B.
(iv) PW4 Ct. Manoj Kumar deposed that on 10.11.2010, he joined the investigation in the present case along with IO, HC Hari Om and accompanied IO to Tis Hazari Courts and on that day accused Mahender Kumar was produced in the Court room No. 266, THC, Delhi and IO moved an application before the Hon'ble Court for permission to interrogate and arrest the accused. After obtaining permission from the Court, accused Mahender Kumar was interrogated and arrested by the IO in the present case. During interrogation, accused made a disclosure statement and had also pointed out the spot in front of OPD Gate, HRH, Delhi from where he had committed theft of motorcycle. Arrest memo and personal search memos of the accused to this U. ID No. 02401R0006422011 Page No. 7 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi effect are Ex.PW4/A & PW4/B respectively, disclosure statement of accused is Ex.PW4/C and pointing out memo at the instance of accused is Ex.PW4/D. Accused was got medically examined at HRH and was put in lockup.
(v) PW5 Ct. Ajay Kumar deposed that on 10.06.2010, Duty Officer handed over to him the copy of FIR and original tehrir of the present case with instructions to hand over the same to SI Ishwar Singh at HRH, Delhi and accordingly he left the PS along with copy of FIR and original tehrir and reached at the gate of OPD, HRH , Delhi at about 06.30 pm and handed over the copy of FIR and original tehrir to IO SI Ishwar Singh who was already present there. Thereafter, they made efforts to trace out the stolen motorcycle but the same could not be traced out.
(vi) PW6 SI Sanjay Kumar deposed that on 04.11.10, he was on patrolling duty along with Ct Babu Lal and while patrolling at U. ID No. 02401R0006422011 Page No. 8 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi about 6 pm, they reached in front of Gagan Cinema where a police party comprising from PS Nand Nagari was already checking vehicles after putting barricades on the road. He further deposed that they also joined them and started checking vehicles. At about 6:25 pm, they noticed a person coming from the side of DC Chambri riding a black colour Bajaj Discover Motorcycle and front side number plate was not there on the motorcycle and there was no number written on the rear side number plate of the motorcycle. He further deposed that the boy was stopped and he was asked to produce the documents of the motorcycle, but he failed to produce the same. On interrogation, he disclosed his name as Mahinder Kumar @ Nitu. He further deposed that thereafter, he checked the chassis number and engine number of the motorcycle and verified about the same from Auto Match Branch, Police Control Room and it was revealed that the said U. ID No. 02401R0006422011 Page No. 9 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi particulars matched with the motorcycle no. DL7SBA4375 which was reportedly stolen from the area of PS Jyoti Nagar. The motorcycle was seized and accused was further interrogated. During interrogation, accused disclosed that around five months back, he had stolen one motorcycle from HRH, Delhi and same was dismantled by him and parts of the same had been sold to different persons but the engine of the said motorcycle was yet to be sold and same has been concealed by him behind Gagan Cinema. Thereafter, accused led them to Gagan Cinema and from behind Gagan Cinema, accused pointed out towards a heap of garbage and under that heap of garbage one engine of a Bajaj Motorcycle with Engine no. 77421 was recovered . On verification, it was revealed that the said engine number was of motorcycle DL8SAQ1095 and that motorcycle was stolen from the area of PS Subzi Mandi and in that regard, one case has been U. ID No. 02401R0006422011 Page No. 10 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi registered at PS Subzi Mandi as FIR no. 156/10 u/s 379 IPC. The recovered engine was seized, accused was arrested and necessary information was sent to PS Subzi Mandi. The Kalandera against accused was prepared and he was produced before the Court.
He further deposed that on 06.11.10, HC Hari Om from PS Subzi Mandi, IO of the case FIR no. 156/10 PS S. Mandi met him at PS Nand Nagari and he (PW6) handed over the copy of Kalandera along with copy of other documents to HC Hari Om. Seizure memo of engine is Mark A1. Disclosure statement of accused is Mark A2.
(vii) PW7 Virender Singh, UDC from Transport Department, Wazirpur proved the ownership of the motorcycle No. DL8SAQ 1009 make Bajaj Platina in the name of Rajeev Joshi. He proved the Vehicle Particulars as Ex.PW7/A.
(viii) PW8 Ct. Babu Lal deposed on the same lines of PW6 SI U. ID No. 02401R0006422011 Page No. 11 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi Sanjay Kumar. He deposed about the seizure memo of engine as Mark A1 and disclosure statement of accused as Mark A2.
(ix) PW9 Ct. Vikas deposed that on 23.11.10, as per the instruction of IO HC Hari Om, he went to PS Nand Nagari to receive the engine of stolen motorcycle bearing no. DL8SAQ1095 and received the engine of the aforementioned motorcycle from MHC(M) PS Nand Nagari and brought the same at PS Subzi Mandi vide RC no. 130/21 and handed over the same to HC Hari Om who seized the same vide memo Ex.PW9/A. He correctly identified the engine in the Court.
(x) PW10 SI Ishwar Singh deposed that on 31.05.10, at about 6:40 am, DD no. 6A which is Ex. PW 10/A was received by him and thereafter, he went to HRH, where, one person namely Rajinder Singh met him who told him that one motorcycle bearing no. DL8SAQ0695 belonging to one Rajeev Joshi which U. ID No. 02401R0006422011 Page No. 12 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi was borrowed by him from Rajeev Joshi and on which he had come to HRH, has been stolen from the Gate, opposite OPD, HRH. He further deposed that the said Mr Rajinder Singh did not make any formal statement, so, he (PW10) returned to the PS and DD no. 6A was kept pending. On 10.06.10, Mr Rajeev Joshi, registered owner of the aforementioned motorcycle along with Mr Rajinder Singh came at PS and gave his statement regarding theft of his motorcycle which is Ex. PW1/A. On the basis of statement Ex. PW 1/A, he prepared rukka Ex. PW 10/B and got the present case registered. Thereafter, he along with Rajeev Joshi and Rajinder went to the spot of theft at HRH and prepared the site plan at the instance of Rajinder Singh which is Ex.PW10/C. He further deposed that he made efforts to trace out the stolen motorcycle and culprit but it could not trace.
He further deposed that on 27.06.10, the Untrace Report U. ID No. 02401R0006422011 Page No. 13 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi was filed in the Court as no clue of the motorcycle was found. He further deposed that he had not taken part in further investigation of the present case.
(xi) PW11 HC Hari Om deposed that on 05.11.2010, investigation of the present case was marked to him and on the same day, DD no. 2A which is Ex. PW 11/A was marked to him. Thereafter, he collected the case file of the present case from VRK Branch and on 06.11.10, he went to PS Nand Nagri and obtained the photocopies of Kalandera dated 04.11.10 u/s 41.1(d) CrPC DD no. 24A PS Nand Nagri. On 08.11.10, he moved an application before the Court for issuing P/Ws against accused Mahinder Kr and his application is Ex.PW11/B. On 10.11.10, accused was produced before the Court. He moved an application Ex.PW11/C before the Court for seeking permission to interrogate and arrest the accused which was duly allowed. He U. ID No. 02401R0006422011 Page No. 14 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi interrogated and formally arrested the accused vide arrest memo Ex.PW4/A and his personal search was also conducted vide personal search memo Ex.PW4/B. He also proved the disclosure statement of the accused vide Ex. PW 4/C. Thereafter, he moved an application Ex.PW11/D before the Court for seeking police custody remand of the accused which was duly allowed by the Court. During PC remand of the accused Mahinder, he led them to the place of theft of motorcycle on 11.11.10 and at his instance, he prepared the pointing out memo which is Ex. PW 4/D. He further deposed that on 23.11.10, Ct Vikas brought the engine (Engine no.DUUBPK77421) of the stolen motorcycle from PS Nand Nagri and he (PW11) seized the same vide seizure memo Ex. PW 9/A and deposited the same in Mal Khana PS Subzi Mandi. He completed the investigation, prepared the charge sheet and filed the same before the Ld. Court. He correctly U. ID No. 02401R0006422011 Page No. 15 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi identified the engine of the motorcycle which is Ex.P1.
(xii) PW12 Kamal Kant, Mauza Clerk brought the summoned record i.e. Kalandra vide DD no. 24A PS Nand Nagari u/s 41.1(d) CrPC dt. 04.11.2010. He proved the same and copy of the Kalandra has been marked as Ex.PW12/A. He proved the copy of arrival entry as Ex.PW12/B, copy of seizure memo of engine of motorcycle No. DL8SAQ1009 as Ex.PW12/C, copy of disclosure statement of accused Mahender as Ex.PW12/D and copy of arrest memo of accused Mahender as Ex.PW12/E. Statement of accused and defence
4. On conclusion of prosecution evidence, statement of accused u/s 313 CrPC recorded on 09.11.2012 in which he denied the allegations and claimed his innocence, taking plea of false implication.
Arguments and appreciation of evidence.
5. Through PWs 1 and 2, prosecution has duly proved that the U. ID No. 02401R0006422011 Page No. 16 of 18 FIR No. 156/10 S/V Mahender Kumar U/S 379/411 IPC PS Subzi Mandi motorcycle No. DL8SAQ1095 was stolen on 30.05.2010. The moot question before the Court is whether the engine of the stolen motorcycle was recovered from the possession of the accused. If yes, whether the accused possessed sufficient knowledge or had reasons to believe that it was a stolen property. To prove the recovery portion, prosecution has placed reliance on the statement of PW6 SI Sanjay and PW8 Ct. Babu Lal. Both these witnesses deposed that the accused, after making his disclosure statement, led the police party to the back side of Gagan Cinema and pointed to the heap of garbage. From under the heap of garbage, one motorcycle engine was recovered. The statements of these witnesses could not be shaken by any crossexamination by accused despite opportunity. The recovery of the motorcycle engine has been duly proved by the prosecution. That engine has also been proved to be the engine of the aforementioned stolen motorcycle marked as Ex.P1. The same has also been identified by PWs 1 and 2.
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6. From the facts and given circumstances, it can safely be inferred that the accused had sufficient knowledge or reasons to believe that the engine was a stolen property.
Conclusion
7. After going through the evidence available on record and in view of the discussion made hereinabove, I have come to the conclusion that the accused dishonestly received and retained the stolen motorcycle engine Ex.P1 knowing or having reasons to believe the same to be stolen property. I hold the accused Mahender Kumar guilty and accordingly, he is convicted u/s 411 IPC.
Announced in open court (Neeraj Gaur)
today i.e. 09.11.2012 MMIII/N, Tis Hazari Courts, Delhi
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