Delhi District Court
State vs . Firoz @ Football on 13 February, 2012
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IN THE COURT OF Ms. CHETNA SINGH:MM08(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Firoz @ Football
FIR No.317/10
U/s : 379/411/482 IPC
P.S. : Neb Sarai
JUDGMENT
1.FIR No. : 317/10
2.Date of the Commission of the offence : 25.11.2010 to 26.11.2010
3.Name of the accused : Firoz @ Football,
S/o Sh. Mohd. Karim
R/o D132, J.J. Colony,
Inder Puri, New Delhi
4.Name of the complainant : Ambika Dabral
5.Offence complained of : 379/411/482 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted of offence u/s.
379 IPC
Convicted u/s. 411/482 IPC
FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC
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8.Date of final order : 13.02.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION The story of the prosecution is that on 25.11.2010 to 26.11.2010 between 8 pm to 2 am in front of Home D263, Krishna Park, Gupta Farm, Devli road, Khanpur, New Delhi, within the jurisdiction of PS Neb Sarai, the accused Firoz @ Football was found in possession of motorcycle bearing number DL3SAP4368 and the same belonged to complainant Smt. Ambika. It is further alleged that the accused stole the said motorcycle and thereby changed its number plate which was later recovered from his possession alongwith the fake number plate and he thereby retained the same knowing or having reasons to believe to be stolen one and thereby committed offences punishable under section 379/411/482 IPC.
On the basis of the said allegations and on the basis of the complaint of the complainant Smt. Ambika Dabral, an FIR bearing number 317/10 under section 379/411/482 IPC was lodged at Police Station Neb Sarai.
After investigation, chargesheet under section 173 Cr.P.C was filed before the court on 01.07.2011.
FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 3 On the basis of the chargesheet, a charge for the offence punishable under section 379/411/482 IPC was framed against the accused Firoz @ Football and read out to the said accused, to which the accused pleaded not guilty and claimed trial on 10.10.2011.
To prove its case, the prosecution has examined following witnesses.
JUDICIAL PRONOUNCEMENT In order to prove the offences punishable under section 379/411/482 IPC against the accused Firoz @ Football the prosecution is required to prove the following ingredients of the said offences: In order to prove the allegations of offence punishable under section 379 IPC, the prosecution need to prove the following essential ingredients: (1)That the accused had dishonestly taken the property.
(2)That the property was movable.
(3)That the property was taken out of the possession of another person/complainant.
(4)That it was taken without the consent of that FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 4 person/ complainant.
(5)That there must be some moving of the property in order to accomplish the taking of it.
(6)That the said offence has been committed in furtherance of common intention.
For offence under section 411 IPC, the prosecution is required to prove the following essential ingredient: That the accused has dishonestly received or retained any stolen property knowing or having reason to believe the same to be stolen property. In order to prove the said allegations, the prosecution has examined following witnesses: PW1 Smt. Ambika Dabral who is the complainant her self and she has exhibited her complaint which is Ex.PW1/A. She deposed that on 25.11.10 her son Naresh Mohan Dabral had parked his motorcycle bearing no. FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 5 DL3SAP4368 in front of their house and when she got up at 2 am in the night she found that said motorcycle was missing. Thereafter, in month of may 2011, police informed her as regards recovery of motorcycle but at that time the insurance had already been claimed.
The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW2 Ct. Pradeep Kumar deposed that on 05.05.11 he was posted as constabale at PS Neb Sarai and on instruction of SHO, he alongwith HC Krishan Kumar had gone to PS Mangol Puri for investigation of stolen motorcylce and procured road certificate which is markA. Thereafter, IO/HC Krishan Kumar seized the motorcycle bearing no. DL3SAP4368 alongwith the fake no. plate Ex.PW2/A which were deposited in the malkhana. He further deposed that on 06.05.2011, IO took the custody of accused Firoz from police officials of PS Mangol Puri and also identified the accused.
The said witness was not crossexamined by Ld. Defence Counsel despite opportunity given.
PW3 HC Krishan Kumar deposed on the lines of PW2 and further stated that accused Firoz was arrested in the presence of Ct. Pradeep Kumar vide arrest memo Ex.PW3/A and he also identified the accused. FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 6 The said witness was not crossexamined by Ld. Defence Counsel despite opportunity given.
PW4 HC Baljeet being one of the recovery witness deposed that on 01.05.2011 he was posted at PS Mangol Puri as HC and on that day he was on picket duty on C block, Mangol Puri alongwith Ct. Rajbir and Ct. Surender. He further deposed that during picket duty at about 7:45 pm, the accused person namely Firoz was given indication to stop the vehicle and on being interrogated, failed to produce any documents of motorcycle or to give any satisfactory answer about the possession of the same. During enquiry he disclosed that said vehicle was stolen from Uttam Nagar. He further deposed that thereafter, accused was arrested in case FIR no. 195/11, PS Uttam Nagar wherein he made disclosure statement as regards the theft of the vehicle bearing no. DL3SAP4368 from Krishna Park and the same was got recovered from his relatives place at Mir Vihar by Ct. Surender and Ct.Rajbir. The said vehicle was seized.
The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW5 Yatin being the Asst. Ahlmad deposed that the photocopy of original DD no. 44A and 44B dated 01.05.11 is markA1 to A2 and the same FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 7 was recorded in FIR no. 195/11, u/s 379 IPC, PS Uttam Nagar (OSR).
The said witness was also not crossexamined by Ld. Counsel despite opportunity given.
PW6 SI Pushpender deposed that on 26.11.10 he was posted at PS Neb Sarai as SI and at about 34 am, he received DD no. 26A regarding theft of motorcycle. He alongwith Ct. Kapil reached the spot wherein he met the son of the complainant who was interrogated as regards the theft. Thereafter, on 27.11.10, complainant Ambika gave a written complaint Ex.PW6/A and rukka was handed over to duty officer for registration of case after registration of FIR, copy of the FIR and original rukka was handed over to him. He further deposed that site plan was prepared which is Ex.PW6/B and as no trace of the vehicle was found, an untrace report was prepared.
The said witness was crossexamined by Ld. LAC Counsel however, no material contradiction came on record.
Further witnesses at sl. no. 4, 9 and 12 were not examined and dropped from array of witnesses as the same were admitted u/s 294 Cr.P.C. by the accused vide his separate statement recorded on 21.01.2012.
After all the witnesses have been examined, statement of accused Sanjay under section 313 Cr.P.C was recorded on 13.02.12 wherein the accused FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 8 stated that he has been falsely implicated in the present case and does not wish to lead any defence evidence in the present matter.
Arguments advanced by Ld. Counsel for the accused and Ld. APP for the State heard.
In the present matter the court has to examine whether the ingredients of section 379 IPC are made out. Even if presuming that the accused has dishonestly taken the property which was movable, it has not been proved that the property was moved from the possession of the complainant without his consent by the accused. The only evidence which has been cited by the prosecution in favour of section 379 IPC against the accused is that the accused had made a disclosure as regards the theft of the motorcycle bearing no. DL3SAP4368. As per section 25 of the Indian Evidence Act "any confession made to a police officer shall be proved as against a person accused of any offence." Thus, it is a settled law that no confessional statement given by the accused before the police is sufficient to convict the accused.
My this view is further supported by the case titled Ram Singh Vs. State of Maharashtra, 1999 Cr. LJ 3763 (Bombay). In this case it was held that:
"Any confessional statement given by the accused before police is FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 9 inadmissible in evidence and cannot be brought on record by the prosecution and is insufficient to convict the accused."
In Aghnu Nagesia Vs. State of Bihar, AIR 1966 SC 119, it was held that "proof of the confession is prohibited by section 25."
Further, 26 of Indian Evidence Act also deals with confession by accused while in custody of the police, which cannot be proved against him unless made in the immediate presence of Magistrate.
Thus, apart from this disclosure statement, which is inadmissible in evidence, there is no evidence on record as regards the accused having committed offence under section 379 IPC and hence, acquitted of the charges under section 379 IPC.
Now coming to the fact whether offence under section 411 IPC is made out. The complaint has been proved by PW1 Smt. Ambika Dabral, who is the complainant herself who only deposed that she made a complaint as regards the theft of the motorcycle of her son bearing number DL3SAP4368 which is Ex.PW1/A. PW Ct. Pradeep Kumar, HC Krishan Kumar and HC Baljeet are recovery witnesses who have consistently deposed as regards the recovery of the motorcycle with the fake number plate from the accused. All the FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 10 witnesses have deposed on similar lines and submit that they stopped the accused at the barricade and on interrogation the accused disclosed that he has stolen the vehicle being driven by him from Uttam Nagar area. Thereafter he was arrested in case FIR no. 195/11, u/s 379 IPC, PS Uttam Nagar wherein he made the disclosure as regards the stolen vehicle in the present FIR. Even though disclosure statement is inadmissible in evidence as stated above, section 27 of the Indian Evidence Act admits the proof of only so much of the disclosure statement as leads to the recovery in pursuance of said disclosure.
Now coming to Section 27 of Indian Evidence Act, which reads as under:
"When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of the police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Further, as noted in case titled Puluduri Kotayya Case and In Udai Bhan Vs. State of U.P. The important ingredients of this Section have been summoned up FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 11 as under: (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 question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact 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 relates distinctly or strictly to the fact discovered can be FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC 12 proved. The rest is inadmissible.
PW HC Baljeet has deposed that the stolen vehicle with fake no. plate was recovered from the accused. Further none of the witnesses have been crossexamined by Ld. Defense counsel despite opportunity given and thus, no contradiction can be attributed to their testimony. Recovery have been effected at the instance of accused of both the vehicle and fake no. plate and hence, the ingredients of section 411/482 IPC have been fulfilled and accordingly, the accused person is convicted for offences under section 411/482 IPC.
Be heard on the point of sentence at 3 pm. ANNOUNCED ON 13.02.2012 (CHETNA SINGH) MM08(South)/13.02.2012 Certified that this judgment contains 12 pages and each page bears my signatures.
(CHETNA SINGH) MM08(South)/13.02.2012 FIR No317/10 State Vs. Firoz @ Football Under Section379/411/482 IPC