Delhi District Court
State vs : Mumtaz Etc. on 17 July, 2007
IN THE COURT OF SH.AMIT KUMAR : M.M. KKD COURTS : DELHI State Vs : Mumtaz etc. FIR No. : 213/2001 U/s : 380/34 IPC P.S. : Nand Nagari JUDGEMENT
1. Sl. No. of the case : 876/03
2. Date of commission of offence : 07.05.2001
3. Date of institution of the case : 29.11.2001
4. Name of the complainants : Anand Kumar
5. Name of accused, parentage & : 1. Mumtaz
address W/o Sh. Zameer
R/o C-2/120, Gali No.13
Mustafabad, Delhi
2. Shehnaz
W/o Sabir
R/o C-2/120, Gali No.13
Mustafabad, Delhi
Delhi.
6. Offence complained of or proved : 380/34 IPC
7. Plea of the accused : Pleaded not guilty
8. Date of reserve for order : 09.07.2007
9. Final order : Convicted
10.Date of Judgement : 09.07.2007
BRIEF REASONS FOR THE DECISION OF THE CASE : -
1. The brief facts of the prosecution case are that on 07.05.2001 at about 2.30 PM both the accused persons came to the shop of complainant for purchasing one golden chain. They were subsequently joined by one more lady who immediately left after about 10 minutes. Then, he found one of his golden chains missing. He called up PCR and lodged his complaint and present FIR was registered. Both the accused were arrested. Case property was not recovered from them and after completion of the necessary formalities, present challan was filed in the court. Copies of the Challan were supplied to accused persons. Charge u/s 380/34 IPC was framed against the accused persons who pleaded not guilty and claimed trial.
2. Prosecution has examined as many as 6 witnesses in support of its case i.e. PW-1 : HC Satbir Singh, PW-2 : HC Subhash, PW-3 : Ct. Satya Veer, PW-4 : Anand Kumar, PW-5 : WHC Jag Roshni and PW-6 : SI Kans Raj. Statement of accused persons were recorded u/s 313 Cr.P.C. wherein they preferred to lead defence evidence in their favour and has examined two defence witnesses i.e. DW-1 : Rizwana and DW-2 : Shabana.
3. I have heard Ld. APP for the State, Sh. A.A. Khan, Ld. Defence Counsel appearing on behalf of the both the accused persons and have perused the record very carefully. PW-1 is the Duty Officer who has proved on record the FIR vide Ex. PW-1/A and endorsement on tehrir was made vide Ex. PW- 1/B. He is a formal witness. There is no cross examination to this witness.
4. PW-2 is the 1st IO of this case who went to the spot on receipt of DD No.8A and has stated that when he along with Ct. Satbir reached at the shop of complainant at Nand Nagari, both the accused persons were handed over to him by the complainant. He recorded his statement and prepared Tehrir vide Ex. PW- 2/A and got the FIR registered through Ct. Satbir and further investigation of this case was handed over to SI Kans Raj who arrested the accused vide memo Ex. PW-2/B & C. The witness was cross examined at length and apart from the fact that no case property was recovered from the accused which otherwise is admitted case of prosecution, there is no material cross examination to this witness by Ld. Defence Counsel. PW-3 is the constable who accompanied the IO PW-2 and has supported the prosecution story as well as the version of PW-
2. He is the formal witness as far as the incident is concerned. There is no material cross examination to this witness by Ld. Defence Counsel.
5. PW-4 is the complainant who has supported his complaint and has stated that on 07.05.2001 at about 2 or 2.15 PM when he was present in his shop, both the accused persons came to his shop and asked him to show golden chains to them. He showed 6 chains to them and in the meantime, he became busy with other costumers and subsequently, he saw only 5 golden chains and when he asked the accused to present the 6th chain, they did not give any satisfactory reason. In the meantime, one of the accused persons went outside the shop, but subsequently returned back. He called up the police who recorded his statement vide Ex. PW-4/A. The witness has identified both the accused persons in the Court and was cross examined at length by the Ld. Defence Counsel and he has admitted in his cross examination that he has no proof to show the ownership of this 6th chains and he has also admitted that one of his employees namely Guddu was present in his shop, but did not witness the incident because they were in the cabin of the shop. He has also stated that he cannot identify the 3rd lady who came in the shop because she was wearing 'Burqa'. He has further denied the suggestion that accused has been falsely involved in this case.
6. PW-5 is the lady constable who was called for conducting personal search of the accused persons being females and has proved on record the personal search memo vide Ex. PW-5/A & B and disclosure statement of accused Mumtaz vide Ex. PW-5/C. She was also cross examined by Ld. Defence Counsel. There is no material cross examination to this witness by Ld. Defence Counsel. PW-6 is the 2nd IO who has proved on record the Site Plan vide PW- 6/A and has further stated that on 07.05.2001, he took police custody of the accused Mumtaz to apprehend the 3rd accused and recovered the case property from Zafrabad, but despite efforts, the same could not be done. There is no material cross examination to this witness by Ld. Defence Counsel.
7. Statement of accused persons were recorded u/s 313 Cr.P.C. wherein they have simply stated that they are innocent and no recovery has been effected from them and they have been falsely implicated by the complainant but for what reason, has not been specified. They have also examined two defence witnesses who have simply stated about the character of the accused persons. They were cross examined by Ld. APP for the State wherein they have admitted that they have no knowledge about this case.
8. Ld. Defence Counsel, during the course of arguments has laid much emphasis on the aspect that case property was never recovered in this case and ownership proof has not been given by the complainant and even the DD No.8A after which 1st IO visited the spot has not been placed on record and as such the prosecution has not been proved the case beyond reasonable doubt and benefit of doubt should be given to the accused persons.
9. I have heard his submissions as well as the contention of Ld. APP for the State and I am of the considered opinion that there is no force in the arguments of Ld. Defence Counsel. Both the accused persons have been specifically identified in the court and it is settled proposition of law that recovery of case property is not essential to prove theft in every situation, if that being the truth, a pick pocketer who picks the pocket hands over the purse to absconding accused, but caught red handed on the spot, will always get free on the ground that case property has not been recovered. Similarly is the case before hand. In the present case, both the accused persons were joined by 3rd lady at the shop of the complainant who despite efforts could not be apprehended and there is no reason given in the Court in the cross examination of the complainant as to why he will falsely involve the accused in this case. No previous enmity or acquaintance between the parties has been mentioned during the entire cross examination. In these circumstances, I found no reason to disbelieve the testimony of complainant. On the other hand, non-production of a DD or non joining of other witnesses does not harm the prosecution case and no benefit can be said to have accrued because non-production of these documents. It is not the case of the accused that no such incident has taken place. Their case is that they have not committed the theft and in these circumstances, non- production of that DD is not fatal to the prosecution case.
10. From the testimony of complainant, I am of the considered opinion that prosecution has been able to prove its case beyond reasonable doubt against both the accused persons who in furtherance of their common intention committed theft at the shop of complainant. Both the accused persons are convicted for the offence punishable u/s 380/34 IPC. Put up for arguments on the point of sentence on 13.07.07.
Announced in the open ( AMIT KUMAR )
Court on 09.07.2007 Metropolitan Magistrate,
Karkardooma Courts, Delhi
IN THE COURT OF SH.AMIT KUMAR : M.M. KKD COURTS : DELHI State Vs : Mumtaz etc. FIR No. : 213/2001 U/s : 380/34 IPC P.S. : Nand Nagari ORDER ON SENTENCE 17.07.2007 Present : APP for the state.
Both convict with counsel.
Arguments heard on the point of sentence. Ld. Defence Counsel has submitted that both the convicts are females and convict Mumtaz has 7 children and convict Shehnaz has 3 children to support and they are the first time offenders and are facing trial since 2001 and there are no other civil and criminal involvements reported against them and in these facts, a lenient view should be taken against them and they may be released on probation. Ld. APP for state, on the other hand, has prayed for taking a strict view while punishing the convicts/accused persons to serve as a deterrent to others.
I have heard the submissions of both the counsels and perused the record. Both the convicts are convicted for the offence punishable u/s 380 IPC which provides punishment for 7 years along with fine. A perusal of the record shows that earlier both the convicts were released on bail immediately after their arrest and I find no reason to give any benefit of offenders act to them. In facts and circumstances of this case, both the convicts are sentenced to SI for 3 years for the offence u/s 380 IPC along with a fine of Rs.1,000/-. In default of payment of fine, further SI for 6 months. Fine not paid.
At this stage, an application for suspension of sentence filed on behalf of convict. I have heard the submissions. In view of the mandatory provisions of Section 389 Cr.P.C, both the convicts are admitted to bail for a period of one month from today on their furnishing a personal bond of Rs.10,000/- each with one surety in the like amount till 17/08/07. Till then the sentence is suspended. File be consigned to Record Room.
Announced in the open ( AMIT KUMAR )
Court on 17.07.2007 Metropolitan Magistrate,
Karkardooma Court, Delhi.
(Copy of judgment be given free of cost to the convict)