Delhi District Court
State vs 1) Manish on 2 July, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0044902012
Sessions Case No. 76/1/13
FIR No. 344/11
PS Subhash Place
U/s 328/379/411/471/34 IPC
State Versus 1) Manish
Son of Sh. Ram Singh
R/o H.No. RZ-B-1/A-7,
Hastal Vihar, Uttam Nagar,
Delhi.
(Already expired on 07/11/2013
and proceedings qua him
stood abated vide order dated
10/01/2014)
2) Pawan Kumar
Son of Sh. Narender Kumar
R/o H.No. B-26, Double Storey,
DDA Flat, Motia Khan,
Pahar Ganj, Delhi.
3) Nand Lal
Son of Sh. Mitthu Ram
R/o C-9/114, Sector-5,
Rohini, Delhi.
Date of institution in Sessions Court : 11.04.2012
Date of conclusion of arguments : 04.06.2015
Date of judgment : 02.07.2015
JUDGMENT
1 Uma Shankar Mehto was a TSR driver. On 05/09/2011, at about 4.00 a.m., he picked-up two passengers from Anand Vihar bus stand who asked him to go to Peera Garhi. When Uma Shankar Mehto reached Peera Garhi, such passengers asked him to wait for some time and also told him that they would return to Anand Vihar. While returning for Anand Vihar, Uma Shankar Mehto FIR No. 344/11 PS Subhash Place page 1 of pages 20 stopped at Britannia Chowk where he met his one acquaintance who was also a TSR driver. He started taking tea with him. However, in the meanwhile, those two passengers stole his TSR and fled driving away the said TSR. Uma Shankar Mehto tried to chase them but was not successful. His one mobile phone bearing no. 9716602294 was also lying in said TSR. On the same day, he received a phone call from his said mobile umber on his residential number and someone informed him that his TSR was parked near Meerut bus stand. Uma Shankar Mehto reached Meerut bus stand but could not locate his TSR. He, thereafter, reported the matter to the police albeit on 10/09/2011.
2 On the basis of his such report, FIR was registered for commission of offence u/s 379 IPC. On 10/10/2011, further investigation was entrusted to SI Ajeet Singh and when SI Ajeet Singh contacted complainant Uma Shankar Mehto again on 12/12/2011, complainant Uma Shankar Mehto revealed certain new facts to him. In his such supplementary narrative, he revealed that when they were present at Peera Garhi Chowk, those two passengers had offered him tea which they had bought from nearby rehri. Such tea was laced with some stupefying substance and, therefore, when he reached near Britannia Chowk, he started feeling drowsy and then he was dropped near CNG Pump of Britannia Chowk and those two passengers escaped with his said TSR. In view of said subsequent statement made by complainant, section 328 IPC was added.
3 It will be important to mention that complainant had already been taken to Lal Bahadur Shastri Hospital, Khichripur, Delhi, by his relatives on the day of incident itself i.e. 05/09/2011. MLC was accordingly collected from there by the police.
4 Accused Manish (A-1) was apprehended on the basis of secret information who admitted his involvement in the present incident and also revealed name of his accomplice i.e. accused Pawan Kumar. Accused Manish was also duly identified in TIP which was held on 21/12/2011. Accused Pawan (A-2) was arrested on 22/12/2011 and from his possession, stolen mobile phone of make Nokia, which belonged to complainant Uma Shankar Mehto, was recovered besides some pouches of stupefying substance. Accused Pawan also FIR No. 344/11 PS Subhash Place page 2 of pages 20 revealed that the body of the stolen TSR had already been cut in pieces and had been sold to junk dealer. He also divulged that the engine of said TSR had been sold to accused Nand Lal. Accused Nand Lal (A-3), who was also a TSR driver and owned one TSR as well, was arrested. Investigation revealed that the engine of the aforesaid stolen TSR of complainant had been fitted in that TSR of accused Nand Lal. Such fact was also got confirmed through forensic examination.
5 It is in these circumstances that all the three accused persons were sent up to face trial for commission of offences u/s 328/379/411/471/34 IPC.
6 Charge-sheet was submitted before the concerned Magisterial Court on 15/02/2012 and the case was committed to the Court of Sessions vide order dated 03/04/2012.
7 Case was received on allocation by the Court of Sessions on 11/04/2012.
8 Arguments on charge were heard and accused Manish and Pawan Kumar were ordered to be charged u/s 328/379/34 IPC. Accused Nand Lal and Pawan Kumar were also ordered to be charged separately for offence u/s 411 IPC.
9 All the three accused were accordingly charged on 08/01/2013. They pleaded not guilty and claimed trial.
10 Prosecution was directed to adduce evidence and has examined 15 witnesses. Witnesses can be classified as under:
i) Public Witnesses: PW5 Uma Shankar (complainant), PW3 Shishir Malhotra (Nodal Officer from concerned service provider for proving CDR of mobile of complainant), PW4 Ravinder Singh (official from Motor Licensing Authority), PW7 Anmol Bansal ( To prove the ownership of mobile of complainant), PW10 Harender (acquaintance/relative of complainant who took him to hospital) FIR No. 344/11 PS Subhash Place page 3 of pages 20
ii) Police officials: PW1 SI Sandeep (Duty officer), PW6 Ct Dharmender, PW8 HC Suresh (Witness to the arrest of accused Manish (since expired)), PW9 Sh. Sunil Kumar, (Ld. MM who conducted TIP proceedings related to accused Manish), PW11 SI Mahesh (First IO), PW12 HC Baldev Raj (witness to arrest of accused Pawan Kumar and Nand Lal and recovery effected from them), PW13 SI Ajeet Singh (second IO)
iii) Doctor and experts: PW2 Dr. Santosh Kumar (doctor from Lal Bahadur Shastri Hospital), PW14 Sh. S.S. Badwal (FSL expert) and PW15 Sh.
Amit Rawat (FSL expert).
11 It will be also pertinent to mention here that during trial, accused Manish expired on 07/11/2013 and proceedings qua him stood abated vide order dated 10/01/2014.
12 Statements of accused Pawan Kumar and Nand Lal were recorded u/s 313 Cr.P.C. They both pleaded innocence.
13 It will be, however, pertinent to mention that accused Pawan Kumar claimed in his such statement u/s 313 Cr.P.C. that he had in fact boarded TSR of complainant on 05/09/2011 from Anand Vihar bus stand, ISBT but he claimed that he alighted down at Pahar Ganj and never went upto Peera Garhi Chowk. He also claimed that he did not know about the other passenger and he had merely hired the auto on sharing basis. Interestingly, he also claimed that he knew his co-accused Nand who was also an auto driver. He claimed that on 23/08/2011, he had helped him and asked one auto mechanic Mr. Hanif not to charge much from him. He, however, further claimed that he did not know anything further in this regard. It will be worthwhile to extract question no. 28 of the questionnaire put u/s 313 Cr.P.C. and corresponding answer given by accused Pawan Kumar. Same reads as under:-
"Q No. 28: Further that on 25/12/2011, PW13 SI Ajeet Singh and PW12 Ct Baldev Raj left PS in search of your co-accused Nand Lal and your co-accused Nand Lal was arrested at 10.20 a.m. from C-9/114, Sector-5, Rohini and his arrest memo is Ex.PW12/H. His personal search memo is Ex.PW12/I and he FIR No. 344/11 PS Subhash Place page 4 of pages 20 also made disclosure statement Ex. PW12/J. What do you have to say?
Ans. It is wrong. I am auto driver and Nand Lal is also a auto driver and on 23.08.2011 we had helped him and asked one auto mechanic Mr. Haneef not to charge much from him and told him in this regard. I do not know anything else. I do not know from where Haneef had got that engine which he replaced in the TSR of Nand Lal."
14 Accused Pawan Kumar also examined three witnesses in his support viz DW1 Sanjay Kumar (TSR driver), DW2 Jasbir Singh (Financer of TSR of complainant) and DW3 Sanjay Vinayak (auto driver).
15 Accused Nand Lal also pleaded innocence. According to him, he had got fitted one engine in his TSR but he never knew that such engine was a stolen one. It will be appropriate to extract question no. 9 of the questionnaire put u/s 313 Cr.P.C. and corresponding answer given by accused Nand Lal. Same reads as under:-
"Q No. 9: Further that you also pointed out towards TSR No. DL-1RH-0837 which was found parked in front of your said house and you also revealed that you had got fitted the stolen engine in your said TSR and that said stolen engine was purchased by you from your co-accused Pawan Kumar. What do you have to say?
Ans. I was asked to bring said TSR from my house. In August 2011, my TSR had malfunctioned and I had taken the same to one mechanic in Trans Yamuna Area where he told me that my engine of said TSR need to be replaced and he told me that it would require charges of Rs. 10,000/-. I accordingly got my engine changed from him but I did not know whether that engine which was fitted by that mechanic was a stolen one. I had, however, seen accused Pawan standing near the shop of the mechanic at that time. I do not otherwise know him."
FIR No. 344/11 PS Subhash Place page 5 of pages 20 16 He, however, did not examine any witness in his defence and also
claimed that he could not trace out that mechanic who had fitted engine in his TSR.
17 Learned Additional PP has contended that prosecution has been able to prove its case beyond shadow of doubt. He has argued that accused Pawan Kumar himself has admitted that he had boarded the auto of complainant on the fateful morning. He has contended that there is nothing on record which may indicate that accused Pawan Kumar had alighted down. He has argued that testimony of complainant Uma Shankar is convincing and it becomes apparent that accused Pawan Kumar and Manish (since expired) had boarded the auto from Anand Vihar, ISBT and they both had given complainant tea laced with some stupefying or intoxicating substance due to which complainant started feeling giddy and started losing senses and taking advantage of his such brittle condition, they robbed him of his auto. He has also drawn my attention towards various important investigational aspects which also indicate the involvement of accused Pawan Kumar. These are as under:
i) Recovery of mobile phone of complainant from the house of accused Pawan Kumar
ii) Arrest of accused Nand Lal at the instance of accused Pawan Kumar
iii) Recovery of stolen engine which had been very cleverly and ingeniously got fitted by accused Nand Lal in his own TSR
iv) Admission of accused Pawan and Nand Lal in their statements u/s 313 Cr.P.C.
v) Forensic opinion which clearly indicates that the engine fitted in the TSR of accused Nand Lal was in fact of complainant Uma Shankar
vi) FSL report regarding gastric lavage of complainant Uma Shankar which confirms that same stupefying substance was found as was recovered from the possession of accused Pawan Kumar.
18 All such contentions have been refuted by accused Pawan Kumar.
FIR No. 344/11 PS Subhash Place page 6 of pages 20 19 Accused Pawan Kumar has argued his case all by himself. He has
made extensive reference to the testimony of complainant Uma Shankar and has argued that Uma Shankar has clearly exonerated him by claiming that Pawan had alighted down in between and he did not go upto Peera Garhi Chowk where the tea was allegedly offered. He has thus argued that there is no question of his being held liable for offences u/s 328 IPC and u/s 379 IPC.
20 He has also argued that police has framed him unnecessarily and nothing was recovered from his possession. He has also claimed that call detail record (CDR) does not reflect his involvement and does not match with the version of complainant. He has also claimed that complainant is not a believable witness as he has come up with contradictory statements during investigation. He has also asserted that the engine which was allegedly fitted in the auto of complainant could not have been installed in the auto of accused Nand Lal due to difference in model. He has also argued that complainant was given permit of his auto in February, 2012. According to him, such permit is given and issued only when the TSR is produced physically before the concerned transport authority and in view of the record submitted by Burari RTO, the TSR must have been produced before them in February, 2012 and thereafter only, the permit had been issued. According to him, this clearly shows that police has come up with a false case.
21 Sh. Deepak Ghai, learned defence counsel for accused Nand Lal has claimed that accused has been falsely implicated. He has argued that there is nothing on record which may indicate that accused Nand Lal had got fitted the engine in his TSR knowing fully well that it was a stolen engine.
22 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
23 Let me first assess and evaluate whether prosecution has been able to prove the factum of taking away of TSR and administration of stupefying or intoxicating substance by concerned accused or not.
FIR No. 344/11 PS Subhash Place page 7 of pages 20 24 Uma Shankar Mehto happens to be the best witness to prove the
aforesaid crucial aspects of the case. Let me see what he has to offer in the witness box.
25 PW5 Uma Shankar has deposed that in the year 2011, he used to drive TSR No. DL-1RM-0753 on hire basis. On 05/09/2011, at about 4.00 a.m., two passengers boarded his TSR from Anand Vihar, ISBT for going to Peera Garhi. He accordingly reached Peera Garhi with them. Those two passengers asked him to not leave as they were to again go to Anand Vihar, ISBT. They again boarded his TSR and when they reached near Britannia Chowk, he met one TSR driver who was already known to him. He then started taking tea with him at a nearby tea stall and then in the meanwhile, those two passengers took away his TSR. He also deposed that he had one mobile phone make Nokia 1616 bearing No. 9716602294. He had kept the same along with some documents of TSR in the dickey of his TSR. He even chased those persons with the help of other driver but they could not be found and thereafter he came to his house and told about the incident to his family members. He deposed that same day, he received a phone call from his said stolen mobile on his another mobile number of his house to the effect that his vehicle was parked near Meerut bus stand. He then went to Meerut and made efforts to trace out his TSR but could not found the same and eventually lodged report with the police on 10/09/2011. He has proved his such report as Ex. PW5/A. 26 On 12/12/2011, police again met him and recorded his supplementary statement and then he revealed to the police that those two passengers had offered him tea at Peera Garhi and when he consumed such tea, he started feeling giddiness as some intoxicant had been mixed by them in the tea and when he was under the influence of such intoxicant, those two boys took away his mobile phone and Rs. 1,000/- from his pocket and dropped him at Britannia Chowk and also took away his TSR. He also deposed that on seeing him lying unconscious, one TSR driver identified him and informed his family about the incident. His family members came there and took him to Lal Bahadur Shastri Hospital and admitted him there from where he was discharged on 06/09/2011.
FIR No. 344/11 PS Subhash Place page 8 of pages 20 27 Interestingly, both the aforesaid versions are quite divergent and the
species of penal Sections are also quite dissimilar and distinct. First incident would reveal simple case of theft whereas the second version would reveal graver and weighty penal Sections having shades of robbery even.
28 Let me not touch the identification part at the moment. Let me first make endeavour to uncover the reason as to why these two contrasting versions have surfaced. Defence has also taken a serious objection to these incongruous and contradictory versions and it has been claimed that prosecution story has become highly distrustful because of the aforesaid different versions appearing on record from the mouth of the same witness.
29 After somewhat brainstorming, I have been able to imagine two possibilities behind the aforesaid divergent versions. Firstly, the complainant himself may have tried to improve upon his case at a subsequent stage. Secondly, the complainant may have revealed the actual truth at the first available opportunity but the investigating agency, for the reasons best known to it, recorded a milder version. I strongly feel and subscribe to the existence of theory of said second possibility. Reasons are not far to seek.
30 Uma Shankar was immediately taken to hospital after he was found lying on the road in unconscious state. His MLC has been proved as Ex. PW2/A. It shows that he was brought to hospital on 05/09/2011 at about 2.25 p.m. by one Mr. Harender Mehto. He was brought with the alleged history of found unconscious on roadside. He was not found having any external injury but the gastric lavage was preserved. If at all the victim had not been administered any stupefying substance, there was no occasion of his being found in unconscious state on roadside and his being taken to Lal Bahadur Shastri Hospital same day immediately. PW10 Harender Mehto was the one who had taken him to hospital. He has also deposed before the Court that on 05/09/2011, some auto driver informed him that his relative was lying unconscious near CNG Pump, Britannia Chowk, and he reached there where he found Uma Shankar lying unconscious and took him to Lal Bahadur Shastri FIR No. 344/11 PS Subhash Place page 9 of pages 20 Hospital in his auto rickshaw and got him admitted there from where he was discharged next day. I do not find any reason to disbelieve PW10 Harender Mehto in this regard. His name is also found mentioned in the aforesaid MLC Ex. PW2/A as the person who had brought the injured to hospital. Such aspect of deposition, even otherwise, remains unshaken.
31 More importantly, in same MLC, there is reference of one DD No. 50A of PS Shakur Pur. Names of two police officials are also mentioned. They are SI Chander Bhan and Constable Randhawa. Investigating agency has not come up with the requisite clarity. It rather seems to me that police tried to downplay the incident. The injured was found unconscious. He was brought to hospital. Police was also in the loop, as is evident from said MLC itself but despite that the victim was not heard properly and no action whatsoever was taken by any police official either of PS Subhash Place or of PS Shakur Pur. It is really unfortunate and regrettable that complainant, who had been robbed of his TSR and who was administered some intoxicant, was not attended to by the investigating agency in the desired manner. The police should have patiently listened to his woes and should have taken remedial steps without any waste of time. On the contrary, the police rather recorded his statement after five days of the occurrence and even in such statement, the facts were mellowed down drastically and a serious case was converted into a case of light nature and character. It, certainly, is not in good taste.
32 Moreover, when PW5 Uma Shankar entered into witness box, he was made to depose by the prosecution on the same tread and lines. He should have rather been categorically asked to tell as to what had happened. His alleged first version, obviously, does not appear to be the right one and he, in his cross examination, also clarified that IO had recorded his complaint in his own way. I find much substance in his such assertion. Reason is found to be there in the file itself. I have come across one application in judicial file. Such application is sort of a protest petition filed by complainant Uma Shankar. It is dated 07/02/2012 and is directed against SHO, PS Saraswati Vihar and unknown persons and in his such protest petition, he categorically claimed that those two passengers had offered him a cup of tea and thereafter consuming the same, he FIR No. 344/11 PS Subhash Place page 10 of pages 20 became unconscious and then those persons threw him out of the TSR near Britannia Chowk and fled away with his TSR. He also mentioned that he was taken to police station i.e. PS Saraswati Vihar from where he was first admitted in the hospital. He also claimed that after he recovered, he visited PS Saraswati Vihar but police lodged case u/s 379 IPC despite the fact that he made repeated requests to register case u/s 328 IPC and he even presented MLC of the hospital before the police which depicted the incident to be of poisoning but IO did not listen to him and, therefore, he was not satisfied with the investigation and had no faith in the police. Report was called from the police which is quite cryptic and evasive. Be that as it may, it becomes crystal clear that investigating agency had tried to downplay the incident for the reasons best known to it and, therefore, the defence cannot be permitted to dig out any advantage because of the two different versions or for the belated lodging of FIR. The MLC clearly indicates that the incident had happened on 05/09/2011 itself. The police officials did not take up the matter in right earnest but then the complainant cannot be made to suffer and accused cannot be permitted to reap any fruits on account of the lapses and omissions on the part of police.
33 Let me now see the identification part.
34 Needles to say, PW5 Uma Shankar Mehto has not supported the case of prosecution. He deposed that due to long gap, he was not able to identify those two passengers, who had boarded his TSR from Anand Vihar, ISBT to Peera Garhi, dropped him at Britannia Chowk after administering him with some intoxicant. His such evidence was recorded on 25/02/2014. He, however, also supplemented that during the investigation stage, he had identified one Manish in judicial TIP and could identify him, if shown to him but by that time, Manish had already expired and, therefore, there was no occasion for the complainant to have identified him.
35 As per the case of prosecution, Manish and Pawan Kumar had boarded that auto. However, Uma Shankar has not identified accused Pawan Kumar. On 25/02/2014 itself, prosecution cross examined complainant with the permission of the Court but despite such cross-examination and specific FIR No. 344/11 PS Subhash Place page 11 of pages 20 suggestion, he did not whisper even a single word against accused Pawan.
36 However thereafter, the story took some extraordinary turn. PW5 Uma Shankar again graced the witness box on 24/03/2014 and in his such further cross-examination conducted by accused Pawan Kumar himself, he claimed that accused Pawan Kumar had also boarded his auto that day from Anand Vihar, ISBT. He, however, despite naming him and identifying him, again backtracked and exonerated him by claiming that Pawan Kumar had alighted down from his auto at Pahar Ganj Chowk.
37 The crux of the cross-examination of PW5 Uma Shakar is to the effect that accused Pawan Kumar had though boarded the auto from ISBT but he did not come upto Peera Garhi Chowk and alighted in the middle at Pahar Ganj and thereafter there was only one passenger in the auto who went upto Peera Garhi Chowk. Tea was offered to him at Peera Garhi Chowk by said lone passenger. Such tea was laced with some intoxicant and when complainant started feeling giddiness at Britannia Chowk, that other passenger then dumped complainant there and fled away in the said TSR of complainant.
38 Interestingly, even accused Pawan Kumar admits such part of story in his statement u/s 313 Cr.P.C. He admitted that he had boarded the TSR but he alighted down at Pahar Ganj and he did not know his co-passenger. He rather claimed that he had hired the auto on sharing basis.
39 Be that as it may, fact remains that the testimony of Uma Shankar does exonerate accused Pawan Kumar and from the material available on record, it cannot be said that accused Pawan Kumar had any role to play with respect to administration of intoxicant or with the taking away of TSR and mobile phone of complainant. Thus, there is not sufficient evidence on record to hold accused Pawan Kumar guilty for offences u/s 328/379 IPC.
40 However, things do not come to an end here. Prosecution is having evidence to show that both the accused were found in possession of stolen property.
FIR No. 344/11 PS Subhash Place page 12 of pages 20 41 As far as TSR is concerned, according to prosecution, chasis of such
robbed away TSR was cut into pieces and sold to some stray junk dealer. However, the engine was got fitted in the TSR of accused Nand Lal. Let me now see whether these aspects have been duly proved by the prosecution or not.
42 In this regard, let me see the testimony of two most important police officials i.e. PW12 HC Baldev Raj and PW13 SI Ajeet Singh.
43 Earlier, investigation had been conducted by PW11 SI Mahesh and thereafter since he was transferred from the PS, further investigation was handed over to PW13 SI Ajeet Singh. It was SI Ajeet Singh who recorded second version of complainant on 12/12/2011. He also collected MLC of injured Uma Shankar from Lal Bahadur Shastri Hospital. He also recorded statement of Harender Mehto. PW13 SI Ajeet Singh has further deposed that on 17/12/2011, on the basis of secret information, he apprehended accused Manish @ Neetu Pawar who admitted about his involvement in the present case and revealed name of his associate as Pawan Kumar. PW13 SI Ajeet Singh has proved various documents related to arrest of accused Manish. Since accused Manish is no more alive, I need not go deeper with respect to said aspect of the case. Suffice it to say that investigating agency also moved application for conducting TIP of accused Manish and complainant Uma Shankar had, in fact, identified accused Manish therein. Such TIP proceedings have also been duly proved as Ex. PW5/C by the concerned learned Metropolitan Magistrate Sh. Sunil Kumar.
44 Now comes the aspect related to arrest of accused Pawan Kumar.
45 PW13 SI Ajeet Singh deposed that on 22/12/2011, he along with Constable Baldev Raj left PS in search of accused Pawan Kumar and at about 8.00 p.m., when they reached at Main Chowk Motia Khan, they met secret informer who told that accused Pawan Kumar would arrive there at Main Chowk, Motia Khan. He then requested some passersby to join the proceedings but since none agreed, they started waiting for the accused and at about 9.00 p.m., accused was found coming in TSR No. DL-1RK-8563 and at the pointing out of FIR No. 344/11 PS Subhash Place page 13 of pages 20 secret informer, accused was stopped and apprehended. He was interrogated and he was arrested vide memo Ex. PW12/A. His personal search was also conducted and his disclosure statement was also recorded. It will be also important to mention that accused Pawan Kumar also produced three pouches from his TSR box which contained intoxicating substance and accused also confessed that he had mixed up such type of substance in the tea which had been offered to the driver of TSR No. DL-1RM-0753. Such pouches were seized vide memo Ex. PW12/D and seal, after use, was handed over to Ct Baldev Raj. Said TSR of accused was also taken into possession. However, at the moment, we are not concerned with said TSR of accused.
46 Accused Pawan Kumar then led the police party to the place of occurrence and at his instance, pointing out memo Ex. PW12/F was prepared. Accused was asked to keep his face in muffled condition and he was brought to PS and put in lock-up. In the morning, he took the police party to his house and from there, he got recovered one mobile phone make Nokia (without SIM) which he had kept behind television in his room. Accused told that it was the same mobile which he had robbed from the driver of TSR no. DL-1RM-0753. Said mobile was seized vide memo Ex. PW12/G and while seizing same, PW13 SI Ajeet had also mentioned its IMEI number on the seizure memo. Such IMEI number is 358283046851598.
47 I would also right here like to highlight that during investigation, investigating agency had collected the bill of purchase of said mobile phone. Such bill has been proved as Ex. PW7/A and as per PW7 Sh. Anmol Bansal, on 18/08/2011, one Uma Shankar who was previously known to him, had come to his shop and had purchased mobile phone Nokia 1616 of black colour in the name of his son Mukesh Kumar. He has proved the cash memo as Ex. PW7/A. IMEI number is also mentioned on such bill and it happens to be the same IMEI number.
48 I would also like to mention here that during the investigation, the police had collected call detail record (CDR) of mobile number 9716602294 of complainant Uma Shankar and such call details have been proved as Ex.
FIR No. 344/11 PS Subhash Place page 14 of pages 20 PW3/F. Certificate u/s 65B Indian Evidence Act has also been duly proved and though PW3 Sh. Shishir Malhotra, Nodal Officer, Aircel Limited, did not reveal IMEI number of said handset in his examination in chief, accused Pawan Kumar came to the rescue of prosecution and when asked, said witness gave the IMEI number of said instrument as 358283046851590. I would, however, like to add here that normally the last digit of any such IMEI number is a spare digit and, therefore, even if such last digit does not match, it does not make any difference.
49 After the arrest of accused Pawan Kumar and his revelation, police went to the house of accused Nand Lal on 25/12/2011 and made inquiries from him who disclosed that three months before, he had purchased TSR engine from accused Pawan Kumar and accused Pawan Kumar had told him that it was a stolen property. He also revealed that after taking such engine from accused Pawan Kumar, he got fitted such engine in his own TSR. He also revealed that he had purchased the engine for Rs. 10,000/-. Accordingly, documents related to his arrest were prepared and accused Nand Lal also pointed out towards his TSR which was found parked in front of his house. Said TSR was also seized vide memo Ex. PW12/K. 50 It will be very important to mention that as far as accused Nand Lal is concerned, he has not bothered to challenge the testimony of both these material witnesses i.e. PW13 SI Ajeet Singh and PW12 HC Baldev Raj. Meaning thereby, he does not dispute the recovery of TSR from his house in which the stolen engine had been found installed. I am again tempted to make reference to statement of accused Nand Lal made u/s 313 Cr.P.C. In his such statement also, he admitted that his own TSR i.e. TSR No. DL-1RH-0837 had malfunctioned and, therefore, he had taken the same to one mechanic in Trans Yamuna area who told that its engine need to be changed and would require charges of Rs. 10,000/- and he accordingly got another engine fitted. He also claimed that at that time, accused Pawan Kumar was also standing near the shop of that mechanic.
FIR No. 344/11 PS Subhash Place page 15 of pages 20 51 I have already noticed above that even accused Pawan Kumar has
admitted that he knew accused Nand Lal who was also an auto driver. He also claimed that he had helped him and asked one mechanic Mr. Hanif not to charge much from him. He, however, further claimed that he did not know anything and did not know as to from where said mechanic had procured that engine.
52 Be that as it may, from the evidence appearing on record and also from the answers given by the accused persons when their statements u/s 313 Cr.P.C. were recorded which are also somewhat relevant and can be considered in terms of Section 313 (4) Cr.P.C., it becomes evident that both the accused persons were fully cognizant and mindful of the fact that the engine was a stolen one. Both the accused have some unstated but tacit interconnection. They knew each other. Accused Pawan Kumar had also tried to help accused Nand Lal by telling the mechanic not to charge much and accused Nand Lal had also got the engine installed from one mechanic and at that time, accused Pawan Kumar was standing near the shop of said mechanic. Accused Nand Lal has failed to bring said mechanic in witness box. Similarly, even accused Pawan Kumar has failed to produce such mechanic in the witness box.
53 Engine is not a commodity which is open for trade and sale in the market. Both the accused, being TSR drivers themselves, very well knew that the engine was stolen one and, therefore, when such engine was installed in the auto of accused Nand Lal, an attempt was made to ensure that engine number was not visible to anyone. Precisely for this reason, when TSR of Nand Lal was seized, the engine number was not found discernible and was rather found erased. Accordingly, help of the forensic expert was taken and as per report of PW14 Sh. S.S. Badwal, Senior Scientific Officer, FSL, TSR bearing registration No. DL-1RH-0837 was brought to FSL and he examined the same and after chemical treatment, the engine number was deciphered as "AFMBTK68048". He has proved his report as Ex. PW14/A. It will be interesting to mention that when accused Pawan Kumar cross examined him, the engine was shown to this witness as well and then Sh. S.S. Badwal pointed out towards the portion which was given chemical treatment for the purposes of deciphering the original engine number. He clearly pointed out the part of the engine where the chemical FIR No. 344/11 PS Subhash Place page 16 of pages 20 treatment was given and I do not find any reason to disbelieve his testimony or the manner of his examination. There is no dispute that said engine number was in fact the engine number of TSR of complainant. Record produced from Transport Authority establishes the same beyond doubt.
54 Accused Pawan Kumar has claimed that the engine which was installed in the TSR of complainant could not have been transferred and fitted in the auto of accused Nand Lal. According to him, these TSRs were of different models and, therefore, it was not possible to install the engine of complainant's TSR into the TSR of accused Nand Lal. However, as already noticed above, accused Nand Lal has taken a different approach altogether. He has admitted that he had installed one another engine in his TSR and at that time, accused Pawan Kumar was also standing near the shop of the mechanic. Engine is not a thing which could have been legitimately purchased from roadside. Moreover, if at all, accused Nand Lal had ventured into the same, he should have brought such fact to the notice of concerned transport authority for necessary amends in the record. Accused rather tried to act clever and smart. Engine number was erased and the same could be deciphered only after the forensic examination. As already noticed above, accused Nand Lal has not even cross examined the aforesaid two crucial recovery witnesses i.e. PW13 SI Ajeet Singh and PW12 HC Baldev Raj and, therefore, it stands proved that the stolen engine was recovered at the instance of these two accused which was found fitted in TSR no. DL-1RH-0837 of accused Nand Lal.
55 Accused Pawan Kumar has examined three witnesses. He wants to show that it was not possible to install engine in said TSR No. DL-1RH-0837. However, he has not been able to prove said fact in any manner whatsoever. DW3 Sanjay Vinayak is an auto driver. He has tried to sing to the tune of accused Pawan Kumar but in his cross-examination, he categorically claimed that he had never worked in any automobile company which was in the business of manufacturing TSR. He did not bring any literature to show about the alleged difference in various models of TSRs. He has no expertise in the field in question. If at all, accused Pawan Kumar wanted to show that the engine which was originally fitted in the TSR of complainant, could not have been fitted in the FIR No. 344/11 PS Subhash Place page 17 of pages 20 auto of accused Nand Lal, he should have rather produced some expert from the concerned manufacturer. Deposition of a driver does not persuade me to believe and hold such theory propounded by accused Pawan Kumar. Similarly, the testimony of DW1 Sanjay Kumar does not come to the rescue of accused Pawan Kumar at all. He has rather claimed that at the time of grant of fitness, transport authority officials sometime check chassis number and then give the fitness. He also claimed that engine number is not always tallied. He also claimed that he was not aware about "K" model or "L" model of TSR and he did not know about the cooling system. He could not answer whether the engine could be removed without gas cutter or not. I have carefully gone through the testimony of DW1 Sanjay Kumar and DW3 Sanjay Vinayak and I am of the view that they do not advance the case of accused Pawan Kumar in any manner whatsoever particularly keeping in mind the stance of accused Nand Lal. Accused Nand Lal does not dispute the recovery of stolen engine from his own TSR. He has only tried to project that he was a bonafide purchaser of such engine. He has not been able to prove such fact. Naturally, onus to establish the same was on him. He has not bothered to cross examine both the crucial recovery witnesses. FSL results also reveals malafide intention on the part of accused.
56 As far as call detail record (CDR) of stolen mobile is concerned, investigating agency should have made extra effort to track down the details about other phone numbers appearing in CDR - be it incoming or outgoing. It could have further bolstered the aspect of complicity of the accused. However, omission in this regard is not fatal as it becomes very much evident that the handset which was purchased by complainant for his son and which belonged to complainant was eventually recovered from the possession of accused Pawan Kumar. Undoubtedly, it would have been better, if prosecution had examined those two police officials whose names were reflected in MLC but the omission in this regard would not prove to be fatal at least with respect to offence u/s 411 IPC.
57 Though the pouches which had been recovered from the possession of accused Pawan Kumar contained Benzodiazepine drug (Lorazepam) and FIR No. 344/11 PS Subhash Place page 18 of pages 20 though the gastric lavage test also indicated the presence of the same substance, yet in view of the testimony of complainant Uma Shankar whereby he has exonerated accused Pawan Kumar, such FSL report would not, in itself, would be of any real help for prosecution.
58 Defence has contended that concerned owner of auto of complainant has not been examined. It is, however, not fatal to the prosecution case. Police tried its level best to contact owner Sh. Ajayveer but he could not be found. Accused Pawan has also argued that as per the screen report obtained from the transport authority, which has been proved as Ex. PW4/A, said auto of complainant (bearing number i.e. DL-1RM-0753) was having its permit valid from 03/02/2012 to 02/02/2017 and, therefore, it should be assumed that at the time of inspection, the engine was very much fitted in said vehicle. However, no such inference can be drawn automatically from said screen report. If at all, accused Pawan felt so, he should have put a specific question in this regard to complainant Uma Shankar. Fact, however, remains that no question was put in this regard to Uma Shankar. Moreover, such report has been proved by PW4 Ravinder Singh who is official from the concerned authority and if accused wanted to draw any such inference, he should have put specific and direct question to him to substantiate his version. Again, no such question has been put to Ravinder Singh. Accused Pawan also did not examine anyone from concerned transport authority on this score.
59 In view of my foregoing discussion, I come to the conclusion that prosecution has been able to show, beyond doubt, that the stolen engine was found fitted in the TSR of accused Nand Lal. It also stands proved that accused Pawan Kumar had got the same fitted in the said TSR of accused Nand Lal. It also stands established that he had knowledge that such engine was a stolen one. Similarly, accused Nand Lal, knowing fully well that the engine was a stolen one, got the same fitted in his TSR.
FIR No. 344/11 PS Subhash Place page 19 of pages 20 60 Therefore, both the accused are held liable for offence u/s 411
IPC for receiving and for being in possession of stolen engine. Simultaneously, accused Pawan Kumar is also held guilty for offence u/s 411 IPC for being found in possession of stolen mobile of complainant Uma Shankar.
Announced in the open Court
on this 2nd day of July, 2015 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West District, Rohini: Delhi
FIR No. 344/11 PS Subhash Place page 20 of pages 20
FIR No. 344/2011
PS Subhash Place
State Vs. Manish etc.
Monday, July 06 2015
Present: Sh. Sanjay Jindal, learned Addl. P.P. for State.
Convict Pawan in person.
Convict Nand Lal in person with counsel Sh. Pranay Abhishek for Sh. Deepak Ghai, counsel for convict.
1 Heard arguments on sentence.
2 Sh. Jindal has prayed for maximum sentence. He has argued that both the convicts, in a very mischievous manner, were found in possession of stolen engine belonging to complainant Uma Shankar Mehto. He has argued that complainant Uma Shankar Mehto was put to a great loss as his TSR was robbed in a very naive and clever manner. He has contended that though complainant has not raised accusing finger towards convict Pawan as the one who had also robbed away his TSR yet fact remains that convict Pawan is unmistakably concerned with the recovery of the stolen engine which clearly indicates his involvement in the entire incident and, therefore, both the convicts should be given maximum dosage. As regards convict Nand Lal, Sh. Jindal has also supplemented that he has no defence at all as stolen engine was found fitted in his TSR. It has been reported by Sh. Jindal that convict Pawan had remained behind the bars from 22.12.2011 to 08.08.2012. As far as convict Nand Lal is concerned, he did not spend even a single day behind the bars.
3 Both the convicts have prayed for lenient view. It has been argued by Sh. Abhishek that convict Nand Lal was bonafide purchaser of engine and he never knew that same was stolen one. It has also been claimed that he has no other case and he is already in his sixties and he may be let off on probation. Convict Pawan has reiterated that he has no concern with the recovered stolen engine. He also states that he has a large family to support including five children.
FIR No. 344/11 PS Subhash Place page 21 of pages 20 4 I, however, do not find it to be fit case where convicts deserve much leniency. I have already discussed in the judgment that engine is not a
commodity which was open for trade and sale. Both the convicts themselves are TSR drivers and they must be fully cognizant of the fact that the engine in question was a stolen one. I also cannot be unmindful of the fact that attempt was made to ensure that engine number was not visible to anyone and, therefore, number was erased and it was only due to the forensic examination that it came to light that a stolen engine had been installed, deceitfully, in the TSR belonging to convict Nand Lal.
5 I accordingly sentence each of the convict to undergo SI for a period of two years and simultaneously, they both are also fined Rs. 30,000/- each in default thereof to undergo SI for another period of one year. If the fine amount is realized, as sum of Rs. 50,000/- from such total realized find amount would go to complainant Uma Shankar Mehto as compensation.
6 Both the convicts would be entitled to benefit of Section 428 Cr.P.C.
7 Both the convicts be sent to jail under appropriate warrants to serve the sentence.
8 A copy of the judgment and order on sentence be given free of cost to both the convicts.
9 Needless to say that compensation amount would be disbursed after expiry of period of appeal or its outcome as the case may be.
10 File be consigned to Record Room.
Announced in the open Court (MANOJ JAIN) On this 6th day of July 2015. Addl. Sessions Judge (FTC) North-West District: Rohini: Delhi FIR No. 344/11 PS Subhash Place page 22 of pages 20