Delhi District Court
State vs Amit on 4 October, 2024
IN THE COURT OF SH. AKSHAY SHARMA, JUDICIAL
MAGISTRATE FIRST CLASS-02, SOUTH EAST, SAKET
COURTS, DELHI.
EFIR No.7136/19
PS. OIA
U/s. 379/411 IPC
STATE VS AMIT
JUDGMENT
A. SL. NO. OF THE CASE : 97/2/19 B. DATE OF INSTITUTION : 15.04.2019 C. NAME OF THE : Sh. Azad S/o Sh. Ganeshi Lal COMPLAINANT D. NAME OF THE : Sh. Amit s/o Sh. Ram Dhan ACCUSED E. OFFENCE COMPLAINED OF : U/s 379/411 IPC F. PLEA OF ACCUSED : Pleaded not guilty.
G. FINAL ORDER : Convicted u/s 411 IPC Acquittal u/s 379 IPC H. DATE OF COMMISSION OF OFFENCE : 26.02.2019 I. DATE OF FINAL ARGUMENTS : 01.10.2024 J. DATE OF SUCH ORDER : 04.10.2024 BRIEF FACTS
1. Brief facts of the instant case are that on 27.02.2019, complainant Azad s/o Ghaneshi Lal got registered this e-FIR regarding theft of his Splendor Black Colour Motor Cycle bearing registration no.DL3SCG7644 from W9,OIA-II, in between 19:45 hrs to 20:15 hrs on 26.02.2019. Efforts to trace the motorcycle and the accused were made, however, no clue was found. Thereafter on 28.02.2019, ASI Ravi Prakash give information that the present accused Amit has been arrested in FIR no.60/19, u/s 379/356/411 IPC, PS OIA and the aforementioned stolen Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2024.10.04 15:48:08 +0530 :2: motor-cycle has been recovered from him. This FIR was regarding snatching and the accused Amit was using the stolen motorcycle of the present case in committing the offence of snatching.
On the basis of the information, Section 411 IPC was added, production warrants for formally arresting and interrogating the accused were issued at the instance of the IO on 05.03.2019 and on 07.03.2019, upon production of the accused, the accused was interrogated and arrested. The accused was sent to JC and later on the present charge-sheet for judicial verdict was filed.
CHARGE
2. Upon Prima-facie satisfaction regarding the commission of offence, cognizance was taken and after hearing arguments on charge, charge was separately framed against accused Amit u/s 379/411 IPC to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, case was put for prosecution evidence and the following prosecution witnesses were examined:
3.1. PW Sh. Azad, s/o Sh. Ganesh Lal, was examined as PW1, his examination in chief is herein reproduced as under:
"I used to work at Sony Music having its office at W-9, OIA Phase-2. I used to went to my work on my motorcycle make splendor pro black colour bearing no. DL3SCG7644. I reached my office at 9.00 am. On 26.02.2019 I went to my office and parked my motorcycle near my Digitally signed AKSHAY by AKSHAY SHARMA SHARMA Date: 2024.10.04 15:48:17 +0530 :3: office. Thereafter when I returned back from my office at about 8.15 pm I noticed that my motorcycle was not present over there. Thereafter I called at 100 number and police arrived at the spot and recorded my statement Ex. PW1/A bearing my signature at point 'A'. IO further prepared site plan Ex. PW1/B bearing my signature at point 'A' on the next day in my presence. I do not remember as to where the site plan was prepared. Thereafter I was informed by IO that my vehicle has been recovered and I got my vehicle released on superdari and punchnama is prepared by police which is Ex. PW1/C. Copy of RC of my vehicle is Ex. PW1/D bearing my signature at point 'A' (OSR). Superdarinama is Ex. PW1/E bearing my signature at point 'A'.
At this stage, witness is shown 4 photographs of motorcycle bearing no. DL3SCG7644. Witness correctly identified his motorcycle in the photographs. The same is Ex. P1 colly".
3.2. PW Ct. Harish, was examined as PW2, his examination in chief is herein reproduced as under:
"On 27.02.2019, I was posted as constable at PS OIA and discharging my duties at Police Chowki Okhla Phase-III. On that day, I was on emergency duty along with ASI Ravi Prakash. At around 2:30PM, ASI Ravi Prakash received a DD No. 35A regarding snatching of mobile phone whereon I along with him reached at Chandiwala Hospital. There we met the complainant Arti and she informed us that one person who was driving a bike had snatched her mobile phone. Just 30-40 meters Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2024.10.04 15:48:26 +0530 :4: ahead of the spot of snatching there was a police barricade where Ct. Ajit and ASI Kamal had apprehended one rider of motorcycle bearing registration number DL-3S-CG-7644. Complainant Arti seeing the apprehended person informed that he was the same person who had snatched her mobile on the said bike. The apprehended person disclosed his name as Amit. On the cursory search of accused, one mobile phone was recovered from the right side pocket of pant of accused. Complainant Arti identified the mobile phone and informed that the mobile phone recovered from the possession of accused belonged to her. Thereafter, IO/ASI Ravi Prakash seized the recovered mobile phone vide seizure memo Ex. PW2/A and the motorcycle of the accused seized by seizure memo Ex. PW2/B both bearing my signatures at Point A respectively. IO arrested the accused and recorded his disclosure statement Ex. PW2/C bearing my signatures at Point A. IO also prepared site plan Ex. PW2/D bearing my signatures at Point A. IO also recorded the statement of complainant arti, prepared rukka thereon and handed over to the same to me for registration of FIR. I went to PS and got the FIR registered and returned to the spot along with copy of FIR and original rukka and handed over the same to IO.
Accused Amit is present in the Court (correctly pointed out and identified by the witness). I can identified the seized mobile and motorcycle, if shown to me.
At this stage, witness has been shown photograph appended to panchnama Ex. PW1/C. Witness has submitted that photograph is that Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2024.10.04 15:48:57 +0530 :5: of the motorcycle which was seized vide seizure memo Ex. PW2/B".
3.3. PW ASI Kamal Chand, was examined as PW3, his examination in chief is herein reproduced as under:
"On 27.02.2019, I was posted as ASI at PS OIA and discharging my duties at the picket at Govind Puri, Metro Station Okhla Phase-III, Police Post. At the said picket I was present along with Ct. Ajit Pal. At around 2:15PM, I heard shouting of a lady and apprehended one rider of motorcycle. Ct. Ajit Pal sent the information to PS. From PS ASI Ravi Prakash and Ct. Harish came to the spot. I handed over accused along with motorcycle to ASI Ravi Prakash. At that time, lady was also present at the spot.
Accused Amit is present in the Court (correctly pointed out and identified by the witness). I can identified the motorcycle, if shown to me.
At this stage, witness has been shown photograph appended to panchnama Ex. PW1/C. Witness has submitted that photograph is that of the motorcycle which was recovered from the possession of accused person".
3.4. PW ASI Ravi Prakash, was examined as PW4, his examination in chief is herein reproduced as under:
"On 27.02.2019, I was posted as ASI at PS OIA and discharging my duties at Police Chowki Okhla Phase-III. On that day, I was on emergency duty along with Ct. Harish. At around 2:30PM, I Digitally signed by AKSHAY SHARMA AKSHAY Date:
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received a DD No. 35A regarding snatching of mobile phone whereon I along with him reached at near Govind Puri Metro Station, Chandiwala Hospital. There we met the complainant Arti and she informed us that one person who was driving a bike had snatched her mobile phone. Just 20 meters ahead of the spot of snatching, there was a police barricade where Ct. Ajit and ASI Kamal had apprehended one rider of motorcycle bearing registration number DL-3S-CG-7644. Complainant Arti seeing the apprehended person informed that he was the same person who had snatched her mobile on the said bike. The apprehended person disclosed his name as Amit. On the cursory search of accused, one mobile phone was recovered from the right side pocket of pant of accused. Complainant Arti identified the mobile phone and informed that the mobile phone recovered from the possession of accused belonged to her. Thereafter, I seized the recovered mobile phone vide seizure memo already Ex. PW2/A and the motorcycle of the accused seized by seizure memo already Ex. PW2/B both bearing my signatures at Point B respectively. I arrested the accused vide arrest memo Ex. PW4/A bearing my signatures at Point A and recorded his disclosure statement vide memo already Ex. PW2/C bearing my signatures at Point B. I also prepared site plan Ex. PW2/D bearing my signatures at Point B. I recorded the statement of complainant arti and prepared rukka thereon and handed over the same to Ct. Harish for registration of FIR. He went to PS and got the FIR registered and returned to the spot with the copy of FIR and original rukka. I also sent the information to HC Rohitash as the motorcycle Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2024.10.04 15:49:13 +0530 :7: seized from the possession of accused was stolen motorcycle and regarding the same another FIR was registered and HC Rohitash was the IO in that FIR.
Accused Amit is present in the Court (correctly pointed out and identified by the witness). I can identified the seized mobile and motorcycle, if shown to me.
At this stage, witness has been shown photograph appended to panchnama Ex. PW1/C. Witness has submitted that photograph is that of the motorcycle which was seized vide seizure memo Ex. PW2/B".
3.5. PW Ct. Ajeet Pal, was examined as PW5, his examination in chief is herein reproduced as under:
"On 27.02.2019, I was posted at PS OIA as constable and on the said date, I was having picket duty at Govind Puri metro station alongwith ASI Kamal. At about 02:30 pm I heard shouting "chor chor phone chhin liya" from the side of chandi wala hospital. We noticed that the girl was shouting at the distance of about 80 meters and a black splendor motorcycle being driven by the accused present in the court (correctly identified by the witness). As there were heavy vehicles on the road, accused could not pass through immediately and he was apprehended by me as well as ASI Kamal. Public gathered at the spot. After about 20-25 ASI Ravi Prakash and Ct. Harish reached at the spot and accused was handed over to them. Ct. Harish searched the accused in my presence and a mobile phone make Samsung keypad was recovered Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2024.10.04 15:49:20 +0530 :8: from the possession of the accused. It was further found that motorcycle so driven by the accused person bearing no. DL 3SCG 7644 make Hero splendor black colour was stolen vehicle qua which e-FIR No.7136/2019 was filed. Accused was arrested by the IO vide arrest memo already Ex.PW1/C bearing my signature at point 'D'.
At this stage, MHC(M) produced one mobile phone make Samsung duos having IMEI No.3541710815251575 is shown to the witness and witness correctly identified the same which is Ex.P-1".
3.6. PW HC Yogender, was examined as PW6, his examination in chief is herein reproduced as under:
"In the present case, an e-FIR was registered by the complainant regarding theft of a bike. The said e-FIR no. 7136/2019 vide Ex. PW6/A (Colly) along with 65-B, IEA certificate was marked to me by SHO, OIA for investigation. I made a call to the complainant and at his instance, I reached the spot i.e. W9, Okhla, Phase-II. When I reached the spot, the complainant was already present there. At the instance of complainant, I prepared the site plan which is already Ex. PW1/B bearing my signature at point B. Thereafter, the complainant had given written complaint which is already Ex. PW1/A. I recorded the statement of complainant at the spot on the same day".
3.7. PW HC Ranvir Singh, was examined as PW7, his examination in chief is herein reproduced as under:
"On 07.03.2019, I along with HC Rohitashv formally Digitally signed by AKSHAY SHARMA AKSHAY Date:
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arrested the accused namely Amit, S/o Sh. Ramdhan in Saket Court, Delhi. The arrest memo was prepared by IO. The arrest memo is now Ex. PW7/A bearing my signature at point A. IO had recorded the disclosure statement of the accused in my presence vide Ex. PW7/B bearing my signature at point A. Accused is present in the Court and correctly identified by the witness".
3.8. PW ASI Rohitashv Kumarwas examined as PW8, his examination in chief is herein reproduced as under:
"On 28.02.2019 I was posted as HC. at PS OIA. On that day further investigation of e-fir was marked to me. On the same day I received information regarding arrest of accsued Amit and recovery fo the case property of present case i.e., motor-cycle bearing no.DL3SCD7644 from his possession in case FIR no60/19 by ASI Ravi Prakash. Accused Amit made his disclosure statemement in case FIR no.60/19 and revealed his invovlement in the present case. Tehreafter, I met the ASI and obtained the photocopy of the disclosure statement of accused Amit and some other documents prepared by the ASI in case FIR NO.60/19.
On 05.03.2019 I moved an application for production of accused Amit and he was produced before the concerned Majistrate on 07.03.2019. I along with Ct. Ranvir reached Saket curt complex and I interrogated accused Amit with court permission. Accused Amit made his Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2024.10.04 15:49:37 +0530 :10: disclosure statement which already Ex.PW7/B. I arrested the accused vide arrest memo already Ex.PW7/A with court permission.
I got verified the ownership details of aforesaid motor-cycle and the same was released on superdari by the orders of Hon'ble Court. During investigation, I recorded statement of recovery witnesses and after completion of investigation, I prepared he charge-sheet. Accused presnet in the court today, correctly identified by the witness. I can identify the case property if shown to me.
At this stage, 01 photograph of aforesaid motor-cycle annexed to the judicial file along with the panchnama were shown to the witness, to which the witness correctly identified the same and the same is already Ex.P1 Colly".
STATEMENT OF THE ACCUSED.
4. After examination of all the material prosecution witnesses, prosecution evidence was closed and statement of the accused u/s 313 CrPC r/w Section 281 CrPC was recorded wherein accused in a way admitted that he was found with the stolen motorcycle, however, he pleaded that he did not know that the bike was stolen. Accused further stated that there was another boy with him who had committed snatching, the said boy ran away and he was apprehended. Accused chose not to lead any defence evidence. Thus, matter was fixed for final arguments.
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SHARMA Date:
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REASONS AND DECISION THEREOF:
5. I have heard Ld. APP for the state and Ld. LADC for the accused. I have also carefully perused the case file. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
6. The accused has been charged under section 379 IPC and in alternative u/s 411 IPC. Section 379 IPC provides punishment for theft and section 411 IPC prescribes punishment for a person who dishonestly receives, or dishonestly retains, any stolen property, knowing, or having reason to believe, that the said property is stolen property.
7. At the outset, it is stated that there is no direct evidence for indicating that the offence of theft has been committed by the accused. There is no any CCTV footage and neither any of the prosecution witnesses has witnessed the theft. The complainant PW1 Azad in his cross-examination has categorically admitted that he does not know who stole the motorcycle and he had not seen any person stealing the motorcycle. The remaining prosecution witnesses are police officials and as per their testimonies as well, it can be concluded that they did not witness the theft of the motorcycle.
In light of the above mentioned discussion, it is held that in Digitally signed by AKSHAY SHARMA AKSHAY Date:
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the absence of any evidence regarding theft, the ingredients of the offence u/s 379 IPC cannot be said to be proved beyond reasonable doubt against the accused.
8. Regarding the offence u/s 411 IPC, it is important to see the ingredients of the offence u/s 411 IPC and also whether the prosecution has been able to bring enough evidence on record to satisfy the said ingredients.
9. To constitute the offence under the said section, it must firstly be satisfied that the impugned property was 'stolen property'. Stolen property has been defined under section 410 IPC and is that property the possession whereof has been transferred by theft, or by extortion, or by robbery or which has been criminally misappropriated.
10. Further, where a person is accused of an offence under this section, he cannot, where the circumstances do not raise a presumption that he received the property, knowing the same to be stolen, be convicted of the offence merely because he is found to be in possession of the stolen property and does not account for its possession. The prosecution must prove that the property was stolen and the accused dishonestly received it, or having received it honestly, dishonestly retained it. In either case the accused must receive it from another person1.The finding of the court
1. Bali Nath v. State, (1916) 22 Cut LT 456 Digitally signed by AKSHAY SHARMA AKSHAY Date:
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must be that the accused has either dishonestly received or has dishonestly retained the stolen property.2
11. From the testimony of PW1 complainant Azad and the testimony of PW6 HC Yogender, it can be reasonably inferred that the motorcycle bearing no.DL3SCG7644 belonging to the complainant was stolen on 26.02.2019. Though the complainant was cross-examined on behalf of the accused, however no fact which could raise a doubt regarding the fact that motor-cycle of the complainant was indeed stolen has arisen. Thus, there is no hesitation to hold that motorcycle bearing no. DL3SCD7644 was a stolen property.
12. In order to prove the recovery of the stolen property, the prosecution has proved the seizure memo of the said motor-cycle as Ex.PW2/B. PW2 Ct. Harish and PW4 ASI Ravi Prakash are the witnesses to the said seizure memo. However, it was PW3 ASI Kamal Chand and PW5 Ct. Ajit Pal were the witnesses who had recovered the motor-cycle from the accused, when the accused was attempting to flee away after snatching the mobile phone.
13. All the prosecution witnesses from PW2 to PW5 have correctly identified the stolen motorcycle from the photographs, both PW3 & PW5 who were the initial witnesses who apprehended the 2 Jowaya v. Empress 46 PR 1887; Sahadat Ali v. State, AIR 1957 All 35 Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2024.10.04 15:50:04 +0530 :14: accused along with the stolen motorcycle have given consistent testimonies regarding recovery, both PW3 & PW5 were cross examined on behalf of the accused. However, no material contradiction has surfaced.
14. Further PW4 ASI Ravi Prakash and PW2 Ct. Harish who had reached the spot after receipt of information, have also testified consistently regarding stolen motorcycle being recovered from the accused when they reached. Both PW4 & PW2 are cross-examined on behalf of the accused, however, no contradiction has surfaced.
15. From the above discussion, the aspect that the motor-cycle bearing no.DL3SCG7644 was a stolen property and the same was recovered from the accused, stands established beyond reasonable doubt, the further requirement to be established by the prosecution was that the accused retained/ received the said motor-cycle with the knowledge that the same was stolen. The accused in his statement u/s 313 CrPC has not been able to account for the possession of the said motorcycle, the accused had stated that he did not know that the motor-cycle was stolen and also stated that there was another boy with him who ran away.
However, as per the statement of the complainant (of FIR no.60/19), there was no other person and it was only the accused who had snatched her mobile phone while plying on stolen motor-cycle of the present case. Furthermore, attention is drawn to Section 114 illustration a of Indian Digitally signed by AKSHAY SHARMA AKSHAY Date:
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Evidence Act, which states that a man found in possession of stolen goods soon after the theft is committed is either the thief or has received them, knowing them to be stolen. In the present case, the theft took place on 26.02.2019 and on 27.02.2019 itself, the accused was found in possession of the stolen motor-cycle, thus an adverse presumption regarding knowledge can certainly be raised against the accused in terms of Section 114 Indian Evidence Act.
16. Admittedly, there were public persons on the spot from where the motorcycle was recovered and they could have been easily joined in the investigations but merely because no public person were made witness to the recovery of the stolen motorcycle at the instance of the accused does not in itself falsefy the entire case of the prosecution.
17. In Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311, the Hon. Supreme Court of India has held that the testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds.
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18. In light of the above discussion, this court is of the opinion that prosecution has been able to prove its case beyond reasonable doubts. Accordingly, accused Amit is convicted for offence punishable u/s 411 IPC.
Pronounced in the open court on 04.10.2024. Judgment contains total 16 pages, each signed by the undersigned.
Digitally signedAKSHAY by AKSHAY SHARMA SHARMA Date: 2024.10.04 15:50:22 +0530 (AKSHAY SHARMA) JMFC-02/SE/Saket/ND 04.10.2024