Delhi District Court
State vs . Sachin on 22 May, 2023
IN THE COURT OF SH. AJAY NARWAL , MM-02, NORTH DISTRICT,
ROHINI COURTS, DELHI
State Vs. Sachin
FIR No. 11/2015
PS: SP Badli
U/S: 381/411 IPC
ID number of the case : 5294175/2016
Date of commission of offence : 03.01.2015
Date of institution of the case : 07.01.2016
Name of the complainant : Sh. Sandeep Bindra S/o Jagbeer Bindra
Name of accused : Sachin S/o Sh. Umesh, R/o H. No. 28A,
Sahipur, Salimarbagh, Delhi.
Offence complained of or proved : U/s 381/411 IPC
Plea of the accused : Pleaded not guilty
Final order : 22.05.2023
Date of judgment : Convicted u/s 381 of IPC and Acquitted
u/s 411 of IPC
JUDGMENT
1. The case of the prosecution in brief is that on 03.01.2015 at 07.00 pm at Khasra No. 136/2, Badli Village, within the jurisdiction of PS SP Badli, accused Sachin being the servant of complainant Sandeep Singh Bindra committed theft of two heater rod and two locks make Godrage belonging to the complainant and thereby committing an offence punishable under section 381 IPC. Further, on the FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 1 of 16 above said date, time and place, accused was found in possession of two heater rods and two locks belonging to complainant, which he dishonestly retained knowing or having the reason the same to be stolen property and thereby committed offence u/s 411 IPC. Thereafter, an FIR was registered in the present case.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused person and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused person free of costs as envisaged under Section 207 of Cr.P.C.
4. A prima facie case under Section 381/411 IPC, was found to be made out against the accused person. Charge was framed upon the accused person, accordingly, on 06.03.2017. The accused person pleaded not guilty and claimed FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 2 of 16 trial.
5. Vide their separate statement recorded, the accused persons admitted the following documents under Section 294 Cr.PC. In view of the admission of above documents under Section 294 Cr.PC, the formal examination of aforesaid witness was dispensed with.
6. In order to prove its case, prosecution examined following five witnesses:
7. PW-1 HC Gulzar deposed that on 03.02.2015 he was posted at PS SP Badli as HC and was working as DO from 04.00 pm to 12.00 midnight. On that day, at about 08.45 pm, he received rukka through Ct. Rakesh which was sent by HC Krishan Kumar on the basis of which he registered the present FIR Ex. PW1/A. He also made endorsement on rukka Ex. PW1/B. He also issued certificate U/s 65 B Evidence Act Ex. PW1/C. Thereafter, he handed over orginial rukka and copy of FIR to Ct. Rakesh to be handed over to the IO. He had produced the original FIR register in the court (OSR). The witness was not examined by accused despite opportunity given.
8. PW-2 Sandeep Bindra deposed that he is residing at C-6A/7, 1st Floor, FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 3 of 16 Ardeecity, Sector-52, Gurgaon, Haryana. He runs the company Pathways Marketing and Consulting Group. On 03.01.2015, there was one employee namely Sachin was caught red handed while committing theft. He had called the police. He had suspicion upon that person as there was found some material on the upstairs in their office. They called to their staff that to whomsoever the material belongs, would come on its own. They instructed one of their employee namely Amit to sit on upstairs. He (Amit) set on the topest stair, accused came and Amit Yadav caught red handed. Accused was trying to steal the material which was placed on the stairs. The stolen articles were Khetan Immersion Rod and Godrej Lock. Police came at the spot and recorded his statement Ex. PW2/A. The incident happened at about 06.00 pm. Witness correctly identified the accused Sachin present in the court. The accused came after 10 minutes of the closure of office and was trying to seal the material. Upon cross-examination by ld. APP for the State, he admitted that stolen articles were recovered in his presence and were seized by the police having the seal of KK by wrapping in a white cloth in his presence and the seizure memo is Ex. PW2/B. He further admitted that accused was arrested in his presence vide memo Ex. PW2/C and personally searched vide memo Ex. PW2/D. He further admitted that accused came by keeping his identity hidden behind the stairs. He correctly identified the case property i.e. Ex. P1 to P4 (2 immersion rods and 2 FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 4 of 16 lacs). The witness was cross-examined by ld. Counsel for the accused.
9. PW-3 Amit Yadav deposed that he does not remember the date, however, the month was January, 2015. He used to work in the marketing department from 5.00 to 05.30 pm. Their office is situated on the 3rd Floor and on the upstairs, there was some material (2 rods and 2 locks were placed). Management of the company came to know that the material has been kept in such situation. Immediate planning was made that office should be closed at about 6.00 pm. He was given the responsibility to sit on the upstairs. As soon as he sat and within a period of 10-15 minutes, accused Sachin came there and tried to take out the above said material from the katta. He immediately apprehended him red handed when he was stealing the material and conveyed this information to the owner of the company. Thereafter, office was again opened and called at 100 number. Police came there and he was handed over to the police as the accused was caught by them till the time police reached. Police personnel checked the stolen material and prepared the seizure memo in his presence. Accused was also arrested as well as personally searched in his presence vide memo Ex. PW2/C and Ex. PW2/D. The site plan was prepared in his presence. He correctly identified the accused present in the court as well as case property Ex. P1 to P4. The witness was cross-examined by ld. Counsel FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 5 of 16 for the accused.
10. PW-4 Ct. Rakesh deposed that on 03.01.2015, he was posted at PS SP Badli as constable. On that day, he alongwith HC Krishan Kumar reached at Khasra No. 136/2, Village Badli after receiving the DD No. 54A where they met complainant Sandeep Bindra alongwith one person namely Sachin and the complainant told that the said person had committed theft at his house and stolen heater rod. Thereafter, IO recorded statement of complainant and prepared tehrir on his statement and handed over to him for registration of FIR. Accordingly, he went to PS to get register the FIR through DO and returned to the spot alongwith original rukka and copy of FIR and handed over the same to the IO. Thereafter, IO had seized the stolen articles seized vide seizure memo Ex. PW2/B after sealing the same with the seal of KK and same were tied with the help of piece of white cloth. IO recorded his statement. He correctly identified the accused present in the court as well as case property Ex. P1 (colly) and Ex. P2 (colly). The witness was cross-examined by ld. Counsel for the accused.
11. PW-5 Retd. ASI Krishan Kumar deposed that on 03.01.2015, he was posted at PS SP Badli as HC. On that day, he was on emergency duty from 08.00 am to FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 6 of 16 08.00 pm. On that day, he received DD No. 54-A Ex. PW5/A regarding apprehending of thief. Thereafter, he alongwith Ct. Rakesh reached to the spot i.e. khasra no. 136/2, Village Badli, Delhi where they met with complainant Sandeep Bindara. Complainant handed over him the custody of the accused Sachin and two heater rods rapped in the packing and two locks. Complainant Sandeep Bindra gave him his written complaint Ex. PW2/A. Thereafter, he prepared rukka Ex. PW5/B and sent Ct. Rakesh for registration of FIR to the PS. He prepared site plan on the instance of the complainant Ex. PW5/C. After getting the case registered, Ct. Rakesh reached at the spot and handed over him the copy of FIR and original rukka. He prepared pullanda of the aforesaid immersion rods and two locks and duly sealed the same with the seal of KK. He seized the aforesaid heater rods and two locks vide seizure memo Ex. PW2/B. He interrogated the accused Sachin and he admitted his guilt. He recorded disclosure statement of accused Ex. PW5/D and arrested the accused and conducted his personal search vide memos Ex. PW2/C and Ex. PW2/D. He further deposed that on the next day, after the medical examination of the accused, he was produced before the concerned court and from where he was sent to JC. He correctly identified the accused present in the court as well as case property Ex. P1 (colly) and Ex. P2 (colly). The witness was cross- examined by ld. Counsel for the accused.
FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 7 of 16
12. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 22.03.2023. Thereafter, statement of the accused was recorded on 12.04.2023, u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein he denied the allegations and chose not to lead DE.
13. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross-examination and there is no reason to doubt their testimonies. Per contra, Ld. Counsel for the accused person argued that recovered case properties have been falsely implanted on the accused by the police officials. Ld. Counsel also submitted that since, prosecution has not been able to prove the guilt of the accused beyond reasonable doubt, therefore, benefit of doubt must be given to the accused.
14. I have considered the rival submissions and perused the materials available on record.
15. It should be noted that the accused has been charged for the offence of theft punishable u/s 380 IPC, and, alternatively, also for the offence of dishonestly FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 8 of 16 receiving stolen property punishable u/s 411 IPC.
16. For ready reference, the provisions of Section 381 IPC and 411 IPC are reproduced as below :
"381. Theft by clerk or servant of property in possession of master- Whoever being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
17. From the provisions of Section 381 IPC, the following three ingredients have to be proved against the accused by the prosecution :
(a) The accused was employed in the capacity of a servant,
(b) He committed theft in respect the alleged property; and
(c) Such property was in the possession of his employer.
18. Section 411 IPC deals with the offence of dishonestly receiving stolen properties and reads as under:-
"Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 9 of 16 be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
19. As discussed in aforesaid para, the following three ingredients have to be proved against the accused by the prosecution under Section 381 of IPC:-
(a) The accused was employed in the capacity of a servant,
(b) He committed theft in respect the alleged property; and
(c) Such property was in the possession of his employer.
20. I shall be dealing with these aspects separately in the backdrop of evidences adduced by the prosecution on record in the instant case.
The accused was employed in the capacity of a servant, Ld. Counsel for the accused during final arguments submitted that prosecution has not place attendance register to prove the fact that accused was working in the capacity of servant with the complainant. It is pertinent to mention during the cross examination, PW-2, Sandeep Bindra has clearly stated that "the salary approximately paid to the accused was 8000/-. The salary of the prior month before this incident was also paid by us and which is also mentioned in our FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 10 of 16 records". Accused person didn't lead any defense evidence to fortify the fact that he was not working as a servant of the complainant. PW-1 has clearly deposed that salary paid to the accused was approximately 8000/- and accused used to work in the packing department. Moreover, PW-3 i.e. Amit Yadav has also deposed that accused used to work in the warhouse. Perusal of the testimonies of witnesses corroborate each other and would reveal that accused was employed in the capacity of servant. It is also pertinent to mention that during the cross examination of PW3 Sh. Amit Yadav, Ld. Counsel for the accused has given a suggestion that accused was claiming the salary as per Government rate and that is why he has been implicated in the present case. The said suggestion was denied by witness. However, the said suggestion given by Ld. Defence counsel fortify the fact that he was employed in the capacity of his servant.
21. The accused committed theft in respect the alleged property In the instant case, in order to prove the factum of theft, the prosecution has primarily relied upon the testimony of the complainant PW-3. PW-3 in his testimony had categorically deposed that "Management of the company came to know that the material has been kept in such situation. Immediate planning was made that office should be closed at about 6.00 pm. He was given the FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 11 of 16 responsibility to sit on the upstairs. As soon as he sat and within a period of 10-15 minutes, accused Sachin came there and tried to take out the above said material from the katta. He immediately apprehended him red handed when he was stealing the material and conveyed this information to the owner of the company. Thereafter, office was again opened and called at 100 number. Police came there and he was handed over to the police as the accused was caught by them till the time police reached. Police personnel checked the stolen material and prepared the seizure memo in his presence."
22. Perusal of the testimony of PW-3 would clearly support the case of prosecution in order to establish the fact that theft was committed in the office of the complainant. This could also be corroborated from the fact that the present FIR was registered on the same day after the complaint filed by the complainant.
23. PW-3 was cross examined at length by the Ld. Counsel for the accused, however, he remains consistent in his cross examination. Ld. Counsel for the accused submitted that there are minor contradictions in the testimony of the PW-2. The said argument of the Ld. Counsel is not tenable as PW-2 has remains FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 12 of 16 consistent regarding the fact that he caught the accused while committing theft. At this stage, it further become relevant that in the case of State of Karnataka v. Suvarnamma and Anothers (14.10.2014), it was observed that:-
" Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if, a video tape is replayed on the mental screen.
"(10) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once, that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks, infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of evidence is shaken as to rander is unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to from the opinion about the general tenor of evidence given by the witness, the appellate court which had not disbenefit will have to attach due weightage to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 13 of 16 minor variations or infirmities in the matter of trivial details. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals".
24. Such property was in the possession of his employer.
It is pertinent to mention that accused was caught red handed by while committing theft of two heater rod and two locks make godrage inside the office of the complainant. The said articles duly seized vide seizure memo which was exhibited as Ex. PW2/B. It is pertinent to mention that said seizure memo was also duly signed by the complainant. PW-2 and PW-3 has clearly deposed that accused was caught red handed while committing theft of khetan immersion rod and Godrej locks. The accused was committing theft inside the office which fortify the fact the stolen articles were in the constructive possession of the employer.
25. It should be noted that accused person was caught red handed while committing theft in the office of complainant and case properties i.e. two heater rod and two locks Godrage made were also recovered from him. The FIR was FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 14 of 16 registered by the complainant on the same day at 9 PM. Hence, the interval between the theft and recovery of stolen articles from the possession of accused was very short. Since, the prosecution has successfully established the fact of theft and recovery of stolen articles from the possession of accused through direct evidence, therefore, a presumption (although rebuttable) can be drawn under section 114(a) Evidence Act regarding the fact that the accused Vicky is either thief or receiver of the stolen properties. Accused has not lead defense evidence to rebut the above presumption. Accused under his statement under 313 of Cr.PC. has merely gave bald statements and has not given any justification regarding the evidences put against him. In view of the discussion herein above, overall, the prosecution has been able to establish its case beyond reasonable doubt that accused had committed offence of Section 381 of IPC.
26. It is pertinent to mention that once the accused is found guilty of committing theft than on same facts, he cannot be held guilty of committing the offence of Section 411 of IPC. Reference can be to the judgement of the Hon'ble High of Allahabad in the case of Gopi Jaiswal V. State of Uttar Pradesh, Criminal Appeal No. - 1899 of 2009, wherein it was observed that "In view of the fact that the appellant Gopi Jaiswal was the real thief, his conviction could only be made under FIR No. 11/2015 PS SP Badli State V. Sachin Page No. 15 of 16 Section 379 IPC. His conviction under Section 411 IPC, in such situation, was not proper. A real thief cannot be a receiver of a stolen property. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted and sentenced for the offence of theft and as such he cannot be convicted and sentenced under Section 411 IPC".
27. Therefore, accused Sachin is held guilty and stands convicted for the offence punishable u/s 381 IPC and stands acquitted for the offence punishable u/s 411 IPC.
Copy of judgment be given dasti to convict free of cost.
Dictated directly into the computer (AJAY NARWAL)
and announced in the open Court, MM-02 (North)/
On 22nd May, 2023. Rohini Courts,
Delhi/22.05.2023
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