Delhi District Court
1 State vs . Kailash Chand on 20 February, 2008
1 State vs. Kailash Chand
IN THE COURT OF SH. AJAY GUPTA, M.M.
TIS HAZARI COURTS , DELHI
FIR No. 215/94
State vs. Kailash Chand
U/s 379/411 IPC
PS Rajender Nagar
1. Sl. no. of the case 100/2
2. Date of institution of challan 27.09.95
3. Date of commission of offence 26.11.94
4. Name of complainant Alin Bhatia s/o BK Bhatia
5. Name of accused Kailash Chand s/o Swami Raj Arya
6. Offence complained or proved U/s 379/411 IPC
7. Plea of the accused Pleaded not guilty
8. Submissions heard/order reserved 11.02.08
9. Final order Convicted.
10.Date of such order 20.02.08
J U D G M E N T
1. Briefly the facts of the case are that allegedly on 26.11.94 the complainant Alin Bhatia made a complaint that on 26.11.94 he parked his maruti car no. DNH 2 State vs. Kailash Chand 8717 outside his house at 3B/2 Ganga Ram Hospital Road, New Delhi. The car remained parked till 9.15 pm but it was found missing at 10.00 pm. Thereupon the present case was registered. Subsequently on 28.11.94 accused Kailash Chand @ Bobby was found in possession of alleged stolen maruti car in the area of PS Karol Bagh. Accordingly he was apprehended and charge sheeted in this case.
2. The Ld. predecessor of this court vide his order dt. 11.06.99 was pleased to frame a charge u/s 379/411 IPC against the accused to which he claimed trial. After that case was fixed for prosecution evidence.
3. In order to substantiate its allegations against the accused the prosecution examined as many as seven witnesses.
4. First of all the prosecution examined complainant Alin Bhatia as PW1. This witness deposed that on 26.11.94 he parked his Maruti 800 blue colour outside his house at 9.15 pm and when he came out at about 10.00 pm his car was found missing. After that he made a complaint vide ex. PW1/A to the police. The 3 State vs. Kailash Chand witness further deposed that after few days his car was recovered by the police and he got it released on supardari. After that examination of this witness was deferred. This witness was again recalled for his further examination on 05.12.02. On that date this witness again appeared and proved on record the stolen car as ex. P1. This witness was cross examined on behalf of accused but I do not find any material contradiction favourable to the accused.
5. The most material witness in this case is one Ravinder Nath Mehra who was examined as PW2. This witness deposed that on 28.11.94 at about 4.45 pm when he went to market of Chandna to bring some articles, there he saw the car no. DNH8717. Then he contacted the control room van and informed that the vehicle belongs to Shri Bhatia who is his friend. Then police officials stopped the car and contacted the local police and took the vehicle and accused present in the court to PS. Car was taken into possession vide memo mark A and accused was arrested.
6. PW3 is HC Surender Singh, the DO who deposed on the formal point of recording of FIR and proved on record copy of FIR vide ex. PW3/A. 4 State vs. Kailash Chand
7. PW4 is Ct. Vijay DHG. This witness deposed that on 26.11.94 on receipt of DD no.27A he along with IO went to house of complainant. There complainant made his complaint in English. The witness further deposed that IO prepared rukka and got the case registered.
8. PW5 is Ct. Yugal Kishore. This witness deposed that on 28.11.94 at about 5/5.15 pm when he was standing at China Market of his beat there on the side of Chambery near China Market one car bearing no. DNG8717 make maruti was parked. The witness further deposed that Ravinder Nath Mehra who had come for shopping in the said market, came and told him that the said maruti car belong to his brotherinlaw which had been stolen on on 26.11.94. Then he apprehended the accused present in court today, who was sitting in the said car while he was about to take away the said car. After that he made a call to PCR in the meantime SI Jai Raj Singh Division Officer who was on patrolling also came there. Then SI Jai Raj Singh stated to have recorded statement of RN Mehra, prepared rukka and got the case registered. He has also got exhibited the seizure memo of car vide ex. PW5/A and disclosure statement of accused vide ex. PW5/B. The witness further deposed that other accused Surender Pal @ 5 State vs. Kailash Chand Prince was also apprehended from his house and his disclosure statement was also recorded vide ex. PW5/C. He has also got exhibited the pointing out memo ex. PW5/D which was prepared at the instance of accused along with personal search memo ex.PW5/E and ex. PW5/F. This witness was also cross examined by the Ld. defence counsel but this court does not find any material contradiction in his cross examination.
9. PW6 is SI Jai Raj Singh. This witness deposed that on 28.11.94 on the receipt of DD no.15A he reached China Market where he met ct. Yugal Kishore who had already stopped one maruti car 800 of maruti car no. DNH8717 and one person ie accused who was sitting on the driver seat of the car. The witness further deposed that one Ravinder Nath Mehra also met there, who narrated to him that this car belongs to one of his friends and recorded his statement upon which a case u/s 411 IPC was registered. Thereafter he recorded disclosure statement of accused. He has also got exhibited the relevant documents of case FIR no. 523/94 PS Karol Bagh which was registered against the accused. After that he informed the PS Rajender Nagar about this incident. The witness further deposed that on 29.11.94 at the instance of accused Kailash Chand coaccused 6 State vs. Kailash Chand Surender Pal Singh was also arrested. This witness has also correctly identified the case property as ex.P1. This witness was cross examined at length by the Ld. defence counsel but nothing fruitful came out in favour of the accused.
10. PW7 is SI Rampat (retired) the IO of the case in hand. This witness has deposed more or less on the similar terms as deposed by PW4. He further deposed that on 28.11.94 he came to know about the recovery of of the alleged car in PS Karol Bagh. After that on 29.11.94 he went to PS Karol Bagh, met SI Gajraj and ct. Yugal Kishore, obtained copies of the relevant documents, took the alleged car into possession from the malkhana of PS Karol Bagh and completed remaining formalities. This witness was also cross examined but I do not find any material contradiction. After examination of these witnesses case was fixed for statement of accused.
11. Statement of accused u/s 281 Cr.P.C is recorded to which accused denied the allegations and submitted that he has been falsely implicated in this case and preferred to lead DE but no defence evidence was lead despite several opportunities and DE was closed on 10.03.05. After that case was fixed for final 7 State vs. Kailash Chand arguments.
12. I have heard the Ld. Defence counsel and Ld. APP for the state. I have also perused the case file and statement of witnesses carefully.
13.Initially the Ld. defence counsel argued the case at length and during arguments the main stand taken by the Ld. defence counsel was that the most material witness in this case is PW2 RN Mehra on whose instance accused was apprehended but his testimony can not be taken into consideration as cross examination of this witness was deferred and thereafter he was never cross examined. On the other hand Ld. APP argued that PW2 was not cross examined despite opportunities given. After addressing final arguments on 11.02.08 of the case Ld. defence counsel has also moved an application u/s 311 Cr.P.C. on 13.02.08 for recalling of witnesses ie PW1 to PW6 for their cross examination which was dismissed vide detailed order dt. 16.02.08.
14.From the statement of PW2 it is clear that this witness was examined on 01.12.99 in presence of Ld. defence counsel but he did not cross 8 State vs. Kailash Chand examine this witness on that date and at his request cross examination of this witness was deferred. After that on 02.09.02 this witness was again recalled for cross examination but on that date Ld. defence counsel did not appear and opportunity to cross examine this witness was directed to be closed.
15. It is clear from the records that the recovery of the alleged stolen martui car has been proved by the recovery witness PW2, PW5 and PW6 and accused has been identified by these witnesses along with PW2 correctly.
16. PW2 and PW5 are the material witnesses of the recovery of the stolen case property and PW5 and PW6 along with complainant examined as PW1 have correctly identified the case property. PW2 and PW5 remained unshaken through out the case. This PW5 in his examination clearly deposed that on 28.11.94 at about 5/5.15 pm when he was standing at China Market at his beat there on the side of Chambery near China Market the alleged maruti car was parked and Sh. RN Mehra came there and informed about the theft of the said car. Thereafter accused was apprehended while he was about to take away the said car. PW5 was cross examined by the Ld. Defence Counsel, but this court does not find any 9 State vs. Kailash Chand material contradictions in his testimony to disbelieve the prosecution case.
17. PW2 has also well supported the prosecution story and remained unshaken through out the case. This witness was not cross examined despite opportunities given to the Ld. defence counsel. Hence his entire testimonies remained unchallaneged and uncontroverted.
18. Thus the recovery of the alleged stolen car from the possession of the accused has been well proved by PW2 and PW5 whose testimonies are supported by PW6, there is no reason whatsoever to disbelieve their versions and the Ld. Defence counsel has failed to make any dent over the prosecution story regarding apprehension of the accused with alleged stolen maruti car by the police official of PS Karol Bagh at the instance of PW2. As such this court is of the considered opinion that prosecution has successfully proved the apprehension of the accused on the spot as well as recovery of the stolen maruti car from the possession of the accused. Accused has also failed to explain as to in what capacity the alleged maruti car was in his possession. Hence considering the aforesaid facts and discussion this court holds the accused guilty for the 10 State vs. Kailash Chand offence punishable u/s 411 IPC.
19. So far as the offence u/s 379 IPC is concerned. The prosecution has failed to bring any ingredient of offence u/s 379 IPC. From the statement of witnesses it is clear that none of the witnesses has seen the accused committing theft of the alleged car. Hence accused is acquitted of charge for the offence u/s 379 IPC. Now file be taken up at 22.02.08 for order on sentence.
( AJAY GUPTA ) METROPOLITAN MAGISTRATE TIS HAZARI COURTS DELHI Announced in open court on 20.02.08 11 State vs. Kailash Chand FIR No. 215/94 State vs. Kailash Chand U/s 379/411 IPC PS Rajender Nagar ORDER ON SENTENCE 25.02.08 Present. Ld. Substitute APP for the state.
Convict Kailash Chand on bail with counsel.
He is heard on the point of sentence.
During the course of arguments Ld. defence Counsel submits that accused has already remained in JC for more than two months. Ld. counsel further submits that it is his first offence, he is the only bread earner of his family having one child, widow mother, one widow sister to look after along with one sister to be married and requests for releasing the accused on probation.
On the other hand, Ld. Substitute APP for the State has argued for not taking a lenient view against the accused stating that such type of incident is rising day by day.
Submissions of both sides are heard.
Keeping in view the submissions of both parties and nature of offence, 12 State vs. Kailash Chand convict is sentenced to undergo RI for one month along with a fine of Rs.1000/ in default SI for one month. Benefit u/s 428 Cr.P.C be given to the accused.
A copy of the judgment and order on sentence be given to the accused free of costs.
( AJAY GUPTA ) METROPOLITAN MAGISTRATE TIS HAZARI COURTS DELHI Announced in open court on 25.02.08 At this stage Ld. counsel for accused has moved an application u/s 389 Cr.P.C. for suspension of sentence as accused wants to go in appeal.
In these circumstances sentence awarded to the accused is hereby suspended by the time the statutory period of appeal is lapsed.
Convict Kailash Chand is admitted to bail on his furnishing personal bonds in the sum of Rs.10,000/ with one surety in the like amount. Bail bonds furnished and accepted. Now file be consigned to the record room.
MM/25.02.08