Delhi District Court
State vs . Sanjay on 21 January, 2012
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IN THE COURT OF Ms. CHETNA SINGH:MM08(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Sanjay
FIR No.157/10
U/s : 379/411/482 IPC
P.S. : Neb Sarai
JUDGMENT
1.FIR No. : 157/10
2.Date of the Commission of the offence : 11.07.2010
3.Name of the accused : Sanjay @ Sanju S/o
Sh. Suraj Mal, R/o
F149, Gali no. 17, Mittal
Colony, Pul Prahlad Pur,
New Delhi.
4.Name of the complainant : Chandan Kumar
5.Offence complained of : 379/411/482 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted of offence u/s.
379 IPC
Convicted u/s. 411/482 IPC
FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC
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8.Date of final order : 21.01.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION The story of the prosecution is that on 11.07.10 at 5:10 pm NBCC plaza, Pushp Vihar, within the jurisdiction of PS Saket, the accused Sanjay @ Sanju was found in possession of motorcycle bearing forged number plates of DL3SAB8794, whereas the original no. was DL3SBA2879 and the same belonged to complainant Chandan Kumar. It is further alleged that the accused stole the motorcycle bearing original no. DL3SBA2879 and thereby changed its number plate which was later recovered from his possession alongwith the fake number plate and he thereby retained the same knowing or having reasons to believe to be stolen one and thereby committed offences punishable under section 379/411/482 IPC.
On the basis of the said allegations and on the basis of the complaint of the complainant Chandan Kumar, an FIR bearing number 157/10 under section 379/411/482 IPC was lodged at Police Station Neb Sarai.
After investigation, chargesheet under section 173 Cr.P.C was filed before the court on 16.08.2010.
FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 3 On the basis of the chargesheet, a charge for the offence punishable under section 379/411/482 IPC was framed against the accused Sanjay @ Sanju and read out to the said accused, to which the accused pleaded not guilty and claimed trial on 16.12.2010.
To prove its case, the prosecution has examined following witnesses.
JUDICIAL PRONOUNCEMENT In order to prove the offences punishable under section 379/411/482 IPC against the accused Sanjay @ Sanju the prosecution is required to prove the following ingredients of the said offences: In order to prove the allegations of offence punishable under section 379 IPC, the prosecution need to prove the following essential ingredients: (1)That the accused had dishonestly taken the property.
(2)That the property was movable.
(3)That the property was taken out of the possession of another person/complainant.
(4)That it was taken without the consent of that FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 4 person/ complainant.
(5)That there must be some moving of the property in order to accomplish the taking of it.
(6)That the said offence has been committed in furtherance of common intention.
For offence under section 411 IPC, the prosecution is required to prove the following essential ingredient: That the accused has dishonestly received or retained any stolen property knowing or having reason to believe the same to be stolen property. In order to prove the said allegations, the prosecution has examined following witnesses: PW1 Chandan Kumar is the complainant himself and he has exhibited his complaint which is Ex.PW1/A. He deposed as regards the theft of his motorcycle bearing no. DL3SBA2879 stating that the same was stolen FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 5 from the front of his shop, where it was parked. Thereafter, he received a telephone call from the police as regards recovery of his motorcycle and he got the same released on superdari vide superdaginama Ex.PW1/B. He also exhibited the motorcycle Ex.P1.
The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW2 Ct. Ram Krishan being the recovery witness in his examination in chief stated that on 11.07.10 he was posted at PS Saket. On that day he alongwith HC Hira Lal was present at the picket of the NBCC plaza and were on vehicle checking after barricading. At about 5:10 pm, one motorcycle came from the side of Khoka market which was signalled to stop by HC Heera Lal and the driver of the motorcycle slowed his speed and thereafter he put barricade on which motorcyclist stopped the motorcycle bearing no. DL 3SAB 8794. HC Heera Lal asked to show the documents on which he did not produce any documents of the motorcycle. On enquiry the accused told his name to be Sanjay. Thereafter, HC Hira Lal asked 0304 public persons to join proceedings but none agreed. The status of motorcycle was enquired by HC Hira Lal from Automax and it was confirmed that original no. of the motorcycle was DL3S BA2879 and the same was found to be stolen from the area of PS Neb Sarai. FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 6 The motorcycle was taken into possession vide seizure memo markY. HC Hira Lal prepared rukka and sent the same to PS Saket for registration of FIR. Number plate was taken into possession vide seizure memo markX. Accused was personally searched and arrested vide seizure memo mark A and B. Case property being the fake no. plate bearing no. DL3SAB8794 was shown to this witness who correctly identified the same and the same was Ex.P2.
The said witness was crossexamined by Ld. Defence Counsel for the accused, wherein he stated that DD no. 27 B was made by HC Hira Lal at about 4:40 pm before he left the police station and on reaching the spot the motorcycle was stopped as the accused was not wearing the helmet. He further deposed that no notice was given to public persons for joining investigation. He further deposed that no documents were prepared by the IO after reaching the spot in his presence. He denied the suggestion of the Ld. defence counsel that accused was arrested from his house and was falsely implicated.
PW3 HC Hira Lal in his examination in chief deposed that on 11.07.10 he was posted at PS Saket and he alongwith Ct. Ram Kishan were present at the picket of the NBCC plaza and were on vehicle checking duty after barricading. At about 5:10 pm, one motorcycle came from the side of Khokha market and was signalled to stop, on account of which, the driver of the FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 7 motorcycle slowed his speed and Ct. Ram Kishan after putting the barricade stopped the motorcycle. No. of motorcycle was DL3SAB8794 and on being asked to show the documents the accused was not able to produce any documents. On enquiry, accused told his name to be Sanjay @ Sanju. 0304 public persons were asked to join the proceedings but none agreed. Thereafter, this witness has deposed consistently on the lines of PW2 Ct. Ram Kishan. This witness was thereafter was crossexamined by Ld. Counsel for the accused wherein he again deposed that accused was without helmet. He also denied the suggestion of Ld. counsel for accused that accused was picked from his house and that nothing was recovered from his possession.
PW4 ASI Ranjeet Singh had recorded the FIR on the basis of a written complaint by complainant Chandan Kumar which is Ex.PW1/A. He further prepared site plan at the instance of complainant which is Ex.PW4/A. The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW5 HC Daya Ram deposed that he was posted at PS Saket on 11.07.10 and on that day investigation of case FIR no. 157/10, u/s 411/482 IPC was entrusted to him and HC Hira Lal handed over one motorcycle, one pullanda, accused and the seizure memo of the said motorcycle to him. FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 8 Thereafter, site plan was prepared at the instance of HC Hira Lal. Accused was interrogated and disclosure statement of accused was recorded.
The said witness was crossexamined by Ld. Counsel for the accused wherein he stated that arrested the accused at around 8:30 pm. Apart from this no material contradictions were found in his crossexamination.
PW6 HC Mahesh Kumar deposed that on 30.06.10 the present case was marked to him by the SHO and a DD entry no. 12 B was made on 12.07.10 as regards the recovery of case property i.e. CBZ motorcycle bearing no. DL3SB2879 and the said vehicle was recovered from accused Sanjay @ Sanju. Thereafter, FIR was registered on 11.07.10 by HC Daya Ram at PS Saket. The fake no. plate was seized alongwith motorcycle vide seizure memo Ex.PW6/A and was deposited in malkhana, PS Neb Sarai. Thereafter, statements of witnesses were recorded and chargesheet was filed before the court.
The said witness was crossexamined by Ld. Counsel for the accused wherein he admitted the suggestion that motorcycle and fake no. plate was not recovered in his presence and the accused was also not arrested in his presence.
After all the witnesses have been examined, statement of accused FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 9 Sanjay under section 313 Cr.P.C was recorded on 14.12.11 wherein the accused stated that he has been falsely implicated in the present case and does not wish to lead any defence evidence in the present matter.
Arguments advanced by Ld. Counsel for the accused and Ld. APP for the State heard.
In the present matter the court has to examine whether the ingredients of section 379 IPC are made out. Even if presuming that the accused has dishonestly taken the property which was movable, it has not been proved that the property was moved from the possession of the complainant without his consent by the accused. The only evidence which has been cited by the prosecution in favour of section 379 IPC against the accused is that the accused had made a disclosure as regards the theft of the CBZ motorcycle (black colour). As per section 25 of the Indian Evidence Act "any confession made to a police officer shall be proved as against a person accused of any offence." Thus, it is a settled law that no confessional statement given by the accused before the police is sufficient to convict the accused.
My this view is further supported by the case titled Ram Singh Vs. State of Maharashtra, 1999 Cr. LJ 3763 (Bombay). In this case it was held that:
FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 10 "Any confessional statement given by the accused before police is inadmissible in evidence and cannot be brought on record by the prosecution and is insufficient to convict the accused." In Aghnu Nagesia Vs. State of Bihar, AIR 1966 SC 119, it was held that "proof of the confession is prohibited by section 25."
Further, 26 of Indian Evidence Act also deals with confession by accused while in custody of the police, which cannot be proved against him unless made in the immediate presence of Magistrate.
Thus, apart from this disclosure statement, which is inadmissible in evidence, there is no evidence on record as regards the accused having committed offence under section 379 IPC and hence, acquitted of the charges under section 379 IPC.
Now coming to the fact whether offence under section 411 IPC is made out. The complaint has been proved by PW1 Chandan Kumar, who is the complainant himself who only deposed that he made a complaint as regards the theft of his motorcycle bearing number DL3SBA2879 which is Ex.PW1/A. PW2 Ct. Ram Kishan and PW3 HC Hira Lal are recovery witnesses who have consistently deposed as regards the recovery of the motorcycle with the fake FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 11 number plate from the accused. Both the witnesses have deposed on similar lines and submit that they stopped the stolen motorcycle being driven by the accused at the barricade and the accused was not wearing a helmet. Even though disclosure statement is inadmissible in evidence as stated above, section 27 of the Indian Evidence Act admits the proof of only so much of the disclosure statement as leads to the recovery in pursuance of said disclosure.
Now coming to Section 27 of Indian Evidence Act, which reads as under:
"When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of the police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Further, as noted in case titled Puluduri Kotayya Case and In Udai Bhan Vs. State of U.P. The important ingredients of this Section have been summoned up as under: (1)The fact of which evidence is sought to be given must be FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 12 relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2)The fact must have been discovered.
(3)The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
(4)The person giving the information must be accused of any offence.
(5)He must be in the custody of a police officer. (6)The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7)Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC 13 Both the witnesses have deposed that the stolen vehicle with fake no. plate bearing number DL3SAB8794 was recovered from the accused. There is no contradiction in their testimony. These witnesses have been cross examined by Ld. Counsel for accused however, no material contradictions were apparent in the crossexamination. Similar testimonies have also been given by PW5 HC Daya Ram and PW6 HC Mahesh Kumar. Recovery has been effected from the accused of both the vehicle and fake no. plate and hence, the ingredients of section 411/482 IPC have been fulfilled and accordingly, the accused person is convicted for offences under section 411/482 IPC.
Be heard on the point of sentence.
ANNOUNCED ON 21.01.2012 (CHETNA SINGH) MM08(South)/21.01.2012 Certified that this judgment contains 13 pages and each page bears my signatures.
(CHETNA SINGH) MM08(South)/21.01.2012 FIR No157/10 State Vs. Sanjay Under Section379/411/482 IPC