Delhi District Court
State vs . Satish Kumar & Anr. on 12 August, 2016
IN THE COURT OF SH. RAJINDER SINGH, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, DELHI
FIR No. 30/09
PS: Dwarka North
U/S : 379/411/34 IPC
State Vs. Satish Kumar & Anr.
Serial / C. No. 454/1/12
U.ID No. 421261/2016
Date of Commission of the 20.10.2011
offence:
Name of the Complainant Sh. Ved Prakash
S/o Sh. Kartar Singh
R/o L-Ext. 329,
Mohan Garden,
Uttam Nagar,
Delhi.
Name and address of accused 1) Satish Kumar
S/o Sh. Parhlad Singh
R/o Village Mirzapur,
PS Sadar Hissar Dist.
Hissar, Haryana.
2) Sunil Kumar
S/o Sh. Naurang
R/o Village Mirkha,
PS Sadar Hisar,
Haryana
Offence complained of or proved 411/34 IPC
Plea of accused persons Both Accused
Pleaded not guilty.
State Vs. Satish Kumar & Anr.
FIR No. 30/09
PS: Dwarka North Page no. 1 of 13
Final Order Both accused
convicted U/s 411/34 IPC
Date of pronouncing the orders 12.08.2016
Date of Institution: 16.10.2012
Date on which Judgment reserved 16.07.2016
Date of Judgment: 12.08.2016
JUDGMENT
BRIEF FACTS
1. On 20.10.2011 (SIC), car bearing registration No. DL 9CL 2667, Engine no. 16A1239313, Chasis No. MA3EFJC1SC00104400 was found in the possession of the accused persons at Sikar, Rajasthan, which they received or retained knowing or having reason to believe the same to be stolen property. The said car was stolen on 20.10.2009 around 09:15 PM while it was parked near Hi Mirchi Restaurant, within the jurisdiction of PS Dwarka North.
FIR No. 30/09PS: Dwarka North Page no. 2 of 13 CHARGE
2. Charge for the offence punishable U/s 411/34 IPC was framed against both the accused persons on 29.01.2013. Both the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. The prosecution examined eleven PWs to prove its case.
3.1 PW1: Sh. Ved Prakash (Complainant) Stated that on 20.10.2009 he parked car bearing registration No. DL 9C L 2667 near Hi Mirchi Restaurant. Sh. Ashish Ghai owner of the said car went to the Restaurant and PW1/ complainant went to drink water, when he returned the car was missing. The PW1/ complainant gave his complaint PW1/A. At the instance of the complainant IO prepared the site plan Ex. PW1/B. 3.2 PW2: SI Bhagga Ram, PS Sikar Kotwali, District Sikar, Rajasthan.
Stated that on 21.04.2011 he was posted at PS Ringus, Sikar, Rajasthan. He received information that one Maruti Car SX4 bearing registration number plate HR26AR6249 State Vs. Satish Kumar & Anr.
FIR No. 30/09PS: Dwarka North Page no. 3 of 13 would come from Sikar and go towards Ringus, the same was carrying illegal liquor. Police team including SI Bhishan Lal, ASI Bhalla Ram and Ct. Rajender Prasad was prepared. The accused Sunil and Satish Kumar (correctly identified) were apprehended with illicit liquor inside the car. Case under Excise Act was registered. On the basis of the engine number and chasis number of the car, information was sent to PS Dwarka North. The photographs of the said car are PW2/B (colly).
3.3 PW3: Ct. Dhan Singh.
Stated that on 29.08.2012 he alongwith IO ASI Bajrang Lal came to Dwarka Courts. The accused persons Sunil and Satish were formally arrested vide memo Ex. PW3/A and PW3/B respectively. On 03.09.2012 the said car was seized vide seizure memo Ex. PW3/C. The photographs of the said car already are already Ex. PW2/B (colly).
3.4 PW4: SI Mohd. Yasin Khan.
Stated that on 20.10.2009 he received the present complaint and made his endorsement Ex. PW4/A on the complaint and got the case registered. He filed the untraced report Ex. PW4/B. State Vs. Satish Kumar & Anr.
FIR No. 30/09PS: Dwarka North Page no. 4 of 13 3.5 PW5: Sh. S.D. Khurana(AR of National Insurance Company Ltd.).
He stated that the stolen vehicle belongs to M/s Cisco System Pvt. Ltd. The insurance claim of the said vehicle has been paid and the RC is transferred to NIC. The Authority letter is Ex. PW5/A. The photographs of the said care are Ex. P2 and P3.
3.6 PW6: Ct. Rajkumar.
Stated that on 09.09.2011 he was posted as Constable at PS Ringus. He came to PS Dwarka to inform about the recovery of said car. In this regard DD entry is Ex. PW6/A. 3.7 PW7: HC Ramnath Singh (Duty Officer).
Proved the FIR of this case. The carbon copy of the FIR is Ex. PW7/A(OS&R). His endorsement on rukka is Ex. PW7/B. 3.8 PW8: ASI Bajrang Lal (IO) Stated that on 09.09.2011 he received DD no. 67B Ex. PW6/A regarding recovery of the stolen car. He went to PS Ringus, District Rajasthan and got the documents regarding the accused persons same are Ex. PW8/B and PW8/C. He went to the Excise Commissioner for release of the said vehicle. The accused persons were formally State Vs. Satish Kumar & Anr.
FIR No. 30/09PS: Dwarka North Page no. 5 of 13
arrested vide memos Ex. PW3/A and PW3/B. Letter
Ex. PW8/A was sent to the insurance company for producing the said car. The same was seized vide seizure memo Ex. PW3/C. The photographs of the care are Ex. PW2/B (colly).
3.9 PW9: Ct. Rajender Prasad.
Corroborated the testimony of PW2.
3.10 PW10: Sh. Yoginder Paul, Senior D.M., National Insurance Company.
Stated that the said vehicle has been sold to one Sh. Rajinder Kumar. The photographs of the car alongwith forge number plate are Ex. PW10/A. His reply to the notice of IO (Ex. PW8/A) is Ex. PW10/B. 3.11 PW11: Sh. Rajinder Kumar.
Stated that on 04.04.2012 he purchased Maruti Car No. DL 9CL 2667 from the National Insurance Company. He produced the car before the court, the same is Ex. P1. The photographs of the car are Ex. PW10/A (colly). Copy of form M-29 is Mark 'X'.
All the witnesses were offered to the accused persons for State Vs. Satish Kumar & Anr.
FIR No. 30/09PS: Dwarka North Page no. 6 of 13
cross-examination.
On 07.01.2016 upon the statement of Ld. APP P.E. was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C
4. On 12.04.2016, separate statements of both the accused persons were recorded u/s 313 Cr.P.C.
During SA both the accused persons admitted that they were apprehended alongwith the stolen property. They claimed that they were the employee of one Dalbir and they were only driving the said vehicle, without any knowledge that the said vehicle was stolen property. Both the accused persons did not want to lead D.E. FINAL ARGUMENTS
5. Arguments heard.
It was argued by Ld. APP that the PWs have deposed that the stolen property was in the possession of the accused persons. The same was recovered from their possession. Even in SA U/s 313 Cr.P.C. the accused persons have admitted that they were in possession of the stolen car. The IO PW8 in his cross examination stated that the accused persons did not disclose the address of State Vs. Satish Kumar & Anr.
FIR No. 30/09PS: Dwarka North Page no. 7 of 13 the person whom they claim to be the "Owner" of the stolen property. Due to this reason, no inquiry / investigation would be carried out with regard to the said person. This shows that the accused persons cooked a false story regarding they being employed by somebody to drive the said car. It is proved beyond reasonable doubt that the accused persons were in the possession of the stolen property. Prosecution has proved its case beyond reasonable doubt.
5.1 It was argued by Ld. Counsel for the accused persons that the stolen car was recovered while the accused persons were driving the same. However, the accused persons were not aware that the said car was stolen property. They were employees of one Dalbir. There is no evidence on record to show that the accused persons knew that the said car was stolen.
JUDGEMENT
6. In the present matter, charge for the offence punishable U/s 411/34 IPC only was framed against both the accused persons. In the prosecution evidence it has come that at the time of recovery of the stolen car a fake number plate was affixed on the said car. In this regard, no charge U/s 482/ 471 IPC, or any other relevant law was framed against the accused persons. At this belated State Vs. Satish Kumar & Anr.
FIR No. 30/09PS: Dwarka North Page no. 8 of 13 stage, I am not inclined to amend or add to the charge.
7. The complaint Ex. PW1/A was lodged regarding the theft of car i.e. The stolen property. In this regard, FIR Ex. PW7/A was registered. PW4 attended the call regarding the theft of the said car. He stated that he flashed WT message regarding the theft of the car. Intimation was also sent to the NCRB, untraced report Ex. PW4/B was also filed by PW4. In view of this, it is clear that the car bearing registration No. DL 9CL 2667, Maruti SX4 was stolen on 20.10.2009 while it was parked near Hi Mirchi restaurant, within the jurisdiction of PS Dwarka North.
8. PW2 SI Bhaga Ram and PW9 Ct. Rajinder Prasad stated that on 21.04.2011 they were posted at PS Ringus and they were on Highway Mobile duty. The accused persons alongwith the said car were apprehended. The proceedings Ex. PW9/A also bear the date 21.04.2011, Ex. PW9/B, PW9/C and PW9/D all bear the date 21.04.2011. The FIR No. 94/11 PS Ringus, District Sikar, Rajasthan was lodged subsequent to the apprehension of the accused persons, copy of the same is Ex. PW2/A, this FIR also bears the date 21.04.2011. Whereas, in the charge the date of recovery of the case property from the accused persons is mentioned as 20.10.2011. The charge was framed against the accused persons on 29.01.2013. This discrepancy was not pointed out by the State Vs. Satish Kumar & Anr.
FIR No. 30/09PS: Dwarka North Page no. 9 of 13 accused persons, nor by the prosecution. In the charge, the place of recovery is mentioned as Sikar, Rajasthan. The specific place of recovery is not mentioned in the charge.
9. In view of the above, it is clear that in the charge the date of recovery of the case property is wrongly mentioned. The place of recovery of the case property is not exactly specified. The date, time and place of the commission of the offence are the main ingredients of charge.
10. As already observed above the error regarding the date of commission of offence, as stated in the charge, was not pointed out either by the prosecution or on behalf of the accused persons. Before proceeding further, the court has to examine the effect of this particular error. It is to be seen whether, due to the error, the accused persons were misled in there defence or any prejudice was caused to the accused persons.
Section 215 Cr.P.C states "No error is stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice".
FIR No. 30/09PS: Dwarka North Page no. 10 of 13 10.1 During SA both the accused persons stated that they were the
employees of one Dalbir. They used to drive the said car but they were not aware that the said car was stolen property. I have seen the cross-examination of the witnesses on behalf of the accused persons. In view of the answers given by the accused persons in their statement U/s 313 Cr.P.C and also the cross-examination of the PWs on behalf of the accused persons, it is clear that the accused persons were not misled in their defence. It is clear that the error regarding the date of recovery of the case property as mentioned in the charge has not caused any failure of justice or prejudice to the accused persons.
11. PW2 and PW9 deposed that the stolen property was recovered from the possession of the accused persons. The proceeding regarding the recovery of case property at Sikar, Rajasthan are Ex. PW9/A, PW9/B, PW9/C and PW9/D. The PW2 and PW9 were cross-examined on behalf of the accused persons. In the cross- examination of PW2 and PW9 there is nothing to shake their credit. PW2 and PW9 have no reason to depose falsely against the accused persons. The proceedings Ex. PW9/A to PW9/D were conducted promptly on the date of recovery itself.
12. In the SA U/s 313 Cr.P.C both the accused persons admitted that State Vs. Satish Kumar & Anr.
FIR No. 30/09PS: Dwarka North Page no. 11 of 13 the stolen property was recovered from them. In view of the testimony of PW2- PW9 and the answers given by the accused persons in their statement U/s 313 Cr.P.C, it is clearly established that the stolen property was found in the possession of the accused persons.
13. The accused persons claimed that they had no knowledge that the case property i.e the said car was stolen property. They further claimed that they were only working as drivers for the "Owner" of the said car. This fact is exclusively in the knowledge of the accused persons. The prosecution has discharged the initial burden of proving that the stolen case property was recovered from the possession of the accused persons.
14. In view of section 106 of the Indian Evidence Act the burden is shifted upon the accused persons to show that they were holding the stolen case property on behalf of somebody else. During cross examination, PW8 stated that the accused persons did not disclose the address of the said person for whom they were working. Due to this reason, no inquiry / investigation could be conducted regarding the said employer of the accused persons. This also further indicates that the accused persons failed to discharge the burden in terms of section 106 of the Indian Evidence Act.
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15. In view of the above discussion, the prosecution has proved its case beyond reasonable doubt.
Both the accused persons are held guilty and convicted for the offence punishable U/s 411/34 IPC.
Put up on 30.08.2016 for arguments on sentence.
Pronounced in the Open Court (RAJINDER SINGH) on this 12th day of August, 2016 MM-06: Dwarka : Delhi State Vs. Satish Kumar & Anr.
FIR No. 30/09PS: Dwarka North Page no. 13 of 13