Delhi District Court
3.Title State vs . Tajuddin on 25 July, 2011
IN THE COURT OF Sh SUNIL KUMAR SHARMA : METROPOLITAN
MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 47/11
2.Unique Case ID No. Not alloted.
3.Title State Vs. Tajuddin
3(A).Name of complainant Ambika Singh s/o Sh Fikira Singh
r/o G99, Prem Nagar, 70 foot Road, Nangloi,
Delhi.
3(B).Name of accused Tajuddin s/o Sirajuddin
r/o C257, Gali No. 3, Bank Colony, Delhi.
4.Date of institution of challan 31.03.2011
5.Date of Reserving judgment Not reserved
6.Date of pronouncement 25.07.2011
7.Date of commission of offence 01.03.2011
8.Offence complained of Under Section 379/411IPC
9.Offence charged with Under Section 379/411 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Accused convicted U/sec 379 IPC
12. Date of receiving of judicial file in 31.03.2011
this court
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The case of the prosecution in brief is that on 01.03.2011 at about 03:30 PM from A9, DSIBC Udyog Nagar Delhi, accused committed theft of cable wire 2515 meter belonging to the complainant Ambika Singh without his consent and on 02.03.2011 one bundle of stolen cable wire was got recovered by the accused from near the room of the stair cases of H. No. C257, Gali No.3, Bank Colony, which was seized vide seizure memo mark A, therefore the accused has dishonestly retained the same knowing or having reason to believe the same to be stolen property.
2. Accordingly, the charge sheet was filed before this court and cognizance of the offence U/sec 379/411 IPC was taken by the court on 31.03.2011. Copies of the charge sheet alongwith relevant documents were supplied to the accused in compliance of the mandate of section 207 cr.p.c and on the basis of the material on record on 13.04.2011, charge u/s 379 IPC and in the alternative u/sec 411 IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
3. The prosecution in order to prove its case against the accused persons has examined seven witnesses.
1. PWAmbika Singh, complainant himself.
2. PW2 Subhash Chand who is owner of factory
3. PW3 Mohd. Sahid
4. PW4 Mohd. Ramjani who is owner of the vehicle.
5. PW5 IO SI Shyo Ram Singh who is investigating officer.
6. PW6 Devender Nain, Ld. MM Tis Hazari Courts, Delhi.
7. ASI Janglesh who is duty officer.
PW1 Ambika Singh deposed that he has been working with EM ESS Electricals having factory at A9 DSIDC industrial complex Rohtak Road Delhi for the last 26 years. On 01.03.2011 his employer instructed him for booking the cable wire at New Delhi Railway Station and accordingly at about 03.30 PM he hired a TSR no. DL1RL4870 being driven by accused Tazuddin, and he had kept cable wire 25,15 meter in 3 sacks inside the TSR and thereafter he went inside the factory of his employer for taking the bill of the wire and when he returned back within 5 minutes he found the TSR missing including the cable wire and three bags. He searched for the accused but in vain and he immediately informed his employer who made a call to the police and IO recorded his statement Ex. PW1/A and the present case registered. He also produced the bill of the cable wire which is Ex. PX. During investigation he participated in the judicial TIP and during TIP he identified accused Tazuddin being the person who was the driver of the TSR and committed theft of cable wire. He also identified the case property Ex P1.
PW2 Subhash Chand deposed that he is the owner of M/S EM ESS Electricals having factory at A9 DSIDC industrial complex Rohtak Road Delhi for the last 34 years. On 01.03.2011, he instructed his employee Ambika Singh for booking the cable wire at New Delhi Railway Station and accordingly at about 03.30 PM his employer has hired a TSR no. DL1RL4870 and his employee had kept cable wire 25,15 meter in 3 sacks inside the TSR and thereafter he came inside the factory for taking the bill of the wire and when he returned back within 5 minutes he found the TSR missing including the cable wire and three bags and accused. His employee search for the accused but in vain and he immediately informed him about the occurrence and he made a call at no. 100 to the police and IO recorded the statement of his employee and police got the present case registered. They also produced the bill the cable wire which is Ex. PX. He also identified the case property Ex P1.
PW3 Mohd. Sahid deposed that he is in the business of letting of TSR. In the year 2009, he purchased DL1RL4870 from Sabbir Hussain s/o Shokat Hussain. On 01.03.2011, he hired the TSR to accused Tajuddin, on a daily rent of Rs 200/. During investigating he produced TSR as well as accused to the IO and later on he took the TSR on superdari vide superdarinam Ex PX and he brought the TSR which IO seized vide seizure memo Ex PW 1/A and the TSR is exhibited as Ex P1.
PW4 Mohd. Ramjani Khan deposed that he is the registered owner of TSR bearing registration No. DL1RL4870. At the relevant time accused Tajuddin was driving the same TSR as a driver. Later on he got the said TSR on released superdari by the order of Hon'ble court dated 15.04.2011 vide superdarinama which is EX. PW4/A. He has brought the same TSR in the court which is parked in the parking of the court same is Ex. P2.
PW5 IO SI Shyo Ram Singh deposed that on On 01.03.2011 he was posted at PS Mian Wali Nagar as a SubInspector. On that day on receipt of DD no. 23A which is Ex. PW5/A, he reached at A9, DSIDC Udhyog Nagar Delhi, where he came to know that the complainant has left the factory and complainant could not met him, therefore the said DD entry was kept pending. On 02.03.2011 he again reached at the A9 DSIDC Udhyog Nagar along with HC Rajbir Singh, where complainant Ambika Singh met them and he recorded statement of complainant Ambika Singh and he prepared rukka which is Ex. PW5/B at the spot. Then he returned back to the PS and got registered FIR and again reached at the spot along with HC Rajbir Singh. He prepared site plan at the instance of the complainant which is Ex. PW5/C. He also recorded statement of factory owner Subhash Chand. Thereafter, he started searching of alleged TSR bearing No. DL1RL4870. During investigation he came to know that said TSR belongs to a person namely Sahid. Then he contacted Sahid and Sahid told him that accused Tajuddin was driving my said TSR. After sometime he had received a call of Sahid and he told him that he had apprehended accused Tajuddin, and now accused Tajuddin is sitting in PS Nand Nagri. Then they rushed to PS Nand Nagri, where Sahid handed over accused Tajuddin to him. After interrogation he arrested the accused Tajuddin vide arrest memo which is Ex. PW5/D. Personal search of the accused was carried out vide personal search memo Ex. PW5/E. During interrogation accused Tajudding made disclosure and he recorded his disclosure statement Ex. PW5/F. In the pursuance of the disclosure statement of the accused he got recovered one bundle stolen cable wire from his residence C257 Gali No. 3 Bank colony Harsh Vihar on the pointing out of the accused Tajuddin. Entire recovered case property was taken into possession vide seizure memo Ex. PW5/G after sealing the same with the seal of SR. Thereafter, they returned back at PS along with accused and case property and case property was deposited in malkhana. Thereafter, he took accused to the place of offence where accused pointed out place of offence from where he had stolen cable wires and in this respect he prepared pointing out memo Ex. PW5/H. Thereafter, he searched remaining stolen wire from new Seemapuri Scrap market. On next date Mohd Sahid produced alleged TSR in PS and same was taken into police possession vide seizure memo Ex. PW4/A. He got conducted judicial TIP of the accused on 05.03.2011.
PW6 Devender Nain, Ld. MM deposed that on On 05.03.2011 he was posted as MM at Tis Hazari Court. An application for TIP of accused Tajuddin was marked to him by Ld. Link MM and he fixed the TIP for 05.03.2011. Accordingly, he conducted the TIP proceedings at Tihar Jail conducted and the proceedings is Ex. PW6/A. During TIP complainant Ambika Singh has correctly identified the accused Tajuddin. Upon application Ex. PW6/B the copy of the proceeding was also allowed to be given to the IO. IO sealed the proceedings with his seal and the sealed envelop was sent to concerned court through Ld. CMM.
PW7 ASI Janglesh deposed that on On 02.03.2011 he was posted at PS Mian Wali Nagar and was on duty as DO having duty hours 04:00 PM to 12:00 midnight . On that day he received a rukka produced by SI Shyo Ram Singh. On the basis of rukka he went to computer room and computer operator recorded FIR No 47/2011. The computerized copy of the same is Ex PW 7/A, and he also made endorsement on rukka in his own handwriting which is Ex PW 7/B and handed over a copy of FIR and original rukka to Ct. Dariao Singh for handing over the same to the SI Shyo Ram Singh (OSR).
4. No other Prosecution Witnesses were examined. Thereafter, the prosecution Evidence was closed. Accused was examined u/s 313 CrPC. Wherein the accused denied the case of the prosecution and also submits that he is innocent persons and has been falsely implicated in this case and all the prosecution witnesses are also deposing falsely. However, submits that he does not want to lead any evidence in his defence.
5. I have heard the Ld. APP for the state, Ld. Legal Aid counsel for the accused person and carefully perused and considered the entire material available on record. The offence of the theft is defined u/sec 378 IPC and the punishment for this offence is provided u/sec 379 IPC. To bring home the guilty of the accused for the offence of theft prosecution has to establish the following ingredients of the offence
(a) A person moves any movable property.
(b) Such person intends to take the property dishonestly.
(c) The property is moved out of the possession of any person.
(d) The moving is in order to such taking and must be accompanied with dishonest intention.
(e) The person out of whose possession, property is moved has not consented. The stolen property is defined in section 410 IPC as follows:-
(a) Property is stolen if -
(i) possession thereof has been transferred by theft, extortion or robbery, or
(ii) it is property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed.
(b) it is immaterial whether the transfer has been made or the misappropriation or breach of trust committed within or without India.
(c) But if such property subsequently comes into possession of a person legally entitled to its possession then it ceases to be a stolen property.
And the effect of dishonestly receiving the stolen property is laid down in section 411 IPC.
Essential Ingredients of U/sec 411 IPC.
(a) A person dishonestly--
(i) receives or
(ii) retains any stolen property.
(b) Such person knows or has the reasons to believe the same to be stolen property.
6. Ld. Legal aid counsel for the accused has argued that the statement made by the prosecution witnesses are not trustworthy and nothing has been recovered from the possession of the accused and in fact the recovery is planted upon the accused. On the other hand Ld. APP has argued that in view of the testimony of the prosecution witnesses accused is liable for conviction.
7. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under: " In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
8. So far as, the submission of Ld. Legal aid counsel that the statement made by the PW1 that is of complainant Ambika Singh is not trustworthy and not safe to be believed is concerned, the same are liable to be discarded specially in view of the testimony of PW1 Ambika Singh and other witnesses. The PW 1 Ambika Singh has not only deposed about the manner in which accused committed theft but also the identified the accused in judicial TIP as well as before the court during his testimony. As per the testimony of PW1 he has been working with EM ESS Electricals having factory at A9 DSIDC industrial complex Rohtak Road Delhi for the last 26 years. On 01.03.2011 his employer instructed him for booking the cable wire at New Delhi Railway Station and accordingly at about 03.30 PM he hired a TSR no. DL1RL4870 being driven by accused Tazuddin, and he had kept cable wire 25,15 meter in 3 sacks inside the TSR and thereafter he went inside the factory of his employer for taking the bill of the wire and when he returned back within 5 minutes he found the TSR missing including the cable wire and three bags. He searched for the accused but in vain and he immediately informed his employer who made a call to the police and IO recorded his statement Ex. PW1/A and police got the present case registered. He also produced the bill of the cable wire which is Ex. PX. During investigation he participated in the judicial TIP and during TIP he identified accused Tazuddin being the person who was the driver of the TSR and committed theft of cable wire. He also identified the case property Ex P1.
PW1 has been cross examined by Ld. Legal aid counsel but nothing favorable to the defence has come out in his cross examination. No suggestion was put to the witness that before TIP the accused was ever shown to him. In my considered view there is nothing on record to disbelieve the testimony of PW1 Ambika Singh and even otherwise the testimony made by PW1 Ambika Singh is trustworthy.
9. In this regard the law is well settled to the effect as held in "SUKHDEV YADAV & ORS VS STATE OF BIHAR" (2001)8 SCC 186 that " once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy it can not be discarded meraly on the ground of presence of minor variation in evidence. When the witnesses are examined after a long gap minor contradiction commission and discrepancies are bond to occur in the testimony of witness.
10. Further, in judgment titled as Leela Ram vs State of Haryana (1999) 9 SCC 525 it is was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirely. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore, should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not be obliterate an otherwise acceptable evidence.
11. Here it is further observed that PW 1 Ambika Singh has duly proved the factum of theft of two bundle of cable and has also identified the case property as Ex P1.
12. Here it is further observed that by way of testimony of PW1 Mohd. Sahid and PW4 Mohd. Ramjani Khan it has duly been established that the TSR in question was in exclusive possession of accused Tajuddin on the day of occurrence.
13. Here it is further observed that as per the testimony of PW5 SI Shyo Ram Singh on 01.03.2011 on receipt of DD no. 23A Ex. PW5/A, he reached at A9, DSIDC Udhyog Nagar Delhi, where he came to know that the complainant has left the factory so complainant could not met him, therefore the said DD entry was kept pending. On 02.03.2011 he again reached at the A9 DSIDC Udhyog Nagar along with HC Rajbir Singh, where complainant Ambika Singh met them and he recorded statement of complainant Ambika Singh and he prepared rukka which is Ex. PW5/B at the spot. Then he returned back to the PS and got registered FIR and again reached at the spot along with HC Rajbir Singh. He prepared site plan at the instance of the complainant which is Ex. PW5/C. He also recorded statement of factory owner Subhash Chand. Thereafter, he started searching of alleged TSR bearing No. DL1RL4870. During investigation he came to know that said TSR belonging to a person namely Sahid. Then he made contact with Sahid and Sahid told him that accused Tajuddin was driving my said TSR. After sometime he had received a call of Sahid and he told him that he had apprehended accused Tajuddin, and now accused Tajuddin is sitting in PS Nand Nagri. Then they rushed to PS Nand Nagri, where Sahid handed over accused Tajuddin to him. After interrogation he arrested the accused Tajuddin vide arrest memo which is Ex. PW5/D. Personal search of the accused was carried out vide personal search memo Ex. PW5/E. During interrogation accused Tajudding made disclosure and he recorded his disclosure statement Ex. PW5/F. In the pursuance of the disclosure statement of the accused he got recovered one bundle stolen cable wire from his residence C257 Gali No. 3 Bank colony Harsh Vihar on the pointing out of the accused Tajuddin, case property was taken in to possession vide seizure memo Ex. PW5/G after sealing the same with the seal of SR. Thereafter, they returned back at PS along with accused and case property and case property was deposited in malkhana. Thereafter, he took accused at the place of offence where accused pointed out place of offence from where he had stolen cable wires and in this respect he prepared pointing out memo Ex. PW5/H. Thereafter, he searched remaining stolen wire from new Seemapuri Scrap market. On next date Mohd Sahid produced alleged TSR in PS and same was taken into police possession vide seizure memo Ex. PW4/A. He got conducted judicial TIP of the accused on 05.03.201.
PW5 has been cross examined by Ld. Legal aid counsel but nothing favorable to the defence has come out in his cross examination. No suggestion was put to the witness that before TIP the accused was ever shown to PW1 Ambika Singh. In my considered view there is nothing on record to disbelieve the testimony of PW5 and even otherwise the testimony made by PW5 is trustworthy.
14. Here it is further observed that PW6 Sh Devender Nain, Ld. MM has duly deposed about the TIP proceedings and no cross examination has been offered to this PW and PW7 ASI Janglesh has duly deposed about the recoding of the FIR Ex PW 7/A.
15. One of the argument raised by Ld. Defence counsel is that there is no eye witness who had seen the accused committing theft. But in my considered view the arguments are not tenable in view of the testimonies of the prosecution witnesses coupled with section 8 of the Indian Evidence Act wherein the motive preparation and previous or subsequent conduct of a person is also relevant.
16. In view of the above discussion, I am of the considered opinion that prosecution has been able to prove its case beyond the shadow of reasonable doubts to the effect that on 01.03.2011 at about 03:30 PM from A9, DSIBC Udyog Nagar Delhi, accused committed theft 2515 Meter cable wire belonging to the complainant Ambika Singh without his consent.
Accordingly accused Tajuddin stands convicted for the offence U/sec 379 IPC only as the accused himself is the thief hence he can not be termed as receiver of the stolen property.
Be heard separately on the point /quantum of sentence.
Announced in the (Sunil Kumar Sharma)
Open Court on 25.07.2011 Metropolitan Magistrate
THC,Delhi
It is certified that this judgment contains 17 pages and each page bears my signature.
(Sunil Kumar Sharma) Metropolitan Magistrate THC,Delhi