Delhi District Court
State vs . Sarika Etc. on 12 March, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. SARIKA ETC.
FIR No. 5/2011
PS: MIANWALI NAGAR
U/S: 379/411/34 IPC
JUDGMENT
Sr. no. of the case : 62/2/11
Unique Case ID no. : 02401R0065732011
Date of commission of offence : 12.01.2011
Date of institution of the case : 11.02.2011
Name of the complainant : Smt. Alka Saini
Name of accused and address : 1). Sarika
W/o Sh. Rohit
R/o Vega bond, Delhi
(Since PO)
2). Priya
W/o Sh. Aman
R/o Vega Bond, Delhi
3). Priya
W/o Sh. Sunny
R/o Vega Bond, Delhi
4). Kusum
W/o Sh. Atish
R/o Vega Bond, Delhi
5). Surekha
W/o Sh. Sushil
R/o Vega Bond, Delhi
Offence complained of or proved : U/s 379/411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted U/s 379/34 IPC
Date reserved for judgment : 02.03.2015
Date of judgment : 12.03.2015
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. As per the prosecution, on 12.01.2011 at about 01:30 PM on board FIR No. 5/2011, PS Mianwali Nagar Page 1/12 a running bus route no.980, in between Peera Garhi Chowk to Mianwali Nagar on Rohtak Road, all the accused persons including accused Sarika (since declared Proclaimed Offender) in furtherance of their common intention committed theft of hand purse and mobile phone belonging to complainant Smt. Alka Saini and also committed theft of one small purse belonging to Smt. Surabhi W/o Umakant Mahaparta and one purse belonging to Smt. Rinku Saini. All the accused persons were apprehended on the spot and the stolen articles were recovered from their possession. One mobile phone was recovered from the possession of accused Kusum, one purse was recovered from the possession of accused Priya, another purse was recovered from the possession of accused Sarika (Since declared Proclaimed Offender) and one hand purse was recovered from the possession of accused Priya W/o Sunny. Accordingly, after the investigation, police filed the present charge sheet against the accused persons.
2. Complete set of copies were supplied to the accused persons. After hearing arguments, charges under Section 379/411/34 IPC were framed against all the accused persons by Ld. Predecessor of this Court to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of its case has examined following witnesses.
4. PW1 Smt. Alka Saini stated that on 12.01.2011 she alongwith her sister Rinku Saini boarded a DTC bus route no.980 from New Rajinder Nagar to Mundka. It is stated that when the bus reached near Peera Garhi Red Light all the accused persons boarded the bus and among the five accused, two were having minor children with them. The witness correctly identified all the accused persons. It is stated that she alongwith her sister was standing near the front gate of the bus and few other passengers were also standing with them. It is stated that all the accused persons stood around her and her sister and one of them at FIR No. 5/2011, PS Mianwali Nagar Page 2/12 about 01:30 PM put her hand inside her hand bag which she was carrying in her left arm and committed theft of her mobile phone make MTS and one small purse containing her credit card, metro card and Rs.200/- cash. It is stated that on noticing the theft, the witness raised noise. On that, one more lady passenger started raising noise and stated that her purse has also been picked/stolen. It is stated that thereafter they managed to stop the bus near PS Mianwali and the other passengers managed to apprehend all the five accused persons.
It is stated that thereafter they searched the accused persons. While they were so searching, the accused Sarika threw the stolen purse, however, the mobile phone was recovered from her possession. It is stated that the other passenger whose name was Surbhi also searched the accused persons and from the possession of accused Sarika her stolen purse was recovered. The name of the accused, who committed theft of her articles, was revealed as Surekha. It is stated that in the meantime the local police officials reached there and they took all the accused persons alongwith the stolen articles to PS. IO recorded the statement of this witness which is Ex.PW1/A. It is stated that on the basis of her statement, police got the present FIR registered and also seized her stolen articles vide seizure memo Ex.PW1/B. IO also seized the hand purse belonging to Smt. Surbhi containing some cash vide seizure memo Ex.PW1/C. IO also seized her purse containing Rs.200/-, credit card and metro card vide seizure memo Ex.PW1/D. It is stated that IO also seized the hand purse of Smt. Surbhi vide memo Ex.PW1/E. It is stated that IO also arrested accused persons namely Priya W/o Aman vide arrest memo Ex.PW1/F, Sulekha (Surekha) W/o Sushil vide arrest memo Ex.PW1/G, Priya W/o Sunny Vide arrest memo Ex.PW1/H, Kusum W/o Atish vide arrest memo Ex.PW1/I and Sarika W/o Mohit vide arrest memo Ex.PW1/J and also conducted their personal search vide memos Ex.PW1/K, Ex.PW1/L, Ex.PW1/M, Ex.PW1/N and Ex.PW1/O. It is stated by this witness that she also produced to the IO the photocopy Ex.P1 of her mobile phone bill in favour of her husband. It is stated that during investigation, she got FIR No. 5/2011, PS Mianwali Nagar Page 3/12 released her stolen articles on sueprdari. This witness produced and exhibited the case property brought with her i.e. one small/hand purse make Gucci as Ex.P2, metro card as Ex.P3, credit card as Ex.P4, mobile phone MTS as Ex.P5 and 2 notes of Rs.100/- as Ex.P6 (colly). In her cross-examination, she denied the suggestion that no such incident had ever taken place.
5. PW2 Smt. Rinku Saini also deposed on the same lines as her sister PW1 Smt. Alka Saini. During her cross-examination, she also denied the suggestion that no such incident had ever taken place or that accused persons have been falsely implicated.
6. PW3 Smt. Surbhi stated that on 12.01.2011 she boarded a DTC bus route no.980 from Kirti Nagar to Peera Garhi. It is stated that after boarding the bus she sat on the seat behind conductor's sea. When the bus approached Peera Garhi, she came and stood near the front gate and was waiting for her stop. It is stated that all the accused persons including accused Sarika (since PO and who was exempted on that day as her identity was not disputed) boarded the bus from one stop prior to Peera Garhi. Out of the five accused, two were having minor children with them and they all stood inside the bus while surrounding her and other passengers. This witness correctly identified all the accused persons present in the Court. It is stated that one more lady namely Alka alongwith her sister were standing near the front gate of the bus and few other passengers were also standing with them. It is stated that all the accused persons stood around them. At about 01:30 PM, one of the accused put her hand inside the purse of Alka and committed theft of her mobile phone make MTS and one small purse containing her credit card, metro card and Rs.200/- cash. It is stated that upon noticing theft, she (Alka) raised noise. It is stated that upon her noise, this witness noticed some movement around her bag which she was holding in her right arm and found two small purses were missing from her hand bag. It is stated that she also raised noise. Thereafter, they managed to stop the bus near PS Mianwali Nagar and the other passengers managed to apprehend all the five accused persons. It is FIR No. 5/2011, PS Mianwali Nagar Page 4/12 stated by her that thereafter they took search of the accused persons and while they were still searching the accused persons, accused Sarika (since PO) threw the stolen purse on the floor, however, a mobile phone was recovered from accused Sarika. It is stated that she also searched the accused persons and from the possession of accused Sarika her stolen purse was recovered. The name of the accused, who committed theft of her articles, was revealed as Surekha. It is stated that in the meantime the local police officials reached there and they took all the accused persons alongwith the stolen articles to PS, where IO recorded statement of Smt. Alka Saini as Ex.PW1/A. It is stated that on the basis of that, police got the present FIR registered and also seized the stolen articles vide seizure memo Ex.PW1/B and IO also seized the hand purse belonging to this witness containing some cash vide seizure memo Ex.PW1/C. IO also seized her purse containing Rs.200/-, credit card and metro card vide seizure memo Ex.PW1/D. It is stated that IO also seized her hand purse vide seizure memo Ex.PW1/E. It is stated that IO also arrested accused persons namely Priya W/o Aman vide arrest memo Ex.PW1/F, Sulekha (Surekha) W/o Sushil vide arrest memo Ex.PW1/G, Priya W/o Sunny Vide arrest memo Ex.PW1/H, Kusum W/o Atish vide arrest memo Ex.PW1/I and Sarika W/o Mohit vide arrest memo Ex.PW1/J and also conducted their personal search vide memos Ex.PW1/K, Ex.PW1/L, Ex.PW1/M, Ex.PW1/N and Ex.PW1/O. She identified the case property produced by the MHC(M) i.e. one blue colour cloth purse, on which "Sony Jewelers" is written containing note of Rs.10/- and one coin of one rupee. The same are exhibited as PX and one more purse on which words "Traders Assembly Jewellering" are written containing a note of Rs.10/-, a note of Rs.5/- and a newspaper cutting. The same is exhibited as PY. In her cross-examination, she denied the suggestion that no such incident had ever taken place. It is stated by her that she had handed over her DTC bus ticket to the IO. It is stated by her that her purses were not sealed in her presence.
7. PW4 Sh. Akshmadutt Sharma stated that on 12.01.2011 he was on FIR No. 5/2011, PS Mianwali Nagar Page 5/12 duty as Conductor on DTC Bus No.DL-1PBC-3129 route no.980 from Pragati Maidan to Nangloi and Ram Kumar was the driver over the bus. The bus started from its route from Pragati Maidan. About 01:30 PM when the bus reached at Peera Garhi red light, five to six ladies boarded the bus from one to two stand prior to Peera Garhi and when the bus reached at Peera Garhi red light, one lady passenger came to her and stated that her purse has been picked, upon this he immediately informed the driver and asked him to stop the bus near PS Mianwali Nagar. Thereafter, the police was called and the victims alongwith the offenders were handed over to police. Police took them to PS while giving instructions to them for taking the bus on their route. In his cross-examination, it is stated by him that when the passengers informed him about the theft nobody was allowed to deboard the bus and the bus was taken straight to PS Mianwali Nagar. PW5 Sh. Ram Kumar was the driver of DTC Bus No.DL-1PBC-3129 route no.980 and he also deposed on the same lines as PW4.
8. PW6 Deepak Jain stated that he is having a shop of sale of telephone instruments in the name of Room Communications at 2139A, Ganeshpura Road, Tri Nagar. After having seen the invoice dated 15.06.2010, it is stated by this witness that the same has been issued by him vide which he had sold one mobile instrument make Huawei C-2801 bearing IMEI No.805309B9 to one of his customer namely Hemant. He exhibited the copy of the same on judicial record as Ex.P1.
9. PW7 Hemant Kumar is the superdar as well as husband of complainant Smt. Alka Saini and he got released the articles i.e. one mobile phone make Huawei C-2801, one purse containing Rs.200/- and ICICI Bank Credit Card and Metro Smart Card on superdari vide superdarinama Ex.PW7/A. This witness exhibited the said articles as Ex.P1 to P6.
10. PW8 HC Naresh Kumar was the Duty Officer on 12.01.2011 and he exhibited on record copy of FIR as Ex.PW8/A (OSR) and endorsement on the rukka as Ex.PW8/B.
11. PW9 SI Praveen stated that on 12.01.2011 he was posted at PS FIR No. 5/2011, PS Mianwali Nagar Page 6/12 Mianwali Nagar. On that day he was on emergency duty and was present in the PS. It is stated that at about 02:00 PM Smt. Alka Saini visited PS alongwith two ladies whose names were discovered as Rinku Saini and Surbhi. All the three ladies produced five other women. This witness correctly identified all the accused persons except accused Sarika (who is PO). He recorded the statement of Alka Saini which is Ex.PW1/A, wherein she alleged that all the five women had committed theft of her mobile from her purse while she was traveling in the bus, she had also alleged that her purse and two purses of Surbhi were also stolen. It is stated that the complainant produced the stolen articles, which were recovered from the possession of accused persons as per her statement. It is stated that he checked the mobile Ex.P5 and seized the same vide seizure memo Ex.PW1/B after sealing the same with the seal of 'PKS'. It is stated that he had seized the stolen purses vide memos Ex.PW1/C, PW1/D and PW1/E after sealing the same similarly and separately, alongwith the purses the contents of the same were also recovered and seized with the respective purses. It is stated that the hand purse belonging to Surbhi was having Rs.11/- inside it and her other hand purse was found containing Rs.15/-, some documents and hairpin. It is stated that the hand purse make Gucci belonging to complainant Alka Saini contained Rs.200/-, ICICI Bank Credit Card and one Metro Smart Card. All the purses and the contents are Ex.P1 to P5 and PY. It is stated that he made endorsement on the complaint vide tehrir Ex.PW9/A and presented the same before Duty Officer for registration of the case. Accordingly, FIR Ex.PW8/A was registered. It is stated that after registration of the case he interrogated all the accused persons. It is stated that all of them were arrested vide arrest memos already Ex.PW1F to PW1/J and their personal search was conducted through Alka vide memo Ex.PW1/1L, PW1/L to PW1/O. It is stated that all the accused persons confessed their guilt. It is stated that he recorded statement of witnesses. It is stated that the case property was deposited in the Malkhana. It is stated that during the investigation he had collected photocopy of cash memo Ex.P1 in FIR No. 5/2011, PS Mianwali Nagar Page 7/12 respect of the recovered mobile phone. It is stated that during the pendency of trial, accused Sarika was declared PO. It is stated that after completion of investigation, he submitted final report through SHO.
12. No other witness was examined by the prosecution. Hence, PE was closed.
THE DEFENCE :
13. Statement of accused persons were recorded U/s 281 Cr.P.C r/w Section 313 Cr.P.C, wherein they pleaded their innocence and stated that they have been falsely implicated in the present case. It is stated by all of them that no recovery was effected from them and they are not connected with any other co-accused. However, they opted not to lead any defence evidence.
THE ARGUMENTS:
14. Ld. APP for state has argued that witnesses have supported the prosecution and their testimony have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offence under section 379/411/34 IPC are proved beyond reasonable doubt.
15. On the other hand, Ld. Counsel for accused persons have stated that there is no legally sustainable evidence against the accused persons.
THE FINDINGS:
Offence U/s 379/411 read with 34 IPC:
16. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
17. In order to bring home guilt of the accused persons for the offence under Section 379 IPC, the prosecution was required to prove following ingredients :-
a) That the accused persons had dishonestly taken the property.
b) That the property was movable.FIR No. 5/2011, PS Mianwali Nagar Page 8/12
c) That the property was taken out of the possession of another person/complainant.
d) That it was taken without the consent of that person/ complainant.
e) That there must be some moving of the property in order to accomplish the taking of it.
18. In order to bring home guilt of the accused persons for the offence under Section 411 IPC, the prosecution was required to prove following ingredient :-
a) The property was a stolen property.
b) The accused dishonestly received or retained the same.
c) The accused was having knowledge or having reason to believe the same to be a stolen property.
19. To fasten the liability on all the accomplices for the acts done by them in pursuance of their common intention, Section 34 IPC comes into play which is reproduced verbatim here:-
"When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
20. In the present matter PW1 Smt. Alka Saini, PW2 Smt. Rinku Saini and PW3 Smt. Surbhi are the material witnesses of the Prosecution. All of them have correctly identified all the accused persons. All of them have correctly identified their stolen properties. All the them have vividly described manner of offence and roles of the accused persons. Their testimony have remained unrebutted even during cross-examination. All of them have stated that they were standing near the front gate of the bus and were surrounded by the accused persons. First of all, PW1 Alka Saini noticed that one of the accused put her hand into her purse and had committed theft of her mobile phone make MTS and one small purse. It is specifically stated by PW1 Alka Saini that accused Surekha W/o Sushil (though wrongly written in her statement as Sulekha W/o Sushil) was the one who had taken out the articles from her bag. It is further stated by all the prosecution witnesses that when PW1 Alka FIR No. 5/2011, PS Mianwali Nagar Page 9/12 Saini raised hue and cry regarding the theft, PW3 Smt. Surbhi also checked her belongings and found two small purses stolen from her hand bag. On that, she also raised hue and cry. It is stated by PW4 and PW5 who were the conductor and driver of the bus that after raising of the hue and cry, they did not allow any of the passenger to deboard the bus and had taken them to PS Mianwali Nagar. It is stated by PW1, PW2 and PW3 that when they were searching the accused persons, accused Sarika had thrown a stolen purse on the floor, however, mobile phone was recovered from her. It is also stated by them that from the search of accused Sarika W/o Mohit, purse of Smt. Surbhi was recovered. It is also stated by all the eye witnesses that all the accused persons had boarded the bus together just before the Peera Garhi Chowk and they were together standing close to the victims. As per the seizure memo duly signed by PW1 Alka Saini, PW2 Rinku Saini and PW3 Surbhi, it is very much clear that mobile phone of MTS brand was recovered from accused Kusum W/o Atish, the purse of PW3 Surbhi bearing words "Sony Jewelers" recovered from accused Priya W/o Aman, the purse of PW1 Alka Saini of the brand Gucci was recovered from accused Sarika W/o Mohit (since PO) and the purse of PW3 Surbhi bearing words "Traders Assembly Jewelers" was recovered from accused Priya W/o Sunny.
21. Thus from the testimony of PW1, it is clear that accused Surekha had taken out purse and mobile from her bag and the articles were also stolen around the same time at the same place from the bag of PW3 Surbhi as well and these articles were recovered from remaining four accused persons, which shows the complicity of all the accused persons in the offence and the fact that they were acting in furtherance of their common intention.
22. PW1 and PW3 have identified their respective stolen articles i.e. a mobile phone and a purse (make Gucci) of PW1 and two purses of PW3 in the Court which were recovered from the accused persons. Thus it is proved that the articles were stolen property. It is to be noted that on raising the hue and cry by PW1, PW3 Surbhi checked her bag FIR No. 5/2011, PS Mianwali Nagar Page 10/12 and found two of her purses missing, immediately she also raised hue and cry and from the very same place within some moments, her two purses were recovered from accused Priya W/o Aman and accused Priya W/o Sunny. Hence, it is presumed that accused persons had committed the theft of her purses, reliance being placed on Section 114 Indian Evidence Act. Illustration (a) of the same states that "a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to the stolen, unless he can account for his possession". In the present case accused Priya W/o Anand and accused Priya W/o Sunny were standing in the same bus at the same place where the purses were stolen, hence, it will be presumed in the present case that they had committed theft of the same.
23. There are categorical statements made by PW1, PW2 and PW3 implicating the accused persons in present case. There is no reason or motive for PW1, PW2 and PW3 to falsely implicate the accused persons in the present case. The evidences of PW1, PW2 and PW3 remain unrebutted on all the material aspects. Their testimonies are natural and consistent and to the point. Further, nothing material could be extracted by the defence counsel even in their cross-examination.
24. In the present case testimonies of PW1, PW2 and PW3 have established the guilt of the accused persons beyond any reasonable doubt. This Court found the testimony of PW1, PW2 and PW3 absolutely credit worthy and truthful. Hence, on the basis of above stated evidence, in the considered opinion of this Court the prosecution has been able to prove on record beyond reasonable doubt that accused persons in furtherance of their common intention shared with accused Sarika (since PO) had committed theft in a running bus from the possession of PW1 and PW3. The stolen property belonging to PW1 and PW3 was recovered from the accused persons on the spot, hence, all the accused persons are liable to be convicted for commission of offence punishable under section 379 IPC read with Section 34 IPC. Since accused persons have been convicted for FIR No. 5/2011, PS Mianwali Nagar Page 11/12 committing offence U/s 379/34 IPC, hence, charges against them for offence U/s 411/34 IPC will not stand.
25. Thus, in the considered opinion of this Court, all the ingredients of Section 379 read with 34 IPC are satisfied. As such accused persons namely Priya W/o Sh. Aman, Priya W/o Sh. Sunny, Kusum W/o Sh. Atish and Surekha W/o Sh. Sushil are convicted for the offences Under Section 379 read with Section 34 IPC.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 12.03.2015 MM-04 (WEST)/DELHI
Containing 12 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 5/2011, PS Mianwali Nagar Page 12/12