Delhi District Court
State vs Azad @ Munim on 20 December, 2024
DLST010024962024
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT SAKET
COURTS, NEW DELHI
State Vs. Azad @ Munim
e-FIR No. 33384/2023
PS Tigri
JUDGEMENT
1. Sl. No. of the case : 190/2024
2. Date of institution of the case : 20.03.2024
3. Name of complainant : State
4. Date of commission of offence : Intervening night of 26.10.2023-
27.10.2023
5. Name of accused, parentage : Azad @ Munim S/o Sh. Ashraf,
R/o Village-Pinangwa, PS
Pinangwa, Dhana Road, Distt.
Nuh, Haryana
6. Offence complained of or proved : 379 r/w 75 IPC, alternatively
411/413 IPC
7. Plea of accused : Accused pleaded not
guilty
8. Final order : Convicted for 411/413 IPC
9. Date on which order was reserved : 16.12.2024
10. Date of pronouncement : 20.12.2024
FIR No.33384/2024 State Vs. Azad @ Munim Page No. 1/23
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.20
18:56:20
+0530
1. Proceedings herein got initiated after an e-FIR No. 033384 was lodged for theft of a TVS Apache motorcycle bearing registration no. DL 3SFH 4381 by Rajpal S/o Sh. Musadi Lal. As per the same, the vehicle was stolen from the place in front of H.No. A-40, Krishna Park, New Delhi. Same was marked for investigation to HC Sandeep Punia who went to the spot and after inspecting the same, found that there was no CCTV camera installed near the spot. No eye witness could be found. Thereafter, he recorded detailed statement of the complainant Rajpal. On 02.11.2023, ASI Pradeep Kumar gave information vide DD No. 82A, PS Tigri regarding a person having been apprehended with the stolen motorcycle. The motorcycle was allegedly found in the possession of accused Azad @ Munim who was chargesheeted after completion of investigation for commission of offences u/s 379/411 IPC.
2. Chargesheet was filed before Ld. Magistrate on 30.11.2023 who after considering the previous convictions of accused for the offences u/s 379/411 IPC in case FIR No. 94/21 and e-FIR No.024772/20, PS Sangam Vihar directed further investigation. Supplementary chargesheet was filed after further investigation wherein after verification of previous convictions of accused in aforementioned two FIRs, Section 413 IPC was also invoked. As section 413 IPC is exclusively triable by Sessions Court, so matter was committed u/s 209 Cr.P.C. which was received by way of assignment by this Court on 20.03.2024.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.20
18:56:34
+0530
FIR No.33384/2024 State Vs. Azad @ Munim Page No. 2/23
3. Charge for the offences u/s 379 r/w 75 IPC and alternatively, for the offences u/s 411/413 IPC was framed against the accused on 20.03.2024 to which he had pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined following six witnesses:-
S.No. Name of Documents proved Role
Witness
1. PW-1 Sh. His statement as Ex.PW1/A, site Complainant
Rajpal plan as Ex.PW1/B and
photographs of motorcycle as
Ex.P1 (colly, 4 in numbers)
2. PW-2 ASI Seizure memo of motorcycle He alongwith two
Pradeep bearing no. DL3SFH4381 as other police officials
Kumar Ex.PW2/A, seizure memo of keys had made the
as Ex.PW2/B, sketch memo of recovery and
two keys as Ex.PW2/C, arrest accused was
memo of accused as Ex.PW2/D, arrested in their his personal search memo as presence Ex.PW2/E, his disclosure statement as Ex.PW2/F, seizure memo of motorcycle bearing no.
DL3SER 9903 as Ex.PW2/G, pointing out memo as Ex.PW2/H and tools (having the shape of keys in the end) as Ex.P2
3. PW-3 Ct. - He alongwith two Suresh other police officials had made the recovery and accused was arrested in their FIR No.33384/2024 State Vs. Azad @ Munim Page No. 3/23 Digitally signed by SUNIL SUNIL GUPTA Date:
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presence
4. PW-4 Ct. - He alongwith two
Sanwata other police officials
Ram had made the
recovery and
accused was
arrested in their
presence
- IO
5. PW-5 HC
Sandeep
Poonia
Order of conviction of accused
dated 08.12.2021 in case FIR
No.94/21, PS Sangam Vihar as He being Asst.
Ahlmad in the Court
PW-6 Sh. Ex.PW6/A (colly, 2 pages)(OSR)
and order of conviction of of Sh. Sankalp
6. Rakesh
Kapoor, Ld. MM
Kumar accused dated 23.12.2021 in case produced the
e-FIR No.024772/20, PS Sangam requisite record
Vihar as Ex.PW6/B (colly, 2
pages) (OSR)
5. Accused admitted genuineness and factum of lodging GD No. 64A dated 02.11.2023 and GD No. 82A dated 02.11.2023 both pertaining to PS Tigri (without contents) vide statement dated 20.03.2024 u/s 294 Cr.P.C. Corresponding witnesses were accordingly dropped from list of witnesses.
6. After examination of prosecution witnesses, PE was closed on 03.06.2024 and matter was fixed for statement of accused u/s 313 Cr.P.C.
FIR No.33384/2024 State Vs. Azad @ Munim Page No. 4/23
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.20
18:56:49
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however, on the next date i.e. 16.07.2024, accused was absent. Thereafter, he did not appear for several dates and ultimately process u/s 82 Cr.P.C. was issued against him vide order dated 11.09.2024. It came on record on 12.11.2024 that accused might be lodged in Neemka Jail, Faridabad whereupon production warrant was issued against him for 18.11.2024 and he was produced from the jail through VC. On 21.11.2024, Ld. Addl. PP for State made a request for summoning Inspector Nitin Kumar Verma, Crime Branch for proving the e-FIR on record and said request was allowed u/s 348 BNSS. ASI Mukesh Kumar appeared on behalf of witness on next date, however the accused admitted the factum and registration of e-FIR u/s 294 Cr.P.C. vide his separate statement. ASI Mukesh Kumar was accordingly discharged unexamined. PE was closed and matter was fixed for S.A. on next date i.e., 29.11.2024.
7. Statement of the accused u/s 313 Cr.P.C. was recorded on 29.11.2024 wherein he pleaded his innocence. He stated as under:-
"I did not commit any theft. I have been falsely implicated in this case. This motorcycle was stolen by one Hoshiyar who is resident of my village and he was captured in a CCTV footage. One more boy was with him. He was also captured in the footage. There were old videos of mine with Hoshiyar. I was apprehended on the ground that I can identify the real culprit. Hoshiyar had sold the bike in a sum of Rs.15,000/- to one Azhar resident of Jamalgarh Village. The other boy with Hoshiyar was apprehended by police but he FIR No.33384/2024 State Vs. Azad @ Munim Page No. 5/23 Digitally signed by SUNIL SUNIL GUPTA Date:
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was let of after receiving Rs.15,000/- from him. Surpanch ki jimedari par us ladke ko chhoda tha. That boy got arranged the bike thereafter which was falsely planted on me. My bhanja Iklash was with me at the time of my arrest by police from Hodal."
8. Accused has examined one witness in his defence i.e., DW-1 Iklash. He desposed as under:-
"On 01.11.2023, I alongwith my maternal uncle Munim was going to village Falan Nagla from village Ali Meo on bike being driven by me. When we reached Hodal, Haryana, one Bolero vehicle came there. They were 4-5 persons in said vehicle and they got stopped our bike. The said person apprehended my maternal uncle Munim and took him away with them leaving behind me with the bike. On an inquiry, the said persons revealed to me that they were police officials from Delhi'" He was cross- examined by Ld. Addl. PP for State. DE was closed on 09.12.2024.
9. Arguments heard.
Digitally signedSUNIL by SUNIL GUPTA GUPTA Date:
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10. It has been submitted by Ld. Addl. PP for State that prosecution has proved its case against the accused beyond reasonable doubts. It has been submitted that the presence of police officials namely ASI Pradeep Kumar, Ct. Suresh and Ct. Sanwata Ram at the spot, when the recovery was made, stands proved from their testimonies as well as from GD No. 61A dated 02.11.2023 PS Tigri. It has been submitted that soon after the recovery, another GD No. 82A was lodged at PS Tigri. It has been submitted that the GDs are contemporaneous in nature and are sufficient to show that there is no false implication of the accused. It has been submitted that the theft of motorcycle recovered from the accused was duly proved by PW-1 Rajpal during his testimony before the Court. Also, two keys/tools used for breaking the locks of two wheelers were also recovered from the accused. It has been submitted that the recovery of a stolen motorcycle within a week of its theft from the possession of accused attracts presumption u/s 114A of Indian Evidence Act to the effect that either the accused had committed the theft or he had received the stolen property knowing it to be stolen. It has been submitted that the accused has failed to provide any explanation for his possession. It has been submitted that Ld. Defence Counsel in his cross-examination of the witnesses has laid emphasis on the fact that the police officials had not joined public witnesses in the investigation however it is settled law that non joining of public witnesses in itself was not a ground to doubt the case of prosecution. It has been submitted that prosecution has successfully proved previous convictions of the accused by way of testimony of PW-6. It has been submitted that the testimony of DW-1 Iklash is not convincing enough to FIR No.33384/2024 State Vs. Azad @ Munim Page No. 7/23 Digitally signed by SUNIL SUNIL GUPTA Date: GUPTA 2024.12.20 18:57:09 +0530 establish the defence of accused. He has prayed for conviction of accused. He has placed reliance on the following judgments:-
(1) Mohd. Iqbal Vs. State of Chhattisgarh, Crl. Appeal No. 858/2013 (Chhattisgarh High Court);
(2) Mohd. Musa Vs. State, Crl. Appeal No.271/2017 (Delhi High Court); (3) Anwar Vs. State, Crl. Appeal No. 925/2017 (Delhi High Court).
11. Per contra, it has been submitted by Ld. Defence Counsel that the case of prosecution was full of doubts. It has been submitted that as per PWs ASI Pradeep Kumar and Ct. Suresh, they both alongwith Ct. Sanwata Ram had apprehended the accused with the stolen motorcycle however in the cross- examination, Ct. Suresh stated that he alone had apprehended the accused. It has been submitted that the exact place of alleged recovery i.e., in front of which shop, same was effected is not clear. It has been submitted that the place of alleged recovery was admittedly dotted with shops on both the sides. It has been submitted that CCTV cameras would have been there in several such shops and the footage thereof could have been easily obtained by the IO but same has not been done for the reasons best known to him. It has been submitted that there is a material contradiction on the aspect of maintaining a register at the picket by the police officials pertaining to vehicles being stopped for checking. It has been submitted that all the witnesses have stated differently on this particular aspect. It has been submitted that IO admitted in his cross-examination that he did not ask anyone from the nearby shops to join the investigation. It has been submitted that the case of prosecution is doubtful FIR No.33384/2024 State Vs. Azad @ Munim Page No. 8/23 Digitally signed SUNIL by SUNIL GUPTA GUPTA 2024.12.20 Date:
18:57:17 +0530 in view of above particularly due to non joining of public persons in the investigation despite their availability. It has been submitted that accused was lifted from Hodal, Haryana by Delhi Police officials on 01.11.2023 and he was implicated in several false cases. It has been submitted that DW-1 Ikhlas has clearly deposed to that effect. He has prayed for acquittal of accused.
12. I have considered the submissions from both the sides alongwith record.
13. Record shows that accused herein has been charged with for the commission of offence U/s 379 r/w 75 IPC. He has been alternatively charged with for the commission of offences U/s 411/413 IPC.
14. The offence of theft is punishable U/s 379 IPC and same has been defined U/s 378 IPC. As regards the ingredients thereof, Hon'ble Apex Court in the judgment of K.N. Mehra Vs. State of Rajasthan AIR 1957 SC 369 held as under:-
"Commission of theft, therefore, consists in (1) moving a movable property of a person out of his possession without his consent, (2) the moving being in order to the taking of the property with a dishonest intention. Thus, (1) the absence - of the person's consent at the time of moving, and (2) the presence of dishonest intention in so taking and at the time, are the essential ingredients of the offence of theft."
14A. Section 411 IPC provides as under:
FIR No.33384/2024 State Vs. Azad @ Munim Page No. 9/23 Digitally signed by SUNIL SUNIL GUPTA
GUPTA Date:
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Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three year, or with fine, or with both.
14B. Stolen property has been defined in Section 410 IPC which provides as under:
Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
15. Now the evidence on record shall be analyzed to see as to whether the prosecution has proved the ingredients of any of aforementioned offences. The case of prosecution in brief is that a vehicle bearing number DL3SFH4381 make TVS Apache belonging to complainant Sh. Rajpal was stolen from outside the house of one Santaram situated at A-40, Krishna Park in the intervening night of 26.10.2023-27.10.2023 which was recovered from the possession of accused Azad @ Munim on 02.11.2023 at around 07:50 PM at anti-snatching picket where ASI Pradeep Kumar alongwith Ct. Sanwata Ram and Ct. Suresh was on duty. To prove the factum of theft of the vehicle, prosecution has examined PW-1 Sh. Rajpal who is the registered owner FIR No.33384/2024 State Vs. Azad @ Munim Page No. 10/23 Digitally signed by SUNIL SUNIL GUPTA Date: GUPTA 2024.12.20 18:57:39 +0530 thereof. In his testimony, he stated that his vehicle bearing registration number DL3SFH4381 was parked by him in the gali in front of house of his friend situated at A-40, Krishna Park at about 11:30 PM on 26.10.2023 and had went inside the house. He came to know in the morning at around 05:00 AM, when he came out, that his motorcycle was not there. He stated that he had searched his motorcycle but could not find the same whereupon he had got the e-FIR No.33384/2023 registered. e-FIR was admitted by the accused U/s 294 Cr.P.C. vide his statement dated 25.11.2024. PW-1 further stated that police officials had recorded his statement (Ex.PW-1/A) about the theft and had prepared the site plan. He also stated that after some days, he received call from the police official from PS Tigri regarding the recovery of his motorcycle whereupon he went to PS and identified the same. He also stated about the release of his motorocycle on superdaari. He identified the motorcycle from the photographs on record. Ld. Defence Counsel did not dispute the identity of the motorcycle and for that reason, its physical production was dispensed with. He was cross- examined by Ld. Defence Counsel wherein he stated that though the cameras were installed at the entry and exit point in the gali however same were not functional. He stated that he knew that the cameras were not functional since wires were detached therefrom. He stated that he had also inquired from the occupants of the house where the cameras were intalled and denied the suggestions that the cameras were functional or that he never inquired from the occupants of the house where the cameras were installed. He denied the suggestion that he was deposing falsely.
FIR No.33384/2024 State Vs. Azad @ Munim Page No. 11/23
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.20
18:57:46
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16. There is nothing in the testimony of the PW-1 including in his cross- examination so as to doubt the fact that the vehicle bearing registration number DL3SFH4381 was stolen on the intervening night of 26.10.2023
-27.10.2023. Moving further, to prove the recovery of the stolen motorcycle from the possession of accused Azad @ Munim, prosecution has examined three witnesses i.e., PW-2 ASI Pradeep Kumar, PW-3 Ct. Suresh and PW-4 Sanwata Ram. PW-2 ASI Pradeep Kumar stated before the Court on 08.05.2024 that on 02.11.2023, he alongwith constables Sanwata Ram and Suresh were on anti-snatching picket duty and they were checking the vehicles on road going towards Mehrauli-Badarpur road. They were present on Devli Road. He stated that at around 07:50 PM, one person came on Apache motorcycle without number plate and that after seeing the police officials he turned the motorcycle and tried to flee away. He stated that they overpowered him with motorcycle and on being asked about the documents of motorcycle, he was unable to produce the same. He stated that name of that person was revealed as Azad @ Munim (accused herein). He stated that he took search of accused and one key each was recovered from two pockets of lower which he was wearing and those keys were used for breaking the locks of the motorcycle. He stated that he checked on zip net on the basis of engine number and chasis number and found that motorcycle recovered from accused was stolen from the jurisdiction of PS Tigri whereupon he informed Duty Officer of PS Tigri regarding recovery of stolen motorcycle. He stated that after sometime, IO/HC Sandeep (PW-5) came at the spot and he handed over the keys, motorcycle and custody of accused to IO who inquired from the FIR No.33384/2024 State Vs. Azad @ Munim Page No. 12/23 Digitally signed by SUNIL SUNIL GUPTA Date:
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accused. He stated that on inquiry, accused revealed that he had stolen another motorcycle which was parked on empty land near Nahri Wala Baba Mandir. Admittedly, the alleged recovery of another motorcycle from the empty land is subject matter of another case bearing e-FIR No. 33636/2023, PS Tigri so deposition of witnesses on that aspect is not required to be discussed here. He further stated that the number of motorcycle recovered from the accused was DL3SFH4381 which was taken into possession and seized by IO. He also stated about other steps taken by IO during the course of investigation. PW-3 Ct. Suresh and PW-4 Ct. Sanwata Ram also deposed to the similar effect. All three of them were cross-examined by Ld. Defence Counsel at length, however nothing material came on record which could have been of any help to the case of defence.
17. It is to be noted here that before leaving the PS for picket duty, a DD entry vide GD No. 64A was lodged at PS Tigri at 17:04:59 on 02.11.2023 (Ex.PA-1). As per the same, HC Ramavtar and Ct. Lakaan had left the PS for duty at Holi Chowk whereas HC Manesh and Ct. Shailender had left for Tigri T-point. Similarly, ASI Pradeep Kumar, Ct. Sanwata Ram and Ct. Suresh had left for Devli Road for duty at anti-snatching picket. Ld. Defence Counsel has failed to bring on record anything including in their cross-examination to create the doubt on their presence at the spot. So the presence of these police officials at the spot where the recovery was allegedly effected from the accused stands proved. It is to be noted that another DD No. 82A (Ex.PA-2) was lodged at 20:22:21 at PS Tigri on the same day as per which ASI Pradeep FIR No.33384/2024 State Vs. Azad @ Munim Page No. 13/23 Digitally signed SUNIL by SUNIL GUPTA GUPTA 2024.12.20 Date:
18:58:00 +0530 Kumar had informed the duty officer by telephone that one person had been apprehended with motorcycle which was stolen in e-FIR No.33384/2023, PS Tigri. As per PW-2 ASI Pradeep Kumar, accused had come with stolen motorcycle near the place where they were performing duty at anti-snatching picket at around 07:50 PM. PW-3 and PW-4 have mentioned that time as at around 07:45 PM. So the GD No. 82A at 08:22 PM corroborates the case of prosecution to the effect that the accused was apprehended with the stolen motorcycle by these three police officials.
18. Ld. Defence Counsel has tried to create doubt on the case of prosecution on several grounds. One of the ground taken by him is that the exact spot of alleged recovery i.e., in front of which shop the recovery was effected, is not clear. Ld. Defence Counsel has also raised doubt on the case of prosecution on the ground that no public witness was joined in the investigation.
19. It is correct that it is not clear from record as to in front of which shop, the stolen vehicle was recovered from the possession of accused however that in itself was not sufficient doubt the case of prosecution when the witnesses have deposed that the anti-snatching picket was there on the Devli Road on the side going towards Mehrauli-Badarpur Road. The location of recovery witnesses has been corroborated by GD No. 64A(Ex.PA-1) on record. I am unable to agree with the submissions of Ld. Defence Counsel on the aspect that case of prosecution was doubtful due to absence of independent public FIR No.33384/2024 State Vs. Azad @ Munim Page No. 14/23 Digitally signed by SUNIL SUNIL GUPTA Date:
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witnesses. The law is well settled in this regard. There is no rule of law that requires the Court to view the testimony of the police officials with any suspicion. The police officials are competent witnesses and their testimonies stand on the same footing as that of any other witness. Their evidence cannot be thrown away merely on the ground that they happen to be a part of investigating agency. It is the quality of testimony of witnesses that is material for decision of a case and not the quantity (section 139 Indian Evidence Act provides to the same effect). Conviction can be based even on the sole testimony of a witness if he is reliable, trustworthy and truthful. No doubt, the joining of public persons would have helped the prosecution case, but mere absence of the same would not demolish the prosecution case altogether. In Karamjit Singh V. State AIR 2003 SC 1311, the Hon'ble Supreme Court has held that:-
"The testimony of the police personal should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without goods grounds".
19A. The Apex Court reiterated the above position in a later Judgment titled as Girja Prasad v. State of MP AIR 2007 SC 3106 and held as under:-
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness FIR No.33384/2024 State Vs. Azad @ Munim Page No. 15/23 Digitally signed by SUNIL SUNIL GUPTA Date:
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and trustworthiness. It is quite possible that in a given case, a Court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material participated by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
20. Thus, merely because the present case is based only on the testimonies of police officials, no infirmity can be attributed to the case so as to attach falsity to the entire version.
21. It is correct that there is no CCTV footage of the alleged recovery on record. IO/PW-5 HC Sandeep stated in his cross-examination that CCTV cameras installed by Delhi Govt. were there near the spot, however, same were not in working condition. He stated that he came to know this fact after checking through the app by which police can access the footage of those FIR No.33384/2024 State Vs. Azad @ Munim Page No. 16/23 Digitally signed by SUNIL SUNIL GUPTA Date:
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cameras. He also stated that he did not obtain CCTV footage from the cameras installed in the nearby shops. Ld. Defence Counsel has stated that this fact makes the case of prosecution highly doubtful. It is to be noted that there is nothing in law which mandates that an offence can be proved only if the CCTV footage thereof is available on record. Though, investigating agency should make sincere efforts to obtain CCTV footage of an incident to make the case more reliable still the absence thereof in itself will not make the story of prosecution doubtful.
22. It is correct that PW-2 ASI Pradeep Kumar stated in cross-examination that they used to maintain the record of vehicles stopped for checking by them at the picket and that he did not hand over any such record pertaining to that day to IO. Similarly, PW-3 Ct. Suresh stated on this aspect that record of all the people and vehicles stopped for checking at the picket is maintained and he was unable to recollect as to whether the photo of picket was sent to senior officers on that day. PW-4 Ct. Sanwata Ram on the other hand stated on this aspect that no record of people stopped for checking at the picket was maintained. Though, there is apparent contradiction on this aspect in the testimonies of three recovery witnesses, however, same does not go to the root of the case of prosecution. The alleged contradiction as to whether Ct. Suresh alone had apprehended the accused or all three recovery witnesses together had so apprehended him, is also not of much value for this reason. As held by Hon'ble Apex Court in Narender Kumar Vs. State (NCT of Delhi), Crl. Appeal 2066-67/2009, minor contradictions or insignificant discrepancies FIR No.33384/2024 State Vs. Azad @ Munim Page No. 17/23 Digitally signed by SUNIL SUNIL GUPTA Date:
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should not be a ground for throwing out an otherwise reliable prosecution case.
23. Moving further, accused stated in his statement u/s 313 Cr.P.C. that the motorcycle in question was stolen by one Hoshiyar (resident of his village) who was captured in the CCTV footage. He also stated that real culprits were let go by the police and the stolen motorcycle was falsely planted on him. He also stated that his Bhanja Ikhlas was with him when he was arrested by police from Hodal. Sh. Ikhlas was examined as a defence witness who stated that on 01.11.2023, he alongwith his maternal uncle Munim (accused herein) was going to village Falan Nangla from village Ali Meo on bike being driven by him. He further stated that when he reached Hodal, Haryana, one Bolero vehicle came there. There were 4-5 persons in that vehicle who stopped their bike and took away his uncle after apprehending him and leaving behind him with the bike. He also stated that on inquiry, those persons revealed to him that they were police officials from Delhi. In his cross-examination, he admitted that he did not make any complaint to any authority regarding the incident. In case, there was any CCTV footage of the incident capturing another person committing the offence of theft as stated by accused in his statement u/s 313 Cr.P.C., defence could have brought the same on record. It is also not clear as to why no complaint was made to local police, if the accused was in fact illegally apprehended from Hodal, Haryana. So, the defence taken by accused is not inspiring confidence and is accordingly rejected.
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GUPTA Date:
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24. Considering the above discussion, this Court is satisfied that the prosecution has successfully proved the recovery of stolen motorcycle bearing no. DL 3SFH 4381 from the possession of accused on 02.11.2023 at around 07:45 pm at anti-snatching picket, Devli Road, Delhi. Now the question is as to what offence is made out in these facts. As per Illustration(a) to Section 114, Indian Evidence Act, the Court may presume that a man in whose possession stolen goods are found soon after the theft, is either the thief or has received the goods knowing them to be stolen unless he can account for his possession. There is no explanantion from accused on record regarding the possession of stolen motorcycle bearing registration no. DL 3SFH 4381. Accused has simply denied the possession itself which is not believeable for the reasons mentioned earlier. Having said that, it is to be noted that there is admittedly no eye witness to the offence of theft of vehicle in question. There is nothing else on record to suggest that the theft was committed by accused. However, as the vehicle was recovered within a week of its theft from the possession of accused without explanation, it can be safely held that he had received the same knowing it to be stolen property. So, the ingredients of offence u/s 411 IPC stand proved against him.
25. Accused has also been charged with commission of offence u/s 413 IPC which provides as under:-
" 413 .- Habitually dealing in stolen property.- Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment for life, or with imprisonment of either description for a FIR No.33384/2024 State Vs. Azad @ Munim Page No. 19/23 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.12.20 18:59:12 +0530 term which may extend to ten years, and shall also be liable to fine."
26. Hon'ble Delhi High Court in Ajay Sethi Vs. State, Crl. Appeal No. 788/2017 had the occasion to discuss the ingredients thereof. In that case, Division Bench of Hon'ble Delhi High Court was hearing an appeal against conviction for the offence U/s 413 IPC. Hon'ble High Court relied upon the judgment of Hon'ble Rajasthan High Court in Banne Singh @ Pahalwan Vs. State, Crl. Appeal No. 1254/2008 wherein it was held as under:-
"49. Something more is required to establish that the offender is in the habit of dealing with or receiving stolen property. Since the offence under Section 413 IPC is inter-related with and is an aggravated form of Section 411 IPC, the State would have to prove and establish that the offender was convicted repeatedly, twice or more than twice, for offence under Section 411 IPC so as to establish beyond a reasonable doubt that he is in the habit of dealing with or receiving stolen property. Therefore, the conviction under Section 413 IPC is based on repeated convictions for offence under Section 411 IPC. Due to previous conviction, a punishment of different kind is prescribed in Section 413 IPC which the accused is required to undergo.
50. Hence, while prosecuting a person for offence under Section 413 IPC, the prosecution has to prove the following factors:
firstly, the property in question has been stolen from a place. Thus, the prosecution must bring the property within the ambit of Section 410 IPC within the definition of stolen property. Secondly, the offender has been dealing with or receiving stolen property.FIR No.33384/2024 State Vs. Azad @ Munim Page No. 20/23 Digitally signed by SUNIL
SUNIL GUPTA
Date:
GUPTA 2024.12.20
18:59:22
+0530
Thirdly, the offender knew or had a reason to believe the property to be stolen. Fourthly, he has been repeatedly convicted, i.e twice or more than twice, of offence under Section 411 IPC. It is only after the prosecution establishes these factors that the court would be legally justified in concluding that the offender is habitually dealing with or receiving stolen property and in imposing the punishment as prescribed by Section 413 IPC.
51. Admittedly, the appellant was involved in six different FIRs. Undoubtedly, so far the appellant has been convicted only by the learned trial court at Jaipur. He continues to face the trials in the other FIRs mentioned above. Hence, prior to his conviction by the learned Judge, the appellant was never convicted for offence under Section 411 IPC. Therefore, there is no evidence to infer that the appellant is in the habit of receiving stolen property. Hence, his conviction for offence under Section 413 IPC is clearly unjustified."
27. After relying on said judgment, Hon'ble Delhi High Court acquitted the appellant while holding as under:-
"12. There is no evidence on record to show that the appellant herein has been convicted in any of the FIRs and in fact stands discharged in FIR No.43/1990. In order to convict a person under Section 413 of the Indian Penal Code, the most important ingredient is that a person must be a habitual receiver of stolen goods. He must be a person, who is in the habit of receiving stolen properties and this Section cannot be applied in case of a single act. The element of repetition is mandatory. Mere pendency of FIRs or a person facing trial but in the absence of a conviction, a conviction under Section 413 of the Indian Penal Code would be unjustifiable.FIR No.33384/2024 State Vs. Azad @ Munim Page No. 21/23 Digitally signed
SUNIL by SUNIL GUPTA GUPTA Date:
2024.12.20 18:59:29 +0530
13. For the reasons stated above, we see no reason to take a different view to the view taken by the Rajasthan High Court. Accordingly, the appeal is allowed. The conviction under Section 413 of the Indian Penal Code is set aside and the appellant would stand convicted under Section 411 of the Indian Penal Code for which he has been sentenced to 03 years.
The order pertaining to fine shall remain unchanged."
28. In this case, it has come on record by way of testimony of PW-6 Rakesh Kumar that accused Azad @ Munim was convicted for the offences u/s 379/411 IPC vide order dated 08.12.2021 of Ld. MM-04 (South) in case FIR No. 94/21, PS Sangam Vihar. Similarly, he was convicted for same offences vide order dated 23.12.2021 of Ld. MM-04 (South) in case e-FIR No. 024772/2020, PS Sangam Vihar. Defence has not disputed these facts. It has been submitted by Ld. Defence Counsel that those orders were passed on voluntary plea of guilt of accused in peculiar circumstances of Covid-19 Pandemic as he wanted to come out of jail. This Court is unable to see any distinction in law between conviction on the basis of voluntary plea of guilt of an accused and conviction on the basis of judgment on merits. Considering the fact that accused was previously convicted in two different cases for the offence u/s 411 IPC, this Court is of the view that the ingredients of offence u/s 413 IPC also stand proved against him.
29. Considering the above discussion, it is held that prosecution has successfully proved the case for commission of offences u/s 411/413 IPC FIR No.33384/2024 State Vs. Azad @ Munim Page No. 22/23 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2024.12.20
18:59:39
+0530
against the accused Azad @ Munim beyond reasonable doubt. He is accordingly convicted for the said offences.
30. Order on sentence shall be passed after compliance as per the judgment of Hon'ble Delhi High Court in Karan Vs. State of NCT of Delhi, Crl. Appeal Digitally No. 352/2020. SUNIL signed by SUNIL GUPTA Date:
GUPTA 2024.12.20
18:59:46
+0530
Announced in the open (Sunil Gupta)
Court on 20.12.2024 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
FIR No.33384/2024 State Vs. Azad @ Munim Page No. 23/23