Delhi District Court
State vs . Shanker Lal on 29 April, 2015
IN THE COURT OF MS.AMBIKA SINGH: METROPOLITAN
MAGISTRATE-06 CENTRAL DISTRICT, TIS HAZARI COURTS
FIR No. 184/01
State Vs. Shanker Lal
U/S: 379 IPC
PS: Civil Lines
CC No. 640/2C
U. ID No.0240IR0137962001
Date of Institution : 20.08.2001
Date of commission of offence : 02.06.2001
Name of the complainant :Mohd. Shakeel Ahmed
Name and address of accused : Shanker Lal Aggarwal, S/o
Late Sh. Dozi Lal, R/o FA-351,
Near Shiv Hanumaan Mandir,
New Seema Puri, Delhi.
Offence charged with : u/s 379 IPC
Plea of guilt : Pleaded not guilty
Final Order : Convicted u/s 411 IPC
Date on which order has been reserved : 29.04.2015
Date of pronouncement of Judgment : 29.04.2015
JUDGMENT
1 The Prosecution has filed the charge sheet against the accused Shanker Lal, S/o Sh. Dozi Lal, for the offence u/s 379 IPC. The case of the prosecution in brief is as under:-
FIR No.184/01 PS civil Lines State Vs Shanker Lal 1/12
2 That on 02.06.2001 at about 9.15 AM, at Outer Ring Road, U-tern, opposite Swami Narain Mandir, within the jurisdiction of PS Civil Lines, Delhi, the accused Shanker Lal picked up the bag of one person namely Shiv Naresh Gupta, who was in unconscious condition and thereby he committed an offence punishable u/s 379 IPC.
3 Upon completion of investigation the challan was filed in the court. The cognizance of the offence was taken and the accused was summoned for trial. Copies u/s 207 Cr.P.C were supplied to the accused. The charge was framed against the accused for the offence punishable u/s 379 IPC on 26.02.2004 to which he pleaded not guilty and claimed trial.
4 Prosecution in support of its case examined the following witnesses:-
5 PW-1 Dr. Vijay Khari, Medical Officer from Aruna Asaf Ali Hospital has deposed that he had examined one unknown patient, who was brought by Const. Parminder Kumar, with alleged history of patient found unconscious opposite Sanyas Ashram, Ring Road. On examination, patient was found unconscious, febrile was moving, all four limbs were responding to painful stimuli and he was sweating profusely. No fresh external injury was seen. Patient was declared unfit and was admitted in casualty. He proved the MLC No. 4000/01 of the patient as Exh. PW1/A. On the same day, in the evening at around 8.25 PM, the patient was declared fit by doctor Ramesh Chander, whose signatures he identified at point B. 6 PW-2 Sh.Shiv Narain Gupta has deposed that on 01.06.2001 he came from Attara, UP to Delhi to purchase some electric goods and was having FIR No.184/01 PS civil Lines State Vs Shanker Lal 2/12 Rs. 13,000/- in his pocket, out of which he had purchased some articles for approximately little less than Rs.5000/-. He was going towards Fatehpuri from the side of Chandni Chowk. He felt drowsiness and took a Rickshaw and he almost lost his consciousness. He was carrying one empty bag on his shoulder and was having Rs. 8140/- in his pocket. He regained his consciousness in the hospital and found that his money was stolen by someone. One of his friend namely Suresh, who was staying with him in Prabha Hotel, was called. Later on, he had received his money i.e Rs. 8140/- from the police station, which he got released on Superdari, after submitting the photocopies of the same on record as Exh. PW2/A. 7 PW-3 ASI Ram Manohar has deposed that on 02.06.2001, he was posted at PS Civil Lines and was working as duty officer. On that day, at about 9.15 PM, the complainant Sakeel Ahmed came to PS and gave a written complaint against Shanker Lal, on the basis of which, he had registered the FIR of the present case and proved the carbon copy of the same as Exh. PW3/A. He also made an endorsement on the complaint which is Exh. PW3/B and the copy of the FIR and original complaint were handed to SI S.L. Jain for investigation of the case.
8 PW-3A Const. Parvinder Singh (who is wrongly mentioned as PW3) has deposed that on 02.06.2001 he was posted at PS Civil Lines, Delhi. On that day, he alongwith HC Laxmi Narayan was on duty at Kudasiya Park on Yamuna Safai Abhiyan. At about 9-9.30 AM one Rickshaw puller Mohd. Shakil Ahmed came and he stated that one person came on his Rickshaw alongwith one handicapped person and that person dropped the handicapped person at Laxmi Narayan Mandir and had taken out his money.
FIR No.184/01 PS civil Lines State Vs Shanker Lal 3/12 Rickshaw puller also pointed out one person who had removed the money from the handicapped person. On pointing out, they chased and apprehended that person. On formal search they found Rs.8140/- from the right pocket of that person. He also identified the accused present in the Court that day. Thereafter, they went to the spot where the handicapped person was dropped by the accused. They found that the handicapped peson was in semi-conscious condition. They took that person to Aruna Asaf Ali Hospital, where the doctors opined that the patient was unfit for statement. Thereafte, SI Abhinandan Jain came to the hospital and obtained the MLC and reached at the spot. At about 12.00 Noon he reached at the spot and collected the MLC from the SI and went to hospital. Again doctors opined the patient unfit for statement. Thereafter, at about 1.00 PM SI came at the hospital and he alongwith SI went to PS. 9 PW-4 Const. Sunder Pal has deposed that on 02.06.2001 he was posted as Constable at P.S Civil Lines, Delhi. On that day, on receipt of DD No. 5A, he alongwith SI Abhinandan Jain went to Aruna Asaf Ali Hospital, where unknown person was found admitted, who was admitted by Const. Parminder from Swami Narayan Mandir. Thereafter, they all alongwith Const. Parminder went at Swami Narayan Mandir, where HC Laxmi Narayan and one Mohd. Shakkel met them. The accused was also found present there, who alongwith Rs.8140/- was handed over to the IO by HC Laxmi Narayan, which were recovered from the possession of accused during his formal search. IO had recorded the statement of Mohd. Shakeel Ahmed. The currency notes were converted into a pullada which was sealed with the seal of AJ and was seized vide seizure memo Exh PW4/A. Thereafter, IO prepared the rukka on the statement of Mohd. Shakeel Ahmed and the same FIR No.184/01 PS civil Lines State Vs Shanker Lal 4/12 was handed over to him for getting the case registered. He took the rukka to PS and got the case registered vide FIR No. 184/01 and thereafter, returned back to the spot and handed over the copy of FIR and rukka to the IO. His statement was recorded by the IO.
10 PW5 Inspector Abhinender Jain has deposed that on 02.06.2001 he was posted as SI at PS Civil Lines, Delhi. On that day, on receipt of DD No. 5A Exh. P5/A he alongwith Const. Sunderpal reached at Aruna Asaf Ali Hospital, where an unknown person was got admitted from Swami Narayan Mandir. He took the MLC of that unknown person and then reached at Swami Narayan Mandir, turning point, where HC Laxmi Narayan alongwith one Shakeel Ahmad and accused Shanker Lal, met him. He identified the accused, present in the Court that day. Then, he enquired the matter from HC Laxmi Narayan and recorded the statement of Mohd. Shakeel Ahmed Exh. PW5/B. The amount of Rs. 8140/- produced by HC Laxmi Narayan was taken into possession and were sealed with the seal of AJ. Seal after use was handed over to Ct. Sunderpal. Rukka Exh. PW5/C which was prepared on the basis of the complaint, was handed over to Const. Suner Pal for registration of the case. In the meantime, he prepared the site plan Exh. PW5/D at the instance of the complainant. After getting the case registered, Const. Sunderpal returned back at the spot and handed over the copy of FIR and rukka to him. Other articles of the complainant Md. Shakil were also seized vide seizure memo Ex. PW5/E. The accused was arrested vide arrest memo Exh. PW5/F while his personal search was conducted vide memo Ex. PW5/G. He recorded the statement of witnesses and returned to the PS alongwith the accused and the case property was deposited with MHC (M) concerned. Later on, he went back to the hospital where the FIR No.184/01 PS civil Lines State Vs Shanker Lal 5/12 complainant/patient was found fit to make the statement through MLC Exh. PW1/A. Accused was also got medically examined in Aruna Asaf Ali hospital on next day. Case property i.e currency notes were released on superdari through superdginama Ex. PW5/H. Before releasing the currency notes, he took the photographs of currency notes on 12 sheets which were taken on record as Exh. PW2/A collectively. He recorded the statement of witnesses and on completion of the investigation challan was filed against the accused.
11 After conclusion of prosecution evidence, statement of the accused u/s 313 r/w Section 281 Cr.PC was recorded by the court in which he has stated that he is innocent and has been falsely implicated in the present case . However, he has not led any evidence in his defence .
12 I have heard the arguments raised on behalf of the parties and have gone through the record carefully.
13 To bring home the guilt of the accused, the prosecution has examined PW-2 Sh. Shiv Narain Gupta and PW-3A Const. Parvinder Singh as the main witnesses to the present case.
14 PW2 Sh. Shiv Narain Gupta has deposed that on 0106.2001 he was going towards Fatehpuri from the side of Chandni Chowk. He felt drowsiness and took a Rickshaw and he almost lost his consciousness. He was carrying an empty bag and was having Rs. 8140/- in his purse. He regained his consciousness in the hospital. Later on, he received his money of Rs.8140/- from the police station.
FIR No.184/01 PS civil Lines State Vs Shanker Lal 6/12 15 PW3-A Const. Parvinder Singh has deposed that on 02.06.2001 at about 9/9.30 AM one rickshaw puller came to them and told that one person came on his rickshaw alongwith one handicapped person and that person dropped the handicapped person at Laxmi Narayan Mandir and had taken out his money. That Rickshaw puller also pointed out the person, who had removed the money from the handicapped person and on his pointing out, they chased that person and apprehended him and on his formal search, Rs. 8140/- were recovered from the right pocket of that person. He also identified the accused present in the Court that day.
16 It is argued by the Ld. defence counsel that the main ingredients of Section 379 IPC is not made out, as none has seen the accused actually committing the theft. The eye-witness Shakeel Ahmed remained unserved and was accordingly dropped from the array of prosecution witnesses vide order dated 11.09.2013. PW2 Sh. Shiv Narain Gupta has deposed that he had received his money of Rs. 8140/- from the police station and had got the same released on Superdari, after submitting the photocopies of the currency notes Exh. PW2/A collectively. PW3-A Const. Parminder has deposed empathetically on oath that on formal search, he found Rs.8140/- from the right pocket of the accused.
17 A person can be convicted for a similar offence though he is not charged for the same. Sec. 221 Cr.P.C clearly provides for such kind of cases, which for ready reference is reproduced herein below:-
Sec.221 Cr.P.C-- Where it is doubtful what offence has been committed (1) .....
(2) If in such a case the accuse is charged with one offence, FIR No.184/01 PS civil Lines State Vs Shanker Lal 7/12 and it appears in evidence tht he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
Illustrations:
(a) ......
(b) In the case mentioned, A is only charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such offence.
(c) ....... .
Sec. 411 IPC
411. Dishonestly receiving stolen property--
"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 years, or with fine, or with both".
18 The case in hand clearly covered under the illustration (b) of Sec. 221(2) Cr.p.c. The accused was found in possession of the stolen money belonging to the complainant i.e PW2 Sh. Shiv Narain Gupta. PW3-A Const. Parminder has deposed empathetically on oath that the accused was found in possession of Rs. 8140/- from his right hand side pocket. PW2 Sh. Shiv FIR No.184/01 PS civil Lines State Vs Shanker Lal 8/12 Narain Gupta has also deposed tht he was having Rs.8140/- and he got it released later on superdari.
19 It is argued by the Ld. defence counsel that PW3-A Const. Parminder is the police witness and there is no independent witness. However, in my opinion the testimony of a police witness is on the same footing as the testimony of any other witness, if it is clear, coherent and reliable. To address this issue, I would like to refer to the following judgment of the Supreme Court of India. In State Government of NCT of Delhi Vs. Sunil and another (2001) 1 SCC 652, it has been observed:
"In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find outa thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. I ti s a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-
FIR No.184/01 PS civil Lines State Vs Shanker Lal 9/12 skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But, recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. Vs. S. Sardar Ali & Ors. (1983 SC 1225). Following observations of Chinnappa Reddy J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of vehicle itself. Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any articles it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But, if no witness was present or if no person had agreed to affix his signature on the document, if is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating officer who FIR No.184/01 PS civil Lines State Vs Shanker Lal 10/12 deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
We fell that it is in archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But, it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
It is abundantly clear from the abovesaid judgment that there is no rule of law which enjoins upon the Court not to rely upon the testimony of the police officials in the absence of any independent/public witness. The only concern is to be more cautious and circumspect before placing any FIR No.184/01 PS civil Lines State Vs Shanker Lal 11/12 reliance on their testimonies. In other words, their testimony is to be subjected to careful scrutinization and assessment as compared to the testimony of any other public person. On the touchstone of these principles, I am of the considered opinion that in the instant case, there is no ground not to believe the testimonies of all the police personnels.
20 The testimony of PW3-A Const. Parminder Singh clearly shows that he stuck to his stand in the cross-examination and has denied the suggestion that he was not present at the spot or nothing has been recovered from the possession of the accused. He has further denied the suggestion that accused has falsely been implicated in the present case.
21 In his statement u/s 313 Cr.P.C the accused has taken a stand that it is a false case and all the witnesses are interested witnesses. However, no motive has been brought on record to prove as to why the PWs falsely implicate the accused.
22 In view of the abovesaid discussion, it is crystal clear that the prosecution has successfully proved that the accused was found in possession of the stolen money of Rs.8140/- belonging to the complainant i.e PW2 Sh. Shiv Narain Gupta, making the accused guilty for the offence punishable u/s 411 IPC. Accordingly, accused Shankar Lal is hereby convicted for the offence punishable u/s 411 IPC.
Let him be heard on the point of sentence.
Announced in the open court Today on 29.04.2015 (Ambika Singh) Metropolitan Magistrate-06(Central) Tis Hazari Courts, Delhi FIR No.184/01 PS civil Lines State Vs Shanker Lal 12/12 IN THE COURT OF MS.AMBIKA SINGH: METROPOLITAN MAGISTRATE-06 CENTRAL DISTRICT, TIS HAZARI COURTS DELHI FIR No. 184/01 State Vs. Shanker Lal U/S: 379 IPC PS: Civil Lines 18.05.2015 ORDER ON SENTENCE Present : Ld. APP for the state Accused Shankar Lal in person alongwith counsel The convict has been convicted for the offence punishable u/s 411 IPC vide judgment announced on 29.04.2015. Ld. APP for the state seeks for imposition of maximum imprisonment. On the contrary the convict prays for a lenient view. It is submitted by the convict that he is about 67 years of age and has to look after his three unmarried daughter, three sons and the wife. He also states that he belongs to a very poor family and all the persons in his family are dependent upon him as he is the sole bread earner of the family. Further, it is submitted that it is his first offence and he is also repenting for the act done.
I have given my thoughtful consideration to the pleas put forth on both sides.
In the facts and circumstances of the case, as the convict Shankar Lal has to look after his three unmarried daughter, three sons and the wife, who are totally dependent upon him, and they would come on road if the convict is sent to jail, which is not warranted in the interest of society. Also, as the convict has further submitted that now he wanted to improve in his life and is wishing to FIR No.184/01 PS civil Lines State Vs Shanker Lal 13/12 live a respectable life in the Society. He has already remained in J/C and that would not repeat the offence therefore, I sentence the convict Shankar Lal for the offence u/s 411 IPC for the period already undergone by him i.e. for a period of about one months and 8 days, with a fine of Rs.1000/-.
Fine paid.
A copy of the judgment dated 29.04.2015 and order on sentence be provided dasti to the convict, free of cost.
Announced in the open court, Today on 18.05.2015 (Ambika Singh) Metropolitan Magistrate -06 (Central) Tis Hazari Courts, Delhi.
FIR No.184/01 PS civil Lines State Vs Shanker Lal 14/12 FIR No.184/01 PS civil Lines State Vs Shanker Lal 15/12