Delhi District Court
Abdul Majid Malik vs The State (Nct Of Delhi) on 20 March, 2017
IN THE COURT OF MS. ASHA MENON: DISTRICT & SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI (i)CISCA81072016 CNRDLST 010007172015 FIR No.318/01, PS Malviya Nagar u/s. 379/411/468/471/120B IPC Abdul Majid Malik Son of Mohd. Rustum Malik r/o Khan Colony, Chanpora, Srinagar, Kashmir (J&K) .....Appellant. Versus The State (NCT of Delhi) ......Respondent. Date of Institution: 20.08.2015 Judgment reserved on: 08.02.2017. Judgment pronounced on: 20.03.2017. (ii)CISCA81542016 CNRDLST 010018802015 FIR No.318/01, PS Malviya Nagar u/s. 379/411/468/471/120B IPC Mohd. Azad Son of Sh. Islamuddin, R/o 197, Islamabad, Meerut (U.P) .....Appellant. Versus The State ......Respondent. Date of Institution: 27.08.2015 Judgment reserved on: 08.02.2017. Judgment pronounced on:20.03.2017. Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 1 of 24 JUDGMENT
Five persons namely, Mohd. Azad, Abdul Majid Malik, Raj Kumar, Ramesh @ Jagan Nath and Saleem @ Gazi were arrested and chargesheeted and tried for having committed offences punishable u/s. 379/411/468/471/120B of the IPC. The proceedings abated against the accused Saleem @ Gazi upon his death. However, the accused Raj Kumar and Ramesh @ Jagan Nath pleaded guilty and they were convicted and sentenced vide order dated 03.08.2002. The prosecution set about to prove its case against the accused Mohd. Azad and Abdul Majid Malik after charges were framed against them on 09.04.2009 for having committed the offences punishable u/s. 379/411/468/479 read with Section 120 B of the IPC.
The present case under FIR No. 318/2001 registered at PS Malviya Nagar started with the complaint by Shri Sanjeev Tuli, Graphics Head with M/s Adroit Computer Techniques Pvt. Limited to the effect that the Maruti 800 Car registered in the name of this company and which had been parked in front of his house by the complainant Shri Sanjeev Tuli at H14/16, Malviya Nagar, New Delhi at around 7.00 PM on 19.04.2001, was found stolen on 20.04.2001 at about 8.00 AM by him.
PROSECUTION'S VERSION The prosecution's case is that on 20.04.2001 the police officials of the Crime Branch received secret information regarding the theft of the said Car bearing registration number DL 3CN 9655 by the accused persons with the further information that the car could be recovered from Lane No.16, Chauhan Bangar, Seelampur, Delhi, in Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 2 of 24 front of the house of the accused Saleem @ Gazi, who was the leader of a gang of auto lifters in Delhi. The police team reached at Lane No.16, Chauhan Bangar, Seelampur, Delhi on 20.04.2001 and found the car parked there. At about 12.30 PM, the accused Mohd. Azad came out of the house of accused Saleem @ Gazi, sat in the said stolen Maruti car and drove it away. He was followed by the police and he was intercepted when he reached at the Seelampur traffic signal.
The prosecution claims that on interrogation accused Mohd. Azad disclosed that the car had been stolen by himself, Ramesh @ Jagan Nath, Raj Kumar and Saleem @ Gazi and that he, Mohd. Azad was taking the stolen car to Meerut to finally deliver it to accused Abdul Majeed Malik to dispose it at Srinagar. During the investigations it was revealed that the general modus operandi of the gang was that whenever a car was stolen, its engine number and chasis number were intimated to accused Abdul Majid Malik, who used to forge the documents of the car and thereafter, the car used to be delivered to him and he used to take the car to Jammu and Kashmir for disposal.
It was upon this disclosure of accused Mohd. Azad that the accused Abdul Majid Malik was arrested and from his possession allegedly, another stolen car was recovered. Stickers bearing registration number JK 01E5761 and an R.C were also recovered from accused Abdul Majeed Malik which bore the engine number and chasis number of the stolen Maruti car bearing registration number DL 3CN 9655. It is on the basis of these facts that the prosecution presented the case before the Ld. Trial Court and examined 13 witnesses.
Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 3 of 24PROSECUTION'S WITNESSES PW1 is the complainant Shri Sanjeev Tuli; PW2 is Shri Om Prakash, Record Keeper, State Transport Authority, Sheikh Sarai; PW3 is SI Ranbir Singh, who was then posted as Head Constable with the AATS, Crime Branch, Dev Nagar; Constable Pawan has also been examined as PW3(referred to as PW3A in the impugned judgment); PW4 ASI Idrish Khan, who was posted as Head Constable at PS Malviya Nagar during the relevant period; PW5 Narender Singh was posted at PS AATS, Crime Branch, Dev Nagar; PW6 is Constable Ashok Kumar, who was also posted at AATS, Crime Branch, Dev Nagar; PW7 is Sandeep Talwar, who was director of Adroit Computer Techniques Private Limited from 1992 to 2002; PW8 is Ami Lal Daksh, Retired Senior Scientific Assistant, who has been examined as an expert witness in respect of the documents (referred to as PW8A in the impugned judgment); PW8 is ASI Baljeet, who was posted at AATS, Crime Branch, Dev Nagar; PW9 SI Satyabir Singh was posted as Head Constable at PS Mavliya Nagar at the relevant period; PW10 Sh. Tariq Ahmad Runga is the Motor Vehicle Inspector, RTO Office Srinagar; PW11 is Inspector Bhagwati Prasad who was posted at PS AATS, Crime Branch, Dev Nagar at the relevant time and was the Investigating Officer in this case.
THE DEFENCE After the evidence was recorded the statements of the accused were recorded u/s. 313 of the Cr.P.C and both claimed innocence. In the statement made by the accused Abdul Majid Malik, he claimed that he was arrested from Pathankot and had never visited Delhi. The accused Mohd. Azad claimed that he had been arrested Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 4 of 24 from his house at Meerut and he had never visited Delhi before that. Both the accused claimed complete innocence and false implication in this case.
Two witnesses were examined in defence as DW1 Saheed Akhtar and DW2 Sh. Ikramuddin. Both were examined by accused Mohd. Azad to support his claim that he was arrested from Meerut.
TRIAL COURT'S CONCLUSIONS After considering all the evidence that has come on the record and the submissions made by the prosecution and the defence, the Ld. Trial Court reached the conclusion that the evidence showed that there was an agreement between both the accused namely, Abdul Majid Malik and Mohd. Azad and the other coaccused and it was in furtherance of this conspiracy that the Maruti Car bearing registration number DL 3CN 9655 was stolen and kept by Mohd. Azad and the role of the accused Abdul Majid Malik had also been established in the theft of the Car and accordingly, the Ld. Trial Court vide the impugned judgment dated 25.07.2015 convicted the accused Abdul Majid Malik and Mohd. Azad for the offence punishable u/s. 120 B of the IPC read with Section 379 of the IPC and further convicted the accused Mohd. Azad for the offence punishable u/s. 411 of the IPC.
Vide the impugned order on sentence dated 30.07.2015, the Ld. Trial Court sentenced the accused Mohd. Azad to rigorous imprisonment for one year and three months and fine of Rs.5,000/ for the offence punishable u/s. 411 of the IPC with an in default sentence of simple imprisonment for one month. He was further sentenced to simple imprisonment for a period of one year and three months and Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 5 of 24 fine of Rs.5,000/ for the offence punishable u/s. 120B read with Section 379 of the IPC with an in default sentence to undergo simple imprisonment for a period of one month. The sentences were to run concurrently. Vide the same order, the accused Abdul Majid Malik was sentenced to rigorous imprisonment for a period of one year and three months and fine of Rs.5,000/ for the offence punishable u/s. 120B read with Section 379 of the IPC with an in default sentence of simple imprisonment for one month. The benefit of Section 428 of the Cr.P.C was also granted to both the accused.
GROUNDS TAKEN IN APPEAL Aggrieved by this conviction and sentence, accused Abdul Majid Malik preferred an appeal, which has been registered as No. CISCA81072016. The accused Mohd. Azad also preferred an appeal, which has been registered as No. CISCA81542016. Since both the appeals are arising out of the same judgment, it is considered appropriate to dispose of both the appeals by this common judgment.
In the appeal filed by appellant/accused Abdul Majid Malik, it is submitted that the prosecution has failed to prove the case beyond reasonable doubt as firstly, the case property namely, Car had never been produced after it had been released on superdari. It was also submitted that there were sufficient contradictions in the testimonies of the witnesses regarding the alleged investigations and alleged recoveries which would show that the prosecution case was completely doubtful. It is submitted that the expert witness failed to express any opinion in respect of the documents Ex.PW8/A and Ex.PW8/A1. It is further submitted that the vehicle recovered from Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 6 of 24 the possession of accused Abdul Majid Malik was not the vehicle that was stolen in respect of this FIR and there was nothing to connect the accused Abdul Majid Malik with the theft and the Ld. Trial Court had wrongly applied Section 10 of the Indian Evidence Act. Thus, it has been submitted in the appeal that the impugned judgment was liable to be set aside.
In the appeal filed by appellant/accused Mohd. Azad, it is submitted that the entire judgment was based on surmises and conjectures and was liable to be set aside. It is submitted that the prosecution had failed to prove the case beyond shadow of doubt as the prosecution has failed to discharge its onus. It is submitted that the Ld. Trial Court could not have applied Section 114 of the Indian Evidence Act to draw a presumption and convict the accused and, therefore, also the impugned judgment was liable to be set aside. It has also been claimed that the alleged recovery from the possession of the appellant was shown from a thickly populated area with many passersby but none was joined in the investigations which clearly casts doubt on the entire proceedings. It is further submitted that the Ld. Trial Court ought to have believed the defence witnesses. The appellant has also submitted that there was no material to show any meeting of mind between the appellant Mohd. Azad and the co accused for conviction u/s. 120B read with Section 379 of the IPC and has also pointed out to discrepancies in the testimonies of the witnesses in respect of the alleged recovery and arrest of the accused. It is also submitted that the sentences awarded by the Ld. Trial Court was excessive and the appellant was not a previous convict and was a family man.
Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 7 of 24ARGUMENTS Ld. Counsel for the appellants submitted arguments on the lines of the grounds taken in the appeal. Ld. Counsel Shri Ravi Qazi for the appellant/accused Abdul Majid Malik and Ld. Counsel Shri Mohd. Idrish with Shri Shamsul Haq for the appellant/accused Mohd. Azad laid emphasis on the fact that the case property had not been produced. The Ld. Counsel for the appellant/accused Mohd. Azad pointed out to the discrepancies in the testimonies of the witnesses PW1 Shri Sanjeev Tuli, PW3 Constable Pawan, PW9 ASI Satbir Singh and PW11 Inspector Bhagwati Prasad to submit that there were discrepancies in the date of arrest and the alleged recovery which should have been read in favour of the appellant/accused and in the background of these discrepancies the testimonies of the defence witnesses ought to have been considered and accepted.
Ld. Counsel for the appellant/accused Abdul Majid Malik submitted that the appellant/accused Abdul Majid Malik was neither the thief nor was the stolen vehicle recovered from his possession. The only evidence was a disclosure statement of the co accused. It was submitted that even if the appellant/accused had not questioned the identity of the vehicle, the prosecution had not been exempted from producing that vehicle and the non production hit the foundation of the prosecution case. It is also submitted that there was no evidence to show that accused Abdul Majid Malik was at Meerut at the relevant time as claimed by the coaccused Mohd. Azad as the accused/appellant Abdul Majid Malik was allegedly arrested from Azad Nagar, Delhi. It is submitted that the alleged fake number plates Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 8 of 24 were easy to plant and in any case were not connected to the present case.
It was also submitted that no ingredient of Section 120B IPC had been established as there was no proof of meeting or planning. Forgery has not been proved. No connecting evidence of such activity of the accused Abdul Majid Malik in Jammu & Kashmir had been brought on record. On behalf of accused/appellant Mohd. Azad it was argued that there were discrepancies and improvements in the testimonies of the witnesses which cast doubt on the story of the theft as PW1 had not said anything about locking his car in his statement u/s. 161 of the Cr.P.C and the ASI Idris Khan, PW4 refers to one Navin also who has not been examined and, therefore, there was a doubt whose car was stolen. The discrepancies are claimed in the statements of the PWs with regard to the formation of the raiding party and the place of apprehensionwhether at Shamlal College, or Seelampur Main Road or Seelampur Red Light Signal and thus, in the totality of the circumstances, both counsel for appellant/accused Abdul Majid Malik and Mohd. Azad have prayed that the appellants/accused were entitled to be acquitted.
On the other hand, Shri Salim Khan, Ld. Additional Public Prosecutor for the State submitted that five accused had conspired to commit this offence and the appellant Abdul Majid Malik was the person behind the curtain to manufacture false documents and dispose of the vehicles. It was submitted that the appellant Abdul Majid Malik was found in possession of fake J & K number plates and R.C but on verification the number was found to belong to a scooter in J&K while the registration certificate bore chasis number of the Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 9 of 24 vehicle which was found in possession of accused Mohd. Azad who was caught red handed.
Thus, according to the Ld. Additional Public Prosecutor for the State the complicity of both the accused in the commission of the offence had been established by the prosecution. The stolen car was found in possession of the accused Mohd. Azad and the number of the chasis was recorded in a fake R.C found in possession of accused Abdul Majid Malik. Therefore, it was on the accused Abdul Majid Malik to have explained how he came into possession of the fake R.C with the chasis number of the stolen car. Thus, it is submitted that both the accused were rightly convicted by the Ld. Trial Court in the present case, one for conspiracy for theft and the other for conspiracy for theft as well as for being found in possession of the stolen car. Thus, Ld. Additional Public Prosecutor for the State submitted that there was no error in the judgment and further the sentence imposed was also just and fair in the circumstances.
DISCUSSION It may be noticed that the charge against the accused persons had been framed for the offence of criminal conspiracy u/s. 120B IPC for the theft of the Maruti Car bearing registration number DL 3CN 9655, the retention of the said vehicle being stolen property and the forgery of the number plate of JK 01E5761. The Ld. Trial Court concluded that there was no proof of forgery having been committed by either of the accused/appellants. It also concluded that there was no proof that appellant Mohd. Azad had actually stolen the car found to be in his possession. It concluded that there was a conspiracy for committing theft as complicity of both the Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 10 of 24 accused/appellants in such a conspiracy was clearly established.
The Ld. Trial Court relied on the judgments of the Hon'ble Supreme Court of India in Kehar Singh v. State (Delhi Admn.), AIR 1988 SC 1883 and Suresh Vhandra Bahri v. State of Bihar, 1995 Suppl(1) SCC 80 and the observations quoted in the said judgment of the Hon'ble Supreme Court in Noor Mohd. Yusuf Momin v. State of Maharastra, AIR 171 SC 885, 886. Reference was also made to the judgment of the Hon'ble Supreme Court of India in Ajay Agarwal v. Union of India, AIR 1993 SC 1637, Shivnarayan Laxminarayan Joshi v. State of Maharashtra, AIR 1980 SC 439 to conclude that if there was prima facie proof of an agreement between the conspirators to commit a crime and there was sufficient circumstantial evidence available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit a offence could legitimately be drawn, then such a conclusion would be justified. The Ld. Trial Court recorded these circumstances as below:
(i)that accused Abdul Majid Malik was arrested pursuant to the disclosure of the accused Mohd.
Azad;
(ii)another stolen vehicle was recovered from accused Abdul Majid Malik;
(iii)a fake RC was recovered from accused Abdul Majid Malik;
(iv)the said fake RC was in the name of accused Abdul Majid Malik;
(v)the engine no.and chasis no. mentioned on the Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 11 of 24 said fake RC were of the stolen maruti 800 car bearing no.DL 3CN 9655;
(vi)a diary was recovered from accused Abdul Majid Malik wherein engine nos. and chasis nos. of certain other vehicles were recorded and it has been established that it was his diary ;
(vii)two other coaccused have already been convicted on their plea of guilt.
On the basis of these factors, the Ld. Trial Court concluded that the prosecution had established the complicity of the accused Abdul Majid Malik in the conspiracy regarding the theft of Maruti 800 Car bearing registration number DL 3CN 9655.
With regard to the appellant/accused Mohd. Azad, it noted the following circumstances:
(i)he was found in possession of the stolen car immediately on the very next day after it was stolen;
(ii)He was driving away the said car when he was apprehended;
(iii)On his disclosure accused Abdul Majid Malik was arrested;
(iv)He disclosed the modus operandi of the accused persons regarding communication of engine nos. and chasis nos. of stolen vehicles to Abdul Majid Malik and subsequent forgery of documents by Abdul Majid Malik;
(v)This has been substantiated from the recovery of another stolen vehicle, fake RC and diary of Abdul Majid Malik pursuant to the disclosure of accused Mohd. Azad;
Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 12 of 24(vi)two other coaccused have already been convicted on their plea of guilt.
On the basis of these facts the Ld. Trial Court concluded that the evidence showed that there was an agreement between the two coaccused as well as other coaccused who have been convicted for the commission of the theft.
Neither of the appellants have questioned the reliance placed on the judgments of the Hon'ble Supreme Court referred to hereinabove. Conspiracies being hatched in secrecy, there would be no direct proof, except possibly from the statement of a co accused/approver. The prosecution needs, therefore, to only place on record such circumstantial evidence from which there could be an inference drawn that there was a meeting of minds between the conspirators.
The Ld. Counsel for the appellant/accused Abdul Majid Malik submitted that there has been no investigations regarding any activity of the appellant either in Meerut or in Srinagar to show that he was indulging in sale of stolen cars. It is also submitted that there has been no confirmation that the coaccused Mohd. Azad, as per his claims was in touch with the coaccused Abdul Majid Malik to take the car relating to the present FIR to Meerut to meet the appellant/accused Abdul Majid Malik . Therefore, it was submitted that no meeting of mind had been disclosed. The Ld. Counsel further submitted that Ld. Trial Court had itself come to the conclusion that the appellant/accused Abdul Majid Malik had not forged the registration numbers and the case of theft of the car allegedly recovered from him was still pending. It was further pointed out that Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 13 of 24 the three stickers that were recovered were such that could easily have been planted. It is also pointed out that the Ld. Trial Court concluded that the appellant/accused Abdul Majid Malik has not used the forged R.C. which in any case was not a forgery committed by him. In these circumstances, the Ld. Counsel contended the arguments of the Ld. Additional Public Prosecutor for the State that the appellant/accused Abdul Majid Malik was the main master mind of the conspiracy to sell the stolen vehicle was not established from the evidence that has come on record and the Ld. Court erred in concluding that there was a conspiracy between the accused/appellant Abdul Majid Malik and accused/appellant Mohd. Azad.
While it is no doubt true that the forgery of the registration certificate Ex.PW8/B has not been connected with the appellant/accused Abdul Majid Malik, the fact remains that the said registration certificate is not a geninue document and was recovered from his possession. The witness PW10 Shri Tariq Ahmad Runga who came from Srinagar produced the relevant record pertaining to registration number JK01E5761 as belonging to LMV (Scooter) and stood registered in the name of one Latif Ahmad Budoo. Moreover, the chasis number and engine number recorded in this document being 1430610 & 1005149 are the numbers of the Maruti 800 car being registration number DL3CN 9655 registered in the name of M/s Adroit Computer Techniques Pvt. Limited. This document was found to be in possession of the appellant/accused Abdul Majid Malik.
A small 'diary' Ex.PW8/C was found to be have at least one entry in the hand writing of the appellant/accused Abdul Majid Malik. This connection with the 'diary' may be a very weak piece of Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 14 of 24 evidence but it was again recovered from the possession of the appellant/accused Abdul Majid Malik and it bears several numbers and addresses which are clearly of Jammu & Kashmir. This piece of evidence does not help the prosecution to establish any fact one way or the other, nor does it help the defence. But it is also not of such a nature to derail the entire prosecution's story.
The circumstances of the arrest and apprehension of the appellant/accused Abuld Majid are important and relevant facts. While the appellant/accused Abdul Majid Malik claims that he was picked up from Pathankot there appears to no logic, as rightly observed by the Ld. Trial Court, as to why a complete stranger to Delhi would have been picked up by the Anti Auto Theft Squad, Delhi from Pathankot and brought to Delhi to be impleaded falsely in this case of car theft. The accused had to bring some credible circumstances on record which would have cast sufficient doubt on the circumstances of his apprehension. However, there is no such fact available on the records. The witnesses to the arrest of appellant/accused Abdul Majid Malik are PW5 Narender Singh, PW 8 SI Baljeet Singh and PW11 Inspector Bhagwati Prasad. The only allegation made by the appellant/accused Abdul Majid Malik is that he was arrested from Pathankot, however none of these witnesses were asked any questions about such arrest from Pathankot. Though the Investigating Officer had been questioned about the investigations conducted in Kashmir and Meerut, there has been no suggestion about arrest from Pathankot. Thus, merely raising such plea casts no shadow of doubt on the circumstances of apprehension of the appellant/accused Abdul Majid Malik.
Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 15 of 24From the testimonies of the said three witnesses the consistent picture that emerges is that on 20.04.2001 at the instance of the coaccused Mohd. Azad, the appellant/accused Abdul Majid Malik was apprehended when he was driving a Maruti car of white colour. After his apprehension one fake number plate of Jammu & Kashmir and a R.C. being Ex.PW8/A were recovered from him. During his cross examination PW5 Narender Singh stated that he was not able to recall the model of the vehicle. He reiterated that the stickers were recovered and the registration number was also fake and the Investigating Officer had verified the number from the Control Room to confirm that it was a fake number. PW8 SI Baljeet was also witness to the arrest of appellant/accused Abdul Majid Malik and no question was put to him about the arrest of appellant/accused Abdul Majid Malik. The Investigating Officer was asked questions relating to the investigations that he had carried. He reiterated that the forged documents of the transport authority of Jammu & Kashmir had been recovered from the possession of the appellant/accused Abdul Majid Malik. He confirmed as correct that another stolen car recovered from the appellant/accused Abdul Majid Malik had not been tampered with in any way i.e. with the engine and chasis number. It may be mentioned here that FIR No. 416 of 1999, PS Hauz Khas is pending against him in respect of that car. However, the Investigating Officer was not questioned regarding the arrest of the appellant/accused Abdul Majid Malik from some other place.
It was in respect of other facts such as the recording of the statement of the witness from the RTO of Srinagar, the non lifting of the finger print from the car and the recovered documents, there is Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 16 of 24 no document showing the telephone conversation between the other coaccused and the appellant/accused Abdul Majid Malik that formed the crux of the crossexamination of PW11 Inspector Bhagwati Prasad, the Investigating Officer.
Thus, it is clear that the apprehension of the appellant/accused Abdul Majid Malik near the Petrol Pump, Adarsh Nagar at 4.30 PM in one stolen maruti car of white colour is not at all doubtful. That the said car was stolen is also not questioned. The appellant/accused Abdul Majid Malik has not brought on record any evidence in this case as to how he came in possession of a stolen car. Be that as it may, relevant for this case is the fact that the registration certificate Ex.PW8/A was recovered from his possession. PW10 Sh. Tariq Ahmad Runga, who as an independent and an uninterested witness has come to the Court to bring on record the fact that in reality the number recorded on Ex.PW8/B i.e. JK 01E5761 is a number that exists, but for a LMV (Scooter). More clinching is the fact that on the R.C the chasis number and engine number of the stolen car in this case have been mentioned. It is mysterious how this could have happened if not because of the connection between appellant/accused Abdul Mohd. Malik and the other accused/appellant Mohd. Azad.
The Ld. Trial Court was right in shifting the onus on the appellant/accused u/s. 114 of the Indian Evidence Act that a fact known to the accused ought to have been explained by him. When the statement u/s. 313 of the Cr.P.C was recorded the appellant denied that these facts as being incorrect. The existence of a conspiracy is not dependent on telephone conversations. The chain of events as brought out by the arrest of the appellant/accused Mohd. Azad with the car and Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 17 of 24 at his instance the arrest of the appellant/accused Abdul Majid Malik, the recovery immediately of the fake stickers, fake RC, the particulars of engine and chasis of the stolen car found in possession of the appellant/accused Mohd. Azad being found recorded in a document that was found in the custody of the appellant/accused Abdul Majid Malik are all very significant facts to link both the accused/appellants. It does not matter whether the number was given directly by the appellant/accused Mohd. Azad to the appellant/accused Abdul Majid Malik or the appellant/accused Mohd. Azad had routed it through some one else. These clinching facts establish connection between the two. In these circumstances, conspiracy and participation in that conspiracy of both the appellant/accused Abdul Majid Malik and Mohd. Azad is established and the Ld. Trial Court was justified in convicting the appellant/accused Abdul Majid Malik for the offence punishable u/s. 379/120B of the IPC. The conclusion of the Ld. Trial Court in this regard calls for no interference whatsoever.
Turning to the appeal of the appellant/accused Mohd. Azad, the case of the prosecution is that he was caught red handed in the stolen car. The Maruti 800 Car bearing registration number DL 3CN 9655 was parked by PW1 Shri Sanjeev Tuli in front of his house. No doubt in his statement u/s. 161 of the Cr.P.C it is not mentioned that the same had been locked by him, to which fact he has deposed in the Court. However, this is not a very significant fact. Even assuming that PW1 Shri Sanjeev Tuli had not locked the car it cannot under any circumstances be interpreted as an authorization to the appellant/accused Mohd. Azad or any other person to drive it away without the express permission and authorization of PW1 Sh. Sanjeev Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 18 of 24 Tuli. PW1 Shri Sanjeev Tuli discovered the loss at 8.00 AM on 20.04.2001. He immediately informed the Police. PW4 ASI Idrish Khan does refer to one Navin who also came to report about the theft of his car that does not mean that what PW1 Sh. Sanjeev Tuli stated was wrong or in any way nullifies the FIR registered at his instance. PW9 ASI Satyabir Singh has deposed that on receiving DD No. 29A on 20.04.2001 he had reached F5/10, Second Floor, Malviya Nagar. He met the complainant PW1 Shri Sanjeev Tuli who handed over the complaint Ex.PW9/A to him. He also prepared the site plan Ex.PW9/C. He also deposed that he had handed over the file to SI Bhagwati Prasad of Crime Branch. In his crossexamination by the ld. Counsel for the appellants/accused persons he deposed that he had reached the spot at about 8.15 AM. PW4 ASI Idrish Khan has deposed that at about 9.50 AM he had received the Rukka brought by Constable Pawan sent by the Investigating Officer SI Satyabir Singh (now ASI) and he denied the suggestion that the FIR was ante timed.
The reason why these time lines are important is because the AATS team had proceeded for duty at 9.00 AM. It was around 11 O'clock in the morning that they received the information about the presence of a stolen new maruti 800 car bearing registration number DL 3CN 9655 which was parked near the house of Saleem @ Gazi at Gali No.16, Seelampur, near Agarbatti factory and saw that a vehicle bearing registration number DL 3CN 9655 was parked there. The AATS crime team verified whether the car had been stolen and clearly from the testimony of PW4, it is clear that the FIR had already been registered by that time. Therefore, the AATS crime team had actually recovered the stolen vehicle.
Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 19 of 24The witnesses of the apprehension of the appellant/accused Mohd. Azad are the team members of this Anti Auto Theft Squad Crime Branch. They are PW3 SI Ranbir Singh who deposed to the receipt of the information and the surveillance that had been held near the house of Saleem @ Ganju near Agarbatti factory. He has deposed that about 12.30 PM, the appellant/accused Mohd. Azad came out of the house. He sat in the car and he started driving it and the team managed to stop the car at Seelampur Road. In his cross examination, the questions were centred on the nonjoining of public persons, drawing up of the site plan, recording of the disclosure statements and the carrying of the seized vehicle to PS Malviya Nagar. These questions in no manner challenge the sequence of the apprehension of the appellant/accused Mohd. Azad.
The next witness in this connection is PW6 Constable Ashok Kumar. He has also deposed to the same facts only further stating that the car was stopped at Seelampur red light but he deposed to the chase and apprehension of the appellant/accused Mohd. Azad from the car bearing registration number DL 3CN 9655 which was found and affirmed to be a stolen car. In his crossexamination nothing material has been found to question the sequence events. In fact this witness clarified that they had already first reached at Shamlal College Shahdara.
In this he actually corroborated PW3 SI Ranbir Singh who had also deposed in his examinationinchief that they were proceeding towards Shamlal College Shahdara and it was reaching the Shamlal College Shahdara that the secret information had been received. PW8 ASI Baljeet was also a witness to the apprehension of Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 20 of 24 the appellant/accused Mohd. Azad with the stolen car. He also refers to the presence of the team near Shamlal College Shahdara. No fact to cast doubt on the circumstances of the arrest of appellant/accused Mohd. Azad has been successfully thrown in the cross examination of ASI Baljeet.
The Investigating Officer PW11 Inspector Bhagwati Prasad who was posted as SI in AATS crime branch Dev Nagar at the relevant time had been sent the file as deposed to by SI Satyabir regarding a stolen vehicle. He has explained that after laying the trap at 12.30 PM they found that the appellant/accused Mohd. Azad came out of the house of Saleem @ Ganju and had reached the parked car and had got into the car and started to drive the same and that since the streets were narrow, the circumstances were not feasible for conducting the raid there and they started trailing the accused. He corroborates PW3 SI Ranbir and PW8 ASI Baljeet that they had chased the appellant/accused Mohd. Azad on the main Seelampur road and had proceeded to Yamuna Vihar and they intercepted the car with the help of the Sumo, just ahead of the Seelampur traffic signal.
Thus, there is no contradiction between these witnesses who had apprehended the appellant/accused Mohd. Azad. The place where the trap was laid and the place where they found Mohd. Azad getting into the car which was stolen and the place where he was apprehended are not at all in doubt. No facts have been brought in cross examination to challenge the sequence of events as deposed to by the Investigating officer with regard to the apprehension of the appellant/accused Mohd. Azad. The entire chain remains imbroken and consistent.
Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 21 of 24Thus, the prosecution has convincingly established the fact that the car belonging to M/s Adroit Computer Techniques Pvt. Limited and in the custody of PW1 Shri Sanjeev Tuli was stolen on 19.04.2001 and at 8.00 AM on 20.04.2001 the same car was traced pursuant to secret information around 11.00 AM on 20.04.2001 in Gali No.16 Seelampur outside the house of coaccused Saleem @ Gazi (since deceased). The prosecution has established that the appellant/accused Mohd. Azad came out of the house of coaccused Saleem @ Gazi (since deceased) and got into the car and drove the same and was apprehended near the signal point at Seelampur road. Thus, the prosecution has established that the stolen vehicle had been recovered from the possession of the appellant/accused Mohd. Azad. Though both counsel had argued that the non production of the car was fatal to the case, this Court finds no substance in such a plea. The existence and identity of the car was never disputed by the accused during trial. In any case the statements of PW1 Shri Sanjeev Tuli, PW2 Om Prakash and PW3 SI Ranbir Singh are sufficient to prove that the car no. DL 3CN 9655 was in fact stolen and the car belonged to M/s Adroid Computer Techniques Pvt. Ltd. And did not belong to the accused Mohd. Azad who was found to be in possession of the same. The Ld. Trial Court has rightly convicted Mohd. Azad for the offence u/s. 411 of the IPC. The Ld. Trial Court as discussed above was also justified in convicting him u/s. 120B read with Section 379 of the IPC.
With regard to the sentence the main contention before the Ld. Trial Court was that the convicts were sole bread earners of their respective families and have no previous history of conviction.
Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 22 of 24The Ld. Trial Court relied on the observations of the Hon'ble Supreme Court in Shailesh Jasvantbhai and Another v. State of Gujarat, (2006)2 SCC 359 and Surjit Singh v. Nahara Ram, AIR 2004 SC 4122 to hold that when the crime had been planned and committed these facts were relevant for determining the quantum of sentence and that it was the duty of the Court to award proper sentence with regard to the nature of offence and the manner of its execution. It is for this reason, the Ld. Trial Court sentenced the appellants/accused to a fine of Rs.5000/ and to imprisonment of 15 months as noticed above.
It is the considered view of this Court that since no fact has been brought to light that subsequent to the apprehension of the appellant/accused in this case and of the appellant/accused Abdul Majid Malik also in FIR No. 416/99, PS Hauz Khas they have been found to be involved in several other similar offences. No previous conviction has also been brought to notice. In these circumstances, this Court is inclined to reduce the term of imprisonment from 15 months to 10 months but to enhance the fine from 5000/ to 15,000/.
Thus, the appellant/accused Mohd. Azad is convicted for the offence u/s. 411 of the IPC with rigorous imprisonment for a period of 10 months and with a fine of Rs.15,000/ in default of which he shall undergo simple imprisonment for a period of one month . He is also sentenced to rigorous imprisonment for 10 months u/s. 120B read with Section 379 of the IPC with fine of Rs.15,000/ in default of which he shall undergo simple imprisonment for one month. The appellant/accused Abdul Majid Malik is also sentenced to rigorous imprisonment for 10 months u/s. 120B read with Section 379 IPC with a fine of Rs.15,000/ in default of which he shall undergo simple Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 23 of 24 imprisonment for one month. The sentences shall run concurrently. The benefit of Section 428 of the Cr.P.C is also given to the appellants. The convict/appellants be taken into custody to serve the aforesaid sentences upon which their sureties will stand discharged and the personal bonds and the surety bonds shall stand cancelled.
The original judgment be placed in appeal file bearing no. CISCA81072016 and copy of this judgment be placed in the appeal file bearing no. CISCA81542016.
A copy of this judgment be supplied to the convicts/appellants free of costs.
The Trial Court record be returned alongwith copy of this judgment.
The file be consigned to the Record Room.
Announced in open Court
today i.e.20.03.2017 (ASHA MENON)
District & Sessions Judge (South)
Saket/New Delhi.
Criminal Appeal No.CISCA81072016 & CISCA81542016 Page 24 of 24