Delhi District Court
State vs . Ranjit Kumar And Others on 12 February, 2020
IN THE COURT OF SH. PUNEET NAGPAL METROPOLITAN
MAGISTRATE-7, WEST DISTRICT, TIS HAZARI COURTS,
DELHI
STATE
VERSUS
RANJIT KUMAR AND OTHRS.
Computer ID No. 63668/16
FIR No. 1022/06
P.S. Paschim Vihar
U/S 379/392/397/365/411/34 IPC
Sh. Mahender Kumar
S/o Sh. Chhogga Ram
R/o Abohar,
Punjab.
........ Complainant
VERSUS
1. Shahid Khan @ Munna
S/o Sh. Bassir Khan
R/o Shastri Park,
Seelampur, Delhi.
2. T.A. Krishna Murthy @ Anna
s/o Sh. Shelhey,
r/o Bangalore,
Karnataka.
......... Accused Persons
Date of Institution : 25.11.2006
Date on which judgment was reserved : 28.01.2020
Date of judgment : 12.12.2020
Final Order : Convicted
FIR No.1022/06 Page 1 of 15
P.S. Paschim Vihar
State Vs. Ranjit Kumar and others
JUDGMENT
The important facts of the present case are as follows :
1. In the instant case, accused namely Shahid Khan @ Munna s/o Sh. Bassir Khan has been set up set up by the prosecution to face trial on the allegations that on 23.09.2006 at about 03:00 am, near a hotel in the area of Peeragarhi Crossing, Paschim Vihar, the accused Shahid had along with two other accused persons (one of which is Sunil, who has since absconded), in furtherance of their common intention had committed robbery of a truck bearing Number HR-12GA-0191, TATA 1612, loaded with 485 containers of Sundrop Refined Oil, which was being transported to M/S Agrotech Foods Ltd., Om Nagar, Meethapur, School Road, Delhi and therefore, the accused Shahid Khan was alleged to have committed offences punishable u/s 392/34 IPC. At the same time, the accused Shahid Khan, was alleged to have received and /or retained the stolen containers (50 in number), of Sundrop Refined Oil, knowing or having reason to believe the same to be stolen property and therefore, the accused Shahid Khan was also alleged to have committed offence punishable under section 411 IPC.
2. Along with the accused Shahid Khan, the other accused T.A. Krishna Murthy was also alleged to have received and/or retained the stolen containers of Sundrop Refined Oil, in his possession, knowing or having reason to believe the same to be stolen property and therefore, the accused T.A. Krishna Murthy was alleged to have FIR No.1022/06 Page 2 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others committed offence punishable under section 411 IPC.
3. The FIR in the instant case was lodged in respect of offence punishable under sections 379 IPC against unknown accused by the complainant namely Mahinder Kumar on the allegation that some unknown persons had took away his truck bearing No. HR-12GA-0191, TATA 1612, which was loaded with 485 containers of Sundrop Refined Oil when the said truck was parked at Peeragarhi Crossing, Delhi. Investigation commenced and final report/ Charge sheet under section 173 Cr.P.C. was filed against the accused persons namely Ranjit Kumar, Shahid, T.A. Krishna Murthy and Sunil in respect of offences under section 379/392/397/411/365/34 IPC.
4. Cognizance was taken against the accused persons vide order dated 27.11.2006 and the accused persons were summoned. In the light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr.P.C vide order dated 24.02.2007, the present case was committed to the court of sessions as the offence(s) were exclusively triable by the court of sessions. Vide order dated 12.09.2007, passed by Ld. Sessions court, all the accused persons were discharged in respect of offence punishable under section 365/34 IPC and charges under section 392/34 and 411 IPC were framed against the accused Shahid to which he pleaded not guilty and claimed trial and under section 411 IPC against the accused T.A. Krishna Murthy to which he also pleaded not guilty and claimed trial. The accused Ranjit Kumar FIR No.1022/06 Page 3 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others was discharged from the present case and the case file was sent back to the court of the then Ld. ACMM, Rohini for trial as per law.
Subsequently, during the trial, the accused namely Sunil stopped appearing before the court and vide order dated 19.11.2013, the accused Sunil was declared as an absconder. The trial was thereafter proceeded against accused Shahid Khan and T.A. Krishna Murthy.
5. Thereafter, the matter was fixed for prosecution evidence. Prosecution examined 5 prosecution witnesses to prove the charge against the accused.
6. PW1/Mahender Kumar has deposed that he was into transport business and that he owned many trucks and the same were being driven by the drivers employed by him. He deposed that on 23.09.2006, his truck bearing No. HR-12GA-0191 was loaded with 485 refined oil containers from Abhor and the same was to be delivered at Delhi. It was his version that after two days, he had received a call from his driver, who informed him that the said loaded truck had been robbed and that the abandoned truck sans the loaded material was found at Ghaziabad. He proved the complaint Ex. PW1/A filed by him in PS Paschim Vihar. In his cross-examination, PW1 admitted the fact that he had not filed any documentary proof to prove the fact of ownership of the truck bearing No. HR-12GA-0191. He categorically denied the suggestion of the accused that the refined oil which was loaded in the truck had been misappropriated by the driver and the cleaner of the truck FIR No.1022/06 Page 4 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others and that in order to save the driver and cleaner, he had lodged instant false complaint.
7. PW2/ Vinay Kumar deposed that he is a transport contractor and is running his business under the name of Green Road Carriers. He deposed that on 23.09.2006, he had hired a truck bearing number HR- 12GA-0191 from one Mahender Kumar to transport 485 cartoons of refined oil from Surat Solvent, Fazilka to Agrotech Foods Ltd., Delhi. Thereafter, he came to know that the goods/oil had not reached Agrotech Foods Ltd, Delhi and therefore, on enquiry from Mahender Kumar, he came to know that the said truck along with the products/oil cartoons had been robbed. He further deposed that on 28.09.2006, he received a call from the IO and he was informed regarding the recovery of the stolen material/refined oil. He deposed that the IO had seized the recovered stolen goods vide seizure memo Ex. PW2/A. He also deposed that on 29.09.2006, he again received a call from the IO, when he was informed that the accused persons had been apprehended. Thereafter, he had along with the IO, went to Ritz Cinema, Delhi where he had seen the accused Shahid Khan and T. Krishna Murthi. Thereafter, he had along with IO went to Golden Plaza, Shivalik Road, where on the pointing out of the accused some of the stolen cartoons of oil(25 in number) were recovered. The same were also seized by the IO vide seizure memo Ex. PW2/B. Thereafter, PW2 along with IO went to A-3, Church Road, Golden Farm, where at the pointing out of the accused another 275 cartoons of refined oil were recovered and the same were also seized by the IO vide memo FIR No.1022/06 Page 5 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others Ex. PW2/C. Thereafter, on 15.10.2006, one Sh. Mukesh, Executive of Agrotech Foods Ltd. had got the said recovered cartoons of oil released after getting necessary orders from the court. He further deposed that at the time of release of the recovered cartoons of oils, the IO had took one jar/cartoon of the said oil as a sample and the same was sealed with the seal of RVS and the same was seized vide memo Ex. PW2/D. The witness/PW2 correctly identified the recovered case property/stolen property through its photographs Ex. P-1 (colly). In his cross- examination, PW2 deposed that he had gone to Ritz Cinema alone and he had met the IO at the Ritz cinema, where the IO had told him that the recovery of the stolen cartoons of oil has been effected and that the accused persons had been apprehended and he was also shown the faces of the accused persons. He deposed that no public person was found present at the place of the recovery of the stolen cartoons of oil and the place of recovery was an office and not a go-down. PW2 further deposed in his cross examination that the case property which had been recovered was identified by its batch number and there was no possibility of planting the same upon the accused persons.
8. PW3/Mahender @ Prakash deposed that he was the driver of the truck bearing No. HR-12GA-0191 and that one Jagga was working as a cleaner/helper on the said truck. It was his version that on 23.09.2006, the said truck which was loaded with 485 cartoons of refined oil through Green Road Carriers, and the material was to be dropped at Badarpur, Delhi. He deposed that in the intervening night of 24/25.09.2006, at about FIR No.1022/06 Page 6 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others 03:00 am, when he had reached near Peeragarhi, Delhi, he had parked the said truck on a nearby road and he had went to take dinner. At that time, the cleaner/helper namely Jagga was feeling sleepy and therefore, he had remained in the truck and was sleeping in the truck. After, taking meals, when he came back to the place, where he had parked his truck, he saw that the truck and its cleaner Jagga was not present there. He tried to search for the same but his efforts went in vain. Thereafter, he had called the owner of the truck and apprised him regarding the fact that the truck was missing. Thereafter, the truck was found empty and was found at Gaziabad along with its cleaner Jagga. He further deposed that Jagga had told him that 3-4 persons had robbed the truck by showing a Katta and had also threatened Jagga. He proved his statement which was recorded by the IO and also correctly identified the case property through its photographs/Ex. P-1. In his cross examination, PW3 deposed that the distance between the place where he had parked the truck and the hotel/dhaba where he had taken the meals was around 10 feet. He deposed that at the time, when he had parked the truck, the keys of the truck were left by him inside the truck. It was his version that the owner of the truck had came to Peeragarhi, Delhi on the next day at about 2-2.30 pm. He deposed that he had along with the owner, went to PS Paschim Vihar and thereafter, they had gone to Gaziabad, in front of Shani Mandir, where, they had found the truck. He admitted the fact that no police official had accompanied them to Gaziabad at the time of recovery of the truck and that he had not given any information to the police regarding the recovery of the truck and its cleaner Jagga as the same might have FIR No.1022/06 Page 7 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others been given by the owner of the truck.
9. PW4/ASI Dharambir deposed that on 28.09.2006, he along with SI Vipin and HC Jasbir were present at Peeragarhi Chowk and on the said day, one secret informer had come to SI Vipin Kumar. He deposed that the said informer had told SI Vipin Kumar that the person who had robbed the truck in the night of 24/25.09.2006 would come near Ritz Cinema to meet his associates at about 09:00 pm. Thereafter, PW4 had along with SI Vipin and HC Jasbir and the secret informer went to Ritz Cinema and on the pointing out of the secret informer, the accused Shahid Khan was apprehended by the IO. Accused Shahid was correctly identified by PW4 during his testimony. He deposed that SI Vipin had requested 3-4 public persons to join investigation but none agreed and left the spot without disclosing their names and addresses. It is pertinent to mention that the examination in chief of PW4 was partly recorded on 03.02.2018 and the remaining examination of PW4 was deferred till next date of hearing. However, PW4 was not examined subsequently and neither was he cross examined by the accused persons had he failed to appear before the court on subsequent dates of hearing. Therefore, the testimony of PW4 is not admissible in the eyes of law as his evidence was not subjected to the test of cross examination.
10. PW5/SI Randhir Singh (Retd.) deposed that on 28.09.2006, the investigation of the present case was marked to him. He deposed that on the said day, he had along with SI Vipin, Ct. Dharambir and HC Jasbir FIR No.1022/06 Page 8 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others were present at Peeragarhi Chowk, where SI Vipin had received a secret information from an informer regarding the involvement of accused Shahid in the robbery of the truck and that the accused shall come to Ritz Cinema on the said day. Thereafter, he had along with the entire team of police officials and secret informer went to Ritz cinema and on the pointing out of secret informer, the accused Shahid was apprehended. After interrogation of the accused namely Shahid, he was arrested vide arrest memo Ex. PW5/A and his personal search was carried out vide Memo Ex. PW5/B. Thereafter, the disclosure statement of the accused Shahid was recorded and at his instance, the stolen oil tins, 50 in number were recovered from the house of the accused Shahid situated at Seelampur. The said recovered property/oil tins were seized by PW5 vide memo Ex. PW2/A. Thereafter, the police custody of accused Shahid was obtained in order to trace the whereabouts of his associates/co-accused persons and for recovery of the remaining case /stolen property. It was the version of PW5 that at the instance of the accused Shahid, other co- accused persons namely, T.A. Krishna Murthy was arrested near Mehrauli, Qutub Minar Gold Chakkar vide arrest memo Ex.PW5/D and the disclosure statement of accused T.A. Krishnamurthy was recorded and at his instance, 25 tins of oil were recovered from Shivalik Pahari, Malviya Nagar and the same were seized by the IO/PW5 vide Seizure memo Ex. PW2/B. Thereafter, accused T.A. Krishnamurthy, also got recovered another 275 tins of stolen oil from Golden Farm, Vasant Kunj and the same was also seized by PW5 vide memo Ex. PW2/C. He further deposed that the name of the co-accused Ranjit Singh (since discharged) FIR No.1022/06 Page 9 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others was also disclosed by the accused persons in their disclosure statement and on the basis of the same, the accused Ranjit Kumar was also arrested. It was testified by PW5 that on the basis of the disclosure statement of the accused Ranjit Kumar, the accused Sunil (since declared absconder) was also apprehended. PW5 proved the site plan(s) of each and every place of recovery of the stolen property which was prepared by him. The same are Ex. PW5/L, PW5/M, PW5/N, PW5/O. PW5 correctly identified the accused persons namely Shahid and T.A. Krishna Murthy during his testimony in court. He deposed that he had recorded the disclosure statement of the accused Shahid thrice and the same are Ex. PW5/C, PW5/P, PW5/Q. He further deposed that after recoding the statement of the witnesses, he had filed the Charge-sheet in the present FIR in the court on 16.11.2006 and later on, he had also filed supplementary sheet against accused persons namely Ranjit Singh (since discharged) and accused Sunil (since declared as an absconder) in court. PW5/IO correctly identified the case property/ recovered oil boxes through its photographs (Ex. P-1). In his cross examination, PW5 deposed that the seized article/oil tins/cartoons were identified by Sh. Vinay Kakkar, representative of the complainant company, on the spot at the time of seizure of the stolen property. He further deposed that the case property can also be identified by the badge numbers and from the name of the company printed on the boxes/cartoons. It was the version of PW5 in his cross examination that the accused T.A. Krishna Murthy was arrested on the identification of the accused Shahid and that it was also disclosed by the accused Shahid that the stolen oil/case property was entrusted to T.A. FIR No.1022/06 Page 10 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others Krishnamurthy till its sale.
11. The accused had admitted the genuineness of FIR of the instant case vide proceedings carried out under section 294 Cr.PC on 21.02.2017. At the same time, it is pertinent to mention that the other cited witnesses in the list of witnesses by the prosecution were dropped from the list of witnesses due to one or the other reason(s) which were beyond the control of the prosecution. Thereafter, at the request of Ld. APP for the State, PE was directed to be closed as all the relevant prosecution witnesses had been examined and the matter was fixed for recording of statement of accused persons under section 313 Cr.PC.
12. In their respective statements under section 313 Cr.PC, the accused persons claimed to be innocent and that they have been falsely implicated in the instant case. At that stage, the accused persons submitted that they do not wish to lead defence evidence and consequently, the matter was fixed for addressing Final arguments.
13. I have heard the Ld. APP for the state and Ld. counsel for the accused persons and perused the record carefully in light of the arguments advanced.
14. It has argued on behalf of accused persons by their Ld. Counsel, that there is not even an iota of evidence to suggest that the accused Shahid Khan was one of the accused persons who had allegedly FIR No.1022/06 Page 11 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others robbed the truck of the complainant bearing No. HR-12GA-0191. He has argued that admittedly, as per the case of the prosecution itself, the persons who had committed the alleged robbery were not apprehended from the spot as they had fled along with the truck and the prosecution has failed to examine even a single witness who had witnessed the alleged robbery, and thus, the identity of the accused Shahid Khan has remained under a shadow of doubt. The learned counsel would submit that without strict proof of the identity, the accused Shahid Khan cannot be convicted in this case.
15. It has beyond any cavil that the identity of the accused Shahid Khan has to be proved by the prosecution beyond reasonable doubt. It has to be proved by the prosecution that the accused Shahid Khan had along with co-accused Sunil (since absconded) had committed the robbery of the truck. It is pertinent to mention that the prosecution has failed to examine the material witness namely Jagga, who was a cleaner/helper and was sleeping in the truck on the night of the alleged robbery of the truck. As per the version of the prosecution itself, it was the witness Jagga, who had disclosed the fact to the complainant and subsequently to the IO during the course of the investigation that the truck was robbed by showing a katta to him by the accused persons. However, he was not examined as a witness by the prosecution, though the reasons for the same was beyond the control of the prosecution. The non-examination of the most material witness by the prosecution will inexorably result in drawing an adverse inference against the prosecution.
FIR No.1022/06 Page 12 of 15P.S. Paschim Vihar State Vs. Ranjit Kumar and others
16. At the same time, even if the evidence of all the prosecution witnesses is taken at its face value and is accepted as gospel truth, in such case also, there is not even an iota of evidence to reach at a conclusion that the accused Shahid was one of the persons who had committed the alleged robbery. Mere fact that a part of the robbed property was recovered from the possession of the accused, is not sufficient to reach the finding that the accused Shahid had committed the robbery in question.
17. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused . It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. Accordingly, accused namely Shahid Khan stands acquitted in respect of offence punishable under Section 392/34 IPC.
18. At the same time, the other question which needs to be answered is whether on the facts which have been established/ proved by the prosecution, both accused persons can be held to have committed the offence punishable under section 411 IPC.
19. In the case at hand, the testimony of all the FIR No.1022/06 Page 13 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others prosecution witnesses regarding recovery of Sundrop Oil cartoons/tins/containers belonging to the complainant, has remained substantially uncontroverted and unchallenged. The tins/containers of oil of the complainant which was loaded in the truck of the complainant was recovered from the possession of the accused persons . Hence, it appears that the accused persons had received or retained the oil tins/containers in their possession despite having the knowledge that it was a stolen property or with a dishonest intention. The identity of the recovered case property has been proved by the prosecution beyond doubt. Prosecution witnesses have proved the documents i.e. disclosure statement, arrest memo, personal search memo as well as site plan for recovery of oil tins/containers from the possession of the accused persons.
20. The testimony of all relevant witnesses qua the charge under Section 411 IPC are intact and there are no material discrepancies. There is no reason to disbelieve the testimony of the prosecution witnesses. There is no reason for the witnesses to falsely implicating the accused persons.
21. In view of the discussions made above, it is held that the prosecution has been able to associate the accused persons with the commission of the offence of receiving/retaining stolen property and thereby, they are liable to be convicted for an offence u/s 411 IPC.
22. The accused persons are, therefore, found guilty u/s FIR No.1022/06 Page 14 of 15 P.S. Paschim Vihar State Vs. Ranjit Kumar and others 411 IPC and are convicted there-under.
23. Let the accused persons be heard on the quantum of sentence.
24. Copy of judgment be given to the accused free of cost and copy of judgment be placed on case file.
25. Let the convicts be heard on quantum of sentence.
Decided on 12.02.2020 Digitally
signed by
Announced in the Open Court PUNEET
PUNEET NAGPAL
NAGPAL
(PUNEET NAGPAL)
Date:
2020.02.12
MM-7, West09:52:38
District
+0530
THC/Delhi
FIR No.1022/06 Page 15 of 15
P.S. Paschim Vihar
State Vs. Ranjit Kumar and others