Delhi District Court
State vs Mohd. Raja on 13 May, 2014
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 07, CENTRAL, ROOM NO. 137,
TIS HAZARI COURTS, DELHI.
STATE
VERSUS
MOHD. RAJA
FIR No : 108/10
P.S. : ODRS
U/s : 411 IPC
U/s : 147 I.R Act
1. Serial No. of the case : 02401R0459982010
2. Date of commission of offence : 08.08.2010
3. Name of the Complainant : BHAGWATI PRASAD,
S/o Het Ram,
R/o Manrose Bypass,
near B.B Girls Inter
College, Aligarh, Uttar
Pradesh.
4. Name of the accused and : MOHD RAJA @
his parentage and residence NASEEM KHAN,
S/o Sh. Abrar Khan,
R/o Gali No. 1, Brahm
Puri, Usmanpur, Delhi.
5. Date when judgment : 13.05.2014
was reserved
6. Date when Judgment : 13.05.2014
was pronounced
7. Offence Complained of : Section 411 IPC
or proved Section 147 IR Act
8. Plea of accused : Pleaded not guilty
9. Final Judgment : Convicted for offence
U/s 411 IPC
FIR No. 108/10
PS- ODRS
State Vs. Mohd Raja Page 1 of 10
Brief Statement of reasons for the decision of the case
1. Briefly stated case of the prosecution is that on 08.08.2010 at about 6.45PM at Platform No. 1 DFMD, Old Delhi Railway Station, accused was found in possession of one suitcase belonging to complainant Bhagwati Prasad and was also found in the railway premises without any authority or railway ticket. Accordingly, FIR was registered vide FIR No. 108/10, PS ODRS. The challan was filed on 05.10.2010.
2. On appearance of the accused, charge was framed against the accused for offence U/s 411 IPC and U/s 147 IR Act to which he pleaded not guilty and claimed trial and thereafter, prosecution evidence was lead.
3. Prosecution has examined five witnesses namely PW1 Bhawati Prasad, PW2 Smt Beena, PW3 HC G. Raja Kumar, PW4 Ct Ved Prakash and PW5 HC Satya Kumar to prove the case of the prosecution. The evidence of each witness is very relevant and will be discussed at later stages.
4. After the prosecution evidence was closed, statement of accused was recorded under Section 313 Cr.P.C wherein he denied the allegations and stated that he has been falsely implicated in the present case and do not wish to lead evidence in his defence. Hence, defence evidence was closed and final arguments were heard.
5. Ld. APP for the State argued that all the witnesses including PW1 i.e complainant have supported the case of the prosecution and the case has been proved beyond reasonable doubts. He prays for conviction of the accused.
6. On the other hand, Ld counsel for the accused submits that accused has been falsely implicated in the case and nothing was recovered from his possession neither he committed theft. He prays for acquittal.
7. PROSECUTION EVIDENCE:
FIR No. 108/10PS- ODRS State Vs. Mohd Raja Page 2 of 10 7.1 PW1 stated that on 07.08.2010 at about 11.45 PM, he along with his family, boarded Kalka Mail for Aligarh, he was having grey color suitcase make aristocrat and when on 08.08.2010, train reached ODRS at about 6.45 to 7.00 AM , the said suitcase was stolen by someone and as the train departs from the station, he could not lodge formal complaint. He further stated when he reached Aligarh in the evening he received telephone call from PS ODRS regarding recovery of suitcase containing some cloths, mobile phone make Nokia, four gold bangles of his wife, one Mangalsutra, one chain (locket), Rs. 3000/ in cash, one slip containing his name, address and phone number. He further stated that on 10.08.2010, he along with his wife visited PS ODRS and handed over his train ticket Ex. P1, as well as copy of the Pan Card as Ex. P3 to prove his identity and in the malkhana identified his suitcase and belongings for which IO prepared identification memo as Ex. PW 1/A and PW1/B. PW1 produced all the case property which was recovered from the possession of the accused vide Ex. P1 to P8. He also identified the photographs of the case property vide Ex. P9. Despite opportunities, accused choose not to cross examine PW1.
7.2 PW2 who is wife of PW1 i.e the victim in the present case has also corroborated the testimony of PW1. She also stated that she alongwith her husband identified the case property in the malkhana vide Ex. PW1/A and PW1/B. She further stated that the said articles were released on supardari by her husband vide Ex. PW1/C. This witness was also not cross examined by the accused.
7.3 PW3 proved the registration of FIR vide Ex. PW3/A and its endorsement vide Ex. PW3/B. 7.4 PW5 stated that on 08.08.2010 he along with Ct. Ved Prakash were FIR No. 108/10 PS- ODRS State Vs. Mohd Raja Page 3 of 10 on checking duty at platform No. 1A and standing near DFMD. He further stated that at about 6.45 PM they saw one person coming out from the railway station and going to the exit gate having a grey color suit case in his hand and who on seeing them suddenly stopped and turned back and tried to escape but was chased and apprehended near DFMD (Door frame Metal Detector), platform no 1A and asked about his conduct and suitcase in his possession but he can not give any satisfactory reply. He further stated that during interrogation accused disclosed his name as Mohd. Raja and disclosed that he had stolen the said suitcase of passenger from inside the ODRS. He further stated that the said suitcase was checked by opening the same and found containing wearing clothes, mobile phone make Nokia, one yellow color small bag containing jewellery articles (4 bangles, one Mangalsutra having black moti,one broken chain with pandle and Rs. 3000/) and one slip upon which "Bhagwati Prasad S/o Het Ram and his mobile number and address of the Aligarh" were written.
Thereafter, he had made a call on the mobile number which was written on the said slip and asked about theft of his suitcase and the said person had informed that his suitcase has been stolen by someone when his train reached at ODRS. He further stated that he prepared pullanda of recovered yellow color small bag containing 4 bangles, one Mangalsutra having black moti, one broken chain with pandle and Rs. 3000/ and sealed with the seal of SKM and seal after use was handed over to Ct. Ved Prakash vide seizure memo Ex. PW 5/A and others recovered articles were kept in said recovered suitcase and same was taken into possession through seizure memo Ex. PW4/B. He further stated that he had asked the accused to produce train ticket/ pass / platform ticket but he can not produce the same and stated that he is not having any train ticket/ pass / FIR No. 108/10 PS- ODRS State Vs. Mohd Raja Page 4 of 10 platform ticket and accordingly he prepared a rukka Ex. PW5/B and got registered the FIR through Constable Ved Prakash. He also stated that site plan was prepared vide Ex. PW 5/C and after registration of FIR Ct. Ved Prakash came back at the spot and handed over copy of FIR and original rukka to him. He proved the arrest and personal search of accused vide Ex. PW4/B and Ex. PW 4/C. He also stated that during personal search of accused, one mobile phone chinese GFive, one wrist watch, one silver color chain, one silver color finger ring, one ear ring and Rs. 55/ were recovered and disclosure statement of accused was also recorded vide Ex. PW4/D. He also stated that on 10.08.2010, Bhagwati Prasad came to him along with his wife Veena and got recorded their statement and identified the recovered case property vide Ex. PW 1/A and Bhagwati Prasad also handed over slip which was containing his name and address and his mobile number which is Ex PW 5/D. He identified the accused and case property when produced before him. During cross examination by ld defence counsel, he stated that no other police staff was present with them on the spot. He denied the suggestion that the said recovered suitcase was found abandoned accused has been falsely implicated in the present case as he was coming from Begum Sarai, Amroha to ODRS. He also denied the suggestion that Bhagwati Prasad had himself informed him about the incident and wife of accused was also along with him. He also denied the suggestion that accused has produced his train ticket and had taken the ticket from the accused. He further denied the suggestion that nothing was recovered from the possession of the accused and he is deposing falsely. 7.5 PW4 also gave testimony on the lines of PW5 and there is no material contradictions in their testimonies. PW4 was not cross examined
8. APPRECIATION OF EVIDENCE:
FIR No. 108/10PS- ODRS State Vs. Mohd Raja Page 5 of 10 8.1 In the present case, all the witnesses have supported the version of the prosecution and no inconsistency has been brought by witnesses. No probable defence has been put forth by the accused. Accused has not alleged any previous enmity. Eventhough, there is no formal complaint regarding theft of the suitcase was made by victim, but the recovery from the possession of the accused and subsequent identification of the case property by PW1 and PW2 prove that the suitcase was indeed stolen from their possession. But as PW1 stated that suitcase was stolen by some unknown persons, therefore, it cannot be said with certainty that it was the accused Mohd Raja who had stolen the same. Hence, it has come on record that the suitcase was a stolen property.
8.2 PW4 and PW5 are the recovery witnesses. Eventhough, PW5 admitted that there is no public persons to the recovery but Court cannot doubt the recovery in the absence of public witnesses if the absence has been satisfactorily explained.
8.3 Although, no public witness have been joined in the investigation, however, the said fact itself cannot be a ground for rejecting the unimpeached testimony of the PWs. The provisions as provided under Section 100 (4) Cr. PC is only directory and failure to comply with the said provisions will not invariably be fatal to the case of the prosecution. It has been held by the Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 that "The scope of these two sections (section 100 and 165 of Code of Criminal Procedure) have been examined in a number of cases. In Wasan Singh v. State (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Suder Singh v. State of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the FIR No. 108/10 PS- ODRS State Vs. Mohd Raja Page 6 of 10 accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of Maharashtra v. P.K. Pathak, AIR SC 1224, it is held that absence of any independent from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act. In Radha Kishan vs. State of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would , however, cast a duty upon the Court to scrutinise the evidence regarding the search very carefully. In Matajog Dubey v. H.C. Bahri, AIR 1956 SC 44 it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
8.4 There is no reason to doubt the testimony of PWs merely because they are police personnel. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311;
"........The testimony of police personnel 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 FIR No. 108/10 PS- ODRS State Vs. Mohd Raja Page 7 of 10 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 good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down....."
8.5 The recovery was effected at Old Delhi Railway Station where every passenger is in hurry as either they have to catch their train or due to long journey, they are least interested in joining the investigation and there is no occasion for the police official to join public witnesses. 8.6 The accused has failed to explain the possession of suitcase and when PW4 and PW5 asked him to open the same, he could not give any satisfactory reply and did not produce the keys of the said suitcase. Accused also failed to put any probable defence regarding recovery of suitcase. Hence, it is proved that accused has dishonestly received or retained the stolen property which he knew or having reasons to believe that same is a stolen property. The ingredients of offence U/s 411 IPC are proved against the accused beyond reasonable doubt.
9. In view of the above said reasons, I am satisfied that the prosecution has successfully proved the case against the accused beyond reasonable doubts. Hence, accused is convicted for the offence U/s 411 IPC.
Put up for arguments on sentencing at 2.00 pm.
ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT)
COURT ON 13.05.2014 METROPOLITAN MAGISTRATE07(C)
TIS HAZARI COURTS, DELHI.
FIR No. 108/10
PS- ODRS
State Vs. Mohd Raja Page 8 of 10
IN THE COURT OF SH. PAWAN SINGH RAJAWAT,
METROPOLITAN MAGISTRATE- 07, ROOM NO. 137 (CENTRAL), TIS HAZARI COURTS:DELHI.
STATE VERSUS MOHD RAJA FIR No. 108/10 P.S- ODRS U/s 411 IPC Present : Ld APP for the State.
Convict Mohd Raja with counsel.
O R D E R ON SENTENCING.
Arguments on the point of sentence heard today.
Ld. APP for the State submits that the offence by the convict is proved. He submits that convict be sentenced as per law.
On the other hand, ld counsel for convict submits that convict has family to maintain and will not repeat similar mistake in future and prays for leniency.
In the present case convict has dishonestly received or retained the stolen property which he knew or having reasons to believe that same is a stolen property. Eventhough, no previous involvement of convict is brought on record. But in order to ensure that the faith of common man is affirmed in the criminal justice system, the wrong doer must not go unpunished. The apprehension of the convict with the stolen property itself is an aggravating factor. No enmity brought by the accused either against the complainant or against the police officials.
Keeping in view the facts of the case, convict Mohd Raja is sentenced to Rigorous Imprisonment for one year (01 year) for the offence punishable U/s 411 IPC. Convict shall have the benefit of Section 428 Cr.P.C to set off the period FIR No. 108/10 PS- ODRS State Vs. Mohd Raja Page 9 of 10 of imprisonment already undergone if any.
At this stage, an application terms of Section 389 Cr.P.C for suspending the sentence and releasing convict on bail till pendency of appeal which he intend to file is moved. Accordingly, convict is admitted to bail on furnishing PB and SB in sum of Rs. 25,000/-, sentence is suspended, bail bond furnished, considered and accepted till 19.06.2014.
File be consigned to Record Room and Ahlmad is directed to place the Bail Bonds on 19.06.2014 awaiting the confirmation of filing of appeal. Copies of order be given free of cost to convict.
Announced in the open (PAWAN SINGH RAJAWAT)
court on 13.05.2014 METROPOLITAN MAGISTRATE-07
CENTRAL, TIS HAZARI COURTS, DELHI
FIR No. 108/10
PS- ODRS
State Vs. Mohd Raja Page 10 of 10