Delhi District Court
State vs . Devender Singh & Ors on 31 May, 2017
IN THE COURT OF SHRI NARESH KUMAR LAKA
CHIEF METROPOLITAN MAGISTRATE
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No.133/2009
PS Preet Vihar (Crime Branch)
State Vs. Devender Singh & Ors
(a) Sr. No. of the case 8549/2016 (New)
(b) Date of offence 15.03.2009
(c) Complainant Kulwant Singh
(d) Accused, parentage and (1) Devender Singh @ Babloo S/o
address Sh. Samunder Singh R/o Village
Dighal, PS Beri, District, Jhajjar,
Haryana
(2) Bittoo @ Kundal S/o Sh. Mange
Ram R/o Village Luhari, PS barot,
District Baghpat, U.P.
(e) Offences complained of Sections 379 IPC
Charged for Section 379/411 & 34
IPC
(f) Plea of accused Pleaded not guilty
(g) Final Order Conviction for Sec. 411 IPC
(h) Date of institution 15.05.2009
(i) Date when judgment was 23.05.2017
reserved
(j) Date of judgment 31.05.2017
J U D G M E N T
FIR No.133/2009 State Vs. Devender Singh & Ors Page No. 1 of 9
Brief facts: An incident of theft was reported by Sh. Kulwant
Singh to the police agency and accordingly his statement was recorded to the
effect that on 15.03.2009 at about 11.00 p.m., he had parked his Inova (Taxi)
car bearing no. DL1YB3487 (white colour, 2009 model, chasis no.
MBJ11JV4007114794, engine no. 2KD6028389) in front of shop no. C18,
Guru Nank Pura, Patparganj road, Delhi and on 16.03.2009 at about 05.30
a.m., he found his car missing from the said place. Consequently, an FIR was
registered for the offences under Section 379 IPC. During investigation both
the accused persons were arrested and the stolen vehicle was recovered.
2. After completion of investigation, the final report (charge sheet) for
the offences under Sections 379 & 411 read with Section 34 IPC was filed
against accused Devender Singh @ Babloo and Bittoo @ Kundal. After
summoning of accused persons, copy of the chargesheet was supplied to
them as per Section 207 Cr.P.C.
3. On the basis of material on record, a charge was framed for the said
offences against both accused persons, to which they pleaded not guilty and
claimed trial. The matter was put to trial and the prosecution examined total
seven witnesses as under:
PW1 Sh. Kulwant Singh, Complainant.
PW2 HC Amar Pal Singh who assisted IO in the investigation.
PW3 HC Azad Singh who assisted the IO in the investigation.
PW4 Ct. Ram Vir who assisted the IO in the investigation.
PW5 Sh. Rajiv Kumar, public witnesses
PW6 Sh. Prakash Chand, LDC Transport Department, Taxi Unit.
PW7 SI Chiranji Lal, IO.
FIR No.133/2009 State Vs. Devender Singh & Ors Page No. 2 of 9
4. The statements of accused persons under Section 313 Cr. P.C were
also recorded by putting all incriminating evidence to them. Accused persons
did not examine any witness in their defence.
5. I have heard arguments addressed by Sh. Rakesh Kumar, Ld. APP
for the State and Sh. V. S. Rawat, Ld. Counsel for accused Devender Singh
and Sh. V. K. Upadhyay, Ld. Counsel for accused Bittoo @ Kundal. File
perused.
REASONS FOR DECISION
Offence under Section 379 IPC
6. The present case is with regard to theft of a Innova Car and the
accused persons were charged for the offences under Section 379 & 411 IPC.
The prosecution examined total 07 witnesses which include the
complainant/owner of Innova car, one public witness, namely, Sh. Rajiv
Kumar and other police officials. The defence of the accused persons is to the
effect that they were falsely implicated in this case by leaving the actual
culprits i.e. Roshan and Hari Om.
7. As regards the offence of theft under Section 379 IPC, I hold that
prosecution failed to prove said charge since there was no eye witness to the
incident of theft. The accused persons were also chargesheeted in this case
only on the basis of recovery of the said car and there is no linking evidence
FIR No.133/2009 State Vs. Devender Singh & Ors Page No. 3 of 9
placed on record so as to show that the offence of theft was committed by the
accused persons only. Accordingly, both accused persons are acquitted for the
offence of theft under Section 379 IPC.
Offence under Section 411 IPC
8. The complainant Kulwant Singh (PW1) duly proved on record his
complaint (Ex.PW1/A) with respect to missing/stealing of his car which he
parked in front of his shop as well as ownership of the said car. Apart from it,
the PW6, Prakash Chand, LDC, Transport Department, Taxi Unit also
proved the record of the RC of the vehicle in question in the name of
complainant. The complainant also identified his car during the course of his
examination and the same was exhibited as P1. It is thus clear that the factum
of stealing of the car has been proved on record.
9. The accused persons were found involved in the present case on the
basis of their disclosure statements which were recorded in connection with
recovery of other vehicle i.e. one Tavera car and one Truck. In the said
disclosure statements, the accused persons also disclosed about committing of
a robbery upon the car in question and accordingly the IO of the present case
ASI Chiranji Lal took the accused persons in custody and sought police
remand from the concerned Magistrate. It is the case of the prosecution that
the accused persons pointed out the place where the said car was parked and
accordingly, the said car was seized/recovered.
10. Ld. Counsel for accused persons vehemently argued that the
recovery of the car cannot be said to be the discovery of the fact as per
FIR No.133/2009 State Vs. Devender Singh & Ors Page No. 4 of 9
Section 27 of the Indian Evidence Act since the accused persons were already
arrested before registration of the present FIR.
11. On the contrary, Ld. APP for the State pointed out that although
there was a delay in registration of the present case but the information was
already given by the complainant about stealing of his car and in this regard a
DD entry was also made at PS. He further submitted that it was the fault of
the Police Agency who did not register the FIR in time and the complainant
cannot be blamed for the same. I find substance in the said submission of Ld.
APP for the State.
12. Moreover, I do not find that there was any substantial delay in
registration of the present FIR because the vehicle was allegedly stolen on
16.03.2009and the FIR was registered on 18.03.2009. Even the complainant also gave an explanation in his complaint that he was trying to search out his vehicle at his own especially from the financial institution and other Police Agency who generally seize vehicle for unauthorized parking. There is nothing on record to suggest that the accused persons were arrested in the present case before registration of FIR of instant case and the arrest of the accused persons in other case cannot be taken as arrest in the present case. The accused persons were arrested in this case on 19.03.2009 as per the JC/PC applications.
13. I also do not find any substance in the argument that recovery was made first and disclosure statements were recorded subsequently. As per record, the vehicle was recovered only after taking the accused persons in FIR No.133/2009 State Vs. Devender Singh & Ors Page No. 5 of 9 police custody. Accordingly, the case laws i.e. Budha, Sunder @ Raju Vs. State, IV (2015) CCR 468 (DB) (Del.), decided on 04.11.2015 by Hon'ble High Court of Delhi, Qayum Mirza & Ors Vs. State of Jharkhand, IV (2015) CCR 463 (DB) (Jhar.) decided on 26.03.2015 by Hon'ble High Court of Jharkhand and Mehboob Ali & Anr. Vs. State of Rajasthan, IV (2015) CCR 205 (SC) decided on 27.10.2015 by Hon'ble Supreme Court of India, cited by Ld. Counsel for the accused persons are not applicable to the facts of the present case.
14. Apart from the aforesaid evidence on record, the prosecution also examined one very important witness i.e. PW5 Rajiv Kumar who is the independent witness. He specifically deposed that he let out his property to Naveen and Deepak and both accused persons used to visit said property frequently. As such, he deposed with respect to link of the accused persons with the said tenanted premises and also proved on record the documents which were seized at the instance of accused persons from the said tenanted house i.e. the number plate of vehicle in question (Ex.P1) and other documents in the name of Roshan (Ex.P2). The recovery of the number plate of the car in question further strengthens the case of the prosecution and the said recovery is admissible as per Section 27 of Indian Evidence Act, duly supported by an independent witness.
15. It is further argued by ld. Counsel for the accused persons that the complainant claimed that he was having the key of the car in question but how the key of the car were recovered from the backside tyre of the vehicle in question, as claimed by the prosecution. In my considered opinion, it hardly FIR No.133/2009 State Vs. Devender Singh & Ors Page No. 6 of 9 matters as to who the car in question was started/opened by using a key from the genuine source or from duplicate one when the car was recovered at the instance of the accused persons only. Accordingly, this argument is rejected.
Nonjoining of public witnesses
16. The learned Defence Counsel also contended that no public person was joined in investigation. In my considered opinion, nowadays in a busy city like Delhi hardly any person agrees to join police investigations. The reasons maybe, the public persons avoid their summoning in the police stations and the Court and they treat it wastage of their precious time. The innocent and law abiding persons don't want any kind of confrontation from the side of offenders and harassment from the side of Police officials. Accordingly, I hold that nonjoining of public witnesses in the investigation of the present case is not fatal when the aforesaid witnesses gave very natural, consistent and trustworthy testimonies. In this regard reliance can be placed on the case of Union of India vs. Victor Nnamdi Okpo [Crl. Appeal No.617/2004 decided on September 16, 2010 by Hon'ble High Court of Delhi) wherein it was observed (in a case under NDPS Act where the requirement of joining of public witnesses is more stringent) that :
"It is a common knowledge that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for accused was not available or accused was not there. While departmental witnesses get leave from their office and also get necessary support from the office regarding TA, DA, the public FIR No.133/2009 State Vs. Devender Singh & Ors Page No. 7 of 9 witness are treated in a very clumsy manner in the courts and they keep standing from morning till evening and then they are told that defence counsel is not available. That is the reason that public persons are scared to become a witness in a criminal case and it is hard to find public witnesses these days. The case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of nonjoining of public witness. Neither the prosecution version of incident can be disbelieved only on the ground of nonjoining of public witness or non examination of public witness for valid reasons."
17. Both accused persons also took a defence that they were the drivers of a bus of Roshan and Hari Om and they latter called them for making some payment and the police officials were already present there, then the accused persons were falsely implicated in this case after letting off the real culprits. I do not find any substance in the said defence since the accused persons were taken to the tenanted house of Rajiv Kumar and the said Rajiv Kumar did not mention about the presence of Roshan and Hari Om. Moreover the vehicle was also recovered at the instance of accused persons only and the accused persons also did not file any complaint against the Police Agency or the said Roshan and Hari Om for their alleged false implication in this case. They have also not lead any defence evidence to prove the facts as to when they were called by Roshan and Hari Om, what was the time, what was the place and how they were contacted. Accordingly, it is clear that accused persons took a false plea and the same is rejected.
FIR No.133/2009 State Vs. Devender Singh & Ors Page No. 8 of 9 Conclusion
18. In the light of aforesaid findings, I hold that the prosecution duly proved the charge for the offence under Section 411 IPC against both accused persons and accordingly, accused Devender Singh @ Babloo and Bittoo @ Kundal are convicted for the offence under Section 411 read with Section 34 IPC.
19. Put up for arguments on the quantum of sentence on 09.06.2017.
Announced in open court (Naresh Kumar Laka) on 31.05.2017. Chief Metropolitan Magistrate (East) Karkardooma Courts : Delhi FIR No.133/2009 State Vs. Devender Singh & Ors Page No. 9 of 9