Delhi District Court
15) In State Of Rajasthan vs Waman Narayan Gheeya And Ors. on 30 April, 2022
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET010006952013
SC No. 570/2016
State v. Sanjay @ Sonu
FIR No. 573/2013
U/S 411/413 IPC & 25 Arms Act
PS: Kalyanpuri
In the matter of :
State
versus
Sanjay @ Sonu
S/o Rama Pradhan,
R/o H.No. 5/465,
Khichri Puri, Delhi.
Date of Institution : 18.12.2013
Date of reserving Judgment : 20.04.2022
Date of pronouncement : 30.04.2022
Appearance
SC No. 570/2016 Page 1 of 37
For the State : Shri.Santosh Kumar,
Additional Public Prosecutor.
For accused : Shri A.K.Bali, Ld. LAC.
JUDGMENT
1) Briefly stated facts of the case are that on 29.09.2013, at about 7.45 p.m, Ct. Monu Kumar alongwith Ct. Mohit was on patrolling duty and when they reached at 6 Block, Trilok Puri Chowk, they saw that Sanjay @ Sonu, Bad Character (BC) of PS Kalyan Puri was coming from the side of Bal Vikas Vidhyala, Trilok Puri on a black colour Pulsar motorcycle having registration no. DL3SCE3923. Ct. Monu Kumar alongwith Ct. Mohit stopped him and searched the accused. The accused was found carrying one loaded country made pistol/ katta in right pocket of his pant and one live cartridge from the left pocket of his pant. Information regarding the same was given to the duty officer of PS Kalyanpuri telephonically. The information was recorded vide DD No. 46A Ex. PW1/A. Upon receipt of DD No. 46A Ex. PW1/A which was marked to IO SI Arun Ahalawat, he reached Block 6 Trilok Puri Delhi where Ct. Monu and Ct. Mohit handed over the accused to him alongwith one loaded country made pistol /katta and one live cartridge. One motorcycle of black colour make Pulsar bearing registration No. DL3CE3923 was also produced before him. Upon verification from SC No. 570/2016 Page 2 of 37 100 number, the motorcycle recovered from accused was found to be a stolen one and FIR No. 213/13 was registered at PS Saket in this regard. The said motorcycle was taken into possession vide seizure memo Ex. PW2/C.
2) On the basis of statement of Ct. Monu and recovery effected from the accused, rukka was prepared and FIR bearing No. 573/2013 was registered u/s 25 Arms Act and 411 IPC, Ex. PW1/B. IO prepared the sketch of weapon after unloading the same as well as of the two live cartridges vide Ex. PW2/A. Thereafter, IO converted the said case property into a sealed parcel and seized the same vide seizure memo Ex. PW2/B. The case property was deposited in the Malkhana. The accused was arrested vide arrest memo Ex. PW2/E and his personal search was conducted vide Ex. PW2/F. His disclosure statement was recorded vide Ex. PW2/G. He was got medically examined. IO prepared the site plan vide Ex. PW7/B.
3) During investigation, the accused disclosed that he had parked one Maruti Zen car at Kundli, District Sonepat, Haryana, which was stolen from Sahibabad, U.P. Police took the accused to Kundli for recovery of the said Maruti Zen car and at his instance Maruti Zen car of blue colour bearing registration No. DL3CK4999 was recovered from SC No. 570/2016 Page 3 of 37 a vacant plot near Mata Nihali School, near Milk Dairy. The said vehicle was taken into possession vide seizure memo Ex. PW7/C. The vehicle was deposited at Malkahana. The IO verified the ownership of Maruti Zen car from transport authority, Delhi and the said vehicle was found registered in the name of Sh. Hardayal Singh. The IO visited the residence of Hardayal Singh and recorded the statement of Amandeep Singh, son in law of Hardayal Singh, who was plying the said vehicle at the time of incident of theft. IO sent the country made pistol and cartridges to CFSL (CBI), Lodhi Road for evaluation and analysis. Sanction u/s 39 Arms Act was obtained from DCP East and placed on record. After completion of necessary investigation charge sheet was filed u/s 411/413 IPC and Section 25 of the Arms Act.
4) On the basis of chargesheet and the documents submitted with it, the learned Chief Metropolitan Magistrate (East), Karkardooma Court, took cognizance of offence and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 11.12.2013 committed the case to the Court of Session for 18.12.2013.
Charge :
5) On 07.05.2014, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused, charge was SC No. 570/2016 Page 4 of 37 framed against the accused for commission of offence punishable under Section 413 IPC and u/s 25 Arms Act. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.
Prosecution Evidence :
6) In order to prove its case, the prosecution examined following witnesses.
(i) PW1 HC Ram Kishore, Duty Officer, who deposed regarding an information received from Const. Monu at 7.52 pm regarding apprehension of the accused alongwith motorcycle and loaded country made pistol/katta, which was recorded vide DD No. 46A Ex. PW1/A. He also registered the FIR Ex. PW1/B.
(ii) PW2 Const. Monu Kumar, who deposed that on 29.09.2013 he alongwith Ct. Mohit was on patrolling duty in the area. When they reached at 6 Block, Trilok Puri Chowk, they saw accused Sanjay @ Sonu, Bad Character (BC) of PS Kalyan Puri was coming from the side of Bal Vikas Vidhyala, Trilok Puri on a black colour motorcycle having registration no. DL3SCE3923. PW2 alongwith Ct. Mohit stopped SC No. 570/2016 Page 5 of 37 him. They searched the accused Sanjay @ Sonu and he was found carrying one loaded country made pistol in his right pocket of his pant and one live cartridge from the left pocket of his pant. Thereafter information regarding the same was given to the Duty Officer. IO/SI Arun Ahalawat reached the spot where PW2 and Ct. Mohit handed over the accused to him alongwith recovered country made pistol and live cartridge. One motorcycle was also produced before the IO.
He further deposed that the IO asked public persons to join investigation but none agreed and left the spot without telling their names and addresses. Thereafter, IO prepared sketch of the weapon as well as of the two live cartridges vide Ex. PW2/A and seized the same vide seizure memo Ex. PW2/B. The motorcycle was seized vide seizure memo Ex. PW2/C. Upon verification from 100 number, the motorcycle recovered from accused was found to be a stolen one and FIR No. 213/13, u/s 379 IPC was registered at PS Saket in this regard. Rukka was prepared by the IO and the same was handed over to PW2, who handed over the rukka of the case to Duty Officer and the FIR bearing No. 573/2013 was registered u/s 25 Arms Act and 411 IPC, Ex. PW1/B. After registration of the FIR, PW2 returned to the spot alongwith copy of FIR and original rukka and handed over the same to the IO. The accused was arrested vide arrest memo Ex. PW2/E and his SC No. 570/2016 Page 6 of 37 personal search was conducted vide Ex. PW2/F. His disclosure statement was recorded vide Ex. PW2/G. He was got medically examined.
PW2 further deposed that the accused was taken to Kundli, Haryana, in the night hours and he got recovered one Maruti Zen car bearing no. DL3CK4999 from near Mata Nihali School, near milk dairy from the vacant plot. The vehicle was taken to PS by driving by PW2 and the same was found to be stolen from PS Sahibabad. PW2 identified the country made pistol, one live cartridge and one fired cartridge, which he stated had been recovered from the accused. The same were exhibited as Ex. P1.
(iii) PW3 Amandeep, who deposed that his Zen car of blue colour bearing registration No. DL3CK4999 which was registered in the name of fatherinlaw of his brother namely Harjinder Singh. He was using the said vehicle since a long time. On 05.08.2013 the said vehicle was stolen from outside their house during night hours. On the same day in the morning at about 10 am he lodged a report regarding theft of the said vehicle at Sahibabad. He also deposed that after some days he received a call from SI Arun Ahlawat PW7 of PS Kalyan Puri stating that his vehicle had been recovered by the police and he was asked to SC No. 570/2016 Page 7 of 37 come to the police station for getting the same released. He went to PS Kalyan Puri and found the aforesaid car standing in the PS Malkhana but the same was not in working condition. The RC of the vehicle was also found missing therefore, he did not get the same released on superdari. He deposed that he handed over copy of the missing report to the police which was seized vide seizure memo Ex. PW3/A. In his crossexamination PW3 deposed that the police did not record the statement of the registered owner of the vehicle namely Harjinder Singh. He had lodged a missing report on the day of theft but the police did not register the same. He denied that he lodged the missing report of the above vehicle on 10.11.2013 at the instance of Delhi Police. He deposed that the Delhi Police had shown him the vehicle on the next day i.e. 11.11.2013. On that day, the vehicle was not in working condition. He volunteered that at that time the tyre, bonnet, bumper and the steering wheel were not in working condition. He denied the suggestion that he was deposing falsely regarding theft of the said vehicle or that he was planted as a witness by the police.
(iv) SI Arun Ahlawat was inadvertently examined as PW7 after PW3 Amandeep even though he was called as the fourth witness in the matter and the other witnesses thereafter were examined as PW8, PW9 SC No. 570/2016 Page 8 of 37 and so on.
PW7 SI Arun Ahlawat deposed that on 29.09.2013 DD No. 46A Ex. PW1/A was marked to him for investigation. Upon receipt of the said DD, he reached at 6 Block, Trilokpuri, Delhi, where Ct. Monu and Ct. Mohit handed over the accused to him alongwith one loaded katta and one live cartridge. One motorcycle of black colour make Pulsar bearing registration No. DL3CE3923 was also produced before him. He recorded the statement of Const. Monu Ex. PW2/D. PW7 asked several public persons to join investigation but none agreed. PW7 prepared the sketch of weapon after unloading the same as well as of the two live cartridges vide Ex. PW2/A. Thereafter, PW7 converted the said case property into a sealed parcel and seized the same vide seizure memo Ex. PW2/B. Upon verification from 100 number, the motorcycle recovered from accused was found to be a stolen one and FIR No. 213/13 was registered at PS Saket in this regard. The said motorcycle was taken into possession vide seizure memo Ex. PW2/C. PW7 prepared the rukka, which was handed over to Const. Monu for registration of FIR at PS Kalyanpuri and on the basis of same FIR was registered and const. Monu handed over the same to the IO. The accused was arrested vide arrest memo Ex. PW2/E and his personal search was conducted vide Ex. PW2/F. His disclosure statement was recorded vide SC No. 570/2016 Page 9 of 37 Ex. PW2/G. He was got medically examined. PW7 prepared the site plan vide Ex. PW7/B. PW7 further deposed that during interrogation, the accused disclosed that he had parked one Maruti Zen car at Kundli, District Sonepat, Haryana, which he had stolen from Sahibabad, U.P. PW7 alongwith Const. Monu PW2 and Const. Mohit took the accused to Kundli for recovery of the said Maruti Zen car and at his instance Maruti Zen car of blue colour bearing registration No. DL3CK4999 was recovered from a vacant plot near Mata Nihali School, near Milk Dairy. The said vehicle was taken into possession vide seizure memo Ex. PW7/C. The vehicle was deposited at Malkahana. PW7 verified the ownership of Maruti Zen car from transport authority, Delhi and the said vehicle was found registered in the name of Sh. Hardayal Singh. PW7 visited the residence of Hardayal Singh and recorded the statement of Amandeep Singh, son in law of Hardayal Singh, who was plying the said vehicle at the time of incident of theft. PW7 recorded statement of Amandeep Singh and collected one slip regarding intimation of theft of the vehicle at PS Sahibabad, UP. The same slip is Ex. P1. He sent the country made pistol and cartridges to CFSL (CBI), Lodhi Road. PW7 obtained the sanction u/s 39 Arms Act from DCP East and placed the same on record. PW7 identified the country made pistol, one live SC No. 570/2016 Page 10 of 37 cartridge and one fired cartridge vide Ex. P1 (now described as Ex. Z for sake of convenience as there is already an Ex. P1). He also identified the Maruti Zen car bearing registration no. DL3CK4999 through the photographs placed on record, which are Ex. PX1 and PX2.
In his crossexamination, IO PW7 deposed that the country made pistol and cartridge were handed over to him in open condition by Const.Monu. Public persons were present at the spot when he reached there. He requested the public persons to join the investigation but no one joined. He did not note down their names and addresses and did not give any notice u/s 160 Cr.P.C. to them. No official from PS Saket came to the spot regarding FIR No. 213/2013. He reached Kundli in his private car. Local police aid was not taken but two police officials of PS Kundli reached the spot from where Zen car was recovered, while patrolling in the area. Statement of the said two police officials of PS Kundli was not recorded. No separate departure or arrival entry was made at PS Kundli. The recovered Zen car was brought to Delhi after recovery by Const. Monu. PW7 denied the suggestion that the accused was not arrested in the manner alleged and therefore, no public witness was joined. He denied that no country made pistol or cartridge were recovered from the accused and that the same had been planted. He denied that the alleged car was not recovered at the instance of accused SC No. 570/2016 Page 11 of 37 from Kundli and therefore, no local police aid was taken. He denied that the accused was called at the PS and falsely implicated in the present case. He denied that nothing had been recovered at the instance of the accused or from his possession and the case property was planted upon him.
(v) PW8 Const. Pankaj, who deposited the case property at CFSL (CBI), Lodhi Road.
(vi) PW9 Const. Mohit, who deposed that on 29.09.2013 he alongwith Ct. Monu was on patrolling duty and at about 07.45 pm, they reached near 6 Block, Trilok Puri Chowk. Suddenly, Const. Monu PW2 saw accused Sanjay @ Sonu, BC of their area and an auto lifter, was coming from the side of Bal Vikas Vidhyala, Trilok Puri on a Pulsar motorcycle DL3SCE3923. PW8 alongwith Ct. Monu stopped him and apprehended him on suspicion and his cursory search was conducted and he was found carrying one loaded country made pistol in his right pocket of his pant and one live cartridge from the left pocket of his pant. Thereafter information regarding the same was given to PS Kalyanpuri by Const. Monu. IO/SI Arun Ahalawat reached the spot where they handed over the accused to the IO alongwith recovered country made pistol and live cartridge. The motorcycle was also produced before the SC No. 570/2016 Page 12 of 37 IO. The IO checked the motorcycle through auto match and it was found that it was stolen from PS Saket area. Thereafter, IO prepared sketch of the weapon as well as of the two live cartridges vide Ex. PW2/A and seized the same vide seizure memo Ex. PW2/B. The IO prepared the site plan Ex. PW7/B. The motorcycle was seized vide seizure memo Ex. PW2/C. Rukka was prepared by the IO and the same was handed over to PW2 Const. Monu. The accused was arrested vide arrest memo Ex. PW2/E and his personal search was conducted vide Ex. PW2/F. His disclosure statement was recorded vide Ex. PW2/G. He was got medically examined.
PW9 further deposed that in pursuance to his disclosure statement, the accused was taken to Kundli, Haryana, in search of vehicle no. DL3CK4999 and he got recovered one Maruti Zen car bearing no. DL3CK4999 from near Mata Nihali School. IO seized the same vide Ex. PW7/C. Thereafter the police alongwith the accused and the recovered car came to the PS. The case property was deposited in the Malkhana.
(vii) PW10 HC Sukhpal, MHC(M).
(viii) PW11 Const. Rishi Pal Singh, PS D.B.G.Road, who produced the SC No. 570/2016 Page 13 of 37 previous conviction/involvement report SCRB Delhi regarding the accused. The same is Ex. PW11/A. The said witness was not cross examined by the accused despite opportunity.
(ix) PW12 HC Satish Kumar, PS Kalyanpuri, who produced the record of involvement and status of cases of accused prepared by him on the basis of record. The same is Ex. PW12/A. The said witness was not crossexamined by the accused despite opportunity.
(x) PW13 ASI Vinod Kumar, PS Preet Vihar, who produced the record of involvement and status of cases of accused prepared by him on the basis of record. The same is Ex. PW13/A. The said witness was not crossexamined by the accused despite opportunity.
(xi) PW14 HC Bhuvnesh, PS Kamla Market, who produced the previous conviction/involvement report SCRB Delhi regarding the accused. The same is Ex. PW14/A. He also produced the copy of FIR bearing no. 399/2000, PS Kamla Market. He deposed that the accused was convicted in the said case on 19.07.2002. The copy of the FIR is Ex. PW14/B. The said witness was not crossexamined by the accused despite opportunity.
SC No. 570/2016 Page 14 of 377) The learned counsel for the accused did not dispute the genuineness of the CFSL Report No. CFSL2013/F1680 dated 22.05.2014 Ex. X1 and the sanction u/s 39 Arms Act dated 19.02.2014 Ex. Z1, therefore the witnesses ie Dr. Babita Gulia and DCP (East) were dropped from the list of witnesses.
Statement of accused :
8) After conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he is innocent and has been falsely implicated in this case by the police. He stated that the prosecution witnesses were interested witnesses and had deposed falsely at the instance of the IO. He further stated that the allegations against him were false and he had nothing to do with the alleged motorcycle or the alleged country made pistol, which were falsely planted upon him to implicate him in the present false case. It is stated that on the relevant date there was no pending case against him and he was falsely implicated in the present case. He stated that the DD entries placed on record were false and manipulated. He was called from his house at the police station and falsely implicated in the present case. He stated that SC No. 570/2016 Page 15 of 37 his signatures were taken forcibly on some blank papers and memos.
He stated that the malkhana entries have been manipulated to implicate him in the present false case. The sanction for prosecution u/s 39 Arms Act has been given in a mechanical manner. Regarding the previous involvement, he stated that in a few cases he had been acquitted and other cases were disposed of. He did not wish to lead any evidence in his defence.
Arguments :
9) It is contended by the ld. Counsel for the accused that the accused has been falsely implicated in the present case as he was involved in other cases also. It is stated that the recovery of the motorcycle and the country made pistol has been falsely shown from him and accused has nothing to do with either the motorcycle or the country made pistol and the cartridges. The said articles have been shown to have been recovered from him in order to keep the accused behind bars in a stringent offence of section 413 IPC. It is urged that even the recovery of Maruti Zen car has been falsely shown to have been made at the pointing out of the accused and the accused had nothing to do with the said Maruti Zen car.
It is also urged that no public witness has been examined in the present case as all the recoveries have been planted upon the accused. The essential ingredients of Section 411 IPC and consequently of section SC No. 570/2016 Page 16 of 37 413 IPC do not stand satisfied and therefore, the accused is liable to be acquitted for the offence he is charged with.
10) On the other hand, ld. Addl.P.P. for the State contends that the accused was found to be in exclusive possession of the motorcycle and the country made pistol and the cartridges were also recovered from him. Merely because public persons were not joined at the time of recovery would not be sufficient to brush aside the said recoveries as public persons usually refrain from joining the investigation. Moreover, it is settled law that merely because only police witnesses have supported the case of the prosecution, would not lead to a conclusion that their evidence is tainted. The evidence of the police officials stands on the same footing as any other witnesses. It is urged that even the Maruti Zen car was recovered at the instance of the accused. Moreover, the testimony of PW11, PW12, PW13 & PW14 indicate that the accused was previously involved in many other cases and was also convicted in FIR No. 229/2000, u/s 294 IPC, PS Preet Vihar. He was also convicted in FIR No. 197/2013, u/s 379/411 IPC, PS Saket; FIR No. 0385/2012, u/s 379/411 IPC, PS Kalyanpuri and FIR No. 399/2000, u/s 379/411 IPC, PS Kamla Market. It is urged that in these circumstances, it is clearly proved on record that the accused was habitual in dealing with stolen property and therefore he is liable to be held guilty for an offence SC No. 570/2016 Page 17 of 37 u/s 413 IPC.
11) I have heard the ld. Counsels for the parties and perused the record.
12) The accused has been charged for an offence under section 413 IPC.
13) Perusal of the record reveals that both PW2 Ct. Monu Kumar and PW9 Ct. Mohit have both deposed regarding the fact that on 29.09.2013 when they were on patrolling duty, at about 07.45 pm, when they reached near 6 Block Trilok Puri, Delhi, suddenly they saw the accused coming from the side of Bal Vikas Vidhalaya, Trilokpuri, on a black colour Pulsar motorcycle having registration on DL3SCE3923. They searched the accused and found him carrying one country made pistol in the right side pocket of his pant and one live cartridge in the left pocket of his pant. Information regarding the same was given to the Duty Officer. IO/SI Arun Ahlawat PW7, who reached the spot and the recovered articles were seized by him. The IO asked public persons to join investigation but no one agreed and left the spot without telling their names and addresses. Upon inquiry it was found that the motorcycle was stolen from PS Saket vide FIR No. 213/2013, u/s 379 SC No. 570/2016 Page 18 of 37 IPC.
14) Accused has been charged for the offence u/s 413 IPC. Section 413 of the Indian Penal Code is reproduced below:
"413. Habitually dealing in stolen property.Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
15) In State of Rajasthan vs Waman Narayan Gheeya And Ors. decided on 9 April, 2007; 2007 CriLJ 3614, it is observed as follows:
"32. In this view of the matter, it can very well be said that at the time of framing charge, the learned trial Court, if evidence is on record with regard to number of cases pending or, in which the person accused is convicted, can frame charge for offence under Section 413, IPC along with Section 411, IPC; but, at the time of final adjudication, i first of all, finding with regard to conviction for offence under Section 411, IPC is required to be arrived at; and, thereafter, for the purpose of convicting the accused for habitually dealing in stolen property, after recording finding of guilt sentence can be awarded under Section 413, IPC on the basis of established habitually dealing in stolen property and the prosecution is required to prove the regular indulgence with regard to offence under Section 411, IPC by way of producing the required evidence. Thus, at the stage of framing charge. It is not necessary that there must be conviction or finding against the accused for the purpose of framing charge under Section 413, IPC." (emphasis supplied) SC No. 570/2016 Page 19 of 37
16) With regard to an offence under section 413 IPC, the Hon'ble Delhi Court in CRL.A. 788/2017, Ajay Sethi vs State decided on 30 August, 2017, made the following observations:
"49. .........Since the offence under Section 413 IPC is interrelated with and is an aggravated form of Section 411 IPC Section 413 IPC is based on repeated convictions for offence under Section, the State would have to prove and establish that the offender was convicted repeatedly, twice or more than twice, for offence under Section 411 IPC so as to establish beyond a reasonable doubt that he is in the habit of dealing with or receiving stolen property. Therefore, the conviction under 411 IPC. Due to previous conviction, a punishment of different kind is prescribed in Section 413 IPC which the accused is required to undergo.
50. Hence, while prosecuting a person for offence under Section 413 IPC, the prosecution has to prove the following factors: firstly, the property in question has been stolen from a place. Thus, the prosecution must bring the property within the ambit of Section 410 IPC within the definition of stolen property. Secondly, the offender has been dealing with or receiving stolen property. Thirdly, the offender knew or had a reason to believe the property to be stolen. Fourthly, he has been repeatedly convicted, i.e twice or more than twice, of offence under Section 411 IPC. It is only after the prosecution establishes these factors that the court would be legally justified in concluding that the offender is habitually dealing with or receiving stolen property and in imposing the punishment as prescribed by Section 413 IPC." (emphasis supplied)
17) The Hon'ble Delhi High Court relied upon the judgment in the matter of Vaman Narain Ghiya vs State on 15 January, 2014, wherein it was also observed by Rajasthan High Court as follows:
"74. Sections 411 and 413 IPC prescribe two distinct, but inter related offences. There are certain similarities and differences between the two: both are concerned with stolen property. Under both SC No. 570/2016 Page 20 of 37 the provisions, the offender must have the knowledge or a reason to believe that the property is stolen as defined in Section 410 IPC. But while Section 411 IPC deals with dishonestly receiving or retaining stolen property, Section 413 IPC deals with habitually receiving or dealing with stolen property. There is a difference between retaining and dealing. To retain means to keep it in ones possession or custody; to deal implies that the offender has certain concern with the property either by keeping it in his possession, or parting with the ownership, or possession of the property through any of the modes of transfer of property. Hence, the verb to deal is broader in its scope than the verb to retain. Most importantly, while Section 411 IPC lays down punishment for one time act, Section 413 IPC prescribes punishment for a series of similar acts which would prove the habit of the offender. Furthermore, while Section 411 IPC punishes a single act with a term of three years, or with fine, or with both, Section 413 IPC punishes a series of act with life imprisonment. Thus, Section 413 IPC is a more aggravated form of Section 411 IPC. It prescribes harsher and a punishment different kind as the person has been indulging in similar act of receiving and retaining stolen property over a period of time.
75. But the moot question is whether in order to establish habit or habitually receives or deals with, one needs mere existence of FIRs, or the offender has to be convicted of offense under Section 411 IPC, two or more times, in order to infer habit? As mentioned above, there is a clear cut distinction between preventive detention and punitive one. In preventive detention, considering the previous conduct of a person as reflected in a series of FIRs, the Executive can safely infer that the person is dangerous or habitually deals with stolen property, or is antisocial in his conduct or behaviour. Drawing this inference on a subjective basis, the Executive can detain the person preventively.
76. However, the same inference on subjective manner cannot be applied in punitive detention for the following reasons: firstly, the function of preventive detention and punitive detention are different. Secondly, preventive detention is based on suspicion, punitive detention, on proof or evidence produced during a fullfledged trial. Thirdly, in punitive detention the offender is presumed to be innocent till proven guilty. It is the bounden duty of the State to prove the guilt of the offender. Moreover, the proof has to be beyond a reasonable doubt. Mere existence of series of FIRs does not amount to proof, as a SC No. 570/2016 Page 21 of 37 FIR is nothing but allegations made by the complainant. Allegations are not proof of the fact. The allegations have to be established and proved through cogent and convincing evidence. Further, a series of chargesheets for offence under Section 411 IPC would not tantamount to proof. For, chargesheet is nothing but conclusions drawn by the investigating agency. Thus, a series of FIRs or a series of chargesheets would not ipso facto establish habit or habitually dealing with or receiving stolen property.
77. Something more is required to establish that the offender is in the habit of dealing with or receiving stolen property. Since the offence under Section 413 IPC is interrelated with and is an aggravated form of Section 411 IPC, the State would have to prove and establish that the offender was convicted repeatedly, twice or more than twice, for offence under Section 411 IPC so as to establish beyond a reasonable doubt that he is in the habit of dealing with or receiving stolen property. Therefore, the conviction under Section 413 IPC is based on repeated convictions for offence under Section 411 IPC. Due to previous conviction, a punishment of different kind is prescribed in Section 413 IPC which the accused is required to undergo."
18) Hence, the offence under section 413 is an aggravated form of section 411 IPC. The initial FIR in the present case was lodged under section 411 IPC. Chargesheet was filed u/s 411/413 IPC and charge was framed under section 413 IPC.
19) Accordingly, the firstly it has to be proved on record that the property in issue was a stolen property within the meaning of section 410 IPC. The accused was found to be in possession of stolen motorcycle in respect of which FIR No. 213/2013 had been registered at SC No. 570/2016 Page 22 of 37 PS Saket under section 379 IPC. It is pertinent to note that the said FIR bearing no. 213/2013 PS Saket, allegedly pertaining to the motorcycle in issue bearing registration No. DL3SCE3923 has not been placed on record. The complainant of FIR No. 213/2013 PS Saket has not been examined. It has also not been proved on record that FIR No. 213/2013 PS Saket pertains to the motorcycle in issue in the present case. Neither the complainant of the said FIR No. 213/2013 of PS Saket has been summoned as a witness to prove the theft of the motorcycle bearing No. DL3SCE3923 nor any other document has been placed on record to show that the said motorcycle was a stolen one.
20) It is also note worthy that PW14 has placed on record the previous conviction/involvement report SCRB Delhi vide Ex. PW14/A indicating the details of the previous involvements/convictions of the accused. However, the entire list which mentions about 2528 previous involvements of the accused, does not mention any FIR bearing No. 213/2012, u/s 379 IPC of PS Saket. Though the said list mentions the FIR bearing No. 313/2013 of PS Saket u/s 379/411 IPC, however, the said FIR no. 313/2013 of PS Saket has also not been placed on record. Moreover, the said FIR No. 313/2013 of PS Saket has been indicated to be u/s 379/411 IPC. Accordingly, in the event the accused was already SC No. 570/2016 Page 23 of 37 found involved in an offence u/s 411 IPC in the said FIR, then it is strange that the present FIR was also lodged u/s 411 IPC, when maybe another FIR for the recovery of the said stolen motorcycle had already been filed at PS Saket. Be that as it may, in the absence of the FIR on the basis of which it is alleged that the present motorcycle bearing No. DL3SCE3923 is a stolen one has not been placed on record and also in the absence of examination of owner of the said vehicle, it cannot be presumed that the said motorcycle bearing No. DL3SCE3923 was a stolen one.
21) Admittedly no public witness has been joined in the investigation at the time of recovery, though it is stated that efforts were made to join public witnesses, however, they refused, which indicates that public witnesses were available, despite the same no notices were given to them to join the proceedings. Merely a stereo typed version that public persons refused to join the recovery cannot be taken as gospel truth as the same does not inspire any confidence in absence of any corroborative evidence. No sincere efforts have been made by the police to join public witnesses in the investigation. In Pradeep Narayan v. State of Maharashtra, AIR 1995 SC 930, the Hon'ble Supreme Court observed that failure of police to join witnesses from the SC No. 570/2016 Page 24 of 37 locality during search creates a doubt about fairness of investigation and benefit of same has to be given to the accused. The recovery of property before independent witnesses imparts authenticity to the recovery proceedings and the said safeguard avoids high ended action of the police officials. Undoubtedly if the evidence of the police witnesses is found to be credible and coherent, the same can solely be basis of conviction and their evidence cannot be thrown out merely because the witness is a police witness. The Hon'ble Supreme Court has held in Kalpanath Rai vs. State, AIR 1998 SC 201, that in cases where independent witnesses have not been joined, an added duty is placed on court to adopt greater case while scrutinizing the evidence of police officials.
22) It is urged by the Ld. Addl.P.P. for the State that the recovery witnesses have fully supported the case of prosecution and their testimonies are corroborative of each other and therefore, the recovery is proved on record. In this regard it is a relevant to note that the recovery witnesses are police officials and though the testimony of police officials has to be treated like testimony of any other public witnesses, however, the said testimony cannot be relied upon to convict the accused in absence of any other corroborative material on record.
SC No. 570/2016 Page 25 of 37Considering the fact that the FIR on the basis of which the motorcycle allegedly recovered from the accused was treated as a stolen one, has not been placed on record, the testimony of the police officials cannot be taken to be a gospel truth, more so when no public witness has been joined in the recovery proceedings. No satisfactory explanation has been put forth on record for none joining of the independent witnesses and especially when they were available. It is also note worthy that the recovered motorcycle was never exhibited as evidence in the matter. Neither it was produced before the court nor the photographs of the said motorcycle were placed on record. In order to prove the offence u/s 411 IPC recovery has to be proved beyond shadow of any doubt. Hence, in the absence of any corroborative evidence either of the owner of the stolen vehicle or public witness of recovery, or the FIR bearing No. 213/2013 of PS Saket, it cannot be held to be proved that the motorcycle bearing No. DL3SCE3923 was a stolen one and the fact that the said motorcycle was recovered from the accused cannot be taken on its face value. Accordingly, the evidence on record is far from being satisfactory to bring home the guilt of the accused u/s 411 IPC as regards the alleged stolen motorcycle. Similarly no independent witnesses were joined at the time of recovery of the pistol and live cartridges, which were recovered at the time of recovery of motorcycle bearing No. DL3SCE 3923. Considering the aforesaid discussion regarding recovery of the SC No. 570/2016 Page 26 of 37 motorcycle, even the recovery of the country made pistol and live cartridges cannot be considered to be untainted and unblemished and hence, liable to be disregarded.
23) It is also the case of the prosecution that the accused had got recovered a stolen blue colour Maruti Zen car bearing registration no. DL3CK4999. It is asserted that the accused got the said car recovered from Kundli, Haryana near Mata Nihali School, near Milk Dairy, from a vacant plot. In this regard, PW3 Amandeep had deposed that the said blue colour Maruti Zen car bearing registration no. DL3CK4999 belonged to Harjinder Singh, his relative, and he handed over the missing report of the said vehicle to the IO vide seizure memo Ex. PW3/A. However, the said report was not put to the witness at the time of examination and was exhibited at the stage of examination of IO, PW 7 as Ex. P1. Said Ex. P1 is essentially a notice to the police regarding theft of the vehicle bearing registration no. DL3CK4999. Pertinently, the said notice is dated 10.11.2013 whereas the car was allegedly stolen on 05.08.2013. The photographs of the said vehicle were placed on record as Ex. PX1 and PX2 during recording of the testimony of the IO, PW7. However, the same were not put to PW3 to enable him to identify the said vehicle. It is also noteworthy that the photographs place on record i.e. Ex. PX1 and PX2 of the vehicle do not show the SC No. 570/2016 Page 27 of 37 registration number of the said vehicle. The said photographs were also not shown to PW3 and hence, the identity of the said car has also not been proved on record beyond reasonable doubt.
24) It is asserted that the accused got the said car recovered from Kundli, Haryana near Mata Nihali School, near Milk Dairy, from a vacant plot. No DD entries have been placed on record that the police had visited Kundli, Haryana. No public witness regarding the said recovery have also been joined in the proceedings. Though the recovery of the said car was affected in night and hence, the nonavailability of public witness can be pleaded, however, it is also noteworthy that no personnel of the local police have been joined in the investigation. In his crossexamination, the IO, PW7 has stated that he had taken two local police officials at the time of recovery, however they have not signed the seizure memo Ex PW7/C of the car. In his crossexamination the IO has denied that the alleged car was not recovered at the instance of the accused and for this reason no local police aid was taken. Additionally, there is no DD entries regarding departure and arrival entries made by the IO regarding leaving the police station or arrival in connection with the investigation of the said aspect. Hence, in absence of any corroborative evidence, even the recovery of the said blue colour Maruti Zen car is not unblemished.
SC No. 570/2016 Page 28 of 3725) Admittedly, the recovery was affected from a vacant plot nor Mata Nihali School at Kundli, Haryana. Admittedly, the said recovery was affected from a place accessible to all and therefore, it cannot be stated to be in "exclusive possession of the accused" as required under section 411 IPC. It is not urged by the prosecution that the said plot was a locked one and only accessible to the accused and hence, it cannot be stated that the accused was in exclusive possession of the said vehicle. Accordingly, there is no cogent evidence to connect the accused with the possession of the said Maruti Zen car. In these circumstances, the ingredients of section 411 IPC are not satisfied as regards Blue Maruti Zen car concerned.
26) Accordingly, in these circumstances, it can be safely concluded that the prosecution has miserably failed to prove that the Maruti Zen car bearing registration no. DL3CK4999 was a stolen car or that it had been recovered at the instance of the accused or from his exclusive possession.
27) In the above circumstances, there is no scope of raising the presumption u/s 114 (a) of Evidence Act against the accused as in order to invoke the presumption u/s 114(a) of Evidence Act the exclusive SC No. 570/2016 Page 29 of 37 possession of the accused of stolen property must be proved. In the present case, since the fact that the motorcycle was a stolen property has not been proved, the presumption u/s 114(a) of Evidence Act was not applied against the alleged recovery of the motorcycle bearing No. DL 3SCE3923. As regards the recovery of blue colour Maruti Zen car bearing registration no. DL3CK4999, the said presumption u/s 114(a) of Evidence Act cannot be invoked as the said car was allegedly recovered from a vacant plot near Mata Nihali School, near Milk Dairy, Kundli, Haryana and the said plot was not in exclusive possession of the accused. In these circumstances the presumption under section 114(a) of Evidence Act cannot be invoked as the prosecution has failed to discharge the initial onus placed upon it.
28) Be that as it may, the accused has been charged u/s 413 IPC. for habitually dealing in stolen property. For the purposes of section 413 Cr.P.C. the prosecution has to prove and establish that the accused was convicted repeatedly twice on more than twice for the offence under section 411 IPC so as to establish beyond reasonable doubt that he was in the habit of dealing with or receiving stolen property.
SC No. 570/2016 Page 30 of 3729) In the present case, in order to prove previous conviction of the accused, the prosecution has examined PW11, PW12, PW13 and PW14. PW11 Ct. Rishi Pal, PS DBG Road produced the previous conviction/involvement report of SCRB Delhi regarding the accused. The same is Ex. PW11/A. PW12 HC Satish Kumar, PS Kalyanpuri pro duced the record of involvement and status of cases of accused, Ex. PW12/A. PW13 ASI Vinod Kumar, PS Preet Vihar, produced the record of involvement and status of cases of accused, Ex. PW13/A. PW14 HC Bhuvnesh, PS Kamla Market, produced the previous convic tion/involvement report of SCRB Delhi regarding the accused, Ex. PW14/A. He also produced the copy of FIR bearing no. 399/2000, PS Kamla Market. He deposed that the accused was convicted in the said case on 19.07.2002. The copy of the FIR is Ex. PW14/B. The said wit nesses were not crossexamined by the accused despite opportunity.
30) It has to now be examined as to whether the aforesaid previous involvement reports furnished by the above said witnesses would contitute proof of previous conviction as provided under section 298 Cr.P.C. Section 298 Cr.P.C. reads as under :
"298. Previous conviction or acquittal how proved. In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by SC No. 570/2016 Page 31 of 37 any law for the time being in force,
(a) by an extract certified under the hand of the Officer having the custody of the records of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order, or
(b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered, together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted or acquitted."
31) Hence, as per Section 298 Cr.P.C, that there are two ways by which previous acquittal or conviction may be proved but at the same time it is expressly provided that these modes shall be in addition to any other mode provided by any law for the time being in force. Hence, the prosecution may prove a previous conviction not only by the modes provided under Section 298 Cr.P.C, but also by the modes provided under any other law which includes Evidence Act also. Thus, the effect of Section 298 Cr.P.C. is that together with the proof of previous conviction evidence is also required to be adduced as to the identity of the accused person with the person so convicted.
32) In State of Kerala v. Jayanandan @ Jayan [2017 CRI.L.J 2218], the counsel for the appellant/accused had raised Patna High Court D. REF. No.3 of 2019 dt.23032022 a contention that SC No. 570/2016 Page 32 of 37 the previous conviction of the accused was not properly proved under Section 298 of the Cr.P.C. and that the admission by the accused while he was examined before the High Court would not be a substitute for proof under Section 298 Cr.P.C.
33) In The High Court Of Kerala at Ernakulam vs Unknown decided on 28 October, 2011, Death reference No. 1/2012 it was observed as follows:
"70. The learned counsel for the appellant/accused had raised a contention that the previous conviction of the accused was not properly proved under Section 298 of the Code of Criminal Procedure and that the admission by the accused while he was examined before the High Court would not be a substitute for proof under Section 298 of the Cr.P.C."
"In the present case previous conviction was not proved in the manner provided in clauses (a) or (b) of Section 298 Cr.P.C..
71. The learned Public Prosecutor filed a memo stating the details of the cases in which the accused was involved and the cases in which he was convicted. That statement would not constitute proof as provided in clauses (a) and (b) of Section 298 of the Cr.P.C....."
"72. While examined before the High Court, the accused stated that he was involved in 18 cases that at present five cases are pending. He stated that he was involved in five murder cases and in three cases for escaping from the jail. He also stated that he was convicted in five cases. The question is whether the statement made by the accused while examined before this Court would be a substitute for proving the previous conviction in accordance with Section 298 of the Cr.P.C. Such a statement made by the accused while he was examined does not constitute proof of previous conviction under clause (a) or clause
(b) of Section 298 of the Cr.P.C.. Section 298 of the Cr.P.C. contains SC No. 570/2016 Page 33 of 37 an expression "in addition to any other mode provided by any law for the time being in force". So long as the prosecution has not brought out any material in evidence on the side of the prosecution about any previous conviction, answers given while examined under Section 313 Cr.P.C. that the accused was convicted previously in several cases would not be a substitute for proof under Section 298 of the Cr.P.C. An accused would be examined under Section 313 Cr.P.C. to afford him an opportunity personally to explain the circumstances appearing in the evidence against him. The examination of the accused under Section 313(1)(b) should be after the witnesses for the prosecution have been examined and before the accused is called on for his defence. It is true that proceedings for confirmation under Section 367(1) Cr.P.C. amount to an extended trial as held in Jumman v. State of Punjab (AIR 1957 SC 469) and State of Maharashtra v. Sindhi alias Raman (AIR 1975 SC 1665). But in the present case, the statements made by the accused about his previous conviction was not in answer to the materials produced by the prosecution in evidence in accordance with law. A voluntary statement by the accused that he was previously convicted would not be a substitute for the proof under Section 298 of the Cr.P.C.
Therefore, we are inclined to accept the contention of the accused that the statements made by him while examined before this Court cannot be taken into account for the purpose of proof of conviction under Section 298 of the Cr.P.C."
34) The fact as to whether the prosecution has been able to prove the previous involvement of the accused has to be seen in light of law discussed hereinabove. In the present case, the prosecution has essentially placed on record the list of cases taken from SCRB Delhi, in which the accused was involved or was convicted. PW14 has also placed on record a copy of the FIR bearing No. 399/2000, PS Kamla Market, in which case the accused is stated to have been convicted on SC No. 570/2016 Page 34 of 37 19.07.2002. However, the said list of cases showing previous conviction/involvement of the accused would not constitute sufficient proof for the purposes of section 298 Cr.P.C., which prescribes the manner of proving previous conviction. It is noteworthy that in the present case the prosecution has not brought any record including judgment in which the accused was convicted for an offence u/s 411 IPC. The prosecution has also not adduced evidence as regards the identity of the accused with the person so convicted in accordance with the mandate of Section 298 Cr.P.C. As discussed hereinabove, in the judgment of Vaman Narain Ghiya (Supra) the Hon'ble High Court has held that in punitive detention the offender is presumed to be innocent till proven guilty. It is the bounten duty of the State to prove the guilt of the offender. Moreover, the proof has to be beyond a reasonable doubt. Mere existence of series of FIRs or charge sheets would not tantamount to proof of previous convictions. In Dhananjayan v. State, 1989, Mad LW (Crl.) 210, it was observed that even admission by accused is not sufficient to prove previous convictions and that without the extract of the judgment in the previous case the Magistrate ought not to have questioned the accused. In High Court of Kerala at Ernakulam v. Unknown (Supra), it was observed that the answers given while being examined u/s 313 Cr.P.C. that the accused was convicted previously in SC No. 570/2016 Page 35 of 37 several cases would not be a substitute for proof u/s 298 Cr.P.C. Hence, before a person can be held to be a previous convict, the same has to be proved strictly and in accordance with law. The State has to prove that the accused was convicted repeatedly, twice or more than twice for the offence u/s 411 IPC so as to establish beyond a reasonable doubt that he was in the habit of dealing with or receiving stolen property. U/s 413 IPC owing to previous conviction a punishment of different kind is prescribed which the accused is required to undergo. Accordingly, the prosecution has to prove previous conviction in accordance with strict mandate of law. Accordingly in the present case, merely producing a list of cases in which the accused was previously found involved or found convicted is not sufficient proof for the purposes of section 413 IPC, which prescribes an enhanced punishment on the basis of previous convictions. The said lists filed by the prosecution do not throw any light on the details regarding the fact as to whether the accused was also convicted under the sections mentioned in the FIR, whether the accused in the present case was infact found guilty u/s 411 IPC. It also does not establish the identity of the accused with the person so convicted, as required by Section 298 Cr.P.C. In these circumstances, it can be safely concluded that the prosecution has failed to prove the previous involvements of the accused in terms of Section 298 Cr.P.C. or SC No. 570/2016 Page 36 of 37 otherwise, which is essential for proving the guilt of the accused u/s 413 IPC.
35) In these circumstances, it cannot be stated that prosecution has been able to prove the guilt of the accused beyond reasonable doubt. Hence, the accused is entitled to benefit of doubt. Accordingly, accused Sanjay @ Sonu is acquitted of the offences he has been charged with i.e. offence punishable u/s 413 IPC and U/s 25 of the Arms Act. His bail bonds stand cancelled and sureties stand discharged. After compliance of section 437A Cr.P.C, file be consigned to record room.
order Announced in the open Court DEEPALI Digitally signed by DEEPALI SHARMA On this 30th day of April, 2022 SHARMA Date: 2022.04.30 16:59:47 +0530 (Deepali Sharma) Additional Sessions Judge04 East District/KKD Courts/Delhi.
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