Delhi District Court
State vs . Shahrukh @ Manjoor on 26 April, 2013
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Shahrukh @ Manjoor
FIR No.626/05
U/s : 379 IPC
P.S. : Malviya Nagar
Date of Institution : 30.07.2005
Date on which case reserved for Judgment : 26.04.2013
Date of judgment : 26.04.2013
JUDGMENT
1.Sl. No. of the case : 626/05
2.Date of the Commission : 18.07.2005
of the offence
3.Name of the accused : Shahrukh @ Manjoor s/o Sh Tasleem
: R/o H. No. S-82/150, Jgdamba
: Camp, Sheikh Sarai Phase I, Malviya
: Nagar, New Delhi
4.Name of the complainant : Aas Mohammad s/o Sh. Rahman
: r/o H. No. B-106, Jgdamba Camp,
: Sheikh Sarai Phase I, Malviya Nagar,
: New Delhi
5.Offence complained of : 379/411 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Convicted u/s 379 IPC
FIR No. 626/05 State Vs Shahrukh @ Manjoor u/s 379/414 IPC 1/7
BRIEF FACTS
1. The story of the prosecution is that on 18.07.2005 at about 2.30pm at Jagdamba Camp, Sheikh Sarai, Phase I, Malviya Nagar, New Delhi within the jurisdiction of PS Malviya Nagar, in furtherance of their common intention accused Shahrukh @ Manjoor along with one Lallu (juvenile) had committed the theft of a tractor battery by dishonestly removing the same from the possession of the complainant without his consent and accused Shahrukh thereby committed an offence punishable under section 379 IPC read with section 34 IPC.
2. On the basis of the said allegations and on the basis of the complaint of the complainant Sh. Aas Mohammad, an FIR bearing number 626/05 under section 379 IPC read with section 34 IPC was lodged at Police Station Malviya Nagar.
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 30.07.2005.
4. On the basis of the charge-sheet, charge for the offence punishable under section 379 IPC read with section 34 IPC was framed against the accused person namely Shahrukh and read out to the said accused, to which he pleaded not guilty and claimed trial on 17.12.2005.
Appreciation of evidence
5. In order to prove the above said allegation against the accused Shahrukh, the prosecution has examined 4 witnesses.
6. PW-1 Sh. Aas Mohammad being the complainant was examined on 28.08.2006 and deposed that on 18.07.05 he had taken out his battery from his tractor parked near Ganda Nala as he usually did. He further deposed that he kept the said battery in his house and went for sleeping FIR No. 626/05 State Vs Shahrukh @ Manjoor u/s 379/414 IPC 2/7 into his house. He further deposed that at about 2.30am when he woke up, he found battery was not there. He came out of his house and saw that two boys were carrying his battery from his house. He chased and apprehended them. By that time Ct. Daryau Singh also came there. On inquiry their names were revealed as Lallu and Shahrukh. His statement was recorded by the IO in the PS vide Ex. PW-1/A. The battery was seized vide memo Ex. PW-1/B. Both accused were arrested and their personal search were conducted vide memos Ex. PW-1/C to F. He received his battery on superdari.
7. This witness was not cross examined by the accused despite opportunities given.
8. PW-2 Retired SI Jai Jai Ram who is a formal witness proved the copy of FIR Ex. PW-2/A and his endorsement on the rukka Ex. PW-2/B.
9. This witness was not cross examined by the accused despite opportunities given.
10. PW-3 HC Daryao Singh being police official was examined on 23.07.2012 and deposed that on 18.07.2005 he was on patrolling duty at Panchsheel Vihar. On that day at about 2.30am while patrolling he reached at Panchsheel Vihar in front of Jagdamba Camp and found one person namely Aas Mohammad who was running after the two persons and those boys were carrying the batteries. He further deposed that Aas Mohammad had caught hold of them and he got recorded the statement of complainant which is already Ex. PW-1/A and the accused present in the court along with his associates was taken to PS Malviya Nagar. Tehrir was prepared vide Ex. PW-3/A on the basis of the complaint of the complainant and FIR was registered. Further investigation of this case was handed over to HC Attar Singh. The tractor battery was seized vide memo already Ex. PW-1/B. FIR No. 626/05 State Vs Shahrukh @ Manjoor u/s 379/414 IPC 3/7 The accused Shahruk was arrested and his personal search was conducted vide memos already Ex. PW-1/C and F. His statement was recorded by the IO to this effect. Case property was deposited in the malkhana. He was able to identify the case property which is Ex. P-1.
11. This witness was not cross examined by the accused despite opportunities given.
12. PW-4 ASI Attar Singh being the IO was examined on 05.03.2013 and deposed that on 18.07.05 he was posted at PS Malviya Nagar as HC. On that day Ct. Daryao Singh and complainant Aas Mohammad came at PS along with two persons namely Shahrukh Khan and Lallu along with one tractor battery and told him that both the accused persons were trying to fled away after stolen his tractor battery from home and both the persons were apprehended by him with the help of Ct. Daryao Singh. Complainant also handed over to him battery purported to be recovered from the possession of the accused persons. He recorded the statement of complainant Aas Mohammad which is already Ex. PW-1/A. He prepared a tehrir on statement of the complainant and also made endorsement on tehrir which is Ex. PW-4/A bearing his signature at point A. The tractor batter was seized by him vide already Ex PW-1/B bearing his signatures at point C. Thereafter, he along with complainant Aas Mohammad went to the spot where at the instance of the complainant he prepared site plan which is Ex. PW-4/B bearing his signatures at point A. Both the accused persons namely Shahrukh and Lallu were arrested vide arrest memo already Ex. PW-1/C and D both bearing his signature at point C and their personal search memo were conducted vide already Ex. PW-1/E and F both bearing his signatures at point C respectively. The accused Shahrukh present in the court (correctly identified by the witness). Case property is already Ex.
FIR No. 626/05 State Vs Shahrukh @ Manjoor u/s 379/414 IPC 4/7 P-1.
13. This witness was not cross examined by the accused despite opportunities given.
14. As all the witnesses were examined by the prosecution and hence, PE was ordered to be closed on 05.03.2013. The statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 03.04.2013 wherein he stated that he does not want to lead any defence evidence.
15. Final arguments were advanced by Ld. APP for State and Ld. Counsel for accused. Heard.
Reasons for Decision
16. In order to prove the allegations of offence punishable u/s 379 IPC, the prosecution need to prove the following essential ingredients:-
● That the accused had dishonestly taken the property.
● That the property was movable.
● That the property was taken out of the possession of another
person/complainant.
● That it was taken without the consent of that
person/complainant.
● That there must be some moving of the property in order to
accomplish the taking of it.
17. In light of the above discussion, it has to be seen whether the above mentioned ingredients have been proved by the prosecution beyond a reasonable doubt.
18. In the present matter the prosecution has examined the complainant Aas Mohammad as PW-1 who has deposed that on the date of incident he had caught the accused Shahrukh along with his co-associate namely Lallu (Juvenile) while they were trying to take away his stolen battery. He further deposed that one Ct. Daryao Singh also came at the spot and the accused along with recovered battery were handed over to Ct. Daryao Singh. He FIR No. 626/05 State Vs Shahrukh @ Manjoor u/s 379/414 IPC 5/7 proved his complaint Ex. PW-1/A, the seizure memo of the battery Ex.
PW-1/B and the arrest memo and the personal search memos Ex. PW-1/C to F. He further identified the battery during his deposition to be the same battery which was stolen by the accused persons.
19. This witness was further corroborated by PW-2 Ct. Daryao Singh who deposed on similar lines. Further, none of the witnesses have been cross examined by the accused, hence the version of the prosecution and its witnesses remains unrebutted.
20. Further, in the statement recorded u/s 313 Cr.P.C. the accused has admitted that he was accompanying the co-accused Lallu, even though he has denied that he stole the battery. The incident having taken place, has not been denied by the accused. Once, the accused Shahrukh has not denied his presence at the spot of the incident, the fact that he was apprehended by the complainant with the stolen battery has been proved by the testimony of the complainant and PW-3 Ct. Daryao Singh.
It has been settled by the various higher courts that admission under section 313 Cr.P.C. can be taken to be a relevant fact in deciding the fate of the accused.
This question has been decided by the Hon'ble High Court in case titled :
Janki Dass Vs. State 1995CriLJ2175, (1994)ILR Delhi392 In this murder reference the only question of law that arose for consideration was as to whether a admission made under section 313 of the Cr.P.C. can form the basis of conviction. The Court Held that : "The underlying object behind Section 313 is to give an opportunity to the accused to be heard not only on what is prima facie proved against FIR No. 626/05 State Vs Shahrukh @ Manjoor u/s 379/414 IPC 6/7 him but on a very circumstance appearing in evidence against him so that he is not condemned unheard. It enables the accused to explain the circumstances appearing against him in evidence. The answers given by an accused may be taken into consideration in judging not only his innocence but also judging his guilt. There is nothing in the language of Section 313 to suggest that answers given by an accused admitting the evidence or circumstances proved against him, have to be ignored and have not to be taken into consideration for judging his guilt.
The weight to be attached to the statement of an accused made under Section 313 of the Code though cannot be placed in a straight jacket since it has to vary according to the circumstances of each case, yet the legal position seems to be clear that such statements can be taken into consideration in judging not only the innocence but guilt of the accused and admission made in a statement under Section 313 of the Code can be made the basis of conviction".
21. Thus the guilt of the accused has been proved by prosecution beyond a reasonable doubt. Hence, the accused Shahrukh @ Manjoor is hereby convicted of the offence charged u/s 379 IPC.
Matter be listed for arguments on sentence on 29.04.2013 at 2.00pm.
Announced in the Court
on 26.04.2013 (CHETNA SINGH)
MM-02(SD)/26.04.2013
Certified that this judgment contains 13 pages and each page bears my signatures.
(CHETNA SINGH) MM-02(SD)/26.04.2013 FIR No. 626/05 State Vs Shahrukh @ Manjoor u/s 379/414 IPC 7/7 STATE Vs. Shahrukh @ Manjoor FIR No.626/05 U/s : 379 IPC P.S. : Malviya Nagar 29.04.2013 Present: Ld. APP for the State.
Convict Shahrukh in person with counsel.
ORDER ON SENTENCE It is submitted by Ld. Counsel for the accused that the convict is a first time offender and has clean antecedents and is the sole bread earner of his family. Hence, it is prayed that either he be released on probation of good conduct or sentence to period already undergone.
On the other hand, Ld. APP for the State has argued for maximum punishment, as he states that the offence has been proved by the prosecution beyond a reasonable doubt and the convict does not deserve any leniency as he was caught redhanded on the spot.
Heard.
Aggravating Circumstances:
Facts leading to the conviction of the convict clearly reveal that he was caught red handed by the complainant while trying to steal his battery which was also recovered at the spot. Thus his guilt has been FIR No. 626/05 State Vs Shahrukh @ Manjoor u/s 379/414 IPC 8/7 proved beyond reasonable doubt.
2 Mitigating Circumstances:
(1)That the convict is the sole bread earner. (2)That he is a first time offender. (3) That the trial has been dragged for 8 long years.
Considering all the aggravating and mitigating circumstances, this court is of the considered opinion that the convict does not deserve to be released on probation of good conduct. However, as he is the sole bread earner of his family, he is sentenced to the period already undergone u/s 379 IPC.
His bail bonds stands cancelled. Surety is discharged.
Endorsement if any be cancelled. Original documents if any be returned to the surety.
File be consigned to record room.
(CHETNA SINGH) MM02(South)/29.04.2013 FIR No. 626/05 State Vs Shahrukh @ Manjoor u/s 379/414 IPC 9/7