Delhi District Court
State vs . (1)Kuldeep Kumar on 28 June, 2011
1
IN THE COURT OF Ms. CHETNA SINGH:MM03(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. (1)Kuldeep Kumar
(2)Lok Chand
FIR No.153/1998
U/s : 379/411/34 IPC
P.S. : Vasant Vihar
JUDGMENT
1.FIR No. : 153/1998
2.Date of the Commission of the offence : 07.05.1998
3.Name of the accused : (1)Kuldeep Kumar S/o
Sh. Prabhu Dayal R/o
I/107, Vijay Vihar,
PhaseII, Rohini,
Sector4, New Delhi85.
(2)Lok Chand @ Raj
Kumar S/o Sh. Dhani
Ram R/o A748,
Jwalapuri Camp No.4.
4.Name of the complainant : Sh. Ajay Khandelwal
R/o House No.A6/10,
Vasant Vihar, New
Delhi.
2
5.Offence complained of : 379/411/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted under
section 379 IPC
Convicted under
section 411 IPC
8.Date of final order : 28.06.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION The story of the prosecution is that on 07.05.1998 after 07:45 p.m at A6/10, Vasant Vihar, New Delhi, falling within the jurisdiction of Police Station Vasant Vihar, the accused persons namely Kuldeep Kumar and Lok Chand committed theft of Maruti Car bearing number DL2CJ3873 and on 21.08.1998 , the said Maruti Car was recovered at their instance, which both the accused persons had retained the same knowing or having reasons to believe to be stolen one and thereby committed offences punishable under section 379/411/34 IPC.
On the basis of the said allegations and on the basis of the complaint of the complainant Sh. Ajay Khandelwal, an FIR bearing number 153/1998 under section 379 IPC was lodged at Police Station Vasant Vihar on 3 08.05.1998 at 11:30 a.m. After investigation, chargesheet under section 173 Cr.P.C was filed on 04.01.1999.
On the basis of the chargesheet, a charge for the offence punishable under section 379/411/34 IPC was framed against the accused persons namely Kuldeep Kumar and Lok Chand and read out to the said accused persons, to which the accused persons pleaded not guilty and claimed trial on 18.05.1999.
JUDICIAL PRONOUNCEMENT In order to prove the offences punishable under section 379/411/34 IPC against the accused persons namely Kuldeep Kumar and Lok Chand, the prosecution is required to prove the following ingredients of the said offences: In order to prove the allegations of offence punishable under section 379 IPC, the prosecution need to prove the following essential ingredients: (1)That the accused had dishonestly taken the property.
(2)That the property was movable.
(3)That the property was taken out of the possession of another person/complainant.
(4)That it was taken without the consent of that 4 person/ complainant.
(5)That there must be some moving of the property in order to accomplish the taking of it.
(6)That the said offence has been committed in furtherance of common intention.
For offence under section 411 IPC, the prosecution is required to prove the following essential ingredient: That the accused has dishonestly received or retained any stolen property knowing or having reason to believe the same to be stolen property. In order to prove the said allegations, the prosecution has examined following witnesses: PW1 Ajay Khandelwal is the complainant himself. The said witness has exhibited his complaint made to the police regarding theft of his car bearing number DL2CJ3873. His complaint is Ex.PW1/A. He also marked the copy of the RC as Mark X. The said witness was not crossexamined by Ld. Counsel for the accused persons, despite opportunity being given. 5
PW2 SI Shakuntala Chauhan had registered the FIR of the present case vide Ex.PW2/A. The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW3 Kuldeep had brought the vehicle in question in the court. The said witness stated that the said vehicle was purchased by him from National Insurance Company and the superdari of the said vehicle in question was transferred in his name by the court vide Ex.PW3/A. The car is Ex.P2.
The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW4 HC Udaibir Singh in his examinationinchief has stated that in the intervening night of 2021/8/1998, he was posted at Police Post, Pushp Vihar, falling within the jurisdiction of Police Station Malviya Nagar. He further stated that on that day on receiving of secret information that some persons are planning to commit dacoity at petrol pump at Saket, he along with HC Jaipal and ASI Paramjeet formed a raiding party under the direction of SI Om Prakash and arrested the accused persons and accused persons made disclosure about theft of car bearing number DL2CJ3873. He further stated that the said vehicle was got recovered at the instance of the accused persons.
The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW5 ASI Paramjeet Singh in his examinationinchief has stated 6 that on 20/21.08.1998 he was posted at Police Station Malviya Nagar. He further stated that on that day on receiving a secret information to the effect that some persons are planning to commit dacoity at petrol pump at Saket, he along with HC Jaipal and HC Udaibir formed a raiding party under the direction of SI Om Prakash and arrested the accused persons and accused persons made disclosure about theft of car bearing number DL2CJ3873. The disclosure statement is Mark B and C. He further stated that the said vehicle was got recovered at the instance of the accused persons. The pointing out memo is Mark D. The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW6 HC Jaipal in his examinationinchief has stated that on 20/21.08.1998 he was posted at Police Station Malviya Nagar. He further stated that on that day on receiving a secret information to the effect that some persons are planning to commit dacoity at petrol pump at Saket, he along with ASI Paramjeet and HC Udaibir formed a raiding party under the direction of SI Om Prakash and arrested the accused persons and accused persons made disclosure about theft of car bearing number DL2CJ3873. The disclosure statement is Mark B and C. He further stated that the said vehicle was got recovered at the instance of the accused persons. The pointing out memo is Mark D. The said witness was not crossexamined by Ld. Counsel for the 7 accused, despite opportunity being given.
PW7 Const. Vinod Kumar had brought the Register No.19 containing entry No.1543/98 pertaining to FIR No.764/98 dated 21.08.1998. The entry of car bearing number DL2CJ3873 was shown and the same was released to PS VV vide road certificate number 56/21 dated 29.08.1998. Copy of the said enteries were Ex.PW7/A. The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW8 is Retired ASI Puran Chand has stated that on 21.08.1998 he was posted as SI at PS VV and was assigned the investigation of the present case pertaining to the information received vide DD No.14A Ex.PW8/A regarding the recovery of the stolen vehicle from the possession of the accused persons. The said witness collected the seizure memo Mark A, pointing out memo Mark D and copy of FIR and rukka Mark X1 and disclosure statement Mark C and B and thereafter, formally arrested the accused persons vide ExPW8/B. Const. Mahipal had brought back the stolen car from PS vide memo Ex.PW8/C and also collected the RC Mark X of the car and insurance Mark Y. The said witness recorded the statement of the witnesses. The said witness had prepared the challan and filed the same before the court.
The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW9 SI Shri Ram in his examinationinchief has stated that on 8 08.05.1998 he was posted as ASI in PS VV and was assigned the investigation of the present case on that day. The said witness prepared site plan Ex.PW9/A at the instance of complainant.
The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW10 Sh. Vinod had brought the original record, i.e, case file of FIR No.764/98 PS Malviya Nagar under section 399/402 IPC. Original record, i.e, FIR, rukka, pointing out memo, seizure memo of car bearing number DL2CJ3873 under section 102 Cr.P.C and disclosure statement of accused persons are already Marked X1 and Marked A,B, C and D. The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW11 Sh. Om Prakash Pawar has deposed that on the intervening night of 20/21.08.1998, he was posted at IC PP Pushp Vihar. At about 10:00 p.m while he was present at Police Post, a secret information was received that 67 persons are planning to commit dacoity at Petrol Pump, Mandir Marg, Saket and have gathered in the District Park, Saket with weapons. The said witness informed SHO Malviya Nagar and ICBP Saket with the facts of information and asked them to reach at Mariot Hotel at Mandir Marg Road along with staff. He along with staff reached at Meriot Hotel and SHO Malviya Nagar and I/C P.P. Saket also reached there along with their respective staff. All staff members were briefed and raiding parties were constituted and raids were 9 conducted. There were three raiding parties one was headed by SHO Malviya Nagar, second by I/C P.P. Saket and third one by the said witness, which comprised of HC Uday Vir, Ct. Anar Singh and HC Jai Pal. All the raiding parties conducted raid altogether and apprehended about 7 persons sitting in the maruti car in District Park Saket near Petrol Pump planning to commit dacoity at Petrol Pump. A case FIR 764/1998 U/s 399/402 IPC PS : Malviya Nagar was got registered and during investigation the accused persons disclosed that they have stolen a Maruti Car from the area of Vasant Vihar. Car was taken into possession vide seizure memo Ex.PW11/C. Disclosure statement of both the accused persons are Ex.PW11/D and Ex.PW11/E. Pointing out memo is Ex.PW11/B and copy of FIR No. 764/98 is Ex. PW11/A. The said witness thereafter informed the IO about the present case FIR at PS Vasant Vihar. The said witness identified both the accused persons during his deposition before the court. The car is already as Ex. P2.
The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW12 Sh. Rajan had brought the register no.19 pertaining to the present case, copy of which is Ex.PW12/A. The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
After all the witnesses have been examined, statement of both the accused persons under section 313 Cr.P.C was recorded. Accused persons in 10 their statement stated that they have been falsely implicated in the present case.
After statement of accused, DE was lead by the accused persons and DW1 Hari Ram was examined.
Arguments advanced by Ld. Counsel for the accused and Ld. APP for the State heard.
In the present matter the court has to examine whether the ingredients of section 379 IPC are made out. Even if presuming that the accused persons have dishonestly taken the property which was movable, it has not been proved that the property was moved from the possession of the complainant without his consent by the accused persons. Further, it has also not been proved that the said offence has been committed in furtherance of the common intention of both the accused persons. The only evidence which has been cited by the prosecution in favour of section 379 IPC against the accused persons is that the accused persons made a disclosure as regards the theft of the car bearing number DL2CJ3873. As per section 25 of the Indian Evidence Act "any confession made to a police officer shall be proved as against a person accused of any offence." Thus, it is a settled law that no confessional statement given by the accused before the police is sufficient to convict the accused.
My this view is further supported by the case titled Ram Singh Vs. State of Maharashtra, 1999 Cr. LJ 3763 (Bombay). In this case it was held that:
"Any confessional statement given by the accused before police is 11 inadmissible in evidence and cannot be brought on record by the prosecution and is insufficient to convict the accused."
In Aghnu Nagesia Vs. State of Bihar, AIR 1966 SC 119, it was held that "proof of the confession is prohibited by section 25."
Further, 26 of Indian Evidence Act also deals with confession by accused while in custody of the police, which cannot be proved against him unless made in the immediate presence of Magistrate.
All the material witnesses being PW4 HC Udaibir Singh, PW5 ASI Paramjeet Singh and PW6 HC Jaipal have deposed that the accused persons made disclosure about theft of the car bearing number DL2CJ3873 and the disclosure statement is Mark B and C. Thus, apart from this disclosure statement, which is inadmissible in evidence, there is no evidence on record as regards the accused persons having committed offence under section 379 IPC and hence, they are acquitted of the charges under section 379 IPC.
Now coming to the fact whether offence under section 411 IPC is made out. The complaint has been proved by PW1 Ajay Khandelwal, who is the complainant himself who only deposed that he made a complaint as regards the theft of his car bearing number DL2CJ3873 which is Ex.PW1/A. PW2 SI Shakuntala Chauhan and PW3 Kuldeep are formal witnesses being DO and Superdar respectively. The material witnesses for proving the recovery of the stolen car are PW4 HC Udaibir Singh, PW5 ASI Paramjeet Singh and PW6 12 HC Jaipal. All three witnesses deposed on similar lines and submit that they formed a raiding party and arrested the accused persons and the accused persons made disclosure about theft of the car bearing number DL2CJ3873. Disclosure statement is inadmissible in evidence as stated above. However, section 27 of the Indian Evidence Act admits the proof of only so much of the disclosure statement as leads to the recovery in pursuance of said disclosure.
Now coming to Section 27 of Indian Evidence Act, which reads as under:
"When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of the police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Further, as noted in case titled Puluduri Kotayya Case and In Udai Bhan Vs. State of U.P. The important ingredients of this Section have been summoned up as under: (1)The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established 13 according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2)The fact must have been discovered.
(3)The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
(4)The person giving the information must be accused of any offence.
(5)He must be in the custody of a police officer.
(6)The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7)Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
All these three witnesses have cited that the said vehicle bearing number DL2CJ3873 was got recovered at the instance of the accused persons on their pointing out and the pointing out memo is Mark D. There is no contradiction in their testimony. These witnesses have also not been cross examined by Ld. Counsel for accused despite opportunity being given, which clearly means admission of the deposition made by the PW4, HC Udaibir 14 Singh, PW5 ASI Paramjeet Singh and PW6 HC Jaipal by the accused persons, as the same remains unrebutted. Similar testimonies have also been given by PW11 Sh. Om Prakash Pawar. None of the witnesses of the prosecution have been crossexamined by the accused persons. Recovery has been effected at their instance and accordingly, the ingredients of section 411 IPC have been fulfilled and accordingly, the accused persons are convicted for offences under section 411 IPC.
Be heard on the point of sentence.
ANNOUNCED ON 28.06.2011 (CHETNA SINGH) MM03(South)/28.06.2011 Certified that this judgment contains 14 pages and each page bears my signatures.
(CHETNA SINGH) MM03(South)/28.06.2011