Delhi District Court
State vs . Asif & Ors. on 21 January, 2013
IN THE COURT OF SH. M. P. SINGH: MM08/NORTH EAST : DELHI State vs. Asif & Ors. FIR 42/2012 Sections 392/365/342/34 IPC & 411 IPC PS New Usman Pur UID No. 02402R0117182012 JUDGMENT
Serial no. of the case '109/12 Date of commission of offence '15.02.2012, 28.02.2012 & 07.03.2012 Date of institution of the case '26.04.2012 Name of the complainant Ranjeet Dass s/o Sh. Shanti Ram Dass
Name of accused, parentage & address 1.Asif s/o Munna Khan r/o Laxmi Garden, Indira Puri, Loni, UP
2.Shakir s/o Jamir Ali r/o 475, Street No. 38, Jafrabad, Delhi
3.Rahul @ Rinku s/o Har Prasad r/o 20, Street No. 4, Hotel Wali Gali, Pavi, Loni, UP Offence complained of or proved Sections 392/365/342/34 IPC & 411 IPC Plea of the accused Pleaded not guilty Date of arguments '19.01.2013 Final order All the three accused are convicted of offences u/s 392/342/34 IPC. However all the three accused are acquitted of the offence u/s 365/34 IPC. Accused Rahul and Shakir are acquitted of the offence u/s 411 IPC.
Date of Judgment '21.01.2013
1. The prosecution case is as follows: On 15.02.2012 at about 07:30 pm FIR 42/12 PS New Usman Pur Page 1 / 20 Ranjeet Dass, an auto driver, was driving his TSR DL1RL5992 and had just crossed the Shastri Park traffic light. Just then a person signalled him to stop his TSR. He stopped his TSR. He was informed by the person who had stopped the TSR that they were four in number and that they wanted to go to India Gate. Then all of them (four in number) got in his TSR. TSR then started for India Gate from there. When the TSR reached Salim Garh route bye pass behind Rajghat Power House then one of the passengers asked Ranjeet Dass to stop his TSR in order to urinate. He stopped the TSR. Two of them got down to urinate. When the two of them came back after urinating, two other passengers, who were sitting in the TSR, caught hold of Ranjeet Dass from behind and put a knife on his neck. They asked him to sit on the back seat of the TSR. Under fear Ranjeet Dass sat on the back seat. One of them then sat on the driver's seat of the TSR, drove it and took it all the way to Ram Park, Loni, Ghaziabad. Over there they threw out the complainant from the TSR at about 09:30 pm. The offenders then went away with the TSR as well as its RC, permit, insurance paper, driving licence of one Boye Lal Yadav, driving licence of Ranjeet Dass, cash of Rs. 500/ and his mobile phone make Tata. Ranjeet Dass returned to Delhi. He went to PS New Usmanpur got his statement recorded Ex. PW1/A. FIR was registered by the duty officer HC Rajesh Kumar.
2. Investigation commenced. Investigation was marked to SI Satyapal. He reached at the spot with the complainant and prepared the site plan Ex. PW5/B. On 28.02.2012 IO SI Satyapal, Ct. Rahul and HC Nathu Ram, on FIR 42/12 PS New Usman Pur Page 2 / 20 the basis of secret tip off, whilst on patrolling duty, apprehended accused Rahul with the robbed TSR no. DL1RL5992 from Gadi Mendu Village, New Usmanpur. He was arrested vide arrest memo Ex. PW3/B and personal search memo Ex. PW3/C. The stolen TSR, recovered from his possession, was seized vide seizure memo Ex. PW3/A. Accused Rahul confessed (Ex. PW3/D) to the police about his involvement in this case. In his disclosure statement he stated that accused Asif, Shakir and one Deepak (absconding) were also with him in commission of the alleged offences.
3. On 01.03.2012 IO SI Satyapal filed an application before the court for issuance of production warrant for appearance of accused Asif in order to formally arrest him. It is pertinent to mention here that accused Asif had already been arrested by the police officials of PS Karawal Nagar vide DD no. 27A dt. 27.02.2012 under sections 41(1)/102 CrPC. On aforesaid application of IO, production warrant was issued for appearance of accused Asif. On 03.03.2012 accused Asif was formally arrested by the IO in the court itself in this case too vide arrest memo Ex. PW2/B. His disclosure statement Ex. PW2/A was also recorded.
4. Thereafter on 06.03.2012 SI Satyapal and Ct. Prabhav, on the basis of secret tip off, whilst on patrolling duty, apprehended accused Shakir at about 07:30 pm on the road going from Shastri Park towards Khajoori. He was arrested vide arrest memo Ex. PW4/A and personal search memo Ex. PW4/B. On 07.03.2012 at his instance the robbed driving licence belonging to Sh. Boye Lal Yadav was recovered from his house in Jafrabad. It was FIR 42/12 PS New Usman Pur Page 3 / 20 seized vide seizure memo Ex. PW5/C. All the three accused refused to participate in test identification parade. On completion of investigation, chargesheet was filed.
5. To a charge for offences punishable under sections 392/365/342/34 IPC & 411 IPC, accused Rahul and Shakir pleaded not guilty and claimed trial. Accused Asif was charged with offences under sections 392/365/342/34 IPC; he too pleaded not guilt and claimed trial. Ten witnesses were examined in prosecution evidence. The ten prosecution witnesses, that were examined, are as follows: 1) PW1 Ranjeet Dass, the victim himself; 2) PW2 Ct. Lachhi Ram, a witness to arrest of accused Asif and his disclosure statement; 3) PW3 Ct. Pankaj, he along with HC Nathu Ram and SI Satyapal had allegedly apprehended accused Rahul with the robbed TSR; 4) PW4 Ct. Prabhav, he along with SI Satyapal had apprehended accused Shakir; 5) PW5 SI Satyapal, IO of this case; 6) PW6 SI Vishwendra, a formal witness as he had merely filed the chargesheet; 7) PW7 HC Nathu Ram, he along with Ct. Pankaj and SI Satyapal had allegedly apprehended accused Rahul with the robbed TSR; 8) PW8 B. L. Yadav, owner of the stolen TSR; 9) PW8 HC Raj Kumar, concerned MHC(M), he proved that the robbed TSR was deposited in the malkhana of the police station vide entry no. 1975 in register no. 19; 10) PW9 Ct. Shyam Nil, a witness to recovery of stolen articles at instance of accused Shakir. Inadvertently both B. L. Yadav and HC Raj Kumar were cited as PW8. It was an inadvertent error. PW HC Raj Kumar ought to have been cited as PW9 instead of PW8. FIR 42/12 PS New Usman Pur Page 4 / 20
6. In their respective statements under section 313 CrPC, accused claimed innocence and alleged false implication. Accused Shakir stated that he had been picked up from his house in Jafrabad by the police officials and that nothing was recovered from his possession. Accused Rahul @ Rinku stated that his friend Ajay had called him to New Usmanpur area and that when he went to New Usmanpur police officials falsely arrested him. Accused Rahul further stated that the TSR in question was already parked in the police station and that the same was planted upon him. Accused Asif stated that he had been falsely arrested in this case. No defence evidence was led.
7. I have heard the arguments at bar and perused the records of the case.
8. The evidence that has come on record is required to be taken note of briefly. Deposition of material witnesses would be noted first. PW1 Ranjeet Dass was the most material witness. He stated that on 15.02.2012 at about 07:30 pm when he had just crossed the Shastri Park traffic light, one person asked him to stop his TSR and stated that they were four in number and had to go to India Gate. He further stated that after all four of them sat in the TSR, they started for India Gate. He went on to state that when the TSR reached Salim Garh route bye pass behind Raj Ghat Power House, he stopped it as one of them asked to get down in order to urinate. He went on to depose that two of them then got down and when they returned after easing themselves the persons who were sitting behind caught hold of him from back, put a knife on his neck and told him to sit on the back seat of the TSR. He further deposed that he sat on the back seat of the TSR as he had FIR 42/12 PS New Usman Pur Page 5 / 20 no option. He went on to state that one of them then sat on the wheels and he along with the other three were on the back seat. It has further come in his testimony that the offenders then took him to Ram Park, Loni, Ghaziabad where he was thrown out of the TSR at about 09:30 pm. He also stated that the accused took away RC, permit, insurance paper, his driving licence, driving licence of Boye Lal Yadav (owner of the TSR), cash of Rs. 500/ and his Tata mobile phone. He then deposed about his statement to the police Ex. PW1/A and preparation of the site plan at his instance. On the identification of the accused this is what the victim had to state, "The accused who is present before the court in light green shirt had shown me the knife. The accused is in black Tshirt was driving the TSR. The third accused was actively assisting the other accused." It is pertinent to mention that on the day of his testimony, accused Asif was in light green shirt, accused Rahul was wearing black Tshirt and accused Shakir had worn white shirt. This witness was crossexamined by the defence. In his cross examination he stated that vehicles near the Power House were going at very high speed approximately 100 Kmph. He also stated that police personnel were present at some points between Raj Ghat to Ram Park, Loni. He went on to state that he could not make any noise as the accused had tied his hands from the back side and had put a handkerchief on his mouth. He also stated that he could not tell the exact time when he reached Ram Park, Loni. To a query about the delay in registration of FIR, he stated that he first went to PS IP Estate and then came to PS New Usmanpur. He FIR 42/12 PS New Usman Pur Page 6 / 20 further stated that he did not remember whether the site plan was prepared at his instance. He also stated that his statement was not recorded on 12.04.2012 in the police station.
9. PW3 Ct. Pankaj was a witness to arrest of accused Rahul and the recovery of robbed TSR from his possession. He stated that on 28.02.2012 on the basis of a secret tip off received at about 10:00 pm, whilst on patrolling duty, he along with SI Styapal and HC Nathu apprehended accused Rahul from Garhi Mendu Village while he at the driver seat of the TSR in question. He deposed that accused Rahul confessed about his involvement in this case. He stated that on checking, the RC was found in the TSR box. He deposed that the TSR and the RC were seized vide seizure memo Ex. PW3/A. He testified about the arrest of the accused Rahul and recording of his disclosure statement Ex. PW3/D. In his crossexamination he stated that he did not remember the DD entry vide which he had left for patrolling duty. He further stated that no public persons were present at the spot and that they had to gone to the spot on foot.
10. PW7 HC Nathu Ram was also a witness to apprehension of accused Rahul and recovery of robbed TSR at his instance. His examinationinchief is similar to that of PW3 Ct. Pankaj. In his crossexamination he stated that he did not remember the DD entry vide which he had left the police station for patrolling duty.
11. PW4 Ct. Prabhav was a witness to arrest of accused Shakir. He stated that on 06.03.2012 on the basis of a secret tip off received at about 07:30 pm, FIR 42/12 PS New Usman Pur Page 7 / 20 whilst on patrolling duty, he along with SI Styapal apprehended accused Shakir from auto stand, Shastri Park at the instance of secret informer at about 08:00 pm. He deposed that accused Shakir confessed about his involvement in this case. He testified about preparation of his arrest memo, personal search memo and recording of his disclosure statement Ex. PW4/C. In his crossexamination he stated that no recovery at instance of accused Shakir was effected in his presence.
12. PW5 SI Satyapal was IO of this case. In his examinationinchief he stated that on 17.02.2012 he recorded the statement Ex. PW1/A of the victim and prepared the rukka Ex. PW5/A and got the FIR registered through the duty officer. He further stated that thereupon he along with the victim went to the spot and prepared the site plan (Ex. PW5/B) at his instance. He went on to state that 28.02.2012 on the basis of a secret tip off received at about 10:00 pm, whilst on patrolling duty, he along with HC Nathu and Ct. Pankaj apprehended accused Rahul from Garhi Mendu Village while he was at the driver seat of the robbed TSR. He deposed that accused Rahul confessed about his involvement in this case. He stated that on checking, the RC was found in the TSR box. He deposed that the TSR and the RC were seized vide seizure memo Ex. PW3/A. He testified about arrest of accused Rahul and recording of his disclosure statement Ex. PW3/D. He then deposed about the formal arrest of accused Asif in the court on 03.03.2012 and his confessional statement Ex. PW2/B. He then deposed about the apprehension of accused Shakir on 06.03.2012 on the basis of FIR 42/12 PS New Usman Pur Page 8 / 20 secret tip off. He stated that on 06.03.2012 he along with Ct. Prabhav apprehended accused Shakir while he was on the road going from Shastri Park to Khajoori. He then stated about the preparation of his arrest memo and the personal search memo. He also testified that on 07.03.2012 the driving licence of B. L. Yadav was recovered at instance accused Shakir and the same was taken in police possession vide seizure memo PW5/C. In his crossexamination he stated that the complainant had come to the police station at about 03:30 am on 17.02.2012. He further stated that he did not join any public witness in recovery of the TSR from accused Rahul and the driving licence at instance of accused Shakir. He further deposed that he had not served any notice in writing upon any public witness to join the raiding party or the recovery of the robbed items.
13. PW9 Ct. Shyam Nil was a recovery witness. He is stated to be a witness to recovery of driving licence of Sh. B. L. Yadav at instance of accused Shakir from his house in Jafrabad on 07.03.2012. He deposed that he brought accused Shakir from PS Seelampur to PS New Usmanpur on that day. He further stated that thereafter he along with SI Satyapal and accused Shakir went to the latter's house. He testified that accused Shakir took out the driving licence from an almirah of his house and the same was taken in police possession vide seizure memo Ex. PW5/C. In his crossexamination he stated that he could not tell who were the owners of the adjoining houses and that no public persons were joined as witnesses.
14. The testimonies of formal witnesses shall now be taken note of briefly. FIR 42/12 PS New Usman Pur Page 9 / 20
PW2 Ct. Lachhi Ram was a witness to arrest of accused Asif (arrest memo Ex. PW2/B) and his disclosure statement Ex. PW2/A. PW6 SI Vishvendra merely stated that on 24.04.2012 he received the case file and prepared the chargesheet and filed the same in the court. PW8 B. L. Yadav was the registered owner of the TSR in question and its superdar. PW8 HC Raj Kumar was the MHC(M). He deposed about deposit of the TSR vide serial no. 1975 in register no. 19 in the malkhana. He also deposed about the release of the TSR to its owner Boye Lal Yadav on 02.03.2012.
15. I shall now take note of arguments advanced by the Ld. defence counsel.
The very first argument advanced was visavis the delayed registration of the FIR. It was argued that there was nothing in the entire prosecution case to explain the delay in registration of FIR. It is to be noted that the incident occurred on 15.02.2012. As per the statement of the victim, he was dumped by the accused at Ram Park, Loni at night time at about 09:30 pm on 15.02.2012. The FIR was recorded at 04:15 pm on 17.02.2012. The IO in his statement stated that complainant came to the police station at about 03:30 am on 17.02.2012 and then his statement Ex. PW1/A was recorded. Thus, it is to be seen that there has been delay of one day in registration of the FIR. It is a settled law that delay in lodging of FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is FIR 42/12 PS New Usman Pur Page 10 / 20 satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version. In the case at hand, the victim in his crossexamination stated that he had first gone to the police station IP Estate for making his complaint and then he came to PS New Usmanpur. This explanation offered by the victim is entirely trustworthy. He was dumped by the accused at night at about 09:30 pm at Loni. He then came back to Delhi. Soon on coming back to Delhi in the middle of night in the harsh winter season, the complainant, a layman that he was, was not expected to straightaway come to the police station. Under such a circumstance, any normal person would need some time to come out of the shock of the serious crime that he was subjected to. Under the given situation any normal person would first go to his residence and then contemplate going to the police station after coming out of the shock. On the next day, the complainant thinking that he ought to make his complaint to PS IP Estate rightly went to that police station. After all the accused had brandished the knife at him near Rajghat power house and then taken the TSR to Loni. Rajghat power house comes within the jurisdiction of PS IP Estate. It was after his complaint was, perhaps, not formally taken at the PS IP Estate that he came to the PS New Usmanpur early in the morning at about 03:30 am on 17.02.2012. This delay is entirely FIR 42/12 PS New Usman Pur Page 11 / 20 satisfactory. The delay has been explained to the satisfaction of the Court. It can be no ground for disbelieving and discarding the entire prosecution version.
16. It was next argued that the complainant was not a truthful witness. In this connection, Ld. Defence counsel submitted that in the FIR it was not stated that the complainant first went to IP Estate police station; whereas in his evidence he stated that he first went to that PS and then came to the police station New Usmanpur. It was argued that this contradiction was sufficient enough to doubt the prosecution case and this showed that the complainant was not a truthful witness. However, this argument of the defence overlooks the settled law that an FIR is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events. When essentially material facts are disclosed in the FIR, that is sufficient. Reference in this regard can be made to the judgment reported as Kirender Sarkar vs. State of Assam AIR 2009 SC 2513. I therefore hold that non mentioning of the complainant first going to PS IP Estate and then to the PS New Usmanpur is not at all fatal to the prosecution case.
17. Next, in support of contention that the complainant was not a truthful witness, it was further argued by the defence that in the FIR it was not at all stated that the victim's hands were tied and that the accused had put a handkerchief on his mouth; however in his evidence he stated so. It was therefore urged that this was a contradiction sufficient enough to doubt his testimony. As pointed hereinabove, the FIR is not supposed to be an FIR 42/12 PS New Usman Pur Page 12 / 20 encyclopedia of the entire events. This argument too holds no water.
18. It was further urged that the complainant did not state in the FIR that documents were taken away by the offenders; however in his oral testimony before the court he stated that documents were taken away by the offenders. It was thus contended that this created a doubt in the creditworthiness of his deposition. This argument is contrary to the record of the case. In the FIR it has been specifically mentioned that in the TSR, which the offenders had robbed, the RC, permit, insurance, fitness certificate, papers of the meter, the driving licence of Boye Lal Yadav, badge and his own driving licence were kept. It is therefore incorrect to argue that in the FIR the victim did not state that offenders had taken away the documents.
19. It was also argued by Ld. defence counsel that the complainant was not consistent about the time when he was allegedly dumped out of the TSR and thus his entire testimony was rendered unbelievable. Attention of the court was drawn to his crossexamination wherein he that he could not tell the exact time when he was thrown out of the TSR at Ram Park, Loni. It was pointed out that this was contradicted by his examinationinchief wherein he stated that he was thrown out at about 09:30 pm. This is not at all an inconsistency. All that he stated in his examinationinchief was that he was thrown out at "about 09:30 pm". When he states in his examination inchief that the time was "about 09:30 pm", he does not resort to stating the precise and the exact time. And neither could he be expected to know the exact and the precise time when he was thrown out of the TSR. And FIR 42/12 PS New Usman Pur Page 13 / 20 therefore the argument that he did not state the "exact time" in his cross examination, and that in his examinationinchief he stated that the time was "about 09:30 pm"; is not at all a contradiction. Rather this is pointer to the fact that he is a completely truthful witness. An honest and a truthful witness, in such a situation, would not at all be in a position to state the exact and the precise time when he is thrown out of the TSR after being robbed.
20. The next contention was that the complainant contradicted himself by giving varying depositions about the site plan. It was pointed out that the complainant in his examinationinchief stated that the site plan was prepared at his instance; whereas in his crossexamination he stated that he did not remember whether the site plan was prepared at his instance. This is a minor contradiction. This minor contradiction does not go to the root of the matter. It does not corrode the prosecution case. This little contradiction would not at all have the effect of wiping out and effacing his entire testimony about the actual incident. The fact that the victim was not consistent about the site plan in his testimony can by no means ipso facto mean that the incident that he narrated was a false one. Furthermore, the legal maxim falsus in uno falsus in omnibus does not apply in India. In other words, the principle that if a thing is incorrect in respect of one, it must be incorrect in respect of all does not apply in India. This argument therefore has no merit.
21. It was also submitted that in the complainant's supplementary statement dt. FIR 42/12 PS New Usman Pur Page 14 / 20
12.04.2012 it is stated that the accused Asif was driving the TSR and the accused Rahul had shown the knife. Whereas in his testimony before the court he had stated that accused Asif had shown him the knife and the accused Rahul was driving the TSR. It was argued that this was a contradiction sufficient enough to discard the testimony of the complainant and throw out the prosecution case. This argument does not pursuade this court to doubt the credibility of the testimony of the victim. What stands established is that all the three accused had a role to play in the commission of the crime. Their presence stands proved beyond reasonable doubt. It stands proved beyond reasonable doubt that all the three accused had a reasonable role to play in the crime. It is only in the precise and specific roles in each of the accused that the complainant may have fumbled. Even otherwise the statement under section 161 CrPC has no evidentiary value. The fact that precise and specific roles of each of the accused attributed by the victim differs from the supplementary statement is not of much significance. Proof beyond reasonable doubt does not mean that it has to be perfect. In the case reported as Inder Singh and Anr. Vs. State AIR 1978 SC 1091 it has been observed, "Credibility of testimony, oral circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary prove reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved to perfectly, it is urged that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it FIR 42/12 PS New Usman Pur Page 15 / 20 is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty men cannot get away with it because truth suffers some infirmity when projected through human process. Judicial quest for perfect proof often accounts for police presentation of fool proof concoction". It cannot be gainsaid that when a victim is subjected to such a horrendous crime by many persons he may fumble while recounting the precise role of each of the offenders. In the case at hand the presence of each of the offenders stands proved beyond reasonable doubt. It is also proved beyond reasonable doubt that they had a role to play in the alleged offence. The testimony of the complainant is that of a completely truthful and an honest witness.
22. It was submitted that the IO recorded the supplementary statement of the complainant on 12.04.2012. But the complainant in his oral deposition denied that his statement was recorded on 12.04.2012. This argument has no merit. This argument cannot efface the import of his testimony about the incident. In the case reported as State of UP vs. Anil Singh AIR 1998 SC 1998 the Apex Court has held that if there is a ring of truth in the main, the case should not be rejected. The fact that the victim is not on the same page as the IO about recording of his supplementary statement under section 161 CrPC cannot be said to give any benefit of reasonable doubt to the accused. This does not create any reasonable doubt in the prosecution version about FIR 42/12 PS New Usman Pur Page 16 / 20 the incident. A crime cannot be left go unpunished merely for the fact that the victim, as per his testimony, did not give any supplementary statement under section 161 CrPC.
23. It was also argued that it has not at all been explained as to how the IO came to know that the accused Asif was involved in this case. Confession statement of accused Rahul dt. 28.02.2012 clearly stated that the accused Asif was with committing the alleged offences. It was therefore natural for the IO to arrest accused Asif. This argument therefore has no merit.
24. It was also argued that accused Asif was implicated only on the basis of his confession statement and that no recovery was effected from him. This argument is to be noted only to be rejected. It is entirely incorrect to argue that the accused Asif was implicated only on the basis of his confession statement. A already pointed out hereinabove, Accused Rahul, who was arrested by the police on 28.02.2012, in his confessional statement stated that the accused Asif was with him in commission of the alleged offences. The IO then had to arrest the accused Asif and then get his test identification parade conducted. Accused Asif after his arrest refused to participate in the test identification parade. His refusal to participate in the test identification parade necessarily drew an adverse inference against him. And therefore, he was rightly chargesheeted by the IO.
25. Having taken note of the evidence and the arguments advanced by the Ld. Defence counsel; I find that the prosecution has proved its case by leading cogent and convincing evidence. The complainant is entirely a truthful FIR 42/12 PS New Usman Pur Page 17 / 20 witness. He, who is a stranger to the accused, has no reason to falsely implicate them. There is no prior animosity between them. The complainant does not know the accused from before. He has no axe to grind by falsely implicating the accused persons. His conduct and demeanour before the court, while giving his deposition, was entirely that of an honest and truthful witness. The prosecution case has proved all its facts against the accused. Now, we shall find out as to what offences are made out against the accused.
26. Section 392/34 IPC - On the basis of the case and the facts proved by the prosecution, it is clear that the accused persons in furtherance of their common intention had robbed the complainant of his TSR by putting him in fear of instant death or instant hurt by brandishing a knife at him and then inducing him to part with its possession. Section 392/34 IPC is clearly made out on the basis of the evidence led by the prosecution. Accused are accordingly liable to be convicted of the offence u/s 392/34 IPC. It is ordered accordingly.
27. Section 342/34 IPC - The offence of wrongful confinement has been defined in section 340 IPC and is made punishable by section 342 IPC. As per section 340 IPC, a person is said to wrongfully confine any other person when that person wrongfully restrains the other from proceeding beyond certain circumscribing limits. In the case at hand, the offence of wrongful confinement was complete when the accused had brandished the knife at him and told him to sit on the back seat and then did not let him move out FIR 42/12 PS New Usman Pur Page 18 / 20 of their confinement in the TSR and took him all the way to Loni with both his hands tied and handkerchief on his mouth. Accused are liable to be convicted of the offence under section 342/34 IPC. It is ordered accordingly.
28. Section 365/34 IPC - It is my view that the offence under section 365/34 IPC is not attracted against the accused. This is for the following reasons. Intention of the accused is the basis and the gravamen of this offence. In order to attract this section, it is essential that the intention of the accused must have been to 'secretly and wrongfully confine' the victim. It appears that the intention of the accused was not to 'secretly and wrongfully confine' him, but to rob him of his TSR. Their intention was to somehow take away the TSR from possession of the complainant and not to 'secretly and wrongfully confine' him. The accused are accordingly acquitted of the offence under section 365/34 IPC.
29. Section 411 IPC - As per the prosecution case the TSR was recovered from possession of accused Rahul on 28.02.2012. It is further the prosecution case that the driving licence of Boye Lal Yadav was recovered at the instance of accused Shakir from his house in Jafrabad on 07.03.2012. In terms of section 410 of IPC the TSR and the driving licence of Boye Lal Yadav is a stolen property. When a thief removes the stolen property from the possession of someone else and takes it into his own possession, he not only commits theft but is also in possession of stolen property knowing it to be stolen. He cannot, however, be convicted of both the offences. If he is FIR 42/12 PS New Usman Pur Page 19 / 20 the thief he possesses the stolen property in his capacity as a thief, and not as a receiver. Therefore the same person cannot be convicted of theft as well as of receiving stolen property knowing it to be stolen. Reference in this regard can be made to the judgment of Allahabad High Court reported as Rajjaua vs. The State, AIR 1959 All 718. In this regard, the decision of Apex Court reported as Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39 can also be referred to. In Trimbak's (supra) it was held that for section 411 IPC to be invoked it was essential that some other person other than the accused had possession of the property before the accused got possession of it. The same analogy, to my mind, can be drawn even in a case where the offence of receiving stolen property is coupled with that of robbery; and the property partook the character of being 'stolen' on account of it being obtained by committing robbery. Accused Rahul and Shakir are therefore acquitted of the offence under section 411 IPC.
30. CONCLUSION In view of the foregoing discussion, all the three accused are convicted of offences u/s 392/342/34 IPC. However all the three accused are acquitted of the offence u/s 365/34 IPC. Accused Rahul and Shakir are acquitted of the offence u/s 411 IPC.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
ON 21th JANUARY, 2013 MM08/NE/DELHI
FIR 42/12 PS New Usman Pur Page 20 / 20