Delhi District Court
State vs . Manoj @ Ajay on 8 June, 2023
IN THE COURT OF ASJ (FTC)-02, SOUTH DISTRICT,
SAKET COURTS
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-000147-2009
SC no. 7173/16
STATE VS. MANOJ @ AJAY
FIR NO. 56/09
PS: DEFENCE COLONY
U/S: 382/411/482/471/34 IPC
State
Versus
Manoj @ Ajay,
s/o Sh. Narayan Singh,
r/o Village Bakkarwala, Nangloi,
Delhi .... Accused
DATE OF INSTITUTION : 26.10.2009
DATE OF RESERVING JUDGMENT : 05.06.2023
DATE OF JUDGMENT/ ORDER : 08.06.2023
FINAL ORDER : Convicted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. Succinctly, the facts of the case are that on 20.02.2009, SI Sanjay Sharma along with Ct. Rajiv Kumar were on patrolling duty when they received the information vide DD no. 44B regarding theft of car. The police officials reached at the spot near Niti Bagh Club and met the complainant Sameer Jaina and recorded his statement Ex. PW6/A.
2. As per the complaint of Sh. Sameer Jaina, he was working as driver of Sh. Manjit Singh, owner of Ford Endevour bearing registration no. DL-3CAY-5481. On 20.02.2009 at about 09.45 PM on instruction of his employer he took his daughter namely Ms. Gurbani Kaur to Niti Bagh Club and after dropping her, he parked the said car nearby in front of H.no. C-73, Niti Bagh.
While he was sitting in the car at around 11.15 PM, a young boy FIR No. 56/09 State v. Manoj @ Ajay Page 1/16 came near the door of the driving seat and knocked the same. The complainant roll down the window pane and asked the reason for knocking from the said boy who asked him to come out of the car. The complainant came out of the car and instantly the said boy sat on the driving seat of the car and his accomplice sat on the other front seat of the car and they both closed the doors. The complainant raised the alarm upon which the person sitting beside the driver seat showed him the pistol and took away the car. On the basis of the complaint, the present FIR no. 56/09 was registered.
3. During the investigation accused was arrested and the stolen car was recovered with a fake number plate and fake RC. Statements of the witnesses were recorded. After the conclusion of the investigation carried out in the present case, police filed the charge sheet against the accused Manoj @ Ajay for commission of offences U/s 382/411/482/471/34 IPC.
4. Vide Order dated 26.10.2009, Ld. Metropolitan Magistrate concerned took cognizance of the offence u/s 382/411/482/471/34 IPC qua accused Manoj @ Ajay and he was called to face the trial. Charge sheet and other relevant documents were supplied to the accused in compliance to section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.).
5. During trial, a supplementary charge sheet was filed invoking the section 413 IPC r/w section 75 IPC against the accused. The offence u/s 413 IPC being session triable, the FIR No. 56/09 State v. Manoj @ Ajay Page 2/16 charge sheet was committed and received by the Court of Sessions on 14.03.2011.
CHARGE
6. Vide order dated 19.11.2014, charge for the offence punishable u/s 382/411/34 IPC, u/s 468/471/482/413 IPC was framed by the Ld. Predecessor of this Court against the accused who pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
7. Prosecution examined total 15 (fifteen) prosecution witnesses (hereinafter referred to as PW) to prove its case.
8. PW1 ASI Om Prakash was the duty officer who proved and exhibited on record the register containing the present FIR no. 56/09 as Ex. PW1/A. ASI Devinder Singh was also examined as PW1 who proved and exhibited on record the FIR no. 251/09 registered at PS Saket in which the accused was arrested initially.
9. PW2 SI Tulsi Bahadur deposed qua the limited role performed by him in the investigation of the present case. This witness took the accused to Tihar Jail for conducting of his TIP by the then Ld. Metropolitan Magistrate Sh. Ravinder Singh. This witness applied and obtained the copy of the TIP proceedings. Copy of which is mark A. This witness is not cross examined.
FIR No. 56/09 State v. Manoj @ Ajay Page 3/1610. PW3 HC Rajeev Kumar was on patrolling duty with SI Sanjay Sharma on 22.02.2009. He attended the call received by SI Sanjay Sharma regarding the incident and reached the spot along with SI Sanjay Sharma where SI Sanjay Sharma recorded the statement of the complainant Sh. Sameer Jaina and prepared the rukka. On the basis of the rukka, PW3 got the FIR registered and handed over the copy of the same to the IO. This witness was not cross examined on behalf of the accused.
11. PW-4 Ms. Jayanti Sahu, Assistant Ahlmad brought the summoned record of case FIR no. 251/09 PS Special Cell. This witness exhibited on record the disclosure statements of accused dated 14.07.2009 recorded in the aforesaid FIR as Ex.PW4/A and Ex.PW4/B. She also relied on the document already exhibited Ex.PW1/A i.e. FIR no. 251/09. PW4 was not cross examined on behalf of accused.
12. PW-5 SI Har Bir Singh was the Investigating Officer in the case FIR no. 251/09 PS Saket. This witness deposed qua the manner and his involvement in the said investigation during which accused Manoj @ Ajay was arrested on 14.07.2009 along with other co accused persons including Parav Saran. This witness relied upon the disclosure statement already exhibited as Ex.PW4/A and Ex.PW4/B. PW5 further deposed that during the police custody, accused in that case namely Parav Saran got recovered Ford Endeavour Car having fake number plate bearing no. HR26AS5667 that was given by him to his associate Sunny from the parking in front of Eagle hotel, Rajpura Punjab. This witness seized the car along with fake RC vide seizure memo FIR No. 56/09 State v. Manoj @ Ajay Page 4/16 Ex.PW5/B. This witness exhibited the fake RC as Ex. P1. It is further deposed by PW5 that on 30.07.2009 IO of this case SI Sanjay came to him and collected the copy of disclosure statements, seizure memo of the car as well as fake RC. As per him, SI Sanjay got the case property transferred to PS Defence Colony and arrested the accused in this case. This witness further exhibited his departure and arrival entry vide DD no. 9 and 3 dated 18.07.2009 and 22.07.2009 as Ex. PW5/C and Ex. PW5/D respectively. This witness also identified the case property i.e. fake number plates collectively as Ex. P2 and the Ford car in the photograph already Ex. PW8/D. PW5 SI Harbir Singh further deposed that when accused Manoj was arrested on 14.07.2009, one pistol .32 bore in holster and 6 live cartridges in the holster and 5 live cartridges were found in the magazine of pistol was recovered from him. This witness seized the pistol vide memo Ex. PW5/E. This witness was cross examined on behalf of accused.
13. PW-6 Sh. Sameer Jaina was the complainant and star witness of the prosecution who deposed in view of his complaint/statement Ex. PW6/A. PW6 further deposed that he identified one of the robber at the time of TIP proceedings in Tihar Jail. This witness identified the accused in the court during trial as a person who pointed pistol upon him and robbed Endeavour car with the assistance of his associate. PW6 was cross examined on behalf of accused.
FIR No. 56/09 State v. Manoj @ Ajay Page 5/1614. PW-7 Sh. Mehar Singh Gandhi, Registration Clerk from SDM office, Gurgaon appeared and deposed qua the registration certificate of vehicle no. HR-26AS-5667 and as per the record of the authority the aforesaid number was allocated in respect of Honda Activa Scooter and the Registration Certificate bearing registration no. HR-26AS-5667 showing owner name Shivani Sehgal make Ford Endeavor Car was found to be forged. The forged RC is exhibited as Ex. PW7/C. This witness also exhibited on record the request letter as Ex. PW7/A, his report as Ex. PW7/B and the screen report of vehicle as Ex. PW7/D and the copy of register regarding registration of vehicle as Ex. PW7/E. PW7 was not cross examined on behalf of accused.
15. PW8 Sh. Manjit Singh was the owner of Ford Endeavour Car bearing no. DL-3CAY-5481 that was robbed by the accused. PW8 deposed more or less on the same lines as that of PW6 Sameer Jaina who was his driver. PW8 further deposed that he accompanied his driver and got the FIR registered at PS Defence Colony. This witness exhibited on record the notice received from SI Sanjay Sharma as Ex. PW8/A and his reply to the same as Ex. PW8/B. This witness exhibited on record the photograph of the car as Ex. PW8/D. PW8 was cross examined on behalf of accused.
16. PW9 ASI Ram Singh was the formal police witness who accompanied the IO SI Sanjay Sharma to the office of special cell and met SI Harbir Singh from whom various documents such as the disclosure statement of accused Manoj @ Ajay, seizure memos and the forged RC were collected by the IO. This witness FIR No. 56/09 State v. Manoj @ Ajay Page 6/16 was cross examined on behalf of accused.
17. PW10 HC Baliram was also one of the formal witness being MHC(M). He exhibited on record the relevant entry with respect to depositing of the Ford Endeavour car along with fake plates as Ex. PW10/A. This witness was not cross examined on behalf of accused.
18. PW11 Sh. Ravinder Singh, Ld. ADJ who was the then Ld. Metropolitan Magistrate recorded the TIP proceedings of accused Manoj @ Ajay wherein accused was identified by the complainant Sameer Jaina and exhibited on record the complete proceedings as Ex.PW11/A to Ex.PW11/G and Ex. PW11/I to Ex. PW11/J. PW11 was cross examined on behalf of accused.
19. PW12 Inspector Sanjay Sharma was the Investigating Officer of this case who deposed qua the manner and his involvement in the present case. PW12 deposed more or less on the same lines as that of PW3 HC Rajeev Kumar and PW5 SI Harbir Singh. This witness also relied upon the documents already exhibited on record by PW7, PW8 and PW11. In addition to that this witness exhibited on record the DD no. 44B as Ex. PW12/A, site plan as Ex. PW12/B, arrest memo of accused as Ex. PW12/C, disclosure statement is Ex. PW12/D. This witness also exhibited on record the application moved for interrogation of the accused as Ex. PW12/E. PW12 identified the accused and the case property before court during during trial. PW12 was cross examined on behalf of accused.
FIR No. 56/09 State v. Manoj @ Ajay Page 7/1620. PW13 HC Sushil Kumar was the MHC(M) in PS Special Cell who exhibited on record the entry pertaining to the Ford Endeavour car and the registration certificate as Ex. PW13/A and Ex. PW13/B respectively. PW13 is cross examined on behalf of accused.
21. PW14 ASI Sukhbinder Singh deposed that on 22.02.2009 he went to Zirakpur, Chandigarh at the direction of senior officers and met truck driver Vijay Kumar. As per this witness Vijay Kumar produced one driving license of female Gurbani, one visa card, two credit card, Fortis Healthcard and he seized the same vide seizure memo Ex. PW14/A. He also exhibited on record the statement of Vijay Kumar as Ex. PW14/B and DD no. 22 as Ex. PW12/C. PW14 was not cross examined on behalf of accused.
22. PW15 Inspector Dhananjay Gupta was the second IO who submitted supplementary charge sheet against the accused under section 75/413 of IPC for the enhancement of the punishment being habitual offender as accused was convicted in six cases earlier and he also exhibited the copy of relevant orders as Ex. PW15/A (six orders colly). PW15 was not cross examined on behalf of accused.
23. PW16 HC Inderaj proved and exhibited on record the computerized copy of FIR as Ex. PW16/A. PW16 was not cross examined on behalf of accused.
24. No other PW was left to be examined, hence PE was FIR No. 56/09 State v. Manoj @ Ajay Page 8/16 closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
25. Statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him. Accused opted not to lead any defence evidence.
ARGUMENTS:
26. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony has remained unrebutted. It is further argued that case property belonging to complainant was recovered at the instance of the accused. Thus on a combined reading of testimony of prosecution witnesses, offences U/s 382/411/34 IPC, u/s 468/471/482/413 IPC are proved against the accused beyond reasonable doubt.
27. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused. It is further argued that the prosecution witnesses have failed to prove the case of the prosecution beyond reasonable doubt as no recovery has been effected at the instance of the accused. It is further argued that there are material discrepancies and contradictions in the testimony of the complainant as well as the police witnesses which creates strong doubt in the prosecution story that entitles the accused to the benefit of doubt. Thus on the FIR No. 56/09 State v. Manoj @ Ajay Page 9/16 above said grounds accused deserves acquittal.
FINDINGS:
28. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsel for the accused has been heard. Evidences and documents on record perused carefully. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offences u/s 382/411/34 IPC, u/s 468/471/482/413 IPC.
29. Section 382 IPC provides punishment for theft having made preparation for causing death, hurt or of restraint to any person, in order to the committing of such theft or in order to the effecting of his escape after the committing of such theft, Section 411 IPC provides punishment for dishonestly receiving and retaining any stolen property knowingly or having reason to believe the same to be stolen property. Section 468 IPC provides punishment for committing forgery for the purpose of cheating. Section 471 IPC provides punishment for using as genuine a forged document or electronic record. Section 482 IPC provides punishment for using false property mark. Section 413 IPC provides punishment for habitually receiving or dealing in stolen property having knowledge or reason to believe to be stolen property.
30. Now coming to the evidence lead on record. PW6 Sh. Sameer Jaina, complainant of this case was the star witness of the prosecution whose testimony is material as far as happening of the incident and the identification of the accused is concerned.
FIR No. 56/09 State v. Manoj @ Ajay Page 10/16PW6 in his examination in chief narrated the entire incident giving minute details as to the manner how it happened. PW6 deposed that he was there at the spot near Niti Bagh Club where he dropped the daughter of his employer Sh. Manjit Singh and while he was sitting and waiting in the car, accused along with his accomplice came there and asked him to come out of the car and once he came out, accused along with his accomplice instantly get into the car and sat on the front seats. PW6 raised alarm and in order to have safe escape the accused has pointed pistol upon him. PW6 in his examination in chief categorically stated and pointed towards the accused Manoj @ Ajay who had pointed pistol upon him. During the cross examination nothing contrary appeared in his testimony resulting in an unrebutted testimony. The testimony of PW6 has stood firm and consistent through out without leaving any room to doubt his veracity. The presence of the complainant at the spot is corroborated by the testimony of PW8 who was the owner of the Ford Endeavour Car. Immediately, FIR was registered qua the incident of theft of the car and PW8 was present along with PW6 at the time of lodging of the FIR. The FIR bearing no. 56/09 was duly proved as Ex. PW16/A by PW16 HC Inderaj and the register containing the same as Ex. PW1/A proved by PW1 ASI Om Prakash. Testimony of PW8 Sh. Manjit Singh who supported and corroborated the testimony of PW6 also remained unrebutted during his cross examination. The happening of incident and registration of present FIR was also proved by PW3 HC Rajeev Kumar who was not cross examined by the accused and his testimony remained unrebutted. In view of the above discussion, the happening of incident in question stands duly proved.
FIR No. 56/09 State v. Manoj @ Ajay Page 11/1631. Ld. Counsel for the accused raised an argument that there are material inconsistencies in the testimony of PW6 that appeared during his cross examination so his testimony cannot be relied upon nor his testimony was corroborated and supported by any independent public witness despite there being guards present outside the houses and the club being posh area, that also creates doubt in the story of the prosecution.
32. It is a settled proposition of law that minor contradiction, inconsistencies, embellishment or improvement on trivial matters which do not affect the core of the prosecution case could not be made a ground on which the evidence can be rejected in its entirety. Reliance is placed on the judgment State of UP v. Naresh, 2011 (4SCC 324) & similar observations were made in judgment Ganga Bhawani Vs Venket Reddy & Ors. 2013 IX AD (SC 493). Mere marginal variation and contradiction in the statement of witnesses cannot be a ground to discard the testimony of the eye witness. The minor inconsistencies appearing in the testimony of PW6 does not shake his credence. The discrepancies are not material enough to wash away the case of prosecution.
33. No doubt that no independent public witness has come forward to depose in favour of the prosecution but that does not cast any doubt on the deposition of complainant PW6 who is the victim in this case. It is settled position of law that if the testimony of sole eye witness is trustworthy, categorical, free of bias and if there is nothing on record to suggest that eye witness has any motive to falsely implicate the accused and allow his real assailant go scot-free, conviction can be based on the sole FIR No. 56/09 State v. Manoj @ Ajay Page 12/16 testimony of such witness. Reliance is placed upon the judgment Sadaab @ Shamshad v. State (209 (2014) DLT. If there had been any ill will, the complainant could have identified the other accused also in the TIP proceedings who was arrested by police along with accused Manoj @ Ajay but complainant has not done so. There is nothing adverse on record to disbelieve the deposition of the victim. His testimony appears to be convincing and weighty enough to sustain the conviction of accused Manoj @ Ajay. Hence, this contention of accused is found to be without any substance, thus stands discarded.
34. The identity of PW6 has been also established on record beyond any reasonable doubt. During the investigation of the case the complainant was made to participate in the TIP proceedings of the accused and during the said proceedings the complainant correctly identified the accused. The TIP proceedings have been proved by PW11 who was the then Ld. Metropolitan Magistrate Sh. Ravinder Singh in his testimony vide Ex. PW11/C. The identification of the accused in the court during the trial by PW6, corroborated by the TIP proceedings Ex. PW11/C, are substantive piece of evidence that establishes the identity of the accused as one of the perpetrator of crime.
35. The accused along with his accomplice acted in furtherance of their common intention which can be inferred from their actions and the circumstances of the case that attracts the provision of Section 34 IPC. In view of the discussion above the necessary ingredients for the offence u/s 382/34 IPC stands duly proved against the accused.
FIR No. 56/09 State v. Manoj @ Ajay Page 13/1636. Now coming to the allegation of offence u/s 411 IPC. Admittedly, the Ford Endeavour Car seized vide Ex. PW5/B has not been recovered from the conscious possession of accused as the accused was formally arrested from Tihar Jail where he was lodged in another case FIR no. 251/09 PS Saket. Moreover, the case property i.e. Ford Endeavour Car was not recovered at his instance as well as it has come in the testimony of PW5 SI Harbir Singh who was the Investigating Officer of the case FIR no. 251/09 PS Saket that the car in question was recovered at the instance of accused Parav Saran in that case. The prosecution has relied upon the disclosure statements of accused Manoj @ Ajay where he admitted to have stolen the car in question but that cannot be considered as the evidence to establish the recovery of the car from his possession nor the disclosure statement of other accused can be read as incriminating evidence against the accused Manoj @ Ajay to prove the element of section 411 IPC against him, hence, section 411 IPC is not made out against the accused Manoj @ Ajay.
37. Similarly, at the time of recovery of the car, fake number plates and forged RC Ex. P2 and Ex. P1 respectively, were seized and charge for the offences u/s 468/471/482 IPC was framed against the accused. However, no substantial evidence or for that matter not even single piece of evidence has been lead on record by the prosecution to prove that accused Manoj @ Ajay prepared forged RC or fitted fake number plate reflecting the number as HR26AS5679 on the stolen car. The fake number plates and the forged RC was recovered after 5 months from the date of incident so by no stretch of imagination the accused can be attributed his role for commission of the aforesaid offences in FIR No. 56/09 State v. Manoj @ Ajay Page 14/16 absence of any cogent evidence on record in this regard. Hence, the essential ingredients of the offences u/s 468/471/482 IPC are also not made out and the offences could not be said to be proved against the accused herein.
38. Now coming to the offence charged against the accused u/s 413 IPC. Section 413 IPC talks about 'habitually receiving or dealing in stolen property having knowledge or reason to believe to be stolen property'. In order to prove this offence, the prosecution has relied upon the testimony of PW15 i.e. Insp. Dhananjay who relied and exhibited on record the previous conviction orders of the accused as Ex. PW15/A. The said orders pertains to conviction of the accused u/s 379/411 IPC. Now in order to prove the ingredients of section 413 IPC, the prosecution argued that the accused was involved in habitually receiving or dealing in the property, however, in the instant case only theft of the stolen vehicle has been proved by the prosecution but no substantial evidence have been lead on record to show that the accused was involved in receiving or dealing with the stolen cars. Stealing of the car does not mean or per-se proves the receiving or dealing in the cars. No independent witness has been examined by prosecution to show that accused herein sold the car in question to third person nor he could be said to have recovered the stolen property as no recovery has been effected from him. Moreover, a thief who steals a property cannot be at the same time be called as receiver of the stolen property. As already held above in the preceding paragraphs section 411 IPC is not made out against the accused and the orders exhibited as Ex. PW15/A only pertains to conviction u/s 379/411 IPC does not prove the FIR No. 56/09 State v. Manoj @ Ajay Page 15/16 necessary ingredient of receiving or dealing in the property knowingly as per section 413 IPC in this case. In the absence of any independent and substantial evidence, section 413 IPC also could not be proved by the prosecution beyond reasonable doubt.
CONCLUSION :
39. In view of the observations given above and the cogent evidence led on record, this Court is of the view that the prosecution has successfully proved the case and established the necessary ingredients of the offence u/s 382/34 IPC charged against the accused. Accordingly, accused Manoj @ Ajay stands convicted for the offence u/s 382/34 IPC. However, accused Manoj @ Ajay stands acquitted for the offences u/s 411 r/w section 34 IPC and u/s 468/471/482/413 IPC charged against him.
40. Copy of judgment be given free of cost to the accused.Digitally signed by VISHAL
VISHAL PAHUJA
Date:
PAHUJA 2023.06.08
16:17:06
+0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 08.06.2023 ASJ (FTC) -02
SOUTH DISTRICT
SAKET COURTS
Containing 16 pages all signed by the presiding officer.Digitally signed by VISHAL
VISHAL PAHUJA PAHUJA Date:
2023.06.08 16:17:13 +0530 (VISHAL PAHUJA) ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS FIR No. 56/09 State v. Manoj @ Ajay Page 16/16