Manoj vs State Of Nct Of Delhi
2014 Latest Caselaw 1948 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : March 21, 2014
                                DECIDED ON : April 17, 2014

+                         CRL.A.1326/2011

       MANOJ
                                                       ..... Appellant
                          Through : Mr.Sangram Singh, Advocate.

                          versus

       STATE OF NCT OF DELHI
                                                       ..... Respondent
                          Through : Mr.M.N.Dudeja, APP for the State.
                                    SI Ram Partap, PS Delhi Cantt.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Manoj questions the correctness of a judgment

dated 08.09.2011 of learned Additional Sessions Judge in Sessions Case

No.37/10 arising out of FIR No.109/09 registered at Police Station Delhi

Cantt. by which he was convicted under Section 392 IPC. By an order

dated 12.09.2011, he was sentenced to undergo RI for three years with

fine `5,000/-.

2. Allegations against the appellant, as depicted in the charge-

sheet, were that on 04.05.2009 at 1.40 a.m. at Dhaula Kuan to Delhi Cantt.

Road, before Yamaiya Red Light, he and his associate Mohd.Rinku Ali

robbed a Maruti Esteem car No.DL1RX-6064 from Sumesh. It is alleged

that Mohd.Rinku Ali was armed with a deadly weapon at that time.

Intimation regarding the incident was given to PCR. Daily Dairy (DD)

No.4A (Ex.PW-3/A) was recorded at 02.20 a.m. at Police Station Delhi

Cantt. It records that two boys had fled after snatching a taxi Esteem Car

No.DL-1RX-6064. The investigation was assigned to ASI M.Y.Khan

who with Ct.Joginder Singh went to the spot. Efforts were made to find

out the culprits but in vain. On 05.05.2009, after recording complainant's

statement (Ex.PW10/A), FIR was lodged by the Investigating Officer. On

06.05.2009, Manoj Kumar and Mohd.Rinku Ali were arrested by the

officials of AATS (South West District) at around 07.20 a.m. and from

their possession, the robbed car was recovered. Mohd.Rinku Ali was also

found in possession of a pistol for which a separate case was registered.

Appellant's involvement emerged in this case in his disclosure statement

made therein. Statements of witnesses conversant with the facts were

recorded. After completion of investigation, a charge-sheet was filed

against the accused; they were duly charged; and brought to trial. The

prosecution examined twelve witnesses to establish their guilt. In 313

statement, the accused persons denied their complicity in the crime and

pleaded false implication. DW-1 (Mohd.Amin Ali) was examined in

defence. After appreciating the evidence and considering the rival

contentions of the parties, the trial court by the impugned judgment

convicted both the accused under Section 392 IPC. It is relevant to note

that for the offences under Section 397 IPC and 25 Arms Act, the accused

persons were acquitted and the State did not challenge the said acquittal.

3. I have heard the learned counsel for the parties and have

examined the record. Intimation regarding the robbed vehicle was

conveyed on the night intervening 3/4.05.2009. PW-1 (W.Ct.Pramila)

recorded the information in PCR Form (Ex.PW-1/A). She received a call

from mobile No.9990166808 at about 1.53 a.m. informing that two boys

after robbing a car Esteem (white colour) bearing No.DL1RX-6064 near

Kirbi Palace Red Light had fled towards Dhaula Kaun. PW-3 (SI Ram

Karan) recorded DD No.4A (Ex.PW-3/A) at 02.20 a.m. at Police Station

Delhi Cantt. after getting information about the incident from PCR. PW-4

(Ram Prakash) working with M/s Easy Cabs as an Assistant Fleet

Manager deposed that on 04.05.2009, he had received a call from his

office regarding vehicle Maruti Esteem bearing registration No.DL1RX

6064 being taken away by unknown individuals. He informed the police

and handed over the relevant documents. He further disclosed that the

vehicle was being driven by Sumesh Kumar. PW-10 (SI M.Y.Khan)

recorded complainant Sumesh's statement (Ex.PW-10/A) on 05.05.2009

and lodged First Information Report. The complainant had no ulterior

motive to fake the incident of robbery for which the information was

conveyed to the police at the earliest.

4. The prosecution examined PW-5 (HC Vinod Kumar) and

PW-7 (ASI Rajinder Singh), officials of AATS (South-West District)

Dwarka, who gave consistent version regarding recovery of the vehicle in

question from the possession of the appellant and his associate

Mohd.Rinku Ali on 06.05.2009 at around 07.20 a.m. They deposed that

on the basis of secret information, a raiding party arrived near Brar Square

Red Light of Base hospital at about 07.20 a.m. and made a nakabandi

there. Immediately, thereafter, one Maruti Esteem car No. DL1RX-6064

came from Dhaula Kuan side and at the instance of secret informer, it

was stopped. The said car was being driven by the appellant-Manoj

Kumar. Mohd.Rinku Ali was sitting near the driver's seat. From the

casual search of Mohd.Rinku Ali, one revolver was recovered from his

left dub. On checking, two live cartridges were found therein. On

inquiry, it revealed that the car in question was wanted in case FIR

No.109/09 under Section 392/34 IPC registered at PS Delhi Cantt.

Necessary intimation was given to the concerned Investigating Officer. A

mobile phone make Nokia 1209 was also recovered from the appellant

and it was revealed by him that the mobile was used during robbery.

These witnesses were cross-examined at length. However, no material

discrepancies or inconsistencies could be extracted or elicited to discard

their version. The police officials are not expected to plant the vehicle in

question on their own. They were not concerned with the robbery of the

said vehicle at Police Station Delhi Cantt. and came to know about it only

when in their disclosure statements, the appellant and his associate

disclosed about that. The vehicle in question was seized under Section

411 IPC by a memo (Ex.PW-5/A). The accused persons did not explain

as to how and from where they had come into possession of the vehicle of

substantial value which did not belong to them. The burden was heavily

upon the accused persons to show that they were bona-fide purchaser of

the vehicle in question for valuable consideration or its possession was

legal. Adverse inference is drawn against the appellant in this regard. The

appellant was driving the vehicle in question at the relevant time.

Presumption raised under Section 114 (a) Evidence Act has not been

rebutted. Apparently, the appellant dishonestly received or retained the

vehicle No.DL1RX-6064 knowing or having reasons to believe it to be a

stolen property.

5. The trial court has convicted the appellant under Section 392

IPC with the aid of presumption under Section 114 Evidence Act as the

stolen vehicle was recovered within two days from the date of the incident

of robbery from his possession. The occurrence took place at around

01.40 a.m. on the night intervening 3/4-5-09. The complainant-Sumesh,

however, did not lodge any report with the police in promptitude. His

statement (Ex.PW-10/A) was recorded on 05.05.2009 and the FIR was

lodged. The explanation given by Sumesh that he had gone to his village

and could not lodge the report with the police in time soon after the

incident does not inspire confidence. The delay in lodging the complaint

with the police has not been explained properly. In DD No.4A (Ex.PW-

3/A), there is no mention that the vehicle in question was robbed at pistol

point. The description of the assailants was not recorded therein. The

complainant had already left the spot before arrival of the police at the

spot. The complainant-Sumesh could not be examined during trial due to

his death. The statement made by the complainant on 05.05.2009 thus

could not be proved. The vehicle was recovered after two days of the

incident. Both the accused persons were acquitted of the offences under

Section 397 IPC and 25 Arms Act. In the absence of other incriminating

circumstances, mere unexplained possession of stolen vehicle cannot lead

to an inference that the appellant took part in the robbery or was a party to

it. When the stolen articles are recovered from the possession of the

accused, the only legitimate presumption that can be drawn that the

accused knew that the said article was stolen but no knowledge can be

attributed that he was knowing that the said article was stolen in robbery.

Appellant's conviction under Section 392 IPC was not legally permissible.

The prosecution was able to establish the offence under Section 411 IPC

whereby the appellant and his associate were found in possession of the

vehicle which did not belong to them and they failed to account for it.

The accused did not give plausible explanation to the incriminating

circumstances in 313 statement. DW-1 (Mohd.Amin Ali) did not lodge

any report with the police and the version narrated by him deserves

outright rejection for the reasons given by the trial court in the impugned

judgment. The conviction of the appellant is accordingly altered to

Section 411 IPC.

6. Sentence order dated 12.09.2011 reveals that appellant-

Manoj is the first time offender and has no past criminal history. He was

on bail during trial and there are no allegations if he misused the liberty or

indulged in any unlawful activity during that period. It was informed that

Manoj was working as a driver in a private company. He has old parents

to look after them. Considering the mitigating circumstances, the trial

court took lenient view and awarded RI for three years with fine `5,000/-

whereas Mohd.Rinku Ali was awarded RI for seven years with fine

`25,000/-. Since the conviction of the appellant has been altered to

Section 411 IPC and it is informed that he remained in custody for about

two months before enlargement on bail, the sentence order is modified

and the substantive sentence of the appellant is reduced to RI for one year

with fine `1,000/- and failing to pay the fine to further undergo SI for one

month.

7. The appeal stands disposed of in the above terms. The

appellant shall surrender before the Trial Court on 23.04.2014 to serve the

remaining period of sentence. The Registry shall transmit the Trial Court

records forthwith.

(S.P.GARG) JUDGE April 17, 2014 Sa\