Delhi High Court
Mohd. Musa vs State on 8 January, 2021
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 08.01.2021
+ CRL.A. 271/2017
MOHD. MUSA .....Appellant
Versus
STATE .....Respondent
Advocates who appeared in this case:
For the Appellant : Mr Roshan Lal Saini, Advocate.
For the Respondent : Mr Ravi Nayak, APP for State.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The appellant has filed the present appeal impugning a
judgment dated 21.01.2017, whereby the Ld. ASJ, Karkardooma
Courts has convicted the appellant for committing an offence
punishable under Section 413 of the Indian Penal Code, 1860
(hereinafter „IPC‟). By an order dated 28.01.2017, which is also
impugned in this appeal, the appellant was sentenced to undergo
rigorous imprisonment for period of seven years along with a fine of
₹40,000/- and in default of payment of fine, to undergo simple
imprisonment for a further period of one year.
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RAWAL
2. Briefly stated, the facts of the case are that on 05.04.2006, one
Riyaz Mohammed (the complainant) lodged an E-FIR no. 10208/16,
under Section 379 of the IPC regarding theft of his motorcycle
(bearing no. DL-8SA-Z-7225). On 14.04.2016, Special Staff, North
East apprehended the appellant with stolen vehicles and lodged DD
no. 70B regarding the recovery of chassis bearing no. 18145 (which
pertained to the aforesaid motorcycle) from the premises of the
appellant. Thereafter, the appellant was arrested and sent to judicial
custody. He was arrested in the present case from the concerned court,
where he was produced on a production warrant, on the allegation that
he had been habitually dealing in stolen property and there were a
number of cases lodged against him. Further, at his instance, a number
of parts of stolen vehicles were also recovered from his premises
including the chassis and number plate of the aforesaid motorcycle.
3. Pursuant to the aforesaid FIR, the accused was charged with
commission of the offences punishable under Sections 379/411/413 of
the IPC. He pleaded not guilty and the matter was set down for trial.
During the course of the trial, the prosecution examined eight
witnesses.
4. It is the prosecution‟s case that the appellant was apprehended
on 12.04.2016 at about 5:00 pm, by police officials, who were
deployed at 66 Foota Road, new MCD Court, C Block, Yamuna
Vihar, as he was found riding a stolen motorcycle (Bajaj Avenger). He
did not have the Registration Certificate for the said vehicle and on
verification from the control room, it was confirmed that the said
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motorcycle was stolen. According to the prosecution, the appellant
made a disclosure and at his instance, chassis and parts of several two-
wheelers were recovered from his premises. This included the chassis
of the stolen vehicle as reported in E-FIR no. 10208/16.
5. SI Shahid Ali was examined as PW-4. He correctly identified
the appellant in open court. He stated that on 12.04.2016, at about 5:00
pm, he along with ASI Rakesh, HC Sunil, HC Vinay, HC Pramod, Ct.
Bhullan Tyagi, Ct. Braham Pal, were checking vehicles at 66, Foota
Road, near MCD Court, C Block, Yamuna Vihar. At about 5:30 pm,
the appellant, driving an Avenger Bajaj bearing registration No. DL
6S AR 2221, was stopped and checked at the vehicle checking spot by
them. He stated that he could not produce any document pertaining to
his motorcycle or his Driving License. Thereafter, he checked the
chassis number and engine number and the same were not found to be
correct. He stated that the appellant had disclosed that about a week
prior to that date, he had stolen the aforesaid motorcycle from the area
of Panchsheel Garden, Naveen Shahdara. He stated that he verified the
same from the control room by using Zipnet and found that the same
was reported stolen and an E-FIR in that regard was lodged.
Thereafter, the aforesaid motorcycle was seized under Section 102 of
the Cr.PC. On being interrogated, the appellant disclosed his
involvement in several cases along with his associate Sabir @
Kabootar. The appellant disclosed that Sabir used to sell stolen
motorcycles to him. Further, he disclosed that some stolen two-
wheelers and parts of two wheelers could be recovered from his house,
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that is, H. No. 1009, Gali No. 33, Jafrabad, Delhi. The disclosure
statement of the accused was recorded (Ex-PW4/A). Thereafter, at
about 7 pm, he along with other police officials reached the house of
the accused and the accused pointed out the hall of his house, where
about ten-twelve number of motorcycles and scooties were kept. In
addition, motorcycle parts, twenty registration plates of two wheelers,
two engines of scooties, eight chassis of motorcycles, two chassis of
scooties, some sheets, chains, mudguards etc. were also kept there.
The aforesaid items were seized and seizure memos were prepared (Ex
PW4/B-1, PW4/B-2, PW4/B-3, PW4/B-4, PW4/B-5). He stated that
one registration plate bearing no. DL 8SZ 7225 and the chassis of
motorcycle, which was reported stolen in present case, was also
recovered at the instance of the accused, from his godown. The same
were brought to PS Bhajan Pura and deposited with MHCM. He stated
that he prepared kalandara (Ex PW4/C) against the accused, recorded
DD No. 12A (Ex PW4/D) and statements of police officials in whose
presence the recovery was effected; and prepared site plans of place of
recovery (Ex PW4/E) and the place where accused was arrested (Ex
PW4/F). Thereafter, the accused was detained in the lock up of the
police station. He stated that on next day, the appellant was produced
before the concerned court; he presented the kalandara and the
accused was sent to judicial custody. He correctly identified the
number plate and chassis of the vehicle in question in court.
6. In his cross examination, PW-4 stated that he had not informed
the SHO, PS Bhajan Pura to use the barricades for vehicle checking,
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as the same was not necessary and no written directions were given to
him to check the vehicles at the material spot. He affirmed that he did
not remember the number of vehicles checked by the police officials
on the material date. He reiterated that the accused was stopped as he
was not wearing a helmet and on being asked, he could not produce
his Driving License. Further, he affirmed that he had not charged the
accused under M.V. Act. He stated that he had asked four-five
passers-by to join the proceedings, however, none agreed to do so. He
stated that no notice was served upon them on their refusal to join the
proceedings. He stated that he had visited the house of Sabir but he
was not present there and no notice was served upon the family of
Sabir. He stated that he made efforts to trace Sabir, however, his
presence could not be procured. He stated that the house of the
accused falls under the jurisdiction of PS Jafrabad, however, he did
not take any assistance from them. He also did not make any departure
and arrival entry at PS Jafrabad for going to the house of the accused
for recovery. He stated that they had stayed at the place of recovery
for about two hours. He stated that a police official of PS Jafrabad had
joined them at the spot of recovery, however, he does not remember
his name. He stated that he had not given any notice to the aforesaid
police official from PS Jafrabad to join the recovery proceedings. He
stated that the place of recovery was located in a thickly populated
area. He affirmed that several persons had gathered at the time of
recovery, however, nobody from the neighbourhood was called to join
the proceedings. He stated that he had arranged one truck to take the
recovered stolen articles from the house of the accused to PS Bhajan
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Pura. He stated that he neither examined any of the neighbours with
regards to ownership of the place of recovery nor did he take on
record any documentary proof pertaining to the ownership of that
place. He stated that he had not conducted TIP of the chassis of the
two wheelers pertaining to the case in question. He denied the
suggestion that the appellant was lifted from his house on 11.04.2016,
at about 3 pm, while he was on his scooty no. DL 2SN 1571 and was
falsely booked in several criminal cases under different police stations
to work out the pending cases.
7. HC Vinay Kumar deposed as PW-6. He corroborated the
testimony of SI Shahid Ali (PW-4) and ASI Rakesh Kumar (PW-5)
regarding the apprehension of the accused as well as the recoveries
made at his instance vide seizure memos Ex.PW4/El to Ex. PW4/E5.
His also testified that the appellant was the arrested in kalandara
proceedings, on the alleged recovery of stolen articles.
8. SI Dhanattar Singh was examined as PW-1. He stated that on
12.04.2016, he was on duty as a Duty Officer at PS Bhajan Pura and at
about 10:10 pm, SI Shahid Ali (PW-4) recorded DD No. 12A (Ex
PW1/A), in his presence, about his arrival and recovery of items from
the possession of the accused. He identified writing of PW-4 from a
copy of the aforesaid DD. He also proved the E-FIR (Ex PW1/B)
lodged by the complainant with PS Bhajan Pura. In his cross
examination, he affirmed that the recovery items were not seen by
him.
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9. Ct. Prem Chand was examined as PW-2. He stated that on
14.04.2016, he was on duty as a Duty Constable at PS Bhajan Pura
and at about 7:30 pm, he had received information from SI Shahid
(PW-4), telephonically, about the recovery of chassis, number plate of
the vehicle etc. from the possession of the appellant pertaining to three
cases of their police station. He stated that he had recorded DD No.
70B (Ex.PW2/A), on the basis of information given by PW-4 and the
same was assigned by him to MHC(R) for further action. In his cross
examination, he denied the suggestion that the aforesaid DD is
antedated and ante-timed. He also stated that he had no personal
knowledge about the recovery of two wheelers, at the instance or from
the possession of the accused. He denied the suggestion that the
aforesaid DD was fabricated by him in connivance with PW-4 to work
out the pending criminal cases of different police stations.
10. Riyaz Mohmad, the complainant, was examined as PW-3. He
stated that he is the registered owner of the motorcycle black cherry
Passion Crow motorcycle bearing registration No. DL 8SAZ 7225. He
stated that he had purchased the aforesaid motorcycle second hand
from a dealer and the said motorcycle was transferred in his name
about two months back. He stated that on 03.042016, at about 9 pm,
he had parked the aforesaid motorcycle near one marriage home in the
area of Noor-e-Illahi and at about 10:00 pm, he found his motorcycle
missing from the said area. Thereafter, he had called on Number 100
to report theft of his motorcycle. He stated that the PCR officials came
and directed him to contact PS Bhajan Pura. After 1-2 days, he again
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visited PS Bhajan Pura, as he was not carrying the Registration
Certificate (RC) of his motorcycle earlier. Thereafter, on 05.04.2016,
he lodged an E-FIR. He stated that during the course of investigation,
the police had visited the place of theft at his instance and he handed
over the RC (Ex PW3/A) and copy of his driving license (DL) (Ex
PW3/B) to the police. He stated that in the month of April 2016, the
police officials had told him about the recovery of the chassis of his
motorcycle and he identified the same with the help of a serial
number. He also identified the chassis of his motorcycle lying in the
custody of MHC(M) in the court complex.
11. In his cross examination, he stated that neither recovery of the
chassis of his motorcycle was done in his presence nor he is aware
about the date of such recovery. He further stated that he is not aware
from whose possession the chassis was recovered. He stated that one
police official of PS Bhajan Pura had told him that the chassis of his
motorcycle had been recovered. He identified the said chassis through
its serial number with the help of copy of RC. He stated that he did not
have the original RC of the motorcycle, as the same was lying in the
storage compartment (dickey) when it was stolen. He denied the
suggestion that the motorcycle did not belong to him or the same had
been planted by the police to work out their pending cases.
12. ASI Rakesh Kumar deposed as PW-5. He stated that on
12.04.2016, he was posted in Special Staff North East District. He
stated on that day at about 5 pm , SI Shahid, HC Vinay Kumar and Ct.
Bhullan Tyagi and him were busy in vehicle checking at 66, Feeta
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Road, near MCD Office, Yamuna Vihar. Thereafter, at about 5:30 pm,
the accused (driving an Avenger Bajaj bearing registration No. DL 6S
AR 2221) was stopped and checked at the vehicle checking spot. He
stated that the accused could not produce documents of his motorcycle
or his DL to SI Shahid Khan (PW-4). He stated that during
interrogation, the motorcycle was found to be stolen and PW-4 had
made an inquiry through Zipnet. Thereafter, the aforesaid motorcycle
was seized by PW-4 under Section 102 of the Cr.PC. Upon further
interrogation, it was disclosed by the accused that some stolen two
wheelers and parts of two wheelers can be recovered from his house at
Jafrabad, Delhi. The disclosure statement of the accused was recorded
by PW-4 (Ex-PW4/A). Thereafter, they reached the house of the
accused and the accused led them to the hall of his house, where about
7-8 motorcycles and scooties along with parts of two wheelers were
found. The aforesaid items were seized and seizure memos were
prepared (Ex PW4/B-1, PW4/B-2, PW4/B-3, PW4/B-4, PW4/B-5).
The accused had further stated that one Sabir used to sell stolen
motorcycles to him. He stated that one registration plate bearing no.
DL 8SZ 7225 and the chassis of motorcycle bearing no. 18145 was
also recovered from the possession of the accused. He stated that all
the recovered items were brought by a TATA vehicle, which was
arranged by PW-4, at PS Bhajan Pura, where necessary formalities
were completed. He stated that PW-4 prepared a kalandara against the
accused (Ex PW4/C) and recorded DD no 12A (Ex PW4/D).
Thereafter, site plan of the place of checking the vehicle and place of
recovery were prepared. He stated that the case property was
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deposited with MHCM and the concerned police stations were
informed about the recoveries pertaining to their cases.
13. In his cross examination, he stated that he did not remember the
number of vehicles checked by them at the vehicle checking spot till
5:30 pm. He affirmed that they had not maintained any record
pertaining to checking of vehicles. He stated that no other person was
present when they had stopped the accused at the vehicle checking
spot. He affirmed that PW-4 had not taken any action against the
accused under M.V. Act for not wearing a helmet and for non-
production of DL. He denied the suggestion that the aforesaid
proceedings under M.V. Act were not carried out, as the accused was
not apprehended from the place and manner stated by him. He
affirmed that neither any police official from PS Jafrabad was taken
by PW-4 for recovery nor any arrival or departure entry was made at
PS Jafrabad. He further stated that neither any neighbour was called to
join recovery proceedings at the spot by PW-4 nor any witnesses from
the locality were examined to verify the ownership of the place of
recovery. He further stated that no documentary evidence was taken
on record about the ownership of the house. He stated that the IO had
arranged one private vehicle DCM to take the articles to the police
station from the place of recovery, however, he did not remember the
registration number of the aforesaid vehicle or the name of the driver.
He denied the suggestion that the accused was lifted from his house
along with scooty No. DL 2SN 1571 or the accused was falsely
booked in this case to work out the pending cases. He denied the
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suggestion that the accused had informed them that on 11.04.2016, he
had purchased the aforesaid scooty from the registered owner or he
had the sale letter in his possession but the registered owner could not
transfer the title of the aforesaid scooty in his name. He affirmed that
no inquiries were made by PW-4 from witnesses from when and
whom the said scooty was purchased, as no one had met them to tell
them that the two wheelers had been sold to the accused. He denied
the suggestion that no writing work was done by PW-4 at the house of
the accused as no recovery was effected from there. He denied the
suggestion that PW-4 had forcibly taken signatures of the accused on
the documents of kalandara proceedings, after lifting the accused
from his house with his scooty, on 11.04.2016. He denied the
suggestion that the accused was falsely booked in kalandara
proceedings to work out pending cases of other police stations.
14. HC Sompal Singh, the IO, deposed as PW-8. He stated that on
05.04.2016, he had met the complainant Mohd Riyaz at the police
station, as he had been assigned to take action pertaining to the FIR in
question regarding theft of motorcycle (Hero Honda Passion Pro Grey
Colour bearing no DL 8SAZ 7225). Thereafter, he visited the place of
theft at the complainant‟s instance i.e., place in front of H.No.C-150,
Gali No. 11, C Block, North Ghonda and prepared an unscaled site
plan (Ex PW8/A). He stated that he had also collected certificate for
E-FIR (Ex PW8/1) and placed the same on file, which does not bear
signatures of SHOP, E Police Station. He stated that the same had
been taken out of the net and thereafter, he passed on information
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through net to E SHO for the present case. He stated that he searched
for the aforesaid motorcycle, however, no clue came forward till
11.04.2016. He stated that on 14.04.2016, copy of DD No. 70B (Ex
PW2/A) regarding the chassis and number plate of the stolen
motorcycles recovered from the accused, was delivered to him by
MHC(R). He stated that through the aforesaid DD, it came to his
notice that chassis and number plate of stolen motorcycle of present
case were recovered from the accused. He stated that he placed the
aforesaid DD on file and thereafter, visited Special Staff, North East
District and collected copy of kalandara (Ex. PW4/C), copy of DD
No. 12A (Ex PW4/D), disclosure statement of the accused (Ex
PW4/A), site plans (Ex PW4/F and PW4/E), five seizure memos (Ex
PW4/B-1 to PW4/B-5) and placed the same on file. He stated that he
had also interrogated Special Staff officials namely SI Shahid, Ct
Bhullan, HC Vinay, ASI Rakesh under Section 161 of the Cr.PC.
Thereafter, he stated that on 29.04.2016, the accused appeared before
the concerned court and he had formally arrested him vide Arrest
Memo (Ex PW7/A). He stated that he had interrogated the accused
and recorded his disclosure statement (Ex PW8/B). Thereafter, the
accused was produced before court and he was sent to judicial custody
on his written request. He stated that during the course of
investigation, he had called the complainant, after 2-3 days from the
arrest of the accused, to the PS and he had identified chassis with the
help of photocopy of the RC (Ex PW3/A). He stated that he had also
collected involvement list of 30 criminal cases of accused (Ex
PW8/4).
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15. On cross examination, he stated that he had not obtained
signatures of the complainant on the site plan. He denied the
suggestion that no disclosure statement had been made by the accused
or that his signatures were obtained against his wishes by coercion. He
denied the suggestion that the recovery of scooty and motorcycle had
been planted against the accused by the police to work out their
pending cases.
16. The statement of the accused was recorded under Section 313 of
the Cr.PC. He stated that he was lifted from his house on 11.04.2016,
at about 3 pm, by three police officials. He stated that it was incorrect
that the police team had asked him to produce documents of the
motorcycle and he had failed to produce the same. He stated that it
was incorrect that during interrogation, he had disclosed his
involvement in a number of cases with his associate Sabir @
Kabooter, who used to allegedly sell him stolen motorcycles. He
further stated that he did not make any disclosure statement to the
police. He also stated that the IO obtained his signatures on a blank
piece of paper and used the same to work out the pending cases. He
stated that no recovery was effected from his house and the alleged
recoveries had been planted on him. He stated that the stolen
motorcycles and spare parts were lying at the office of Special Staff,
North East, Yamuna Vihar. He stated that the IO, SI Shahid Ali had
demanded a bribe of ₹ 3,00,000/- from him and when he refused to
give the same, he was falsely implicated in the present case. He stated
that kalandara (Ex PW4/C)) prepared by PW-4 is a matter of record.
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He stated that he was arrested by the IO before the concerned court,
however, the disclosure statement was recorded by the IO himself and
his signatures were obtained on it, without explaining the contents of
the same. He stated that he has been falsely implicated in this case and
the witnesses have deposed against him as they are interested
witnesses. He stated that on 11.04.2016, at about 3 pm, he was going
to Jama Masjid from his house on his scooty bearing no DL 2SN 1571
with an aluminum nob in his bag and three police officials, who were
dressed in civil uniform, came in front of his house and told him that
some inquiry is to be conducted from him at the police station.
Thereafter, they took him to the police station on his scooty with him
sitting in the middle. He further stated that he was detained in the
police station from 11.04.2016-12.04.2016. He stated that his brother
had visited the police station to inquire about his detention and the IO
had demanded bribe of ₹3,00,000/- from him. Further, he stated that
when he refused to give the same, the police officials falsely
implicated him in a number of cases.
17. The accused further examined himself as DW1. He stated that
on 11.04.2016, he was going to Jama Masjid from his house on his
scooty bearing no. DL-2SN-1571 with an aluminum nob in his bag.
Thereafter, three police officials dressed in civil uniform came in front
of his house, asked his name and informed him that some inquiry had
to be conducted. Thereafter, he was taken to Yamuna Vihar Special
Staff Office with his scooty, wherein they enquired about his previous
cases and thereafter, PW-4 took him to the ACP‟s Office. He stated
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that the ACP had inquired about his mobile number but he had left the
same at his home. He stated that he made a call to his nephew from the
mobile phone of the ACP. He stated that the ACP had asked him to
call 2-3 persons along with his food. Thereafter, the ACP inquired as
to how much he could arrange to pay SI Shahid, in the presence of his
brother Khalil and nephew Tayab. He stated that again said, SI Shahid
had inquired about his financial capacity to pay money, in the
presence of the ACP. He stated that his brother and nephew refused to
pay anything, as he was not indulged in any unlawful activity.
Thereafter, he stated that he was arrested on his failure to pay the
amount to SI Shahid and he was produced before the concerned court
on 12.04.2016.
18. On cross examination, the accused stated that he was going to
deliver aluminum nob to one Fayad Bhai at his shop in Gali Gadiya,
Jama Masjid, however, he did not know the address of Fayad Bhai but
knew his mobile number. He affirmed that he had not brought any
document to prove that he was engaged in the business of
manufacturing aluminum nob. He stated that at the time of incident, he
was facing about fourteen cases before different courts and all the
cases were pertaining to Sections 379 or 411 of the IPC. He stated that
he had not been convicted in any of the cases but one case pertaining
to PS Dariya Ganj was compromised. He stated that he had
compounded three cases pertaining to PS Dariya Ganj and he had
settled three-four cases by the way of plea bargaining. He stated that
SI Shahid had inquired about his financial capacity and made a
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demand for money but it was made while he was taken away in a
corner. He stated that neither he informed the concerned ACP
regarding the bribe demanded by PW-4 nor he made any complaint to
higher authority against the false implication by PW-4 in the present
case, as he was not given time to do so. He stated that he had been
implicated in fifteen cases after being lifted from his house. He stated
that neither he nor his family members have filed any civil or criminal
case or complaint against PW-4 or police officials of the concerned PS
or ACP regarding the aforesaid. He stated that he was earning
₹18,000-20,000 per month and SI Shahid had demanded ₹3,00,000
from him. He affirmed that he did not make any complaint against any
demand. He stated that he had disclosed to the concerned MM that he
had been falsely implicated in the present case but no application or
written document was filed before the concerned court regarding the
same. He denied the suggestion that he was habitually dealing in
stolen articles as well as theft and a number of false cases had been
lodged against him on account of his involvement in the present case.
He denied the suggestion that he had concocted a false story of being
lifted from his house or that he had levelled false allegations against
the police officials for lodging the said case against him. denied the
suggestion that he had deposed falsely.
Discussions and Conclusion
19. Mr. Saini, learned counsel appearing for the appellant assailed
the appellant‟s conviction on multiple grounds. First, he submitted that
there is a delay in registration of the FIR. The FIR of the said case was
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lodged on 05.04.2016, however, the motorcycle bearing no. DL 8SAZ
7225 belonging to the complainant was allegedly stolen on
03.04.2016.
20. Second, he submitted that the appellant was falsely implicated
in the case. He contended that this is apparent from the following: (i)
although two-wheelers were allegedly recovered, no keys were
recovered; (ii) that no independent witnesses were joined in the
alleged recovery proceedings; and (iii) the police officials from PS
Jafrabad were not informed although the recovery was effected from a
place which was a short distance from the said Police Station.
21. Third, he contended that the appellant was apprehended from
his residence on 11.04.2016 at about 3.00 p.m., by three police
officials and the said recoveries were planted upon the appellant by
the police officials. He contended that no recovery was effected from
the residence of the appellant and the said motorcycles and spare parts
were lying at the office of Special Staff, North-East, Yamuna Vihar.
22. Fourth, he contended that the prosecution had failed to establish
that the vehicle allegedly stolen belonged to the complainant as the
original Registration Certificate was not produced. Fifth, he contended
that the prosecution had failed to establish the premises from where
the recoveries were effected belonged to the appellant. And lastly, he
contended that the appellant was not convicted and sentenced in any
earlier case and therefore, it could not be concluded that the appellant
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was a habitual offender. Therefore, his conviction for an offence
punishable under Section 413 of the IPC is not sustainable.
23. None of the contentions advanced on behalf of the appellant are
persuasive. The delay in filing the FIR has been adequately explained
by the complainant (PW3). He had stated that he had found that his
motorcycle was missing at about 10:00 pm on 03.04.2016. He had
searched for his motorcycle but it was not found where it was parked.
The complainant had immediately made a call to the police at 100. A
PCR had come to the spot and he had been asked to report the same at
PS Bhajan Pura. He had stated that he visited the said Police Station
but he did not have the Registration Certificate of his motorcycle. He
again went to the said Police Station one or two days thereafter and on
05.04.2016, he lodged an e-FIR online. This Court finds no reason to
doubt the aforesaid explanation. It is also important to note that PW3
was not cross-examined on this aspect. Thus, the same remained
unchallenged.
24. The fact that no keys were recovered also does not raise any
doubt as to the recoveries made at the instance of the appellant. It does
appear that the vehicles were being stripped down to their parts.
Further, since the parked vehicles were stolen, the original keys would
have remained with the owner. It is also relevant to bear in mind that
the appellant has been convicted for dealing in stolen goods and not
stealing the vehicles. In the circumstances, the keys to the vehicle may
not be of any material value.
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25. The fact that no independent witness had been joined in the
recovery proceedings also does not indicate that the case set up by the
prosecution is false. It is well settled that evidence of police officials
cannot be rejected solely on the ground that it is not supported by
independent witnesses. In Kalpnath Rai v. State: AIR 1998 SC 201,
the Supreme Court had held that there is "no legal proposition that
evidence of police officers, unless supported by independent witnesses,
is untrustworthy of acceptance". The Supreme Court had held that in
cases where independent witnesses have not been joined, an added
duty is placed on the court to adopt greater care while scrutinizing the
evidence of police officials. In the present case, the Trial Court found
no reason to doubt the testimony of the police officials. This Court
has also examined the said testimony and there is no material
inconsistency in the testimony of the police officials, which would
persuade this Court to doubt the same. The testimony of PW4 and
PW6 is consistent in all material aspects and establishes the recovery
of stolen property at the instance of the appellant.
26. The appellant‟s defence that he had been falsely implicated
because he had refused to pay a bribe demanded by the concerned
police officials is also without any substance. First of all, the
appellant had not made any complaint at the material time. Secondly,
the appellant‟s testimony in this regard is inconsistent with his
responses in his cross-examination. In his examination-in-chief, the
appellant (who examined himself as DW1) stated that the concerned
ACP had inquired from him as to the amount he could pay to SI
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Shahid. He stated that this inquiry was made in presence of his
brother Khalil and his nephew Tayyab. He had then changed his stand
and said that SI Shahid had inquired about his capacity to pay the
money in presence of the concerned ACP. In his cross-examination,
he stated that SI Shahid Ali had inquired about his financial capacity
to pay the amount demanded after he was taken to a corner of the
room and at that time, the concerned ACP was not watching. He also
stated that he did not inform the ACP about the demand raised by SI
Shahid nor made any complaint in this regard. In view of the above,
the appellant‟s stand that any bribe was demanded from him cannot be
accepted.
27. The contention that the prosecution had failed to establish that
the motorcycle in question was stolen as the original Registration
Certificate (RC) was not produced is also unmerited. A copy of the
said RC had been produced and PW3 had also volunteered that the
original RC was in the storage compartment (dickey) of the
motorcycle and therefore, only a copy of the RC could be produced. It
is also important to note that the chassis number of the vehicle in
question had been duly recorded in the FIR, which was lodged much
prior to the appellant being apprehended. In the circumstances, this
Court finds no ground to doubt that the motorcycle, which was
reported to be stolen by the complainant belonged to him. He had also
testified to the aforesaid effect.
28. The contention that the prosecution had failed to establish that
the address (H.No. 1009, Gali No. 33, Jafrabad) from where the
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recoveries were allegedly effected, belonged to the appellant and
therefore the appellant was liable to be acquitted, is also unmerited.
There is no dispute that the appellant was a resident of the given
premises. The appellant had in his statement recorded under Section
313 of the Cr.PC also clearly stated that he was a resident of H. No.
1009, Gali No. 33, Jafrabad. The bail bond furnished by the appellant
also records the same as his residential address. In view of this
admitted position, it is not open for the appellant to now suggest that
he was not a resident of the said premises.
29. The contention that the appellant cannot be considered as a
habitual offender as he has not been convicted is also erroneous. The
appellant is involved in a number of cases as is apparent from the
SCRB Report (Ex.PW8/4). The same indicates that the appellant is
involved in as many as thirty cases and most of the same are under
Sections 379/411 of the IPC. During the course of the proceedings, the
learned APP had also produced orders relating to FIR no. 946/06 and
FIR no. 61/07. The said orders indicate that the matters were
compounded. Before the concerned ACMM, the appellant had pleaded
guilty in the said cases. His statement made voluntarily and without
any force or coercion, to the effect that he was guilty of committing
the offences under Sections 379/411/34 of the IPC was recorded.
30. In view of the above, the conclusion of the Trial Court that the
appellant is guilty of committing an offence punishable under Section
413 of the IPC cannot be faulted.
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31. This Court has evaluated the evidence obtaining in this case and
concurs with the view of the Trial Court that the appellant is guilty of
an offence punishable under Section 413 of the IPC.
32. The appeal is unmerited and is, accordingly, dismissed.
VIBHU BAKHRU, J
JANUARY 08, 2021
RK
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