MANOJ Vs. STATE OF NCT OF DELHI

JUDGEMENT

(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 Rs.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.) 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.