MOHD MUSA  Vs STATE & ANR

CRL A. 973/2017 Page 1 of 9

IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25.01.2021
+ CRL.A. 973/2017

MOHD. MUSA …..Appellant

Versus

STATE AND ANR. …..Respondents
Advocates who appeared in this case:
For the Appellant : Mr Roshan Lal Saini and Ms Kavita Saini,
Advocates.
For the Respondents : 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 03.07.2017, whereby the Ld. ASJ, Karkardooma Courts
convicted the appellant for committing an offence punishable under
Section 411 of the Indian Penal Code, 1860 (hereafter IPC). By an o rder
dated 12.07.2017, which is also impugned in this appeal, the appellant
was sentenced to undergo rigorous imprisonment for a period of three
years along with a fine of ₹5,000/ – and in default of payment of fine, to
undergo simple imprisonment for a fur ther period of six months for
committing an offence punishable under Section 411 of the IPC.
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2. Briefly stated, the facts of the case are that on 07.04.2016, one
Mohammed Izhar lodged an online FIR No 10505/16, under Section
379 of the IPC regarding theft of his motorcycle bearing no. DL -5S-
AK-3375. Thereafter, on 14.04.2016, Special Staff, North East
apprehended the appellant with the stolen vehicle. Further at the
instance of the appellant, parts of the two -wheeler vehicle were
recovered. The chassis bearing no. 11969 of the abovesaid motorcycle
was also recovered from the premises of the appellant and was lodged
as DD No. 70B. The accused was arrested in kalandara proceedings
and was sent to judicial custody. Thereafter, he was arrested in this case
from the concerned court, where he was produced on execution of a
production warrant with the allegation that he had been habitually
dealing with stolen properties and several cases had been lodged against
him.
3. Pursuant to the aforesaid FIR, the accused (the appel lant herein)
was charged with commission of an offence punishable under Section
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 nine
witnesses.
4. The Trial Court evaluated the evidence and it was found that the
prosecution had established that the appellant was in conscious
possession of the stolen articles as the same were recovered at his
instance from his premises. The prosecution had also established that
the appellant was found riding a stolen vehicle by the police officials.
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In view of the above, the Trial Court convicted the appellant for
committing an offence punishable under Section 411 of the IPC.
5. HC Vinay Kumar (incorrectly mentioned as HC Vijay Kumar in
the depos ition) was examined as PW -4. He correctly identified the
accused in open court. He stated that he was posted with Special Staff,
North East District, at the material time. He deposed that on 12.04.2016,
he was checking vehicles along with SI Shahid (PW -6), ASI Rakesh
Kumar and Ct. Bhuddan Tyagi at 66, Foota Road, Near MCD Office,
Yamuna Vihar at Kardam Puri Bus Stop. At about 5:30 pm, the accused
(driving an Avenger Bajaj bearing registration No. DL 6S 2221) was
stopped and checked. He stated that the accus ed could not produce the
documents relating to the motorcycle that he was riding on checking by
PW-6. He stated that on deep interrogation, the aforementioned vehicle
was found to be stolen property. He stated that the accused also
disclosed that other sto len vehicles and parts of vehicles can be
recovered from his house. PW -6 prepared kalandara (Ex PW4/A), site
plan of the place of arrest (Ex PW4/C) and recorded the disclosure
statement of the accused (Ex PW4/B). Thereafter, they went to the
house of the a ccused, 1009, Gali No. 33, Jafrabad and the accused
pointed towards six scooties with different registration numbers, three
motorcycles, three engines of two wheelers, ten chassis of two
wheelers, number plates of vehicles, registration number and other
loose parts of two wheelers like tanki , seats, indicators, chain rim and
tyres etc., which were lying in the hall of the aforesaid house. The
accused stated that the stolen properties were purchased by him from
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thieves after making payment to them. Thereafte r, PW -6 seized the
stolen goods vide seizure memo (Ex PW4/D) under Section 102 of the
Cr.PC and prepared site plan of the place of recovery (Ex PW4/E). He
stated that on completion of the aforementioned recoveries, the police
officials reached PS Bhajan Pu ra and deposited the recovered articles
with MHC(M) in intact condition and the accused was put in lock up.
He stated that one of the chassis of a motorcycle was in relation to a
case of theft which had been registered at PS Bhajan Pura. He stated
that his statement as well as the statements of ASI Rakesh Kumar and
Ct. Bhullan Tyagi were recorded by PW -6. Thereafter, PW -6 passed on
the said information to the concerned PS and HC Vikram (PW -8), the
IO of the present case, was also been informed about the rec overy of
chassis of the stolen motorcycle. He also stated that PW -6 had recorded
DD no 12A (Ex PW2/A) at PS Bhajan Pura. He correctly identified the
case property, that is, chassis of motorcycle bearing no.
MDLHA10ASC9L11969.
6. The testimony of SI Shahid Ali , who was examined as PW -6, is
consistent with the testimony of PW -4. PW -6 correctly identified the
accused 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 and Ct. Br aham Pal were busy in vehicle checking at 66,
Foota Road, near MCD Court, C Block, 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 spo t. He stated that he could not produce any
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document pertaining to his motorcycle or his driving license (DL).
Thereafter, he checked the chassis number and the engine number of
the above -mentioned vehicle and the same were found to be incorrect.
He stated that the accused told him that he had stolen the aforesaid
motorcycle from the area of Panchsheel Garden, Naveen Shahdara,
about a week prior to that. He stated that he had verified from the control
room by using Ziplet that the same was found to be a stol en property
under an e -FIR. Thereafter, the aforesaid motorcycle was seized under
Section 102 of the Cr.PC. Upon interrogation, the accused disclosed his
involvement in several cases along with his associate Sabir @ Kabooter.
The accused disclosed that Sab ir used to sell stolen motorcycles to him.
He further disclosed that some stolen two wheelers and parts of two
wheelers can be recovered from his house i.e. H. No. 1009, Gali No. 33,
Jafrabad, Delhi. The disclosure statement of the accused was recorded
(Ex-PW4/B). Thereafter, at about 7 pm, PW -6 stated that he reached the
house of the accused and the accused pointed towards the hall of his
house, where about 10 -12 motorcycles and scooties were kept along
with parts of motorcycles. He stated that 20 registra tion plates of two
wheelers, 2 engines of scooties, 8 chassis of motorcycles, 2 chassis of
scooties, some sheets, chains, mudguards etc were recovered from the
premise of the accused. The aforesaid items were seized and seizure
memos were prepared in detai l (Ex PW4/D). He stated that one chassis
bearing no 11969 of a motorcycle was also recovered. The same were
brought to PS Bhajan Pura and deposited with MHCM. He stated that
he prepared kalandara (Ex PW4/A) against the accused, recorded DD
No. 12A (Ex PW2/ A) and statements of police officials (in whose
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presence recovery was made), prepared site plans of the place of
recovery (Ex PW4/E) and site plans of the place where the accused was
arrested (Ex PW4/C). Thereafter, the accused was put up in lock up of
the police station. He stated that on the next day, when the accused was
produced before the concerned court, he presented kalandara before the
court and the accused was sent to judicial custody. He correctly
identified the chassis of the vehicle of the prese nt case.
7. Ct. Prem Chand was examined as PW -5. He deposed that he had
recorded information about the recovery of stolen goods from the
accused in DD No. 70B (Ex PW5/A).
8. There is no reason to doubt the testimony of PW -4 and PW -6. In
view of the evidence led by the prosecution, it is clearly established that
the chassis of the motorcycle that was the subject matter of the FIR in
question (FIR No. 010505/2016) was recovered from the appellant.
Whilst the same did not establish that the appellant had committed an
offence punishable under Section 379 of the IPC; it did establish that he
was dealing with stolen goods (parts of two wheelers).
9. It was contended on behalf of the appellant that the prosecution
had failed to establish that the chassis recovered (chass is no.
MDLHA10ASC9L11969) was that of a stolen vehicle. It was pointed
out that the complainant (Mohd. Izhar – examined as PW -3), who
claimed to be the owner of the said vehicle, testified in his examination –
in-chief that he was the owner of the motorcycl e bearing no.
DL5SAK3375 and also produced the RC which indicated that the
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chassis number of the said vehicle was MBLHA10ASC9L11969.
However, in his cross -examination, he resiled from his statement that
he was the owner of the said vehicle and stated that his brother Mohd.
Istkar was the registered owner. It was contended on behalf of the
applicant that since the owner of the vehicle bearing registration No.
DL5SAK3375 was not examined, there is no evidence to establish that
the chassis in question (chassi s bearing no. MDLHA10ASC9L11969)
was stolen.
10. In this regard, it would be necessary to examine the testimony of
Mohd. Izhar, who was examined as PW -3.
11. PW-3 stated that he is the registered owner of motorcycle
Splender Pro bearing no. DL5SAK -3375. He deposed that on
07.04.2016, at about 2 pm, he had stationed the aforementioned
motorcycle in front of his house and at about 4 pm, he discovered that
his motorcycle was missing from the spot. And, on the same day, he
lodged an e -FIR for the ft of his motorcycle. Thereafter, he visited PS
Bhajan Pura and made inquiries from the police officials and was
informed that the FIR for theft of his motorcycle had been registered.
He stated that on 08.04.2016, police officials visited the spot from
where the motorcycle was stolen. He testified that a site plan (Ex
PW3/1) was prepared by the police, at his instance. He stated that after
some days, he was informed by the police officials that the chassis of
his motorcycle was found and the same was identi fied by him. He
further stated that no other part of his motorcycle was recovered. He
also proved that as per the RC of his motorcycle (Ex. PW3/A), the
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chassis no. is MBLHA10ASC9L11969. He identified the chassis
brought by the MHC(M) in court. In his cross examination, he stated
that he is not the registered owner of the aforesaid vehicle and his
brother Mohd. Istkar is the registered owner.
12. Undeniably, the statement made by PW -3 in his cross –
examination is inconsistent with his testimony that he was the o wner of
the vehicle in question. However, the same is not material because his
testimony that he had parked the motorcycle in front of his house
remains uncontroverted. The Trial Court had evaluated his evidence and
had concluded that there is no reason to doubt that he was in possession
of the motorcycle even though his brother was the registered owner of
the same. Thus, there is no reason to doubt the allegation that the said
motorcycle had been stolen from the place where it was parked by PW3.
13. In view o f the above, this Court finds no reason to interfere with
the conclusion of the Trial Court. This Court concurs with the decision
of the Trial Court that the prosecution has established that the appellant
is guilty of committing an offence punishable under Section 411 of the
IPC.
14. The Trial Court has sentenced the appellant to undergo rigorous
imprisonment for period of three years along with a fine of ₹5,00 0/- and
in default of payment of the fine, to undergo simple imprisonment for a
further period of six months for committing an offence punishable
under Section 411 of the IPC. This Court finds no ground to interfere
with this sentence as well. However, as noticed above, the disclosure
made by the appellant had also led to recovery in another FIR. The
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chassis of a two wheeler bearing registration no. DL -8SA-Z-7225 –
which was reported stolen and pursuant to which e -FIR. no. 10208/16,
under Sections 379/411/4 13 of the IPC was registered with PS
Bhajanpura – was also recovered. The appellant was prosecuted
pursuant to the said FIR and by a judgement dated 21.01.2017 passed
by the Ld. ASJ, he was convicted for an offence punishable under
Section 413 of the IPC. By an order dated 28.01.2017 the appellant was
sentenced to undergo rigorous imprisonment for a period of seven years
and pay a fine of ₹ 40,000/ – and in default of payment of fine, to undergo
simple imprisonment for a further period of one year for commit ting the
offence punishable under Section 413 of the IPC. The appellant’s
appeal [Crl.A 217 of 2017] against the said conviction and sentence was
also rejected by this Court.
15. In the given circumstances, this Court is of the view that the
sentence awarded t o the appellant ought to run concurrently with the
sentence awarded to him in that case – SC no. 118/2016 arising out of
FIR bearing no. 10208 of 2016 under Sections 379/411/413 of the IPC
registered with PS Bhajan Pura. It is so directed.
16. The appeal i s disposed of in the aforesaid terms.

VIBHU BAKHRU, J
JANUARY 25, 2021
RK
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