51# $~ ' * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 572/2011 SHAILENDER Petitioner Through: Mr. R.S. Kadian, Advocate. versus STATE Respondent Through: Mr. Mukesh Gupta, APP with SI Vijender Kumar, PS Kapashera, Delhi. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA ORDER % 20.12.2011 Crl. M.A. No. 19644/2011 (Exemption) Allowed, subject to all just exceptions. Cri. Rev. P. 572/2011 By the presentpetitionthe Petitionerchallengesthe judgmentdated 23"^ March, 2011 of the learnedMetropolitanMagistrateconvictinghim for offencepunishableunder Section411 IPG and sentencinghim to undergo Simple Imprisonmentfor aperiod of two years vide order dated 4^*" May, 2011 and the appellate order dated 19^*" September, 2011 dismissingthe appealof the Petitioner. The contentionof the learned counsel for the Petitioneris that the CRLREVP.572/2011 ^ Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified Petitioner could not have been committed once he was charged for offence under Section 411 IPG read with Section 34 IPG when the other two co- accusedpersons have been acquitted. Reliancein this regard is placed on Krishna GovindPatil vs. State of Maharashtra, AIR 1963 SC 1413. It is furtherstatedthat merelyby drivingthe vehiclethe consciouspossessionof the vehicle is not proved. The case of the prosecutionwas that all the accused persons were in possession of the vehicle, however, only the Petitioner has been convicted for the offence of possession of stolen vehicle. I have heard learned counsel for the Petitioner at length. The case of the prosecutionis that a complaintwas lodged by one Jasmer Singh that his white colour Maruti Zen car bearingNo. DL 2 GK 8261 was robbed from him on the night of 16*^ August, 2004 in Village Bamnoliby three men aged about 20-25 years who had come in Wagon-R car. On a secret information four persons namely, Shailender, Anoop, Yogesh and Deepu were arrestedwhile going in the stolenMaruti Zen car was recovered. While apprehendingthe accused opened fire at the police party for which an FIR under Sections307/353/186/34IPG was registered. In the said case the Petitionerhas been acquittedhowever,the co-accused Anoop and Yogeshhave been convictedby the learnedAdditionalSessions CRLREVP.572/2011 ^ ^ Judge vide judgment dated 1 February, 2011. In the present case charges under Sections 411/471/482IPC were framed against the Petitioner and two others as they were found in possessionof a stolenMaruti carbearinga fake numberplate HR-06-5338. However,since the Petitionerwas drivingthe Maruti Zen car DL 2CK 8261 which was a stolenpropertyfinallythe Court only convictedthe Petitioner and extended the benefit of doubt to the other two persons who were sitting in the car along with the Petitioner. I have gone throughthe judgmentof the learnedTrial Court and the AppellateCourt. The prosecutionhas provedbeyondreasonabledoubtthat the car was stolen by examining PWl Jasmer Singh and his original complete Ex.PWl/A. Further PW2 the owner of the car has proved that PWl was driving the car at the relevant time. The prosecutionhas further proved that the car was being driven by the Petitionerwhen they were apprehended. There can be no doubt that the Petitionerwas rightlyheld to be in the consciouspossessionof the vehiclewhich is a stolenproperty. In case it is the defence of the Petitioner that it was somebody else's car and he was acting as a driver then the onus under Section 106, EvidenceAct lies upon the Petitionerto prove said circumstancebecauseit was especiallyin CRL.REVP.572/2011 Page 3 of 4 his knowledge. Havingnot dischargedthe said onus, I find no infirmityin the impugned judgments. Petition is dismissed. MUKTA GUPTA, J. DECEMBER 20, 2011/'vn' CRLREVP. 572/2011 Page 4 of4