Delhi District Court
State vs . Satya Prakash & Ors on 20 September, 2022
IN THE COURT OF SH. AJAY NARWAL, MM-01, NEW DELHI, PATIALA
HOUSE COURTS/NEW DELHI.
State Vs. Satya Prakash & Ors
New No. 39530/2016
FIR No. 91/2001
PS: Connaught Place
U/S: 380/457/411/34 IPC
JUDGMENT
ID number of the case : 39530/2016 Date of commission of offence : Intervening night of 26/27.02.2001 Date of institution of the case : 16.05.2001 Name of the complainant : Sh. Yashwant Singh
Name of accused and address : 1. Naresh s/oSh. Pritam Singh, R/o H. No. B-98, Gali No. 24, Mahavir Enclave, Part-II, New Delhi
2. Nand Kishore Shah s/o Sh. Badri Shah, r/o Village and PO Gangajal, PS Dariya Pur, District Chapra, Bihar 3 Satya Prakash (convicted in plea bargaining for the offence under Section 411 IPC vide order dated 04.04.2012).
Offence complained of or proved : 380/411/457/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 20.09.2022.
BRIEF REASONS FOR DECISION:
State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 1 of 13
1. The case of the prosecution shorn of unnecessary details is, that in the intervening night of 26/27.02.2001 at shop No. 7 Municipal Market, Connaught Place, New Delhi, both the accused persons namely Naresh Kumar and Nand Kishore committed lurking house trespass or house breaking to commit theft of machine cutting plotter and committed the offence punishable under section 380/457/34 IPC and also on 25.03.2001, at about 9.30 a.m, near H. No. 180, DESU Office Village Chatter Pur, the stolen cutting plotter was recovered from the possession of accused Satprakash and he committed the offence under Section 411 of IPC. Thereafter, an FIR was registered against the accused persons. It is apposite to note that accused Satprakash has already been convicted for the offence punishable u/s 411 of IPC by Ld. Plea bargaining Judge, vide order dated 04.04.2012.
Investigation
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [ For brevity, hereinafter referred as Cr.P.C.]. The accused persons were arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused persons and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused persons free of costs as envisaged under Section 207 of Cr.P.C. State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 2 of 13 Charge
4. A prima facie case under Sections 380/457/34 of IPC, was found to be made out against the accused persons namely Naresh Kumar and Nand Kishore. Charge was framed vide order dated 27.02.2007, by the then Ld. Predecessor upon the accused persons accordingly. The accused persons pleaded not guilty and claimed trial.
5. During the course of trial, accused Nand Kishore Shah has absconded and subsequently, he was declared as Proclaimed offender vide order dated 23.10.2009 by the then Ld. Predecessor. On 05.11.2019, accused Nand Kishore Shah was arrested pursuant to order dated 23.10.2009 and was pleaded guilty for the offence punishable u/s 174-A of IPC. Subsequently, he was declared convicted for the offence punishable u/s 174-A of IPC.
Evidence
6. In order to prove its case, prosecution examined following witnesses and produced the following documents in its documentary evidence:
Sl PW No. Name Document proved Ex. No.
No.
1. PW1 Sh. Devinder Kumar Nil. Nil.
2. PW2 SI Mohammad Ali Disclosure statement,
seizure memo, arrest
memo, site plan,
photographs of plotter
State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 3 of 13
machine. Ex. P-1 & Ex. P-2
3. PW3 HC Satya Pal FIR Nil.
4. PW4 HC Mukesh Arrest Memo. Ex. PW4/A and
PW4/D
Ex. PW4/C and
Disclosure statement.
PW4/F
Ex. PW4/G and
Pointing out memo Ex. PW4/H
Personal search memo Ex. PW4/B and
Ex. PW4/E
5. PW5 ASI Karamveer DD No. 22 A Nil.
Singh
6. PW6 Inspector Seema Copy of FIR Ex. PW6/B
Sharma
7. PW7. Sh. Yashpal Lodge complaint Ex. 7/A
Supardaginama Ex. 7/C
8. PW8 SI Paras Nath Endorsement on the Ex. PW8/A
complaint
9. PW9 Inspector Mukesh Arrest memo Ex. PW9/A
Kumar
disclosure memo Ex. PW9/B
7. In order to prove its case, prosecution examined nine witnesses. Their respective depositions are as under: -
8. PW1 Sh. Devinder Kumar deposed that accused Satyaprakash was his tenant State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 4 of 13 and police official enquired from him about the accused. He stated that he doesn't know anything about the present case. The Ld. APP duly cross examined him with the permission of the Court. In the cross examination, he stated that it is correct that on 25.03.2001, he has seen accused Satyaparkash and accused Naresh taking one machine in TSR and it is correct that police took the possession of machine in his presence. He further stated that disclosure statement of accused was taken in his presence, however, he was not aware as to what was written in the said statement. This witness also was duly cross examined by Ld. Defence Counsel.
9. PW2/SI Mohd. Ali and PW3/HC Satya Prakash on receiving DD No. 6 A went to the spot, where PW1 Devinder met them and handed over the custody of accused Satya Prakash. PW2 recorded the statement of Sh. Devender Kumar, prepared the rukka, prepared the site plan i.e. Mark C and recovered the plotter machine at the instance of accused Satya Prakash vide seizure memo Mark A. PW2 Mohd. Ali also prepared the site plan of recovery i.e. Mark C.
10. PW4/HC Mukesh along with PW5/HC Karamvir Singh went to the house of the accused persons, where PW9/SI Mukesh Kumar arrested and personally searched the accused persons and also recorded their disclosure statement and pointing out.
11. PW6 Inspector Seema Sharma received the rukka on the basis of which, she recorded the FIR i.e. Ex. PW6/B. State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 5 of 13
12. PW7/complainant Sh. Yashpal deposed that he closed his shop on 26.02.2001 and on the next day, when he opened his shop, cutting plotter and Rs. 2,40,000/- was missing. He lodged the complaint i.e.Ex 7/A. Police prepared the site plan at his instance. On 25.03.2001, his plotter cutter was recovered and which was released on supardari vide memo Ex. PW7/C. Witness has also produced photographs of the plotter cutting machine and also produced the delivery challan of the said machine vide memo Ex. P1 and Ex. P2. Challan Mark X. This witness was duly cross examined by Ld. Defence Counsel.
13. PW8/SI Paras Nath deposed that, complainant came to PS and handed over him a written complaint, on the basis of which, he registered the FIR i.e. Ex. PW8/A.
14. PW9 Inspector Mukesh Kumar deposed that on being receiving the information regarding recovery of the case property of the present case from PS Mehrauli, he along with PW/HC Karamvir and PW/Ct. Mukesh visited there and collected the case property and other documents. On the same, day, PW8 arrested and personally searched the accused Naresh and also recorded his disclosure statement. He further deposed that he also arrested and personally searched accused Nand Kishore from Pahar Ganj and also recorded his disclosure statement. He also prepared the pointing out memo of accused Nand Kishore.. He said that on 28.03.2001, he arrested accused Satya Prakash from Patiala House Courts through State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 6 of 13 production warrant and also recorded his disclosure statement and thereafter after completion of investigation, he filed the challan. This witness was duly cross examined by Ld. Defence Counsel.
15. Prosecution evidence was closed and statement of both the accused were recorded under Section 313 of Cr.PC.
Statement under section 313 Cr.PC
16. Statement of accused persons under Section 313 Cr.P.C. were recorded wherein all incriminating material brought on record were put to the accused persons, to which they denied the allegations made against them and pleaded that they has been falsely implicated in this case and was not present on the spot at all.
17. I have heard the arguments advanced at length by Ld. Counsel for the accused persons as well as Ld. APP for the State. On the basis of the above oral and documentary evidence on record, Ld. APP requested for conviction of both the accused persons. On the other hand, learned defence counsel for accused persons contended that the prosecution has miserably failed to establish the guilt of the accused persons beyond all reasonable shadow of doubt. Accordingly, Ld. defense counsel for the accused persons prayed for the acquittal.
LAW INVOLVED IN THE PRESENT CASE State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 7 of 13
18. Section 380 of the IPC provides for the offence of theft in dwelling house, etch. It reads as under:
Theft in dwelling house, etc.--Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
19. The theft is defined under Section 378 IPC. The essential ingredients to con- stitute an offence under Section 380 IPC are as follows: -
a) Intention to take dishonestly
b) The property shall be movable property.
c) The property shall be taken out from the possession of any person without his consent.
d) There should be some moving of the said property to such taking.
e) The theft should have been committed in a dwelling house or place used for safe custody of property.
20. Section 457 IPC provides for the offence of lurking house trespass or house breaking by night in order to commit theft. It reads as under:
Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
21. The essential ingredients to constitute the offence of house breaking at night are:-
State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 8 of 13
a) The accused should have entered into the property which is in possession of another.
b) There should be an intention to commit an offence on part of the accused.
c) Such property should be any building / tent/ vessel used for human dwelling on place for worship or for custody of property.
d) Entry into the house should have been effected by the accused in any one of the six ways as defined under Section 454 IPC.
22. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to success- fully bring home the guilt of the accused, prosecution has to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the de- fence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the ac- cused to acquittal.
23. It is apposite to mention that PW-1 i.e. Sh. Devinder Kumar and PW-7 i.e. Sh. Yashpal are material witness of the prosecution. PW-1 has turned hostile during his examination in chief and stated that "he doesn't know anything about the present case". Ld. APP for the State has duly cross examined, however, even in his cross examination he has not stated that he has seen the accused persons committed the theft or has seen accused persons entering into the property in the possession of another. PW-1 has deposed in his cross examination that he has seen accused Satyaparkash and accused Naresh taking one machine in TSR and police took the same machine in possession vide seizure memo Mark A which bears his signature. State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 9 of 13 PW-1 has not deposed anything with respect to accused Nand Kishore. Another material witness i.e PW-7 has, inter-alia, deposed that on 27.02.2001 when he opened his shop he found that the cutting plotter was missing. PW-7 brought two photographs of the said cutting plotter and same were exhibited as Ex. P1 and P2. In the cross examination, PW-7, inter-alia, stated that on the day of incident he was in Mumbai and there was no CCTV camera installed in his shop at the time of inci- dent. Perusal of testimony of PW-7 shows that he has not seen the accused persons committed the theft or entering into his property, in fact, when the alleged theft was committed in his shop, he was out of station.
24. The prosecution has not produced any witness who has seen the accused persons committing theft of cutting plotter or entering into the property of the complainant for the purpose of commits lurking house-trespass by night, or house- breaking by night. Hence, there is no direct evidence against the accused persons. When there is no direct evidence available on record and the culpability of accused person is to seen on the basis of the circumstantial evidences. At this stage, this Court deem it fit to state that in land mark Judgment namely Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1662, the five golden principles or panchsheel of proof of a case, based on circumstantial evidence was evolved. The Hon'ble Apex Court held as under: -
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 10 of 13
1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted that this court indicated that the circumstances concerned "must or should" and not "may be" established there is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this court in Shivaji Sahebrao Bobade Vs. State of Maharashtra 1973 Crilj 1783 where the following observations made:
Certainly, it is primary principal that the accused must be and not merely may be guilty before a court can convict, and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions.
2) The fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable or any other hypothesis except that the accused is guilty.
3) The circumstances should be of a conclusive nature and tendency
4) They should exclude every possible hypothesis except that one to be proved, and
5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused"
25. It is pertinent to mention that the case of the prosecution when judged on the touch stone of totality of facts and circumstances, does not generate an unqualified State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 11 of 13 and unreserved sanctification indispensably required to enter a finding of the guilt against the accused persons. Having regard to the evidence on record as a whole in the present case, it is not possible for the court to unhesitatingly hold that the charges levelled against the accused have been proved beyond reasonable doubts.
26. No doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused and in the instant case, prosecution has failed to prove its case against accused persons beyond reasonable doubt. At this stage, court further deems it fit to state that it is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. Hence, in view of the aforesaid discussion, the prosecution has failed to prove the charges levelled against the accused persons and therefore, the accused Naresh and Nand Kishor are hereby acquitted from the offences u/s 380/457/34 IPC. State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 12 of 13
27. Previous Bail bond cancelled and surety discharged. Endorsement if any, be cancelled and documents if any, be returned, against acknowledgment after due verification. File be consigned to Record room after necessary compliance. Dictated directly into the computer (AJAY NARWAL) and announced in the open Court, MM-01 (New Delhi)/ On 20th September, 2022. Patiala House Courts, N. Delhi/20.09.2022.
State Vs. Satya Prakash & Ors FIR No. 91/2001 Page no. 13 of 13