Delhi District Court
Fir No. 128/10 State vs . Aslam Ps: Bharat Nagar on 10 August, 2018
FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar
IN THE COURT OF MS. EKTA GAUBA:
ADDL. CHIEF METROPOLITAN MAGISTRATE
(NORTH WEST), ROHINI COURTS, DELHI
State Vs Aslam
FIR No. : 128/10
PS : Bharat Nagar
U/s. : 457/380/511 IPC
JUDGMENT
1 Case Unique I.D. No. : 527673/2016
2 Date of complaint : 18.05.2010
3 Name, parentage & : Aslam,s/o. Sh. Kallu, r/o.
address of the accused Jhuggi No. 229, Kabir Nagar,
R. P.Bagh, Delhi
4 Offence complaint of : 457/380/511 IPC
5 Plea of accused : Pleaded not guilty
6 Final order : Convicted
7 Date of order : 10.08.18
State Vs. ASlam Page No. 1 of pages 14
FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar
BRIEF REASONS FOR SUCH DECISION :
1) Accused has been forwarded by the SHO of PS
Bharat Nagar to face trial 457/380/511 IPC.
2) In a nut shell, the prosecution story is that on 18.05.2010, at about 04.00 a.m. in the morning complainant Mahender Kumar Jain was awaken by his domestic servant Tilak Ram and called on the first floor as complainant was sleeping in his house on the ground floor and his servant Tilak Ram was sleeping in a room on the first floor. Complainant alleged that when he went on the first floor alongwith his servant Tilak Ram, then his servant told him that one boy is present inside the bathroom and Tilak Ram has locked that boy inside the bathroom. Complainant further alleged that when he opened the door of the bathroom and caught hold of that boy and on inquiry that boy told his name as Aslam and that boy/ accused Aslam had come on the roof of the house of the complainant by climbing the stairs of the nearby Arya Samaj Mandir and accused Aslam after tresspassing into the bathroom of the complainant was attempting to commit theft of the taps of the bathroom of the complainant. On this complaint, FIR was registered and after completion of remaining investigation, charge State Vs. ASlam Page No. 2 of pages 14 FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar sheet was filed in the Court.
3) Copy of charge sheet was supplied to the accused free of cost U/s 207 Cr.PC.
4) Finding a prima facie case, accused was charged U/s 457/380/511 IPC, to which he pleaded not guilty and claimed trial.
5) Prosecution to prove its case examined five witnesses namely PW 1 ASI Mahender Singh, PW2 Tilak Ram, PW3 Mahender Kumar Jain, PW4 Ct. Dharmender and PW5 HC Subhash Dhaka.
6) Statement of accused u/s 313 Cr.P.C. was recorded separately wherein accused denied all the allegations levelled against him and stated that he is innocent and he has been falsely implicated in this false and fabricated case. Also accused chose not to lead defence evidence.
7) I have heard the arguments advanced by the Ld. APP for the State as well as the Ld. Counsel for the accused and gone through the case file carefully and State Vs. ASlam Page No. 3 of pages 14 FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar thoroughly.
8) Prosecution in order to prove its case examined formal witness namely PW 1 ASI Mahender Singh and he proved that on 18.05.2010 at about 06.50 a.m. on the basis of rukka received from Ct. Dharmender Kumar, sent by HC Subhash, he registered the present FIR and the print out of the same is Ex. PW 1/A. He also certified that the FIR was got registered by him on the basis of the information fed into the computer which was being used for similar purposes in routine and was under his lawful control and nothing abnormal took place during that period so as to affect the accuracy and correctness of the information fed into the computer.
9) Prosecution to prove its case examined the most crucial witness namely PW 3 Mahender Kumar Jain, complainant cum eye witness and he deposed that on 13.05.10, he was taking rest at his house and in the meanwhile, he heard the noise of his servant " bathroom main koi ghus gaya hai aur maine bathroom ki kundi laga di hai" and on hearing the said noise, he alongwith his servant went to the first floor of his house at about 04.00 a.m./ 05.00 a.m. and his servant namely Tilak State Vs. ASlam Page No. 4 of pages 14 FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar Bahadur opened the latches of the door of the bathroom and found that the accused (correctly identified) was present there. He further deposed that the accused was trying to remove the tap from there and the accused was apprehended and he made a call to PCR at 100 number and the PCR officials reached there and he handed over the custody of the accused to them and the local police also reached there. He further stated that his statement was recorded by the police in police chowki and the statement is Ex. PW 3/A and the accused was arrested and personally searched in his presence vide memo Ex. PW 2/A and Ex. PW 3/B respectively.
10) Prosecution in order to prove its case examined material witness PW 2 Tilak Ram, eye witness and he stated that he is working as servant in the house of complainant Mahender Kumar. He further stated that on 18.05.2010, at about 04.00 a.m. when he was sleeping in his room, he heard some noise coming from the bathroom and he saw that one unknown person in the bathroom who had opened the water tap installed in the bathroom and he rushed towards the bathroom, but that person closed the door of the bathroom. He further stated that he called Mahender Kumar and told him that State Vs. ASlam Page No. 5 of pages 14 FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar someone was there in the bathroom and he had already bolted its door from outside. He further stated that police was informed by Mahender Kumar and police came at the spot after about half an hour and he do not know as to who had opened the door of the bathroom as he went at the ground floor of the house for work. He further stated that after some time when he again came at the spot, police was making inquiry from the accused (correctly identified) and the accused was taken out from the bathroom and then, inquired by the police and the accused was arrested by the police vide arrest memo Ex. PW 2/A.
11) Prosecution in order to prove its case, examined PW 5 HC Subhash DhakaInvestigating officer and PW 4 Ct. Dharmender and they deposed that they were on duty on 1718.05.2010 from 08.00 p.m. to 08.00 a.m. and after receiving DD no. 6 A dated 18.05.2010, which is Ex. PW 5/A, they went to the spot i.e. A 7/6, First Floor, Rana Pratap Bagh, Delhi. They further stated that when they reached at the spot, one boy was already apprehended by complainant Mahender Kumar Jain and the said boy on interrogation disclosed his name as accused Aslam. They further stated that IO / HC State Vs. ASlam Page No. 6 of pages 14 FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar Subhash recorded the statement of the complainant Ex. PW3/A and prepared the rukka and handed over the same to Ct. Dharmender and Ct. Dharmender after getting the FIR registered, came back at the spot and handed over the copy of the FIR and original rukka to the IO. They further stated that after that IO/HC Subhash arrested the accused vide arrest memo Ex. Pw 2/A and conducted the personal search of the accused vide memo Ex. PW 3/B and after that, accused was taken to BJRM Hospital for his medical examination and thereafter, accused was produced before the court for seeking remand. They correctly identified the accused present in the court. PW5 HC Subhash Investigating Officer, further deposed that the MLC of the accused is Ex. PW 5/C and he prepared the site plan vide Ex. PW 5/B. He further proved the remaining investigation conducted by him. Ld. APP for the State contended that the prosecution is able to prove its case and the accused should be accordingly convicted.
12) Ld. Counsel for the accused contended that the accused has raised the defence that he is innocent and he has been falsely implicated in this false and fabricated case. Ld. Counsel for the accused has also State Vs. ASlam Page No. 7 of pages 14 FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar contended that PW2 Tilak Ram in his cross examination stated that he went inside the bathroom after taking out accused from there and he saw that the tap was there in the bathroom and that means that accused could not remove the tap. Ld. Counsel for the accused contended that this shows that PW2 Tilak Ram eye witness has himself admitted that the accused could not commit theft of the tap from the bathroom and this fact throws doubt on the prosecution story and the benefit of doubt goes in favour of the accused and therefore the accused should be accordingly acquitted.
13) Keeping in view the defence taken by the accused that he is innocent and he has been falsely implicated in this false and fabricated case. The defence taken by the accused is of no use to the accused because accused has not led any evidence to prove his defence.
14) Considering the contention of the Ld. Counsel for the accused that PW2 Tilak Ram, eye witness has himself admitted in his cross examination that accused could not commit theft of the tap from the bathroom and this fact throws doubt on the prosecution story. This contention of Ld. Counsel for the accused does not State Vs. ASlam Page No. 8 of pages 14 FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar holds good because the prosecution story is that accused attempted to commit theft and not that the accused committed theft. Further, PW2 Tilak Ram and PW3 Mahender Kumar both eye witnesses have taken consistent stand that the accused attempted to commit theft and their testimony is reliable. The fact that PW2 Tilak Ram in his cross examination stated that he went inside the bathroom after taking out accused from there and he saw that the tap was there in the bathroom and that means the accused could not remove the tap. The mere fact that the aforesaid stray sentence has been stated by PW2 Tilak Ram in his cross examination, this does not effect the credibility of the testimony of PW2 Tilak Ram who is an eye witness. Considering the fact that one stray sentence appearing in the cross examination of the crucial witness does not effect the credibility of the said witness. Relying upon the judgment of Hon'ble Supreme Court of India in Case titled as Karamjit Singh V/s State (Delhi Administration) 2003 SCC (Cri) 1001 wherein it has been laid down that " the testimony of a prosecution witness could not be discarded merely on account of a stray sentence appearing in his cross examination".
State Vs. ASlam Page No. 9 of pages 14FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar
15) Considering the essential ingredients of the offence u/s 457/380/511 IPC are that whoever commits lurking house tresspass by night or house breaking by night in order to commit theft and the said house is a dwelling house used as a human dwelling and the offender attempts to commit theft. To prove it, prosecution has examined PW3 Mahender Kumar Jain, complainant cum eye witness and he deposed that he was taking rest at his house and in the meanwhile he heard the noise of his servant "bathroom main koi ghus gaya hai aur maine bathroom ki kundi laga di hai". He further stated that on hearing the said noise, he alongwith his servant went to the first floor of his house at about 4:00/ 5:00 am and his servant Tilak opened the latches of the door of the bathroom and found that accused (correctly identified), was present there and the accused was trying to remove the tap from there. He also proved his complaint Ex. PW3/A. Complainant in his complaint Ex. PW3/A, has clearly stated that accused has climbed up the stairs of Arya Samaj Mandir and came on the roof of his house and after tresspassing into the bathroom of his house, accused was trying to commit theft of the tap of the bathroom.
Also, another eye witness i.e.
State Vs. ASlam Page No. 10 of pages 14
FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar
PW2 Tilak Ram stated that on 18/05/2010 at about 4:00 am, when he was sleeping in his room, he heard some noise coming from the bathroom. He further stated that he saw that one unknown person in the bathroom who had opened the water tap installed in the bathroom and he rushed towards the bathroom but that person closed the door of the bathroom. He further stated that he called Mahender Kumar and told him that someone was there in the bathroom and he had already bolted its door from outside. He further stated that after sometime when he again came at the spot, police was making enquiry from the accused (correctly identified). He further stated that accused was taken out from the bathroom and then was being enquired by the police. PW2 Tilak Ram in his cross examination stated that he is working in the house of complainant since 1112 years and his age was 33 years at the time of incident. He further stated that after noticing that some one was inside the bathroom, he immediately bolted the door from outside and informed Sh. Mahender Kumar. He further stated that he saw that accused was opening the water tap when he was moving towards bathroom, however, on seeing him, accused closed the door and he bolted the door from outside. He further stated that there was not so much State Vs. ASlam Page No. 11 of pages 14 FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar light to notice as to whether accused was having any tool or not for opening/removing the water tap. He further stated that when he reached near to the bathroom, he saw that one person was in bent position and was removing the water tap. He further stated that the stair case for going to the first floor is from inside the ground floor and not from the lobby. He further stated that the main gate of the house was locked at that time and on the one side of the said house there is Arya Samaj Mandir and on the other side, there is another house which is adjacent to their house. He further stated that there is only one entrance that is an iron gate of the said house. PW2 Tilak Ram and PW3 Mahender Kumar Jain proved that the accused Aslam was apprehended and caught red handed on the spot and they correctly identified the accused and they also proved the arrest memo of the accusedEx. PW2/A which bears the signature of both the eye witnesses at point A and B respectively. Perusal of arrest memo of the accused Ex. PW2/A shows that the accused Aslam was arrested on the spot. Thus, both the eye witnesses have given consistent stand that on 18/05/2010 at about 4:00 am, the accused Aslam has committed lurking house tresspass/house breaking, by night in order to commit State Vs. ASlam Page No. 12 of pages 14 FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar theft and the accused Aslam attempted to commit theft of the tap from the bathroom of the complainant. Thus, prosecution is able to prove all the essential ingredients for the offence u/s 457/380/511 IPC.
16) Keeping in view the aforesaid reasoning and in view of the fact that the testimony of PW3 Mahender Kumar Jain, complainant cum eye witness and PW2 Tilak Ram, eye witness are clear, convincing and reliable and no material has come on record which falsify their evidence. Also, their evidence has been fully corroborated by all the other prosecution witnesses. The identity of the accused is well proved as the accused has been caught red handed on the spot. No motive on the part of the complainant to falsely implicate the accused is proved by the accused. Also, all the essential ingredients of offence U/s 457/380/511 IPC has been fully established. I am of the considered view that prosecution was able to prove its case beyond reasonable doubt. Hence, accused Aslam is accordingly convicted for the offence punishable u/s 457/380/511 IPC.
State Vs. ASlam Page No. 13 of pages 14FIR No. 128/10 State Vs. Aslam PS: Bharat Nagar Let, accused be heard separately on the point of sentence on 13.08.2018.
Digitally
signed by
ANNOUNCED IN THE OPEN COURT
TODAY ON 10.08.18
EKTA EKTA GAUBA
Date:
GAUBA 2018.08.10
17:46:35
(EKTA GAUBA ) +0530
Addl. Chief Metropolitan Magistrate, North West District/ Rohini Courts/Delhi State Vs. ASlam Page No. 14 of pages 14