Delhi District Court
3.Title State vs . Prince Gupta on 28 June, 2014
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE03, EAST
KARKARDOOMA COURTS : DELHI
1.FIR No. 412/2014
2.Unique Case ID No. 02401R0177332014
3.Title State Vs. Prince Gupta
3(A).Name of complainant Sh. Rajinder S/o. Shri Dev Bahadur
Chaudhary, R/o. H.No.12, Gali No.12,
Saket Block, Mandawali, Delhi.
3(B).Name of accused Prince Gupta, S/o Sh. Manik Chand
Gupta, R/o. 348A, Asha Ram Gali,
Mandawali, Delhi.
4.Date of institution of challan 07/06/14
5.Date of Reserving judgment Not reserved. Pronounced on the
same day.
6.Date of pronouncement 28.06.14
7.Date of commission of offence 06/05/14
8.Offence complained of Under Section 380 r/w 511 IPC
9.Offence charged with Under Section 451 IPC & 380 r/w
511 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Convicted u/s. 451 IPC & section 380
r/w 511 IPC.
FIR No. 412/14 State Vs. Prince Gupta Page 1 of 14
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The case of the prosecution in a narrow compass is that on 06.05.14 at about 5.15 am at H.No.12, Gali No.12, Ground Floor, Saket Block, Near Shauchalaya, Mandawali, Delhi, the accused trespassed into the abovesaid property belonging to complainant Rajender Chaudhary. The trespass was done with the intention to commit theft and attempt was made by the accused to commit theft but as the complainant raised alarm, the accused tried to run. The accused was thereafter, caught while running away from the house by the complainant. Thus it is the case of the prosecution that the accused has committed the offence U/s. 380 read with Section 511 IPC.
2. In the present matter charge sheet was filed by the IO under the provisions of Section 380/511 IPC on 07.06.14 and the cognizance for the offence was taken and copy of documents were supplied to the accused on the same date. After the compliance of the provisions of Section 207 Cr.P.C. and after hearing parties, charge for the offence punishable u/s. 451 IPC and Section 380 read with Section 511 IPC was framed against the accused on 21.06.2014, to which he pleaded not guilty and claimed trial. FIR No. 412/14 State Vs. Prince Gupta Page 2 of 14
3. Thereafter, matter was fixed for prosecution evidence. Prosecution in order to prove its case against the accused in total has examined as many as five witnesses i.e. PW1 HC Pradeep, who is the duty officer in the present matter. PW2 Sh. Rajpal, who is the witness of the spot. PW3 Sh. Rajender Chaudhary, who is the complainant. PW4 Ct. Pritam Sharma, who is the witness of investigation and PW5 SI Prem Pal Singh, who is the IO of the present matter.
4. PW3 Sh. Rajinder Chaudhary is the complainant in the present matter. He has deposed that on 06.05.14 he alongwith his family members was sleeping inside the house, however, the windows and doors of his house were in open condition and at around 5 to 5.15 am he suddenly woke up and saw that the accused was wandering inside his house. The witness correctly identified the accused present before the court It is further deposed by the witness that when he objected to the accused, the accused ran outside the house and he followed accused by raising alarm of " chorchor". It is deposed by the witness that he managed to apprehend the accused at the gate of his FIR No. 412/14 State Vs. Prince Gupta Page 3 of 14 landlord in the gali and in the meanwhile his landlord also came at the spot as he had seen him following the accused.
It is further deposed by the witness that thereafter, his landlord called the police and police came at the spot and recorded his statement Ex.PW3/A. The witness identified his signatures on the same at point A. It is further deposed that thereafter, he pointed out the place of incident to the police and site plan was prepared and the witness identified his signatures on the site plan Ex.PW3/B at point A. It is further deposed that the police prepared the documents at the spot and later on the accused was taken to the PS by the police. The witness identified his signatures on the arrest memo and personal search memo of the accused Ex.PW3/C and PW3/D at point A. It is deposed by him that police had enquired from him about the incident.
In his crossexamination by the Ld. Counsel for the accused, it was deposed by the witness that the police might have reached the spot at around 5.40 am. It was further deposed that he had chased the accused first and later on he was joined by his landlord and no other public person had chased the accused. It was further deposed that the statement of the landlord was also recorded at the FIR No. 412/14 State Vs. Prince Gupta Page 4 of 14 spot.
It was further deposed that around 4050 persons had gathered at the spot and during the stay of the police at the spot no police official had left the spot.
5. PW2 Sh. Raj Pal has deposed that on 06.05.14 he was sitting at his house at around 5/5.15 am when he heard the noise of his tenant namely Rajender, who was running and he came out from his house in the gali and in the meanwhile his tenant Rajender had apprehended the accused Prince. The witness correctly identified the accused present before the court.
It was further deposed that thereafter, he made a call to the police and the apprehended accused was handed over to the police and police had enquired from him.
In his crossexamination, it was deposed by the witness that he had not seen anyone inside the house of the complainant and after hearing the noise around 2025 persons had gathered. It was further admitted by the witness that all the persons were following the accused and accused was apprehended after around 100150 meters. It was further deposed that police remained at the spot for about 57 minutes and his statement was recorded at the spot by the FIR No. 412/14 State Vs. Prince Gupta Page 5 of 14 police and the statement of no other public person was recorded by the police at the spot.
The witness further admitted that the accused is previously known to him as he was his earlier tenant and as he used to do theft therefore, he had got his tenancy vacated from the accused.
6. PW1 HC Pradeep is the duty officer in the present matter and has proved before the court the endorsement upon the rukka as Ex. PW1/A and the FIR bearing no. 412/2014 as Ex. PW1/B and has identified his signatures on both the documents at point A.
7. PW4 Ct. Pritam Sharma has deposed that on 06.05.14 at around 5.40 am on receiving a call of theft vide DD no. 6A, he alongwith IO/SI Prem Pal Singh reached at the spot of occurrence, where they met the complainant and PW2 Rajpal. They have caught hold of one boy namely Prince and the apprehended boy was handed over to IO/SI Prempal, who recorded the statement of the complainant and on the basis of the same, he prepared rukka and sent the witness with the rukka to the PS for registration of FIR.
It is further deposed that thereafter, after getting the FIR FIR No. 412/14 State Vs. Prince Gupta Page 6 of 14 registered he returned to the spot and handed over the copy of FIR as well as original rukka to the IO. IO enquired from him and arrested and personally searched the accused vide memos already exhibited as Ex.PW3/C and D both bearing the signatures of the witness at point B. The witness correctly identified the accused before the court. In his crossexamination it was deposed by the witness that he has reached the spot at around 7 am alongwith IO and no public persons except complainant and one Rajpal was present. It was further deposed that first of all the complaint of the complainant was recorded. It was further deposed by the witness that IO had not asked PW Rajpal that if anyone had seen the accused entering into the house of complainant and neither had the IO went to the neighbourhood to enquire about the matter.
8. PW5 SI Prem Pal Singh is the investigating officer in the present matter and has deposed before the court on the same lines as PW4 and has deposed that complainant and the landlord stated to him that the accused was trying to commit theft in the house of the complainant. It is deposed that he prepared the site plan bearing his signatures at point A and arrested the accused and personally searched him vide memo Ex.PW3/D and Ex.PW3/D, FIR No. 412/14 State Vs. Prince Gupta Page 7 of 14 both bearing his signatures at point C. It is further deposed that he recorded the statement of the landlord Sh. Rajpal, supplementary statement of the complainant and statement of Ct. Pritam and accused was produced before the court after his medical examination in hospital and he filed the chargesheet before the court. The witness correctly identified the accused present before the court.
In his crossexamination it was deposed by the witness that he reached the spot at around 6 am and left the spot at around 10 am and did not enquire from any public person whether they had seen the accused entering into the house of complainant, though 2025 persons were present at the spot.
9. As all the material prosecution witnesses were examined, prosecution evidence was closed vide order of the court dated 26.06.2014 and the statement of accused was recorded on the same date.
10. In the statement of accused recorded U/s 313 Cr.P.C r/w 281 Cr.P.C. on 26.06.2014, it was replied by the accused that he is innocent and has been falsely implicated in the present matter and FIR No. 412/14 State Vs. Prince Gupta Page 8 of 14 was detained in the PS from night preceding the day of the alleged incident after he was called in the PS at around 8 pm and he was produced before the court on the next day. However, it was submitted by the accused that he does not wish to lead defence evidence in the present matter. In view of the same defence evidence was closed and the matter was fixed for final arguments.
11. I have heard the arguments as advanced by Ld. APP for the State and the Ld. Counsel for the accused person.
12. It is a settled legal principle that the prosecution has to prove its case against the accused beyond the shadow of all reasonable doubts and has to stand upon its own legs. The prosecution cannot draw any strength from the weakness of the case of the accused. It is also a settled proposition in the criminal law that the accused had a pious right of not to be convicted for an offence which is not established beyond reasonable doubts by the prosecution. The burden of proof in a criminal trial always rest upon the prosecution and the same never shifts on accused.
13. The accused in the present case has been charged for the FIR No. 412/14 State Vs. Prince Gupta Page 9 of 14 offence punishable U/s. 451 IPC and section 380 read with Section 511 IPC.
16. For proving the offence U/s. 451 IPC it has to be proved before the court that house trespass was committed and the same was committed with the intention to commit theft. For proving the offence u/s. 380 IPC read with Section 511 IPC it has to be proved before the court that attempt was made to commit theft in the building used as human dwelling and in order to commit the same, the accused has done any act towards the commission of the offence. Section 378 IPC defines theft as per which if a person intends to take dishonestly any movable property out of the possession of any other person without that person's consent moves that property in order to such taking is said to commit theft.
17. Thus intention is the gist of the offence and in order to constitute the offence of attempting to commit theft in dwelling house the prosecution has to prove that there was an dishonest intention on the part of accused to take the movable property of the complainant out of the possession of the complainant without his consent and in attempting to doing so an act was done by the FIR No. 412/14 State Vs. Prince Gupta Page 10 of 14 accused towards the commission of that offence and in order to prove the offence of house trespass with the intention to commit theft, it has to be proved that the accused entered into the house of the complainant with the intention to commit theft.
18. In the present matter the complainant in his deposition has categorically identified the accused as the person apprehended by him after chasing, who was present in his house in the early hours at around 5/5.15 am. It is further deposed that when he objected to the presence of the accused at his house, the accused ran outside the house. The presence of the accused during the early hours is also corroborated by the deposition of the landlord PW2, who deposed that at around 5/5.15 am he heard the noise of the complainant and saw that complainant had apprehended the accused. There is also DD entry no. 6A on record (though not proved) which states that the PCR call was made at around 5.45 am.
19. Nothing has come out in the cross examination of the complainant and PW2 which can assail the credibility of these witnesses before the court. The witnesses have identified the accused before the court. The admission of PW2 that he know FIR No. 412/14 State Vs. Prince Gupta Page 11 of 14 accused previously and has evicted him from tenancy on the ground that he used to commit theft does not cast a dent on the veracity and reliability of the deposition of the witnesses. Merely because the witness knew the accused prior to the date of incident does not make the witness untrustworthy.
20. It is argued by Ld. Counsel for the accused that the IO has not recorded the statement of any independent public witness though as per the deposition of the witnesses 2025 public witnesses were present. IO PW5 in his deposition has admitted that he had not enquired from any public person and nor has recorded the statement of those persons. The same is a fault in the procedure of investigation and by no way the same discredits the testimony of PW2 and PW3.
21. It is further argued by Ld. Counsel for accused that there is discrepancy in the deposition of the witnesses with respect to the time at which they reached the spot, however, these are only minor contradictions not affecting the merits of the case and are not of such a grave nature so as to cause a dent in the case of the prosecution. Nothing has come in the cross examination of the FIR No. 412/14 State Vs. Prince Gupta Page 12 of 14 witnesses which can impeach their credibility and the witnesses have corroborated each other in material particulars.
22. The complainant has identified the accused before the court as the person who was apprehended by him at the spot after running from his house during the wee hours i.e 5/5.15 am. The presence of a stranger in the house of a person without permission strongly indicates the intention of committing theft.
23. The prosecution has thus been able to prove that the accused with an dishonest intention of causing wrongful gain to himself by intending to commit theft at the house of the complainant has intentionally trespassed into the house.
24. Thus in view of the above said findings and discussions the accused is convicted for the offence punishable U/s. 451 IPC and section 380 read with Section 511 IPC.
25. Let the Convict be heard separately on the quantum of sentence.
FIR No. 412/14 State Vs. Prince Gupta Page 13 of 14
26. Copy of judgment be supplied to the convict free of cost.
Announced in the (Neha Paliwal)
Open Court on 28.06.14 Metropolitan Magistrate03
KKD,Delhi
It is certified that this judgment contains 14 pages and each page bears my signature.
(Neha Paliwal) Metropolitan Magistrate03 KKD,Delhi FIR No. 412/14 State Vs. Prince Gupta Page 14 of 14