Delhi District Court
State vs Nadeem Khan on 16 September, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SAKET COURTS,
DELHI
Presided over by- Ms. Twinkle Chawla, DJS
Cr. Case No. -: 2126/2023
CNR No. -: DLSE020054212023
FIR No. -: 597/2022
Police Station -: Sarita Vihar
Section(s) -: 380/382/457/411 IPC
In the matter of -
STATE
VS.
Nadeem Khan
S/o Hammad Khan,
R/o H. No. D-09, 3rd Floor,
Okhla Vihar, Jamia Nagar,
New Delhi.
... Accused Person
1. Name of Complainant :- Md. Sufiyan, S/o Md.
Munna.
2. Name of Accused Person :- Nadeem Khan
3. Offence complained of or :- 380/382/457/411 IPC
proved
4. Plea of Accused Person :- Not Guilty.
5. Date of Commission of :- 19.12.2022
offence
6. Date of Filing of case :- 01.03.2023
7. Date of Reserving Order :- 11.09.2023
8. Date of Pronouncement :- 16.09.2023
9. Final Order :- Conviction u/s 380/451 IPC
Acquittal u/s 382/411 IPC
FIR No. 597/2022 State v. Nadeem Khan Page 1 of 17
JUDGMENT
1. The present FIR was registered at PS Sarita Vihar u/s 380/382/457/411 IPC on the basis of statement dated 19.12.2022 made by Complainant Md. Sufiyan to the effect that on 19.12.2022, at around 06.30 AM at plot No. D-48, 3rd Floor, Pocket 11 Janta Flat, Jasola Village, New Delhi, within the jurisdiction of PS Sarita Vihar, the Accused had committed lurking house trespass at night with intention to commit theft in the afore-mentioned premises and committed theft of one Xiaomi mobile phone as per seizure memo, Mark X belonging to Complainant Md. Sufiyan from the abovesaid premises and that he was found in possession of vegetable knife (sky blue), and one U shaped sariya, which he intended to use for causing hurt or restraint/fear of hurt or restraint, in order to effect the escape of the Accused after the theft/during commission of the theft and that the Accused was apprehended at the spot while running away, at the afore-mentioned time and place and one Xiaomi mobile phone, as per seizure memo, Mark X was recovered from the possession of the Accused, which he dishonestly retained, knowing or having a reason to believe that the same is a stolen property and thereby committed offences u/s 380/382/457/411 IPC.
2. Upon completion of investigation, charge sheet for the offence punishable U/s 380/382/457/411 IPC was filed on behalf of the IO and the Accused was consequently summoned. On his appearance, a copy of chargesheet was supplied to him in terms of section 207 of CrPC. Perusal of file reveals that charge for commission of offences u/s 380/382/457/411 IPC was framed against FIR No. 597/2022 State v. Nadeem Khan Page 2 of 17 the Accused on 21.03.2023 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the Accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- Md. Sufiyan.
(Complainant in the present case) PW2 :- Iftekar Hussain, S/o Sh. Zulfikar Hussain.
(eye witness in the present case)
PW3 :- HC Kumer Singh, No. 586/SE.
(1st IO in the present case)
PW4 :- ASI Faiyaz Ahmed, No. 1263/SE.
(IO in the present case)
PW5 Ct. Sanjeev, No. 2116/SE.
(Police witness in the present case)
DOCUMENTARY EVIDENCE
Ex. PW1/A :- Written complaint of the Complainant.
Ex. PW1/B :- Site plan.
Ex. PW1/C :- Seizure memo of the mobile phone, knife
(Colly) and sariya.
Ex. PW1/D :- Arrest memo of the Accused.
Ex. PW1/E :- Personal search memo of the Accused.
Ex. PW1/F :- Supplementary statement of PW-1 recorded
u/s 161 CrPC.
Ex. P1 :- Photographs of the mobile phone.
(Colly)
Ex. PW2/A :- Statement of PW-2 recorded by the IO u/s
161 Cr.P.C.
Ex. PW3/A :- Rukka prepared by PW-3.
FIR No. 597/2022 State v. Nadeem Khan Page 3 of 17
Ex. PW4/A :- Interrogation report of the Accused.
Ex. PW4/B :- Request application to produce Accused
(Colly) before the court seeking his JC.
Mark :- Printout of the google map showing location
PW4/C of the house of the Complainant.
DOCUMENTS ADMITTED PURSUANT TO STATEMENT
OF Accused U/S 294 CRPC
Ex. A1 Copy of FIR bearing no.597/2022, PS Sarita
Vihar.
Ex. A2 Certificate u/s 65B IEA.
Ex. A3 Endorsement on rukka.
4. During the course of trial, witness mentioned at Sr. No. 4, HC Ashok Kumar, Duty Officer, of the list of witnesses was dropped from list of witnesses pursuant to the statement of the Accused recorded u/s 294 of Cr.PC.
5. PW-1/Sh. Md. Sufiyan deposed that on 19.12.2022, at around 06.30 AM in the morning, one person, i.e., the Accused had entered his flat, i.e., D-48, 3rd Floor, Pocket 11, Janta Flat, Jasola Vihar, Sarita Vihar. As soon as PW-1 saw the said person, PW-1 asked him that what he was doing there, he ran away from there. PW-1 saw that he was holding his mobile phone make MI (Xiaomi) in his hand.
Thereafter, PW-1 ran after him and shouted "chor chor chor". Hearing his shout, some persons who were on their morning walk on the main road near gate No. 8, Pocket 11, Janta Flats, apprehended the Accused. When the public persons held him and searched him then one U FIR No. 597/2022 State v. Nadeem Khan Page 4 of 17 shaped Sariya was recovered from him, one vegetable cutting knife was also recovered from him. Phone of PW-1 was also recovered from him. Thereafter, one of the public persons called the PCR at 100 number. PCR van arrived. They handed over the custody of the Accused, U shaped Sariya, vegetable cutting knife and the mobile phone to the police officials, who then took him to the PS. Thereafter, PW-1 also went to the PS and gave his written complaint, which is Ex. PW1/A. The police interrogated the Accused and he told that his name was Nadeem. The IO prepared the site plan in presence of PW-1 and at his instance, which is Ex. PW1/B. The mobile phone, knife and sariya was also seized in presence of PW-1, seizure memo of which is Ex. PW1/C (Colly). The Accused was also arrested in presence of PW-1. The arrest memo is Ex. PW1/D. The Accused was also searched in presence of PW-1. His personal search memo is Ex. PW1/E. The mobile phone stolen by the Accused from house of PW-1, which was a rented premises, was in the name of the wife of PW-1 namely, Ms. Wahida Qureshi. Statement of PW-1 recorded by the IO u/s 161 CrPC is Ex. PW1/F. The Complainant PW-1 correctly identified the Accused as well as the case property in Court on the said date.
In his cross examination, PW-1 admitted that his mobile phone was kept at the top of the fridge, his flat is situated at 3 rd floor which is the top floor. He denied the suggestion that no mobile phone, vegetable cutting knife and sariya were recovered from the Accused and that no such incident was occurred at the spot and that he is deposing falsely on the instance of the IO.
FIR No. 597/2022 State v. Nadeem Khan Page 5 of 176. PW-2/Iftekar Hussain deposed that he resides at Pocekt 11, Janta Flats, Jasola Vihar, New Delhi. On 19.12.2022, between 06.30 AM to 07.00 AM, he was washing his car at the aforesaid premises, when he heard that some persons were shouting 'chor chor' and they had held one person at gate No. 8, Pocket 11, janta flats. Some public person also assaulted the said person. When he was searched, one vegetable cutting knife, one u shaped sariya and one mobile phone was recovered from him. The U shaped sariya and knife was correctly identified by PW-2. Upon seeing Ex.P1 (Colly), the PW- 2 had stated that he does not recollect whether the mobile phone which was recovered was black or blue in colour. PW-2 called the PCR at 112 number and the PCR van arrived. Thereafter, the police officials took PW-2, the Complainant and the Accused to the police station. Statement of PW-2 was recorded by the IO, which is Ex. PW2/A. The Accused was arrested in presence of PW-2, arrest memo is already Ex.PW1/D. The Accused was also searched in presence of PW-2. His personal search memo is Ex. PW1/B. Accused was correctly identified by PW-2 in Court on the said date.
In his cross examination, PW-2 admitted that IO asked him to sign some papers in the police station. He denied the suggestion that some other person was running but inadvertently the public apprehended the Accused and that no mobile phone, vegetable cutting knife and sariya was recovered from the Accused and that no such incident was occurred at the spot and that he is deposing falsely on the instance of the IO.
FIR No. 597/2022 State v. Nadeem Khan Page 6 of 177. PW-3/HC Kumer Singh deposed that on 19.12.2022, he was posted as HC at PS Sarita Vihar. On that day, he alongwith Ct. Sanjeev was on emergency duty. At around 07.15 AM, he received DD No. 17A regarding theft and apprehension of the thief. Thereafter, PW-3 alongwith the constable reached the spot, i.e., gate No. 8, Pocket 11, jasola, New Delhi but the Complainant or the caller was not found present there. Thereafter, PW-3 called 100 number caller and he stated that they had reached the police station. Thereafter, PW- 3 alongwith constable reached the police station and met the caller namely Iftikhar Hussain and the Complainant namely Mohd. Sufiyan and they produced the Accused boy alongwith the mobile phone of the Complainant, one vegetable knife and one iron rod which was U shaped at the both ends. Upon enquiry, the said boy revealed his name as Nadeem Khan. PW-3 enquired the Complainant but he had to attend the court and he stated to make his statement after attending the court. Thereafter, the Complainant alongwith the caller left the PS. PW-3 handed over the custody of Accused to Ct. Sanjeev and PW-3 went to the spot. PW-3 called the crime team and got the spot inspected and thereafter he returned back. At around 03.00 PM, the Complainant namely Sufiyan reached the PS. Thereafter, PW-3 took measurement of aforesaid knife which was having a blade of length 8.3 cms and width of 1.4 cms. PW-3 put the same in a transparent plastic box and sealed it with the seal of KS. Thereafter, PW-3 prepared pullanda of aforesaid knife and sealed the same with the seal of KS. PW-3 seized aforesaid knife and iron rod vide seizure memo which is already Ex. PW1/C (Colly). PW-3 also seized aforesaid mobile phone vide memo Ex. PW1/C (Colly). The Complainant got FIR No. 597/2022 State v. Nadeem Khan Page 7 of 17 his statement recorded which is already Ex. PW1/A and he prepared rukka, which is Ex. PW3/A. PW-3 presented the same before the duty officer for registration of FIR. After registration of FIR, further investigation was marked to IO/ASI Faiyaz Ahmed. PW-3 identified the knife, iron rod and the mobile phone correctly in Court on the said date.
In his cross examination, he admitted that he had not come across any other independent witness except the Complainant and the 100 number caller and that nothing was recovered from the possession of the Accused in his presence and that aforesaid case property was handed over to PW-3 by the Complainant in the PS itself.
8. PW-4/ASI Faiyaz Ahmed deposed that on 19.12.2022, PW-4 was posted as ASI at PS Sarita Vihar. On that day, the further investigation of the present case was marked to PW-4 by the SHO. First IO/HC Kumer singh handed over to PW-4 the Accused, case property, i.e., knife, U shaped sariya and mobile phone all in sealed condition alongwith seizure memos, asal tehrir and computerised copy of FIR. PW-4 initiated further investigation thereafter. PW-4 interrogated Accused vide interrogation report which is on record and is Ex. PW4/A. Thereafter, PW-4 had arrested Accused Nadeem vide arrest memo which is on record already Ex. PW1/D. PW-4 had also personally searched Accused vide personal search memo which is on record and already Ex. PW1/E. PW-4 had initmated the mother of Accused namely Smt. Ansari Begum about the arrest of Accused Nadeem, telephonically. After that, PW-4 had recorded statement of FIR No. 597/2022 State v. Nadeem Khan Page 8 of 17 Complainant Iftekhar Hussain at PS. PW-4 had deposited case property in malkhana alongwith seizure memos. Thereafter, PW-4 alongwith Complainant Mohd. Sufiyan went to the spot of incident from the PS. At the spot of incident, PW-4 had prepared site plan of the spot at the instance of Complainant Mohd. Sufiyan. The said site plan is on record and is already Ex. PW1/B. PW-4 had also placed on record a print out of google maps showing location of the house of Complainant where the incident had happened. The said print out is Mark PW4/C. Thereafter, PW-4 had recorded the statement of Complainant Mohd. Sufiyan. After that, PW-4 had sent Accused alongwith Ct. Ankit for medical examination at AIIMS hospital. The MLC of Accused is on record. After medical examination, in the presence of HC Satveer Chahar, PW-4 had put Accused in lockup at PS. Thereafter, he had recorded statement of Ct. Sanjeev. On 20.12.2022, PW-4 had presented Accused Nadeem before the Court, wherein he was remanded to JC. Accused Nadeem was correctly identified by PW-4 in Court on the said date.
In his cross examination, he admitted that he had not apprehended the Accused. PW-4 had recorded statement of Complainant Iftekhar at PS and of caller Mohd Sufiyan in PS. PW-4 did not find any CCTV camera near the spot of incident. The house of Complainant is in a residential area. PW-4 had requested neighbours to join investigation but none agreed to join. The house of Complainant is in a three storey building having ground, first and second floors. The house of Complainant is a DDA Janta flat. He denied the suggestion that he did not conduct any investigation in the FIR No. 597/2022 State v. Nadeem Khan Page 9 of 17 present case. PW-4 admitted that he did not recover anything from the custody of Accused during his personal search.
9. PW-5/Ct. Sanjeev has deposed on the same lines as PW- 3 and his testimony is not being reiterated for the purpose of brevity.
In his cross examination, he admitted that the Accused was handed over by the caller and that the police officials did not conduct any search of the Accused. The case property was handed over by the caller. No public persons had joined the investigation. He did not know the details of the case of the Complainant that was going on in Saket Court. He denied the suggestion that no such alleged incident had occurred and the case property has been planted on the Accused.
STATEMENT OF Accused
10. Thereafter, before the start of defence evidence, in order to allow the Accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of Accused was recorded without oath on 04.08.2023 under section 313 CrPC in which he stated that he is innocent and he has been falsely implicated in the present case. He further stated that he does not want to lead any defence evidence and matter was listed for final arguments.
ARGUMENTS
11. I have heard the Ld. APP for the state and Ld. counsel for the Accused at length. I have also given my thoughtful consideration to the material appearing on record.
FIR No. 597/2022 State v. Nadeem Khan Page 10 of 1712. It is argued by the Ld. APP for the state that there is sufficient material on record to convict the Accused for the said offences.
13. Per contra, the Ld. LAC for the Accused has argued that the state has failed to establish its case beyond reasonable doubt.
14. For proving its case u/s 380/382/457/411 IPC, the prosecution was required to establish that the Accused had entered into the property i.e., house of the Complainant, at night, having made preparation to conceal his entry and was in possession of dangerous article with the intention to use the same for causing hurt, restrained/fear of hurt, in order to commit the theft/effect his escape after the theft. It was also required to be established that the Accused intending to take dishonestly the stolen items out of the possession of the Complainant and without the consent of the Complainant had moved it in order to such taking from the said house. Further, that the Accused was found in possession of stolen articles, knowing the same to be/having reason to believe for the same to be stolen articles.
15. The star witness in the present case is the Complainant/victim PW1 Md. Sufiyan. On the basis of his complaint the present FIR has been registered. His deposition has remained consistent with the initial complaint Ex. PW1/A. He has correctly identified the Accused as the person seen by him, in his house, and as the person who was holding the mobile phone of the Complainant in his hand. PW-1 has categorically deposed that on 19.12.2022 at around 6.30 PM the Accused had entered his flat and upon seeing the Complainant had ran away from there, while holding the mobile FIR No. 597/2022 State v. Nadeem Khan Page 11 of 17 phone of the Complainant in his hand. Thereafter, PW-1 has deposed that he chased the Accused by shouting 'Chor Chor' and that the Accused was thereafter apprehened by public persons near gate no.8, pocket 11, Janta flats and upon his search, a U shape saria, vegetable cutting knife and mobile phone of the Complainant was recovered.
16. PW-2/Iftekhar Hussain has also supported the version of the Complainant to the extent that when he was washing his car between 6.30 AM to 7.00 AM on 19.12.2022, some persons were shouting 'chor chor' and had held one person, identified as the Accused by PW-2, from whose possession a U shape saria, vegetable cutting knife and mobile phone of the Complainant was recovered. PW-2 further stated that he called the PCR. The DD no.17A dated 19.12.2022 at 7.13 AM, is the record of the PCR call, which has been produced by the prosecution, which is contemporaneous to the time of incident deposed by PW-1 and PW-2, in which it is also been stated that "Ek Chor Pakda Hua Hai", near gate No. 8, Pocket 11, Janta Flats. Hence, the version of the PW-1 and PW-2 is also supported by the PCR call i.e. DD no.17A dated 19.12.2022 at 7.13 AM. The case property as well as the Accused has been correctly identified by the PW-1 and PW-2 in their testimony. In their cross-examination, the Ld. LAC for the Accused could not succeed in bringing anything to show that the testimony was tainted or unworthy of placing reliance upon. The Accused was brought to PS by the Complainant and PW-2 and was thereafter arrested in their presence, by PW-4. PW-3 and PW-4 have both corroborated the said facts. In view of the categorical testimony of the Complainant and PW-2, the offence of theft of the mobile phone of the Complainant from the dwelling house, etc. made FIR No. 597/2022 State v. Nadeem Khan Page 12 of 17 punishable u/s 380 IPC has been duly proved by the prosecution. The fact that PW-2 was unable to recall the colour of the mobile phone recovered from the Accused, is not a material contradiction.
17. As far as the offence punishable u/s 457 IPC is concerned, it is seen that the prosecution has not been able to bring any evidence to show that the Accused had taken any step to conceal his entry into the house of the Complainant and hence, the offence of lurking house trespass by night is not proved. However, from the testimony of PW-1, i.e. the Complainant it is clear that the Accused has entered into his premises without permission and had stolen his mobile phone. The photographs taken by the crime team also show that a certain part of the grill of the main door had been cut. In these circumstances, the Court is of the opinion that the prosecution has also been successful in proving that the Accused has committed the offence of house trespass in order to commit theft of the mobile phone, Ex. P1 (colly). The fact that the Accused was apprehended while taking the stolen mobile phone out of the community near gate no.8, coupled with the fact of recovery of vegetable cutting knife/U shaped saria from his possession creates a sequence of facts so closely connected in time and space that the only conclusion which can be drawn is to the effect that the Accused had made ingress into the house of the Complainant for committing the offence of theft. Since the chance print report has not been proved by the prosecution and no evidence has been led to show that the grill was cut using the saria or the knife, the offence of house breaking is not made out. However, the offence punishable u/s. 451 IPC i.e. of house trespass to commit offence of theft stands duly proved.
FIR No. 597/2022 State v. Nadeem Khan Page 13 of 1718. Ld. LAC for the Accused has taken the defence that no other public witness has been examined by the prosecution to corroborate the testimony of the Complainant and PW-2. Hence, reasonable doubt has been raised in their testimony.
19. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of a victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is a victim of the offence is well settled. The testimony of a victim stands on a higher footing. For appreciating the evidence of a victim, the Court has to see that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The Complainant is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence was committed by the Accused. Being the victim of the crime, he would be most keen to ensure that the real culprit does not go scot free. The testimony of PW1 is cogent and convincing. I do not find any contradiction in the testimony of PW1 and other material on record. In fact, the testimony of PW-1 is supported by testimony of PW-2 in material particulars.
20. As has been pointed out by the Ld. LAC there might be some minor contradictions regarding who took the Accused to the PS, the police official or the Complainant/PW-2, in the testimonies of the witnesses. However, the said inconsistency is not material in nature.
FIR No. 597/2022 State v. Nadeem Khan Page 14 of 17Hon'ble Supreme Court in Bhagwan Jagannath Markad and others v. State of Maharashtra (2016) 10 SCC 537, has observed as under :-
"While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of a former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility.
The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation FIR No. 597/2022 State v. Nadeem Khan Page 15 of 17 may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that the principle " falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some Accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the Accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape".
21. In the instant case, the discrepancy as to who took the Accused to the PS, the police officials, or the Complainant/PW-2 is not of much essence when the manner in which the offence has been committed and the identity of the offender and of the case property has duly been established.
22. Qua the offence u/s 382 IPC it is seen that the IO has not prepared the sketch memo of the knife/saria and hence, it cannot be opined beyond reasobale doubt that the Accused had kept the said FIR No. 597/2022 State v. Nadeem Khan Page 16 of 17 articles with him in order to cause death, hurt, restraint, as the nature of the article cannot be ascertained. Further, as per PW-1, when he asked the Accused what he was doing there, the Accused ran away from there and did not show the knife or the saria to the Complainant. Accordingly, the ingredients of Section 382 IPC are not made out.
23. In view of the above said discussion, I am of the conclusion that the prosecution has been able to prove its case successfully beyond reasonable doubt against the Accused Nadeem Khan for the offence punishable under Sec.380 & Sec. 451 IPC. He is therefore convicted for the offence punishable u/s 380 & Sec. 451 IPC. Since the person committing the theft cannot be said to be the receiver of a stolen property, the Accused hence cannot be convicted for the offence punishable under section 411 IPC. Hence, he is acquitted of the offence u/s 411 IPC. Further, the prosecution has also failed to prove the ingredients of Section 382 IPC and hence, the Accused is acquitted of the offence u/s 382 IPC. Ordered accordingly.
Convicted : under Section 380 and 451 IPC.
Acquitted : under Section 411 and 382 IPC.
Announced in open court on 16.09.2023 in the presence of the Accused.
The judgment contains 17 pages and each page have been signed by the undersigned.
(TWINKLE CHAWLA) MM-05, South East District, Saket Courts, New Delhi, 16/09/2023 FIR No. 597/2022 State v. Nadeem Khan Page 17 of 17