Delhi District Court
State vs . Vinay Gautamn @ Sunny on 25 October, 2018
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE:EAST
KARKARDOOMA COURT: DELHI
FIR No. : 184/16
PS : Pandav Nagar
u/S : 380/454/511 IPC
STATE Vs. VINAY GAUTAMN @ SUNNY
JUDGMENT
A Unique ID No. of the Criminal Case No. 13020/16 case B Name of the Rakesh Rattan complainant C Name of the accused & his parentage and Vinay Gautam @ Sunny S/o Sh.
address Amarjeet R/o 14/143, Kalyanpuri, Delhi.
D Offence Complained of U/s 380/454/511 IPC E Date of commission of 27.03.2016 offence. F Date of Institution 19.05.2016 G Offence Charged 454/380/511 IPC H Plea of the accused Pleaded not Guilty I Order Reserved on 25.10.2018 Date of Pronouncement 25.10.2018 K Final Order Convicted for offence u/s 380/454 IPC read with u/s 511 IPC
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The case of the prosecution is that on 27/03/2016 at about 1.00 p.m at Flat No. 27-D, Pocket-F, Top Floor, Mayur Vihar-II, Delhi within the jurisdiction of PS Pandav Nagar accused Vinay Gautam attempted to commit house breaking in order to commit theft and thereby FIR 184/16 State Vs. Vinay Gautam 1/8 committed an offence U/s 454/380/511 IPC.
2 On the basis of these allegations and the complaint (Ex. PW1/A) and rukka Ex. PW5/B present FIR No. 184/16 (Ex. PW4/A) PS Pandav Nagar under section 380/454/511 IPC was lodged on 27.03.2016. CHARGE 3 After investigation, charge-sheet under section 173 Cr. P.C was filed on 19.05.2016.
4 On the basis of the charge-sheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable under section 380/454/511 IPC was framed against accused Vinay Gautam and read out to him to which he pleaded not guilty and claimed trial on 30.06.2016.
PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 5 witnesses in all:
6 PW1 Rakesh Rattan is the complainant who deposed that on 27/03/2016 in the afternoon time he was watching television at his house situated at 3rd floor, 27D Pocket-F, Mayur Vihar, Phase-II. Suddenly he heard some noise from the terrace where he had constructed two rooms. He inquired from his father who was in the other room who also stated that he had also heard some noise coming from the terrace. He immediately went to the terrace and saw accused Vinay Gautam breaking the window of the room constructed on the first floor. He immediately opened the door of the terrace. Accused tried to escape by jumping on the connected terrace but he caught hold off him. He also shouted "chor chor" on which his neighbour Karamvir R/o H. No. 28D also came there and helped him in apprehension of the accused. From the possession of the accused one black colour bag containing iron rod like instrument was recovered. They brought the accused down stairs, neighbours FIR 184/16 State Vs. Vinay Gautam 2/8 gathered at the spot and when they came to know about the incident, they started beating the accused. In the meanwhile, police was called at 100 number. Accused as well as the bag was handed over to the police. He checked his belongings, however, nothing was found missing. He proved his complaint as Ex. PW1/A. He identified the accused and stated that he was arrested and personally searched in his presence vide memo Ex. PW1/B & C. He also identified the black coloured bag as well as one iron rod which was recovered from the accused which are Ex. P-1 and P-2 and stated that the same were seized vide seizure memo Ex. PW1/D. 7 PW2 Karamvir is the neighbour of the complainant who deposted that on 27/03/2016 at about 1- 1.30 pm he was at his house when he heard noise from the house of his neighbour Rakesh Rattan, he immediately rushed towards the terrace from where the noise was coming. There he saw that Rakesh had caught hold off accused while he was trying to commit theft in his house from the terrace. Rakesh told him about the incident and they brought the accused down stairs. Police was called at 100 number. He identified his signatures on the arrest memo Ex. PW1/B, personal search memo Ex. PW1/C and seizure memo Ex. PW1/D. He identified the accused as well as the case property i.e the bag and iron rod recovered from the accused.
8 PW3 Ct. Satty deposed that on 27/03/2016 he had accompanied the IO to the spot on receipt of DD No. 13A regarding apprehension of a thief. There complainant Rakesh Rattan and his neighbour Karamvir handed over the accused to the IO. The recovered iron rod and one black colour laptop bag recovered from the accused were also handed over to the IO. IO recorded the statement of complainant, prepared the rukka and got the FIR registered through him. After registration of FIR, he returned to the spot where accused was arrested and FIR 184/16 State Vs. Vinay Gautam 3/8 personally searched vide memos Ex. PW1/B & C and the recovered case property was sealed with the seal of KA and seized vide memo Ex. PW1/D. 9 PW4 ASI Hominder Singh is a formal witness being a duty officer who proved the registration of the FIR as Ex. PW4/A and the endorsement made on the rukka as Ex.PW4/B. 10 PW5 ASI Khurshid Ali (Retired) is the IO of the case who deposed that on 27/03/2016 on receipt of DD No. 13A (Ex. PW5/A) regarding apprehension of one thief in front of H. No. A-27, Pocket F, Mayur Vihar, Phase-I, Delhi, he alongwith PW3 went to the spot. Where complainant Rakesh Rattan and his neighbour Karamvir met them. They handed over the accused Vinay Gautam to him and informed that he was apprehended while attempting to commit theft. Various public persons were also gathered there. The recovered iron rod and one black colour bag were also handed over to him. He recorded the statement of complainant and prepared the rukka Ex. PW5/B and got the FIR registered through PW3. The accused was arrested and personally searched vide memo Ex. PW1/B & C. The recovered case property was seized vide memo Ex. PW1/D. He prepared the site plan Ex. PW5/C at the instance of the complainant. After completion of the investigation, chargesheet was filed.
STATEMENT OF ACCUSED 11 Statement of the accused u/s 313 Cr. PC was recorded on 10.10.2018 where in the entire incriminating evidence produced on record was put to him. He denied all the allegations and stated that he was falsely implicated in this case after apprehending him from near LBS Hospital.
DEFENCE EVIDENCE OF ACCUSED 12 Accused did not examine any witness in his defence.
FIR 184/16 State Vs. Vinay Gautam 4/8
13 Final argument have been heard. Record carefully perused.
Judicial Resolutions
14 It is a settled proposition of criminal law that prosecution is supposed
to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal. 15 In the present case the accused has been charged for attempt to commit offences U/s 454/380 IPC.
16 Section 380 IPC punishes the offence of theft when committed in a dwelling house etc. Section 454 IPC punishes the offence of lurking house tress pass or house breaking in order to commit an offence punishable with imprisonment. As per section 442 whenever a criminal tresspass is made by entering into or remaining in any building, tent or vessel used as a human dwelling or as any building used as a place of worship or as a place for the custody of property, he is said to commit house tresspass. Criminal tress pass as defined in section 441 IPC includes entering into the property in possession of another with intent to commit an offence. Section 443 IPC defines lurking house tress pass as committing of house tress pass having taken precautions to conceal such act from others. 17 Section 511 IPC provides punishment for attempting to commit an offence punishable with imprisonment. An attempt to commit a crime is an act done with intent to commit that crime and forming part of a FIR 184/16 State Vs. Vinay Gautam 5/8 series of acts, which would constitutes its actual commission if it were not interrupted. In other words an attempt is an act done in part execution of the criminal design, amounting to more than mere preparations, but failing short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime, combined with the doing of some act adapted to but for failing short of its actual commission. In order to constitute an attempt firstly there must be an intention to commit a particular offence; secondly some act must have been done which would necessarily have to be done towards the commission of the offence and thirdly, such act must be proximate to the intended result. 18 In the present case there are two main witnesses of the prosecution that are the complainant Rakesh Rattan/PW1 who had apprehended the accused red handed on the terrace of his house with instrument for house breaking i.e iron rod after he had broken the window of the room at the terrace of his house and his neighbour Karamavir/PW2 who had come to the spot on hearing the noise raised by the complainant and helped the complainant in apprehension of the accused. The testimony of both these witnesses are in consonance with each other and despite lenghly cross-examination, defence has miserably failed to bring on record any material contradictions in the same.
19 Ld. Defence Counsel has pointed out certain minor contradictions in the deposition of these witnesses when compared with the record in order to create a doubt on their testimony. These contradictions as pointed out by Ld. Defence Counsel includes an admission by PW1 that the police had clicked the photographs of the broken window while no such photograph are on record, the statement by PW1 in his examination in chief that 100 number call was made by his neighbour Karamvir while PW2 deposed that it was made by some public FIR 184/16 State Vs. Vinay Gautam 6/8 person. To my mind, these contradictions are merely minor contradictions and do not go to the root of the case and are not sufficient to doubt the unambiguous and clear testimony of PW1 and PW2.
20 It is also argued that nothing was stolen from the house of the complainant and accordingly mere presence of accused at the terrace does not make him liable for offence charged. I find no merit in this argument of Ld. Defence counsel.
21 From the deposition of PW1 and PW2 it is clearly proved on record that accused Vinay Gautam was apprehended at the terrace of house of the complainant carrying a bag containing an iron rod. Having this evidence on record, it was the duty of the accused to explain his presence in the house of the complainant with such instrument. The accused has not come forward with any reason for his presence in the house of the complainant at the time of his apprehension. Non- explanation by the accused of this incriminating circumstance proved against him beyond any reasonable doubt, clearly makes him liable for his conduct. If if the accused would have actually stolen something, he whould have been liable for offence of theft in deweling house punishable u/s 380 IPC and not for an attempt to commit theft.
22 Accordingly, considering the over all facts of the case as proved on record beyond reasonable doubt, I have no hesitation in holding that accused had attempted to commit an offence of lurking house tresspass/house breaking in order to commit theft. In case he was not apprehended by the complainant, the offence u/s 454/380 IPC would have been consumated. Accused Vinay Gautam is accordingly liable for conviction for offences U/s 454/380 read with section 511 IPC. 23 In view of the reasons given above and the overall evidence on record, accused Vinay Gautam is convicted for offence U/s 454/380 FIR 184/16 State Vs. Vinay Gautam 7/8 read with section 511 IPC.
24 Be heard on the point of sentence separately.
Digitally signed byANNOUNCED IN THE OPEN COURT SHIVALI SHIVALI SHARMA Location: East District ON 25.10.2018 Karkardooma Courts SHARMA Delhi Date: 2018.10.25 15:51:33 +0530 (SHIVALI SHARMA) CMM (EAST)/KKD/25.10.2018
Certified that this judgement contains 8 pages and each page bears my signatures.
(SHIVALI SHARMA)
CMM (EAST)/KKD/25.10.2018
FIR 184/16 State Vs. Vinay Gautam 8/8