Delhi District Court
State vs . Kapil on 1 February, 2022
___________________________________________________
IN THE COURT OF SH. MAYANK GOEL
METROPOLITAN MAGISTRATE03, ROHINI COURTS,
DELHI
___________________________________________________
State Vs. Kapil
FIR No. 135/10
PS. Model Town
U/s. 380/457/411 IPC
JUDGEMENT
1) The date of commission of offence: 02.04.2010
2) The name of the complainant : Kamal Kant Sharma S/o Late Sh. Sita Ram Sharma R/o C 11/15, Model TownIII, Delhi
3) The name & parentage of accused: Kapil S/o Sh. Attar Singh R/o B24, DDA Flats, Katwaria Sarai, Delhi110016
4) Offence complained of : U/S 380/451/411 IPC
5) The plea of accused : Pleaded not guilty __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 1 of 21
6) Final order : Convicted
7) The date of such order : 01.02.2022
8) Date of Institution : 15.05.2010
9) Judgment reserved on : 01.02.2022
10) Judgment announced on : 01.02.2022 THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution in brief is that on
02.04.2010 at about 10:00 PM at H. No. C11/15, Model TownII within the jurisdiction of PS Model Town, the accused has done lurking house trespass by night in order to commit theft of manhole cover at the aforementioned house which was belonging to the complainant Shri Kamal Kant Sharma by entering into the said house having taken precautions to conceal his entry for the purpose of committing the theft and committed theft of sewer cover/manhole from the above said house by removing it out of the position of the complainant without his consent and you were apprehended along with the stolen manhole __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 2 of 21 cover which you retained knowingly or having reason to believe that the same was stolen property and the accused thereby committed an offence punishable u/s 380/457/411 IPC.
2) After completion of investigation, chargesheet against the accused for offence U/Sec 380/451/411 IPC was filed in the Court and after complying with the provisions of Sec. 207 Cr.PC, arguments on charge were heard. Vide order dated 22.12.2010 charges were framed u/s 457/411 IPC against the accused to which he pleaded not guilty and claimed trial. Vide order dated 07.03.2020, additional charge was framed u/s 380 IPC against the accused to which he pleaded not guilty and claimed trial.
3) In support of its case, the prosecution examined four witnesses.
4) PW1 Kamal Kant Sharma, who is the complainant/victim in the present case deposed that on 02.04.2010, at around 10 PM, he was present at his house. He heard some noises that some persons were picking/lifting something. He quickly came out of his room __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 3 of 21 and noticed that the accused Kapil was holding sewer cover of iron make and was going out of the passage of his house. He apprehended him and raised the alarm. Several public persons gathered at his house and they started beating the accused. He made a call at 100 number. Police arrived at the spot and complainant handed over the custody of the accused along with sewer cover of iron to the IO. IO recorded his statement which is Exhibit PW1/A bearing his signature at point A. IO also prepared site plan at his instance. The sewer cover that was recovered from the accused was seized by the IO vide seizure memo Exhibit PW1/B bearing his signature at point A. IO arrested the accused and conducted his personal search vide search memo Exhibit PW 1/C and Exhibit PW1/D respectively both bearing his signatures at point A. His supplementary statement was recorded by the IO of the case. He correctly identified the accused in the court on 22.02.12. He correctly identified the case property which is Exhibit P1. He was duly crossexamined by the Ld counsel for accused. He was also crossexamined by Ld APP for the state as the complainant failed to identify the accused during cross examination on 11.09.2015 and stated that he is not able to identify the accused as his eyesight has gone weak and a __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 4 of 21 long time has passed since the incident has occurred.
5) PW2 HC Naresh deposed that on 02.04.2010, he was posted as DO at PS Model Town with duty hours from 5 PM to 1 AM. That on receipt of Rukka brought by Constable Balwan sent by ASI Jaswinder, he recorded FIR in the present case. He brought the original FIR which is in his handwriting and the copy of said FIR is Exhibit PW2/A bearing his signature at point A (OSR). The endorsement on Rukka is Exhibit PW2/B bearing his signature at point B. PW2 was not cross examined by Ld counsel for accused despite opportunity being given.
6) PW3 Ct. Anuj Tomar deposed that on 02.04.2010, he was posted at PS Model Town as DD writer. On that day, he recorded DD No. 60 B and attested copy of which is on judicial record bearing his signature at point A which is Exhibit PW3/A. He has brought the original register. PW3 was not cross examined by Ld counsel for accused despite opportunity being given.
7) PW4 Ct. Balwan deposed that on 03.04.10, he was posted as constable in PS Model Town. On that day, he was __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 5 of 21 on emergency duty from 8 PM to 8 AM along with ASI Jaswinder Singh. On that day on the receipt of DD no. 60A regarding theft, he along with IO went to spot i.e. C-11/15, Model Town where complainant Kamal Kant Sharma met them. He handed over one sewer cover to IO. IO recorded the statement of complainant upon which IO made endorsement and prepared rukka and send him to PS for registration of FIR. He came back to spot and handed over the copy of FIR and original Rukka to IO. Then IO seize the cover vide memo already Exhibit PW1/B bearing his signature at point B. Accused was arrested and personally search in the present case vide memo already Exhibit PW1/C and Ex.PW1/D respectively both bearing his signature at point B. He correctly identified the accused in the court on 11.09.2015. He correctly identified the case property which is already Exhibit P1. He was duly cross examined by Ld counsel for accused and also cross examined by Ld APP for the state as he has incorrectly mentioned the date of incident and DD no. but in cross examination, he stated that the correct date of incident is 02.04.2010 and DD no. is 60 B. __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 6 of 21
8) After Prosecution evidence, Statement of accused recorded under section 313 Cr.P.C read with Sec 281 Cr.P.C., in which the stand of the accused is of general denial that he is innocent. However, the accused has opted not to lead defence evidence.
9) In support of his case, no witness has been examined by the accused in his defence evidence.
10) I have heard the arguments of Ld. APP for State and Ld. Counsel for the accused. I have also perused the record carefully.
11) It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
__________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 7 of 21
12) It is stated by Ld APP for state that the victim i.e. PW1 Kamal Kant Sharma totally support the case of the prosecution and gave a very consistent and trustworthy statement which can be relied by the court and Exhibit PW1/A and the statement given by the complainant in the court i.e. PW1 is very consistent. It is further stated by Ld APP for state that complainant caught the accused red handed with his stolen Manhole/sewer cover in his house. It is further stated by Ld APP for state that the complainant correctly identified the accused before the court during examinationinchief as he was having much time to see the accused and he handed over the accused to the police and till that time accused was in his custody. It is further stated by Ld APP for the state that arrest memo was prepared at the spot and signed by the complainant and even proved by the complainant during his examination in chief. That during his crossexamination PW1 never said that accused was not the culprit. It is stated by Ld APP for state that the complainant correctly identified the case property which is Exhibit P1 in the court.
13) It is stated by Ld counsel for accused that by the __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 8 of 21 evidences led by the prosecution, none of the offences charged against the accused is proved reasonable doubt. It is further stated by Ld counsel for accused that in the present case neither the ownership nor the identity of the corpus delicti i.e. the sewer cover which is a common article without any identification mark, nor that entity of accused as has been proved beyond reasonable doubt by the prosecution and as such the accused is required to be acquitted. Ld counsel for complainant relied upon the judgement of Honorable Supreme Court of India in the case titled Bhure Khan Versus State of Madhya Pradesh AIR 1982 SC 948 in which the accused was acquitted as the corpus delicti was not satisfactory proved. Ld counsel for complainant also relied upon the judgement of Honorable Apex Court in case titled C. Muniappan and others Versus State of Tamil Nadu Criminal Appeal number 127-130, Date of decision 30.08.2010 where in it was held that the actual evidence about identity of the accused is what is given by the witness in the court. It is further stated by Ld counsel for complainant that IO has not been examined as a witness by the prosecution and the accused is thus totally precluded from any opportunity of being able to establish the infirmities of the prosecution case and on this ground __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 9 of 21 the accused is required to be acquitted and relied upon the judgement in case titled State Versus Peddahanumappa 2004 Cri LJ 2255 Karnataka. It is further stated by Ld counsel for complainant that the alleged recovery of sewer cover i.e. the corpus delicti is not from the accused. That the IO did not affect any lac seals on the corpus delicti and so no evidentiary value can be attached to such a recovery and seizure and relied upon the judgement in case titled Tulsiram Bhanudas Kamble and others versus State of Maharashtra 2000 Cri LJ 1566 Bombay and Salim Akhtar versus Mota 2003 Cri LJ 2302 Supreme Court. It is further stated by Ld counsel for complainant that the witnesses examined in the case i.e. PW1 and PW4 have made contradictory statement and on the basis of the testimony of such witnesses no conviction can be based and relied upon the judgement of Hon'ble Supreme Court in Suraj Mal Versus The State-Delhi Administration AIR 1979 SC 1408 and further stated that PW4 is also a hostile witness and a police/interested witness on whose testimony no conviction can be based without corroboration. It is further stated by Ld counsel for complainant that the examination of accused under section 313 of Cr.P.C. is perfunctory and incriminating evidence appearing against __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 10 of 21 the accused has not been put to the accused specifically and thus the accused has been deprived of the chance and opportunity to explain the alleged incriminating evidence against him and relied upon the judgement of Honorable Supreme Court in case of Avtar Singh and others Versus State of Punjab AIR 2002. It is further stated by Ld counsel for complainant that the sewer cover that is the corpus delicti has been handed over to the IO by the complainant as revealed from the statements of PW1 and PW4 in the court and the same has not been recovered and seized from the accused and therefore the same would not give an inference that the accused had committed offence under section 457 IPC and relied upon the judgement in case Singha Khobi versus Emperor 1938 AIR Lahore 252. It is further stated by Ld counsel for complainant that it is a settled law that the prosecution is required to prove its case beyond reasonable doubt and the court has to keep in mind that the accused 'must be' and not merely 'may be' guilty of offence. That the mental distance between 'maybe' and 'must be' is a long and divides vague conjectures from sure conclusion and relied upon the judgement in case title Rafiq Ahmed @ Rafi Versus State of Uttar Pradesh 2011 Cri LJ 4399.
__________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 11 of 21
14) It is stated by Ld APP for state that the complainant has correctly identified the accused during examination in chief and he was called for crossexamination after almost 3 ½ years of his examination in chief and more than 5 ½ years after the incident and during his crossexamination he failed to identify the accused and reason given by the complainant was that he could not identify the accused due to his weak eyesight and due to the reason that a long time has passed to the incident. It is further stated by Ld APP for state that complainant had not identified any wrong person as accused and the complainant during his cross examination stated that it is wrong to suggest that accused has been falsely implicated in this case by him or that accused has not committed theft. Moreover, there is no reason that the complainant will implicate the accused falsely in the present case. Ld APP for state relied upon the judgement of Honorable High Court of Delhi in Naushad Versus state Dated 25/05/2016 in which there was a long gap of four years between examination in chief and cross examination and Honorable High Court of Delhi relied upon the chief examination of the witness and convicted the accused. Ld APP for state also relied upon the judgement of __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 12 of 21 Honorable Supreme Court of India in case of Bhajju @ Karan Singh versus State of MP (2012) 4 SCC 327 in which it is held that it is now a well settled law that evidence of a hostile witness can be relied upon to the extent to which it supported the prosecution case. It is further stated by Ld APP for state that the complainant has given a very plausible and very genuine reason which proves that the complainant is a genuine witness and that he was not a tutored witness and gave a very natural, consistent and trustworthy statement. Ld APP for state relied upon the judgement of Honorable Supreme Court of India in State of Karnataka versus K. Yarappa Reddy AIR 2000 SC 185 in which it was held that a witness should not be expected to give a parrot like statement and some omissions/discrepancies are found to occur with passage of time, which shows the genuineness of the testimony and is a guarantee that witness is not a tutored one. It is further stated by Ld APP for state that no man of general prudence would keep the bill of a manhole/sewer cover with him and moreover there may be chances that the complainant has purchased the said manhole /sewer cover without Bill. It is further stated by Ld APP for state that the complainant has also given affidavit which is Exhibit PW1/D1 in which he __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 13 of 21 has specifically mentioned that he has no bill or receipt regarding the manhole/sewer cover. It is further stated by Ld APP for state that the minor omissions/discrepancies in the deposition of PW4 is due to lapse of the time and faded memory as he is a police official and he had done investigation in innumerable cases and it is not humanly possible to remember that the exact things/dates after lapse of more than 5 ½ years of the incident. Ld APP for state relied upon the judgement of Honorable Supreme Court in Baghchandra versus State of Madhya Pradesh decided on 09.12.2021 MANU/SC/1215/2021, Criminal appeal number 255-256 of 2018 in which it was held that the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. There are always normal discrepancies in the deposition of witnesses, however, honest and truthful they may be. These discrepancies are due to normal errors of observation, mental deposition and normal errors of memory due to lapse of time. It is stated by Ld APP for state that the nonexamination of IO is not fatal to the case of the prosecution and also cause no harm to the case of the prosecution since all the incriminating evidence has been proved by the prosecution against the __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 14 of 21 accused and the complainant himself has given a very consistent and trustworthy statement and the case of the prosecution is very well proved in absence of a IO and non examination of IO has not in any way caused prejudice to the accused or affect the credibility of complainant's evidence. Ld APP for state relied upon the judgement of Honorable Supreme Court of India in case titled Ram Gulam Chaudhary and others versus State of Bihar AIR 2001 SC 2842, Birendra Rai versus State of Bihar AIR 2005 SC 1284, Raj Kishore Jha versus State of Bihar AIR 2013 SC 4664 and Ambika Prasad versus State of Delhi AIR 2000 SC 718, in which it is held that nonexamination of IO has no bearing on appreciation of evidence of eye witness and it cannot be a ground for holding that eyewitness should not be believed. Moreover, many of the judgments relied on by the Ld Counsel for the accused are of other States which are not binding on this court.
15) Section 380 IPC provides for punishment for theft in dwelling house etc. and lays down that: "whoever commits theft in any building, tent or vessel, which building, tent or vessel used as human dwelling or used __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 15 of 21 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."
16) Section 457 IPC provides for punishment for lurking housetrespass or housebreaking by night in order to commit offence punishable with imprisonment and lays down that: "whoever commits lurking housetrespass by night or housebreaking by night in order to committing of any opens 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".
17) Section 411 IPC lays down punishment for dishonestly receiving stolen property and lays down that: "whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 16 of 21 stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
18) In the present case, the prosecution has proved all the charges framed against the accused beyond reasonable doubt. The testimony of PW1 specifically proved the commission of offences and the accused was caught red handed on the spot with the stolen property. Though the IO could not be examined despite best efforts by the prosecution due to the illhealth of IO and IO being bedridden and not in a position to depose before the court due to brainhemorrhage and critical condition which is very well clear from the report of the processserver and the medical documents attached with the report, this thing is not fatal to the prosecution case as PW4 proved all the related and material documents i.e. statement of complainant Ex. PW1/A, site plan Ex. PW4/A, arrest memo Ex. PW1/C, seizure memo Ex. PW1/B , personal search memo Ex.PW1/D etc. which would be proved by the IO if he could testify before the court as IO is not the eyewitness of the incident and can only prove the police proceedings __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 17 of 21 which is very well proved by PW4. The testimony of PW2 and PW3 remained uncontroverted as they were not cross examined by Ld counsel for the accused despite opportunity being given. Moreover, very prompt information was given by the complainant to the police which rules out any kind of concoction or manipulation and FIR was also lodged very timely. That the incident is of about 10 PM and DD no. 60 B which is Exhibit PW 3/A is recorded at 10:25 PM in pursuance of PCR call of the complainant. IO reached at spot and after verification and recording of statement of complainant, send Tehrir at 11:30 PM from spot and a FIR was registered by DO at 11:45 PM. Under Sec 281 Cr.P.C. r/w Sec 313 Cr.P.C., Metropolitan Magistrate is fully competent to make such memorandum of the substance of the examination of the accused which includes all the incriminating evidence proved/produced by the prosecution against the accused. Accused was given the opportunity to explain and to put his defence but he did not avail the opportunity and remained silent and just claimed to be innocent by answering in a mechanical manner. Hon'ble Supreme Court of India in Neel Kumar Vs. State of Haryana (2012)5 SCC 766 held that it is the duty of the accused to explain the incriminating circumstance proved __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 18 of 21 against him while answering u/s 313 Cr.P.C. In the the present case, the accused had simply pleaded false implication and moreover keeping silent and not furnishing any explanation is an additional chain of the circumstances to sustain the charge against him which was held by Honorable Supreme Court of India in Phula Singh Versus State of HP AIR 2014 SC 1256 and Prahalad Versus State of Rajasthan (2019)14 SC 438. It was held by Honorable Supreme Court of India in Liyakat Vs. State of Rajasthan (2014) 4 RCR (Cri) 676 SC that defective examination of accused under section 313 Cr.P.C. does not by itself vitiate the trial and the accused must establish prejudice caused to him. Moreover, the two judgements relied upon by the prosecution i.e. C. Muniappan and others Versus State of Tamil Nadu Criminal Appeal number 127-130, Date of decision 30.08.2010 and Singha Khobi versus Emperor 1938 AIR Lahore 252 supports the case of the prosecution for conviction. The judgment of C. Muniappan and others Versus State of Tamil Nadu Criminal Appeal number 127-130, Date of decision 30.08.2010 is in context of whether the identification of accused during the TIP proceedings carries more weight than the identification of the accused by the victim in the court and it was held that __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 19 of 21 identification of accused by the victim in the court carries more weight and in the present case both the witness that is PW1 and PW2 correctly identified the accused in the court during their examination. In Singha Khobi versus Emperor 1938 AIR Lahore 252, one accused was convicted under section 457 IPC on the basis of circumstantial evidences after considering the fact that recovery has been made after two months and 11 days from that accused and there was no witness for offence under section 457 IPC and in the present case the accused was caught redhanded at the spot with the stolen property. The judgment in case Tulsiram Bhanudas Kamble and others versus State of Maharashtra 2000 Cri LJ 1566 Bombay has already been overruled by Honorable Supreme Court of India in State of Maharashtra Versus Tulsiram AIR 2007 SC 3042. The facts of other judgements relied upon by Ld counsel for accused are different from the facts of the present case and are not applicable to the present case.
19) It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the __________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 20 of 21 accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. It is settled preposition that the prosecution has to prove the guilt of accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
20) In the backdrop of aforesaid discussion, facts and circumstances and material available on record, the prosecution has proved the charges u/s 380/457/411 IPC against the accused beyond reasonable doubts. Accordingly, accused Kapil is hereby convicted for the offences u/s 380/457/411 IPC.
21) Let the copy of judgement be given free of cost to the convict.
22) Let convict be heard on quantum of sentence.
Digitally signed MAYANK by MAYANK
GOEL
GOEL Date: 2022.02.01
14:05:44 +0530
Announced in open Court (Mayank Goel)
on 1st February, 2022 MM03/North District
Rohini Courts/Delhi
__________________________________________________________________________ State Vs. Kapil FIR No. 135/10 PS. Model Town U/s. 380/457/411 IPC 21 of 21