Delhi District Court
State vs . Javed Etc on 24 January, 2013
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Javed etc
FIR NO: 460/97
P. S. Sriniwas Puri
U/s 380/448/34 IPC
Unique ID no. 02406R0030861998
JUDGMENT
Sl. No. of the case and : 306/2 (9.9.1998)
Date of its institution : 9.9.1998
Name of the complainant : Sh. Mohd. Shahid
Date of Commission of offence : 4.5.1997
Name of the accused : 1. Javed
2. Furkhan
Offence complained of : Section 380/448/34 IPC
Plea of accused : Not Guilty
Case reserved for orders : 4.1.2013
Final Order : ACQUITTED
Date of Judgment : 24.1.2013
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Javed and Furkhan pursuant to a charge sheet filed by the Police Station Sriniwas Puri under section 380/448/34 Indian Penal Code, 1860 (for short IPC) subsequent to the investigation carried out by them in State Vs. Javed etc FIR no. 460/97 FIR no. 460/97.
2. The prosecution case against the accused is this: On 4.5.97 at about 12.45 pm, both the accused persons entered H.no. 98, Sarai Julena with intention to commit theft and both the accused persons in furtherance of their common intention dishonestly removed one Diwan, one plung, two charpai, two gas cylinder, two chulha, three iron box containing clothes and Rs.70,000/ cash, one gold set, ring, two gold kangan, one pair gold ear ring, two gold ring, two gold chain, four bags of leather, two sewing machine, one tailoring table, one dining table, 15 utensil brass, one BPL colour T.V, one Godrej fridge, 5 quilts, 7 gadda, 4 chadar, thus committed an offence u/s 448/380/34 IPC.
3. On consummation of investigation and other formalities, charge sheet was submitted against the accused and the accused were indicted on charges under section 448/380/34 IPC. They pleaded not guilty and claimed trial.
4. The prosecution, to prove above charges against the accused, tendered oral as well as documentary evidence. In all, nine witnesses were examined. PW 1 is HC Wahid Khan who was the duty officer and proved the FIR as Ex.PW1/A upon a rukka.
5. PW 2 Ct. Anand Kumar and PW 5 HC Ayub Khan proved their involvement in the investigation and deposed that on the date of incident, they alongwith ASI Patram reached at H.no. 98, Sarai Julena after receiving a call where owner of the said house Sh. Javed met them and his tenant namely Shahid was also found. IO/ASI Patram recorded the statement of Shahid. IO prepared rukka and got the case registered through Ct. Anand Kumar. On interrogation accused, Furkhan and Javed made disclosure statement Ex.PW2/A and Ex.PW2/B. The tempo was also taken in possession and seized vide memo Ex.PW2/C. Stolen articles were also seized vide memo Ex.PW2/D, both the accused persons were arrested and their personal search were conducted vide memo Ex.PW2/E and Ex.PW2/F. They were cross examined by State Vs. Javed etc FIR no. 460/97 ld. Counsel for the accused.
6. PW 3 is Mohd. Shahid who deposed that on 4.5.97, he was residing at H.no. 98, Sarai Julena as tenant. The landlord of the said house was Zaved and used to pay Rs.800/ as rent to Zaved. On that day at about 1212.30 pm, he came from his shop at Saket and fund that accused Zaved, Naeemuddin, Saifuddin alongwith 23 labourers entered into his abovesaid house. Again said, he came at his house after receiving information on telephone through his wife Nasima. He saw that accused persons alongwith their abovesaid associates took his household articles mentioned above in Tata tempo. They were taken to the PS Sriniwas Puri by accused Zaved, Safiddin, Naeeem, Furkhan, Naeeem Alam and two labour person with the pretext to compromise the matter in PS and in their absence, accused persons locked the said tenanted premises. His statement Ex.PW3/A was recorded by the police. His jewellery, cash etc were not returned by the accused persons despite his several demand. He also moved an application Ex.PW3/B for release of stolen articles on superdari. Later on, he got released his some domestic articles on superdari but his cash, jewellery were not returned by the accused persons. He was cross examined by Ld. Counsel for the accused.
7. PW 4 is Smt. Nasima Khatoon who more or less deposed on the same lines as deposed by PW 3 Mohd. Shahid. She further deposed that on the date of incident, two ladies came to his house and they asked her name and she asked them to sit. In the meantime, both the said ladies removed their veil (burqa) and suddenly Furkhan, Zaved, Naeem Alam, Saifuddin and Naeem (labour) entered into his said house and they forcibly took her household articles in a tempo. She immediately telephoned her husband who came back at about 1 pm. She was cross examined by Ld. Counsel for the accused persons.
8. PW 6 is Naim who deposed that in the year 1997, he was residing at H.no. 98, State Vs. Javed etc FIR no. 460/97 Sarai Julena of house of Shahid. They were paying rent of Rs.300/ in a month. The children of Shahid was also resided at the said address. In the starting of summer months in the noon time, few persons were came in the house and all household articles were taken out from the house of Shahid and one tempo was parked in front of house. Household articles were loaded in the tempo and took away the articles. Later on, he came to know that house owner was the Javed. Accused Javed has forcefully vacated the room from possession of Shahid. He was cross examined by Ld. Counsel for the accused.
9. PW 7 is Ct. Subhash Chand who proved DD no. 12 as Ex.PW7/A.
10. PW 8 is Inspector A.S. Rawat who proved his investigation alongwith certain documents like rukka Ex.PW3/A, FIR as Ex.PW1/A, site plan Ex.PW8/A, pointing out memo as Ex.PW5/A, seizure memo of tempo as Ex.PW2/C, seizure memo of list of articles as Ex.PW2/D, arrest and personal search memo as Ex.PW2/E and Ex.PW2/F.
11. PW 9 Sh. Gurdeep Singh who was the registered owner of the offending vehicle and got released the same on superdari vide memo Ex.PW9/A, photographs of the vehicle as Ex.PW9/B1 to Ex.PW9/B10.
12. The statement of the accused under Section 281 of the Criminal Procedure Code, 1973 (for short, `the Code') was recorded. They asserted that they were innocent and had been falsely implicated. Accused Javed stated that he is the owner of the property in question and deputed complainant, his relative, to take care of the said property but he inducted two tenants namely Naim and Kalimullah in his property without his consent whereupon he confronted the complainant who then got him falsely implicated in the present case. Accused Furkan stated that he supported accused Javed in the abovesaid act, being his friend. Further, they chose not to lead any defence evidence.
13. I have heard the learned Assistant Public Prosecutor and the learned State Vs. Javed etc FIR no. 460/97 Advocate for the accused at length and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt. Accused persons have been identified by the prosecution witnesses.
14. Per contra, learned defence counsel has canvassed that the present case is totally false and fabricated for the reason that accused Javed was in fact the landlord of the property in question and both the accused persons are related to the complainant. He invited the attention of this court towards the material cross examination of the prosecution's witnesses to bring on record the infirmities in the case of the prosecution. It is further urged that the recovery of the case property is doubtful as the same has not been produced in the Court during the trial by any of the prosecution's witnesses. It is also the submission of counsel for the accused persons that no public witnesses have been examined by the prosecution in support of its claim that both the accused persons had committed house trespass and theft of the stated articles.
15. To appreciate the case of the prosecution, I shall first try to find out as to what constitutes theft under "India Penal Code". Section 378 of Indian Penal Code defines "theft". In Section 378, a reference is made to the expression "dishonestly". The said word "dishonestly" is defined under Section 24 of IPC. On reading Section 24, I further find that a reading of Section 23 IPC will also be necessary to understand the real import of the expression, "dishonestly". So, to perceive as to what constitutes the offence of "theft", a joint reading of all the above sections is absolutely essential. I shall therefore extract all the above sections one by one as follows:
"Section 378: Theft. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft".
State Vs. Javed etc FIR no. 460/97 "Section 24: "Dishonestly" Whoever does anything with the intention of causing wrong ful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
"Section 23. 'Wrongful gain'. "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled".'Wrongful loss'. 'Wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled".
16. A close reading of Sections 378, 24 and 23 IPC extracted above would show that proof of removal of a movable property by the accused alone will not be sufficient to establish "theft". Prosecution has to further prove that the accused had intended to take the movable property "dishonestly" as defined under Section 24 read with Section 23 IPC. To prove that the accused intended to take the property "dishonestly", prosecution has also to establish that the accused intended to cause wrongful gain or wrongful loss of the movable property as stated in Section 23 of IPC. Thus, to prove the offence of "theft", prosecution has to establish that the accused moved the articles with the requisite intention contemplated by Section 378 IPC read with Sections 23 and 24 of IPC.
17. The main ingredients of offence of "theft" which are to be proved under Section 378 of IPC are therefore (1) that the offender had the intention to "take" a movable property out of possession of another without the consent of the latter; (2) that the offender had also intended to cause wrongful gain by unlawful means, of such property to which the person gaining is not entitled to or wrongful loss by unlawful means, of such property to which the person who is losing it is entitled to and (3) that with such intentions and in order to such "taking", the offender had moved such movable property.
18. Thus, it is clear that the offence of "theft" takes in both a physical act of State Vs. Javed etc FIR no. 460/97 'moving' and also a specified intention. But, what exactly is the nature of the intention which is required to be proved to make out the offence of "theft"? Theft postulates two "intentions". Firstly, an intention of the accused to 'take' any movable property out of possession of another person without the consent of the other person. Secondly, an intention to cause wrongful gain by unlawful means, of such property to which the person gaining is not entitled to or to cause wrongful loss by unlawful means of such property to which the person losing is entitled to. Only if both such intentions of the accused are proved, an offence of "theft" as defined in Section 378 IPC will be established. Therefore, a mere removal of a movable property by a person from possession of another without the consent of the latter with the sole intention to evict him from a building will not be sufficient to make out an offence under Section 380 of IPC.
19. The mainstay of the prosecution's case is the testimony of PW 3 Mohd. Shahid and PW 4 Smt. Nasima Khatoon who is the wife of PW 3 Mohd. Shahid. PW 3 has testified that on 4.5.1997, he was residing at H.no. 98, Sarai Julaina, New Delhi (for short referred to as "property") as tenant and the landlord of the said house was Javed (who is an accused in the present case) and he used to pay Rs.800/ as rent to Javed. It is further testified that on that day at about 1212.30 pm, he came from his shop at Saket and found that accused Javed, Naeemuddin, Saifuddin alongwith 23 labourers had entered his house and had taken his household articles like one Diwan, one plung, two charpai, two gas cylinder, two chulha, three iron box containing clothes and Rs. 70,000/ cash, one gold set, ring, two gold kangan, one pair gold ear ring, two gold ring, two gold chain, four bags of leather, two sewing machine, one tailoring table, one dining table, 15 utensil brass, one BPL colour T.V, one Godrej fridge, 5 quilts, 7 gadda, 4 chadar in Tata Tempo. Thereafter, they were taken to PS Shriniwas Puri by accused Javed, Saifuddin, Naim, Furkhan on the pretext of compromising the matter in the State Vs. Javed etc FIR no. 460/97 police station and in their absence, accused persons locked the said tenanted premises. His statement was recorded by the police which is Ex.PW3/A. PW 4 is the wife of PW 3, who has also testified on the similar lines by affirming the fact that they were residing at the property as tenant on a monthly rent of Rs.800/ which they used to pay to accused Javed. Apart from corroborating the testimony of PW3, PW 4 has also testified that on the date of the incident i.e 4.5.1997, two ladies came to their house who were asked by her to sit and in the meantime, both the said ladies removed their burkha and suddenly Furkhan, Javed, Naeem Alam, Saifuddin and Naeem entered into the said property and forcibly took the household articles in a tempo. Thereafter, she called her husband who came and asked the reason for removal of the household articles upon which the accused persons said that they were going to police station and they called her husband to the police station. She further testified that her husband went to the police station but before leaving the spot, accused persons locked the rented residential property. Both the abovesaid prosecution witnesses have correctly pin pointed accused Javed and Furkhan to be the same persons who were involved in the alleged offence.
20. In the cross examination of both the material prosecution witnesses, counsel for the accused persons has tried to demolish the case of the prosecution by bringing on record certain material contradictions. Firstly, it is stated by both PW 3 and PW 4 in their chief that after accused loaded their household articles in the tempo, they were taken/called to PS Sriniwas Puri on the pretext of compromise but in the cross examination, PW 3 has denied that the accused persons took them to PS on the pretext of compromising the case. Further, PW 3 was ignoramus of the time at which the police came to the property in question or at what time, he made the complaint Ex.PW3/A. He denied the suggestion that any talks of compromise took place between him and the accused at the police station. He also admitted that after going to State Vs. Javed etc FIR no. 460/97 the police station for lodging his complaint, he never went to the property in question again. These contradictions are too significant to be overlooked. PW 3 appears to be waffled as to whether after the alleged incident he went to the Police station or not. He is also nescient of the time and the place of lodging the complaint which makes his story untrustworthy.
21. Now embarking upon the testimony of PW 2 Ct. Anand Kumar who is stated to be involved in the investigation of the present case. He testified that on 4.5.1997, he alongwith SI Patram and HC Ayub Khan reached at the property after receiving a call where he met the owner of the house Javed and his tenant Mohd. Shahid. The statement of complainant Mohd. Shahid was recorded by investigating officer ASI Patram and rukka was prepared and the case was got registered through him. Thereafter, both the accused persons were arrested. In the cross examination, he admitted that accused Javed was present at the spot i.e the property in question and the house was not locked at that time. He expressed his ignorance as to the time of the arrest. The testimony of PW 2 appears to be in contrast with the testimony of PW 3 who is the complainant on the point that PW 3 has claimed to have gone to the police station soon after the alleged incident in question whereas PW 2 has claimed to have reached at the spot after receiving a call. PW 3 has stated that the property was locked by the accused persons after they went to the police station whereas PW 2 has stated that the property was not locked when he reached at the spot. It is also the statement of PW 2 that both the accused persons were arrested from the spot but surprisingly the arrest memo of both the accused persons are not on record nor the same have been exhibited in the evidence of any of the prosecution's witnesses. All these circumstances, taken cumulatively, throw a grave doubt on the case of the prosecution as the material inconsistencies in the testimony of PW 3 and PW 2 as discussed hereinabove cannot be ignored.
State Vs. Javed etc FIR no. 460/97
22. Further, the case of the prosecution regarding the recovery of the alleged tempo in which the accused persons have stated to have removed the household articles is also fraught with inconsistencies. PW 5 HC Ayub Khan has deposed that the tempo bearing no. DL 1PB 5345 was found loaded with the articles in front of Surya Hotel, Okhla Road. The said tempo was identified by the complainant following which the tempo was brought to the police station and was seized vide memo Ex.PW2/D and Ex.PW2/C. At this stage, we may have a look at the seizure memo of the tempo and the articles in question which bears the signature of HC Ayub Khan and Ct. Anand Kumar. It is significant to note that although the tempo is alleged to have been recovered in the presence of the complainant Mohd. Shahid but his signatures have not been taken on the seizure memo. In the cross examination also, PW 3 has expressed ignorance about the time and the place from where the recovery of the tempo was effected. It is also significant to note that in his initial complaint, complainant has not mentioned the number of the tempo but later on during his evidence he for the first time disclosed the number of the tempo which also raises suspicion on the case of the prosecution. PW 2 Ct. Anand Kumar has stated in his cross examination that the tempo was not seized in his presence and he was also nescient if stolen articles were recovered in his presence or not. Also, the alleged stolen property has never been produced by the prosecution at any point of time during the trial. From the aforesaid circumstances, recovery of the tempo and the stolen articles seem to be doubtful and eventually does not inspire confidence. PW 9 Gurdeep Singh is examined as the prosecution witness who is claimed to be the registered owner of the tempo in question i.e DL 1PB 5345 whose deposition is to the effect that on the date of the incident, his vehicle was handed over to the driver namely Ramdhan. The said driver Ramdhan has neither been examined by the prosecution nor been cited as a witness. It was obligator upon the police officials/investigating State Vs. Javed etc FIR no. 460/97 agency to have recorded the statement of the said driver who was having the possession of the tempo on the date of the incident but since the same has not been done, therefore, the prosecution's case fails on this count as well. All the aforesaid discussed circumstances take the wind out of the prosecution's sail and falsify its entire case.
23. Be that as it may, for a minute even if we assume the entire case of the prosecution to be correct, even then in my opinion accused persons cannot be held liable for their act. At this juncture, the argument advanced by Ld. Counsel for the accused persons that accused Javed was the landlord of the property in question who gave permission to the complainant Mohd. Shahid PW 3 to reside in the said property and also to take care of the same in his absence but complainant betrayed the accused Javed by inducting two tenants namely Naeem and Kalimullah in the said property and accused Javed on coming to know of the said act of the complainant took strong exception to the same whereupon complainant had falsely implicated accused Javed and Furkhan in the present case assumes importance. It is the admitted case of the prosecution that both the complainant PW 3 and PW 4 were residing in the property as tenant by paying monthly rental of Rs.800/ to accused Javed who was the landlord. The important question that arises for consideration is that even if the case of the prosecution is accepted in toto that accused Javed being the landlord of the property in question had removed the household articles of the complainant who is their tenant, then in such a case can both the accused persons be held liable for the house trespass in the said property and theft of such articles. The answer to this question lies in the judgment of Hon'ble Kerela High Court in Kesavan Nair Vs. State of Kerela, 2005 (3) KLT 391. Para 9 and 13 of the said judgment are relevant which are reproduced as below:
"9. But, the records in this case will not reveal that the accused had any intention to cause State Vs. Javed etc FIR no. 460/97 wrongful gain or wrongful loss in respect of any "movable" property. In the charge sheet itself it is stated that the accused had removed the movables with the intention to evict the complainant. The definite case of the prosecution is that the movables were removed with the intention to evict the complainant. It is specifically stated in complaint that the accused had threatened the complainant that his articles will be removed in case he did not vacate the premises. The accused thereafter allegedly removed the files, books etc. from the possession of the complainant. But those movables were kept exposed and intact in the premises of the house of the accused. Thus, even if the entire allegations in the records are accepted, it will only reveal that the accused moved the articles with the intention to evict the complainant from the building but they did not have the intention to cause any wrongful gain or wrongful loss of any movable property. Therefore the allegations revealed from records will not constitute offence under Section 380 IPC. If no offence under Section 380 is attracted, no offence under Section 451 also will lie."
"13. On going through the records and hearing both sides, I am satisfied that no offence under Section 380 of IPC is made out from the records available in this case. If no offence under Section 380 IPC is made out, an offence under Section 451 also will not lie. The charge sheet itself explicitly reveals that the sole intention of the petitioners was to evict illegally the de facto complainant who was allegedly running his office in the building belonging to the first and second petitioners. Hence the lower Court ought not to have taken cognizance of the offence of either under Section 380 or 451 IPC. Charge against the accused in this case is liable to be quashed and I do so."
24. From the aforesaid judgment it is amply clear that where the sole intention of the accused/landlord is to evict illegally the de facto complainant who is residing in his property, then the landlord cannot be held liable for offence u/s 380 IPC. This is what, precisely, might have happened in this case if we assume the prosecution story to be true. It is admitted by PW 4 Nasima Khatoon in her cross examination that her State Vs. Javed etc FIR no. 460/97 husband Mohd. Shahid had inducted two tenants namely Naim and kalimullah in the said property. PW 6 Naim has also affirmed this fact in his cross examination. This act of Mohd. Shahid, who was allegedly living as a tenant in the property of accused Javed, would naturally have irked him who might have resorted to the illegal act of forcibly evicting his alleged tenant Mohd. Shahid by removing his house hold articles. But this act of his cannot make him culpable by imputing upon him the dishonest intention of stealing those articles. The driving force behind such an act could not have been the dishonest intention of removing the articles but to get his property vacated. The nature of intention of the accused is evident from an apparent reading of the evidence of the prosecution's witnesses and the records would reveal that the intention of the accused was only to evict the complainant and not to commit theft as defined. The defence advanced by both the accused persons seems to be credible and has been consistent throughout the trial. Consequently, accused persons stand exonerated for the offences with which they were charged. They are set at liberty.
Announced in the open court (Navjeet Budhiraja)
on 24.1.2013 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Javed etc FIR no. 460/97