Delhi District Court
State vs . Mehraj on 30 August, 2011
"IN THE COURT OF SH. DEVENDER KUMAR GARG : MM (E) :
KKD:DELHI"
State Vs. Mehraj
FIR No. : 320/10
PS : Mayur Vihar
U/s : 457/380/511 IPC
Unique Case ID No. 02402RO257652010
Date of Institution : 10.09.2010
Date of reserve of order : 30.08.2011
Date of announcement : 30.08.2011
J U D G M E N T
1. Serial No. of the case : 223/10
2. Name of the Complainant : Smt. Shashi Nagia
3. Date of incident : 30.07.2010
4. Name of accused person : Mehraj S/o Sh. Kallu, R/o; Ambedkar
Camp Jhuggi No. 114, 32 Block,
Trilokpuri, Delhi.
5. Offence complained of : U/S 457/380/511 IPC
6. Plea of accused : Pleaded not guilty
7. Final Order : Convicted u/s 456 IPC
8. Date of such Order : 30.08.2011
BRIEF REASONS FOR SUCH DECISION:
1. The case of prosecution is that a complaint was made on behalf of complainant Smt. Shashi Nagia stating that on 30.07.2010, at about 1.15 in FIR No. 320/10 1/14 the night she was in her room of her house at first floor and was awakening because her son namely Deepak had come to his home after his duty at about 12.30 in the night. In the meantime, one person came in her room and tried to open the almirah then the complainant immediately shouted as 'Chor Chor' then her son Deepak also got up. On shouting of complainant as 'Chor Chor' the said person came up stairs and then the complainant fastened the kundi of stairs and in the meantime the husband of the complainant also came there after hearing the voice of complainant and he made a telephone call at 100 number. As per complainant the said person jumped from the roof of third storey of the house of complainant to the roof of second storey of her adjoining house bearing no. 20/487488, trilokpuri, Delhi. Then on the shouting of complainant her neighbours namely Sh. Badri Narayan S/o Sh. Madan Lal came there and car of PCR also reached there who had brought the said person on inquiry whose name was found as Anil S/o Sh. Sunil. PCR Van took him to LBS Hospital. The complainant has stated in her complaint that the accused Anil had entered in her home with the intention of theft and action may be taken against him. On the present complaint FIR u/s 457/380/511 IPC was registered against the accused persons and later on charge sheet u/s 457/380/511 IPC was filed.
2. By order dt. 10.09.2010 cognizance was taken for the offence committed against the accused by the Ld. Predecessor of this court and accused was produced from JC on 13.09.2011.
3. On the appearance of the accused, copies of challan was supplied to the FIR No. 320/10 2/14 accused free of cost in pursuance of section 207 of Cr.P.C.
4. By order dt. 27.09.2010 charge u/s 457/380/511 IPC was framed against the accused which is as follows : "That on 30.07.2010, at about 1.15 PM, at House No. 20/486, Trilokpuri, Delhi, you were found in the above said building in the possession of Smt. Shashi Nagia W/o Sh. Surender Mohan, making an attempt to open the door of the Almiraj on being noticed you jumped from the roof of the said building and thereby committed offence of house breaking by night in order to commit theft u/s 457 IPC, and within my cognizance.
Secondly, on aforesaid date time and place, you made an attempt to open the door of the Almirah in above said building used as dwelling house and thereby you committed an offence punishable u/s 380 read with Sec. 511 IPC within the jurisdiction of PS Mayur Vihar and within my cognizance.
5. The prosecution has examined eleven witnesses i.e. Smt. Shashi Nagia as PW1, Sh. Deepak as PW 2, Sh. Badri Narayan as PW3, Ct. Gopal Giri Kedar Nath as PW4, HC Dinesh Kumar as PW5, ASI Sardool Singh as PW6, Sh. Surender Mohan as PW7, Ct. Meghraj as PW8, Dr. O.S. Tomar as PW9, Dr. Vivek Yadav as PW10, HC Raj Kumar as PW11. After PE, statement of the accused was recorded u/s 313 Criminal Procedure Code in which the incriminating evidence was put to the accused to which he denied and stated that the complaint against him was false and he has been falsely implicated in present matter. Accused had stated that he did not want to examine witness in his defence hence, DE was closed and matter was adjourned for final FIR No. 320/10 3/14 arguments.
6. I have heard Sh. F.M. Ansari, Ld. APP for the state and Sh. Dinesh Yadhuvanshi Ld. Counsel for accused and perused the material on record carefully.
7. Ld. APP for State has contended that accused has been identified by the complainant i.e. PW1 and other witness are also corroborating the incident. He has further contended that date of incident has been corroborated and accused has given false explanation for his presence in the house of the complainant. He has further contended that accused has intention to commit theft. Hence he had trespassed in the house of the complainant.
8. On the other hand, Sh. Dinesh Yadhuvansi, Ld. Counsel for accused has contended that PW2 and PW7 has not identified the accused and PW2 has stated in his cross examination that he did not give any statement to the police. He has contended that PW3 is not supporting the prosecution story and no case is made out against the accused.
9. I have heard Ld. APP for the State and Ld. Counsel for accused and perused the material on record carefully.
10. Perusal of the file would show that FIR in present matter was registered on statement of Ms. Shashi Nagia who has been examined as PW1 by the prosecution. She has stated in her examination that she does not remember FIR No. 320/10 4/14 the date of incident. She has further deposed that however it was night at about 1.15 am and on that day her son Deepak had returned from duty at about 12.15 pm, and she was in the room of her house at the first floor. She saw a person in the room who was wearing a shirt of green colour and when he was asked as to why and how he had come in the room, then she raised the alarm. Upon this, accused ran away towards the roof of her house as she had locked the door of the stairs. The accused jumped from the roof of 3rd floor of the house on the roof of 2nd floor of her neighbour. Her husband called at 100 number and police reached at the spot and they took the accused from the roof of the neighbour. Police persons took the accused alongwith them and police recorded her statement Ex. PW1/A bearing her signature at point A. The witness has identified the accused in the court. Ld. APP had sought the permission for cross examination of the present witness u/s 154 of Evidence Act and he cross examined the witness. The witness has stated in the cross examination that it is wrong to suggest that the accused had tried to open the almirah which was kept in the room in which accused found by her. She has further deposed in her cross examination by Ld. APP that the accused did not try to open the almirah which was kept in the room. The witness was further cross examined by Ld. counsel for accused in which she had stated that he did not see the accused entering the room of her house but she saw him in the room of her house. She has further stated in her cross examination that it is correct that accused was caused to come from the roof of her neighbour by the police. She has further stated in her cross examination that accused was taken by the police shortly after he was apprehended from roof of second floor of her neighbours house. She has also denied the suggestion given by Ld. counsel for accused that FIR No. 320/10 5/14 accused had come to the stairs in order to save him from the beatings by his neighbours.
11. PW2 Sh. Deepak is the son of complainant. He has deposed in his evidence that he does not remember the date and month of the incident. However, he has stated that the incident belongs to year 2010. He has deposed that her mother was sleeping alongwith him in the same room and besides him and his mother, his nephew namely Akshat Mankina was also sleeping with them. He has further deposed that at about 121.00 am night, he heard the noise of 'Chor Chor' which caused him to wake up and he came out of his room and saw that her mother was in the Balcony and her mother had closed the gate of stairs to the second floor. He has further deposed that he woke up his father who was sleeping at the ground floor of his house and his father made a call at 100 number and police reached at the spot. He has further deposed that he does not know the name of the accused and he could not identify the accused in the court. He has further deposed that neighbours told him that the person who was found on his roof has jumped to the roof of house no. 20/487488. This witness has also been cross examined by Ld. APP for the State in which the witness had admitted that incident took place at about 1.15 am in the night. He has further admitted that he had awaken on hearing the noise of his mother. He has further stated that he had not seen the person jumping from the roof of his neighbour. He has further admitted that police had brought the accused from the roof of house no. 20/487488. In rest of his cross examination, the witness has denied the suggestion put by the Ld. APP for the State. FIR No. 320/10 6/14
12. PW7 Sh. Surender Mohan is husband of PW1. He has deposed in his evidence that the incident had happened in the night of 30.07.10 at about 1.00 am in the night. As per his deposition, he was sleeping at ground floor and woke up on hearing the screams of his wife 'Chor Chor' from first floor. He came out of the room and his wife told him that there is thief on second floor and also told him that she had bolted the door of the stairs. He called on 100 number and police came at his home. Accused had jumped from his roof of 3rd floor on the roof of his neighbours house no. 20/487480. Police reached at the roof and took him in PCR van after removing him from the roof. On the next day he came to know that accused had sustained injuries on his both legs. This witness does not identify the accused stating that he had seen him only once. This witness was also examined by Ld. APP for the State in which he has denied the suggestions made by Ld. APP for the State. This witness was further cross examined by Ld. counsel for accused in which it is stated that police had come at the time when thief was apprehended and again came for recording the statement at about 9.30 am. He has further deposed that he had seen the accused was being carried by PCR Van.
13. PW3 Sh. Badri Narayan is neighbour of complainant and he has deposed that he had gone on the roof of his house and saw a person who was sitting there. In his cross examination he has not identified the accused. So far as incident at the house of complainant is concerned, only PW1, PW2 and PW7 was present in the house. It was the complainant who had seen the accused in the room and other two witnesses came when the accused had run away from the house of the complainant.
FIR No. 320/10 7/14
14. In the present matter, the case of the prosecution is that accused was found in the building in possession of the complainant and he made an attempt to open the door of the almirah and when he was noticed he jumped from the roof of said building. From the deposition of above mentioned witnesses it is clear that there is no evidence that the accused made any attempt to open the door of almirah despite the fact that suggestions were put by Ld. APP for the State to the complainant and other witnesses.
15.In the present matter, charge has been framed u/s 457/380/511 IPC. Sec. 457 IPC read as under :
Sec. 457 IPC defines lurking housetrespass or housebreaking by night in order to commit offence punishable with imprisonment reads as under : 'Whoever commits lurking housetrespass by night, or housebreaking by night, in order to the committing of any offence 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.
So far proving offence u/s 457 IPC it is necessary that lurking tresspass by night or house breaking by night is committed in order to the committing of any offence punishable under imprisonment. But in the present matter the prosecution has failed to what offence was committed by the accused after his presence in the house of complainant. Complainant herself has stated that he did not try to open the door of almirah, however this was the case of FIR No. 320/10 8/14 prosecution. No attempt to commit theft has been proved on record hence no case u/s 457, 380/511 IPC is made out against the accused.
16.Now the question arises if the accused has not committed the offence u/s 457/380/511 IPC, then whether on the evidence available on record, any other offence is made out against the accused?
Some of the relevant provisions pertaining to the present matter in issue are as follows : Sec. 441 of IPC defines Criminal trespass which reads as under : Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or is said to commit "criminal trespass".
Sec. 443 of IPC defines lurking housetrespass which reads as under : whoever commits housetrespass having taken precautions to conceal such housetrespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking housetrespass". Sec. 444 of IPC defines lurking house trespass by night which reads as under : Whoever commits lurking housetrespass after sunset and before sunrise, is said to commit "lurking housetrespass by night". Sec. 456 of IPC defines power to restore possession of immovable property which reads as under : (1) when a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it FIR No. 320/10 9/14 appears to the court that, by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property :
Provided that no such order shall be made by the court more than one month after the date of the conviction.
(2) Where the Court trying the offence has not made an order under sub section (1), the Court of appeal, confirmation or revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be.
(3) Where an order has been made under subsection (1), the provisions of section 454 shall apply in relation thereto as they apply in relation to an order under section 453.
(4) No order made under this section shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit.
17.So far as the presence of accused in the house of the complainant is concerned, the same is proved on record from the statement of PW1 and other witnesses. In the cross examination of PW1 suggestion was put by the Ld. counsel for the accused that the accused had come to the stairs in order to save him from the beatings by his neighbours. The suggestion itself presumes the presence of the accused in the house of the complainant. Further, the incident has been supported by PW2, PW3, PW7 and other police officials. PW6 FIR No. 320/10 10/14 SI Sarul Singh has deposed that he saw the accused who was lying on the roof of the second floor of 20/487488, trilokpuri in injured condition. PW8 Ct Megraj has deposed in his evidence that accused was telling his name as Anil S/o Sunil which was false and his real name is Mehraj S/o Sh. Kallu.
18.The prosecution has examined Dr. O.S. Tomar who conducted medical examination of accused in which all the injuries were deposed as simple and fresh and injury no. 7 was referred to Radiologist. It was also deposed by PW9 that it is correct that injury no.7 could be caused by fall from height. The said witness has not been cross examined by the accused and hence his testimony has gone unrebutted. Prosecution has also examined Dr. Vivek Yadav as PW10. In his deposition he has mentioned two injuries on the body of accused i.e. 1. slight swelling both ankles with tenderness and 2. fresh abrasion over right cheek.
19. So from the above mentioned deposition of different witnesses the statement of complainant i.e. PW1 gets proved that the accused had jumped from the house of the complainant to the adjourning house and he got injuries in his legs and other portion of the body. She has clearly stated in her deposition that accused was present in her room and she has correctly identified him in the court. There is no reason to disbelieve her deposition. In his statement u/s 313 Cr.P.C., accused has taken the defence that on the said day he had come from his duty and suddenly 6/7 boys started running after him for injuring him and they had some weapons in their hand. He suddenly fell down by colliding with heavy stone and got injury in his left leg. He had further stated that policeman FIR No. 320/10 11/14 were there and arrested him and falsely implicated him in the present matter. No witness has been examined by the accused for proving his defence. Neither the doctors who had proved the MLCs have been cross examined by the accused for proving his defence and further the defence of the accused does not appear believable.
20. The incident happened at about 1.15 am in the night and no sufficient cause has been shown by the accused how he entered the house of the complainant. Neither it has been proved on record whether he had any invitation from the complainant to be present in his house and on the other hand the presence of the accused as such odd hours in the night would itself shows that the accused has entered in the house without any permission and to the annoyance of the members of the house. Taking into consideration the statement of complainant, her son and her husband and her neighbours, time of incident, the way of leaving the house by accused and the defence taken by the accused and human conduct into consideration, it can also be presumed that the accused could not have reached in the room of the complainant without concealing his presence.
21.From the above mentioned deposition of witnesses it is clear that the accused had concealed his house trespass from those persons who had the right to exclude him from the building. It is also proved on record that the incident was in the night at about 1.15 am. Hence, the accused has committed offence u/s 456 IPC. From the cross examination of the witnesses and from the charge framed against the accused and from defence taken by accused, no FIR No. 320/10 12/14 where it is shown that the accused will be in any way prejudiced, if he is convicted u/s 456 IPC in the absence of specific charge for said offence. The accused had ample opportunity to defend himself for Sec. 456 IPC and he has not been prejudiced in any way.
22.The prosecution has failed to prove Sec. 457 IPC and Sec. 380/511 IPC. But it is settled law that accused can be convicted for minor offence even if charge for measure offence is not proved and even if separate charge for minor offence was not framed. Provided that there is sufficient evidence for the same on record and accused had reasonable opportunity for defending himself. The relevant Sec.222 of Cr.P.C. is as under : "When offence proved included in offence charged which reads as under : (1) when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3)When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4)Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings FIR No. 320/10 13/14 in respect of that minor offence have not been satisfied."
23. So far as the contention of Ld. Counsel for accused that there are contradictions in the statement of witnesses on some points then the said contradictions are of minor nature and taking into consideration all the material available on record, the same are not relevant.
24.Taking into consideration all the facts and circumstances and material available on record, accused is convicted u/s 456 IPC.
Announced in the open court (DEVENDER KR. GARG) on 30.08.2011 MM/KKD/Delhi FIR No. 320/10 14/14 FIR No. 320/10 15/14