Delhi District Court
State vs Raju @ Dost Mohammad on 3 October, 2007
IN THE COURT OF SH. SUDESH KUMAR, METROPOLITAN MAGISTRATE,
NEW DELHI
STATE
VERSUS
RAJU @ DOST MOHAMMAD
F.I.R. No. : 105/07
U/s 457/511IPC
P.S.: C Place
JUDGEMENT
(a) The FIR no. of the case : 105/07
(b) The date of commission of offence : 24.2.2007
(c) The name of complainant :Upendra Singh
s/o Shri Chantoo Singh
r/o VPO Adampur
Teh. Tarab Ganj
PS Umri begum ganj
Distt: Ghonda(UP)
Present add: Khanna
Market, Lodhi Colony,
Ali Ganj New Delhi.
(d) The name, parentage, residence of accused : Raju @ Dost Mohd.
S/o Aziz @ Gulzar
r/o Vegabond
New Delhi.
(e) The offence complained of/ proved : 457/511 IPC
(f) The plea of accused : Pleaded not guilty
and claim trial.
(g) Date of Institution : 25.4.2007
(h) The date on which :1.10.2007
judgment was reserved
( i) The final order : Convicted
(j) The date of such order : 3.10.2007
(i) Brief statement of the reasons for the decision :
1. The prosecution story in brief is that on 24.2.2007 at 3.30 am at shop no. 94, Janpath Market within the jurisdiction of Police Station C Place accused attempted to commit offence of lurking house tress pass by night by entering into the said preiss by trying to break open the lock of the said house and thereby the accused committed the offence u/s 457 r.w. Section 511 IPC for which FIR No.105/07 U/s 457/511 IPC was registered at PS Cannaught Place. After investigation the accused was charge sheeted for the offence U/s 457/511 IPC.
2. From the material on record a charge U/s 457 r.w. Section 511 IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
3. To support its case the prosecution has examined 06 witnesses.
4. PW1 Ct. Nagender Singh deposed on oath that on the intervening night of 23- 24/2/2007 he was posted as constable at PS C Place.PW1 further deposed on oath that on that day he alongwith Ct. Megh Singh was on patrolling duty at Janpath market. PW1 further deposed on oath that one chowdidar Upender Singh was also on patrolling duty. PW1 further deposed on oath that at about 3.30 am they heard a noise of Chowkidar Upender on which he alongwith DHG Megh Singh reached at the spot and saw that accused was running from shopno. 96. PW1 further depose3d on oath that they apprehended the accused near the railing situated at Janpath marg. PW1 further deposed on oath that accused disclosed that he had committed theft in the said market prior to this incident. PW1 further deposed on oath that he inquired from the PS on telephone on which SI Rishi Pal alongwith H.Ct Jagdish reached at the spot. PW1 further deposed on oath that IO recorded the statement of complainant Upender Singh and prepared a rukka and same was handed over to him for getting the FIR registered. PW1 further deposed on oath that he took the rukka to the PS and came back at the spot with the copy of the FIR and original rukka and handed over the same to the IO. PW1 further deposed on oath that accused was arrested vide arrest memo Ex.PW1/A. PW1 further deposed that IO prepared the personal search memo of the accused vide memo Ex. PW1/B . PW1 further deposed on oath that his statement was recorded by the IO Ex.PW1/C..
5. In his cross-examination by accused PW1 deposed that his duty hours were from 10.00 pm to 5.00 am. PW1 further deposed in his cross examination that there used to remain four Chowkidars in Janpath Market. PW1 further deposed in his cross examination that Upender was on duty from shop no. 52B to 96. PW1 further deposed in his cross examination that other chowkidars were on their respective duties and reached at the spot after apprehension of accused.
6. PW2 Upendra Singh deposed on oath that he used to work as security guard in Perfect Security. PW2 further deposed on oath that on the intervening night of 23- 24.2.2007 he was on duty at Janpath market. PW2 further deposed in his cross examination that at about 3.30 am he heard a noise thak thak from the shop situated at Tolstoy Marg. PW2 further deposed on oath that he saw the accused trying to break the lock of shop no. 94. PW2 further deposed on oath that he called the beat Ct Nagender who was on duty with one home guard . PW2 further deposed that on seeing them accused tried to escape himself but all of us apprehended the accused near railing Janpath Marg. PW2 further deposed on oath they they informed the police. PW2 further deposed on oath that police came at the spot and recorded his statement Ex.PW2/A. PW2 further deposed on oath that IO recorded statement of accused Ex.PW 2/B. Pw2 further deposed on oath that he had shown the place of incident to the police.
7. In his cross-examination by accused PW2 deposed that he was working in the said security services for the last 8 months. PW2 further deposed in his cross examination that he was on duty at Janpath market for the last 5-6 months. PW2 further deposed in his cross examination that at the time of incident he was on duty alongwith 3 other guards .PW2 further deposed in his cross examination that accused was not having anything in his hands. PW2 further deposed in his cross examination that when he saw the accused he tried to escape himself.
8. PW3 Ct Megh Singh deposed on oath that on the intervening night of 23-24.2.2007 he was posted at PS C Place as DHG. PW3 deposed to the same facts as deposed to by PW1 .
9. In his cross examination PW3 deposed that on the day of incident his duty was from 10pm to 6 am. 8/10 chowkidars were on duty in Janpath Market. PW3 further deposed in his cross examination that 4-5 other chowkidars came to the spot after apprehension of the accused.
10.PW4H Ct Inder Singh proved on record registration of FIR no. 105/07 Ex. PW4/A.
11.In his cross examination by ld. Legal aid counsel PW4 denied that he had lodged a false FIR.
12.PW5 H Ct Rasool Ahmad deposed on oath that on intervening night of 23 and 24.2.2007 he was posted at PS C Place as H.Ct. PW5 further deposed on oath that on that night he was DO from 12 midnight to 8 am.. PW5 further deposed on oath that at about 4.55 am I recorded a DD no. 34 A Ex.PW5/A regarding apprehension of a thief at Janpath Market.
13.No other witness was examined by the prosecution and accordingly, the prosecution evidence was closed.
14.Accused was examined U/s 313 Cr.P.C. and all the incriminating evidence coming on record was put to the accused. Accused submitted that he had been falsely implicated in this case and denied of leading any defence evidence.
15.Thereafter, the matter was posted for final arguments.
16.I have heard the Ld. APP for state and L.A.C. Mr. Gigi George for accused have perused the material on record.
17.In the present case the prosecution has to prove beyond reasonable doubt that it was the accused who on 24.2.2007 at 3.30 am at shop no. 94, Janpath Market within the jurisdiction of Police Station C Place attempted to commit offence of lurking house tress pass by night by entering into the said shop by trying to break open the lock of the said house to prove the offence u/s 457 r.w. Section 511 IPC
18.Lurking house tress pass as defined in section 443 IPC is: Whoever commits house trespass having taken precautions to conceal such house trespass 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 house trespass'.
19.In section 444 IPC the defination of lurking tress pass by night is defined as :
whoever commits lurking house trespass after sunset and before sunrise, is said to commit 'lurking house trespass by night'.
20.In this case prosecution has filed this case u/s457/511 IPC attempted to commit house tress pass by night by entering into the premises by trying open to break lock of shop no. 94 Janpath Market . Let us see whether in the evidence lead on record whether prosecution has been able to prove that accused has tried to break open the shop no. 94 Janpath Market to show that offence of trying to lurking house tress pass was committed.
21. In order to prove the alleged offence the prosecution has examined PW2 complainant Upender Singh . PW2 has deposed on oath that he used to work as security guard in Perfect Security. PW2 further deposed on oath that on the intervening night of 23- 24.2.2007 he was on duty at Janpath market. PW2 further deposed in his cross examination that at about 3.30 am he heard a noise thak thak from the shop situated at Tolstoy Marg. PW2 further deposed on oath that he saw the accused trying to break the lock of shop no. 94. PW2 further deposed on oath that he called the beat Ct Nagender who was on duty with one home guard . PW2 further deposed that on seeing them accused tried to escape himself but all of us apprehended the accused near railing Janpath Marg. PW2 further deposed on oath they they informed the police. PW2 further deposed on oath that police came at the spot and recorded his statement Ex.PW2/A. PW2 further deposed on oath that IO recorded statement of accused Ex.PW 2/B. Pw2 further deposed on oath that he had shown the place of incident to the police.
22.Nothing material has been brought on record in the cross examination of PW2. The testimony of PW2 Upender Singh regarding the apprehension of accused when he was trying to break the lock of shop no. 94 , Janpath Market, with the help of beat constable Nagender who was on duty with one constable of home guard stands corroborated by the testimony of PW1 and PW3. PW1 and PW3 proved the version of complainant as well as story of the prosecution. Nothing material came out after their cross examination by counsel from legal aid. In the cross examination of material witnesses by the legal aid counsel it was taken on record that other chowkidars were on their respective duties . Counsel for legal aid argued that no such chowkidars was cited as witness by the prosecution. Since PW1 stated in his cross examination that other chowkidars reached the place of incident after apprehension of accused and the said fact was corroborated by PW 3 Ct Megh Singh . In my opinion there is no necessity of citing these chowkidars as witness as they reached at the spot after the incident has taken place.
23.In the light of testimony of complainant which stands corroborated by PW1 and PW3 it has been proved on record by the prosecution that accused attempted to commit offence of lurking house tress pass by night by entering into the said premises by trying to break open the lock of the said shop. Therefore the section 457 r.w. Section 4511 IPC stands proved by the prosecution.
24.Accordingly accused stands convicted for the said offence. ANNOUNCED IN THE OPEN COURT TODAY ON 3.10.2007 (SUDESH KUMAR) METROPOLITAN MAGISTRATE NEW DELHI ORDER ON SENTENCE 3.10.2007 Pr: APP for the State.
Accused from JC with LAC.
Arguments on point of sentence heard today.
Ld. APP makes a prayer for grant of maximum punishment to the convict having regard to the offence committed by him.
Counsel for convict makes a prayer for taking a lenient view against the convict having regard to the young age of convict which is about 23 years and to the fact that no previous involvement has been brought on record against the convict by the prosecution. Counsel for the convict also makes a prayer to release the convict for the period already undergone by the convict. Having regard to the point that convict is not having any previous conviction and he is a young person and he is the only bread earner of his family a case for taking a lenient view is made against the convict. He is sentenced to period already undergone by him. Benefit of section 428 CrpC be given to the convict. Copy of judgment and copy of order on sentence be given free of cost to the convict.
MM/3.10.2007