Delhi District Court
State vs Mohd Aurangzeb @ Sonu on 7 September, 2024
IN THE COURT OF MS. GEETANJALI
ADDITIONAL SESSIONS JUDGE (FTC)- 03; SOUTH EAST
DISTRICT SAKET COURTS: DELHI
S.C. NO. 405/2019
FIR NO. 83/2019
PS Jamia Nagar
U/S. 458/398/324 IPC
CNR : DLSE01-006406-2019
THE STATE
VERSUS
Mohd. Aurangzeb @ Sonu
S/O Sh. Siraz Khan
R/O H. No. H-46A, Abul Fazal Enclave,
Shaheen Bagh, New Delhi.
.....Accused
Date of Institution : 13.08.2019
Order reserved on : 06.09.2024
Order delivered on : 07.09.2024
JUDGMENT
1. The accused Mohd. Aurangzeb @ Sonu is facing trial for the offences u/s. 458/398/324 of the Indian Penal Code, 1860 (in short 'IPC').
BRIEF FACTS
2. The case of Prosecution is that on 01.05.2019, on the receipt of DD No. 5A regarding stabbing knife to some person, ASI Kailash Chander along with Ct. Rajesh went to the spot i.e. Digitally SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu signed by GEETANJALI Page no. 1 of 25 GEETANJALI Date:
2024.09.08 23:31:28 +0530 H. No. 158, 4th floor, Gali No. 12, Gaffar Manjil, Jamia Nagar, New Delhi where they met the owner of the house namely Jaffar Ahmad, who produced one boy namely Aurangzeb and one knife from the courtyard and told that he entered his house and attacked his tenant namely Rafique Ansari with knife and he was taken to the hospital by the PCR van. Thereafter he handed over that boy namely Aurangzeb to ASI Kailash Chander and he prepared the sketch memo of the knife and seized the same after sealing with his seal. In the meanwhile on the receipt of DD no.7A ASI Kailash Chander left Ct. Rajesh at the spot and went to Trauma Center AIIMS and took MLC of injured Mohd. Rafique who was declared to be fit for statement by the doctor. He gave a written complaint to ASI Kailash Chander wherein he stated that on 01.05.2019 at about 5.00 am in the morning his brother Taufiq went to mosque for prayers and he was sleeping in the rented accommodation i.e. H. No. 158, 4 th floor, Gali No. 12, Gaffar Manjil, Jamia Nagar, New Delhi; that he woke up on hearing the noises and saw one person with knife in his hand and he was trying to pick his purse and mobile; that when he raised hue and cry, that person tried to ran away and he followed him, that when he reached at the stairs of third floor that person attacked him with the knife due to which he suffered injuries on his shoulders and blood started oozing out; that in the meanwhile landlord namely Jafar Ahmad also reached there and apprehended that person and called at 100 number. On the basis of said complaint, the present FIR was registered. After completion of the investigation, charge-sheet was filed against Digitally signed by GEETANJALI SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. GEETANJALI Vs. Mohd. Aurangzeb @ Sonu Date:
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the accused u/s 458/398/324 IPC.
3. On the basis of charge-sheet so submitted before Ld. Metropolitan Magistrate, cognizance was taken by the Ld. Metropolitan Magistrate and after compliance with the provisions of Section 207 Cr.PC, the case was committed to the Court of Sessions and was assigned to this Court.
CHARGE
4. After hearing arguments on point of charge and finding a prima facie case against accused, requisite charges U/s.
458/398/324 IPC were framed against him to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In support of its case, the prosecution has examined as many as eight witnesses.
5.1 PW-1 ASI Sohan Lal is the police witness and he has deposed that "on 01.05.2019, at about 05:48 AM, he received a wireless message from control room regarding apprehension of accused by the complainant at gali no. 12/13, Gaffar Manjil, 4 th Floor; that he made DD entry regarding the same vide DD No. 5A Ex. PW1/A; that on the same day, he received another call from AIIMS Trauma Center at 07:06 AM regarding admission of injured; that he made entry regarding the same Ex. PW1/B; that both the DDs were handed over to ASI Kailash for necessary action". He was cross-examined by Ld. Defence Counsel. 5.2 PW-2 Sh. Mohd. Rafiq Ansari is the complainant/ victim. His testimony in detail shall be discussed in the later part of judgment. Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:31:54 +0530 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu Page no. 3 of 25 5.3 PW-3 Sh. Zafar Ahmad Siddiqui is the eye witness. His testimony in detail shall be discussed in the later part of judgment.
5.4 PW-4 Sh. Taufiq is the public witness. His testimony in detail shall be discussed in the later part of judgment. 5.5 PW-5 ASI Kailash Chandra is the first IO of the present case and he has deposed that " on 01.05.2019, he was on emergency duty from 08:00 PM to 08:00 AM; that on that day, on receipt of DD No. 5A regarding stabbing knife to some person, he alongwith Ct. Rajesh went to the spot i.e. H. No. 158, 4th floor, gali no. 12, Gaffar Manjil, Jamia Nagar, New Delhi where they met one person namely Jaffar Ahmad, owner of the house who produced one boy and knife to him; that thereafter he interrogated that person who disclosed his name as Aurangzeb S/o Mohd. Siraj; that thereafter Jaffar Ahmad told him that when victim namely Rafique Ansari was sleeping in his room, accused Aurangzeb entered in his room for the purpose of theft; that in the meantime, the victim Rafique Ansari woke up and saw that accused had taken the purse of Rafique Ansari and started going outside; that Rafique Ansari chased him to take his purse and when he reached at stairs and trying to caught hold the accused, accused hit him by knife but victim made alarm and Jaffar Ahmad also reached there and both caught hold the accused; that as the accused hit the Rafique Ansari by knife on his shoulder, blood was oozing from his shoulder; that Jaffar Ahmad called at 100 number and PCR Van came prior to his reaching and took the victim to AIIMS Trauma Center; that thereafter, he got Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:32:02 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu +0530 Page no. 4 of 25 information through DD No. 7A from AIIMS Trauma Center regarding MLC of the victim, thereafter he handed over the accused to Ct. Rajesh and he went to the AIIMS Trauma Center where he collected MLC of the victim and blood sample and concerned doctor has opined victim fit for statement; that thereafter he met with victim and victim has given a written complaint to him which is already Ex. PW2/A; that thereafter, he again came back to the spot and he prepared the sketch of knife in presence of Ct. Rajesh and owner Jaffer Ahmad which is already Ex. PW3/A; that the total length of the knife was 34 cms in which the length of fal was 22.5 cms and length of hatha is 11.5 cms. breadth of fal was 2.5 Cms; that after that he kept the knife in white cloth and seized and sealed with the seal of 'KC';
that he prepared the seizure memo of the knife which is now Ex. PW5/A; that after that he made endorsement on the basis of said complaint which is now Ex. PW5/B; that thereafter he handed over the tehrir to Ct. Rajesh for registration of FIR; that after registration of the FIR, Ct. Rajesh alongwith SI Dinesh came to the spot and further investigation was got conducted by SI Dinesh; that he handed over the document relating to this case, sealed knife and accused to IO SI Dinesh; that he also handed over the blood sample of the victim which was seized by IO/SI Dinesh which is Ex. PW5/C; that after that, IO also interrogated the accused and arrested him vide arrest memo and the same was Ex. PW2/C; that IO also conducted personal search of the accused which was already Ex. PW2/D; that IO also recorded disclosure statement of the accused which is Ex. PW5/D; that IO Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:32:09 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu +0530 Page no. 5 of 25 also seized the blood stained clothes of the complainant vide seizure memo Ex. PW2/B; that IO also seized the blood stained clothes of the accused vide seizure memo Ex. PW5/E; that thereafter they alongwith accused came to the PS; that IO deposited the case property in Malkhana". He was cross- examined by Ld. Defence counsels.
5.6 PW-6 SI Dinesh Kumar is the second IO of the present case and he has deposed that "on 01.05.2019, the present FIR was handed over to him for further investigation; that during investigation, he alongwith Ct. Rajesh went to the spot i.e. H. No. 158, 4th Floor, gali no. 12, Gaffar Manjil, Jamia Nagar, New Delhi where they met ASI Kailash, complainant namely Rafique Ansari, Taufiqe Ansari, one person namely Jaffar Ahmad, owner of the house and accused Aurangzeb; that thereafter he interrogated the accused Aurangzeb, S/o Mohd. Siraj and arrested him vide arrest memo already Ex. PW2/C; that he also conducted personal search of the accused vide memo Ex.
PW2/D; that he also recorded disclosure statement of the accused which is Ex. PW5/D; that he also seized the blood stained clothes of the complainant vide seizure memo Ex. PW2/B; that IO also seized the blood stained clothes of the accused vide seizure memo Ex. PW5/E; that ASI Kailash handed over him blood sample of the accused in sealed condition with the seal of concerned hospital; that he seized the same vide seizure memo Ex. PW5/C; that ASI Kailash also handed over the MLC of the victim, knife, sketch of the knife and seizure memo of the knife to him; that thereafter he recorded the statement of the witnesses Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu 23:32:17 +0530 Page no. 6 of 25 u/s 161 Cr.P.C; that thereafter they alongwith accused came to the PS; that he deposited the case property in Malkhana; that after medical examination, accused was produced before Hon'ble Court and sent to JC; that during investigation, he sent the exhibits to FSL, Rohini through police official; that after completion of investigation, he prepared chargesheet and filed before Hon'ble Court; that after receiving the result of FSL, he prepared supplementary chargesheet and filed before the Hon'ble Court". He was cross-examined by Ld. Defence counsels. 5.7 PW-7 Retd. SI Babu Khan is the police witness and he has deposed that "on 01.05.2019 at about 11:45 AM, Ct. Rajesh came to the PS and handed over the rukka to him prepared by ASI Kailash Chand; that he made his endorsement on the said rukka vide Ex. PW7/1; that he got registered the FIR through computer operator on the basis of said rukka; that after the registration of the FIR, he handed over the rukka and original FIR to the SI Dinesh as the investigation of case was assigned to him and the copy of FIR is Ex. PW7/2 (OSR)". He was cross- examined by Ld. Defence counsels.
5.8 PW-8 Sh. Bhuvnesh Kumar Sharma, Medical Record Technician has deposed that he was deputed by Medical Superintendent to identify the signature of Dr. Shreyas Ashok Shukla, Jr. Resident, Emergency Medicine Department who has now left the services of the AIIMS on the MLC Ex. PW8/1 since he saw him signing in the official course of duty . He was cross- examined by Ld. Defence counsel.
5.9 PW-9 Dr. Dilip has deposed that he has been deputed by Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:32:26 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu +0530 Page no. 7 of 25 Medical Superintendent to prove opinion on the MLC Ex. PW8/1 prepared by Dr. Shreyas Ashok Shukla, Jr. Resident, Emergency Medicine Department in this case who has left the services of the AIIMS; that as per the MLC, injured Mohd. Rafiq sustained injury i.e. laceration over left shoulder 4X3 cms caused by sharp object; that as per the MLC, the nature of injury is simple caused by sharp object. He was cross-examined by Ld. Defence counsel.
STATEMENT OF ACCUSED
6. After completion of prosecution evidence, all the incriminating material was put to the accused under Section 313 Cr.PC. He pleaded innocence and stated that he is innocent and has been falsely implicated in the present case by the complainant in connivance of IO. Though, the accused took the plea of being innocent in his statement u/sec. 313 Cr.P.C. but did not prefer to lead any defence evidence and matter was fixed for final arguments.
ARGUMENTS
7. I have heard the Ld. Addl.P.P. for the State and Ld. Defence Counsels for the accused persons and perused the material on record. Ld. Addl. P.P. has argued that PW-2 Rafique, PW-3 Zafar Ahmad and PW-4 Taufiq have fully supported the case of prosecution against the accused and their testimonies are also corroborated by the complaint, MLC and the seizure memo of the knife; that the police witnesses have also supported the case of prosecution; that the accused was apprehended at the spot; that the knife in question was recovered from his possession; that no substantive improvement and contradiction Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:33:32 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ +0530 Sonu Page no. 8 of 25 are established by the Ld. Defence Counsel during the course of testimonies of the witnesses; that the no motive was established on behalf of the accused that he was falsely implicated in the present case. Therefore it is prayed to this Hon'ble Court that accused be convicted for the offence punishable u/s 458/398/324 IPC.
7.1 Per contra it has been argued by Ld. LAC for accused that there is no mention of any injury to the complainant caused by accused in DD No. 5 A regarding call " chori karta hua chor pakda hai"; that there is no recovery of purse and knife from the accused; that the building in which the offence was committed was constructed upto 4th floor and on each floor, lots of tenants are residing but IO had not made any public witnesses from amongst them; that at the time of incident, wife of injured was present there but she had not called at 100 number; that IO neither cited nor recorded the statement of wife of complainant in any seizure memo; that complainant/ injured has stated in his chief that he had signed all the exhibited documents at the police station; that in the testimony of PW-3 Sh. Zafar Ahmad Siddiqui, he had stated that police obtained his signature at the police station; that PW-5 ASI Kailash Chand has stated that spot was situated in residential area and he has also stated that recovery of purse of complainant was effected in his presence; that IO had not prepared seal handing over memo and he has stated in his testimony that he had only mentioned the house number i.e. 158, Gaffar Manjil in his site plan however he had not shown the floors of the said building where the incident happened. In view Digitally signed by GEETANJALI GEETANJALI Date:2024.09.08
SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar 23:34:02 State. Vs. Mohd. Aurangzeb +0530 @ Sonu Page no. 9 of 25 of the same it has been prayed that accused be acquitted of the offences charged.
ANALYSIS OF EVIDENCE AND FINDINGS
8. I have heard the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons and perused the record.
9. The charge u/s. 458/398/324 IPC has been framed in the present case on the basis of the complaint made by Sh. Mohd. Rafiq Ansari. For the purpose of convenience the relevant sections are reproduced below:
9.1 Section 458: Lurking house-trespass or house -breaking by night after preparation for hurt, assault or wrongful restraint:
whoever commits lurking house-trespass by night or house- breaking by night, having made preparation for causing hurt to any person or assaulting any person or for wrongfully restraining any person or for putting any person in fear of hurt or of assault or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to fourteen year and shall also be liable to fine.
9.2 The point requiring proof are:
(1) That the accused committed lurking house-trespass by night (2) That he did so after having made preparation for:-
(a) causing hurt to any person, or
(b) assaulting any person, or
(c) wrongfully restraining any person, or
(d) putting any person in fear of hurt, or
Digitally
signed by
GEETANJALI
GEETANJALI Date:
2024.09.08
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@ Sonu
Page no. 10 of 25
(e) putting any person in fear of assault, or
(f) putting any person in fear of wrongful
restraint.
9.3 Section 458 IPC speaks about two offenes i.e. lurking
house trespass or house breaking by night. Lurking house trespass is dealt u/s. 444 IPC and house breaking is dealt u/s. 446 IPC. For the sake of convenience relevant sections are reproduced below:-
9.4 Section 444:Lurking house-trespass by night:- Whoever commits lurking house-trespass after sunset and before sunrise is said to commit "lurking-house-trespass by night". 9.5 Lurking house trespass is defined u/s. 443 IPC. It states that "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."
9.6 The necessary ingredients of section 443 IPC are as under:
(i) trespass,
(ii) the trespass being of the special kind designated house-trespass, and
(iii) that trespass being made in surreptitious manner called lurking.
9.7 Section 446:House-breaking by night:- Whoever commits house-breaking after sunset and before sunrise is said to commit Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @23:34:29 Sonu +0530 Page no. 11 of 25 "house-breaking by night".
9.8 The term "house breaking" implies a forcible entry into a house, "to break a house" being a legal phrase used to mean the removal or setting aside with violence and a felonious intent any any part of a house or of the fastenings provided to secure it. The section enumerates six way of breading but if they are examined they will be found to reduce themselves into two main sub-heads:
(i) clause 1-3 being those in which the entry is effected by means of a passage which is not the ordinary means of access to it, and
(ii) the remaining clauses being those in which the entry is effected by the use of force.
9.9 All these clauses however only relate to the mode of ingress and egress which alone converts house-trespass into house-breaking. But the act must to begin with amount to house- trespass that is to say it must be an entry made into any building, tent or vessel with intent to commit an offence or to intimidate, insult or annoy the person in possession, or if the entry was lawful, then the trespasser must illegally stay in the building with that intent. While on the subject of lurking house trespass, it was remarked that, since the lurker commits the trespass by taking care to counsel his presence from the owner, he could not intent to intimidate, insult or annoy him from whom he remains in studied concealment. His only object should then be to commit an offence. Such, however, need not necessarily be the object of the house breaker, whose entry, though forcible may not be clandestine, and who may have forced his way into the house Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu 2024.09.08 Page no. 12 of 25 23:34:46 +0530 merely to overawe and annoy the possessor. 9.10 House trespass is defined u/s. 442 of the IPC. It states that "whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house- trespass".
9.11 The points requiring proof are:-
(1) That the complainant had possession of the property in question.
(2) That such property was a building, tent or vessel used as a human dwelling or any dwelling used as a place for the custody of property.
(3) That the accused entered into such building or having lawfully entered, unlawfully remained there. (4) That he did so with intent to commit an offence or to intimidate, insult or annoy the person in possession.
9.12 Section 398: Attempt to commit robbery or dacoity when armed with deadly weapon: If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. 9.13 The points requiring proof are:-
(1). That the accused was armed.
(2). That the weapon was a deadly one.
(3). That while so armed, he attempted to commit robbery or dacoity.
9.14 Section 392 IPC provides the punishment for robbery and Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb23:34:53 @ Sonu +0530 Page no. 13 of 25 section 390 IPC deals with the offence of robbery. It states that in all robbery there is either theft or extortion and in the given facts and circumstances, there is aggravated form of theft due to actual attempted violence or by causing fear of violence. The point requiring proof are:
I. Where theft is robbery:-
i. That the property in question is movable property;
ii. That it was in possession of a person; iii. That the accused moved it;
iv. That he did so without the consent of the possessor; v. That he did so in order to take it out of his possession;
vi. and with intent to cause wrongful gain to himself or wrongful loss to the possessor.
vii. That the accused caused or attempted to cause death, or hurt or wrongful restraint to any person, or that he attempted to cause or caused fear of instant death or instant hurt or instant wrongful restraint; viii. that he did so voluntarily;
ix. That he did it, in order to commit theft, or in committing theft, or in carrying away or attempting to carry away property obtained by theft.
9.15 Before a person can be convicted for robbery, the intention to commit theft or the commission of theft by him must be established. If that is not established, the appellants are entitled to be acquitted of the offence of robbery.
II. Where extortion is robbery:-
i. that the accused put such person in fear of instant death, hurt or wrongful restraint;
ii. that he was then in the presence of such person; iii. that he did so intentionally;
iv. that he thereby dishonestly induced that person to Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb 2024.09.08 @ Sonu Page no. 14 of 25 23:35:02 +0530 delivery any property etc. 9.16 Section 324 IPC deals with voluntarily causing hurt by dangerous weapons or means. The essential ingredients required to be proved in the case of an offence u/s. 324 IPC are:-
(a) That the accused caused bodily pain, disease or infirmity;
(b) That it was caused to another person;
(c) That it was caused intentionally or with knowledge of its likelihood;
(d) that it was caused with a lethal weapon or with fire, poison or corrosive substance, an explosive or deleterious substance or an animal.
OCULAR EVIDENCE
10. The case of prosecution is that accused armed with knife committed lurking house trespass in night hours in the rented accommodation of the injured and tried to rob the purse and mobile of the complainant. In order to prove its case, the prosecution has examined complainant/injured Sh. Mohd. Rafiq Ansari and owner Sh. Zafar Ahmad Siddiqui who are the eye witnesses of the incident. I now proceed to analyse the testimonies of eye witnesses/injured in the present case. 10.1 The complainant Mohd. Rafique Ansari is the star witness of the case of prosecution and he was examined as PW-2. He has deposed that "he is graduate (B.Com) and he can read and write English and Hindi language; that on 01.05.2019, he was residing with his brother namely Mohd. Taufique Alam on the abovementioned address; that on that day, his brother went to perform Namaz and door was open; that at about 05.00am he Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu 23:35:09 +0530 Page no. 15 of 25 heard some noise from inside the room of his house as he was sleeping in the same room; that he woke up and saw that one person had entered in the room of abovementioned house; that he already taken his mobile phone and was trying to pick up his purse; that in the meanwhile, he shouted and after his shout he ran away from his house after taking his mobile phone; that he chased him and he apprehended him on the IIIrd floor of the same building; that when he apprehended him, he hit him on his left shoulder with knife; that he sustained injury on his left shoulder and blood was oozing out from his left shoulder; that his landlord also reached there after hearing his noise; that he with the help of his landlord Zafar Ahmed apprehended him; that Zafar Ahmed called at 100 number; that police reached there and they apprehended the accused and the mobile phone which was recovered from his possession'. He was extensively cross- examined by Ld. Defence Counsels.
10.2 Sh. Zafar Ahmad Siddiqui, who is the eye witness of the case was examined as PW-3 and he has deposed that " On 01.05.2019, he was present at his house then at about 05:00 AM he heard some commotion which was coming from upstair; that as soon as he heard the commotion he came out of his house and he was going towards upstairs when he was on staircase then he saw somebody was running downstair carrying knife in his hand;
that behind that person who was carrying knife, Rafique who was residing on upstairs of aforesaid his house as tenant was also following the said person; that Rafique was in injured condition and he was having injury mark in his left hand and his clothes Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:36:42 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu +0530 Page no. 16 of 25 were also blood stained; that the person who was running down stair carrying knife was apprehended by him with the help of his tenant Rafique; that the name of the said person was revealed as Aurangzeb; that he called on 100 number and PCR came at the spot; that he and Rafique handed over the accused Aurangzeb to the Police official". He was cross examined by the ld. defence counsel.
10.3 Apart from the complainant and the eye witness, there is one more public witness i.e. Shri Taufique who is the brother of the complainant. He was examined as PW-4 and he has deposed that "on 01.05.2019 around 05:00 AM, he went for praying Namaz in Mosque situated at the distance of 100 metres from his house; that when he came back to his house, he saw that landlord Mr. Zaffar Siddiqui apprehended one person whose name was revealed as Mohd. Aurganzeb (accused); that upon asking, he came to know that while he went for praying Namaz and his younger brother Rafique Ansari was sleeping in a room;
that accused Aurangzeb entered into their house; that his younger brother woke up while accused Aurangzeb was taking mobile phone and purse and his younger brother tried to apprehend him then accused Rafique gave knife blow on his left arm; that he also came to know that meanwhile landlord Zaffar Ahmad reached there and apprehended the accused; that someone already made a call to the police; that police official reached at the spot in his presence and took his brother to AIIMS Trauma Center "
He too was cross examined by Ld. LAC for the accused. 10.4 The crux of the abovesaid testimonies is that accused Digitally signed by GEETANJALI GEETANJALI Date:
SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu 2024.09.08 23:36:56 +0530 Page no. 17 of 25 entered into the rented accommodation of the complainant i.e. H. no. 158, 4th floor, gali no. 12, Gaffar Manjil, Jamia Nagar, New Delhi at about 5.00 a.m. in the morning and he was armed with the knife i.e. deadly weapon and attempted to commit robbery of his purse and mobile. In the words of complainant i.e. PW-1 "that on 01.05.2019 at about 05.00am he heard some noise from inside the room of his house as he was sleeping in the same room; that he woke up and saw that one person had entered in the room of abovementioned house; that he already taken his mobile phone and was trying to pick up his purse." When the complainant noticed accused in his house he shouted for help upon which accused ran away from his house and he was finally apprehended on the third floor of the building. Hearing his noise his landlord namely Zafar Ahmad also reached there. From the said series of events it has been established that the accused entered the house of the complainant with intent to commit an offence i.e. robbery and he was found present in the same and he remained there unlawfully.
10.5 In order to constitute lurking house-trespass, the offender must take some active means to conceal his presence. If mere trespass committed by night does not constitute lurking house-trespass even if the darkness helps the accused to conceal his presence. Concealment of the accused on account of darkness does not convert the house- trespass into lurking house trespass.
In "Buddha Vs. Emperor, (1916) 3 AIR Lahore 425", the Lahore High Court held that in order to constitute lurking house-trespass, the offender must take some active means to conceal his Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:37:10 +0530SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu Page no. 18 of 25 presence. The precaution to conceal house-trespass has to be taken before committing house-trespass. If a person, after committing house-trespass, tries to hide himself on seeing the occupant of the house, it cannot be said that he had, before committing house-trespass, taken any precaution to conceal his act from the owner or occupier of the house in which trespass is committed by him.
10.6 In terms of Section 443 IPC for a person to commit lurking house- trespass, the prosecution not only has to establish house trespass but has also to prove that the accused has taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser. PW-2 i.e. complainant has deposed that "that he woke up and saw that one person had entered in the room of abovementioned house; that he already taken his mobile phone and was trying to pick up his purse; that in the meanwhile, he shouted and after his shout he ran away from his house after taking his mobile phone" . From the said testimony, it is clear that there was no attempt made by the accused to conceal the house-trespass. Since there is no evidence to show that accused had not taken any precaution to conceal the house trespass, so the offence of lurking house trespass is not made out and it will remain the offence of house trespass.
10.7 The testimony of the complainant is corroborated by the testimony of his landlord namely Zafar Ahmad who was examined as PW-3 and he has specifically deposed that " on 01.05.2019, he was present at his house then at about 05:00 AM Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:37:20 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu +0530 Page no. 19 of 25 he heard some commotion which was coming from upstair; that as soon as he heard the commotion he came out of his house and he was going towards upstairs when he was on staircase then he saw somebody was running downstair carrying knife in his hand; that behind that person who was carrying knife, Rafique who was residing on upstair of aforesaid his house as tenant was also following the said person" . He too was cross examined by Ld. Defence counsel but she failed to impeach his credibility. He too answered well all the questions put-forth by the Ld. Defence counsel and the accused has failed to show any circumstance from which it can be said that he has been falsely implicated in the present case out of any previous enmity. 10.8 Regarding the deadly weapon, the complainant has specifically deposed that when he tried to apprehend the accused, he hit him on his shoulder with knife due to which he sustained injuries on his left shoulder and blood started oozing out. The eye witness Zafar Ahmad Siddique too corroborated the testimony of the complainant regarding the said aspect since he has deposed that when he was going upstairs after hearing the commotion, he saw somebody running downstairs carrying knife in his hand and behind that person was Rafique i.e. complainant who was residing upstairs as his tenant and he was in injured condition having injury mark on his left hand and his clothes were also blood stained. No contrary suggestion was given to him during cross examination that the complainant did not suffer any injury. Hence the fact is deemed to be admitted. In view of the same, both the witnesses are on the same page regarding the Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb 23:37:27 @ Sonu +0530 Page no. 20 of 25 incident and how, where and what happened. 10.9 The fact that the complainant suffered injury during the said incident has been proved by the expert witness. PW-8 Sh.
Bhuvnesh Kumar Sharma, Medical Record Technician has proved the signature of Dr. Shreyas Ashok Shukla, Jr. Resident, Emergency Medicine Department who examined the complainant vide MLC Ex. PW8/1 since he had seen him writing and signing in the official course of duty. Though the fact that he had seen the doctor who had prepared the MLC in the present case, writing and signing was rebutted during cross examination but no positive proof has been led to impeach his credibility. Further PW-9 Dr. Dilip has proved opinion on the MLC Ex.PW8/1 prepared by Dr. Shreyas Ashok Shukla, Jr. Resident, Emergency Medicine Department in this case. As per the MLC, injured Mohd. Rafiq sustained injury i.e. laceration over left shoulder 4X3 cms caused by sharp object. During the cross- examination, the doctor has denied suggestion that the injuries caused to the injured were self inflicted. 10.10 Coming to the offence u/s. 324 IPC. PW-1 has specifically deposed that when he chased the accused in order to apprehend him, the accused hit him on his left shoulder with knife due to which he sustained injuries. This has caused bodily pain to the complainant and that pain was caused by the act of the accused. The fact that accused caused said injury with sharp object in order to escape the apprehension is well enough to indicate that he had intention or the knowledge that his said act will cause bodily pain to the complainant.
Digitally signed by GEETANJALIGEETANJALI Date:
2024.09.08 23:37:36 +0530SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu Page no. 21 of 25
11. During course of arguments it was submitted by the Ld. LAC for the accused that there is no mention of any injury to the complainant caused by accused in DD No. 5A regarding call "chori karta hua chor pakda hai". DD no. 5A was registered on the basis of information received via PCR call which is the starting point of the investigation of any offence. During course of investigation the injured was medically examined by the doctor and his MLC was prepared which has confirmed the infliction of injury and nothing credible has come from the side of the accused that the injury was self inflicted injury or that there was no injury caused to the complainant. 11.1 It was further contended that there is no recovery of purse and knife from the accused. The accused has been charged for the offence u/s. 398 IPC which dealt with attempt to commit robbery or dacoity when armed with deadly weapon. Hence the accused has been tried for attempt to commit robbery and not for the commission of the robbery hence there is no question of any recovery of purse. Secondly, the fact that accused was armed with knife at the time when he entered the house of the complainant has been well proved by the testimonies of PW-2 and PW-3 and the knife was seized vide seizure memo Ex.PW5/A which has been well proved by the testimony of PW- 5 i.e. the IO and no contrary suggestion was given to witness that no knife was seized from the accused. 11.2 It was further contended from the side of the accused that the building in which the offence was committed was constructed upto 4th floor and on each floor, lots of tenants Digitally are signed by GEETANJALI GEETANJALI Date:
2024.09.08 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu 23:37:44 Page no. 22 of 25 +0530 residing but IO had not made any public witnesses from amongst them. The present FIR was registered on the complaint of Mohd. Rafique who was examined as PW-2 and he very well explained what happened on the date of alleged incident. Not only that he withstood the rigours of cross examination and accused failed to shake his credibility during cross examination. Further his testimony was well corroborated by the testimony of PW-3 Zafar Ahmad who too has proved himself to be credible witness during cross examination. Their testimonies cannot be discarded merely on the ground that no public persons were joined in the investigation. Secondly, it is a common that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for the accused was not available or accused was not there. Hence the case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of non joining of public witness. (Reliance placed on judgment titled as Appabhai & Anr. Vs. State of Gujarat, IR 1988 SC 696) 11.3 It was further argued that at the time of incident, wife of injured was present there but she had not called at 100 number; that IO neither cited nor recorded the statement of wife of complainant in any seizure memo; that complainant/ injured has stated in his chief that he had signed all the exhibited documents at the police station; that in the testimony of PW-3 Sh. Zafar Ahmad Siddiqui, he had stated that police obtained his signature at the police station; that PW-5 ASI Kailash Chand has Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:37:54 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu +0530 Page no. 23 of 25 stated that spot was situated in residential area and he has also stated that recovery of purse of complainant was effected in his presence; that IO had not prepared seal handing over memo and he has stated in his testimony that he had only mentioned the house number i.e. 158, Gaffar Manjil in his site plan however he had not shown the floors of the said building where the incident happened. However none of the contradictions so indicated above goes to the root of matter or shake the case of prosecution. The accused further failed to indicate any contradiction in the testimony of complainant regarding the allegations made against him and in no way cast any doubt on his testimony. It is well settled that minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter should not ordinarily permit rejection of the evidence as a whole (Reliance placed on the judgment of Hon'ble Supreme Court of India in State of UP vs Krishna Master & Ors, decided on 03/08/2010 in Cr Appeal No. 1180/2004).
12. In view of the aforesaid discussion I conclude that prosecution has successfully established that accused armed with deadly weapon i.e. knife, entered the house of the complainant with intent to commit an offence i.e. robbery and he was found present in the same and he remained there unlawfully. But prosecution has failed to prove that trespass was made in surreptitious manner or that the accused took active means to Digitally signed by GEETANJALI GEETANJALI Date:
2024.09.08 23:38:14 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu +0530 Page no. 24 of 25 conceal his presence at the time of incident. In view of the same, accused Mohd. Auragzeb @ Sonu cannot be convicted for the offence of lurking house trespass after preparation for hurt, assault or wrongful restraint and instead the case falls under section 452 IPC i.e. house trespass after preparation for hurt, assault or wrongful restraint. The prosecution has further successfully established that accused Mohd. Aurangzeb @ Sonu after entering into the house of the complainant attempted to rob his mobile and purse and while doing so he caused injuries on his left shoulder with knife due to which he sustained injuries. In view of the same, accused Mohd. Aurangzeb stands acquitted of charge u/s. 458 IPC and convicted u/s. 452/398/324 IPC.
Typed to the direct dictation and Digitally signed by announced in the open court GEETANJALI GEETANJALI Date:
on this 07th of September, 2024 2024.09.08 23:31:20 +0530 (Geetanjali) Addl. Session Judge (FTC)-03 South East District,Saket Courts New Delhi/07.09.2024 SC No. 405/2019 FIR No. 83/2019 , PS Jamia Nagar State. Vs. Mohd. Aurangzeb @ Sonu Page no. 25 of 25