Delhi District Court
State vs Abdul Jafir on 29 February, 2024
IN THE COURT OF SH. AVIRAL SHUKLA, METROPOLITAN
MAGISTRATE-05, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
CNR No. DLST02-000989-2015
IN THE MATTER OF:
STATE Vs. ABDUL JAFIR
FIR NO. 1856/2015
PS MEHRAULI
JUDGMENT
A) Sl. No. of the case : CR Cases 2033608/2016
B) The date of commission of : 08.07.2015
offence
C) The name of the complainant : Rohit Kumar, S/o Sh. Rajkumar,
R/o A-34, Sanjay Colony Bhati
Mines, New Delhi.
D) The name and address of : Abdul Jafir, S/o Sh. Abdul Malik,
accused R/o Village Naziabad, District
Bijnore, UP.
E) Offence complained of : Section 457/380/511 IPC and
Section 174A IPC
F) The plea of accused : Not Guilty
G) Final Order : Convicted u/s 457/380/511 IPC and
u/s 174A IPC
H) The date of such Order : 29.02.2024
DATE OF INSTITUTION : 07.09.2015
DATE OF FINAL ARGUMENTS : 19.01.2024
DATE OF JUDGMENT : 29.02.2024
FIR No.1856/2015 State Vs. Abdul Jafir Page No. 1 of 18
Digitally signed
by AVIRAL
AVIRAL SHUKLA
SHUKLA Date:
2024.02.29
16:51:17 +0530
BRIEF FACTS
1. The present case has originated from the charge-sheet filed by the State against accused namely Abdul Jafir, S/o Sh. Abdul Malik. As per the charge-sheet, on 08.07.2015 at about 02:05 AM at ICICI Bank ATM site ID-8802, Main Market, Mehrauli, New Delhi i.e. within the jurisdiction of PS Mehrauli, the accused entered into the ATM i.e. ICICI ATM site ID 8802 Main market and tried to steal away the cash from the abovesaid ATM by opening the ATM machine with the help of a hammer and screw driver. Since the accused tried to broke open the locks of ICICI ATM using the aforesaid equipments, it is alleged that he thereby committed the offences punishable u/s 457/380 IPC r/w Section 511 IPC.
2. It is further the case of the prosecution that on 23.10.2019, the accused failed to appear before the Court despite of several summons and warrants and thereafter on 20.08.2019 as specified and required by the order of Court published u/s 82 CrPC duly executed on 22.09.2019 and thereafter, he was declared PO vide order dt. 18.03.2021 and thus, the accused has committed an offence punishable u/s 174A IPC.
3. On the basis of the charge-sheet, the Court took cognizance of the offence on 08.09.2015. The accused namely Abdul Jafir had entered appearance in court on 08.09.2015 itself and he was supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C.
4. The court framed charges against the accused namely Abdul Jafir for offences punishable under Sections 457/380 IPC r/w Section 511 IPC and under FIR No.1856/2015 State Vs. Abdul Jafir Page No. 2 of 18 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.02.29 16:51:41 +0530 Section 174A IPC. Charge was read over and explained to the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In order to prove its case, the prosecution has examined the following witnesses:
(i) PW1 was Rohit Kumar;
(ii) PW2 was Arun Kumar;
(iii) PW-3 was HC Iqbal Singh Rathi;
(iv) PW-4 was Retired SI Mahipal Singh;
(v) PW-5 was SI Vinod Kumar;
(vi) PW-6 was ASI Kamlesh;
(vii) PW-7 was HC Radheyshyam;
(viii) PW-8 was Alok; and
(ix) PW-9 was HC Krishan.
6. PW-1 Rohit Kumar deposed that on 08.07.2015, he was working at Modern VR Security Force Pvt. Ltd. At that time, he was residing at Mehrauli on rent and working as patrolling officer in the above said company. At that time, he was on night duty. He received a call at about 02:00 AM from his head office at Mumbai and they asked him to check the ICICI ATM at Mehrauli. They provided him the site ID after which he alongwith his brother Arun Kumar reached there. He saw that the back room was opened and one person was siting inside the backroom. Thereafter, he came out and closed the shutter of the ATM. He called the PCR. PCR officials came at the spot. Accused was caught and he was found possessing a FIR No.1856/2015 State Vs. Abdul Jafir Page No. 3 of 18 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.02.29 16:51:48 +0530 hammer, screw driver, blade and other items. The police inquired from the accused. He gave his complaint to the police which is Ex. PW1/A. IO prepared the site plan at his instance which is Ex PW1/B. Police recovered all the items from accused vide seizure memo Ex PW1/C.
7. PW-1 Rohit Kumar further deposed that accused was arrested and his arrest memo is Ex PW1/D. Personal search of accused was also conducted and his personal search memo is Ex. PW1/E. The letter issued by MSF security regarding the posting of the witness as patrolling officer is Ex. PW1/F. Witness has correctly identified the accused in Court. Witness also correctly identified the case properties Ex. P-1 (colly).
8. When PW-1 Rohit Kumar was cross-examined by Ld. Counsel for accused, he deposed that he along-with his brother namely Arun went to the place of incident on a motorcycle. When he reached at the spot, only accused was inside the ATM and no other public person was there on the road also. He further deposed that he had seen the accused breaking down the ATM machine. The witness did not remember whether the same lines were deposed by him to the police officers or not in his statement. He deposed that police reached at the spot after about 30 minutes. He stated that he had given his statement to police officers and police officers did not record the statement of any other person in front of him at the spot or in PS. He further deposed that police officials did not record his supplementary statement. The witness denied the remaining suggestions put to him by Ld. Counsel for accused.
9. PW-2 Arun has deposed that on 08.07.2015, he was along with his brother FIR No.1856/2015 State Vs. Abdul Jafir Page No. 4 of 18 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.02.29 16:51:55 +0530 Rohit Kumar. At about 02:00 AM, his brother received one call from his head office i.e. Mumbai and after receiving the call, he along with his brother went to one ICICI ATM with no. 8802 situated in Mehrauli. After reaching there, he saw that one person was inside the ATM room and he was trying to open the ATM machine. After looking at this, his brother namely Rohit had closed the shutter of the ATM room and called the police by dialing 100 number. Police officials had apprehended the accused. Police officials had seized the instruments from the accused vide seizure memo Ex. PW-1/C. Witness has correctly identified the accused in the Court. Witness also identified the case properties Ex. P-1 (Colly).
10. When PW-2 Arun Kumar was cross-examined by Ld. Counsel, he deposed that when his brother received the call, at that time, he was sleeping. After receiving the call, they left the house within ten minutes on one motorcycle, which belonged to his brother but he did not remember the registration number of the motorcycle. He deposed that when they reached at the spot, no public person was present near the ATM machine. Two public persons were there five hundred meters away from ATM machine but after looking at them, the public persons had also ran away.
11. PW-2 further deposed in his cross-examination that when he reached at the spot, accused was sitting inside the ATM room behind the ATM machine and he was having a screw driver in his hand. PW-2 further deposed that police officials reached at the spot after 15-20 minutes and he could not remember exactly as to how many police officials had reached there. He stated that perhaps they were two in number and came in a government PCR vehicle. The witness stated hat the FIR No.1856/2015 State Vs. Abdul Jafir Page No. 5 of 18 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.02.29 16:52:00 +0530 police officials did not record his statement or the statement of any other person in his presence. The witness denied the remaining suggestions put to him by Ld. Counsel for accused.
12. PW-3 HC Iqbal Singh Rathi deposed that on 08.07.2015, he was on night emergency duty with SI Mahipal Singh. SI Mahipal Singh received DD No. 6A and after receiving the same, he alongwith SI Mahipal went to the place of incident that is ICICI Bank ATM Site, Main Market, Mehrauli where they met the complainant Rohit Kumar and his brother Arun Kumar. The witness stated that ID of that ATM site was 8802ICICI. Witness stated that the aforesaid two persons produced one accused who disclosed his name as Md. Jafir and he was having a number of weapons to break the ATM and handed over the same to the custody of the IO.
13. PW-3 has further deposed that the IO had thereafter recorded the statement of the complainant and prepared the rukka on the same and handed it over to him and sent him to the PS for registration of FIR. After registration of FIR, he came back at the place of incident and handed over the copy of FIR and original rukka to the IO as the further investigation was marked to SI Mahipal Singh. During investigation, IO had prepared the site plan, seized the weapons and also arrested the accused and conducted his personal search.
14. PW-3 HC Iqbal Singh Rathi deposed that accused had been taken to AIIMS hospital for medical examination. Accused was produced before the Court and as per the direction of the Court, accused was sent to JC. IO recorded his statement regarding the same. Witness had correctly identified the accused in the court. Witness also identified the case properties Ex. P-1 (Colly).
FIR No.1856/2015 State Vs. Abdul Jafir Page No. 6 of 18 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.02.29 16:52:09 +0530
15. PW-3 was cross-examined by Ld. Counsel for accused where he denied the suggestions that were put to him by Ld. defence counsel. PW-3 further stated that they reached at the spot at about 02:30 AM and he could not remember the exact time which he had spent at the spot. He deposed that it took 30 minutes - 1 hour at the spot. Accused was inside the ATM room. He has deposed that complainant and witness were standing outside. IO recorded his statement in the PS. The witness again stated that the statement was recorded at the spot. He further deposed that IO recorded the statement of complainant in his presence. He deposed that they had gone to the spot in the personal car of the IO. He deposed that he could not tell the make and registration number of the car. He deposed that accused was taken for medical examination in the same car.
16. PW-4 Retd. SI Mahipal Singh has deposed that on 08.07.2015, he received DD No. 6A and after receiving the same, he along with Ct. Iqbal Rathi went to the place of incident that is ICICI Bank ATM, main market, Mehrauli where he met Rohit Kumar and his brother Arun Kumar on the ATM site. Witness has stated that accused was inside the ATM. Thereafter, the accused was taken out from the ATM. He had recorded the statement of the complainant. After recording the same, he had prepared the rukka which is Ex. PW-4/A and handed over the same to Ct. Iqbal Rathi and sent him to PS for registration of FIR. After registration of FIR, Ct. Iqbal came back at the spot and handed over copy of FIR and original rukka to him as further investigation was marked to him.
17. PW-4 has further deposed on the same lines as PW-1 on the preparation of documents by the police team and the further proceedings. Witness had correctly FIR No.1856/2015 State Vs. Abdul Jafir Page No. 7 of 18 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.02.29 16:52:15 +0530 identified the accused in the Court. Witness has also correctly identified the case properties Ex. P-1 (Colly).
18. PW-4 Retired SI Mahipal Singh, in his cross-examination, has deposed that he reached at the spot at about 02:45 AM. He has deposed that except complainant and his brother, there was no public witness at the spot. Accused was sitting inside the ATM room. Complainant and his brother were standing on the front door of the ATM. He spent near about 02.45 hours at the spot. He further deposed that he recorded the statement of the complainant and his brother at the spot. He did not record the statement of any other witnesses except Ct. Iqbal in the PS. He also deposed that accused had been taken for the medical examination on Government vehicle. He could not remember the name of a driver, who was also a police official. The witness denied the remaining suggestions that were put to him by Ld. defence counsel.
19. PW-5 SI Vinod Kumar has deposed that on 01.09.2015, the investigation of the present case was marked to him. He had gone through the file and accused was in JC so he had prepared the chargesheet and filed it before the court. Later on, he had conducted the further investigation of the present case. He had given notice to the ICICI Bank on 04.09.2015 and 30.07.2015 to obtain the CCTV footage of the said ATM but the bank had given the reply that bank cannot provide the video footage of more than 90 days and they only keep the data for three months. The reply is Ex. PW 5/A. He had also sent the notice to Modern VR Security Private Ltd. and they had given the reply for the same which is Ex PW-5/B. After completing the further investigation of the present case, he has filed the FIR No.1856/2015 State Vs. Abdul Jafir Page No. 8 of 18 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.02.29 16:52:22 +0530 supplementary charge-sheet before this Court.
20. PW-5 SI Vinod Kumar, in his cross-examination, has denied the suggestion that he had intentionally not collected the CCTV footage of the said ATM. He denied the suggestion that he did not conduct the investigation properly.
21. PW-6 ASI Kamlesh has deposed that on 26.05.2021, he arrested the accused Abdul Jafir from area of Islam Colony, Mehrauli, Ward no.6. Accused Abdul Jafir was already a proclaimed offender in FIR No. 1856/2015 PS Mehrauli. He prepared kalandra u/s 41.1 (c) CrPC which is Ex. PW6/A. He made the entry no. 73A dated 26.05.2021 PS Saket regarding the proceedings. Accused Abdul Jafir was arrested vide arrest memo Ex PW6/B and personally searched vide memo Ex.PW6/C. After the due formalities, accused was put behind the bars. PW-6 shared the information regarding the arrest of the accused with PS Mehrauli. He placed the copy of the P.O. proceedings alongwith the Kalandra. The copy of the order is Ex PW6/X. Accused Abdul Jafir has been correctly identified by the witness. Witness was duly cross-examined by Ld. Defence Counsel.
22. PW-7 HC Radhey Shyam has deposed that on 24.09.2021, he had received the information/notice regarding filing of the supplementary charge-sheet against Abdul Jafir in respect of the offence punishable u/s 174-A IPC from the Court of Ld. ACMM. After receiving the same, he obtained the copy of the Kalandra from the PO Staff PS Saket i.e. from HC Kamlesh. After receiving the same, he prepared the supplementary charge-sheet against the accused u/s 174-A IPC. Accused was already arrested by the PO Staff under the Kalandra. He recorded the statement of HC Kamlesh and HC Krishan, PS Saket. He placed the DD entry no. 103 dated FIR No.1856/2015 State Vs. Abdul Jafir Page No. 9 of 18 AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA 16:52:27 +0530 Date: 2024.02.29 26.05.2021 regarding the information to PS Mehrauli regarding the apprehension of the accused in Kalandra by PO Staff of PS Saket. On 29.09.2021, he filed the supplementary charge-sheet before the Court. The witness stated that he had not conducted the investigation in respect of the present case. He only followed the instructions of the concerned court. He had not seen the accused during the proceedings. Witness was duly cross-examined by Ld. Defence Counsel.
23. PW-8 Alok has deposed that he was posted at PS Mehrauli as an Assistant of MHC (M) concerned. He brought original register no. 19 in respect of relevant entries of the present case Ex. PW-8/A (OSR). Witness was duly cross-examined by Ld. Defence Counsel.
24. PW-9 HC Krishan has deposed that on 26.05.2021, he along with HC Kamlesh reached at Mehrauli while searching for proclaimed offender. After reaching Mehrauli, they met a secret informer there. HC Kamlesh had conversation with secret informer. After that conversation, HC Kamlesh relieved the secret informer. Thereafter, HC Kamlesh told him that accused was present there at the spot and that they have to arrest the accused. Thereafter, they apprehended the accused and asked about his name and address. After verification of the facts, HC Kamlesh arrested the accused. He signed on the arrest memo of the accused. The arrest memo and the personal search memo which were filed with supplementary charge sheet are Mark 'A' and 'B'. Witness was duly cross-examined by Ld. defence Counsel.
STATEMENT OF ACCUSED & FINAL ARGUMENTS
25. Upon conclusion of prosecution evidence, statement of accused Abdul Jafir FIR No.1856/2015 State Vs. Abdul Jafir Page No. 10 of 18 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.02.29 16:52:33 +0530 was recorded under Section 313 Cr.P.C. in which all incriminating material was put to him. The accused pleaded innocence and claimed to have been falsely implicated. Despite opportunity, accused chose not to lead any evidence in his defence.
26. Thereafter, final arguments were heard. Ld. Counsel for accused has relied upon the inconsistencies and contradictions in the versions provided by the prosecution witnesses to stress upon the point that the prosecution case cannot be relied upon. Ld. Counsel has argued that the accused has already remained in judicial custody since a considerable time period. Ld. Counsel has accordingly prayed that the accused be acquitted and a lenient view be taken against him. On the contrary, Ld. APP for the State has argued that both PW-1 and PW-2 have tendered consistent testimonies and both are independent witnesses of the case. She has vehemently argued that the inconsistencies or contradictions coming forth in the testimonies are minor in nature and do not affect the case of the prosecution. Ld. APP has accordingly prayed for conviction of the accused.
COURT OBSERVATION
27. Accused has been charged with offences under Sections 457/380/511 IPC and Section 174A IPC. At the outset, it is pertinent to note that Section 457 IPC provides for the punishment for the offence of 'lurking house-trespass or house- breaking by night in order to commit offence punishable with imprisonment'. This offence can be more clearly defined by referring to Sections 441, 442 and 445 of IPC which provide for the definitions of 'criminal trespass', 'house-trespass' and 'house-breaking' respectively. The aforesaid provisions are provided herein below FIR No.1856/2015 State Vs. Abdul Jafir Page No. 11 of 18 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.02.29 16:52:40 +0530 for ease of reference-
"441. Criminal trespass.- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy 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 with intent to commit an offence, is said to commit "criminal trespass"."
"442. House trespass.- 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 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"."
"445. House breaking.- a person is said to commit "house- breaking" who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say--
First. - If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.
Secondly. - If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building. Thirdly. - If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened. Fourthly. - If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.
Fifthly. - If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault.
Sixthly.-If he enters or quits by any passage which he knows to FIR No.1856/2015 State Vs. Abdul Jafir Page No. 12 of 18 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.02.29 16:52:47 +0530 have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass"
28. Therefore, to prove the offence alleged under section 457 IPC, prosecution needs to establish that :-
a) the accused committed lurking house trespass (as defined in Section 442 IPC) or house breaking by night (as defined in Section 445 IPC) ;
b) such house-trespass/house-breaking was committed in order to commit an offence punishable with imprisonment which in the present case has been alleged to be theft in a dwelling house.
29. Further, the accused has also been charged with Section 380 IPC i.e. Theft in dwelling house. The aforesaid provision is reproduced herein below for ease of reference -
"380. Theft in dwelling house.- Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Theft has been defined under section 378 IPC as follows:
"378. Theft. Whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft."
30. The aforesaid offences i.e. offence u/s 457 IPC and u/s 380 IPC are alleged in consonance with the offence of 'attempt' that is provided for u/s 511 IPC. Section 511 IPC is provided below hereunder-
FIR No.1856/2015 State Vs. Abdul Jafir Page No. 13 of 18 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.02.29 16:52:54 +0530 "511.- Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment-Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both".
31. The very inception of this case is PW-1 / complainant Rohit Kumar who was working as 'Patrolling Officer' for the Modern VR Security Force (India) Pvt. Ltd. that is a private company which provides security services at various ATMs of ICICI Bank. The authorization letter / declaration letter issued by the aforesaid company has been placed on record and duly exhibited as Ex. PW-1/F. The aforesaid document has also been admitted by the accused as Ex. A5. The prosecution has accordingly duly proved that PW-1 / Rohit Kumar was working as a patrolling officer with Modern VR Security Force (India) Pvt. Ltd.
32. The original complaint of PW1 / complainant has been placed on record as Ex. PW-1/A. His testimony was rendered before the court on 29.09.2021 wherein he has reiterated the contents of the original tehrir / Ex. PW-1/A. He has confirmed that a call was received from his head office at 02.00 AM on 08.07.2015, pursuant to which he and his brother went to the ICICI ATM bearing no. 8802 that is situated at the Main Market, Mehrauli. The accused was found in the 'backroom' of the ATM which was opened. PW-1 closed the shutter of the ATM and called the PCR officers. When the police officers came at the spot, the accused person was found FIR No.1856/2015 State Vs. Abdul Jafir Page No. 14 of 18 sitting inside the ATM room in possession of a hammer, screw driver, blade and other items.
33. The version of PW-1 / complainant is corroborated by PW-1 Sh. Arun Kumar that is the brother of the complainant who accompanied the complainant. There is no material contradiction that is forthcoming in the testimony of PW-2 which may create a doubt on the version of the complainant / PW1. Further, PW3 / HC Iqbal and PW4 i.e. SI Mahipal were the police officers who came at the spot on receiving the PCR call. The aforesaid witnesses have also corroborated the version of the complainant and further bolstered the case of the prosecution.
34. The MHC (M) produced the equipments of crime i.e. iron hammer, screw driver, jammer/ plaz, chheni, cutter and one small knife. The same were shown to witnesses PW-1 / complainant and were correctly identified by the complainant. The case property was exhibited as Ex. P1 (Colly). It is further noted that the accused has been correctly identified by all the prosecution witnesses i.e. PW-1 / Rohit Kumar, PW-2 / Arun Kumar, PW-3 / HC Iqbal and PW-4 i.e. SI Mahipal who were present at the site of the crime i.e. ICICI Bank ATM on 08.07.2015.
35. In the cross-examination of PW-1 / Rohit Kumar, it can be clearly noted that PW1 has stated the following : " I had seen the accused breaking down the ATM machine." . The aforesaid statement is further corroborated by the statement made by PW2 Arun Kumar where he stated : " After reaching there, I saw that one person was inside the ATM room and he was trying to open the ATM machine. After looking at this, my brother namely Rohit had closed the shutter of the ATM room and called the police by dialling 100 number." . Hence, it has been duly proved that FIR No.1856/2015 State Vs. Abdul Jafir Page No. 15 of 18 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.02.29 16:53:00 +0530 the accused was attempting to open the ATM machine using his equipments for the purpose of taking away the cash stored in the ATM machine.
36. The aforesaid testimonies of independent witnesses i.e. PW-1 and PW-2 along-with the testimonies of the police witnesses i.e. PW-3 and PW-4 accordingly proves that the accused had entered the ATM machine bearing no. 8802 situated at the Main market, Mehrauli and was attempting to break open the ATM machine using the hammer, screw driver and other equipments. The ATM machine room is a place used for custody of property i.e. cash and thus, the same falls within the definition of 'house' for the purpose of Sections 442, 445, 446 and 457 of the IPC. The ATM machine room is also a place that is a 'dwelling house' for the purpose of Section 380 IPC as it is being used for the safe keeping and custody of property. The accused did the aforesaid act at around 02.00 AM in the night of 08.07.2015 i.e. after sunset and before sunrise. Accordingly, the accused was attempting to commit theft in a dwelling house and house-breaking by night. The accused is accordingly convicted for the offences u/s 457/380/511 IPC.
37. So far as the offence under Section 174A IPC is concerned, it is noted that the accused was appearing before the Court till the date 27.03.2018. The accused failed to appear before the court on 04.07.2018 and BWs were issued against him through the DCP. On 31.07.2018, Ld. LAC for the accused appeared before the Court and submitted that he does not have any intimation regarding the accused. Thereafter, NBWs were issued against the accused repeatedly but the accused failed to appear before the Court. When NBWs were received back as unexecuted, process u/s 82 CrPC was issued against the accused.
FIR No.1856/2015 State Vs. Abdul Jafir Page No. 16 of 18 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.02.29 16:53:07 +0530
38. The process u/s 82 CrPC was received back as executed by this Court. Perusal of the statement of the process server i.e. Ct. Mahipal reveals that process has been executed at Village Najibabad, District Bijnour. It is noted that address of the accused has been provided under coloum no. 11 of the charge-sheet and the same pertains to District Bijnour, UP. When the process server was unable to trace the accused at his address, a copy was pasted at the Railway PS, Najibabad, Bijnour. The munadi was carried out and another copy was pasted at the notice board of the Court.
39. It is noted that the accused was arrested by PW-6 ASI Kamlesh from the area of Islam Colony, Mehrauli. Thereafter, a kalandra was prepared which is exhibited as Ex. PW-6/A. It is accordingly noted that the accused was appearing before the Court till 27.03.2018. He stopped appearing before the Court thereafter. He was very well aware of the proceedings before this Court but still failed to appear. It is noted that Ld. LAC for accused continued to appear before the Court. However, the accused did not bother to contact Ld. LAC for finding out the next date of hearing. Further, despite of the execution of process u/s 82 CrPC, the accused failed to appear at the specified place i.e. the Court on the specified time as required by the proclamation. The accused is accordingly convicted of the offence u/s 174A IPC.
40. Let the accused be heard on the quantum of sentence on NDOH.
AVIRAL Digitally signed by
AVIRAL SHUKLA
SHUKLA 16:53:15 +0530
Date: 2024.02.29
Announced in Open Court (AVIRAL SHUKLA)
on 29.02.2024 MM-05, South District/29.02.2024
FIR No.1856/2015 State Vs. Abdul Jafir Page No. 17 of 18
Certified that this judgment contains 18 pages and bears my signatures at each page.
Digitally signedAVIRAL by AVIRAL SHUKLA SHUKLA 16:53:22 Date: 2024.02.29 +0530 (AVIRAL SHUKLA) MM-05, South District/29.02.2024 FIR No.1856/2015 State Vs. Abdul Jafir Page No. 18 of 18