Delhi District Court
State vs . Sagar on 29 November, 2014
FIR No. 223/14
U/s 451/380/511 IPC
PS Vijay Vihar
State Vs. Sagar
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE: NORTH WEST04, DELHI
FIR No. 223/14
U/s 451/380/511 IPC
PS Vijay Vihar
State Vs. Sagar
Date of Institution of case : 28.04.2014
Date of Judgment : 29.11.2014
JUDGMENT:
a) Date of offence : 27.02.2014 b) Offence complained of : U/s 451/380/511 IPC c) Name of Accused, his : Sagar parentage & residence S/o Sh. Amar Singh R/o A-18, Harsh Dev Park, Budh Vihar, Phase-II, Delhi d) Plea of Accused : Pleaded not guilty e) Final order : Convicted U/s 451 IPC Acquitted u/s 380 read with Section 511 IPC 1/11 FIR No. 223/14 U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar BRIEF FACTS AND REASONS FOR DECISION:-
1. The case of the prosecution is that the accused Sagar was caught red anded by the complainant while the accused had committed house trespass in the house of the complainant with intention to commit theft therein. After the usual investigation based on the aforesaid version of the complainant, charge-sheet u/s 451/380/511 IPC was filed by the investigating agency upon which the Court took cognizance of the offences punishable u/s 451/380/511 IPC. The formalities of Section 207 Cr.P.C were complied and arguments on the charge were thereafter heard. As a prima facie case for offences punishable u/s 451 & u/s 380 read with Section 511 IPC was made out against the accused, charge was accordingly framed against him for the offences punishable under the said sections to which the accused did not plead guilty and claimed trial.
2. In order to bring home the guilt of the accused, the prosecution had to prove the following ingredients of the offences punishable u/s 451, 380 & 511 IPC beyond reasonable doubts:-
a) Section 451 IPC:- That the complainant was in possession of the property, that the property consisted of a building, tent or vessel used as a human dwelling or a building used as a place of worship or for custody of property, that accused entered into or upon such building, tent or vessel and remained there unlawfully with the intention of committing theft.
b) Section 380 IPC :- That the accused removed the movable property out of possession of another person without his consent with dishonest intention and that the property was removed from the building, tent or vessel used as human dwelling or for the custody of the property.2/11 FIR No. 223/14
U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar
c) Section 511 IPC:- That the act complained of amounted to an attempt, that such attempt was to commit an offence with this object, that the offence was punishable with imprisonment and that the accused in such attempt did some act towards commission of such act.
3. To prove its case, prosecution has examined six witnesses.
4. PW-1 Sumit Mohan, S/o Sh. Surender Mohan deposed that on 27.02.2014 at about 11:15 p.m, he heard his mother shouting Chor-Chor, that on hearing the said shouts he rushed outside his room and saw the accused present today in the Court jumping from their first floor and running towards the park, that he chased the accused and apprehended him in the park and that the accused had entered the house with the intention to commit the theft. PW-1 further deposed that he made a call to PCR, that the accused who had suffered injuries on his nose and forehead by jumping from their house was taken to BSA Hospital in PCR where he also accompanied them, that his statement Ex.PW\-2/A was recorded by IO, that the accused was arrested by the IO vide arrest memo Ex. PW-1/B and personally searched vide memo Ex. PW-1/C bearing his signatures and that his supplementary statement was also recorded by the IO.
In the cross examination, the witness firmly testified that the alleged incident took place on about 11:00-11:15 p.m, that they had been living in the said double storeyed house for about 25 years, that there was sufficient light at that time inside and outside the house and that he apprehended the 3/11 FIR No. 223/14 U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar accused when he was hiding himself in the park. The witness denied the suggestions that the accused has been falsely implicated in this case after being beaten up by the public and that the accused was never apprehended by him.
It is apparent from the firm and consistent testimony of the aforesaid witness that the place where the accused had entered was the dwelling house of the complainant, that the person who had entered the house of the complainant was the accused as this witness has correctly identified the alleged accused in the court and had also apprehended the accused from the spot, that the conduct of the accused in jumping from the first floor and running away after hearing the sound of Chor Chor made by the mother of this witness indicates that the accused had entered the dwelling house of the complainant with an intention to commit an offence but not necessarily theft.
5. PW-2 Smt. Asha Rani, W/o Sh. Surender Mohan deposed that on 27.02.2014 at about 11:15 p.m, she saw one boy going towards first floor of their house upon which she shouted chor chor, that on hearing her shouts her son came out and they saw that the accused present today in the Court jumped from their first floor and ran towards the park in front of their house, that her son chased and apprehended the accused in the park and that the accused entered into their house with an intention to commit the theft. PW-2 further deposed that her son called the PCR, that the accused who had 4/11 FIR No. 223/14 U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar suffered some injuries on his nose and forehead while jumping from their house was taken to BSA Hospital where her son also accompanied them, that IO again came to their house on 28.02.2014 who prepared the site plan at her instance and that her statement was thereafter recorded by the IO.
In the cross examination, the witness firmly testified that the alleged incident took place on about 11:00-11:15 p.m, that they had been living in the said double storeyed house for about 25 years, that there was sufficient light at that time inside and outside the house and that her son apprehended the accused when he was hiding himself in the park. The witness denied the suggestions that the accused has been falsely implicated in this case after being beaten up by the public and that the accused was never apprehended by her son.
It is apparent from the firm and consistent testimony of the aforesaid witness that the place where the accused had entered was the dwelling house of the witness, that the person who had entered the house of the witness was the accused as this witness has correctly identified the alleged accused in the court and her son had also apprehended the accused from the spot, that the conduct of the accused in jumping from the first floor and running away after hearing the sound of Chor Chor made by this witness indicates that the accused had entered the dwelling house of the complainant with an intention to commit an offence but not necessarily theft. This witness has corroborated the testimony of PW-1 thereby making the prosecution version consistent and credit-worthy.
5/11 FIR No. 223/14U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar
6. PW-3 Constable Narender Kumar proved the DD No. 104 B dated 27.02.2014 and exhibited the said DD as Ex. PW-3/A.
7. PW-4 Constable Praveen Kumar deposed that after receiving the DD No. 104B he alongwith SI Sonu Ram went to the spot, where they came to know that the accused and complainant had been shifted to BSA Hospital by PCR Vehicle, that they reached at the BSA Hospital where the complainant made the complaint Ex. PW-2/A upon which the IO prepared the tehreer and handed over the same to him for getting the case registered, that he got the case registered and returned to BSA Hospital, that the accused was arrested and personally searched vide arrest and personal search memo Ex. PW-1/B and Ex. PW-1/C bearing his signature at point B, that accused made disclosure statement Ex. PW-1/A bearing his signature at point A, that IO prepared the site plan at the instance of Asha Devi and that statement of Asha Devi and Sumit Mohan were also recorded by the IO.
During the cross examination the witness affirmed that the arrest memo, personal search memo and disclosure statement were got prepared at the BSA Hospital, that they reached at the spot at 12:00(mid night), that from there they went to BSA Hospital and reached there at about 12:15 a.m, that mother of the complainant met them at the spot who informed them that the accused and the complainant had been shifted to the BSA Hospital and firmly denied the suggestion that all the writing work was done while sitting 6/11 FIR No. 223/14 U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar at the PS and that the accused has been falsely implicated in the present case.
8. PW-5 ASI Jai Prakash deposed that he was posted as Duty Officer on 28.09.2014, that he received the rukka sent by SI Sonu Ram through Ct. Praveen on the basis of which he got the FIR No. 223/14 registered, that the FIR was registered by the computer and specially designed system installed at PS, that the true printout of the FIR was exhibited as Ex. PW-5/A(OSR) bearing his signature at point A and that he also issued certificate u/s 65 B of Evidence Act exhibited as Ex. PW-5/A bearing his signature at point A. The firm testimony of this witness proved the due registration of the FIR in the present case.
9. PW-6 SI Sonu Ram deposed that after receiving the DD No. 104B he alongwith Ct. Praveen went to the spot, where they came to know that the accused and complainant had been shifted to BSA Hospital by PCR Vehicle, that they reached at the BSA Hospital where the complainant made the complaint Ex. PW-2/A upon which he prepared the tehreer and handed over the same to Ct. Praveen for getting the case registered, that Ct. Praveen got the case registered and returned to BSA Hospital, that the accused was arrested and personally searched vide arrest and personal search memo Ex. PW-1/B and Ex. PW-1/C bearing his signature at point C, that accused made disclosure statement Ex. PW-1/A bearing his signature at point B, that 7/11 FIR No. 223/14 U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar he prepared the site plan Ex. PW-6/B bearing his signature at point B at the instance of Asha Devi, that he collected the copy of MLC from the hospital and that statements of relevant witnesses were also recorded by the him.
During the cross examination the witness affirmed that the arrest memo, personal search memo and disclosure statement were got prepared at the BSA Hospital, that statement of the complainant was also recorded at the BSA Hospital, that they reached at the spot at 12:00(mid night), that from there they went to BSA Hospital and reached there at about 12:15 a.m, that the mother of the complainant met them at the spot who informed them that the accused and the complainant had been shifted to the BSA Hospital, that they reached at the spot and the BSA Hospital on his personal motorcycle bearing no. HR 12Q 3214, that he recorded the DD entry while leaving PS for attending another case where he received a telephonic call with regard to this case and thereafter he straightway reached at the spot, that he was having investigating officer Kit at the time he reached at the spot, that he prepared the site plan and recorded the supplementary statement as well as statement of Asha Devi at the spot and firmly denied the suggestion that all the writing work was done while sitting at the PS and that the accused has been falsely implicated in the present case.
It is apparent from the testimony of witnesses PW-4 Constable Praveen and PW-6 IO SI Sonu Ram that the prosecution has successfully proved the preparation of the various memos, site plan etc and other steps taken during the investigation of the present case. The testimony of this 8/11 FIR No. 223/14 U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar witness corroborates the testimony of PW-4 Constable Praveen which substantiates the fact that the version of the prosecution is true.
10. Vide order dated 27.10.2014, passed by this Court, prosecution evidence was closed and matter was listed for recording of statement of accused.
11. The Statement of Accused was recorded U/Sec 281 r/w 313 Cr. P.C on 26.11.2014 and all the incriminating circumstances appearing in evidence were put to the accused to which the accused replied that he is innocent and he has been falsely implicated in the present case. Accused chose not to lead defence evidence.
12. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are complete. In reply to this it is argued on behalf of accused that the accused is innocent and he has been falsely im- plicated in the present case.
13. I have heard the Ld. APP for the state as well the defence counsel.
14. It is clear from the testimonies of PW-1 and PW-2 that the accused had entered into the dwelling house of the complainant with the intention to 9/11 FIR No. 223/14 U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar commit an offence and that the accused tried to run away from the spot upon hearing the sound of Chor-Chor made by the PW-2. It indicates that accused committed house tress pass in order to the committing of an of- fence punishable with imprisonment. However, nothing has been brought on record to suggest that the accused had entered the house of the com- plainant with intention to commit the offence of theft only and not any other offence as running away after hearing the word Chor-Chor can not be con- sidered as sufficient indicator of the intention to commit theft and something more was required to be alleged against the accused like he was found try- ing to open the almirahs or was nabbed while trying to remove some mov- able property from the house of the complainant, in order to impute the in- tention to commit theft.
Furthermore, considering the aforesaid fact that no material is avail- able suggesting the intention of the accused to commit theft, it can not be said that the act committed by the accused comes under the definition of an attempt to commit theft in dwelling house punishable under section 380 read with Section 511 IPC as the necessary intention as well as specific act to- wards the commission of or in furtherance of the commission of the offence, presence of which is essential for completion of the said offence punishable u/s 380 read with Section 511 IPC, are missing.
15. In the view of the above discussion, this Court is of the opinion that the prosecution has clearly established beyond reasonable doubt that the 10/11 FIR No. 223/14 U/s 451/380/511 IPC PS Vijay Vihar State Vs. Sagar Accused committed house trespass by entering into the house of the com- plainant in order to commit an offence but the prosecution failed to establish beyond reasonable doubts that the accused had committed the house tress pass with the intention to commit theft or had attempted to commit theft in the dwelling house of the complainant. Consequently, accused is convicted for the offence punishable for the offence U/s 451 IPC and acquitted for the offences punishable u/s 380 read with Section 511 IPC.
16. Let the convict be heard on the point of sentence.
Announced in the Open Court (VIPLAV DABAS)
today i.e on 29.11.1204 MM-04/ NW/ Rohini Courts:DELHI
29.11.2014
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