Delhi District Court
State vs . Raja Nepali on 14 July, 2022
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN
MAGISTRATE-05, SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. 439/21
PS. Madhu Vihar
U/s 380, 451 & 511 IPC
State Vs. Raja Nepali
JUDGMENT
A. SL. NO. OF THE CASE : 19/22
B. DATE OF INSTITUTION : 29.12.2021
C. DATE OF OFFENCE : 01.12.2021
D. NAME OF THE : Sh. Anoop Kumar Sinha
COMPLAINANT S/o Sh. Ashok Kumar Sinha
E. NAME OF THE ACCUSED : Raja Nepali, S/o Smt. Kalpana
F. OFFENCE COMPLAINED OF : u/s 380, 451 & 511 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Conviction
I. DATE OF FINAL ORDER : 14.07.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Present accused is produced before the court to stand trial for the offence punishable u/s 380, 451 & 511 of Indian Penal Code, 1860.
2. In brief, facts of the case as per the prosecution are that on 01.12.2021 upon receiving the DD no. 30A regarding theft, IO SI Parkash Vir alongwith Ct. Manoj reached at the spot i.e. Indian Overseas Bank, IP Extension, Madhu Vihar. At the spot they met with complainant Anup Kumar Sinha S/o Ashok Kumar Sinha, who gave his written complaint wherein he inter alia stated that he works in Overseas Bank as Branch Manager and on 01.12.2021 at about 09.45 AM. Complainant stated that when he reached at the first floor of the bank from where FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 1 of 17 he went to the second floor of the said bank and saw that one boy after hearing complainant's voice, hided himself in the store room. It is alleged that the complainant asked him to come out but he did not come out. It is further alleged that with the help of bank staff, complainant apprehended the accused who disclosed his name as Raja S/o Sh. Sushil Kumar. It is further alleged that when complainant checked the CCTV footage, the accused was seen entering the cabin of the complainant and was seen checking the drawer with the intention of theft, in which nothing important was kept and no article was stolen by the accused.
3. Upon the said complainant, IO got the FIR registered under section 380 & 511 of IPC. Further IO conducted the investigation, arrested the accused vide arrest memo Ex. PW-1/B and informed her mother Smt. Kalpana Devi about his arrest. IO got conducted the medical examination/MLC of the accused and thereafter prepared the charge-sheet and filed the same in the court.
4. Accused appeared before the court on 29.12.2021 and a copy of charge sheet was supplied to him as per section 207 Cr.P.C. Accused Raja Nepali was charged for the offences punishable u/s 380, 451 & 511 IPC by this court on 10.05.2022 to which he pleaded not guilty and claimed trial. As per section 294 Cr.P.C., accused admitted the FIR, and accordingly, witness at serial no. 2, i.e., duty officer/ HC Leela Dhar was dropped from the list of witnesses by this Court vide order dated 10.05.2022.
PROSECUTION'S EVIDENCE:
5. In order to substantiate its case, the prosecution has examined following witnesses:
5.1 PW-1/ Sh. Anup Kumar Sinha deposed that on 01.12.2021, he was posted at Indian Overseas Bank, IP Extn.
Branch as Branch Head and on that day at about 09.45 AM, he FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 2 of 17 reached at the bank at the first floor firstly (Indian Overseas bank occupies first floor and second floor) and he was checking the attendance of the staff members and instructing their assigned work. He further deposed that thereafter he reached at the second floor and he saw a boy who was roaming around in the room and when the accused saw him, he hided himself in the store room situated at the 2nd floor. He further deposed that thereafter, he had informed the staff members who were sitting at the first floor and with their help he had apprehended the accused. Thereafter, one of his staff member namely Vipul had called to the police. He further deposed that after 10-15 minutes, police PCR van had reached to the spot and took the accused and Vipul alongwith them.
He further deposed that in the meantime, he was checking CCTV footage, in which he had seen that that boy/accused had entered into his cabin and thereafter he came out from his cabin and he was checking the drawers of the desk, which were kept outside the cabin. He further deposed that thereafter he had received a call from Madhu Vihar police station and they had asked him to come to the PS. He further deposed that thereafter, he reached to the PS Madhu Vihar and came to know that the name of the accused was Raja and he prepared a written complaint against the accused Ex. PW-1/A, and got the FIR registered. He further deposed that thereafter, police officials had arrested the accused and taken his signature upon it Ex. PW- 1/B. PW-1 during his testimony correctly identified the accused present in the court.
PW-1 was cross-examined at length by Ld. LAC for the accused FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 3 of 17 wherein inter alia he stated that firstly, he had reached to the first floor to assign work to his staff members as he was the branch manager over there and thereafter, he stepped into the second floor as his assigned cabin was situated at the second floor. He PW-1 further stated that when first time he saw the accused, he was just roaming around and he had not seen him committing act of stealing. Witness stated voluntarily that he had seen the accused opening the drawers of the desk kept outside the cabin in the CCTV footage. He further stated that there is no security guard appointed for their bank branch and there is one CCTV camera installed outside the branch. He stated that the accused did not have any account in their branch. He further stated that the PCR call was made at about 10.00 AM. He stated that nothing was stolen from those drawers where the accused was searching and he stated that in those drawers of the desk, some paper documents were kept only and at the time of the incident accused was carrying a mask but he was not wearing it.
5.2 PW-2 IO/SI Prakash deposed that on 01.12.2021, he received DD no. 30A and thereafter he alongwith Ct. Manoj reached at IP Extension, Overseas Bank, Pankaj Plaza Market where he met manager Sh. Anoop Singh and told him that one person came inside the bank and when Manager told him to come out he did come out of the bank and he hided himself in store room. PW-1 further stated that he was told by complainant that accused tried to commit theft and It was captured in CCTV camera. He further deposed that thereafter complaint was given by Sh. Anoop Singh and he also handed over the accused Raja Nepali to him. He further deposed that he had sent Ct. Manoj Kumar to register the FIR by handing over him tehrir Ex. PW-1/A and Ct. Manoj came to the spot alongwith original Tehrir and FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 4 of 17 copy of FIR and handed over to him. He further deposed that thereafter, he interrogated the accused and thereafter, he arrested the accused vide arrest memo Ex. PW-1/B and he prepared the site plan Ex. PW-2/A. He further deposed that he personally searched the accused vide personal search memo Ex. PW-1/C. PW-2 during his testimony correctly identified the accused present in the court.
PW-2 was cross-examined by Ld. LAC for the accused wherein inter alia he stated that he had reached the spot i.e. Overseas bank at about 09.45AM and he received the DD entry at the PS at about 09.30AM. Again said 09.15AM. He stated that he did not see the accused committing the offence of theft. He further stated that the manager/complainant had given a written complaint regarding the offence of theft and he sent Ct. Manoj for registration of FIR at about 10.30 AM, he reached the spot after registration of FIR after 11.30AM. He stated that no article was recovered during the personal search from the accused and they had conducted the MLC of the accused after arrest. He further stated that he does not remember the time when they reached at the PS after arresting the accused. He stated that the accused could be seen opening the drawer of one table in the bank in the CCTV footage.
5.3 PW-3/HC Manoj Kumar deposed that on 01.12.2021, he alongwith SI Prakash Vir went to Overseas Bank, IP Extn. Madhu Vihar, where they met complainant Sh. Anoop Kumar Sinha and told them that he had caught a person, who was trying to commit theft. He further deposed that thereafter tehrir FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 5 of 17 was handed over to him by IO SI Prakash Vir and he came to PS alongwith tehrir and thereafter, FIR was lodged and he came back alongwith tehrir and copy of FIR to the spot. He further deposed that thereafter they had arrested the accused vide arrest memo Ex. PW-1/B. He further deposed that accused was personally searched in his presence vide personal search memo Ex. PW-1/C and accused was medically examined and thereafter he was taken to Mandoli jail. PW-3 during his testimony correctly identified the accused present in the court.
PW-3 was cross-examined by Ld. LAC for the accused wherein inter alia he stated that he reached the bank at about 09.45AM and the accused was already apprehended by the police when he reached the spot. He further deposed that he left the spot at about 10.30AM for registration of FIR and returned to the spot after about 1 hour. He further deposed that no article were stolen by the accused from the bank. He deposed that they reached the PS after arresting the accused at about 12.00 noon and no article was recovered from personal search of the accused.
6. After completion of prosecution evidence, statement of accused Raja Nepali u/s 313 Cr.P.C. was recorded on 10.06.2022, wherein accused stated that he was under the influence of alcohol and he entered the bank and he did not commit any theft. Accused chose not to lead any defense evidence and the final arguments were heard from both the sides.
ARGUMENTS ON BEHALF OF THE PROSECUTION AND DEFENCE:
7. It has been argued on behalf of the accused by Ld. LAC that there is no recovery from the accused person and the prosecution has failed to prove the charges leveled against the accused. Ld. LAC has further argued that admittedly FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 6 of 17 the accused was not found in possession of any stolen property and prosecution has failed to prove that he has committed any offence. Ld. LAC for the accused further argued that the accused has been falsely implicated in the present case and no offence has been committed by the accused.
8. On the other hand, it was argued by the Ld. APP for the prosecution that prosecution has established the guilt of the accused beyond reasonable doubt especially through the evidence of the complainant/PW-1. She has further argued that the prosecution has been able to establish that the accused has committed house trespass and he attempted to commit theft and accordingly, he has committed offences punishable under sections 451, 380 r/w 511 IPC.
FINDINGS WITH REASONS:
9. Arguments were heard at length from both the sides and the case file has been carefully perused. Briefly stated, it is the case of the prosecution that on 01.12.2021, when PW-1 Sh. Anoop Sinha, Branch Manager of Indian Overseas Bank, IP Extn. reached the second floor of the bank at about 09.45 AM, he saw the accused roaming around in the bank and thereafter he hided himself in the store room. Prosecution has further alleged that thereafter with the help of staff members of the bank, the accused was apprehended and police took the accused to the police station.
10. Considering the allegations of the prosecution and the material available on record, the accused was charged for offences punishable under Section 451, 380 r/w 511 IPC by this Court vide order dated 10.05.2022. Accordingly, the accused had faced trial for offence of commiting house-trespass with the intention to commit offence of theft and also attempted to commit the offence of theft in the bank.
FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 7 of 1711. It is a settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is also well settled that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
12. At this stage, it is relevant to understand that the offence of theft in a dwelling house, which is made punishable under section 380 IPC, reads as under:-
"S 380. Theft in dwelling house, etc.- 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."
Thus, section 380 IPC provides for an aggravated form of punishment if the offence of theft, which has been defined u/s 378 IPC, is committed inside a building used for dwelling or for custody of property. For the offence to be made punishable u/s 380 IPC, it is essential that the theft is committed inside a building, tent or vessel as prescribed under the said provision. It is pertinent to note that section 378 IPC which defines offence of 'theft' provides that when a person dishonestly takes any moveable property out of possession of any person without that person's consent, is said to have committed the offence of theft. Thus, the prosecution has invoked section 380 IPC as the allegation is that the accused attempted to commit theft in the bank which is in fact, used for custody of valuable properties.
FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 8 of 1713. Section 511 IPC inter alia provides that attempt to commit an offence which is punishable with imprisonment under the IPC shall also be punishable with imprisonment for a term which may extent to one-half of the longest term of imprisonment provided for that offence. The accused in the present case has admittedly failed to take away any movable property out of the bank premises and the PW-1 has alleged that he saw in the CCTV footage that the accused had opened drawers with the intention to commit theft, however since nothing was kept therein, theft could not be successfully committed by him.
14. Accused has also faced trial for the offence under section 451 IPC which is reproduced hereinafter:-
"S. 451. House trespass in order to commit offence punishable with imprisonment.- whoever commits house trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years."
The offence of criminal tres-pass is defined under 441 IPC and it includes entering into the property in the possession of another with the intention to commit an offence. The offence of house trespass is defined u/s 442 IPC which inter alia provides that criminal tres-pass becomes a house tres-pass when it is committed in any building, tent or vessel used as a human dwelling or as a place of worship or as a place for custody of property. Section 451 IPC is invoked against the accused as the prosecution has alleged that the accused has committed trespass inside the bank with the intent to commit theft.
15. The allegation of the prosecution in the present case is that the accused committed trespass and illegally entered the Indian Overseas Bank at 01.12.2021, at about 09.45 AM, with the intention to commit offence of theft. It is alleged that before any offence could have been committed by the accused, PW-
FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 9 of 171/Complainant apprehended the accused with the help of the other staff members of the bank and handed him over to the police. Accordingly, the entire case of the prosecution is based upon the fact that accused had entered the bank illegally with the intent to commit offence of theft in a dwelling house used for custody of property and accordingly prosecution has invoked section 380 r/w 511 IPC and house tres-pass with the intent to commit theft punishable under section 451 IPC.
16. At this stage, it becomes relevant to scrutinize the testimony of prime prosecution witness i.e. the complainant/PW-1. In his testimony recorded on 26.05.2022, complainant has inter alia deposed that he saw the accused was roaming around the room and he hided himself in the store room on the second floor of the bank. Upon seeing the same, PW-1 informed the staff members and with their help, he apprehended the accused and police was called who then took away the accused. PW-1 has further deposed that he saw the CCTV footage wherein it was disclosed that accused entered into the cabin of the Branch Manager and he was checking the drawers of the desk located inside the said bank.
17. It is relevant to note here that no CCTV footage has been placed on record by the IO/Investigative agency and no such footage/photographs/videos has been placed or proved on record by the prosecution throughout the trial. Despite, the deposition of PW-1 that the accused could be seen entering into the cabin and checking the drawers of the desk which could have been proved to be the most incriminating evidence, yet the prosecution did not take any steps to bring forth such evidence on record. Such evidence could have gone a long way in establishing the guilt of the accused for which he has been charged u/s 380 r/w 511 IPC. In the absence of such CCTV footage, the only evidence against the accused in the present case is the testimony of PW-1/complainant to the effect that the accused was seen roaming in the bank and when he saw the complainant calling him, he hided himself in the store room situated on the second floor of the bank.
FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 10 of 1718. An attempt to commit an offence is one step short of actual commission of offence. It is well settled that attempt is made punishable by law because every attempt even though it falls short of actual commission and major injury to the victim, yet it creates injury in the form of an alarm to the victim. Even otherwise, while committing of attempt of theft, the moral guilt of the offender is the same if he would have otherwise succeeded. Only because the injury is not as much in case of an attempt, only half the punishment of actual commission has been provided under the law. It has been well settled that attempt to commit an offence is set to begin when the preparation is complete and the offender does something with the intention of committing the offence and which is a step towards actual commission of the offence. The moment when the offender commences the relevant act with the necessary intention and fails to achieve the intended results, the offence of attempt to commit the offence is complete and the accused is therefore liable to be convicted under section 511 IPC. However, comprehensive perusal of the testimonies of the witnesses led on record in the present case would reveal that the prosecution has not brought forth any evidence to establish that the accused was found to be attempting to commit the offence of theft for which he charged u/s 380 r/w 511 IPC.
19. At this juncture, it is relevant to reproduce the illustrations provided under section 511 IPC both of which pertains to the offence of theft. The said illustrations are listed below as follows:
(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section.FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 11 of 17
Bare perusal of both the aforesaid illustrations would show that the offence of attempt is complete when the offender actively does an act towards the actual commission of the offence after making necessary preparations for the same. Therefore, attempt is when the offence is not actually committed and offender fails to achieve the intended outcome despite his efforts. Attempt is thus the penultimate stage towards the commission of the offence which however does not match the intended objective of the offender.
20. Reverting back to the facts of the present case as already discussed, the prosecution has miserably failed to bring any evidence on record to establish the offence of attempt to commit theft on the part of the accused. The only allegation is that accused was found on the second floor of the bank without any justification and he hided himself when PW-1/Complainant tried to catch hold of him. PW- 1/Complainant i.e. the main prosecution witness has not even alleged that he has witnessed the accused trying to commit theft by opening the drawers or by trying to dishonestly take away any movable property of the bank. In fact, during his deposition, PW-1 has alleged that he saw the accused trying to commit theft in the CCTV footage of the bank after the police caught hold of the accused, however, the prosecution has, for reasons best known to itself, failed to bring on record any such footage despite its availability with the complainant. Therefore, in the absence of any evidence regarding attempt of commission of theft, the court cannot convict the accused for offences punishable u/s 380 r/w 511 IPC. Accordingly, the accused deserves to be acquitted for the offences punishable under section 380 r/w 511 IPC.
21. Even though, Ld. Counsel for defence has not made any argument regarding the contradictions in the testimonies of the prosecution's witnesses, yet perusal of the file would reveal certain contradictions which shall be dealt with. It has been noticed that the there are certain discrepancies pertaining to the time at which the police officials reached the spot i.e. bank in question and time when the police received the information regarding the present offence. Further, there is FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 12 of 17 minor variation regarding the place where the statement of the complainant/bank branch manager was recorded as PW-1 has deposed that he was called by the police at the police station where his statement was recorded whereas, PW-2 and PW-3 had deposed that the complaint was given by the complainant to IO at the spot after which the FIR was registered. It is trite law that the court is required to sift the chaff from the grain to ascertain the truth. The court can always ignore minor variations and trivial contradictions and omissions if there is otherwise sufficient evidence on record pointing towards the guilt of the accused. Reliance is placed upon the observations of the Hon'ble Supreme Court in "Bhagwan Jagannath Markad and others Vs. State of Maharashtra" reported in [(2016) 10 SCC 537], which are as follows:
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram v.State of Haryana, (1999) 9 SCC 525, pp. 532-35, paras 9-13 : 2000 SCC (Cri) 222] . Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 13 of 17 implicated. Mechanical rejection of evidence even of a "partisan"
or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, pp. 392-93, para 15 : 2003 SCC (Cri) 32] . On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness."
In the opinion of this court, the aforesaid variations which have been revealed after careful reading of the depositions are minor in nature and are not per se sufficient to disbelieve the entire testimony of the witnesses. In the opinion of this court, such variation does not shake the basic foundation of the present case and do not go to the root of the matter.
22. The accused has also been charged for the offence punishable under section 451 IPC which provides punishment for house tres-pass in order to commit an offence punishable with imprisonment. The said provision also provides for aggravated form of punishment if the offence intended to be committed is theft. As has been elaborated above, the offence of criminal tres- pass is when one person enters into a property in possession of another with the intention to commit an offence. When such tres-pass is made in a building, tent or vessel used for human dwelling or as a place of worship or as a place for custody of property, it becomes house tres-pass as defined under section 442 IPC. Therefore, to bring home the guilt of section 451 IPC, it is essential upon the prosecution to prove that the accused entered the bank with the intent to commit the offence of theft.
23. Perusal of section 441 r/w 451 IPC, reveals that it is essential for the prosecution to prove the intent of the accused while such unauthorised entry is FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 14 of 17 made in the building/bank. Unless the "intention" referred in section 441 of IPC is proved, no offence of criminal tres-pass can be said to have been committed. It has been well settled that the intention of the offender cannot be proved by any direct or circumstantial evidence and the same has to be gathered from the surrounding circumstances of a particular case. The court is required to consider the totality of facts and circumstances in order to ascertain the intent of the accused.
24. The offence u/s 451 IPC pertains to house tres-pass in order to commit an offence punishable with imprisonment. Thus, the court is required to form an opinion as to whether the house trespass was made with the intent to commit an offence punishable with imprisonment. Such intent of the accused can only be gathered from the facts and circumstances of the case and the mindset of the accused cannot be proved by the prosecution by any direct evidence. In the present case, it is significant to note at the cost of repetition that the accused hided himself in the store room of the bank located at the second floor when the complainant/PW-1 saw him roaming around.
25. The very fact that the accused was found inside the bank premises at 09.45 AM on the second floor of the building without any justifiable reason, per se shows that the mens rea of the accused was to commit an offence. Cross- examination of PW-1 conducted by Ld. LAC has revealed that accused was not holding any bank account in the said bank. The mens rea in such cases is required to be gathered from the facts and circumstances of the case and the surrounding evidence which has been established on record by the prosecution. It is common knowledge that bank is a place where valuable properties are kept and it is not unknown that many offenders keep an eye out on the bank and its officials to make illegal gains and for planning to commit an offence. The circumstances under which the accused was found inside the bank are quite suspicious. He was found there in the morning hours when there was nobody else present on the second floor where the Manger's cabin etc. was located and then FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 15 of 17 he tried to hide himself in the store room, would only show that the intention of the accused while entering the said bank was to commit the offence of theft. However, the accused failed to give effect to such mens rea and did not succeed in committing the offence of theft. Be that as it may, the evidence led on record has established beyond reasonable doubt that the accused had entered the bank i.e. building used for custody of property with the intent to commit an offence of theft and he unlawfully remained there by trying to hide after PW-1 saw him on the second floor of the bank.
26. In the present case, the accused in his statement recorded under section 313 Cr. P.C. has admitted that he had entered the bank under the influence of alcohol. It is trite law that the examination of accused under section 313 Cr. P.C is not a mere formality and even though the said examination cannot be treated as a substantive piece of evidence, yet it can be used for appreciating the evidence led by the prosecution. The court is not required to completely ignore the statement of the accused recorded under section 313 Cr.P.C. and even though the same may not be sacrosanct but it certainly deserves some consideration. The accused has however failed to give any reason or purpose of his entrance inside the bank despite admitting that he entered the bank. The defence has also not led any evidence specifically to justify such entrance and subsequent hiding in the bank. It had become more relevant in view of the evidence led by PW-1 who had deposed regarding his illegal entry. In the considered opinion of this court, it was incumbent upon the accused himself to justify the reasons for his such entrance as the prosecution had already discharged its burden to prove criminal trespass on his part. The accused was required to prove his justification for such entrance as it was specifically in his knowledge, in terms of section 106 of the Indian Evidence Act, 1872.
27. In view of the aforesaid discussion this court has reached to the conclusion that the accused had committed tres-pass by entering the bank on 01.12.2021, FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 16 of 17 with the intention to commit the offence of theft. Thus, the accused has committed the offence under section 451 IPC and is liable to be convicted.
Accordingly, in view of the findings given above, the accused Raja Nepali is hereby convicted for the offence punishable u/s 451 IPC.
28. Copy of this judgment be given free of cost to the convict against receiving.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.07.14
17:29:36 -0300
ANNOUNCED IN OPEN COURT (Bharat Aggarwal)
Today i.e. 14.07.2022 MM-05/ SHD, Karkardooma Courts/Delhi
Present judgment consisted of 17 pages and each page bears my initials.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.07.14
17:29:48 -0300
(Bharat Aggarwal)
MM-05/ SHD, Karkardooma Courts/Delhi
14.07.2022
FIR no. 439/21 PS Madhu Vihar State vs Raja Nepali Page 17 of 17