Delhi District Court
State vs Md Asif on 15 May, 2025
IN THE COURT OF MS. AAYUSHI SAXENA,
JUDICIAL MAGISTRATE FIRST CLASS-05,
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
CR Case No. -: 76115/2016
CNR No. -: DLSH020004232012
FIR No. -: 136/2011
Police Station -: Jafrabad
Section(s) -: 380/458/34 IPC
In the matter of:
STATE
(Represented by Sh. Bhuvnesh Sharma
Ld. APP for the State)
VERSUS
Digitally
signed by
AAYUSHI
1. Mohd. Asif, AAYUSHI SAXENA
SAXENA Date:
S/o Mohd. Afsar 2025.05.15
16:26:26
R/o V-17/17, Vijay Park, +0530
Maujpur, Delhi-53.
2. Amit Singh Tomar,
S/o Bijender Singh Tomar,
R/o 700/3A, Gali No.14,
Adarsh Mohalla, Maujpur, Delhi-53
...... Accused
Dharamveer
Sharma,
S/o Omveer Sharma
1. Name of Complainant :
R/o 671/2B, Main
Krishna Gali,
Maujpur, Delhi.
1. Mohd. Asif,
S/o Mohd. Afsar
R/o V-17/17, Vijay
Park,
2. Name of Accused : Maujpur, Delhi-53.
2. Amit Singh
Tomar,
S/o Bijender Singh
FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 1 of 16
Tomar,
R/o 700/3A, Gali
No.14,
Adarsh Mohalla,
Maujpur, Delhi-53
3. Offence complained of or proved : 380/458/34 IPC
4. Plea of Accused : Pleaded not guilty
5. Date of commission of offence : 01.05.2011
6. Date of filing of case : 09.07.2012
7. Date of reserving Order : 15.05.2025
8. Date of pronouncement : 15.05.2025 Both the accused
9. Final Order : persons have been acquitted.
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that on 01.05.2011 at about 3:30 AM, at House no.671/2B, Main Krishna, Maujpur, Seelampur, Delhi, accused Mohd. Asif and Amit Singh Tomar along with JCL Mohd. Azaharuddin @ Ajju, in furtherance of of their common intention, committed the offence of lurking house trespass in the night by entering into aforesaid house for the purpose of committing theft having made preparation for causing hurt and they committed theft of purse of the complainant Dharambir Sharma.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 2 of 16 culmination of the investigation, the Police Report under Section 173 Cr.P.C., against accused Mohd. Asif and Amit Singh Tomar was filed.
3. Vide order dated 09.07.2012, Ld. Predecessor of this Court took cognizance of the offence and issued summons for appearance of the accused. On 13.09.2012, accused had appeared and copy of charge-sheet alongwith documents annexed therewith were supplied to them as per section 207 Cr.P.C.
4. On finding a prima facie case against the accused persons, charge under Section 380/458/34 IPC was framed against them by Ld. Predecessor of this Court on 06.02.2013, to which they pleaded not guilty and claimed trial.
PROSECUTION'S EVIDENCE;
5. In order to prove its case, the prosecution examined five witnesses;
5.1. PW-1 Dharamveer Sharma inter-alia depose on 01.05.2011 at around 3.00 am, he heard the noise of dog's barking and due to which, he woke up and went to the main gate of his house and from the keyhole, he saw that two boys were standing outside and were having knife and other weapons in their hands. He further deposed that thereafter, he visited terrace of his house through stairs where he saw that one boy, aged around 16-17 years, had thrown-his pant and one little purse on the road through Chhajja. He further deposed that the said boy had again entered in the rooms of the FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 3 of 16 upper floor of his house and he followed the boy and caught him. He further deposed that the said boy raised an alarm and he also raised an alarm and took him on the chowk of ground floor through the stairs/jeena of his house. He further deposed that in the melee, his mobile phone had got broken. He further deposed that thereafter, his neighbours also came to the road and someone called police at 100 number and after about 30 minutes, police came to the spot. He further deposed that prior to arrival of police at the spot, the apprehended boy had disclosed about many offences committed by him and thereafter, he handed over the said boy to the police. He further deposed that he had shown the way to terrace through telephone pole, with the help of which the said boy had climbed on his terrace and he had also told the police how he had taken the apprehended boy to the chowk on the ground floor. He further deposed that the police had recorded his statement Ex. PW-1/A. He further stated that during interrogation or enquiry, the apprehended boy had revealed the names of his associates to the police, after which he had taken the police party to the houses of those associates. He further deposed that the boy had disclosed his name as Ajju and named two of his associates, who had been standing just outside the main gate of the witness's house, as Amit and Asif, however, the boy had mentioned that he did not know the names of the other two individuals who had been standing in Gali No. 9, Krishna Gali, Maujpur, Delhi. He further deposed that IO/SI Dharmender had enquired from him and recorded his statement, and that he had pointed out FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 4 of 16 the place of the incident to the IO.
PW-1 duly identified both the accused persons in the Court.
PW-1 was not cross examined by ld. Counsel for accused persons despite opportunity. 5.2. PW-2, HC Narender inter-alia deposed that on 01.05.2011, he was posted at Police Station Jafrabad and was working as the duty officer from midnight to 8:00 am. He further deposed that at around 5:50 am on that day, Ct. Lalit had come to him at the police station and handed over a rukka sent by SI Dharmender Partap Singh. He further deposed that he had made an endorsement on the said rukka, marked as Ex. PW-2/A and he had recorded FIR no. 136/11 Ex. PW-2/B (OSR) at PS Jafrabad. He further deposed that after registration of FIR, he handed over both the copy of the FIR and the original rukka to Ct. Lalit for delivery to the Investigating Officer for further investigation. PW-2 was not cross examined by ld. Counsel for accused despite being given opportunity. 5.3. PW-3 Ct. Bijender Singh inter-alia deposed that on 08.09.2011, he was posted at Jafrabad as a Constable and on that day, he had joined the investigation of the present case with SI Dharmender. He further deposed that during the course of the investigation, they had proceeded to Maujpur Chowk in search of the accused, Amit Singh Tomar and in the meantime, a secret informer had approached them and informed them that the accused Amit, who was wanted in the present case, had just arrived at his house and could be apprehended, if a raid was conducted. PW-3 further deposed that he, FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 5 of 16 along with the IO, had gone to the house of Amit Singh Tomar located at 700/3A, Gali No. 14, Adarsh Mohalla, Maujpur, Delhi and they had opened the door of the house and found a person wearing a black shirt inside and upon interrogation, they came to know that the person was Amit Singh Tomar. He further deposed that the IO had then arrested the accused Amit vide arrest memo Ex.PW-3/A, personally searched him vide memo Ex. PW-3/B and recorded his disclosure statement Ex.PW3/C. PW-3 further deposed that the accused had then led them to a house situated at Main Krishna Gali and pointed out the place of occurrence and the IO had prepared a pointing-out memo Ex.PW-3/D. PW-3 further deposed that information regarding the arrest had been given to the accused's father and that he had taken the accused for medical examination at GTB Hospital. PW-3 further deposed that his statement was recorded by the IO.
PW-3 correctly identified accused Amit during his cross examination.
PW-3 was not cross examined by ld. LAC for accused Asif but his cross examination was nil on behalf of accused Amit.
5.4. PW4 Ct. Lalit Kumar inter-alia deposed that on 01.05.2011, he was posted at Police Station Jafrabad as a Constable and was on night emergency duty from 8:00 p.m. to 8:00 a.m. He further deposed that upon receipt of DD No. 33A by SI D.P. Singh, he had joined the investigation of the present case along with him. He further deposed that they had proceeded to the spot, which was Gali No. 2, Main Krishna Gali, Maujpur, FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 6 of 16 Delhi, where the complainant, Dharamvir, met them and produced a juvenile before the Investigating Officer. He further deposed that the IO had recorded the statement of the complainant and prepared a rukka, which was handed over to him for the registration of the FIR. PW-4 further stated that he had gone to the police station to register the FIR and, after completing the task, returned to the spot and handed over the copy of the FIR along with the original rukka to the IO. He further deposed that the IO had then inquired from the said juvenile, whose name was revealed as Abdul Salam @ Mohd Aziruddin @ Ajju, and had apprehended him after preparing the necessary documents. He further deposed that information regarding the apprehension of juvenile Ajju was conveyed to his uncle, Sakil Ahmed, via mobile phone. He further deposed that the IO had also recorded the supplementary statement of the complainant, who was then released and they had subsequently gone to the house of juvenile Ajju, where his custody was handed over to his mother namely Rehana. He further deposed that the IO had also obtained the residential proof of Rehana on the undertaking form of the juvenile after completing the formalities. He further deposed that despite efforts, they could not locate the associates of juvenile Ajju and his statement was recorded by the IO. He further deposed that he could identify juvenile Ajju if shown to him.
PW-4 was cross examined by ld. counsel for accused Asif and he was not cross examined on behalf of accused Amit.
FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 7 of 16 5.5. PW5: SI Dharmender Singh inter-alia deposed that on 30.04.2011, he was posted at Police Station Jafrabad as a Sub-Inspector and from the night of 30.04.2011 to 01.05.2011, he was on emergency duty from 8:00 p.m. to 8:00 a.m. PW-5 further deposed that on 01.05.2011, he had received DD No. 33A, and in response, he, along with Ct. Lalit, had proceeded to the location at House No. 671/2B, Main Krishna Gali, Maujpur, Delhi and there, the complainant Dharamveer Sharma had met them and produced a juvenile, and had also given a statement, which the witness recorded and was already on record as Ex. PW1/A, bearing his signature at point B. He further deposed that he then prepared a rukka Ex. PW5/A, and handed it over to Ct. Lalit for registration of the FIR. He further stated that he had inquired from the JCL, and in the meantime, Ct. Lalit had returned to the spot and handed over the copy of the FIR along with the original rukka to him and he had then apprehended the JCL and prepared the site plan Ex. PW5/B on the basis of the complainant's version. He further deposed that thereafter, he had taken the JCL to his residence and handed him over to his parents. He further deposed that he had conducted a search for the other accused persons. PW-5 further deposed that on 12.05.2011, accused Mohd Asif had surrendered before the Court. He further stated that with the permission of the Hon'ble Court, he had interrogated accused Asif and arrested him in connection with the present case vide arrest memo Ex.PW5/C, personally searched him vide memo Ex.PW5/D and recorded his disclosure statement FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 8 of 16 Ex.PW5/E. He further stated that he had moved an application before the concerned court for the Test Identification Parade (TIP) of accused Asif, but the accused had refused to participate in the TIP proceedings and thereafter he was sent to judicial custody (JC). He further stated that on 08.09.2011, he had received secret information regarding co-accused Amit and acting on this, he had conducted a raid at Amit's residence and arrested him from there vide arrest memo Ex. PW3/A, personally searched him vide memo Ex. PW1/B and recorded his disclosure statement Ex.PW3/C and prepared a pointing-out memo Ex. PW3/D at the instance of accused Amit. He further deposed that on the next day, he had moved an application for the TIP and produced the accused Amit before the concerned court, but Amit had refused to participate in the proceedings and subsequently he sent to judicial custody.
PW-5 correctly identified both the accused persons who were present in the Court on the date of his examination.
PW-5 was duly cross examined by Ld. LAC for both the accused persons.
6. After completion of prosecution evidence, statement of accused persons under Section 313 Cr.P.C. was recorded. All incriminating material, brought on record, was put to the accused persons, in response to which they denied the allegations made against them and claimed themselves to be innocent and pleaded that they have been falsely implicated in this case.
FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 9 of 16
7. Accused did not opt to lead any evidence in their defence and the same was closed and the matter was listed for final arguments.
8. I have heard the arguments of Ld. APP for State and Mr. Nadeem Khan, Ld. LAC for accused Amit and Sh. Bhairav Dass, Ld. LAC for accused Asif. I have also perused the case file carefully.
9. Before proceeding to the merits of the case, I wish to refer to the relevant provisions of law.
10. Theft is defined under section 378 IPC and theft in dwelling house is defined under section 380 IPC. Both the provisions are reproduced hereunder:
Section 378 IPC: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Section 380 IPC: 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.
10.1 From the aforesaid definition it is clear that the essential ingredients of theft are:
a) Moving of moveable property out of possession FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 10 of 16 of a person;
b) Absence of consent of the person; and
c) Dishonest intention at the time of moving.
10.2 A person can be said to have dishonest intention if, in taking the property, it is his intention to cause gain by unlawful means of the property to which the person so losing is legally entitled. It is further clear that the gain or loss contemplated need not be a total acquisition or total deprivation. It is enough if it is temporary retention of the property by the person so gaining or temporary keeping out of property from the person legally entitled. Hence, theft under Indian Penal code is different from English Law of larceny which contemplates permanent gain or loss (Ramesh Chander Sanyal Vs. Hiru Mondal (1890) 1LR 17 Cal 852 relied upon).
10.3 Further, theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling is an aggravated form of theft because it intimidates and causes fear to the people living in the house.
10.4 Thus, for the offence punishable under section 380 IPC, the following facts are required to be proved by the prosecution:
a) Moving of house-hold articles of the complainant out of his possession;
b) Such moving was without consent of the complainant;
c) Accused had dishonest intention in such moving;
and FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 11 of 16
d) Articles were moved out of dwelling house of the complainant.
11 Now with respect to the offence of house trespass, the relevant sections are reproduced hereunder:
11.1Criminal 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"
11.2 Section 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 place for the custody of property, is said to commit "house-trespass".
Explanation. The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
11.3 Section 443. Lurking house-trespass: 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"
11.4Section 444. Lurking house-trespass by night:
FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 12 of 16 Whoever commits lurking house- trespass after sunset and before sunrise, is said to commit "lurking house- trespass by night".
11.5 Section 458 "Lurking house-trespass or house-
breaking by night after preparation for hurt, assault, or wrongful restraint". The key ingredients of this offense include:
(a)Lurking House-trespass or House-breaking by night: This refers to entering a house or building unlawfully during the night.
(b)Preparation for hurt, assault, or wrongful restraint: The offender must have prepared to cause hurt, assault, or wrongfully restrain a person.
(c)Intent: The perpetrator must have the intention to commit an offense punishable by death or life imprisonment, or one exceeding seven years.
11.6 From the above, it is clear that intention to commit an offence is an essential ingredient. Mere occupation, even if illegal, cannot amount to criminal trespass (1983 CRI. L. J. 173 Kanwal Sood v. Nawal Kishore relied upon). Intention to insult or annoy person, in possession of property, is essential ingredient. Criminal trespass would also cover act of unlawfully remaining in property belonging to another - But such act of remaining in property of another would be criminal trespass only if accompanied by criminal intent. Further if there is no evidence of criminal trespass, no offence of house trespass could be said to be established. It is also important that complainant must be in unquestionable possession of property FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 13 of 16 at time of trespass alleged (1996 CRI. L. J. 256 State of Goa v. Pedro Lopes).
12 When the complainant entered the witness box as PW1, he deposed that he saw from the keyhole of his house, that two boys, having knife and other weapons, were standing outside his house. He also deposed that when he went to the terrace of his house, he saw that one boy aged 16-17 years had thrown his pant and his purse on the road and when that boy entered in the room of the upper floor of his house, PW1 caught him. He also deposed that he raised an alarm, due to which his neighbours came and one of his neighbours made a call at 100 number, whereafter police officials came and the said boy was handed over to them. He also deposed that on enquiry, the apprehended boy, namely Ajju, revealed the names of his co-associates in the crime, as Amit and Asif, who were standing outside PW1's house.
13 As per the story set up by the prosecution, the alleged offence had taken place on 01.05.2011 at 03:30 AM and the complainant had apprehended only CCL Ajju at the spot and the other two accused namely Amit and Asif, had escaped and were apprehended later on. Pertinently, neither accused Amit & Asif were arrested from the spot nor anything was recovered from them. On a perusal of the record, it is evident that the accused persons were arrested in the present case on the basis of disclosure statement of CCL Ajju. The Investigating Officer has not collected any incriminating evidence against the accused persons. The fact remains that only evidence against the accused persons is the disclosure statement of CCL Ajju.
FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 14 of 16 14 It is a settled law that accused cannot be convicted solely on the basis of a disclosure statement made by a co- accused. A disclosure statement, while significant, is considered a weak piece of evidence and requires corroboration by other evidence to establish guilt beyond a reasonable doubt. The prosecution must present independent evidence linking the accused to the crime, in addition to the disclosure statement, to support a conviction.
15 In this regard it is pertinent to mention the judgment in the case of Prakash Singh Vs. State of M.P. MPWN 1994 (2) 72 where it has been held as under:-
"The statement admissible under Section 27 of the Evidence Act are the statements which could be used as evidence against the maker and not against any other person. Under section 27 only portions of information given by an accused which are admissible are those which relate distinctly to the facts discovered thereby. Consequently statements by an accused which do not relate to aforesaid facts but involve other accused are inadmissible under Section 27 against the later. In the case under the memorandum recorded of the two accused persons, a skeleton was recovered. However, the statement given by the two accused persons that the applicant had also accompanied them and had helped them in the burial of the dead body is not an admissible piece of evidence and thus the applicant cannot be roped in along with other accused persons by virtue of the statement given under Section 27 of the Evidence Act, nor he can be said to be a person on whose information the skeleton of the child was recovered. No other evidence was pointed out by the counsel for the State whereby it could be said prima facie that there is legal evidence on record to implicate the applicant in the commission of the offences charged against him."
16 Also, refusing to participate in TIP proceedings cannot on its own lead to the conviction of an accused, especially in FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 15 of 16 the absence of any other incriminating evidence. A refusal to participate is not a conclusive proof of guilt and cannot be used as the sole basis for conviction.
DECISION 17 In view of the aforesaid discussion, with the prosecution failing to prove its case against the accused persons beyond reasonable doubt, accused persons namely Mohd. Asif S/o Mohd Afsar and Amit Singh Tomar S/o Bijender Singh stand acquitted for the offence u/s 380/458/34 IPC in FIR no. 136/2011 PS Jafrabad.
18 Case property, if any, shall be disposed of as per rules, after expiration of period of appeal and as per law. Case file be consigned to the record room after due compliance.
ANNOUNCED IN OPEN COURT TODAY i.e. 15.05.2025 Digitally signed by AAYUSHI AAYUSHI SAXENA SAXENA Date:
2025.05.15 16:26:37 +0530 (Aayushi Saxena) JMFC-05/ SHD, Karkardooma Courts/Delhi/15.05.2025 Present judgment consists of 16 pages and each page bears my initials.
AAYUSHI
SAXENA
Digitally signed by
AAYUSHI SAXENA
(Aayushi Saxena) Date: 2025.05.15
16:26:41 +0530
JMFC-05/ SHD, Karkardooma
Courts/Delhi/15.05.2025
FIR No. 136/2011 PS Jafrabad State Vs. Md. Asif & Anr Page no. 16 of 16