Delhi District Court
State vs . Sandeep Kumar on 2 April, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. SANDEEP KUMAR
FIR No. 666/16
U/s : 380/511 IPC
P.S. : Malviya Nagar
Date of Institution : 04.11.2016
Date on which case reserved for Judgment : 26.03.2018
Date of judgment : 02.04.2018
JUDGMENT
1.FIR No. of the case : 666/16
2.Date of the Commission : 05.09.2016
of the offence
3.Name of the accused : Sandeep Kumar,
: S/o Sh. Tule Ram,
: R/o H. No. 99 Chirag Delhi,
: New Delhi.
4.Name of the complainant : Sh. Piyush Kumar,
: S/o Sh. Rajesh Shah,
: R/o H. No. 670, 1st floor,
: Chirag Delhi, Malviya Nagar,
: New Delhi.
5.Offence complained of : 380/511 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Accused is acquitted for the offences
: alleged.
FIR No. 666/16 State Vs. Sandeep Kumar 1/5
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 05.09.2016 at about 12:45 am at H. No. 670, 1st floor, Chirag Delhi, New Delhi within the jurisdiction of PS Malviya Nagar the accused Sandeep Kumar entered in the aforesaid house of the complainant in order to commit offence and attempted to commit theft in the dwelling house and thereby accused committed the offences punishable under sections 457/380/511 IPC.
2. FIR No. 666/15 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under sections 380/511 IPC was filed before the court on 04.11.2016.
4. On the basis of prima facie material available on the record charge for the offences punishable under section 457/380/511 IPC was framed against the accused Sandeep Kumar to which the accused pleaded not guilty and claimed trial on 04.01.2017.
THE TRIAL PROCEEDINGS:
5. In order to establish its case, the prosecution has examined five witnesses.
6. PW1 was the complainant Sh. Piyush Kumar who deposed to being an eye witness of the alleged incident. He exhibited his statement as Ex.PW1/A.
7. PW2 was the brother of complainant Sh. Vicky.
FIR No. 666/16 State Vs. Sandeep Kumar 2/5
8. PW3 was the police official PSI Suresh Chand. He exhibited the arrest memo of accused as Ex. PW3/A.
9. PW4 was Sh. Manik Jain who deposed that he was the owner of the house no. 670 Chirag Delhi and that the complainant was residing as a tenant in his house.
10. PW5 was the Investigating Officer (IO) of the case SI Bhagwan Sahai. He exhibited the rukka as Ex. PW5/A, DD No.6A as Ex. PW5/B and site plan as Ex. PW5/C.
11. Accused admitted the genuineness of MLC no. 582066/16 and factum of registration of FIR no. 666/16, PS Malviya Nagar on 30.03.2017 and these documents were exhibited as Ex. X1 and Ex. X2 respectively.
12. Prosecution evidence was closed on 08.03.2018. After conclusion of prosecution evidence, the Statement of Accused (SA) under section 313 r/w section 281 Cr.P.C was recorded on 14.03.2018. Accused did not seek to lead defence evidence.
FINAL ARGUMENTS:
13. Final arguments were thereafter advanced by Ld. APP for the State and Ld. LAC for the accused.
REASONS FOR DECISION:
14. The present case is one of entering into a dwelling house with intention to commit offence and attempt to commit theft therein. The most important aspect which the prosecution was required to prove in the present case was the identity of the accused as the assailant. Naturally, the testimonies of the eye witnesses were the most crucial to establish this aspect.
15. There are two eye witnesses in the present case namely PW1 Sh.
FIR No. 666/16 State Vs. Sandeep Kumar 3/5 Piyush Kumar i.e. the complainant and PW2 Sh. Vicky i.e. the brother of the complainant. It is most pertinent to note that neither PW1/complainant nor PW2 Sh. Vicky were able to identify the accused during trial. PW1 Sh. Piyush Kumar deposed that he saw an accused namely Sandeep checking the pocket of his pants and shirt and seeing him the complainant raised an alarm and his brother woke up and they apprehended the accused however he could not identify the accused even when he was cross examined by Ld. APP for the State who pointed out towards the accused. PW1 denied being won over by the accused.
16. PW2 Sh. Vicky on the other hand deposed simply that he heard the noise and woke up but did not see anyone in the room except his brother and though in his cross examination conducted by Ld. APP for the State he admitted that he apprehended the accused with the help of his brother Piyush in his room and handed over the custody of the accused to the police officers but he too despite Ld. APP for the State pointing out towards the accused failed to identify him.
17. PW2 Sh. Vicky denied the suggestion of the prosecution that he was deposing falsely at the instance of accused. Neither PW1 nor PW2 were cross examined by the accused however they were clearly hostile to the prosecution's case therefore as such nothing incriminating qua the accused came out through their testimonies.
18. PW4 Sh. Manik Jain deposed about being the owner of the property in question where the alleged offences occurred and also about the complainant Sh. Piyush Kumar being his tenant. He testified that he came to know from Piyush Kumar about the attempt of theft in his room. This testimony of PW4 is hearsay and he is admittedly not an eye witness of the incident. Thus, his FIR No. 666/16 State Vs. Sandeep Kumar 4/5 testimony regarding the theft is inadmissible being hearsay.
19. The testimonies of the police witnesses are also not of much aid to the prosecution's case when the star witnesses i.e. the eye witnesses PW1 Sh. Piyush Kumar and PW2 Sh. Vicky, on whose testimonies the prosecution case turned, failed to identify the accused during trial.
20. The accused himself took the stand in SA that he was merely passing by the spot and was wrongly apprehended by public persons. The identity of the accused as the offender has not been established by the prosecution through cogent evidence. The prosecution has failed to connect the accused to the offences alleged. The accused is bound to be granted the benefit of the doubt. Consequently, the accused Sandeep Kumar is acquitted of the offences u/s 457/380/511 IPC.
21. Bail bonds u/s 437 A Cr.PC have been furnished. Perused and accepted for a period of six months from today. Nothing further remains in the case, therefore file be consigned to record room after necessary compliance.
Announced in the Court (ANJANI MAHAJAN) on 02.04.2018 MM02(SD)/02.04.2018
Certified that this judgment contains 5 pages and each page bears my signatures.
(ANJANI MAHAJAN)
MM02(SD)/02.04.2018
FIR No. 666/16 State Vs. Sandeep Kumar 5/5