Delhi District Court
State vs . Naseem on 2 April, 2018
IN THE COURT OF SH. JITENDRA SINGH
ADDL. CHIEF METROPOLITAN MAGISTRATE : WEST
TIS HAZARI COURTS : DELHI
FIR No. 91/2017
ID 3514/2017
U/S. 457/380/411 IPC
PS Ranjit Nagar
State Vs. Naseem
JUDGMENT
1. Sr. No of case 3514/2017
2. Date of commission of offence 26.2.2017
3. Name of complainant Ms. Poonam
4. Name of accused Naseem
s/o. Sh. Mohd Ulfat
r/o. Jhuggi NO. A115, KP Colony
Pandav Nagar, Delhi.
5. Offence complained of U/s. 457/380/411 IPC
6. Plea of accused Pleaded not guilty
7. Final order Acquitted
8. Date of such order 2.4.2018
1. FACTS IN BRIEF/ CASE SET UP BY PROSECUTION: Accused has been sent for trial on the allegations that on 26.2.2017 at about 3.40 AM he had entered into the Jhuggi NO. 312, KP Colony belonging to the complainant Ms. Poonam and had State Vs. Naseem; FIR No. 91/17; PS RN 1/6 committed theft of an Iron and the same was recovered from his possession.
2. MISCELLANEOUS PROCEEDINGS: After completion of the investigation, chargesheet was filed by the police against accused. Cognizance of the offence was taken and the accused was summoned. Copy of the chargesheet was supplied to the accused and the matter was adjourned for arguments on charge.
3. CHARGE FRAMED AGAINST THE ACCUSED: Charge for offences punishable u/s. 457/380/411 IPC IPC was framed against accused, to which he pleaded not guilty and claimed trial.
4. EVIDENCE LED BY THE PROSECUTION : In order to prove its case, prosecution has examined three witnesses as under :
(a)PW1 is Ms. Poonam. PW1 is the complainant. She deposed that on 26.2.2017 she had woken up on hearing the noise from her jhuggi. She further stated that on checking she found that door of the jhuggi was open and the the Iron which was kept inside the jhuggi was picked by a person and the same was in the hand of said person. She further stated that the said person was also searching the almirah. PW1 further stated that thereafter she raised alarm.
State Vs. Naseem; FIR No. 91/17; PS RN 2/6 PW1 further stated on hearing the alarm, said person fled from there and she called the police at 100 number. She further stated that police recorded her statement Ex. PW1/A and the police had seized the Iron, lock, chain and Iron Rod from the spot. PW1 however failed to identify the accused as per who had entered her house. PW1 was cross examined by Ld APP for State and even after being pointed out by Ld APP for State, PW1 failed to identify the accused as the person who entered her jhuggi.
(b)PW2 is Ms. Renu and PW3 is Sh. Mohan. They are the relatives of the complainant and they have also not supported the prosecution version. Both of them were also cross examined by Ld APP for State. Attention of witnesses were drawn towards the accused but they failed to identify the accused as the person who had entered their jhuggi.
5. STATEMENT OF ACCUSED: Statement of accused was recorded u/s. 313 Cr.P.C. wherein the incriminating evidence was put to the accused. In the said statement u/s. 313 Cr.P.C, accused has stated that she was falsely implicated in this case. Accused had not led any evidence in her defence.
6. ARGUMENTS OF LD. APP FOR STATE AND DEFENCE: Ld APP for the State had argued that the prosecution has successfully proved its case against the accused beyond reasonable State Vs. Naseem; FIR No. 91/17; PS RN 3/6 doubt. Ld APP for the State had also argued that the factum of committing lurking house trespass and theft by accused has been beyond reasonable doubt and therefore, accused is liable to be convicted in this case.
On the other hand, Ld defence counsel has submitted that no independent witness was examined by prosecution in support of its case. It is further submitted that the prosecution has miserably failed to prove its case against the accused and therefore, the accused is entitled of being acquitted in this case.
7. REASONS FOR THE DECISION:
(i) In the present case, a charge for offences punishable u/s. 457/380/411 IPC was framed against accused. As per prosecution version, PW1, PW2 and PW3 were the most important witnesses of the prosecution. However all of them have not supported the prosecution version and failed to identify the accused. Even after being cross examined by Ld APP for State, they failed to identify the accused as the person who had entered their house.
(ii) The law on appreciation of evidence in the event of witness turning hostile was discussed by the Hon'ble Supreme Court in case titled as Sat Paul Vs. Delhi Administration, AIR 1976 SC 294. The relevant extract of the same is reproduced below State Vs. Naseem; FIR No. 91/17; PS RN 4/6 for ready reference: "....even in a criminal prosecution when a witness is cross examined and contradicted with a leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands throughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.....".
In the instant case the prosecution has failed to establish the identity of the accused beyond reasonable doubt.
(iii) In case law reported as Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55 the Punjab & Haryana High Court had State Vs. Naseem; FIR No. 91/17; PS RN 5/6 observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
(iv) From the aforesaid discussion, I am of the opinion that prosecution has miserably failed to prove the essential ingredients of the offences punishable u/s. 457/380/411 IPC against the accused.
8. CONCLUSION: Keeping in view the facts and circumstances and the discussion made hereinabove, accused is hereby acquitted in the present matter. Compliance u/s. 437A cr.p.c. has been made in the ordersheet. Digitally signed by JITENDRA JITENDRA SINGH SINGH Date:
2018.04.07 16:00:43 +0530 Judgment dictated and JITENDRA SINGH pronounced in the open Court ACMM:WEST DISTT:DELHI i.e. the 2nd of April, 2018 (This judgment consists of 6 pages) State Vs. Naseem; FIR No. 91/17; PS RN 6/6