Delhi District Court
State vs . Harmeet Singh on 7 May, 2011
IN THE COURT OF SH. M. P. SINGH: METROPOLITAN
MAGISTRATE-02/WEST DELHI
STATE Vs. Harmeet Singh
FIR No. : 523/08
U/SEC : 456 IPC
PS : Hari Nagar Delhi
Unique Case ID No.: 02401R0069432009
JUDGMENT
Serial no. of the case 1098/II/08
Date of commission of offence '18.12.2008
Date of institution of the case '13.02.2009
Name of the complainant Bindu Sharma
Name of accused, parentage &Harmeet Singh s/o Jagdeep Singh r/o
address WZ-249, Gali No. 5, Virender Nagar,
New Delhi
Offence complained of or proved Section 456 IPC Plea of the accused Pleaded not guilty Date of arguments '03.05.2011 Final order Acquitted Date of Judgment '07.05.2011
1. The present case was registered on the complaint of the complainant Bindu Sharma. On 18.12.2008 the complainant was sleeping inside her house at WZ-87, First Floor, Gali No. 5, Shiv Nagar, Delhi. At about 11:15 PM she heard some noise in her house. She found that somebody was trying to open the back gate of her house. It is alleged that the accused had reached the first floor of the house by climbing on to the pipe. The complainant immediately called up her landlord Rajinder Singh who was living on the second floor of the house. The landlord apprehended the accused from near the back gate of the house of the complainant. A crowd gathered. Police was called. Accused was arrested.
2. After the usual investigation, chargesheet was filed against the accused on 13.02.2009. Copies were supplied to the accused. And subsequent to the compliance with the provision of Section 207 of CrPC, charge for the offence punishable under Section 456 IPC was framed against the accused on 05.06.2009 to which he pleaded not guilty and claimed trial.
3. After framing of charge, the matter was posted for prosecution evidence. During the course of prosecution evidence, the prosecution got examined five witnesses. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded on 02.05.2011 wherein the accused stated that he had been falsely implicated and that he was innocent. The accused opted not to lead defence evidence.
4. The five prosecution witnesses that were examined during the course of the trial are as follows: 1.) PW1 ASI Ram Avtar, duty officer who exhibited on record the FIR Ex. PW1/A; 2.) PW2 HC Naresh Chand, a formal witness; 3.) PW3 Rajinder Singh, an eye witness; 4.) PW4 HC Krishan Chand, witness of the investigation; 5.) PW5 HC Mahabir, IO of this case.
5. I have heard the rival submissions at Bar and have gone through the records of this case.
6. In the case at hand, the witness PW3 Rajinder Singh who was the landlord of the premises has supported the case of the prosecution on the sequence of event. However, on the point of identity of the accused he did not support the prosecution case. He stated that he was not in a position to identify the accused as the alleged offender did not have a turban or beard on the date of the incident. Therefore, the testimony of PW3 Rajinder Singh on the aspect of identity of the accused cannot at all be taken to be favourable to the prosecution.
7. Ld. APP for the State argued that the accused was not having turban or a beard on the date of commission of the offence. However, it is to be noted that it has not at all come in the evidence of any of the police witnesses that when the accused was arrested he did not have a turban or a beard. The IO PW5 HC Mahabir Singh has not at all stated in his evidence that the accused Harmeet did not have a turban or a beard on the date of commission of offence. Neither has PW4 HC Krishan Chand deposed to this effect. In the absence of positive evidence beyond reasonable doubt to the effect that the accused was the very same person who had committed the alleged offence, the prosecution case cannot succeed.
8. In the present case, the complainant Miss Bindu Sharma has already passed away. She passed away on 12.01.2010. As such by an Act of God the prosecution was prevented from examining the most material witness. In the face of the fact that a doubt had occurred as regards the identity of the accused in the testimony of PW3 Rajinder Singh, it was only the complainant who could have identified the accused. And she would have also deposed about the alleged sequence of events. However this was not to be. The prosecution has exhibited on record the statement Ex. PW1/B of the complainant Miss Bindu Sharma and a signature thereon have been identified by PW5 HC Mahabir. However, this statement Ex. PW1/B of the complainant Miss Bindu Sharma does not at all fall within the provision of section 32 (1) Evidence Act for the reason that it cannot at all be termed as a dying declaration. The statement Ex. PW1/B is not about the cause of death or about any of the circumstances of the transaction which resulted in the death. We also cannot lose sight of the fact the complaint Ex. PW1/B, albeit signed by the complainant, is a complaint made to the police authorities.
9. PW4 HC Krishan Chand deposed that the complainant had told that the accused had entered into her house illegally from the back side through pipe with intention to commit some crime. However, this deposition of PW4 HC Krishan Chand is a hearsay evidence.
10. Conviction of the accused cannot at all be founded on the basis of the complaint Ex. PW1/B. However, the accused never had an opportunity to cross examine the complainant who was the author of the complaint Ex. PW1/B as regards the truth, veracity of the allegations contained in the same. How much was the grain of truth in the document Ex. PW1/B would have come out only when the author thereof was examined and cross examined. In the absence of this document Ex. PW1/B having been tested in the examination and the cross examination of its author, it would not be safe to found the conviction of the accused on the basis of this untested document. This document Ex. PW1/B therefore is a document which cannot at all be stated to be a proved document so far as the contents of the same are concerned.
11.There is a reasonable doubt as regards the identity of the accused. The benefit of the reasonable doubt has to go to the accused. The accused Harmeet is therefore entitled to be acquitted of the offence under section 456 IPC. It is ordered accordingly. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
th
ON 07 May, 2011 METROPOLITAN MAGISTRATE
DELHI