Delhi District Court
State vs Raj Kr. @ Nikku on 14 November, 2024
IN THE COURT OF SH. PANKAJ RAI, JMFC-01,
NORTH EAST DISTRICT, KARKARDOOMA COURT, DELHI
STATE Vs. RAJKUMAR @ NIKKU
FIR No. 133/2008
PS : BHAJANPURA
U/S : 380/457/411 IPC
Date of institution of the case : 30.04.2008
Date of judgment reserved : 18.09.2024
CNR : DLNE020000522008
Date of commission of offence : 09.04.2008 at about 9.00 pm.
Name of the complainant : Shakti
Name of accused and address : Rajkumar @ Nikku
S/o. Sh. Chanderpal
R/o. H.No.E-79/B-98,
Sanjay Colony, Gokulpuri
Delhi.
Offence complained of : Section 380/457/411 IPC
Plea of the accused : Pleaded not guilty
Date of Judgment : 14.11.2024
Final order : Convicted for offences
under section 380/451 IPC.
STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 1 / 13
Digitally
signed by
PANKAJ
PANKAJ RAI
RAI Date:
2024.11.14
17:00:26
+0530
Acquitted for offences
under section 457/411 IPC.
JUDGMENT
CASE OF THE PROSECUTION :
1. The case of prosecution, in brief, is that on 09.04.2008 at 9.00 p.m., accused Rajkumar @ Nikku committed lurking house breaking at night by attempting to enter into the house of complainant Shakti R/o. H No.C-4/155, Yamuna Vihar, Delhi at C-4 Block, Near Rath Wala Mandir, Yamuna Vihar, Delhi and committed theft of one plastic katta containing household articles belonging to the complainant containing household articles. It is further alleged against the accused that he committed theft of three gas burners which were recovered from his possession. The present FIR as based upon the above allegations was registered upon complaint of Shakti S/o Late Sh. Som Dutt (hereinafter referred to as 'Complainant') under section 457/380/411 IPC.
COURT PROCEEDINGS :
2. Upon completion of the investigation, the chargesheet was filed under section 380/457/411 IPC against the accused Rajkumar @ Nikku. The cognizance for the commission of offence u/s 380/457/411 IPC was taken and the copy of chargesheet was supplied to the accused.
STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 2 / 13 Digitally signed PANKAJ by PANKAJ RAI Date:
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CHARGE :
3. The material on record prima facie disclosed the commission of offence u/s 380/457/411 IPC. The charge was accordingly framed against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION :
4. For proving its case, prosecution examined five witnesses.
5. Complainant/Shakti was examined as PW1. He deposed that the incident had occurred on 09.04.2008 at about 09.00 PM. That on that time, the accused had entered his house and was taking away several items which were lying at the ground floor of the house in a white plastic Katta. That the articles consist of six engines sleeves, two head lights, one clutch plate and one Aqua Guard Water Filter. That he had apprehended the accused while he was taking away the said items in the said plastic Katta from his house. That when the accused was about to leave his house alongwith the bag, he was on the first floor of his house and saw him and immediately rushed and apprehended him in front of his house. That in the meantime, police personnel also reached there while they were patrolling and that he handed over the recovered items alongwith the accused to the police. That they were taken to the police station. That his statement was recorded, which is Ex. PW-1/A, which bears his signature. That the recovered items were seized after keeping into the same Katta and sealing the same by police vide seizure memo Ex.PW1/B bearing his signatures. He also correctly identified the accused and case property Ex.P1collectively.
6. PW-2 SI Rameshwar was the investigation officer. He deposed that on 09.04.2008, he was posted at PS Bhajanpura as ASI. That on said day, he along STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 3 / 13 Digitally signed by PANKAJ RAI PANKAJ Date:
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with Ct. Ram Gopal were on patrolling duty in the area C-4, Yamuna Vihar near Rathwala Mandir. That they saw that some people were gathered in front of C-4/155, Yamuna Vihar. That he interfered in the matter and one person namely Shakti S/o Sh. Somdutt, complainant, R/o C-4/155, Yamuna Vihar, Delhi came to him and produced a person namely accused Raj Kumar along with one plastic sack (katta) carrying six engine slips used to run piston made iron metal, two headlights, one water filter and one clutch plate assembly and he stated that the said Raj Kumar had committed theft of the above said articles from his house. That he recorded the statement of the complainant Shakti Ex. PW1/A bearing his attestation at point B. That he prepared rukka on the said tehrir Ex. PW2/A bearing his signatures at point A and handed over the said rukka to Ct. Ram Gopal with a direction to get the case registered at PS and accordingly, he went to PS. That after getting the case registered, Ct. Raj Gopal came to the said spot along with original rukka and copy of FIR No. 133/08 and handed over the same to him. That he prepared the site plan at the instance of the complainant Ex. PW2/B bearing his signatures at point A. That he seized the above said articles six engine slips used to run piston made iron metal, two headlights, one water filter and one clutch plate assembly by putting all them in the said plastic sack and sealed the same with the seal of SP and same was seized vide seizure memo already Ex. PW1/B bearing his signatures at point B. That after use of the said seal, it was handed over to Ct. Raj Gopal. That thereafter, he arrested the accused Raj Kumar vide arrest memo Ex. PW2/C bearing his signatures at point A. That he conducted personal search of accused and prepared personal search memo Ex. PW2/D bearing his signatures at point A. That he recorded the disclosure statement of the accused Ex. PW2/E bearing his signatures at point A. That all the documents were prepared in the presence of complainant Shakti and Ct. Ram Gopal and signed by them respectively. That he sent the Ct. STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 4 / 13 Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2024.11.14 17:08:09 +0530 Ram Gopal to get the medical examination of the accused at GTB Hospital. That he came back to PS where he deposited the case property into the malkhana. That accused Raj Kumar was locked up there. That he recorded the statement of Ct. Raj Kumar and supplementary statement of complainant Shakti. That after completion of the investigation, he prepared the charge sheet and filed the same before the Court. I can identify the case property and accused, if shown to me. He correctly identified the accused in the court. The case property was already exhibited as Ex.P1collectively.
7. PW-3 is HC Ram Gopal who went to the spot with IO and took rukka for registration of FIR. He deposed that on 09.04.2008, he was posted at PS Bhajanpura as Constable. That on the said day, he alongwith ASI Rameshwar Prasad were on area patrolling in the area of Yamuna Vihar, C-4 main road. That when they reached near Rathwala mandir, they heard some noise. That they intervened into the matter and one person who disclosed his name as Shakti produced the accused namely, Ram Kumar @ Niku. That on inquiry, it was further revealed that he was carrying certain stolen articles in a plastic bag (plastic katta).
That IO SI Rameshwar inquired the complainant Shakti and recorded his statement already Ex. PW1/A. That the said plastic bag was taken into possession and upon checking it, they found that it contains one old vehicle clutch plate and two head lights, one engine slip, one old water filter. That the said articles were again put back into the said plastic bag and prepared a pullanda duly sealed with the seal of SP. That seal was handed over to him after its use. That the said pullanda was taken into police custody and seized vide seizure memo Ex. PW1/B bearing his signature at point B. That IO had prepared the site plan Ex. PW2/A at the instance of the complainant. That IO prepared the rukka already Ex. PW2/B and handed over the STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 5 / 13 Digitally signed PANKAJ by PANKAJ RAI Date:
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same to him with the direction to get the case registered at PS Bhajanpura. That after getting the case registered at PS, he came back to the spot and handed over the same to the IO for further action. That accused Ram Kumar was arrested vide arrest memo already Ex. PW2/C bearing his signature at point B. That his personal search was also made vide personal search memo already Ex. PW2/D bearing his signature at point B. That thereafter, they came back to the PS where the case property was deposited into the malkhana and accused was locked up. That IO recorded his statement and he was relieved thereafter. He also correctly identified the accused. The case property was already exhibited as Ex.P1collectively.
8. PW-4 is Retd. ASI Shri Ram who was the duty officer. He deposed that on 09.04.2008, he was posted at PS Bhajanpura as ASI and working as Duty Officer. That his duty hours were 4.00 PM to 12.00 midnight. That on the said day, at about 11.10 PM, he got received a rukka/tehrir already Ex. PW1/A through Ct. Ram Gopal for registration of FIR sent by ASI Rameshwar Prasad. That he got registered FIR No.133/08 Ex. PW4/A (OSR) bearing his signatures at point A, on the basis of said tehrir/rukka. That he also made endorsement on the said rukka in his own handwriting Ex. PW4/B bearing his signature at point B. That thereafter, he handed over the abovesaid original rukka alongwith the copy of FIR to Ct. Ram Gopal with the direction to further hand over the same to ASI Rameshwar Prasad for further action. He produced the original FIR register which was seen and returned.
9. PW-5 is Tarun Kumar who is MHCM. Of PS Bhajanpura. He brought Register no. 19 and the certified copy of entry made in Register no. 19 with regard to present FIR. He deposed that the case property in the present case was deposited STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 6 / 13 PANKAJ Digitally signed by PANKAJ RAI RAI Date: 2024.11.14 17:01:28 +0530 by ASI Rameshwar Prasad vide Mud entry 1963 on 09.04.2008. The certified copy of Register no. 19 was Ex. PWS/A (OSR).
STATEMENT / DEFENCE OF THE ACCUSED :
10. Upon completion of prosecution evidence, the accused was examined in accordance with Section 313 Cr.P.C. The incriminating evidences were put to him who denied the same and stated to be innocent and to have been falsely implicated. He did not opt for leading defence evidence. Hence, the matter was fixed for final arguments.
11. Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt and accordingly, the accused be convicted. Ld. Counsel for accused has argued that the prosecution has failed to prove its case against the accused and that there are contradictions in testimonies of the prosecution witnesses which goes to the root of the case.
12. The respective submissions of learned APP for the State and learned Counsel for the accused have been considered. The record has been thoroughly and carefully perused.
ANALYSIS AND FINDINGS:
13. Dealing firstly with the charge under section 380 IPC, it deals with penalty for Theft in dwelling house, etc. It provides that:-
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 STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 7 / 13 Digitally signed by PANKAJ RAI PANKAJ Date:
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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.
14. Accordingly, in order to establish the liability of the accused under Section 380 IPC, the prosecution is required to prove that the accused committed theft and theft was committed in dwelling house.
15. Section 378 IPC defines the term theft. It provides that:-
Whoever, intending to take dishonestly any moveable 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.
16. In the present case, the prosecution examined PW1, the complainant in support of its case. He deposed that in the night of 09.04.2008, at about 9:00 pm, he found that the accused entered into his house and was taking away several items which were lying in a plastic sack (katta) in the ground floor of his house consisting of six engines, sleeves, two head lights, one clutch plate and one aqua guard water filter. He also deposed that he was at first floor and immediately rushed and apprehended the accused while he was taking away the said items from the house.
17. PW-1 remained consistent in his testimony. He duly identified the accused as the perpetrator of crime and who was apprehended later by him on the spot. The complainant has also identified the case property Ex.P1 as one which was stolen from his house. It is pertinent to note that the complainant was not cross- examined by the defence despite grant of opportunity and his entire testimony has gone unrebutted. The accused, during his examination under Section 313 Cr.P.C., stated that he is innocent and was wrongfully arrested. However, the accused did not specify any reason that the complainant might have bore any ill will towards the STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 8 / 13 Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2024.11.14 17:02:15 +0530 accused. No reason has been specified by the accused as to why would the complainant will falsely implicate him.
18. In the facts and circumstances of the case, there is no reason to disbelieve the testimony of the complainant. Seizure memo Ex.PW1/B, arrest memo Ex.PW2/C, personal search memo Ex.PW2/D also stands proved. PW-2, PW-3 and PW-4 have corroborated the version of PW-1 and they were also not cross- examined by the defence despite grant of opportunity and their entire testimony has also gone unrebutted.
19. In the above factual situation, there is no reason to disbelieve the testimony of the complainant and other prosecution witnesses.
20. In view of the above discussion, the prosecution has been able to prove the commission of offence under Section 380 IPC beyond reasonable doubt against the accused.
21. Now coming to the charge under Section 457 IPC, it deals for penalty for Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment. It provides that:-
Whoever commits lurking house-trespass by night or housebreaking by night, 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 five 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 fourteen years.
22. Accordingly, to establish the liability of accused under Section 457 IPC, the prosecution is required to establish that accused committed lurking house trespass STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 9 / 13 Digitally signed by PANKAJ PANKAJ RAI Date:
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or house breaking during night and same was done with intention of committing theft.
23. Section 445 and 442 IPC defines house-breaking and house trespass respectively. It provides that:-
A person is said to commit "house-breaking" who commits house- trespass if he effects his entrance into the house or any part of it in any of the six ways here in after described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say:-
First- If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house- trespass.
Secondly- If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly- If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened. Fourthly- If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.
Fifthly- If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault. Sixthly- If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass. Explanation- Any out-house or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section. Section 442 IPC defines house- trespass. It provides that:- 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. STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 10 / 13 Digitally signed by PANKAJ RAI PANKAJ Date:
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24. Section 441 IPC defines criminal trespass. It provides that:-
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".
25. In the present case the fact that the accused entered the house with the intention of committing theft is established. The said act of the accused falls within the definition of house-trespass as provided under Section 442 IPC. In order to amount to house-breaking, the onus is on the prosecution to establish that the accused effected his entrance into the house or any part thereof or effected his exit in any of the six ways described in section 445 IPC.
26. PW-1 is the material/star witness of the prosecution who only deposed to the effect that on 09.04.2008 at about 9.00 pm he found that accused entered his house and was taking away several items as noted above and that he was at first floor and that he immediately rushed and apprehended the accused while he was taking away the said items from the house. It is not clear from the case of prosecution as to how the accused effected his entry into the house of complainant, as there is no evidence in the form of eye-witnesses or CCTV footage to show how the accused entered the property, or whether he took steps to conceal his entry. The complainant has not deposed that any lock/latch of the door of house was found to be broken. The prosecution has not been able to prove that while committing house trespass the accused took precautions to conceal his presence as there is no evidence produced in this regard. It is not the case of prosecution that accused used STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 11 / 13 Digitally signed by PANKAJ RAI PANKAJ Date:
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any material for disguise as mask, costume or that he altered his appearance. Infact, PW-1 has himself stated that he saw the accused entering his house and taking away several items after which he himself rushed from the first floor and apprehended him, so obviously there is no concealment of his presence, made by the accused. PW-1 nowhere stated that accused was seen hiding or attempting to hide. Therefore, Section 457, IPC has no application.
27. As discussed above, house-trespass by accused is established. Further, the fact that he entered the house with intention to commit theft is also established.
Accordingly, commission of offence of house-trespass with intention to commit theft punishable under Section 451 IPC is established.
28. Though the accused was charged for the offence under Section 457 IPC but on the basis of evidence, the commission of offence under Section 451 IPC is made out.
29. As per Section 222 (1) of Cr.P.C./Section 245(1) BNSS when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
30. Since the offence of house-trespass with intention to commit theft is a minor offence which is included in offence of house-breaking by night with intention to cause theft and the particulars establishing the commission of offence of house-trespass with intention to commit theft are proved, the accused is convicted for the said offence.
STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 12 / 13
Digitally
signed by
PANKAJ RAI
PANKAJ Date:
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31. As regards offence under Section 411 IPC is concerned, the charge for the same was framed in the alternative. Since commission of offence under Section 380 IPC is already established, the accused cannot be held liable for offence under Section 411 IPC for the same property.
32. In view of the above, it is concluded that prosecution has been able to establish the ingredients of the offence under Section 380 IPC and Section 451 IPC beyond reasonable doubt, however, ingredients of offence under Section 457 IPC are not made out.
33. Accordingly, the accused Rajkumar @ Nikku is convicted of the offence under Section 380/451 IPC and is acquitted of the offence under Section 457/411 IPC.
34. Let the copy of this judgment be given, free of cost, to the convict.
35. As per the direction contained in the Judgment of Hon'ble High Court of Delhi in Karan v. State NCT of Delhi (2020) convict is directed to file an affidavit of his income and assets in prescribed format (Annexure-A) within 10 days.
ANNOUNCED IN OPEN COURT (PANKAJ RAI)
ON 14th NOVEMBER, 2024 JMFC-01, North East District
Karkardooma Courts/14.11.2024
This judgment consists of 13 pages and each page of this judgment is signed by me.
(PANKAJ RAI) JMFC-01, North East District Karkardooma Courts/14.11.2024 STATE VS. RAJKUMAR @ NIKKU FIR NO. 133 / 2008 PS BHAJANPURA PAGE NO. 13 / 13 Digitally signed by PANKAJ PANKAJ RAI Date:
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