Delhi District Court
State vs Munna Yadav on 28 April, 2010
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IN THE COURT OF SH. RAKESH KUMAR-III: METROPOLITAN
MAGISTRATE: KARKARDOOMA : SHAHDARA : DELHI.
State V/s Munna Yadav
FIR No.: 24/09
PS: Vivek Vihar
U/s: 457/380/511 IPC
JUDGMENT:
a) Sl. No. of the Case : 43/02/A
b) Date of Institution : 05.03.2009
c) Date of Commission of Offence : 09.02.2009
d) Name of complainant : Sh. Manish S/o Late Sh. Khairati Lal
R/o 26/1, Jwala Nagar, Shahdara,
Delhi. At Present: 7/274, Main Road,
Jwala Nagar, Shahdara, Delhi.
e) Name of the Accused & his : Munna Yadav @ Amit Yadav
Parantage & address S/o Sh. Lalan Yadav C/o Ashok Mandal,
Gali No. 4, Sangam Vihar, Ghaziabad,
U.P.
f) Offence complained of : U/s 457/380/511 IPC
g) Plea of the Accused : Pleaded not guilty
h) Order Reserved : 30.03.2010
i) Final order : Convicted
j) Date of such order : 13.04.2010
BRIEF STATEMENT FOR THE REASONS FOR DECISION:
1. In brief the prosecution case is that on 09.02.2009 at about 12:15 AM at Vinod General Store, 7/384, Jwala Nagar, Shahdara, Delhi, accused alongwith his three associates in furtherance of their common intention attempted to commit lurking house trespass and were trying to cut the lock of the shutter with intention to commit theft in the said building which is used as a human dwelling and thereafter accused persons had alleged to be committed an Page No. : 2 / 9 offence of punishable u/s 457/34 r/w section 511 IPC and u/s 380/34 r/w section 511 IPC. The FIR No. 24/09 was registered in the PS-Vivek Vihar against the accused Munna Yadav. Statement of witnesses were recorded, site plan was prepared, accused was arrested and after completion of all necessary investigation challan U/s 173 Cr.P.C was presented in the court for trial for the offence punishable u/s 457/380/511 IPC.
2. Accused was produced from Judicial Custody before the Court to face trial so copy as required under section 207 Cr.P.C., was supplied to him. Thereafter case was fixed for consideration of charge.
3. After hearing arguments and on perusal of record, prima facie charge for the offence under section 457/34 r/w section 511 IPC and u/s 380/34 r/w section 511 IPC was made out against the accused. Accordingly charge framed against the accused on 20.04.2009. Thereafter case was fixed for prosecution evidence.
4. In support of its case prosecution has produced and examined five witnesses namely Sh. Raj Kumar as PW-1, Sh. Manish, Complainant as PW-2, HC Raj Kumar as PW-3, ASI Deshraj Singh as PW-4 (Inadvertently marked as PW-3), Ct. Sushil as PW-5 (Inadvertently marked as PW-4).
5. PW-1 Raj Kumar is the material witness who deposed that on 09.02.09 at about 12:15 AM he was present at his house and going to sleep and suddenly he heard some noise i.e., "Chor-Chor" from outside, he came from his house then saw that three persons were fleeing away and one person was caught hold by Manish(Complainant). He further deposed that he came to know that one person was trying to cut the shutter of Vinod General Store at 7/384, Main Road, Jwala Nagar, Shahdara. He further deposed that he saw a cutter in the hand of the person who was caught, the lock was broken and public persons Page No. : 3 / 9 were gathered. He further deposed that Police came and accused was handed over to the police. He further deposed that Police seized the cutter and broken lock vide seizure memos which are Ex. PW-1/A and PW-1/B respectively. He further deposed that accused made disclosure statement which as Ex. PW-1/C. Thereafter, accused was arrested and his personal search was conducted which are Ex. PW-1/D and PW-1/E respectively. During the cross examination PW-1 Raj Kumar remained firm on the point that he saw the accused when he was cutting the lock.
6. PW-2 Manish is the complainant and eye witness in the present case who deposed on the lines of the prosecution that on 09.02.09 at about 12:15 AM he came outside from his house and saw that four persons were cutting the lock of Vinod General Store at 7/384, Main Road, Jwala Nagar, Shahdara and he raised alarm. Thereafter, public persons were gathered at the spot. He further deposed that out of the four, one person was caught hold by him with iron cutter and three persons were fleeing away. He further deposed that he made call at 100 number, thereafter, police came, recorded his statement as Ex. PW-2/A and he handed over the accused alongwith the cutter to the police. He further deposed that Police seized the cutter and broken lock vide seizure memos which are Ex. PW-1/A and PW-1/B respectively. He further deposed that accused made disclosure statement which as Ex. PW-1/C. Thereafter, accused was arrested and his personal search was conducted which are Ex. PW-1/D and PW-1/E respectively. During the cross examination PW-2 Manish remained firm on the point that he saw the accused when he was cutting the lock.
7. PW-3 HC Raj Kumar is the Duty Officer who deposed that on 09.02.09 on receipt of rukka sent by ASI Desh Raj, he recorded FIR bearing No. 24/09 and proved the carbon copy of FIR as Ex. PW-3/A. He further deposed that he made endorsement on the rukka which as Ex. PW-3/B. Page No. : 4 / 9
8. PW-4 (inadvertently marked as PW-3) ASI Deshraj Singh and PW-5 (inadvertently marked as PW- 4) Ct. Sushil are deposed that on 09.02.09 on receipt of DD No. 4A they went to 7/385, Main Road, Jwala Nagar in front of Vinod General Store where complainant Manish and Raj Kumar met them and produced accused Munna Yadav and stated that accused Munna Yadav was cutting the lock of Vinod General Store. Thereafter, IO/ ASI Deshraj Singh recorded the statement of complainant Manish which as Ex. PW-2/A and prepared the site plan which as Ex. PW-3/A. Thereafter, seizure memo of the lock and cutter were prepared by the IO which as Ex. PW-1/B and Ex. PW-1/A. They further deposed that the disclosure statement of the accused Munna Yadav @ Amit Yadav was recorded which as Ex. PW-1/C. Thereafter, accused was arrested and personally searched vide memos as Ex. PW-1/D and PW-1/E respectively.
9. On 15.12.2009 statement u/s 313 Cr.P.C. of accused Munna Yadav @ Amit Yadav was recorded in which he stated that he is innocent and the cutter was falsely planted upon him by the Police. However, he did not prefer to lead evidence in his favour. But during the course of the day an application u/s 311 Cr.P.C r/w 315 Cr.P.C moved by the accused which was allowed by this court and accused Munna Yadav was examined himself as DW-1 on 04.03.2010 and 17.03.2010 and deposed that on 08.02.09 he was going to Indrapuram, Ghaziabad from Balbir Nagar, in a rickshaw with two coer foam (Gadda) to be delivered to its buyer. He further deposed that near Anand Vihar Check Post his rickshaw was impounded by committee officials as he had no permit of the rickshaw. He further deposed that he has no money for travelling in the bus so he was going to foot from a short cut route via Vivek Vihar and when he reached near PS-Vivek Vihar, some police officials detained him and interrogated regarding his job. He further deposed that police officials took him to PS and obtained his signatures on blank papers. He further deposed that he never visited near and around Vinod General Store on or before 09.02.09 and Page No. : 5 / 9 denied all the suggestion asked by Ld. APP during the cross examination. But surprisingly this version did not explain while his statement u/s 313 Cr.P.C has been recorded.
10. The main submissions of Ld. APP for the state were to the effect that on the basis of entire material on record, the case stands well proved against the accused person for the offence u/s 457/380 r/w section 511 IPC beyond reasonable doubt and he should be punished strictly as per law.
11. On the other hand, the main submissions of Ld. Defence Counsel were to the effect that accused Munna Yadav was falsely implicated in this case, that nothing was recovered from his possession, that no independent and reliable person of the alleged place of locality or public witness was joined by the IO despite the fact that several public persons were present at the spot except Manish and Raj Kumar, that recovery whatever be alleged, planted upon him by the police officer, that the case does not stand proved against the accused Munna Yadav beyond reasonable doubt. On the basis of these grounds, acquittal of the accused has been prayed for.
12. I have heard the Ld. APP for the state and the Ld. Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
13. In the present case PW-1 Raj Kumar and PW-2 Manish (Complainant) both are the eye witnesses and they deposed on the lines of the prosecution that on 09.02.09 at about 12:15 AM they were present at their house and came outside from their house and saw that four persons were cutting the lock of Vinod General Store situated at 7/384, Jwala Nagar, Shahdara, thereafter, they raised alarm and public persons were gathered at the spot.
Page No. : 6 / 9They further deposed that out of the four, one person was caught hold by PW-2 Manish (Complainant) with iron cutter in his hand and three were fled away. Thereafter, they made a call at 100 number, police came and they handed over the person who was caught hold by them alongwith the cutter to the police. PW-1 and PW-2 remained firm during the cross examination and Ld. Defence Counsel unable to impeach the creditability of PW-1 and PW-2.
14. Further, Ld. Defence Counsel led defence witness and taken plea of ilibi and stated that he has no concerned with the offence alleged to be committed and examined the accused himself as DW-1 who deposed that on 08.02.09 while he was going back to his house Indrapuram, Ghaziabad after delivered of foam through rickshaw, rickshaw has been taken by the official of the MCD as there is no rickshaw permit with him. He also deposed that on the even date he was going back to his house by foot from a short cut route via Vivek Vihar and when he reached at PS- Vivek Vihar he had been arrested by some police officer interrogated and taken him to the PS but failed to give answer during the cross examination of Ld. APP that from where he taken Gadda and to whom he has delivered the gadda and also unable to explain regarding missing of rickshaw, so I am of the view that the testimony of DW-1 (Munna Yadav) is not trustworthy.
15. It is also not out of the mentioned to place here that accused Munna Yadav himself admitted that he did not know personally to the witnesses PW-1and PW-2, so I am of the considered view once a person has not been known to anyone, why he would have been implicated in a false case. Moreover, it is also not come up on record any defence taken regarding the enmity with the Manish and Raj Kumar. In absence of this explanation the testimony of Munna Yadav is appeared to be concockted and moreover not trustworthy especially when both the witnesses i.e., PW-1 and PW-2 deposed on Page No. : 7 / 9 similar line and remained firm on the point that the accused Munna Yadav had been caught red handed while he was cutting the lock of the shop of Vinod General Store at 7/384, Main Road, Jwala Nagar, Shahdara, Delhi.
16. Taking into consideration facts and circumstances of the present case and keeping in view the testimonies of PW-1 Raj Kumar and PW-2 Manish, I am of the considered view that the accused Munna Yadav had been caught red handed while he was cutting the lock of the shutter of Vinod General Store at 7/384, Jwala Nagar, Shahdara, Delhi, hence, accused Munna Yadav has committed the offence punishable u/s 457/380 r/w section 511 IPC accordingly, accused Munna Yadav is convicted for the offence u/s 457/380 r/w section 511 IPC.
Announced in the open court on 13.04.2010. (RAKESH KUMAR-III) Metropolitan Magistrate, Karkardooma Courts, Delhi.
Page No. : 8 / 9IN THE COURT OF SH. RAKESH KUMAR-III: METROPOLITAN MAGISTRATE: KARKARDOOMA : SHAHDARA : DELHI.
State V/s Munna Yadav FIR No.: 24/09 PS: Vivek Vihar U/s: 457/380/511 IPC ORDER ON SENTENCE 28.04.2010 Present:- Ld. APP for the State.
Convict Munna Yadav produced from J/C with counsel Sh. Dinesh Yaduvanshi, LAC.
Today report from Probation Officer received, which is opened and perused. Report of Probation Officer is not satisfactory.
Heard on point of sentence.
It is submitted by Ld. LAC Sh. Dinesh Yaduvanshi on behalf of convict that convict Munna Yadav is aged about 23 years old, belongs to a poor family, he has been keeping in J.C since 09.02.09 and if he will be sent in J.C he will come out as a part criminal. It is further submitted that a lenient view may kindly be taken against the convict Munna Yadav.
On the other hand Ld. APP for the State submitted that severe punishment be given to the convict person so that he should learn a lesson and he will not repeat such type of offence.
Keeping in view the report of Probation Officer, convict can not be released on Probation in as much as despite adequate opportunity given to the convict no correct address has been produced or furnished by the convict which shows his intention. Further, there is no permanent address of the convict in Delhi as he is reported to be Labour and visiting or employing here or there and also the facts and circumstances and nature of the offence, convict Munna Page No. : 9 / 9 Yadav is sentenced for the period which he has already been undergone in jail after giving benefit u/s 428 Cr.P.C.
Convict Munna Yadav be released forthwith from J/C if not required in any other case.
File be consigned to Record Room.
Announced in the open Court on 28.04.2010.
(RAKESH KUMAR-III) Metropolitan Magistrate, KKD Courts, Delhi.